TaxTMI 
TaxTMI 
2019 (1) TMI 1926
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....s against deletion of addition of Rs. 65,41,636/- made on account of disallowance of deduction u/s 80IB(10) of the Income Tax Act, 1961 (hereinafter called as 'the Act'). The facts in brief are that the case of the assessee was reopened for assessment and the assessment u/s 143(3) r.w.s. 147 of the Act was framed vide order dated 7.3.2013. The A.O. after considering the submissions disallowed claim of deduction u/s 80IB(10) of the Act in respect of M/s. Aakriti Eco City Project and made addition accordingly. 3. Aggrieved by this the assessee preferred an appeal before Ld. CIT(A), who after considering the submissions deleted the addition made on account of disallowance of deduction u/s 80IB(10) of the Act holding that the assessee is entitled for deduction u/s 80IB(10) of the Act. 4. Against this, the revenue is in appeal before this Tribunal. Ld. D.R. vehemently argued that Ld. CIT(A) was not justified in deleting the addition. He submitted that the A.O. has brought out material facts to infer that the deduction is not available to the assessee. Ld. D.R. strongly supported the order of the A.O. and submitted that it has been categorically observed by the assessing officer th....
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....ers 341 ITR 403, wherein the Hon'ble High Court was of the view that the ownership of the land is not sine-qua-non for claiming deduction u/s 80IB(10) of the Act. Therefore, in our considered view, this objection of the A.O. is contrary to the judicial pronouncements cannot be sustained. Further, the A.O's objection that the assessee is merely acting as a contractor to the customer to whom land is independently sold and there after construction is being done as per agreement. This issue was examined by the Tribunal in original proceedings, wherein it has been decided in favour of the assessee. There is no change into facts and circumstances. Hence, this objection is also not sustained and lastly the A.O. of the view that when the permission from the Nagar Nigam is not valid since same has been taken before acquiring the land, since we have not sustained the objection of the A.O. that ownership of land on which project is claimed to have been undertaken, we therefore, do not find any merit into this objection of the A.O. This objection is also not sustainable. Hence, same is rejected. In view of the above discussion, we do not see any infirmity in the finding of the Ld. CIT(A). ....
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....e Ld. CIT(A). Same is hereby upheld." 8. Therefore, taking a consistent view, we do not see any infirmity in the order of the Ld. CIT(A) and the same is hereby upheld. 9. Now we taken up cross objection of the assessee in C.O. No.19/Ind/2016, wherein the assessee has raised following grounds of appeal: "On the facts and in the circumstances of the case, the lower authorities were not justified in making the disallowance of expenditure u/s 14A at Rs. 64,96,645/- said to have been incurred in relation to the income which did not form part of total income under the Act or otherwise." 10. The only effective ground in the cross objection is related to disallowance of expenditure by invoking the facts giving rise to the present cross objections are that the assessing officer while framing assessment u/s 143(3) of the Act, the A.O. observed that from the balance sheet of the assessee company, it was noticed that it had shown investment of Rs. 10,04,97,600/- as on 31.3.2010 in equity shares/share applications of various group companies. It was observed that there was investment of Rs. 6,82,39,760/- in equity share/share application of these companies as on 31.3.2009 and t....
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....f counsel of the assessee. He submitted that the assessee cannot blow hot and cold at the same time. He submitted that the counsel for the assessee under the instruction of the assessee consciously had withdrawn ground. Hence, the assessee cannot be allowed further opportunities. 13. We have heard the rival submissions, perused the materials available on record and gone through the orders of the authorities below. In this case, the contention of the assessee is that the judicial pronouncement wherein it has been held that if the assessee has not earned exempt income in a particular accounting year, the resort to section 14A of the Act cannot be adopted. It is also submitted that there is no estoppel against the law. We have given our thoughtful consideration to the submission of the assessee. Admittedly, the assessee had not pressed ground against invoking the provisions of section 14A of the Act. In the ordinary circumstances, the assessee would have not been given an opportunity, but in the present case where the judicial pronouncement came later to the assessee's withdrawal of the ground, we deem it proper in the interest of justice that atleast an opportunity by the Ld. CIT(....
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....CIT(A) order. It is clear that the land in the case of Aakriti Green belonged to Palash Housing Society. It was held by the Id CIT(A) that the assessee acted as a developer of the project. The project Aakriti Green was entered into in similar circumstances by the assessee as that of the Aakriti Eco-city. 4. This decision of the Id CIT(A) was accepted by the department, and only on ground of completion certificate, appeal was filed to the Hon'ble ITAT. The Hon'ble ITAT in para 6 of its order (quoted by Id CIT(A) at pg. 12) held that first four objections have been decided by the Id CIT(A) in favour of assessee. The department has not filed appeal before the Hon'ble ITAT, and the only issue raised was completion certificate. 5. A.Y. 2008-09 and A.Y. 2009-10: - It is also a pertinent fact that in respect of the said projects, in exactly similar facts, the same AO himself has not drawn any adverse inference against the same assessee and has allowed the deduction u/s. 80IB(10) for A.Y. 2008-09 and A.Y. 2009-10 vide Order passed u/s. 143(3). PB 97. 6. However, the Id AO again reopened the assessment u/s. 147 (for current A.Y. 2007- 08) and made d....
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.... facts, it may be seen that the building permission was obtained and could have been obtained only after the agreement between the assessee and the parties. Objection No. 2: In respect of Project Flamingo, the company obtained the land under the joint venture agreement and therefore, it was not entitled to deduction u/s. 801B(10). Submissions: PB 196-223. This objection is about the land obtained under the registered power of attorney from Hansraj Kamdar and relates to the project Flamingo. The appellant obtained 4.93 acres of land from Hansraj Kamdar by their affidavits on 18.02.2005 and later on reaffirmed by the joint venture agreement on 28.04.2006 and supplementary agreement on 06.11.2006. On the basis of the affidavits, the appellant got the building permission on 17.01.2006 in the name of Aakriti Dwelling P Ltd. Your honour will appreciate that for deduction u/s. 80IB(10), it is necessary that the developer-cum-builder should have developed the land and should have constructed the dwelling units which the appellant has done. It is not necessary that he should also be the owner of the land. In this connection, the appellant reli....
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....rred all the expenditure on the development of complete network of roads, sewer lines, water supply lines etc. They laid down the electricity lines and got the load of the same sanctioned for whole of the colony including street lights and common areas. f. They reserved their rights to decline to hand over the possession of duplex/flats on the breach of conditions. g. In the meantime, they got the registration of the plot/ structure done in favour of the customers. However, the above said registration of plot/ structure did not any way affect their responsibility towards the undertaking given to the customers to develop the project. The registration of plot/ structure was in the sense of security given to the banks and financial institutions so that they may grant the loans and release the instalments to the customers. The Id AO found that the appellant registered the structure of the flat in the name of the customer Shri Sandeep Patil and Smt. Sujata Patil but he overlooked the fact that they had handed over the complete flat to them within the stipulated time. The copies of accounts of all the above said customers in the books ....
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....for construction of house. (b) Registry of land. It was observed in para 7 in Paras Housing Pvt Ltd. 22 ITJ 273 (Trib. Indore): - "7. As per the prevailing practice in the market normally all the prospective buyers purchase flat/ bungalow, are interested to avail housing loan facility from different financial institutions/ banks. The financial institutions/ bank insist for the execution of the sale deed before completion of the units to safeguard their interest. These agreements have been executed by the assessee before execution of sale deed and in the agreement for sale, the total cost of flat is mentioned and nowhere the bifurcation of the amount of plot and amount of finished work has been mentioned. We also found that builders are asking the buyers to pay the total amount of flat at different stages based on the progress of the project. it is evidenct from the agreements submitted before the Assessing Officer that entire cost of flat and other charges were demanded from the buyers within a period of two months which further indicate that the flats were already completed and the possession was handed over to the buyers immediately....