TaxTMI 
TaxTMI 
2021 (2) TMI 80
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.... U/s 234B same may please be deleted. 4. Appellant prays for just and equitable relief. 5. Appellant prays to add, alter, amend, modify, explain and / or withdraw the Ground/s as occasion may demand. 6. Appellant prays for Stay of Demand." 3. Briefly, the facts of the case are as under :- The appellant is a partnership firm. It is engaged in the business of promoters, developers and builders. The return of income for the assessment year 2007-08 was filed on 20.09.2007 declaring a total income of Rs.Nil after claiming a deduction u/s 80IB(10) of the Income Tax Act, 1961 ('the Act' for short). Against the said return of income, the assessment was completed by the Income Tax Officer, Ward-11(4), Pune ('the Assessing Officer' for short) vide order dated 20.11.2009 passed u/s 143(3) of the Act at a total income of Rs. 4,85,54,596/- disallowing the claim for deduction under clause (10) of section 80IB of the Act, 1961. 4. The relevant facts of the above said disallowance u/s 80IB(10) of the Act are as follows :- During the period under consideration, the appellant firm had developed one residential project, namely, "Padmaja Park" at Survey No.10, Ka....
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.... per the 7/12 extracts out land area is only 4000 sq.mtrs. It is submitted that the difference in the area between the actual area and as per the title deed is only on account of conversion factor i.e. while converting the land from Guntas into Ares by the Revenue authorities. (b) On actual measurement of land in the presence of the Assessing Officer by the Department Valuation Officer, the actual area was 44876 sq.ft./4170.60 sq.mtrs. (c) The area earmarked for road widening should be also considered as a part of the land as the FSI was received. 6. The assessee also placed reliance on the CBDT Circular No.05 of 2005 which mentions that the area limit of plots were construed with reference to the area of the size on which the housing project was constructed not with reference to the demarcation of the land development authority. 7. On consideration of the above explanation, the Assessing Officer vide para 7.1 of the assessment order held that the area as per 7/12 extracts can only be considered and the area over and above mentioned in 7/12 extracts may be considered as an encroachment or any other means. The Assessing Officer observed that as per sanction p....
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....It is further submitted that the eligible criteria for the purpose of exemption should be examined strictly. He also drawn our attention to the approved housing project plan of Municipal Corporation placed at page 85 of the Paper Book wherein the gross area of the project is only considered as 4000 sq.mtrs. which less than the one acre of land. He further submitted that the area left for road widening should not be considered as area available with the project and he placed heavily reliance on the orders of the authorities below to deny the exemption u/s 80IB(10) of the Act. 13. We heard the rival submissions and perused the material on record. The only issue in the present appeal relates to the allowability of deduction under clause (10) of section 80IB of the Act. From the perusal of the assessment order, it is clear that the primary reason for denial of exemption of deduction u/s 80IB(10) of the Act is that the size of the plot of total area of land on which the housing project was undertaken was less than one acre. The total area of the land is 4722.45 sq.mtrs. which is actually available to the appellant. This fact was not disputed by the Assessing Officer which is ev....
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.... an Arbitrator of land disputes. The concept of ownership of the land is alien to the provisions of section 80IB(10) of the Income Tax Act. Therefore, we do not see any reason for Assessing Officer to go into the issue of ownership at all. It is trite law that it is well settled while interpretating the statute, particularly the taxing statute nothing can be read into the conditions which has not been provided by the Legislature. The conditions which are not made part of section 80IB(10) of the Act, namely that of owing the land which the assessee develops cannot be supplied by any purported legislative intent. There can be hundred one reasons as to why there is a discrepancy between the actual area and the area as per land revenue records of the government. The reasons which are within the exclusive knowledge of the appellant were explained to the AO. The Ao had not controverted these reasons. 14. Further, the Assessing Officer had given finding of fact that the Municipal Authority had sanctioned the permissible area of construction with reference to the area of 4000 sq.mtrs. But the Assessing Officer had failed to take note of the fact that the application for grant of approva....
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....n Jaychandbhai Patel and others vs. Vithalbhai Jaychandbhai Patel and others (1996) 6 SCC 433). 19. This authority in turn was considered by this Court in Param Dev and others vs. State of Himachal Pradesh and others 2014 (2) Shim.L.C. 928 : Param Dev and others vs. State of H.P. and others 2014 (1) Latest HLJ (HP) 440, wherein it was observed as under: "7. It is well settled law that mutation does not confer any title. The mutation proceedings are summary in nature and are only for fiscal purpose to determine the land revenue and cannot be considered to be evidence about title. The Hon'ble Supreme Court in Sankalchan Jaychandbhai Patel and others vs. Vithalbhai Jaychandbhai Patel and others (1996) 6 SCC 433 held as under:- " Mutation entries are only to enable the State to collect revenues from the persons in possession and enjoyment of the property and the right, title and interest as to the property should be established dehors the entries. Entries are only one of the modes of proof of the enjoyment of the property. Mutation entries do not create any title or interest therein" (Para 7). 8. In Smt. Sawarni vs. Smt. Inder kaur and others AIR....
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....r can statutory presumption be drawn on the same, particularly, in the absence of corroborative evidence. The respondent cannot claim to have acquired title over the suit property by pleading adverse possession only in the absence of the name of the appellants in the revenue records. In tKishan Singh (Dead) v. Arvind Kumar. 1994 6 SCC 591 and P.T Munichikkanna Reddy v. Revamma 2007 6 SCC 59, this Court held that in cases where the possession was initially permissive, the burden lies heavily on that person alleging adverse possession to prove that the possession has become adverse. Mere possession for long time does not convert permissive possession into adverse possession." 16. Thus, we dispel the reasoning of the lower authorities in denying the exemption u/s 80IB(10) of the Act. Accordingly, we set-aside the order of the lower authorities and direct the Assessing Officer to allow the deduction u/s 80IB(10) of the Act. 17. Before we part with present order, we will be failing in our duty if we do not advert to the wild charge made by the AO against the assessee that he would have encroached upon the neighbour land. This observation is not supported by any records. It is a me....