Asst. CIT, Central Circle-2, Thane V. M/s. Sai Homes, Navi Mumbai

ITA 2033/PUN/2012

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6952 (ITAT-PUNE)
• Duration Of Justice: 4 year(s) 5 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 25-08-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 19-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Bogus purchase; Business income; Search and seizure; Document seized; Valuation report; Documents seized
• Section: 143(3); 133A; 153A; 139(5); 131; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO. 5836 / M /20 12 / ASSESSMENT YEAR : 20 0 6 - 0 7 M/S. SAI HOMES 310/313, 3 RD FLOOR, PERSIPOLIS, CHS, PLOT NO.74, SECTOR 17, VASHI, NAVI MUMBAI. . / APPELLANT PAN: A BAFS3226K VS. THE ASST. COMMISSIONER OF INCOME T AX, CENTRAL CIRCLE 2 , THANE . / RESPONDENT . / ITA NO S . 2032 & 2033 /P U N/20 12 / ASSESSMENT YEAR S : 20 0 8 - 0 9 & 2009 - 10 THE ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2, THANE . / APPELLANT VS . M/S. SAI HOMES 310/313, 3 RD FLOOR, PERSIPOLIS, CHS, PLOT NO.74, SECTOR 17, VASHI, NAVI MUMBAI. . / RESPONDENT PAN: ABAFS3226K ITA NO S . 5836 TO 5838 / M /20 12 ITA NOS.2032 & 2033/PUN/2012 M/S. SAI HOMES 2 . / ITA NO S . 5837 & 5838 / M /20 12 / ASSESSMENT YEAR S : 20 08 - 09 & 2009 - 10 M/S. SAI HOMES 310/313, 3 RD FLOOR, PERSIPOLIS, CHS, PLOT NO.74, SECTOR 17, VASHI, NAVI MUMBAI. . / APPELLANT PAN: ABAFS3226K VS. THE ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2, THANE . / RESPONDENT ASSESSEE BY : NIKHIL PATHAK RESPONDENT BY : RAJEEV KUMAR / DATE OF HEARING : 09.03 . 201 7 / DATE OF PRONOUNCEMENT: 31 . 0 3 .201 7 / ORDER PER SUSHMA CHOWLA, J M : OUT OF THIS BUNCH OF APPEALS, THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF CIT(A) - I, THANE, DATED 13.07.2012, RELATING TO ASSESSMENT YEAR 2006 - 07 AGAINST ORDER PASSED UNDER SECTION 153C R.W.S. 143(3) OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . FURTHER, BOTH THE ASSESSEE AND THE REVENUE HAVE FILED CROSS APPEALS AGAINST RESPECTIVE ORDERS OF CIT(A), BOTH DATED 13.07.2012 RELATING TO ASSESSMENT YEARS 2008 - 09 AND 2009 - 10 AGAINST ORDERS PASSED UNDER SECTION 153C R.W.S. 143(3) OF THE ACT. 2 . THE APPEALS OF ASSESSEE AND THE REVENUE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. ITA NO S . 5836 TO 5838 / M /20 12 ITA NOS.2032 & 2033/PUN/2012 M/S. SAI HOMES 3 ITA NO.5836/M/2012, ASSESSMENT YEAR: 2006 - 07 ASSESSEES APPEAL 3. THE ONLY GROUND OF APPEAL RAISED BY THE ASSESSEE READS AS UNDER: - 1. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE ORDER PASSED BY THE ASSESSING OFFICER U/S. 153C R.W.S. 143(3) OF THE INCOME - TAX ACT, 1961 WHICH IS ILLEGAL, INVALID AND BAD IN LAW. THE LD. CIT(A) OUGHT TO HAVE SET ASIDE THE ORDER OF THE ASSESSING OFFICER AS IT WAS NOT PASSED IN A CCORDANCE WITH LAW. 4. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE FAIRLY POINTED OUT THAT THE SAID GROUND OF APPEAL IS NOT PRESSED AND HENCE, THE SAME IS DISMISSED AS NOT PRESSED. THE APPEAL OF THE ASSESSEE IS DISMISSED. ITA NO.5837/M/2012, ASSESSMENT YEAR : 2008 - 09 ASSESSEES APPEAL 5. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. THE LEARNED CIT (A) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE ORDER PASSED BY THE ASSESSING OFFICER U / S. 153C R.W.S. 143(3) OF THE ORDER PASSED BY THE ASSESSING OFFICER U / S. 153C R.W.S. 143(3) OF THE INCOME - T AX ACT, 1961 WHICH IS ILLEGAL, INVALID AND BAD IN LAW. THE ID CIT (A) OUGHT TO HAVE SET ASIDE THE ORDER OF THE ASSESSING OFFICER AS WAS NOT PASSED IN ACCORDANCE WITH LAW. 2. THE LEARNED CIT (A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT SOME OF THE FL ATS CONSTRUCTED BY THE APPELLANT EXCEEDED THE PRESCRIBED CEILING OF 1,000 SQ. FT. AND, THEREFORE, THE APPELLANT WAS NOT ENTITLED TO DEDUCTION U / S. 80 - IB( 10 ) OF THE ACT WITH RESPECT TO SUCH FLATS. THE ID. CIT(A) OUGHT TO HAVE HELD THAT THE CONSTRUCTION CARR IED OUT BY THE APPELLANT WAS IN ACCORDANCE WITH LAW AND, THEREFORE, IT WAS ENTITLED TO THE CLAIM FOR DEDUCTION U / S. 80 - IB(10) OF THE ACT IN ITS ENTIRETY. 3. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE ASSESSING OFFICER WAS JUSTIFI ED IN MAKING THE ADDITION OF RS.19,42,218/ - AS ALLEGED BOGUS PURCHASE. 4. THE LEARNED CIT (A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE EXPENDITURE PERTAINING TO THE UNSIGNED VOUCHERS WAS INCURRED OUTSIDE THE BOOKS OF ACCOUNT AND IN DIRECTING THE ASSESSING OFFICER TO MAKE ADDITION TO THE EXTENT OF EXPENSES PERTAINING TO THE YEAR UNDER CONSIDERATION. 5. THE LEARNED CIT (A) HAS ERRED IN LAW AND ON FACTS IN CONCURRING WITH THE ADDITION OF RS. 7,78,900/ - OUT OF RS. 8,13,250/ - MADE BY THE ASSESSING OF FICER ON ACCOUNT OF ALLEGED UNACCOUNTED CASH RECEIPTS. THE ID. CIT (A) OUGHT TO HAVE DELETED THE ADDITION OF RS. 8,13,250/ - IN ITS ENTIRETY. ITA NO S . 5836 TO 5838 / M /20 12 ITA NOS.2032 & 2033/PUN/2012 M/S. SAI HOMES 4 ITA NO.2032/PUN/2012, ASSESSMENT YEAR : 2008 - 09 REVENUES APPEAL 6. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1 . ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) ERRED IN HOLDING THAT THE ASSESSE E IS ELIGIBLE FOR DEDUCTION U/S. 80 IB (10) WHEN ALL THE CONDITIONS FOR THE PURPOSE AS PER THE IT ACT HAVE NOT BEEN FULFILLED. 2 . ON THE FACTS AND CIRCUMSTANC ES OF THE CASE THE CIT(A) ERRED IN HOLDING THAT THE ASSESSEE WOULD BE ELIGIBLE FOR MAKING PRO - RATA DEDUCTION IN RESPECT OF FLATS JOINED HAVING BUILT - UP AREA EXCEEDING 1000 SQ.FT. WITHOUT APPRECIATING THE FACT THAT NO SUCH PROPORTIONATE DEDUCTION IS PROVIDE D IN THE I.T. ACT. 3 . ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) ERRED IN HOLDING THAT THE PROJECT WAS COMPLETED BY 21.02.2007 OVERLOOKING THE FACT THAT AS PER THE THE PROJECT WAS COMPLETED BY 21.02.2007 OVERLOOKING THE FACT THAT AS PER THE CERTIFICATE DATED 31.12.2009 PRODUCED BY THE SECRETARY OF M/S. THARWANI HEIGHTS C O - OP. HSG. SCTY. LTD. THE DATE OF COMPLETION OF THE PROJECT IS SHOWN AS 02.09.2009. 4 . THE APPELLANT PRAYS THE ORDER OF THE CIT(A) MAY BE VACATED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 7. THE GROUNDS OF APPEAL NO.1, 3, 4 AND 5 RAISED BY THE ASSESSE E ARE NOT PRESSED AND HENCE, THE SAME ARE DISMISSED AS NOT PRESSED. 8. THE ISSUE RAISED BY WAY OF GROUND OF APPEAL NO.2 IS AGAINST THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT, WHEREIN FEW OF THE FLATS CONSTRUCTED BY THE ASSESSEE EXCEEDED THE PRESCRIBED CEILING LIMIT OF 1000 SQ.FT. THE REVENUE IS ALSO IN APPEAL IN ASSESSMENT YEAR 2008 - 09 AGAINST THE ORDER OF CIT(A) IN ALLOWING THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT, WHEREIN PRORATA DEDUCTION WAS ALLOWED UNDER SECTION 80IB(10) OF THE A CT WHERE THE BUILT UP AREA AFTER JOINING OF FLATS DID NOT EXCEED 1000 SQ.FT. SINCE THE FLATS WERE NOT CONSTRUCTED AS PER BUILDING PLANS, THE CASE OF REVENUE WAS THAT THE ASSESSEE HAD VIOLATED THE CONDITIONS LAID DOWN IN THE SAID SECTION. 9. WE PROCEED TO DECIDE THE PRESENT APPEALS AFTER HEARING BOTH THE LEARNED AUTHORIZED REPRESENTATIVES BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. ITA NO S . 5836 TO 5838 / M /20 12 ITA NOS.2032 & 2033/PUN/2012 M/S. SAI HOMES 5 10. BRIEFLY, IN THE FACTS OF THE CASE, SEARCH AND SEIZURE ACTION UNDER SECTION 132(1) OF THE ACT WAS CARRIED OUT IN THE CASE OF M/S. THARWANI GROUP ON 16.10.2008. THE ASSESSEE WAS FLAGSHIP CONCERN OF THE SAID GROUP AND WAS ALSO COVERED BY ACTION UNDER SECTION 132 / 133A OF THE ACT. IN VIEW THEREOF, NOTICE UNDER SECTION 153A( 1 ) OF THE ACT WAS ISSUED BY THE ACIT, CC - 1, THANE. SUBSEQUENTLY, AN ACTION UNDER SECTION 153C OF THE ACT WAS ALSO INITIATED AS DURING THE COURSE OF SEARCH PROCEEDINGS UNDER SECTION 153A OF THE ACT IN THE CASE S OF INDIVIDUALS OF THIS GROUP, SOME INCRIMINATING DOCUMENTS WERE SEIZED AND THE SAME WERE FOUND TO BE BELONGING TO THE ASSESSEE. CONSEQUENTLY, NOTICE UNDER SECTION 153A R.W.S. 153C OF THE ACT WAS ISSUED TO THE ASSESSEE REQUIRING THE ASSESSEE TO FILE THE RETURN OF INCOME. IN RESPONSE THERETO, THE ASSESSEE FURNISHED RETURN UNDER SECTION 153A O F THE ACT ON 02.09.2009 AND UNDER SECTION 153A R.W.S. 153C OF THE ACT ON 24.12.2010 RESPECTIVELY. THE CASE OF THE ASSESSEE WAS TAKEN UP FOR SCRUTINY. THE ASSESSEE WAS A BUILDER AND DEVELOPER ENGAGED IN THE DEVELOPMENT OF PROJECT UNDER THE NAME OF THARWAN I HEIGHTS AT PALM BEACH ROAD, SANPADA, NAVI MUMBAI. THE COMMENCEMENT CERTIFICATE FOR THE SAID PROJECT WAS GRANTED BY THE LOCAL AUTHORITY ON 24.03.2005 . THE ASSESSEE WAS SHOW CAUSED TO EXPLAIN AS TO WHY THE DEDUCTION CLAIMED UNDER SECTION 80IB(10) OF THE ACT FOR ASSESSMENT YEARS 2008 - 09 AND 2009 - 10 SHOULD NOT BE DISALLOWED. THERE WAS NON - COMPLIANCE ON BEHALF OF THE ASSESSEE IN FILING THE REQUISITE DETAILS AND THE RETURN IN RESPONSE TO NOTICE UNDER SECTION 153C OF THE ACT WAS ALSO FILED ON 24.12.2010. THE ASSESSING OFFICER AS A RESULT OF VERIFICATION OF THE SEIZED MATERIAL NOTED THAT THERE WERE VARIOUS ISSUES ARISING IN THE CASE OF THE ASSESSEE I.E. (I) DISALLOWANCE OF CLAIM UNDER SECTION 80IB(10) OF THE ACT, (II) BOGUS PURCHASES, (III) UNRECORDED EXPENSES AND (IV) UNACCOUNTED CASH RECEIPT ON ACCOUNT OF SALE CONSIDERATION. VIS - - VIS THE CLAIM MADE UNDER ITA NO S . 5836 TO 5838 / M /20 12 ITA NOS.2032 & 2033/PUN/2012 M/S. SAI HOMES 6 SECTION 80IB(10) OF THE ACT, THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAD FURNISHED THE RETURN OF INCOME DECLARING THE TOTAL INCOME AT NIL AFTER CLAIM ING DEDUCTION UNDER SECTION 80IB(10) OF THE ACT AT RS. 18,39,52,059/ - . THE ASSESSEE CLAIMED THAT IT HAD FULFILLED ALL THE CONDITIONS PRESCRIBED IN SECTION 80IB(10) OF THE ACT AND THE CLAIM OF THE ASSESSEE WAS AS UNDER: - THE HOUSING PROJECT COMMENCED ON 2 4.03.2005 AND WAS COMPLETED ON 05.07.2007. THUS, THE PROJECT WAS COMPLETED WITHIN THE PERIOD OF 4 YEARS AS REQUIRED BY THE STATUTORY PROVISIONS. THAT EACH FLAT WAS HAVING BUILT UP AREA NOT MORE THAN 1000 SQ.FT. IN SUPPORT OF THE CLAIM THE AUDITORS RE PORTS HAS ALSO BEEN OBTAINED. IN THE HOUSING PROJECT NO COMMERCIAL PREMISES ARE CONSTRUCTED. AS REGARDS THE AUGMENTATION IN CLAIM OF DEDUCTION U/S. 80IB(10) FROM RS.18,39,52,059/ - IN RETURN U/S. 139(1) TO RS.21,49,54,293/ - IT IS SUBMITTED THAT SINCE THE DECLARED INCOME DIRECTLY SPRANG FROM THE HOUSING PROJECT AND THEREFORE QUALIFIES FOR DEDUCTION U/S. 80IB(10). THE PROJECT IS APPROVED BY THE LOCAL AUTHORITY AND THE LOCAL AUTHORITY HAS ISSUED COMMENCEMENT AND COMPLETION CERTIFICATE WHICH HAVE BEEN SUBMIT TED. 11. THE FIRST ISSUE WHICH WAS CONSIDERED BY THE ASSESSING OFFICER WAS WHETHER THE ASSESSEE WHICH CLAIMED TO HAVE COMMENCED CONSTRUCTION ON 24.03.2005 HAD IN FACT COMPLETED THE PROJECT ON 05.07.2007. SUMMONS UNDER SECTION 131 OF THE ACT WAS ISSUED TO THE SECRETARY OF THARWANI HEIGHTS, IN RESPONSE TO WHICH HE SUBMITTED A CERTIFICATE ISSUED BY THE LOCAL AUTHORITY DATED 31.12.2009, SCANNED COPY OF WHICH IS REPRODUCED AT PAGE 4 OF THE ASSESSMENT ORDER. THE SAID CERTIFICATE STATED THAT THE PROJECT WAS C OMPLETED ON 02.09.2009. THE ASSESSING OFFICER WAS OF THE VIEW THAT THE INFORMATION GIVEN BY THE ASSESSEE THAT IT HAD COMPLETED THE PROJECT ON 05.07.2007 WAS INCORRECT. THIS FACT WAS BROUGHT TO THE NOTICE OF ASSESSEE AND IN REPLY, IT WAS EXPLAINED THAT FI RST THE PROJECT WAS COMPLETED WITHIN PERIOD OF FOUR YEARS FROM THE END OF FINANCIAL YEAR IN WHICH THE FIRST APPROVAL WAS OBTAINED AND HENCE, NO VIOLATION OF CONDITIONS LAID DOWN IN SECTION 80IB(10)(A)(II) OF THE ACT . IT WAS FURTHER POINTED ITA NO S . 5836 TO 5838 / M /20 12 ITA NOS.2032 & 2033/PUN/2012 M/S. SAI HOMES 7 OUT THAT THE SO CIETY FOR THE FLAT OWNERS WAS REGISTERED ON 13.05.2008 AND THE SAID SOCIETY COULD NOT BE REGISTERED UNLESS THE CONSTRUCTION OF FLATS WAS COMPLETE. REFERENCE WAS ALSO MADE TO THE OCCUPANCY CERTIFICATE WHICH WAS ISSUED BY NMMC VIDE LETTER DATED 05.10.2010. WITH REGARD TO THE SCANNED LETTER DATED 31.12.2009, THE ASSESSEE POINTED OUT THAT EVEN IF THE ABOVE LETTER WAS TAKEN AS FINAL, IT WOULD BE SEEN THAT THE APPROVAL WAS ON 22.03.2006 AND CONSTRUCTION WAS COMPLETED ON 02.09.2009 WHICH WAS WITHIN FOUR YEARS. FURTHER, THE SAID LETTER REFERRED TO REGULARIZATION OF SERVANT TOILETS ONLY AND ALSO REFERENCE WAS MADE TO PLAN DATED 22.03.2006 . THE ASSESSEE FURTHER FILED THE COPY OF OCCUPANCY CERTIFICATE DATED 08.06.2008 ISSUED BY THE LOCAL AUTHORITY. THE ASSESSING O FFICER HOWEVER, DID NOT ACCEPT THE CONTENTION OF ASSESSEE AND SINCE THE ASSESSEE HAD NOT COMPLETED THE PROJECT WITHIN STIPULATED TIME, THE ASSESSEE WAS HELD TO BE NOT ELIGIBLE TO CLAIM THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. 12. THE SECOND ISSU E IN RESPECT OF CLAIM OF DEDUCTION WAS THE AREA OF FLATS BEING IN EXCESS OF 1000 SQ.FT. THE ASSESSING OFFICER NOTED THAT INVESTIGATION WING DURING THE POST SEARCH INVESTIGATION HAD GATHERED SIGNIFICANT AND IMPORTANT INFORMATION FROM THE MANAGER OF COOPERA TIVE SOCIETY OF THARWANI HEIGHTS. IT WAS REPORTED BY THE INVESTIGATION WING THAT TOTAL PROJECT CONSISTED OF WING A AND WING B I.E. TWO TOWERS OF 27 FLOORS EACH AT THARWANI HEIGHTS. PRIMA FACIE, THE RESIDENTIAL UNITS OF BOTH THE WINGS WERE NOT IN ACCO RDANCE WITH THE APPROVED SANCTIONED PLANS AND FURTHER INVESTIGATION WAS CARRIED OUT TO FIND OUT THE BUILT UP AREA OF RESIDENTIAL UNITS. THE LIST OF FLATS WAS RECEIVED FROM THE MANAGER OF COOPERATIVE HOUSING SOCIETY OF THARWANI HEIGHTS, WHICH IS SCANNED AN D PLACED AT PAGES 8 TO 10 OF THE ASSESSMENT ORDER. THE ASSESSING OFFICER THUS, NOTED THAT FROM THE ABOVE SAID LIST IT WAS CLEAR THAT THERE WERE MANY FLATS WHICH WERE ITA NO S . 5836 TO 5838 / M /20 12 ITA NOS.2032 & 2033/PUN/2012 M/S. SAI HOMES 8 MORE THAN 1000 SQ.FT. IN BOTH THE WINGS. THE ASSESSING OFFICER DREW UP THE LIST OF FLATS NUMBERS HAVING 3 BHK AND THEIR AREAS AS PER THE LIST OF COOPERATIVE HOUSING SOCIETY AT PAGES 10 AND 11 OF THE ASSESSMENT ORDER. THE ASSESSING OFFICER THUS, NOTED THAT 52 INSTANCES WHERE THERE WERE CLEAR VIOLATION OF CONDITIONS OF BUILT UP AREA UNDER SECT ION 80IB(10) OF THE ACT IN THE SAID PROJECT. THE ASSESSING OFFICER IN ORDER TO VERIFY THE BUILT UP AREA , DIRECTED THE ARCHITECT TO MEASURE THE SAID FLATS, WHO IN TURN, FURNISHED HIS REPORT WHICH IS PLACED AT PAGE 14 OF THE ASSESSMENT ORDER. THE ARCHITECT REPORTED THAT FLAT NO.1003 A WING, FLAT NO.1801 B WING AND FLAT NO.1101 B WING AT THARWANI HEIGHTS HAD AREA WHICH WAS MORE THAN 1000 SQ.FT. IT WAS ALSO POINTED OUT THAT BY MEASURING THE FLATS, THE AREA OF BALCONY, DRY BALCONY AND FLOWER BEDS WAS AL SO INCLUDED. IT WAS FURTHER REPORTED BY THE ARCHITECT THAT ALL THE FLATS IN BOTH THE A AND B WINGS WERE IDENTICAL ON ALTERNATE FLOORS AND ALSO WINGS A AND B WERE IDENTICAL TO EACH OTHER. ANOTHER ISSUE WHICH WAS POINTED OUT BY THE ARCHITECT WAS TH AT EXISTING FLATS WERE NOT AS PER APPROVED PLANS PROVIDED BY THE ASSESSING OFFICER BUT THE PHYSICAL LAYOUT OF THE FLATS WAS SIMILAR TO THE BROCHURE OF THE PROJECT THARWANI HEIGHTS. THE ASSESSING OFFICER IN VIEW THEREOF, CONCLUDED BY HOLDING THAT ON EACH F LOOR OF BOTH THE WINGS, THERE WERE RESIDENTIAL UNITS WHICH HAD BUILT UP AREA OF MORE THAN 1000 SQ.FT. THE ASSESSING OFFICER THEREAFTER, DELIBERATED UPON THE BUILT UP AREAS AVAILABLE IN THE SAID PROJECT AND NOTED THAT THOUGH AS PER APPROVED PLAN BY NMMC, T HERE WERE TWO 2BHK AND ONE 1BHK FLAT ON EACH FLOOR IN BOTH A AND B WINGS. HOWEVER, IN THE ENTIRE A AND B WING, NO ONE BHK FLAT WAS IN EXISTENCE. FURTHER, THERE WERE AMALGAMATION BETWEEN THE FLATS, WHEREIN THE FLATS ON 26 TH AND 27 TH FLOORS WERE ME RGED AND THERE WERE NO WALLS OR PARTITIONS SHOWING DIFFERENT FLATS, WHOSE BUILT UP AREA WAS MORE THAN 1000 SQ.FT. THE PARTNER OF ASSESSEE FIRM IN HIS STATEMENT CLEARLY ADMITTED THAT AT FLOOR 27, ITA NO S . 5836 TO 5838 / M /20 12 ITA NOS.2032 & 2033/PUN/2012 M/S. SAI HOMES 9 THERE WERE SIX FLATS WHICH WERE NOT SOLD. THE ASSESSING OFF ICER CONCLUDED THAT THE ASSESSEE HAD KEPT THE FLATS AS ONE SINGLE BIG FLAT AS FLAT FOR SALE AND 1BHK FLAT WAS MISSING IN STOCK IN TRADE ALSO. FURTHER, REFERENCE WAS MADE TO ADVERTISEMENT MADE BY THE ASSESSEE AND VARIOUS ASPECTS OF THE FLATS CONSTRUCTED BY THE ASSESSEE AND OPINION OF ARCHITECT IN RESPECT OF THREE FLATS AND ALSO THE REPORT OF THE ARCHITECT THAT THE FLATS EXISTING IN THE PROJECT WERE NOT AS PER APPROVED PLANS , BUT THE PHYSICAL LAYOUT WAS SIMILAR TO THE LAYOUT AS IN THE BROCHURE IN THE PROJECT . THE ASSESSING OFFICER ALSO CONCLUDED FROM THE SEIZED AND IMPOUNDED DOCUMENTS I.E. BUNDLE NO.A - 3 AND A - 18 , WHICH WERE THE REGISTERS , WHICH WERE MAINTAINED FOR FLAT OWNERS DETAILS AND TRANSACTIONS OF FLATS OF THARWANI HEIGHTS. THE ASSESSING OFFICER NOTE D THAT THE PAYMENT S WERE RECEIVED RIGHT FROM 2004 TO 2005 AGAINST THESE 3BHK FLATS ESTABLISHING THAT EVEN THE BOOKING WAS MADE FOR 3BHK FLATS ONLY AND THERE ARE NO 1BHK FLATS IN THE PROJECT. FURTHER, DOCUMENTS ALSO REVEAL THAT THE ASSESSEE HAD SHOWN 1BHK AND 2 BHK FLATS, NEGOTIATED FOR 2BHK AND 3BHK AND ALSO SOLD THE SAME BUT VIDE SEPARATE AGREEMENTS , ONE FOR 1BHK AND ANOTHER FOR 2BHK. THE PAYMENT DETAILS WERE ALSO ACCORDINGLY NOTED IN THE DIARIES AND THE SAME WERE SCANNED AND ARE REPRODUCED AT PAGES 24 AN D 25 OF THE ASSESSMENT ORDER. FURTHER, STATEMENTS OF PURCHASERS WERE RECORDED, WHO ADMITTED TO HAVE PURCHASED ONE FLAT , WITH THE UNDERSTANDING THAT IT WAS A SINGLE FLAT OF 3BHK. ALL THESE STATEMENTS WERE ALSO SCANNED AND REPRODUCED AT PAGE S 27 TO 36 OF T HE ASSESSMENT ORDER. THE ASSESSING OFFICER THUS, CONCLUDED AS UNDER: - (I) ALL FLAT OWNERS WERE INTERESTED TO PURCHASE BIG FLAT, NOBODY HAD INTENTION TO PURCHASE SINGLE 1 BHK FLAT. (II) FLAT OWNERS HAVE THEMSELVES NOT MADE ANY ALTERATION TO COMBINE TWO FL ATS. AT THE TIME OF POSSESSION ONLY, THERE WAS A SINGLE 3BHK FLAT. (III) IT IS THE ASSESSEE WHO INSISTED FOR TWO SEPARATE AGREEMENTS FOR A SINGLE FLAT. FLAT OWNERS NEVER REQUESTED BUILDER FOR TWO AGREEMENTS. ITA NO S . 5836 TO 5838 / M /20 12 ITA NOS.2032 & 2033/PUN/2012 M/S. SAI HOMES 10 (IV) THESE ARE NOT EXCEPTIONAL CASES. IT IS A VERY UNIFORM AND GENERALIZED FEATURE THAT ON EACH FLOOR THERE IS A SINGLE 3BHK FLAT FOR WHICH FLAT OWNERS MADE TWO AGREEMENTS, AS PER THE INSISTENCE OF THE BUILDER. 13. IN VIEW OF 52 INSTANCES OF CLEAR VIOLATION OF STIPULATED CONDITIONS, THE ASSESSING OFFICER HELD THAT THE ASSESSEE WAS NOT ENTITLED TO CLAIM THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT HOLDING AS UNDER: - A) LIST OF FLATS CONTAINING DETAILS OF FLATS OWNERS FLAT TYPE (2BHK OR 3BHK), AREA RECEIVED FROM THE CO - OPERATIVE HOUSING SOCIETY OF THARWANI HERITAGE, CLEARLY SHOWS THERE ARE MANY FLATS HAVING BUILT UP AREA MORE THAN 1000 SQ. FT. B ) ARCHITECT'S REPORT CLEARLY SAYS THAT BUILT UP AREA IS MORE THAN 1000 SQ. FT., THERE ARE NO PROVISIONS OF KITCHEN AND THE EXISTING FLATS ARE NOT FOUND TO BE AS PER APPROVED PLANS. C ) AS PER APPROVED PLAN THERE SHOULD BE 54 1 BHK FLATS IN THE PROJECT THARWANI HEIGHTS BUT NOT A SINGLE 1BHK FLAT ACTUALLY EXISTS. D ) THE SALE BROCHURE OF THARWANI HEIGHTS CLEARLY S H OWS THE FLATS HAVING BUILT UP AREA MORE, T HAN 1000 SQ. FT. AND 3BHK FLATS ARE THERE FOR SALE. E ) SEIZED MATERIAL CLEARLY SHOWS THAT ASSESSEE RIGHT FROM THE TIME OF BOOKING IS MAINTAINING THE RECORDS OF 3BHK FLATS ONLY. FURTHER PAGE NO. 7 OF BUNDLE IS MAINTAINING THE RECORDS OF 3BHK FLATS ONLY. FURTHER PAGE NO. 7 OF BUNDLE NO. A - 45 CLEARLY SHOWS THAT, ASSESSEE NEGOTIATED F OR SINGLE BIG 3BHK FLAT BUT IS MAKING TWO SEPARATE AGREEMENTS ONE FOR 1BHK AND ANOTHER FOR 2BHK. F ) THE BALCONIES PROJECTIONS AND SERVANT'S ROOM IF INCLUDED THE 2BHK FLAT MAY BE ALSO MORE THAN 1000 SQ. FT. G ) IN ALL THE STATEMENTS OF FLAT OWNERS RECORDED, T HE FLAT OWNERS HAVE DEPOSED THAT THEY HAVE PURCHASED 3BHK FLAT BUT FOR THE CONVENIENCE OF THE BUILDER, THEY HAVE MADE 2 SEPARATE AGREEMENTS WHICH IS MORE OR LESS THE GENERAL FEATURE OF THE BUILDING. 14. THE ASSESSING OFFICER CONCLUDED THAT USUALLY IN 8 0IB(10) CASES, THERE WERE MANY INSTANCES WHERE FEW FLATS WERE COMBINED, BUT IN THE PROJECT THARWANI HEIGHTS, ON EACH FLOOR, THERE WERE FLATS OF AREA MORE THAN 1000 SQ.FT. AND HENCE, THERE WAS GROSS VIOLATION OF CONDITIONS OF BUILT UP AREA, AS STIPULATED IN SECTION 80IB(10) OF THE ACT. FURTHER, REFERENCE WAS MADE TO THE SEIZED DOCUMENTS WHICH CLEARLY INDICATED THAT AREA OF SOME OF THE FLATS SOLD WAS IN EXCESS OF 1000 SQ.FT. REFERENCE WAS MADE TO THE SEIZED DOCUMENTS IN VARIOUS BUNDLES AT PAGES ITA NO S . 5836 TO 5838 / M /20 12 ITA NOS.2032 & 2033/PUN/2012 M/S. SAI HOMES 11 37 TO 40 OF THE ASSESSMENT ORDER. SINCE THE ASSESSEE WAS NOT APPEARING REGULARLY BEFORE THE ASSESSING OFFICER, SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSEE WHICH REMAINED UN - COMPLIED WITH AND THEREAFTER ANOTHER SHOW CAUSE NOTICE WAS ISSUED AND EVEN SUMMONS WERE ISSUE D UNDER SECTION 131 OF THE ACT. IN VIEW OF DIFFERENT ASPECTS AND THE STATEMENTS RECORDED OF THE PURCHASERS AND BECAUSE OF ENTRIES IN THE SEIZED DOCUMENTS , THE ASSESSING OFFICER WAS OF THE VIEW THAT WHERE THE ASSESSEE HAD NOT INTENDED TO BUILD 1BHK AND 2BHK FLATS BUT ONLY BUILD 3BHK FLATS, WHICH WERE OFFERED TO THE CUSTOMERS THROUGH BROCHURE AND ALSO THE STATEMENTS OF VARIOUS WITNESSES CORROBORATING THE SAME , HENCE, THE ASSESSING OFFICER WAS OF THE VIEW THAT THE ASSESSEE HAD FABRICATED THE FACTS IN ORDER TO CLAIM THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. HENCE, THE ASSESSEE WAS HELD TO BE NOT ELIGIBLE TO CLAIM THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. ANOTHER FACET WHICH WAS NOTED BY THE ASSESSING OFFICER THAT IN EACH OF THE 3BHK FLATS, TWO EL ECTRIC METERS WERE INSTALLED, OUT OF WHICH, THREE PHASE METER WAS BEING USED AND THE SINGLE PHASE METER WAS NOT USED. EVEN AT THE TIME OF BOOKING, THE NOTING OF THE FLATS BOOKED IN THE SEIZED DOCUMENTS WAS FOR AN AREA EXCEEDING 1000 SQ.FT., HENCE, THE ASS ESSING OFFICER HELD THAT THE BASIC CONDITION WAS VIOLATED. THE ASSESSEE HAD FURTHER MADE DISCLOSURE ON ACCOUNT OF CONSIDERATION RECEIVED IN CASH FOR SALE OF SERVANT QUARTERS WHICH WAS NOTHING BUT EXTENSION OF ORIGINAL FLATS SOLD BY THE ASSESSEE AND ONCE T HE SAME IS INCLUDED, THEN THERE IS VIOLATION OF LIMIT OF 1000 SQ.FT. PRESCRIBED UNDER THE ACT. THE ASSESSING OFFICER THUS, HELD THAT THE ASSESSEE WAS NOT ENTITLED TO CLAIM THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT BY NOT ADHERING TO THE BUILT UP AREA OF 1000 SQ.FT. OF EACH FLAT AND ALSO BY NOT COMPLETING THE PROJECT WITHIN SPECIFIED TIME. THE CONTENTION OF ASSESSEE THAT IT WAS NOT ALLOWED CROSS - EXAMINATION OF ITA NO S . 5836 TO 5838 / M /20 12 ITA NOS.2032 & 2033/PUN/2012 M/S. SAI HOMES 12 WITNESSES WAS ALSO FOUND TO BE NOT CORRECT SINCE THE OPPORTUNITY WAS GIVEN BUT THE ASSESSEE DID NOT ATTEND ON THE SAID DATE. 15. THE SECOND ISSUE WHICH WAS DECIDED AGAINST THE ASSESSEE WAS ON ACCOUNT OF UNPROVED PURCHASE OF STEEL FROM M/S. ELLORA TRADING COMPANY OF RS. 90,42,218/ - . THE SAID PURCHASES WERE MADE IN THE MONTH OF MARCH, 2008 AND THE ASSESSING OFFICER WAS OF THE VIEW THAT THE CLAIM OF HAVING COMPLETED THE PROJECT ON 05.06.2007 DOES NOT STAND SINCE THE PURCHASES WERE MADE IN MARCH, 2008. 16. THE NEXT ADDITION WHICH WAS MADE IN THE HANDS OF ASSESSEE WAS ON ACCOUNT OF UNRECORDED EXPEN SES WHICH WAS DETECTED FROM THE SEIZED DOCUMENTS AS PER BUNDLE A - 35 TO A - 43 OF RS. 11,61,362/ - . THE ASSESSING OFFICER ALSO NOTED THAT THE SEIZED DOCUMENTS IN BUNDLE A - 1, PAGE 48 PART ST2 W ERE FOUND AND SEIZED, WHEREIN THE DETAILS OF WORKING OF SALE CONSIDE RATION WAS NOTED. AS PER THE SAID PAGE, THE ASSESSEE HAD RECEIVED UNACCOUNTED CASH OF RS. 55,34,250/ - AGAINST WHICH DISCLOSURE OF ONLY RS.47,21,000/ - WAS MADE BY THE ASSESSEE ON THIS ACCOUNT. THE DIFFERENCE OF RS. 8,13,250/ - WAS ADDED TO THE INCOME OF ASSE SSEE AS UNACCOUNTED CASH RECEIPTS. 17. THE CIT(A) IN APPEAL CONSIDERED VARIOUS FACETS OF DENIAL OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. THE CIT(A) NOTED THAT THE ASSESSEE ORIGINALLY HAD CLAIMED DEDUCTION UNDER SECTION 80IB(10) OF THE ACT AT RS.18 ,39,52,059/ - . HOWEVER, IN THE RETURN OF INCOME FILED UNDER SECTION 153C R.W.S. 153A OF THE ACT, THE ASSESSEE CLAIMED THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT AT RS.21.49 CRORES. THE SAID INCREASE IN THE CLAIM OF DEDUCTION WAS ON ACCOUNT OF ITA NO S . 5836 TO 5838 / M /20 12 ITA NOS.2032 & 2033/PUN/2012 M/S. SAI HOMES 13 ADDITIO NAL INCOME DISCLOSED DURING THE COURSE OF SEARCH FROM THE SAME HOUSING PROJECT. IN RESPECT OF FIRST ASPECT OF COMPLETION OF PROJECT, THE CIT(A) NOTED THE SUBMISSIONS OF ASSESSEE THAT THE PLAN FOR APPROVAL WAS SUBMITTED ON 05.01.2005 AND THE PLAN WAS APPRO VED FOR RESIDENTIAL PROJECT VIDE LETTER ISSUED BY THE LOCAL AUTHORITY DATED 24.03.2005 . H ENCE, THE FIRST APPROVAL WAS GIVEN BY THE LOCAL AUTHORITY PRIOR TO 01.04.2005. THE ASSESSEE FURTHER CLAIMED THAT THE PROJECT WAS COMPLETED ON 21 . 0 2.2007 , FOR WHICH T HE APPLICATION WAS MADE ON 05.05.2007 FOR ISSUE OF OCCUPANCY CUM COMPLETION CERTIFICATE. THE LOCAL AUTHORITY HAD ISSUED THE COMPLETION CERTIFICATE ON 08.06.2007 CERTIFYING THAT THE PROJECT WAS COMPLETED ON 21.02.2007. THE SAID CERTIFICATE CERTIFIED COMPL ETION OF 156 RESIDENTIAL UNITS, SOCIETY OFFICE, FITNESS CENTRE, ETC. THE NEXT CONTENTION OF THE ASSESSEE IN THIS REGARD WAS THAT THE POSSESSION OF FLATS WAS HANDED OVER AND COOPERATIVE SOCIETY WAS FORMED, WHICH WAS REGISTERED WITH THE REGISTRAR OF COOPERA TIVE SOCIETIES, WHO ISSUED THE REGISTRATION CERTIFICATE ON 13.05.2008 ; THE COPIES OF POSSESSION LETTERS, CERTIFICATE OF REGISTRATION, ETC. WERE ALSO MADE AVAILABLE. IN RESPECT OF CONSTRUCTION OF SERVANT TOILETS, CERTIFICATE DATED 31.12.2009 WAS PRODUCED B Y THE SECRETARY OF M/S. THARWANI HEIGHTS COOPERATIVE HOUSING SOCIETY LTD ., WHEREIN THE DATE OF COMPLETION WAS ON 02.09.2009. IT WAS POINTED OUT THAT THE SAID CERTIFICATE IS NOT RELEVANT FOR ADJUDICAT ING THE ISSUE IN DISPUTE, SINCE THE SAME RELATES TO REGU LARIZATION OF SERVANTS TOILETS , WHICH WERE CONSTRUCTED SUBSEQUENT TO TAKING OVER THE POSSESSION BY THE PURCHASERS OF FLATS. THE CIT(A) WAS OF THE VIEW THAT WHERE THE LOCAL AUTHORITY HAD ISSUED THE OCCUPANCY CERTIFICATE VIDE LETTER DATED 08.06.2007 CERTIFY ING THAT THE COMPLETION OF THE PROJECT ON 21.02.2007 AND GRANTED PERMISSION TO USE THE PREMISES FOR RESIDENTIAL PURPOSE, THEN THE DATE OF COMPLETION OF PROJECT SHALL BE TAKEN TO BE THE DATE ON WHICH COMPLETION CERTIFICATE WAS ISSUED BY THE LOCAL AUTHORITY . A S ITA NO S . 5836 TO 5838 / M /20 12 ITA NOS.2032 & 2033/PUN/2012 M/S. SAI HOMES 14 PER SECTION 80IB(10)(A) OF THE ACT , T HE CIT(A) HELD THAT THE ASSESSEE HAD FULFILLED THE LEGAL REQUIREMENTS IN THIS REGARD. THE CIT(A) ALSO NOTED THAT THE COOPERATIVE SOCIETY HAD BEEN REGISTERED WITH THE REGISTRAR OF COOPERATIVE SOCIETY VIDE CERTIFICA TE DATED 13.05.2008 I.E. WELL BEFORE STIPULATED DATE FOR COMPLETION OF PROJECT. WITH REGARD TO THE COMPLETION CERTIFICATE DATED 31.12.2009 IN RESPECT OF CONSTRUCTION OF SERVANTS TOILETS, THE CIT(A) REFERRED TO THE SAID CERTIFICATE WHERE THE AREA OF TOILET S WAS MENTIONED TO BE 7150.86 SQ.MTRS. WITH FSI OF 1.00 SQ.MTR. AND TOTAL CONSTRUCTION (SERVANT TOILET) AREA OF 379.444 SQ.MTRS. THE CIT(A) HELD TH E SAME TO BE SUBSEQUENT DEVELOPMENT AFTER OBTAINING THE COMPLETION CERTIFICATE FROM THE LOCAL AUTHORITY AND HANDING OVER OF POSSESSION OF THE FLATS TO THE OCCUPANTS AND THAT WOULD NOT AFFECT THE ELIGIBILITY TO CLAIM THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. 18. THE SECOND ASPECT WAS THE BUILT UP AREA OF FLATS. DURING THE COURSE OF APPELLATE PROCEEDING S, THE CIT(A) VIDE LETTER DATED 29.06.2011 HAD REQUESTED THE ASSESSING OFFICER TO GET THE MATTER REFERRED TO VALUATION OFFICER OF THE DEPARTMENT FOR DETERMINING THE BUILT UP AREA OF FLATS AS PER PROVISIONS OF SECTION 80IB(10) OF THE ACT R.W.S. 80IB(14) OF THE ACT AND AS PER THE DEVELOPMENT CONTROL R EGULATIONS . IN COMPLIANCE THERETO, THE V ALUATION OFFICER, IT DEPARTMENT, THANE HAD FURNISHED REPORT DATED 08.09.2011 WHICH WAS FORWARDED TO THE CIT(A). THE VALUATION OFFICER HAD CARRIED OUT THE MEASUREMENTS AFT ER PHYSICAL VERIFICATION OF THE FLATS AND PREPARED A REPORT GIVING COMPLETE DETAILS IN ANNEXURE - I & II OF THE REPORT. ACCORDING TO THE VALUATION OFFICER, AS PER PROVISIONS OF SECTION 80IB(10) OF THE ACT, OUT OF 156 FLATS OF THE PROJECT, THE BUILT UP AREA OF 115 FLATS WERE FOUND TO BE MORE THAN 1000 SQ.FT. AT THE RESPECTIVE FLOOR LEVEL AND THE BUILT UP AREA OF 41 FLATS WERE LESS THAN 1000 SQ.FT. AT FLOOR LEVEL. ITA NO S . 5836 TO 5838 / M /20 12 ITA NOS.2032 & 2033/PUN/2012 M/S. SAI HOMES 15 THE VALUATION OFFICER WHILE WORKING OUT THE BUILT UP AREA OF THE FLATS HAD CONSIDERED THE FLATS WHICH WERE JOINED BY FLAT OWNERS AND ALSO THE BALCONIES AND PROJECTIONS. AS PER THE GENERAL DEVELOPMENT CONTROL R EGULATIONS FOR NAVI MUMBAI, 1975, THE VALUATION OFFICER HAD REPORTED THAT OUT OF 156 FLATS, THE BUILT UP AREA OF 33 FLATS WAS MORE THAN 1000 S Q.FT. AT RESPECTIVE FLOOR LEVEL AND BUILT UP AREA OF BALANCE 123 FLATS WAS LESS THAN 1000 SQ.FT. AT FLOOR LEVEL. THE VALUATION OFFICER HAD ALSO CLARIFIED THAT THE SAME WAS DUE TO AREA OF OPEN TERRACE, BALCONY B EING EXCLUDED FROM THE BUILT UP AREA OF RESPE CTIVE FLATS AS PER GDCR, 1975. THE COPY OF THE SAID VALUATION REPORT WAS HANDED OVER TO THE ASSESSEE, WHO IN TURN, FILED WRITTEN SUBMISSIONS WHICH ARE REPRODUCED AT PAGES 21 TO 27 OF THE APPELLATE ORDER. IT WAS STRESSED BY THE ASSESSEE THAT THE AREA OF B ALCONY / OPEN TERRACE IS NOT TO BE INCLUDED IN THE BUILT UP AREA OF THE FLATS IN THE HOUSING PROJECT APPROVED PRIOR TO 01.04.2005. FOR PROJECTS APPROVED PRIOR TO 01.04.2005, THE BUILT UP AREA CALCULATED AS PER DC REGULATIONS WAS RELEVANT FOR THE PURPOSE O F EXAMINING THE FULFILLMENT OF ELIGIBILITY CRITERIA UNDER SECTION 80IB(10) OF THE ACT. THE ASSESSEE ALSO POINTED OUT THAT THE VALUATION OFFICER HIMSELF HAD CONSIDERED THE AREA OF MERGED FLATS ON THE BASIS OF DEVELOPMENT CONTROL RULES AND WHEREIN OUT OF 15 6 FLATS, AREA OF 33 FLATS WAS MORE THAN 1000 SQ.FT. IN RESPECT OF BALANCE 123 FLATS, THE ASSESSEE POINTED OUT THAT THE BUILT UP AREA OF EACH OF THE FLATS I.E. RESIDENTIAL UNIT WAS BELOW 1000 SQ.FT., WHERE IN THE VALUATION OFFICER HAD CONSIDERED THE TOTAL A REA I.E. AFTER MERGER OF UNITS TWO OR THREE. IN RESPECT OF FLAT NOS.202 + 203, A WING AND FLAT NOS.201 AND 202, B WING, IT WAS POINTED OUT THAT THE BUILT UP AREA AFTER EXCLUDING THE AREA OF POR C H WAS LESS THAN 1000 SQ.FT. IN RESPECT OF FLAT NOS.2701, 270 2 AND 2703, THE ASSESSEE POINTED OUT THAT THESE WERE SOLD TO THREE DIFFERENT PARTIES AND AREA OF EACH OF THE FLAT WAS LESS THAN 1000 SQ.FT. HOWEVER, ONE OF THE OCCUPANTS HAS ACQUIRED THE OTHER TWO FLATS IN ITA NO S . 5836 TO 5838 / M /20 12 ITA NOS.2032 & 2033/PUN/2012 M/S. SAI HOMES 16 SECOND SALE FROM THE ORIGINAL BUYER AND MERGED AL L THE THREE UNITS SOLD. IN RESPECT OF 301 , A WING AND 2033, IT WAS STATED THAT AREA OF TERRACE AND / OR POR C H IS TO BE EXCLUDED. THE ASSESSEE IN ALTERNATIVE POINTED OUT THAT EVEN IF THERE WAS PARTIAL DEVIATION OF ANY CONDITION, THE ASSESSEE WAS ENTITLED TO PRORATA DEDUCTION AS ALL THE OTHER CONDITIONS LAID DOWN UNDER SECTION 80IB(10) OF THE ACT WERE FULFILLED. THE ASSESSEE POINTED OUT THAT EVEN IF IT IS ASSUMED THAT IT HAD MERGED TWO FLATS I.E. 2BHK + 1BHK CONVERTED INTO 3BHK FLATS, THE BUILT UP AREA OF 123 FLATS REMAINED LESS THAN 1000 SQ.FT. AND HENCE, PRORATA DEDUCTION IS TO BE ALLOWED IN RESPECT OF SUCH FLATS. VARIOUS CONTENTIONS RAISED BY THE ASSESSEE IN RESPECT OF MERGING OF FLATS WAS NOT ACCEPTED BY THE CIT(A) SINCE THE PLAN OF HOUSING PROJECT WAS APPROVED IN SUCH A MANNER THAT 1BHK FLAT WAS JOINED WITH 2BHK FLATS TO MAKE TI 3BHK FLATS. FURTHER, STATEMENTS OF FLAT HOLDERS WERE RECORDED WHICH ESTABLISHED THAT THE FLATS HAD BEEN SOLD IN THE MERGER STAGE ONLY. FURTHER, FROM THE SEIZED DOCUMENTS, THE ASSESSING OFFICER ALSO INDICATED THAT THE SALES HAD BEEN MADE FOR 3BHK ONLY. THE CIT(A) THUS, HELD THAT THE ASSESSEE HAD CONSTRUCTED SOME OF THE FLATS WHOSE BUILT UP AREA EXCEEDED THE PRESCRIBED LIMIT OF 1000 SQ.FT. AND HENCE, THE ASSESSEE WAS HELD TO BE NOT ELIGIBLE FOR ANY CONCESSION. THE CIT(A) THEN CONSIDERED THE PLEA OF ASSESSEE FOR EXCLUSION OF AREA OF OPEN TERRACE / OPEN BALCONY, NOT TO BE CONSIDERED IN THE BUILT UP AREA. THE CIT(A) NOTED THAT THE DEFINITION OF BUILT UP AREA WAS INTRODUCED W.E.F. 01.04.2005 BY WAY OF SECTION 80IB(14) OF THE ACT AND HELD THAT THE AREA OF 115 FLATS WAS FOUND TO BE MORE THAN 1000 SQ.FT. AT RESPECTIVE FLOOR LEVEL BECAUSE OF BALCONY / OPEN TERRACE. THE CIT(A) HELD THAT EXTENDED DEFINITION OF BUILT UP AREA BROUGHT ON T HE STATUTE VIDE FINANCE ACT 2004 W.E.F. 01.04.2005 WAS NOT APPLICABLE FOR THE PROJECTS APPROVED PRIOR TO 01.04.2005. RELIANCE WAS PLACED ON THE DECISION OF MUMBAI BENCH OF TRIBUNAL IN ACIT VS. SHETH DEVELOPERS ITA NO S . 5836 TO 5838 / M /20 12 ITA NOS.2032 & 2033/PUN/2012 M/S. SAI HOMES 17 (2009) 33 SOT 277 (MUM) AND HAWARE CONSTRUCTI ON (P) LTD. VS. I TO (2011) 64 DTR (MUM) (TRIB) 251. THE CIT(A) THUS HELD THAT WHERE THE PROJECT OF THE ASSESSEE WAS APPROVED ON 24.03.2005 I.E. PRIOR TO 01.04.2005, THE DEFINITION OF BUILT UP AREA AS GIVEN IN SECTION 80IB(1 4 ) OF THE ACT WAS NOT APPLICABLE AND ACCORDINGLY, AREA OF BALCONY AND TERRACE WAS NOT TO BE INCLUDED IN THE BUILT UP AREA OF RESIDENTIAL UNITS. THE CIT(A) FURTHER HELD THAT ONLY 33 RESIDENTIAL UNITS, OUT OF 156 UNITS SHOULD BE CONSIDERED AS HAVING BUILT UP AREA OF MORE THAN PRESCRIB ED L IMIT OF 1000 SQ.FT., AS DETERMINED BY THE VALUATION OFFICER. THE CIT(A) FURTHER ALLOWED PRORATA DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IN RESPECT OF BALANCE FLATS WHERE THE AREA WAS 1000 SQ.FT. OR LESS. THE INCOME RELATABLE TO 33 FLATS WHICH EXCEEDE D THE PRESCRIBED BUILT UP AREA OF 1000 SQ.FT. WAS HELD TO BE NOT ENTITLED TO THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. THE CIT(A) FURTHER HELD THE ASSESSEE TO BE ENTITLED TO CLAIM THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT ON THE ADDI TIONAL INCOME WHICH WAS DERIVED FROM THE HOUSING PROJECT. HE FURTHER HELD THAT THE ASSESSEE COULD LODGE A FRESH CLAIM IN THE RETURN FILED UNDER SECTION 153A OF THE ACT, ON THE ADDITIONAL INCOME DISCLOSED. THE ASSESSING OFFICER WAS DIRECTED TO SCRUTINIZE THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IN THIS REGARD. 19. AS REGARDS THE BOGUS PURCHASES MADE FROM M/S. ELLORA TRADING COMPANY, WHEREIN THE PROPRIETOR OF THE SAID CONCERN HAD DENIED ANY SALES DURING POST SEARCH INVESTIGATION, THE CIT(A) HELD THAT DUTY WAS CAST UPON THE ASSESSEE TO DISCHARGE THE PRIMARY ONUS. THE ASSESSEE CLAIMED THAT IT HAD MADE PAYMENT TO THE SAID PARTY THROUGH CHEQUE ON THE BASIS OF BILLS ISSUED BY IT. HOWEVER, IN THE ABSENCE OF THE ASSESSEE HAVING FURNISHED ANY CONF IRMATION FROM THE SAID PARTY AND BECAUSE OF THE EVIDENCES AVAILABLE WITH THE ASSESSING OFFICER, ITA NO S . 5836 TO 5838 / M /20 12 ITA NOS.2032 & 2033/PUN/2012 M/S. SAI HOMES 18 THE SAID ADDITION WAS UPHELD. HOWEVER, THE DENIAL OF EXPENDITURE WOULD RESULT IN ENHANCED INCOME WHICH WAS HELD TO BE ENTITLED TO PROPORTIONATE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT ON THE ENHANCED INCOME. 20. IN RESPECT OF UNRECORDED PURCHASES ALSO, THE CIT(A) NOTED THAT THE ASSESSEE HAD CONSIDERED UNSIGNED VOUCHER ENTRIES AS GENUINE AND IN SOME CASES, PAYMENT MADE BY CHEQUE AND IN SOME CASES, PAYMENT WAS MADE IN CASH. THE CONTENTION OF ASSESSEE THAT THESE ENTRIES WERE UNSIGNED WERE GENUINE , WAS REJECTED AND THE CLAIM OF ASSESSEE THAT THE VOUCHERS PERTAINING TO EARLIER YEARS WAS PRIMA FACIE FOUND TO BE CORRECT. HOWEVER, THE ASSESSING OFFICER WAS DIREC TED TO VERIFY THE DATE OF EXPENDITURE AND WHERE IT RELATED TO THE EARLIER YEAR, NO ADDITION WAS DIRECTED TO BE MADE IN THE YEAR UNDER CONSIDERATION. 21. IN RESPECT OF UNACCOUNTED CASH RECEIPTS OF RS. 8,13,250/ - , THE CIT(A) UPHELD THE ADDITION TO THE EXTE NT OF RS. 7,78,900/ - . HOWEVER, SINCE THE ADDITIONAL RECEIPTS RESULTS INTO INCREASE IN THE PROFIT OF HOUSING PROJECT, THE SAME WAS HELD TO BE ELIGIBLE FOR PROPORTIONATE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. 22. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF CIT(A) IN HOLDING THAT SOME OF THE FLATS CONSTRUCTED BY THE ASSESSEE EXCEEDED THE PRESCRIBED CEILING OF 1000 SQ.FT. AND HENCE, NOT ELIGIBLE FOR CLAIMING THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. 23. THE REVENUE IS IN APPEAL AGAINST THE ORD ER OF CIT(A) IN HOLDING THE ASSESSEE TO BE ELIGIBLE TO CLAIM THE SAID DEDUCTION UNDER SECTION 80IB(10) OF THE ITA NO S . 5836 TO 5838 / M /20 12 ITA NOS.2032 & 2033/PUN/2012 M/S. SAI HOMES 19 ACT WHERE THE ASSESSEE NOT HAS FULFILLED ALL THE CONDITIONS PRESCRIBED UNDER THE ACT. THE REVENUE IS ALSO AGGRIEVED BY THE ORDER OF CIT(A) IN ALL OWING THE PRORATA DEDUCTION IN RESPECT OF FLATS JOINED SINCE NO SUCH PROPORTIONATE DEDUCTION IS PROVIDED IN THE ACT. THE REVENUE IS ALSO AGGRIEVED BY THE FACTUM OF DATE OF COMPLETION OF THE PROJECT, IN VIEW OF THE CERTIFICATE PRODUCED BY THE SECRETARY OF THE COOPERATIVE HOUSING SOCIETY, WHEREIN THE DATE OF COMPLETION OF THE PROJECT WAS SHOWN AS 02.09.2009. 24. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE ELABORATELY TOOK US THROUGH THE FACTS OF THE CASE, WHEREIN THE ASSESSING OFFICER HAD DENIED THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT ON TWO COUNTS I.E. DATE OF COMPLETION OF THE PROJECT AND THE BUILT UP AREA OF FLATS EXCEEDING 1000 SQ.FT. IN RESPECT OF FIRST CONTENTION RAISED BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE WAS T HAT THE ASSESSEE HAD COMPLETED THE PROJECT WITHIN TIME FRAME I.E. 21.02.2007 AND IT HAD RECEIVED THE COMPLETION CERTIFICATE FROM THE LOCAL AUTHORITY ON 08.06.2007. ON 13.05.2008, THE SOCIETY WAS ALSO FORMED AND ENTIRE MAINTENANCE OF THE PROJECT WAS HANDED OVER BY THE ASSESSEE TO THE SAID SOCIETY . HE FURTHER POINTED OUT THAT TWO SERVANT TOILETS WERE CONSTRUCTED ON THE GROUND FLOOR FOR WHICH PERMISSION WAS RECEIVED AND VIDE CERTIFICATE DATED 31.12.2009, OCCUPANCY CERTIFICATE FOR TWO SERVANT TOILETS WAS ISSU ED. THE ASSESSING OFFICER ON THIS BASIS, HAD HELD THAT THE PROJECT WAS COMPLETED ON 31.12.2009 I.E. BEYOND THE DATE PRESCRIBED UNDER SECTION 80IB(10) OF THE ACT AND CONSEQUENTLY, DENIED THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. HE FURTHER STATED T HAT DURING THE COURSE OF SEARCH, DOCUMENTS WERE FOUND, WHEREIN ON - MONEY OF RS.3.10 CRORES WAS DETECTED WHICH WAS THE ADDITIONAL SALE CONSIDERATION DECLARED BY THE ASSESSEE IN ITS HANDS ON WHICH DEDUCTION UNDER SECTION 80IB(10) OF THE ACT WAS ITA NO S . 5836 TO 5838 / M /20 12 ITA NOS.2032 & 2033/PUN/2012 M/S. SAI HOMES 20 TO BE ALLOWED. HE POINTED OUT THAT THE CIT(A) HAS FAIRLY CONSIDERED THE CASE OF ASSESSEE, WHEREIN HE HAS HELD THAT THE BUILDING WAS COMPLETED IN 2007 BUT TWO SERVANT TOILETS WERE CONSTRUCTED LATER ON BUT THE ASSESSEE WAS HELD TO HAVE COMPLIED WITH THE CONDITIONS PRESCR IBED FOR AVAILING THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. HE FURTHER REFERRED TO THE SECOND ASPECT OF THE ISSUE I.E. THE BUILT UP AREA OF COMBINED FLATS WHEREIN THE ASSESSING OFFICER DURING THE COURSE OF REMAND PROCEEDINGS HAD ASKED FOR REPORT FR OM THE DVO AND ON ITS RECEIPT FORWARDED THE SAME TO THE CIT(A). HE FURTHER POINTED OUT THAT OUT OF COMPLETED 156 FLATS, THE BUILT UP AREA OF 33 FLATS HAD EXCEEDED 1000 SQ.FT. HE FURTHER POINTED OUT THAT THE CIT(A) HAD ALLOWED PRORATA DEDUCTION WHEREIN, T HE AREA OF BALCONIES AND PROJECTIONS WAS EXCLUDED AS THE PROJECT WAS APPROVED PRIOR TO 01.04.2005. FURTHER, THE ASSESSEE WAS ALSO ENTITLED TO THE PRORATA DEDUCTION ON ON - MONEY RECEIVED. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE STRESSED THAT THE ASSESSEE WAS ENTITLED TO THE DEDUCTION ON THE ENTIRE PROJECT, WHEREIN EVEN IF THE AREA OF SOME FLATS WAS MORE THAN 1000 SQ.FT. HE ALSO STRESSED THAT THE ASSESSEE WAS ENTITLED TO CLAIM THE AFORESAID DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IN RESPE CT OF ON - MONEY RECEIVED ON THE SALE OF SUCH FLATS. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE PLACED RELIANCE ON THE RATIO LAID DOWN BY THE PUNE BENCH OF TRIBUNAL IN ITO VS. PARAS BUILDERS (2015) 40 ITR (TRIB) 507 (PUNE) AND FAIRLY ADMITTED TH AT THE TRIBUNAL HAD ALLOWED PRORATA DEDUCTION IN RESPECT OF UNITS WHERE EVEN THE AREA OF UNITS AFTER MERGING WAS NOT MORE THAN 1500 SQ.FT., WHERE THE PROJECT WAS IN PUNE. MERELY BECAUSE THE ASSESSEE HAD VIOLATED THE SAID PROVISIONS IN RESPECT OF TWO UNITS , IT WAS HELD BY THE TRIBUNAL THAT THE DEDUCTION CLAIMED UNDER SECTION 80IB(10) OF THE ACT COULD NOT BE DENIED ON THE UNITS WHICH WERE WITHIN PRESCRIBED LIMITS. HE FURTHER PLACED RELIANCE ON THE RATIO LAID DOWN BY THE PUNE BENCH OF TRIBUNAL IN ITO VS. ITA NO S . 5836 TO 5838 / M /20 12 ITA NOS.2032 & 2033/PUN/2012 M/S. SAI HOMES 21 GAJ RAJ CONSTRUCTIONS (2015) 41 ITR (TRIB) 425 (PUNE) , WHEREIN THE ASSESSEE HAD OFFERED ADDITIONAL RECEIPTS AS BUSINESS INCOME AND CLAIMED THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT, WHICH WAS ALLOWED TO THE ASSESSEE. 25. IN RESPECT OF SERVANT TOILETS BEING NOT COMPLETE ON THE DATE OF CO MPLETION OF THE BUILDING, THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE REFERRED TO THE RATIO LAID DOWN BY THE PUNE BENCH OF TRIBUNAL IN M/S. SURANA MUTHA DEVELOPERS VS. ITO IN ITA NO.360/PN/2013, RELATING TO AS SESSMENT YEAR 2009 - 10, ORDER DATED 10.04.2015 AND POINTED OUT THAT IN THE FACTS OF THE SAID CASE, FOURTH BUILDING WAS NOT COMPLETED , BUT THE TRIBUNAL ALLOWED PRORATA DEDUCTION. HE FURTHER STRESSED THAT THE HONBLE SUPREME COURT IN CIT VS. SARKAR BUILDERS REPORTED IN 375 ITR 392 (SC) HAD LAID DOWN THAT THE AREA OF BALCONY AND TERRACE ARE TO BE EXCLUDED FROM THE BUILT UP AREA FOR PROJECTS WHICH WERE SANCTIONED PRIOR TO 01.04.2005 AND FOLLOWING THE SAID PROPOSITION, THE TRIBUNAL IN DCIT VS. M/S. AMIT ENTERPRI SES IN ITA NO.2210/PN/2013, RELATING TO ASSESSMENT YEAR 2008 - 09, ORDER DATED 23.09.2015 HAS ALLOWED THE CLAIM OF THE ASSESSEE. 26. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE POINTED OUT THAT SEARCH UNDER SECTION 132 OF THE ACT WAS CARRIED OUT AGAINST THE ASSESSEE ON 16.10.2008. THE ASSESSEE HAD ORIGINALLY FILED THE RETURN OF INCOME UNDER SECTION 139(1) OF THE ACT ON 14.09.2008. THEREAFTER, REVISED CLAIM OF DEDUCTION WAS MADE UNDER SECTION 80IB(10) OF THE ACT. HE POINTED OUT THAT SUCH NEW CL AIM CANNOT BE MADE IN THE PROCEEDINGS UNDER SECTION 153A OF THE ACT AS HELD BY THE PUNE BENCH OF TRIBUNAL IN SHRI SHANKAR R JHUNJHUNWALA VS. ACIT IN ITA NO.225/PN/2011, RELATING TO ASSESSMENT YEAR 2004 - 05, ORDER DATED 31.07.2012 . THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE STRONGLY RELIED ON THE ITA NO S . 5836 TO 5838 / M /20 12 ITA NOS.2032 & 2033/PUN/2012 M/S. SAI HOMES 22 ORDER OF ASSESSING OFFICER WHEREIN IT HAS BEEN ESTABLISHED THAT THE ASSESSEE HA D FAILED TO COMPLETE THE CONSTRUCTION BY STIPULATED DATE AND ALSO HAD CONSTRUCTED THE UNITS HAVING AREA MORE THAN 1000 SQ.F T. AND HENCE, NOT ELIGIBLE TO CLAIM THE SAID DEDUCTION. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE TIME AND AGAIN STRESSED THAT THE ASSESSEE HAS ENTERED INTO A PROJECT AT PALM BEACH ROAD, NAVI MUMBAI, WHERE AFFLUENT PEOPLE LIVE AND INTENTION WAS NEVER TO CONSTRUCT 1BHK FLATS BUT ALWAYS THE INTENTION WAS TO CONSTRUCT 3BHK FLATS AND T HE ASSESSEE HA D NOT COMPLIED WITH THE CONDITIONS OF PLAN AND HA D MERGED THE FLATS AND HENCE, NOT ELIGIBLE TO CLAIM THE SAID DEDUCTION. HE ALSO STRESSED THAT THE AS SESSING OFFICER HAD FOUND THE DEVIATION IN THE AREA IN MORE NUMBER OF FLATS AND THE SAME SHOULD BE ADOPTED FOR DISALLOWING THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. 27. IN REJOINDER, THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT IN THE CASE BEFORE THE PUNE BENCH OF TRIBUNAL IN SHRI SHANKAR R JHUNJHUNWALA VS. ACIT (SUPRA), THE ASSESSEE HAD FILED THE RETURN OF INCOME FOR THAT YEAR BUT IN CASES OF PENDING ASSESSMENT, A FRESH CLAIM COULD BE MADE. IN THIS REGARD, HE PLACED RELIANCE ON THE RATIO LAID DOWN BY THE PUNE BENCH OF TRIBUNAL IN ITO VS. GAJRAJ CONSTRUCTIONS (SUPRA) AND MALPANI ESTATES VS. ACIT (2014) 164 TTJ 803 (PUNE). THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE STRESSED THAT THE ADDITIONAL CONSTR UCTION WAS ONLY IN RESPECT OF SERVANT TOILETS AND THERE IS NO MERIT IN THE ORDER OF ASSESSING OFFICER IN THIS REGARD. HE FAIRLY ACCEPTED THE CONTENTION OF THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE BUT POINTED OUT THAT WHERE THE COMBINED AREA OF UNITS AFTER MERGER WAS LESS THAN 1000 SQ.FT., THEN THE ASSESSEE WAS ENTITLED TO THE SAID BENEFITS. ITA NO S . 5836 TO 5838 / M /20 12 ITA NOS.2032 & 2033/PUN/2012 M/S. SAI HOMES 23 28. BOTH THE LEARNED COUNSELS BEFORE CLOSING THEIR ARGUMENTS, FAIRLY ADMITTED THAT THE CROSS APPEALS OF ASSESSEE AND THE REVENUE IN ASSESSMENT YEAR 2009 - 10 WERE ON IDENTICAL FACTS AND ISSUE OF CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE GROUND OF APPEAL NO.1 RAISED IN ASSESSMENT YEAR 2009 - 10, AS IN ASSESSMENT YEAR 2008 - 09 WAS NOT PRESSED. 29. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE WHICH ARISES IN THE PRESENT BUNCH OF APPEALS IS AGAINST THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. THE ASSESSEE HAD ENVISAGED THE DEVELOPMENT OF PLOT OF LAND AT PALM BEACH ROAD, NAVI MUMBAI FOR CONSTRUCTION OF TWO UNITS OF BUILDINGS HAVING TOTAL NUMBER OF 156 FLATS IN THE PROJECT KNOWN AS THARWANI HEIGHTS. THE PLAN FOR THE SAID PROJECT WAS SANCTIONED ON 24.03.2005 AND THE TOTAL AREA OF THE PLOT WAS MORE THAN ONE ACRE. SINCE THE PROJECT WAS BEING CARRIED OUT IN NAVI MUMBAI , THE LIMIT OF BUILT UP AREA OF FLATS WAS 1000 SQ.FT. THE ASSESSEE HAD GOT THE PLAN APPROVED, UNDER WHICH IT HAD PLANNED TO CONSTRUCT 1BHK AND 2BHK FLATS. DURING THE COURSE O F SEARCH ON THE PREMISES OF ASSESSEE, VARIOUS INCRIMINATING DOCUMENTS WERE FOUND WHICH REFLECTED THE MERGING OF FLATS BY THE ASSESSEE IN THE EARLY STAGE OF CONSTRUCTION ITSELF. THE BROCHURE OF THE PROJECT WHICH WAS CIRCULATED BY THE ASSESSEE TALKS OF 3BHK FLATS AND THERE WAS NO MENTION OF 1BHK FLATS AT ALL. FURTHER, THE AREA FOR SERVANT QUARTERS WAS ALSO MERGED IN THE FLATS ITSELF. IN THE POST SEARCH ENQUIRIES, STATEMENTS OF VARIOUS FLAT OWNERS WERE RECORDED , WHO ADMITTED THAT THEY HAD BOUGHT THE MERGED FLATS AND NOT MERGED THE SAME AFTER CONSTRUCTION. THE ASSESSING OFFICER ALSO NOTED THAT THE ASSESSEE HAD PROVIDED TWO ELECTRIC METERS IN THE RESPECTIVE AREAS. HOWEVER, ONLY ONE OF THE METERS WITH HIGHER CAPACITY ITA NO S . 5836 TO 5838 / M /20 12 ITA NOS.2032 & 2033/PUN/2012 M/S. SAI HOMES 24 WAS USED AND THE OTHER WAS NOT BEING USED. IN VIEW OF THE ASSESSEE HAVING VIOLATED THE CONDITIONS OF BUILT UP AREA OF THE FLATS OF BEING MORE THAN 1000 SQ.FT., WHEREIN IN CASE OF SOME FLATS, ON MERGER, THE AREA WAS MORE THAN 1000 SQ.FT. AND IN SOME CASES BY INCLUDING THE AREA OF BALCONY / OPEN TE RRACE, THE AREA WAS MORE THAN 1000 SQ.FT. AND THE FLATS NOT BEING CONSTRUCTED AS PER THE APPROVED PLANS , THE ASSESSING OFFICER HAD DENIED THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT TO THE ASSESSEE. HOWEVER, DURING THE COURSE OF APPELLATE PRO CEEDINGS, THE CIT(A) DIRECTED THE ASSESSING OFFICER TO GET THE PHYSICAL REPORT FROM THE DVO VIS - - VIS THE AREA OF FLATS. THE DVO IN THIS REGARD REPORTED THAT OUT OF TOTAL 156 FLATS I.E. 33 FLATS HAD AREA WHICH WAS EXCEEDING 1000 SQ.F T. ; IN RESPECT OF OTHE R FLATS, IN CASE THE AREA OF BALCONY AND OPEN TERRACE IS EXCLUDED, THEN THE BALANCE BUILT UP AREA OF THE FLATS WERE LESS THAN 1000 SQ.FT. THE CIT(A) IN THIS REGARD ALLOWED PRORATA DEDUCTION IN RESPECT OF SUCH UNITS WHERE THE TOTAL BUILT UP AREA WAS LESS T HAN 1000 SQ.FT. THE CIT(A) ALSO ALLOWED THE AFORESAID CLAIM UNDER SECTION 80IB(10) OF THE ACT ON THE ADDITIONAL INCOME OFFERED BY THE ASSESSEE. THE SAID ADDITIONAL INCOME WAS OFFERED PURSUANT TO THE DOCUMENTS FO UND DURING THE COURSE OF SEARCH WHICH SUGGE STED ON - MONEY RECEIVED BY THE ASSESSEE IN RESPECT OF FLATS SOLD BY IT. THE ASSESSEE IS IN APPEAL BEFORE US ONLY IN RESTRICTING THE CLAIM ON SUCH FLATS WHERE THE AREA WAS MORE THAN 1000 SQ.FT. AND ALSO THE ON - MONEY RECEIVED IN RELATION TO SUCH FLATS. THE REVENUE ON THE OTHER HAND, IS IN APPEAL AGAINST THE ALLOWANCE OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT WHETHER PRORATA OR OTHERWISE, WHERE THE ASSESSEE HAS VIOLATED THE BASIC CONDITIONS OF NOT CONSTRUCTING THE UNITS AS PER SANCTIONED PLAN AND MERGING THE FLATS THEREON. THE REVENUE IS ALSO IN APPEAL IN ALLOWING THE SAID DEDUCTION ON THE ON - MONEY RECEIVED. ANOTHER ASPECT OF THE ISSUE RAISED BEFORE US IS THE DATE OF COMPLETION OF PROJECT, WHEREIN THE ASSESSEE CLAIMS THAT IT ITA NO S . 5836 TO 5838 / M /20 12 ITA NOS.2032 & 2033/PUN/2012 M/S. SAI HOMES 25 HAD COMPLETED THE PROJECT WI THIN TIME FRAME. ON THE OTHER HAND, THE ASSESSING OFFICER HAD DENIED THE SAID CLAIM BECAUSE TWO SERVANT TOILETS WERE CONSTRUCTED, FOR WHICH THE OCCUPANCY CERTIFICATE WAS RECEIVED ON 31.12.2009 AND SINCE THE ASSESSEE HAD RECEIVED THE SANCTION FOR CONSTRUCT ION OF THE PROJECT ON 24.03.2005, THEN THE COMPLETION ON 31. 12 . 2009, H AS RELIED ON TO DENY THE CLAIM UNDER SECTION 80IB(10) OF THE ACT. 30. FIRST, WE TAKE UP THE ISSUE OF COMBINATION OF FLATS BY THE ASSESSEE. UNDOUBTEDLY, THE ASSESSEE HAD AT START ENVI SAGED CONSTRUCTION OF FLATS OF 3BHK, THERE WAS NEVER AN INTENTION TO CONSTRUCT 1BHK AND 2BHK AS EVEN THE BROCHURE ISSUED BY THE ASSESSEE ONLY TALKS OF SUCH FLATS ; T HOUGH THE BUILDING PLANS WERE PASSED BY THE LOCAL AUTHORITY FOR CONSTRUCTION OF 1BHK AND 2BH K FLATS, BUT THE ASSESSEE DID NOT CONSTRUCT THE UNITS AS PER SANCTIONED BUILDING PLANS. THE ASSESSEE MERGED THE AREA OF 1BHK AND CONSTRUCTED 3BHK FLATS. THE ISSUE WHICH ARISES BEFORE US IS THAT IN CASES WHERE AFTER MERGER OF FLATS, THE BUILT UP AREA OF E ACH UNIT OF THE FLATS WAS WITHIN LIMITS PRESCRIBED UNDER THE ACT, WHETHER THE ASSESSEE IS ENTITLED TO CLAIM THE SAID DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. THE ANSWER TO THE QUESTION IS YES. IN CASE WHERE THE ASSESSEE HAS DEVIATED FROM THE ORIGIN AL PLAN BUT HAD CONSTRUCTED THE UNITS WITH AREA WHICH IS LESS THAN PRESCRIBED LIMITS, THEN IN SUCH CASE S , FOR SUCH UNITS WHERE THE AREA IS WITHIN THE LIMITS, THEN THE ASSESSEE IS ENTITLED TO PRORATA DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. HOWEVER, WH ERE THE AREA OF MERGED FLATS IS BEYOND THE PRESCRIBED LIMITS, THEN THE ASSESSEE IS NOT ENTITLED TO CLAIM THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. IN THIS REGARD, WE FIND SUPPORT FROM THE RATIO LAID DOWN BY THE PUNE BENCH OF TRIBUNAL IN ITO VS. PAR AS BUILDERS (SUPRA) . THE ASSESSEE IS ENTITLED TO CLAIM THE AFORESAID DEDUCTION IN RESPECT OF SUCH UNITS ITA NO S . 5836 TO 5838 / M /20 12 ITA NOS.2032 & 2033/PUN/2012 M/S. SAI HOMES 26 WHICH ARE HAVING AREA OF 1000 SQ.FT. OR LESS, SINCE THE PROJECT OF ASSESSEE IS IN LIMITS OF THANE, WHERE THE REQUIREMENT OF SECTION 80IB(10) OF THE ACT TO CONSTRUCT FLATS WITH AREA OF 1000 SQ.FT. OR LESS. IN THIS REGARD, WE FIND THAT THE DVO DURING THE COURSE OF APPELLATE PROCEEDINGS HAS GIVEN PHYSICAL REPORT OF VARIOUS FLATS CONSTRUCTED BY THE ASSESSEE AND IT HAS BEEN REPORTED THAT 33 FLATS OUT OF TOTA L 156 FLATS HAVE , AFTER MERGER WERE BEYOND AREA OF 1000 SQ.FT. ACCORDINGLY, THE ASSESSEE IS NOT ENTITLED TO CLAIM THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IN RESPECT OF SUCH MERGED 33 FLATS. SINCE THE ASSESSEE IS NOT ENTITLED TO THE BENEFIT OF DED UCTION UNDER SECTION 80IB(10) OF THE ACT IN RESPECT OF SUCH FLATS, THE ADDITIONAL INCOME, IF ANY, OFFERED ON ACCOUNT OF ON - MONEY IN RESPECT OF SAID 33 FLATS IS TO BE BROUGHT TO TAX IN THE HANDS OF ASSESSEE, AND THE ASSESSEE IS NOT ENTITLED TO CLAIM THE DED UCTION UNDER SECTION 80IB(10) OF THE ACT IN RESPECT OF SUCH ON - MONEY ON 33 FLATS. 3 1 . NOW, COMING TO THE BALANCE FLATS WHICH ARE CONSTRUCTED BY THE ASSESSEE, WHEREIN THE ASSESSING OFFICER HAD GIVEN A FINDING THAT THE AREA OF FLATS WAS MORE THAN 1000 SQ. FT. SINCE HE HAS INCLUDED THE AREA OF BALCONY OR OPEN TERRACE. VARIOUS PHYSICAL VERIFICATION EXERCISE AND STATEMENTS OF THE PERSONS AND ALSO PERUSAL OF THE DOCUMENTS SEIZED DURING THE COURSE OF SEARCH WERE BASED UPON BY THE ASSESSING OFFICER FOR COMING TO THE SAID CONCLUSION. HOWEVER, THE ISSUE IS NOW SETTLED BY THE HONBLE SUPREME COURT IN CIT VS. SARKAR BUILDERS REPORTED IN 375 ITR 392 (SC) , WHEREIN IT HAS BEEN HELD THAT IN RESPECT OF PROJECTS WHICH WERE SANCTIONED PRIOR TO 01.04.2005, THE AREA OF BALCO NY AND TERRACE IS TO BE EXCLUDED FROM THE AREA OF UNITS FOR WORKING OUT THE TOTAL AREA OF THE FLATS, WHICH IS ELIGIBLE FOR DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. THE AMENDMENT BROUGHT IN BY INSERTION OF 80IB(14) OF THE ACT IS W.E.F. 01.04.2005 AND A CCORDINGLY, IS APPLICABLE FOR SUCH PROJECTS WHICH ARE APPROVED AFTER 01.04.2005. THE PROJECT OF ITA NO S . 5836 TO 5838 / M /20 12 ITA NOS.2032 & 2033/PUN/2012 M/S. SAI HOMES 27 THE ASSESSEE WAS APPROVED ON 24.03.2005 AND CONSEQUENTLY, THE AMENDMENT BROUGHT IN ON 01.04.2005 IS NOT APPLICABLE TO THE PROJECT OF ASSESSEE. WHERE THE ASSES SEE HAS RECEIVED SANCTION ON 24.03.2005 AND THE LOCAL AUTHORITY HAS EVEN ISSUED THE COMPLETION CERTIFICATE ON 08.06.2007 FOR CONSTRUCTION OF THE SAID FLATS, THEN IN ORDER TO DETERMINE THE BUILT UP AREA OF THE FLATS, THE AREA OF BALCONY AND TERRACE IS TO BE EXCLUDED AND SINCE IN RESPECT OF BALANCE FLATS AFTER SUCH EXCLUSION, THE AREA IS LESS THAN 1000 SQ.FT., THE ASSESSEE IS ENTITLED TO PRORATA DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. FURTHER, THE ASSESSEE IS ALSO ENTITLED TO PRORATA DEDUCTION UNDER SEC TION 80IB(10) OF THE ACT IN RESPECT OF ON - MONEY RECEIVED ON SUCH FLATS WHICH ARE ENTITLED TO THE CLAIM OF DEDUCTION. IN THIS REGARD, WE FIND SUPPORT FROM THE RATIO LAID DOWN BY THE PUNE BENCH OF TRIBUNAL IN ITO VS. GAJRAJ CONSTRUCTIONS (SUPRA) . 32. ONE MORE ASPECT IN RELATION TO THE ISSUE OF CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IS WHETHER THE ASSESSEE CAN CLAIM SUCH DEDUCTION IN THE RETURN OF INCOME FILED UNDER SECTION 153C OF THE ACT. THE ASSESSEE HAD ORIGINALLY FILED RETURN OF INCOME UNDER SECTION 139(1) OF THE ACT ON 14.09.2008. THEREAFTER, SEARCH UNDER SECTION 132 OF THE ACT WAS CARRIED OUT ON THE GROUP OF ASSESSEE ON 16.10.2008 . SINCE THE ASSESSEE WAS ALSO SEARCHED / SURVEYED, INITIAL LY NOTICE UNDER SECTION 153A OF THE ACT WAS ISS UED. HOWEVER, LATER BECAUSE OF THE DOCUMENTS FOUND IN THE HANDS OF CONNECTED ASSESSEE , NOTICE UNDER SECTION 153C OF THE ACT WAS ISSUED. THE ASSESSEE IN THE RETURN FILED IN RESPONSE TO THE NOTICE UNDER SECTION 153C OF THE ACT, REVISED ITS CLAIM UNDER SECT ION 80IB(10) OF THE ACT BY CLAIMING THE SAID DEDUCTION AT RS.21.49 CRORES AS AGAINST THE ORIGINAL CLAIM OF RS.18.39 CRORES. THE INCREASE IN THE CLAIM OF DEDUCTION WAS ON ACCOUNT OF ADDITIONAL INCOME DECLARED DURING THE COURSE OF SEARCH FROM THE AFORESAID HOUSING PROJECT. THE SAID CLAIM OF DEDUCTION IN ITA NO S . 5836 TO 5838 / M /20 12 ITA NOS.2032 & 2033/PUN/2012 M/S. SAI HOMES 28 RESPECT OF FLATS WHICH COMPLIED WITH THE CONDITIONS OF SEC 80IB(10) OF THE ACT HAS BEEN ALLOWED BY THE CIT(A) AND IN RESPECT OF 33 FLATS TO WHICH THE DEDUCTION CLAIMED UNDER SECTION 80IB(10) OF THE ACT HAS B EEN DENIED, THE ADDITIONAL CLAIM HAS BEEN DENIED BY THE CIT(A). THE REVENUE IS AGGRIEVED BY THE ORDER OF CIT(A) IN ALLOWING THE SAME IN TURN, RELYING ON THE RATIO LAID DOWN BY THE TRIBUNAL IN SHRI SHANKAR R JHUNJHUNWALA VS. ACIT (SUPRA). THE PERUSAL OF T HE SAID DECISION REFLECTS THAT THE TRIBUNAL HAD IN TURN, RELIED ON THE DECISION OF JODHPUR BENCH OF TRIBUNAL IN SUNCITY ALLOYS (P) LTD. VS. ACIT REPORTED IN 124 TTJ 674 (JD), WHICH HAD DEALT WITH THE SCOPE OF ASSESSMENTS UNDER SECTION 153A OF THE ACT VIS - - VIS NEW CLAIM MADE FOR DEDUCTION OR ALLOWANCE. THE TRIBUNAL HAD OBSERVED THAT SINCE HAVING REGARD TO THE PROVISIONS OF SECTION 139(5) OF THE ACT, SINCE THE ASSESSMENTS UNDER SECTION 153A OF THE ACT ARE IN RELATION TO UNDISCLOSED INCOME, IT HAS TO BE CONC LUDED THAT NEW CLAIMS OF DEDUCTION OR ALLOWANCE CANNOT BE MADE IN RESPECT OF COMPLETED ASSESSMENTS. THE TRIBUNAL FURTHER NOTED THAT IN TERMS OF SECOND PROVISO TO SECTION 153A(1) OF THE ACT, ASSESSMENTS PENDING ON THE DATE OF INITIATION OF SEARCH SHALL ABA TE. THE TRIBUNAL RELYING ON THE SAME HELD THAT WHERE THE INCOME RETURNED BY THE ASSESSEE UNDER SECTION 139(1) OF THE ACT HAD ACHIEVED FINALITY, THE CLAIM OF THE ASSESSEE WAS UNTENABLE. THE TRIBUNAL ALSO OBSERVED THAT EVEN BEFORE US THE ASSESSEE HAS NOT A SSERTED THAT ON THE DATE OF SEARCH, THE ASSESSMENT FOR INSTANT YEAR WAS PENDING SO AS TO ABATE. 33. HOWEVER, THE FACTS OF THE PRESENT CASE ARE AT VARIANCE, WHEREIN THE SEARCH WAS CARRIED OUT AGAINST THE ASSESSEE ON 16.10.2008 AND THE ASSESSEE HAD FILED THE ORIGINAL RETURN OF INCOME ON 14.09.2008, HENCE AS PER PROVISIONS OF SECTION 153C R.W.S. 153A OF THE ACT , THE PROCEEDINGS RELEVANT TO THE YEAR UNDER CONSIDERATION WOULD ABATE. HENCE, T HE ASSESSEE WHILE FILING THE RETURN OF INCOME ITA NO S . 5836 TO 5838 / M /20 12 ITA NOS.2032 & 2033/PUN/2012 M/S. SAI HOMES 29 IN RESPONSE TO NOTICE ISSUED UNDER SECTION 153C R.W.S. 153A OF THE ACT IS ENTITLED TO MAKE A FRESH CLAIM OF SUCH DEDUCTION AND THE SAME IS TO BE ALLOWED IN THE HANDS OF ASSESSEE , IF IN ACCORDANCE WITH LAW . ACCORDINGLY, WE HOLD SO. RELYING ON THE RATIO LAID DOWN IN MALPANI EST ATES VS. ACIT (SUPRA), WE HOLD THAT THE ASSESSEE COULD MAKE THE CLAIM UNDER SECTION 80IB(10) OF THE ACT WITH REGARD TO ENHANCED INCOME WHICH WAS WELL WITHIN THE SCOPE AND AMBIT OF ASSESSMENTS UNDER SECTION 153A OF THE ACT. THE ADDITIONAL INCOME WHEN RECEI VED DURING THE COURSE OF CARRYING ON THE BUSINESS ACTIVITY OF DEVELOPING HOUSING PROJECT IS DERIVED FROM THE HOUSING PROJECT, WHICH IS ELIGIBLE FOR CLAIMING DEDUCTION UNDER SECTION 80IB(10) OF THE ACT, HENCE THE ASSESSEE IS ELIGIBLE TO CLAIM THE DEDUCTION ON SUCH ADDITIONAL INCOME. FOLLOWING THE SAME PARITY OF REASONING, WE HOLD THAT THE ASSESSEE IS ENTITLED TO CLAIM THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT ON SUCH ADDITIONAL INCOME WHICH IS IN RELATION TO THE PROJECT WHICH IS ENTITLED TO THE AFORES AID DEDUCTION. HOWEVER, IN RESPECT OF 33 FLATS, THE ASSESSEE IS NOT ENTITLED TO CLAIM THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT AND HENCE, IS NOT ELIGIBLE TO CLAIM THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IN RESPECT OF ADDITIONAL INCOME ARISI NG FROM SALE OF SUCH 33 FLATS. ACCORDINGLY, THE GROUND OF APPEAL NO.2 RAISED BY THE ASSESSEE IS DISMISSED AND THE GROUNDS OF APPEAL NO.1 AND 2 RAISED BY THE REVENUE ARE ALSO DISMISSED . 3 4 . NOW, COMING TO THE NEXT ISSUE RAISED BY THE REVENUE I.E. WITH REG ARD TO COMPLETION OF PROJECT. WITHOUT GOING INTO THE INTRICACIES OF ISSUE RAISED, WE WOULD LIKE TO REFER TO THE BASIC FACTS OF THE CASE, WHEREIN PROJECT WAS APPROVED ON 24.03.2005 FOR CONSTRUCTION OF 156 FLATS, AS PER PROVISIONS OF THE ACT, THE COMPLETION WAS TO BE COMPLETED PRIOR TO 31.03.2009. HOWEVER, THE ASSESSEE COMPLETED THE PROJECT IN FEBRUARY 2007 AND IN LIEU THEREOF ALSO RECEIVED COMPLETION CERTIFICATE FROM THE LOCAL AUTHORITY ON 08.06.2007 WHICH MENTIONED ITA NO S . 5836 TO 5838 / M /20 12 ITA NOS.2032 & 2033/PUN/2012 M/S. SAI HOMES 30 THE DATE OF COMPLETION TO BE FEBRUARY, 2 007. THEREAFTER, THE POSSESSION OF THE FLATS WAS HANDED OVER TO THE PURCHASERS AND WHO IN TURN, SET UP A SOCIETY FOR THE MAINTENANCE OF BUILDING. THE SAID SOCIETY WAS REGISTERED WITH THE REGISTRAR OF COOPERATIVE SOCIETIES AND THE CERTIFICATE OF REGISTRAT ION IS DATED 13.05.2008. THE ASSESSEE CLAIMED THAT IT HAD HANDED OVER THE MAINTENANCE OF BUILDING TO THE SAID SOCIETY. THEREAFTER, ON A LATER DATE, TWO SERVANT TOILETS WERE CONSTRUCTED ON THE GROUND FLOOR, FOR WHICH PERMISSION WAS RECEIVED AND OCCUPANCY CERTIFICATE WAS ISSUED ON 31.12.2009. THE CASE OF THE ASSESSING OFFICER WAS THAT SINCE THE COMPLETION CERTIFICATE IS DATED 31.12.2009, THEN THE SAID PROJECT IS COMPLETED ON 31.12.2009 WHICH IS BEYOND THE DATE PRESCRIBED IN THE ACT AND HENCE, THE ASSESSEE IS NOT ELIGIBLE TO CLAIM THE SAID DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. THE CIT(A) HAS ALLOWED THE CLAIM OF ASSESSEE SINCE THE COMPLETION CERTIFICATE ONLY TALKS ABOUT TWO SERVANT TOILETS AND NO OTHER CONSTRUCTION. ONCE THE BUILDING HAS BEEN COMPLE TED BY THE ASSESSEE AND THE COMPLETION CERTIFICATE HAS BEEN ISSUED AND UNIT S HAVE BEEN OCCUPIED BY THE PURCHASERS OF THE INDIVIDUAL UNITS AS EARL Y AS FEBRUARY, 2007 / JUNE 2007, THERE IS NO MERIT IN THE ORDER OF ASSESSING OFFICER IN DENYING THE CLAIM UNDER SECTION 80IB(10) OF THE ACT. ANOTHER ASPECT OF THE ISSUE IS THAT EVEN THE SOCIETY FOR MANAGING THE BUILDING HAS BEEN FORMED AND GIVEN RECOGNITION BY THE REGISTRAR OF COOPERATIVE SOCIETIES VIDE LETTER DATED 13.05.2008. THEREAFTER, ONLY TWO SERVANT TOILET S WERE CONSTRUCTED ON THE GROUND FLOOR FOR WHICH THE CO - OPERATIVE SOCIETY OF FLAT OWNERS MADE AN APPLICATION AND RECEIVED THE OCCUPANCY CERTIFICATE WHICH CLEARLY TALKS OF ONLY THE AREA OF TWO SERVANT TOILETS AND NOT THE AREA OF TOTAL BUILDING CONSTRUCTED . I N SUCH CIRCUMSTANCES, WE FIND NO MERIT IN THE ORDER OF ASSESSING OFFICER IN HOLDING THAT THE BUILDING WAS NOT COMPLETED BY 31.12.2009. UPHOLDING THE ORDER OF CIT(A), WE DISMISS THE GROUND OF APPEAL NO.3 RAISED BY THE REVENUE. ITA NO S . 5836 TO 5838 / M /20 12 ITA NOS.2032 & 2033/PUN/2012 M/S. SAI HOMES 31 3 5 . THE FACTS AND ISSUES IN ASSESSMENT YEAR 2009 - 10 ARE IDENTICAL TO THE FACTS AND ISSUE IN ASSESSMENT YEAR 2008 - 09 AND OUR DECISION IN ASSESSMENT YEAR 2008 - 09 SHALL APPLY MUTATIS MUTANDIS TO ASSESSMENT YEAR 2009 - 10. 3 6 . IN THE RESULT, THE APPEAL OF ASSESSEE IN ASSESSMENT YEAR 2006 - 07 IS DISMISSED, APPEALS OF ASSESSEE IN ASSESSMENT YEARS 2008 - 09 AND 2009 - 10 ARE PARTLY ALLOWED AND THE APPEALS OF REVENUE IN ASSESSMENT YEARS 2008 - 09 AND 2009 - 10 ARE DISMISSED. ORDER PRONOUNCED ON THIS 31 ST DAY OF MARCH , 201 7 . SD/ - SD/ - ( ANIL CHATURVEDI ) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 31 ST MARCH , 201 7 . / PUNE ; DATED : 31 ST MARCH , 201 7 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPEL LANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A) - I , THANE ; 4. / THE CIT (CENTRAL), PUNE ; 5. , , / DR A , ITAT, PUNE; 6. / GUARD FILE . / BY ORDER, // TRUE COPY // / ASSISTANT REGISTRAR, , / ITAT, PUNE