Appeal Details
Counselvise Citation
[2020] 110 COUNSELVISE.COM (IT) 5790 (ITAT-PUNE)
Assessee PAN
Bench
Appeal Number
CRN Number
Duration Of Justice
3 year(s) 3 month(s) 15 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
01-10-2020
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
A
Next Hearing Date
30-09-2020
Assessment Year
2009-2010
Appeal Filed On
16-06-2017
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE VIRTUAL COURT BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER ITA NO. 1531/PUN/2017 / ASSESSMENT YEAR : 2009-10 DCIT, CIRCLE-5, PUNE VS. MANAV REALTY, 304 TO 306, D-WING, BUSINESS COURT, MUKUND NAGAR, PUNE 411 037 PAN : AANFM5564C APPELLANT RESPONDENT / ORDER PER R.S.SYAL, VP : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A)-8, PUNE ON 28-02-2017 IN RELATION TO THE ASSESSMENT YEAR 2009-10. 2. THE FIRST TWO GROUNDS DEAL WITH INITIATION OF REASSESSMENT. THE FIRST GROUND IS AGAINST THE DECISION OF LD. CIT(A) IN HO LDING THE REASSESSMENT ORDER TO BE BAD IN LAW DESPITE THE FACT THAT N O OBJECTION WAS RAISED BY THE ASSESSEE IN THE COURSE OF REAS SESSMENT ASSESSEE BY SHRI PRATEEK JHA REVENUE BY SMT. KESANG Y. SHERPA DATE OF HEARING 30-09-2020 DATE OF PRONOUNCEMENT 01-10-2020 ITA NO.1531/PUN/2017 MANAV REALTY 2 PROCEEDINGS; AND THE SECOND GROUND IS AGAINST THE DECISION OF LD. CIT(A) THAT THE REOPENING WAS BASED ON MERE CHANGE OF OPINION AND HENCE, THE ORDER WAS BAD IN LAW. 3. SUCCINCTLY, THE FACTS OF THE CASE ARE THAT SCRUTINY ASSESS MENT WAS DONE U/S.143(3) OF THE INCOME-TAX ACT, 1961 (HEREIN AFTER ALSO CALLED THE ACT) ON 14-12-2011 DETERMINING TOTAL INCOME AT RS.2,27,120/- WHEREIN DEDUCTION U/S.80IB(10) WAS ALLOWED AT RS.10,79,27,366/-. THERE WAS CHANGE OF JURISDICTION AND CHANGE OF INCUMBENT. THE NEW AO INITIATED REASSESSMENT PROCEEDINGS B Y MEANS OF A NOTICE U/S.148 DATED 10-03-2014. AS PER THE REASSESSMENT ORDER, THE ASSESSEE DID NOT RAISE ANY OBJEC TION AGAINST THE REASSESSMENT PROCEEDINGS AND VIDE LETTER DATED 27-05-20 14 REQUESTED THE AO TO TREAT THE ORIGINAL RETURN FILED ON 07-10-2 009 AS RETURN IN RESPONSE TO NOTICE U/S.148. EVENTUALLY ASSESSMENT W AS COMPLETED U/S 143(3) READ WITH SECTION 147 DENYING THE BENE FIT OF DEDUCTION U/S.80IB(10) AT RS.10.79 CRORE. THE ASSESSEE CHALLENGED INITIATION OF REASSESSMENT PROCEEDINGS BEFORE THE LD. CIT(A) AS WELL MERITS OF THE ACTION OF THE AO. THE LD. CIT(A) HELD THAT THE REASSESSMENT WAS INVALID AND ALSO DECIDED THE ISSUE ON MERITS IN ITA NO.1531/PUN/2017 MANAV REALTY 3 FAVOUR OF THE ASSESSEE. AGGRIEVED THEREBY, THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 4. INSOFAR AS THE FIRST GROUND IS CONCERNED, BY WHICH THE REVENUE HAS CHALLENGED THE DECISION OF THE LD. CIT(A) ON THE GROUND THAT NO OBJECTION WAS RAISED BY THE ASSESSEE IN THE COURSE OF REASSESSMENT PROCEEDINGS, WE FIND THAT THE LD. CIT(A) HAS HELD THE REASSESSMENT AS BAD IN LAW ON THE BASIS OF THE FACTUAL AND LEGAL POSITION OBTAINING IN THE CASE. MERELY BECAUSE THE ASSESSE E DID NOT RAISE ANY OBJECTION AGAINST THE REASSESSMENT PROCEEDINGS BEF ORE THE AO, DOES NOT MEAN THAT QUESTION OF VALIDITY OF REASSESSMENT HAS ATTAINED FINALITY AND HENCE CANNOT BE CHALLENGED BEFORE THE APPELLATE FORUMS. THE QUINTESSENCE OF THE MATTER IS TO EXAMIN E AS TO WHETHER OR NOT THE REASSESSMENT IS VALID AND NOT WHETHER OR NOT ANY OBJECTION WAS TAKEN BY THE ASSESSEE BEFORE THE AO. I T WILL BE SEEN HEREINAFTER THAT THE LD. CIT(A) RIGHTLY QUASHED THE REASSESSMENT AS HAVING BEEN INITIATED ON THE BASIS OF CHAN GE OF OPINION ONLY. THIS GROUND IS, THEREFORE, DISMISSED. 5. THE SECOND GROUND IS ABOUT THE QUASHING OF REASSESS MENT ON THE BASIS OF CHANGE OF OPINION. THE CASE WAS TAKEN UP U NDER SCRUTINY UNDER COMPUTER AIDED SCRUTINY SELECTION (CASS) TO ITA NO.1531/PUN/2017 MANAV REALTY 4 EXAMINE THE CLAIM OF DEDUCTION UNDER CHAPTER VI-A OF THE A CT. THE AO PROCEEDED ACCORDINGLY TO EXAMINE THE CLAIM OF DEDU CTION U/S.80IB(10) IN THE ORIGINAL ASSESSMENT PROCEEDINGS BY OBTAIN ING NECESSARY DOCUMENTS FROM THE ASSESSEE. THE DOCUMENTS TH AT SPECIFICALLY FIND MENTION IN THE ASSESSMENT ORDER ARE THE AUDIT REPORT IN FORM NO.10CCB, COMMENCEMENT CERTIFICATE, COMPLETION CERTIFICATE ALONG WITH LEDGER, CASH BOOK, BANK BO OK, BILLS AND VOUCHERS ETC. FROM THE COMMENCEMENT CERTIFICATE, THE AO OBSERVED THAT THE DATE OF APPROVAL BY THE COMPETENT AUTHO RITY WAS 30-09-2006 AND THE REQUIRED DATE OF COMPLETION OF THE PROJECT WAS MENTIONED AS BEFORE 31-03-2012 . THE LD. CIT(A) FOUND A FURTHER RECORDING IN THE ASSESSMENT ORDER THAT THE ASSESSE E COMPLETED THE PROJECT ON 20-03-2009 AND ALSO FILED COMPLETION CERTIFICATE FROM THE LOCAL AUTHORITY IN SUPPORT OF THE SAME. 6. AT THIS JUNCTURE, IT WOULD BE RELEVANT TO HAVE A LOOK A T THE REASONS FOR REASSESSMENT, A COPY OF WHICH HAS BEEN PL ACED AT PAGE 1 OF THE PAPER BOOK, READING AS UNDER : IN THIS CASE ASSESSMENT WERE COMPLETED ON 14-12-2011 ACCEPTING THE RETURNED INCOME OF RS.2,27,120/-. THE ASS ESSEE HAS CLAIMED DEDUCTION U/S.80IB(10) OF THE INCOME-TAX ACT, 1961 OF RS.10,77,48,506/-. THE ASSESSEE HAS STATED T HAT HE ITA NO.1531/PUN/2017 MANAV REALTY 5 HAS OBTAINED PERMISSION FOR CONSTRUCTION OF THE HOUSING PROJECT FROM THE COLLECTOR, PUNE BECAUSE PRIOR TO THE YEAR 2010 THE SAID LAND WAS OUT OF THE JURISDICTION OF PUNE CHINCHWAD MUNICIPAL CORPORATION (PCMC). AS PER THE RECORDS, IT REVEALS THAT THE COLLECTOR, PUNE VIDE HIS ORDER DATED 30-9-2006 HAD CONVERTED THE SAID LAND FROM AGRICULTURAL TO NON AGRICULTURAL. THEREAFTER, VIDE THE SECOND ORDER OF THE COLLECTOR DATED 4-2-2008 THE LAYOUT PLA N OF THE ASSESSEE FOR CONSTRUCTION OF BUILDING WAS PASSED. THE THIRD ORDER OF THE COLLECTOR DATED 21-11-2008 A REVISED PLAN WAS SANCTIONED AND IN THIS ORDER THE COLLECTOR WROTE THAT THIS REVISED PLAN IS SUDHARIT SAMOOH GRIHBANDHANI (I.E. REVISED PLAN FOR SEVERAL BUILDINGS). THUS IT IS SEEN THAT THE FIRST ORDER OF THE COLLECTOR IS CONVERSION OF LAND INTO NON AGRICULTURAL. IN THE SECOND ORD ER, THERE WAS NO PLAN FOR SEVERAL BUILDINGS AND HENCE IT WAS THE THIRD PLAN DATED 21-11-2008 WHICH IS RELEVANT TO THE CLAIM OF DEDUCTION U/S.80IB(10) OF THE INCOME-TAX ACT. FURTHER ON VERIFICATION OF THE FORM NO.10CCB IT IS SEEN THAT THE DATE OF COMMENCEMENT OF THE BUILDING IS GIVEN AS 13-04-2006 ON THIS DATE THE LAND WAS AGRICULTURAL LAND ON WHICH HOUSING PROJECT COULD NOT BE STARTED. IN VIEW OF THE ABOVE IT IS CLEAR THAT THE ASSESSEE HAS VIOLATED THE PROVISIONS OF SECTION 80IB(10) OF THE INCOME TAX ACT AND THEREFORE, I HAVE REASONS TO BELIEVE THAT INCOME OF ITA NO.1531/PUN/2017 MANAV REALTY 6 RS.10,77,48,506/- HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147 OF THE INCOME TAX ACT. THEREFORE, NOTICE U/S.148 SHOULD BE ISSUED IN THIS CASE FOR RE-OPENING THE ASSESSMENT FOR AY 2009-10. 7. IT IS EVIDENT FROM THE REASONS RECORDED BY THE AO THAT THE INITIATION OF REASSESSMENT PROCEEDINGS WAS PREMISED ON THE FA CT THAT THE COMMENCEMENT TOOK PLACE AT A DATE IN VARIANCE WITH THE ONE STATED BY THE ASSESSEE IN THE ORIGINAL ASSESSMENT PROCE EDINGS. THE LD. CIT(A) HAS APTLY RECORDED THAT THE AO IN THE ORIGINA L ASSESSMENT PROCEEDINGS THOROUGHLY EXAMINED THE ISSUE OF D ATE OF COMMENCEMENT OF THE PROJECT, AS SUPPORTED BY THE REPRODUC TION FROM THE ASSESSMENT ORDER. THUS, IT IS MANIFEST THAT THE REASSESSMENT CAME TO BE INITIATED BY THE AO ON THE BASIS OF N O FRESH MATERIAL COMING TO HIS POSSESSION AFTER THE COMPLETION OF THE ORIGINAL ASSESSMENT, WHICH WAS, IN FACT, MADE ONLY FOR THE VERIFICATION OF CLAIM OF THE DEDUCTION UNDER THE CASS. RATHER IT IS A CASE OF CHANGE OF INCUMBENT WHO REVIEWED THE MATERIAL E XISTING ON RECORD AND TOOK A CONTRARY VIEW. SUCH CHANGE OF OPINION IS STRICTLY IMPERMISSIBLE IN THE LIGHT OF JUDGMENT OF HONBLE SUPR EME COURT IN THE CASE OF CIT VS. KELVINATOR OF INDIA LTD. (2010) 320 ITR 561 (SC) . AS SUCH, WE DO NOT FIND ANY REASON TO DISTURB THE ITA NO.1531/PUN/2017 MANAV REALTY 7 FINDING RECORDED BY THE LD. CIT(A) IN COMING TO THE CONCLUSIO N THAT THE REASSESSMENT PROCEEDINGS WERE BAD IN LAW. THE IMPUGN ED ORDER IS COUNTENANCED TO THIS EXTENT. 8. IN VIEW OF OUR DECISION ON UPHOLDING THE QUASHING OF REASSESSMENT PROCEEDINGS, THERE IS NO NEED TO GO INTO THE MERITS OF THE ISSUE. 9. IN THE RESULT, THE APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 01 ST OCTOBER, 2020. SD/- SD/- (PARTHA SARATHI CHAUDHURY) (R.S.SYAL) JUDICIAL MEMBER VIC E PRESIDENT PUNE; DATED : 01 ST OCTOBER, 2020 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. THE CIT(A)-8, PUNE 4. 5. THE PR.CIT-5, PUNE , , / DR A, ITAT, PUNE 6. / GUARD FILE / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE ITA NO.1531/PUN/2017 MANAV REALTY 8 DATE 1. DRAFT DICTATED ON 30-09-2020 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 01-10-2020 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. DATE OF UPLOADING ORDER SR.PS 8. FILE SENT TO THE BENCH CLERK SR.PS 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK 10. DATE ON WHICH FILE GOES TO THE A.R. 11. DATE OF DISPATCH OF ORDER. *
Other Referred Cases
-
Laws Referred To
-
Expert Summary
In this case, the AO has reopened the assessee's case, disallowing the claim of deduction. 80IB(10). As per the reasons recorded, the AO observed from the commencement certificate that the date of approval by the competent authority was 30-09-2006, and the required date of completion of the project was mentioned as before 31-03-2012. Further clarification of the Form No.10CCB, it is seen that the date of commencement of the building is given as 13-04-2006. On his date, the land was agricultural land in which a housing project could not be started. Hence, the assesse has violated the provisions of section 80IB(10). The Ld CIT(A) noted that the AO in the original assessment proceedings had thoroughly examined the suite of the date of commencement of he project, as supported by the production from the assessment order. Thus, the initiation of reassessment was based on no fresh material coming into the possession of AO. The Ld CIT(A) held that the reassessment proceedings were bad in law. The same was upheld by the Honourable Tribunal.
Guide to Charitable Trusts: Formation, Benefits, and Compliance
₹0
1:1 Consultation on Tax Litigation
₹0
1:1 Consultation on Tax Litigation
₹1
Rectification Letter - Application for rectification of mistake under Section 154 of I.T. Act
Mehul₹0
Stress Management policy Letter
₹0
Minimum Alternate Tax (MAT): Comprehensive Overview and Key Changes under Finance Bill, 2026
Team Counselvise - February 06, 2026
SEBI Resets Mutual Fund Rules: A Structural Shift for Investors
Team Counselvise - March 13, 2026
Why Meesho got ₹1,500 Crore Tax Demand ?
Team Counselvise - March 09, 2026