AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2017 (3) TMI 1304
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....he assessee is a private limited company engaged in the business of developing and promoting real estate. It filed its return of income for the impugned assessment year on 21/10/2009 declaring total income of Rs. 1,12,21,203/- which was subsequently revised on 13/09/2010 wherein tax was computed u/s 115 JB after including the income it received from the AOP in which it was a member. A survey action u/s 133A of the Income Tax Act was carried out by the department in the case of the assessee on 23/12/2010 during which the statement of Ashok V. Suratwala, Director of the assessee company was recorded u/s 131 of the Income Tax Act. The assessment was completed u/s 143(3) on 02.05.2011 at an income of Rs. 5,24,44,614/-. The Assessing Officer whi....
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....eived was chargeable to tax and not exempt from tax, the Assessing Officer levied penalty of Rs. 1,78,25,925/- under the provision of section 271(1)(c) r.w. explanation 1 thereto. 4. Before the CIT(A) the assessee submitted that full particulars of income had been furnished. The share from the AOP was duly reflected in the profit & loss account and the same was also duly reflected separately in the computation of income as a deduction in the light of sections 86 and 167B. It was argued that the Mumbai Bench of the Tribunal has held in the case of the AOP for assessment years 2008-09 & 2009-10 that there cannot be any carving out of the share of profits of members of the AOP for disallowances. It was pointed out that no penalty can be levie....
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....two entities as per which the sales proceeds of the units were to be deposited in a joint account and would be shared at the ratio of 35% and 65% by the assessee and RKC respectively. During the year the assessee received Rs. 5,89,91,145/- from the said AOP and has shown the same as its share of profit from AOP under the head 'other income' in the profit and loss a/c. In the statement of total income filed with the return, the assessee excluded this amount from the total income on the ground that the said income was already taxed in the hands of AOP and the share of profit received from AOP is not taxable as per sec. 167B of the I T Act. On the other hand, the case of the Assessing Officer is that the assessee has not received share....
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....ed business income and consequential claim u/s 80IB(10) on that amount needs to be accepted. 3. We have heard the Ld. AR as well as the Ld. DR and considered the relevant material on record. At the outset we note that an identical issue has been considered and decided by this Tribunal is assessee s own case for the assessment year 2007-08 vide order dated 12.10.2012 in ITA No.2648/2012 in para 5.5. to 5.7 as under: "5.5 We have carefully considered the version of Ld. CIT in the light of available on our record. We have carefully gone through the clause-7 of the agreement and the distribution of revenue by the assessee in its account. The distribution of the revenue in the account of the assessee is in accordance with intent and purpos....
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....ction. The quantum of deduction under section 80IB (10) will depend on the income earned from eligible project. The quantum of deduction will not depend upon the mode of distribution of shares amongst the members of AOP as income of AOP is taxable at maximum marginal rate. Therefore, manner in over eligible quantum of deduction under section u/s. 80IB (10) as the eligible quantum will be gross receipts from the project reduced by expenses incurred on the project. It is not even the case of Ld. CIT that assessee AOP is not entitled to get the benefit of deduction under section 80IB (10). The only objection of Ld. CIT is that distribution of revenue in the account of the assessee is inappropriate and by this manner assessee has been benefited....
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.... of the assessee is in accordance with clause-7 of the agreement and manner of allocation of profit in the account cannot alter the quantum of deduction available to AOP under section 80 IB(10). 4. The facts for the assessment year 2007-08 and for the assessment years under consideration are identical as this issue is regarding the clause 7 of AOP agreement dated 29.4.2003. Accordingly following the earlier order of this Tribunal we decide this issue in favour of the assessee. The orders of the authorities below qua this issue set aside." 7.2 Since the Mumbai Bench of the Tribunal in the case of the AOP has categorically held that 35% share received by SPPL was not in the nature of overriding title to the revenue but is only share of ....