2012 (10) TMI 571 - AT - Income Tax

Deduction u/s 80IB - Assessee had constructed flats based upon individual agreements entered with prospective flat buyers - Power of attorney from land owner was only in the name of Managing Partner AO argued that the prospective flat buyer had appointed assessee, only as a contractor for constructing the apartment i.e. consider as job works contract Held that - Cost of the land all the development costs of the project were also charged in the assessee-firm. Just because assessee-firm entered into separate agreements with prospective flat buyers for construction of flats, we cannot say that the project was not being developed by the assessee. We are of the opinion that in this situation, assessee s claim u/s 80- IB(10) was not hit by the Explanation added thereto vide Finance (No.2) Act, 2009 with retrospective effect from 1.4.2001. Issue decides in favour of assessee Deemed dividend u/s 2(22)(e) - Assessee had received a loan from Company wherein partners of the assessee-firm also Directors Held that - Assessee did produce number of evidence, which inter alia included journal entry passed reversing earlier sales made to the said company, which resulted in the debit balance turning into a credit balance. Such particulars were never produced by the assessee before AO. Issue remand back to AO.

Summary

Issues:
1. Eligibility for deduction under Section 80-IB(10) of the Income-tax Act, 1961.
2. Deletion of addition under Section 2(22)(e) of the Act for assessment year 2008-09.

Eligibility for deduction under Section 80-IB(10) of the Income-tax Act, 1961:
The case involved appeals by the Revenue and the assessee regarding the eligibility for deduction under Section 80-IB(10) of the Income-tax Act, 1961. The Revenue contended that the assessee was merely a contractor appointed by flat buyers and not an undertaking developing a project independently. The Revenue also challenged the deletion of an addition made under Section 2(22)(e) of the Act for the assessment year 2008-09. The assessee, engaged in construction business, claimed deductions for specific assessment years under Section 80-IB(10) for a project named SIS Meridian. The Assessing Officer denied the claim, citing the Explanation to Section 80-IB(10) inserted by the Finance Act, 2009. The CIT(Appeals) held in favor of the assessee, emphasizing that the assessee was a developer, builder, and contractor, eligible for the deduction. The Tribunal concurred, stating that the assessee was indeed developing the project and had control over the property, thus qualifying for the deduction under Section 80-IB(10).

Deletion of addition under Section 2(22)(e) of the Act for assessment year 2008-09:
Regarding the deletion of an addition under Section 2(22)(e) of the Act for the assessment year 2008-09, the assessee had received a loan from a company, considered as deemed dividend by the Assessing Officer. The CIT(Appeals) deleted the addition, noting that the transactions were part of the assessee's business dealings. The Revenue challenged this deletion, arguing that the assessee failed to provide sufficient evidence to prove the transactions were business-related. The Tribunal observed that while the assessee did not present explanations to the Assessing Officer initially, it later produced evidence before the CIT(Appeals) supporting the business nature of the transactions. In the interest of justice, the Tribunal remitted the matter back to the Assessing Officer for a fresh examination. The Tribunal directed the Assessing Officer to reconsider the issue with the additional evidence provided by the assessee, ensuring due process.

In conclusion, the Tribunal dismissed the Revenue's appeal for the assessment year 2005-06 and partly allowed it for the assessment year 2008-09 for statistical purposes. The cross-objections raised by the assessee were dismissed as well, considering the decision on the deduction under Section 80-IB(10) had rendered the issue of interest levy under Section 234B academic.