TaxTMI 
TaxTMI 
2022 (3) TMI 1353
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....ioning the correctness of the orders dated 27.04.2012 passed by the learned Judge in W.P. Nos. 29069, 29070 & 23899 of 2011, filed by the respondents herein. 2. The respondents herein have filed the aforesaid writ petitions questioning the notices dated 01.03.2011, 16.03.2011 and 25.03.2011 respectively and the consequential orders dated 25.11.2011 passed by the appellants herein, rejecting the objections raised by them against the proceedings initiated under Section 147 of the Income Tax Act (in short, the Act) for re-opening the concluded assessment. 3. The respondents are registered companies engaged in the business of construction and development of housing project. For the assessment years 2006-2007, 2004-2005 and 2004-2005 respectiv....
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....ndents also placed reliance on the decision in the case of Commissioner of Income Tax, Delhi vs. Kelvinator of India Limited reported in (2010) 320 ITR 561 (SC) and contended that the re-assessment proceedings initiated against them after lapse of four years is liable to be set aside. They have also placed reliance on the decision of this Court in the case of Fenner (India) Limited vs. Deputy Commissioner of Income Tax reported in (2000) 241 ITR (Madras) 672 wherein it was held that issuing re-assessment notice after expiry of four years on the ground that there is escapement of income is not sufficient. It must be shown that the escapement must be by reason of the failure on the part of the assessee, either to file a return or to disclose,....
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....f explanation to Section 801B (10) of the Act, with retrospective effect from 01.04.2001 but due to the fact that after concluding assessment, it unfolded that the respondents herein undertook and constructed the building as a contractor and not as a developer and therefore, they are not entitled to the deduction under Section 801B (10) of the Act. The learned Judge, without appreciating the above aspect has erroneously set aside the orders of rejection passed by the appellants under Section 147 of the Act. It is also contended that if the respondents are aggrieved against the order dated 25.11.2011 passed by the respective appellants, rejecting their objections to the re-assessment proceedings, they ought to have filed statutory appeals be....
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....Act are satisfied, then deduction is allowable on the entire project and there is no question of allowing deduction to a part of the project alone. 9. The learned counsel for the respondents also placed heavy reliance on the decision of the Division Bench of the Gujarat High Court in the case of Ganesh Housing Corporation Limited vs. Deputy Commissioner of Income Tax, Circle 4 & 1 reported in (2016) 74 Taxmann.com 172 (Gujarat) wherein it was held that when there is no failure on the part of the assessee to truly and fully disclose all facts and the assessing officer has no new material establishing that there was escapement of income, the re-opening of the assessment by placing reliance on the explanation added to the statute with retrosp....
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....ent proceedings are not warranted if the assessee did not suppress any material particulars at the time of assessment or the assessing officer had not collected any new materials to show that there was escapement of assessment. In Para Nos.10 and 11 of the decision, it was held as follows:- "10. Thus, the entire claim of deduction came up for consideration at the hands of the Assessing Officer in the original assessment. The claim was minutely examined and only thereafter accepted. It would therefore not permissible to the Assessing Officer to disturb such claim in exercise of powers under Section 147 of the Act by issuing the notice beyond the period of four years and beyond the period of relevant assessment year. Here again, the Assessi....
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....e was one of the contractor and the employer of a contract, also would not permit the Assessing Officer to reopen the assessment. Firstly, in a claim, which is scrutinized, the objections of this nature would be an additional element, which if at all ought to have been examined by the Assessing Officer originally and surely cannot provide a ground for re-opening the assessment beyond a period of four years. Secondly, the deduction of tax at source principally is in the hands of the payer of an account. For whatever reason if the tax is deducted at a higher rate or deducted when no such deduction was warranted, it would be for the payee for taking up the issue before the department and claim adjustment or refund, as the case may be. Mere fac....