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Income Tax Appellate Tribunal, “D” BENCH, MUMBAI
Before: SHRI SAKTIJIT DEY & SHRI N.K. PRADHAN
Date of Hearing – 04.07.2019 Date of Order – 12.07.2019 2 Reliance Enterprises O R D E R PER SAKTIJIT DEY. J.M.
Aforesaid appeal by the Revenue and cross objection by the assessee arise out of the order dated 10th October 2016, passed by the learned Commissioner of Income Tax (Appeals)–3, Thane, for the assessment year 2012–13.
./2017 Revenue’s Appeal
The grounds raised by the Revenue are on the common issue relating to allowance of assessee’s claim of deduction under section 80IB(10) of the Income Tax Act, 1961 (for short "the Act") in respect of housing project on pro–rata basis.
Brief facts are, the assessee is a partnership firm engaged in the business of builders and developers of real estate. For the assessment year under dispute, the assessee filed its return of income on 29th September 2012, declaring nil income after claiming deduction of ` 16,72,92,861, under section 80IB of the Act. While examining assessee’s claim of deduction under section 80IB of the Act in course of the assessment proceedings, the Assessing Officer called upon the assessee to file the details of the housing project in respect of which it has claimed deduction and also to furnish copies of the sale agreement
3 Reliance Enterprises entered with individual purchasers. After verifying the details and furnished by the assessee, the Assessing Officer found that the assessee had sold two flats bearing number 603 and 604 in Florantina Building on 18th April 2012, for sale consideration of ` 65 lakh. On perusing the registered sale deeds, the Assessing Officer found that the aforesaid flats were sold jointly to Shri Pragnesh Subhash Pandit and Subhash Janardhan Pandit. For further verification of the issue, the Assessing Officer issued summons under section 131 of the Act to the buyers of the aforesaid two flats and recorded statement from them. In the statement recorded, the buyers stated that they have purchased the two flats jointly. Referring to the provisions contained under section 80IB(10)(e) of the Act, the Assessing Officer observed that the assessee having allotted more than one residential unit to a single person, it is not eligible for deduction under section 80IB(10) of the Act. Accordingly, he called upon the assessee to explain why the deduction claimed under the said provisions should not be disallowed. Though, through elaborate written submissions filed before the Assessing Officer, the assessee objected to the proposed disallowance, however, the Assessing Officer rejecting the objection of the assessee disallowed assessee’s claim of deduction under section 80IB(10) of the Act on the ground that by selling more than one residential unit to a single person, the assessee has violated the conditions of section 4 Reliance Enterprises 80IB(10)(e) of the Act. Accordingly, he completed the assessment by determining the total income at ` 16,72,90,860. The assessee challenged the aforesaid disallowance before the first appellate authority.
After considering the submissions of the assessee in the context of facts and material on record as well as the ratio laid down in various judicial precedents cited before him, learned Commissioner (Appeals), though, agreed with the Assessing Officer that by selling Flats no.603 and 604, to the same persons, conditions of section 80IB(10)(e) of the act has been violated, however, he observed that since except the aforesaid two flats, conditions of section 80IB(10) of the Act have been fulfilled in respect of other flats of the housing project, assessee’s claim of deduction under section 80IB(10) of the Act has to be allowed on proportionate / pro–rata basis. Further, he observed, since the flats were sold on 12th April 2012 i.e., in the financial year relevant to the assessment year 2013–14, such pro–rata disallowance has to be made in the assessment year 2013–14 and assessee’s claim of deduction under section 80IB(10) of the Act in respect of the impugned assessment year would remain unaffected.
Shri Rajesh Kumar, the learned Departmental Representative submitted, after introduction of clause (e) and (f) to section 80IB(10)
5 Reliance Enterprises of the Act by Finance (No.2) Act, 2009 w.e.f. 1st April 2010, no deduction under section 80IB(10) of the Act would be available to the assessee if the conditions mentioned in the aforesaid clauses are not fulfilled. He submitted, once there is failure on the part of the assessee to fulfill any of the conditions mentioned in section 80IB(10) of the Act, the assessee would not at all be eligible to claim deduction under section 80IB(10) of the Act, therefore, there is no question of allowing assessee’s claim of deduction on pro–rata basis.
The learned Departmental Representative submitted, undisputedly, two of the flats in the building were sold to the same persons which is in contravention of section 80IB(10)(e) and (f) of the Act. Therefore, in the face of such contravention of the statutory provisions, assessee’s claim of deduction cannot be allowed. He submitted, learned Commissioner (Appeals) has not at all deliberated on the issue of violation of section 80IB(10)(e) and (f) of the Act. He submitted, once the assessee has violated any one of the condition of section 80IB(10) of the Act, it cannot be allowed deduction under the said provision irrespective of the assessment year in which such violation has taken place. In support of his contention, the learned Departmental Representative relied upon the decision of the Tribunal, Mumbai Bench, in ITO v/s Everest Home Construction India Pvt. Ltd., [2012] 26 taxmann.com 246 (Mum.).
6 Reliance Enterprises
Shri K. Gopal, the learned Counsel for the assessee submitted, since the assessee has sold the flats to two individuals jointly, the provision contained under section 80IB(10)(e) of the Act would not be applicable, as the said provision applies to residential units sold to persons other than individuals. Therefore, the observations made by the Assessing Officer that the assessee has violated the condition of section 80IB(10)(e) of the Act is totally wrong. Further, he submitted, the provision of sub–section 80IB(10)(f) of the Act is also not violated as the flats were sold in joint name of father and son for convenience since, the son is residing abroad and cannot travel to India time and again for completing various formalities relating to purchase of Flats. The learned Authorised Representative submitted, even in the worst case, if at all the assessee has violated the provision of section 80IB(10)(f) of the Act in respect of only two flats in the entire housing project, assessee’s claim of deduction in respect of other residential units in the housing project cannot be disallowed as it is conformity with all the conditions of section 80IB(10). Thus, he submitted, learned Commissioner (Appeals) was justified in directing the Assessing Officer to allow deduction under section 80IB(10) on pro– rata basis in the assessment year 2013–14. The learned Counsel submitted, identical issue was decided in favour of the assessee in its own case in assessment years 2013–14 and 2014–15. In support of 7 Reliance Enterprises such submission, he drew our attention to the observations of the Co– ordinate Bench in order dated 12th February 2019, passed in and 4149/Mum./2019. Thus, he submitted, the issue stands concluded in favour of the assessee by the aforesaid order of the Tribunal in assessee’s own case. Further, to impress upon the fact that deduction under section 80IB(10) of the Act can be allowed on pro– rata basis, he relied upon the decision of the Tribunal in Om Swamy Smaran Developers Pvt. Ltd. v/s ITO, [2018] 90 taxmann.com 267 (Mum.). Further, the learned Authorised Representative submitted, the decision of the Tribunal in Everest Home Construction India Pvt. Ltd. (supra) cited by the learned Departmental Representative is no more good law, as the Hon'ble Jurisdictional High Court, while deciding assessee’s appeal in ITA no.583/2013, dated 1st October 2014, has allowed assessee’s claim of deduction nu/s 80IB(10) of the Act fully. Thus, he submitted, there is no valid reason to interfere with the decision of the learned Commissioner (Appeals).
In rejoinder, the learned Departmental Representative submitted, while deciding assessee’s appeals in preceding assessment years, the Tribunal has not taken note of its own decision in Everest Home Construction India Pvt. Ltd. (supra).
We have considered rival submissions and perused the material on record. We have also applied our mind to the decisions relied upon.
8 Reliance Enterprises Undisputedly, the assessee has claimed deduction under section 80IB(10) of the Act in respect of a housing project developed by it. The Assessing Officer has disallowed assessee’s claim of deduction under section 80IB(10) of the Act alleging violation of section 80IB(10)(e) of the Act, as according to him, the assessee has sold two residential units to the same person. Learned Commissioner (Appeals), though, has agreed with the Assessing Officer that the condition of section 80IB(10) of the Act, has been violated by the assessee by selling two flats to the same person, however, he has held that disallowance has to be made on pro–rata basis. At the outset, we must observe, the conditions of section 80IB(10)(e) of the Act is not applicable to the assessee, since, the said provision does not apply to individuals. Therefore, to that extent, the Assessing Officer has wrongly applied the provision to make the disallowance. However, it is a fact that the provision of section 80IB(10)(f) is applicable to the assessee. Therefore, the issue which needs to be decided is, whether for violation of any of the conditions imposed under section 80IB(10) of the Act in respect of some of the residential units, assessee’s claim of deduction has to be totally disallowed or the disallowance has to be restricted on pro–rata basis to the residential units which violate the conditions. It is a fact on record that on the very same reasoning, the Assessing Officer had disallowed assessee’s claim of deduction under 9 Reliance Enterprises section 80IB(10) of the Act in assessment years 2013–14 and 2014– 15. However, learned Commissioner (Appeals) allowed assessee’s claim. While deciding Revenues appeals on the issue, the Tribunal in & 4149/Mum./2017, dated 12th February 2019, has allowed assessee’s claim of deduction on pro–rata basis. There is no dispute that the facts on the basis of which the Assessing Officer has made similar disallowance in the impugned assessment year are identical. Therefore, adhering to the norms of judicial discipline, we have to follow the decision of the Tribunal in assessee’s own case as referred to above. That being the case, for this reason alone, the decision of learned Commissioner (Appeals) has to be upheld. However, at this stage, we propose to deal with the contention of the learned Departmental Representative that the decision of the Co– ordinate Bench in assessee’s own case should not be followed as it has not taken note of another decision of the Co–ordinate Bench rendered in Everest Home Construction India Pvt. Ltd. (supra). On a perusal of the decision cited by the learned Departmental Representative, it is to be noted that in the course of hearing of that appeal, an alternative plea was taken by the assessee that claim of deduction should be allowed on proportionate / pro–rata basis. However, the Bench rejected such claim of the assessee on the ground that if the conditions specified in the provision is violated, no deduction can at all
10 Reliance Enterprises to be allowed. It is relevant to observe, the aforesaid decision of the Tribunal was contested by the assessee before the Hon'ble Jurisdictional High Court and while deciding the appeal, the Hon'ble Jurisdictional High Court in dated 1st October 2014, has allowed assessee’s claim of deduction under section 80IB(10) of the Act on the ground that the housing project having been approved prior to the provisions of section 80IB(10) of the Act was amended from 1st April 2005, the amended provisions should not apply. Thus, as could be seen, the decision of the Tribunal in Everest Home Construction India Pvt. Ltd. (supra) ultimately was reversed by the Hon'ble Jurisdictional High Court. In fact, in case of Om Swamy Smaran Developers Pvt. Ltd. (supra), the Co–ordinate Bench following the decision of the Hon'ble Jurisdictional High Court in CIT v/s Brahma Associates, [2011] 833 ITR 289 (Bom.) has held that deduction claimed under section 80IB(10) of the Act can be disallowed on pro– rata basis by restricting it to the residential units which have violated the condition of section 80IB(10) of the Act. In any case of the matter, in assessee’s own case for the assessment year 2013–14 and 2014– 15, the Tribunal has allowed assessee’s claim of deduction on pro–rata basis under identical facts and circumstances. In view of the aforesaid, we are inclined to uphold the decision of the learned Commissioner (Appeals) on the issue. Moreover, as rightly held by the learned
11 Reliance Enterprises Commissioner (Appeals), the violation having been made in financial year 2012–13, the pro–rata disallowance has to be made in A.Y. 2013–14 and not in the impugned assessment year. Grounds raised are dismissed.
In the result, Revenue’s appeal is dismissed.
C.O. no.287/Mum./2018 – By Assessee Arising out of Revenue’s Appeal in ITA no.337/Mum./2017
There is a delay in 153 days. At the outset, the learned Counsel for the assessee submitted that the assessee has instructed him not to contest the grounds raised in the cross objection. In view of the aforesaid submission of the learned Authorised Representative, we dismiss the grounds raised in the cross objection as not pressed.
In the result, cross objection is dismissed.
To sum up, Revenue’s appeal and assessee’s cross objection are dismissed. Order pronounced in the open Court on 12.07.2019