The Commissioner Of Income Tax-Ii, Pune v. M/S Kharade Patil

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 1578 OF 2013WITHINCOME TAX APPEAL NO. 1577 OF 2013 The Commissioner of Income Tax-II, Pune ..Appellant Vs. M/s Kharade Patil..Respondent .... Mr. Suresh Kumar, Advocate I/b Vipul Bajpayee for Appellant.None for Respondent. .... CORAM : M.S. SANKLECHA & N.M. JAMDAR, JJ.DATED : 17 AUGUST 2015 P.C.: These appeals by the revenue challenging the commonorder dated 29 October 2012 passed by the Income Tax AppellateTribunal (the 'Tribunal'). The common impugned order disposes ofappeals for the Assessment Years 2004-05 and 2005-06. 2.Mr. Suresh Kumar, the learned Counsel for the revenueurges only the following question of law for our consideration: “(1)Whether on the facts and in the circumstancesof the case and in law, the Tribunal erred in holding thatthe issue of notice u/s 148 was bad in law as theproceedings initiated were merely on the change ofopinion without appreciating the facts that the issue ofcompletion of project was never before the AssessingOfficer in the course of proceedings u/s 143(3) and theAssessing Officer, in the original assessment order u/s143(3) had not formed any opinion about thecompletion of the project?” 3.The Tribunal by the impugned common order for both theassessment years has taken a view that the notices for reopeningassessment were bad as it was based on a change of opinion. TheAssessing Officer had during the regular assessment proceedingsunder Section 143(3) of the Act had occasion to consider the claimof the respondent-assessee before allowing benefit of deductionunder Section 80IB(10) of the Act. This finding was based on theorder of assessment passed for the two subject Assessment Yearsunder Section 143(3) of the Act, both on which records the fact thatthe Assessing Officer had made a personal visit to project site andpersonally verified that the respondent-assessee had not constructedS.S.DESHPANDE2 / 4 any commercial units and area of each residential units is less than1500 sq.ft. Besides holding in both the assessment orders passedthat the respondent-assessee had satisfied all the conditions laiddown for claiming the benefit of deduction under Section 80IB(10)of the Act. 4.The grievance of the revenue is that the completioncertificate in respect of Wing 'D' which is one of the building in theconcerned housing project was not filed by the respondent-assessee.Consequently, the issuing of the impugned notice would not amountto change of opinion. 5.We find that the impugned order of the Tribunal recordsthe fact that the assessment orders passed in regular assessmentproceedings in the subject assessment years has held that conditionslaid down in Section 80IB(10) of the Act had been fulfilled by therespondent-assessee. This itself presupposes that the order ofassessment passed in the two subject assessment years had appliedits mind to the eligibility of the respondent-assessee to the benefit ofdeduction under Section 80IB(10) of the Act. S.S.DESHPANDE3 / 4 6.In the above view, we find that the impugned order of theTribunal cannot be found fault with. Moreover, the impugned ordermerely records a finding of fact which is evident from the order ofthe Assessing Officer passed in regular assessment proceedings forthe two subject years. This finding of fact is not shown to beperverse or arbitrary. Thus the question as formulated does notgive rise to any substantial question of law. 7.Accordingly, in the above view, both the appealsdismissed. No order as to costs. [N.M. JAMDAR, J] [M.S. SANKLECHA, J.]