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2019 (11) TMI 1745
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....aphs. 4. The facts and grounds are common in both the appeals, therefore, both the appeals were heard together and are being disposed of by this composite order. Accordingly, the appeal-wise adjudication is taken up in the following paragraphs. ITA No.2795/PUN/2016 - A.Y. 2012-13 5. Facts: The assessee is a builder and undertook a Residential Project named "Midori Phase-I" i.e. the construction of flats. The assessee filed the return of income declaring Nil income after claiming deduction u/s 80IB(10) of the Act. The case was selected for scrutiny under CASS and the assessment was made determining the total assessed income of Rs.63,00,000/- for the assessment year 2012-13. Rs.31,49,800/- was the assessed income for the assessment year 2013-14. During the assessment proceedings for the assessment year 2012-13, the Assessing Officer noted that the assessee claimed deduction of Rs.13,22,98,018/- u/s 80IB(10) of the Act in respect of its project namely "Midori Phase-I". An amount of Rs.10,67,79,215/- was claimed as deduction (supra) for the next assessment year 2013-14. In principle, the assessee recognised income of the project on "Project Completion Method-cumthe event of Sa....
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.... on the "event of sale of flats cum Project Completion, the income was recognised by the assessee in assessment years 2012-13 and 2013-14 and claimed the deduction u/s 80IB(10) of the Act on the said income. However, the construction of club house remains an obligation by the assessee to the flat owners. 8. Club House Collections (CH Collections): In the context of the said need for club house construction, the assessee started collecting the subscription separately from the flat buyers at the rate of Rs.75,000/- per flat owner. Thus, assessee collected total amount of Rs.99,00,000/- in 3 years i.e. Rs.63,00,000/- in the A.Y. 2012-13, Rs.31,49,800/- in the A.Y. 2013-14 - and finally, Rs.4,50,200/- in the A.Y. 2014-15. There is no dispute on these facts (i.e. year of completion of project, project income recognition, collection of club charges separately). The assessee considered all these collections of Rs.99 lakhs, on receipt basis, as income of the assessee in the respective assessment years and claimed deduction u/s 80IB(10) of the Act. Thus, the issues of taxation of "Club House Collections" and the said claim of deduction on these gross collection of Rs.99,00,000/- are the ....
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....t include (i) Restriction of claim of deduction u/s 80IB(10) of the Act on (a) CH Collections received in the year and (b) denial of deductions on the additions on account of cash credit u/s 68 of the Act; and (ii) taxation of said CH Collections of Rs.99 lakhs in all three assessment years without giving credit expenses in any form including preponing to the expenditure actually incurred on the Club House in assessment year 2014-15. 12. CIT(A) : Aggrieved with the above decisions of the Assessing Officer, the assessee filed appeals before the CIT(A). As discussed earlier, the issue for adjudication before him includes (i) taxation of club house subscription of Rs.63 lakhs and denial of deduction u/s 80IB(10) of the Act in respect of club house subscription; and (ii) denial of claim of deduction on the cash credit addition of Rs.1,40,98,445/- relating to the earlier assessment years. CIT(A) passed a composite order for assessment years 2009-10 to 2013-14. 13. CH Collections - Issue: On the issue relating to CH Collections, twin issue of taxation-cum-denial of deduction u/s 80IB(10) of the Act, the CIT(A) held that the club house project was not the part of the original housin....
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....t to have appreciated that club-house was initially approved by the PMC and the club house was a contractual a contractual obligation of the appellant anyway. 3. The learned CIT(A)-12 and the learned AO erred in law and on facts in not appreciating that non-mention of a facility / amenity in the approved building plan does not lead to a proposition that the related revenue / profit from such amenity is not a part of profits derived from the said housing project. The learned IT-Authorities ought to have appreciated that the said profit from club-house facility was a part and parcel of a housing project and incidental thereto. 4. Alternatively and without prejudice to Ground No. 2, & 3, the learned CIT(A)-12 and the learned AO erred in law and on facts in not granting the deduction of corresponding expenditure required to be incurred for the construction & development of the club-house. 5. Alternatively and without prejudice to the Ground No. 1, 2 & 3, the learned CIT(A)-12 and the learned AO erred in law and on facts in income of Rs. 63,00,000/- being club house not shifting the membership charges, to AY 2014-15 since the related risks and rewards were tra....
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.... 19. Further, ld. Counsel for the assessee filed an affidavit before us on 11.10.2019 making the following assertions :- ".......... 1. Our firm has developed a housing project, profits of which were eligible for deduction u/s 80-IB(10) of the ITA, 1961. Deduction u/s 80-IB(10) of the ITA, 1961; was claimed on the profits, which was allowed by the learned I-T Authorities. 2. Though the deduction u/s 80-IB(10) of the ITA, 1961; was allowed by the I-T Authorities, objection was taken vis-a-vis profits arising from construction of club-house (a part of common amenities assured to the customers). The said objection related to the non-approval of the "club-house" by PCMC. 3. Our firm has filed appeals before the Honorable ITAT, Pune Bench for A.Y. 2012-13 and A.Y. 2013-14 having ITA No.2795-2796/PUN/2016. 4. Vide Ground No.1 to 3, in both the appeals for A.Y. 2012-13 and A.Y. 2013-14, we challenged non-grant of deduction u/s 80-IB(10) of the ITA, 1961 on club-house receipts. Details of the same are as under: a) A.Y. 2012-13 - Rs.63,00,000/- b) A.Y. 2013-14 - Rs.31,49,800/- 5. The said deduction u/s 80-IB(10) of the....
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.... and Rs. 31,49,800/- in AY 2012-13 and AY 2013-14 respectively. Appellant no longer wishes to press the said Grounds. Appellant is filing specific Affidavit in this regard, which is submitted herewith as Annexure-1. 2.2 Ground No. 5 - Shifting of Income of club-house receipts to AY 2014-15: Vide Ground No. 5, appellant is contending that the club-house receipts received during AY 2012-13 & AY 2013-14 should be treated as advance for these years and should be taxed in AY 2014-15. This is because, due to various reasons, club-house could not be completed till 31/03/2012 and was constructed only in AY 2014-15 and was hand-over to the flat owners only in AY 2014-15. As such, all the risk and reward were transferred by appellant in AY 2014-15. Therefore it is submitted that the income from club-house should be 15, taxed in AY 2014- though appellant has erroneously disclosed the same in AY 2012-13 & AY 2013-14. Appellant is also submitting herewith summary of club house receipts and expenses for AY 2012-13 to AY 2013-14, which is submitted herewith as Annexure-2. 2.3 Ground No. 4 - Grant of expenses against club-house receipts: If appellant succeeds at....
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....case of restricting the deduction u/s 80IB(10) of the Act, which is different from a case reducing the returned income. 24. Regarding the assessee's new demand for taxing the CH profits only in the assessment year 2014-15 after granting set-off of the expenses on the club house project, the ld. DR for the Revenue submitted that this issue has clearly come for the first time before the Tribunal and, therefore, the matter can be remanded to the file of the lower authorities. Decision of the Tribunal on the Grounds 25. Ground 1 to 3 not pressed - Affidavit : We have heard both the sides on this limited issue relating to the taxation of club house subscription of Rs.99,00,000/- in all the three assessment years i.e. A.Y. 2012-13 to 2014-15. Before us, assessee filed an affidavit informing their decision to give up the issue raised in ground 1 to 3 of the appeal. Therefore, considering the concession, ground 1 to 3 of the assessee are dismissed as not pressed. 26. Issue of Netting of Expenses - Year of Taxation of Net Profits - the Club House : Regarding the year of completion of the CH, it is born out of the records that the club house (CH) is completed in the assessment ye....
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....its is ideally the assessment year 2014-15 only. Assessing Officer needs to consider it in the remand proceedings. (c) The completion certificate of the Club House issued by the local authority becomes relevant. Assessee claims the CH is completed in the year 2014-15 but no completion certificate is filed before us. (d) The Assessing Officer is also required to examine the genuineness of the expenditure claim of Rs.78,10,182/- in the relevant assessment year. The profits of the Club House has to be examined and quantified with the due process of law. The details relating to the assessment for assessment year 2014-15 are not filed before us. (e) For any other reason, the Assessing Officer decides to not follow the "principle of matching expenses" qua project completion method for this Club House project, the profits of this project may be divided among three assessment years i.e. A.Y. 2012-13, 2013-14 and 2014-15 on 'proportionate' basis by applying the 'principle of matching' qua the subscription received from the flat buyers. (f) The Assessing Officer shall grant reasonable opportunity of being heard to the assessee in deciding the issue. The As....
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....and the learned AO erred in law and on facts in holding that the provisions of section 115-JC of the ITA, 1961 is applicable in appellant's case. The learned IT-Authorities ought to have appreciated the fact that other than MIDORI project (eligible for deduction u/s 80-IB(10) of the ITA, 1961) there was no housing project developed by the appellant. 7. The learned CIT(A)-12 and the learned AO erred in law and on facts in not appreciating the fact that since appellant's only source of income is from housing project eligible u/s 80-IB(10) of the ITA, 1961; appellant will not be in a position to ever utilize the AMT tax credit, as such defeating the intention of section 115-JC of the ITA, 1961. 8. Appellant craves, leave to add / modify / delete all or any of the grounds of appeal." 29. The assessee also raised the additional ground of appeal, which reads as under :- "9. Appellant contends that the provision of section 115-JC of the ITA, 1961 is not applicable to appellant as the MIDORI housing project (eligible for deduction u/s 80-IB(10) of the ITA, 1961) has been sanctioned by the local authority i.e. PCMC on 30/03/2007 and was granted completion certi....
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....nate Minimum Tax (AMT)" at the rate of eighteen and one-half percent where its regular income tax is less than the AMT. AMT at the rate of 18.5% is paid and the adjusted total income as specified in sub-section (2) of section 115JC of the Act. Sub-section (3) of section 115JC of the Act mandates the assessee to file a return from the Accountant certifying the (i) adjusted total income and (ii) AMT along with return of income. The tax credit is available to the assessee in respect of the AMT so paid by the assessee. As per the provisions of section 115JD, the tax credit is available to the assessee upto the 15 assessment years. The section does not provide for refund of the AMT paid by the assessee, if the credit facility is not used for the said 15 years. Further, Midori Phase-I is the only project executed by the assessee and no other project is undertaken by it. As on date, the assessee has no project on hand and on this fact the assessee did not comply with the said provisions of section 115JC of the Act. Considering the fact, the assessee will not have any taxable income. Thus, it is a case of single project venture and there is no change of partners, profits of the housing pro....
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....s no way the credit facility if available. He also ignored the fact that there is no benefit of refund in the tax collected under the AMT provisions. However, he ignored the fact when there is no scope for availing the tax credit or refund facility under the said provisions, the Government never intended to tax the profits of the eligible projects indirectly withdrawing the deduction under the Statute. The CIT(A) ignored this before confirming the order of the Assessing Officer. The CIT(A) also never deliberate on the argument of the assessee how the newly inserted provisions of section 115JC of the Act applied to the projects approved prior to the amended provisions. 36. Aggrieved with the above orders of the lower authorities, the assessee is in appeal before the Tribunal with the above extracted grounds no.5 and 6 and the additional ground. 37. Before the Tribunal: Before us, ld. Counsel for the assessee reiterated the above submissions of the assessee on one hand and filed the following written submissions :- "3. Submission w.r.t. Applicability of section 115-JC of the 1TA. 1961 - AY 2013- 14: 3.1 Ground No. 6 & 7 and Additional Ground No. 9: Vi....
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....tended arm of section 115JB (earlier 115J / 115JA): It is submitted that section 115JC of the ITA, 1961 is only an extended arm of section 115JB (earlier 115J / 115JA) of the ITA, 1961. The change in the tax regime under the said sections is as follows: Period count Year Book Profit Taxation Section MAT/AMT credit section Remark 1 Prior to 1987 - - No any book profit taxation existed in ITA 2 1987-1990 MAT u/s 115J (only companies covered) Deductions restricted due to 115J, were permitted to be carried forward (same as 2) 3 1990-1997 - - - 4 1997-2000 MAT u/s 115JA (only companies covered) 5 2001-2012 MAT u/s 115JB (only companies covered) 115JAA MAT credit entitlement period extended from time to time - i.e. 5 years - to 10 years - to 15 years.... 5 2012-2013 MAT u/s 115JB (for companies) AMT u/s 115JC (for LLPs) (companies + LLP) 7 2013-onwards MAT u/s 115JB (for companies) AMT u/s 115JC (for all other non-company assesses) 115JAA (for all types of assesses paying either MAT or AMT) f) Clarification of vari....
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....d earlier, appellant firm was formed only to develop a single housing project called as MIDORI, which is eligible for deduction u/s 80-IB(10) of the ITA, 1961. If appellant is made liable to pay AMT, there will be no occasion to appellant to claim the credit of the same as there is no any other project envisaged. h) Reliance on the decision of S. K. Venture: It is submitted that the MIDORI project was approved by the local authority i.e. PCMC on 30/03/2007 and was granted completion certificate on 29/03/2012. Whereas, the provisions of section 115-JC of the ITA, 1961 was made applicable to appellant firm from 01/04/2012. As such, when appellant envisaged the MIDORI project which was eligible for deduction u/s 80-IB(10) if the ITA, 1961; there was no any tax which appellant was liable to pay. Considering the doctrine of promissory estoppel, it is submitted that provisions of section 115-JC of the ITA, 1961 is not applicable to appellant. Appellant in this regard is placing reliance on the decision of Honourable Mumbai ITAT in the case of S. K. Venture Vs. ITO - ITA No. 1248/MUM/2018. Copy of the same has already been submitted before the Honourable Bench. In the sa....
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....t undertaken by the assessee has been approved prior to the date of introduction of the provisions of section 115 JC of the Act and also completion of the project. For this, the assessee has raised the following ground: "In the facts and circumstances of the case and in law, the ld CIT(A) erred in sustaining the applicability of the provisions of section 115JC in case of the assessee disregarding the fact that the housing project undertaken by the assessee has been approved prior to the date of introduction of the provision of section 115JC of the Act." 6. Briefly stated facts are that in this case the assessee AOP filed the original return of income by way of e-filing vide dated 30.9.2013 and subsequently the return was revised by e-filing on 31.3.2015. This return has been processed under section 143(1) of the Act and subsequently, the assessment was completed under section.143(3) of the Act vide order dated 30.3.2016 by accepting the returned income except making of disallowance of non payment of MVAT and service tax under section.43B of the Act. The deduction claimed under Chapter VIA under section 80IB(10) in respect of housing project namely; KIrishna Regenc....
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....nt it is bound by the principle of promissory estoppel. Ld Counsel relied on the following paragraphs of the judgement of Hon'ble Supreme Court in the case of Motilal Padampat Sugar Mills Co. Ltd (supra) as under: "On 10th October, 1968 a news item appeared in the National Herald in which it was stated that the State of Uttar Pradesh had decided to give exemption from sales tax for a period of three years under Section 4A of the U. P. Sales Tax Act to all new industrial units in the State with a view to enabling them to come on firm footing in developing stage. This news item was based upon a statement made by Shri M. P. Chatterjee the then Secretary in the Industries Department of the Government. The appellant, on the basis of this announcement, addressed a letter dated 11th October, 1968 to the Director of Industries stating that in view of the Sales Tax Holiday announced by the Government, the appellant intended to set up a Hydro-generation Plant for manufacture of Vanaspati and sought for confirmation that this industrial unit, which they proposed to set up, would be entitled to Sales Tax Holiday for a period of three years from the date it commences production. The Di....
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....m 313(SC), wherein, the Hon'ble Supreme Court has considered this issue of prospectivity and applicability of the provisions vide para 20 to 22 as under: "20) Having regard to the above, let us take note of the special features which appear in these cases: (a) In the present case, the approval of the housing project, its scope, definition and conditions, all are decided and dependent by the provisions of the relevant DC Rules. In contrast, the judgment in M/s. Reliance Jute and Industries Ltd. was concerned with income tax only. (b) The position of law and the rights accrued prior to enactment of Finance Act, 2004 have to be taken into account, particularly when the position becomes irreversible. (c) The provisions of Section 80IB(10) mention not only a particular date before which such a housing project is to be approved by the local authority, even a date by which the housing project is to completed, is fixed. These dates have a specific purpose which gives time to the developers to arrange their affairs in such a manner that the housing project is started and finished within those stipulated dates. This planning, in the context of facts in the....
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.... the provision was substituted. Therefore, it cannot be applied to those projects which were sanctioned and commenced prior to 01.04.2005 and completed by the stipulated date, though such stipulated date is after 01.04.2005. 21) These aspects are dealt with by various High Courts elaborately and convincingly in their judgments. It is not necessary to go into the detailed reasoning given by these High Courts. However, we would like to extract the following discussion from the judgment dated 25.07.2014 of the Bombay High Court in ITA Nos. 201 and 308 of 2012, where this very aspect is answered in the following manner: "36. There is yet another reason for coming to the aforesaid conclusion. Take a scenario where an Assessee, following the project completion method of accounting, has completed the housing project approved by the local authority complying with all the conditions as set out in section 80-IB(10) as it stood prior to 1st April, 2005. If we were to accept the argument of the Revenue, then in that event, despite having completed the entire construction prior to 1st April, 2005 and complying with all the conditions of section 80-IB(10) as it stood then, the ....
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....he profits derived therefrom. We may hasten to add that if a particular condition is not inseparably linked to the date of approval of the housing project, different considerations would arise. However, we are not called upon to decide any such condition and hence we are not laying down any general proposition of law, save and except that clause (d) of section 80-IB(10), being a condition linked to the date of the approval of the housing project, would not apply to any housing project that was approved prior to 31st March, 2005 irrespective of the fact that the profits of said housing project are brought to tax after the said provision was brought into force." 22) At this juncture, we would like to quote the following passage from Commissioner of Income Tax, U.P. v. M/s. Shah Sadiq and Sons (supra) : "14. Under the Income Tax Act of 1922, the assessee was entitled to carry forward the losses of the speculation business and set off such losses against profits made from that business in future years. The right of carrying forward and set off accrued to the assesee under the Act of 1922. A right which had accrued and had become vested continued to be capable of being....
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....ion Town Planning Department is enclosed. In view of these facts, we have considered the arguments made by both the sides and also considered the applicability of the provisions of section 115JC of the Act in the case of the assessee applied by the AO disregarding the fact that the housing project undertaken by the assessee has been approved prior to the date of introduction of the relevant provisions. The assessee is engaged in the construction and sale of immovable property i.e. builders. The housing project undertaken by the assessee was approved by the competent authority and accordingly, assessee claimed deduction under section 80IB of the Act of 100% of the profit from the housing project. We noted that Chapter XII BA i.e. special provisions relating to certain persons other than a company was introduced by the Finance Act 2011 w.e.f. 1.4.2012 and made applicable for and from A.Y. 2012-13 in respect of limited liability partnerships. Further, this provision was made applicable to other categories of persons other than a company with effect from 1.4.2013 by the Finance Act, 2012. Accordingly, the provisions of section 115JC of the Act was made applicable to profit from housing....
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....80IB(10) of the Act, which have come or approved on or after that date. Accordingly, this provision cannot be applied to the projects completed or approved retrospectively upto 31.3.2012. Hence, we allow the appeal of the assessee." 41. The ratio of the above decision of the Tribunal in the case of S.K. Ventures (supra) says that the provisions of section 115JC of the Act is applicable to the projects which come into existence or which are approved on or after that date i.e. 01.04.2013. The said new provisions of the Act are not applicable retrospectively to the projects completed or approved up to the said date 31.03.2012. For supporting the above point of view and in favour of prospective application of amended provisions, ld. Counsel for the assessee relied on the binding judgements in the case of (i) CIT vs. Sarkar Builders, 375 ITR 392 (SC); (ii) CIT vs. Vatika Township (P.) Ltd., 367 ITR 466 (SC); (iii) CIT vs. Brahma Associates, 333 ITR 289 (Bom-HC); and, (iv) Anil Kumar Gopikishan Agrawal vs. ACIT, 106 taxmann.com 137 (Guj-HC). These decisions were pronounced in the context of section 80IB(10) of the Act and the amendment to section 113 and section 153B etc of the Act. ....
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....fect from 1.4.2005. This amendment has already been noted above. The Legislature made substantial changes in sub-section (10). Several new conditions were incorporated for the first time, including the condition mentioned in clause (d). This condition/restriction was not on the statute book earlier when all these projects were sanctioned. Another important amendment was made by this Act to sub-section (14) of Section 80IB with effect from 1.4.2005 and for the first time under clause (a) thereof the words 'built-up area' were defined. Section 80IB(14)(a) reads as under: "(14) For the purposes of this section - (a) "built-up area" means the inner measurements of the residential unit at the floor level, including the projections and balconies, as increased by the thickness of the walls but does not include the common areas shared with other residential units;" 18) Prior to insertion of Section 80IB(14)(a), in many of the rules and regulations of the local authority approving the housing project "built-up area" did not include projections and balconies. Probably, taking advantage of this fact, builders provided large balconies and projections making t....
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....ships' only of the assessee, not of the Department. On the contrary, imposing a retrospective levy on the assessee would have caused undue hardship and for that reason Parliament specifically chose to make the proviso effective from 1.6.2002. 40. The aforesaid discursive of ours also makes it obvious that the conclusion of the Division Bench in Suresh N. Gupta treating the proviso as clarificatory and giving it retrospective effect is not a correct conclusion. Said judgment is accordingly overruled. 41. As a result of the aforesaid discussion, the appeals filed by the Income Tax Department are hereby dismissed. Appeals of the assessees are allowed deleting the surcharge levied by the assessing officer for this block assessment pertaining to the period prior to 1st June, 2002. 3. Brahma Associates Vs. JCIT - 119 ITD 255 (SB) (Pune) 86 ........... ........... The amendment brought about by the insertion of cl. (d) in s.80-IB(10), in our tuhned elersgtiasnladitnugr,e i sh aa ss usbos stapnetciivfei caamlleyn dpmroevnitd aendd i .iet. i1s applicable from the date st April, 2005. 4. CIT V. Brahma Associates - 33....
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.... making of requisition as the trigger point for applying the provisions of section 153B of the Act to assessment under section 153A of the Act. Under section 153C of the Act also, ultimately, assessment or reassessment is required to be made in accordance with section 153A of the Act. Thus, when the amended provisions of section 153C (1) of the Act have been brought into force with effect from 1st June, 2015, it has to be construed that such amended provisions would apply to a search initiated under section 132 or in relation to books of account, other documents or any assets requisitioned under section 132A of the Act after 31st May, 2015. Consequently, in relation to searches carried out till 31st May 2015, it was not permissible for the Assessing Officer to assume jurisdiction under section 153C of the Act as amended with effect from 1st June, 2015." 46. We have also considered the submissions of the assessee relating to 'doctrine of impossibility' qua the adopting the other options available to the assessee in the matter of recognition of income of the project. The assessee now cannot alter the income recognition methods. Assessee had the option to invoke the Percentage Comp....
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.... AMT provisions, had it been following PCM, as the entire construction work was already over before 31/3/2012. Appellant ought not to be subjected to AMT provisions simply because it is following CCM instead of PCM." 47. From the above, we find the assessee is caught unaware legally by the new law brought into statute for the assessment year 2013-14. Thus, we find it is unfair to apply the new section 115JC of the Act to the assessee's project approved in 2007. Considering the above decision of the Tribunal (supra), the commonality of the facts of both the cases and the legal submissions of the AR above, we find it is settled legal issue on the matter at the level of the Tribunal and the provision of section 115JC of the Act need to be applied prospectively only and not to the projects approved in 2007 as in the present case. No other contrary case is brought to our notice by the Revenue for taking any contrary view by us. Accordingly, the additional ground and other related grounds are allowed. 48. Regarding the ground nos.6 and 7, we find the same are basically argumentative in nature. Before us, referring to the said grounds, ld. AR submitted that these grounds revolved ar....