RAMNKRISHNA STHAPATYA Vs. INCOME-TAX OFFICER

JUDGEMENT

(1.) RULE. Learned counsel Shri Pranav Desai waives service of rule for the respondents. Looking to the controversy involved, the petition is taken up for final disposal today.

(2.) ALL the petitions arise out of common impugned notices of reopening earlier assessments. Briefly stated, facts are as under :

(3.) HAVING thus heard learned counsel for the parties, we may notice at the outset that for assessment year 2005-2006, which was the first year of deduction claimed by the assessee under section 80IB(10) of the Act, the Assessing Officer after scrutiny and examination of records had granted the relief. Such assessment is sought to be reopened beyond the period of four years from the end of relevant assessment year. From the record, we do not even find that there is any allegation that the Assessing Officer believed that income chargeable to tax had escaped assessment for the reason of assessee failing to disclose truly and fully all material facts necessary for assessment. On this short ground alone, we would be justified in quashing reopening of assessment year 2005-2006. However, there are additional reasons why we would be prompted to do so. Firstly the entire assessment was taken for scrutiny. Claim of the assessee was examined by the Assessing Officer during the original assessment. Further, reasons recorded to our mind are not germane. The development permission as well as permission to commence construction granted by the local authority of-course are in the name M/s. Suresh Kumar and others. From the maps attached to such permissions, which were also certified by the local authority, it clearly emerges that others included two remaining partners of the firm. Assessee had through objections pointed out that land was initially purchased by the partners individually and the partnership was thereafter, formed after converting the land in to non agricultural use. Land was also brought within the fold of partnership property and partnership firm had started the business of developing housing project in the said land. Merely because the name of partners are indicated in development permission granted by the local authority, one cannot jump to the conclusion that partnership firm was not engaged in business of developing housing project. Such a view, in our opinion, would be too rigid and technical, particularly, when the development permission is granted in the name of all three partners of firm and there are no other partners other than those in whose favour such permission was granted. Merely because development permission recorded name of partners and not firm, would hardly be an issue on which deduction under Section 80IB(10) of the Act could be denied particularly, if the firm was found to have developed the housing project and fulfilled all other conditions for claiming such deduction. Merely because permission is issued in the name of all partners of the firm would not be conclusive evidence to show that partnership had not engaged itself in the business of developing housing projects.