TaxTMI 
TaxTMI 
TaxTMI 
2017 (5) TMI 707
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....10) of the Act. The assessee carried the matter before the learned Commissioner of Income-tax (Appeals) who granted relief to the assessee. Now the aggrieved Revenue is before the Tribunal challenging the relief granted to the assessee by the first appellate authority for the assessment year 2010-11. 4. It is also relevant to mention that in the assessment years 2011-12 and 2012-13, the Assessing Officer again denied deduction under section 80- IB(10) of the Act which was also confirmed by the first appellate authority i.e., the learned Commissioner of Income-tax (Appeals) by passing separate orders both dated February 17, 2016. Now the empty handed assessee is before the Tribunal challenging the action of the authorities below. 5. For the sake of brevity and convenience, first of all we take up the appeal of the Revenue in I. T. A. No. 154/RPR/2013 for the assessment year 2010- 11 wherein the Assessing Officer disallowed deduction and the learned Commissioner of Income-tax (Appeals) allowed deduction to the assessee. 6. The learned Departmental representative, supporting the action of the Assessing Officer submitted that on a perusal of the audit report in Form 10CCB, it was re....
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.... Flat No. IB to Shri Mahavir Surana S/o Shri Sardarmal Surana and Shri Animesh Surana S/o Shri Mahavir Surana and one residential unit/penthouse No. 7D to Smt. Manju Surana, wife of Shri Mahavir Surana respectively, on March 8, 2010 (sale deed executed on May 18, 2010) and initial and final payments for which were made on March 22, 2011 and respectively. Therefore, the learned Departmental representative contended that the assessee did not fulfil the condition specified in the newly inserted provisions of clause (f) of section 80-IB(10) and accordingly, the Assessing Officer was right in holding that the assessee was not eligible for deduction under the said section. The Assessing Officer had rejected the request for allowing proportionate deduction in respect of profit from the qualifying residential units. The learned Departmental representative challenging the conclusion recorded by the learned Commissioner of Income-tax (Appeals) for the assessment year 2010-11 submitted that the learned Commissioner of Income-tax (Appeals) granted relief to the assessee without any basis. Therefore, the impugned order may kindly be set aside by restoring that of the Assessing Officer. 7. Repl....
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....f the Act. 9. The learned Departmental representative also placed rejoinder to the above submissions of the assessee and in all fairness submitted that he is unable to show any contrary decision to the view taken by the hon'ble Madras High Court in the case of CIT v. Arun Excello Foundations Pvt. Ltd. (supra) and in the order of the Income-tax Appellate Tribunal in the case of Mandavi Builders (supra) and Brahma Associates (supra). However, he contended that when the assessee is violating the pre- conditions required for claiming deduction under section 80-IB(10) of the Act, then the entire claim of the assessee should be disallowed and the theory of proportionate disallowance is not permissible by the provisions of the Act. 10. On careful consideration of the above, at the very outset, we note that except some units as noted by the Assessing Officer, in paragraph 4.4 (vi and vii), the Assessing Officer has not made any allegation regarding other units allotted or sold during the financial year 2009-10 relevant to the assessment year 2010-11. We further note that it is not the case of the Assessing Officer that the calculation of claim or quantum of claim placed by the assess....
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.... Tribunal read as under : "2. Brief facts of the case as emanating from the assessment year 2010-11 are that the assessee is a firm which is engaged in the business of building and developing of properties. A search and seizure operation was conducted at M/s. Mandavi Promoters and Developers on February 4, 2011 during the course of which various documents belonging to the assessee were found and seized. Pursuant to the same, notice under section 153C of the Income-tax Act, 1961 (here in after referred to as 'the Act' for short) was issued for the assessment year 2010-11 and during the assessment proceedings under section 153C read with section 143(3) of the Act, the Assessing Officer (AO) observed that the assessee has declared a sum of Rs. 12,26,80,417 as its gross total income and claimed deduction under section 80-IB(10) of the Act on its entire income. The assessee was, therefore, asked to substantiate its claim of deduction by issuance of a show-cause notice dated November 30, 2012. The assessee furnished details and after verification of the same, the Assessing Officer observed that Mandovi Pearl City Project of the assessee consists of 195 flats out of which some o....
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....into agreement with the prospective buyers as early as 2007 and 2008 and some in 2009. He submitted that the assessee cannot be expected to do what was not even in the statute book at the time of allotment of flats. He submitted that since no such prohibition was existing at the time of allotment of flats, the said provisions cannot be made applicable to the assessee subsequently. He relied upon the judgment of the hon'ble Supreme Court in the case of Sanjeev Lal v. CIT [2014] 365 ITR 389 (SC) in support of his contention that by entering into an agreement to sell a residential house, the right in asset gets extinguished and right in personam is created in favour of the intending purchaser and therefore there is a transfer. He submitted that since the assessee had allotted the flats and also received substantial part of the sale consideration, the assessee had created a right in favour of the purchaser and therefore the assessee could not have backed out of the transaction after insertion of clauses (e) and (f) to section 80-IB(10) of the Act in the statute book. Therefore, according to him, the provisions of clauses (e) and (f) cannot be made applicable to the assessee. He als....
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....(10)(c) by the assessee itself. Further, the other objection of the Assessing Officer is that there is a violation of not only clause (c) to section 80-IB(10) of the Act but also of clauses (e) and (f). As per clauses (e) and (f) of section 80-IB(10) not more than one residential unit in the housing project shall be allotted to any person not being an individual and where a person is an individual, no other residential unit in such housing project is allotted to the spouse or minor children of such individual, Hindu undivided family in which such individual is the karta or any person representing such individual, the spouse or the minor children of such individual or the Hindu undivided family in which such individual is the karta. This amendment has come into effect from April 1, 2010. As seen from the details given in the assessment order, except for two transactions, all the transactions have been entered into by the assessee by allotment of flats to the respective persons in the years 2007 and 2008. It is also noticed that first receipt and the blockings have also been made in the respective financial years. Therefore, we agree with the contention of the learned counsel for the....