TaxTMI 
TaxTMI 
2025 (12) TMI 672
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....entitled for deduction u/s. 80IA(4)(iii) . 2. Ld. CIT(A) erred in upholding validity of notice u/s. 148 without considering the fact that no new tangible material is being received after completion of original assessment u/s. 143(3), hence notice u/s. 148 is issued based on change of opinion on reappraisal of pre-existing material, hence is bad in law. 3. Ld. CIT(A) erred in upholding validity of notice u/s. 148 without appreciating the fact that notice issued u/s. 148 is hit by first proviso to section 147 as being issued after lapse of 4 years from the end of Assessment year, although Original Assessment was completed under order dated 23-03-215 u/s. 143(3) and there is no allegation, in reasons recorded, as to any failure on the part of appellant as to nondisclosure of any fact material for assessment during original assessment proceeding. 4. Appellant pray that disallowance made be deleted. 5. The appellant crave your honour's leave to add, alter or amend any ground of appeal at the time of hearing or before." 2. Brief facts of the case are as under:- Assessee is a private limited company and is engaged in the business of constructi....
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....750/-, whereas as per the provisions of section 80IA deduction is permissible only of development and not on resale. Accordingly, the assessee is not eligible to claim deduction u/s. 80IA on purchase of stock-in-trade. Therefore, I have reasons to believe that the income chargeable to tax to the extent of Rs. 4,69,76,429/- has been under assessed On the basis of above analysis/ satisfaction, I am of the firm opinion and have bona fide and valid reason to believe that the case is squarely fit to be reopened with reference to the provisions u/s. 147/148 of the IT Act, 1961 so as to bring to tax the under assessed income to the tune of Rs. 4,69,76,429/- Applicability of the provisions of section 147/151 of the facts of the case: In this case a return of income was filed for the year under consideration and regular assessment u/s. 143(3) was made on 23/03/2015 determining the total income at Rs. 1,96,62,711/- under normal provisions of the Act and book profit u/s. 115JB at Rs. 1,27,36,552/-. Since, 4 years from the end of the relevant year has expired in this case, the requirements to initiate proceedings u/s. 147 of the Act are reason to believe that income ....
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....ese information. For aforestated reasons, it is not a case of change of opinion by the AO. In this case more than four years have lapsed from the end of assessment year under consideration. Hence, necessary sanction to issue notice u/s. 148 has been obtained separately from Principal Commissioner of Income Tax as per the provisions of section 151 of the Act." 2.2. In response to the notice u/s. 148 of the Act, assessee filed its return of income on 03/04/2019 declaring total income as declared in the original return of income. Notice u/s. 143(2) dated 27/09/2019 and notice u/s. 142(1) alongwith questionnaire was issued to the assessee. Thereafter, the assessee requested for the reasons recorded for reopening, which was provided. The assessee then raised objection challenging the reopening of assessment which was disposed off vide order dated 09/11/2019. The Ld.AO during the assessment proceedings noted that, there is nothing on record to show that the assessee had complied with basis requirement of having minimum 52 units, nor submitted any details regarding eligibility for deduction u/s. 80IA(4)(iii) of the Act. Assessee in response submitted vide letter dated 12/02/20....
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....80IA. The profits on resale of units does not fall within the meaning of developing, operating, maintaining. Hence the claim of deduction u/s. 80IA on resale of units amounting to Rs. 98,30,536/- is disallowed and added back to the total income of the assessee. Penalty proceedings u/s. 271(1)(c) of the I.T. Act is initiated separately for filing inaccurate particulars of income. 4. Subject to the above total income of the assessee company is computed as under:- Total income as per order u/s. 143(3) dt. 23/3/2015 1,96,62,711 Add: on account of disallowance u/s. 80IA as discussed above 98,30,536 Total income 2,94,93,247 Tax as per section 115JB is higher than normal tax. Hence tax to be computed u/s. 115JB." Aggrieved by the order of the Ld.AO, assessee preferred appeal before the Ld.CIT(A). 3. Before Ld.CIT(A), assessee challenged the reopening of assessment to be bad in law by stating that, it was based on change of opinion on reappraisal of pre-existing material on record. The Ld.CIT(A) dismissed the legal issue raised by the assessee by observing that objections filed by assessee on reopening of the assessment was met with by the Ld.AO an....
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....tion laid down as per provision of section 80IA of the Act and said project qualifying the conditions. 4.1. The assessee had submitted list of 52 occupants giving name of party with unit no. and area during the assessee proceedings for AY 2011-12. It was also stated that, plan of construction of Software Technology Park is approved by New Mumbai Municipal Corporation and CBDT, New Delhi vide Notification no.14/2014 dtd.13.03.2014 F. No.178/77/1010-ITA-1 granted approval to claim deduction u/s. 80IA after verifying the requisite conditions as required to be complied for approval of Software Technology Park. These details were furnished by the assessee during assessment year 2011-12 vide submission dated 21/03/2014 and 24/03/2014. 4.2. The Ld.AR submitted that, in proceedings before CBDT, the said issue was considered and necessary details were submitted vide submission dtd.21.09.2010. He submitted that, after being satisfied, Certificate of Approval was issued by the CBDT. The Ld.AR submitted that, the assessee is having more than 52 units as is apparent from list already filed and available in the records. The details of which are placed at pages 48-62 of the paperbook filed ....
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....m of assessee u/s. 80IA(4)(iii) has been given. 4.6. The Ld.AR thus, placed reliance on the following decisions to submit that there is no new material with the Ld.AO in order to support the reopening of assessment more particularly when the said assessment has been reopened beyond the period of four years:- • Hon'ble Bombay High Court in the case of Tumukar Minerals Ltd. reported in 456 ITR 286 (Bom.) • Hon'ble Bombay High Court in the case of Rajshree Realtors P Ltd. reported in 334 CTR 866 (Bom.) • Hon'ble Bombay High Court in the case of Smt. Sumita Purshottam Virgincar reported in 466 ITR 238 (Bom.) • Hon'ble Bombay High Court in the case of Patel Engineering Ltd. reported in 446 ITR 728 (Bom.) • Hon'ble Supreme Court in the case of Kelvinator India Ltd. reported in 320 ITR 561 (SC) • Hon'ble Bombay High Court in the case of Capegemini India (P) Ltd. vs. ACIT reported in 232 Taxman 149 (Bombay High Court) • Hon'ble Bombay High Court in the case of Godrej Agrovet Ltd. vs. DCIT reported in 155 DTR 275 (Bombay High Court) • Hon'ble Bombay High Court in the case of Jet Speed ....
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....ee furnished all the necessary details about claim of deduction u/s. 80IA(4)(iii) during the original assessment proceedings. The Ld.AO, however, without even alleging what was the failure on the part of assessee to furnish and what information was to be furnished recorded the reasons and issued notice u/s. 148. The Ld.AO has not indicated which material facts were required to be disclosed by petitioner and were not produced during the scrutiny assessment. It is a settled law that the Ld.AO has no power to review concluded assessment in the garb of reopening. 5.4. At this juncture, we refer to the decision of the Hon'ble Bombay High Court in the case of Asian Paints Ltd. v. Deputy Commissioner of Income Tax & Anr., reported in (2009) 308 ITR 195 (Bom) wherein the Hon'ble Court held that when all facts were before Ld.AO at the time of original assessment even assuming that Ld.AO failed to apply his mind in the original assessment, the Ld.AO is precluded to issue notice u/s. 148 of the Act. Hon'ble Supreme Court in the case of Kelvinator India Ltd. (supra) held that "there is conceptual difference between power to review and power to reassess. The Assessing officer has not power t....
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....rposes of the said clause (ili) subject to the terms and conditions mentioned in the annexure of the notification. CERTIFIED TRUE COPY For Shankarlal Jain & Associates Liga Contd on page 2/- Document 2 ANNEXURE The terms and conditions on which the approval of the Government of India has been accorded for setting up of an industrial park by M/s. Rupa Infotech and Infrastructure Limited, New Delhi. (i) Name of the Industrial : Rupa Infotech & Infrustructure Limited. New Delhi. (ii) Proposed location : 401, Rupa Plaza, Jawahar Road is developing an Industrial Park named "Platinum Techno Park IT Park" placed at Plot No.17 & 18, Sector No.30A, Village- Vashi, Navi Mumbai (iii) Minimum Constructed Floor Area : 15,000 square meters. (iv) Proposed industrial : activities As defined in Industrial Park Scheme, 2008 (v) Percentage of allocable : area earmarked for Industrial use 75% or more (vi) Percentage of allocable area earmarked for commercial use : 10% or less (vii) Minimum number of industrial units : 52 Units (vill) Date of commencement of the Industrial Park : 2.9.2009 (iv) (v) : 10% or less Percentage of allocable ....