Mr.sham v. At The Request Of The Parties The Petition Is Being Taken Upfor Final Disposal At Admission Stage

1 103.1 WP 8046-2019.doc Sequeira IN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8046 OF 2019 M/s. S.S.Landmarks .. Petitioner VsThe Income Tax Officer, Ward-2(2),Pune and another .. Respondents Mr.Mihir Naniwadekar a/w Mr.Rohan Deshpande i/b Ms.AlishaPinto, for the Petitioner. Mr.Sham V. Walve a/w Mr.Pritish Chatterjee, for Respondents. CORAM : M.S.SANKLECHA & NITIN JAMDAR, JJ.Date : 17 October 2019. P.C. : At the request of the parties the Petition is being taken upfor final disposal at admission stage. 2.This Petition under Article 226 of the Constitution ofIndia seeks to challenge a notice dated 29 March 2019, issued underSection 148 of the Income Tax Act 1961(Act). The impugned noticedated 29 March 2019 seeks to reopen assessment for the AssessmentYear 2013-14. 2 103.1 WP 8046-2019.doc 3.The Petitioner is engaged in the business of building anddeveloping housing projects. For the subject Assessment Year thePetitioner filed its return of income claiming benefit of section80IB(10) of the Income Tax Act, 1961, (the Act) on the ground thatthe housing project called “Shagun Phase 1” was completed withinthe stipulated period on or before 31 March 2012 as the project wassanctioned on 20 March 2007. 4.During the course of the assessment proceedings the AssessingOfficer made detailed inquiries by notice under section 143(2) of theAct with regard to the Petitioner’s claim for deduction under section80IB(10) of the Act in respect of the said project. In its reply dated21 January 2016 the Petitioner pointed out that the project had beencompleted before 30 March 2012 and annexed documents in support.The application for completion certificate was made to the localAuthority on 20 February 2012 and 27 March 2012 as the projecthad already been completed. However the completion certificate wasreceived in September 2012 and the same would be effective from thedate of application for completion certificate. The Assessing Officerin his Assessment Order dated 18 March 2016 accepted the stand ofthe Respondent by recording in its order that the Petitioner hadsubmitted documentary evidence in support of its claim fordeduction. The same was verified and found to satisfy the conditionsunder section 80IB(10) of the Act. It also records the fact that for theAssessment Year 2012-13 this benefit has already been extended to 3 103.1 WP 8046-2019.doc the Petitioner. 5.On 29 March 2019, the impugned notice was issued.The reasons in support of the show cause notice read as under :‘Reasons for belief to of forming escapementincome: An information has been received from Asst.CIT Cir-2, Pune, Wherein as per ITR filed byassessee it is seen that the assessee has claimeddeduction u/s 80IB(10) for an amount ofRs.6,08,30,545/- for A.Y. 2013-14. The assesseehas claimed deduction u/s.80IB(10) in respect of itsprojects “Shagun Phase I”. As per records numberof buildings in shagun phase-I are A,B,C,D,E,F,Row houses and Bungalows G1 and G2. The firstsanction for the project was received on20.03.2007 i.e. F.Y.2006-07. After that, theassessee had received completion certificate forbuilding A,B,E,F, Row House 1,2,3,4,17 and 18 on25.03.2011 whereas completion certificate forbuilding C & D, Row House 5 to 11, 11A, 12, 13,14, 15 & 16 and Bungalows G1 and G2 wasreceived on 25.09.2012. As per section 80IB(10),the project as a whole should be completed within5 years after the end of F.Y. in which the firstsanction was received. As the project got sanctionon 20.03.2007, the project should have beencompleted by 31[st] March, 2012. As per the provisions of Section 147 of theI.T.Act, 1961, the undersigned has reason to believethat the income chargeable to tax amounting toRs.6,08,30,545/- has escaped assessment as assesseehas wrongly claimed deduction u/s 80IB(10) inrespect of Profit earned in these buildings and filedITR for NIL income. Thus there is failure on the 4 103.1 WP 8046-2019.doc part of the assessee to disclose truly and fully allmaterial facts. The case is required to be re-openedu/s 147 to bring the above mentioned quantum ofincome to taxation. As the period of 4 years have lapsed from theend of the relevant Assessment Year and escapedincome is more than 1 lakh, the necessarypermission of the Pr.CIT-2, Pune for issue of noticeu/s 148 may be accorded’. 6.The Petitioner objected to the reasons on the ground thatthere was no failure on its part to disclose truly and fully all materialnecessary for assessment. Thus, the impugned notice is hit by provisoto section 147 of the Act. Besides the Assessing Officer while passingthe regular assessment order under section 143(3) of the Act hadconsidered this very claim and accepted the same. Thus, this has ledto a change of opinion. However the objection filed by the Petitionerto the impugned notice was rejected by order dated 6 June 2019.This has led to the filing of the present Petition. 7.The Petitioner had filed another petition bearing WritPetition No.8046 of 2019 relating to re-opening of Assessment Year2012-13. The reasons indicated herein-above are identical (exceptthe figures) to the reasons which were recorded by the AssessingOfficer at the time of issuing notice to reopen the assessment forAssessment Year 2012-13 which was a subject matter of Income TaxAppeal No.8045 of 2019. We have today by a separate order allowed 5 103.1 WP 8046-2019.doc the Income Tax Appeal No.8045 of 2019 challenging a reopeningnotice dated 29 March 2019 for Assessment Year 2012-13. It is anagreed position between the parties that the reasons indicated therein(Income Tax Appeal No.8045 of 2019) to allow the Petition wouldequally apply to the facts of the present case. Therefore for thereasons indicated in the order passed today in Writ Petition No.8045of 2019, the impugned notice dated 29 March 2019 in this Petition isalso set aside. 8.The Petition is allowed. (NITIN JAMDAR, J.) (M.S.SANKLECHA, J.)