AI Drafter 
TaxTMI 
TaxTMI 
2023 (5) TMI 119
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....the facts are identical in both these appeals, we hereby pass a consolidated order by taking ITA No. 78/Mum/2023 as a lead case. ITA No. 78/Mum/2023 3. The assessee has challenged the solitary issue of addition of Rs.77,50,000/- and Rs.69,12,500/- for A.Y. 2009-10 and 2010-11 respectively made by the Assessing Officer (A.O. for short) by denying the assessee the benefit of deduction u/s. 80IB(10) of the Act. 4. The brief facts of the case are that the assessee is a partnership firm engaged in the business of construction activity styled "M/s. M R Developers" having two partners viz. Shri Raveendra V Tendolkar and Shri Moreshwar K Baria. The assessee firm is said to be a sister concern of Ameya Group namely M/s. Ameya Builders and P....
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....sessee stated that the said seized paper pertains to M/s. M. Baria Developers. The A.O. rejected the contention of the assessee on the ground that along with the said paper,various receipts showing cash payments made to Shri Madhukar Mhatre were also seized which reflect cash payments made by the assessee on various dates in the name of the assessee firm and was duly signed by the receiver of cash on revenue stamp. The A.O. has bifurcated the total payments made to Shri Madhukar Mhatre which aggregated to Rs.90 lacs as below: Assessment Year Amount (Rs.) Remarks 2009-10 46,50,000/- As per page no. 4 to 14 2010-11 43,50,000/- As per page no. 15 to 20 24,00,000/- Difference of Rs.1,14,00,000/- - Rs.9....
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....project which are eligible for deduction u/s. 80IB(10) of the Act and that the seized documents are only related to cash expenditure which does not relate to on-money receipts from the project eligible for deduction u/s. 80IB(10) of the Act. The ld. CIT(A) further held that the assessee has failed to prove the source of the income and that the same was not eligible for deduction u/s. 80IB(10) of the Act. 9. The assessee is in appeal before us challenging the order of the ld. CIT(A). 10. The learned Authorised Representative (ld. AR for short) for the assessee contended that the assessee has income only from one activity which is the housing project constructed under the name 'M. Baria Heights' at Manvel Pada Road, Virar (E) and that t....
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....stantiated the fact that the impugned money was on-money receipts for the project in which the assessee claims section 80IB(10) of the Act. The ld. DR reiterated that the decision of the M/s. Jupiter Construction (supra) relied upon by the assessee are distinguishable on facts in which case the impugned income pertains to section 80IB(10) of the Act project. The ld. DR relied on the order of the lower authorities. 12. We have heard the rival submissions and perused the materials available on record. It is evident that the seized documents pertain to unexplained cash expenditure incurred by the assessee, which the assessee claims to be on-money received by it in cash for its projects M/s. M. Baria Heights, which is eligible for deduction ....
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....of deduction u/s. 80IB(10) on the said amount, the assessee was to be barred u/s. 80A(5) to claim deduction u/s. 80IB(10) of the Act. It is also observed that in the auditor's report in Form No. 10CCB, the impugned cash receipts are not reflected. The A.O. has further held that the initiation of the search proceeding was not entitled to benefit the assessee for making a new claim of deduction or allowance. The A.O. has relied on the decision of Suncity Alloys (P) Ltd. 124 TTJ (Jodhpur) 674 dated 19.08.2009 and Charchit Agarwal 129 TTJ (Del) 438 dated 28.08.2009. 13. From the above facts and circumstances of the case, it can be inferred that the assessee after declaring the impugned amount as additional income has made a fresh claim of de....
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....ted by evidence. The decision relied upon by the assessee in the case of Sheth Developers (P) Ltd. by the Hon'ble Jurisdictional High Court does not hold good for the present case wherein the A.O. did not have a dispute that the undisclosed income was out of business activity of the assessee. Similar is the case in Malponi Estate vs. ACIT [2014] 44 taxmann.com 242 (Pune-Trib) where there was no dispute that the impugned amount was from the business undertaking of housing project. The assessee has also relied on the decision of the Tribunal in the case of its sister concern in M/s. Jupiter Construction (supra) again here the additional income declared by the assessee was said to be the business income derived from the eligible housing pr....