DCIT, CHENNAI V. M/s. Macro Marvel Projects Ltd., CHENNAI

ITA 1685/CHNY/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 64558 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 1 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2012
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 19-11-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 11-10-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: N SANKARAN
• Assessee Lawyers: T BANUSEKAR
• Keywords: Depreciation; Revised return; Unabsorbed depreciation
• Section: 80HHC; 194C; 28; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AND SHRI V. DURGA RAO, JUDICIAL MEMBER I.T.A. NO. 116/MDS/2011 & I.T.A. NO. 1685/MDS/2010 (ASSESSMENT YEAR : 2005-06) THE DEPUTY COMMISSIONER OF INCOME TAX, COMPANY CIRCLE IV(1), CHENNAI - 600 034 . (APPELLANT) V. M/S MACRO MARVEL PROJECTS LTD., GLENDEN PLACE, 813, POONAMALLEE HIGH ROAD, KILPAUK, CHENNAI - 600 010. PAN : AACCM8816D (RESPONDENT) C.O. NO. 117/MDS/2011 (IN I.T.A. NO. 1685/MDS/2010) (ASSESSMENT YEAR : 2005-06) M/S MACRO MARVEL PROJECTS LTD., GLENDEN PLACE, 813, POONAMALLEE HIGH ROAD, KILPAUK, CHENNAI - 600 010. (CROSS-OBJECTOR) V. THE DEPUTY COMMISSIONER OF INCOME TAX, COMPANY CIRCLE IV(1), CHENNAI - 600 034 . (RESPONDENT) REVENUE BY : SHRI N. SANKARAN, CIT ASSESSEE BY : SHRI T. BANUSEKAR, CA DATE OF HEARING : 19.11.2012 DATE OF PRONOUNCEMENT : 27.11.2012 I.T.A. NO. 116/MDS/11 I.T.A. NO. 1685/MDS/10 C.O. NO. 117/MDS/11 2 O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER : OF THE ABOVE, I.T.A. NO. 1685/MDS/2010 AND C.O. N O. 117/MDS/2011 ARE APPEAL AND CROSS-OBJECTION OF THE REVENUE AND ASSESSEE RESPECTIVELY, DIRECTED AGAINST AN ORDER DA TED 1.7.2010 OF COMMISSIONER OF INCOME TAX (APPEALS)-V, CHENNAI. R EVENUE IN ITS APPEAL IS AGGRIEVED WITH THE DIRECTION GIVEN BY LD. CIT(APPEALS) ALLOWING PRO RATA DEDUCTION UNDER SECTION 80-IB(10) OF INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT') FOR THE HOUSING PROJ ECTS OF THE ASSESSEE. AS AGAINST THIS, ASSESSEE IN ITS CROSS-OBJECTION IS AGGRIEVED REGARDING DISALLOWANCE OF PAYMENTS MADE TO CONTRACTORS FOR NO N-DEDUCTION OF TAX AT SOURCE, WHICH WAS CONFIRMED BY THE CIT(APPEA LS). 2. LEFT OVER APPEAL OF REVENUE IN I.T.A. NO. 116/MD S/2011 IS AGAINST A SECTION 154 RECTIFICATION ATTEMPTED BY CI T(APPEALS). 3. REVENUES APPEAL IN I.T.A. NO. 1685/MDS/2010 AND CROSS- OBJECTION OF THE ASSESSEE ARE TAKEN UP FIRST FOR DI SPOSAL. REVENUE ASSAILS THE DIRECTION OF CIT(APPEALS) TO ALLOW DEDU CTION UNDER SECTION 80-IB(10) ON THE FOLLOWING REASONS:- I.T.A. NO. 116/MDS/11 I.T.A. NO. 1685/MDS/10 C.O. NO. 117/MDS/11 3 (A) SOME OF THE FLATS CONSTRUCTED BY THE ASSESSEE EXCEEDED 1500 SQ. FT. AND IN VIEW OF THE DECISION O F THIS TRIBUNAL IN THE CASE OF ACIT V. VISWAS PROMOTE RS PVT. LTD. (126 ITD 263), SUCH PRO RATA DEDUCTION COULD NOT BE ALLOWED. (B) ASSESSEE MADE A CLAIM OF DEDUCTION UNDER SECTIO N 80-IB(10) ONLY THROUGH A REVISED COMPUTATION AND BY VIRTUE OF DECISION OF HONBLE APEX COURT IN THE CAS E OF GOETZ (INDIA) LTD. V. CIT (284 ITR 323), SUCH A CLAIM OUGHT NOT HAVE BEEN CONSIDERED. (C) DIRECTION OF THE CIT(APPEALS) TO COMPUTE DEDUCT ION UNDER SECTION 80-IB(10) CONSIDERING EACH PROJECT SEPARATELY, WAS NOT IN ACCORDANCE WITH THE LAW LAID DOWN BY HONBLE APEX COURT IN THE CASE OF IPCA LABORATORY LTD. V. DCIT (266 ITR 521). 4. FACTS APROPOS ARE THAT ASSESSEE, ENGAGED IN THE BUSINESS OF PROPERTY DEVELOPMENT, HAD FILED ITS RETURN FOR IMPU GNED ASSESSMENT YEAR DECLARING AN INCOME OF ` 76,95,292/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT SEEMS ASSESSEE HAD FILED A REVISED COMPUTATION BY WHICH THERE WAS A REVISION OF A CLAI M FOR DEDUCTION ORIGINALLY MADE UNDER SECTION 80-IB(10) OF THE ACT. SUCH CLAIM WAS ON THE HOUSING PROJECTS CALLED RIVER VIEW COUNTY, M ARVEL PARAMPARIYAM, LAKE VIEW FLAT AND MARVEL LAKE VIEW C OUNTY. AGAINST NET PROFIT OF ` 1,63,63,004/- FROM THE HOUSING PROJECTS, ASSESSEE HAD CLAIMED DEDUCTION OF ` 85,56,886/- UNDER SECTION 80- IB(10) OF THE ACT, FOR THOSE DWELLING UNITS WHICH W ERE HAVING BUILT-UP AREA LESS THAN 1500 SQ. FT. ON A PROPORTIONATE BASI S. I.T.A. NO. 116/MDS/11 I.T.A. NO. 1685/MDS/10 C.O. NO. 117/MDS/11 4 5. CLAIM OF THE ASSESSEE BEFORE A.O. WAS THAT EACH OF THE BUILDING PROJECT HAD TO BE CONSIDERED AS SEPARATE UNDERTAKIN G FOR THE PURPOSE OF WORKING OUT DEDUCTION UNDER SECTION 80-IB(10) OF THE ACT. RELIANCE WAS PLACED ON THE DECISION OF CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF ARUN EXCELLO FOUNDATION PVT . LTD. V. ACIT (108 TTJ 71). ASSESSING OFFICER WAS NOT IMPRESSED ON SU CH CLAIM. IN THE FIRST PLACE, HE WAS OF THE OPINION THAT REVISION OF A CLAIM FOR DEDUCTION COULD NOT BE ACCEPTED SINCE IT WAS NOT MADE THROUGH A REVISED RETURN. FOR THIS, RELIANCE WAS PLACED ON THE DECISION OF HO NBLE APEX COURT IN THE CASE OF GOETZ (INDIA) LTD. (SUPRA). IN THE SEC OND PLACE, THE A.O. WAS OF THE OPINION THAT PRO RATA CLAIM FOR DWELLING UNITS HAVING BUILT-UP AREA LESS THAN 1500 SQ. FT. COULD NOT BE ALLOWED. AS PER THE A.O., ONCE SOME OF THE DWELLING UNITS HAD BUILT-UP AREAS EXCEEDING 1500 SQ. FT., THERE WAS NO QUESTION OF GIVING ANY ALLOWA NCE UNDER SECTION 80-IB OF THE ACT. ASSESSING OFFICER DID MENTION TH E CLAIM OF THE ASSESSEE THAT EACH PROJECT HAD TO BE CONSIDERED SEP ARATELY FOR THE PURPOSE OF COMPUTATION OF DEDUCTION UNDER SECTION 8 0-IB(10) OF THE ACT, BUT IT SEEMS SUCH CLAIM HAVING BEEN MADE ONLY IN THE REVISED COMPUTATION, WAS NOT CONSIDERED BY HIM. THE NET RE SULT WAS THAT CLAIM OF ` 85,56,886/- UNDER SECTION 80-IB(10) WAS DISALLOWED . I.T.A. NO. 116/MDS/11 I.T.A. NO. 1685/MDS/10 C.O. NO. 117/MDS/11 5 6. IN ITS APPEAL BEFORE CIT(APPEALS), ASSESSEE, REL YING ON THE DECISION OF CO-ORDINATE BENCH OF THIS TRIBUNAL IN T HE CASE OF ACIT V. JAIN HOUSING AND CONSTRUCTIONS LTD. IN I.T.A. NO. 1 369/MDS/2009, AND THAT OF KOLKATA BENCH OF THIS TRIBUNAL IN THE C ASE OF BENGAL AMBUJA HOUSING DEVELOPMENT LTD. V. DCIT IN I.T.A. N OS. 1595 AND 1735/KOL/2005, ARGUED THAT PRO RATA ALLOWANCE UNDER SECTION 80-IB HAD TO BE GRANTED FOR THOSE DWELLING UNITS WHICH HA D BUILT-UP AREA LESS THAN 1500 SQ. FT. WITH REGARD TO THE REVISED CLAIM UNDER SECTION 80-IB(10) OF THE ACT, SUBMISSION OF THE ASSESSEE WA S THAT SUCH REVISION MADE CONSIDERING EACH PROJECT SEPARATELY, WAS JUSTIFIED. AS PER THE ASSESSEE, IT HAD ALREADY CLAIMED A DEDUCTIO N IN THE RETURN OF INCOME, BUT, HAD ONLY REVISED THE QUANTUM DURING TH E COURSE OF ASSESSMENT PROCEEDINGS. FURTHER, AS PER THE ASSESS EE, EACH OF THE PROJECT COULD BE CONSIDERED AS INDEPENDENT AND PROF ITS OF EACH PROJECT HAD TO BE INDEPENDENTLY CONSIDERED FOR WORK ING OUT THE DEDUCTION UNDER SECTION 80-IB(10) OF THE ACT. IN S UPPORT OF THIS CLAIM, ASSESSEE RELIED ON THE DECISIONS OF HONBLE DELHI H IGH COURT IN THE CASE OF CIT V. SONO KOYO STEERING SYSTEMS LTD. (321 ITR 463), AND CIT V. DEWAN KRAFT SYSTEMS PVT. LTD. (297 ITR 305) AND THAT OF I.T.A. NO. 116/MDS/11 I.T.A. NO. 1685/MDS/10 C.O. NO. 117/MDS/11 6 HONBLE APEX COURT IN THE CASE OF SYNCO INDUSTRIES LTD. V. A.O. (INCOME-TAX) (299 ITR 444). 7. CIT(APPEALS) ACCEPTED THE ABOVE CONTENTIONS OF T HE ASSESSEE. ACCORDING TO HIM, ASSESSEE WAS ENTITLED TO CLAIM DE DUCTION ON THOSE DWELLING UNITS WHICH HAD BUILT-UP AREA LESS THAN 15 00 SQ. FT. ON PRO RATA BASIS IN VIEW OF THE DECISION OF KOLKATA BENCH OF THIS TRIBUNAL IN THE CASE OF BENGAL AMBUJA HOUSING DEVELOPMENT LTD. (SUPRA) WHICH WAS LATER UPHELD BY THE HONBLE CALCUTTA HIGH COURT . FURTHER, AS PER CIT(APPEALS), ASSESSEE HAD ONLY EFFECTED A REVISION OF ITS CLAIM IN THE ORIGINAL RETURN AND HAD NOT PREFERRED A FRESH CLAIM . THEREFORE, ACCORDING TO HIM, THE REVISED CLAIM COULD BE CONSID ERED. ON MERITS ALSO, HE WAS IN FAVOUR OF ASSESSEE, FOR, ACCORDING TO HIM, EACH PROJECT HAD TO BE CONSIDERED INDEPENDENT FOR WORKIN G OUT DEDUCTION UNDER SECTION 80-IB(10) OF THE ACT. 8. NOW BEFORE US, LEARNED D.R., STRONGLY ASSAILING THE ORDER OF CIT(APPEALS), SUBMITTED THAT WITHOUT FILING A REVIS ED RETURN, ASSESSEE COULD NOT HAVE MADE ANY REVISION TO ITS ORIGINAL CL AIM UNDER SECTION 80-IB(10) OF THE ACT. FURTHER, ACCORDING TO HIM, S ECTION 80-IB OF THE ACT DID NOT ALLOW A WORK OUT CONSIDERING EACH PROJE CT INDEPENDENTLY. I.T.A. NO. 116/MDS/11 I.T.A. NO. 1685/MDS/10 C.O. NO. 117/MDS/11 7 ALL PROJECTS WERE TO BE CONSIDERED TOGETHER AND THE QUESTION OF ALLOWANCE UNDER SECTION 80-IB(10) WOULD ARISE ONLY THEREAFTER. ACCORDING TO HIM, ASSESSEE COULD NOT SELECT THOSE P ROJECTS WHICH HAD PROFITS FOR WORKING OUT DEDUCTION UNDER SECTION 80- IB(10) OF THE ACT WHILE IGNORING THOSE WHICH WERE RUNNING ON A LOSS. RELIANCE WAS PLACED ON THE DECISIONS OF HONBLE APEX COURT IN TH E CASE OF IPCA LABORATORIES LTD. (SUPRA) AND SYNCO INDUSTRIES LTD. (SUPRA) AND THAT OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT V. RPG TELECOM LTD. (292 ITR 355). FURTHER, ACCORDING TO HIM, THI S TRIBUNAL IN THE CASE OF VISWAS PROMOTERS PVT. LTD. (SUPRA) HAD CLEA RLY HELD THAT IF BUILT-UP AREA OF ANY OF THE DWELLING UNITS EXCEEDED 1500 SQ.FT., DEDUCTION UNDER SECTION 80-IB(10) COULD NOT BE ALLO WED. 9. PER CONTRA, LEARNED A.R. SUBMITTED THAT THIRD ME MBER BENCH OF THIS TRIBUNAL IN THE CASE OF SANGHVI & DOSHI ENTERP RISE V. ITO (131 ITD 151) HAD CLEARLY HELD THAT AN ASSESSEE-DEVELOP ER WAS ENTITLED FOR DEDUCTION UNDER SECTION 80-IB(10) OF THE ACT IN RESPECT OF FLATS HAVING BUILT-UP AREA NOT EXCEEDING 1500 SQ. FT. AC CORDING TO HIM, IN THIS THIRD MEMBER DECISION, ALL EARLIER DECISIONS I NCLUDING THAT OF CO- ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF VISW AS PROMOTERS PVT. LTD. (SUPRA) AND THAT OF KOLKATA BENCH OF THIS TRIB UNAL IN THE CASE OF I.T.A. NO. 116/MDS/11 I.T.A. NO. 1685/MDS/10 C.O. NO. 117/MDS/11 8 BENGAL AMBUJA HOUSING DEVELOPMENT LTD. (SUPRA), WER E CONSIDERED. INSOFAR AS REVISION OF THE CLAIM WAS CONCERNED, LEA RNED A.R. SUBMITTED THAT HONBLE DELHI HIGH COURT IN THE CASE OF CIT V JAI PARABOLIC SPRINGS LTD (306 ITR 42) HAD CLEARLY HELD THAT EVEN IF A CLAIM OF DEDUCTION WAS NOT ORIGINALLY MADE IN THE R ETURN, THE TRIBUNAL HAD POWER TO ALLOW SUCH CLAIM IN APPELLATE PROCEEDI NGS. ACCORDING TO HIM, HERE ON THE OTHER HAND, ASSESSEE HAD, WITHOUT DOUBT, MADE A CLAIM FOR DEDUCTION UNDER SECTION 80-IB(10) IN THE ORIGINAL RETURN, BUT HAD THEREAFTER ONLY EFFECTED A REVISION OF THE QUAN TUM DURING THE COURSE OF ASSESSMENT PROCEEDINGS. INSOFAR AS THE C OMPUTATION ASPECT WAS CONCERNED, LEARNED A.R. SUBMITTED THAT D ECISION OF HONBLE APEX COURT IN THE CASE OF SYNCO INDUSTRIES LTD. (SUPRA) WAS IN FAVOUR OF ASSESSEE. ACCORDING TO HIM, SECTION 8 0-AB OF THE ACT ONLY FIXED THE LIMIT FOR THE DEDUCTIONS THAT COULD BE MADE ON THE GROSS TOTAL INCOME. HOWEVER, FOR THE PURPOSE OF COMPUTIN G DEDUCTION UNDER ANY OF THE CLAUSE UNDER PART C OF CHAPTER VI- A OF THE ACT, EACH OF THE INDUSTRIAL UNDERTAKING HAD TO BE CONSIDERED INDEPENDENTLY. ACCORDING TO HIM, LOSS SUSTAINED IN ONE OF THE UNIT S NEED NOT BE CONSIDERED IN SUCH COMPUTATION. FOR CANVASSING THI S VIEW, RELIANCE WAS PLACED ON THE DECISIONS OF HONBLE DELHI HIGH C OURT IN THE CASE I.T.A. NO. 116/MDS/11 I.T.A. NO. 1685/MDS/10 C.O. NO. 117/MDS/11 9 OF DEWAN KRAFT SYSTEMS PVT. LTD. (SUPRA) AND SONO K OYO STEERING SYSTEMS LTD. (SUPRA), THAT OF HONBLE ANDHRA PRADES H HIGH COURT IN THE CASE OF CIT V. VISAKHA INDUSTRIES LTD. (251 ITR 471), THAT OF HONBLE APEX COURT IN THE CASE OF ENGLISH ELECTRIC CO. LTD. V. CIT (249 ITR 793), AND AGAIN THAT OF HONBLE APEX COURT IN THE CASE OF CIT V. CANARA WORKSHOPS (P) LTD. (161 ITR 320). 10. WE HAVE PERUSED THE ORDERS AND HEARD THE RIVAL SUBMISSIONS. THREE QUESTIONS HAVE BEEN RAISED IN THIS APPEAL. F IRST QUESTION IS WHETHER A DEDUCTION ORIGINAL CLAIMED IN THE RETURN OF INCOME FILED COULD BE REVISED IN THE COURSE OF ASSESSMENT PROCEE DINGS? SECOND QUESTION IS WHETHER DEDUCTION UNDER SECTION 80-IB(1 0) COULD BE GIVEN TO AN ASSESSEE EVEN WHERE SOME OF THE DWELLING UNIT S IN A PROJECT EXCEEDED BUILT-UP AREA 1500 SQ.FT.? THIRD QUESTION IS WHETHER EACH OF THE PROJECT COULD BE CONSIDERED INDEPENDENTLY FO R THE PURPOSE OF WORKING OUT DEDUCTION UNDER SECTION 80-IB(10) OF TH E ACT, OR IN OTHER WORDS, WHETHER SUCH DEDUCTION COULD BE CALCULATED I GNORING THE LOSSES IN SOME OF THE PROJECTS SUBJECT TO THE LIMIT ATIONS PLACED BY SECTION 80-AB OF THE ACT? I.T.A. NO. 116/MDS/11 I.T.A. NO. 1685/MDS/10 C.O. NO. 117/MDS/11 10 11. INSOFAR AS THE FIRST QUESTION IS CONCERNED, WE ARE OF THE VIEW THAT CIT(APPEALS) WAS JUSTIFIED IN CONSIDERING THE REVISED COMPUTATION AS A VALID ONE FOR THE PURPOSE OF CLAIM ING DEDUCTION UNDER SECTION 80-IB(10) OF THE ACT. THERE IS A CLE AR FINDING BY THE CIT(APPEALS) THAT ASSESSEE HAD MADE A CLAIM UNDER S ECTION 80- IB(10) IN THE ORIGINAL RETURN ITSELF. THIS POSITIO N HAS NOT BEEN DISPUTED. REVISED COMPUTATION WAS FILED BY THE ASS ESSEE WHEREBY IT RE-WORKED THE QUANTUM OF THE CLAIM CONSIDERING EACH OF THE PROJECT SEPARATELY OR IN OTHER WORDS, BY OMITTING OUT THOSE PROJECTS WHICH RESULTED IN A LOSS. THIS, IN OUR OPINION, CANNOT B E CONSTRUED AS A FRESH CLAIM. DECISION OF HONBLE APEX COURT IN THE CASE OF GOETZE (INDIA) LTD. (SUPRA) WILL NOT HELP THE CASE OF THE REVENUE. IN THE SAID CASE, ASSESSEE CONCERNED HAD CLAIMED A DEDUCTION FO R FIRST TIME THROUGH A LETTER FILED BEFORE THE ASSESSING OFFICER IN THE COURSE OF ASSESSMENT PROCEEDINGS. ON THE OTHER HAND, HERE, A DMITTEDLY, ASSESSEE HAD MADE A CLAIM UNDER SECTION 80-IB(10) I N THE RETURN OF INCOME. THROUGH THE REVISED COMPUTATION, IT HAD ON LY ENHANCED THE QUANTUM OF THE CLAIM. THERE WAS NO FRESH CLAIM AS SUCH. THEREFORE, IN OUR OPINION, SUCH A REVISED COMPUTATION COULD NO T HAVE BEEN I.T.A. NO. 116/MDS/11 I.T.A. NO. 1685/MDS/10 C.O. NO. 117/MDS/11 11 IGNORED BY THE ASSESSING OFFICER. THERE IS NO INFI RMITY IN THE ORDER OF THE CIT(APPEALS) IN THIS REGARD. 12. VIS--VIS THE ISSUE WHETHER ASSESSEE COULD CLAI M DEDUCTION UNDER SECTION 80-IB(10) EVEN WHERE SOME OF THE DWEL LING UNIS HAD BUILT-UP AREA EXCEEDING 1500 SQ.FT., IT STANDS CLEA RLY ANSWERED BY THE THIRD MEMBER DECISION OF THIS TRIBUNAL IN THE CASE OF SANGHVI & DOSHI ENTERPRISE (SUPRA). DECISION OF CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF VISWAS PROMOTERS PVT. LTD. (SUPRA) WAS CONSIDERED IN THIS THIRD MEMBER DECISION. IT WAS H ELD AT PARA 48 OF THIS DECISION AS UNDER:- 48. I AM ONLY CONCERNED OF THE BINDING EFFECT OF TH E JUDGMENT OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF C IT VS. BENGAL AMBUJA HOUSING DEVELOPMENT LTD. (SUPRA). IN THE LI GHT OF THE DISCUSSION MADE ABOVE, I AM OF THE CONSIDERED OPINI ON THAT I SHOULD BE LED BY THE JUDGMENT OF THE HONBLE CALCUT TA HIGH COURT, WHICH IS A CONSTITUTIONAL AND A COURT OF LAW . AS THERE IS NO DIRECT DECISION OF THE JURISDICTIONAL HIGH COURT ST ILL AVAILABLE ON THE SUBJECT, I FIND IT MY DUTY TO FOLLOW THE JUDGME NT OF THE HONBLE CALCUTTA HIGH COURT. I DO NOT THINK AS A G OOD JUDICIAL BEHAVIOUR TO DWELL UPON THE TECHNICALITIES OF JURIS DICTION AND IGNORE THE JUDGMENT OF A COMPETENT CONSTITUTIONAL C OURT. SO LONG AS THERE IS NO DECISION BY MY JURISDICTIONAL HIGH C OURT, I AM IMMEDIATELY BOUND BY THE JUDGMENT OF ANY OTHER HIGH COURT AVAILABLE TO ME, DIRECTLY ON THE SUBJECT. THEREFOR E, I HOLD THAT THE CONTROVERSY PLACED BEFORE ME AS A THIRD MEMBER IS COVERED BY THE JUDGMENT OF THE HONBLE CALCUTTA HIGH COURT RENDERED IN THE CASE OF CIT VS. BENGAL AMBUJA HOUSING DEVELOPME NT LTD. IN I.T.A. NO. 116/MDS/11 I.T.A. NO. 1685/MDS/10 C.O. NO. 117/MDS/11 12 IT APPEAL NO. 458 OF 2006, DT. 5 TH JAN., 2007 (SUPRA). IN THE LIGHT OF THE FINDINGS ARRIVED AT ABOVE, I AGREE WIT H THE VIEW TAKEN BY THE HONBLE VICE PRESIDENT, WHERE HE HAS H ELD THAT THE ASSESSEES ARE ENTITLED FOR DEDUCTION UNDER S. 80-IB (10) IN RESPECT OF FLATS HAVING BUILT-UP AREA NOT EXCEEDING 1,500 SQ.FT. AND NOT ENTITLED FOR DEDUCTION IN RESPECT OF THOSE FLATS HAVING THEIR BUILT-UP AREA EXCEEDING 1,500 SQ.FT. ACCORDINGLY, WE ARE OF THE OPINION THAT ASSESSEE IS ENTITLED FOR CLAIMING DEDUCTION UNDER SECTION 80-IB(10) IN RESPE CT OF THOSE FLATS HAVING BUILT-UP AREA NOT EXCEEDING 1500 SQ.FT. 13. NOW COMING TO THIRD ASPECT WHICH IS WHETHER ASS ESSEE WAS ENTITLED TO WORK OUT DEDUCTION UNDER SECTION 80-IB( 10) OF THE ACT CONSIDERING EACH OF THE PROJECT SEPARATELY. NO DOU BT, LEARNED A.R. HAS PLACED RELIANCE ON THE DECISION OF HONBLE APEX COURT IN THE CASE OF SYNCO INDUSTRIES LTD. (SUPRA) AND THAT OF DELHI HIGH COURT IN THE CASE OF DEWAN KRAFT SYSTEMS PVT. LTD. (SUPRA) AND S ONO KOYO STEERING SYSTEMS LTD. (SUPRA). ACCORDING TO LEARNE D A.R., THE SAME VIEW HAS ALSO BEEN TAKEN BY HONBLE APEX COURT IN T HE CASES OF CANARA WORKSHOPS (P) LTD. (SUPRA) AND ENGLISH ELECT RIC CO. LTD. (SUPRA) AND ALSO BY HONBLE ANDHRA PRADESH HIGH COU RT IN THE CASE OF VISAKHA INDUSTRIES LTD. (SUPRA). IN OUR OPINION, THE POSITION OF LAW IN THIS REGARD IS SUCCINCTLY SUMMARIZED BY HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CHAMUNDI TEXTILES (SILK MILLS) LTD. V. CIT (341 I.T.A. NO. 116/MDS/11 I.T.A. NO. 1685/MDS/10 C.O. NO. 117/MDS/11 13 ITR 488). THOUGH THERE THE CLAIM WAS FOR A DEDUCTIO N UNDER SECTION 80HHC OF THE ACT, IN OUR OPINION, THE DICTUM OF LAW LAID DOWN BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE SAID CASE IS EQUALLY APPLICABLE EVEN WHERE A CLAIM IS MADE UNDER SECTION 80-IB OF T HE ACT. IT WAS HELD BY THEIR LORDSHIP THAT IN VIEW OF THE DECISION OF HONBLE APEX COURT IN THE CASE OF IPCA LABORATORY LTD. (SUPRA), AN ASSESSEE WHO HAD POSITIVE PROFIT ONLY WOULD BE ENTITLED FOR DEDU CTION IN RESPECT OF THOSE INCOME COMING UNDER PART C OF CHAPTER VI-A. FOR ARRIVING AT SUCH PROFITS, INCOME OF ALL THE UNITS HAD TO BE CAL CULATED AND IF ONE OF THE UNITS WAS RUNNING AT A LOSS, GROSS TOTAL INCOME HAD TO BE ARRIVED CONSIDERING SUCH LOSS ALSO. IF THE ULTIMATE RESULT WAS A LOSS, ANY CLAIM OF DEDUCTION IN RESPECT OF SUCH INCOME WAS TO BE REJECTED. DEDUCTIONS COMING UNDER PART C OF CHAPTER VI-A OF T HE ACT, ARE CONTROLLED BY SECTION 80-AB OF THE ACT. GROSS TOTA L INCOME REMAINS GROSS TOTAL INCOME COMPUTED AS PER PROVISIONS OF TH E ACT. THIS WAS REITERATED BY HONBLE APEX COURT IN THE CASE OF SYN CO INDUSTRIES LTD. (SUPRA). IT WAS HELD BY HONBLE APEX COURT THAT GRO SS TOTAL INCOME HAD TO BE ARRIVED AT BY MAKING DEDUCTIONS AS PER AP PROPRIATE COMPUTATION PROVISIONS, INCLUDING INCOME UNDER SECT IONS 60 TO 64, ADJUSTING INTRA-HEAD AND INTER-HEAD LOSSES AND SETT ING OFF BROUGHT I.T.A. NO. 116/MDS/11 I.T.A. NO. 1685/MDS/10 C.O. NO. 117/MDS/11 14 FORWARD LOSSES AND UNABSORBED DEPRECIATION. ONLY I F RESULTING GROSS TOTAL INCOME IS POSITIVE, AN ASSESSEE IS ENTITLED F OR A DEDUCTION. HOWEVER, IF AN ASSESSEE IS HAVING MORE THAN ONE UNI T, WHERE ONE UNIT IS CLAIMING DEDUCTION AND OTHER IS NOT, AND IF THE GROSS TOTAL INCOME IS POSITIVE DESPITE LOSS IN ONE OF THE UNITS, THEN DEC ISION OF HONBLE APEX COURT IN THE CASE OF IPCA LABORATORY LTD. (SUP RA) WILL NOT HAVE ANY APPLICABILITY. WHERE AN ASSESSEE CARRIES ON VA RIOUS ACTIVITIES, EVEN THOUGH CENTRALIZED ACCOUNT IS MAINTAINED, SO L ONG AS THERE IS NO INTERLACING, INTERCONNECTION, OR INTERDEPENDENCE OF VARIOUS UNITS, VARIOUS SUCH ACTIVITIES HAVE TO BE TREATED AS SEPAR ATE AND DISTINCT AS HELD BY HONBLE APEX COURT IN THE CASE OF WATERFALL ESTATES LTD. V. CIT (219 ITR 563). THUS, IF AN ASSESSEE HAD DIFFER ENT UNITS RESULTING IN POSITIVE GROSS TOTAL INCOME, EACH OF THE UNITS H AS TO BE CONSIDERED SEPARATELY FOR WORKING OUT DEDUCTION COMING UNDER P ART C FALLING IN CHAPTER VI-A OF THE ACT, PROVIDED ASSESSEE HAD MAIN TAINED SEPARATE ACCOUNTS AND THERE WAS NO INTERLACING AND INTERDEPE NDENCE. 14. THE POSITION OF LAW, AS SUMMARIZED BY HONBLE J URISDICTIONAL HIGH COURT TAKES US TO THE QUESTION WHETHER THE ASS ESSEE HERE WAS HAVING DIFFERENT INDUSTRIAL UNDERTAKINGS OR UNITS W HICH WERE NOT TO BE I.T.A. NO. 116/MDS/11 I.T.A. NO. 1685/MDS/10 C.O. NO. 117/MDS/11 15 CONSIDERED PARTS OF THE SAME HOMOGENOUS ACTIVITY OF CONSTRUCTION. IN EACH OF THE DECISIONS RELIED ON BY THE ASSESSEE, AD JUSTMENT OF LOSS OF ONE UNIT WITH PROFIT OF OTHER UNIT, WHILE COMPUTING THE DEDUCTION AVAILABLE UNDER PART C OF CHAPTER VI-A, WAS HELD TO BE NOT WARRANTED FOR A REASON THAT THE UNITS WERE INDEPENDENT OF EAC H OTHER. IN THE CASE OF DEWAN KRAFT SYSTEMS PVT. LTD. (SUPRA) BEFOR E HONBLE DELHI HIGH COURT, ONE OF THE UNITS WAS IN HIMACHAL PRADES H WHILE OTHER UNITS WERE IN DELHI AND NOIDA. IN THE CASE OF SYNC O INDUSTRIES LTD. (SUPRA), ONE WAS A STEERING UNIT AND THE OTHER WAS AXLE UNIT. IN THE CASE OF CANARA WORKSHOPS (P) LTD. (SUPRA), ONE OF T HE UNITS WAS MANUFACTURING AUTOMOBILE PARTS, WHEREAS, THE OTHER WAS ALLOY STEEL. IN THE CASE OF VISAKHA INDUSTRIES LTD. (SUPRA) DECI DED BY HONBLE ANDHRA PRADESH HIGH COURT, SET OFF ATTEMPTED WAS BE TWEEN THE ASBESTOS DIVISION AND SPINNING DIVISION. THUS, IN A LL THE CASES RELIED ON BY THE ASSESSEE, THE UNITS WERE HAVING DIFFERENT ACTIVITIES. HERE, ON THE OTHER HAND, ASSESSEE ADMITTEDLY WAS HAVING O NLY ONE HOMOGENOUS BUSINESS ACTIVITY THAT WAS CONSTRUCTION AND SELLING OF FLATS. NO DOUBT, IT WAS HAVING FIVE PROJECTS, BUT THE QUESTION IS WHETHER EACH OF THE PROJECTS WERE FORMING PART AND PARCEL OF ONE UNIT OR PART OF ONE INDUSTRIAL UNDERTAKING. THERE IS NO CLAIM FOR THE I.T.A. NO. 116/MDS/11 I.T.A. NO. 1685/MDS/10 C.O. NO. 117/MDS/11 16 ASSESSEE THAT EACH OF THESE PROJECTS WERE SEPARATE AND THERE WAS NO INTERLACING, INTERCONNECTION OR INTERDEPENDENCE. A SSESSEE WAS ONLY DOING HOUSING PROJECT DEVELOPMENT WHICH IS A HOMOGE NOUS BUSINESS AND VIS--VIS THE FIVE PROJECTS, THERE WAS NO DEMAR CATION OF IDENTITY, IN SUCH A MANNER THAT EACH OF THE PROJECT COULD BE CON SIDERED AS INDEPENDENT UNITS. SECTION 80-IB(10) OF THE ACT CL EARLY SPECIFIES THAT DEDUCTION UNDER THAT SUB-SECTION IS TO BE GIVEN TO AN UNDERTAKING DEVELOPING AND BUILDING HOUSING PROJECTS. THERE IS NOTHING IN THIS SUB-SECTION WHICH WOULD REQUIRE EACH OF THE HOUSING PROJECTS TO BE CONSIDERED BY ITSELF AS INDEPENDENT UNDERTAKING WHI LE WORKING OUT THE DEDUCTION. NO DOUBT, IF AN ASSESSEE IS ABLE TO SHO W THAT EACH OF ITS PROJECTS WERE INDEPENDENT WITH NO INTERLACING, INTE RCONNECTION OR INTERDEPENDENCE, THEN IT MIGHT BE ABLE TO CANVASS A CLAIM FOR DEDUCTION UNDER SECTION 80-IB(10) OF THE ACT. HERE , THERE IS NOTHING ON RECORD TO SHOW THAT EACH OF THE PROJECTS WERE IN DEPENDENT, WITH NO INTERLACING, INTERCONNECTION OR INTERDEPENDENCE OF VARIOUS UNITS. THE BUSINESS WAS A HOMOGENOUS ONE. THEREFORE, IN OUR O PINION, ALL THESE PROJECTS TOGETHER HAD TO BE CONSIDERED AS A SINGLE UNIT FOR THE PURPOSE OF WORKING OUT DEDUCTION UNDER SECTION 80-I B(10) OF THE ACT AND THE METHODOLOGY ADOPTED BY THE ASSESSEE IN THE REVISED I.T.A. NO. 116/MDS/11 I.T.A. NO. 1685/MDS/10 C.O. NO. 117/MDS/11 17 COMPUTATION FILED BY IT, CANNOT ACCEPTED. IN THE R ESULT THIS QUESTION IS ANSWERED IN FAVOUR OF THE REVENUE. 15. THUS WE DISMISS GROUND NOS.2 AND 3 RAISED BY TH E REVENUE AND ALLOW ITS GROUND NO.4. ASSESSING OFFICER IS AC CORDINGLY DIRECTED TO RE-WORK THE DEDUCTION AVAILABLE TO THE ASSESSEE UNDER SECTION 80- IB(10) CONSIDERING ALL THE PROJECTS AS A SINGLE UNI T. 16. IN THE RESULT, APPEAL OF THE REVENUE IS PARTLY ALLOWED. 17. COMING TO THE CROSS-OBJECTION OF THE ASSESSEE, FACTS APROPOS ARE THAT ASSESSING OFFICER FOUND THAT ASSESSEE HAD NOT DEDUCTED TAX AT SOURCE ON CONTRACT AMOUNTS PAID TO ONE M/S MACRO MARVEL INFRASTRUCTURE CORPORATION LTD. HE INVOKED SECTION 40(A)(IA) OF THE ACT FOR DISALLOWING THE CLAIM COMING TO ` 1,96,89,532/-. 18. IN ITS APPEAL BEFORE CIT(APPEALS), ARGUMENT OF THE ASSESSEE WAS THAT THE CLAIM WAS MADE FOR A DIRECT EXPENDITUR E VIZ. CONSTRUCTION OF FLATS AND THEREFORE, DID NOT COME UNDER THE PURV IEW OF SECTIONS 30 TO 38 OF THE ACT. ACCORDING TO ASSESSEE, SECTION 4 0 BEGAN WITH A NON OBSTANTE CLAUSE AND HENCE HAD RELEVANCE ONLY WITH R EGARD TO CLAIM MADE UNDER SECTIONS 30 TO 38 OF THE ACT. AS PER TH E ASSESSEE, THE I.T.A. NO. 116/MDS/11 I.T.A. NO. 1685/MDS/10 C.O. NO. 117/MDS/11 18 CLAIM PREFERRED BY IT HAD TO BE CONSIDERED ONLY UND ER SECTION 28 OF THE ACT BASED ON PRINCIPLE OF COMMERCIAL ACCOUNTING . 19. HOWEVER, CIT(APPEALS) WAS NOT IMPRESSED. ACCOR DING TO HIM, WHAT WAS PAID BY THE ASSESSEE CLEARLY FELL WITHIN T HE AMBIT OF SECTION 194C OF THE ACT. ACCORDING TO HIM, THIS WAS NOTHIN G BUT PAYMENTS TO A CONTRACTOR WHICH WARRANTED DEDUCTION OF TAX AT SO URCE. ASSESSEE HAVING NOT DEDUCTED SUCH TAX, DISALLOWANCE UNDER SE CTION 40(A)(IA) WAS UPHELD BY THE CIT(APPEALS). 20. NOW BEFORE US, LEARNED A.R., STRONGLY ASSAILI NG THE ORDER OF CIT(APPEALS), SUBMITTED THAT CLAIM OF THE ASSESSEE WAS NOT UNDER SECTIONS 30 TO 38 OF THE ACT BUT, UNDER SECTION 28 OF THE ACT. ACCORDING TO HIM, ASSESSEES BUSINESS WAS CONSTRUCT ION OF FLATS. IT HAD GIVEN CONTRACT FOR SUCH CONSTRUCTION. CONTRACT PAYMENTS WERE NOTHING BUT DIRECT COST. ALLOWANCE FOR DIRECT COST WAS TO BE GIVEN BASED ON COMMERCIAL PRINCIPLES OF ACCOUNTING. IT W AS NOT AN ALLOWANCE TO BE CONSIDERED AS UNDER SECTIONS 30 TO 38 OF THE ACT. SINCE SECTION 40 APPLIED ONLY TO SECTIONS 30 TO 38 OF THE ACT, A DISALLOWANCE UNDER SECTION 40(A)(IA) COULD NOT BE M ADE ON A CLAIM UNDER SECTION 28 OF THE ACT. RELIANCE WAS PLACED O N THE DECISION OF I.T.A. NO. 116/MDS/11 I.T.A. NO. 1685/MDS/10 C.O. NO. 117/MDS/11 19 HYDERABAD BENCH OF THIS TRIBUNAL IN THE CASE OF TEJ A CONSTRUCTIONS V. ACIT (2010) 36 DTR 220. 21. PER CONTRA, LEARNED D.R., STRONGLY SUPPORTING T HE ORDER OF CIT(APPEALS), SUBMITTED THAT ASSESSEE HAD NOT MADE DEDUCTION OF TAX AT SOURCE REQUIRED UNDER SECTION 194C OF THE AC T AND INVITED RIGOURS OF SECTION 40(A)(IA) OF THE ACT. THEREFORE , DISALLOWANCE UNDER SECTION 40(A)(IA) WAS RIGHTLY MADE. 22. WE HAVE PERUSED THE ORDERS AND HEARD THE RIVAL SUBMISSIONS. THERE IS NO DISPUTE THAT ASSESSEE EFFECTED THE PAYM ENTS TO ONE M/S MACRO MARVEL INFRASTRUCTURE CORPORATION LTD. THOUG H IT IS STATED THAT THE AMOUNTS WERE CONTRACT PAYMENTS, THE NATURE OF E XPENDITURE INVOLVED IS NOT CLEAR FROM THE ASSESSMENT ORDER, NO R FROM THE ORDER OF CIT(APPEALS). NO DOUBT, HYDERABAD BENCH OF THIS TR IBUNAL IN THE CASE OF TEJA CONSTRUCTIONS (SUPRA) HAS MADE AN OBSE RVATION AT PARA 13 OF ITS ORDER THAT PROVISIONS OF SECTION 40(A)(IA ) WERE APPLICABLE ONLY TO ITEMS COVERED UNDER SECTIONS 30 TO 38 AND N OT FOR EXPENDITURE IN THE NATURE OF DIRECT COST COVERED BY SECTION 28 OF THE ACT. HOWEVER, IN THE SAID CASE, BOOKS OF ACCOUNTS OF THE ASSESSEE WERE REJECTED AND PROFITS WERE ESTIMATED. DISALLOWANCE UNDER SECTION I.T.A. NO. 116/MDS/11 I.T.A. NO. 1685/MDS/10 C.O. NO. 117/MDS/11 20 40(A)(IA) WAS MAINLY HELD TO BE NOT WARRANTED FOR T HE REASON THAT ESTIMATION OF INCOME TOOK INTO ACCOUNT ALL IRREGULA RITIES COMMITTED BY THE ASSESSEE, AND A FURTHER DISALLOWANCE UNDER SECT ION 40(A)(IA) WOULD AMOUNT TO PUNISHING THE ASSESSEE TWICE FOR TH E SAME OFFENCE. THUS, OBSERVATION OF HYDERABAD BENCH OF THIS TRIBUN AL WAS IN A CASE WHERE BOOKS OF ACCOUNTS WERE REJECTED AND ESTIMATIO N OF INCOME WAS MADE BASED ON BEST OF JUDGMENT. ON SUCH A FACTUAL SITUATION, IT WAS OBSERVED BY THE BENCH THAT SECTION 40(A)(IA) COVERE D ONLY THOSE ITEMS FALLING WITHIN SECTIONS 30 TO 38 OF THE ACT. HERE, ON THE OTHER HAND, BOOKS WERE NOT REJECTED BY THE ASSESSING OFFI CER AT ALL. HENCE, IN OUR OPINION, THE SAID DECISION WILL NOT HELP THE ASSESSEES CASE. HOWEVER, WHETHER THE AMOUNTS WERE FULLY PAID OR PAY ABLE AT THE END OF THE RELEVANT PREVIOUS YEAR, IS NOT CLEAR FROM TH E RECORD. SPECIAL BENCH OF THIS TRIBUNAL IN THE CASE OF MERILYN SHIPP ING AND TRANSPORT V. ACIT (2012) 16 ITR (TRIB.) 1 (SB) HAS HELD THAT SECTION 40(A)(IA) WOULD BE APPLICABLE ONLY TO AMOUNTS STANDING PAYABL E AT THE END OF THE RELEVANT PREVIOUS YEAR. WE ARE, THEREFORE, OF THE OPINION THAT THE MATTER REQUIRES A FRESH LOOK BY THE ASSESSING OFFIC ER. WE SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND REMIT THE ISSUE OF DISALLOWANCE I.T.A. NO. 116/MDS/11 I.T.A. NO. 1685/MDS/10 C.O. NO. 117/MDS/11 21 UNDER SECTION 40(A)(IA) TO THE FILE OF THE A.O. FOR CONSIDERATION AFRESH IN ACCORDANCE WITH LAW. 23. CROSS-OBJECTION OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 24. THIS LEAVES US WITH APPEAL IN I.T.A. NO. 116/MD S/2011 OF THE REVENUE, DIRECTED AGAINST AN ORDER DATED 8.10.2010 OF COMMISSIONER OF INCOME TAX (APPEALS)-V, CHENNAI. 25. FACTS APROPOS ARE THAT ASSESSEE HAD SUBMITTED A PETITION BEFORE CIT(APPEALS) TO AMEND HIS ORDER DIRECTING TH E ASSESSING OFFICER TO ALLOW DEDUCTION CLAIMED UNDER SECTION 80 -IB(10) OF THE ACT. AS PER THE ASSESSEE, ASSESSING OFFICER WHILE GIVING EFFECT TO THE ORDER OF CIT(APPEALS), HAD NOT CONSIDERED THE REVIS ED COMPUTATION OF DEDUCTION FILED BY IT DURING THE COURSE OF THE ASSE SSMENT PROCEEDINGS. CIT(APPEALS) WAS APPRECIATIVE OF THIS CONTENTION. ACCORDING TO HIM, ASSESSEE HAD SUBMITTED THE WORKIN GS BEFORE THE ASSESSING OFFICER AND THE ASSESSING OFFICER WAS REQ UIRED TO CONSIDER SUCH REVISED WORKING WHILE COMPUTING DEDUCTION UNDE R SECTION 80- IB(10) OF THE ACT. CIT(APPEALS) EFFECTED A RECTIFI CATION OF HIS EARLIER I.T.A. NO. 116/MDS/11 I.T.A. NO. 1685/MDS/10 C.O. NO. 117/MDS/11 22 ORDER DATED 1.7.2010 AND DIRECTED THE ASSESSING OFF ICER TO COMPUTE DEDUCTION BASED ON THE REVISED FIGURES GIVEN BY THE ASSESSEE. 26. NOW BEFORE US, LEARNED D.R., STRONGLY ASSAILING THE 154 ORDER, SUBMITTED THAT ASSESSING OFFICER WAS NOT GIVEN AN O PPORTUNITY BEFORE EFFECTING THE RECTIFICATION. ACCORDING TO HIM, THI S WAS NOT AN ISSUE WHICH WAS AMENABLE TO A RECTIFICATORY PROCEEDING UN DER SECTION 154 OF THE ACT. 27. PER CONTRA, LEARNED A.R. STRONGLY SUPPORTED THE ORDER OF CIT(APPEALS). 28. WE HAVE PERUSED THE ORDERS AND HEARD THE RIVAL SUBMISSIONS. WE HAVE ALREADY HELD IN THE APPEAL OF THE REVENUE I N I.T.A. NO. 1685/MDS/2010 THAT CLAIM FOR DEDUCTION UNDER SECTIO N 80-IB(10) OF THE ACT PREFERRED BY THE ASSESSEE HAS TO BE WORKED OUT CONSIDERING ALL THE PROJECTS TOGETHER AS A SINGLE UNIT AND NOT AS SEPARATE UNITS. ADMITTEDLY THE REVISED COMPUTATION WAS PREFERRED BY THE ASSESSEE, FOR RE-WORKING THE DEDUCTION UNDER SECTION 80-IB(10 ) OF THE ACT, CONSIDERING EACH OF THE PROJECT AS INDEPENDENT. SI NCE THIS METHODOLOGY HAS NOT BEEN ACCEPTED BY US, IN OUR OPI NION, NO PURPOSE WOULD BE SERVED BY THE DIRECTIONS GIVEN BY THE CIT(APPEALS). I.T.A. NO. 116/MDS/11 I.T.A. NO. 1685/MDS/10 C.O. NO. 117/MDS/11 23 IN ANY CASE, WHEN ASSESSING OFFICER IS COMPUTING DE DUCTION UNDER SECTION 80-IB(10) OF THE ACT, PURSUANT TO THE DIREC TION GIVEN BY US IN REVENUES APPEAL IN I.T.A. NO. 1685/MDS/2010, HE IS TO GIVE AN OPPORTUNITY TO THE ASSESSEE. THUS, IN VIEW OF OUR ORDER IN I.T.A. NO. 1685/MDS/2010, WE ARE OF THE OPINION THAT THE SUBST RATA FOR THE REVISION ATTEMPTED BY THE CIT(APPEALS) HAS DISAPPEA RED. 27. IN THE RESULT, WE ALLOW THE APPEAL FILED BY THE REVENUE. 28. TO SUMMARIZE THE RESULT, APPEAL OF THE REVENUE IN I.T.A. NO. 1685/MDS/2010 IS PARTLY ALLOWED, CROSS-OBJECTION OF THE ASSESSEE IN C.O. NO. 117/MDS/2011 IS ALLOWED FOR STATISTICAL PU RPOSES AND APPEAL OF THE REVENUE IN I.T.A. NO. 116/MDS/2011 STANDS AL LOWED. THE ORDER WAS PRONOUNCED IN THE COURT ON TUESDAY, T HE 27 TH OF NOVEMBER, 2012, AT CHENNAI. SD/- SD/- (V.DURGA RAO) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 27 TH NOVEMBER, 2012. KRI. COPY TO: ASSESSEE/ASSESSING OFFICER/CIT(A)-V, CHEN NAI-34/ CIT, CHENNAI-III, CHENNAI/D.R./GUARD FILE