TaxTMI 
TaxTMI 
2014 (12) TMI 49
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.... along with Shri Abhishek Tilak contended that the impugned issue is covered by the decision of the Tribunal in the case of ITO vs M/s Miraj Enterprises (ITA No.4015/Mum/2010 order dated 26/03/2014) by further submitting that the decision of the Tribunal is from the same group of cases having identical facts. This factual matrix was not controverted by the Revenue with the help of any positive material. 2.1. We have considered the rival submissions and perused the material available on record. In view of the above assertions, we are reproducing hereunder the relevant portions from the order of the Tribunal dated 26/03/2014 for ready reference. "4. The solitary issue involved in the grounds, pertain to the allowance of deduction u/s 80IB(10) of the Income Tax Act, 1961. The facts involved in the case are, that the assessee is a partnership firm and is engaged in the business of builder and developer. A survey was conducted on the assessee and its sister concerns u/s 133A of the Income Tax Act, 1961, on 11.10.2005 wherein one of the partners offered Rs. 2,91,00,000/- as additional income for the group as a whole. In so far as the assessee was concerned, there was a disclosure o....
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....y the assessee into bigger flats. This, the assessee was doing in the garb of additional amenities. Since these facts were kept under the covers, the concerned authorities did not come to know & the completion certificates were issued. These facts created doubts, as to whether the flats in question were actually less then 1000 sq. ft, particularly looking into the fact that the joint flats had one kitchen and one entrance and that they were in excess of 1000 sq.ft. and thus clearly infringed the requirements of allowance of deduction. The AO also mentions that the provision of the impugned section uses the expression "housing projects" and since there was a commercial area of 1500 sq.ft. in building no. 1, which was also sold as housing project, the claim of the assessee for deduction became ineligible. The AO, therefore, disallowed the entire claim of deduction u/s 80IB(10), which included the declared amount of Rs. 95,00,000/-, declared at the time of survey and also because it was undertaken by the managing partner of the assessee firm, that the declared amount shall not be included for the claim of deduction u/s 80IB(10). By including the surrendered sum in the qualifying amoun....
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....en a categorical observation that no new facts had been brought to light by the AO except for the brochures. 13. The CIT(A), on commercial area & kids school further observed that, that issue was taken into consideration by Pune Special Bench of the ITAT, in the case of Brahma Associates, reported in 30 SOT 155. Based on the findings of the SB, the CIT(A), reversed the order of the AO on the objection of having commercial area/kids school in 1500 sq.ft. 14. On the issue of inclusion of Rs. 95,00,000/- in the claim of deduction u/s 80IB(10), the CIT(A) was of the view that the assessee entered into supplementary agreements with the flat owners wherein the assessee was required to provide certain extra amenities to them. The objection on which the AO developed his case was that the managing partner, at the time of survey had offered the amount of Rs. 95,00,000/- for taxation, would not be eligible for the claim of deduction u/s 80IB(10). The CIT(A) observed, "I have considered the submissions of the representative and the stand taken by the AO. Admittedly, the appellant offered additional income of Rs. 95 lacs for this assessment year and the Managing partner further stated ....
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.... as held by the Hon'ble Amnitsar ITAT in the case of Kashmir Steel Rolling Mills (39 TTJ 126)". 15. Upon holding that the assessee is eligible to claim the deduction even on the surrendered amount, the CIT(A) bifurcated the deduction to 75:25 by observing that "it would not be possible to determine whether the amounts received by the assessee for the purpose of offering additional amenities and alterations were before or after completion and occupation". The CIT(A), therefore, allowed the claim on income at 75% and sustained the denial of disallowance at 25% of income. 16. Against this decision, both the parties are before the ITAT. 17. Before us, the DR supported the order of the AO and claimed that the entire deduction should be withdrawn and the AR submitted that the order of the CIT(A) was correct in all respects, therefore, the entire deduction should be allowed. 18. We have heard the detailed arguments of the contesting parties. Since the surrender of additional income was made in other cases and the issues of joining the flats to make them bigger flats exceeding 1000 sq. ft. were the subject matter of other assessees and other years of the assessee, the details w....
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....ons are fulfilled, the assessee is entitled for statutory deduction or claim to which he is entitled to. Mere consent or acquiescence by the assessee cannot take away the otherwise a legitimate claim to which he is entitled to. It is an admitted position of law that an admission or acquiescence cannot be a foundation for assessment where the income is returned under erroneous impression or misconception of law. It is otherwise open to the assessee to demonstrate and satisfy the authorities concerned that his particular income was not taxable or claim for deduction is otherwise lawfully allowable, to him. If in law, an item is not taxable, no amount of admission can be made taxable. In view of the said principle, it was to be held that even though the assessee had surrendered its claim before the Assessing Officer, the same could be challenged on merits if it had a strong case for such a claim based on facts and material on record and conditions relevant for claiming such deduction stood fulfilled. 23. Hon'ble Bombay High Court in the case of CIT vs Sheth Developers (P) Ltd, reported in 254 CTR 127 (Bom) (copy filed before us), held, "Explanation to sub-s (1) of s 158BB was am....
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....de the amount of Rs. 95,00,000/- in the claim of deduction would have no relevance, first on the fact that the statement was made u/s 133A. Secondly, even if the statement was recorded on oath, the assessee has prerogative to change his/its stand, after taking into consideration the facts that emerge from the papers seized or impounded. The law does not bar or create any type of estoppel, to retract from the statement, even if given on oath, if the facts are otherwise. Hence, the assessee was correct to include the amount offered in the qualifying amount of the claim for deduction u/s 80IB(10)." 2.2. If the observation made in the assessment order, conclusion drawn in the impugned order, material available on record and the assertions made by the ld. Respective counsel, if, kept in juxtaposition and analyzed, we find that impugned issue is covered by the decision of the Tribunal, wherein the decision from Hon'ble jurisdiction High Court in the case of CIT vs Sheth Developers (P.) Ltd. 254 CTR 127 (Bom) has been discussed. It is also noted that survey action u/s 133A of the Act was carried out on 11/10/2005, wherein statement of Jagat V. Shah, managing partner of the assessee fir....