Appeal Details
Counselvise Citation
2221714 RSA 2013
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 year(s) 4 month(s) 24 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
29-05-2015
Appeal Filed By
Department
Bench Allotted
A
Next Hearing Date
30-04-2015
Assessment Year
2009-2010
Appeal Filed On
04-01-2013
Judgement Text
, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : CHENNAI . . . , . ! , ' # $ [ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ] ./ I.T.A.NOS.2250/MDS/2012, 2094/MDS/2013 & 2100/MDS/2014 / ASSESSMENT YEARS : 2009-10, 2009-10 & 2010-11 SREEVATSA REAL ESTATES PVT. LTD 8/2 METTUPALAYAM ROAD COIMBATORE 641 043 VS. THE INCOME TAX OFFICER COMPANY WARD I COIMBATORE [PAN AADCS 0177 J] ( %& / APPELLANT) ( '(%& /RESPONDENT) ./ I.T.A.NO.22/MDS/2013 & 2236/MDS/2014 / ASSESSMENT YEARS : 2009-10 & 2010-11 THE INCOME TAX OFFICER COMPANY WARD I /THE INCOME TAX OFFICER (OSD)-III RANGE - I COIMBATORE VS. SREEVATSA REAL ESTATES PVT. LTD 8/2 METTUPALAYAM ROAD COIMBATORE 641 043 ( %& / APPELLANT) ( '(%& /RESPONDENT) / APPELLANT BY : SHRI T. BANUSEKAR, CA /RESPONDENT BY : SHRI P. RADHAKRISHNAN, JCIT / DATE OF HEARING : 30-04-2015 ! / DATE OF PRONOUNCEMENT : 29-05-2015 ITA NOS.2250/12 22 &2094/13 2100 & 2236/14 :- 2 -: / O R D E R PER N.R.S.GANESAN, JUDICIAL MEMBER BOTH ASSESSEE AND REVENUE FILED APPEALS FOR ASSE SSMENT YEARS 2009-10 AND 2010-11. THE ASSESSEE HAS ALSO FILED APPEAL AGAINST THE ORDER PASSED U/S 154 FOR THE ASSESSMEN T YEAR 2009-10. SINCE COMMON ISSUE ARISES FOR CONSIDERATION IN ALL THE APPEALS, WE HEARD THEM TOGETHER AND DISPOSE OF THE SAME BY THIS COMMON ORDER. 2. LET US FIRST TAKE REVENUES APPEAL I.T.A.NO.22/MDS/ 2013 FOR ASSESSMENT YEAR 2009-10. 3. SHRI P. RADHAKRISHNAN, LD. DEPARTMENTAL REPRESENTAT IVE SUBMITTED THAT THE ASSESSEE CLAIMED DEDUCTION U/S 80IB(10)(C) OF THE ACT. THE ASSESSING OFFICER REJECTED THE CLAIM OF T HE ASSESSEE ON THE GROUND THAT RESIDENTIAL UNIT CONSTRUCTED BY THE AS SESSEE EXCEEDED MORE THAN 1500 SQ FT BUILT-UP AREA. ACCORDING TO THE LD. DR, THE CONDITION PROVIDED IN SECTION 80IB MUST BE COMPLIED WITH INDIVIDUALLY AND CUMULATIVELY IN RESPECT OF THE RESIDENTIAL UNIT S CONSTRUCTED BY THE ASSESSEE. VIOLATION OF ANY ONE OF THE RESIDENTIAL UNIT WOULD DISENTITLE THE ASSESSEE FOR CLAIMING DEDUCTION U/S 80IB OF T HE ACT. THEREFORE, THE CIT(A) IS NOT CORRECT IN ALLOWING THE CLAIM OF THE ASSESSEE. THE LD. ITA NOS.2250/12 22 &2094/13 2100 & 2236/14 :- 3 -: DR FURTHER SUBMITTED THAT FOR ASSESSMENT YEAR 2010- 11 ALSO THE REVENUE FILED APPEAL IN RESPECT OF THE VERY SAME IS SUE. 4. ON THE CONTRARY, SHRI BANUSEKAR, LD. REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS CONSTRUCT ED RESIDENTIAL UNITS MOSTLY WITH 1500 SQ FT BUILT-UP AREA. HOWEVER, SOM E OF THE RESIDENTIAL UNITS EXCEEDED 1500 SQ FT. REFERRING TO THE JUDGME NT OF THE MADRAS HIGH COURT IN ASSESSEES OWN CASE FOR ASSESSMENT Y EARS 2003-04 AND 2004-05 IN TAX CASE APPEAL NOS.1184 AND 1185 OF 201 0, DATED 2.11.2012, 2012 (11) TMI 633, THE LD. REPRESENTATIV E SUBMITTED THAT THE HIGH COURT ALLOWED THE CLAIM OF THE ASSESSEE P ROPORTIONATELY IN RESPECT OF THE RESIDENTIAL UNIT WHICH IS BELOW 1500 SQ FT. THE LD. REPRESENTATIVE HAS ALSO PLACED RELIANCE ON THE JUD GMENT OF MADRAS HIGH COURT IN VISWAS PROMOTERS PVT. LTD VS ACIT [20 13] 255 CTR 149. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. ADM ITTEDLY, THE ASSESSEE CONSTRUCTED RESIDENTIAL UNITS MOSTLY HAVIN G BUILT-UP AREA OF 1500 SQ FT. SOME OF THE RESIDENTIAL UNITS IN FACT EXCEEDED MORE THAN 1500 SQ FT. THE ASSESSEE CLAIMED DEDUCTION U/S 8 0IB ON PRO-RATA BASIS IN RESPECT OF RESIDENTIAL UNITS HAVING LESS T HAN 1500 SQ FT BUILT-UP AREA. THE MADRAS HIGH COURT IN ASSESSEES OWN CAS E FOR ASSESSMENT ITA NOS.2250/12 22 &2094/13 2100 & 2236/14 :- 4 -: YEARS 2003-04 AND 2004-05 HAD AN OCCASION TO CONSID ER IDENTICAL ISSUE. THE HIGH COURT FOUND THAT THE ASSESSEE IS ENTITLED FOR PRO-RATA DEDUCTION IN RESPECT OF THE HOUSING UNITS HAVING LE SS THAN 1500 SQ FT. IN VIEW OF THE ORDER OF THE MADRAS HIGH COURT IN TH E ASSESSEES OWN CASE FOR ASSESSMENT YEARS 2003-04 AND 2004-05, THIS TRIBUNAL DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A). ACC ORDINGLY, THE SAME IS CONFIRMED. 6. NOW, COMING TO THE ASSESSEES APPEAL I.T.A.NO. 2250/MDS/2012 FOR ASSESSMENT YEAR 2009-10, THE FIRS T ISSUE ARISES FOR CONSIDERATION IS DISALLOWANCE OF ` 2,35,52,227/- ON THE GROUND THAT THE STOCK-IN-TRADE HAD NIL REALIZABLE VALUE AS ON 31.3. 2009. 2. SHRI BANUSEKAR, LD. REPRESENTATIVE FOR THE ASSESSE E SUBMITTED THAT THE ASSESSEE HAS PURCHASED A LAND F OR THE PROPOSED OCEAN VIEW APARTMENTS FROM ONE SHRI R. KRISHNAKUM AR BY MEANS OF REGISTERED SALE DEED DATED 14.12.2005. ACCORDING T O THE LD. REPRESENTATIVE, AFTER THE PURCHASE OF THE PROPERTY, ONE DR.V.P.R. VARADARAJAN MADE A COMPLAINT TO INSPECTOR OF POLICE , CENTRAL CRIME BRANCH, CHENNAI, CLAIMING THAT THE PROPERTY BELONGS TO HIM AND THE SALE DEED WAS EXECUTED IN FAVOUR OF THE ASSESSEE I LLEGALLY. AFTER COMPLETING THE INVESTIGATION, THE INSPECTOR OF POLI CE FILED A FINAL REPORT ITA NOS.2250/12 22 &2094/13 2100 & 2236/14 :- 5 -: BEFORE THE TRIAL MAGISTRATE ALLEGING THAT THE SALE DEED EXECUTED IN FAVOUR OF THE ASSESSEE WAS A FORGED ONE. THE SAID DR.V.P.R. VARADARAJAN HAS ALSO FILED A CIVIL SUIT BEFORE THE MADRAS HIGH COURT PRAYING FOR A DECLARATION THAT THE SALE DEED EXECUT ED IN FAVOUR OF THE ASSESSEE ON 14.12.2005 AS NULL AND VOID AND NOT BIN DING ON DR.V.P.R. VARADARAJAN. THE LD. REPRESENTATIVE FURTHER SUBMIT TED THAT THE SAID DR.V.P.R. VARADARAJAN PRAYED FOR INTERIM INJUNCTION BEFORE THE HIGH COURT IN O.A.NO.1105/2007. THE HIGH COURT BY AN OR DER DATED 26.9.2007 GRANTED INTERIM INJUNCTION. ON A QUERY F ROM THE BENCH WHETHER THE POSSESSION OF THE PROPERTY WAS WITH AS SESSEE OR ANYBODY ELSE, THE LD. REPRESENTATIVE SUBMITTED THAT THE PRO PERTY IS NOT IN POSSESSION OF THE ASSESSEE BUT IT IS NOT KNOWN WHO IS NOW IN POSSESSION OF THE PROPERTY. ACCORDING TO THE LD. R EPRESENTATIVE, THE ASSESSEE WAS VICTIM OF THE CHEATING AND IT HAS LOST THE ENTIRE SALE CONSIDERATION PAID FOR PURCHASING THE PROPERTY. AC CORDING TO THE LD. REPRESENTATIVE, THE ASSESSEE WAS MISLEAD AND MISDI RECTED TO INVEST THE FUNDS IN THE LAND. AS ON 31.3.2009 THE ASSESS EE WAS NOT VESTED WITH OWNERSHIP OR MARKETABLE TITLE IN RESPECT OF T HE PROPERTY. 3. REFERRING TO THE ACCOUNTING STANDARD-2 WHICH PRESCR IBES METHOD OF VALUATION OF INVENTORIES, THE LD. REPRESE NTATIVE SUBMITTED ITA NOS.2250/12 22 &2094/13 2100 & 2236/14 :- 6 -: THAT WHILE ESTIMATING THE COST OF STOCK-IN-TRADE, T HE LOWER OF THE COST OR NET REALIZABLE VALUE ON ITEM TO ITEM BASIS HAS T O BE TAKEN. ACCORDING TO THE LD. REPRESENTATIVE, IN VIEW OF THE PENDENCY OF THE PROCEEDINGS BEFORE THE COMPETENT CRIMINAL COURT AND PENDENCY OF THE CIVIL SUIT BEFORE THE MADRAS HIGH COURT, THE NET RE ALIZABLE VALUE OF THE PROPERTY IS NIL. THEREFORE, THE ASSESSING OFFICER IS NOT JUSTIFIED IN MAKING ADDITION OF ` 2,35,52,227/-. THE LD. REPRESENTATIVE FURTHER SUBMITTED THAT THE PRACTICE OF WRITING DOWN THE INV ENTORIES BELOW COST TO NET REALIZABLE VALUE IS CONSISTENT PRACTICE WITH THE VIEW THAT ASSET SHOULD NOT BE CARRIED IN EXCESS OF THE AMOUNT EXPECTED TO BE REALIZED FROM THEIR SALE OR USE. THEREFORE, THE AS SESSING OFFICER IS NOT JUSTIFIED IN MAKING THE ADDITION. ACCORDING TO THE LD. REPRESENTATIVE, THE NET REALIZABLE VALUE IS NIL AND THE ASSET HAS NO MARKETABLE TITLE. 4. THE LD. REPRESENTATIVE PLACED HIS RELIANCE ON THE J UDGMENT OF MADRAS HIGH COURT IN K. MOHAMMAD ADAM SAHIB VS C IT [1965] 56 ITR 360, AND SUBMITTED THAT THE ASSESSEE HAS NO MA RKETABLE TITLE OVER THE LAND ON THE LAST DAY OF FINANCIAL YEAR, THEREFO RE, ADDITION OF THE COST OF LAND TO THE RETURNED INCOME IS WHOLLY UNJUS TIFIED AND UNSUSTAINABLE IN LAW. THE LD. REPRESENTATIVE HAS A LSO PLACED RELIANCE ON THE JUDGMENTS OF THE APEX COURT IN BADRIDAS DAG A VS CIT [1958] ITA NOS.2250/12 22 &2094/13 2100 & 2236/14 :- 7 -: 34 ITR 10 AND CIT VS S.N.A.S.A. ANNAMALAI CHETTIAR [1972] 86 ITR 607. THE LD. REPRESENTATIVE HAS ALSO PLACED HIS RE LIANCE ON THE JUDGMENT OF BOMBAY HIGH COURT IN ZANDU PHARMACEUTIC ALS WORKS LTD VS CIT [2013] 350 ITR 366 AND JUDGMENT OF THE MADRA S HIGH COURT IN BUH BOAKE ALLEN (INDIA) LTD VS ACIT [2005] 273 ITR 152. THE LD. REPRESENTATIVE HAS ALSO PLACED HIS RELIANCE ON THE DECISION OF THIS TRIBUNAL IN ACIT VS S. ARPUTHARAJ IN I.T.A.NO. 1054 /MDS/2013 DATED 5.12.2013. 5. ON THE CONTRARY, SHRI P. RADHAKRISHNAN, LD. DR SUBM ITTED THAT THE ASSESSEE-COMPANY PURCHASED 49 CENTS OF LAN D AT THIRUVANMIYUR, CHENNAI, FROM ONE SHRI R. KRISHNAKUM AR THROUGH HIS POWER AGENTS SHRI C. KRISHNAMURTHY AND SHRI K.S. VI JAYANDRAN FOR A TOTAL CONSIDERATION OF ` 2 CRORES. IN ADDITION TO SALE CONSIDERATION, THE ASSESSEE HAS ALSO INCURRED AN EXPENDITURE OF ` 35,52,227/- TOWARDS STAMP DUTY AND REGISTRATION CHARGES. THE ENTIRE AM OUNT OF ` 2,35,52,227/- WAS SHOWN AS STOCK-IN-TRADE AS ON 31. 3.2009 IN THE PROJECT KNOWN AS OCEAN VIEW APARTMENTS. SUBSEQU ENTLY, THE ASSESSEE CLAIMS THAT ONE DR.V.P.R. VARADARAJAN FILE D A COMPLAINT TO THE POLICE CLAIMING THAT HE NEVER SOLD THE PROPERTY. AC CORDING TO THE LD. DR, THE FACT THAT THE ASSESSEE INVESTED MONEY IN THE LANDED PROPERTY IS ITA NOS.2250/12 22 &2094/13 2100 & 2236/14 :- 8 -: NOT IN DISPUTE. THE ASSESSEE BEING A PRUDENT PURC HASER HAS TAKEN ALL PRECAUTIONARY MEASURES BEFORE INVESTING THE MONEY I N THE LAND. FROM THE MATERIAL FILED BY THE ASSESSEE, ACCORDING TO T HE LD. DR, THE MATTER WAS PENDING BEFORE THE MAGISTRATE COURT AND THE MAD RAS HIGH COURT. 6. THE LD. DR FURTHER SUBMITTED THAT THOUGH THE ASSES SEE CLAIMED THE INVESTMENT IN STOCK-IN-TRADE AS LOSS, T HE QUESTION ARISES FOR CONSIDERATION IS WHEN SUCH LOSS CAN BE ALLOWED. TH E FINAL REPORT FILED BY THE POLICE AUTHORITIES BEFORE THE TRIAL MAGISTRA TE IS NOT FINAL AND THE FINDING OF THE MAGISTRATE COURT ALSO MAY NOT DETERM INE THE OWNERSHIP OF THE PROPERTY. THE LD. DR FURTHER SUBMITTED THAT THE ASSESSEE HAS NOT TAKEN ANY STEPS TO RECOVER THE SO CALLED LOSS INCURRED IN PURCHASING THE PROPERTY. ACCORDING TO THE LD. DR , ADMITTEDLY, THE ASSESSEE HAS NOT FILED ANY COMPLAINT TO THE POLICE AGAINST SHRI R. KRISHNAKUMAR, SHRI C. KRISHNAMURTHY AND SHRI K.S. V IJAYANDRAN, FROM WHOM THE PROPERTY WAS PURCHASED AND NO CIVIL SUIT W AS ALSO FILED FOR RECOVERY OF THE MONEY. ACCORDING TO THE LD. DR, TH E ENTIRE PROCEEDING IS PENDING BEFORE THE MADRAS HIGH COURT AND THE MAG ISTRATE COURT. THEREFORE, TILL THE MATTER IS DECIDED FINALLY, IT C ANNOT BE SAID THAT THE ASSESSEE HAS SUFFERED A LOSS. ACCORDING TO THE LD. DR EVEN ASSUMING FOR ARGUMENT SAKE IF THERE WAS ANY LOSS, IT CANNOT BE WRITTEN BACK ITA NOS.2250/12 22 &2094/13 2100 & 2236/14 :- 9 -: DURING THE YEAR UNDER CONSIDERATION. ACCORDING TO THE LD. DR, UNLESS IT IS FINALLY DECIDED BY THE COMPETENT CIVIL COURT THA T THE PROPERTY DOES NOT BELONG TO THE ASSESSEE, IT CANNOT BE ALLOWED A S A LOSS FOR THE YEAR UNDER CONSIDERATION. THE LD. DR FURTHER SUBMITTED THAT THE CHANCES OF SUCCESS IN THE CIVIL SUIT BY THE ASSESSEE CANNOT B E RULED OUT AT THIS STAGE. THE LD. DR FURTHER SUBMITTED THAT TREATING THE VALUE OF THE LAND AS NIL IS NOT JUSTIFIED. THE VERY FACT THAT THE A SSESSEE HAS PAID A SUM OF ` 2 CRORES FOR GETTING THE SALE DEED CAN BE RECOVERE D FROM THE ABOVESAID SHRI R. KRISHNAKUMAR. ACCORDING TO THE L D. DR, SO LONG AS THE ASSESSEE IS ABLE TO RECOVER THE MONEY FROM THE SAID SHRI R. KRISHNAKUMAR ALONGWITH DAMAGES/COMPENSATION, IT CAN NOT BE SAID THAT THE ASSESSEE HAS ONLY NIL REALIZABLE VALUE ON THE PROPERTY. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. ADM ITTEDLY, THE ASSESSEE PURCHASED A LAND MEASURING 49 CENTS IN T HIRUVANMIYUR VILLAGE, MYLAPORE TRIPLICANE TALUK BY A SALE DEED D ATED 14.12.2005 FOR A TOTAL CONSIDERATION OF ` 2 CRORES. THE SALE DEED WAS EXECUTED BY SHRI C. KRISHNAMURTHY AND SHRI K.S.VIJAYANDRAN AS P OWER AGENTS OF ONE SHRI R. KRISHNAKUMAR. THE ASSESSEE CLAIMS THA T DR.V.P.R. VARADARAJAN CLAIMING HIMSELF TO BE THE OWNER OF THE PROPERTY, MADE A COMPLAINT TO INSPECTOR OF POLICE, CENTRAL CRIME BRA NCH, CHENNAI. THE ITA NOS.2250/12 22 &2094/13 2100 & 2236/14 :- 10 -: INSPECTOR OF POLICE, AFTER COMPLETING THE INVESTIGA TION, FILED A FINAL REPORT BEFORE THE MAGISTRATE ALLEGING THAT THE SALE DEED EXECUTED BY SHRI C. KRISHNAMURTHY AND SHRI K.S. VIJAYANDRAN IS FALSE ONE. THE SAID DR.V.P.R. VARADARAJAN HAS ALSO FILED A CIVIL SUIT B EFORE THE MADRAS HIGH COURT PRAYING FOR DECLARATION OF THE SALE DEED EXEC UTED IN FAVOUR OF THE ASSESSEE ON 14.12.2005 AS NULL AND VOID. AN INTER IM ORDER OF INJUNCTION WAS PASSED BY THE HIGH COURT. THE ASSE SSEE NOW CLAIMS THAT THE INVESTMENT MADE BY THE ASSESSEE IN THE LA NDED PROPERTY AT THIRUVANMIYUR VILLAGE HAD NO REALIZABLE VALUE AS PE R THE ACCOUNTING STANDARD-2, THEREFORE, IT SHOULD NOT BE INCLUDED IN THE STOCK-IN-TRADE. THE FACT REMAINS THAT THE ASSESSEE HAD ADMITTEDLY PAID ` 2 CRORES FOR GETTING THE SALE DEED REGISTERED ON 14.12.2005. TH E MATTER IS STILL PENDING BEFORE THE MADRAS HIGH COURT. IF THE MADRA S HIGH COURT ULTIMATELY DECIDES THAT THE DOCUMENT EXECUTED IN FA VOUR OF THE ASSESSEE IS NULL AND VOID AND UNENFORCEABLE THEN TH E ASSESSEE HAS A RIGHT TO RECOVER THE MONEY FROM SHRI R. KRISHNAKUMA R TOGETHER WITH INTEREST AND DAMAGES. THEREFORE, AT ANY STRETCH OF IMAGINATION, IT CANNOT BE SAID THAT THE VALUE OF THE LANDED PROPERT Y PURCHASED BY THE ASSESSEE HAS NO REALIZABLE VALUE AT ALL. IT IS TR UE THAT BECAUSE OF THE PENDING LITIGATION BEFORE THE MADRAS HIGH COURT AND THE MAGISTRATE COURT, THE ASSESSEE MAY NOT BE ABLE TO CARRY OUT T HE DEVELOPMENT ITA NOS.2250/12 22 &2094/13 2100 & 2236/14 :- 11 -: WORK AS PROPOSED. THE FACT REMAINS THAT THE RIGHT TO RECOVER COMPENSATION AND THE SALE CONSIDERATION TOGETHER WI TH INTEREST IS REMAINED INTACT IN CASE THE HIGH COURT DECIDES AGAI NST THE ASSESSEE AND DECLARE THE SALE DEED EXECUTED ON 14.12.2005 A S NULL AND VOID. AS RIGHTLY SUBMITTED BY THE LD. DR, THE ASSESSEE H AS NOT TAKEN ANY STEPS SO FAR TO RECOVER THE MONEY FROM THE AFORESAI D SHRI R. KRISHNAKUMAR. THEREFORE, THE ASSESSEE IS UNDER TH E BONAFIDE IMPRESSION THAT IT WILL SUCCEED IN THE CIVIL SUIT B EFORE THE HIGH COURT. WHATEVER MAY BE THE REASON, A MERE PENDENCY OF CIVI L SUIT BEFORE THE HIGH COURT CANNOT BE A REASON TO SAY THAT THE LANDE D PROPERTY HAS NIL REALIZABLE VALUE. BECAUSE OF THE PENDENCY OF CIVIL SUIT, THERE MAY BE A DOUBT OVER THE TITLE OF THE PROPERTY, THEREFORE, TH E MARKET VALUE OF THE PROPERTY MAY BE CONSIDERABLY REDUCED. IT DOES NOT MEAN THAT THE LAND HAS NO VALUE AT ALL. THEREFORE, THIS TRIBUNAL IS O F THE CONSIDERED OPINION THAT DURING THE YEAR UNDER CONSIDERATION IT CANNOT BE SAID THAT THERE WAS A LOSS SUFFERED BY THE ASSESSEE. 8. NOW COMING TO THE JUDGMENTS RELIED UPON BY THE ASS ESSEE, THE MADRAS HIGH COURT IN K. MOHAMMAD ADAM SAHIB (SU PRA) FOUND THAT THE CLOSING STOCK CAN BE VALUED AT COST PRICE OR MARKET PRICE WHICHEVER IS LOWER. THE MADRAS HIGH COURT FOUND TH AT WHEN THE ITA NOS.2250/12 22 &2094/13 2100 & 2236/14 :- 12 -: GOODS ARE SALEABLE ONLY IN CERTAIN FOREIGN MARKET A ND THERE IS NO DEMAND FOR THE GOODS IN SUCH FOREIGN MARKET, THE A SSESSEE IS ENTITLED TO VALUE THE GOODS AT NIL. IN THE CASE BEFORE US, IT IS NOBODYS CASE THAT THE LAND IN QUESTION IS SALEABLE ONLY IN FOREI GN MARKET. THE ASSESSEE HAS EVERY RIGHT TO SELL THE PROPERTY SUBJE CT TO RESULT OF THE PENDING LITIGATIONS. IN THE CASE BEFORE THE MADRA S HIGH COURT, THE ASSESSEE WAS DEALING IN SKINS. THE HIGH COURT FOUN D THAT AFTER LAPSE OF TIME, THESE SKINS WERE ONLY DEAD STOCK AND WOULD NOT MOVE DUE TO FALLING OF DEMAND IN WESTERN COUNTRIES. THEREFORE, IT WAS OPEN TO THE ASSESSEE TO TREAT THEM AS NIL VALUE IN THE BOOKS OF ACCOUNT. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINI ON THAT THIS JUDGMENT OF THE MADRAS HIGH COURT IN K. MOHAMMAD ADAM SAHIB (SUPRA) MAY NOT BE OF ANY ASSISTANCE TO THE ASSESSEE. 9. WE HAVE ALSO GONE THROUGH THE JUDGMENT OF APEX COUR T IN BADRIDAS DAGA(SUPRA). IN THE CASE BEFORE THE APEX COURT, THE ASSESSEE WAS CARRYING ON MONEY LENDING BUSINESS AND DEALS IN SHARES AND BULLION. THE ASSESSEE ALSO ACT AS A COMMISSIO N AGENT. THE ASSESSEE HAS BUSINESS AT SEVERAL PLACES. DURING TH E RELEVANT PERIOD, THE AGENT WHO WAS CARRYING ON THE BUSINESS AT BOMBA Y, WITHDREW FROM THE FIRMS ACCOUNT A SUM OF ` 2,30,63,640/- AND USED THEM TO ITA NOS.2250/12 22 &2094/13 2100 & 2236/14 :- 13 -: REPAY HIS PERSONAL DEBTS INCURRED IN SPECULATION TR ANSACTION. THE ASSESSEE CLAIMED THE SAID SUM OF ` 2,30,63,640/- AS DEDUCTION BEFORE THE INCOME-TAX AUTHORITIES. THE TRIBUNAL FOUND THA T THOUGH THE LOSS WAS SUFFERED BY THE ASSESSEE, IT WAS NOT A TRADING LOSS, THEREFORE, IT CANNOT BE ALLOWED. ON A REFERENCE TO THE HIGH COUR T, THE HIGH COURT CONFIRMED THE ORDER OF THE TRIBUNAL. THE ASSESSEE CARRIED THE MATTER BEFORE THE APEX COURT. THE APEX COURT FOUND THAT T HE LOSS SUFFERED BY THE ASSESSEE AS A RESULT OF MISAPPROPRIATION BY TH E AGENT IS INCIDENTAL TO THE CARRYING ON THE BUSINESS THEREFORE, IT SHOUL D BE ALLOWED AS DEDUCTION WHILE COMPUTING TOTAL INCOME. IN THE CAS E BEFORE US, IT IS NOT MISAPPROPRIATION OF FUNDS BY ANY AGENT OR EMPLO YEE. THE ASSESSEE ADMITTEDLY PURCHASED THE PROPERTY AND ULTI MATELY LANDED IN CIVIL LITIGATION. THE MATTER IS PENDING BEFORE THE HIGH COURT. UNLESS AND UNTIL THE HIGH COURT DECLARES THE SALE DEED AS NULL AND VOID, THE ASSESSEE CONTINUE TO BE OWNER OF THE PROPERTY. IT IS FOR THE PLAINTIFF BEFORE THE HIGH COURT TO ESTABLISH THAT HE HAS TITL E OVER THE PROPERTY. SINCE THE CIVIL SUIT IS PENDING BEFORE THE HIGH COU RT, AT THIS STAGE, IT CANNOT BE SAID THAT THE ASSESSEE HAS SUFFERED A LO SS. THEREFORE, THIS JUDGMENT IS ALSO NOT APPLICABLE TO THE FACTS OF THI S CASE. ITA NOS.2250/12 22 &2094/13 2100 & 2236/14 :- 14 -: 10. NOW COMING TO THE JUDGMENT OF APEX COURT IN S.N.A.S .A. ANNAMALAI CHETTIAR(SUPRA), THE ASSESSEE BEFORE THE APEX COURT CARRIED ON MONEY LENDING BUSINESS IN INDIA AND ABROAD. IN THE COURSE OF MONEY LENDING BUSINESS, PROPERTIES WERE TAKEN OVER IN SETTLEMENT OF DEBTS. DURING THE WORLD WAR, THE ASSESSEE SUFFERE D DAMAGES TO THE PROPERTIES ON ACCOUNT OF JAPANESE BOMBING. THE LOS S SUFFERED BY THE ASSESSEE ON ACCOUNT OF BOMBING WAS CLAIMED AS DEDUC TION. THE TRIBUNAL REJECTED THE CLAIM OF THE ASSESSEE ON THE GROUND THAT THE LOSS SUFFERED BY THE ASSESSEE WAS NOT INCIDENTAL T O THE BUSINESS OF THE ASSESSEE. HOWEVER, THE APEX COURT FOUND THAT THE L OSS SUFFERED BY THE ASSESSEE WAS INCIDENTAL TO CARRYING ON THE BU SINESS IN MALAYA DURING THE WAR PERIOD, THEREFORE, IT HAS TO BE ALLO WED AS DEDUCTION. IN THE CASE BEFORE US, IT IS NOT A DAMAGE TO ANY PROPE RTY. THE CLAIM OF THE ASSESSEE IS THAT THERE WAS A DEFECT IN TITLE C ONFERRED TO IT BECAUSE OF THE PENDENCY OF THE CIVIL SUIT. THEREFORE, UNLE SS AND UNTIL CIVIL SUIT IS FINALLY DISPOSED OF BY THE HIGH COURT, IT CANNOT BE SAID THAT THE ASSESSEE HAS ANY TITLE OVER THE PROPERTY. THIS TRI BUNAL IS OF THE CONSIDERED OPINION THAT BY VIRTUE OF THE SALE DEED DATED 14.12.2005 THE ASSESSEE HAS AN INTEREST OVER THE PROPERTY AND THAT INTEREST HAS A VALUE IN THE MARKET. OF COURSE BECAUSE OF THE PEN DENCY OF THE CIVIL SUIT, THE PROPERTY MAY NOT FETCH NORMAL MARKET VALU E, BUT THAT DOES ITA NOS.2250/12 22 &2094/13 2100 & 2236/14 :- 15 -: NOT MEAN THAT IT HAS NO VALUE AT ALL. THIS TRIBUNA L IS OF THE CONSIDERED OPINION THAT THE RIGHT OF THE ASSESSEE OVER THE PR OPERTY HAS TO BE VALUED SUBJECT TO THE RESULT OF THE FINAL JUDGMENT AND DECREE THAT MAY BE PASSED IN THE PENDING CIVIL SUIT. IF THE ASSES SEE ULTIMATELY FAILS IN THE SUIT AND THE SALE DEED IS DECLARED AS NULL AND VOID, THEN AT THAT STAGE, IT MAY BE CLAIMED AS LOSS. HOWEVER, MERE PE NDENCY OF THE CIVIL SUIT CANNOT BE REASON TO CLAIM THE SALE CONSIDERAT ION AS LOSS ON THE ASSUMPTION THAT THE CIVIL SUIT WOULD BE DECIDED AGA INST THE ASSESSEE. THE FACT THAT THE ASSESSEE IS CONTESTING THE CIVIL SUIT BEFORE THE HIGH COURT SHOWS THAT THE ASSESSEE CONTINUES TO HAVE RI GHT OVER THE PROPERTY. THEREFORE, THIS TRIBUNAL IS OF THE CONS IDERED OPINION THAT THIS JUDGMENT ALSO IS NOT OF ANY ASSISTANCE TO THE ASSESSEE. 11. NOW COMING TO THE DECISION OF THIS TRIBUNAL IN S.AR PUTHARAJ (SUPRA), THE ASSESSEE BEFORE THIS TRIBUNAL WAS A C ONTRACTOR. THE ASSESSEE USED TO ENTER INTO AGREEMENTS FOR CONSTRUC TION AND DEVELOPMENT WORK. IN THE COURSE OF BUSINESS ACTIVI TY, THE ASSESSEE ENTERED INTO AN AGREEMENT WITH M/S MAYFLOWER INNO R EALITY PVT. LTD FOR AGGREGATION OF THE LAND TO THE EXTENT OF 52 ACR ES. THE ASSESSEE SUBSEQUENTLY FILED A REVISED RETURN EXCLUDING ` 3,11,67,002/- ON THE GROUND THAT THE AGREEMENT ENTERED INTO BETWEEN THE ASSESSEE AND ITA NOS.2250/12 22 &2094/13 2100 & 2236/14 :- 16 -: M/S MAYFLOWER WAS FRUSTRATED AND AGREEMENT WAS NOT MATERIALIZED. LATER ON THE AGREEMENT WAS ALSO CANCELLED. ON THOS E GROUNDS, THIS TRIBUNAL FOUND THAT THE LOSS SUFFERED BY THE ASSES SEE HAS TO BE ALLOWED TO THE EXTENT OF ` 68,40,000/-. IN THE CASE BEFORE US, IT IS NOBODYS CASE THAT THE SALE DEED ENTERED INTO BETWE EN THE ASSESSEE AND SHRI R. KRISHNAKUMAR THROUGH POWER AGENTS SHRI C. KRISHNAMURTHY AND SHRI K.S. VIJAYANDRAN WAS FRUSTRATED. OF COURS E, THE VALIDITY OF THE SALE DEED IS PENDING ADJUDICATION BEFORE THE MADRAS HIGH COURT. IN THE CASE BEFORE THE TRIBUNAL, THE AGREEMENT WAS ALS O CANCELLED AND IT WAS NOT EXECUTED. THEREFORE, THIS TRIBUNAL ALLOWED THE CLAIM OF THE ASSESSEE TO THE EXTENT OF ` 68,40,000/-. IN VIEW OF THESE FACTS, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THIS DEC ISION ALSO MAY NOT BE APPLICABLE TO THE FACTS OF THE CASE. 12. IN VIEW OF OUR ABOVE DISCUSSION, THIS TRIBUNAL IS O F THE CONSIDERED OPINION THAT MERE PENDENCY OF THE CIVIL SUIT CANNOT A REASON TO VALUE THE PROPERTY AT NIL. SO LONG AS TH E CIVIL SUIT IS PENDING BEFORE THE HIGH COURT, THE ASSESSEE HAS A RIGHT/IN TEREST OVER THE PROPERTY AND THAT RIGHT/INTEREST HAS A VALUE. OF C OURSE, IT MAY NOT BE EQUAL TO THE MARKET VALUE OF THE PROPERTY. IN THOS E CIRCUMSTANCES, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE STOCK-IN-TRADE HAS TO ITA NOS.2250/12 22 &2094/13 2100 & 2236/14 :- 17 -: BE VALUED AFTER CONSIDERING THE PENDENCY OF THE CIV IL SUIT AND THE CRIMINAL PROCEEDINGS BEFORE THE MAGISTRATE COURT. IN THE CASE BEFORE US THE ASSESSING OFFICER MADE ADDITION OF ENTIRE AM OUNT OF ` 2,35,52,227/-. IN VIEW OF THE PENDENCY OF THE CIVI L AND CRIMINAL PROSECUTION, THE PROPERTY MAY NOT FETCH THE NORMAL MARKET VALUE. AS OBSERVED EARLIER, WE CANNOT SAY THAT THERE IS NO VA LUE AT ALL. SUBJECT TO RESULT OF CIVIL SUIT PENDING BEFORE THE HIGH COU RT, THE ASSESSEE HAS A RIGHT OVER THE PROPERTY, AND THAT RIGHT HAS A VAL UE. THEREFORE, THAT RIGHT OVER THE PROPERTY HAS TO BE VALUED. AS PER TH E SETTLED PRINCIPLES OF LAW, THE CLOSING STOCK HAS TO BE VALUED EITHER O N THE MARKET VALUE OR ON THE COST PRICE WHICHEVER IS LESS. IN THIS CASE, THE ASSESSING OFFICER HAS CHOSEN TO ADOPT THE COST PRICE. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT IN VIEW OF PENDING LITIGATION BEFORE T HE HIGH COURT, THERE IS A DEFECT IN TITLE OF THE ASSESSEE OVER THE PROP ERTY, THEREFORE, THE MARKET PRICE HAS TO BE ESTIMATED IN THE LIGHT OF TH E PENDING CIVIL SUIT. ACCORDINGLY, THE ORDERS OF THE LOWER AUTHORITIES AR E SET ASIDE AND THE ISSUE IS REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE-EXAMINE THE MATTER AND A T THE OPTION OF THE ASSESSEE THE MARKET VALUE HAS TO BE ESTIMATED IN TH E LIGHT OF THE PENDING LITIGATION BEFORE THE HIGH COURT AND THEREA FTER DECIDE THE ITA NOS.2250/12 22 &2094/13 2100 & 2236/14 :- 18 -: MATTER IN ACCORDANCE WITH LAW AFTER GIVING REASONAB LE OPPORTUNITY OF HEARING TO THE ASSESSEE. 13. THE NEXT ISSUE ARISES FOR CONSIDERATION IS DEDUCTIO N U/S 80IB(10) IN RESPECT OF SREEVATSA RESIDENCY PROJEC T. 14. SHRI T. BANUSEKAR, LD. REPRESENTATIVE SUBMITTED THA T THE ASSESSEE CONSTRUCTED RESIDENTIAL UNITS LESS THAN 15 00 SQ FT BUILT-UP AREA. HOWEVER, SOME OF THE UNITS ARE MORE THAN 150 0 SQ FT. THEREFORE, THE ASSESSEE CLAIMED DEDUCTION U/S 80I B(10) ON PRO-RATA BASIS ONLY IN RESPECT OF THE RESIDENTIAL UNITS WHIC H ARE LESS THAN 1500 SQ FT BUILT-UP AREA. THE ASSESSING OFFICER DISALLO WED THE CLAIM ONLY ON THE GROUND THAT THE REVENUES APPEAL IS PENDING AGA INST THE ORDER OF THE TRIBUNAL BEFORE THE HIGH COURT. ACCORDING TO T HE LD. REPRESENTATIVE, MERE PENDENCY OF APPEAL BEFORE THE HIGH COURT CANNOT BE A REASON TO DISALLOW THE CLAIM OF THE AS SESSEE. THE LD. REPRESENTATIVE PLACED HIS RELIANCE ON THE JUDGMENT OF THE MADRAS HIGH COURT IN ASSESSEES OWN CASE [2012] (11) TMI 633 ( SUPRA). 15. WE HEARD SHRI P. RADHAKRISHNAN, LD. DR ALSO. 16. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. ADMI TTEDLY, THE ITA NOS.2250/12 22 &2094/13 2100 & 2236/14 :- 19 -: ASSESSEE HAS CONSTRUCTED RESIDENTIAL UNITS LESS THA N 1500 SQ FT BUILT-UP AREA AND SOME OF THE UNITS EXCEEDED 1500 SQ FT. ON IDENTICAL CIRCUMSTANCES, THIS TRIBUNAL IN ASSESSEES OWN CAS E FOR ASSESSMENT YEARS 2003-04 AND 2004-05 FOUND THAT THE ASSESSEE IS ENTITLED FOR DEDUCTION ON PRO-RATA BASIS IN RESPECT OF UNITS LES S THAN 1500 SQ FT. IN FACT, THE MADRAS HIGH COURT CONFIRMED THE SAID ORDE R OF THIS TRIBUNAL. IN VIEW OF THE ABOVE, WE ARE OF THE CONSIDERED OPIN ION THAT THE ASSESSEE IS ENTITLED FOR DEDUCTION ON PRO-RATA BASI S. HOWEVER, THE ASSESSING OFFICER SHALL VERIFY THE DETAILS AND ALLO W DEDUCTION U/S 80IB(10) ONLY IN RESPECT OF THE UNITS WHICH ARE LES S THAN 1500 SQ FT. WITH THE ABOVE OBSERVATIONS, THE ORDERS OF THE LOWE R AUTHORITIES ARE SET ASIDE AND THE ISSUE IS REMITTED BACK TO THE FIL E OF THE ASSESSING OFFICER FOR RE-CONSIDERATION AFRESH AFTER ALLOWING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 17. NOW COMING TO REVENUES APPEAL I.T.A.NO.2236/MDS/20 14 FOR ASSESSMENT YEAR 2010-11, THE ONLY ISSUE ARISES FOR CONSIDERATION IS WITH REGARD TO DEDUCTION U/S 80IB(10)(C) ON PRO-RA TA BASIS. WHILE CONSIDERING THE REVENUES APPEAL FOR ASSESSMENT YEA R 2009-10, THIS TRIBUNAL FOUND THAT THE ASSESSEE IS ELIGIBLE FOR D EDUCTION ON PRO-RATA BASIS IN RESPECT OF THE RESIDENTIAL UNITS HAVING BU ILT-UP AREA OF LESS ITA NOS.2250/12 22 &2094/13 2100 & 2236/14 :- 20 -: THAN 100 SQ FT. THEREFORE, FOR THE VERY SAME REASO NS, THIS TRIBUNAL DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LOWER AU THORITY. ACCORDINGLY, THE SAME IS CONFIRMED. 18. NOW, COMING TO ASSESSEES APPEAL I.T.A.NO. 2100/MD S/2014 FOR ASSESSMENT YEAR 2010-11, SHRI BANUSEKAR, LD. RE PRESENTATIVE SUBMITTED THAT THE ASSESSEE CLAIMED DEDUCTION U/ S 80IB TO THE EXTENT OF ` 2,08,79,745/-. HOWEVER, THE ASSESSING OFFICER RES TRICTED THE CLAIM TO ` 1,26,97,991/-. ACCORDING TO THE LD. REPRESENTATIV E, THE ASSESSING OFFICER DEDUCTED PROPORTIONATE EXPENDITUR E TOWARDS GENERAL, ADMINISTRATIVE AND OTHER OVERHEADS FROM THE PROFITS OF ELIGIBLE PROJECT. REFERRING TO THE JUDGMENT OF THE BOMBAY HIGH COURT IN ZANDU PHARMACEUTICALS WORKS LTD. (SUPRA), THE LD. REPRESE NTATIVE SUBMITTED THAT THE EXPENSES ATTRIBUTABLE TO ONE UNIT CANNOT B E DEDUCTED IN RESPECT OF THE OTHER UNIT WHILE COMPUTING PROFITS A ND GAINS OF THE UNDERTAKING. THE LD. REPRESENTATIVE ALSO PLACED H IS RELIANCE ON THE JUDGMENT OF THE MADRAS HIGH COURT IN BUSH BOAKE ALL EN (INDIA) LTD VS ACIT [2005] 273 ITR 152. ACCORDING TO THE LD. REPR ESENTATIVE, THE EXPENDITURE RELATING TO THE ELIGIBLE PROJECT CANNOT BE APPORTIONED IN RESPECT OF OTHER PROJECTS. ITA NOS.2250/12 22 &2094/13 2100 & 2236/14 :- 21 -: 19. ON THE CONTRARY, SHRI P. RADHAKRISHNAN, LD. DR SUBM ITTED THAT THE ASSESSEE HAS ADMITTED ` 2,08,79,745/- AS PROFIT DURING THE YEAR UNDER CONSIDERATION. THE ASSESSEE CLAIMED DE DUCTION U/S 80IB AGAINST THE ENTIRE PROFIT WITHOUT DEDUCTING GENERAL , ADMINISTRATIVE AND OTHER OVERHEADS EXPENSES. THE ASSESSEE HAS FILED A REVISED WORKING IN RESPECT OF THE ELIGIBLE PROJECT U/S 80IB OF THE ACT. ACCORDING TO THE LD. DR, WHEN THE ASSESSEE IS SHARING THE COMMON AD MINISTRATIVE EXPENSES AND OVERHEADS, THE EXPENDITURE RELATABLE T O THE ELIGIBLE PROJECT HAS TO APPORTIONED. OTHERWISE, THE REAL PR OFIT MAY NOT BE REFLECTED IN THE BOOKS OF ACCOUNT. 20. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE CIT(A) FOUND THAT THERE WAS NO REFERENCE IN THE ASSESSMENT ORDER WIT H REGARD TO PROPORTIONATE COMMON EXPENDITURE. EVEN THOUGH THER E IS NO REFERENCE IN THE COMPUTATION WHETHER THE ASSESSING OFFICER DISALLOWED THE ENTIRE CLAIM OF DEDUCTION TO THE EXTENT OF ` 2,08,79,745/-, THE ASSESSING OFFICER MADE A REFERENCE IN THE ORDER THA T THE ASSESSEE HAS FILED A REVISED WORKING SHOWING THE ELIGIBLE DEDUCT ION AT ` 1,26,97,991/-. WHEN THE ASSESSEE HAS FILED A REVI SED WORKING CLAIMING DEDUCTION OF ELIGIBLE PROFIT TO THE EXTENT OF ` 1,26,97,991/- ITA NOS.2250/12 22 &2094/13 2100 & 2236/14 :- 22 -: AND THE ASSESSING OFFICER FOUND THAT THE TAXABLE IN COME IS ONLY TO THE EXTENT OF ` 81,81,754/-, IT IS NOT KNOWN IN THE COMPUTATION HO W THE ASSESSING OFFICER DISALLOWED THE ENTIRE CLAIM TO TH E EXTENT OF ` 2,08,79,745/-. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE MATTER NEEDS TO BE RE-CONSIDERED BY THE AS SESSING OFFICER. IN OTHER WORDS, WHEN THE ASSESSING OFFICER FOUND THAT THE DISALLOWANCE IS ONLY ` 2,08,79,745/- AS PER THE REVISED WORKING FILED BY T HE ASSESSEE, WHETHER THE ASSESSING OFFICER DISALLOWED ` 1,26,97,991/- OR THE ENTIRE CLAIM TO THE EXTENT OF ` 2,08,79,754/-. WHILE RE-CONSIDERING THE MATTER, THE ASSESSING OFFICER SHALL TAKE INTO CONSIDERATION THE JUDGMENTS RELIED UPON BY THE ASSESSEE WITH REGARD TO APPORTIONMENT OF EXPENDITURE RELATING TO ELIGIBLE PROJECT AND NON-ELIGIBLE PROJE CT. ACCORDINGLY, THE ORDERS OF THE LOWER AUTHORITIES ARE SET ASIDE AND T HE ISSUE OF DEDUCTION U/S 80IB OF THE ACT FOR THE ASSESSMENT YEAR 2010-11 IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSIN G OFFICER SHALL RECONSIDER THE ISSUE AFRESH IN THE LIGHT OF JUDGMEN TS RELIED UPON BY THE ASSESSEE AND THEREAFTER DECIDE THE SAME IN ACCORDAN CE WITH LAW AFTER ALLOWING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. ITA NOS.2250/12 22 &2094/13 2100 & 2236/14 :- 23 -: 21. THE ASSESSEE HAS ALSO FILED I.T.A.NO.2094/MDS/2013 FOR ASSESSMENT YEAR 2009-10 IN RESPECT OF THE PROCEEDIN GS INITIATED U/S 154 OF THE ACT. 22. SHRI BANUSEKAR, LD. REPRESENTATIVE SUBMITTED THAT T HE ASSESSEE CLAIMED DEDUCTION U/S 80IB(10) TO THE EX TENT OF ` 4,52,89,878/-. HOWEVER, THE ASSESSING OFFICER REST RICTED THE SAME TO ` 2,58,28,928/-. ACCORDING TO THE LD. REPRESENTATIVE , THE ASSESSING OFFICER DEDUCTED PROPORTIONATE EXPENDITURE INCURRED BY THE ASSESSEE FROM THE PROFIT FROM ELIGIBLE PROJECT. THEREFORE, THE DISALLOWANCE MADE BY THE ASSESSING OFFICER BY RESTRICTING THE CLAIM C ANNOT BE SUSTAINED. 23. ON THE CONTRARY, THE LD. DR SUBMITTED THAT THE ASS ESSEE ITSELF FILED REVISED COMPUTATION OF DEDUCTION U/S 80IB BEFORE THE ASSESSING OFFICER. THE ASSESSING OFFICER ADOPTED T HE REVISED COMPUTATION/WORKING FILED BY THE ASSESSEE DURING T HE COURSE OF ASSESSMENT PROCEEDINGS. SINCE THE CLAIM OF THE AS SESSEE IS ACCEPTED AND IF AT ALL ANY APPORTION WAS MADE TOWARDS THE EX PENDITURE IT IS THE ASSESSEE WHO APPORTIONED THE SAME AND NOT THE ASSE SSING OFFICER. THEREFORE, ACCEPTING THE CLAIM OF THE ASSESSEE AS PER THE REVISED WORKING FILED BEFORE THE ASSESSING OFFICER CANNOT B E DOUBTED. ITA NOS.2250/12 22 &2094/13 2100 & 2236/14 :- 24 -: 24. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS NOT IN DISPUTE THAT THE ASSESSEE ITSELF FILED REVISED WORKING/CLAIM TO WARDS DEDUCTION U/S 80IB OF THE ACT. THE ASSESSEE ITSELF DEDUCTED PROP ORTIONATE EXPENDITURE TO THE EXTENT OF ` 2,16,79,351/-. THE ASSESSING OFFICER, AFTER VERIFYING THE DETAILS OF THE WORKING FILED BY THE ASSESSEE, ACCEPTED THE CLAIM OF THE ASSESSEE. THEREFORE, TH ERE IS NO INFIRMITY IN THE ORDER OF THE CIT(A). ACCORDINGLY, THE SAME IS CONFIRMED. 25. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN I.T.A. NO. 2094/MDS/2013 AND THAT OF THE REVENUE IN I.T.A.NOS. 22/MDS/2013 AND 2236/MDS/2014 ARE DISMISSED. HOWEVER, THE APPEA LS OF THE ASSESSEE IN I.T.A.NO.2250/MDS/2012 AND 2100/MDS/201 4 ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 29 TH OF MAY, 2015, AT CHENNAI. SD/- SD/- ( . ! ) (A. MOHAN ALANKAMONY) ' / ACCOUNTANT MEMBER ( . . . ' ) (N.R.S. GANESAN) / JUDICIAL MEMBER #$ / CHENNAI %& / DATED: 29 TH MAY, 2015 RD &' ()*) / COPY TO: 1 . / APPELLANT 3. +,' / CIT(A) 5. )-. / / DR 2. / RESPONDENT 4. + / CIT 6. .01 / GF
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