M/s. Dharnidhar Developers, Ahmedabad V. The ACIT.,Cent.Circle-1(3), Ahmedabad

ITSSA 18/AHD/2010

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 9266 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 2 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 11-06-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 03-06-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 08-01-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: P M MEHTA
• Keywords: Initiation of penalty proceedings
• Section: 234B; 132

Judgement Text

, , , , C, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, C BENCH . .. . . .. . , !' !' !' !', , , , #$ #$ #$ #$ # ## #. .. .% %% % . .. .&'( &'( &'( &'(, , , , %) * %) * %) * %) * % ' % ' % ' % ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND A. K. GARODIA, ACCOUNTANT MEMBER) IT(SS)A NO.18/AHD/2010 [ASSTT. YEAR : 2005-2006] M/S.DHARNIDHAR DEVELOPERS 62, SARJAN COMPLEX, NR. SARJAN BUNGALOW B/H. SRP QUARTERS KRISHNA NAGAR, NAVA NARODA AHMEDABAD. PAN : AAEFD 6139 R /VS. ACIT, CENT.CIR.1(3) AHMEDABAD. ( (( (,- ,- ,- ,- / APPELLANT) ( (( (./,- ./,- ./,- ./,- / RESPONDENT) 01 2 3 %/ ASSESSEE BY : SHRI P.M. MEHTA * 2 3 %/ REVENUE BY : SHRI SUBHAS BAINS 5 2 16)/ DATE OF HEARING : 3 RD JUNE, 2013 7&8 2 16)/ DATE OF PRONOUNCEMENT : 11-06-2013 %9 / O R D E R PER GARODIA, ACCOUNTANT MEMBER: THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORDER OF THE LEARNED CI T(A)-I DATED 30.10.2009 FOR THE ASSESSMENT YEAR 2005-2006. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF TH E APPELLANTS CASE, THE LEARNED CIT(A) HAS GROSSLY ERRED IN DISMI SSING GROUNDS NO. 1 AND 2 OF THE APPELLANT'S APPEAL BEFORE HIM VI DE WHICH THE APPELLANT HAD CHALLENGED THE VALIDITY OF THE ASSESS MENT ORDER IMPUGNED BEFORE HIM. 2. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE APPELLANT'S IT(SS)A NO.18/AHD/2010 -2- CASE, THE LEARNED CIT(A) HAS GROSSLY ERRED IN UPHOL DING THE LEARNED ASSESSING OFFICER'S ACTION OF REFUSING DEDU CTION U/S 80IB(10) IN RESPECT OF ADDITIONAL INCOME OF RS.11,7 6000 DISCLOSED BY THE APPELLANT DURING PROCEEDINGS U/S 132 EVEN AS HE (I.E., THE ASSESSING OFFICER) HAD GRANTED DEDUCTION UNDER THAT PROVISION TO THE APPELLANT'S INCOME AS PER ITS BOOKS OF ACCOUNT FOR THE PRESENT ASSESSMENT YEAR. 2.2 WITHOUT PREJUDICE TO THE FOREGOING, IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE, THE LEARNED CIT(A) HAS GROSSLY ERRED IN SUMMARILY DISMISSING THE APPLICABI LITY OF THE SEVERAL AUTHORITIES ON WHICH THE APPELLANT HAD RELI ED IN SUPPORT OF ITS CLAIM FOR DEDUCTION OF THE IMPUGNED AMOUNT OF R S.11,76,000 U/S. 80IB(10). 3. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE, THE LEARNED CIT(A) HAS GROSSLY ERRED IN DISMISSING GROUND NO 4 OF THE APPELLANT'S APPEAL BEFORE HIM. HE OUGHT TO HAVE APPRECIATED, INTER ALIA, THAT THE APPELLANT HAD, VIDE THAT GROUN D, CHALLENGED THE VERY LEVY OF INTEREST U/S. 234B AND THE SAME DESERV ED TO BE CANCELLED. 4. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE, THE LEARNED CIT(A) HAS GROSSLY ERRED IN DISMI SSING GROUND NO. 5 OF THE APPELLANT'S APPEAL BEFORE HIM ON THE G ROUND THAT MERE INITIATION OF PENALTY PROCEEDINGS U/S. 271(1)(C) WA S NOT APPEALABLE. 3. REGARDING GROUND NO.1, NO ARGUMENT HAS BEEN RAIS ED BY THE LEARNED AR OF THE ASSESSEE, AND HENCE THE SAME IS REJECTED, AS NOT PRESSED. 4. THE GROUND NO.3 IS REGARDING CHARGING OF INTERES T UNDER SECTION 234B, AND HENCE THE SAME IS CONSEQUENTIAL. 5. THE GROUND NO.4 IS REGARDING INITIATION OF PENAL TY PROCEEDING UNDER SECTION 271(1)(C) OF THE ACT, AND THIS GROUND IS RE JECTED BECAUSE THE SAME IS PREMATURE. IT(SS)A NO.18/AHD/2010 -3- 6. THE REMAINING GROUND NO.2 IS REGARDING REDUCING DEDUCTION UNDER SECTION 80IB(10) IN RESPECT OF ADDITIONAL INCOME OF RS.11.76 LAKHS DISCLOSED BY THE ASSESSEE DURING THE PROCEEDINGS UN DER SECTION 132. 7. IT WAS SUBMITTED BY THE LEARNED AR OF THE ASSESS EE THAT THE RELEVANT SEIZED PAPER IS AVAILABLE AT PAGE NO.81 OF THE PAPE R BOOK. REGARDING THE SAME, IT WAS SUBMITTED THAT IT IS A RECEIPT ISSUED BY THE LAND OWNER FOR THE SAME LAND PROPERTY, ON WHICH THIS PROJECT WAS DEVEL OPED BY THE ASSESSEE. HE SUBMITTED THAT SINCE THE ADDITIONAL INCOME DECLA RED BY THE ASSESSEE IS CONNECTED WITH THE SAME LAND, ON WHICH THE PROJECTE D WAS DEVELOPED BY THE ASSESSEE, WHICH IS ELIGIBLE FOR DEDUCTION UNDER SECTION 80IB(10), THE AUTHORITIES BELOW SHOULD HAVE ALLOWED TO THE ASSESS EE DEDUCTION FOR THIS AMOUNT UNDER SECTION 80IB(10). THE LEARNED DR OF T HE REVENUE SUPPORTED THE ORDER OF THE AUTHORITIES BELOW: 8. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. THE DEDUCTION UNDER SECTION 80IB(10) WAS ALLOWABLE TO T HE ASSESSEE IN RESPECT OF PROFITS DERIVED BY THE ASSESSEE FROM THE HOUSING PROJECT, WHICH IS ELIGIBLE FOR DEDUCTION UNDER SECTION 80IB(10). HEN CE, IT IS SEEN THAT ONLY THE INCOME DERIVED FROM SUCH ELIGIBLE PROJECT IS EL IGIBLE FOR DEDUCTION UNDER SECTION 80IB(10) AND NOT THE INCOME CONNECTED WITH SUCH ELIGIBLE PROJECT. IN THE PRESENT CASE, THIS INCOME OF RS.11 .76 LAKHS IS NOT IN RESPECT OF ANY ON-MONEY RECEIVED BY THE ASSESSEE ON ACCOUNT OF SALE OF ANY FLAT OF THE CONCERNED HOUSING PROJECT. THIS ON -MONEY WAS ACTUALLY PAID BY THE ASSESSEE TO THE LAND OWNER IN RESPECT O F LAND PURCHASED BY THE ASSESSEE FOR CARRYING OUT THIS HOUSING PROJECT. TH E ADDITION IS MADE FOR THIS REASON THAT PAYMENT OF THIS ON-MONEY WAS HELD TO BE AN UNDISCLOSED INCOME OF THE ASSESSEE, UNDER SECTION 69B OF THE AC T. HENCE, IT CANNOT BE IT(SS)A NO.18/AHD/2010 -4- SAID THAT THIS IS AN INCOME DERIVED FROM THE ELIGIB LE HOUSING PROJECT. THEREFORE, WE DO NOT FIND ANY REASON TO INTERFERE I N THE ORDER OF THE LEARNED CIT(A) ON THIS ISSUE. 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT ( # ## #. .. .% %% % . .. .&'( &'( &'( &'( /A.K. GARODIA) %) * /ACCOUNTANT MEMBER VK* C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD