KUKREJA CONSTRCUTION CO., MUMBAI V. ASST CIT CEN CIR 31, MUMBAI

ITA 6774/MUM/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4084 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 23-02-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 06-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S KEMWAL
• Keywords: Question of law; Fair market value
• Section: 143(3); 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUM BAI BEFORE SHRI AMIT SHUKLA, JM AND SHRI RAJESH KUMAR, AM ./ I.T.A. NO 6787/MUM/2012 ( / ASSESSMENT YEAR: 2009-10) ACIT, CENTRAL CIRCLE-31, AAYKAR BHAVAN, MUMBAI-400 020. / VS. KUKREJA CONSTRUCTION CO. LALASHISH, PLOT NO.219, 11 TH ROAD, CHEMBUR, MUMBAI-400 071. ./ ./PAN/GIR NO. AABFK 0413C ( /APPELLANT ) : ( / RESPONDENT ) ./ I.T.A. NO 6774/MUM/2012 ( / ASSESSMENT YEAR: 2009-10) KUKREJA CONSTRUCTION CO. LALASHISH, PLOT NO.219, 11 TH ROAD, CHEMBUR, MUMBAI-400 071. / VS. ACIT, CENTRAL CIRCLE-31, AAYKAR BHAVAN, MUMBAI-400 020. ./ ./PAN/GIR NO. AABFK 0413C ( /APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI J.P. BAIRAGRA / RESPONDENT BY : SHRI S.S. KEMWAL DATE OF HEARING : 24/02/2016 DATE OF PRONOUNCEMENT : 25/04/2016 2 ITA NO. 6787&6774/M/2012 (A.Y.09-10) KUKREJA CONSTRUCTION CO. / O R D E R PER RAJESH KUMAR, A. M: THESE CROSS APPEALS FILED BY THE ASSESSEE AND REVE NUE DIRECTED AGAINST THE ORDER DATED 22/08/2012 OF COMMISSIONER OF INCOME TAX (APP EALS)-40, MUMBAI (HEREINAFTER CALLED AS THE CIT(A)) FOR ASSESSMENT Y EAR 2009-10. A. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION MADE OF RS.52,71,02, 218/- BY HOLDING THAT THE THREE PROJECTS WERE NOT COMPLETE DURING THE YEAR AN D HENCE THE PROFIT WORKED OUT FROM THE SAME IS NOT THE INCOME OF THE YEAR UND ER CONSIDERATION WITHOUT APPRECIATING THE FACT THAT THE SAID PROJECTS WERE A LREADY COMPLETE AND THE ASSESSEE WAS MERELY DEFERRING THE PAYMENT OF TAXES ON THE SAME. B. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(A) ERRED IN RESTRICTING THE DISALLOWANCE MADE U/S. 40A (2)(B) IN RESPECT OF SERVICES RENDERED TO KUKREJA SERVICES P LTD TO RS.7,50,000/- AS AGAINST RS.9,30,000/- MADE IN THE ASSESSMENT ORDER. 2. THE FACTS IN BRIEF ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME ON 26.09.2009 DECLARING NIL INCOME AFTER CLAIMING DEDU CTION U/S 80-IB AT RS. 8,47,81,998/-. THE CASE OF THE ASSESSEE WAS SELECTE D FOR SCRUTINY AND STATUTORY NOTICES U/S 143(2) AND 142(1) WERE ISSUED AND DULY SERVED UPON THE ASSESSEE VIDE ITS ORDER DATED ON 30.12.2011. THE AO FRAMED THE AS SESSMENT U/S 143(3) OF THE ACT AT RS.53,65,64,541/- BY MAKING VARIOUS DISALLOWANCE S AS INCORPORATED IN PARA 13 OF THE ASSESSMENT ORDER. 3 ITA NO. 6787&6774/M/2012 (A.Y.09-10) KUKREJA CONSTRUCTION CO. 3. THE ISSUE RAISED IN GROUND NO.1 IS AGAINST THE D ELETION OF ADDITION OF RS.52,71,02,218/- BY THE CIT(A) ON THE GROUND THAT THREE PROJECTS NAMELY, SAI ASHISH, HARI KUNJ AND CHEMBUR HEIGHTS WERE NO T COMPLETED DURING THE YEAR ON THE BASIS OF PROJECT COMPLETION METHOD REGULARLY FOLLOWED BY THE ASSESSEE AND ACCEPTED BY THE DEPARTMENT IN THE PRECEDING AND SUC CEEDING YEARS. 3.1 THE LD. AO TREATED THE ABOVE THREE PROJECTS AS COMPLETED DURING THE YEAR ON THE BASIS OF OCCUPATION CERTIFICATE OBTAINED BY THE ASSESSEE FROM THE BOMBAY MUNICIPAL CORPORATION WHICH WAS IN RESPECT OF SOME OF THE BUILDINGS IN THE PROJECTS BY TREATING THE ADVANCE RECEIVED AGAINST T HE SALE OF FLATS OF RS.88,40,83,360/- IN THESE THREE PROJECTS AS SALES AND ALSO TREATING AMOUNT IN THE WORK IN PROGRESS AMOUNTING TO RS.35,69,81,098/- AS COST OF CONSTRUCTION AS ON 31.03.2009 AND THEREBY TAKING THE DIFFERENCE BETWEE N THE TWO OF RS.52,71,02,218/- AS PROFIT FROM THESE THREE PROJECTS AND ADDED THE S AME TO THE INCOME OF THE ASSESSEE BY HOLDING THAT THE ASSESSEE HAD COMPLETED SUBSTANT IAL PART OF THE CONSTRUCTION IN THESE THREE PROJECTS AND ALSO RECEIVED CONSIDERATI ONS FOR SALE OF FLATS. IN SOME CASES THE AO OBSERVED THAT THE MONEY RECEIVED FROM THE BUYERS WERE MORE THAN THE SALES CONSIDERATION. WHILE FRAMING THE ASSESSME NT THE LD. AO RELIED HEAVILY ON THE SPOT VERIFICATION REPORT BY THE INSPECTOR. ONLY THOSE PROJECTS WERE TREATED AS COMPLETED DURING THE YEAR IN WHICH THE ADVANCE AGAI NST THE SALE OF FLATS RECEIVED 4 ITA NO. 6787&6774/M/2012 (A.Y.09-10) KUKREJA CONSTRUCTION CO. TILL THE YEAR END EXCEEDED OR WAS MORE THAN AMOUNT IN WORK IN PROGRESS ACCOUNT, THE DETAILS WHEREOF ARE COMPREHENSIVELY GIVEN IN PA RA 9.2 OF THE ASSESSMENT ORDER. 3.2 AGGRIEVED BY THE ORDER OF AO THE ASSESSEE PREFE RRED APPEAL BEFORE THE CIT(A) WHO ALLOWED THE APPEAL OF THE ASSESSEE BY HO LDING AS UNDER:- 3.6 CONSIDERING ALL THE ARGUMENTS GIVEN BY THE ID. AO IN THE ASSESSMENT ORDER AND BY THE AR OF THE APPELLANT IN THE SUBMISSIONS R EVEALED THAT THE MAIN POINT OF DIFFERENCE BETWEEN THE LD. AO AND THE APPELLANT IS ON ACCOUNT OF THE DEFINITION OR COMPLETION OF PROJECT. IN RESPECT OF SAI ASHISH PRO JECT, THE FACT IS THAT THE APPELLANT HAS COMPLETED THE PROJECT AS PER THE APPR OVED PLAN AND SOLD THEM OUT TO PROSPECTIVE BUYERS. WHILE DOING SO, DUE TO CERTAIN PROGRESS IN LITIGATION IN RESPECT OF DC RULES, THE APPELLANT RECEIVED APPROVAL FOR AD DITIONAL FLOORS AND HAS THEREFORE, TREATED THE CONSTRUCTION AND SALE OF ADD ITIONAL FLOORS AS PART OF THE ORIGINAL PROJECT. ON THE OTHER HAND, THE ID .AO HAS TREATED THE COMPLETION OF THE ORIGINAL APPROVED PLAN AS THE COMPLETION OF THE PRO JECT. SO, THE ISSUE TO BE CONSIDERED IN RESPECT OF THE PROJECT IS WHETHER A F URTHER EXTENSION BY ADDING ADDITIONAL FLOORS COULD BE TAKEN AS AN ADDITIONAL P ROJECT, OR- MERE EXTENSION OF THE ORIGINAL PROJECT. IN RESPECT OF THE PROJECTS, V IZ., TILE HARIKUNJ PROJECT AND CHEMBUR HEIGHTS PROJECT, ONE TOWER HAS BEEN COMPLET ED AND SOLD WHILE THREE TOWERS ARE UNDER DIFFERENT STAGES OF COMPLETION. TH E ID.AO TREATED THE SALE OF ONE TOWER AS COMPLETION OF THAT PART OF THE PROJECT. 3.7 BEFORE COMING TO ANY DEFINITE CONCLUSION, IT IS NECESSARY TO ANALYSE THE REASONS GIVEN BY THE ID.AO TO HOLD THAT THE PROJECT S NAMELY SAI ASHISH, HARIKUNJ HEIGHTS AND CHEMBUR HEIGHTS STOOD COMPLETED DURING THE YEAR UNDER CONSIDERATION. THE MAIN REASON FOR CONSIDERING SAI ASHISH PROJECT TO BE COMPLETED IS THAT THE SANCTIONED FLOORS OF WING A,B ,C,D & E AT 6,6,6,6 & 7 RESPECTIVELY WERE COMPLETED BY 2008, WHEREAS THE AP PELLANT RECEIVED COMMENCEMENT CERTIFICATE ON 18.02.2010 FOR CONSTRUC TION OF ACLDITIONALL,2,2,O,2 FLOORS RESPECTIVELY. THIS LED THE ID.AO TO TAKE A V IEW THAT THE PROJECT AS PER THE ORIGINAL PLAN WAS COMPLETED IN 2008 AND ADDITIONAL PERMISSION OF FIATS AS PER THE COMMENCEMENT CERTIFICATE DATED 18.022010 SHOULD NOT BE TREATED AS PART OF THE ORIGINAL PROJECT. AS AGAINST THIS, THE ID.AR OF THE APPELLANT SUBMITTED STATEMENT OF FACTS THAT THE REVISED PLAN WAS ONLY ON ACCOUNT OF LITIGATION IN WHICH THE HON'BLE HIGH COURT HAS PASSED A STAY ORDER ON THE DEBIT OF TDR IN THE RESTRICTED ZONE. 5 ITA NO. 6787&6774/M/2012 (A.Y.09-10) KUKREJA CONSTRUCTION CO. THE ORIGINAL PLAN COULD ONLY BE APPROVED SUBJECT TO SUCH A STAY ORDER AND WHEN THE LITIGATION CAME TO AN END AND THE STAY ORDER WA S VACATED, THE APPELLANT RECEIVED THE COMMENCEMENT CERTIFICATE ON 18.02.2010 FOR THE ADDITIONAL FLOORS. HOWEVER, THE LD. AR CLAIMED THAT NOTWITHSTANDING TH E FACT THAT THE POSSESSION GIVEN TO THE BUYERS WHO PURCHASED THE FLAT AS PER T HE ORIGINAL PLAN, THE PROJECT CONTINUED TO TAKE SHAPE UNTIL ADDITIONAL FLOORS WER E COMPLETED. THE TOTAL FLATS TO BE CONSTRUCTED AS PER THE ORIGINAL PLAN WAS 155 TO WHICH 44 FLATS WERE ADDED AFTER THE REVISED COMMENCEMENT CERTIFICATE WAS RECE IVED. THUS, TOTAL FLATS UNDER CONSTRUCTION IN SAI ASHISH PROJECT WAS 199 0 F WHIC H ONLY 121 FLATS WERE SOLD UPTO THE YEAR UNDER CONSIDERATION AND THE REMAINING 78 FLATS ARE SHOWN IN THE CLOSING STOCK. THE ID.AR CLAIMED THAT THE DATE ON W HICH THE OCCUPATION CERTIFICATE IS RECEIVED FROM THE MMC IN RESPECT OF THE LAST OF THE BUILDINGS OF THE PROJECT, HAS TO BE TREATED AS THE DATE OF COMPLETION OF PROJECT. THE ID.AR STATED THAT THIS PRACTICE HAS BEEN FOLLOWED BY THE APPELLANT AND APP ROVED BY THE ITAT IN THE GROUP CASES. RELIANCE WAS PLACED ON ITAT'S DECISION IN THE WAZARINA ESTATE & INVESTMENT P. LTD V/S. ACIT DATED 29.01.2004 IN ITA .NO.2107 & 3934/MUM/2000 FOR A.YRS 1996-97 AND 1997-98. THE APPELLANT'S SUBM ISSION IN RESPECT OF OTHER TWO PROJECTS NAMELY CHEMBUR HEIQHTS AND HARIKUNJ HE IGHTS FURTHER BUILD UP THE CONCEPT OF COMPLETION OF PROJECT. IN RESPECT OF THE SE TWO PROJECTS, THE ID.AO HAS MAINLY RELIED ON THE INSPECTOR'S REPORT WHICH READS AS UNDER: A. THE CHEMBUR HEIGHTS IS A STILT PLUS 14 FLOOR BUI LDING AND THERE ARE TWO WINGS NAMELY A AND B IN THE SAID BUILDING WITH FOUR FLATS ON EACH WING. ON A SPOT ENQUIRY, THE WATCHMAN HAS STATED THAT THE BUILDING CHEMBUR HEIQHTS IS 3 TO 4 YEARS OLD. THERE IS A LANDSCAPED GARDEN. PHOTOGRAPH S OF THE SITE AS WELL AS THE NAME PLATE DISPLAYED IN EACH WING HAS BEEN TAKEN. B. THE HARIKUNJ BUILDING IS SITUATED NEAR CHEMBUR H EIGHTS AND IT IS A STILT PLUS 14 FLOOR BUILDING HAVING STILT AREA FOR PARKING. BUILD ING HAS SINGLE WING OF 84 FLATS. LANDSCAPED GARDEN IS LOCATED IN THE PREMISES. ON A SPOT ENQUIRY, THE WATCHMAN HAS STATED THAT THE BUILDING HARIKUNJ IS 4 TO 5 YEA RS OLD. PHOTOGRAPHS OF THE SITE AS WELL AS THE NAME PLATE DISPLAYED IN EACH WING HA VE BEEN TAKEN. C. THE SAI ASHISH BUILDING HAS A,B,C,D & E WINGS. T HE STRUCTURE OF THE BUILDING IS STILT PLUS 7 FLOORS. THERE ARE FOUR FLATS ON EAC H FLOOR STARTING FROM THE FIRST FLOOR. THE STILT PARKING AREA HAS BEEN CONSTRUCTED ON THE INNER SIDE OF THE PREMISES WHEREAS ON THE OUTER SIDE I.E. ON THE ROAD SIDE, TH ERE ARE SHOPS. MOST OF THE SHOPS HAVE BEEN SOLD, AS IT IS APPARENT FROM THE FACT THA T THEY WERE OPEN, WHEREAS FEW SHOPS WERE FOUND CLOSED. THERE IS A SMALL LANDSCAPE D GARDEN WITH PLAYING EQUIPMENTS FOR SMALL CHILDREN IN THE INNER SIDE OF THE BUILDING. ON A SPOT ENQUIRY, 6 ITA NO. 6787&6774/M/2012 (A.Y.09-10) KUKREJA CONSTRUCTION CO. THE WATCHMAN HAS STATED THAT TILE BUILDING SAI ASHI SH IS AROUND 4 TO 5 YEARS OLD AND ALL THE FLATS ARE OCCUPIED AND THERE ARE TWO FL ATS ON THE 8 TH FLOOR OF THE C AND B WING. PHOTOGRAPHS OF THE SITE AS WELL AS THE NAME PLATE DISPLAYED IN EACH WING HAVE BEEN TAKEN. 3.8 AS IS APPARENT FROM THE INSPECTOR'S REPORT CITE D AT PARA 7.4 OF THE ASSESSMENT ORDER THAT CHEMBUR HEIGHTS PROJECT IS SUPPOSED TO B E HAVING 14X2=112 FLATS. SIMILARLY, HARIKUNJ HEIGHTS IS SUPPOSED TO BE HAVIN G 84 FLATS. ON THE OTHER HAND, THE, DETAILS SUBMITTED BY THE ID.AR OF THE APPELLAN T IN THE STATEMENT OF FACTS CLEARLY INDICATES THAT THERE ARE 82, 84 & 60 FLATS IN BUILDING NO.1,2 & 3 OF HARIKUNJ HEIGHTS AND THERE ARE 124 AND 302 FLATS IN BUILDING NO.1 & 2 OF CHEMBUR HEIGHTS PROJECT. THE ID.AR HAS, THEREFORE, UTILIZED THE INSPECTOR'S REPORT ITSELF TO CLAIM THAT EVEN TILL THE DATE OF INSPECTI ON BY THE INSPECTOR, THE PROJECT WAS NOT COMPLETE. THAT IS PRECISELY THE REASON HE COULD REPORT THE EXISTENCE OF ONLY 112 FLATS IN CHEMBUR HEIGHTS PROJECT AND 84 FLATS I N HARIKUNJ PROJECT. 3.9 ALL THESE FACTORS CLEARLY INDICATE THAT TILL TH E YEAR UNDER CONSIDERATION, THE THREE PROJECTS WERE IN DIFFERENT STAGES OF COMPLETI ON. IN RESPECT OF SAI ASHISH PROJECT, AS AGAINST THE 199 FLATS TO BE CONSTRUCTED , THE APPELLANT RECEIVED ADVANCE AGAINST SALES IN RESPECT OF ONLY 121 FLATS AND THE REMAINING 78 FLATS WERE UNSOLD, WHICH WORKS OUT TO LESS THAN 80% OF THE TOTAL FLATS BEING SOLD, THE APPELLANT CLAIMED THAT THE PROJECT IS NOT COMPLETED EVEN TILL 31.03,2012 AND ALL THE FLATS ARE NOT SOLD. THE TOTAL SALE PROCEEDS RECEIVED IN RESPE CT OF THIS PROJECT UPTO 31.03.2012 IS RS.39.99 CRORES AND THE ADVANCE AGAIN ST SALES RECEIVED UPTO AY, 2009-10 IS ONLY RS. 22.01 CRORES, WHICH IS ALSO LES S THAN 80% OF THE TOTAL REALIZATION. THE ID. AR CLAIMED THAT EVEN THE RATIO OF THE CHAMPIONS CONSTRUCTION CO V/S. ITO (5 ITD 495 BOM), WHICH IS A VERY CONSE RVATIVE VIEW, ALSO DOES NOT SUPPORT THE VIEW THAT THE PROJECT IS COMPLETED, UNT IL CHAMPION CONSTRUCTION'S RATIO WAS BEING FOLLOWED, THE PROJECT WAS TAKEN TO BE COMPLETE WHEN SUBSTANTIAL CONSTRUCTION HAD BEEN COMPLETED AND/ OR SUBSTANTIAL ADVANCE AGAINST SALES HAD BEEN RECEIVED, SUBSEQUENTLY, THE ITAT HAS BEEN SUPP ORTING THE VIEW THAT THE ISSUE DATE OF LAST OF THE OCCUPATION CERTIFICATES SHOULD BE TAKEN TO BE THE DATE OF COMPLETION OF PROJECT. EVEN SECTION 80IB( 10) DEFIN ES THE COMPLETION OF PROJECT TO BE THE DATE OF OCCUPATION CERTIFICATE. 3.10 HAVING ANALYSED THE FACTS IN RESPECT OF 3 PROJ ECTS, IT IS AMPLY CLEAR THAT THERE IS NO MATERIAL REASON TO TREAT THE THREE PROJECT CO MPLETE DURING THE YEAR UNDER CONSIDERATION MERELY BECAUSE THE ADVANCE AGAINST SA LES EXCEEDS THE WORK IN PROGRESS IN A PARTICULAR YEAR, CANNOT LEAD ANYONE T O (.L CONCLUSION THAT THE PROJECT IS COMPLETE OR THAT EXCESS OF ADVANCE RECEI VED OVER WORK IN PROGRESS IS 7 ITA NO. 6787&6774/M/2012 (A.Y.09-10) KUKREJA CONSTRUCTION CO. INCOME OF THE APPELLANT. IN FACT, A LARGE PART OF T HE EXCESS IS APPELLANT'S LIABILITY EVEN IF PERCENTAGE COMPLETION METHOD WAS TO BE FOLL OWED. IN SAI ASHISH PROJECT, ONLY 121 FLATS HAVE BEEN SOLD AND THE REMAINING 78 ARE IN THE STOCK. REALIZATION AGAINST SALES TILL THE YEAR END IN RESPECT OF THIS PROJECT HAS BEEN RS.22.01 CRORES AGAINST THE REALIZATION UPTO 31.03,2012 OF RS. 39.9 9 CRORES, SIMILARLY, IN HARIKUNJ PROJECT, ONLY 76 FLATS HAVE BEEN SOLD AND THE REMAI NING 150 ARE IN THE STOCK, REALIZATION AGAINST SALES TILL THE YEAR END IN RESP ECT OF THIS PROJECT HAS BEEN RS.28.35 CRORES AGAINST THE REALIZATION UPTO 31.03. 2011 OF RS.38.20 CRORES. IN CHEMBUR HEIGHTS PROJECT, ONLY 101 FLATS HAVE BEEN S OLD AND THE REMAINING 325 ARE IN THE STOCK. REALIZATION AGAINST SALES TILL TH E YEAR END IN RESPECT OF THIS PROJECT HAS BEEN RS. 38.04 AGAINST THE REALIZATION UPTO 31.03.2011 OF RS.50.42 CRORES. ALL THESE FACTS CLEARLY INDICATE THAT ALL T HE THREE PROJECTS ARE ONGOING DURING THE YEAR UNDER CONSIDERATION AND NONE IS COM PLETE. FOR THE SAKE OF ARGUMENT, IF ANY OF THE PROJECTS IS ASSUMED TO BE C OMPLETE DURING THE YEAR, THE PROFIT IN RESPECT OF THAT PROJECT ONLY SHOULD HAVE BEEN WORKED OUT BY EXCLUDING ADVANCE IN RESPECT OF INCOMPLETE PROJECTS. THEREFOR E, SINCE IT IS A CASE WHERE NONE OF THE THREE PROJECTS IS COMPLETED DURING THE YEAR UNDER CONSIDERATION, THERE IS NO OCCASION FOR THE ID.AO TO INDULGE IN SUCH AN EXERCISE. . ACCORDINGLY, IT IS HELD THAT THE PROFIT WORKED OUT FROM THE THREE PROJ ECTS AT RS.52,71,02,218/- IS NOT THE INCOME OF THE YEAR UNDER CONSIDERATION AND THE SAME IS DIRECTED TO BE DELETED. 3.4. THE LD. DR SUBMITTED BEFORE US THAT THE ORDER PASSED BY CIT(A) WAS TOTALLY WRONG AS ASSESSEE HAD CONSTRUCTED THE SUBSTANTIAL PART OF THE THREE PROJECTS NAMELY SAI ASHISH, HARI KUNJ AND CHEMBUR HEIGHTS AND ALSO SOLD LARGE NUMBER OF FLATS IN THESE PROJECTS. THE LD. DR DREW OUR ATTENT ION TO THE SPOT VERIFICATION REPORT GIVEN BY THE INSPECTOR WHICH REVEALED THAT THE POSS ESSION OF THE FLATS TO THE FLAT OWNERS WERE GIVEN TO THREE TO FOUR YEARS BACK. THE TOWERS WERE FULLY OCCUPIED BY FLAT OWNERS WITH ALL AMENITIES AND FACILITIES CONNE CTED THERE WITH PROPER LANDSCAPED GARDEN ETC. THE LD. DR HEAVILY RELIED UPON THE ORDE RS OF AO AND PRAYED THAT THE ORDER OF CIT(A) BE SET ASIDE AND THAT OF AO TO BE R ESTORED. THE LD. AR ON THE OTHER 8 ITA NO. 6787&6774/M/2012 (A.Y.09-10) KUKREJA CONSTRUCTION CO. HAND STRONGLY OBJECTED TO THE ARGUMENT OF THE LD. D R BY SUBMITTING THAT ALL THESE PROJECTS WERE INCOMPLETE AS ON 31.03.2009. ON THE OTHER HAND, LD. AR SUBMITTED THAT SAI ASHISH PROJECT HAS TWO BUILDINGS WITH BU ILDING NO 1 WHICH HAS 179 FLATS AND NO 2 WHICH HAS 20 FLATS. THE SECOND PROJECT H ARI KUNJ HAS THREE BUILDINGS 1, 2 & 3 EACH HAVING 82; 84; AND 60 FLATS AND CHEMBUR HEIGHTS PROJECTS COMPRISED OF TWO BUILDINGS WITH SECOND BUILDING HAVING 4 WIN GS NAMELY A,B,C & D AND HAVING 101 AND 302 FLATS RESPECTIVELY. THE LD. AR F ILED DETAIL WORKINGS OF TOTAL SANCTIONED FLATS; FLATS UNDER CONSTRUCTION; FLATS S OLD AND FLATS REMAINING TO BE SOLD AS ON 31.03.2009 IN RESPECT OF ALL THESE THREE PROJ ECTS. IT WAS ALSO POINTED OUT THAT SPOT VERIFICATION BY INSPECTOR WAS WRONG AS THE SAI D REPORT PERTAINED TO THE COMPLETED TOWERS/BUILDINGS ONLY AND NOT FOR ONES WH ICH WERE UNDER CONSTRUCTION. THE LD. AR ALSO FILED THE DETAILS OF ADVANCE RECEIV ED AND COST INCURRED QUA THESE THREE PROJECTS FOR THE ASSESSMENT YEAR 2009-2010 TO 2012-2013 TO PROVE THAT THE ASSESSEE INCURRED VARIOUS EXPENDITURE ON THE CONSTR UCTION OF THESE FLATS AND ALSO RECEIVED ADVANCES AGAINST BOOKING/ SALE OF FLAT IN THESE PROJECTS MEANING THEREBY THAT THESE WERE IN PROGRESS. THE ADVANCE RECEIVED WAS RS.22,01,81,404/-, WHEREAS THE EXPENDITURE WAS RS.11,26,98,112/- ON 31.03.2009 AND THE CORRESPONDING FIGURES ON 31.03.2012 WERE RS.39,99,38,320/- AND 18 ,28,92,916/- RESPECTIVELY IN RESPECT OF THE SAI ASHISH PROJECT. SIMILARLY, IN HA RI KUNJ PROJECT THE ADVANCE RECEIVED TILL ASSESSMENT YEAR 2009-2010 WERE RS.28, 34,91,800/-, WHEREAS WORK IN 9 ITA NO. 6787&6774/M/2012 (A.Y.09-10) KUKREJA CONSTRUCTION CO. PROGRESS WAS RS.13,97,48,362/- AS AGAINST RS.48,99, 91,273/- AND RS.30,34,14,437/- IN ASSESSMENT YEAR 2012-2013 ON BOTH THESE ACCOUNTS . SIMILARLY IN CHEMBUR HEIGHTS PROJECT THE ADVANCE FOR SALE OF FLATS HAD G ONE UP FROM RS.31,04,10,112/- TO RS. 51,58,45,848/-AND COST INCURRED ALSO INCREAS ED FROM RS. 10,45,34,625/- TO 26,08,01,188/- OVER A PERIOD OF THREE YEARS. THE LD . COUNSEL FOR THE ASSESSEE ON THE BASIS OF THESE FACTS VEHEMENTLY SUBMITTED THAT THE ASSESSEE EVEN AFTER THE CLOSE OF FINANCIAL YEAR UNDER CONSIDERATION CONTINUED TO INCUR THE EXPENDITURE ON THE CONSTRUCTION OF FLATS IN ALL THESE THREE PROJECTS A ND ALSO RECEIVED THE ADVANCES AGAINST THE SALE OF FLAT TILL 2012-2013. ALL THESE FACTS UNEQUIVOCALLY PROVED THAT THESE PROJECTS WERE INCOMPLETE AND THE ACTION OF TH E AO IN TREATING THESE PROJECTS AS COMPLETED AND TREATING THE DIFFERENCE BETWEEN TH E ADVANCE AND THE COST OF CONSTRUCTION AS INCOME OF THE ASSESSEE WAS TOTALLY WRONG AND AGAINST THE PRINCIPLE OF ACCOUNTING AS FOLLOWED BY THE ASSESSEE. THE LD. COUNSEL FURTHER SUBMITTED THAT THERE ARE TWO ACCEPTED ACCOUNTING METHODS TO ACCOUN T FOR INCOME FROM THE PROJECTS ONE IS PERCENTAGE COMPLETION METHOD AND ANOTHER I S PROJECT COMPLETION METHOD. THE LD. COUNSEL SUBMITTED THAT THE ASSESSE E IS FOLLOWING THE PROJECT COMPLETION METHOD SINCE BEGINNING WHICH WAS BEING ACCEPTED BY THE DEPARTMENT IN ALL THE YEARS PRIOR AND SUBSEQUENT TO ASSESSMENT YEAR UNDER CONSIDERATION AND IT IS ONLY DURING THE YEAR THE AO HAS ASSESSED THE INC OME OF THE ASSESSEE BY ADOPTING THE METHOD WHICH IS INVARIANCE TO THE METHOD EMPLOY ED BY THE ASSESSEE 10 ITA NO. 6787&6774/M/2012 (A.Y.09-10) KUKREJA CONSTRUCTION CO. CONSISTENTLY OVER THE YEARS. THE LD. AR ALSO FILED COPIES OF THE ASSESSMENT ORDERS PASSED U/S 143(3) FROM ASSESSMENT YEAR 2006-07, 200 8-09 AT PAGE NO.113-148 AND ASSESSMENT YEAR 2010-2011 TO ASSESSMENT YEAR 2012-1 3 AT PAGE NO.112-254 OF THE PAPER BOOK AND ALSO REFERRED TO VARIOUS DECISIONS I N SUPPORT OF HIS ARGUMENTS. 3.5. HAVING HEARD THE RIVAL SUBMISSIONS, PERUSING THE RELEVAN T MATERIAL ON RECORD AND ALSO THE ORDERS OF AUTHORITIES BELOW ,WE FIND THAT THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF DEVELOPING VARIOUS RESID ENTIAL AND COMMERCIAL PROJECTS OF WHICH SOME PROJECTS WERE ELIGIBLE U/S 80-IB(10) OF THE ACT, WHEREAS SOME WERE NOT. THE ASSESSEE WAS FOLLOWING THE PROJECT COMPLE TION METHOD TO RECOGNIZE THE INCOME FROM VARIOUS PROJECTS UNDERTAKEN BY THE ASSE SSEE. THE SAID METHOD OF ACCOUNTING STANDS ACCEPTED BY THE DEPARTMENT IN THE PRECEDING AND SUCCEEDING YEARS AS IS CLEAR FROM THE RECORDS AND VARIOUS ASSE SSMENT ORDERS PASSED U/S 143(3) FOR ASSESSMENT YEARS 2006-07 TO 2008-09 AND ASSESSM ENT YEARS 2010-11 TO 2012-13 (FILED AT PAGE NO. 113 TO 148 AND 212 TO 254 OF TH E PAPER BOOK). LD. AO DURING THE YEAR HAS OBSERVED THAT THE ASSESSEE HAD SUBSTANTIAL LY COMPLETED THE CONSTRUCTION OF THREE PROJECTS NAMELY SAI ASHISH, HARI KUNJ AND CHEMBUR HEIGHTS, AND SO WAS THE POSITION OF SALE ON THE BASIS OF SPOT VER IFICATION REPORT BY THE INSPECTOR WHICH IS REPRODUCED AS UNDER FOR THE SAKE OF CONVEN IENCE: 11 ITA NO. 6787&6774/M/2012 (A.Y.09-10) KUKREJA CONSTRUCTION CO. 7.4 SPOT VERIFICATION BY INSPECTOR IN ORDER TO VERIFY THE STATUS OF THE PROJECT AND BU ILDINGS IN RESPECT OF WHICH THE ASSESSEE HAS RECEIVED ENTIRE SALE AMOUNT ALONG WITH SOCIETY CHARGES, INSPECTOR WAS DEPUTED TO MAKE INSPECTION ON THE SPOT AND SUBM IT HIS REPORT. AS DIRECTED, THE INSPECTOR OF INCOME-TAX VISITED ON THE SITE OF ALL THE PROJECTS AND SUBMITTED HIS REPORT AS UNDER: A. THE BUILDING NAMELY CHEMBUR HEIGHTS IS A STILT P LUS 14 FLOOR BUILDING AND THERE ARE TWO WINGS NAMELY A AND B IN THE SAID BUILDING W ITH FOUR FLATS ON EACH WING. ON A SPOT ENQUIRY, THE WATCHMAN HAS STATED THAT THE BUILDING CHEMBUR HEIGHTS IS 3 TO 4 YEARS OLD. THERE IS A LANDSCAPE GARDEN. PHOT OGRAPHS OF THE SITE AS WELL AS THE NAME PLATE DISPLAYED IN EACH WING HAS BEEN TAKE N. B. THE BUILDING NAMELY HARIKUNJ IS SITUATED NEAR CH EMBUR HEIGHTS AND IT IS A STILT PLUS 14 FLOOR BUILDING HAVING STILT AREA FOR PARKIN G. BUILDING HAS SINGLE WING OF 84 FLATS. LANDSCAPE GARDEN IS LOCATED IN THE PREMISES. ON A SPOT ENQUIRY, THE WATCHMAN HAS STATED THAT THE BUILDING HARIKUNJ IS 4 TO 5 YEARS OLD. THERE IS A LANDSCAPE GARDEN. PHOTOGRAPHS OF THE SITE AS WELL A S THE NAME PLATE DISPLAYED IN EACH WING HAS BEEN TAKEN. C. THE BUILDING NAMELY SAI ASHISH HAS A,B, C, D & E WINGS. THE STRUCTURE OF THE BUILDING IS STILT PLUS 7 FLOORS. THERE ARE FOUR FLA TS ON EACH FLOOR STARTING FROM THE FIRST FLOOR. THE STILT PARKING AREA HAS BEEN CONSTR UCTED IN THE INNER SIDE OF THE PREMISES WHEREAS IN THE OUTERSIDE I.E. ON THE ROAD SIDE, THERE ARE SHOPS. MOST OF THE SHOPS HAVE BEEN SOLD AS IT IS APPARENT FROM THE FACT THAT THEY WERE OPEN WHEREAS FEW SHOPS WERE FOUND CLOSED. THERE IS A SMA LL LANDSCAPE GARDEN WITH PLAYING EQUIPMENTS FOR SMALL CHILDREN IN THE INNER SIDE OF THE BUILDING. ON A SPOT ENQUIRY, THE WATCHMAN HAS STATED THAT THE BUILDING SAI ASHISH IS AROUND 4 TO 5 YEARS OLD AND ALL THE FLATS ARE OCCUPIED AND THERE ARE TWO FLATS ON THE 8TH FLOOR OF THE C AND B WING. PHOTOGRAPHS OF THE SITE AS WELL A S THE NAME PLATE DISPLAYED IN EACH WING HAS BEEN TAKEN. THE ABOVE SPOT VERIFICATION REPORT REVEALS THAT IN CHEMBUR HEIGHTS THERE WERE TWO WINGS NAMELY A AND B WITH FOUR FLATS ON EACH WI NG AND THESE WERE THREE TO FOUR YEARS OLD WITH PROPER LANDSCAPE AROUND THE BU ILDING. IN RESPECT OF HARI KUNJ 12 ITA NO. 6787&6774/M/2012 (A.Y.09-10) KUKREJA CONSTRUCTION CO. PROJECT THE SAID REPORT STATED THAT SAID PROJECT HA D SINGLE BUILDING OF 84 FLATS WHICH WAS DULY LANDSCAPED AND WAS COMPLETED 4 TO 5 YEARS BEFORE. IN RESPECT OF SAI ASHISH PROJECT THE REPORT STATES THAT THERE WERE 5 WINGS IN THE SAID PROJECT WITH SEVEN FLOORS WITH STILT HAVING FOUR FLATS ON EACH F LOOR STARTING FROM THE FIRST FLOOR. IT WAS ALSO STATED IN THE REPORT THAT STILT PARKING AR EA HAS BEEN CONSTRUCTED IN THE INNER SIDE OF THE PREMISES WHEREAS IN THE OUTER SIDE SHOP S WERE CONSTRUCTED. MOST OF THE SHOPS WERE ALSO SOLD AND PROJECT WAS COMPLETED 3 TO 4 YEARS BACK AND FLATS WERE OCCUPIED BY THE BUYERS OF THE FLATS. THE FINDINGS O F THE SPOT INSPECTION REPORT OF THE INSPECTOR HAS BEEN REBUTTED BY LD. AR BEFORE US . HE REFERRED TO THE PROJECT WISE STATUS OF FLATS WHICH HAS BEEN SUMMARIZED AS UNDER: _ PROJECT TOTAL FLATS CONSTRUCTED TOTAL FLATS UNDER CONSTRUCTION TOTAL FLATS TOTAL FLATS SOLD/ADVANCE RECEIVED FLATS UNSOLD SAI ASHISH (1) (2) (1+2) (4) (5) BUILDING NO.1 155 24 179 121 58 BUILDING NO.2 0 20 20 0 20 199 78 PROJECT TOTAL FLATS CONSTRUCTED TOTAL FLATS UNDER CONSTRUCTION TOTAL FLATS TOTAL FLATS SOLD/ADVANCE RECEIVED FLATS UNSOLD HARI KUNJ (1) (2) (1+2) (4) (5) BUILDING NO.1 82 0 82 76 6 BUILDING NO.2 0 84 84 0 84 BUILDING NO.3 0 60 60 0 60 226 150 13 ITA NO. 6787&6774/M/2012 (A.Y.09-10) KUKREJA CONSTRUCTION CO. PROJECT TOTAL FLATS CONSTRUCTED TOTAL FLATS UNDER CONSTRUCTION TOTAL FLATS SOLD/ADVANCE RECEIVED FLATS UNSOLD CHEMBUR HEIGHTS (1) (2) (4) (5) BUILDING NO.1 124 0 101 23 BUILDING NO.2 (4 WINGS I.E., A,B,C AND D) 0 302 302 302 IT IS APPARENT FROM THE ABOVE TABLE THAT THE SANCTI ONED FLATS IN SAI ASHISH PROJECT WERE 199 OUT OF WHICH THE CONSTRUCTION WAS COMPLETE D ONLY IN RESPECT OF 155 FLATS AND 44 FLATS WERE STILL UNDER CONSTRUCTION IN THE S AID PROJECT. SIMILARLY IN RESPECT OF HARI KUNJ PROJECT OUT OF TOTAL SANCTION OF 226 FLAT S THE CONSTRUCTION WAS COMPLETED ONLY IN RESPECT OF 112 FLATS AND 144 FLATS WERE UND ER CONSTRUCTION. SIMILARLY IN THE THIRD PROJECT NAMELY, CHEMBUR HEIGHTS OUT OF 426 ON LY 124 FLATS WERE COMPLETED AND 302 FLATS WERE UNDER CONSTRUCTION. THE ABOVE TA BLE ALSO REVEALS THE VARIOUS FLATS SOLD OUT OF THE COMPLETED BUILDINGS AND REMAI NING UNSOLD AT THE YEAR END. THE LD. AR ALSO FILED BEFORE US PROJECTWISE AND YEARWIS E BREAK UP OF ADVANCE RECEIVED AND WORK IN PROGRESS FROM ASSESSMENT YEAR 2009-10 T O 2012-13 TO SUBSTANTIATE THE FACT THAT THESE PROJECTS WERE UNDER CONSTRUCTION AN D NOT COMPLETED AS OBSERVED BY AO. THE LD. AR ALSO POINTED OUT THAT THE INSPECTOR REPORT PERTAINS TO ONLY COMPLETED BUILDINGS IN THESE PROJECTS AND DID NOT D EAL WITH THE 14 ITA NO. 6787&6774/M/2012 (A.Y.09-10) KUKREJA CONSTRUCTION CO. FLATS/TOWERS/BUILDINGS WHICH WERE UNDER CONSTRUCTIO N. THE YEAR WISE DETAILS FILED BY THE LD. AR IS REPRODUCED AS UNDER:- SAI ASHISH PROJECT: ASSESSMENT YEAR ADVANCE RECEIVED WORK IN PROGRESS 2009-10 22,01,81,404/- 11,26,98,112/- 2010-11 28,61,61,248/- 14,63,65,013/- 2011-12 36,70,86,670/- 16,69,78,226/- 2012-13 39,99,38,320/- 18,28,92,916/- HARIKUNJ PROJECT: ASSESSMENT YEAR ADVANCE RECEIVED WORK IN PROGRESS 2009-10 28,34,91,801/- 13,97,48,363/- 2010-11 30,69,02,869/- 20,38,91,615/- 2011-12 38,19,90,559/- 27,70,30,257/- 2012-13 48,99,91,273/- 30,34,14,437/- CHEMBUR HEIGHTS PROJECT: ASSESSMENT YEAR ADVANCE RECEIVED WORK IN PROGRESS 2009-10 38,04,10,112/- 10,45,34,625/- 2010-11 47,46,77,503/- 22,64,58,546/- 2011-12 50,42,10,793/- 23,43,10,770/- 2012-13 51,58,45,848/- 26,08,04,118/- WE FIND FROM THE YEAR WISE BREAKUP OF ADVANCE RECEI VED AND EXPENDITURE IN WORK IN PROGRESS ON 31.03.2009 HAD GONE UP IN THE SUCCES SIVE YEARS SUBSTANTIALLY WHICH PROVES THAT THE PROJECTS WERE UNDER CONSTRUCTION AN D WERE NOT COMPLETE. WE FURTHER 15 ITA NO. 6787&6774/M/2012 (A.Y.09-10) KUKREJA CONSTRUCTION CO. FIND THAT THE AO CALCULATED THE PROFITS FROM THESE THREE PROJECTS AT RS.52,71,02,218/- IN THE FOLLOWING MANNER:- NAME OF THE PROJECT NO. OF FLATS ADVANCE RECEIVED UPTO 31.03.2009 WIP AS PER BALANCE SHEET AS ON 31.03.2009 PROFIT OF THE PROJECT COMPUTED BY AO A B A-B CHEMBUR HEIGHTS-100 38,04,10,112/- 10,45,34,624/- 2 7,58,75,488/- HARI KUNJ-80 28,34,91,800/- 13,97,48,362/- 14,37,43 ,438/- SAI ASHISH-124 22,01,81,404/- 11,26,98,112/- 10,74, 83,292/- TOTAL 88,40,83,316/- 35,69,81,098/- 52,71,02,218/- THE LD. AO COMPUTED THE PROFIT BY SUBTRACTING THE C OST AS PER WORK IN PROGRESS OF THESE THREE PROJECTS FORM THE TOTAL ADVANCE RECEIVE D AGAINST THE SALE OF FLATS AS IS CLEAR FROM THE TABLE ABOVE WHICH WE FIND IS TOTALLY WRONG AND FULL OF INFIRMITIES AS IT HAS NO BASIS AND REASONING. WE ALSO FIND MERITS IN THE ARGUMENTS OF THE LD. AR THAT SAI ASHISH PROJECT COULD NOT COMPLETED AS ENVI SAGED ORIGINALLY DUE TO STAY ORDER BY THE BOMBAY HIGH COURT ON THE DEBIT OF TDR IN THE RESTRICTED ZONE AND ORIGINAL PLAN WERE APPROVED SUBJECTED TO STAY ORDER AND CONSTRUCTION WAS UNDERTAKEN ACCORDINGLY. IT IS ONLY AFTER THE END OF THE LITIGATION AND VACATION OF THE STAY ORDER THE ASSESSEE GOT THE OCCUPATION CERTIFIC ATE ON 18.02.2010 FOR THE ADDITIONAL FLOORS. WE ALSO FIND THAT THE POSSESSION WERE GIVEN TO THE BUYERS OF THE FLATS AS PER THE ORIGINAL SANCTION PLAN WHEREAS THE ADDITIONAL FLOORS WERE STILL UNDER CONSTRUCTION DURING THE YEAR. THE TOTAL NUMBER OF F LATS AS PER THE ORIGINAL PLAN WERE 16 ITA NO. 6787&6774/M/2012 (A.Y.09-10) KUKREJA CONSTRUCTION CO. 155 TO WHICH 44 FLATS WERE ADDED AFTER REVISED OCCU PATION CERTIFICATE OBTAINED FROM THE BMC. IN VIEW OF ABOVE FACTS, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A) AND FURTHER THE CASE OF THE ASSESSEE IS FORT IFIED BY THE VARIOUS DECISIONS RELIED AND REFERRED BY THE LD. AR DURING THE COURSE OF HEARING BEFORE US. IN THE CASE OF HAWALA CONSTRUCTION PRIVATE LTD. IN ITA NO5601/M UM/2009 AY 2005-06 DATED 05.08.2011, THE TRIBUNAL HELD THAT A PROJECT IS COM PLETED WHEN A OCCUPATION CERTIFICATE IS RECEIVED IN RESPECT OF BUILDINGS AND REVENUE AUTHORITIES ARE NOT JUSTIFIED IN REJECTING THE PROJECT COMPLETION METHO D CONSTANTLY FOLLOWED BY THE ASSESSEE WHICH WAS ALSO SUSTAINED BY THE BOMBAY HIG H COURT BY DISMISSING THE APPEAL OF THE REVENUE IN ITA NO 548 OF 2012 VIDE OR DER DATED 12 TH MARCH, 2012. IN THE CASE OF CIT VS. MANISH BUILDERS (P) LTD (2011)2 45 CTR(DEL)397, THE DELHI HIGH COURT HAS HELD THAT PROJECT COMPLETION METHOD IS ONE OF THE RECOGNIZED METHOD OF ACCOUNTING AND THEREFORE THE ORDER OF TRI BUNAL UPHOLDING THE ORDER OF THE CIT(A) AND ACCEPTING THE PROJECT COMPLETION METHOD FOLLOWED BY THE ASSESSEE DID NOT GIVE RISE TO THE SUBSTANTIAL QUESTION OF LAW. I N VIEW OF THE RATIO LAID DOWN IN THE ABOVE DECISIONS WE ARE OF THE CONSIDERED VIEW THAT THE METHOD OF ACCOUNTING FOLLOWED BY THE ASSESSEE I.E. PROJECT COMPLETION M ETHOD WAS CORRECT AND RECOGNIZED ONE AND AO WAS WRONG IN REJECTING THE SA ME WHILE ACCEPTING THE SAME METHOD IN THE EARLIER AND PRECEDING YEARS. ACCORDIN GLY, WE UPHOLD THE ORDER OF CIT(A) ON THIS ISSUE AND GROUND AS RAISED BY THE RE VENUE IS DISMISSED. 17 ITA NO. 6787&6774/M/2012 (A.Y.09-10) KUKREJA CONSTRUCTION CO. 4. AN IDENTICAL ISSUE AS RAISED IN GROUND NO. 2 OF THIS APPEAL HAS ALREADY BEEN DECIDED BY US IN ITA NO. 6774/MUM/2012 FOR ASSESSME NT YEAR 2009-10 IN THE ASSESSEES OWN CASE HEREIN BELOW AND THEREFORE OUR DECISION IN ITA NO. 6774/MUM/2012 SHALL MUTATIS MUTANDIS APPLY TO THIS AS WELL. IN RESULT THE GROUND OF THE REVENUE IS DISMISSED. IN THE RESULT APPEAL FILED BY THE REVENUE IS DISMIS SED. ITA NO.6774: THE ASSESSEE RAISED FOLLOWING GROUNDS OF APPEAL: 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE DISALLOWANCE OF RS.7,50,000/- U/S 40A(2) ON ACCOUNT OF BUSINESS CENTRE CHARGES AND ADMINISTRATIVE CHARGES PAID TO M/S. KUKREJA SER VICES PVT. LTD. 2. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) FURTHE R ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN REDUCING THE DED UCTION U/S 80-IB(10) IN RESPECT OF THE PROJECT BLUE BELL ON ACCOUNT OF OTHER INCOME OF 1,00,021/-. 3. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) FURTHE R ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN REDUCING THE DED UCTION U/S 80-IB(10) IN RESPECT OF THE PROJECT ORCHID ON ACCOUNT OF OTHER INCOME OF 1,80,167/-. 4. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) FURTHE R ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN REDUCING THE DED UCTION U/S 80-IB(10) IN RESPECT OF THE PROJECT SAI DEEP ON ACCOUNT OF OTHER INCOME O F 7,46,332/-. 18 ITA NO. 6787&6774/M/2012 (A.Y.09-10) KUKREJA CONSTRUCTION CO. 5. THE GROUND NO. 1 IS AGAINST THE CONFIRMATION OF DISALLOWANCE U/S 40A(2) OF THE ACT IN RESPECT OF BUSINESS CENTRE AND ADMINIST RATIVE CHARGES PAID TO M/S. KUKREJA SERVICES PVT. LTD. A SISTER CONCERN OF THE ASSESSEE OF RS.7,50,000/- AS AGAINST RS.9,30,000/- MADE BY AO IN ASSESSMENT ORDE R. 5.1 THE LD. COUNSEL AT THE OUTSET POINTED OUT THAT THE ISSUE INVOLVED IN THIS GROUND HAS BEEN SETTLED BY THE DECISION OF ITAT IN ASSESSMENT YEAR 2006-07 IN ASSESSEES OWN CASE IN AY 2007-08 AND 2008-09 VID E ORDER DATED 16.01.2015 IN ITA NO. 1068/MUM/2010, ITA NO. 1736/MUM/2010, ITA N O. 5536/MUM/2010, ITA NO. 5977/MUM/2010 AND ITA NO. 6180/MUM/2011 AND THEREFORE THE ISSUE IS FULLY COVERED IN FAVOUR OF ASSESSEE BY THE DECISION OF THE COORDINATE BENCH AND HENCE THE GROUND OF THE REVENUE BE DISMISSED BY FOL LOWING THE SAME. PER CONTRA, LD. DR APPEARED TO BE REASONABLY AGREED WITH THE AR GUMENTS OF THE LD. AR. 5.2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND P ERUSED THE MATERIAL ON RECORD. WE FIND THAT THE SIMILAR ISSUE HAD ARISEN D URING THE ASSESSMENT YEAR 2006- 07, 2007-08 AND 2008-09 WHICH WAS DECIDED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL VIDE ORDER DATED 16.01.2015. THE RELEVANT FINDING OF THE TRIBUNAL IS REPRODUCED AS UNDER: IN VIEW OF THE CONSISTENT FINDINGS OF THIS TRIBUNA L IN A SERIES OF DECISION AND IN THE ABSENCE OF ANY SPECIFIC FINDING GIVEN BY THE AS SESSING OFFICER BY THE CIT(A) 19 ITA NO. 6787&6774/M/2012 (A.Y.09-10) KUKREJA CONSTRUCTION CO. REGARDING THE FAIR MARKET VALUE/FAIR MARKET PRICE O F THE SERVICES, THE PAYMENT MADE BY THE ASSESSEE TO THE SISTER CONCERN ON ACCOU NT OF USING THE BUSINESS CENTRE FACILITY CANNOT BE HELD AS EXCESSIVE OR UNREASONABL E. FURTHER IT IS NOT THE CASE OF THE ASSESSING OFFICER THAT BY MAKING THE PAYMENT TO THE SISTER CONCERN THE ASSESSEE IS AVOIDING THE TAX LIABILITY AS THE SISTE R CONCERN IS NOT ASSESSED TO TAX. ACCORDINGLY, WE DELETE THE DISALLOWANCE CONFIRMED B Y CIT(A) ON THIS ACCOUNT FOR BOTH THE YEARS. WE FIND THAT THE CASE OF THE ASSESSEE IS FULLY COVE RED IN HIS FAVOUR BY THE DECISION OF CO ORDINATE BENCH IN THE CASE OF THE ASSESSEE IT SELF IN ASSESSMENT YEAR 2006-07, 2007-08 AND 2008-09 AND, WE THEREFORE, RESPECTFULLY FOLLOWING THE SAID DECISION OF THE COORDINATE BENCH ALLOW THE GROUND RAISED BY TH E ASSESSEE. 6. THE ISSUE RAISED IN GROUND NO.2 TO 5 IS AGAINST THE CONFIRMATION OF ACTION OF AO BY CIT(A) IN REDUCING THE DEDUCTION U/S 80-IB(10 ) IN RESPECT OF FOUR PROJECTS NAMELY PROJECT BLUE BELL BY RS.1,00,021/-, PROJEC T LUV KUSH BY RS.7,12,597/- , PROJECT ORCHID BY RS.1,80,167/- AND PROJECT SAI DEEP BY RS.7,46,732/-. THE BRIEF FACTS FO THE CASE ARE THAT THE ASSESSEE HAS C REDITED VARIOUS INCOME UNDER VARIOUS HEADS THE DETAILS WERE INCORPORATED IN PARA 5.4 OF THE AO ORDER. THE LD. AO DURING THE COURSE OF SCRUTINY PROCEEDING OBSERVE D THAT THESE INCOME HAS NO DIRECT NEXUS WITH THE ASSESSEE CORE CONSTRUCTION AC TIVITIES AND THEREFORE THE SAID INCOME COULD NOT BE TREATED AS INCOME DERIVED FROM THE CONSTRUCTION ACTIVITY BUT FROM THE AMENITIES/OTHER SERVICES PROVIDED BY THE ASSESSEE AND THEREFORE WERE NOT 20 ITA NO. 6787&6774/M/2012 (A.Y.09-10) KUKREJA CONSTRUCTION CO. ELIGIBLE U/S 80-IB(10) OF THE ACT. THE AO FURTHER O BSERVED THAT IN ASSESSMENT YEAR 2008-09 THE CIT(A) FAILED TO APPRECIATE THAT THERE WAS NO DIRECT NEXUS WITH ASSESSEES CORE CONSTRUCTION ACTIVITIES AS THESE WE RE ONLY REIMBURSEMENT FROM THE FLAT PURCHASERS. THE LD. AO DID NOT FOLLOW THE ORDE R OF CIT(A) FOR PRECEDING ASSESSMENT YEAR WHEREIN THE SAID INCOMES WERE TRE ATED AS PART OF THE CORE ACTIVITY OF THE ABOVE PROJECTS AND ALLOWED DEDUCTION U/S 8 0-IB(10) OF THE ACT ACCORDINGLY ON THE GROUND THAT THE DEPARTMENT WAS IN APPEAL BEF ORE ITAT AGAINST THE SAID ORDER OF CIT(A). 6.1 LD. AR POINTED OUT THAT THE ISSUE STANDS DECIDE D IN FAVOUR OF ASSESSEE BY THE TRIBUNAL IN ITS OWN CASE IN ITA NO. 1068/MUM/20 10 FOR A.Y. 2006-07 AND THEREFORE FULLY COVERED IN ITS FAVOUR. WE HAVE CONS IDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT SIMILA R ISSUE ALSO AROSE IN ASSESSMENT YEAR 2006-07 WHICH WAS DECIDE BY THE COORDINATE BEN CH IN FAVOUR OF ASSESEE VIDE ORDER DATED 16.01.15. THE RELEVANT PARA OF THE SAID ORDER IS REPRODUCED BELOW. THE ASSESSEE RECEIVED VARIOUS CHARGES NAMELY DEVELO PMENT CHARGES, ELECTRIC METER CHARGES, EXTRA WORK CHARGES, GRILL CHARGES, L EGAL CHARGES, WATER METER CHARGES, SHARE MONEY CHARGES AND SOCIETY FORMATION CHARGES, GAS CHARGES, CAR PARKING CHARGES, INTEREST RECEIVED ON DELAYED PAYME NTS, VIDEO DOOR MONITOR AND MAINTENANCE FOR 12 MONTHS CHARGES. THE ASSESSEE CLA IMED DEDUCTION U/S 80-IB IN RESPECT OF THESE CHARGES RECEIVED FROM BUYERS OF TH E FLAT. THE ASSESSING OFFICER DISALLOWED THE CLAIM OF THE ASSESSEE ON THE GROUND THAT ABOVE SAID ITEMS OF OTHER INCOME HAD NO DIRECT NEXUS WITH ASSESSEES CORE CON STRUCTION ACTIVITY. ACCORDINGLY, THE ASSESSING OFFICER HELD THAT THE SA ID INCOME HAS NOT BEEN DERIVED 21 ITA NO. 6787&6774/M/2012 (A.Y.09-10) KUKREJA CONSTRUCTION CO. FROM THE CONSTRUCTION ACTIVITY BUT FROM AMENITIES/O THER SERVICES PROVIDED BY THE ASSESSEE TO THE BUYERS AND THEREFORE, NOT ELIGIBLE FOR DEDUCTION U/S 80-IB(10). WE FIND THAT THE ISSUE IS FULLY COVERED IN FAVOUR O F THE ASSESSEE BY THE ABOVE DECISION AND WE THEREFORE RESPECTFULLY FOLLOWING TH E ORDER OF CO ORDINATE BENCH ALLOW THIS GROUND OF APPEAL IN FAVOUR OF THE ASSESS EE AND THE AO IS DIRECTED ACCORDINGLY. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH APRIL, 2016 SD/- SD/- (AMIT SHUKLA) (RAJESH KUMAR) / JUDICIAL MEMBER / ACCOUNTANT MEMBER ! MUMBAI; '# DATED :25.04.2016 PS. ASHWINI / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. $% ( ) / THE CIT(A) 4. $% / CIT CONCERNED 5. ()*+ %#,- , / ,-0 , ! / DR, ITAT, MUMBAI 6. +12 3! / GUARD FILE / BY ORDER, / !'# (DY./ASSTT. REGISTRAR) #$ %, ! / ITAT, MUM BAI