Point of Law: It is settled law that, the Assessing Officer has power to reassess any income with escaped assessment for any assessment year subject to provision of Act. Where an assessment under Section 143 or 147 of Act has been made for the relevant assessment year, no action shall be taken after expiry of 4 years unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under Section 139 or in response to the notice issued under sub-section 1 of Section 142 or Section 148 or to disclose fully and truly all material facts necessary for his assessment.

ORDER :

ILESH J. VORA, J.

1. As common question of law and fact arises in these captioned writ applications with respect to the same assessee for different assessment years, they were heard together and are hereby disposed of by this common order.

2. By filing these writ applications under Article 226 of the Constitution of India, the writ applicant seeks to challenge the Notices dated 26.03.2018 issued by the respondent under Section 148 of the Income Tax Act, 1961 (for short “The Act, 1961”) seeking to re-open the assessment for the A.Y 2011-12, 2012-13 and 2013-14, on the ground that, the assessee had claimed excessive deductions under Section 80 IB(10) of the Act, without providing interest on capital and remunerations to the partners for the respective years under consideration, which had escaped assessment.

3. The brief facts giving rise to filing the present writ applications are as follows:

3.1 The writ applicant – My Home Developers is a partnership firm engaged in the activity of developing housing projects. The firm came into existence with effect from 15.06.2007 and partnership deed was executed among the partners on 27.06.2007 which contained a clause as to payment of interest on capital, but no remuneration was payable. Thereafter, due to change in the constitution in the partnership firm, another partnership deed was executed on 01.04.2008, which contained a clause as to payment of interest on capital, but no remuneration was payable at all. The said partnership deed was amended and it was mutually agreed upon that w.e.f 01.04.2009, no interest shall be payable to the partners on capital.

3.2 The case of the writ applicant for the assessment year 2010- 11 was selected for scrutiny assessment and assessment under Section 143 of the Act was framed vide order dated 20.03.2013, whereby, income of Rs.76,25,000/- disclosed by the writ applicant during the course of survey was stated as “income from other source” as against “Business Income” and accordingly, the claim for allowing deduction under Section 80IB (10) of the Act on such income was denied and the same was challenged in appeal before the Commissioner of Income Tax (Appeals), who vide order dated 28.08.2014 was pleased to dismiss the appeal. The order of CIT was challenged before the Income Tax Appellate Tribunal and the Tribunal vide order dated 07.08.2015 in appeal bearing Income Tax Appeal No.2966/Ahd/2014 hold that, the income of Rs.76,25,000/- disclosed during the survey was income from business and the writ applicant is eligible for deduction under Section 80 IB (10) of the Act on such income.

3.3 Thereafter, the impugned notices having been issued by the respondent on 26.03.2018 under Section 148 of the Act seeking to re-open the case of the writ applicant for the A.Y 2011-12, 2012-13 and 2013-14.

4. In the aforesaid facts, we may summarize the case in details of the respective year as under:

4.1 SCA No. 20821/2018 :-

The writ applicant filed its return of income for A.Y. 2011-12 on 30.09.2011 declaring total income of Rs.33,200/- after claiming deduction of Rs.7,60,385/- under Section 80 IB (10 ) of the Act. In response to the notice issued under Section 148 of the Act, the writ applicant filed its return of income for the year under consideration on 14.04.2018 and at the request of the writ applicant, reasons recorded have been furnished to the writ applicant which reads as under:

“3. On further verification of partnership deed executed on 23.01.2008, the clauses 6 & 7 provided payment of interest to partners @ 12% on capital and payment of remuneration to working partners as per eligibility u/s. 40 (b) of the I.T.Act

4. In the case of assessee, the remuneration should be payable for 12 months I..e from 01.04.2012 to 31.03.2013 which works out to Rs.1,05,29,578/- and interest on capital of Rs.12,63,549/- (on Rs.1,05,29,578/-).

5. As the assessee has claimed deduction u/s.80 IB (10) of the I.T.Act of Rs.7,60,385/- without providing interest on capital and remuner