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Income Tax Appellate Tribunal, “D” BENCH, MUMBAI
IN THE INCOME TAX APPELLATE TRIBUNAL “D” BENCH, MUMBAI BEFORE SRI MAHAVIR SINGH, JM AND SRI RAJESH KUMAR, AM ITA No.2954/Mum/2012 (A.Y:2007-08)
ITA No.2955/Mum/2012 (A.Y:2008-09)
Rajesh Builder Commissioner of Income Tax, 1/1 Ghanshyam Baug, Cama, Circle 11 Aayakar Bhavan, Lane, Hansotia RD, Ghatkopar M.K. Road (W) Mumbai-400 020 Vs. Mumbai-400 086 PAN No. AAEFR6687G Appellant .. Respondent ITA No.6131/Mum/2012 (A.Y:2005-06)
ITA No.3454/Mum/2012 (A.Y:2004-05) Commissioner of Income Tax, Rajesh Builder Circle 11 Aayakar Bhavan, 1/1 Ghanshyam Baug, Cama, M.K. Road Lane, Hansotia RD, Ghatkopar Vs. Mumbai-400 020 (W) Mumbai-400 086 PAN No. AAEFR6687G
Assessee by .. Shri, AR Revenue by .. Shri, DR Date of hearing .. 03-03-2017 Date of pronouncement .. 31-05-2017 O R D E R PER MAHAVIR SINGH, JM:
These four cross appeals by the assessee and revenue are arising out of the different orders of CIT(A)-22 & CIT(A)-33, Mumbai, in appeal No. CIT(A)- 33/IT-489/2010-11, CIT(A)-33/IT/102/11-12 & CIT(A)-33/IT/16/10-11 dated 30-03-2012, 23-07-2012 & 15-03-2012. The Assessments were framed by DCIT
ITA No.2954 & 2955, 6131 & 3454/Mum/2012 Rajesh Builder s (AYs:04-05,05-06,07-08,08-09)
22(2), Mumbai for the A.Ys. 2004-05, 2005-06, 2007-08 and 2008-09 vide order dated 29-12-2009, 30-12-2010, 18-12-2007 & 19-03-2010 u/s 143(3) read with section 254 of the Income Tax Act, 1961 (hereinafter ‘the Act’). The penalty was levied by DCIT 22(2), Mumbai under section 271(1)(c) of the Act vide letter dated 18-06-2011.
The first issue in ITA No. 3454/Mum/2012 for the AY 2004-05 of Revenue’s appeal is against the order of CIT(A) in holding that the surplus sale of land taxable as capital gains. For this Revenue has raised following three grounds: -
“1. On the facts and circumstances of the case, and in law, the Ld. CIT(A) erred in holding that the surplus on sale of land is taxable as capital gain in the assessee's hands, despite the fact that the assessee business consists of purchase and sale of land/buildings and that it is reasonable to infer that any transaction in a commodity which is in the normal line of business of the assessee constitutes a business transaction unless the contrary is proved by the assessee.
On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred inholding that the surplus on sale of land is taxable as capital gain in the assessee's hands, though the assessee has failed to discharge the onus cat on him by law to establish that the transaction in land which falls within the purview of the regular business of the assessee, was unrelated to the business of the assessee and that the land was held only as investment and not as stock-in-trade.
On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in holding that the surplus on sale of land is taxable as capital gain in the assessee’s hands, inter alia relying on the decision of the
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Hon'ble ITAT in the case of M/s. Shanti Builders (ITA No.5262/Mum/07 dated 26/01/2009), despite the fact that the decision in the case of M/S Shanti Builders is yet to attain finality as the revenue is in appeal before the Jurisdictional High Court.”
At the outset, it is noticed that the Tribunal in assessee’s own case for the very AY 2004-05 in ITA No.5262/Mum/2007 vide order dated 26-11-2009 has already allowed the claim of the assessee vide para 8 and 8.2 as under: -
“8 We have also seen the copy of the order of the Tribunal in the case of Laxmi Develoment Corporation (supra) relied upon by the ld. DR and found that the facts are distinguishable. In this case the assessee being partnership firm was engaged in purchase and sale of lands. In that case, the land was shown in opening stock and also in closing stock. In that case, the assessee had purchased the land admeasuring 40,375 sq.ft in 1981 and has been shown as stock in trade; part of the plot was sold in AY 1999-00; part of the plot was sold in AY 2001- 02 and part of the plot was sold in AY 2005-06. Every year the closing stock was shown after reducing the value of part of plot which was sold by the assessee. These facts have been recorded in para 3 at page 2 of the order of the Tribunal. On these facts, the Tribunal has held that ‘since the assessee was engaged in purchase of plots and sale of plots; therefore, the sale of plot is held on account of business activity.’ However, in the present case no such facts are available. In the present case, the plot was shown in the fixed asset and on one go the plot has sold by the assessee on the basis of ‘as is where is condition’.
8.2 The ratios of the decision in the case of Shanti Builders and in the case of Gas Property Developers discussed above are applicable on the facts of the present
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case. We further noted that the profit arising to the assessee is on account of appreciation of value of the plot and not on account of any construction activity. Therefore, in view of these facts and circumstances, we hold that the profit arising out of sale consideration on account of sale of plot is liable for capital gain and not under the business head. Accordingly, the ground of the assessee is allowed.”
We also find that the CIT(A) has retreated the same position as the AO while giving appeal effect to the ITAT, only noted that the issue has been appealed by department before the Hon’ble Bombay High Court under section 260A of the Act. This effect is deliberated by CIT(A) in his order vide Para 3.1 to 3.3 which reads as under: -
“3.1 In this case the Hon'ble ITAT, Mumbai's order in this very assessment year is available wherein Hon'ble authority has decided that the income has to be assessed as capital gain despite the fact that same Hon'ble authority has decided in subsequent A.Yrs the income from sale of flat as business income. The relevant portion of the decision given in ITA No.5262/Mum/07 are reproduced from the order as under:
'8.3 In respect to the remaining grounds, and the additional grounds filed by the assessee, the matter is liable to be set aside to the file of the AO because of the reason that the AO has not granted exemption ufs.54EC for the reason that the sale consideration was treated under the head 'business income'. Since we have allowed the issue that the sale consideration is liable for capital gain; therefore, allowability of exemption is to be examined as per law. Accordingly, we restore this issue to the file of the AO to"ess a Page 4 of 33
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fresh order after allowing reasonability opportunity of being heard to 1he assessee."
3.2 As it can be seen that A.O. has thus only taken a technical objection for not treating the income under the head business income while stating that the decision given by Hon'ble ITAT Pune in the case of Shanti Builders and relied upon by Hon'ble ITAT Mumbai while deciding the issue in the case of appellant in the instant appeal is not final as the CIT Pune has further made an appeal u/s.260A before Hon'ble High Court, Mumbai. The A.O. accordingly assessed the income under the head 'Business Income'.
3.3 After going through the same, I am of the view that decision given by higher juridical authority that too in the case of appellant for the same A.Y. i.e. 2004-05 cannot be ignored and hence I am in agreement with the appellant that income has to be assessed as 'Capital Gains' following the Hon'ble ITAT's decision in the case of appellant for this very assessment year in No. ITA/5262/Mum/07. Accordingly, the ground No.1 is allowed.”
Further, on query from the Bench the learned DR could not answer what is the purpose of appealing against the order of CIT(A). As the matter has already been before Hon’ble High Court against the original order of ITAT in ITA No. 5262/Mum/2007 dated 26-11-2009, hence, we find no infirmity in the order of CIT(A) and this issue of Revenue’s appeal is dismissed.
The next issue in ITA No. 3454/Mum/12 for the AY 2004-05 of Revenue’s appeal is as regards to the order of CIT(A) allowing the claim of exemption under section 54EC of the Act. For this Revenue as raised following ground No.4: -
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“4. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in holding that the assessee is entitled to claim exemption u/s 54EC of the IT Act,1961 disregarding the finding of the Assessing Officer that the surplus on sale of land is taxable as business income and not a capital gain, thereby rendering the assessee ineligible to claim the exemption u/s 54EC of the IT Act,1961.”
The Revenue has also raised an amended ground on this issue which reads as under: -
“1. On The facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in giving the finding that investment in installments have been made within six months from the date of receipt of installments of sale proceeds of capital assets ignoring the fact that transfer of capital asset took place on 07.05.2003 (vide sale deed df. 07.052003) being land sold to MIS. Brahma Builders for a consideration of 13.90 crore, whereas investment in NABARD Bonds was not made within six months from the date of transfer of capital asset i.e. on 07.05.2003.
On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in directing the AO to verify the authenticity of investment claimed to have been made in the NABARD Bond Inspite of the fact that investment was mode beyond six months from the date of transfer of asset dtd. 07.05.2003, as receipt of sale consideration in installments is not material for eligible exemption against capital gain and the date of transfer is relevant as provided u/s. 54EC of I.T. Act, 1961.
On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in directing The AC to verify the authenticity of investment claimed to have been Page 6 of 33
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made in the NABARD Bond, Inspite of the fact that investments 19-111, not made in stipulated time u/s. 54EC of full amount.”
We have heard the rival contentions and gone through the facts and circumstances of the case, we find from the order of CIT(A) that ITAT for the very assessment year in ITA No. 5262/Mum/2007 order dated 26-11-2009 has already held that income has to be assessed as capital gain and not business income from sale of plots and the sale proceeds are received by assessee in instalments which are narrated in Para 4.2 of CIT(A) order which reads as under: -
“4.2. During the appellate proceedings the appellant has furnished details of investment made in the bonds on different. The appellant has also given the date of actual receipt of the fund arising from sale of property on which capital gains has arisen. I find that as per the details given the actual amount received is as below:
Capital Gains Receipt NABARD Investments Date of receipt Amt. Date of Amount investment 07.05.2003 2,51,00,000 13.06.2003 2,00,00,000 21.05.203 50,00,000 22.10.2003 1,00,00,000 26.05.2003 55,69,690 01.06.2004 2,20,00,000 22.04.2004 75,00,000 01.07.2004 1,25,00,000 22.04.2004 50,00,000 21.07.2004 1,07,30,000 22.04.2004 1,07,25,277 24.01.2005 2,32,30,000 22.06.2004 50,00,000 02.08.2005 2,37,00,000 22.06.2004 75,00,000 01.07.204 50,00,000 12.07.2004 57,25,277 11.02.2005 2,32,25,277 Total 105345521 12,21,60,000 9. We further find that the CIT(A) has allowed the claim of the assessee in Para 4.4 by observing as under: -
“4.4. I have gone through the same. The appellant has given the date of actual receipt of the fund and
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corresponding date of investment which are found to be much more than the total amount received Rs.10,53,45,521/- being Rs12,21,60,000/- invested in NABARD bonds. The appellant has also stated that as the investment been within six months from the date of receipt of sales proceeds decision given in the case of Chanalal Sirsan vs. ITO, ITAT Calcutta is also applicable to him and hence exemption should be granted in toto as per the eligibility. I have gone through the submissions and I am of the view that the matter is covered in favour of the appellant on account of the fact that vestments in installments have been made within six months from the date of receipt of installments of sales proceeds of capital asset in the case of appellant. the upper limit of Rs.50,00,000/- being applicable for the A.Y. 2007-08 only, the appellant is entitled to exemption. In view of this the A.O. is directed verify the authenticity of these investments claimed to have been made in the bonds and according T1Tièxemption u/s.54EC of the Act.”
From the above facts it is clear that during the year under consideration the assessee has invested in NABARD Bonds after receiving the installments of Rs. 2,51,00,000/- on 07-05-2003 and Rs. 50,00,000/- on 21-05-2003 made investment of Rs. 2,00,00,000/- on 13-06-2003 and 1,00,00,000/- on 22-10-2003.
From the above, we find that the investment in NABARD Bonds is made and when payment is received by assessee. This issue is covered by the Tribunals decision in the case of Chanchal Kumar Sircar Vs. Income Tax (2012) 50 SOT 0289 wherein considering the decision of Hon’ble Andhra Pradesh High Court in the case of S Gopal Reddy Vs. CIT (1990) 181 ITR 378 (AP); CIT vs. Janardhan Dass (late through legal heir Shyam Sunder) (2008) 299 ITR 210 (All); Darapaneni Chenna Krishnayya (HUF) Vs. CIT (2007) 291 ITR 98 (A) and wherein it is held that the period of six months for making deposit u/s. 54EC Page 8 of 33
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of the Act should be reckoned from the dates of actual receipt of the consideration, because in the present case the assessee has received part payment as on the date of execution of agreement and handing over of possession of the property and received part payment after six months at the time of registration of sale deed or even after that in few of instances. If the period is reckoned from the date of agreement and receipt of part payment at the first instance, then it would lead to an impossible situation by asking assessee to invest money in specified asset before actual receipt of the same. Admittedly assessee received part payments after execution of agreement to sale and handing over of possession thereby completing the transaction in terms of section 53A of Transfer of Property Act but invested in specified bonds i.e. NABARD bonds within one month of the receipt of sale consideration being part payment. Hence, we are of the considered view that the assessee is eligible for exemption u/s. 54EC of the Act on part payment received after completion of transaction on 02.07.2004. In view of the above, we are of the view that the CIT(A) has rightly allow the claim of exemption of assessee and we confirm the order of CIT(A). This appeal of revenue is dismissed.
The only issue in ITA No. 6131/M/2012 of Revenue’s appeal for the AY 2005-06 is against the order of CIT(A) deleting the penalty levied by AO under section 271(1)(c) of the Act for furnishing of inaccurate particulars of income in respect of on account of change of head of income from capital gains to business income and also disallowance of bogus expenses to the extent of 75% of estimate basis. For this Revenue has raised following 4 grounds: -
“1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deleting the penalty u/s 271(1)(c) of the Act amounting to Rs.2,46,51,141/- without appreciating the fact that the assessee has submitted inaccurate particulars of income.
On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in holding that the claim of the assessee of long term capital gain and deduction u/s 54EC of the Page 9 of 33
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Act instead of business income on the sale of land is merely a change of head and hence no concealment of income.
On the facts and circumstances of the case and in law, the ld. CIT(A) erred in holding that the confirmation of disallowance of bogus expenses to an extent of 75% of the claim of the assessee is an estimate without appreciating the fact that the disallowance is based on lack of evidence and bogus claim of expenses.
On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in holding that bogus claim of expenses without supporting evidences is not amounting to giving mac rate particulars of income.”
Briefly stated facts are that the AO completed the assessment under section 143(3) of the act determining the total income at Rs. 7,25,25,000/- after making following additions: -
(i) Business income on account of sale of land (development 3,19,97,000/- rights) to M/s. Satyam Builders (ii) Business income on account of sale of land (development 3,07,81,300/- rights) to M/s. Brahma Builders (iii) Amount received in pursuance of Court’s order 49,03,620/- (iv) Out of unproved/ unsubstantiated purchase expenses 41,28,262/- 14. The CIT(A) vide her order dated 09-03-2009 in appeal No. CIT(A)/ITAT/132/2007-08 granted the relief on account of additions made on account of business income on account of sales of land (development rights) to M/s Saytam Builders treating the same as capital gains and another addition of business income on account of sale of land (development rights) to M/s Brahma Builders treating the assessee business income as long term capital gains declared by the assessee and also deleting the amount received in pursuance of court orders. The CIT(A) restricted the unproved / unsubstantiated purchase at 50% at Rs. 20,64,131/- as against the addition made by AO at Rs. 41,28,262/-. The department carried the matter to Tribunal and Tribunal in ITA No. 3980/Mum/2009 order dated 13-10-2010 uphold the order of the AO relating to Page 10 of 33
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transfer of land (development rights) by the assessee to M/s Satyam Builders and to M/s Brahma Builders treating the same as business income as against the claim of the assessee as long term capital gain. Tribunal partially restore the addition on account of unproved/ unsubstantiated the purchase at Rs. 30,96,176/- being 75% of the total addition made by the AO at Rs. 41,28,262/- on estimated basis. After the receipt of the order of the Tribunal, the AO started penalty proceedings by issuing show cause notices under section 275 (1A) read with section 271(1)(c) of the Act for furnishing of inaccurate particulars of income in respect to above income confirmed by Tribunal.
In regard to the subsistence of disallowance of disallowance at 25% of the Tribunal, the AO levied the penalty by observing in Para 7.1 which reads as under: -
“7.1 25% of the disallowance on account of bogus purchases: -
During the assessment proceedings, despite being specifically asked, the assessee could not produce the bills for purchases to the tune of Rs.41,28,262/-. Moreover, none of the bills pertaining to the above amount were produced/ submitted even before the Ld. ClT(A) and Hon'ble ITAT. During the course of appellate proceedings, both the LcI. CIT(A) as well as Hon'ble [TAT has confirmed that, though the assessee did not have bills for the above amount, the existence of expenses, keeping in mind the nature of business, could not be ruled out. Accordingly, the Hon'ble ITAT enhanced the disallowance out of the above amount of Rs.41,28,262/- from 50% {upheld by the Ld. CIT(A)} to 75%, thereby upholding a further addition of Rs. 10,32,065/ - on this account. As discussed elaborately in the assessment order and in the appellate orders by the Ld. CIT(A) and Hon'ble ITAT, the assessee did not have any bill/vouchers etc. in support of its claim of above Page 11 of 33
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expenses. During the course of penalty proceedings, the assessee has relied upon certain judgments as mentioned in para 2 of its submission. It is seen that most of these judgments relate to additions made on estimated and adhoc basis without any sound basis. in the present case, it has been proved beyond doubt that the assessee did not have bills or collateral confirmations regarding the impugned purchases.”
Similarly, in respect to business income computed by the AO in pursuance to Tribunals order in respect to sale of land (development rights) to M/s Satyam Builders amounting to Rs. 3,19,97,000/-, to M/s Brahma Builders Rs. 3,7,81,300/-, an amount received as compensation from Mr. Waghere i.e. the surplus of Rs. 49,3,620/- as business income. The AO levied penalty on the basis of the Tribunal order by observing in Para 8 and 8.1 as under: -
“8. Thus, it is evident from the above discussions and the rulings of the Hon'ble ITAT on the issue of the consideration arising out of the sale of land (transfer of development right) to M/s. Shyam Builders and Brahma Builders as also the compensation received by the assessee from Mr. Waghere is essentially business income. The assessee, by excluding the income arising out of the above transactions from business income, has concealed its income chargeable to tax. The instances of concealment have been discussed in detail by the AO in the assessment order and by the Hon'ble ITAT in its above order.
8.1 The assessee had in its return of income made incorrect claim regarding the nature of income as business income was claimed to be long term capital gain which was claimed as exempt in terms of section 54EC of the Act. This Act of submitting incorrect claim with an intent of not paying tax thereon amounts to furnishing of Page 12 of 33
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inaccurate particulars within the meaning of section 271(l)(c) of the Act. In the case of Dilip M. Shroff Vs. Jt. Commissioner of Income Tax, Mumbai and Anr (2007 (6) SCC 3291, the Court ultimately went on to hold that the element of mens-rea was essential for drawing the conclusion that the assessee had furnished inaccurate particulars of its income chargeable to tax. Though the Hon'ble Supreme Court has, in a later judgement in the case of M/s. Dharmendra Textiles reversed the above ruling by holding that mens-rea is not a prerequisite for levy of penalty, the concealment penalty u/s.271(1)(c) of the Act for furnishing of inaccurate particulars in respect of income chargeable to tax, in this case is leviable as the assessee has not only furnished inaccurate particulars, but has done so with an intent of avoiding tax.”
Aggrieved assessee preferred the appeal before CIT(A). The CIT(A) deleted the penalty after considering the submissions of the assessee and penalty order by observing in Para 3.1 and 3.2 as under: -
“3.1 A reading of the penalty order thus makes it clear that for levying of penalty, the A.O has taken into account firstly 25% of disallowance of bogus purchases and then treating the Long Term Capital Gain declared by the appellant as business income and finally the compensation received of Rs.49,03,620/- claimed as capital receipt as business income. All these additions have been consequent to the appeal effect of the second appellate\ order passed by the Hon'ble ITAT, Mumbai. It is thus clear that the A.O while giving appeal effect drew the inference that by claiming income from other head of income which was decided by Hon'ble ITAT, the appellants have furnished inaccurate particulars. As regards enhancement of disallowance of bogus purchase. the A.O opined that same is furnishing of inaccurate Page 13 of 33
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particulars. In fact for the bogus purchases, the appellant have not furnished the bills and hence 759", of the amount was disallowed as bogus purchases on estimated basis by Hon'ble ITAT. Further, treatment of capital gain declared by the appellant; as business income is again a matter of opinion on the facts.
3.2. In view of this, I am convinced that it is neither a case of concealment of income nor filing of inaccurate particulars. Taking a different opinion or interpreting the details do not amount to furnishing of inaccurate particulars and/or concealment of income. It was so decided by Hon'ble Calcutta High Court in the case of Burmah-Shell Oil Storage and Distribution Co. of India Ltd Vs. 110 (112 ITR 592). Then the Honbie Bombay High Court in the case of CIT Vs. Shivial Desai & Sons (1978) (114 ITR 388) and again in the case of CIT Vs. Ajaib Singh & Co. (170 CTR 489), the Hon'ble Punjab & Haryana High Court decided that merely because there are certain additions / disallowances same will not attract penalty. On the facts, the case of the appellant is covered by the decision given in Reliance Petro Chemicals by Hon'ble Supreme Court where in it was decided by Hon’ble Court that”
Aggrieved now, Revenue is in second appeal before Tribunal.
We have heard the rival contentions and gone through the facts and circumstances of the case. At the outset, the learned Counsel for the assessee, relied on the decision of Hon’ble Bombay High Court in assessee’s own case for AY 2004-05 in Income Tax Appeal No. 5998 of 2010 dated 2503-2013, wherein the Hon’ble High Court on similar issue where change of head of income i.e. sale of plot of land chargeable to tax under the head of capital gains or under the head of business income, the penalty deleted by Tribunal was confirmed by Hon'ble High Court by observing in Para 2 to 4 as under: - Page 14 of 33
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“2 By the impugned order, the Tribunal upheld the order of the Commissioner of Income Tax (A) holding that no penalty under Section 271(1)(c) of the Income Tax Act, 1961 (‘Act for short) is leviable upon the respondent –assessee. The issue before the Tribunal was whether the profits arising on sale of plot of land is chargeable to tax under the head capital gains or under the head business income. The impugned order deleted the penalty as in quantum proceedings, the respondent –assessee had succeeded and there was no quantum addition. Besides upholding the finding of the Commissioner of Income Tax (A) that there is no dispute the facts with regard to sale and purchase of land was not concealed by the respondent – assessee and in any event in the fact of the case two view are possible, thus no penalty is possible.
The submission of the Revenue is that as this court has entertained its appeal from the order of the Tribunal in quantum proceedings, the appeal from the impugned order of the Tribunal with regard to penalty must also be entertained. No submission independent of the above submissions is made for admission of this appeal.
It is well settled that the penalty proceedings are independent and separate from quantum proceedings. Therefore, mere rejection of a claim in quantum proceedings would not ipso facto lead to levy of penalty under section 271(1)(c) of the Act. For imposition of penalty, the ingredients of Section 271(1)(c) of the Act must be satisfied. In this case, it is not the submission of the Revenue that the penalty is imposable as there has been concealment of income or furnishing of inaccurate particulars. At the very highest, it can only be a case of a claim of being taxed under a particular head of income being not accepted. The supreme Court in the matter of Page 15 of 33
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Commission of Income Tax vs. Reliance Petro products (P) Ltd. reported in 322 ITR 158 has held that mere rejection of a claim would not lead to imposition of penalty. In the above circumstances, we see no reason to entertain the proposed question of law.”
That means the issue in respect of the items of sale of land (development rights) to M/s Saytam Builders & sale of land (development rights) of M/s Brahma builders and an amount received as compensation from M/s Wagmare i.e. the surplus of Rs. 49,03,620/- is covered in favour of assessee by Hon’ble Bombay High Court decision in assessee’s own case for 2004-05. Respectfully following the same, we confirm the order CIT(A) deleting the penalty.
In respect to the business expenses disallowance made by AO, which was deleted by reducing to 50% by CIT(A) subsequently enhanced to 75% by Tribunal has confirmed by observing in Para 6 as under: -
“6. We have considered the rival submissions made by both the sides, perused the orders of the Assessing Officer and the CIT(A) and the paper book filed on behalf of the assessee. There is no dispute to the fact that the assessee during the course of assessment proceedings failed to produce the details of purchases of construction materials to the extent of `.41,28,262,/-. Still, we find, the Assessing Officer in his remand report has mentioned that opportunity to cross verify may be provided to the assessee before accepting the genuineness of the claim. We find, the CIT(A) has given a finding that no further details were produced before him to establish the genuineness of such purchases which is quantified by the Assessing Officer at `.41,28,282/- still we find the CIT(A) restricted such disallowance to 50% of the addition on the ground that profit cannot be earned without incurring the expenditure. We do not find any sound reasoning given by the CIT(A). It is the settled proposition of law Page 16 of 33
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that for claiming any expenditure as genuine, the onus is always on the assessee to produce evidence to the satisfaction of the Assessing Officer that the expenditure is wholly and exclusive for the purposes of the business. In the instant case, we find, the assessee has failed to discharge the onus cast on it. Merely because the payments are made by account payee cheque, the same, in our opinion, cannot be accepted as genuine business expenditure in absence of supporting details to substantiate the genuineness of such expenditure. In the instant case, although it was stated by the Assessing Officer that cross verification may be provided before allowing the claim as genuine, we find the CIT(A) has not directed the assessee for such cross verification. We find the assessee has already expressed its inability to produce the missing bills/vouchers on the ground that the same are misplaced/not available. Under these circumstances, remanding the matter back to the file of the Assessing Officer also will not serve any purpose. Considering the totality of the facts of the case and considering the fact that relief of 50% granted by the CIT(A) appears on the higher size, restriction of disallowance to 75% as against 50% by the CIT(A), in our opinion, will be justified. The ground raised by the Revenue is accordingly partly allowed.”
From the above order of Tribunal confirming the disallowance of bogus purchases at 75%, we find that the Tribunal has just estimated and AO has simply levied the penalty on the basis of confirmation of Tribunal order. We are of the view that mere on confirmation of disallowance of expenses and that also on estimate basis, the penalty for concealment of income u/s 271(1)(c) of the Act cannot be levied and hence, we confirm the order of CIT(A) deleting the penalty. This appeal of revenue is dismissed.
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The only issue in ITA No. 2954/Mum/2012 for the AY 2007-08 in assessee’s appeal is against the order of CIT-22, Mumbai revising the assessment under section 263 of the Act on account of sale of land as business income as against the assessee’s claim accepted by AO as income chargeable as capital gains. For this assessee has raised following three grounds: -
“1. The order of commissioner of Income Tax-22, passed U/s263 being bad in law the same should be quashed.
The Commissioner of Income Tax -22, Mumbai has grossly erred in selling aside the order of the AO for the AN 2007-08 to decide the chargeability of entire Gain on sale of land as Business income as against Assesse& s claim as accepted by AO of Income partly chargeable as capital gains and partly as business income.
The Commissioner of Income Tax-22, has erred in not appreciating the fact that the AO had applied his mind on the subject matter and had acted in consonance with one view permissible and hence the order cannot be branded as erroneous and as such provisions of section 263 should not have been invoked.”
Briefly stated facts for that the relevant AY 2007-08 original assessment was framed under section 143(3) of the Act vide order dated 29-12-2009. The AO after considering the development agreement entered with Kubix Realities Pvt. Ltd. dated 27-04-2006 considered that the substantial sale consideration falls in this AY 2007-08 amounting to Rs. 21,08,74,860/-. The AO after going through the development agreement computed the long term capital gain as Rs.9,09,29,507/- and noted that the assessee has received much more than the amount of capital gain or even the cost of acquisition of Rs. 10,04,20,000/-. Accordingly, he worked out long term capital gain at Rs. 9,09,29,507/-. Subsequently, the CIT-22 Navi Mumbai required the assessee by issuing show cause notice under section 263 of the Act as to why the long term capital gain Page 18 of 33
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assessed by assessee at Rs. 9,09,29,507/- be assessed as business income. According to CIT, the assessment order framed under section 143(3) of the Act dated 29-12-2009 assessing the long term capital gain on development rights of the land is prejudicial to the interest of the Revenue so far as erroneous also. The CIT also noted that although ITAT order in assessee’s own case for AY 2004-05 was in favour of assessee but Revenue has preferred the appeal against the same before Hon’ble Bombay High Court and Revenue has not accepted the ITAT’s order for AY 2004-05. For this CIT observed in Para 6 as under: -
“6. The above contention of the assessee cannot be accepted. Though the order u/s. 143(3) was passed by the Assessing Officer, as is pointed out in the above reply, in keeping with the order of the Hon'ble ITAT for A.Y. 2004- 05 which was in favour of the assessee was available with the Assessing Officer is nothing but mis-construction of facts. Even though the Hon'ble ITATs order for A.Y. 2004-05 was in favour of the but the Assessing Officer has preferred an appeal to the Hon'ble Bombay High Court and thus Hon'ble ITAT order for A.Y. 2004-05 was not accepted by the Assessing Officer. The Assessing Officer on the one hand has given effect to the Hon'ble ITAT order for A.Y. 2004-05 in the assessment order for A.Y. 2007-08 and on the other hand has not accepted the findings of the Hon’ble ITAT for A.Y. 2004-05 by preferring the appeal to the Hon'ble Bombay High Court. Moreover, for A.Y. 2005-06, the Hon'ble ITAT has given a finding in the assessee's own case which is in favour of the Department. This is the sole reason why the assessment order passed u/s. 143(3) for A.Y. 2007-08 is prejudicial to the interest of Revenue.”
Accordingly, he held that the assessment order framed by the AO is erroneous as well as prejudicial to the interest of the Revenue and directed the AO to reframe the assessment afresh after proper enquiry and opportunity to the
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assessee. Aggrieved, now assessee is in appeal against the revision order passed by CIT-22 Navi Mumbai under section 263 of the Act.
Before us, the assessee contended that the Tribunal in assessee’s own case for AY 2004-05 in ITA No. 5262/Mum/2007 vide order dated 26-11-2009 has considered exactly identical issues and held that sale of plot is liable for capital gains. The relevant finding of Tribunal in Para 8 and 8.2 read as under: -
“8 We have also seen the copy of the order of the Tribunal in the case of Laxmi Develoment Corporation (supra) relied upon by the ld. DR and found that the facts are distinguishable. In this case the assessee being partnership firm was engaged in purchase and sale of lands. In that case, the land was shown in opening stock and also in closing stock. In that case, the assessee had purchased the land admeasuring 40,375 sq.ft in 1981 and has been shown as stock in trade; part of the plot was sold in AY 1999-00; part of the plot was sold in AY 2001- 02 and part of the plot was sold in AY 2005-06. Every year the closing stock was shown after reducing the value of part of plot which was sold by the assessee. These facts have been recorded in para 3 at page 2 of the order of the Tribunal. On these facts, the Tribunal has held that ‘since the assessee was engaged in purchase of plots and sale of plots; therefore, the sale of plot is held on account of business activity.’ However, in the present case no such facts are available. In the present case, the plot was shown in the fixed asset and on one go the plot has sold by the assessee on the basis of ‘as is where is condition’.
8.2 The ratios of the decision in the case of Shanti Builders and in the case of Gas Property Developers discussed above are applicable on the facts of the present case. We further noted that the profit arising to the assessee is on account of appreciation of value of the plot Page 20 of 33
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and not on account of any construction activity. Therefore, in view of these facts and circumstances, we hold that the profit arising out of sale consideration on account of sale of plot is liable for capital gain and not under the business head. Accordingly, the ground of the assessee is allowed. ”
The CIT also observed that the assessment order framed for AY 2005-06 is in favour of department whereby the Tribunal in ITA No. 3980/Mum/2009 dated 13-10-2010 has held that the income on account of sale of land is to be assessed as business income. On this the learned Counsel for the assessee argued that once there are two views possible, revision proceedings under section 263 of the Act is not applicable. On the other hand, the learned Sr. DR supported the order of CIT revising the assessment.
We have heard the rival contentions and gone through the facts and circumstances of the case. Admitted facts are that in this year the AO has discussed the facts while framing the assessment under section 143(3) and finally assessed the income arising out of the sale of plot of land by entering into development agreement with Kubix Realities Pvt. Ltd. on 27-04-2006 as long term capital gain. Similarly, in assessee’s own case sale of plot of land was assessed as business income. But, Tribunal finally held that the same should be assessed as long term capital gain for AY 2004-05. However, in AY 2005-06, the Tribunal took a different view in assessee’s own case and held that the profit on sale of plot of land is to be assessee as business income. It means there are two view possible and once there are two views possible, the revision under section 263 of the Act is not possible. This view of ours is supported by the decision of Hon’ble Supreme Court in the case of M/s Malabar Industrial Co. Ltd. Vs CIT (2000) 243 ITR 83 (SC) wherein it is held as under: -
“The scheme of the Act is to levy and collect tax in accordance with the provisions of the Act and this task is entrusted to the Revenue. If due to an erroneous order of the Income-tax Officer, the revenue is losing tax lawfully Page 21 of 33
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payable by a person, it will certainly be prejudicial to the interests of the revenue. The phrase prejudicial to the interests of the revenue has to be read in conjunction with an erroneous order passed by the Assessing Officer. Every loss of revenue as a consequence of an order of Assessing Officer cannot be treated as prejudicial to the interests of the revenue, for example, when an Income-tax Officer adopted one of the courses permissible in law and it has resulted in loss of revenue; or where two views are possible and the Income-tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the revenue unless the view taken by the Income-tax Officer is unsustainable in law.”
In view of the above, we are of the view that the revision order passed by 27. CIT under section 263 of the Act is not as per law and hence quashed. The appeal of the assessee is allowed.
The first issue in ITA No. 2955/Mum/2012 for the AY 2008-09 in assessee’s appeal is against the order of CIT(A) confirming the disallowance of deduction under section 80IB of the Act being profit earned out of housing project. For this assessee has raised following grounds No. 3, 4 and 5: -
“3. Under the facts and circumstances of the case and in law the ld. CIT(A) has erred in confirming the disallowance of appellant’s claim of deduction of Rs.2,41,05,224/- claimed under section 80IB(1) of the income Tax Act, being profit earned out of its Housing Project at Pimpri.
Under the facts and circumstances of the case and in law the Ld. CIT(A) has erred in not appreciating the fact that the appellant had claimed deduction under section 80IB (10) only in respect of its completed housing
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project and not on any commercial area which was not completed.
Ld. CIT(A) has erred in Not appreciating the correct proposition of law laid down by the Hon’ble Bombay High Court in case of Brahma Associates while disallowing the appellant’s claim of deduction under section 80IB (10).”
Briefly stated facts are that the assessee claimed deduction under section 80IB of the Act on account of project at Pimpri being known as Manish Garden. The assessee has disclosed net profit of Rs. 2,41,5,224 on account of this project and same has been claimed as deduction under section 80IB (10) of the Act. A survey under section 133A of the Act was carried out in the case of the assessee on 23-12-2008 whereby it was noticed that the assessee commenced construction activity for this project in FY 2003-04 with sanction planned of 8 buildings. Admittedly, assessee obtained completion certificate for 7 buildings on 31-03- 2008 and claimed deduction under section 80IB of the Act. The survey party on verification of project noticed that the project Manish Garden consists of 8 buildings i.e. A1, A2, B1, B2, C1, C2 and building D. It was admitted that the 7 buildings were completed but D building which is a commercial building was incomplete. During the survey, it was noticed that part of completion certificate was obtained as there was no water connection given by Pune Municipal Corporation and only to building A3 and buildings A2 water connection was given in the month of November 2008. Survey party also noticed that building C1 and C2 consists of 12 shops having total commercial area about 4,000 sq. ft. which is in contravention of the provisions of section 80IB (10) of the Act that commercial area should be less than 5% of the total plot area and not more than 2,000 sq. ft. In view of this, the AO noted that the assessee is not entitled for deduction under section 80IB (10) of the Act and he disallowed the deduction. Aggrieved assessee preferred the appeal before CIT(A), who also confirmed the disallowance of deduction by observed as under: -
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“7.1. The A.O. has thus disallowed rebate u/s.80 IB(10) for two reasons: firstly that the project constituted of buildings A-i, A-2, A-3, B-1, B-2, C-1, C-2 & D and that building 'D' remains incomplete as on 31.03.2008. Then building A-2 has been given water connection in November, 2008. The A.O. a
lso has brought this finding' in the assessment order that though part completion certificate is obtained there is no water connection given by PCMC to building A-3. The AO has also disallowed 8018(10) for the second reason i.e. the project is not purely residential but commercial also partly whereas amended sec.801B with effect from 91.04.2005 allowing commercial area to the extent of 5% of the project was not in picture when appellant's project commenced on 03.05.2003.
7.2 In view of this I have gone through commencement certificate dated 03.05.2003 filed by appellant which is in form of annexure 'B' and also the completion certificate dated 31.03.2008 which is in form of annexure 'A'. It is noted from the same that the entire project called Pimpri Project consisted of buildings A-1, A-2, A-3, B-I, B-2, C-1, C-2 & D. It is noted that residential buildings are shown in the completion certificate as eight in numbers and twelve shops however, the same does not reflect building 'D'. The appellant has explained that construction of building 'D' has not yet commenced and so not completed on 31.03.2008. It has also been informed that for building 'D' the appellant has not claimed 801B (10) rebate on the same. In support of the same the appellant has cited case law of Bhrama Associate vs. JCIT.
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7.4 As far as the issue if a project which is approved as residential cum commercial by local authority, rebate u/s.80IB (10) is available which is the case of appellant, I find that the issue is covered in the favour of the appellant by this decision. Thus if the project has been approved prior to 01.04.2005 amended sec.801B (10) is not applicable restricting the area of commercial portion to 5% of such project, I find this issue is covered in favour of the appellant by the said decision.
7.5 However, coming to the second aspect if rebate on profit of the part of the project can be claimed when appellant has not been able to compete remaining part of the project within the prescribed period of four years, I find that the same decision given by Hon'ble High Court does not allow grant of 80IB(10) on part profit of the project. It is not the case of appellant that he is offering profit on part completion method and then in any case four years of period is already over on 31.03.2008 as the project has commenced on 03.05.2003. I find that the case of appellant is covered against him by the very decision of Brahma Associates on the issue, as per highlighted portion of the decision reproduced above.
7.6. The appellant then has quoted decision of Vandana Properties vs. ACIT before A.O. I have gone through the same and found that the said matter has traveled to Hon’ble Bombay High Court to consider the following questions on interpretation of s.80IB (10) : (i) what is 'housing project' u/s.8016(10)?, (ii) Whether if approval for construction of 'E' Building was granted by the local authority subject to the conditions set out in the first approval granted on 12.5.1993 for construction of A and B Building, construction of 'E' building is an 'extension' of the earlier housing project for which Page 25 of 33
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approval was granted prior to 1.10.1998 and therefore, benefit of s.80IB(1) cannot be granted? (iii) whether the housing project must be on a vacant plot of land which has minimum are of one acre and if there are multiple buildings and the proportionate area for each building is less than one acre, s.80IB (10) can be denied? Whether the merger of two flats into one so as to exceed the maximum size of 1000 sq.ft. violates the condition set out in s.801B (10)? There the High Court held in favour of appellant in that case.
7.7 I find that the facts in the case of appellant are distinguishing as here the building. Neither building ‘D; here is new housing project. Here in the case of appellant the matter in the instant appeal is when the Pimpri Project consisting of buildings A-1, A-2, A-3, B-1, B-2, C- 1, C-2 & D which was approved as residential cum commercial project by commencement certificate dated 03.05.2003 and for which the completion certificate dated 31 .03.2008 clearly shows that only buildings A- 1, A-2, A-3, 8-1, 8-2, C-1 & C-2 are completed by 31.03.2008 but not building 'D', the rebate u/s.801B(10) for the project can be given or not? After going through the case law of Varidana Properties vs. ACIT, I find that the case of appellant is not covered by the said decision and in fact is covered against him by Brahma Associates on this issue wherein Hon'ble Bombay High Court has clearly stated that the rebate u/s.801B(10) is on the profits derived from such approved project and not for the part project. It says that either the project is eligible or not eligible but in any case it cannot be the case that one part of the project is eligible and the other part is not eligible. In this case since the appellant has not contradicted the fact that construction of building 'D' has not yet commenced till 31.03.2008, it is clear that the Pimpri Page 26 of 33
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project consisting of buildings A-i, A-2, A-3, B-i, 8-2, C-i, C-2 & D, which commenced on 03.05.2003 remained incomplete as on 3 1.03.2008 and thus has not fulfilled the criteria of completion within four years from the date of commencement and hence is not eligible for rebate u/s.80IB(1O). In view of this the claim made by the appellant is not tenable and hence rejected. Ground No.5 is dismissed.”
Aggrieve now, assessee is in second appeal before us.
We have heard the rival contentions and gone through the facts and circumstances of the case. We find that the Revenue during the course of survey proceedings u/s 133A of the Act on assessee on 23-12-2008 noted that the assessee has commenced the construction for this project at Pimpri, Pune known as Manish Garden in the FY 2003-04 with a sanctioned lay out plan of eight buildings. But finally obtain completion certificate in respect to seven buildings as on 31-03-2008 and claimed deduction u/s 80IB of the Act. But according to Revenue the eight building i.e. the building D a commercial building in incomplete. The survey findings summarily recorded by the CIT(A) reads as under: -
“The assessee has commenced the construction activity of this project in the FY 2003-0, with sanctioned lay out plan of eight buildings. The assessee has obtained completion certificate for the seven buildings on 31-03- 2008 and claimed deduction u/s 80IB(10). During the survey, physical verification was carried out and statement of Shri Ibrahim Shaikh, supervisor of that site was recorded on oath..
i) On the physical verification of the project, it is noticed that the project of Manish Garden consists of eight buildings, i.e., A1,A2,A3, B1, B2, C1, C2 and building D. On inspection of the Page 27 of 33
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buildings, it is found that seven buildings are completed and the D building is incomplete. It is also noticed that though part completion certificate is obtained, there is no water connection given by PCMC to building A3. The building A2 has given water connection in the month of November, 2008.
ii) Moreover, it is also noticed that in the building C1 and C2, there are twelve shops which are having total commercial area about 4000 sq. ft. which is contravening the provision laid in the section 80IB(10) of the I.T. Act that commercial area should be 5% of the total plot area and not more than 2000 sq.ft. Shri Shaikh, Site Supervisor also clarified that the building D is a fully commercial building. ”
We find that the project was sanctioned by the local authority on 03-05-2003 and at that time there was no restriction in respect of commercial area. The restrictions came in force from 01-04-2005 and hence, the provisions of commercial area are not applicable to the assessee company. The assessee company has completed seven buildings of housing project and obtained completion certificate from local authority as on 31-03-2008. Total no. of flats for which completion certificate obtained was for 164 residential flats. The remaining one building was not completed which was commercial block ‘D’ and for which the assessee has not obtained the completion certificate. The assessee has completed seven buildings A-1, A-2, A-3, B-1, B-2, C-1 and C-2 for eligibility of deduction u/s 80IB(10) of the Act. Admittedly, the assessee has not submitted any plan for block ‘D’ which is a commercial building and not completed and for which no deduction was claimed by the assessee. We find that this issue is answered by the Hon’ble Bombay High Court in the case of CIT vs. Vandana Properties (2013) 353 ITR 36 (Bom) Wherein Hon’ble Bombay High Court has considered as under:- Page 28 of 33
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“25. The question, therefore, to be considered is, whether the Revenue is justified in reading the expression 'plot of land' in Section 80IB (10)(b) as 'vacant plot of land' ?
The object of Section 80IB (10) in granting deduction equal to one hundred per cent of the profits of an undertaking arising from developing and constructing a housing project is with a view to boost the stock of houses for lower and middle income groups subject to fulfilling the specified conditions. The fact that the maximum size of the residential unit in a housing project situated within the city of Mumbai and Delhi is restricted to 1000 square feet clearly shows that the intention of the legislature is to make available large number of medium size residential units for the benefit of the common man. However, in the absence of defining the expression 'housing project' and in the absence of specifying the size or the number of housing projects required to be constructed on a plot of land having minimum area of one acre, even one housing project containing multiple residential units of a size not exceeding 1000 square feet constructed on a plot of land having minimum area of one acre would be eligible for Section 80IB (10) deduction. If the construction of Section 80IB (10) put forth by the Revenue is accepted, it would mean that if on a vacant plot of land, one housing project fulfilling all conditions is undertaken, then deduction would be available to that housing project and if thereafter several other housing projects are undertaken on the very same plot of land, the deduction would not be available to those housing projects as the plot ceases to be a vacant plot after the construction of the first housing project. Such a construction if accepted would defeat the object with which Section 80IB (10) was enacted.
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Moreover, plain reading of Section 80IB (10) does not even remotely suggest that the plot of land having minimum area of one acre must be vacant. The said Section allows deduction to a housing project (subject to fulfilling all other conditions) constructed on a plot of land having minimum area of one acre and it is immaterial as to whether any other housing projects are existing on the said plot of land or not. In these circumstances, construing the provisions of Section 80IB (10) by adding words to the statute is wholly unwarranted and such a construction which defeats the object with which the Section was enacted must be rejected.
Apart from the above, the Central Board of Direct Taxes (CBDT) by its letter dated 4th May 2001 addressed to the Maharashtra Chamber of Housing Industry has stated thus :
"The undersigned is directed to refer to your letter No.MCHI:RSA:m:388/19799/3 dated 1st January 2001 and to state that the additional housing project on existing housing project site can qualify as infrastructure facility under Section 10(23G) and 80IB (10) provided it is taken up by a separate undertaking, having separate books of accounts, so as to ensure that correct profits can be ascertained for the purpose of Section 80IB and also to identify receipts and repayments of long term finances under the provisions of Section 10(23G), separately financing arrangements and also, if it separately fulfills all other statutory conditions listed in Sections 10(23G) and 80(B(10). With regard to your query regarding the definition of Housing Project, it is clarified that any project which has been approved by a Page 30 of 33
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local authority as a housing project should be considered adequate for the purpose of Section 10(23G) and 80IB (10)."
From the aforesaid letter of CBDT, it is clear that for the purposes of Section 80IB (10) it is not the mandate of the Section that the housing project must be on a vacant plot of land having minimum area of one acre and that where a new housing project is constructed on a plot of land having minimum area of one acre but with existing housing projects would qualify for Section 80IB (10) deduction. Even otherwise, the argument of the Revenue does not stand to reason because, in the city of Mumbai where there is acute space crunch, it is difficult to find a vacant plot having minimum area of one acre and even if few such plots are existing it cannot be said that Section 80IB (10) deduction was intended to give benefit only to the undertakings who construct housing projects on those few plots. Therefore, it is clear that on a plot of land having minimum area of one acre, there can be any number of housing projects and so long as those housing projects are approved by the local authority and fulfill the conditions set out under Section 80IB (10), the deduction thereunder cannot be denied to all those housing projects. Section 80IB (10) while specifying the size of the plot of land, does not specify the size or the number of housing projects that are required to be undertaken on a plot having minimum area of one acre. As a result, significance of the size of the plot of land is lost and, therefore, the assessee subject to fulfilling other conditions becomes entitled to Section 80IB (10) deduction on construction of a housing project on a plot having area of one acre, irrespective of the fact that there exist other housing projects or not. In these circumstances, the decision of the Tribunal in rejecting Page 31 of 33
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the contention of the Revenue regarding the size of the plot cannot be faulted. ”
In view of the above decision of Hon’ble Bombay High Court wherein the deduction is held to be allowable where a new housing project is constructed on a plot of land having minimum area of 1 acre but with existing housing project and entitlement to construction and additional building E on the plot of land. Hon’ble Bombay High Court allowed the claim of the assessee. We are of the view that the facts in the present case are similar and hence, respectfully following the same we allow the claim of the assessee.
The next issue in this appeal of assessee is as regards to disallowance of expenses for non-deduction of TDS by invoking the provision of section 40(a)(ia) of the Act. We have already allowed the claim of deduction u/s 80IB(10) of the Act, any consequential disallowance will also come under the purview of deduction u/s 80IB(10) of the Act and no addition can be made. Hence, this addition has become inconsequential.
In the result, appeals of assessee in ITA Nos. 2954 & 2955/Mum/2012 for AYs 2007-08 and 2008-09 are allowed. The Revenue’s appeal in ITA Nos. 3454 & 6131/Mum/2012 for AYs 2004-05 and 2005-06 are dismissed.
Order pronounced in the open court on 31-05-2017.
Sd/- Sd/- (RAJESH KUMAR) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Dated: 31-05-2017 Sudip Sarkar /Sr.PS
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Copy of the Order forwarded to: 1. The Appellant 2. The Respondent. 3. The CIT (A), Mumbai. 4. CIT 5. DR, ITAT, Mumbai //True Copy// 6. Guard file. BY ORDER, Assistant Registrar ITAT, MUMBAI
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