2011 (4) TMI 941 - AT - Income Tax

Validity of assessment - non receipt of show cause notice - Held That - when assessee s Authorised Representative Shri Kulin Mehta made appearance before the AO how could notice under 143(2) failed to reach. Additional Grounds - Non receipt of notice - Held - assessee ought to have raised this legal objection before the AO or in any case before the CIT A . Having chosen not to raise any objection before the AO and then not agitating the issue before the CIT A , assessee cannot press this issue again before the Tribunal after a gap of 5 years because at that point of time it may not be always possible for the Revenue authorities to show the proof of service. In these circumstances, we reject the ground regarding validity of service of notice and hold that assessee has been served notice u/s.143 2 . Deduction 80IB -Individual flats less than 1500Sqft - Adjusent flats alloted to same buyer - Common electric metre - Kitchen was more of bedroom - Held That - The flats have been merely shown in the municipal plan to be one, whereas on physical examination and all the surrounding circumstances which we have discussed in detail above, show that adjacent flat was meant to be single unit only. Thus exceed the requirement sof 80IB for claiming deduction. Decided against assessee.

Issues Involved:
1. Validity of service of notice under Section 143(2).
2. Charging of interest under Sections 234B and 234C.
3. Disallowance of deduction under Section 80IB.

Issue-wise Detailed Analysis:

1. Validity of Service of Notice under Section 143(2):
The appellant contended that the notices issued by the assessing officer were invalid, rendering the assessment order void ab initio. The appellant argued that the notice was not properly served as it was addressed to a different entity and location. The respondent countered by presenting evidence that the appellant's Chartered Accountant attended the assessment proceedings, implying valid service of notice. The tribunal noted that the appellant did not raise any objection regarding the notice before the AO or CIT(A). The tribunal referenced the Delhi High Court's decision in CIT v. Regency Express Builders (P.) Ltd., which held that appearance before the authorities implies notice service. The tribunal concluded that the appellant's participation in the proceedings indicated valid service of notice and rejected the appellant's ground.

2. Charging of Interest under Sections 234B and 234C:
The appellant argued that the interest charged under Sections 234B and 234C was incorrect. The tribunal deemed this issue consequential and directed the AO to charge interest in accordance with the law.

3. Disallowance of Deduction under Section 80IB:
The appellant raised an additional ground challenging the disallowance of deduction under Section 80IB amounting to Rs.80,16,478/-. The tribunal admitted this ground as it was of a legal nature and all facts were on record. The AO had disallowed the deduction on the grounds that the project did not meet the conditions under Section 80IB(10), specifically that individual flats exceeded the 1500 sq.ft. limit when combined. The AO's observations included:
- Adjoining flats were sold to single buyers, effectively creating units larger than 1500 sq.ft.
- Structural layouts and amenities indicated the flats were intended for high-income buyers, contradicting the claim of smaller individual units.
- Enquiries revealed only one electric meter per two flats, and kitchens in some units lacked essential facilities, indicating the units were always intended to be combined.

The CIT(A) upheld the AO's decision, finding that the appellant failed to provide necessary details and the project did not meet the statutory conditions. The tribunal, after considering the appellant's arguments and evidence, agreed with the CIT(A)'s findings. The tribunal noted that the appellant admitted selling adjoining flats to single buyers and the physical layout supported the conclusion that the flats were designed to be used as single units. The tribunal concluded that the project did not qualify for the deduction under Section 80IB and upheld the disallowance.

Conclusion:
The tribunal dismissed the appellant's grounds regarding the invalid service of notice and the incorrect charging of interest, directing the AO to charge interest as per the law. The tribunal also upheld the disallowance of the deduction under Section 80IB, concluding that the project did not meet the necessary conditions. The appellant's appeal was partly allowed, admitting the additional ground but ultimately ruling against the appellant on all substantive issues.

← Previous Next →