TaxTMI 
TaxTMI 
2023 (12) TMI 637
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.... up the appeal of the assessee for AY 2011-12 in ITA No.3692/Del/2017. 4. The assessee has raised the following grounds of appeal for AY 2011- 12 in ITA No. 3692/Del/2017:- "1. That the impugned order passed by the Ld. CIT (A) is bad in law on facts and in the circumstances of the case. 2. That having regard to the facts and circumstances of the case, the Ld. CIT (A) has erred in law and on facts in upholding the order of the AO that the income from eligible unit(s) in 'Industrial Park', qualifying for deduction u/s 80IA(4) of the Act, is 'Profit and Gains of Business' and not 'Income from House Property', as shown and claimed by assessee, by misinterpreting various decisions relied upon by him and, at the same time, neither considering facts of the case nor distinguishing the decisions relied upon by the appellant. 2.1 That the Ld. CIT (A) in gross violation of judicial discipline and equity has erred in not considering the ratio laid down by the Apex Court 'that where two views are possible, one favorable to assessee is to be followed. 3. That the Ld. CIT(A) erred in law and on facts in upholding the order of the ....
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....rovisions of Section 32(1) of the Act. 8. That on the facts and in the circumstances of the case, the Ld. CIT (A) has erred in law and facts in sustaining disallowance of Rs. 3,38,688 U/s 40(a) (ia) of the Income Tax Act, 1961. 9. That the appellant craves leave to add, amend, alter, change, vary, substitute or raise any additional ground of appeal if it becomes necessary to do so in the interest of justice on or before the date of hearing." 5. Ground Nos. 1 and 9 raised by the assessee are general in nature and does not require any specific adjudication. 6. Ground No. 7 was stated to be not pressed by the ld AR at the time of hearing. The same is reckoned as a statement made from the Bar and accordingly ground No. 7 raised by the assessee is hereby dismissed as not pressed. 7. Ground No. 2 raised by the assessee is challenging head of income under which lease rental earned from the leasing of units in industrial park qualifying for deduction u/s 80IA(4)(iii) of the Act. 8. We have heard the rival submissions and perused the materials available on record. The assessee company was incorporated on 02.03.2006 under Part IX of the Companies Act, 1956 by co....
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....ace, shopping arcades & retail space, service apartments in the processing area, business and/or convention centres, parking, rain water harvesting plant, landscaping, clinic & medical centres, wi-fi and/or wi-Max services etc. in the processing area of SEZ. The assessee company had entered into a Memorandum of Understanding (MOU) along with its addendum for Appointment of Co- Developer Agreement dated 29.01.2007 with M/s DLF Assets Pvt. Ltd. for developing, operating and maintaining the SEZ as a Co-Developer by transferring & handing over specified bare shell buildings located within the project. This MOU of Co-Developer Agreement was approved by the SEZ authorities vide their approval letter bearing Ref. No. F.2/126/2005-EPZ dated 01.05.2007. The clauses of the Addendum to the MOU for appointment of Co- Developer Agreement, inter alia, included that the assessee, being a Developer shall hand over the bare shell buildings to the Co-Developer with the time schedule and the Co-Developer shall pay the development charges to the assessee at the price fixed mutually between the assessee and the Co-Developer. The operations of the co-developer were also approved vide letter dated 19.06.....
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....f deduction. The deduction has been claimed as computed by the Chartered Accountants in Audit Report in Form 10CCB. 10. There is no dispute with regard to eligibility of claim of deduction u/s 80IA(4)(iii) of the Act. It is not in dispute that the assessee has been notified as undertaking of the Central Govt vide notification dated 28.07.2010 running an approved industrial park in terms of section 80IA(4)(iii) of the Act. It is not in dispute that the assessee has exercised its option to claim deduction u/s 80IA of the Act for AY 2011-12 by treating the same as " initial assessment year". The assessee earned rental income from leased building on the basis of lease agreement and offered the same to tax under the head "income from house property" in the return of income. This was sought to be shifted to a different head by taxing it as "income from business and profession" by the lower authorities. The assessee had claimed deduction u/s 80IA of the Act for the aforesaid lease rental income even though the same is offered for tax under the head "income from house property". The assessee had developed office building at Sector 24,25 and 25A, DLF City, Gurgaon and some of the buildin....
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.... on the technical ground that deduction u/s 80IA of the Act is only available in respect of income taxable under the head "profit or gain of business and profession" and as such the lease rental income earned by the assessee is required to be taxed under the head. The ld. AR submitted that the reasoning of the ld. AO is wholly misconceived and against the scheme of the Act. It may be appreciated that the income earned by the assessee is first required to be assessed under the defined heads of income in terms of section 14 of the Act and only thereafter, the benefit of deduction as specified under Chapter VI-A of the Act is to be allowed. Moreover, the rental income from the very same buildings having been assessed and accepted under the head "Income from House Property" in the past, the mere fact that in the year under consideration, the assessee has claimed deduction u/s 80IA of the Act in respect of notified buildings, there is absolutely no justification or basis for changing the head of income and same is self-contradictory and inconsistent. It is worthwhile to clarify that the observation of the ld. AO that the usage of terms 'profits and gains derived from such business&#....
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....f the Id. CIT DR. When the matter had come up for hearing on 09.03.2022, we have specifically asked the Id. CIT DR to go through the order whether there is any material change and the facts or law than the earlier years or there is any different in the present assessment order. However, even on the next date of hearing, no material fact or changes have been brought to our notice instead of stating as above. We do not find that there is any requirement for case record to see what were the documents submitted under SEZ Rules and SEZ Act, because it is neither the case of AO nor the case of ld. CIT (A) that assessee is not eligible or its activities are not falling under the SEZ Act. In fact, the AO has accepted this fact that activity of the assessee squarely falls within the activities approved by the competent authority and Board of Approval under the SEZ Act which has overriding effect in any other Act or even in Income-tax Act. Therefore, in the open court itself, we had rejected the contentions of the ld. CIT DR and we have decided to proceed the issue on merits, as we find, there is no material change at all from the earlier which is discernible from the assessment order or ld.....
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....e from house property - Chargeable as (Letting of shops)- Assessee acquired leasehold rights in a property from MCGB - It constructed various shops and stalls on said property and gave same to various persons on sub-licensing basis - Income generated from sub-licensing was claimed as business income Assessing Officer took a view that since assessee had acquired leasehold right in land for more than 12 years, it was to be regarded as 'deemed owner of premises by virtue of section 27(iiib) - Accordingly, income earned from letting out shops and stalls was taxed under head 'income from house property'- Tribunal as well as High Court upheld order of Assessing Officer Whether since assessee had not established that it was engaged in any systematic or organized activity of providing service to occupiers of shops/s ails, ere act a object clause of partnership deed mentioned that business of assessee was to take premises on rent and to sub-let same, was not sufficient to conclude that income in question was taxable as business income Held, yes Whether, therefore, impugned order passed by authorities below was to be confirmed-Held, yes. b. Shambhu Investment (P.) ltd. v....
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....Y 2012-13 and again in AYs 2017-18 & 2018-19, then we do not find any reason as to why the income from the same activity is not to be classified under the head 'income from house property' in these years. 16. Hon'ble Supreme Court in the case of CIT-I vs. Reliance Energy Ltd. reported in (2022) 441 ITR 346 in the context of section 80IA, held that the scope of section 80IA (5) is limited to determine the quantum of deduction under sub-section (1) of section 80IA by treating eligible business for 'only source of income' and same cannot be pressed into service for reading a limitation of deduction under subsection (1) only to 'business income'. The relevant extract of the judgment of Hon'ble Apex Court reads as under :- "9. The controversy in this case pertains to the deduction under Section 80-IA of the Act being allowed to the extent of 'business income' only. The claim of the Assessee that deduction under Section 80-IA should be allowed to the extent of 'gross total income' was rejected by the Assessing Officer. ........A plain reading of Section 80AB of the Act shows that the provision pertains to determin....
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....#39; only, with which we agree. 13. The other contention of the Revenue is that sub-section (5) of Section refers to computation of quantum of deduction being limited from 'eligible business' by taking it as the only source of income. It is contended that the language of sub-section (5) makes it clear that deduction contemplated in sub-section (1) is only with respect to the income from 'eligible business' which indicates that there is a cap in sub-section (1) that the deduction cannot exceed the 'business income'. On the other hand, it is the case of the Assessee that sub-section (5) pertains only to determination of the quantum of deduction under subsection (1) by treating the 'eligible business' as the only source of income. It was submitted by Mr. Vohra, learned Senior Counsel, that the final computation of deduction under Section 80-IA for the assessment year 2002-03 as accepted by the Assessing Officer, was arrived at by taking into account the profits from the 'eligible business' as the 'only source of income'. He submitted that, however, sub-section (5) is a step antecedent to the treatment to be given to the deductio....
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.... been derived by the assessee is derived from approved activity under SEZ which is the only source of income for which the deduction u/s 80IA(b) is to be allowed. It is immaterial that whether the income derived has been shown from house property or business income or any other head. Thus, we hold that income derived from approved activity from the SEZ is liable to be allowed as deduction u/s 80IA. 18. Otherwise, this issue is covered by the order of earlier year of the Tribunal. The relevant observation of the Tribunal in AY 2012-13 is reproduced as under :- "13. In our understanding, the scheme of SEZ is governed by the provision of law contained under the SEZ 2005. Section 51 of the SEZ Act 2005 provides that the SEZ Act shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. In our considered opinion developing SEZ by itself is the business contemplated u/s. 80 IAB of the Act and the SEZ itself provides that the lease rental income generated in the hands of a developer engaged in setting up of the SEZ, is the ....
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....property, inasmuch as the lessees (who are to be, or presumably so, in infotech business) would be able to undertake their businesses only on the developed property being made available to them, could not therefore but be regarded as the principal activity yielding income from the development of a SEZ. In fact, even the income (to the assessee) from providing ancillary and maintenance services to these businesses arises or stands to arise only on account of, or by virtue of, their being lessees. The lease rental income, on the lease of the house property thereto, would thus, in our view, notwithstanding the use of the words 'profits and gains' and 'business' in section 80-IAB(1), qualify to be eligible for deduction there-under. That is, the lease rental is within the contemplation of the profits derived by a developer of a SEZ from the 'business' of developing it, eligible for deduction u/s. 80-IAB. It is in fact this that forms the basis of the decisions in Coimbatore Hitech Infrastructure (P.) Ltd. (supra) and Global Tech Park Pvt. Ltd. (supra). The head of income under which the said income is assessable, which is on the basis of the source from amongst ....
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....also the decision of the ld AO in the immediately preceding year i.e. 2010-11, the ground No. 2 raised by the assessee is hereby allowed. 14. Ground No. 3 is challenging the action of the ld CIT(A) for excluding signage income amounting to Rs. 3,88,89,411/- from the eligible income qualifying for deduction u/s 80IA of the Act. 15. We have heard the rival submissions and perused the materials available on record. The assessee has derived income from the tenants occupying the notified industrial park and the same duly forms part of the income taxable under the head "Income from House property". The ld AO sought to treat the said signage income to be in the nature of "income from other sources" and as such not eligible for claim of deduction u/s 80IA of the Act, which action was upheld by the ld CIT(A). The signage income is derived from tenants occupying the notified industrial park and thereby partake the same character of the lease rental income so as to make it taxable under the head "Income from house property". We find that this issue is squarely covered by the decision of this tribunal in assessee's own case for AY 2010-11 in ITA No. 4742/Del/2015 dated 02.01.2019, wherei....
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....; and as such is eligible for deduction u/s 24(a) of the Act @ 30% of such income. So, finding no illegality or perversity in the findings returned by ld. CIT (A) on this issue, this ground is determined against the Revenue." 16. It is not in dispute that the signage income is derived from the tenants occupying the building forming part of the notified industrial park. Hence, the same becomes inextricable connected with building connected with the notified industrial park and partakes the same character of lease rental income derived from the tenants thereon. In view of the aforesaid observations and respectfully following the judicial precedent relied upon herein above, the ground no. 3 raised by the assessee is hereby allowed. 17. Ground No. 4 raised by the assessee is challenging the action of the ld CIT(A) in denying the claim of deduction u/s 80IA of the Act in respect of a. amount forfeited on properties- Rs. 62,52,580/- b. promotion income Rs. 99,40,252/- c. Miscellaneous-sale of scrap- Rs. 46,73,191/- by treating the aforesaid income as "Income from other sources" as against the assessee's claim being eligible income eligible for deductio....
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....ark Scheme, the income is nothing else but being derived from the eligible activity qualifying for deduction u/s 80IA (4) (iii) of the I.T. Act, 1961. c. Miscellaneous Income Sale of Scrap - A sum of Rs. 46,73,191 has been shown as sale of scrap under the head Facility Management and Services Income. In this connection, it is submitted that the total income on account of sale of scrap aggregates to Rs. 99,69,217 comprising attributable to business income qualifying for deduction u/s 80IA of the Act Rs. 46,73,191 and other business income Rs. 52,96,026. While carrying out maintenance activity, various materials in the shape of wire, hardware items, sanitary items, etc. are replaced and / or repaired and in the process the wear and tear or the unusable items removed are sold as scrap and income generated there from has been offered to tax as allocable / attributable to the activities referred to herein above. Accordingly, the income generated is derived from the maintenance activities carried out at the buildings i.e. both eligible units qualifying for deduction u/s 80IA of the Act and other buildings." 19. In our considered opinion, the aforesaid incomes have di....
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....he Act to the tune of Rs. 1,13,71,259/-. It is the case of the assessee that signage income of Rs. 3,79,04,198/- has been received from tenants to whom the buildings have been given on rent and not to any outside parties. The lessee was allowed to put signage on the location where their offices are situated which are not advertisement hoardings and the assessee company has not received signage income from any outside party other than the tenants for putting the signage in the company's buildings. Assessee company also relied upon Memorandum of Understanding dated 21.05.2007 entered into between the assessee company and one of the tenants, M/s. Global Space Pvt. Ltd.. The Id. CIT (A) extracted the relevant portion of MoU in the impugned order and the same is reproduced for ready perusal as under :- "Subject to all local laws applicable, Lessor shall through its architect identify the locations and provide space for signage at the atrium/floor occupied by the LESSEE, as approved by the architect and the LESSEE will the allowed to put signage on such location. All taxes including service tax, duties, rates, cesses, costs and charges relating to the signage to the concerne....
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.... these units in the ratio of turnover. The ld AO in his order had not given any rational basis for re-allocating the expenses and simply proceeded to reduce the claim of deduction u/s 80IA of the Act thereon. This action of the ld AO was also upheld by the ld CIT(A) without any basis and by ignoring the fact that the audit certificate containing the detailed workings of claim of deduction u/s 80IA of the Act have already been filed by the assessee before the ld AO. In any case, we find that the issue would be consequential in nature pursuant to the decision given by us in the aforesaid grounds. Accordingly, we direct the ld AO to accept the basis of allocation and apportionment of expenses as given by the assessee. Accordingly, ground No. 6 raised by the assessee is allowed. 25. Ground No. 8 raised by the assessee is challenging the disallowance of Rs. 3,38,688/- u/s 40(a)(i) of the Act. 26. We have heard the rival submissions and perused the materials available on record. The ld AO observed that the assessee had made foreign remittance without deducting tax at source u/s 195 of the Act tabulated as under:- Particulars Country Amount TDS deducted Renewal of Fee....
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....ed by the assessee." 30. The only issue to be decided in this appeal is with regard to workings of budgeted cost of construction on estimation basis for the construction project under Percentage Of Completion Method (POCM). 31. We have heard the rival submissions and perused the materials available on record. The assessee recognized the revenue from the SEZ project by adopting the Percentage Of Completion Method (POCM) upto the end of the previous year. The total square feet area that has been constructed and handed over to DAL, the revenue has been recognized by the assessee by showing total budgeted development income from the entire project from the sale of 36.49 lakhs square feet area for Rs. 4053.31 crores and total budgeted cost has been reflected at Rs. 620.38 crores for the entire project as on 31.03.2011 including the construction cost, project management consultancy and budgeted interest with over heads. The assessee has taken average cost to Rs. 1635.77 square feet. The budgeted cost has been further revised to Rs. 725.49 crores as on 31.03.2012. In the revised budgeted cost, the assessee has revised average cost of construction including project management consult....
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....g project management consultancy and interest as on 31.03.2013 of Rs. 780.41 crores and as on 31.03.2014 to Rs. 784.64 crores which had been duly accepted by the ld AO and no disallowance on account of revised budgeted cost of construction has been made in those years. With these observations , the ld CIT(A) deleted the addition made by the ld AO for the year under consideration. The factual findings given by the ld CIT(A) as stated herein above were not controverted by the revenue before us. Hence, we do not find any infirmity in the order of the ld CIT(A) granting relief to the assessee. Accordingly, the ground raised by the revenue is dismissed. 33. In the result, the appeal of the revenue in ITA No. 1451/Del/2018 for AY 2012-13 is dismissed. ITA No. 1399/Del/2018 AY 2012-13 34. The assessee has raised the following grounds of appeal for AY ITA No. 1399/Del/2018 for AY 2012-13:- "1. That the impugned order passed by the Ld. CIT (A) is bad in law on facts and in the circumstances of the case. 2. That having regard to the facts and circumstances of the case, the Ld. CIT (A) has erred in law and on facts in upholding the order of the AO that the income fr....
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....ualifying for deduction u/s 80IA(4), under the head 'Income from House Property'. That the Ld. CIT(A) erred in law in upholding the order of Ld. Assessing Officer in assessing 'Amount forfeited on Properties', under the head 'Income from Other Sources' as against 'Income from House Property', and denying deduction u/s 24(a) of the Act. 5. That the Ld. CIT(A) erred in law in upholding 'Signage income' (64,44,019) and 'Amount forfeited on property' (1,51,74,561) aggregating 2,16,18,580/- derived from 'Non Eligible Business' of the assessee as 'Income from Other Sources' against 'Income from House Property' claimed by the assessee and thereby denying deduction u/s 24(a) of the Act. 5.1 That the Ld. CIT (A), erred in upholding the issue regarding 'Signage Income', to be assessed as 'Income from Other Sources', without distinguishing the order of his predecessor, for the AY 2010-11, wherein 'Signage Income', held to be assessable as 'Income from House Property'. 6. That the Ld. CIT(A) erred in law in upholding the order of Ld. Assessing Officer in d....
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....al grounds before us as under:- "8(i) That the Ld. CIT(A) has erred in law and on facts in upholding the action of the assessing officer in denying the benefit of deduction u/s 80- IA(4) by treating promotional income of Rs. 98,87,052/- and other operating income (sale of scrap) of Rs. 40,42,153/- as 'Income from other Sources' as against appellant's claim of 'Income under head Business and Profession'. (ii) That in any case, the promotional income and other operating income having been earned and derived from eligible units, the same are eligible income for the purpose of claim of deduction u/s 80IA of the Income Tax Act, 1961 irrespective of head of income." 41. It is pertinent to note that these grounds were raised by the assessee before the ld CIT(A) and decided against the assessee and inadvertently the same were omitted to be raised by the assessee before us in the original grounds of appeal. Since the facts relatable to these grounds are already on record, the same are hereby admitted and taken up for adjudication. 42. We have heard the rival submissions and perused the materials available on record. We find that the issues raised ....
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....g the income under the head "Income from house property". However, the ld AO disallowed the interest claimed in the sum of Rs. 37.09 crores under the head business income. Since, there was no rental income in the case of non SEZ unit of M/s. Caraf Builders and Construction Pvt. Ltd, the ld AO disallowed the interest in the sum of Rs. 37.09 crores under the head "Income from business". This action of the ld AO was upheld by the ld CIT(A). 45. It is not in dispute that borrowings reflected in the erstwhile balance-sheet of non SEZ unit of M/s. Caraf Builders and Construction Pvt. Ltd were utilized for the purpose of investment in property which had yielded rental income to the assessee. The nexus of borrowed funds and the investment in property are established beyond doubt and not disputed by the revenue before us, hence the interest expenditure paid on lease borrowings would become squarely allowable as deduction in full while computing the "Income from house property" as the assessee had duly offered rental income from the said property under the head "income from house property" and taxed as such by the ld AO. Merely because the assessee itself had bifurcated the net interest c....
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....ction u/s 24(a) of the Act. 3.2 That the Ld. CIT (A), erred in upholding the issue, without distinguishing the order of his predecessor, for the AY 2010-11, wherein signage income held to be assessable as 'Income from House Property'. 4. That the Ld. CIT(A) erred in law and on facts in upholding the income from Amount forfeited on Properties (Rs. 18,49,555), 'Promotional Income (Rs.78.19.603) and 'Sale of scrap/others' (Rs.14,57.888) aggregating Rs. 1.11.27,046 as 'Income from Other Sources' as against appellant's claim regarding the same being 'Eligible income' qualifying for deduction u/s 80IA(4), under the head Profit and Gains of Business'. 5 That the Ld. CIT(A) erred in law in upholding 'Signage income 1,08,25,466 derived from 'Non-Eligible Business of the assessee as Income from Other Sources against 'Income from House Property claimed by the assessee and thereby denying deduction u/s 24(a) of the Act. 5.1 That the Ld. CIT (A), erred in upholding the issue regarding 'Signage Income, to be assessed as 'Income from Other Sources, without distinguishing the order of his predecesso....
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.... CIT (A) is bad in law 2. That on facts and in the circumstances of the case, the Ld. CIT (A) has erred in law, in upholding the order of the AO, that the Income from eligible unit(s) in 'Industrial Park', qualifying for deduction u/s 80IA(4) of the Act, is 'Profit and Gains of Business and not income from House Property', as shown and claimed by appellant, by misinterpreting various decisions relied upon by AO and, at the same time, neither considering facts of the case nor distinguishing the decisions relied upon by the appellant. 2.1 That the Ld. CIT (A) in gross violation of judicial discipline and equity has erred in not considering the ratio laid down by the Apex Court 'that where two views are possible, one favorable to assessee is to be followed. 3. That the Ld. CIT(A) erred in law and on facts in upholding the order of the Assessing Officer in excluding Signage income amounting to Rs. 3,89,30,708 (net of deduction u/s 24(a) Rs 2,72,51,496), from the 'Eligible income' qualifying for deduction u/s 80IA(4) of the Act. 3.1 That the Ld. CIT(A) erred in law in upholding the order of Ld. Assessing Officer in assessin....
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.... Ltd., amalgamated with the appellant. 8. That the appellant craves leave to add, amend, alter, change, vary, substitute or raise any additional ground of appeal if it becomes necessary to do so in the interest of justice on or before the date of hearing. 54. All the grounds raised by the assessee for AY 2014-15 are identical with grounds raised by the assessee for AY 2013-14 and hence, the decision rendered by us hereinabove for AY 2013-14 shall apply mutatis mutandis for AY 2014-15 also, except with variance in figures. 55. In the result, the appeal of the assessee is partly allowed. ITA No. 4865/Del/2019 (AY 2015-16) 56. The assessee has raised the following grounds of appeal for AY ITA No. 4865/Del/2019 for AY 2015-16:- "1 That an facts and in the circumstances of the case, the impugned order passed by the Ld. CIT (A) is bad in law 2. That on facts and in the circumstances of the case, the Ld. CIT (A) has erred in law, in upholding the order of the AO, that the income from eligible unit(s) in 'Industrial Park', qualifying for deduction u/s 80IA(4) of the Act, is 'Profit and Gains of Business and not "Income from House Property&....