2015 (8) TMI 1160

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....rvey as Income from Other Sources instead of Business Income and disallowing deduction u/s 80IB of the IT Act, 1961 on the income of Rs. 76,25,000/- disclosed during the survey. 5. The other grounds are of general nature and need no specific adjudication. Therefore, the only surviving ground remained for our adjudication is the Ground No.2 reproduced above. 6. The facts of the case are that the assessee is a partnership firm which derives income from developing and building of housing project. For the year under consideration, the assessee filed the return disclosing nil income, after claiming deduction u/s 80IB(10) at Rs. 1,18,96,902/-. The Assessing Officer accepted the assessee's computation of income except holding that the sum of Rs. 76,25,000/- which was surrendered by the assessee during the course of survey is to be assessed under the head "income from other sources" and thus, not entitled for deduction u/s 80IB(10). Consequently, he assessed the income of the assessee at Rs. 76,25,000/-. On appeal, the CIT(A) upheld the finding of the Assessing Officer. The assessee, aggrieved with the order of the CIT(A), is in appeal before us. 7. At the time of hearing before us, it ....

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.... since the facts of the case of the assessee and M/s. Nilkanth Developers are identical, the decision of ITAT in the case of M/s.Nilkanth Developers would be squarely applicable to the case of the assessee. 8. The ld. Departmental Representative, on the other hand, relied upon the orders of the authorities below and he pointed out that the CIT(A) has discussed the issue at length and he has sustained the disallowance made by the Assessing Officer on two grounds. The ground number one was that the benefit u/s 80IB(10) cannot be given to tax evaders who did not disclose their receipt correctly. That, the assessee has not recorded the receipt of the alleged on-money in the books of accounts and same could be detected by the Revenue only on account of survey at the assessee's premises. Therefore, on such income which assessee intended to conceal from the Revenue, the assessee cannot be entitled to deduction u/s 80IB(10). That, the second ground given by the CIT(A) is that before the Assessing Officer the assessee did not furnish the complete date-wise details of the receipt of on-money, i.e, name of the person from whom the on-money was received and the date of receipt of such on-mone....

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....ngs in areas declared to be slum areas under any law for the time being in force and such scheme is notified by the Board in this behalf; (c) the residential unit has a maximum built-up area of one thousand square feet where such residential unit is situated within the city of Delhi or Mumbai or within twenty-five kilometres from the municipal limits of these cities and one thousand and five hundred square feet at any other place; (d) the built-up area of the shops and other commercial establishments included in the housing project does not exceed three per cent of the aggregate built-up area of the housing project or five thousand square feet, whichever is higher; (e) not more than one residential unit in the housing project is allotted to any person not being an individual; and (f) in a case where a residential unit in the housing project is allotted to a person being an individual, no other residential unit in such housing project is allotted to any of the following persons, namely:- (i) the individual or the spouse or the minor children of such individual, (ii) the Hindu undivided family in which such individual is the karta, (iii) any person representing such individual....

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....nexure BF-5 in which you have written in page no. 2 to 9, the details of on money received for booking of plat in 'Ornate House' and the details of distributionof the same and the total on which is Rs. 76,25,000/- (Seventy Six Lakhs Twenty Five Thousand). So you are asked to give the details of the same and also asked how it reflected in your books of account. A.11 The diary "Valentinel" which your are showing to me as found during the course of survey, have been kept to record the details of on money received totaling to Rs. 76,25,000/- (Seventy Six Lakhs Twenty Five Thousand) for booking in the project of 'Ornate House' during the current year in page no.2 to 9, which we declare as undisclosed income in our firm My Home Developers and I assure you to pay the tax on it before 31.03.2010." (Original statement is recorded in Gujarati, however, its English translation was supplied by the assessee) 12. From the above, it is evident that, as per Revenue, the noting in the diary is the details of on-money received for booking of the flat in Ornate House project and the total of such receipt is Rs. 76,25,000/-. The assessee was asked to state how it is reflected in the assessee's book....