Ganesh Housing Corporation Ltd vs. DCIT (Gujarat High Court)

S. 147 Reopening, even within 4 years, on basis of retrospective amendment to s. 80-IB(10) invalid

For AY 2006-07, the assessee claimed s. 80-IB(10) deduction of Rs. 11.38 crores which was accepted by the AO in s. 143(3) assessment. Subsequently, within 4 years from the end of the AY, the AO reopened the assessment u/s 148 on the ground that the assessee had not complied with s. 80-IB(10) including that after the insertion of the Explanation to s. 80-IB(10) by the FA (No. 2) Act 2009 w.r.e.f. 1.4.2000, a contractor was not eligible for deduction u/s 80-IB(10). The assessee challenged the s.148 notice by a Writ Petition. HELD allowing the Petition:

The main reason for reopening the assessment was the insertion of the Explanation to s. 80-IB(10) by the FA (No. 2) Act 2009 w.r.e.f. 1.04.2000 which denies deduction to a contractor in respect of works contract awarded by any person and that at the stage of the original assessment, no opinion regarding the allowability or otherwise of deduction u/s 80IB (10) was given. of the Act. As regards the retrospective amendment, if an Explanation is added to a section for the removal of doubts, the implication is that the law was the same from the very beginning and the same is further explained by way of addition of the Explanation. It is not a case of introduction of a new provision of law by retrospective operation. As regards the formation of opinion, the assessee had disclosed all the material relevant for claiming s. 80-IB(10) deduction and there was no suppression of material. The fact that the AO in the s. 143(3) assessment did not give any opinion regarding the allowability or otherwise of deduction u/s 80IB (10) of the Act cannot be a ground for invoking s. 147.