Assistant Commissioner of Income Tax (Central)-II, Bhopal, Bhopal V. M/s Agrawal Construction Co., Bhopal

ITA 590/Ind/2017

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 9647 (ITAT-INDORE)
• Duration Of Justice: 4 year(s) 4 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-01-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 27-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Loose papers; Document seized; Opportunity of cross examination; Retrospective amendment; Competent authority; Documents seized; TDS
• Section: 132; 10; 143(3); 153A; 234B; 80IB; 205; 43; 13

Judgement Text

Agrawal Construction (SS)233 of 2017 and others 1 अपीलȣय अͬधकरण, इÛदौर Ûयायपीठ, इÛदौर IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI MANISH BORAD,ACCOUNTANT MEMBER AND MIS MADHUMITA ROY, JUDICIAL MEMBER Virtual Hearing IT(SS)A Nos.233 to 238/Ind/2017 Assessment Year:2006-07 to 2011-12 M/s. Agrawal Construction Co. Bhopal बनाम/ Vs. ACIT, 1(1) Bhopal (Appellant) (Respondent ) P.A. No.AAEFA8225H IT(SS)A No.224 to 226/Ind/2017 Assessment Year:2009-10 to 2011-12 ACIT, 1(1) Bhopal बनाम/ Vs. M/s. Agrawal Construction Co. Bhopal (Appellant) (Respondent ) P.A. No.AAEFA8225H ITA No.596/Ind/2017 Assessment Year: 2012-13 Agrawal Construction (SS)233 of 2017 and others 2 M/s. Agrawal Construction Co. Bhopal बनाम/ Vs. ACIT, 1(1) Bhopal (Appellant) (Respondent ) P.A. No.AAEFA8225H ITA No.590/Ind/2017 Assessment Year: 2012-13 ACIT, 1(1) Bhopal बनाम/ Vs. M/s. Agrawal Construction Co. Bhopal (Appellant) (Respondent ) P.A. No.AAEFA8225H Revenue by Shri P.K. Mitra, CIT-DR Respondent by Shri S.S. Deshpande AR Date of Hearing: 09.11.2021 Date of Pronouncement: 27.01.2022 आदेश / O R D E R PER MANISH BORAD: The above captioned appeals at the instance of Assessee and Appeals by Revenue are directed against the order of Ld. Commissioner of Income Tax(Appeals), (in short ‘CIT(A)’)-3 Bhopal dated 30.06.2017, which are arising out of the order u/s 143(3) of the Income Tax Act 1961(In short the ‘Act’) dated 31.01.2014, framed by DCIT-Central- Bhopal. 2. As the issues raised in these appeals are common and relate to same assessee, at the request of all the parties all the appeals Agrawal Construction (SS)233 of 2017 and others 3 were heard together and are being disposed of by this common order for sake of convenience and brevity. Assessee has raised following grounds of appeal for A.Y. 2006-07 : (1) That on the facts & in the circumstances of the case and in law, on the date of search, no assessment or re-assessment proceedings of the subject year was pending and, therefore, in absence of any incriminating material, relating to this year, found in the search, suggesting escaped income, the assessment is bad in law and without jurisdiction, hence the assessment may be cancelled and the following additions made/sustained by the learned lower authorities be kindly quashed :- S.No. Particulars of addition Amount 1 Disallowance of deduction claimed u/s 80IB(10) 3,33,72,475 2 Disallowance for the alleged bogus payments to sub-contractors sustained by the learned CIT(A) as per page 45 of her order 2,06,252 3 Disallowance for the alleged bogus payments to sub-contractors sustained by the learned CIT(A) as per page 52/53 of her order (10% of total payment amounting to Rs.34,71,745) 3,47,174 (2) That on the facts & in the circumstances of the case and in law, the learned lower authorities erred and not justified in not allowing the deduction, claimed at Rs. 3,33,72,475 u/s.80IB(lO), in proceedings u/s.153A, when the said deduction was already allowed by the Appellate Tribunal vide order dated 30.07.2015 in ITA No. 341 & 342/lnd/2012 against regular assessment. The said claim of the assessee of Rs. 3,33,72,475 be kindly allowed. (3) That on the facts & in the circumstances of the case and in law, as the assessee satisfied all the prescribed conditions laid down in section 8018(10), hence it is fully eligible for the said deduction claimed u/s.80IB(10) at Rs. 3,33,72,475 which be kindly allowed. (4) That on the facts & in the circumstances of the case and in law, the eligibility of deduction claimed u/s.80IB(10) be kindly adjudicated with reference to the law prevailed on the date of approval of the project. (5) That on the facts & in the circumstances of the case and in law, the finding of the learned lower authorities that the payments to sub-contractor are Agrawal Construction (SS)233 of 2017 and others 4 bogus are wholly wrong, unlawful and opposed to facts, hence be quashed and that having regard to all possible evidences and explanation furnished before the learned lower authorities, it be held that all payments to the petty contractors for the execution of the construction works are genuine and true and that they are not bogus and, therefore, the additions sustained at Rs. 2,06,252 & Rs. 3,47,174 are unjustified and be kindly deleted. (6) That on the facts & in the circumstances of the case and in law, the statement of three persons relied upon by the learned A.O. for making the disallowance with respect to payment to sub-contractors are inadmissible piece of evidence and unsustainable in law as the same were recorded beyond the back of the assessee and no opportunity of cross examination was allowed, hence the additions made at Rs. 2,06,252 & Rs. 3,47,174 are unsustainable in law and not justified and hence be deleted. (7) That on the facts & in the circumstances of the case and in law, no cogent evidence have been found relating to this year, suggesting that the assessee has claimed bogus sub-contractors expenses in the profit & loss account, hence in absence of such cogent evidences, the addition made at Rs. 2,06,212 & Rs. 3,47,174 are unlawful and unjustified and, therefore, the said additions be deleted. (8) That on the facts & in the circumstances of the case and in law, without prejudice to the assessee's contentions that there are no bogus payments claimed in profit & loss account even if, the additions for the alleged bogus payment of sub-contractors are sustained, then the sustained additions would enhance the profit of the project and such enhanced profit is also eligible for deduction u/s.80lB( 10), hence in such event, the same be kindly also allowed u/s.80IB(lO). (9) That on the facts & in the circumstances of the case and in law, the levy of interest u/s. 234A, 234B & 234C are wholly unlawful and contrary to the provisions of the Act, hence be cancelled. Likewise Assessment Year 2006-07 as above, the assessee has raised similar grounds of appeals for A.Y. 2007-08 to 2012-13 except difference of figures. Revenue has raised following grounds of appeal for A.Y. 2012-13 : 1.On facts and circumstances of the case the Ld. CIT(A) erred in deleting the addition made by the AO of Rs.5,91,675/- out of total addition of Rs.16,25,739/- on account of disallowance of bogus sub-contractor expenses without appreciating the facts and evidences brought into light by the AO during Assessment Proceedings. 2.The appellant reserves his right to add, amend or alter the grounds of appeal on or before the date, the appeal is finally heard for disposal Agrawal Construction (SS)233 of 2017 and others 5 Revenue has raised following grounds of appeal for A.Y. 2009-10: 1.On facts and circumstances of the case the Ld. CIT(A) erred in deleting the addition made by the AO of Rs.3,07,98,520/- out of total addition of Rs.16,25,739/- on account of disallowance of bogus sub-contractor expenses without appreciating the facts and evidences brought into light by the AO during Assessment Proceedings. 2. On the facts and circumstances of the case the ld. CIT(A) erred in deleting the addition made by the AO of Rs.97,07,069/- out of total addition of Rs.1,16,20,938/- on account of disallowance of bogus sub-contractor expenses without appreciating the facts and evidences brought into light by the AO during Assessment proceedings. 3. The appellant reserves his right to add, amend or alter the grounds of appeal on or before the date, the appeal is finally heard for disposal 3. The brief facts as culled out from the orders of the Revenue Authorities are that a search u/s 132 of the IT Act, 1961 was conducted on the business premises of the assessee firm as well as on the premises of other related concerns / business associates on 21/10/2011. Since, the various concerns and individuals were inter connected and have business associations, they had been put together under one common name “Sagar Group”. The assessee is a partnership firm and had shown income from construction of housing project. Shri Sanjeev Agrawal and Smt. Kiran Agrawal are partners of this firm. The assessee firm is a member of Sagar group of Bhopal. The group is engaged in the business to act as a real estate developer and builder and a civil contractor etc. The group is also running various educational institutions at Bhopal under Agrawal Construction (SS)233 of 2017 and others 6 the various societies. The flagship concerns of the group are Agrawal Construction Company, Agrawal Builders etc. which are engaged in the business of contractor. The main persons of the group are Shri. Sudheer Agrawal and Shri. Sanjeev Agrawal. Consequently, notices u/s 153A of the I.T. Act, dated 09.10.2012 were issued to file the returns of income for A.Ys. 2006-07 to 2011-12. In response to notices u/s 153A the assessee had filed returns for A.Ys. 2006-07 to 2011-12 on 31/01/2013 & 12/08/2013. The details of returns of income for A.Ys 2006-07 to 2012- 13 are as under:- A.Y. Date of filing of return u/s 139(1) Returned income (In Rs.) Date of filing of return by the assessee against notice u/s 153A Declared in Return u/s 153A Income (In Rs.) Additional income offered by the assessee (In Rs.) 2006-07 31/10/2006 Nil 12/08/2013 Nil Nil 2007-08 30/10/2007 Nil 31/01/2013 Nil Nil 2008-09 09/09/2008 Nil 31/01/2013 Nil Nil 2009-10 18/09/2009 87,97,950/- 31/01/2013 87,97,950/ Nil 2010-11 26/09/2010 73,67,450/- 31/01/2013 73,67,450/ - Nil 2011-12 27/09/2011 32,16,990/- 12/08/2013 32,16,990/ - Nil 4. From the perusal of grounds of appeals, we find that only two issues i.e. addition relating to deduction u/s 80IB(10) and addition regarding Agrawal Construction (SS)233 of 2017 and others 7 alleged bogus payments to sub-contractors are involved in the present groups appeals. Therefore, we decide both the issues as under: Issue No.1 – Deduction u/s 80IB(10) 5. Facts of this issue as culled out from the orders of the Revenue Authorities are that return of income for assessment years 2006-07 to 2008-09 after claiming deduction u/s 80 IB (10) of the I.T Act were filed as below: S.No Assessment year Date of filing of Return Income Declared/Return 1. 2006-07 31/10/2006 Rs. NIL 2. 2007-08 30/10/2007 Rs. NIL 3. 2008-09 09/09/2008 Rs. NIL During the course of assessment proceedings, the assessee was required to prove with material evidence whether the housing projects of the assesse fulfilled the conditions u/s 80IB(10) of the IT Act regarding completion of the housing project on or before 31.03.2008 as the project was approved by the local authority before 01.04.2004 or if the project was approved on or after 1 st day of April 2004, within four years from the end of the financial year in which the housing project was approved by the local authorities. In view of the facts as found during assessment proceedings that the Agrawal Construction (SS)233 of 2017 and others 8 approved housing project was approved on 03.05.2000 and was not completed on or before the prescribe date i.e. 31.03.2008 the claim of the appellant for deduction u/s 80IB(10) of the IT Act for assessment years 2006-07, 2007-08 and 2008-09 was found to be incorrect and rightly disallowed by the A.O as the Assessing Officer did not accept the explanation offered and the claim of deduction u/s 80 IB (10) was held to be inadmissible. In this background, the claim of deduction u/s 80IB(10) for assessment year 2006-07, 2007-08 and 2008-09 was disallowed as under. S.No Assessment Year Amount of deduction withdrawn/disallowed 1. 2006-07 Rs. 3,33,72,475/- 2. 2007-08 Rs, 79,65,722/- 3. 2008-09 Rs. 1,76,81,161/- 6. Before learned CIT(A), written submissions were filed by the assesse and reliance was also been placed on a plethora of judgments to support the assessee’s case regarding claim of deduction u/s 80 IB (10) for A.Ys 2006-07, 2007-08 & 2008-09. However, the learned CIT(A) confirmed the action of the Assessing Officer observing as under: Agrawal Construction (SS)233 of 2017 and others 9 “I have carefully considered the matrix and facts of the case as also the material placed on record and the various decisions cited by the learned AR. As may be seen from the foregoing discussion of facts, since the approved housing project could not be said to have been completed on or before the prescribed date i.e. 31.03.2008, as is the mandatory requirement. In the appellant case the certificate regarding completion of the project was not obtained prior to 31.03.2008 and was obtained on 05/07/2010. Therefore, the claim of the appellant for deduction u/s 80 IB (10) of the Act for assessment years 2006-07, 2007- 08 and 2008-09 was found to be incorrect. Since the appellant has not fulfilled the condition laid down in section 80IB(10) of the Act its claim was disallowed. In CIT v Global reality (2015) 280 CTR (MP) 558, it has been held that:, “(a) at the relevant time was, that the development and construction of the housing project had commenced or commences on or after 01.10.1998.This stipulation has been modified by the amended clause (a).As per amended clause (a), with which we are concerned, the housing project approved before 31.03.2007 by a Local Authority would receive the benefit of deduction – provided the I.T.A.Nos.40/2012, 36/2012 & 35/2012 16 development and construction of the housing project has commenced or commences on or after 01.10.1998 and is completed within specified time. In that, housing projects approved by the Local Authority before 01.04.2004 must be completed before 31.03.2008; and the housing project approved on or after 01.04.2004 but before 31.03.2007 should be completed within four years from the end of the financial year in which the housing project was approved by the Local Authority. The amendment further postulates that, the “date of completion of construction” of the housing project shall be reckoned on the basis of “the date on which” the completion certificate in respect of such housing project “is issued” by the Local Authority We accordingly hold that issuance of completion certificate, after the cut off date by the Local Authority but, mentioning the date of completion of project before the cut off date, does not fulfill the condition specified in clause (a) of Section 80 IB (10) read with Explanation (ii) thereunder. We reject the argument of the assessee that the effect of amended clause (a) of sub- Section 10 of Section 80IB, which has come into force with effect from 1st April, 2005, has retrospective effect or that it is unjust in any manner or incapable of compliance at all. Similarly, the requirement of securing completion certificate issued by the Local Authority before the cut off date is not directory, in view of the express provision in Section 80IB(10)(a) and the Explanation Agrawal Construction (SS)233 of 2017 and others 10 (ii) thereunder. The completion certificate granted by the Local Authority must bear the date of having been issued before the cut off date. That takes us to the argument of the assessee that the stipulation in Section 80IB(10)(a) of completion certificate issued by the Local Authority before the cut off date, cannot be applied in the case of assessee following the work in progress accounting method. In our opinion, the provision in the form of Section 80IB(10)(a), applies uniformly to all the assessees – be it following work in progress accounting method or otherwise. The benefit of deduction under this provision can be availed by the assessee following the work in progress accounting method, provided he has complied with the stipulation of having produced completion certificate issued by the Local Authority before the cut off date, as may be applicable in his case. In other words, if the housing project was approved by the Local Authority before 1st April, 2004, he must submit completion certificate issued by the Authority having been issued before the 31st March, 2008. Whereas, in the case of housing project approved on or after 1st April, 2004, the assessee can avail of the benefit provided completion certificate issued by the Local Authority is within four years from the end of the financial year in which the concerned housing project was approved by the Local Authority. If this condition is not fulfilled, the assessee who maintains work in progress accounting method and has claimed deduction under Section 80IB(10)(a) must suffer the consequence of disallowance or withdrawal of the benefit claimed by him on that count”. The above judgment of the jurisdictional High Court has been followed in the case of Ajay Sharma v ACIT (2016) 28 ITJ 261 by ITAT Indore bench, where the claim u/s 80 IB (10) of the assesse was rejected on the ground that the assesse did not complete the construction within the time limit and did not get the completion certificate from the local authority. 1.1 From the facts and circumstances cited above and the decision of the jurisdictional High Court in the case of CIT v Global reality (2015) 280 CTR (MP) 558, I am of the view that the A.O was justified in holding that the appellant assessee has not completed the said project in due time as specified under section 80 IB (10) of the Act. In the appellant’s case the facts show that it had not fulfilled the conditions laid down in section 80 IB (10) of the Act, yet preferred to make the claim of deduction under the section. The appellant has made a wrong claim of deduction u/s 80 IB (10) wherein, the completion certificate from the local authority was of a date later than 31.03.2008. Therefore, taking in to account the totality of the facts and circumstances, I am of the view that the A.O. was justified in rejecting Agrawal Construction (SS)233 of 2017 and others 11 the claim of the appellant claiming deduction u/s 80IB (10) of the Act and the additions as mentioned below are hereby confirmed. S.No Assessment Year Disallowance on account of 80IB(10). 1 2006-07 Rs. 3,33,72,475/- 2 2007-08 Rs. 79,65,722/- 3 2008-09 Rs. 1,76,81,161/- 7. Facts of issue of deduction u/s 80IB(10) as culled out from the orders of Revenue Authorities with regard to Assessment Years 2009-10 to 2012-13 are that returns of income for assessment years after claiming deduction u/s 80IB(10) of the I.T. Act were filed as under: S.No Assessment year Date of filing of Return Income Declared/Return 1. 2009-10 18/09/2009 Rs. 87,97,950/- 2. 2010-11 26/09/2010 Rs. 73,67,450/- 3. 2011-12 27/09/2011 Rs. 32,16,990/- 4. 2012-13 02/09/2013 Rs. 31,97,500/- During the course of assessment proceedings, the assessee was required to prove with material evidence whether the housing projects of the assessee fulfilled the conditions u/s 80IB(10) of the IT Act regarding permission certificate, completion certificate. If the project was approved by the local authority before 01.04.2004 the Agrawal Construction (SS)233 of 2017 and others 12 completion certificate is to be obtained on or before 31.03.2008, if the project was approved on or after 01.04.2004 the completion certificate should be obtained within a period of four years from the end of financial year in which the project was approved and if the project was approved on or after 01.04.2005 the completion certificate is to be obtained within a period of five years form the end of the financial year in which the project was approved by the local authorities. The Assessing Officer did not accept the explanation as offered by the assessee. The Assessing Officer held that the facts and circumstances of the case clearly warranted the finding that the assessee is not entitled for claiming deduction u/s 80IB (10) of the Act as mentioned below:- S.No Assessment Year Amount of deduction disallowed 1. 2009-10 Rs. 3,07,98,520/- 2. 2010-11 Rs. 2,99,76,155/- 3. 2011-12 Rs. 5,85,94,414/- 8. Before learned CIT(A), written submissions were filed by the assesse and reliance was also been placed on a plethora of judgments to support the assessee’s case regarding claim of deduction u/s 80 IB Agrawal Construction (SS)233 of 2017 and others 13 (10) for A.Ys 2009-10, 2010-11 & 2011-12 and learned CIT(A) considering the same deleted the additions observing as under: - “I have carefully considered the facts and circumstances of the case as also the material placed on record, the various decisions cited by the learned AR and also perused the case record. As may be seen from the foregoing discussion of facts, since the housing project is in the name of Sagar Avenue-I was approved from the local authorities on 07/03/2006 vide permission no NC1163-02009-0306, on 02/05/2006 vide permission no NC6311-195-52006 and on 30/03/2007 vide permission no NC6311-2244-42007 and the completion certificate has been obtained vide letter no 312 and 313 on 21/05/2010 from Municipal Corporation Bhopal which are placed on record. Since the project was approved after 01.04.2005 the completion certificate for the same was to be obtained within five years. In the case of appellant assessee the same was duly obtained in time. Therefore, the claim of the appellant for deduction u/s 80 IB (10) of the Act for assessment years 2009-10, 2010-11, 2011-12 & 2012-13 was found to be correct. Since the appellant has fulfilled the condition laid down in section 80IB (10) of the Act its claim is allowed, wherein if the certificate of completion of project is obtained of a date prior to the cutoff date the deduction is admissible. 2.2 From the facts and circumstances, I am of the view that the A.O was not justified in holding that the appellant Ossesse has committed default in furnishing inaccurate particulars of income by claiming deduction under section 80 IB (10) of the Act. In the appellant’s case the facts show that he had fulfilled the conditions laid down in section 80 IB (10) of the Act, and preferred to make the claim of deduction under the section. The appellant has made claim of deduction u/s 80 IB (10) wherein, the permission certificate and completion certificate from the local authority have been obtained within cutoff date which is the most basis requirement to claim deduction u/s 80IB (10). 2.3 Therefore, taking into account the totality of the facts and circumstances and material placed on record. I am of the view that the A.O. was not justified in disallowing the deduction claimed by the appellant u/s 80IB (10) and the additions as mentioned below on this account are hereby deleted. S.No Assessment Year Amount of deduction withdrawn/disallo wed 1. 2009-10 Rs. 3,07,98,520/- 2. 2010-11 Rs. 2,99,76,155/- 3. 2011-12 Rs. 5,85,94,414/- 9. Being aggrieved, for the Assessment Years 2006-07 to 2008- 09, the assessee is in appeals whereas for the Assessment Years 2009-10 to 2012-13, the Revenue is in appeals before this Tribunal. Before us, the learned Counsel for the assessee submitted that the disallowance u/s 80-IB(10) for the assessment years 2006-07 to 2008-09 is uncalled for as the Hon’ble Tribunal had allowed the appeals of the assessee and the matter is pending before the Hon’ble M.P. High Court. In the case of Global Reality, the matter is pending before the Hon’ble Supreme Court. Learned Counsel for the assesse, in the appeals for the Assessment Years 2009-10 to 2011-12, relied upon the order of the learned CIT(A). 10. Per contra, ld. CIT-DR relied upon the order of the Revenue 15 Authorities for the Assessment Years 2006-07 to 2008-09 whereas for the Assessment Years 2009-10 to 2011-12, the ld. CIT-DR relied on the order of the Assessing Officer. 11. We have considered rival contentions and gone through the material available on record. We find that the assessee is a partnership firm doing the business of developing and selling the residential houses. The firm had developed and sold three residential housing projects during the previous years relevant to the assessment years 2006-07 to 2011-12, namely “Sagar Estates” situated at Village Damkheda, Ayodhya Bye Pass Road, Bhopal, “Sagar Green Estates” situated at Village Damkheda, Bhopal and “Sagar Avenue” Nareli Sankari, Bhopal. The assessee claimed the deduction u/s 80-IB(10) for the profits earned during these years. The detailed chart of the projects is summarized as under: - Name of Project Sagar Estates Sagar Green Estates Sagar Avenue Location of the Project Damkheda , Ayodhya Bye Pass Road ,Bhopal Damkheda , Ayodhya Bye Pass Road ,Bhopal Narela Sankari, Bhopal Area 7.03 Acres 1.07 Acres 8.99 Acres 16 12. We find that initially the claim u/s 80-IB was disallowed for the A.Y. 2005-06 to 2008-09 on three grounds. Firstly, the completion certificate was not obtained in time, secondly, two of the houses exceeded the limits prescribed and thirdly, the assessee is a TNCP Approval No. 1713 2960/L.P113/29 1584-1656-594 Date of TNCP Approval 03.05.2000 16.12.2004 17.05.2006 29.03.2007 30.09.2009 BMC Approval 1165-02091-0700 1163-01958- 0305 NC1163-02009-0306 NC6311-2244-42007 NC6311-953-112008 NC6113-903-82010 Date of BMC Approval 05.07.2000 13.06.2002 15.03.2005 07.03.2006 30.03.2007 10.11.2008 31.07.2010 Number of units 176 28 181 Commencing Year of the Project F.Y. 2000-01 2004-05 2005-06 Completion Year of the Project F.Y. (As per various proof submitted before lower authorities) 2007-08 2008-09 2010-11 Completion Certificate Obtained on 05.07.2010 31.03.2009 (Under Prescribed Limit) 21.05.2010 17 contractor and not a developer since in some cases, the lands are sold or partly constructed area is sold. The learned CIT(A) noted the assessee’s contention that the assessee is a developer and not merely a contractor and the project is approved as a whole. However, the learned CIT(A) upheld the disallowances on the ground that two units exceeded the area which is prescribed u/s 80-IB and the assessee has not obtained the completion certificate within time for Sagar Estate project. Thus, assessee went into appeals before the Indore Tribunal and the Indore Bench of Tribunal allowed the appeals of the assessee after relying on various judgments of the Hon’ble High Courts specially Delhi High Court, Bombay High Court and Karnataka High Court. Against which, the Revenue is in appeals before the Hon’ble MP High Court and the matter is pending till date. 13. Subsequently, a search was conducted at the business premises of the assessee’s group on 21.10.2011. During the course of the search various loose papers were seized. In response to notices u/s 153A the assessee filed the returns declaring the NIL income for the assessment years 2006-07 to 2008-09 after claiming the 18 deduction u/s 80-IB(10). For the assessment years 2009-10 to 2012- 13 the returns were filed declaring the income which was taxable and claiming the deduction u/s 80-IB for the projects of Sagar Avenue which is the eligible project. We find that for the issue of assessee’s claim u/s 80IB(10) of the Act for A.Y.2006-07 to 2008-09, vide ITANo.341 & 342/Ind/2012 for A.Y.2005-06 & 2006-07, ITANo.735 & 736/Ind/2014 for A.Y.2007-08 & 2008-09 and others order dated 30.07.2015 passed by Indore Bench of Tribunal, the assessee succeeded as the disallowance made u/s. 80IB(10) of the Act by the lower authorities was deleted and assessee’s claim u/s 80IB(10) of the Act was allowed by this Tribunal after examining the facts of the case and also following the settled judicial pronouncements. Relevant extract of the order of this Tribunal are reproduced below: 12. We have heard both the sides. We have also considered the various case laws relied upon by both sides. One of the grounds on which the assessee has been denied deduction u/s 80IB is with regard to measurement of two units taken during the assessment proceedings for the assessment year 2004-05 wherein the definition of built up area by the Departmental Valuer has been taken by applying the provisions of section 80IB(14) of the Act. This appeal for the assessment year 2004-05 reached up to the level of ITAT wherein the Bench has concluded that the appellant has not built up the unit exceeding 1500 sq. ft. The built up area exceeded for the assessment year 2004- 05 was due to projection and mumtty. Various Courts have held that the definition of “Built up Area” in the newly inserted provisions of section 80IB(14)(a) shall be applicable w.e.f. 1.4.2005. Prior to this definition in the Income Tax Act w.e.f. 1.4.2005, the built 19 up area has to be calculated as per the local municipal laws. The “Built up Area” has been defined in this provision as under :- “80IB(14)(a) “built up area” means the inner measurements of the residential unit at the floor level, including the projections and balconies, as increased by the thickness of the walls but does not include the common areas shared with other residential units.” In view of various decisions of Courts, these provisions shall not be applicable to the projects sanctioned prior to 1.4.2005. The measurements were also taken during the assessment proceedings for the assessment year 2006-07 where the built up area of units was found within the limit of 1500 sq. ft. We would like to state that the assessee has been granted completion certificate as per the sanctioned plan and no deviations or compounding fee have been reported/levied. Further, we would also like to state that those conditions can be applied to the housing projects which were on the statute book on the date when the housing projects were approved by local authority. In other words, in case the housing projects were approved by the local authority prior to 31.3.2004 then the newly inserted definition of “Built up Area” in section 80(1B)(14a) shall not be applicable to such housing projects. The housing projects approved by the local authority prior to 31.3.2004 only required to fulfil only following three conditions – (i) The development and construction of the housing project was commenced on or after October 1, 1998 after approval of local authority. (ii) the project was on a plot of land which has a minimum area of 1 acres (iii) The residential unit has a maximum built up area of 1000 sq. ft. where such residential unit was situated within the city of Delhi or Mumbai or within 25 kms of Municipal limits of these cities and 1500 sq. ft. at any other place. Only these conditions were required to be complied with. An assessee cannot be asked to comply with the conditions which were not a part of the statute when the housing project was approved and more so when such conditions are inextricably linked with the approval granted to the housing project by the local authority under its own rules and regulations. If the condition of sub-section (14)(a) of section 80IB is held applicable to the projects approved prior to 1.4.2005 then the assessee has to necessarily seek for a modified plan otherwise the assessee will not be eligible for exemption u/s 80IB(10) and when the assessee obtained valid approval and constructed the building in all respect prior to Ist April, 2005, then also if the provisions are applied retrospectively, the assessee would not be entitled to benefit of tax exemption. Such an interpretation not only would be absurd but also lead to disastrous consequences. Therefore, it cannot be the intention 20 of the legislature while bringing the definition of built up area in the statute. We would like to mention that such beneficial provisions in the Act have been brought into to bring in investment and to encourage infra-structure development of middle income housing projects. If these amended provisions are made effective retrospectively then it will negate the object of the provision. If certain areas are not considered as part of built up area as per Municipal Act then the definition of built up area that is introduced in the Act at later stage shall not be substituted to the project approved prior to that date. It is a settled law that the Court has to harmonize the provision and interpret the same in a manner to achieve the object of legislature than to distress the said object. Therefore, in our considered view, the definition of ‘Built up area’ as inserted by subsection (14)(a) to section 80IB of the Act by the Finance Act (No. 2) 2004, cannot be applied retrospectively and if this definition is not applied, the measurement of constructed unit comes within the limit as provided in the Act. A similar view has been held by the Hon'ble Gujarat High Court in the case of Manan Corporation; 356 ITR 44. Held as under :- “Held, that there was no criteria for making commercial construction prior to the amendment of the section and the plans were approved as housing projects by the local authority for both the projects of the assessee. Permission for construction of shops had been allowed by the local authority in accordance with rules and regulations, keeping in mind presumably the requirement of large townships. However, the projects essentially remained residential housing projects and that was also quiten apparent from the certificates issued by the local authority and, therefore, neither the absence of such provision of commercial shops nor on account of such commercial construction having exceeded the area contemplated in the prospective amendment could the deduction be denied to the assessee whose plans were sanctioned according to the prevalent rules. The assessee was entitled to deduction under section 80IB(10)” Similar view has been taken by the Hon'ble Karnatake High Court in the case of CIT vs. GR Developers; 353 ITR 1 wherein the Hon'ble High Court has held as under :- “ The definition of built up area, as inserted in sub-section (14)(a) of section 80IB by the Finance (No. 2) Act of 2004, which came into effect from April 1, 2005, cannot be held to be retrospective. It applies only to such housing projects, which are approved subsequent to April 1, 2005. The housing project contemplated under sub-section (10) of section 80IB includes commercial establishments or shops also. Now, by way of an amendment, an attempt is made to restrict the size of the shops or commercial establishments. Therefore, necessarily the provision has to be read prospectively and not retrospectively. As is clear from the amendment, this provision came into effect only from the day the provision was substituted. Therefore, it cannot be 21 retrospective.Held, dismissing the appeal, (i) that the assessee obtained approval for building housing project on June 14, 2002 and had built 84 flats in an area which was in excess of one acre of land. The construction was completed within the period stipulated. According to the assessee, 84 flats were within 1500 sq. ft. The material on record disclosed that a head room was constructed. The head room was not included in the sale deed. The local authority after construction of the building, inspected the building and granted the occupancy certificate. Therefore, the construction put up by the assessee prima facie could be said to be in accordance with the sanctioned plan. If after issue of the occupancy certificate and after sale of these residential flats, the owners of the flats on the top floor decided to put up a head room and engaged the very same contractor and the engineer may have put up identical structures, it could not be said that the assessee had put up the construction and thus contravened the requirement of section 80IB. The material on record did not disclose that the assessee put up the construction prior to the sale of those flats and excluded the construction in the sale deed with an intention of getting the benefit of section 80IB(10). In so far as balconies were concerned, prior to april 1, 2005 the area covered by them had to be excluded in calculating the built up area. As the housing project was approved on June 14, 2002 and in the plan, all these balconies were shown and excluding those balconies, the construction put up was admittedly less than 1500 sq. ft. After April 1, 2005, the authorities could not add the balcony area to the built up area and deny the benefit to the assessee. Therefore, as the material on record disclosed that all the 84 or 83 flats constructed were less than the 1500 sq. ft., the assessee could not be denied the benefit and taxed on the ground that they exceed 1500 sq. ft. (ii) That the interpretation placed by the Assessing Officer and the Appellate Commissioner, that the approval was for a housing-cum-commercial complex and, therefore,the assessee was not entitled to the benefit of section 80IB(10) was unwarranted.”The other objection of the revenue is with regard not obtaining the completion certificate. The assessee has applied for completion certificate well in time. The assessee submitted various evidences including the possession certificate to the purchasers and the evidence regarding occupancy of the units in support of the physical completion of the project. The assessee has applied in time for obtaining the completion certificate. Bhopal Municipal Corporation has approved the project of the assessee which is the competent authority in view of M.P. Nagar Palika Nigam Adhiniyam, 1956. Section 301 of the same Act speaks about completion certificate and the relevant portion is reproduced hereunder :- “301. Completion certificate and permission to occupy or use – (1) Every person who – (i) Erects or re-erects any building; or (ii) Makes 22 any material external alteration in or addition to any existing building : or (iii) Constructs or re-constructs any projecting portion of a building which the Commissioner is empowered is empowered under section 305 require to be set bask or is empowered to give permission to construct or re-construct. shall within one month of the completion of the work deliver to the Commissioner at his office a notice in writing of such completion and shall give to the Commissioner all necessary facilities for the inspection of such work. (2) Within seven days after the receipt of the said notice the Commissioner shall depute an officer to commence the inspection of such work. (3) Within seven days from the date of commencement of such inspection the Commissioner shall – (a) give permission for the occupation of the building erected or for the use of the part of the building re-erected; or (b) refuse such permission in case such erection, construction or re-construction is in contravention of any provision of this Act or any rule or byelaw made thereunder or any other enactment for the time being in force. (4) No person shall occupy or permit to be occupied any such building or use or permit to be used any part affected by the re-erection of such building – (a) Until the permission referred to in clause (a) of sub- section (3) has been granted in the manner prescribed by byelaws; (b) Unless the Commissioner has failed for fifteen days after the receipt of notice of completion to intimate his refusal to grant the said permission.” 13. As per the above provisions, wherever a building is erected within one month of the completion of the work, the person was under obligation to deliver to the office of the Commissioner a notice in writing of such completion and submit all necessary facilities for inspection of such completed work. Thereafter within 7 days of the receipt of such notice from the person, the Commissioner shall depute an Officer to commence the inspection of such work. Within 7 days from the date of commencement of such inspection, the Commissioner shall give permission for occupation of the building erected or refuse such permission in case such erection is in contravention to any provision of the Act or any rule or any byelaws made under any other enactment for the time being in force. No person was allowed to occupy or permit to occupy such building until the permission has been granted in the manner prescribed by byelaws. However, there is a provision that unless the Commissioner has failed for 15 days after the receipt of the notice of completion, intimate his refusal to grant the said permission. The person shall not occupy the building. Thus, when the Commissioner has not acted upon for 15 days on the application of the assessee regarding completion of the project then the persons can occupy such building. In the assessee’s case the assessee has submitted the application well in time and the Commissioner has failed for more than 15 days after the receipt of the 23 notice of completion to intimate the assessee regarding refusal to grant the permission. The assessee otherwise has also submitted various documents which establish that the project was physically complete as per the approved Building plan prior to the statutory period. In the case of CIT vs. CHD Developers Ltd.; 362 ITR 177 (Del) the Hon'ble Delhi High Court has held as under :- “Section 80-IB(10) of the Income-tax Act, 1961, before substitution by the Finance (No. 2)Act, 2004 allowed a hundred per cent deduction of the profits in the case of an undertaking developing and building housing projects approved before March 31, 2005, by a local authority. By the Finance (No. 2) Act, 2004, with effect from April 1, 2005, the conditions for grant of deduction were that in a case where a housing project is approved by the local authority between April 1, 2004 and March 31, 2005 the project should be completed within four years from the end of the financial year in which it is approved by the local authority. The assessee a real estate developer, obtained approval for a housingproject on March 16, 2005 from the Development Authority. It completed the project in 2008 and by letter dated November 5, 2008 applied to the competent authority for the issue of the completion certificate. For the assessment year 2007-08 its claim to deduction under section 80IB(10) of the Income Tax Act, 1961 was denied inter alia on the ground that the assessee had violated the conditions stipulated under section 80IB(10) inasmuch as it had not obtained the completion certificate for the project from the competent authority within four years as stipulated in Explanation (ii). The Commissioner (Appeals) upheld the assessment order. The Tribunal held that the assessee was expected to complete the project in accordance with the approved plan at a particular point of time and the assessee was not expected to do or to fulfill the conditions which were not in existence at the relevant point of time or made compulsory by amendment in the Act from the future date. Since the assessee was to complete the projection on or before March 31, 2009 and a request was duly made with the competent authority on November 5, 2008 mentioning that the project had been completed and the completion certificate may be issued and if the certificate was not issued by the competent authority the assessee should not be penalized therefore unless and until some contrary facts were brought on record evidencing that the assessee contravened the conditions contained in the approval granted by such competent authority. However, since the approval was granted to the assessee on April 1, 2005, the assessee was not expected to fulfil the conditions which were not on the statute when such approval was granted to the assessee. The Tribunal accepted the assessee’s claim to deduction under section 80-IB(10). On appeal : Held, dismissing the appeal, that the approval for the project was given by the Development Authority on March 16, 2005. Clearly the approval related to the period prior to 24 2005 i.e. before the amendment, which insisted on issuance of the completeon certificate by the end of the four-year period was brought into force. The application of such stringent conditions, which are left to an independent body such as the local authority who is to issue the completion certificate, would have led to not only hardship but absurdity. As a consequence, the Tribunal was not, therefore, in error of law while holding in favour of the assessee.” 14. In the case of CIT vs. Happy Homes Enterprises (supra) the Hon'ble Bombay High Court held as under :- 34. As can be seen from the history of section 80- IA(4F) and then section 80-IB(10), prior to 1st April 2005, an assessee, developing and building a housing project approved by the local authority before 31st March, 2005 was entitled to a deduction of 100% of the profits derived from such housing project in any previous year relevant to any assessment year, provided (i) the development and construction of the said project had commenced on or after 1st October 1998; (ii) the project was on the size of a plot of land which had a minimum area of one acre and (iii) the residential unit had a maximum area of 1,000 sq.ft. where such residential unit was situated within the cities of Delhi or Mumbai or within 25 Kms from the municipal limits of these cities, and 1,500 sq.ft. at any other place. Before 1st April 2005, there was no condition and/or restriction on the quantum of the commercial area that could be included in a housing project. That had to be determined on the basis of the rules and regulations of the local authority approving the said housing project. However, the provisions of section 80-IB(10) were substantially amended by way of Finance (No.2) Act, 2004 w.e.f. 1st April, 2005. As can be noted from the amended provisions, there were several conditions that were imposed in the newly substituted section 80- IB(10) that were absent in the said section prior to its amendment. One such condition inserted w.e.f. 1 st April, 2005 was clause (d) that put a restriction on the quantum of commercial area that could be included in a housing project in order to entitle the assessee to claim the deduction as set out in the said section. It cannot be said that the legislature intended to give any retrospectivety to cl. (d) of s. 80IB(10). This is more so because it is clearly a condition that relates to time when the housing project is approved by the local authority. It decides, subject to its own rules and regulations, what quantum of commercial area is to be included in the said project. It is on this basis that building plans are approved by the local authority and construction is commenced and completed. It is very difficult, if not impossible to change the building plans and/or after construction midway. In order to comply with cl. (d) of s. 80IB(10). It would be highly unfair to require an assessee to comply with s. 80IB(10)(d) who has got his housing project approved by the local authority before 31 st March, 2005 and has either completed the 25 same before the said date or even shortly thereafter, merely because the assessee has offered its profis to tax in asst. yr. 2005-06 or thereafter. Requiring the assessee to comply with the condition set out in cl. (d) of sub-s. (10) of s. merely because he has offered his proits to tax in asst. yr 2005-06 or thereafter, even though his housing project was approved before 31st March, 2005 would be requiring the assessee to virtually do a humanly impossible task. This could never have been the intention of the legislature. In fact it would run counter to the very object for which these provisions were introduced, namely, to tackle the shortage of housing in the country and encourage investment therein by private players. It is therefore clear that cl (d) of sub-s. (10) of s. 80IB cannot have any application to housing projects that are approved before 31st March, 2005. The said cl (d) being inextricably linked to the date of approval of the housing project it will have to be held that the said clause operates only prospectively i.e. for housing projects approved after Ist April, 2005. This is notwithstanding the fact that the profits were offered to tax by the assessee for the asst. yr 2005-06 or thereafter – CIT vs. Brahma Associates (2011) 239 CTR (Bom) 30 : (2011) 51 DTR (Bom) 298 : 92011) 333 ITR 289 (Bom) and CIT vs. G.R. Developers (2013) 353 ITR 1 (Kar) relied on; Manan Corporation vs. Asstt. CIT (2013) 255 CTR (Guj) 415 : (2012) 78 DTR (Guj) 205 : (2013) 356 ITR 44 (Guj) concurred with :Reliance Jute & Industries Ltd. vs. CIT (1979) 13 CTR (SC) 186 : (1979) 120 ITR 921 (SC) and Securities & Exchange Board of India vs. Ajay Agarwal AIR 2010 sc 3466 distinguished. There is yet another reason for coming to the aforesaid conclusion. Take a scenario where an assessee following the project completion method of accounting, has completed the housing project approved by the local authority complying with all the conditions as set out in section 80-IB(10) as it stood prior to 1st April, 2005. If we were to accept the argument of the Revenue, then in that event, despite having completed the entire construction prior to 1st April, 2005 and complying with all the conditions of section 80-IB(10) as it stood then, the assessee would be disentitled to the entire deduction claimed in respect of such housing project merely because he offered his profits to tax in the A.Y. 2005-06. In contrast, if the same assessee had followed the work-in- progress method of accounting, he would have been entitled to the deduction under section 80-IB(10) upto the A.Y. 2004-05, and denied the same from A.Y. 2005-06 and thereafter. It could never have been the intention of the Legislature that the deduction under section 80-IB(10) available to a particular assessee would be determined on the basis of the accounting method followed. This would lead to startling results. Therefore, there is no hesitation in holding that section 80IB(10B) is prospective in nature and can have no application to a 26 housing project that is approved before 31 st March, 2005. As the deduction sought to be claimed under section 80-IB(10) is inseparably linked with the date of approval of the housing project, it would make no difference if the construction of the said project was completed on or after 1st April , 2005 or that the profits were offered to tax after 1st April, 2005 i.e. in A.Y.2005-06 or thereafter. The Tribunal was right in allowing the assessee company a deduction u/s 80IB(10) for the assessment year 2006-07 wherein the commercial area built by the assessee exceeded the limit specified in clause (d) of section 80IB(10).” 15. In view of the above decisions of the Hon'ble High Court and also the factual matrix of the assessee’s case, we allow these appeals of the assessee. 16. In the result, ITA Nos. 341 & 342/Ind/2012 stand allowed. ITA Nos. 735 & 736/Ind/2012 17. Both the appeals - ITA No. 735/Ind/2012 and Income-tax Act, 1961. No. 736/Ind/2012 for the assessment years 2007-08 and 2008-09 respectively emanate from the order dated 31.3.2014 of the learned CIT(A), Bilaspur Camp at Bhopal. In both these appeals, the issues are same which are involved in ITA Nos. 341 & 342/Ind/2012 for the A.Ys. 2005-06 & 2006-07 (supra). In these appeals we have decided these issues as above. Since on the same facts and circumstances, we have decided the similar issue on the same grounds of appeal in favour of the assessee in ITA Nos. 341 & 342/Ind/2012 for the assessment years 2005-06 and 2006-07, we allow these appeals of the assessee also by following the reasoning given therein above. 14. From perusal of the above finding and also examining fact that during the course of search proceedings no incriminating material was found which could question the genuineness of claim u/s 80IB (10) of the Act made by the assessee and also since the finding of the Tribunal as referred above challenged before the Hon'ble Jurisdictional High Court is pending, we respectfully following the judicial jurisprudence apply the decision of this Tribunal for the 27 issue raised in the instant appeals, setsing aside the finding of both lower authorities and allowing the claim of deduction u/s 80IB(10) of the Act made by the assessee for A.Ys.2006-07 to 2008-09 at Rs. 3,33,72,475/-, Rs.7965722/- & Rs.1,76,81,161/- for A.Y.2006-07 to 2008-09, respectively. Accordingly, grounds regarding deduction u/s 80IB(10) raised in assessee’s appeals for the Assessment Years 2006- 07 to 2008-09 stand allowed. 15. As regards the claim of deduction u/s 80IB(10) for A.Y.2009-10 to 2011-12, we find that Ld. CIT(A) after taking into consideration the permission granted by the local authority and completion certificate obtained by the assessee within the prescribed time limit has allowed the claim observing as follows: “2.3 From the facts and circumstances, I am of the view that the AO was not justified in holding that the appellant 32ssesse has committed default in furnishing inaccurate particular of income by claiming deduction u/s 80IB(10) of the Act. In the appellant’s case the facts show that he had fulfilled the conditions laid down in section 80IB(10) of the Act, and preferred to make the claim of deduction under section. The appellant has made claim of deduction u/s 80IB(10) wherein, the permission certificate and completion certificate from the local authority have been obtained within cutoff date which is the most basis requirement to claim deduction u/s 80IB(10). 16. We have considered rival contentions and gone through the material available on record. We find that the Revenue could not 28 controvert the factual findings recorded by the learned CIT(A) by bringing any contrary material on record. We find that the Ld. CIT(A) rightly allowed the deduction u/s 80-IB(10) on the ground that the completion certificate was obtained by the assessee within the prescribed time and all other conditions were satisfied and as such, the assessee is entitled to the said deduction. Thus, we do not find any reason to interfere with the findings of the learned CIT(A). Therefore, we confirm the order of learned CIT(A) on this point. Accordingly, grounds regarding issue of deduction u/s 80IB(10) raised in the departmental appeals for the Assessment Years 2009- 10 to 2011-12 stand dismissed. 17. The other common issue raised by both assessee and revenue relates to disallowance of payment to sub-contractor. Brief facts relating to this issue are that during the course of search LPS-1 page 1 to 105 was found and seized which the flow cash memo of the debited in the profit and loss account which also included bills and vouchers pertaining to Khalak Singh statements were also recorded of the account Officer who categorically stated that the persons named in the seized documents as sub-contractor are bogus. Based 29 on these seized material and statements recorded Ld. AO disallowed the following sub-contract expenses debited profit and loss account during A.Y.2006-07 to 2012-13: P/L Account 2006-07 36,77,997/- 2007-08 70,28,567/- 2008-09 1,01,24,886/- 2009-10 1,16,20,938/- 2010-11 1,59,03,559/- 2011-12 2,46,25,456/- 2012-13 16,25,739/- total Rs.7,46,07,142/- 18. When matter travelled before the Ld. CIT(A) it was pleaded by the assessee that since the company is engaged in the business of development of construction of Housing Projects, various contractors were required to be engaged for material and labour support. But, the Ld. AO disallowed the entire expense which was not justified. Ld. CIT(A) appreciated the submission made by the assessee to some extent and bifurcated the disallowed sub-contract expenses into following categories: i. Sub-contractors with no PAN/identity/address totalling to Rs.79,44,712/- spread over A.Y.2006-07 to 2012-13: 30 A.Y. Amount/payment to sub- contractors 2006-07 2,06,252/- 2007-08 12,86,996/- 2008-09 7,18,769/- 2009-10 5,24,825/- 2010-11 41,01,033/- 2011-12 1,38,515/- 2012-13 9,68,322/- total Rs.79,44,712/- ii. Sub-contractors in whose name bank bills/cash memo/vouchers were seized amounting to Rs.1,03,20,473/- spread over to A.Y.2007- 08, 2008-09, 2010-11 & 2011-12: A.Y. Amount/payment to sub- contractors 2007-08 2,12,594/- 2008-09 12,66,841/- 2010-11 5,15,830/- 2011-12 83,25,208/- total 1,03,20,473/- iii. Sub-contractors with PAN and other details amounting to Rs.5,47,90,021/- A.Y. Amount/payment to sub- contractors 2006-07 34,71,745/- 2007-08 52,97,955/- 2008-09 73,78,352/- 2009-10 1,07,85,632/- 2010-11 1,10,37,187/- 31 2011-12 1,61,61,733/- 2012-13 6,57,417/- total 5,47,90,021/- iv. Payment to Sub-contractor Rekha Bai at Rs.15,51,936/- for A.Y.2007-08 to 2010-11 A.Y. Amount/payment to sub- contractors 2007-08 2,31,022/- 2008-09 7,60,924/- 2009-10 3,10,481/- 2010-11 2,49,509/- total 15,51,936/- 19. The Ld. CIT(A) upheld the partial disallowance. Regarding the first category the Ld. CIT disallowed the whole payment on the ground that the identity of the sub-contractors has not been proved. Regarding the second category where the letter heads and bills were found at the premises of the assessee, the Ld. CIT(A) upheld the disallowance on the ground that the assessee failed to substantiate the genuineness of the payments made to these contractors. In the third category the disallowance of 10% of the total contract payments was upheld to cover up any alleged bogus payment. The Ld. CIT further disallowed the payment made to Rekha Bai of Rs. 32 15,51,956/- on the ground that the identity and genuineness of payment is not established. 20. Being aggrieved, both the parties are before this Tribunal. Before us, learned Counsel for the assessee submitted that for development of a huge housing project, the various contractors are required to be engaged and for small work small contractors/ meson/ labour are required to be engaged. The assesse duly made the TDS even from these payments wherever applicable. For the small work these persons are engaged and the payment was made as the assessee was unable to produce these small contractors because their whereabouts were not known to the assessee after the completion of the work allotted to them. Learned Counsel for the assessee submitted that the payments are genuine and no disallowance should have been made. Regarding the bills, bank statements of the contractors found at the premises of the assesse, learned Counsel for the assessee submitted that some of the contractors are illiterate and the bills are given by them after part completion of the work. Therefore the blank letter heads and the vouchers were available at the premises of the assessee. The 33 presence of these documents at the premises of the assessee does not lead to the conclusion that they are bogus and the payments are not genuine. These contractors have the PAN and also operating their bank accounts. Thus, the identities are proved. Thus, learned Counsel for the assessee submitted that the disallowances deserve to be deleted. Regarding the disallowance of 10% from the other payments, learned Counsel for the assessee submitted that no disallowance is called for since the contractors have genuinely worked and the TDS is made from the payments. The Assessing Officer disallowed these payments on the ground that the source of the expenditure is not satisfactorily explained. However, this is not an undisclosed expenditure but the amount is debited in the books of the assessee and the source is clearly proved and is verifiable from the books of accounts. On the other hand, the ld. CIT-DR relied upon the orders of the Revenue Authorities regarding confirmation of additions made by the learned CIT(A) whereas relied upon the order of the Assessing Officer regarding deletion of addition. 21. We have considered rival contentions and gone through the material available on record. We find that for development of a huge 34 housing project, the various contractors were required to be engaged and for small work small contractors/ meson/ labour were required to be engaged and where the PAN was not given, the contract payments were very small as is evident from the perusal of page 43 to 45 of appellate order. We find that the assessee made the TDS even from these payments wherever applicable and for the small work, payments were made to persons engaged and the assessee was unable to produce these small contractors because their whereabouts were not known to the assessee after the completion of the work allotted to them. Therefore, we find forced in the contention of the Learned Counsel for the assessee submitted that the payments are genuine and no disallowance should have been made. Regarding the bills, bank statements of the contractors found at the premises of the assesse, we find that some of the contractors were illiterate and the bills were given by them after part completion of the work, therefore, the blank letter heads and the vouchers were available at the premises of the assessee. Thus, the presence of these documents at the premises of the assessee should have not been considered as bogus payments as these contractors have the PAN and also operating their bank accounts which proved the identities. Therefore, 35 the disallowance on this point was not justified. Regarding the disallowance of 10% from the other payments, we find that the contractors had worked and the TDS was made from the payments but the Assessing Officer unjustifiably disallowed these payments on the ground that the source of the expenditure is not satisfactorily explained. However, the Assessing Officer failed to consider the fact that it was not an undisclosed expenditure but the amounts were debited in the books of the assessee and the source was proved and verifiable from the books of accounts. We also find that recently the identical issue of payments to sub-contractors came up before Indore Bench in the case of Agrawal Technical Education in IT(SS)A Nos.83 to 89 & 81/Ind/2020 and the Indore Bench vide order dated 17.1.2022 decided the issue in favour of the assesse. The relevant portion of the order dated 17.1.2022 (supra) is reproduced hereunder: “12. Ground no.3 is with regard to confirmation of additions of Rs.2,49,92,539/- A& 29,98,146/- for the Assessment Years 2011-12 & 20123-13, respectively, for payments made to sub-contractors. Facts, in brief, are that the Assessing Officer during the course of assessment proceedings required the assessee to furnish complete details of sub- contractor debited in P/L account along with complete name, address, copy of ITR, Identity poof and bank statement. The assessee in reply on 15.12.2013 submitted relevant details of the sub-contractors and contended that the society is running a college imparting engineering education and for 36 this purpose, it has constructed the building of college, hostel mess etc. for which the assessee had to purchase material and construct the building with the help of various contractors and sub-contractors. However, the Assessing Officer after considering reply of the assessee did not find the same acceptable and disallowed all the expenses/payments made to sub- contractors on the ground that few of the cash memo/voucher were found to be blank and were debited in P& L account. 13. Being aggrieved, the assesse approached the learned CIT(A) who allowed the ground partly. Learned CIT(A) bifurcated the payments under three different heads. Firstly, the petty contractors who were paid Rs.24,51,850/- and who were not having a PAN and the addresses were not given. Secondly, the subcontractors who were paid Rs.2,96,00,038/- in whose name blank bills/ cash memos/ vouchers were seized. Thirdly, the subcontractors who were paid Rs.2,75,28,903/- who have got their respective PAN and other details. The Ld. CIT(A) disallowed the claim of the assessee in respect of the first category on the ground that there is no material evidence and other details like addresses, identity proof and bank statements. In respect of the second category, the Ld. CIT(A) upheld the addition relying on the statement of Shri Rupesh Gorkhe and Shri Khalak Singh and observed that various important papers were seized from the premises regarding bank opening form, application for PAN allotment and blank bills. These contactors were not produced for examination. The Ld. CIT(A) observed that the bank account of the sub-contractors shows that the amounts credited include the payments from the assessee society also, as such the payments to the sub-contractors cannot be treated as genuine. However, the ld. CIT(A) allowed the payment to the subcontractors whose PAN and other details were available on the ground that no construction work would be completed without the cost of labour and material. Accordingly, for the Assessment Years 2011-12 & 2012-13, the learned CIT(A) confirmed the additions of Rs.2,49,92,539/- & Rs.29,98,146/- and deleted the additions of Rs.84,35,482/- & Rs.51,81,140/-, respectively. 14. Being aggrieved, the assessee is in appeals before this Tribunal challenging the confirmation of additions of Rs.2,49,92,539/- and Rs.29,98,146/-, respectively. Before us, the learned Counsel for the assessee reiterated that the addition made by the A.O is not in order as the society is running a college imparting engineering education and for this purpose it has constructed the building of college, hostel mess etc. for which the assessee had purchased material and constructed the building with the help of various contractors and sub-contractors. The direct cost for construction comprises of mainly of two things i.e. material cost and labour cost. Therefore, learned CIT(A) was not justified in granting part relief. 15. On the other hand, ld. CIT-DR vehemently argued and relied on the order of the learned CIT(A). 37 16. We have considered rival contentions and gone through the material available on record. We find that it was explained that every contractors worked for the construction of the building of the Society. We find that the papers were found from the business premises of Agrawal Construction Co and not from the office premises of the assessee society. However, the A.O. referred to the statements of various persons and several documents of various sub-contractors found from the business premises of Agarwal Construction Co., 250, Sagar Plaza, M.P. Nagar, Bhopal. We find that the Assessing Officer failed to appreciate the fact that the said premises do not belong to assessee and no part of its activities were functioning at that place as each of the educational institution has its own accounts and finance department at the place of concerned educational institution and all the financial transactions are done independently by each educational institution. The accounts of the educational institution are maintained at the place where the concerned educational institution is located. Therefore, the additions made on the basis of unrelated papers and on the statements of unrelated persons were not justified. Further, the A.O. did not refer to any incriminating materials found at the office premises of the various institutions found in the survey suggesting any suppressed income. The A.O. made the allegation of the bogus payments merely on the basis of unrelated papers found at the business premises of Agarwal Construction Co. and not on the basis of any incriminating materials found. It is pertinent to mention here that all the aforesaid papers and the statements of persons are related to Agarwal Construction Co. and have been adjudicated and discussed by the A.O. in the assessment of Agarwal Construction Co. and the same conclusion has been copy pasted of the assessment order of the assessee. It was also explained that the persons whose statements were recoded and referred in para 15 of the assessment order were not the employees of the assessee Society but they are employees of Agrawal Construction Co. Therefore, in our view, the additions made on the basis of unrelated papers and unrelated persons were not justified as while framing the assessment, the Assessing Officer did not refer to any of the papers found at the business premises of the assessee. Under these circumstances, we are of the view that no additions can be made in the hands of the assessee. We further find that all the information regarding the contractors and the respective work done by them were submitted before the Ld. Assessing Officer and the ld. Assessing Officer failed to consider the fact that without the labour charges, no construction work can be completed and also the explanation of the assessee that the papers found in the shape of the letter-heads and the bill books have been kept by the contractors for their convenience in the premises of Agrawal Construction Co. Therefore, looking to the aforesaid explanations by the assessee and discussion hereinabove, we find that the expenditure incurred in respect of payments made to sub-contractors was reasonable and comparable to the total cost of the building. Learned CIT(A) granted part relief but failed to consider the fact 38 that normally the percentage of labour cost to the total construction cost is between 20% to 30% and in the instant case it is 16.4 % as is evident from the page 39 of impugned order. A certificate from a Chartered Engineer to this effect was also filed. Thus, we find that the labour percentage is less than the normal prescribed percentage. We further find that it was explained that the petty contractors who had done the small work had been paid by the cheque and after completion of the work they left the site and were not approachable/traceable and as such could not be produced. However, their work cannot be denied since the work for which the payment has been made is in existence. Under these circumstances the addition cannot be sustained. So far as the disallowance of payments to the sub- contractors whose bill book were found at the premises of M/s Agrawal Construction is concerned, we find that the same cannot be disallowed, firstly, the bill book, bank statements and the PAN application copies were found at the premises of M/s Agrawal Construction Co and they were kept in the office for the sake of convenience of the contractors, since bills could be raised immediately after completion of a particular work. The bank statements were kept to ascertain the bank balances for withdrawal of money for incurring the expenditure. The PAN was necessary because of quoting them for TDS. It is undisputed fact that all payments to these contractors were made through banking channel and the necessary TDS was made wherever necessary. Thus, totality of facts clearly suggests that the addition confirmed by the learned CIT(A) was also not justified. Therefore, we set the order of the learned CIT(A) on this point. Accordingly, we delete the additions of Rs.2,49,92,539/- & Rs.29,98,146/- for the Assessment Year 2011-12 & 2012-13, respectively.” 22. Following the above order of Indore Bench in the light of the identical facts and circumstances as discussed above, we decide the issue in favour of the assesse as TDS wherever applicable were made, the payments were genuine, the assessee explained the presence of documents in question and source of the expenditure was also satisfactorily explained as the said amounts were debited in the books of the assesse. Accordingly, grounds raised in the appeals of the assessee for the Assessment Years 2006-07 to 2012-13 stand 39 allowed on this issue whereas the grounds raised in the departmental appeals for the Assessment Years 2009-10 to 2012-13 on this issue stand dismissed. 23. In result, the appeals filed by the assessee for the Assessment Years 2006-07 to 2012-13 stand allowed whereas departmental appeals for the Assessment Years 2009-10 to 2012-13 stand dismissed. Order pronounced as per Rule 34 of I.T.A.T., Rules 1963 on 27.01.2022. Sd/- (MADHUMITA ROY) Sd/- (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER Indore; Ǒदनांक Dated : 27.01.2022 !vyas! Copy to: Assessee/AO/Pr. CIT/ CIT (A)/ITAT (DR)/Guard file. By order Assistant Registrar, Indore