TaxTMI 
TaxTMI 
2015 (10) TMI 1858
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....ave originated from the project 'Prime Plus', for which deduction u/s.80IB(10) of the Act has been claimed. 3) The learned Commissioner of Income-tax (Appeals) erred in failing to appreciate that the assessee had tried to claim the undisclosed receipts to be from one of its projects which was entitled to deduction u/s.80IB(10) without proving any nexus of receipts with that particular project. 4) The appellant craves leave to add, alter or amend any or all the grounds of appeal. 3. On the appointed date of hearing, the assessee has furnished written submissions in which, it was pointed out that the issue is identical to the issue decided by the Pune Bench of the Tribunal in Shri Naresh T. Wadhwani Vs. DCIT, ITA Nos.18, 19 & 20/PN/2013 relating to assessment years 2007-08 to 2009-10, vide order dated 28.10.2014. 4. The learned Departmental Representative for the Revenue has pointed out that in the case of assessee, there was only one project against which, the assessee had claimed the deduction under section 80IB(10) of the Act. 5. The issue raised in the present appeal is against the claim of deduction under section 80IB(10) of the Act. 6. The facts relating ....
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....ime Plus. The Assessing Officer also referred to the final statement on oath recorded at the time of search action of Shri Naresh T. Wadhwani on 13.08.2008 under which, declaration of undisclosed income of Rs. 7 crores was made and in the final statement in relation to the notings on the incriminating documents seized, he had admitted to the transactions which were not recorded in the regular books of account and which included on-money receipts from different projects undertaken by him. The Assessing Officer in view thereof, was of the view that the assessee had not demonstrated by supporting evidence or otherwise that the said undisclosed receipts of Rs. 40 lakhs had originated from the project of Prime Plus. Consequently, the claim of deduction under section 80IB(10) of the Act on such receipts was denied to the assessee. 7. The CIT(A) allowed the claim of the assessee holding that the said additional receipts offered by the assessee were from business receipts, on which the assessee was entitled to the claim of deduction under section 80IB(10) of the Act. 8. The Revenue is in appeal against the said order of CIT(A). 9. On the perusal of record, we find that search acti....
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.... from the business of construction and development of the group and it has also been categorically stated by the partner that he would like to verify the seized diary and other papers to confirm duplication if any and further stated that he shall give the break up entity-wise and year-wise information later. The subsequent letter dated 23-09-2008 had been filed as a sequel to the declaration which clearly mentions the declaration to be on account of undisclosed receipts which also includes Rs. 40 lacs of the appellant AOP. Thus, the aforesaid declaration was on account of receipts which were undisclosed and in that context the appellant with regard to the receipts of Rs. 40 lacs has submitted before the Assessing Officer that the details date wise of the receipts along with the persons from whom the booking amount were received were not available. The very fact that the said receipts were not disclosed and the aforesaid amount was declared additionally over and above the book results as undisclosed receipts and not 'income' has not been considered by the A.O. In fact during the course of search certain documents found reflected cash receipts and payments not reflected in th....
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....ssessee furnished a bifurcation of the additional income of Rs. 7 crores, which was admitted by him in the statement recorded during the course of search u/s 132(4) of the Act on 14.08.2008. The details of such declaration has been tabulated in para 8.2 of the assessment order. A perusal of such details read alongwith the subsequent order passed u/s 154 of the Act dated 18.04.2011 by the Assessing Officer clearly reveals that various loose papers/diaries found and seized during the course of search indicated that assessee was indulging in accepting money in cash against sale of flats/shops in the project undertaken by him; and, such amounts were not reflected in the regular books of account. Pertinently, it has been accepted by the Assessing Officer that the impugned sum of Rs. 60,00,000/- comprises of undisclosed receipts received from customers against the sale of flats in the project, Sai Nisarg Park - Mayureshwar, which has been undertaken by assessee through his proprietary concern, M/s Mangalmurti Developers; and, that the receipts pertain to the assessment year under consideration. In-fact, the tabulation made by the Assessing Officer in para 8.13 of the assessment order whi....
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....me from undertaking a housing project, 'The Crest' at Pimple Saudagar, Pune, which is eligible for section 80IB(10) benefits. In the return of income originally filed u/s 139(1) of the Act, assessee had claimed deduction u/s 80IB(10) of the Act in relation to the profits derived from the said housing project and the same stands allowed even in the impugned assessment which has been made u/s 153A(1)(b) of the Act as a consequence of a search action u/s 132(1) of the Act. 11. In the course of search, in a statement deposed u/s 132(4) of the Act, assessee declared certain additional income pertaining to the housing project in question. The additional income declared was on account of on-money received from the customers to whom flats were sold in the said project. At the time of hearing, learned counsel referred to the copy of statement recorded u/s 132(4) of the Act of Shri Rajesh Malpani, a partner of the assessee firm and also copies of some of the seized papers, which indicated receipt of on-money, and the same have placed in the Paper Book at pages 35 to 52. A perusal of the seized material shows that a complete detail of that on-money received is enumerated, viz. name o....
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....om customers on account of sale of flats of its housing project, 'The Crest' at Pimple Saudagar, Pune. Clearly, the source of the additional income is the sale of flats in the housing project, 'The Crest'. Therefore, once the source of income is established the assessability thereof has to follow. The nature of income, thus on facts, has to be treated as 'business income' albeit, the same was not accounted for in the account books. In this manner, we are unable to accept the stand of the Assessing Officer or of the CIT(A) that the said income is not liable to be taxed as 'business income'. 12. Now, coming to the point as to whether such 'business income' qualifies to be eligible for deduction u/s 80IB(10) of the Act in the course of an assessment made u/s 153A(1)(b) of the Act. On this aspect, the learned Departmental Representative submitted that the assessment in cases of search action or requisition are made u/s 153A or 153C of the Act in order to assess undeclared incomes and such provisions are for the benefit of the Revenue and therefore a claim u/s 80IB(10) of the Act cannot be considered in such proceedings, especially when such a claim was not made in the return o....
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....ection 80A(1) of the Act prescribes that in computing the 'total income' of an assessee, there shall be allowed from his 'total income' the deductions specified in Chapter VIA of the Act. The moot point is as to whether the aforestated position prevails in an assessment made u/s 153A(1)(b) or not? In our considered opinion, having regard to the expression "all other provisions of this Act shall apply to the assessment made under this section" in Explanation (i) of section 153A of the Act, it clearly implies that in assessing or reassessing the 'total income' for the assessment years specified in section 153A(1)(b) of the Act, the import of section 80A(1) of the Act comes into play, and there shall be allowed the deductions specified in Chapter VIA of the Act, of course subject to fulfillment of the respective conditions. Therefore, we are unable to subscribe to the stand of the CIT(A) to the effect that the benefits of Chapter VIA of the Act, which inter-alia include section 80IB(10) of the Act, are not applicable to an assessment made under sections 153A to 153C of the Act. In our considered opinion, the phraseology of section 153A r.w. Explanation (i) as noted above, does not sup....
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....t leave any scope for ambiguity. The judgment of the Hon'ble Supreme Court in the case of Sun Engineering Works Pvt. Ltd. (supra) has been rendered on a different footing and is strictly not applicable to the present proceedings. So, however, even if one were to import the reasoning raised by the learned Departmental Representative based on the judgment of the Hon'ble Supreme Court, to the present case, yet we do not find that it would debar the assessee from claiming deduction u/s 80IB(10) of the Act on the impugned additional income declared in the return filed in response to notice u/s 153A(1)(a) of the Act. In the present case, the claim of deduction u/s 80IB(10) of the Act was made in the return of income originally filed and in the return filed in pursuance to the notice u/s 153A(1)(a) of the Act, the claim u/s 80IB(10) of the Act is only enhanced and therefore, it is not a fresh claim. Therefore, in our view, the judgment of the Hon'ble Supreme Court in the case of Sun Engineering Works Pvt. Ltd. (supra) does not help the Revenue in the present case. 17. In-fact, the Hon'ble Bombay High Court in the case of Sheth Developers (P) Ltd. (supra) was considering the claim....