M/s Malpani Estates, V. ACIT, Pune

ITA 2298/PUN/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 76092 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 21-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS M S VERMA
• Keywords: Business income; Income from undisclosed sources
• Section: 143(3); 153A; 132; 15; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHE A, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NOS.2296 TO 2298/PN/2012 (ASSESSMENT YEARS : 2008-09 TO 2010-11) M/S MALPANI ESTATES, S.NO.150, MALPANI HOUSE, INDIRA GANDHI MARG, NEW NAGAR RAOD, SANGAMNER 422 605. PAN : AALFM6549D . APPELLANT VS. ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1(1), PUNE. . RESPONDENT ASSESSEE BY : MR. NIKHIL PATHAK DEPARTMENT BY : MRS. M. S. VERMA (CIT) DATE OF HEARING : 09-01-2014 DATE OF PRONOUNCEMENT : 30-01-2014 ORDER PER G. S. PANNU, AM THE THREE CAPTIONED APPEALS RELATE TO THE SAME ASS ESSEE AND INVOLVE A COMMON ISSUE, THEREFORE, THEY HAVE BEEN CLUBBED AND HEARD TOGETHER AND A CONSOLIDATED ORDER IS BEING PASSED FOR THE SAKE OF CONVENIENCE AND BREVITY. 2. THE CAPTIONED THREE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST A CONSOLIDATED ORDER DATED 25.09.2012 PASSED BY THE C OMMISSIONER OF INCOME TAX (APPEALS)-I, PUNE WHICH, IN TURN, HAS ARISEN FR OM THE RESPECTIVE ASSESSMENT ORDERS PASSED BY THE ASSESSING OFFICER D ATED 19.12.2011 U/S 153A R.W.S. 143(3) OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT) FOR ASSESSMENT YEAR 2008-09 AND 2009-10 AND U/S 143(3) OF THE ACT FOR ASSESSMENT YEAR 2010-11. 3. SUBSTANTIALLY SPEAKING IN ALL THE APPEALS THE SO LITARY ISSUE RELATES TO ASSESSEES CLAIM FOR DEDUCTION U/S 80IB(10) OF THE ACT IN RESPECT OF INCOME ITA NOS.2296 TO 2298/PN/2012 A.YS. 2008-09 TO 2010-11 WHICH WAS DECLARED BY THE ASSESSEE IN THE COURSE OF SEARCH CONDUCTED U/S 132(1) OF THE ACT. 4. IN THE CONTEXT OF CONTROVERSY BEFORE US, THE REL EVANT FACTS CAN BE SUMMARIZED AS FOLLOWS. THE APPELLANT IS A PARTNERS HIP FIRM ENGAGED IN CONSTRUCTION BUSINESS WHICH WAS SUBJECT TO A SEARCH ACTION U/S 132(1) OF THE ACT ON 06.10.2009. IN THE COURSE OF SEARCH, SHRI R AJESH MALPANI, PARTNER OF THE ASSESSEE FIRM IN A STATEMENT RECORDED U/S 132(4 ) OF THE ACT ON 03.12.2009 ADMITTED CERTAIN UNDISCLOSED INCOME IN RELATION TO HOUSING PROJECT UNDERTAKEN BY THE FIRM I.E. THE CREST AT PIMPLE SAUDAGAR, PU NE. THE ASSESSEE DULY REFLECTED SUCH ADDITIONAL INCOME IN THE RETURNS OF INCOME FILED FOR THE CAPTIONED ASSESSMENT YEARS AS THE PROFITS FROM ITS HOUSING PROJECT, AND SINCE THE SAID HOUSING PROJECT WAS ELIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE ACT, IT CLAIMED DEDUCTION U/S 80IB(10) OF THE ACT EVEN IN R ELATION TO SUCH ADDITIONAL INCOME. SUCH CLAIM OF THE ASSESSEE HAS BEEN DENIED , WHICH IS THE SUBJECT- MATTER OF DISPUTE BEFORE US. 5. AS THE FACTS AND CIRCUMSTANCES PERTAINING TO THE AFORESAID DISPUTE ARE COMMON IN ALL THE ASSESSMENT YEARS, THE APPEAL FOR ASSESSMENT YEAR 2008-09 IS TAKEN AS A LEAD CASE IN ORDER TO APPRECIATE THE RIVAL CONTENTIONS. IN ASSESSMENT YEAR 2008-09, ASSESSEE HAD ORIGINALLY FI LED A RETURN OF INCOME ON 28.09.2008 DECLARING NIL INCOME WHICH, INTER-ALIA, INCLUDED PROFITS FROM EXECUTION OF A HOUSING PROJECT AMOUNTING TO RS.2,10 ,86,083/-, WHICH WAS CLAIMED AS EXEMPT U/S 80IB(10) OF THE ACT. THEREAF TER, ON 06.10.2009 THERE WAS A SEARCH ACTION U/S 132(1) OF THE ACT AND IN RE SPONSE TO A NOTICE ISSUED U/S 153A(1)(A) OF THE ACT, ASSESSEE FURNISHED A RET URN OF INCOME ON 24.06.2010 DISCLOSING TOTAL INCOME OF RS.NIL AFTE R CLAIMING DEDUCTION U/S 80IB(10) OF THE ACT OF RS.2,46,89,494/-, AS AGAINST A DEDUCTION OF RS.2,10,86,083/- CLAIMED IN THE RETURN OF INCOME OR IGINALLY FILED U/S 139(1) OF THE ACT. THE ENHANCED CLAIM OF DEDUCTION U/S 80IB( 10) OF THE ACT WAS ON ACCOUNT OF AN ADDITIONAL INCOME OF RS.36,03,411/- D ECLARED BY THE ASSESSEE IN ITA NOS.2296 TO 2298/PN/2012 A.YS. 2008-09 TO 2010-11 THE RETURN FILED IN RESPONSE TO NOTICE ISSUED U/S 1 53A(1)(A) OF THE ACT. THE SAID ADDITIONAL INCOME WAS DECLARED ON ACCOUNT OF O N-MONEY RECEIVED BY IT FROM ITS CUSTOMERS ON SALE OF FLATS. THE CLAIM OF THE ASSESSEE WAS THAT THE ADDITIONAL CONSIDERATION RECEIVED FROM THE CUSTOMER S WHICH WAS HITHERTO NOT DECLARED IN THE REGULAR BOOKS OF ACCOUNT BUT DECLAR ED IN THE STATEMENT DEPOSED U/S 132(4) OF THE ACT DURING THE COURSE OF SEARCH, WAS NOTHING BUT AN INCOME IN RESPECT OF THE PROJECT THE CREST AT PIM PLE SAUDAGAR, PUNE, WHICH WAS ELIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE ACT. THE CLAIM OF THE ASSESSEE WAS THAT THE ADDITIONAL INCOME, WHICH WAS ON-MONEY RECEIVED ON SALE OF FLATS WAS ELIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE ACT. 6. THE ASSESSING OFFICER HAS NOT ALLOWED THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 80IB(10) OF THE ACT WITH RESPECT OF T HE AFORESAID COMPONENT OF ON-MONEY ON SALE OF FLATS RECEIVED BY THE ASSESSEE. THE ASSESSING OFFICER ACCEPTED THE ADDITIONAL INCOME OF RS.36,03,411/- AS A PART OF TOTAL INCOME BUT DID NOT TREAT IT AS BUSINESS INCOME OF THE ASSESS EE AND THEREFORE HE DID NOT ALLOW DEDUCTION U/S 80IB(10) OF THE ACT WITH RESPEC T TO SUCH SUM. FIRSTLY, AS PER THE ASSESSING OFFICER, ASSESSEE HAD CLAIMED DED UCTION U/S 80IB(10) OF THE ACT, OF RS.2,10,86,083/- IN THE ORIGINAL RETURN WHI CH WAS ENHANCED TO RS.2,46,89,494/- IN THE RETURN FILED U/S 153A OF TH E ACT, AND, ACCORDING TO THE ASSESSING OFFICER ENHANCEMENT OF CLAIM U/S 80IB(10) OF THE ACT, WAS NOT PERMISSIBLE IN AN ASSESSMENT U/S 153A OF THE ACT. SECONDLY, ACCORDING TO THE ASSESSING OFFICER, THE ON-MONEY RECEIVED BY THE ASS ESSEE ON SALE OF FLATS WAS NOT TAXABLE AS BUSINESS INCOME AND HENCE ASSESSEE WAS NOT ELIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE ACT. ON BEING DENIED U/S 80IB(10) OF THE ACT ON THE COMPONENT OF THE ON-MONEY DECLARED IN THE RETUR N FILED U/S 153A(1)(A) OF THE ACT, ASSESSEE CARRIED THE MATTER IN APPEAL BEFO RE THE CIT(A). 7. IN APPEAL, ASSESSEE ASSAILED THE ACTION OF THE A SSESSING OFFICER IN LAW AND ON FACTS. ASSESSEE CANVASSED THAT THERE WAS NO JUSTIFICATION FOR NOT ALLOWING THE CLAIM U/S 80IB(10) OF THE ACT WITH RES PECT TO THE IMPUGNED INCOME ITA NOS.2296 TO 2298/PN/2012 A.YS. 2008-09 TO 2010-11 WHICH WAS OSTENSIBLY DERIVED FROM THE EXECUTION OF THE HOUSING PROJECT, THE CREST AT PIMPLE SAUDAGAR, PUNE, WHICH WAS ELIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE ACT. ON FACTS, ASSESSEE CANVASSED OUT THAT THE ADDITIONAL INCOME IN QUESTION WAS UNACCOUNTED SALE CONSIDERATI ON RECEIVED FROM CUSTOMERS TO WHOM FLATS WERE SOLD AND ACCORDINGLY T HE SAME WAS LIABLE TO BE ASSESSED AS BUSINESS INCOME AND NOT AS INCOME FR OM OTHER SOURCES. THE CIT(A) HAS SINCE DISAGREED WITH THE STAND OF THE AS SESSEE AND HAS AFFIRMED THE ACTION OF THE ASSESSING OFFICER IN DENYING THE DEDUCTION U/S 80IB(10) OF THE ACT WITH RESPECT TO THE IMPUGNED INCOME. AS PER TH E CIT(A), THE CLAIM OF THE ASSESSEE IS NOT MAINTAINABLE BECAUSE (I) THE UNDISC LOSED INCOME DECLARED BY THE ASSESSEE CANNOT BE ASSESSED UNDER THE HEAD BUS INESS INCOME BUT UNDER THE HEAD INCOME FROM OTHER SOURCES; AND, (II) THE BENEFITS OF CHAPTER VIA, WHICH INCLUDE SECTION 80IB(10), ARE NOT APPLICABLE TO AN ASSESSMENT MADE UNDER SECTIONS U/S 153A TO 153C OF THE ACT. FOR TH E AFORESAID REASONS, THE CIT(A) HAS UPHELD THE ACTION OF THE ASSESSING OFFIC ER. NOT BEING SATISFIED WITH THE ORDER OF THE CIT(A), ASSESSEE IS IN FURTHER APP EAL BEFORE US. 8. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE HAS VEHEMENTLY POINTED OUT THAT THE LOWER AUTHORITIES ARE NOT JUST IFIED IN DENYING THE CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT. THE LEARNED COU NSEL POINTED OUT THAT THE ADDITIONAL INCOME OF RS.36,03,411/- WAS DECLARED IN THE COURSE OF SEARCH AS CONSIDERATION RECEIVED FROM CUSTOMERS ON SALE OF FL ATS. ACCORDINGLY, IT WAS NOTHING BUT ADDITIONAL SALE PRICE RECEIVED BY THE A SSESSEE WHICH WAS LIABLE TO BE TAXED AS BUSINESS INCOME RELATING TO ITS HOUSI NG PROJECT, THE CREST AT PIMPLE SAUDAGAR, PUNE AND THEREFORE THE SAME IS ELI GIBLE FOR BENEFITS OF SECTION 80IB(10) OF THE ACT. IT IS FURTHER POINTED OUT THAT THERE IS NO BAR EITHER IN THE PROVISIONS OF SECTION 80IB(10) OR SECTION 15 3A OF THE ACT THAT THE DEDUCTION U/S 80IB(10) IS NOT ALLOWABLE IN RESPECT OF INCOME BY WAY OF ON- MONEY RECEIVED ON SALE OF FLATS. IN SUPPORT OF HIS SUBMISSIONS, THE LEARNED COUNSEL HAS RELIED UPON THE JUDGMENT OF THE BOMBAY HIGH COURT IN THE CASE OF ITA NOS.2296 TO 2298/PN/2012 A.YS. 2008-09 TO 2010-11 CIT VS. SHETH DEVELOPERS (P) LTD., (2012) 254 CTR 1 27 (BOM) AND IN THE CASE OF CIT VS. GEM PLUS JEWELLERY INDIA LTD., (2010) 33 0 ITR 175 (BOM). 9. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPR ESENTATIVE APPEARING FOR THE REVENUE HAS RELIED UPON THE ORDERS OF THE A UTHORITIES BELOW IN SUPPORT OF THE CASE OF THE REVENUE. 10. IN THE PRESENT CASE, IT IS NOT IN DISPUTE THAT THE ASSESSEE HAS DERIVED INCOME FROM UNDERTAKING A HOUSING PROJECT, THE CRE ST AT PIMPLE SAUDAGAR, PUNE, WHICH IS ELIGIBLE FOR SECTION 80IB(10) BENEFI TS. IN THE RETURN OF INCOME ORIGINALLY FILED U/S 139(1) OF THE ACT, ASSESSEE HA D CLAIMED DEDUCTION U/S 80IB(10) OF THE ACT IN RELATION TO THE PROFITS DERI VED FROM THE SAID HOUSING PROJECT AND THE SAME STANDS ALLOWED EVEN IN THE IMP UGNED ASSESSMENT WHICH HAS BEEN MADE U/S 153A(1)(B) OF THE ACT AS A CONSEQ UENCE 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 ADDITIONAL INCOME PERTAIN ING TO THE HOUSING PROJECT IN QUESTION. THE ADDITIONAL INCOME DECLARED WAS ON ACCOUNT OF ON-MONEY RECEIVED FROM THE CUSTOMERS TO WHOM FLATS WERE SOLD IN THE SAID PROJECT. AT THE TIME OF HEARING, LEARNED COUNSEL REFERRED TO TH E COPY OF STATEMENT RECORDED U/S 132(4) OF THE ACT OF SHRI RAJESH MALPA NI, 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 TH E PAPER BOOK AT PAGES 35 TO 52. A PERUSAL OF THE SEIZED MATERIAL SHOWS T HAT A COMPLETE DETAIL OF THAT ON-MONEY RECEIVED IS ENUMERATED, VIZ. NAME OF THE C USTOMERS, AMOUNT AND THE RESPECTIVE FLAT SOLD IN THE PROJECT. EVEN IN T HE 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-MONEY R ECEIVED ON SALE OF FLATS IN THE PROJECT. ACCORDINGLY, THE IMPUGNED SUM HAS BEE N DECLARED AS UNACCOUNTED INCOME FROM THE HOUSING PROJECT IN QUES TION. IN THE RETURN OF ITA NOS.2296 TO 2298/PN/2012 A.YS. 2008-09 TO 2010-11 INCOME FILED IN RESPONSE OF NOTICE ISSUED U/S 153A( 1)(A) OF THE ACT, ASSESSEE HAS DECLARED SUCH ADDITIONAL INCOME AS INCOME FROM HOUSING PROJECT, THE CREST AT PIMPLE SAUDAGAR, PUNE. THE DECLARATION M ADE IN THE RETURN OF INCOME HAS NOT BEEN DISPUTED BY THE ASSESSING OFFIC ER. THE ONLY DISPUTE RAISED BY THE ASSESSING OFFICER IS WITH REGARD TO N ATURE OF SUCH INCOME, WHICH ACCORDING TO THE ASSESSING OFFICER DOES 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 DISAGREED WITH THE STAND OF THE ASSESSEE THAT S UCH ADDITIONAL INCOME WAS A BUSINESS INCOME OF THE ASSESSEE RELATING TO THE 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 INFE RENCE OF THE ASSESSING OFFICER THAT THE IMPUGNED INCOME DOES NOT FALL UNDE R 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, A S OF NOW, BEFORE US THE INFERENCE OF THE ASSESSING OFFICER DOES NOT SURVIVE ANY LONGER SINCE THE ORDER OF THE ASSESSING OFFICER HAS MERGED IN THE ORDER OF THE CIT(A) AND IN ANY CASE THE REVENUE IS NOT IN APPEAL ON THIS ASPECT. BE TH AT AS IT MAY, FACTUALLY SPEAKING, IT CANNOT BE DENIED THAT THE ADDITIONAL I NCOME IN QUESTION RELATES TO THE HOUSING PROJECT, THE CREST AT PIMPLE SAUDAGAR , PUNE UNDERTAKEN BY THE ASSESSEE. THE MATERIAL SEIZED IN THE COURSE OF SEA RCH; THE DEPOSITION MADE BY THE ASSESSEES PARTNER DURING SEARCH U/S 132(4) OF THE ACT; AND, ALSO THE RETURN OF INCOME FILED IN RESPONSE TO NOTICE ISSUED U/S 153A(1)(A) OF THE ACT AFTER THE SEARCH, CLEARLY SHOW THAT THE SOURCE OF I MPUGNED ADDITIONAL INCOME IS THE HOUSING PROJECT, THE CREST AT PIMPLE SAUDAGAR , PUNE. THE AFORESAID MATERIAL ON RECORD DEPICTS THAT THE IMPUGNED INCOME IS NOTHING BUT UNACCOUNTED MONEY RECEIVED BY THE ASSESSEE FROM CUS TOMERS ON ACCOUNT OF SALE OF FLATS OF ITS HOUSING PROJECT, THE CREST A T PIMPLE SAUDAGAR, PUNE. CLEARLY, THE SOURCE OF THE ADDITIONAL INCOME IS THE SALE OF FLATS IN THE HOUSING PROJECT, THE CREST. THEREFORE, ONCE THE SOURCE O F INCOME IS ESTABLISHED THE ASSESSABILITY THEREOF HAS TO FOLLOW. THE NATURE OF INCOME, THUS ON FACTS, HAS TO ITA NOS.2296 TO 2298/PN/2012 A.YS. 2008-09 TO 2010-11 BE TREATED AS BUSINESS INCOME ALBEIT, THE SAME WA S NOT ACCOUNTED FOR IN THE ACCOUNT BOOKS. IN THIS MANNER, WE ARE UNABLE TO AC CEPT THE STAND OF THE ASSESSING OFFICER OR OF THE CIT(A) THAT THE SAID IN COME IS NOT LIABLE TO BE TAXED AS BUSINESS INCOME. 12. NOW, COMING TO THE POINT AS TO WHETHER SUCH BU SINESS INCOME QUALIFIES TO BE ELIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE AC T IN THE COURSE OF AN ASSESSMENT MADE U/S 153A(1)(B) OF THE ACT. ON THIS ASPECT, THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE ASSE SSMENT IN CASES OF SEARCH ACTION OR REQUISITION ARE MADE U/S 153A OR 1 53C OF THE ACT IN ORDER TO ASSESS UNDECLARED INCOMES AND SUCH PROVISIONS ARE F OR THE BENEFIT OF THE REVENUE AND THEREFORE A CLAIM U/S 80IB(10) OF THE A CT CANNOT BE CONSIDERED IN SUCH PROCEEDINGS, ESPECIALLY WHEN SUCH A CLAIM WAS NOT MADE IN THE RETURN OF INCOME ORIGINALLY FILED UNDER SECTION 139 OF THE AC T. IN THIS REGARD, THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS REFERRED TO THE JUD GMENT OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. SUN ENGINEERIN G WORKS PVT. LTD., 198 ITR 297 (SC) TO POINT OUT THAT EVEN IN THE CASES OF RE-ASSESSMENT U/S 147/148 OF THE ACT FRESH CLAIMS CANNOT BE RAISED BY THE ASS ESSEE. SECONDLY, IT IS POINTED OUT BY THE LEARNED DEPARTMENTAL REPRESENTAT IVE THAT EVEN IF THE CLAIM WAS TO BE CONSIDERED THEN IT WAS NOT ALLOWABLE BECA USE THE REQUISITE CONDITION THAT THE RETURN OF INCOME HAS TO BE ACCOMPANIED BY THE PRESCRIBED AUDIT REPORT HAS NOT BEEN COMPLIED WITH 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 PROVIS IONS RELATING TO ASSESSMENTS TO BE MADE IN CASES WHERE SEARCH IS INI TIATED 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 ASSESSME NT OR RE-ASSESSMENT OF TOTAL INCOME OF SIX ASSESSMENT YEARS PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUC ED OR REQUISITION IS MADE. ITA NOS.2296 TO 2298/PN/2012 A.YS. 2008-09 TO 2010-11 SHORN OF OTHER DETAILS, IT WOULD SUFFICE FOR US TO NOTICE CLAUSE (I) OF THE EXPLANATION BELOW SECTION 153A(2) OF THE ACT, WHICH READS AS UNDER :- EXPLANATION. FOR THE REMOVAL OF DOUBTS, IT IS HE REBY DECLARED THAT, - (I) SAVE AS OTHERWISE PROVIDED IN THIS SECTION, SEC TION 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 TH E EXPLANATION, IT IS EVIDENT THAT ALL THE PROVISIONS OF THE ACT SHALL APPLY TO A N ASSESSMENT MADE U/S 153A OF THE ACT SAVE AS OTHERWISE PROVIDED IN THE SAID S ECTION, OR IN SECTION 153B OR SECTION 153C OF THE ACT. IN THE BACKGROUND OF THE EXPRESSION ALL OTHER PROVISIONS OF THIS ACT SHALL APPLY CONTAINED IN EXPLANATION (I) BELOW SECTION 153A OF THE ACT, AND IN THE CONTEXT OF THE CONTROVE RSY 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 CONSIDERED IN MAKI NG AN ASSESSMENT MADE U/S 153A(1)(B) OF THE ACT. SECTION 153A(1)(B) OF T HE ACT REQUIRES THE ASSESSING OFFICER TO ASSESS OR REASSESS THE TOTAL INCOME OF THE ASSESSMENT YEARS SPECIFIED THEREIN. OSTENSIBLY, SECTION 80A(1) OF THE ACT PRESCRIBES THAT IN COMPUTING THE TOTAL INCOME OF AN ASSESSEE, THE RE 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 PRE VAILS IN AN ASSESSMENT MADE U/S 153A(1)(B) OR NOT? IN OUR CONSIDERED OPINION, HAVING REGARD TO THE EXPRESSION ALL OTHER PROVISIONS OF THIS ACT SHALL APPLY TO TH E ASSESSMENT MADE UNDER THIS 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 SECTION 153A(1)(B) OF THE ACT, T HE IMPORT OF SECTION 80A(1) OF THE ACT COMES INTO PLAY, AND THERE SHALL BE ALLOWED THE DEDUCTIONS SPECIFIED IN CHAPTER VIA OF THE ACT, OF COURSE SUBJECT TO FULFIL LMENT 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 INTER-ALIA INCLUDE SECTION 80IB(10) OF THE ACT, ARE NOT APPLICABLE TO AN ASSESSMENT MADE UNDER SECTIONS 153A TO 153C OF THE ACT. IN OUR CONSIDERE D OPINION, THE PHRASEOLOGY ITA NOS.2296 TO 2298/PN/2012 A.YS. 2008-09 TO 2010-11 OF SECTION 153A R.W. EXPLANATION (I) AS NOTED ABOVE , DOES NOT SUPPORT THE PREMISE ARRIVED AT BY THE CIT(A) AND ACCORDINGLY, T HE 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 S COPE AND AMBIT OF AN ASSESSMENT U/S 153A(1)(B) OF THE ACT AND THE ASSESS ING OFFICER WAS OBLIGATED TO CONSIDER THE SAME AS PER LAW. 15. THE OTHER ARGUMENT OF THE LD. CIT-DR TO THE EFF ECT THAT THE RETURN OF INCOME WAS NOT ACCOMPANIED BY THE PRESCRIBED AUDIT REPORT ON THE ENHANCED CLAIM OF DEDUCTION IS TOO HYPER-TECHNICAL, AND SUPE RFICIAL. PERTINENTLY, THE ASSESSING OFFICER HAS NOT ALTOGETHER DENIED THE CLA IM OF DEDUCTION AND IN ANY CASE, THE CLAIM WAS INITIALLY MADE IN THE RETURN OR IGINALLY FILED, WHICH WAS DULY ACCOMPANIED BY THE PRESCRIBED AUDIT REPORT. 16. THE ARGUMENT SET-UP BY THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE BASIS OF THE JUDGMENT OF THE HONBLE SUPREME CO URT IN THE CASE OF SUN ENGINEERING WORKS PVT. LTD. (SUPRA), IN OUR VIEW, I S ALSO UNTENABLE HAVING REGARD TO THE FACTS OF THE PRESENT CASE. NO DOUBT THE HONBLE SUPREME COURT HAS OBSERVED THAT REOPENING OF AN ASSESSMENT U/S 14 7/148 IS FOR THE BENEFIT OF THE REVENUE. IN THE CASE BEFORE THE HONBLE SUP REME COURT, ASSESSEE WANTED TO SET-OFF LOSS AGAINST THE ESCAPED INCOME W HICH WAS TAXED IN THE RE- ASSESSMENT PROCEEDINGS AND THE CLAIM OF SUCH SET-OF F WAS NOT MADE IN THE RETURN OF INCOME ORIGINALLY FILED. ACCORDING TO TH E HONBLE SUPREME COURT, THE CLAIM WAS NOT ENTERTAINABLE BECAUSE THE SAID CLAIM NOT CONNECTED WITH 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 THAT ASSESSEE CANNOT RAISE A CLAIM PERTAINING TO AN ISSUE WHICH IS CONNECTED TO THE ASSESSMENT OF ESCAPED INC OME. IN-FACT, IF A CLAIM WHICH IS CONNECTED TO THE ESCAPED INCOME IS SET-UP BEFORE THE ASSESSING OFFICER IN THE COURSE OF RE-ASSESSMENT PROCEEDINGS, THE SAME IS LIABLE TO BE CONSIDERED AND THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF SUN ITA NOS.2296 TO 2298/PN/2012 A.YS. 2008-09 TO 2010-11 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, WE ARE DEALING WITH AN ASSESSMENT U/S 153A OF THE ACT AND THE SCOPE OF SUCH AN ASSESSMENT HAS ALREADY BEEN EX AMINED BY US IN THE CONTEXT OF THE RELEVANT SPECIFIC PROVISIONS, WHICH DO NOT LEAVE ANY SCOPE FOR AMBIGUITY. THE JUDGMENT OF THE HONBLE SUPREME COU RT IN THE CASE OF SUN ENGINEERING WORKS PVT. LTD. (SUPRA) HAS BEEN RENDER ED ON A DIFFERENT FOOTING AND IS STRICTLY NOT APPLICABLE TO THE PRESENT PROCE EDINGS. SO, HOWEVER, EVEN IF ONE WERE TO IMPORT THE REASONING RAISED BY THE LEAR NED DEPARTMENTAL REPRESENTATIVE BASED ON THE JUDGMENT OF THE HONBLE SUPREME COURT, TO THE PRESENT CASE, YET WE DO NOT FIND THAT IT WOULD DEBA R THE ASSESSEE FROM CLAIMING DEDUCTION U/S 80IB(10) OF THE ACT ON THE I MPUGNED 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(1 0) OF THE ACT WAS MADE IN THE RETURN OF INCOME ORIGINALLY FILED AND IN THE RE TURN FILED IN PURSUANCE TO THE NOTICE U/S 153A(1)(A) OF THE ACT, THE CLAIM U/S 80I B(10) OF THE ACT IS ONLY ENHANCED AND THEREFORE, IT IS NOT A FRESH CLAIM. T HEREFORE, IN OUR VIEW, THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE O F 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 C ASE OF SHETH DEVELOPERS (P) LTD. (SUPRA) WAS CONSIDERING THE CLA IM 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 HONB LE HIGH COURT, IT WAS FACTUALLY EMERGING THAT UNDISCLOSED INCOME WAS EARN ED BY THE ASSESSEE IN THE COURSE OF CARRYING ON HIS BUSINESS ACTIVITY OF A B UILDER AND THE SAME WAS ACCEPTED BY THE DEPARTMENT, BUT THE CLAIM OF THE DE DUCTION U/S 80IB(10) WAS DENIED IN RELATION TO SUCH INCOME. HOWEVER, THE CLA IM WAS UPHELD BY THE HONBLE BOMBAY HIGH COURT. IN THE PRESENT CASE, FA CTUALLY, THERE IS NO MATERIAL TO NEGATE THE ASSERTION OF THE ASSESSEE, W HICH ARE BORNE OUT OF THE MATERIAL ON RECORD, THAT THE ADDITIONAL INCOME IN Q UESTION HAS BEEN RECEIVED IN ITA NOS.2296 TO 2298/PN/2012 A.YS. 2008-09 TO 2010-11 THE COURSE OF CARRYING ON ITS BUSINESS ACTIVITY OF DEVELOPING THE HOUSING PROJECT, THE CREST AT PIMPLE SAUDAGAR, PUNE, WHIC H IS ELIGIBLE FOR SECTION 80IB(10) BENEFITS. THEREFORE, IN TERMS OF THE PARI TY OF REASONING LAID DOWN BY THE HONBLE 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 ADDITIONAL INCOME IN QUESTION IS DERIVED FROM THE HOUSING PROJECT, THE CREST AT PIMPLE SAUDAGAR, PUNE, WHICH IS ELIGIBLE FOR SECTION 80IB(10) BENEFITS, SU CH AN INCOME MERELY GOES TO ENHANCE THE BUSINESS INCOME DERIVED FROM THE ELIG IBLE HOUSING PROJECT AND SHALL BE ENTITLED FOR SECTION 80IB(10) BENEFITS, EV EN AS PER THE RATIO OF THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CA SE OF GEM PLUS JEWELLERY INDIA LTD. (SUPRA). 19. IN THE RESULT, ON THE BASIS OF THE AFORESAID LE GAL POSITION AND THE MATERIAL AND EVIDENCE ON RECORD, ASSESSEE IS ELIGIB LE FOR DEDUCTION U/S 80IB(10) OF THE ACT IN RELATION TO IMPUGNED ADDITIO NAL INCOME OFFERED IN A STATEMENT U/S 132(4) OF THE ACT IN THE COURSE OF SE ARCH AND SUBSEQUENTLY DECLARED IN THE RETURN FILED IN RESPONSE TO NOTICE U/S 153A(1)(A) OF THE ACT. IN THE RESULT, APPEAL OF THE ASSESSEE FOR ASSESSMENT Y EAR 2008-09 IS ALLOWED. 20. IN THE OTHER ASSESSMENT YEARS ALSO THE SUBSTANT IVE DISPUTE IS SIMILAR TO THAT ADJUDICATED IN THE EARLIER PARAGRAPHS FOR ASSE SSMENT YEAR 2008-09. THEREFORE, OUR DECISION IN ASSESSMENT YEAR 2008-09 SHALL APPLY MUTATIS- MUTANDIS IN OTHER TWO ASSESSMENT YEARS ALSO. 21. PERTINENTLY, IN SO FAR AS THE ASSESSMENT YEAR 2 010-11 IS CONCERNED, THE ASSESSMENT HAS BEEN COMPLETED U/S 143(3) OF THE ACT IN PURSUANCE TO RETURN OF INCOME FILED U/S 139 OF THE ACT ON 13.10.2010 AN D IT IS NOT AN ASSESSMENT MADE U/S 153A(1)(B) OF THE ACT. EVEN IN THIS ASSES SMENT, CLAIM OF THE ASSESSEE HAS BEEN DENIED. IN OUR CONSIDERED OPINIO N, THE CLAIM FOR DEDUCTION ITA NOS.2296 TO 2298/PN/2012 A.YS. 2008-09 TO 2010-11 U/S 80IB(10) OF THE ACT WITH REGARD TO THE ADDITION AL INCOME DECLARED FOR ASSESSMENT YEAR 2010-11 STANDS ON AN EVEN STRONGER FOOTING THAN IN THE OTHER ASSESSMENT YEARS BECAUSE IN ASSESSMENT YEAR 2010-11 THERE WAS NO RETURN OF INCOME ORIGINALLY FILED BUT ONLY A SINGLE RETURN HAS BEEN FILED ON 13.10.2010 AS PER THE PROVISIONS OF SECTION 139 OF THE ACT, TH OUGH AFTER THE SEARCH ACTION ON 06.11.2009. 22. FOR ALL THE ABOVE REASONS, WE THEREFORE, DEEM I T FIT AND PROPER TO SET- ASIDE THE ORDER OF THE CIT(A) AND DIRECT THE ASSESS ING OFFICER TO ALLOW DEDUCTION U/S 80IB(10) OF THE ACT FOR THE CAPTIONED ASSESSMENT YEARS. 23. IN THE RESULT, THE CAPTIONED THREE APPEALS OF T HE ASSESSEE ARE ALLOWED, AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH JANUARY, 2014. SD/- SD/- (R.S. PADVEKAR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED : 30 TH JANUARY, 2014 SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)I, PUNE; 4) THE CIT-I, PUNE; 5) THE DR, A BENCH, I.T.A.T., PUNE; 6) GUARD FILE. //TRUE COPY// BY ORDER SR. PRIVATE SECRETARY I.T.A.T., PUNE