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TaxTMI 
TaxTMI 
TaxTMI 
2016 (1) TMI 858
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....ction activities. However, against the profit earned, the assessee has claimed deduction of ` 74,67,152 under section 80IB(10) of the Act against the housing project completed by the said proprietary concern. On going through the information submitted by the assessee, the Assessing Officer found that assessee has undertaken a slum rehabilitation project at Ghatkopar named Ghatkopar Janta Buddha Nagar Shri Saidham CHS Ltd., after obtaining approval from Slum Rehabilitation Authority of Maharashtra. The Assessing Officer referring to the provisions of section 80I8(10), observed, for availing deduction under the said provision certain conditions have to be satisfied. However, in case of housing project undertaken by the assessee, he found that some of the conditions of section 80IB(10) have not been fulfilled, he observed that since the assessee's project was approved on 12th November 1999, it should have been completed on 31st March 2008, for availing deduction under section 80IB(10). He also found that the area of the plot on which project was constructed is less than one acre. Thirdly, there is no notification from the Board regarding the scheme. He also found that 24 residential u....
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....ction 271(1)(c) of the Act. Being aggrieved of the penalty order, the assessee preferred appeal before the learned Commissioner (Appeals). 4. Before the first appellate authority, the assessee made detailed submissions making out a case that not only it is not a case of furnishing inaccurate particulars of income, but on merits also, the assessee is entitled for deduction under section 80IB(10) irrespective of the fact that he has accepted the disallowance of its claim by not preferring any appeal before the Tribunal. In this context, it was submitted by the assessee that as per CBDT being notification no.1 of 2011 dated 5th January 2011, formulated for slum re-development by the Maharashtra Government under Maharashtra Regional Town Planning Act, 1966, should be deemed to be a project approved by the CBDT for the purpose of section 80IB(10) from the assessment year 2005-06 onwards. He, therefore, submitted that in view of such notification of the Board, the assessee is eligible for deduction under section 80IB(10). As far as the allegation of the Assessing Officer with regard to non-fulfillment of other conditions relating to built-up area and completion of project, the assessee ....
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....00 sq.ft., the learned Commissioner (Appeals) observed that in view of the decision of CIT v/s Brahma Associates, [2011] 333 ITR 289 (Bom.), this condition will not apply to the projects which commenced before 1st April 2005. Similarly, he held that since the assessee has claimed deduction under section 80IB(10) on pro-rata basis for the flats which are having built-up area of 1,000 sq.ft., it cannot be said that it has furnished inaccurate particulars of income. As far as the other two disallowances are concerned, he observed, they are not as a result of furnishing of inaccurate particulars of income. Accordingly, he deleted the penalty imposed. 5. The learned Departmental Representative, confining his argument to the imposition of penalty in respect of disallowance of deduction under section 80IB(10), submitted that the assessee has deliberately furnished inaccurate particulars of income by not providing correct information in the return of income and accompanying documents. In this context, he specifically referred to the audit report in form no.10CCB and drawing the attention of the Bench to column no.23 of the audit report, he submitted that the assessee left certain columns ....
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....pproved prior to 1st April 2005. In this context, he relied upon the decision of the Tribunal, Mumbai Bench, in Brahma Associates (supra) and the decision of the Hon'ble Supreme Court in CIT v/s Veena Developers, approving the decision of Brahma Associates (supra). As far as the allegation of the Department that the housing project is not eligible as the area on which it is constructed is less than one acre, the learned Counsel for the assessee submitted that when there is no dispute to the fact that it is a SRS project, then the condition of plot having more than one acre is not applicable. He submitted, the notification issued by the CBDT also clarified the position. The learned Counsel for the assessee referring to notification no.1 dated 5th January 2011, submitted, the said notification has to be read along with the proviso to section 80BI(10), hence, will apply retrospectively. In this context, he referred to the decision of the Tribunal, Mumbai Bench, in Ramesh Gunshi Dedhia v/s ITO, 148 ITD 356 (Mum.). As far as the allegation of the Assessing Officer that certain residential units exceeded the built-up area of more than 1,000 sq.ft., the learned Counsel for the assesse....
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....is context, it has been submitted by the learned Departmental Representative that since at the time of filing of return of income, the notification was not there, the assessee could not have claimed the deduction. However, it is found that the Tribunal, Mumbai Bench, in case of Ramesh Gunshi Dedhia (supra), has held that the notification issued by the Board on 5th November 2011, will have retrospective operation as it has to be read along with the proviso to clause (a) and (b) of section 80IB(10). Similarly, allegation with regard to non-fulfillment of conditions relating to commercial area and built-up area of residential units as well as non-furnishing of completion certificate, in our view, have been dealt with in various judicial precedents referred to by the learned counsel and a view favourable to the assessee have been taken. Though, it may be a fact that assessee has accepted the disallowance under section 80(IB)(10) by not preferring any appeal against the order of the learned Commissioner (Appeals) but that cannot be a reason alone for concluding that assessee has furnished inaccurate particulars of income. When there are enough material on record to show that the issue o....