Revisiting the same issue which was already considered in original assessment and taken the decision amounts to difference of opinion and on difference of opinion the reopening of assessment is not permissible.

This appeal is filed by the assessee against the order of the Commissioner of Income Tax (Appeals) [CIT(A)]-11, Hyderabad in Appeal No.30/2018-19/CIT(A)-11 Hyderabad/18-19 dated 20.03.2019 for the Assessment Year (A.Y.) 2012-13.

2. The assessee has raised total 5 grounds in this appeal. Ground No.1 and 5 are general in nature, which do not require specific adjudication.

3. Ground No.2 is related to the validity of assessment made u/s 148 (of Income Tax Act, 1961) (in short ‘Act’).

4. Ground No.3 is related to the sustaining the addition by the Ld.CIT(A) relating to disallowance of deduction u/s 80IB(11C) (of Income Tax Act, 1961).

5. Ground No.4 is with regard to charging of interest of Rs.3,66,804/- u/s 234B (of Income Tax Act, 1961).

6. We take up ground No.2 first, which is related to the validity of assessment made u/s 148 (of Income Tax Act, 1961), since, it goes to the root of the assessment. In the instant case, the assessment was originally completed u/s 143(3) (of Income Tax Act, 1961) by an order dated 30/03/2015 and the same is furnished as page No.29 of paper book-2. Brief facts of the case are that the assessee has filed its return of income for the A.Y.2012-13 declaring total income of Rs.Nil. In the return of income filed, the assessee claimed deduction u/s 80IB(11C) (of Income Tax Act, 1961) amounting to Rs.17,20,290/-. The AO completed the assessment, accepting the income returned and allowed the deduction claimed u/s 80IB(11C) (of Income Tax Act, 1961). Subsequently, the case was reopened u/s 147 (of Income Tax Act, 1961) and the notice u/s 148 (of Income Tax Act, 1961) was issued, with a reason that the hospital building was completed by March 2012 and hence viewed that the assessee has not satisfied the conditions for grant of deduction u/s 80IB(11C) (of Income Tax Act, 1961) for the Assessment year(AY) 2012-13. Therefore, AO believed that income chargeable to tax had escaped the assessment and hence reopened the assessment by issue of notice u/s 148 (of Income Tax Act, 1961). Since, there was no response from the assessee, the AO issued show cause letter and in response to which the assessee furnished the details called for by the AO. After considering the details, the AO viewed that the assessee has not satisfied conditions laid down u/s 80IB(11C) (of Income Tax Act, 1961) for grant of deduction u/s 80IB(11C) (of Income Tax Act, 1961) with regard to completion of hospital building and the filing of certificate u/s 10CCBD (of Income Tax Act, 1961) and hence, held that the assessee is not entitled for deduction and accordingly disallowed the amount of Rs.17,20,290/- claimed by the assessee and levied the tax of Rs.8.98.370/-.

7. Against the order of the AO, the assessee filed appeal before the Ld.CIT(A), but not succeeded. Hence, the assessee is in appeal before us.

8. During the appeal hearing, the Ld.AR submitted that the assessee has complied with all the conditions laid down u/s 80IB(11C) (of Income Tax Act, 1961) of the for claiming the deduction u/s 80IB (of Income Tax Act, 1961) and hence, allowed the deduction in original assessment after verifying the details. The Ld.AR submitted that the hospital building was completed within 3 years from the date of approval accorded by the municipal corporation i.e., the first day of 2011 i.e 01/01/2011. Since, there was no mention of the month in the completion certificate issued by Municipality, the present AO misunderstood that the building was not completed before December 2011. The assessee furnished the municipal tax receipts, but the AO did not take cognizance of the same. The Ld.AR explained that 1st day 2011 refers to 1st January 2011 and no other inference can be drawn since, it is very clear and there was no ambiguity. The Ld.AR further submitted that the assessee furnished the Form No.10CCBC and submitted that no objection was raised by the AO with regard to submission of 10CCBC instead of 10CCBD in the original assessment. The Ld.AR submitted that there was no difference in the information contained in Forms 10CCBC and 10CCBD. The Ld.AR further submitted that the information in both the certificates is identical and by mistake the assessee had furnished the Form 10CCBC instead of 10CCBD. The Ld.AR submitted that since it was a purely technical mistake and the AO did not raise any objection in original assessment, the assessee should be given the benefit and should not be made disentitled for deduction. The contention of the Ld.AR is that the assessee has completed the building within the specified period as per 80IB(11C) and entitled for deduction u/s 80IB (of Income Tax Act, 1961) since, the hospital was operating during the year under consideration. In support of it’s claim, the assessee has filed occupancy certificate, municipal plan approval and the details of number of beds etc. All the evidences were placed before the AO and demonstrated that the assessee had complied with all the requirements. All these issues were examined by the AO in the original assessment and completed the assessment allowing the deduction. The Ld.AR submitted that no fresh information was received by the AO to reopen the assessment. The AO revisited the same information which was already available in the file and taken different view and reopened the assessment. The assessee has taken our attention to paper book, the questionnaire issued by the AO, the assessment order made u/s 143(3) (of Income Tax Act, 1961) in original assessment and argued that reopening of assessment is nothing but difference of opinion. Therefore, argued that there is no reason to reopen the assessment and hence, requested to quash the assessment made u/s 143(3) (of Income Tax Act, 1961) r.w.s. 147 (of Income Tax Act, 1961).

9. On the other hand, the Ld.DR supported the orders of the lower authorities. 10. We have heard both the parties and perused the material placed on record. In the instant case, the assessment was completed u/s 143(3) (of Income Tax Act, 1961) by an order dated 30.03.2015. In the return of income filed by the assessee, the assessee had claimed the deduction u/s 80IB(11C) (of Income Tax Act, 1961) amounting to Rs.17,20,289/- which was allowed by the AO. During the original assessment proceedings, the AO called for the necessary information in questionnaire as per page No. 25 of the paper book. The AO issued show cause notice vide letter dated 27.01.2015 and called for the details with regard to construction of hospital, number of beds, whether hospital building was constructed in accordance with the regulations or not? etc. and the audit certificate 10CCBC/10CCBD. After verifying the details submitted by the assessee, the AO completed the assessment u/s 143(3) (of Income Tax Act, 1961) by an order dated 30.03.2015. In this case, the initial year of assessment for claim of deduction u/s 80IB (of Income Tax Act, 1961) was assessment year 2010-11 and the AO completed the assessment u/s 143(3) (of Income Tax Act, 1961) in the initial assessment also after calling the necessary information required for grant of deduction u/s 80IB (of Income Tax Act, 1961).

The AO also referred the valuation of building to the departmental valuation officer and made addition of Rs.18,03,823/- towards unexplained investment in construction of the building in A.Y.2010-11. Thus, it is evident that the hospital building was completed and operating from the A.Y.2010-11 itself. In the subsequent assessment year i.e. A.Y 2013-14 also, the AO allowed deduction u/s 80IB(11C) (of Income Tax Act, 1961). In the instant case, the AO examined the issue with regard to allowability of deduction u/s 80IB(11C) (of Income Tax Act, 1961) in the original assessment itself and allowed the deduction. With regard to completion of construction hospital, number of beds and the Accountant’s certificate etc., the AO had examined the details in the initial assessment year as well as in the year under consideration and then allowed the deduction. Therefore, reopening of assessment was on the basis of information that was already available on record and no fresh information was received by the AO. Revisiting the same issue which was already considered in original assessment and taken the decision amounts to difference of opinion and on difference of opinion the reopening of assessment is not permissible. The AO mentioned in the assessment order that the assessee had claimed deduction u/s 80IB (of Income Tax Act, 1961) and filed Form No.10CCBC instead of 10CCBD. The Ld.AR submitted that there was no material difference in both the forms with regard to information and columns are the same. The AO in the original assessment did not raise any objection for submission of 10CCBC and there was no difference with regard to information to be furnished in Form 10CCBC or 10CCBD, hence it was purely a mistake or misunderstanding. The Ld.DR also did not controvert the submission of the assessee with regard to difference of information in 10CCBC or 10CCBD. The AO had accepted the 10CCBC and allowed the deduction in original assessment. This Tribunal in assessee’s own case for the A.Y.2011-12 in ITA No.119/Viz/2015 dated 28.03.2017, following the order of the Hon’ble jurisdictional High Court in ITTA No.114 of 2013 in the case of ITO Vs. Sri S.Venkatesh held that denying deduction u/s 80IB(11C) (of Income Tax Act, 1961) on technical issue is unjustified. Hence we, hold that the reopening of assessment is bad in law and accordingly, we quash the notice issued u/s 148 (of Income Tax Act, 1961) and annul the assessment made u/s 147 (of Income Tax Act, 1961) r.w.s 143(3) (of Income Tax Act, 1961) dated 26/12/2017 and allow the appeal of the assessee. Accordingly, we set aside the order of the Ld.CIT(A) and allow the appeal of the assessee.

11. In the result, appeal filed by the assessee is allowed.

Order pronounced in the open court on 7th April, 2021.

Sd/- Sd/-

(N.K.CHOUDHRY) (D.S.SUNDER SINGH)

JUDICIAL MEMBER ACCOUNTANT MEMBER

Dated : 07.04.2021