TaxTMI 
TaxTMI 
2016 (4) TMI 1232
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....sessee u/s 80IB(10) of the Act, meaning thereby, the other buildings not part of eligible project and the assessee has satisfied all the conditions mentioned in the section. It was further contended that simply because the lay out plan was for the entire land, which was common for various buildings, does not mean that the term "housing project" meant all the buildings mentioned in the lay out plans. Plea was also raised that the issue was debatable and went two views are possible which favours the assessee, has to be adopted. It was contended that the building, which was commercial use, the assessee did not make any claim u/s 80IB(10). Our attention was invited to page 58 of the paper book and page 29 of the paper book along with page 30. It was strongly contended that the Assessing Officer after due examination of facts allowed the claimed deduction for which our attention was invited to page-3, para 10.2 of the assessment order. Reliance was placed upon the decision of the Tribunal in the case of M/s Siddhi Real Estate Developers vs CIT (ITA Nos. 2630 to 2635/Mum/2012) order dated 13/05/2014, Malabar Industrial Company Ltd. Vs CIT 243 ITR 83 (SC), CIT vs Max India Ltd. 295 ITR 28....
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....Prince Palace, Thane on 28/08/2008. Survey action u/s 133A was carried out at the business premises of the assessee at B-103 Allmanda, pride park, Thane (W) and A-Wing, Norita Building, pride park, Thane (W). Notice u/s 153A of the Act was served upon the assessee on 16/07/2009 to which the assessee filed return of income on 17/08/2009, declaring total income of Rs. 5,63,000/-, after claiming Rs. 1,05,29,951/- as deduction u/s 80IB(10) of the Act. Subsequently, vide letter dated 11/11/2010, the assessee furnished computation of income, profit & loss account, audit report u/s 44AB(in Form 3CB and 3CD) along with its enclosure. The ld. Assessing Officer issued/served notice u/s 143(2) dated 20/08/2009. Another notices u/s 143(2) and 142(1) along with questionnaire were duly served upon the assessee on 22/10/2010. The assessee, in response to aforesaid notices, attended the proceedings from time to time and furnished necessary details as is evident from para 4 to 6 of the assessment order. During the relevant previous year, the assessee was engaged in the development of project namely "Pride Park" Phase-II and Phase-III and Chithalsar, Manpada, Thane(W). The assessee prepared separate....
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....nd hence, the deduction u/s 80IB(10) was not available to the appellant. c. The assessee's claim that the eligible project Pride Park II consisted of buildings C (Ochana) and D (Allamanda) was not justified and the project for the purposes of section 801B(10) meant all the buildings proposed in the layout plan. d. The entire land under development at Chitalsar-Manpada, Thane, on which several buildings were constructed constituted a single project for the purposes of section 801B(10) of the I. Tax Act. e. The Thane Municipal Corporation had also clarified that the housing project comprised of buildings A, B. C, D, E and F and the claim of the assessee that the eligible housing project consisted only of buildings C and D only was not justified. 2.6. If the aforesaid observations of the ld. Commissioner are analyzed with the facts of the present appeal, the ld. CIT ignored the factual matrix that the eligible housing project, for which claimed deduction u/s 80IB(10) of the Act was made, were consisting of building C (Ochana) and D (Allamanda) and the remaining buildings were not part of the eligible project. It is also noteworthy that even the ld. Assessing Officer has....
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.... building includes one building "Pride Plaza" which houses commercial establishments and other buildings were for residential units/\ under the project name "Pride Park". The assessee had shown a net profit of Rs. 12,89,205/- on total sales of Rs. 49,96,960/- which includes gains on transfer of development rights of Rs. 10,00,000/- which was separately shown as net profit. On the balance sales of unsold flats of Phase I of the housing project "Pride Park", amounting to Rs. 39,96,960/-, during the year under consideration, a net profit of Rs. 12,89,205/- was worked out and has been claimed as exempt under Section 80IB(10). The Assessing Officer has rejected the claim on the ground that as per the approved plan of housing project Phase 1 of the "Pride Park", the commercial units have also been constructed and sold along with the residential units having area of 1598 sq.mt The assessee's contentions have been that both the projects were independent and distinct even though they were covered under the same sanctioned plan of the local authority. Both projects were located at a distance and the account of both the projects have been separately maintained. 3. Before the CIT(A), the as....
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....any case, this issue now stands covered by the decision of the Hon'ble Jurisdictional High Court in the case of Brahma Associates (supra), wherein it has been held that existence of commercial units in a project commenced and completed prior to 01-04-2005, will not have any adverse impact on the claim for deduction u/s. 80IB(10). In this case, it is an undisputed fact that housing project has been commenced on 23.1.2003 and was completed on 12-2-2004 i.e. much before 1-4-2005. Thus, following the decision of the Hon'ble High Court, we do not find any substance in the grounds raised by the department and is accordingly dismissed. 6. In the result, the appeal of the department is dismissed." 2.8. It is noteworthy that in the aforesaid order while coming to a particular conclusion, the Bench duly considered the decision of the Special Bench of the Tribunal in the case of Brahma Associates and other decision like M/s Saroj Sales Corporation and further which was duly affirmed by Hon'ble jurisdictional High Court in CIT vs Brahma Associates (2011) 333 ITR 289, holding that existence of commercial units in a project commenced and completed prior to 01/04/2005 will not have any adver....
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....-19.06.2007 Allamanda-24.08.2007 (Occupation certificates from TMC enclosed as Annexure "C1 to C2") (v) Built up area of units Less than 1000 sq. Feet. (As per statement giving flat wise built up area enclosed as Annexure "D1 to D2") (vi) Commercial establishment NIL-Entire project is residential housing project (vii) Layout plan Copy of layout plan sanctioned by TMC for construction of housing project is enclosed as Annexure "E" Apart from the above, I submit that I have maintained books of accounts giving phase wise details of income and expenditure and accordingly the phase wise profit of the project can be computed. The audited financial statements also provide the exact phase wise profit in respect of each of the phases distinctly. The books of accounts are audited and necessary audit report in form no. 10CCB filed in support of the claim. A copy of the layout plan sanctioned by the TMC for construction of building "Ochna" & "Allamanda" is enclosed as Annexure "E". In the said regards, we clarify that as per the regulations of the Municipal Corporation. It is mandatory to reflect existing buildings already constructed on any plan put up for new construction. It i....
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....lack of enquiry" even if the enquiry was termed inadequate. The Tribunal found that complete details were filed before the Assessing Officer and that he applied his mind to the relevant material and fact, although such application of mind was not discernable from the assessment order. The Tribunal held that the Commissioner in proceedings u/s. 263 also had all these details and materials available before him but had not been able to point out defects conclusively in the material, for arriving at a conclusion that particular income had escaped assessment on account of non-application of mind by the Assessing Officer. The Tribunal was right and the order of revision was not valid." 2.13. The aforesaid order clearly fits into the facts before us. While coming to the aforesaid conclusion the Hon'ble High Court duly considered the decision in CIT vs. Sunbeam Auto Ltd. (2011) 332 ITR 167 (Del.) (para-6 & 7). We are expected to ascertain whether the Assessing Officer had investigated the issue and applied his mind towards the whole record made available by the assessee during assessment proceedings. Uncontrovertedly, necessary details were produced by the assessee and examined by th....