TaxTMI 
TaxTMI 
2010 (1) TMI 41
X X X X Extracts X X X X
X X X X Extracts X X X X
....B. Nagar, Andheri (East), Mumbai. For assessment year 2002-03, a deduction under Section 80IB(10) was claimed and allowed to the assessee in respect of project IIA. The dispute before the Court in these proceedings pertains to assessment year 2003-04 in respect of which for project IIA and Project IIB, a deduction was sought under Section 80IB(10). An assessment order was passed under Section 143(3) on 30th December 2005. The Assessing Officer, while allowing the deduction under Section 80IB(10) in respect of projects IIA and IIB noted that no deduction has been claimed for phases I and III, which were outside the time period prescribed by the statutory provision. On 31st March 2009, a notice was issued to the assessee by the Assistant Commissioner of Income Tax, 16(1), Mumbai under Section 148 stating that there was reason to believe that the income of the assessee in respect of which it was assessable to tax for assessment year2003-04 has escaped assessment within the meaning of Section 147. Reasons were disclosed to the assessee for the reopening of the assessment on 28th April 2009 in pursuance of a request made on 20th April 2009. The sole ground which has been set up in the r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er 1998 and as a matter of fact there was no claim for deduction for projects I and II, which were not within the prescribed time period; (3) During the course of assessment, reliance was also placed upon a circular of the Central Board of Direct Taxes which clarifies that in an additional housing project an existing housing project site can qualify for deduction under Section 80IB(10), provided it is taken up by a separate undertaking having separate books of accounts, so as to ensure that correct profits can be ascertained for the purposes of the Section; (4) The Assessing Officer had during the course of the original order of assessment under Section 143(3) appreciated the facts and circumstances arising out of the deduction claimed under Section 80IB(10); and (5) There was no failure on the part of the assessee to disclose all the material facts relating to the claim for deduction under Section 80IB(10) and consequently there was no basis for the exercise of the jurisdiction under Section 148 of the Act. 5. On the other hand it has been urged on behalf of the respondents that subsequent to the order of assessment, the first respondent had come in possession of certificates i....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and truly all material facts necessary for his assessment, for that assessment year. 7. Now it is an admitted position before the Court that the assessee has been granted the benefit of a deduction under Section 80IB(10) for assessment year 2002-03 in respect of project IIA. As already noted earlier, no claim for deduction was made in respect of project I since the initiation of the project was prior to 1st October 1998, which is the cut off date prescribed by Section 80IB(10). For assessment year 2003-04, in the return filed by the assessee seeking a deduction under Section 80IB( 10) in respect of projects IIA and IIB, the net profit in respect of these two projects was disclosed as Rs.77.77 lacs and an audit report of a Chartered Account under Section 80IB was furnished. The audit report contains inter alia a disclosure in Form 10CCB. Item 8 of the form refers to the date of commencement of operation by the undertaking as 20th December 1999 and 4th March 2002. Under Item 18Q, the date of approval by the local authority is referred to as 20th December 1999 and 4th March 2002. During the course of assessment proceedings, the assessee filed with the Assessing Officer copies o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or the assessment for the assessment year in question. 9. The Notice under section 148 and the reasons which have been disclosed to the assessee proceed on the basis that on 18th March 2009 the Joint Commissioner of Income Tax had furnished an intimation to the Assessing Officer that since the commencement certificates have been issued by the Municipal Corporation on 24th July 1993, the claim for deduction under section 80IB was not correct. While disposing of the objections of the assessee, once again the only material upon which reliance is placed is a copy of the commencement certificate issued by the Municipal Corporation. Now it is an admitted position before the Court that the commencement certificates issued by the Municipal Corporation were produced before the Assessing Officer during the course of the assessment proceedings. This has been accepted by Counsel for the revenue in the course of his submissions. The primary material consisting of the commencement certificates was, therefore, within the knowledge of the Assessing Officer. The contention of the assessee has been that though the original commencement certificates were dated 24th July 1993 and 12th February 1994....