2014 (1) TMI 1830 - AT - Income Tax

Deduction u/s.80IB - income computed from the business of an undertaking developing and building a housing project - land and approval is not in assessee s name and construction is not as per approved plan - CIT-A allowed the claim - Held that - We are fortified with the decision of Hon ble Madras High Court in the case of Viswas Promoters Pvt.Ltd. vs. ACIT (2012 (11) TMI 1117 - MADRAS HIGH COURT), wherein under the identical facts held that the assessee is entitled to succeed both on the principle of proportionality as well as by reason of the construction on the meaning of the expression housing project as referring to construction of any building and the wordings in Section 80IB(10) - mere fact that one of the blocks have units exceeding built-up area of 1500 sq.ft., per se, would not result in nullifying the requirement under section 80IB(10)(c) of the Act. Therefore, respectfully following the ratio laid down in the case of Viswas Promoters Pvt.Ltd. vs. ACIT(supra) coupled with the fact that the ld.CITR(A) has given a detailed finding on fact that meets all the objections of the Assessing Officer. Thus, these grounds of Revenue s appeal are dismissed. TDS u/s 194C - amount paid to M/s.Parmar Builders for construction of B & C building without deducting TDS - disallowance of expenditure u/s.40(a)(ia) - Held that - CIT(A) has allowed this ground by observing that additional disallowance made do not loose the characteristic of being derived from the housing project developed by an undertaking as its original source. Therefore, even if the expenditure is disallowed, the same is entitled for deduction u/s.80IB of the Act on the income computed from the business of an undertaking developing and building a housing Project. Since the Revenue could not controvert this finding of the ld.CIT(A), therefore we hereby upheld the order of the ld.CIT(A) and reject this ground of Revenue s appeal.

Summary

Issues Involved:
1. Deduction under Section 80IB of the Income Tax Act.
2. Disallowance of expenditure under Section 40(a)(ia) of the Income Tax Act.

Issue-wise Detailed Analysis:

1. Deduction under Section 80IB of the Income Tax Act:

The Revenue challenged the CIT(A)'s decision to allow the assessee's deduction under Section 80IB of the Income Tax Act for the assessment years (AY) 2005-06, 2006-07, and 2007-08. The primary contention was that the assessee did not meet the conditions stipulated under Section 80IB(10) of the Act, as the land and approval were not in the assessee's name, and the construction was not as per the approved plan. Additionally, the project was not completed before the stipulated date, and the assessee had only constructed three out of nine buildings.

The CIT(A) examined these objections thoroughly and found that the basic conditions for claiming the deduction were fulfilled. The CIT(A) noted that:
- The project undertaken was a housing project approved by local authorities before 31 March 2008.
- The development and construction commenced after 1 October 1998 and were completed before 31 March 2008.
- The project was on a plot of land with a minimum area of one acre, and the residential units complied with the maximum built-up area specifications.
- The commercial area was within the permissible limit, as confirmed by the Architect's letter.

The CIT(A) relied on the decision of the ITAT Mumbai in the case of Saroj Sales Organization vs. ITO (115 TTJ 485), which held that even a part of the project constitutes a housing project eligible for deduction. The CIT(A) also referenced the Madras High Court's decision in Viswas Promoters Private Ltd. vs. ACIT, which supported the principle of proportionality and the interpretation of "housing project."

The Tribunal upheld the CIT(A)'s decision, finding no merit in the Revenue's contention that the decision in Saroj Sales Organization was wrongly applied. The Tribunal also noted that the CIT(A) had provided a detailed factual finding addressing all objections raised by the Assessing Officer (AO).

2. Disallowance of Expenditure under Section 40(a)(ia) of the Income Tax Act:

The AO disallowed an expenditure of Rs. 79,48,600 under Section 40(a)(ia) of the Act, paid to Parmar Builders for the construction of 'B & C' buildings without deducting TDS. The CIT(A) deleted this addition, reasoning that the disallowed expenditure did not lose its characteristic of being derived from the housing project developed by the undertaking. Therefore, even if the expenditure was disallowed, the same was entitled to deduction under Section 80IB of the Act.

The Tribunal upheld the CIT(A)'s decision, noting that the Revenue could not controvert the CIT(A)'s finding. Thus, the Tribunal rejected the Revenue's appeal on this ground.

Conclusion:

The Tribunal dismissed all three appeals of the Revenue for AYs 2005-06, 2006-07, and 2007-08, upholding the CIT(A)'s decisions to allow deductions under Section 80IB and to delete the disallowance of expenditure under Section 40(a)(ia). The Tribunal's decision was based on thorough factual findings and relevant judicial precedents supporting the assessee's claims.