Income-tax Officer, V. M/s. Gajraj Constructions, Pune

ITA 2057/PUN/2013

• Counselvise Citation: 205724514 RSA 2013
• Duration Of Justice: 1 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-02-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 21-01-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 26-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B C MALAKAR
• Keywords: Business income; Income from undisclosed sources; Loose papers; Corroborative evidences; Revised return; Documents seized
• Section: 143(3); 153A; 69; 132; 154; 11; 15; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO.2057/PN/2013 ASSESSMENT YEAR : 2010-11 THE INCOME TAX OFFICER, WARD 2(2), PUNE APPELLANT VS. M/S. GAJRAJ CONSTRUCTIONS, OFFICE NO.201, SIDDHIVINAYAK KESHAR, SOMWAR PETH, PUNE 411030 RESPONDENT PAN: AAHFG2926Q APPELLANT BY : B.C. MALAKAR RESPONDENT BY : WRITTEN SUBMISSIONS DATE OF HEARING : 21-01-2015 DATE OF PRONOUNCEMENT : 11-02-2015 O R D E R PER SUSHMA CHOWLA, J.M: THIS APPEAL FILED BY THE REVENUE IS AGAINST THE ORDER OF CIT(A)-II, PUNE, DATED 19.08.2013 RELATING TO ASSESSMENT YEAR 2010 -11 AGAINST ORDER PASSED UNDER SECTION 143(3) OF THE INCOME-TAX ACT, 1961. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN HOLDING RS.40 LACS AS BUSINESS INCOME QUALIFYING FOR DEDUCTION U/S.80IB(10) OF THE INCOME TAX ACT, 1961. 2) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN NOT APPRECIATING THE FACT THAT THE ASSESSEE IN THE COURS E OF ASSESSMENT AS WELL AS APPELLATE PROCEEDINGS FAILED TO SUBSTANTIATE ITS CLAIM AND DISCHARGE ITS ONUS WITH SUPPORTING EVIDENCES THA T THE UNDISCLOSED RECEIPTS OF RS.40 LACS HAVE ORIGINATED FRO M THE PROJECT 'PRIME PLUS', FOR WHICH DEDUCTION U/S.80IB(10) OF THE AC T HAS BEEN CLAIMED. 3) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN FAILING TO APPRECIATE THAT THE ASSESSEE HAD TRIED TO CLAIM THE UNDISCLOSED RECEIPTS TO BE FROM ONE OF ITS PROJECTS WHICH WAS 2 ITA NO.2057/PN/2013 M/S. GAJRAJ CONSTRUCTIONS ENTITLED TO DEDUCTION U/S.80IB(10) WITHOUT PROVING ANY N EXUS OF RECEIPTS WITH THAT PARTICULAR PROJECT. 4) THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND ANY OR ALL THE GROUNDS OF APPEAL. 3. ON THE APPOINTED DATE OF HEARING, THE ASSESSEE HAS FUR NISHED WRITTEN SUBMISSIONS IN WHICH, IT WAS POINTED OUT THAT THE IS SUE IS IDENTICAL TO THE ISSUE DECIDED BY THE PUNE BENCH OF THE T RIBUNAL IN SHRI NARESH T. WADHWANI VS. DCIT, ITA NOS.18, 19 & 20/PN/2013 RELATING TO ASSESSMENT YEARS 2007-08 TO 2009-10, VIDE ORDER DATED 28.1 0.2014. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVE NUE HAS POINTED OUT THAT IN THE CASE OF ASSESSEE, THERE WAS ONL Y ONE PROJECT AGAINST WHICH, THE ASSESSEE HAD CLAIMED THE DEDUCTION UND ER SECTION 80IB(10) OF THE ACT. 5. THE ISSUE RAISED IN THE PRESENT APPEAL IS AGAINST THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. 6. THE FACTS RELATING TO THE ISSUE ARE THAT THE ASSESSE E WAS AN ASSOCIATION OF PERSONS (AOP) AND WAS ENGAGED IN THE BUSINE SS OF DEVELOPMENT AND CONSTRUCTION OF BUILDINGS. THE ASSESSEE HAD CLAIMED THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IN THE OR IGINAL RETURN OF INCOME, IN WHICH, IT HAD DECLARED NIL INCOME. THEREAFTER, THE ASSESSEE FILED A REVISED RETURN OF INCOME ON 17.12.2010 DECLARING TOT AL INCOME AT NIL. IN THE SAID REVISED RETURN, THE ASSESSEE HAD ADDED RECEIPTS AGAINST BOOKINGS OFFERED IN THE COURSE OF SEARCH AMOUNTING TO RS.40 LAKHS. T HE ASSESSING OFFICER SHOW CAUSED THE ASSESSEE TO FURNISH THE DATE-WISE RECEIPTS OF THE AMOUNT OF RS.40 LAKHS AND ALSO THE NAMES AND ADDRESSES OF THE PERSONS FROM WHOM THE SAME WERE RECE IVED IN ORDER TO ESTABLISH THAT THE SAME WERE BUSINESS RECEIPTS. IN REPL Y, THE ASSESSEE POINTED OUT THAT THE DETAILS OF DATE-WISE RECEIPTS, NAMES AND ADDRESSES 3 ITA NO.2057/PN/2013 M/S. GAJRAJ CONSTRUCTIONS OF THE PERSONS FROM WHOM THE BOOKING AMOUNTS RECEIVED, W ERE NOT AVAILABLE WITH THE ASSESSEE. IT WAS FURTHER POINTED OUT B Y THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE BEFORE THE A SSESSING OFFICER THAT THE SAID AMOUNT DECLARED WAS AN UNDISCLOSED RECEIPT S AND NOT INCOME. FURTHER, CONTENTION RAISED BY THE ASSESSEE WAS THAT THE SAME WAS NOT ASSESSABLE AS INCOME FROM OTHER SOURCE AS PER SECTION 69 OF THE ACT. REFERENCE WAS MADE TO QUERY NOS.50 AND 51 AN D THE ANSWERS THERETO IN THE STATEMENT RECORDED UNDER SECTION 132(4) OF THE ACT, IN WHICH THE ASSESSEE CLAIMED THAT IT HAD MADE A DECLARATION OF AN AMOUNT RECEIVED FROM BUSINESS, FROM WHICH VARIOUS EXPENDITU RE HAD BEEN INCURRED AND PAID. ANOTHER REFERENCE WAS MADE TO THE LETTER DATED 23.09.2008 AS A SEQUEL AND IN LINE WITH ANSWER TO Q UERY NO.50 AND THE SAID LETTER CATEGORICALLY ASSERTED THAT THE DEC LARATION WAS OF UNDISCLOSED RECEIPTS. THE ASSESSING OFFICER NOTED THAT TH E ASSESSEE HAD NOT FURNISHED THE INFORMATION OF THE CUSTOMERS / CLIENT S WHO HAD MADE BOOKINGS IN THE SAID PROJECT OF PRIME PLUS AND WHO H AD CONTRIBUTED ON-MONEY. FURTHER, THE ASSESSING OFFICER NOTE D THAT THE EXAMINATION OF VARIOUS STATEMENTS RECORDED AT THE TIME O F SEARCH AND ALSO SUBSEQUENT THERETO, DOES NOT REFLECT THAT THERE WA S AN ADMISSION OF ON-MONEY RECEIVED, WHICH HAD NOT BEEN ACCOUNTED FOR IN THE REGULAR BOOKS OF ACCOUNT. FURTHER, NONE OF THE DOCUMENTS SEIZED AT THE TIME OF SEARCH ACTION, HAD ANY NOTINGS IN CONNECTION WITH THE ON- MONEY RECEIVED FROM THE PROJECT OF PRIME PLUS. THE ASSESSING OFFIC ER ALSO REFERRED TO THE FINAL STATEMENT ON OATH RECORDED AT TH E TIME OF SEARCH ACTION OF SHRI NARESH T. WADHWANI ON 13.08.2008 UNDER WHIC H, DECLARATION OF UNDISCLOSED INCOME OF RS.7 CRORES WAS MADE AND IN THE FINAL STATEMENT IN RELATION TO THE NOTINGS ON THE INCRIMINAT ING DOCUMENTS SEIZED, HE HAD ADMITTED TO THE TRANSACTIONS W HICH WERE NOT RECORDED IN THE REGULAR BOOKS OF ACCOUNT AND WHICH INCLUD ED ON-MONEY 4 ITA NO.2057/PN/2013 M/S. GAJRAJ CONSTRUCTIONS RECEIPTS FROM DIFFERENT PROJECTS UNDERTAKEN BY HIM. THE A SSESSING OFFICER IN VIEW THEREOF, WAS OF THE VIEW THAT THE ASSESSEE H AD NOT DEMONSTRATED BY SUPPORTING EVIDENCE OR OTHERWISE THAT THE SAID UNDISCLOSED RECEIPTS OF RS.40 LAKHS HAD ORIGINATED FROM THE PROJECT OF PRIME PLUS. CONSEQUENTLY, THE CLAIM OF DEDUCTION UNDER SEC TION 80IB(10) OF THE ACT ON SUCH RECEIPTS WAS DENIED TO THE ASSESSEE . 7. THE CIT(A) ALLOWED THE CLAIM OF THE ASSESSEE HOLDING THAT THE SAID ADDITIONAL RECEIPTS OFFERED BY THE ASSESSEE WERE FROM BUSIN ESS RECEIPTS, ON WHICH THE ASSESSEE WAS ENTITLED TO THE CLAIM OF DEDUCT ION UNDER SECTION 80IB(10) OF THE ACT. 8. THE REVENUE IS IN APPEAL AGAINST THE SAID ORDER OF CIT(A). 9. ON THE PERUSAL OF RECORD, WE FIND THAT SEARCH ACTION U NDER SECTION 132(1) OF THE ACT WAS CARRIED OUT AT THE PREMISES OF THE MEMBER OF AOP, DURING WHICH SUM OF RS.40 LAKHS WAS OFFERED AS UNDISC LOSED RECEIPTS AGAINST BOOKINGS FROM THE CUSTOMERS OF PRIME PLUS PROJECT RELATING GAJRAJ CONSTRUCTIONS I.E. THE ASSESSEE AOP BEFORE US. THE SAID RECEIPTS WERE ADMITTEDLY, RECEIVED IN THE FINANCIAL YEAR 20 07-08. HOWEVER, BASED ON THE METHOD OF ACCOUNTING FOLLOWED FOR RE COGNITION OF REVENUE, THE ASSESSEE HAD TAKEN THE SAID RECEIPTS WH ILE COMPUTING THE TOTAL INCOME RELATING TO ASSESSMENT YEAR 2010-11. THE N EXT CONTENTION OF THE ASSESSEE WAS THAT THE SAID RECEIPTS REPRESENTED THE INCOME FROM PROJECT AND CONSEQUENTLY, QUALIFIES FOR DEDUCTION UNDER SE CTION 80IB(10) OF THE ACT. THE SAID DECLARATION OF RS.40 LAKHS WAS PART OF THE TOTAL DECLARATION OF RS.7 CRORES MADE IN THE COURSE OF S TATEMENT RECORDED ON 13.08.2008 AND THE DETAILS OF THE SAID DISCL OSURE WERE MADE IN THE LETTER DATED 23.08.2008, WHICH IN TURN, OUTLINE D THE BIFURCATION OF RECEIPTS ENTITY-WISE AND ALSO YEAR-WISE. THE FINDING OF 5 ITA NO.2057/PN/2013 M/S. GAJRAJ CONSTRUCTIONS THE CIT(A) VIDE PARA 3.4 WAS THAT THE AFORESAID SUM OF RS.40 LAKHS IS CLEARLY REFLECTED AS RECEIPT IN F.Y. 2007-08 FROM THE PR IME PLUS PROJECT OF THE APPELLANT AOP IN AFORESAID LETTER DATED 23.08.2008. 10. THE ASSESSING OFFICER HAD DISALLOWED THE DEDUCTION UNDE R SECTION 80IB(10) OF THE ACT IN RESPECT OF THE SAID UNDISCLOSED REC EIPT OF RS.40 LAKHS ON THE PREMISE THAT THE ASSESSEE HAD FAILED TO FURN ISH SUPPORTING EVIDENCE THAT THE SAID RECEIPTS ORIGINATED FROM THE PROJE CT PRIME PLUS. AGAINST THE SAID OBSERVATION OF ASSESSING OFFICER, THE FINDIN G OF CIT(A) WAS IT IS UNDISPUTED THAT DURING THE SEARCH ACTION IN T HE CASE OF THE GROUP LED TO THE FACT THAT THE AMOUNTS RECEIVED FROM CUSTOMERS AGAINST THE SALE OF FLATS WAS NOT REFLECTED IN THE BOOKS OF AC COUNT. THIS ALSO BECOMES EVIDENT FROM Q.NOS. 50 AND 51 OF THE STATEMEN T RECORDED IN THE COURSE OF SEARCH ACTION WHICH HAS BEEN ENCLOSED AS A PART OF THE SUBMISSION DATED 02-11-2012 FILED BY THE APPELLANT DURI NG THE APPELLATE PROCEEDINGS. A READING OF THE QUESTION AND ANSWER OF THE STATEMENT RECORDED U/S 132(4) AND ALSO THE LETTER DATED 23-09-2008 MAKES IT CLEAR THAT THE SUM OF RS.40 LACS WAS DECLARED AS RECEIPTS FROM THE PROJECT 'PRIME PLUS' FOR F.Y. 2007-08. THE AFORESAID STATEMENT ALS O REVEALS THE FACT THAT THE DECLARATION OF RS.7 CRORES HAS BEEN RE CEIVED AS UNDISCLOSED RECEIPTS FROM THE BUSINESS OF CONSTRUCTION AND DEVE LOPMENT OF THE GROUP AND IT HAS ALSO BEEN CATEGORICALLY STATED BY THE PARTN ER THAT HE WOULD LIKE TO VERIFY THE SEIZED DIARY AND OTHER PAPERS TO CONFIRM DUPLICATION IF ANY AND FURTHER STATED THAT HE SHALL GIVE THE BREAK U P ENTITY-WISE AND YEAR-WISE INFORMATION LATER. THE SUBSEQUENT LETTER DA TED 23-09-2008 HAD BEEN FILED AS A SEQUEL TO THE DECLARATION WHICH CLEARLY MENTIONS THE DECLARATION TO BE ON ACCOUNT OF UNDISCLOSED RECEIPTS WHICH ALSO INCLUDES RS.40 LACS OF THE APPELLANT AOP. THUS, THE AFORESAID DE CLARATION WAS ON ACCOUNT OF RECEIPTS WHICH WERE UNDISCLOSED AND IN T HAT CONTEXT THE 6 ITA NO.2057/PN/2013 M/S. GAJRAJ CONSTRUCTIONS APPELLANT WITH REGARD TO THE RECEIPTS OF RS.40 LACS HA S SUBMITTED BEFORE THE ASSESSING OFFICER THAT THE DETAILS DATE WISE OF THE RECEIPTS ALONG WITH THE PERSONS FROM WHOM THE BOOKING AMOUNT WERE RECEI VED WERE NOT AVAILABLE. THE VERY FACT THAT THE SAID RECEIPTS WERE NOT DISCLOSED AND THE AFORESAID AMOUNT WAS DECLARED ADDITIONALLY OVER AND A BOVE THE BOOK RESULTS AS UNDISCLOSED RECEIPTS AND NOT 'INCOME' HAS NOT BEEN CONSIDERED BY THE A.O. IN FACT DURING THE COURSE OF SEARCH CERTA IN DOCUMENTS FOUND REFLECTED CASH RECEIPTS AND PAYMENTS NOT REFLECTED IN THE REGULAR BOOKS OF ACCOUNT. IN THE STATEMENT U/S 132(4) ONE OF THE MEMBE RS OF THE AOP, SHRI NARESH T. WADHWANI MADE A DECLARATION OF AN AMOUNT OF RS.7 CRORES RECEIVED FROM VARIOUS BUSINESSES AND THE SAID RECEI PTS WERE FOUND UNDISCLOSED AND FORMED PART OF THE DOCUMENTS FOUND D URING SEARCH ACTION AND FROM THE SAID RECEIPTS VARIOUS EXPENDITURES WERE ALSO FOUND TO HAVE BEEN INCURRED. THE DETAILS OF THE UNDISCLOSED REC EIPTS ATTRIBUTED TO VARIOUS BUSINESS CONCERNS - ONE OF WHICH IS THE PRES ENT APPELLANT AND ITS BREAK-UP YEAR-WISE WAS ALSO PROVIDED SUBSEQUENTLY. THE SUM OF RS.40 LACS WAS STATED TO HAVE BEEN RECEIVED IN F.Y. 2007-08 BY THE APPELLANT AOP AND AS PER THE ACCOUNTING POLICY FOLLOWED BY THE APPELLANT THE AFORESAID AMOUNT WAS INCLUDED AS A PART OF THE PROF ITS DERIVED FROM THE HOUSING PROJECT FOR WHICH DEDUCTION U/S 80IB(10) HAS BEEN CLAIMED. 11. THE SAID RECEIPTS WERE INCLUDED IN THE HANDS OF THE A SSESSEE ON ACCOUNT OF THE DISCLOSURE MADE BY THE GROUP IN WHICH, IT WAS STATED THAT RS.40 LAKHS WERE THE UNDISCLOSED RECEIPTS OF THE PRO JECT UNDERTAKEN BY THE ASSESSEE AOP. IN VIEW OF THE ASSESS ING OFFICER ADOPTING THE UNDISCLOSED RECEIPTS AS BELONGING TO THE ASS ESSEE ON THE BASIS OF THE STATEMENT RECORDED DURING THE COURSE OF SE ARCH, THE SECOND PART OF THE STATEMENT THAT THE RECEIPTS WERE THE UNDIS CLOSED ON-MONEY RECEIVED FROM THE PROJECT PRIME PLUS MERITS TO BE ACCEPT ED. SINCE THE 7 ITA NO.2057/PN/2013 M/S. GAJRAJ CONSTRUCTIONS SAID UNDISCLOSED RECEIPTS HAD ARISEN TO THE ASSESSEE DUR ING THE COURSE OF CARRYING ON ITS BUSINESS ACTIVITIES, THEN THE SAID RECEIPT S WERE THE BUSINESS INCOME. THE ONLY ISSUE IS WHETHER THE SAID ADDIT IONAL INCOME WHICH ARISES FROM THE BUSINESS ACTIVITIES CARRIED ON BY THE ASSESSEE IS ELIGIBLE TO THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. 12. WE FIND THAT SIMILAR ISSUE AROSE BEFORE PUNE BENCH O F THE TRIBUNAL IN SHRI NARESH T. WADHWANI VS. DCIT, ITA NOS.18, 1 9 & 20/PN/2013 (SUPRA) AND IT WAS HELD AS UNDER:- 34. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSION S. FACTUALLY SPEAKING, IT IS QUITE EVIDENT THAT IN THE CO URSE OF HIS DEPOSITION U/S 132(4) OF THE ACT ON 14.08.2008, ASSESS EE DECLARED CERTAIN ADDITIONAL INCOMES FOR VARIOUS ASSESSMENT YEA RS, WHICH WERE HITHERTO NOT FORMING PART OF THE INCOME DECLARE D IN THE REGULAR BOOKS OF ACCOUNT. THE ASSESSING OFFICER HAS FURTHER NOTED THAT VIDE A WRITTEN COMMUNICATION DATED 23.09.2008, DURING P OST- SEARCH ENQUIRIES, ASSESSEE FURNISHED A BIFURCATION O F THE ADDITIONAL INCOME OF RS.7 CRORES, WHICH WAS ADMITTED BY HIM IN THE STATEMENT RECORDED DURING THE COURSE OF SEARCH U/S 132(4) OF THE ACT ON 14.08.2008. THE DETAILS OF SUCH DECLARATION HAS BEEN TABULATED IN PARA 8.2 OF THE ASSESSMENT ORDER. A PE RUSAL OF SUCH DETAILS READ ALONGWITH THE SUBSEQUENT ORDER PASSED U/S 154 OF THE ACT DATED 18.04.2011 BY THE ASSESSING OFFICER CLEARLY R EVEALS THAT VARIOUS LOOSE PAPERS/DIARIES FOUND AND SEIZED DURING THE COURSE OF SEARCH INDICATED THAT ASSESSEE WAS INDULGING IN ACCE PTING MONEY IN CASH AGAINST SALE OF FLATS/SHOPS IN THE PROJECT UN DERTAKEN BY HIM; AND, SUCH AMOUNTS WERE NOT REFLECTED IN THE REGULA R BOOKS OF ACCOUNT. PERTINENTLY, IT HAS BEEN ACCEPTED BY THE A SSESSING OFFICER THAT THE IMPUGNED SUM OF RS.60,00,000/- COMPRISES OF UNDISCLOSED RECEIPTS RECEIVED FROM CUSTOMERS AGAINST THE SALE OF FLATS IN THE PROJECT, SAI NISARG PARK - MAYURESHWAR, WH ICH HAS BEEN UNDERTAKEN BY ASSESSEE THROUGH HIS PROPRIETARY CONCERN, M/S MANGALMURTI DEVELOPERS; AND, THAT THE RECEIPTS PER TAIN TO THE ASSESSMENT YEAR UNDER CONSIDERATION. IN-FACT, THE TA BULATION MADE BY THE ASSESSING OFFICER IN PARA 8.13 OF THE ASSESSM ENT ORDER WHICH IS STATED TO BE BASED ON THE SEIZED MATERIAL, REV EALS THE NAMES OF THE CUSTOMERS, THE DATE AND THE AMOUNTS REC EIVED IN RELATION TO THE HOUSING PROJECT, SAI NISARG PARK - MA YURESHWAR UNDERTAKEN BY THE PROPRIETARY CONCERN, M/S MANGALMUR TI DEVELOPERS. A COPY OF THE DEPOSITION MADE BY THE ASS ESSEE U/S 132(4) OF THE ACT HAS ALSO BEEN PLACED IN THE PAPER B OOK AT PAGES 189 TO 214, WHICH ALSO SUPPORTS THE AFORESAID FACT-SITU ATION. THEREFORE, CONSIDERING THE (I) MATERIAL SEIZED IN THE C OURSE OF SEARCH; (II) DEPOSITION MADE BY THE ASSESSEE IN THE COURSE OF SEARCH U/S 132(4) OF THE ACT; AND, (III) FINDINGS OF THE ASSES SING OFFICER IN THE ASSESSMENT ORDER PASSED U/S 153A(A) R.W.S. 143 (3) OF THE ACT DATED 27.10.2010 (ESPECIALLY PARAS 8.2, 8.4 AND 8.13) READ WITH ORDER U/S 154 DATED 18.04.2011 (SUPRA), IT WOULD BE APP ROPRIATE 8 ITA NO.2057/PN/2013 M/S. GAJRAJ CONSTRUCTIONS TO DEDUCE THAT THE SOURCE OF THE IMPUGNED ADDITIONAL I NCOME IS THE HOUSING PROJECT, SAI NISARG PARK - MAYURESHWAR, WHICH HAS BEEN EXECUTED BY THE ASSESSEE IN HIS PROPRIETARY CONCERN , M/S MANGALMURTI DEVELOPERS. IN OTHER WORDS, FACTUALLY SPEA KING, THE INCOME REPRESENTED BY THE IMPUGNED SUM OF RS.60,00,000/ - HAS BEEN EARNED BY THE ASSESSEE IN THE COURSE OF DEVELOP MENT AND EXECUTION OF HOUSING PROJECT, SAI NISARG PARK - MAYUR ESHWAR, THOUGH SUCH INCOME WAS HITHERTO NOT REFLECTED IN THE REGULAR BOOKS OF ACCOUNT. FURTHER, THERE IS NO DISPUTE TO THE FAC T-SITUATION THAT THE PROFITS OF THE SAI NISARG PARK MAYURESHWAR PR OJECT UNDERTAKEN BY THE ASSESSEE ARE ENTITLED TO THE BENEFI TS OF SECTION 80IB(10) OF THE ACT. 35. IN THE ABOVE BACKGROUND, THE MOOT QUESTION IS WHE THER SUCH ADDITIONAL INCOME DECLARED IN THE COURSE OF SEARCH IS ELI GIBLE FOR THE BENEFITS OF SECTION 80IB(10) OF THE ACT, ESPECIALLY WH EN THE RELEVANT PROJECT IS OTHERWISE ELIGIBLE FOR THE BENEFITS OF SEC TION 80IB(10) OF THE ACT. 36. IN THIS CONTEXT, IT WAS A COMMON POINT BETWEEN TH E PARTIES THAT AN IDENTICAL CONTROVERSY HAS BEEN CONSIDERED BY THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF M/S MALPANI EST ATES VS. ACIT VIDE ITA NOS.2296 TO 2298/PN/2012 VIDE ORDER DATED 3 0.01.2014. THE RELEVANT DISCUSSION IN THE ORDER OF THE TRIBUNAL DATED 30.01.2014 (SUPRA) IS REPRODUCED HEREINAFTER TO FACILIT ATE APPRECIATION OF REASONING THAT PREVAILED WITH THE TRI BUNAL TO ALLOW THE CLAIM OF ASSESSEE THEREIN :- 10. IN THE PRESENT CASE, IT IS NOT IN DISPUTE THAT THE ASSESSEE HAS DERIVED INCOME FROM UNDERTAKING A HOUS ING PROJECT, THE CREST AT PIMPLE SAUDAGAR, PUNE, WHICH IS ELIGIBLE FOR SECTION 80IB(10) BENEFITS. IN THE RETURN OF INCOME ORIGINALLY FILED U/S 139(1) OF THE ACT, ASSESSEE HAD CL AIMED DEDUCTION U/S 80IB(10) OF THE ACT IN RELATION TO TH E PROFITS DERIVED FROM THE SAID HOUSING PROJECT AND THE SAME S TANDS ALLOWED EVEN IN THE IMPUGNED ASSESSMENT WHICH HAS BEEN MADE U/S 153A(1)(B) OF THE ACT AS A CONSEQUENCE OF A SEARCH ACTION U/S 132(1) OF THE ACT. 11. IN THE COURSE OF SEARCH, IN A STATEMENT DEPOSED U/S 132(4) OF THE ACT, ASSESSEE DECLARED CERTAIN ADDITION AL INCOME PERTAINING TO THE HOUSING PROJECT IN QUESTIO N. THE ADDITIONAL INCOME DECLARED WAS ON ACCOUNT OF ON-MONEY RECEIVED FROM THE CUSTOMERS TO WHOM FLATS WERE SOLD I N THE SAID PROJECT. AT THE TIME OF HEARING, LEARNED COUNSEL REFERRED TO THE COPY OF STATEMENT RECORDED U/S 132(4) OF THE ACT OF SHRI RAJESH MALPANI, A PARTNER OF THE ASSESSEE FIRM AND ALSO COPIES OF SOME OF THE SEIZED PAPERS, WHICH INDICATED RECEIPT OF ON-MONEY, AND THE SAME HAVE PLACED IN THE PAPER BOOK AT PAGES 35 TO 52. A PERUSAL OF THE SEIZED MATERIAL SHOWS THAT A COMPLETE DETAIL OF THAT ON-MONEY RECEIVED IS ENUMER ATED, VIZ. NAME OF THE CUSTOMERS, AMOUNT AND THE RESPECTIVE FLAT SOLD IN THE PROJECT. EVEN IN THE DEPOSITION MADE U/S 132(4) OF THE ACT, THE PARTNER OF THE ASSESSEE FIRM MADE A YEARWISE DETAIL OF ADDITIONAL INCOME DECLARED ON ACCOUNT OF ON-M ONEY RECEIVED ON SALE OF FLATS IN THE PROJECT. ACCORDINGLY , THE IMPUGNED SUM HAS BEEN DECLARED AS UNACCOUNTED INCOME 9 ITA NO.2057/PN/2013 M/S. GAJRAJ CONSTRUCTIONS FROM THE HOUSING PROJECT IN QUESTION. IN THE RETURN OF INCOME FILED IN RESPONSE OF NOTICE ISSUED U/S 153A(1)(A) OF THE ACT, ASSESSEE HAS DECLARED SUCH ADDITIONAL INCOME AS INCO ME FROM HOUSING PROJECT, THE CREST AT PIMPLE SAUDAGAR, PUNE. THE DECLARATION MADE IN THE RETURN OF INCOME HAS NOT BEEN DISPUTED BY THE ASSESSING OFFICER. THE ONLY DISPUTE RAISED BY THE ASSESSING OFFICER IS WITH REGARD TO NATURE OF SUCH INCOME, WHICH ACCORDING TO THE ASSESSING OFFICER DO ES NOT FALL UNDER OF THE ANY HEADS OF INCOME AS DESCRIBED U/ S 14 OF THE I.T. ACT. IN COMING TO SUCH CONCLUSION, HE HAS DISA GREED WITH THE STAND OF THE ASSESSEE THAT SUCH ADDITIONAL I NCOME WAS A BUSINESS INCOME OF THE ASSESSEE RELATING TO T HE HOUSING PROJECT, THE CREST AT PIMPLE SAUDAGAR, PUNE. HOWEVER, AS PER THE CIT(A), THE INCOME IN QUESTION IS ASSESSABLE UNDER THE HEAD INCOME FROM OTHER SOURCES . OSTENSIBLY, THE CIT(A) HAS NOT AGREED WITH THE INFERE NCE OF THE ASSESSING OFFICER THAT THE IMPUGNED INCOME DOES N OT FALL UNDER ANY HEADS OF INCOME U/S 14 OF THE ACT BECAUSE ACCORDING TO HER SUCH INCOME IS LIABLE TO BE ASSESSED UNDER THE HEAD INCOME FROM OTHER SOURCES. THUS, AS OF NOW , BEFORE US THE INFERENCE OF THE ASSESSING OFFICER DO ES NOT SURVIVE ANY LONGER SINCE THE ORDER OF THE ASSESSING OFFICER HAS MERGED IN THE ORDER OF THE CIT(A) AND IN ANY CAS E THE REVENUE IS NOT IN APPEAL ON THIS ASPECT. BE THAT AS IT MAY, FACTUALLY SPEAKING, IT CANNOT BE DENIED THAT THE ADDIT IONAL INCOME IN QUESTION RELATES TO THE HOUSING PROJECT, THE CREST AT PIMPLE SAUDAGAR, PUNE UNDERTAKEN BY THE ASSESSEE. T HE MATERIAL SEIZED IN THE COURSE OF SEARCH; THE DEPOSITIO N MADE BY THE ASSESSEES PARTNER DURING SEARCH U/S 132(4) OF THE ACT; AND, ALSO THE RETURN OF INCOME FILED IN RESPONSE T O NOTICE ISSUED U/S 153A(1)(A) OF THE ACT AFTER THE SEARCH, C LEARLY SHOW THAT THE SOURCE OF IMPUGNED ADDITIONAL INCOME IS THE HOUSING PROJECT, THE CREST AT PIMPLE SAUDAGAR, PUNE. T HE AFORESAID MATERIAL ON RECORD DEPICTS THAT THE IMPUGNED INCOME IS NOTHING BUT UNACCOUNTED MONEY RECEIVED BY THE ASSESSEE FROM CUSTOMERS ON ACCOUNT OF SALE OF FLATS O F ITS HOUSING PROJECT, THE CREST AT PIMPLE SAUDAGAR, PUNE. CLEARLY, THE SOURCE OF THE ADDITIONAL INCOME IS THE SALE OF FLATS IN THE HOUSING PROJECT, THE CREST. THEREFORE, ON CE THE SOURCE OF INCOME IS ESTABLISHED THE ASSESSABILITY TH EREOF HAS TO FOLLOW. THE NATURE OF INCOME, THUS ON FACTS, HAS TO BE TREATED AS BUSINESS INCOME ALBEIT, THE SAME WAS NOT ACCOUNTED FOR IN THE ACCOUNT BOOKS. IN THIS MANNER, WE ARE UNABLE TO ACCEPT THE STAND OF THE ASSESSING OFFICER O R OF THE CIT(A) THAT THE SAID INCOME IS NOT LIABLE TO BE TAXED A S BUSINESS INCOME. 12. NOW, COMING TO THE POINT AS TO WHETHER SUCH BUS INESS INCOME QUALIFIES TO BE ELIGIBLE FOR DEDUCTION U/S 80 IB(10) OF THE ACT IN THE COURSE OF AN ASSESSMENT MADE U/S 153 A(1)(B) OF THE ACT. ON THIS ASPECT, THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE ASSESSMENT IN CASE S OF SEARCH ACTION OR REQUISITION ARE MADE U/S 153A OR 15 3C OF THE ACT IN ORDER TO ASSESS UNDECLARED INCOMES AND SU CH PROVISIONS ARE FOR THE BENEFIT OF THE REVENUE AND T HEREFORE A CLAIM U/S 80IB(10) OF THE ACT CANNOT BE CONSIDERED IN SUCH PROCEEDINGS, ESPECIALLY WHEN SUCH A CLAIM WAS NOT MADE I N 10 ITA NO.2057/PN/2013 M/S. GAJRAJ CONSTRUCTIONS THE RETURN OF INCOME ORIGINALLY FILED UNDER SECTION 1 39 OF THE ACT. IN THIS REGARD, THE LEARNED DEPARTMENTAL REPRESEN TATIVE HAS REFERRED TO THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. SUN ENGINEERING WORKS PVT. LTD., 19 8 ITR 297 (SC) TO POINT OUT THAT EVEN IN THE CASES OF RE-AS SESSMENT U/S 147/148 OF THE ACT FRESH CLAIMS CANNOT BE RAISED BY THE ASSESSEE. SECONDLY, IT IS POINTED OUT BY THE LEARNED DEPARTMENTAL REPRESENTATIVE THAT EVEN IF THE CLAIM WAS T O BE CONSIDERED THEN IT WAS NOT ALLOWABLE BECAUSE THE REQUI SITE CONDITION THAT THE RETURN OF INCOME HAS TO BE ACCOMPA NIED BY THE PRESCRIBED AUDIT REPORT HAS NOT BEEN COMPLIED WIT H BY THE ASSESSEE. ON THE BASIS OF AFORESAID REASONS, THE CLAIM OF THE ASSESSEE HAS BEEN OPPOSED. 13. SECTIONS 153A TO 153C OF THE ACT CONTAIN PROVISI ONS RELATING TO ASSESSMENTS TO BE MADE IN CASES WHERE S EARCH IS INITIATED U/S 132 OR A REQUISITION IS MADE U/S 132A OF THE ACT AFTER 31 ST MAY, 2003. CLAUSE (B) OF SUB-SECTION (1) OF SECTION 153A POSTULATES ASSESSMENT OR RE-ASSESSMENT OF TOTAL INCOME OF SIX ASSESSMENT YEARS PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WH ICH SUCH SEARCH IS CONDUCED OR REQUISITION IS MADE. SHORN OF OTHER DETAILS, IT WOULD SUFFICE FOR US TO NOTICE CLAUSE (I) O F THE EXPLANATION BELOW SECTION 153A(2) OF THE ACT, WHICH RE ADS AS UNDER :- EXPLANATION. FOR THE REMOVAL OF DOUBTS, IT IS HEREB Y DECLARED THAT, - (I) SAVE AS OTHERWISE PROVIDED IN THIS SECTION, SECTION 153B AND SECTION 153C, ALL OTHER PROVISIONS OF THIS ACT SHALL APPLY TO THE ASSESSMENT MADE UNDER THIS SECTION. 14. IN TERMS OF THE ABOVE REFERRED CLAUSE (I) OF THE EXPLANATION, IT IS EVIDENT THAT ALL THE PROVISIONS OF T HE ACT SHALL APPLY TO AN ASSESSMENT MADE U/S 153A OF THE ACT SAVE AS OTHERWISE PROVIDED IN THE SAID SECTION, OR I N SECTION 153B OR SECTION 153C OF THE ACT. IN THE BACKGROUND OF THE EXPRESSION ALL OTHER PROVISIONS OF THIS ACT SHALL APPL Y CONTAINED IN EXPLANATION (I) BELOW SECTION 153A OF T HE ACT, AND IN THE CONTEXT OF THE CONTROVERSY BEFORE US, THE MOOT POINT TO BE EXAMINED IS AS TO WHETHER OR NOT DEDUCT IONS ENUMERATED IN CHAPTER VIA OF THE ACT ARE TO BE CONS IDERED IN MAKING AN ASSESSMENT MADE U/S 153A(1)(B) OF THE ACT. SECTION 153A(1)(B) OF THE ACT REQUIRES THE ASSESSING O FFICER TO ASSESS OR REASSESS THE TOTAL INCOME OF THE ASSESSM ENT YEARS SPECIFIED THEREIN. OSTENSIBLY, SECTION 80A(1) O F THE ACT PRESCRIBES THAT IN COMPUTING THE TOTAL INCOME OF A N ASSESSEE, THERE SHALL BE ALLOWED FROM HIS TOTAL INCOME THE DEDUCTIONS SPECIFIED IN CHAPTER VIA OF THE ACT. THE MOOT POINT IS AS TO WHETHER THE AFORESTATED POSITION PREV AILS IN AN ASSESSMENT MADE U/S 153A(1)(B) OR NOT? IN OUR CONSID ERED OPINION, HAVING REGARD TO THE EXPRESSION ALL OTHER PR OVISIONS OF THIS ACT SHALL APPLY TO THE ASSESSMENT MADE UNDER T HIS SECTION IN EXPLANATION (I) OF SECTION 153A OF THE ACT, IT CLEARLY IMPLIES THAT IN ASSESSING OR REASSESSING THE TOTAL INCOME FOR THE ASSESSMENT YEARS SPECIFIED IN SECTIO N 11 ITA NO.2057/PN/2013 M/S. GAJRAJ CONSTRUCTIONS 153A(1)(B) OF THE ACT, THE IMPORT OF SECTION 80A(1) OF T HE ACT COMES INTO PLAY, AND THERE SHALL BE ALLOWED THE DEDUCTIO NS SPECIFIED IN CHAPTER VIA OF THE ACT, OF COURSE SUBJE CT TO FULFILLMENT OF THE RESPECTIVE CONDITIONS. THEREFORE, WE ARE UNABLE TO SUBSCRIBE TO THE STAND OF THE CIT(A) TO THE EFFECT THAT THE BENEFITS OF CHAPTER VIA OF THE ACT, WHICH I NTER-ALIA INCLUDE SECTION 80IB(10) OF THE ACT, ARE NOT APPLICAB LE TO AN ASSESSMENT MADE UNDER SECTIONS 153A TO 153C OF THE ACT. IN OUR CONSIDERED OPINION, THE PHRASEOLOGY OF SECTION 153A R.W. EXPLANATION (I) AS NOTED ABOVE, DOES NOT SUPPOR T THE PREMISE ARRIVED AT BY THE CIT(A) AND ACCORDINGLY, THE SAME IS REJECTED. THEREFORE, ASSESSEES CLAIM FOR DEDUCTION U/S 80IB(10) OF THE ACT EVEN WITH REGARD TO THE ENHANCED INCOME WAS WELL WITHIN THE SCOPE AND AMBIT OF AN ASSESSMENT U /S 153A(1)(B) OF THE ACT AND THE ASSESSING OFFICER WAS OBLIGATED TO CONSIDER THE SAME AS PER LAW. 15. THE OTHER ARGUMENT OF THE LD. CIT-DR TO THE EFFEC T THAT THE RETURN OF INCOME WAS NOT ACCOMPANIED BY THE PRE SCRIBED AUDIT REPORT ON THE ENHANCED CLAIM OF DEDUCTION IS TO O HYPER- TECHNICAL, AND SUPERFICIAL. PERTINENTLY, THE ASSESSING O FFICER HAS NOT ALTOGETHER DENIED THE CLAIM OF DEDUCTION AND IN ANY CASE, THE CLAIM WAS INITIALLY MADE IN THE RETURN ORIGINA LLY FILED, WHICH WAS DULY ACCOMPANIED BY THE PRESCRIBED A UDIT REPORT. 16. THE ARGUMENT SET-UP BY THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE BASIS OF THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF SUN ENGINEERING WORKS PVT. LTD. (SUPRA), IN OUR VIEW, IS ALSO UNTENABLE HAVING REG ARD TO THE FACTS OF THE PRESENT CASE. NO DOUBT THE HONBLE S UPREME COURT HAS OBSERVED THAT REOPENING OF AN ASSESSMENT U/S 147/148 IS FOR THE BENEFIT OF THE REVENUE. IN THE C ASE BEFORE THE HONBLE SUPREME COURT, ASSESSEE WANTED TO SET-OFF LO SS AGAINST THE ESCAPED INCOME WHICH WAS TAXED IN THE R E- ASSESSMENT PROCEEDINGS AND THE CLAIM OF SUCH SET-OFF W AS NOT MADE IN THE RETURN OF INCOME ORIGINALLY FILED. AC CORDING TO THE HONBLE SUPREME COURT, THE CLAIM WAS NOT ENTERTAINABLE BECAUSE THE SAID CLAIM NOT CONNECTED WIT H THE ASSESSMENT OF ESCAPED INCOME. IN-FACT, THE JUDGMEN T OF THE HONBLE SUPREME COURT IN THE CASE OF SUN ENGINEERING WORKS PVT. LTD. (SUPRA) IS NOT AN AUTHORITY TO SAY THA T ASSESSEE CANNOT RAISE A CLAIM PERTAINING TO AN ISSUE WHICH IS CONNECTED TO THE ASSESSMENT OF ESCAPED INCOME. I N-FACT, IF A CLAIM WHICH IS CONNECTED TO THE ESCAPED INCOME IS SET-UP BEFORE THE ASSESSING OFFICER IN THE COURSE OF RE-ASS ESSMENT PROCEEDINGS, THE SAME IS LIABLE TO BE CONSIDERED AND THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF S UN ENGINEERING WORKS PVT. LTD. (SUPRA) ONLY PRECLUDES SUCH NEW CLAIMS BY THE ASSESSEE WHICH ARE UNCONNECTED WITH THE ASSESSMENT OF ESCAPED INCOME. IN THE PRESENT CASE, W E ARE DEALING WITH AN ASSESSMENT U/S 153A OF THE ACT AND T HE SCOPE OF SUCH AN ASSESSMENT HAS ALREADY BEEN EXAMINE D BY US IN THE CONTEXT OF THE RELEVANT SPECIFIC PROVISION S, WHICH DO NOT LEAVE ANY SCOPE FOR AMBIGUITY. THE JUDGMENT OF TH E HONBLE SUPREME COURT IN THE CASE OF SUN ENGINEERING WORKS PVT. LTD. (SUPRA) HAS BEEN RENDERED ON A DIFFERE NT 12 ITA NO.2057/PN/2013 M/S. GAJRAJ CONSTRUCTIONS FOOTING AND IS STRICTLY NOT APPLICABLE TO THE PRESE NT PROCEEDINGS. SO, HOWEVER, EVEN IF ONE WERE TO IMPORT T HE REASONING RAISED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE BASED ON THE JUDGMENT OF THE HONBLE SUPREME COURT, TO THE PRESENT CASE, YET WE DO NOT FIN D THAT IT WOULD DEBAR THE ASSESSEE FROM CLAIMING DEDUCTION U/S 80IB(10) OF THE ACT ON THE IMPUGNED ADDITIONAL INCOME DECLARED IN THE RETURN FILED IN RESPONSE TO NOTICE U /S 153A(1)(A) OF THE ACT. IN THE PRESENT CASE, THE CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT WAS MADE IN THE R ETURN OF INCOME ORIGINALLY FILED AND IN THE RETURN FILED IN PUR SUANCE TO THE NOTICE U/S 153A(1)(A) OF THE ACT, THE CLAIM U/S 80IB(10) OF THE ACT IS ONLY ENHANCED AND THEREFORE, IT IS NOT A FRESH CLAIM. THEREFORE, IN OUR VIEW, THE JUDGMENT OF THE H ONBLE SUPREME COURT IN THE CASE OF SUN ENGINEERING WORKS PVT. LTD. (SUPRA) DOES NOT HELP THE REVENUE IN THE PRESENT CASE . 17. IN-FACT, THE HONBLE BOMBAY HIGH COURT IN THE CASE OF SHETH DEVELOPERS (P) LTD. (SUPRA) WAS CONSIDERING THE C LAIM OF DEDUCTION U/S 80IB(10) OF THE ACT IN RELATION TO THE UNDISCLOSED INCOME DECLARED CONSEQUENT TO THE SEARCH ACTION. IN THE CASE BEFORE THE HONBLE HIGH COURT, IT W AS FACTUALLY EMERGING THAT UNDISCLOSED INCOME WAS EARNED BY THE ASSESSEE IN THE COURSE OF CARRYING ON HIS BUSIN ESS ACTIVITY OF A BUILDER AND THE SAME WAS ACCEPTED BY TH E DEPARTMENT, BUT THE CLAIM OF THE DEDUCTION U/S 80IB(10 ) WAS DENIED IN RELATION TO SUCH INCOME. HOWEVER, THE CLAIM WAS UPHELD BY THE HONBLE BOMBAY HIGH COURT. IN THE PRESEN T CASE, FACTUALLY, THERE IS NO MATERIAL TO NEGATE THE ASSERT ION OF THE ASSESSEE, WHICH ARE BORNE OUT OF THE MATERIAL ON R ECORD, THAT THE ADDITIONAL INCOME IN QUESTION HAS BEEN RECEIV ED IN THE COURSE OF CARRYING ON ITS BUSINESS ACTIVITY OF D EVELOPING THE HOUSING PROJECT, THE CREST AT PIMPLE SAUDAGAR, PUNE, WHICH IS ELIGIBLE FOR SECTION 80IB(10) BENEFITS. THER EFORE, IN TERMS OF THE PARITY OF REASONING LAID DOWN BY THE HO NBLE BOMBAY HIGH COURT IN THE CASE OF SHETH DEVELOPERS (P) LTD. (SUPRA), THE CLAIM OF THE ASSESSEE IS JUSTIFIED. 18. IN-FACT, ONCE IT IS FACTUALLY EXPLICIT THAT THE AD DITIONAL INCOME IN QUESTION IS DERIVED FROM THE HOUSING PROJE CT, THE CREST AT PIMPLE SAUDAGAR, PUNE, WHICH IS ELIGIBLE FOR SE CTION 80IB(10) BENEFITS, SUCH AN INCOME MERELY GOES TO ENHAN CE THE BUSINESS INCOME DERIVED FROM THE ELIGIBLE HOUSIN G PROJECT AND SHALL BE ENTITLED FOR SECTION 80IB(10) BENEF ITS, EVEN AS PER THE RATIO OF THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF GEM PLUS JEWELLERY INDIA LTD . (SUPRA). 19. IN THE RESULT, ON THE BASIS OF THE AFORESAID LEGA L POSITION AND THE MATERIAL AND EVIDENCE ON RECORD, ASS ESSEE IS ELIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE ACT IN R ELATION TO IMPUGNED ADDITIONAL INCOME OFFERED IN A STATEMENT U/S 132(4) OF THE ACT IN THE COURSE OF SEARCH AND SUBSEQ UENTLY DECLARED IN THE RETURN FILED IN RESPONSE TO NOTICE U /S 153A(1)(A) OF THE ACT. IN THE RESULT, APPEAL OF THE AS SESSEE FOR ASSESSMENT YEAR 2008-09 IS ALLOWED. 13 ITA NO.2057/PN/2013 M/S. GAJRAJ CONSTRUCTIONS 37. IN VIEW OF THE LEGAL POSITION EXPLAINED IN THE AB OVE PRECEDENT AND THE MATERIAL AND EVIDENCE ON RECORD, ASSESSEE IS E LIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE ACT EVEN IN RELATION TO IMPUGNED ADDITIONAL INCOME OFFERED IN A STATEMENT DEPOSED U/S 132(4) OF THE ACT DURING THE COURSE OF SEARCH AND SUBSEQUENTLY DE CLARED IN THE RETURN OF INCOME FILED IN RESPONSE TO NOTICE U/S 153 A(1)(A) OF THE ACT. THUS, ASSESSEES CLAIM FOR DEDUCTION U/S 80IB(10) OF THE ACT IN RELATION TO THE IMPUGNED ADDITIONAL INCOME OF RS.60,0 0,000/- IS LIABLE TO BE UPHELD. 13. THE ISSUE IN THE PRESENT APPEAL IS IDENTICAL TO THE ISSU E BEFORE PUNE BENCH OF THE TRIBUNAL IN SHRI NARESH T. WADHWANI VS. DCIT, ITA NOS.18, 19 & 20/PN/2013 (SUPRA) AND FOLLOWING THE SAME PAR ITY OF REASONING, WE HOLD THAT THE ASSESSEE IS ENTITLED TO THE C LAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT ON THE ADDITIO NAL RECEIPTS OFFERED BY THE ASSESSEE AGAINST THE PROJECT UNDERTAKEN BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION. THUS, THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE DISMISSED. 14. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON 11 TH DAY OF FEBRUARY 2015. SD/- SD/- (G.S. PANNU) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED: 11 TH FEBRUARY, 2015 GCVSR COPY OF THE ORDER IS FORWARDED TO: - 1. THE DEPARTMENT; 2. THE ASSESSEE; 3. THE CIT(A)-II, PUNE; 4. THE CIT-II, PUNE; 5. THE DR B BENCH, I.T.A.T., PUNE; 6. GUARD FILE. BY ORDER //TRUE COPY// ASSISTANT REGISTRAR I.T.A.T., PUNE