The ACIT, (CENTRAL)-II, Bhopal V. M/s. Swadesh Developers & Builders, Bhopal

ITA 17/IND/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 9734 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 10-09-2018
• Assessment Year: 2009-2010
• Appeal Filed On: 19-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K MITRA
• Assessee Lawyers: S S DESH
• Section: 143(3); 80IB

Judgement Text

ITA 17/IND/2017 M/S. SWADESH DEVELOPERS & BUILDERS, BHOPAL , , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.17/IND/2017 ASSESSMENT YEAR: 2009-10 / VS. ACIT (CE NTRAL) - II BHOPAL (APPELLANT) M/S. SWADESH DEVELOPERS & BUILDERS, BHOPAL (REVENUE ) P.A. NO. AARFS6977P APPELLANT BY SHRI P.K. MITRA, D.R. RESPONDENT BY SHRI S.S. DESHPANDEY, AR DATE OF HEARING: 10.09.2018 DATE OF PRONOUNCEMENT: 26.09.2018 / O R D E R PER KUL BHARAT, J.M: THIS APPEAL IS FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), U JJAIN, DATED 25.10.2016 PERTAINING TO THE ASSESSMENT YEAR 2009 - 10. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPEAL : ITA 17/IND/2017 M/S. SWADESH DEVELOPERS & BUILDERS, BHOPAL 2 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE T HE LD. CIT(A) ERRED IN DELETING THE ADDITION MADE BY THE A.O. OF RS.2,53,19,825/- ON ACCOUNT OF DISALLOWANCE OF DEDUCTION CLAIMED U/S 80IB(10) OF THE ACT AND RS.16,74,394/- ON ACCOUNT OF BOGUS CREDITOR S WITHOUT APPRECIATING THE FACTS AND EVIDENCES BROUGHT INTO L IGHT BY THE A.O. DURING ASSESSMENT PROCEEDINGS AND REMAND PROCEEDING S. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE T HE LD. CIT(A) ERRED IN HOLDING THE ASSESSEE ELIGIBLE FOR DEDUCTIO N U/S 80IB(10) IN ABSENCE OF DATE OF ORIGINAL PERMISSION OF PROJECT W .R.T. COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORITY AS DEFINE D IN EXPLANATION (II) TO CLAUSE (A) OF SECTION 80IB(10) OF THE ACT. 3. THE APPELLANT RESERVES HIS RIGHT TO ADD, AMEND OR A LTER THE GROUNDS OF APPEAL ON OR BEFORE THE DATE, THE APPEAL IS FINA LLY HEARD FOR DISPOSAL. 2. BRIEFLY STATED FACTS ARE THAT THE CASE OF THE ASSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMEN T U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS THE ACT) WAS FRAMED VIDE ORDER DATED 20.12.2011. THE A.O. WHILE FRAMING THE ASSESSMENT, DISALLOWED THE CLAI M OF DEDUCTION U/S 80IB(10) OF THE ACT ON THE GROUND THAT A CERTIFICATE FROM THE C.A. IN FORM NO.10CCB WAS NOT FURNISHED BY THE ASSESSEE. IT WAS FURTHER OBSERVED B Y THE A.O. THAT THE ASSESSEE FIRM HAD ACTED MERELY AS A CONTRACTOR. FURTHER, THE A.O. MADE ADDITION OF ITA 17/IND/2017 M/S. SWADESH DEVELOPERS & BUILDERS, BHOPAL 3 RS.16,74,394/- IN RESPECT OF THE CREDITORS ON WHICH THE NOTICE ISSUED BY THE A.O. COULD NOT BE SERVED. 3. AGGRIEVED BY THIS, THE ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A), WHO AFTER CONSIDERING SUBMISSIONS , ALLOWED THE APPEAL. NOW THE REVENUE IS IN APPEAL. 4. GROUND NO.2 AND PART OF GROUND NO.1 RELATES TO DELETION OF ADDITION MADE ON ACCOUNT OF DISALLOWANCE OF DEDUCTION CLAIMED U/S 80IB(10) OF THE ACT. LD. D.R. SUPPORTED THE ORDER OF THE A.O. AND SUBMITTED THAT LD . CIT(A) WAS NOT JUSTIFIED IN DELETING THE ADDITION. H E SUBMITTED THAT THE ASSESSING OFFICER HAS EXAMINED THE ELIGIBILITY OF DEDUCTION AND HAS COME TO A CONCLUSION THAT THE ASSESSEE IS A CONTRACTOR AND NOT IS A DEVELOPER. 5. ON THE CONTRARY, LD. COUNSEL FOR THE ASSESSEE SUPPORTED THE ORDER OF THE LD. CIT(A) AND SUBMITTED THAT THE OBJECTIONS OF THE A.O. ARE UNJUSTIFIED AND IS CON TRARY TO ITA 17/IND/2017 M/S. SWADESH DEVELOPERS & BUILDERS, BHOPAL 4 THE LAW. LD. COUNSEL FOR THE ASSESSEE REITERATED TH E SUBMISSIONS AS MADE BEFORE THE LD. CIT(A). 6. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE A.O. REJECTED CLAIM OF DEDUCTION U/S 80(IB)10 OF THE ACT ON THE GROUND THAT THERE WAS DISCREPANCY IN THE FORM NO.10CCB, WHEREIN AS PER PARA-29 OF THE FORM, THE PROFIT OF THE ASSESSEE FROM THE ELIGIBLE BUSINESS WAS STATED AT RS.3,81,46,910/-, WHE REAS THE DECLARED NET PROFIT AS PER AUDITED PROFIT & LOSS AC COUNT WAS RS.2,53,19,825/-. SIMILARLY, IN PARA NO.30, THE EL IGIBLE DEDUCTION U/S 80IB(10) OF THE ACT IS STATED AT RS.3,81,46,910/-, WHEREAS THE ASSESSEE HAS CLAIMED DEDUCTION U/S 80IB(10) OF THE ACT AT RS.2,53,19,825/ -. IT IS FURTHER OBSERVED BY THE A.O. THAT IN RESPECT TO T HE QUESTION OF COMPLETION, THE ASSESSEE SUBMITTED THAT TH E PROJECT OF DEVELOPING AND BUILDING HOUSING PROJECT I S STILL IN ITA 17/IND/2017 M/S. SWADESH DEVELOPERS & BUILDERS, BHOPAL 5 PROCESS AND HENCE COMPLETION CERTIFICATE IS NOT PRODU CED. THE A.O. OBSERVED THAT ONE OF THE CONDITIONS PRESCRI BED FOR ALLOWANCE OF DEDUCTION U/S 80IB OF THE ACT IS THAT WHE RE A HOUSING PROJECT HAS BEEN APPROVED BY THE LOCAL AUTHORI TY ON OR AFTER FIRST DATE OF APRIL, 2005, THE COMPLETION SHOULD BE WITHIN 5 YEARS FROM THE END OF THE FINANCIAL YEAR I N WHICH THE HOUSING PROJECT IS APPROVED BY THE LOCAL AUTHORITY. THE SECTION DEFINES THE DATE OF COMPLETIO N AS THE DATE OF COMPLETION OF CONSTRUCTION OF THE HOUSIN G PROJECT SHALL BE TAKEN TO BE THE DATE ON WHICH THE COMPLETION CERTIFICATE IN RESPECT OF SUCH HOUSING PR OJECT IS ISSUED BY LOCAL AUTHORITY. FURTHER, A.O. OBSERVED TH AT AS PER THE ASSESSEES REPLY, IT IS CLEAR THAT NO SUCH CER TIFICATE HAS BEEN ISSUED, THEREFORE, THE ASSESSEE IS NOT ELIGI BLE FOR DEDUCTION U/S 80IB(10) OF THE ACT. FURTHER, THE A. O. OBSERVED THAT ASSESSEE HAD GOT THE PLOT REGISTERED IN NAME OF THE CUSTOMERS AND THERE AFTER CONSTRUCTED THE HOUS E ITA 17/IND/2017 M/S. SWADESH DEVELOPERS & BUILDERS, BHOPAL 6 THEIR OWN, THAT ITSELF MAKES IT CLEAR THAT THE ASSESSEE HAS ACTED AS MERE CONTRACTOR FOR THE CUSTOMERS AND NOT AS A DEVELOPER OF THE HOUSING PROJECT. THUS, THE A.O. R EJECTED THE CLAIM ON THESE GROUNDS. HOWEVER, THE LD. CIT(A) ALLOWED THE CLAIM BY OBSERVING AS UNDER: GROUND NO.2:- THROUGH THIS GROUND OF APPEAL THE APP ELLANT HAS CHALLENGED THE DISALLOWANCE OF RS.2,53,19,8252/- ON ACCOUNT OF REJECTION OF CLAIM U/S 80IB(10). THE A.O. DISALLOWED THE CLAIM OF THE APP ELLANT ON THE GROUND THAT THE AUDIT REPORT IN FORM NO.10CCB, DATED 15.9.2009 MENT IONS THE PROFIT FROM THE ELIGIBLE BUSINESS AT RS.3,81,46,910/-, WHEREAS THE APPELLANT DECLARED THE NET PROFIT AS PER AUDITED PROFIT AND LOSS ACCOUNT AT RS .2,53,19,825/-. THE A.O. ALSO MENTIONED THAT THE APPELLANT HAS NOT FURNISHED THE COMPLETION CERTIFICATE. THE A.O. ALSO MENTIONED THAT THE APPELLANT WORKED AS A MERE CONTRACTOR RATHER THAN DEVELOPER OF THE HOUSING PROJECT. 4.2.1 THE APPELLANT SUBMITTED THAT AS PER AUDIT RE PORT IN THE FORM NO.10CCB THE DEDUCTIBLE PROFIT WAS AT RS.3,81,46,91 0/- DUE TO TYPOGRAPHICAL ERROR. THE APPELLANT HAS OBTAINED A CERTIFICATE IN THIS BEHALF FROM THE AUDITOR. THERE CAN BE TYPOGRAPHICAL ERROR IN THE CERTIFICATE , BUT THE SAME CANNOT BE MADE THE BASIS OF DISALLOWANCE. THE APPELLANT HAS CLARI FIED THIS ISSUE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 4.2.2 THE APPELLANT GOT THE BUILDING PERMISSION ON 11.11.2006. THE PROJECT WAS REQUIRED TO BE COMPLETED WITHIN A PERIO D OF 5 YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE PERMISSION WAS GRAN TED. THE PROJECT WAS REQUIRED TO BE COMPLETED BY 31.3.2012. THE PROJECT UNDER CONSIDERATION HAS BEEN COMPLETED ON 22.3.2012 AND THE APPELLANT OBTAI NED THE CERTIFICATE IN TIME ON 22.3.2012. 4.2.3 THE APPELLANT ACTED AS A DEVELOPER HOLDING A COLONISERS LICENSE IN HIS OWN NAME. HE OBTAINED ALL THE DEVELOPMENT, BUI LDING AND OTHER PERMISSIONS FROM THE CONCERN DEPARTMENTS AND AGENCIES FOR CONST RUCTION UNDER GROUP HOUSING SCHEME. THE RULES PROVIDED FOR MINIMUM OPE N SPACE FOR THE GARDENS, COMMUNITY SERVICES, ROADS WATER SUPPLY, ELECTRICITY TRANSFORMERS/SUB-STATIONS, PROVISION FOR THE ECONOMICALLY WEAKER SECTION ETC. SUCH PROVISIONS ARE APPLICABLE TO HOUSING PROJECTS AND NOT TO INDIVIDUAL HOUSES. THE APPROVING AUTHORITY APPROVED THE PROJECT AS A WHOLE AND ISSUED THE COMP LETION CERTIFICATE. ITA 17/IND/2017 M/S. SWADESH DEVELOPERS & BUILDERS, BHOPAL 7 4.2.4 THE APPELLANT IS THE OWNER OF THE PROJECT LA ND. THERE IS A COMPREHENSIVE AGREEMENT WITH THE BUYER OF THE HOU SE, WHEREIN EACH AND EVERY DETAIL IS MENTIONED AS TO THE OWNERSHIP OF LAND, TH E DETAILS OF THE COMMON AMENITIES TO BE PROVIDED, THE BUILT UP AREA OF THE HOUSE, THE TYPE OF ELECTRICAL AND SANITORY FITTINGS TO BE PROVIDED, THE TOTAL COST OF THE HOUSE AND THE CONSTRUCTION STAGE WISE PAYMENT SCHEDULE AND THE PROBABLE TIME P ERIOD WITH IN WHICH THE POSSESSION SHALL BE HANDED OVER. THE PROJECTS ARE ADVERTISED AND SUCH IN THE MEDIA AND BY WAY OF PAMPHLETS AND HOARDING IN THE T OWN AND EXHIBITIONS ETC. THE COPIES OF THE VARIOUS AGREEMENTS, SALE DEEDS EM PHASIZE THE FACT THAT THE SUBJECT MATTER OF SALE IS A COMPLETE RESIDENTIAL UN IT AND NOT AN OPEN PLOT OR AN INCOMPLETE STRUCTURE. THE SAID MAIN AGREEMENT WH ICH IS THE DOCUMENT THAT GOVERNS THE SALE CONTAINS A CLAUSE WHEREBY THE CUST OMER HAS AN OPTION TO GET THE SALE DEED EXECUTED IN HIS FAVOUR WHILE THE CONSTRUC TION IS IN PROGRESS. 4.2.5 THE AGREEMENTS GO TO PROVE THAT THE APPELLAN T HAS IN FACT ACTED AS A DEVELOPER AND NOT AS A CONTRACTOR. MOST OF THE HOU SES SOLD ARE FINANCED BY ONE BANK OR THE OTHER. AS AN ESSENTIAL CONDITION OF FI NANCE, THE BANKS NEED THE EQUITABLE MORTGAGE OF THE HOUSE BEFORE THE RELEASE OF THE LOAN AMOUNT. THEREFORE, FOR THE MUTUAL CONVENIENCE OF THE SELLER AND THE BUYER A SALE DEED IS EXECUTED IN RESPECT OF THE PLOT WITH THE CONSTRUCTI ON THEREON, IN THE STATE IT IS AT THAT TIME: WITHOUT WHICH THE BANK WOULD NOT ENTERTA IN THE LOAN PROPOSAL. THEREAFTER, THE BANK RELEASES THE INSTALMENTS AND E ACH TIME IT DOES SO, IT OBTAINS A CERTIFICATE FROM ITS ARCHITECT AS TO THE STAGE OF CONSTRUCTION. HENCE THE SALE DEED EXECUTED DURING THE COURSE OF CONSTRUCTION IS ONLY TO FACILITATE THE SANCTIONING OF LOAN AS MANDATORY CONDITION OF THE B ANKS. 4.2.6 IT MAY ALSO BE OBSER5VED THAT THE LOAN AMOUN TS ARE RELEASED BY THE BANK TO THE DEVELOPER/BUILDER DIRECTLY ON THE BASIS OF THE AGREEMENT/ ACCEPTANCE LETTER AND SUBMISSION OF SALE DEED AND N OT TO THE CUSTOMER; HOWEVER, IF THE CASE WAS THAT OF SALE AND SUBSEQUENT CONSTRU CTION BY THE APPELLANT FOR AN ON BEHALF OF THE CUSTOMER, AS CONTENDED BY THE ASSE SSING OFFICER THE LOAN WOULD HAVE BEEN DISBURSED TO THE INDIVIDUAL CUSTOMER AND NOT TO THE BUILDER. IT WAS NEVER THE INTENTION OF THE APPELLANT ASSESSEE TO SE LL THE DEVELOPED PLOT. DOING SO WOULD BE AGAINST THE PERMISSIONS GRANTED BY APPROVI NG AUTHORITY. THE ASSESSING OFFICER OUGHT TO HAVE READ THE MAIN AGRE EMENT, THE DEVELOPMENT PERMISSION, THE BUILDING PERMISSION, THE SALE DEED AND THE POSSESSION LETTER ALL IN CHRONOLOGY OF THE EVENTS AND NOT THE SALE DEED A LONE IN ISOLATION. 4.2.7 FURTHER, IT WOULD BE IMPORTANT TO POINT OUT THAT THE APPELLANT HAS ONLY BEEN ENGAGED INTO CONSTRUCTION OF ROW HOUSES W HERE EACH HOUSE HAS A COMMON WALL WITH THE OTHER HOUSE, DURING THE PERIOD UNDER ASSESSMENT. THEREFORE, THERE IS NO QUESTION OF SALE OF OPEN PLO TS IN BETWEEN A ROW OF HOUSES. THE SAME IS EVIDENT FROM THE BUILDING PERMISSIONS O N RECORD. THE PLOTS A-104, A- 113, B-117 MENTIONED BY THE ASSESSING OFFICER IN PA RA 7 ARE IN FACT ROW HOUSES WHICH ARE REFERRED TO BY THEIR PLOT NUMBERS. MEANI NG THEREBY, THAT EVEN IN A DIRE ITA 17/IND/2017 M/S. SWADESH DEVELOPERS & BUILDERS, BHOPAL 8 SITUATION IF ONE WANTS TO BUY A PLOT IT CANNOT BE S OLD AS SUCH UNDER THE APPROVAL OBTAINED FROM THE DEPARTMENT. IT WOULD BE A VIOLAT ION OF THE BUILDING PERMISSION AT THE SAME TIME. REGISTRATION OF SUCH PLOTS IS NO T PERMITTED BY THE SUB-REGISTRAR OF PROPERTIES WHEN THE PERMISSION IS GRANTED FOR TH E CONSTRUCTION OF ROW HOUSES. THE COMPLETION CERTIFICATE HAS BEEN GRANTED FOR THE PROJECT AS WHOLE AND NOT FOR INDIVIDUAL HOUSES. THE SAME STANDS TESTIMONY TO TH E FACT THAT THE APPELLANT HAS CONSTRUCTED ALL THE HOUSES AS A SINGLE PROJECT AND NOT AS A CONTRACTOR. IT MAY ALSO BE SEEN THAT THE DEVELOPER/BUILDER HAS HANDED OVER THE COLONY AS A WHOLE TO THE MUNICIPAL CORPORATION AND NOT INDIVIDUAL HOU SES AT DIFFERENT POINTS OF TIME. 4.2.8 THE ASSESSING OFFICER HAS NOT BROUGHT ON REC ORD EVEN A SINGLE INSTANCE WHERE THE HOUSE HAS BEEN LATER CONSTRUCTED BY THE CUSTOMER HIMSELF OR BY A DIFFERENT CONTRACTOR OR IS STILL LYING UNCONST RUCTED. EACH AND EVERY HOUSE HAS BEEN BUILT BY THE APPELLANT ALONE. THIS BEING THE CASE IT ONLY MEANS THAT THE APPELLANT IS THE DEVELOPER AND BUILDER OF THE PROJE CT AS A WHOLE AND NOT A CONTRACTOR FOR INDIVIDUAL CUSTOMER. THE POSSESSION LETTERS AND THE SALE DEEDS HAVE BEEN EXAMINED BY THE CONCERNED SUB-REGISTRAR O F PROPERTIES OF BHOPAL AND THE REGISTRIES HAVE TAKEN PLACE ACCORDINGLY, NO DEF ICIENCIES, WHATSOEVER, HAVE BEEN POINTED OUT BY THEM EVER SINCE THE PROJECT HAS BEEN STARTED. IN THE LIGHT OF THE ABOVE FACTS ON RECORD IT IS CLEAR THAT THE CASE CITED BY THE ASSESSING OFFICER (SKY BUILDERS & DEVELOPERS VS. ITO BHOPAL 2011 14 T AXMANN.COM 78) IS NOT APPLICABLE TO THE ISSUE AT HAND AS THE FACTS AND CI RCUMSTANCES OF THE CTWO CASES ARE ENTIRELY DIFFERENT. THE SKY BUILDERS CASE HAS BEEN DECIDED ON THE ISSUE OF NON-GRANTING OF COMPLETION CERTIFICATE WITH IN THE FINANCIAL YEAR WHICH IS NOT THE CASE OF THE APPELLANT. FURTHERMORE, THE SAME BENCH OF ITAT INDORE HAS COME OUT CLEARLY ON THE IDENTICAL ISSUE IN FAVOUR OF THE ASS ESSEE IN THE CASE OF M/S. VARDHMAN BUILDERS AND DEVELOPERS VS. ITO IN ITA NO. 559/IND/2010 DATED 9.5.2012. 4.2.9 THE FOLLOWING CASES WHEREIN THE HON'BLE ITAT S HAVE OPINED IN FAVOUR OF THE APPELLANT IN IDENTICAL ISSUES REFERRE D TO THEM: A) GREEN ASSOCIATES VS. ITO WD.5(2), BARODA: ITA NO.82 2/AHD/2013. B) SATSANG DEVELOPERS ITA NO.1011, 2498 AND 1221 OF 20 12 ORDER DATED 12.11.2013. C) DCIT SMR BUILDERS (P) LTD (2012) 24 TAXMANN.COM 194 (HYD) D) ITO VS. MEGHAL DEVELOPERS ITA NO.296/AHD/2013 E) M/S. NAGMA DEVELOPERS, BARODA VS. ITO WD 2(5) BAROD A ITA NO.2385/AHD/2012 F) NARAYAN REALTY VS. DCIT IN ITA NO.2293/AHD/2012 AND 2095/AHD/2013 VIDE ORDER DATED 2.5.2014 THUS, IT IS PROVED BEYOND DOUBT THAT THE APPELLANT HAS ACTED AS A BUILDER AND DEVELOPER AND NOT A CONTRACTOR OF THE CUSTOMER, AND THE VIEW HAS BEEN UPHELD BY ALL THE COURTS INCLUDING THE ITAT INDORE. ITA 17/IND/2017 M/S. SWADESH DEVELOPERS & BUILDERS, BHOPAL 9 THE APPELLANT HAS CARRIED ONLY THE ELIGIBLE BUSINE SS DURING THE YEAR UNDER CONSIDERATION. THE ASSESSING OFFICER HAS CON SIDERED ONLY THE CONSOLIDATED PROFIT AND LOSS ACCOUNT. THERE IS SOM E SALE RELATING TO THE PREVIOUSLY COMPLETED PROJECT AND SOME EXPENSES. HO WEVER, THE APPELLANT HAS IN FACT PREPARED SEPARATE PROFIT AND LOSS ACCOU NT FOR THE ELIGIBLE BUSINESS. THEREFORE, THE APPELLANT IS ELIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE I.T. ACT. THEREFORE, THE DISALLOWANCE MADE BY THE A.O. AMOUNTING TO RS.2,53,19,825/- IS DELETED. THE APPEAL ON THIS GROUND IS ALLOWED. 7. THE ABOVE FINDING OF FACT BY THE LD. CIT(A) IS NOT REBUTTED BY THE REVENUE BY FURNISHING ANY ADVERSE MATERIALS ON RECORD. FROM THE FINDING OF THE LD. CIT (A), IT IS FOUND THAT THE OBJECTIONS OF THE ASSESSING OFFICER HAS BEEN MET BY THE ASSESSEE AS THE ASSESSEE HAS PRODUCED A CERTIFICATE FROM THE CHARTERED ACCOUNTANT STATING THE DISCREPANCY AS TYPOGRAPHICAL ERROR AND ALSO BY FURNISHI NG COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORITY. FURTHER, AS PER THE CBDT INSTRUCTION NO.4 OF 2009 DAT ED 30.6.2009, THE ASSESSEE CAN CLAIM DEDUCTION ON A YEAR TO YEAR BASIS. WE THEREFORE, DO NOT SEE ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A) AND THE GROUND OF THE REVENU ES APPEAL IS REJECTED. ITA 17/IND/2017 M/S. SWADESH DEVELOPERS & BUILDERS, BHOPAL 10 8. PART OF THE GROUND NO.1 IS AGAINST DELETING THE ADDI TION OF RS.16,74,394/- ON ACCOUNT OF BOGUS CREDITORS. L D. D.R. SUPPORTED THE ORDER OF THE ASSESSING OFFICER AND SUBM ITTED THAT LD. CIT(A) WAS NOT JUSTIFIED IN DELETING THE ADDI TION. LD. D.R. SUBMITTED THAT THE NOTICES SENT TO THESE CR EDITORS WERE RETURNED UNSERVED, THEREFORE, THE A.O. WAS JUST IFIED IN MAKING THE ADDITION. LD. COUNSEL FOR THE ASSESSEE SUPPORTED THE ORDER OF THE LD. CIT(A) AND SUBMITTED THAT THE ASSESSING OFFICER FAILED TO APPRECIATE THE FACTS THAT ALL THESE WERE SUPPLIERS AND THE ASSESSEE HAS BEEN PURCHASI NG MATERIAL FROM THEM. THE LD. CIT(A) HAS DELETED THIS ADDITION BY OBSERVING AS UNDER: THE ABOVE CREDITORS ARE OLD SUPPLIERS IN THE BUSIN ESS OF THE APPELLANT. ALL THE THREE PARTIES ARE FILING THEIR INCOME TAX RETURNS. THE APPELLANT IS FREQUENTLY MAKING PURCHASES FROM T HE ABOVE PARTIES. THE A.O. HAS NOT DISALLOWED THE EXPENSES CLAIMED BY THE APPELLANT AS A RESULT OF TRANSACTION WITH THE ABOVE PARTIES. THE APPELLANT FURNISHED THE LEDGER ACCOUNT, COPY OF BIL LS AND BANK STATEMENT WHICH PROVES THAT THE PAYMENT HAS BEEN MA DE THROUGH ACCOUNT PAYEE CHEQUE. THE A.O. IS NOT JUSTIFIED IN TREATING THE ABOVE CREDITORS AS BOGUS. THEREFORE, THE ADDITION MADE B Y THE A.O. AMOUNTING TO RS.16,74,394/- IS DELETED. THE APPEAL ON THESE GROUNDS IS ALLOWED. ITA 17/IND/2017 M/S. SWADESH DEVELOPERS & BUILDERS, BHOPAL 11 9. WE DO NOT SEE ANY REASON TO INTERFERE IN THIS FIND ING OF THE LD. CIT(A) AS THE FINDINGS ARE BASED UPON THE EVID ENCES FURNISHED BY THE ASSESSEE. MOREOVER, THE ASSESSEE HAS FILED AFFIDAVITS OF THE CREDITORS, THEIR BANK ACCOUNT AND ALSO THE SUPPORTING BILLS. THIS GROUND OF THE REVENUES APPEAL IS DISMISSED. 10. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 26.09. 2018. SD/- (MANISH BORAD) SD/- (KUL BHARAT) A CCOUNTANT MEMBER JUDICIALMEMBER INDORE; DATED : 26/09/2018 VG/SPS COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER SR. PRIVATE SECRETARY, INDORE