Rajasthan High Court - Jodhpur
Silver Spring Const. Pvt. Ltd vs Commissioner Of Income Tax Udaipur And ... on 5 August, 2025
Author: Vinit Kumar Mathur
Bench: Vinit Kumar Mathur
[2025:RJ-JD:34574-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 2989/2015
Silver Spring Construction private limited shantivan, Fatehpura
Badela Road, Udaipur. Through its Director Prem Singh Sadhana.
----Petitioner
Versus
1. Commissioner Of Income Tax Udaipur.
2. Dy. Commissioner of Income Tax Circle-II, Udaipur.
----Respondents
For Petitioner(s) : Mr. Sharad Kothari
Mr. Pranjul Mehta
Mr. Kalpit Shishodia
For Respondent(s) : Mr. K.K. Bissa
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
HON'BLE MR. JUSTICE ANUROOP SINGHI
Order
05/08/2025
1. Heard learned counsel for the parties.
2. The present writ petition has been filed assailing the validity
of the notice dated 05.04.2013 (Annex.3) issued under Section
148 read with Section 147 of the Income Tax Act, 1961
(hereinafter referred as "Act of 1961") and the order dated
16.03.2015 passed by the Assessing Officer, whereby the
objections filed by the petitioner to the notice dated 05.04.2013
have been rejected.
3. Briefly noted, the facts in the writ petition are that the
petitioner is a company registered under the Companies Act and is
engaged in various types of construction activities. The petitioner
submitted its return of income for the A.Y. 2008-2009 claiming
deduction under Section 80 IB of the Act of 1961 of
[2025:RJ-JD:34574-DB] (2 of 7) [CW-2989/2015]
Rs.38,71,569/- in respect of income arising out of construction
work carried out by it of a project approved by the Urban
Improvement Trust, Udaipur. The respondent No.2 issued a notice
on 05.04.2013 under Section 148 read with Section 147 of the Act
of 1961, proposing to reopen the assessment for the A.Y. 2008-09
alleging inter-alia that income chargeable to tax has escaped
assessment.
4. Vide communication dated 27.04.2013, petitioner conveyed
to the respondents that the return of income originally filed by it
be treated as return of income filed in compliance of the notice of
re-assessment. Further, copy of reasons recorded by the
respondents for issuing notice dated 05.04.2013 were sought,
which were duly provided to it by the respondents vide
communication dated 12.04.2014.
5. The objections dated 09.09.2014 to the validity and legality
of the re-assessment proceedings were submitted by the
petitioner wherein amongst various grounds it was inter alia
submitted that the claim under Section 80 IB of the Act of 1961
for the A.Y. 2010-11 has been approved by the Commissioner of
Income Tax (Appeals) (hereinafter to be referred as 'CITA') vide its
order dated 04.06.2014 and thus, the present case of the
petitioner stands duly covered by the same. By way of further
submissions dated 06.02.2015, it was submitted that the Income
Tax Appellate Tribunal (hereinafter to be referred as 'the Tribunal')
has arrived at a factual finding that the petitioner is entitled for
deduction under section 80 IB of the Act of 1961. It was also
additionally submitted that petitioner has complied with all the
legal and factual requirements and there is no concealment or non
disclosure on its part and thus, there is no occasion to initiate any
re-assessment proceedings.
[2025:RJ-JD:34574-DB] (3 of 7) [CW-2989/2015]
6. The said objections submitted by the petitioner came to be
rejected by the respondents vide order dated 16.03.2015
aggrieved by which, the present writ petition has been filed.
7. Learned counsel for the petitioner vehemently submitted that
the order dated 16.03.2015 is not a speaking order and even the
submissions made before it have not been considered. It was
further submitted that the relevant fact regarding order passed by
the Tribunal dated 08.10.2014, wherein for the very same project
it was held that the petitioner is entitled for deduction under
Section 80 IB of the Act of 1961, has not been considered by the
authority, which reflects non application of mind. He further
submitted that the Tribunal has held that the completion
certificate gets merged in the occupancy certificate or utility
certificate by the Urban Improvement Trust and thus, there was
no occasion for the assessing authority to reject the objections
raised by it. Learned counsel for the petitioner further submitted
that the Assessing Officer having not considered the objections in
its true letter and spirit has committed an error and thus, it was
prayed that the order dated 06.03.2015 so also the notice dated
05.04.2013 be quashed and set aside.
8. Per contra, learned counsel for the Income Tax Department
has though opposed the submissions made by learned counsel for
the petitioner, however, could not refute the fact that in the
petitioner's own case, the Tribunal has held that the completion
certificate is not necessary and the petitioner is entitled for
deduction under Section 80 IB of the Act of 1961. Learned counsel
for the respondent-Department thus, prayed that the matter may
be remanded back to the Assessing Officer to re-examine the
issue in accordance with law.
[2025:RJ-JD:34574-DB] (4 of 7) [CW-2989/2015]
9. We have considered the submissions made at the Bar and
have gone through the relevant record of the case including the
order dated 16.03.2015.
10. The factual details narrated above clearly show that in
pursuance of the notice dated 05.04.2013, the Assessing Officer
has initiated the re-assessment proceedings and while dealing
with the same, the petitioner has raised objections with respect to
the issuance of the notice dated 05.04.2013 issued under Section
148 read with Section 147 of the Act of 1961. The fact also
disclosed that in assessee's own case, the Tribunal has ruled in
favour of the petitioner with respect to grant of deduction
permissible under Section 80 IB(10) of the Act.
11. For brevity, the findings recorded by the Tribunal in its order
dated 08.10.2014 from the A.Y. 2010-11, reads as under:-
"Thus, we find no force in the reasons given by the A.O.
and submissions of ld. D.R., as all the pre-requisite
conditions of Section 80IB(10) if the Act sand fulfilled and
the assessee-company is eligible for this deduction. The
completion certificate gets merged in the occupancy
certificate or utility certificate by the UIT. The assessee-
company applied for getting the completion certificate
which was not denied and under identical facts in the A.Y.
2009-10, admittedly, the A.O. has allowed this deduction
in respect of the same project. Otherwise the completion
of the project on 31.03.2010 has not been in question.
Thus, the project was completed within 4 years only.
There is no proof that the continuation of the project is
not as per the approved plan. Therfore, we are in
agreement with the finding of ld. CIT(A) and dismiss
ground Nos. (1) and (1.1)."
12. We note that the assessee has produced the order of the
Tribunal before the learned Assessing Officer while pressing his
objections to the issuance of notice dated 05.04.2013. A perusal
[2025:RJ-JD:34574-DB] (5 of 7) [CW-2989/2015]
of the order dated 16.03.2015 shows that learned Assessing
Officer has not properly considered the order passed by the
learned Tribunal and has merely brushed aside the same. This
Court feels that the Assessing Officer was under an obligation to
consider and decide the objections after taking into consideration
all the materials placed before it more particularly, the order
passed by the CIT(A) and the Tribunal in its correct prospective.
While it is a trite law that the principle of res-judicata are not
applicable in income tax proceedings, however, it does not rule out
the applicability of fundamental principles of consistency, propriety
and finality and thus, once a finding has been arrived by an
authority more so a higher authority, then it was imperative for
the assessing authority to at-least deal and consider the said
submissions raised by the petitioner. However, in the instant case,
the assessing authority has merely ignored the said submissions
and has failed to give any finding with regard to the same. This
approach cannot be accepted and such an order cannot fall within
the contours of a speaking order which is the minimum
requirement to be followed in light of the law laid down by Hon'ble
Supreme Court in the case of GKN Driveshafts (India) Ltd. vs.
Income Tax Officer & Ors. reported in 259 ITR page 19,
wherein in unequivocal terms, the Hon'ble supreme Court has held
that the Assessing Officer has to dispose of the objections, if filed,
by passing a speaking Order. Unless there is an apparent change
from one assessment year to the other, the Department cannot be
permitted to take a contrary stand. It is a matter of record that in
the proceedings for A.Y. 2010-11, deduction under Section 80 IB
of the Act of 1961 was allowed by CIT(A) vide its order dated
04.06.2014 which was confirmed by the Tribunal vide its order
dated 08.10.2014 and the said order has attained finality. The
above principle has been upheld by Hon'ble the Supreme Court in
[2025:RJ-JD:34574-DB] (6 of 7) [CW-2989/2015]
the case of Bharat Sanchar Nigam Ltd. vs. Union of India
reported in (2006) 3 SCC 1, wherein the Hon'ble Supreme Court
has held as follows:-
"The courts will generally adopt an earlier
pronouncement of the law or a conclusion of fact unless
there is a new ground urged or a material change in the
factual position. The reason why court have held parties to
the opinion expressed in a decision in one assessment year
to the same opinion in a subsequent year is not because of
any principle of res judicata but because of the theory of
precedent or the presidential value of the earlier
pronouncement. Where facts and law in a subsequent
assessment year are the same, no authority whether qushi-
judicial or judicial can generally be permitted to take a
different view. This mandate is subject only to the usual
gateways of distinguishing the earlier decision or where the
earlier decision in per-incuriam. However, these are fetters
only on a co-ordinate bench which, falling the possibility of
availing of either of these gateways, may yet differ with the
view expressed and refer the matter a Bench of superior
strength or in some cases to a Bench of superior
jurisdiction."
13. Thus in view of the above, legal and factual background, the
order dated 16.03.2015 cannot be sustained and deserves to be
set aside. We feel that the entire material placed before the
Assessing Order is required to be properly and judicially
considered and a reasoned order is required to be passed after
dealing with all the contentions raised and the judgments relied
upon by the parties.
14. In view of the above, the present writ petition is disposed of
and the order dated 16.03.2015 is quashed and set aside. The
matter is remanded back to the Assessing Officer to decide the
[2025:RJ-JD:34574-DB] (7 of 7) [CW-2989/2015]
objections raised by the petitioner against issuance of the notice
dated 05.04.2013 afresh in accordance with law, after giving a
reasonable opportunity of hearing to the petitioner.
15. Stay application as well as other pending application(s), if
any, also stand disposed of.
(ANUROOP SINGHI),J (VINIT KUMAR MATHUR),J
153-Taruna/Payal
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