2010 (8) TMI 758 - AT - Income Tax

Tribunal grants partial appeal, remands deduction issue. Dismisses penalty and interest grounds. Consequential relief ordered.

Raj Developers Versus Income-tax Officer, Ward 3(2), Baroda

The Tribunal partly allowed the appeals for statistical purposes, remanding the issue of deduction under section 80-IB(10) to the Assessing Officer for ... Deductions - Profits and gains from industrial undertakings other than infrastructure development undertakings Issues Involved:1. Disallowance of deduction under section 80-IB(10) of the Income-tax Act.2. Initiation of penalty proceedings under section 271(1)(c) of the Act.3. Levy of interest under sections 234A, 234B, and 234C of the Act.Issue-wise Detailed Analysis:1. Disallowance of Deduction under Section 80-IB(10) of the Act:The primary issue was whether the assessee was entitled to a deduction under section 80-IB(10) for developing and building housing projects. The Assessing Officer (AO) denied the deduction on the grounds that:- The assessee was not the owner of the land.- The project approval was in the name of other persons.- The landowners sold pieces of land directly to unit holders, and the assessee acted merely as a confirming party and contractor.- The assessee never sold the houses to the unit holders as there was no registered document.The CIT(A) disagreed with the AO's reasoning regarding the ownership of the land but upheld the disallowance based on the project being approved as a residential-cum-commercial project rather than a housing project. The CIT(A) relied on the decision of the Mumbai Tribunal in Laukik Developers v. Dy. CIT, which held that a project approved as residential-cum-commercial could not be considered a housing project eligible for deduction under section 80-IB(10).The Tribunal noted that the provisions of section 80-IB(10) before 1-4-2005 did not include a specific clause regarding commercial establishments. The Special Bench in Brahma Associates v. Jt. CIT (OSD) concluded that deduction under section 80-IB(10) is admissible for a housing project comprising residential units and commercial establishments, provided the commercial use does not exceed 10% of the total built-up area. The Tribunal set aside the CIT(A)'s order and remanded the matter to the AO to re-examine whether the residential-cum-commercial project qualified as a housing project under the provisions of section 80-IB(10).2. Initiation of Penalty Proceedings under Section 271(1)(c) of the Act:The Tribunal noted that mere initiation of penalty proceedings is not appealable. Therefore, this ground was dismissed without further discussion.3. Levy of Interest under Sections 234A, 234B, and 234C of the Act:The Tribunal stated that the levy of interest under sections 234A, 234B, and 234C is mandatory, as affirmed by the Supreme Court in CIT v. Anjum M.H. Ghaswala and other cases. Therefore, this ground was also dismissed. However, the AO was directed to allow consequential relief while giving effect to the Tribunal's directions.Conclusion:The appeals were partly allowed for statistical purposes, with the issue of deduction under section 80-IB(10) remanded to the AO for re-examination in light of the Tribunal's observations and relevant judicial pronouncements. The grounds related to penalty proceedings and interest levy were dismissed.