ITO, WD-12(3), KOLKATA, Kolkata V. M/s B. U. Gardens Pvt. Ltd., Kolkata

ITA 598/KOL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1260 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-03-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 05-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Wrong claim; Competent authority; Retraction
• Section: 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA C BENCH, KOLKATA [BEFORE SRI J. SUDHAKAR REDDY ACCOUNTANT MEMBER & SRI ABY T. VARKEY , JUDICIAL MEMBER ] I.T.A. NO. 598 /KOL /201 6 ASSESSMENT YEAR: 2009 - 10 INCOME TAX OFFICER - 12 (3), KOLKATA .. . . . ... . .. APPELLANT P - 7, CHOWRINGHEE SQUARE 7 TH FLOOR KOLKATA 700 069 M/S. B.U. GARDENS PVT. LTD. ........ RESPONDENT ANAND APARTMENT 2 ROWLAND ROAD KOLKATA 700 020 [PAN : AACCB 2595 A ] APPEARANCES BY: SHRI S.K. TULSIYAN , ADVOCATE , APPEAR ED ON BEHALF OF THE ASSESSEE. SHRI SAURABH KUMAR , ADDL. CIT , SR. DR , APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : FEBRUARY 12 TH , 201 8 DATE OF PRONOUNCING THE ORDER : MARCH 21 ST , 201 8 O R D E R PER J. SUDHAKAR REDDY : - THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX - (APPEALS), 1 0 , KOLKATA, (LD. CIT(A)) , PASSED U/S 250 O F THE INCOME TAX ACT, 1961 (THE ACT) , DT. 1 6 / 01 /201 6 , ASSESSMENT YEAR 200 9 - 10 . 2. THE ASSESSEE IS A REAL ESTATE DEVELOPER. DURING THE YEAR CONSIDERATION, THE ASSESSEE D ERIVED INCOME FROM CONSTRUCTION OF A PROJECT KNOWN AS RIDDHI SIDDHI GARDEN, JOKA, DISTRICT - 24, PARGANAS. THE ASSESSING OFFICER DISALLOWED THE CLAIM MADE BY THE ASSESSEE BY OBSERVING AS FOLLOWS: - A) IT HAS BEEN FOUND THAT THE PROJECT WAS BUILT ON 'SALI' LAND ON WHICH LEGALLY, A HOUSING PROJECT CANNOT BE UNDERTAKEN. TO CLAIM DEDUCTION U / S 80 - IB, THE LAND HAS TO BE LEGALLY FIT FOR HOUSING PROJECT. B) THE ASSESSEE INITIALLY CLAIMED THAT PROJECT WAS COMPLETED IN MARCH, 2009 AND SHOWN INCOME DURING F. Y. 2008 - 09 RELEVANT TO A. Y. 2009 - 10. THE ASSESSEE ALSO CLAIMED THAT COMPLETION CERTIFICATE IS ITS CASE IS NOT APPLICABLE. BUT NOW, THE ASSESSEE IS CLAIMING THAT THE PROJECT WAS COMPLETED IN FEBRUARY, 2008 AND HAS CLAIMED TO HAVE RECEIVED COMPLETION CERTIFICATE F ROM THE LOCAL AUTHORITY. IT IS SEEN FROM THE PHOTOCOPY OF THE SAID CERTIFICATE THAT THERE IS NO OFFICIAL REFERENCE NO. HOWEVER, THE SAID LOCAL AUTHORITY I.E. JOKA - II , GRAM PANCHAYET , JOKA HAS INFORMED THAT THE ASSESSEE HAS NOT APPLIED FOR THE COMPLETION CERTIFICATE AND THEY HAVE NOT ISSUED ANY COMPLETION CERTIFICATE TO THE ASSESSEE. THE ASSESSEE HAS CLAIMED THAT THE PROBLEM OCCURRED DUE TO CHANGE OF THE 2 I.T.A. NO. 598/KOL/2016 ASSESSMENT YEAR: 2009 - 10 M/S. B.U. GARDENS PVT. LTD PANCHAYET PRODHAN BUT THIS CANNOT BE A VALID REASON WHEN THE LETTERS ARE SUPPOSED TO BE ISSUED BY THE S AME OFFICE. IT HAS ALSO BEEN SEEN FROM THE YEAR - WISE DETAILS OF EXPENDITURES THAT EXPENDITURES OF RS. 1,30,03,659 / - HAS BEEN CLAIMED TO HAVE INCURRED FOR THE PROJECT DURING F. Y. 2008 - 09. SOME EXAMPLES OF SUCH EXPENDITURES ARE GIVEN AS UNDER: I) LAND DEVELOPMENT : RS. 1,00,000 / - II) ELECTRICAL EXPENSES : RS. 8,27,360 / - III) PAINTING : RS. 14,40,000/- IV) DOOR & WINDOW : RS. 20,67,082 / - V) MARBLE FITTING CHARGES : RS. 24,07,533/- VI) PLUMBING : RS. 7,78,000 / - VII) PLASTER OF PARIS: RS.11,55,353/ - VIII)GRILL:RS.8,33,341/ - THE ASSESSEE HAS CLAIMED THAT A NUMBER OF FLATS WERE HANDED OVER DURING F. Y. 2008 - 09 AND THAT IS THE REASON FOR SHOWING INCOME FOR F. Y. 2008 - 09. BUT QUESTION RAISES HOW CONSTRUCTION WAS COMPLETED DURING F. Y. 2007 - 08 WHEN SUBSTANTIAL EXPENDITURES HAVE BEEN MADE AS MENTIONED ABOVE? C) THE ASSESSEE HAS CLAIMED TO HAVE HANDED OVER POSSESSION OF ELEVEN RESIDENTIAL UNITS (5 TO SMT. ASHA AGARWAL AND 6 TO M/S. SAJJAN COMME RCIAL ENTERPRISES LTD.) ON 28.04.2007. THE LIST OF YEAR - WISE EXPENDITURES SUBMITTED BY THE ASSESSEE REVEALS THE FOLLOWING: HEAD OF EXPENDITURE EXPENDITURE UPTO 31.03.2007 (IN RS.) TOTAL EXPENDITURES IN THE PROJECT (IN RS.) PAINTING NIL 15,13,810 MARBLE FITTING CHARGES NIL 24,50,033 MARBLES 1,90,378 9,60,850 PLUMBING 1,19,742 9,02,742 PLASTER OF PARIS 40,500 11,95,853 WOOD FITTING 14,300 1,49,850 DOOR & WINDOW 1,31,162 22,22,402 THIS AGAIN RAISES QUESTION, IF EXPENDITURES, AS MENTIONED ABOVE, HAVE NOT BEEN INCURRED BY 31.03.2007, HOW THE ELEVEN FLATS WERE HANDED OVER ON 28.04.2007 ? D) THE ASSESSEE HAS TRIED TO MAKE DOCUMENTS IN ORDER TO CLAIM THAT ONLY RESIDENTIAL UNITS LESS THAN 1,500 SQ. FT EACH WERE BUILT BY THEM. THEY HAVE PREPARED THE REGISTERED DEEDS IN THAT FASHION AND MADE A NUMBER OF DEEDS FOR SALE OF WHOLE FIRST FLOORS OF RIDD HI BLOCK AND SIDDHI BLOCK ALONGWITH CAR PARKING SPACES IN THE GROUND FLOORS AND THE SALE WAS MADE ON A SINGLE DAY I.E. ON 28.04.2007, AS MENTIONED ABOVE. IN THE REGISTERED DEEDS, DEMARCATION IS SHOWN FOR LIVING ROOMS, TOILET, KITCHEN ETC. THE ASSESSEE TOOK THE OPPORTUNITY AS THE REGISTERED AUTHORITY DOES NOT VERIFY THE DEMARCATION AT THE TIME OF REGISTRATION. THE FACT THAT THERE WAS NO DEMARCATION AT THE TIME OF REGISTRATION, HAS BEEN SUPPORTED BY SMT. ASHA AGARWAL IN HER STATEMENT RECORDED ON 26.12.2011. 3 I.T.A. NO. 598/KOL/2016 ASSESSMENT YEAR: 2009 - 10 M/S. B.U. GARDENS PVT. LTD E ) IN REALITY, THE SITUATION IS COMPLETELY DIFFERENT. THE FACTS IN THIS REGARD HAVE ALREADY BEEN MENTIONED ABOVE, IN DETAIL. OUT OF THE SEVEN BLOCKS I.E. RIDDHI, SIDDHI, AMBA, AMBIKA, AMBALIKA, APARNA, ANNAPURNA, THE GROUND FLOOR AND FIRST FLOORS OF THE FIR ST TWO BLOCKS WERE EARMARKED FOR COMMERCIAL ACTIVITY FROM VERY BEGINNING. THE CONSTRUCTION, AS DEPICTED IN THE PHOTOGRAPHS, SHOW THAT GROUND AND FIRST FLOOR OF THE TWO BLOCKS WERE CONSTRUCTED FOR COMMERCIAL PURPOSES ONLY. THERE IS NO VERANDAH IN THE FIRST FLOOR OF THE TWO BUILDINGS. THE DECISION WAS TAKEN EXCLUSIVELY BY THE ASSESSEE AND IMPLEMENTED BY THEM DURING CONSTRUCTION ACTIVITIES IN THE PROJECT STAGE WELL BEFORE THE FLAT OWNERS STARTED MOVING IN FROM EARLY 2008. THE ENTRY TO COMMERCIAL AREA IN SIDDHI BUILDING IS THROUGH A SEPARATE ON THE MAIN ROAD. THE REGISTRATION OF COMMERCIAL PORTION WAS A 28.04.2007, WHILE MOST OF THE RESIDENTIAL UNITS WERE REGISTERED IN 2 008. THE INTENTION OF THE ASSESSEE IS FOUND FROM THE INFORMATION BROCHURES A ALSO FROM THE ST UDY OF DEEDS MADE FOR RESIDENTIAL UNITS, IN WHICH THERE IS SPECIFIC MENTION ABOUT COMMERCIAL SPACE. THE OWNERS OF THE COMMERCIAL PORTION HAVE BEEN KEPT OUTSIDE THE PURVIEW OF THE FLAT OWNERS' ASSOCIATION FROM VERY BEGINNING. THEY ARE NOT A PART OF FLAT OWN ERS ASSOCIATION, AS FOUND FROM THE LIST OF FLATOWNERS SUBMITTED BY THE FLAT OWNERS ASSOCIATION ALONGWITH THEIR REPLY. THE FLAT OWNERS ASSOCIATION STARTED OPERATIVE SINCE JUNE, 2011, BEFORE WHICH THE ASSESSEE HAD CONTROL OVER THE AFFAIRS OF THE PROJECT. THE SUBMISSION MADE BY THE ASSOCIATION, THE PHOTOGRAPHS, THE REPORT OF THE INSPECTOR AND THE STATEMENT OF SMT. ASHA AGARWAL SUGGEST THAT DEMARCATION, AS SHOWN IN THE REGISTERED DEEDS OF THE OCCUPANTS OF THE COMMERCIAL PORTION NEVER EXISTED. IT WAS VACANT SPAC ES, SOME PORTION OF WHICH IS STILL VACANT. THE ASSESSEE IN HIS SUBMISSION MADE ON 20.12.2011 HAS ITSELF MENTIONED ABOUT THE VACANT SPACES, WHILE HE HAS CLAIMED TO HAVE COMPLETED PROJECT 2 - 3 YEARS BACK. THEREFORE, THE CLAIM OF THE ASSESSEE THAT THE OWNERS C ONVERTED THEIR PORTION TO COMMERCIAL PORTION AFTER REGISTRATION HAS BEEN PROVED TO BE FALSE CLAIM. THE COMMERCIAL PORTIONS WERE TRANSFERRED TO M/S. SAJJAN COMMERCIAL ENTERPRISES LTD. AND SMT. ASHA AGARWAL. OUT OF THESE TWO, THE ADDRESS OF M/S. SAJJAN COMME RCIAL ENTERPRISES LTD. IS THE SAME AS OF THE ASSESSEE AND THERE ARE COMMON SHAREHOLDERS, AS SHOWN BELOW: M/S. SAIIAN COMMERCIAL ENTERPRISES LTD. M/S. B. U. GARDENS PVT. LTD. NAME OF THE SHAREHOLDER %AGE OF HOLDING NAME OF THE SHAREHOLDER %AGE OF HOLDING DWARKA PRASAD DABRIWAL 17.49 DWARKA PRASAD DABRIWAL 25.02 DWARKA PRASAD DABRIWAL & CO. 1.96 DWARKA PRASAD DABRIWAL & CO. 2.96 JAISHREE DABRIWAL 4.03 JAISHREE DABRIWAL 1.00 SANGITA DABRIWAL 4.74 SANGITA DABRIWAL 3.60 SAJJAN KUMAR DABRIWAL 2.72 SAJJAN KUMAR DABRIWAL 11.00 SANILV KUMAR DABRIWAL 11.63 SANILV KUMAR DABRIWAL 11.20 4 I.T.A. NO. 598/KOL/2016 ASSESSMENT YEAR: 2009 - 10 M/S. B.U. GARDENS PVT. LTD THEREFORE, THE ASSESSEE'S EXPLANATION THAT IT HAD NO SAY IN THE COMMERCIAL ACTIVITY PERFORMED BY THE SAID PARTY IS NOT ACCEPTABLE. IT WAS ACTUALLY ARRANGED PRIOR TO REGISTRATION AND REGISTRATION WAS MADE IN SUCH A FASHION TO MAKE PAPERWORK IN ORDER. BUT, IN REALITY IT HAS BEEN PROV ED OTHERWISE. F) ANOTHER SURPRISING FEATURE IS THAT WHILE M/S. SAJJAN COMMERCIAL ENTERPRISES LTD. AND SMT ASHA AGARWAL WAS ALLOTTED CAR PARKING SPACE IN THE GROUND FLOOR, IN REALITY, WHOLE OF GROUND FLOOR OF RIDDHI AND SIDDHI BLOCK IS USED FOR COMMERCIAL P URPOSES. IT HAS ALSO BEEN INFORMED THROUGH THE LETTER OF THE FLAT OWNERS' ASSOCIATION THAT THE ASSESSEE COMPANY ENJOYED ITS AUTHORITY OVER THE PROJECT TILL 31.05.2011 AND IT IS UNBELIEVABLE THAT THE ASSESSEE HAD NO ROLE TO PLAY IN THIS REGARD. G) IT HAS ALSO BEEN NOTICED FROM THE PHOTOGRAPHS (NO. 6,7 & 15) THAT THERE IS A GRILL STRUCTURE IN THE COMMON SPACE TO SEPARATE INDIAN OVERSEAS BANK. THE QUESTION IS, IF THE DEVELOPER HAD NO ROLE TO PLAY WHO CONSTRUCTED SUCH GRILL STRUCTURE IN THE COMMON SPACE? H) ANOTHER QUESTION IS WHY THERE IS NO VERANDAH IN THE FIRST FLOOR OF THE RIDDHI AND SIDDHI BLOCK WHILE IN THE ALL OTHER FIVE BUILDINGS THERE ARE VERANDAHS IN THE FIRST FLOOR. IS IT BELIEVABLE THAT THE RESIDENTS REMOVED THE VERANDAH IN THESE PARTICULAR TWO B UILDINGS AND THE ASSESSEE HAD NO ROLE TO PLAY, WHILE ENJOYING AUTHORITY IN THE PROJECT AREA TILL 31.05.2011 ? I) IN THE REPLY RECEIVED ON 20.12.2011, THE ASSESSEE TRIED TO ESTABLISH THAT AT LEAST ON PAPERS THE CLAIM OF DEDUCTION U/S 80 - 1 B( 10) IS ALLOWA BLE. THE ASSESSEE WAS SILENT ON THE FACTS OF THE CASE. WHEN THE ASSESSEE WAS CONFRONTED WITH THE REPORT OF THE INSPECTOR, PHOTOGRAPHS AND REPLY OF THE ASSOCIATION, IT HAS AVOIDED THE ISSUES STATING THAT THE STATEMENTS OF INDIVIDUAL ARE IRRELEVANT AND PHOTO GRAPHS WERE TAKEN IN THE YEAR 2011. THIS STATEMENT DOES NOT HELP THE ASSESSEE TO SUBSTANTIATE ITS CLAIM, AS EVIDENCES FOUND IN THIS CASE ARE ALL AGAINST THE ASSESSEE'S CLAIM AND THE ASSESSEE ITSELF ENJOYED ITS AUTHORITY OVER THE PROJECT AREA TILL 31.05.201 1. IT HAS ALSO BEEN FOUND FROM THE REPLY OF THE FLAT OWNERS ASSOCIATION THAT FORMAL HAND OVER OF RECORDS AND FUNDS TO THE ASSOCIATION HAS NOT BEEN TAKEN PLACE TILL DATE. J) IT HAS ALSO TRANSFERRED FLATS AMOUNTING TO RS. 59,27,600/ - UNDER THE HEAD 'CAPITA L ASSETS' AND CLAIMED THAT THE PROJECT HAS BEEN COMPLETED 2 - 3 YEARS BACK. IT HAS ALSO BEEN ADMITTED THAT THE SAID CONVERSION WAS DONE BY MISTAKE. K) SEVERAL OPPORTUNITIES HAVE BEEN PROVIDED TO THE ASSESSEE AND ALL THE EVIDENCES E.G. COPY OF REPLIES, SUMM ONS U/S 131, PHOTOGRAPHS ETC. HAVE BEEN SERVED ON THE ASSESSEE. BUT THE ASSESSEE ALWAYS TRIED TO AVOID THE FACTUAL EVIDENCES, WITH WHICH THEY HAVE BEEN CONFRONTED. L ) IN THE SHOW CAUSE LETTER DT. 15.12.2011, THE FOLLOWING COMPUTATION HAS BEEN SHOWN FOR C OMMERCIAL SPACE: 5 I.T.A. NO. 598/KOL/2016 ASSESSMENT YEAR: 2009 - 10 M/S. B.U. GARDENS PVT. LTD 'R IDDHI : (1134+1130+1060+982+1129) SQ. FT. X 2 = 5,435 SQ. FT. SIDDHI : (1018+905+1300+1258+881+1192) SQ. FT. X 2 = 6,554 SQ. FT. THEREFORE, TOTAL COMMERCIAL AREA IS 5,435 SQ. FT. + 6,554 SQ. FT. = 11,989 SQ. FT.' FROM THE ABOVE CALCULATION IT IS FOUND THAT THERE IS CALCULATION MISTAKE AS THE FIGURES HAVE NOT BEEN MULTIPLIED BY 2. MULTIPLICATION BY 2 IS REQUIRED BECAUSE OF THE FACT THAT TWO FLOORS WERE CONSTRUCTED FOR COMMERCIAL USE. BUT IN THE REGISTERED DEED, IT HAS BEEN MENTION ED THAT IN THE GROUND FLOOR, THERE IS CAR PARKING SPACE. THE GROUND FLOOR WAS ALSO CONSTRUCTED FOR COMMERCIAL USE. THEREFORE, THE CALCULATION OF COMMERCIAL SPACE IS AS FOLLOWING: RIDDHI: (1134+1130+1060+982+1129) SQ. FT. X 2 = 10,870 SQ. FT. SIDDHI: (1018+905+1300+1258+881+1192) SQ. FT. X 2 = 13,108 SQ. FT. THEREFORE, TOTAL COMMERCIAL AREA IS 10,870 SQ. FT. + 13,108 SQ. FT. = 23,978 SQ. FT. THEREFORE, THE ASSESSEE HAS CLAIMED TO HAVE BUILT RESIDENTIAL UNITS, BUT IN REALITY, CONSTRUCTED A SUB STANTIAL PORTION FOR COMMERCIAL USE. THE PORTION OF COMMERCIAL SPACE IS 23,978 SQ. FT.APPX. M) BOTH THE ASSESSEE AND SMT ASHA AGARWAL DENIED HAVING ANY RELATION IN BETWEEN THEM. BUT INFORMATION HAS BEEN RECEIVED THAT PIJUSH AGARWAL , WHO IS ONE OF THE DIRECTORS OF M/S. SAJJAN COMMERCIAL ENTERPRISES LTD. (I.E. ANOTHER OWNER OF THE COMMERCIAL SPACE) IS SON OF SMT. ASHA AGARWAL AND ALSO SON - IN - LAW OF THE BROTHER OF SRI D. P. DABRIWAL, ONE OF THE DIRECTORS OF THE ASSESSEE COMPANY. HOWEVE R, IT IS SUBJECT TO VERIFICATION AND THIS ISSUE COULD NOT BE VERIFIED DUE TO THE TIME BARRING FACTOR OF THE CASE. BUT THE QUESTIONS REMAIN. I) HOW SMT. ASHA AGARWAL CAME TO KNOW ABOUT CROSS - EXAMINATION WHILE A SUMMONS U /S 131 ONLY WAS ISSUED TO HER ON 28. 12.2011 FOR HER PERSONAL APPEARANCE AND THERE IS NO MENTION ABOUT CROSS - EXAMINATION IN THE SUMMONS U / S 131. THE ASSESSEE REQUESTED FOR CROSS - EXAMINATION VIDE ITS LETTER SUBMITTED ON 28.12.2011 AND THE SAID FACT SHOULD NOT HAVE BEEN KNOWN BY SMT. ASHA AGARW AL. FROM THE ABOVE OBSERVATION, IT APPEARS THAT SMT. ASHA AGARWAL HAS FAMILY RELATION WITH THE DIRECTORS OF THE ASSESSEE COMPANY AND DUE TO THAT FACT SHE HAD TO RENOUNCE HER STATEMENT GIVEN ON 26.12.2011 UNDER PRESSURE FROM HER FAMILY MEMBERS. HOWEVER, IT IS A FACT THAT UNLESS THE ASSESSEE MAINTAINS CLOSE RELATION WITH SMT. ASHA AGARWAL, SUCH A MISREPRESENTATION OF FACTS IN THE REGISTERED DEED WAS NOT EASILY POSSIBLE AS ALSO FOUND IN EASE OF M/S. SAJJAN COMMERCIAL ENTERPRISES LTD. II) HOW SMT. ASHA AGARWAL COULD REMEMBER THE QUESTION NUMBERS, AS MENTIONED IN THE AFFIDAVIT WHILE AS PER HER CLAIM, SHE WAS THREATENED AND WAS SCARED ? IT HAS NOT BEEN MENTIONED IN THE AFFIDAVIT THAT ANOTHER LADY WAS PRESENT DURING RECORDING OF THE STATEMENT. IT IS ALSO SURPRISIN G TO NOTE THAT QUESTION NUMBERS AS STATED IN HER AFFIDAVIT EXACTLY MATCHES WITH THAT OF THE SUBMISSION MADE BY THE ASSESEE ON 28.12.2011. IT HAS ALREADY BEEN MENTIONED THAT THE ASSESSEE HAS BEEN SERVED WITH THE STATEMENT RECORDED, BUT SMT. ASHA AGARWAL HAS NOT BEEN SERVED WITH A COPY OF THE STATEMENT RECORDED. IT MAY BE 6 I.T.A. NO. 598/KOL/2016 ASSESSMENT YEAR: 2009 - 10 M/S. B.U. GARDENS PVT. LTD POSSIBLE TO REMEMBER THE ISSUES BUT IT IS EXTREMELY DIFFICULT TO REMEMBER THE QUESTION NUMBERS, THREE DAYS AFTER RECORDING OF THE STATEMENT. III) IF A PERSON PURCHASES FIVE RESIDENTIAL FLAT S, IS IT POSSIBLE THAT UNDER ANY CIRCUMSTANCES THE SAID PERSON UNDER OATH CAN STATE THAT SHE HAS PURCHASED ONLY VACANT SPACES ? IT IS NOT OUT OF PLACE TO MENTION HERE THAT THE EDUCATIONAL QUALIFICATION OF SMT. ASHA AGARWAL IS B. A. THESE OBSERVATIONS INDIC ATE THAT SMT. ASHA AGARWAL IS RELATED TO THE ASSESSEE COMPANY AND SHE HAD TO RENOUNCE HER STATEMENT UNDER PRESSURE. IN HER STATEMENT, SMT. ASHA AGARWAL ACTUALLY CONFESSED THE TRUTH THAT THERE IS REPRESENTATION IN THE REGISTERED DEED, WHICH HAS ALSO BEEN SU PPORTED BY EVIDENCES GATHERED DURING THE PROCEEDING. AS DISCUSSED ABOVE. N) THE STATEMENT OF SMT. ASHA AGARWAL WAS RECORDED ON 26.12.2011 UNDER OATH IN THE PRESENCE OF ONE LADY STAFF, SMT. SANCHITA BANDYOPADHYAY, SR. T. A. THE STATEME NT WAS SIGNED BY HER, AS WELL BY SMT. SANCHITA BANDYOPADHYAY ON ALL THE PAGES AND ALSO ON TH E ORDER SHEET ON 26.12.2011. SMT ASHA AGARWAL HAS ALSO BEEN WRITTEN IN HER OWN HANDWRITING, 'I HAVE GIVEN THE ABOVE STATEMENT VOLUNTARILY WITHOUT ANY FEAR, FORCE OR COERCION AND THE STA TEMENT HAS BEEN RECORDED PROPERLY. SMT. ASHA AGARWAL HAS CLAIMED THAT SHE WAS MADE TO SIT OUTSIDE THE OFFICE FOR FIFTEEN MINUTES. THE FACT IS SHE GAVE HER ATTENDANCE EXACTLY AT 4.00 P.M. AND SHE WAS REQUESTED TO WAIT FOR FEW MINUTES AT THE VISITORS LOUNG E OUTSIDE THE CHAMBER OF THE UNDERSIGNED. SHE WAS ACTUALLY CALLED INSIDE AT ABOUT FIVE MINUTES PAST FOUR. THEREFORE, SHE HAD TO WAIT FOR FIVE MINUTES ONLY AND NOT FOR FIFTEEN MINUTES. THE REASON WAS THAT THE LADY STAFF, SMT. SANCHITA BANDYOPADHYAY, SR. T. A. ARRIVED FEW MINUTES LATE AND BECAUSE OF HER ABSENCE, STATEMENT RECORDING COULD NOT BE STARTED. IT HAS ONLY BEEN STATED THAT SHE WAS THREATENED BUT SHE DID NOT GIVE DETAILS OF THAT. THEREFORE, SUCH ALLEGATION IS VERY GENERAL IN NATURE. IT IS ALSO SURPRI SING TO NOTE THAT THE STATEMENT WAS RECORDED ON 26.12.2011 AND SUCH A CLAIM WAS MADE ONLY ON 29.12.2011, WHEN SHE WAS AGAIN CALLED FOR CROSS - EXAMINATION. IT IS ALSO NOT KNOWN WHY SHE DID THE WAITING FOR THREE DAYS TO RAISE SUCH ALLEGATION. IT IS ALSO SEEN THAT THE AFFIDAVIT WAS MADE ONLY ON 28.12.2011 AND SHE HAS CLAIMED IN HIS SUBMISSION MADE ON 29.12.2011 THAT SHE IS SICK. HOWEVER, SHE HAS NOT BEEN FOUND AT HER RESIDENCE ON 28.12.2011 I.E. AT THE TIME OF SERVICE OF SUMMONS U/S 131 WHILE THE EARLIER SUMMON S U/S 131 WAS RECEIVED BY HER. THE QUESTION IS WHEN SHE BECAME SICK, AS IT APPEARS FROM THE AFFIDAVIT THAT SHE APPROACHED NOTARY ON 2B.12.2011? ACTUALLY SHE DOES NOT WANT TO CONFRONT THE DEPARTMENT AGAIN, AFTER CONFIRMING FACTS IN HER STATEMENT RECORDED ON 26.12.2011 AND AFTER MAKING FALSE ALLEGATION AGAINST THE U NDE RSIGNED. IN RESPECT OF SHOWROOM OF REEBOK, SMT ASHA AGARWAL STATED THAT SHE ALLOTTED SPACE TO THE SAID CONCERN AND INFORMED THAT SHE RECEIVED SECURITY DEPOSIT OF RS. 6,76,000/ - FROM THE SAID CON CERN, WHICH IS REFLECTED IN HER BALANCE SHEET AS AT 31.03.2009. THE FACTS NARRATED IN HER STATEMENT ARE SUPPORTED BY OTHER EVIDENCES, ALREADY MENTIONED ABOVE. 7 I.T.A. NO. 598/KOL/2016 ASSESSMENT YEAR: 2009 - 10 M/S. B.U. GARDENS PVT. LTD O ) IT HAS BEEN SEEN FROM THE STUDY OF THE CASE THAT IT IS A UNIQUE CASE, WHERE THE ASSESSEE GAV E MISREPRESENTATION EVEN IN THE REGISTERED DEED SHOWING RESIDENTIAL UNITS WITH DEMARCATIONS, WHICH PHYSICALLY NEVER EXISTED, FOR THE ONLY PURPOSE TO CLAIM DEDUCTION U/S 8 O - I B . EFFORTS HAVE BEEN GIVEN BY THE UNDERSIGNED TO FIND OUT SIMILAR CASE FROM THE STUDY MATERIALS AND FROM INTERNET SURFING BUT CASE OF SUCH TYPE HAS NOT BEEN FOUND. THE DECISIONS REFERRED BY THE ASSESSEE E.G. CASES OF MERGER OF FLATS ETC. HAVE NO APPLICABILI TY IN THIS CASE AS ALREADY MENTIONED EARLIER, IT IS A UNIQUE CASE. IN THE ACT, THERE IS NO PROVISION FOR PROPORTIONAL DISALLOWANCE FOR CONSTRUCTION FOR COMMERCIAL PURPOSES, THEREFORE SUCH A CLAIM ALSO IS NOT ACCEPTABLE. THE ASSESSEE'S CLAIM QUOTING WRONG C OMMERCIAL AREA MENTIONED IN THE SHOW CAUSE LETTER DT. 15.12.2011, ALSO INDICATE ADMISSION OF ITS CONSTRUCTION OF COMMERCIAL SPACE. IN VIEW OF THE ABOVE DISCUSSION, IT IS HELD THAT THE ASSESSEE HAS FAILED TO FULFILL ALL THE CONDITIONS FOR DEDUCTION U/S BO - IB AND THE CLAIM OF DEDUCTION U/S 8 O - IB OF RS. 1,60,07,440/ - IS DISALLOWED. INITIATE D PENALTY PROCEEDING U/S 271(1 )(C) READ WITH EXPLANATION 1 SEPARATELY, FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. 2.1. AGGRIEVED THE ASSESSEE CARRIED THE MATTER IN APPEAL. THE LD. FIRST APPELLATE AUTHORITY, IN HIS DETAILED ORDER ALLOWED THE CLAIM OF THE ASSESSEE. AGGRIEVED THE REVENUE IS BEFORE US IN THE APPEAL ON THE FOLLOWING GROUNDS: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED BY ALLOWING CLAIM OF DEDUCTION OF RS. 1,60,07,440/ - U/S. 801B(10) OF THE I.T. ACT ISSUED ANY SUCH CERTIFICATE OR ANY APPLICATION FOR THIS PURPOSE SUBMITTED TO THEM BY THE ASSESSEE AT ANY TIME ITS OFFICIAL LETTER TO THE DEPARTMENT, SUBSEQUENT UPON WHICH THE ONUS LIES UPON ON THE ASSESSEE TO SUBSTANTIATE THE GENUINENESS OF THE COMPLETION CERTIFICATE OF ITS HOUSING PROJECT, IN QUESTION, AS PRODUCED BEFORE THE AO, SPECIALLY, WHEN THE PROJECT WAS BUILT UP ON 'SALI' (AGRICULT URAL) LAND ON WHICH LEGALLY, A HOUSING PROJECT CANNOT BE UNDERTAKEN AND EVEN, THE GRANTING OF APPROVAL OF BUILDING UP A HOUSING PROJECT ON 'SALI' LAND IS QUESTIONABLE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED BY HOLDING THAT SUBSTANTIAL AMOUNT OF PAYMENTS IN RESPECT OF EXPENSES OF THE PROJECT WERE ADVANCED BY THE ASSESSEE TO THE CONTRACTING PARTIES IN FY 2007 - 08 AND FINANCIAL PAYMENT HAD SPILLED OVER TO END OF 31.03.2009 WHEREAS, ADMITTED FACTS OF THE CASE IS THAT THE PROJECT WAS COMPLETED IN THE FY 2007 - 08 ITSELF, THEREBY, ALL THE MATERIALS MIGHT HAVE BEEN PURCHASED FROM THE CONTRACTING PARTIES DURING THE YEAR 2007 - 08 ITSELF AND ALL THE INCIDENTAL EXPENSES TO THE PROJECT WERE INCURRED DURING THE FY 2007 - 08 ITSELF, WHICH THE A CCOUNTING SYSTEM OF THE ASSESSEE DOES NOT PERMIT. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED BY NOT APPRECIATING THAT THE TOTAL COMMERCIAL AREA IN THE SAID HOUSING PROJECT WAS CALCULATED AT 23,978/ - SQ. FT. AND CLAUSE (D) OF S EC. 801B(10) OF THE ACT CAME INTO FORCE W.E.F. 0L.04.2005 I.E. AY 2005 - 06 AND THE PROJECT WAS COMPLETED IN FY. 2007 - 08, I.E. TILL THEN THE PROJECT WAS COMPLETED AND THE SAID CLAUSE HAD ALREADY COME INTO FORCE W.E.F. AY 2005 - 06, THEREBY APPLICABLE FOR THE A SSESSEE ALSO. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED BY IGNORING DETAILED INVESTIGATION CARRIED OUT BY THE AO IN MODE OF SPOT VISIT BY THE INSPECTOR, TAKING SNAPS OF THE SPACES, INFORMATION FROM FLAT OWNERS ASSOCIATION IN THE SAID 8 I.T.A. NO. 598/KOL/2016 ASSESSMENT YEAR: 2009 - 10 M/S. B.U. GARDENS PVT. LTD PROJECT WITH REGARD TO ALLOTMENT OF OPEN SPACE OF 5435 SQ. FT. WITHOUT ANY DEMARCATION IN ACTUAL, BUT PURPORTEDLY DEMARKED IN THE DEED OF SALE OF THE UNITS, TO A SINGLE ALLOTTEE WHICH VIOLATES THE PROVISIONS OF SEC. 80IB(10) OF THE ACT. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED BY IGNORING THAT MALAFIDE INTENTION OF DIRECTOR OF THE ASSESSEE AS WELL AS ONE OF ALLOTTEE OF 5435 SQ. FT IN THE PROJECT BY NOT CAUSING THEIR APPEARANCE BEFORE THE AO, WHEN SPECIFICALLY ASKED F OR, FOR FURTHER CROSS- EXAMINATION AFTER RETRACTION AND RENOUNCEMENT BY THE SAID ALLOTTEE OF HER STATED GIVEN BEFORE THE AO U/S. 131 OF THE ACT IN PRESENCE OF A LADY STAFF MEMBER OF THE DEPARTMENT. 6. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CI T(A) HAS ERRED BY RELYING ONLY ON THE SUBMISSION OF THE ASSESSEE AND NOT REMANDING THE CASE TO THE AO, THEREBY, VIOLATING RULE - 46A OF THE IT RULE WITH REGARD TO ALLOWANCE OF RELIEF ON THE ISSUE OF DISALLOWANCE OF BOGUS EXPENSES FOR RS. 9,75,000/ - , RS. 19,9 50/ - AND RS. 15,40,000/ - AND CESSATION OF LIABILITY FOR RS. 1,42,884/ - . 7. THE APPELLANT CRAVES LEAVE TO ADD/DELETE/MODIFY THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 3. THE LD. D/R, SUBMITTED THAT THE ONUS OF PROVING THAT THE COMPLETION CERT IFICATE OF HOUSING PROJECT WAS GENUINE LAY ON THE ASSESSEE AND THAT HE HAS NOT DISCHARGED THE SAME. HE FURTHER SUBMITTED THAT THE PROJECT WAS BUILT ON AGRICULTURAL LAND AND HENCE ILLEGAL. HE WONDERED HOW THE ASSESSEE GOT THE APPROVAL OF BUILDING PLAN S ON THE SALI LAND IN QUESTION. HE SUBMITTED THAT THE LD. CIT(A) ERRED IN HOLDING THAT THE COMPLETION CERTIFICATE PRODUCED BY THE ASSESSEE WAS GENUINE AND THAT THERE IS NO PRESCRIBED FORM FOR ISSUING SUCH COMPLETION CERTIFICATE. HE SUBMITTED THAT THE CONCLU SION THAT NO PR OVISION S ARE PLACED IN THE INCOME TAX ACT, 1961, ON THE NATURE OF LAND SO AS TO ENABLE THE ASSESSEE TO QUALIFY FOR DEDUCTION U/S 80 - IB(10) OF THE ACT, IS NOT CORRECT BECAUSE , WHAT IS ILLEGAL CANNOT BE CONDONED. HE POINTED OUT THAT THE OBSERV ATION OF THE LD. CIT(A) THAT THERE IS SPILL OVER ON CERTAIN EXPENDITURE TO THE NEXT ASSESSMENT YEAR, SHOULD HAVE LED TO A CONCLUSION THAT THE PROJECT IS NOT COMPLETE. ON THE ISSUE OF COMMERCIAL SPACE IN THE HOUSING PROJECT, HE ARGUED THAT THE ASSESSING O FFICER HAS SPECIFIED THAT THE COMMERCIAL SPACE WAS 2398 SQ. FT. APPROXIMATELY. HE DISPUTED THE FINDING OF THE LD. CIT(A) THAT THERE WAS NO RESTRICTION OF COMMERCIAL AREA IN RESPECT OF HOUSING PROJECT SANCTIONED PRIOR TO 31/03/2005. HE VEHEMENTLY CONTENDED THAT THE LD. CIT(A) HAS IGNORED DETAILED INVESTIGATION CARRIED OUT BY THE ASSESSING OFFICER. REFERRING TO GROUND NO. 6, THE LD. D/R, SUBMITTED THAT THE LD. CIT(A) HAD MERELY RELIED ON THE SUBMISSIONS OF THE ASSESSEE AND ERRED IN NOT REMANDING THE CASE TO T HE ASSESSING OFFICER FOR EXAMINATION OF THE CLAIM OF BOGUS EXPENSES OF CESSATION OF LIABILITIES. 9 I.T.A. NO. 598/KOL/2016 ASSESSMENT YEAR: 2009 - 10 M/S. B.U. GARDENS PVT. LTD 3.1. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, SUPPORTED THE ORDER OF THE LD. CIT(A) AND SUBMITTED THAT THE ASSESSING OFFICER IS NOT COMPETENT TO A DJUDICATE WHETHER IT IS PERMISSIBLE FOR THE ASSESSEE TO CONSTRUCT A HOUSING PROJECT ON A PARTICULAR LAND OR NOT. IT WAS SUBMITTED THAT IT IS FOR THE COMPETENT AUTHORITY UNDER THE RELEVANT ENACTMENT WHICH SANCTIONS PLANS, WH ICH HAVE TO DECIDE AS TO WHETHER SUCH CONSTRUCTIONS ARE PERMISSIBLE ON A PARTICULAR L AND OR NOT. ON THE ISSUE OF COMPLETION CERTIFICATE, HE SUBMITTED THAT THE LD. CIT(A) WAS RIGHT IN HOLDING THAT THE COMPLETION CERTIFICATE WAS PRODUCED AS REQUIRED BY LAW . HE SUBMITTED THAT THE FAILURE OF THE LOCAL BODY TO TRACE FROM ITS RECORDS, THE COPY OF THE COMPLETION CERTIFICATE AFTER A LAPSE OF FOUR YEARS , CANNOT LEAD TO AN ADVERSE INFERENCE AGAINST THE ASSESSEE SPECIFICALLY WHEN NO ADVERSE MATERIAL WAS WITH THE ASSESSING OFFICER TO NEGATE THE FINDI NGS IN THE CERTIFICATE . HE RELIED ON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF COMMISSIONER INCOME TAX - I VS CHD DEVELOPERS LTD . 362 ITR 177 ( DELHI ) , IN WHICH HE HELD THAT AFTER A HOUSING PROJECT IS APPROVED BY THE LOCAL AUTHORITY, THERE I S NO NEED TO GET A COMPLETION CERTIFICATE FOR THE PURPOSE OF CLAIMING DED UCTION U/S 80 - IB(10) OF THE ACT AND SUBMITTED THAT EVEN IF THE ASSESSING OFFICER IGNORES THIS COMPLETION CERTIFICATE, THE ASSESSEE IS ELIGIBLE FOR CLAIM OF DEDUCTION U/S 80 - IB(10) OF THE ACT. IN THE CASE OF THE ASSESSEE HE POINTED OUT THAT THE PROJECT WAS SANCTIONED IN SEPTEMBER, 2004. 3.2. ON THE ISSUE THAT CERTAIN EXPENSES OF THE PROJECT HAS SPILLED OVER TO THE NEXT FINANCIAL YEAR, HE SUBMITTED THAT ALL THE WORK WAS COMPLETED BY TH E CONTRACTORS DURING THE FINANCIAL YEAR 2007 - 08, AND IT WAS ONLY AFTER VERIFICATION OF SUCH WORKS THAT THE ASSESSEE HAD MADE PAYMENTS TO THEM BY WAY OF CHEQUES DURING THE FINANCIAL YEAR 2008 - 09. HE SUPPORTED THE FACTUAL FINDINGS OF THE LD. CIT(A) ON THIS I SSUE. EVEN OTHERWISE, HE SUBMITTED THAT THE HOUSING PROJECT WAS SANCTIONED AFTER 01/04/2004, AND WHICH WAS REQUIRED TO BE COMPLETED WITHIN FOUR YEARS I.E. BEFORE THE 31/03/2009 AND EVEN IT IS HEL D THAT CERTAIN EXPENDITURE WAS INCURRED IN THE FINANCIAL YEAR 2008 - 09, STILL IT CANNOT BE DENIED THAT THE CONSTRUCTION OF THE HOUSING PROJECT WAS COMPLETED BEFORE 31/03/2009 AND HENCE THE CON DI TIONS THAT THE PROJECT HAS TO BE COMPLETED WITHIN A PERIOD OF FOUR YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE HOU SING PROJECT WAS APPROVED BY THE LOCAL AUTHORITIES, HAS BEEN FULFILLED. ON THE ISSUE OF RESTRICTING THE COMMERCIAL AREA IN THE HOUSING PROJECT, AND ON THE ISSUE OF INVESTIGATIONS DONE BY THE ASSESSING OFFICER, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THA T THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. SARKAR BUILDERS (375 ITR 392)(SC) , HAS APPROVED THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF C.I.T. V. BRAHMA ASSOCIATES & ORS., 10 I.T.A. NO. 598/KOL/2016 ASSESSMENT YEAR: 2009 - 10 M/S. B.U. GARDENS PVT. LTD RELIED UPON BY THE LD. CIT(A) AND HELD THAT IN CASE OF HOUSING PROJECTS APPROVED PRIOR TO 31/03/2005, THE RESTRICTIONS PRESCRIBED IN SECTION 80 - IB(10) OF THE ACT , ON PERCENTAGE OF COMMERCIAL AREA THAT CAN BE HELD IS NOT APPLICABLE . 3.3. ON THE ISSUE OF DETERMINATION OF COMMERCIAL SPACE BY THE ASSESSING OFFIC ER, HE SUBMITTED THAT AS PER THE REGISTERED SALE DEEDS, THE ASSESSEE HAS SOLD ONLY SIX RESIDENTIAL UNITS TO M/S. SAJJAN COMMERCIAL ENTERPRISES LTD. AND FIVE RESIDENTIAL UNITS TO SMT. ASHA AGARWAL . HE SUBMITTED THAT THE SALE WAS DONE IN APRIL, 2007 AND WHER EAS THE INSPECTOR DEPUTED BY THE ASSESSING OFFICER INSPECTED THE PREMISES IN 2011, WHICH WAS AFTER FOUR YEARS. RELYING ON THE DOCUMENTARY EVIDENCE IN THE FORM OF SALE DEEDS OF INDIVIDUAL FLATS, HE ARGUED THAT THE ALLOTTEES MIGHT HAVE MODIFIED THE FLATS FOR USE AS COMMERCIAL SPACE AND THAT HE HAS NO CONTROL OF THE SAME. IN ANY EVENT, HE SUBMITTED THAT THE RESTRICTION OF PERCENTAGE OF COMMERCIAL SPACE AS ALREADY STATED DOES NOT APPLY TO THE ASSESSEE. ON THE ISSUE OF DISALLOWANCE OF EXPENDITURE, HE RELIED ON T HE FINDINGS OF THE LD. CIT(A). 4. RIVAL CONTENTIONS HEARD. ON A CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND PERUSAL OF THE PAPERS ON RECORD AND THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS CASE - LAW CITED, WE HOLD AS FOLLOWS: - 5 . THE FIRST ISSUE TO BE ADJUDICATED IS WHETHER THE COMPLETION CERTIFICATE PRODUCED BY THE ASSESSEE IS GENUINE OR NOT. THE LD. CIT(A) HAS FOUND THAT THE PLAN FOR THE HOUSING PROJECT WAS SANCTIONED BY THE GRAM PANCHAYAT AND ON E , SHRI BIPLAB BANERJEE, IN HIS CAPACITY AS PRADHAN OF JOKA - II , GRAM PANCHAYAT, SIGNED THE PLAN. THE COMPLETION CERTIFICATE WAS ALSO SIGNED AND ISSUED BY THE SAME GENTLEMAN SHRI BIPLAB BANERJEE. THUS, THE GENUINENESS OF THE SAME CANNOT BE DOUBTED. THE LD. CIT(A) HAS ALSO RECORDED THAT TH E ASSESSING OFFICER HAS SOUGHT CONFIRMATION FOR ISSUING OF SUCH CERTIFICATE FROM THE CONCERNED AUTHORITIES WHO HAVE ISSUE THE SAME BUT HAS NOT FOLLOWED UP SO AS TO BRING ON RECORD , AS TO WHY CERTIFICATES ISSUED BY THE AUTHORITIES SHOULD BE DISREGARDED WITH ADEQUATE REASONS. THE LD. D/R, COULD NOT CONTROVERT THESE FINDINGS OF THE LD. CIT(A). THE ASSESSING OFFICER COULD NOT BRING ON RECORD , ANY EVIDENCE TO CONTROVERT FACTUAL FINDING IN THE THE COMPLETION CERTIFICATE FILED BY THE ASSESSEE AS ISSUE BY THE GRAM PANCHAYAT, JOKA - II . THE GRAM PANCHAYAT, JOKA - II HAS NOT DENIED ISSUING THIS SAID CERTIFICATE. NO EVIDENCE IS BROUGHT ON RECORD BY THE ASSESSING OFFICER THAT 11 I.T.A. NO. 598/KOL/2016 ASSESSMENT YEAR: 2009 - 10 M/S. B.U. GARDENS PVT. LTD THIS CERTIFICATE IS NOT GENUINE. HENCE THE LD. CIT(A) HAS RIGHTLY UPHELD THE CLAIM OF THE ASSESSEE. IN ANY EVENT, THE HONBLE DELHI HIGH COURT IN THE CASE OF COMMISSIONER INCOME TAX - I VS CHD DEVELOPERS LTD . (SUPRA), HELD AS FOLLOWS: - IF A HOUSING PROJECT HAS BEEN APPROVED PRIOR TO 31/03/2005, THERE IS NO NEED TO GET A COMPLETION CERTIFICATE FOR THE PURPOSE OF CLAIMING DEDUCTION U/S80IB(10). 5.1. NO CONTRARY DECISION IS BROUGHT TO OUR NOTICE BY THE LD. D/R . O N THESE FACTS, WE UPHOLD THE FINDINGS OF THE LD. CIT(A) AND DISMISS THIS GROUND OF THE REVENUE. 6. COMING TO THE ISSUE OF COMMERCIAL PAYMENT IN RESPECT OF EXPENSES OF THE PROJECT IN THE SUBSEQUENT YEAR, FACTUALLY THE LD. CIT(A) HAS CONCLUDED THAT THE EXPENDITURE IN QUESTION ACCRUED AND WAS INCURRED IN THE IMPUGNED ASSESSMENT YEAR AND THAT ONLY THE PAYMENTS IN QUESTION WERE MADE IN THE SUBSEQUENT ASSESSMENT YEAR. EVEN OTHERWISE, THE LD. COUNSEL FOR THE ASSESSEE POINTED OUT THAT THE TIME FOR COMPLETION OF THE PROJECT WAS AVAILABLE WITH THE ASSESSEE UP TO 31/03/2009. UNDER THESE CIRCUMSTANCES, WE FIND NO INFIRMITY IN THE ORDER OF THE LD. FIRST APPELLATE AUTHORITY, ON THIS ISSUE. 7. THE NEXT ISSUE IS WHETHER THE ASSESSING OFFICER CAN DETERMINE WHETHER THE HOUSING PROJECT IN QUESTION WAS LEGALLY CONSTRUCTED OR NOT. IN OUR VIEW, THIS IS NOT THE JURISDICTION OF THE ASSESSING OFFICER. THE COMPETENT AUTHORITY HAS SANCTIONED THE BUILDING PLAN IN THE CASE OF THE ASSESSEE AND THE ASSESSEE HAD CONSTRUCTED THE FLATS AND THE COMPETENT AUTHORITY HAS ISSUED THE COMPLETION CERTIFICATE. IT IS NOT FOR THE ASSESSING OFFICER TO ADJUDICATE THE ISSUE AS TO WHETHER THE CONSTRUCTION OF THE PROJECT IS PERMISSIBLE ON A PARTICULAR LAND OR NOT. AS RIGHTLY HELD BY THE LD. CIT(A), THIS IS NOT THE REQUIREMENT OF LAW. HENCE, WE DISMISS GROUND NO. 1 & 2 OF THE ASSESSEE. 8. GROUND NO. 3, 4 & 5, ARE ON THE ISSUE OF CALCULATION OF THE TOTAL COMMERCIAL AREA IN THE HOUSING PROJECT AND WHETHER THE ASSESSEE FOLLOWED SECTION 80 - IB(10)(D) OF THE ACT, WHICH CAME INTO FORCE W.E.F. 01/04/2005. WE FIND THAT THE HOUSING PROJECT HAS BEEN APPROVED IN SEPTEMBER, 2004, I.E., BEFORE 01/04/2005. THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. 12 I.T.A. NO. 598/KOL/2016 ASSESSMENT YEAR: 2009 - 10 M/S. B.U. GARDENS PVT. LTD SARKAR BUILDERS (SUPRA) , HAS APPROVED THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF BRAHMA ASSOCIATES & ORS. (SUPRA) RELIED ON BY THE LD. CIT(A) , AND HAS HELD AS FOLLOWS: - IN CASES WHERE THE HOUSING PROJECT WERE APPROVED PRIOR TO 31.03.205, THE RESTRICTION PRESC RIBED IN SECTION 80 - IB(10(D) OF THE ACT, IN NOT APPLICABLE. 8.1. RESPECTFULLY FOLLOWING THE PROPOSITIONS OF LAW LAID DOWN BY THE APEX COURT, WE UPHOLD THE FINDINGS OF THE LD. FIRST APPELLATE AUTHORITY AND DISMISS THIS GROUND OF THE ASSESSEE. 9. GROUND NO. 6, IS ON THE ISSUE OF DISALLOWANCE OF EXPENSES ON THE GROUND THAT THEY WERE BOGUS IN NATURE . ADJUDICATION OF THIS ISSUE WOULD BE ACADEMIC IN NATURE AS WE HAVE HELD THAT THE ASSESSEE IS ENTITLED FOR DEDUCTION U/S 80 - IB(10) . EVEN IF THE REVENUES GROUNDS ARE ALLOWED ON THIS ISSUE, THE RESULT SHOULD BE THAT THE PROFITS OF THIS PROJECT WOULD GO UP AND THE SAME WOULD BE ALLOWED AS A DEDUCTION U/S 80 - IB(10) OF THE ACT. HENCE IT WOULD BE REVENUE NEUTRAL. EVEN OTHERWISE, THE FACTUAL FIND INGS OF THE LD. CIT(A) ON THIS ISSUE OF BOGUS EXPENDITURE C OULD NOT BE CONTROVERTED BY THE LD. D/R. HENCE, WE UPHOLD THE ORDER OF THE LD. FIRST APPELLATE AUTHORITY AND DISMISS GROUND NO. 6 OF THE REVENUE. 10. GROUND NO. 7, IS GENERAL IN NATURE. 11. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. KOLKATA, THE 21 ST DAY OF MARCH , 2017. SD/ - SD/ - [ ABY T. VARKEY ] [ J. SUDHAKAR REDDY ] JUDICIAL MEMBE R ACCOUNTANT MEMBER DATED : 21 . 0 3 .201 8 {SC SPS} 13 I.T.A. NO. 598/KOL/2016 ASSESSMENT YEAR: 2009 - 10 M/S. B.U. GARDENS PVT. LTD C OPY OF THE ORDER FORWARDED TO: 1. INCOME TAX OFFICER - 12(3), KOLKATA P - 7, CHOWRINGHEE SQUARE 7 TH FLOOR KOLKATA 700 069 2. M/S. B.U. GARDENS PVT. LTD ANAND APARTMENT 2 ROWLAND ROAD KOLKATA 700 020 3. CIT(A) - 4. CIT - , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY HEAD OF OFFICE/ D.D.O. ITAT, KOLKATA BENCHES