AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2023 (9) TMI 589
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....ant. 3) That in case of M/s. Om Swami Smaran Developers Private Limited, we have received an assessment order dated March 27, 2015 for Assessment Year 2012-13 issued under Section 143(3) of the Income Tax Act, 1961 ("the Act'). 4) That as per the said the assessment order, we have found that the Company's Returned Income have been enhanced by Rs.1,41,42,520 and a consequential demand of Rs. 25,67,730 have been made against us. 5) That we were advised by our Legal Consultant that the said assessment order is factually and legally incorrect and we have to file an appeal before the Learned Commissioner of Income Tax (Appeals) ['CIT(A)']. The appeal filed against the assessment order was disposed by the Learned CIT(A) vide order dated May 26, 2017 rejecting our appeal. 6) That the order of the Learned CIT(A) was received on June 12, 2017 and therefore the appeal was required to filed before the Hon'ble Income Tax Appellate Tribunal, Mumbai (ITAT) on or before August 11, 2017. 7) That during the period when we have received the order of the Learned CIT(A) (i.e. June 5, 2017 till July 28, 2017), Mr. Nilesh Mehta was on leav....
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....o inadvertent omission on the part of Shri Unnikrishnan Nair N, CA in taking appropriate action to file the appeal. He had a mistaken belief that the appeal for this year was filed by the assessee as there was separate Counsel to take steps to file this appeal before the ITAT. Therefore, we have to consider whether the Counsel's failure is sufficient cause for condoning the delay. The Madras High Court considered an identical issue in the case of Sreenivas Charitable Trust v. Dy. CIT (280 ITR 357) and held that mixing up of papers with other papers are sufficient cause for not filing the appeal in time. The Madras High Court further observed that the expression "sufficient cause" should be interpreted to advance substantial justice. Therefore, advancement of substantial justice is the prime factor while considering the reasons for condoning the delay. 6.1 On merit the issue is in favour of the assessee. But there is a technical defect in the appeal since the appeal was not filed within the period of limitation. The assessee filed an affidavit saying that the appeal was not filed because of the Counsel's inability to file the appeal. The Revenue has not filed any counter af....
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....d by Apex Court, if the application of the assessee for condoning the delay is rejected, it would amount to legalise injustice on technical ground when the Tribunal is capable of removing injustice and to do justice. Therefore, this Tribunal is bound to remove the injustice by condoning the delay on technicalities. If the delay is not condoned, it would amount to legalising an illegal order which would result in unjust enrichment on the part of the State by retaining the tax relatable thereto. Under the scheme of Constitution, the Government cannot retain even a single pie of the individual citizen as tax, when it is not authorised by an authority of law. Therefore, if we refuse to condone the delay, that would amount to legalise an illegal and unconstitutional order passed by the lower authority. Therefore, in our opinion, by preferring the substantial justice, the delay of 2819 days has to be condoned. 6.3 The next question may arise whether 2819 days was excessive or inordinate. There is no question of any excessive or inordinate when the reason stated by the assessee was a reasonable cause for not filing the appeal. We have to see the cause for the delay. When there wa....
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....ronouncement of the Judgment of the Apex Court. Furthermore, the Revenue has not filed any counter-affidavit opposing the application of the assessee for condonation of delay. The Apex Court in the case of Mrs. Sandhya Rani Sarkar vs. Smt. Sudha Rani Debi (AIR 1978 SC 537) held that non-filing of affidavit in opposition to an application for condonation of delay may be a sufficient cause for condonation of delay. In this case, the Revenue has not filed any counter-affidavit opposing the application of the assessee, therefore, as held by the Apex Court, there is sufficient cause for condonation of delay. The Supreme Court observed that when the delay was of short duration, a liberal view should be taken. "It does not mean that when the delay was for longer period, the delay should not be condoned even though there was sufficient cause. The Apex Court did not say that longer period of delay should not be condoned. Condonation of delay is the discretion of the Court/Tribunal. Therefore, it would depend upon the facts of each case. In our opinion, when there is sufficient cause for not filing the appeal within the period of limitation, the delay has to be condoned irrespective of the d....
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....ed that during the year assessee has declared sales at Rs.. 2,17,00,000/- and after debiting expenses net profit of Rs.. 1,37,00,520/-. Assessing Officer observed in revised computation of total income that assessee has claimed deduction u/s. 80IB(10) of the Act amounting to Rs.. 1,65,88,576/- in respect of the profit earned from SRA project undertaken during the current year. He observed that as per Form no. 10CCB the project was commenced on 18.12.2006, this being the second assessment year where deduction u/s. 80IB(10) of the Act being claimed by the assessee. during the assessment proceedings assessee was asked to justify the claim of deduction u/s. 80IB(10) of the Act. During the year Assessing Officer observed that assessee has allotted three flats bearing No. 201, 501 and 205 to Mr. Dwarkanath Tewari through the allotment letter dated 03.02.2010. However, assessee has not submitted any evidences of allotment. Further, he observed that in the statement of stock of flats as on 31.03.2010 the assessee has clearly mentioned that Mr. Dwarkanath Tewari has booked the flats 201, 501 and 502 with allotment letter dated 03.02.2010. However, the agreement is yet to be registered and a....
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.... Act on pro-rata basis is also not acceptable as the Income-tax Act does not allow such deduction on pro-rata basis and hence the same is rejected. Accordingly, he disallowed he claim made by the assessee u/s. 80IB(10) of the Act. 10. Aggrieved assessee preferred an appeal before the Ld.CIT(A) and filed disallowance as under: - "The Appellant respectfully submits that even though more than one flat have been sold to particular individual, it is highly injustice to disallow the entire claim made under Section 80IB(10) of the Act. Instead of this, disallowance should have been made on the proportionate basis to the extent of 2 flats sold to the same individual. Accordingly, the provisions of Section 80IB(10) of the Act should be interpreted liberally. Further, it is submitted that even if the units constructed are both smaller and larger units with reference to the stipulated area, the profit derived from the construction of the smaller units i.e., within the stipulated area of 1,000 sq.ft. built-up area ought to be' allowed as deduction under Section 80IB(10) of the Act. Accordingly, the theory of pro-rata deduction has to be approved. In support of....
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....before the appeal hearing." 13. At the time of hearing, Ld. AR of the assessee submitted that the issue under consideration is the claim of deduction u/s. 80IB(10) of the Act and this being the second year of claim, he submitted that assessee has taken up the project of slum rehabilitation project and accordingly, assessee has claimed the deduction u/s. 80IB(10) of the Act. However, he agreed that three flats were allotted to one person and it is violation of the guidelines and as per section 80IB(f) of the Act. He submitted that to the extent of violation alone should be considered for disallowing the claim made by the assessee. However, assessee is eligible to claim proportionate deduction, for this proposition he submitted that in assessee's own case for the A.Y. 2011-12 the Coordinate Bench has decided the issue in favour of the assessee. Copy of the order in ITA. No. 6355/Mum/2014 dated 31.01.2018 is placed on record. 14. On the other hand, Ld.DR relied on the findings of the lower authorities. 15. Considered the rival submissions and material placed on record, we observe from the record that assessee is carrying on slum rehabilitation project and accordingly, complet....
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....isputedly, except violation of conditions of clause-(f) of section 80IB(10) of the Act in respect of two flats, all other conditions of section 80IB(10) of the Act are fulfilled in respect of the housing project which is evident from the fact that there is no other allegation made by the Assessing Officer. Therefore, in our view, for violation of conditions of clause-(f) of section 80IB(10) of the Act in respect of two flats, the deduction for the entire housing project or in respect of other flats which otherwise are complying to the conditions of section 80IB(10) cannot be disallowed. The disallowance, if any, has to be restricted to the flats which violate the conditions of section 80IB(10). The Hon'ble Jurisdictional High Court in CIT v/s Bramha Associates, 333 ITR 289, has held that deduction under section 80IB(10) can be allowed on proportionate basis in respect of flats which fulfilled the conditions of section 80IB(10). The same view was expressed by the Hon'ble Madras High Court in the decisions cited by the learned Authorised Representative. In our view, the ratio laid down in the aforesaid decisions, though, are in the context of clause- (c) of section 80IB(10) o....