My Home Developers, Surat V. The Income Tax Officer, Ward-7(2), Surat

ITA 2966/AHD/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94203 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 28-07-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 11-11-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NARENDRA SINGHSR D R
• Keywords: Business income; Loose papers; Opportunity of being heard
• Section: 133A; 80IB

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ ././ ./ ITA NO. 2966/AHD/2014 / ASSESSMENT YEAR: 2010-11 MY HOME DEVELOPERS, A-101, ORNATE HOUSE, NR. ALTHAN BAMROLI BRIDGE, ALTHAN, SURAT PAN : AAOFM 5336 K V/S. ITO, WARD-7(2), SURAT / // / (APPELLANT) / // / (RESPONDENT) ASSESSEE(S) BY : SHRI MEHUL SHAH, AR REVENUE BY : SHRI NARENDRA SINGH, SR. DR !' # $%&/ // / DATE OF HEARING : 28/07/2015 '( # $%& / // / DATE OF PRONOUNCEMENT: 07/08/2015 )* )* )* )*/ // / O R D E R PER G.D. AGRAWAL, VICE PRESIDENT: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-I, SURAT DATED 28.08.2014 FOR ASSESSMENT YEAR 2010-11. 2. THE FIRST GROUND OF THE ASSESSEES APPEAL READS AS UNDER:- 1. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED CIT(A) HAS ERRED IN PASSING EX-PARTE ORD ER WITHOUT GIVING PROPER OPPORTUNITY OF BEING HEARD. 3. AT THE TIME OF HEARING BEFORE US, THE LD. COUNSE L FOR THE ASSESSEE DID NOT PRESS THIS GROUND OF APPEAL; ACCORDINGLY THE SA ME IS REJECTED AS NOT PRESSED. 4. THE GROUND NO.2 OF THE ASSESSEES APPEAL READS A S UNDER:- ITA NO. 2966/AHD/2014 MY HOME DEVELOPERS VS. ITO AY 2010-11 2 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS W ELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN TREATING INCOME OF RS.76,25,000/- DISCLOSED DURING THE SURVE Y AS INCOME FROM OTHER SOURCES INSTEAD OF BUSINESS INCOME AND DISALLOWING DEDUCTION U/S 80IB OF THE IT ACT, 1961 ON THE INCOME OF RS.76,25,000/- DIS CLOSED DURING THE SURVEY. 5. THE OTHER GROUNDS ARE OF GENERAL NATURE AND NEED NO SPECIFIC ADJUDICATION. THEREFORE, THE ONLY SURVIVING GROUND REMAINED FOR OUR ADJUDICATION IS THE GROUND NO.2 REPRODUCED ABOVE. 6. THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS A PARTNERSHIP FIRM WHICH DERIVES INCOME FROM DEVELOPING AND BUILDING OF HOUS ING PROJECT. FOR THE YEAR UNDER CONSIDERATION, THE ASSESSEE FILED THE RE TURN DISCLOSING NIL INCOME, AFTER CLAIMING DEDUCTION U/S 80IB(10) AT RS.1,18,96 ,902/-. THE ASSESSING OFFICER ACCEPTED THE ASSESSEES COMPUTATION OF INCO ME EXCEPT HOLDING THAT THE SUM OF RS.76,25,000/- WHICH WAS SURRENDERED BY THE ASSESSEE DURING THE COURSE OF SURVEY IS TO BE ASSESSED UNDER THE HEAD INCOME FROM OTHER SOURCES AND THUS, NOT ENTITLED FOR DEDUCTION U/S 8 0IB(10). CONSEQUENTLY, HE ASSESSED THE INCOME OF THE ASSESSEE AT RS.76,25, 000/-. ON APPEAL, THE CIT(A) UPHELD THE FINDING OF THE ASSESSING OFFICER. THE ASSESSEE, AGGRIEVED WITH THE ORDER OF THE CIT(A), IS IN APPEAL BEFORE U S. 7. AT THE TIME OF HEARING BEFORE US, IT WAS POINTE D OUT BY THE LD. COUNSEL THAT DURING THE ACCOUNTING YEAR RELEVANT TO ASSESSMENT YEAR UNDER CONSIDERATION, I.E., ON 22.02.2010, THERE WAS A SUR VEY ACTION U/S 133A OF THE INCOME-TAX ACT AT THE BUSINESS PREMISES OF THE ASSE SSEE AND AT THE SITE OF THE ASSESSEE I.E., ORNATE HOUSE, SURAT. DURING THE COUR SE OF SURVEY, CERTAIN LOOSE PAPERS WERE FOUND WHICH WERE WITH REGARD TO RECEIPT OF ON-MONEY FROM ORNATE HOUSE PROJECT. THE SURVEY AUTHORITIES RECOR DED THE STATEMENT OF THE ASSESSEE AND IN REPLY TO THE QUESTION NO.11, IT WAS ADMITTED BY THE ASSESSEE THAT THE NOTING IN THE DIARY WAS RELATED TO THE REC EIPT OF ON-MONEY FOR THE ITA NO. 2966/AHD/2014 MY HOME DEVELOPERS VS. ITO AY 2010-11 3 BOOKING IN THE PROJECT ORNATE HOUSE. THE ASSESSE E SURRENDERED THE SAID ON-MONEY AMOUNTING TO RS.76,25,000/-. IN THE BOOKS OF ACCOUNTS, THE ASSESSEE CREDITED THE SUM OF RS.76,25,000/- AS BUSI NESS INCOME. THAT, THE ENTIRE INCOME WAS FROM THE HOUSING PROJECT WHICH WA S ELIGIBLE FOR DEDUCTION U/S 80IB(10). THEREFORE, THE ASSESSEE CL AIMED THE DEDUCTION U/S 80IB(10) AT RS.1,18,96,902/-. THE ASSESSING OFFICE R ACCEPTED THAT THE ASSESSEES HOUSING PROJECT WAS ELIGIBLE FOR DEDUCTI ON U/S 80IB(10). HOWEVER, HE WAS OF THE OPINION THAT THE SUM OF RS.7 6,25,000/- WAS NOT THE INCOME FROM THE HOUSING PROJECT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER ASKED FOR THE DE TAILS OF THE FLAT OWNERS WHO MADE THE PAYMENT OF ON-MONEY. THE ASSESSEE DID NOT HAVE ANY OTHER DETAILS EXCEPT THAT WAS RECORDED IN THE DIARY FOUND DURING THE COURSE OF SURVEY AND SEIZED BY THE REVENUE. DURING THE COURS E OF SURVEY, THE SURVEY TEAM HELD THAT IN THE SAID DIARY THE ASSESSEE HAS R ECORDED THE DETAILS OF ON- MONEY RECEIVED FOR BOOKING OF FLAT. THE ASSESSEE AC CEPTED THE VIEW OF THE SURVEY TEAM AND OFFERED THE SAME AS ITS INCOME. TH AT, THE ASSESSEE DID NOT HAVE ANY OTHER BUSINESS ACTIVITY EXCEPT THE ONE HOU SING PROJECT WHICH WAS ELIGIBLE FOR DEDUCTION U/S 80IB(10). THE ASSESSING OFFICER ACCEPTED THE ASSESSEES STATEMENT GIVEN DURING THE COURSE OF SUR VEY FOR THE PURPOSE OF TAXING THE SUM OF RS.76,25,000/-, BUT HE DID NOT AC CEPT THE SAID STATEMENT FOR THE PURPOSE OF CONSIDERING DEDUCTION U/S 80IB(1 0). HE STATED THAT IDENTICAL ISSUE IS CONSIDERED BY THE ITAT, AHMEDABA D BENCH IN THE CASE OF M/S. NILKANTH DEVELOPERS VIDE ITA NO.2610/AHD/2014 . THAT THE FACTS IN THE CASE OF M/S. NILKANTH DEVELOPERS AND THE ASSESS EE ARE ALMOST IDENTICAL. HE, THEREFORE, STATED THAT SINCE THE FACTS OF THE C ASE OF THE ASSESSEE AND M/S. NILKANTH DEVELOPERS ARE IDENTICAL, THE DECISION OF ITAT IN THE CASE OF M/S.NILKANTH DEVELOPERS WOULD BE SQUARELY APPLICABL E TO THE CASE OF THE ASSESSEE. ITA NO. 2966/AHD/2014 MY HOME DEVELOPERS VS. ITO AY 2010-11 4 8. THE LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTH ER HAND, RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND HE POINTED OUT THAT THE CIT(A) HAS DISCUSSED THE ISSUE AT LENGTH AND HE HAS SUSTAINED THE DISALLOWANCE MADE BY THE ASSESSING OFFICER ON TWO GROUNDS. THE GROU ND NUMBER ONE WAS THAT THE BENEFIT U/S 80IB(10) CANNOT BE GIVEN TO TA X EVADERS WHO DID NOT DISCLOSE THEIR RECEIPT CORRECTLY. THAT, THE ASSESS EE HAS NOT RECORDED THE RECEIPT OF THE ALLEGED ON-MONEY IN THE BOOKS OF ACC OUNTS AND SAME COULD BE DETECTED BY THE REVENUE ONLY ON ACCOUNT OF SURVEY A T THE ASSESSEES PREMISES. THEREFORE, ON SUCH INCOME WHICH ASSESSEE INTENDED TO CONCEAL FROM THE REVENUE, THE ASSESSEE CANNOT BE ENTITLED T O DEDUCTION U/S 80IB(10). THAT, THE SECOND GROUND GIVEN BY THE CIT(A) IS THAT BEFORE THE ASSESSING OFFICER THE ASSESSEE DID NOT FURNISH THE COMPLETE D ATE-WISE DETAILS OF THE RECEIPT OF ON-MONEY, I.E, NAME OF THE PERSON FROM W HOM THE ON-MONEY WAS RECEIVED AND THE DATE OF RECEIPT OF SUCH ON-MONEY. HE, THEREFORE, SUBMITTED THAT THE ORDER OF THE ASSESSING OFFICER HAS RIGHTLY BEEN SUSTAINED BY THE CIT(A) AND THE SAME SHOULD BE UPHELD. 9. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. THE FIRST L EGAL QUESTION WILL BE ON WHICH AMOUNT THE ASSESSEE IS ENTITLED TO DEDUCTION U/S 80IB(10). THE SECTION 80IB(10) READS AS UNDER:- 80IB (10) THE AMOUNT OF DEDUCTION IN THE CASE OF AN UNDERTAKING DEVELOPING AND BUILDING HOUSING PROJECTS APPROVED BEFORE THE 3 1ST DAY OF MARCH, 2008 BY A LOCAL AUTHORITY SHALL BE HUNDRED PER CENT OF T HE PROFITS DERIVED IN THE PREVIOUS YEAR RELEVANT TO ANY ASSESSMENT YEAR FROM SUCH HOUSING PROJECT IF, (A) SUCH UNDERTAKING HAS COMMENCED OR COMMENCES DEVE LOPMENT AND CONSTRUCTION OF THE HOUSING PROJECT ON OR AFTER THE 1ST DAY OF OCTOBER, 1998 AND COMPLETES SUCH CONSTRUCTION, (I) IN A CASE WHERE A HOUSING PROJECT HAS BEEN AP PROVED BY THE LOCAL AUTHORITY BEFORE THE 1ST DAY OF APRIL, 2004, ON OR BEFORE THE 31ST DAY OF MARCH, 2008; ITA NO. 2966/AHD/2014 MY HOME DEVELOPERS VS. ITO AY 2010-11 5 (II) IN A CASE WHERE A HOUSING PROJECT HAS BEEN, O R, IS APPROVED BY THE LOCAL AUTHORITY ON OR AFTER THE 1ST DAY OF APRIL, 2004 BU T NOT LATER THAN THE 31ST DAY OF MARCH, 2005, WITHIN FOUR YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE HOUSING PROJECT IS APPROVED BY THE LOCAL AUTHORITY; (III) IN A CASE WHERE A HOUSING PROJECT HAS BEEN APP ROVED BY THE LOCAL AUTHORITY ON OR AFTER THE 1ST DAY OF APRIL, 2005, W ITHIN FIVE YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE HOUSING PROJ ECT IS APPROVED BY THE LOCAL AUTHORITY. EXPLANATION.FOR THE PURPOSES OF THIS CLAUSE, (I) IN A CASE WHERE THE APPROVAL IN RESPECT OF TH E HOUSING PROJECT IS OBTAINED MORE THAN ONCE, SUCH HOUSING PROJECT SHALL BE DEEME D TO HAVE BEEN APPROVED ON THE DATE ON WHICH THE BUILDING PLAN OF SUCH HOUS ING PROJECT IS FIRST APPROVED BY THE LOCAL AUTHORITY; (II) THE DATE OF COMPLETION OF CONSTRUCTION OF THE HOUSING PROJECT SHALL BE TAKEN TO BE THE DATE ON WHICH THE COMPLETION CERTIF ICATE IN RESPECT OF SUCH HOUSING PROJECT IS ISSUED BY THE LOCAL AUTHORITY; (B) THE PROJECT IS ON THE SIZE OF A PLOT OF LAND W HICH HAS A MINIMUM AREA OF ONE ACRE: PROVIDED THAT NOTHING CONTAINED IN CLAUSE (A) OR CL AUSE (B) SHALL APPLY TO A HOUSING PROJECT CARRIED OUT IN ACCORDANCE WITH A SC HEME FRAMED BY THE CENTRAL GOVERNMENT OR A STATE GOVERNMENT FOR RECONS TRUCTION OR REDEVELOPMENT OF EXISTING BUILDINGS IN AREAS DECLAR ED TO BE SLUM AREAS UNDER ANY LAW FOR THE TIME BEING IN FORCE AND SUCH SCHEME IS NOTIFIED BY THE BOARD IN THIS BEHALF; (C) THE RESIDENTIAL UNIT HAS A MAXIMUM BUILT-UP AR EA OF ONE THOUSAND SQUARE FEET WHERE SUCH RESIDENTIAL UNIT IS SITUATED WITHIN THE CITY OF DELHI OR MUMBAI OR WITHIN TWENTY-FIVE KILOMETRES FROM THE MU NICIPAL LIMITS OF THESE CITIES AND ONE THOUSAND AND FIVE HUNDRED SQUARE FEE T AT ANY OTHER PLACE; (D) THE BUILT-UP AREA OF THE SHOPS AND OTHER COMME RCIAL ESTABLISHMENTS INCLUDED IN THE HOUSING PROJECT DOES NOT EXCEED THR EE PER CENT OF THE AGGREGATE BUILT-UP AREA OF THE HOUSING PROJECT OR F IVE THOUSAND SQUARE FEET, WHICHEVER IS HIGHER; (E) NOT MORE THAN ONE RESIDENTIAL UNIT IN THE HOUS ING PROJECT IS ALLOTTED TO ANY PERSON NOT BEING AN INDIVIDUAL; AND (F) IN A CASE WHERE A RESIDENTIAL UNIT IN THE HOUS ING PROJECT IS ALLOTTED TO A PERSON BEING AN INDIVIDUAL, NO OTHER RESIDENTIAL UN IT IN SUCH HOUSING PROJECT IS ALLOTTED TO ANY OF THE FOLLOWING PERSONS, NAMELY : ITA NO. 2966/AHD/2014 MY HOME DEVELOPERS VS. ITO AY 2010-11 6 (I) THE INDIVIDUAL OR THE SPOUSE OR THE MINOR CHI LDREN OF SUCH INDIVIDUAL, (II) THE HINDU UNDIVIDED FAMILY IN WHICH SUCH INDI VIDUAL IS THE KARTA, (III) ANY PERSON REPRESENTING SUCH INDIVIDUAL, THE S POUSE OR THE MINOR CHILDREN OF SUCH INDIVIDUAL OR THE HINDU UNDIVIDED FAMILY IN WHICH SUCH INDIVIDUAL IS THE KARTA. EXPLANATION.FOR THE REMOVAL OF DOUBTS, IT IS HEREB Y DECLARED THAT NOTHING CONTAINED IN THIS SUB-SECTION SHALL APPLY TO ANY UN DERTAKING WHICH EXECUTES THE HOUSING PROJECT AS A WORKS CONTRACT AWARDED BY ANY PERSON (INCLUDING THE CENTRAL OR STATE GOVERNMENT). 10. FROM THE ABOVE, IT IS EVIDENT THAT THE ASSESSEE IS ENTITLED FOR 100% DEDUCTION OF THE PROFIT DERIVED FROM SUCH HOUSING PROJECT. THEREFORE, THE ONLY REQUIREMENT TO BE ELIGIBLE FOR DEDUCTION U/S 8 0IB(10) IS THAT THE PROFIT SHOULD BE DERIVED FROM THE ELIGIBLE HOUSING PROJECT S. IN THE CASE UNDER APPEAL BEFORE US, IT IS NOT IN DISPUTE THAT THE HOU SING PROJECT OF THE ASSESSEE, I.E., ORNATE HOUSE WAS ELIGIBLE FOR DEDUCTION U/S 8 0IB(10). ONCE THE PROJECT WAS ELIGIBLE FOR DEDUCTION U/S 80IB(10), THE DEDUCT ION IS TO BE ALLOWED FOR 100% OF THE PROFIT FROM SUCH HOUSING PROJECT. IT I S IMMATERIAL WHETHER THE RECEIPT FROM THE SALE OF FLAT WAS PROPERLY RECORDED IN THE REGULAR BOOKS OF ACCOUNTS OR NOT. IN VIEW OF ABOVE, WE ARE UNABLE TO AGREE WITH THE VIEW OF THE CIT(A) THAT THE DEDUCTION U/S 80IB(10) WOULD BE ALLOWED ONLY IN RESPECT OF THE PROFIT WHICH IS WORKED OUT AS PER RE CEIPT RECORDED IN THE REGULAR BOOKS OF ACCOUNTS FOUND AT THE TIME OF SURV EY AND NOT IN RESPECT OF THE ON-MONEY WHICH WAS FOUND RECORDED IN A DIARY. IN OUR OPINION, THE DEDUCTION U/S 80IB(10) IS TO BE ALLOWED ON THE 100% OF THE PROFIT DERIVED FROM THE HOUSING PROJECT. 11. NOW, THE QUESTION IS WHETHER THE SUM OF RS.76,2 5,000/- IS THE PROFIT DERIVED FROM THE HOUSING PROJECT. ADMITTEDLY, DURI NG THE ACCOUNTING YEAR RELEVANT TO ASSESSMENT YEAR UNDER CONSIDERATION THE ONLY BUSINESS ACTIVITY OF THE ASSESSEE-FIRM WAS THE HOUSING PROJECT WHICH IS ELIGIBLE FOR DEDUCTION ITA NO. 2966/AHD/2014 MY HOME DEVELOPERS VS. ITO AY 2010-11 7 U/S 80IB(10). DURING THE COURSE OF SURVEY, ONE DIA RY NAMED AS VALENTINEL WAS FOUND WHICH WAS MARKED AS ANNEXURE BF-5. ON PA GE NOS. 2-9 OF THE DIARY, THERE WERE RECEIPTS OF CERTAIN AMOUNTS. AS PER REVENUE AUTHORITIES WHO CONDUCTED THE SURVEY SUCH NOTING IN THE DIARY W AS FOR RECEIPT OF ON- MONEY FROM HOUSING PROJECT. THIS WOULD BE CLEAR F ROM QUESTION NO.11 PUT BY THE OFFICER, WHILE RECORDING THE STATEMENT OF TH E ASSESSEE. FOR READY REFERENCE QUESTION NO.11 AND REPLY THERETO ARE REPR ODUCED BELOW:- Q.11 DURING YOUR SURVEY, WE HAVE FOUND ONE DIARY VALENTINEL AS ANNEXURE BF-5 IN WHICH YOU HAVE WRITTEN IN PAGE NO. 2 TO 9, THE DETAILS OF ON MONEY RECEIVED FOR BOOKING OF PLAT IN ORNATE HO USE AND THE DETAILS OF DISTRIBUTIONOF THE SAME AND THE TOTAL ON WHICH IS R S.76,25,000/- (SEVENTY SIX LAKHS TWENTY FIVE THOUSAND). SO YOU ARE ASKED TO GI VE THE DETAILS OF THE SAME AND ALSO ASKED HOW IT REFLECTED IN YOUR BOOKS OF ACCOUNT. A.11 THE DIARY VALENTINEL WHICH YOUR ARE SHOWING TO ME AS FOUND DURING THE COURSE OF SURVEY, HAVE BEEN KEPT TO RECORD THE DETAILS OF ON MONEY RECEIVED TOTALING TO RS.76,25,000/- (SEVENTY SIX LA KHS TWENTY FIVE THOUSAND) FOR BOOKING IN THE PROJECT OF ORNATE HOUS E DURING THE CURRENT YEAR IN PAGE NO.2 TO 9, WHICH WE DECLARE AS UNDISCL OSED INCOME IN OUR FIRM MY HOME DEVELOPERS AND I ASSURE YOU TO PAY THE TAX ON IT BEFORE 31.03.2010. (ORIGINAL STATEMENT IS RECORDED IN GUJARATI, HOWEVE R, ITS ENGLISH TRANSLATION WAS SUPPLIED BY THE ASSESSEE) 12. FROM THE ABOVE, IT IS EVIDENT THAT, AS PER REVE NUE, THE NOTING IN THE DIARY IS THE DETAILS OF ON-MONEY RECEIVED FOR BOOKI NG OF THE FLAT IN ORNATE HOUSE PROJECT AND THE TOTAL OF SUCH RECEIPT IS RS.7 6,25,000/-. THE ASSESSEE WAS ASKED TO STATE HOW IT IS REFLECTED IN THE ASSES SEES BOOKS OF ACCOUNTS. IN RESPONSE TO WHICH THE ASSESSEE ADMITTED THE RECEIPT WAS ON-MONEY RELATING TO BOOKING IN THE PROJECT ORNATE HOUSE, WHICH THE A SSESSEE DECLARED AS UN- DISCLOSED INCOME OF THE ASSESSEE-FIRM FOR THE CURRE NT YEAR. THE SUM OF RS.76,25,000/- IS CREDITED IN THE ASSESSEES PROFIT AND LOSS ACCOUNT AS BUSINESS INCOME. THE ABOVE FACTS HAVE NOT BEEN DIS PUTED BY THE REVENUE. THUS, FROM THE ABOVE STATEMENT, IT IS EVIDENT THAT THE SUM OF RS.76,25,000/- ITA NO. 2966/AHD/2014 MY HOME DEVELOPERS VS. ITO AY 2010-11 8 FOUND RECORDED IN THE DIARY WAS ACCEPTED TO BE THE NOTING RELATING TO RECEIPT OF ON-MONEY FOR THE BOOKING OF FLAT IN ORNATE HOUSE BY THE REVENUE AUTHORITIES AS WELL AS THE ASSESSEE. NOW, THE REVE NUE IS TAXING THE SUM OF RS.76,25,000/-, BUT INSTEAD OF BUSINESS INCOME, TRE ATING THE SAME AS INCOME FROM OTHER SOURCES. WE DO NOT FIND ANY JUSTIFICATI ON FOR THE DIFFERENT STAND OF THE REVENUE AUTHORITIES - ONE AT THE TIME OF SUR VEY AND ANOTHER AT THE TIME OF REGULAR ASSESSMENT. DURING THE COURSE OF S URVEY, THE REVENUE AUTHORITIES THEMSELVES HAVE CONSIDERED THE RECEIPT NOTED IN THE DIARY TO BE ON-MONEY RECEIVED FOR BOOKING OF THE FLATS IN ORNAT E HOUSE. THE ASSESSEE ADMITTED THE SAME AND SURRENDERED THE SUM OF RS.76, 25,000/- AS ITS INCOME FROM ORNATE HOUSE PROJECT. ADMITTEDLY, THE ASSESSE E DID NOT HAVE ANY OTHER BUSINESS ACTIVITY DURING THE YEAR UNDER CONSI DERATION. CONSIDERING THE TOTALITY OF THESE FACTS AND THE ARGUMENTS OF BO TH THE SIDES, IN OUR OPINION, THERE WAS NO JUSTIFICATION FOR THE ASSESSI NG OFFICER TO HOLD THAT THE SUM OF RS.76,25,000/- WAS THE INCOME FROM OTHER SOU RCES AND NOT THE INCOME FROM ORNATE HOUSE PROJECT. WE FIND THAT SIMI LAR ISSUE IS CONSIDERED BY THE ITAT, AHMEDABAD BENCH IN THE CASE OF M/S. NI LKANTH DEVELOPERS VIDE ITA NO.2610/AHD/2014, WHEREIN THE ITAT AFTER C ONSIDERING THE FACTUAL AND LEGAL POSITION IN DETAIL HELD AS UNDER: - 13. IN THE INSTANT CASE, WE FIND THAT IT IS NOT IN DISPUTE THAT THE ONLY BUSINESS OF THE ASSESSEE WAS OF DEVELOPING AND BUIL DING OF HOUSING PROJECT STYLED NILKANTH HEIGHTS PROJECT. NO MATERIAL HAS BEEN BROUGHT BEFORE US TO SHOW THAT THE ASSESSEE WAS ENGAGED IN ANY OTHER ACT IVITY. FURTHER, DURING THE COURSE OF SURVEY, THE ASSESSEE HAS CATEGORICALLY ST ATED THAT THE AMOUNTS MENTIONED IN LOOSE DOCUMENTS MARKED AS BF-44 REPR ESENTS ADDITIONAL INCOME OF THE SAID BUSINESS. ONLY ON THE BASIS OF T HIS DECLARATION OF THE ASSESSEE, THE INCOME OF THE ASSESSEE OF RS.1,25,00, 000/- WAS ACCEPTED BY THE SURVEY OFFICIALS IN THE HANDS OF THE ASSESSEE AND W AS ASSESSED IN THE HANDS OF THE ASSESSEE. FURTHER, WE FIND THAT AS PER PROVISIO NS OF SECTION 80IB, DEDUCTION IS ALLOWABLE IN RESPECT OF INCOME DERIVED FROM THE ELIGIBLE HOUSING PROJECT. IN THE INSTANT CASE, IT IS NOT IN DISPUTE THAT THE BUSINESS OF THE ASSESSEE OF DEVELOPING AND BUILDING RESIDENTIAL PRO JECT IN THE NAME AND STYLE OF NILKANTH HEIGHTS PROJECT WAS ELIGIBLE HOUSING PROJECT U/S 80IB OF THE ITA NO. 2966/AHD/2014 MY HOME DEVELOPERS VS. ITO AY 2010-11 9 ACT. THEREFORE, IN VIEW OF THE FACTS AND CIRCUMSTANC ES OF THE CASE, STATUTORILY ALLOWABLE DEDUCTION TO THE ASSESSEE CANNOT BE DENIE D. WE, THEREFORE, ALLOW THE GROUND OF APPEAL OF THE ASSESSEE. 13. SINCE THE FACTS OF THE CASE UNDER APPEAL BEFORE US AND THE FACTS BEFORE THE ITAT, C BENCH, AHMEDABAD IN THE CASE OF M/S. NILKANTH DEVELOPERS ARE IDENTICAL, THE ABOVE DECISION WOULD BE SQUARELY APPLICABLE TO THE CASE OF THE ASSESSEE. IN VIEW OF TOTALITY OF ABOVE FACTS A ND DECISION OF ITAT, AHMEDABAD BENCH, WE HOLD THAT THE SUM OF RS.76,25,0 00/- WAS THE RECEIPT FROM DEVELOPING AND BUILDING OF HOUSING PROJECT IN THE NAME AND STYLE OF ORNATE HOUSE WHICH WAS ELIGIBLE FOR DEDUCTION U/S 80IB(10). WE, THEREFORE, DIRECT THE ASSESSING OFFICER TO ALLOW DE DUCTION U/S 80IB(10) ON THE SUM OF RS.76,25,000/- ALSO. ACCORDINGLY, THE G ROUND NO.2 OF THE ASSESSEES APPEAL IS ALLOWED. 14. IN THE RESULT, THE ASSESSEES APPEAL IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE COURT ON 7 TH AUGUST, 2015 AT AHMEDABAD. SD/- SD/- (KUL BHARAT) JUDICIAL MEMBER (G.D. AGRAWAL) VICE-PRESIDENT AHMEDABAD; DATED 07/08/2015 BIJU T., PS )* # $+ ,)+$ )* # $+ ,)+$ )* # $+ ,)+$ )* # $+ ,)+$/ COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. $ !- / CONCERNED CIT 4. !- ( ) / THE CIT(A) 5. +01 $ , , / DR, ITAT, AHMEDABAD 6. 13 4' / GUARD FILE . )*! )*! )*! )*! / BY ORDER, TRUE COPY 5 55 5/ // / 6 6 6 6 ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD