TaxTMI 
TaxTMI 
2017 (6) TMI 770
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssessing the said income again for Assessment Year 2010-11 on Protective Basis is completely unjustified and uncalled for. 3. The Learned CIT(A) has erred in confirming the disallowance of Rs. 6,27,167/- which represents amount payable to Architect M/s Ajay wade & Associates out of his total bill of Rs. 21,80,111/- therefore, disallowances of outstanding payment is completely unjustified. 4. The Learned CIT (A) has further erred in not appreciating the fact that the said outstanding payment of Rs. 6,27,167/- represents expenses accrued and due during the year and paid subsequently, therefore disallowances of the same is completely unjustified." Ground Nos.1 & 2: 2. At the outset, the Ld. Counsel for the assessee has stated that the impugned additions which have been contested vide ground Nos.1 & 2 of the appeal were made on protective basis pursuant to order dated 25.04.2013 passed by the Ld. Commissioner of Income Tax. He has further stated that the said order dated 25.04.2013 passed under section 263 of the Act has been quashed by the Tribunal vide order dated 18.05.15 passed in ITA No.4498/M/13. In view of this, ground Nos.1 & 2 have become infructuous at this stage.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d by Finance Act 2012 i.e. the assessee is eligible for additional depreciation on windmill only from 01.04.2013." (ii) On the facts and in the circumstances of the case and in law, the Ld CIT(A) erred in allowing the claim of deduction u/s 80IB(10) of the I.T.Act,1961of Rs. 7,79,043/- despite the fact that the assessee do not fulfill the conditions prescribed in this section. (iii) On the facts and in the circumstances of the case and in law, the Ld CIT(A) er red in not considering the fact that the Commencement Cer t i f icate for the project was is sued in the name of M/s Dhruv Construction to develop Wings A, B & C under a common approval. (iv) On the facts and in the circumstances of the case and in law, the Ld CIT(A) erred in not considering that the joint venture entered into by the assessee in respect to Wing C is an afterthought to segregate the 3 Wings into two firms. (v) On the facts and in the ci rcumstances of the case and in law, the Ld.CIT(A) further erred in not considering that in the approved plan before 1.4.2004, the construction of any commercial unit was not permitted whereas the Wing A & B consisted of shops. (vi) On the facts and in the circumstan....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... would be entitled to additional depreciation under section 32(1). 9. The Ld. D.R. could not point out any differentiating case law against the above stated proposition of law laid down by the Hon'ble Delhi High Court. In view of this, we do not find any force in ground No.I of the appeal and the same is accordingly dismissed. Ground Nos.(ii) to (vi): 10. The Ld. Counsel for the assessee bringing our attention to ground Nos.(ii) to (vi) of the appeal has stated that the same relate to the disallowance made by the AO under section 80IB(10) of the Act. The AO observed that the assessee had not complied with the eligibility requirements as prescribed under section 80IB(10) of the Act. The Ld. Counsel has further invited our attention to para 8 of the impugned order of the Ld. CIT(A) wherein the issue has been discussed. The relevant part of the observations of the Ld. CIT(A) on the above issue is reproduced as under: "8. The next ground of appeal pertains to disal lowance of deduction u/s.80IB(10). The facts of the case are that the appellant has been claiming the said deduction since AY 2004-05 in the fol lowing manner: Assessment year As per IT return filed deducti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion u/s.80IB(10) on both counts. Moreover, it is also seen from the details of flats constructed in wing C the areas of the flat as per BMC approved plan also substantiate the fact the assessee has sold the following flats to person who are relative. Flat No. Name of the purchaser 702/802 Urmila Ladha- CAN & Aniket Ladha 1101/1102 Ali Z Mistry & Mrs. Fasha Mistry 1501/1502 Mr. Alwin Martis & Mrs. Cecelia Martis 1603/1604 Deena Modi - CAN & Renu Modi Can 1801/1802 Dr. Jeet N Yadav & Gyanti yadav 1803/1903/1904 Ravikant Poddar & Vinod Kumar Dharmendra V Poddar The above details also prove that the assessee has merely broken larger flats into two units so as to fall within the permitted area of 1000 sq.ft. and 462 sqJt.(carpet) respectively. It is nothing but adjoining common flats with common amenities like kitchen etc. Only for the purpose of registration it is divided into parts so that the area does not exceed 1000 sq.ft. Similarly flat No.702 & 802 are just one above the other and accordingly for the purpose of deduction is considered as one units as held in the case of K.G. Vyas 16 ITD 195 (Mumbai Tribunal) and 107 ITRD 321 (Mumbai T....
X X X X Extracts X X X X
X X X X Extracts X X X X
....AO and has stated that since as per the Sales Tax Department the said trader was indulged in bogus billing, hence the additions have rightly been made by the AO. 14. On the other hand, the Ld. Counsel for the assessee has relied upon the findings of the Ld. CIT(A) and has submitted that in the light of various case laws on this issue the additions so made by the AO have rightly been deleted by the Ld. CIT(A) relating to this issue. He has brought our attention to the decision of the Hon'ble Gujarat High Court in the case of "CIT vs. M.K. Brothers" (1987) 163 ITR 249 wherein it has been held that where there was nothing to indicate that the amount given by the assessee for the purchases made had come back to the assessee in any other form and where there was no evidence that the said concerns gave bogus vouchers to the assessee and even the statements made by the alleged suppliers in no way implicate the transaction with the assessee then under such circumstances it cannot be said that entries for the purchase of goods made in the books of account of the assessee were bogus and no addition in this respect can be made. The Ld. Counsel for the assessee has further relied upon the d....