TaxTMI 
TaxTMI 
TaxTMI 
2016 (3) TMI 251
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....order of A.O., Assessee carried the matter before ld. CIT(A) who vide order dated 24.01.2011 dismissed the appeal of the Assessee. Aggrieved by the order of ld. CIT(A), Assessee filed appeal before Tribunal. 4. As far as assessee's appeal for A.Y. 2008-09, is concerned, assessee electronically filed the return of income for A.Y. 2008-09 on 29/08/2008 declaring total income of Rs. 5,76,870/-. The case was selected for scrutiny and thereafter assessment was framed u/s.143(3) of the Act vide order dated 27.12.2010 and the total income was determined at Rs. 20,64,430/-. Aggrieved by the order of A.O., assessee carried the matter before the ld. CIT(A) who vide order dated 22.07.2011 granted partial relief to assessee. Aggrieved by the order of ld. CIT(A), assessee filed appeal before Tribunal. 5. In filing the appeal before ITAT, as far as A.Y.2007-08 is concerned, there was delay of 320 days and as far as appeal for A.Y. 2008-09 is concerned, there was delay of 158 days. The condonation application of the delayed filing of appeal by Assessee was dismissed by Tribunal by order dated 22.03.2013 in ITA No. 563 & 564/A/2012 and thus both the appeals were dismissed on the ground of limita....
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....satisfied with the impugned common order passed by the learned Tribunal in dismissing aforesaid appeals on the ground of limitation and not conedoning the delay of 328 days and 158 days respectively, common appellant has preferred the present appeals. 3.0. We have heard Shri Soparkar, learned advocate for the appellant and Shri Varun Patel, learned advocate for the respondent and perused the impugned common order passed by the learned Tribunal. Considering the affidavits filed by the assessee before the Tribunal which are even reproduced by the learned Tribunal, we are of the view that the learned Tribunal has committed error in not condoning the delay and not considering the appeals on merits. It is required to be noted that there is no observation by the learned Tribunal that there was any deliberate delay on the part of the assessee and /or mere was any mala fide intention on the part of the assessee in not preferring the appeals within a period of limitation, The reasoning given by the learned Tribunal that the assessee has not filed the affidavit of Income Tax Practitioner in support of the affidavits filed by the assessee is concerned, it is required to be noted that once ....
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.... 12% of receipts against addition of Rs. 32,36,911/- @ 25% of receipts made by the Assessing Officer. 2. The Ld. CIT (A) erred on facts and in law in confirming disallowance of Rs. 8,67,447/- u/s 80IB(10) without appreciating the deduction u/s 80IB (10) for the very same project was allowed by the Assessing Officer himself in A.Y. 2005-06 in order u/s 143(3) and that non receipt of BU permission was not due to fault of the appellant. 7. 1st ground is with respect to making additions at 12% of the receipt. 8. During the course of assessment proceedings, A.O noticed that Assessee had carried out two projects namely Kailash Developers and Yuvraj Park. He also noticed that with respect to the housing project known as "Yuvraj Park", Assessee had claimed deduction 80IB(10) of the Act and from the project, the net profit declared by the assessee was 48.32% whereas the profits that was undertaken by the name of Kailash Developers on which no exemption u/s. 80IB(10) of the Act was claimed, the net profit was shown at 5.5%. The Assessee was therefore asked to as to why the net profit in respect of Kailash Developers not be estimated at 48.32% as being the net profit declared by the Ass....
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.... on one hand and purchase of shutters bills of April / May 2010. He has not been able to answer how land levelling expenses of more than Rs. 24 lacs were incurred by Kailash developers when both the projects of the appellant that of the housing complex and industrial godowns taken up by the two different proprietary concerns were almost completed in the year under consideration and therefore in my view the AO is right in concluding that the expenses of Yuvraj Developers where the appellant is claiming 100% tax free profit u/s.80IB(10) were diverted in the concern - Kailash Developers which was doing the project of industrial godowns. The appellant did not produce any books of accounts or any bills during the appellate proceedings of any concern so the conclusions drawn by the AO stand and therefore I have no alternative but to reject the books of accounts of the appellant before which an opportunity has also been given to the appellant. From the table given in the reply reproduced above of the appellant in para 8 above I am of the view that it would be fair to estimate the Net profit of Kailash Developers at 12% of total receipts of Rs. 1,66,50,000 (as 11.8% is the average N.P. ....
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....no.5 of the order, it is seen that based on the net profit for the immediate preceding year, the impugned year and subsequent three assessment years, the assessee has worked out the average net profit at 11.3%, which is after including the net profit of 5.5% for the year under consideration being the year under dispute. We are of the view, that when once the books of accounts for the year under consideration are rejected for not showing the true income of the assessee, it means that they have to be ruled out for consideration and cannot be pressed into service either by the Revenue or the assessee and therefore the entries in the books cannot be held valid for certain purpose and invalid for certain purposes by either of the parties. In such a situation, in the present case, we are therefore of the view that the net profit of 5.55% for the year under consideration also cannot be considered for working out the average profits because, it is after considering the land leveling expenses of Rs. 24.24 lacs which is also disputed by the Revenue. In such a situation, when the books of accounts are rejected, then for estimating the profits, for the reasons stated hereinabove, we are of the....
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.... Para 5 of submission dated 13.1.2011 reproduced above informs how the land cost has been paid to the society by the appellant from the funds collected from the members or by the members directly to the society through sale deeds of land in which the appellant appeared as attorney holder of the land owner - the society . However perusal of one of the sale deeds of land submitted during appellate proceedings dated 22.8.2005 shows that it was the son (Vanrajsinh Dilipsinh Vaghela) of the appellant who acted as the power of attorney holder of the land owners and not the appellant. This sale deed has been entered into by one of the members named Vyas Mukesh Kalidas with the land owners (1) Meenaben R Patel (2) K.R.Patel (3) B. R.Patel - power of attorney holder being son of the appellant. Son of the appellant is a separate entity and is filing separate income tax returns. He is also engaged in the business of civil construction. Therefore it is wrong on the part of the appellant to say that the land sale documents were executed between the buyers and the land owners where he is the power of attorney holder of the land owners. Therefore in my view despite the clause in the devel....
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....itled for the deduction." 13. Aggrieved by the aforesaid order of ld. CIT(A), Assessee is now in appeal before us. 14. Before us, ld. A.R. reiterated the submissions made before A.O. and CIT(A) and further submitted that on the same project, assessee was granted deduction u/s.80IB(10) of the Act for A.Y. 2005-06 & 2006-07, though for A.Y. 2006-07, the assessment was not u/s.143(3) of the Act but u/s.143(1) of the Act. He further submitted that A.O. had denied the claim of deduction mainly for the reason that assessee was not the owner of the land and that the permissions for development were received by the land owners and not the assessee. He submitted that the aforesaid issue is now settled in favour of assessee by the decision of Hon'ble Gujarat High Court in the case of CIT v. Radhe Developers reported in (2012) 341 ITR 403 (Guj) & thereafter by series of decisions of Tribunal and therefore on this ground the claim of assessee for deduction u/s.80IB(10) of the Act cannot be denied. He further submitted that ld. CIT(A) had upheld the denial of deduction u/s.80IB(10) of the Act for the reason that BU permission of the local authority was not furnished by the assessee. On this ....
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....In such a situation, following the decision of Hon'ble Gujarat High Court in case of CIT vs. Radhe Developers (supra), we are of the view that assessee is eligible for deduction u/s.80IB(10) of the Act. As far as the denial on deduction by ld. CIT(A) on the ground that BU permission from local authorities were not obtained, it is an undisputed fact that the original permission for the development of the housing project was received on 28.03.2003 and subsequently the revised permission was received on 01.04.2004. Explanation (i) below Section 80IB(10) of the Act states that in a case where the approval in respect of the housing project is obtained more than once, such housing project shall be deemed to have been approved on the date on which the building plan of such housing project is first approved by the local authority. On considering the facts of the present case and in light of the aforesaid Explanation to Section 80IB(10) of the Act, in the present case, we are of the view that the housing project would be deemed to have been approved on 28.03.2003, being the date of original approval date and at that time the statute did not mandate the requirement of obtaining BU permission....