M/s Soumya Homes Pvt. Ltd., Bhopal V. The ACIT 3(1), Bhopal

ITA 74/IND/2011

• Counselvise Citation: 7422714 RSA 2011
• Duration Of Justice: 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-12-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2002-2003
• Appeal Filed On: 08-06-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Difference of opinion; Change of opinion
• Section: 143(3); 143(1); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL , INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, J.M. AND SHRI R.C.SHARM A, A.M. PAN NO. : AAFCS3503C I.T.A.NO. 74 TO 76 / IND /20 11 A.Y. : 2002 - 03 TO 2004 - 05 M/S.SOUMYA HOMES PVT.LTD., ACIT, BHOPAL VS 3(1), BHOPAL APPELLANT RESPONDENT APPELLANT BY : SHRI ANIL KHABYA, C.A. RESPONDENT BY : SHRI ARUN DEWAN, SR. DR DATE OF HEARING : 22 . 12.2011 DATE OF PRONOUNCEMENT : 26 .12.2011 O R D E R PER R. C. SHARMA, A.M. THESE ARE THE APPEALS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) FOR ASSESSMENT YEARS 2002-03 TO 200 4-05 IN THE MATTER OF ORDER PASSED U/S 147/143(3) OF THE IN COME-TAX ACT, 1961. -: 2: - 2 2. DURING THE COURSE OF HEARING BEFORE US, THE ONLY EFFECTIVE GROUND TAKEN BY THE LD. AUTHORIZED REPRES ENTATIVE RELATES TO LEGALITY OF REOPENING U/S 147 OF THE INC OME-TAX ACT, 1961. ON MERITS, HE FAIRLY CONCEDED THAT THE ASSESS EE HAS NO CASE. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HAD CLAIMED DEDUCTION U/S 80IB(10) OF THE INCOME-TAX ACT, 1961, IN RESPECT OF PROFIT OF ITS HOUSING PROJECT, INDRAPRASTHA SOCI ETY IN THE RETURN OF TOTAL INCOME FILED AS UNDER :- S.NO. A.YS. DEDUCTION U/S 80IB(10) CLAIMED (RS.) 1. 2002 - 03 1,75498/ - 2. 2003 - 04 8,18,902/ - 3. 2004 - 05 20,92,376/ - 3. THE RETURN OF TOTAL INCOME OF THE ASSESSEE WERE ACCEPTED U/S 143(1) OF THE INCOME-TAX ACT, 1961, F OR ASSESSMENT YEARS 2002-03 AND 2003-04. IN RESPECT OF LAST ASSESSMENT YEAR 2004-05, ORDER U/S 143(3) WAS PASSE D. HOWEVER, IN THE SCRUTINY ASSESSMENT OF ASSESSMENT Y EAR 2004- 05, IT WAS FOUND THAT THE ASSESSEE HAS NOT FULFILLE D THE -: 3: - 3 CONDITION PRESCRIBED U/S 80IB(10) WITH RESPECT TO C OMPLETION CERTIFICATE OF ITS HOUSING PROJECT. THE AO OBSERVED IN THAT ASSESSMENT YEAR THAT NO COMPLETION CERTIFICATE HAS BEEN ISSUED BY THE MUNICIPAL CORPORATION BEFORE 31.3.200 8. ACCORDINGLY, THE AO AFTER RECORDING REASONS ISSUED NOTICES U/S 148 ON 24.03.2009. THE DEDUCTION U/S 80IB(10) OF TH E INCOME-TAX ACT, 1961, AS CLAIMED BY THE ASSESSEE IN ALL THE AFORESAID THREE YEARS WERE WITHDRAWN AND THE INCOME WAS ASSESSED TO TAX ACCORDINGLY. 4. BY THE IMPUGNED ORDER, THE LD. CIT(A) UPHELD THE REOPENING OF ASSESSMENT IN RESPECT OF ALL THE THREE YEARS. 5. IT WAS CONTENDED BY THE LD. AUTHORIZED REPRESENTATI VE THAT THE ENTIRE PROCEEDINGS OF RE-ASSESSMENT WERE B AD IN LAW AS THE REASONS RECORDED BY THE ASSESSING OFFICER FO R ARRIVING AT SATISFACTION OF ESCAPEMENT OF INCOME WERE BASED ON CHANGE OF OPINION ON THE BASIS OF AMENDED PROVISIONS OF SECTI ON 80IB(10) BY FINANCE (NO.2) ACT 2004, WHICH WERE MADE APPLICA BLE ONLY FROM ASSESSMENT YEAR 2005-06 AND THE SAME HAD NO APPLICATION IN ASSESSMENT YEARS 2002-03, 2003-04 AN D 2004- 05. ACCORDINGLY, IT WAS CONTENDED THAT THE ORDER OF ASSESSMENT -: 4: - 4 PASSED U/S 143(3)/147 WAS BAD IN LAW AND DESERVES T O BE ANNULLED. 6. ON THE OTHER HAND, THE LD. CIT DR SUPPORTED THE REOPENING OF ASSESSMENT AS THE ESCAPEMENT OF INCOME WAS FOUND BY THE ASSESSING OFFICER. 7. WE HAVE CONSIDERED THE RIVAL CONTENTIONS, CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AN D FOUND FROM RECORD THAT THE RETURNS FOR THE ASSESSMENT YEA R 2002-03 & 2003-04 WAS ONLY PROCESSED BY THE ASSESSING OFFIC ER U/S 143(1), THEREFORE, CONTENTION OF THE LD. AUTHORIZED REPRESENTATIVE THAT THERE WAS CHANGE OF OPINION IS NOT TENABLE. HON'BLE SUPREME COURT IN THE CASE OF RAJESH JHAVERI , 291 ITR 500 HAS HELD THAT WHEN THE RETURN IS PROCESSED U/S 143(1), THERE IS NO QUESTION OF AO HAVING APPLIED HIS MIND, THEREFORE, THERE IS NO QUESTION OF ANY CHANGE OF OPINION IF TH E ASSESSMENT IS REOPENED THEREAFTER. IN THE ASSESSMENT YEAR 2004 -05, EVEN THOUGH ASSESSMENT WAS FRAMED U/S 143(3), BUT THE RE OPENING WAS WITHIN THE FOUR YEARS, THEREFORE, THE AO HAS JU STIFICATION FOR REOPENING OF ASSESSMENT AS THERE WAS ESCAPEMENT OF INCOME IN TERMS OF ASSESSEES CLAIM OF DEDUCTION U/ S 80IB(10). -: 5: - 5 8. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE DISMISSED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 26 TH DECEMBER, 2011. (JOGINDER SINGH) ( R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 26 TH DECEMBER, 2011. CPU* 2226