TaxTMI 
TaxTMI 
2021 (4) TMI 655
X X X X Extracts X X X X
X X X X Extracts X X X X
....ct on 28.3.2013, upon a detailed scrutiny of the records of the respondent-assessee, who is engaged in the business of construction of roads, buildings, dams, National Highways etc., and other infrastructural projects, partly allowed the deduction under Section 80-IA(4) of the Act, for the Assessment Year 2010-2011. This was bearing in mind the relevant contracts and certificates issued by the concerned Executive Engineers of the National Highway Divisions of Public Works Department and others, to an extent of 68.75% against the claim made by the assessee. The Assessing Authority did not allow the remaining portion on the ground that some of the works contracts were only for improvement and re-laying of the roads, which did not fall within the definition of "Developing, operating and maintaining any infrastructure facility". 3. The Assessing Authority passed the assessment order on 28.3.2013. Subsequently, the said assessment was taken up for scrutiny and after such scrutiny, the said notice dated 15.3.2016 was issued to the respondent-assessee, which was impugned in the writ petition. For immediate reference the impugned notice is extracted as under:- "NOTICE UNDER SECTION 148 O....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pported the impugned notice dated 15.3.2016 and submitted that the assessee was not entitled to complete deduction under Section 18IA of the Act. Since the assessee was only executing works contract, the deductions made earlier by the original Assessing Authority was also correct. Therefore, re-assessment proceedings was rightly initiated under Sections 147/148 of the Act. 7. The learned Single Judge on considering the rival contentions allowed the writ petition and quashed the impugned notice dated 15.3.2016 issued under Section 148 of the Act and held that the reason recorded for reopening was liable to be quashed. 8. The learned Single Judge placed reliance of the Judgment of the Hon'ble Supreme Court in the case of Commissioner of Income Tax Vs. Kelvinator of India Ltd., [(2010) 320 ITR 561 (SC)] and the judgment of the Mumbai High Court in the case of Sitara Diamond Pvt. Ltd., Vs. Deputy Commissioner of Income Tax and Others [(2012) 345 ITR 91]. 9. Being aggrieved by the order of the learned Single Judge, the Revenue has preferred this appeal. 10. Learned counsel for the appellant Sri. Sanmathi E.I., contended the learned Single Judge was not right in quashing t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd further there is no escapement of income as sought to be made out in the said order dated 15.3.2016. 15. Learned counsel for the appellants submitted that the conditions required for issuance of notice under Section 148 have not at all been satisfied. Therefore, the learned Single Judge was justified in interfering in the matter and quashing the said notice. 16. Learned counsel for the respondent/assessee also submitted that there was no failure on the part of the assessee in disclosing all material facts at the time of filing of the returns and hence, issuance of the notice was wholly unjustified and therefore the order of the learned Single Judge would not call for any interference in this appeal. 17. Having heard the learned counsel for the respective parties, we have perused the impugned notice dated 15.3.2016 which has been extracted above for immediate reference. On reading of the same, it clearly indicates that the assesseee is stated to be a 'works contractor and not developer' within the meaning of Section 80IA(4) of the Act and the assessee is not eligible to claim deduction under Section 80IA of the Act. Therefore, the question is, whether the aforesaid rea....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... a failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment for that assessment year. In that case, it was held that the reasons which had been disclosed by the Assessing Officer did not relate to the fact that the assessee has failed to fully and truly disclosed. 21. Even in the instant case, on a reading of the contents of the order, we find that the reason set out does not have any nexus to the fact that there had been a failure on the part of the respondent/assessee in fully disclosing all material facts or that there was any basis for interfering on account of the said reason there had been any escapement of income. In fact, the primary jurisdictional requirement for reopening any assessment beyond a period of four years must be fulfilled strictly, otherwise it would be an arbitrary exercise of power. 22. In the instant case, on perusing the reasons recorded dated 15.3.2016 we do not find anything to the effect that the assessee had not disclosed fully and truly all material facts or that the assessee had not disclosed the fact that he was a developer. In fact the assessment for the assessment year 2010-11 was made on the ba....