The main legal point established in the judgment is that the reassessment proceedings initiated solely on the basis of the insertion of the explanation to section 80IA, which was held to be clarificatory in nature, amounted to a mere change of opinion by the Assessing Officer, and therefore, the assumption of jurisdiction by the Assessing Officer was interfered by way of writ jurisdiction.

SONIA GOKANI, J.

1. All the three petitions since involve common questions of facts and grounds, they are being decided by this common judgment.

2. The facts as may be necessary for the purpose of determination shall be drawn from Special Civil Application No.5848 of 2010, which in brief are as under :

2.1 The petitionerCompany is regularly being assessed. For the assessment year 200506, the return of income was filed which was taken under scrutiny assessment under section 143(1) of the Incometax Act, 1961 (hereinafter referred to as 'the Act') and the same was framed under section 143(3) of the Act. One of the disallowances was a part of deduction under section 80IA(4) of the Act.

2.2 The petitioner challenged such order of scrutiny before the Commissioner of Incometax (CIT) (Appeals) and such appeal was partly allowed. Both the sides challenged the same before the Tribunal and the Tribunal has already adjudicated upon the issue in a recent past.

3. By way of these petitions, the challenge is made to the notice issued under section 148 read with section 147 of the Act. On the basis of retrospective amendment, the explanation given under subsection (13) of section 80IA of the Act is substituted by the Finance (No.2) Act, 2009. On March 15, 2010, the reasons recorded by the Deputy Commissioner of Incometax state as follows :

“1. The assessment order u/s.143(3) was passed on 29/06/2007, assessing the total income at Rs.6,06,14,076/wherein the claim of deduction u/s.80IA of Rs.1,42,20,515/ allowed against the claim of Rs.4,81,64,760/.

2. As per explanation given below to sub section (13) of section 80IA of the Act, which has been substituted by the Finance (No.2) Act, 2009 w.r.e.f. 01.04.2000, deduction u/s.80IA shall not be admissible to an assessee who carries on a business which is in the nature of a works contract. The relevant explanation is reproduced below for the sake of ready reference :

“Explanation : For the removal of doubts, it is hereby declared that nothing contained in this section shall apply in relation to a business referred to in subsection (4) which is in the nature of a works contract awarded by any person (including the central or state Government) and executed by the undertaking or enterprise referred to in subsection1”.

3. Due to insertion of the explanation to section 80IA w.r.e.f. 01.04.2000, the assessee is not eligible for deduction u/s.80IA as claimed by the assessee as the assessee is a Civil Contractor working for Government. Therefore, I have reason to believe that income chargeable to tax has escaped assessment for the Assessment Year 200506.

4. Issue notice u/s.148 of the I.T. Act.”

4. The petitioner objected to reassessment proceedings vide its communication dated May 03, 2010 contending inter alia that this is nothing but a change of opinion. The Assessing Officer on due scrutiny on the basis of the material available before it, allowed deduction under section 80IA of the Act. The reopening is only on account of amendment to the explanation under subsection (13) of section 80IA of the Act, which was substituted by the Finance (No.2) Act, 2009 with effect from April 01, 2000, on the ground of retrospective effect from April 01, 2000. The assessee would not be eligible for deduction under section 80IA of the Act for the assessee being a civil contractor for the Government. When the notice had been issued, such notice is impermissible. Relying on various decisions, a request was made to drop the proceedings.

5. The objections came to be disposed of by the Assessing Officer on May 04, 2010, reiterating the fact that the amendment introduced by way of Finance Act, 2009 would permit such reassessment proceedings.

6. In the interregnum, the petitioner also challenged the vires of section 80IA(4) of the Act by way of Special Civil Application No.11287 of 2009 and such petition came to be decided in a group of petitions on February 28, 2013/ March 04, 2013, which shall be referred to at a later sta