DCIT, New Delhi V. M/s. Tulip Infratech Pvt. Ltd., New Delhi

ITA 3843/DEL/2014

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 4280 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2010-2011
• Appeal Filed On: 02-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: DR SHALIL AGRAWAL
• Section: 143(3); 80IB

Judgement Text

ITA NO.3843/DEL/2014 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: D NEW DELHI BEFORE SHRI G.D. AGRAWAL, HONBLE PRESIDEN T & SHRI K.N. CHARY, JUDICIAL MEMBER ITA NO.-3843/DEL/2014 ( ASSESSMENT YEAR: 2010-11) DCIT CIRCLE-16(1) NEW DELHI VS TULIP INFRATECH PVT. LTD. 1201-1204, INDRAPRASTHA BUILDING, 21, BARAKHAMBA ROAD NEW DELHI PAN : AACCT3755E ASSESSEE BY DR. SHALIL AGRAWAL, & SHAILESH GUPTA, ADV. REVENUE BY S MT. RITU SHARMA , SR. DR ORDER PER K. NARSIMHA CHARRY, J.M. AGGRIEVED BY THE ORDER DATED 25.03.2014 IN APPEAL N O. 97/13-14, PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XIX, NEW DELHI (FOR SHORT CALLED LD. CIT( A). REVENUE PREFERRED THIS APPEAL ON THE FOLLOWING GROUNDS :- DATE OF HEARING 02.01.2018 DATE OF PRONOUNCEMENT 02.01.2018 ITA NO.3843/DEL/2014 2 LD. CIT(A) HAD ERRED IN DELETING ADDITION AMOUNTIN G TO RS. 5,40,90,763/- MADE BY AO ON ACCOUNT OF DEDUCTION U/ S 80IB OF I.T.ACT, 1961. 2. RELEVANT FACTS, IN BRIEF, ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF REAL ESTATE DEVELOPMENT AND THE MAI N SOURCE OF INCOME IS DERIVED FROM SALE OF FLATS CONSTRUCTED AN D DEVELOPED BY THEM UNDER VARIOUS PROJECT. APART FROM THIS SOURCE OF INCOME, THE ASSESSEE ALSO EARNS INCOME FROM VARIOUS INVESTMENTS , LIKE FIXED OR TERM DEPOSITS WITH BANKS, MUTUAL FUND INVESTMENT, M ADE OUT OF ITS SURPLUS CASH INFLOWS LYING IDLE IN BANK ACCOUNT S AT VARIOUS POINT IN TIMES. 3. FOR THE ASSESSMENT YEAR 2010-11, THE ASSESSEE FI LED THEIR RETURN OF INCOME ON 25.09.2010 DECLARING A TOTAL IN COME OF RS. 5,00,08,476/- AND DURING SCRUTINY U/S 143(3) OF THE ACT, LD. AO FOUND THAT THE ASSESSEE HAD CLAIMED DEDUCTION U/S 8 0IB(10) OF THE INCOME TAX ACT (FOR SHORT CALLED THE ACT) TO A TUNE OF RS. 5,40,90,763/-. HE FURTHER FOUND THAT ABOUT 14% OF T HE FLATS HAVE EXCEEDED THE LIMITS SPECIFIED IN THE STATUTE, U/S 8 0IB(10)(C) OF THE ACT. IT WAS SUBMITTED BEFORE THE AO THAT PROPORTION ATE BENEFIT MAY BE GIVEN U/S 80IB(10) OF THE ACT. HOWEVER, LD. AO HELD THAT ITA NO.3843/DEL/2014 3 UNDER PROVISO TO SECTION 80IB(10) OF THE ACT BENEFI T HAS TO BE GIVEN ONLY IF ALL THE CONDITIONS MENTIONED THEREIN ARE FULFILLED BY THE ASSESSEE AND PROPORTIONATE BENEFIT COULD NOT BE EXTENDED. ON THIS GROUND LD. AO DISALLOWED THE CLAIM OF THE ASSE SSEE AND ADDED BACK A SUM OF RS. 5,40,90,763/-. 4. THE ASSESSEE PREFERRED AN APPEAL TO THE LD. CIT( A). LD. CIT(A) IN HIS ORDER VIDE PARAGRAPH NO. 3 OBSERVED THAT A S IMILAR ISSUE HAD ARISEN IN RESPECT OF THE ASSESSMENT YEARS 2008- 09 ALSO AND AFTER MAKING ELABORATE DISCUSSION BY ORDER DATED 25 .03.2014 IN RESPECT OF ASSESSMENT YEAR 2008-09, THE ISSUE WAS D ECIDED IN FAVOUR OF THE ASSESSEE. WHILE FOLLOWING THE SAME, L D. CIT(A) ALLOWED THE APPEAL IN RESPECT OF THE ASSESSMENT YEA R 2010-11 ALSO DIRECTING THE AO TO DELETE THE ADDITION. HENCE, THE REVENUE PREFERRED THIS APPEAL. 5. LD. DR VEHEMENTLY PLACED RELIANCE ON THE ASSESSM ENT ORDER AND SUBMITTED THAT UNLESS AND UNTIL THE ASSESSEE FU LFILS ALL THE CONDITIONS UNDER SECTION 80IB(10) OF THE ACT, ASSES SEE IS NOT ENTITLED CLAIMED ANY DEDUCTION THEREUNDER, AS SUCH, THE ORDER OF THE LD. CIT(A) CANNOT BE SUSTAINED. PER CONTRA, IT IS THE SUBMISSION OF THE LD. AR THAT THE LD. CIT(A) RIGHTL Y FOLLOWED THE PROVISIONS U/S 80IB (10)(C) OF THE ACT AND AS A MA TTER OF FACT THE ITA NO.3843/DEL/2014 4 ORDERS OF THE LD. CIT(A) FOR THE ASSESSMENT YEARS 2 007-08 AND 2009-10, 2008-09 AND ARE UPHELD BY THE TRIBUNAL IN ITA NO. 2325/DEL/2010 AND 5045/DEL/2012 BY ORDER DATED 18.0 2.2016, IN ITA NO. 3842.DEL.2014 BY ORDER DATED 28.02.2017 AND IN ITA NO. 6139.DEL.2014 BY ORDER DATED 31.10.2017 RESPECT IVELY. HE SUBMITTED THAT SINCE THE TRIBUNAL HAS BEEN TAKING C ONSISTENT VIEW IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEARS 200 7-08, 2008- 09, 2009-10 AND 2011-12 THE ORDER FOR THE ASSESSMEN T YEAR 2010-11 ALSO FITS INTO THE SAME ORDER AND CANNOT BE INTERFERED WITH. 6. WE HAVE GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW AND ALSO THE ORDERS OF THE CO-ORDINATE BENCHES OF T HIS TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2007-08 , 2009-10 AND 2011-12. FACTS AND ISSUE IN ALL THESE MATTER AS WELL AS IN THE PRESENT APPEAL ARE IDENTICAL. THERE IS NO DISPUTE O N THIS ASPECT. WE, THEREFORE, WHILE RESPECTFULLY FOLLOWING THE CON SISTENT VIEW TAKEN BY THE CO-ORDINATE BENCHES, FIND THAT THE DIS ALLOWANCE OF THE PRORATE DEDUCTION U/S 80IB (10) OF THE ACT, CLA IMED BY THE ASSESSEE IS NOT SUSTAINABLE. WE, THEREFORE, FIND TH AT THE APPEAL IS DEVOID OF MERITS AND IS LIABLE TO BE DISMISSED. WE ORDER ACCORDINGLY. ITA NO.3843/DEL/2014 5 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 ND JANUARY, 2018. SD/- SD/- (G.D. AGRAWAL) (K. NARSIMHA CHAR RY) PRESIDENT JUDICIAL MEMBER DATED: 02.01.2018 *BINITA* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI ITA NO.3843/DEL/2014 6 DRAFT DICTATED ON 02.01.2018 DRAFT PLACED BEFORE AUTHOR 02.01.2018 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. APPROVED DRAFT COMES TO THE SR.PS/PS 02.01.2018 KEPT FOR PRONOUNCEMENT ON 02.01.2018 FILE SENT TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.