2012 (11) TMI 176 - AT - Income Tax

Deduction under S.80IB of the Act - sale of flats at semi-finished condition of the flat Held that - Circular of the CBDT dated 30.6.2009 makes it very clear that deduction under S.80IB(10) of the Act can be claimed on year to year basis, where the assessee is showing the profits from partial completion of the project in each year - project was not completed within four years, the deduction granted to the assessee in earlier years shall be withdrawn - When the developer is offering profits under percentage completion method, the estimated profits that the developer will have on completion of the project is spread over the earlier years and offered every year a percentage of that profit based on percentage of project completed that years - except in the last year, the assessee will be offering income even though the project (and in the individual flats) would not have been completed. As clarified in the Circular such profits offered are also entitled relief u/s 80IB matter remanded to the file of the AO Estimation of profits - AO considered 5% to be too low in this line of business AO found that certain expenditure were not completely verifiable and not all details were available in respect of expenditure, therefore, adopted rate of 8% for estimating profit as against 5% adopted by the assessee Held that - Appellant has adopted the rate of profit at 5% without any basis - In respect of turnover of up to ₹ 40 lakhs net profit is presumed to be @ 8% u/s 44AD - profit to be estimated at 8% - appeal of the assessee is dismissed Business expenditure u/s 37(1) - construction of a temple in the housing project Held that - Construction of temple is for welfare of the employees to instill spirituality to lead peaceful life, therefore, the expenditure incurred towards construction of temple is a part of the housing project, which is allowable as capital expenditure In favor of revenue Disallowance towards cost of lift alleged that bill was raised on dated 23/03/2005 not related to the assessment year under consideration Held that - Assessee failed to substantiate its claim by producing the bills raised by the supplier in AY 2004-05 and other evidence to prove that the expenditure is relating to AY 2004-05 - matter remanded to AO

Summary

Issues Involved:
1. Denial of the claim for relief under Section 80IB of the Income Tax Act.
2. Estimation of profits at 8% as opposed to 5%.
3. Disallowance of expenditure towards construction of a temple.
4. Disallowance of expenditure towards the cost of lifts.
5. Disallowance of expenditure incurred on lighting of the temple.
6. Ad-hoc disallowance on account of raw materials, labor, and land development expenses.
7. Charging of interest under Section 234B of the Income Tax Act.

Detailed Analysis:

1. Denial of the Claim for Relief under Section 80IB:
The core issue in these appeals was the denial of the claim for relief under Section 80IB of the Income Tax Act. The assessee, engaged in the business of construction and sale of flats, claimed the entire income derived from this business as a deduction under Section 80IB. The assessing officer (AO) denied this claim on the grounds that the assessee sold semi-finished flats, which did not qualify as "residential units" under the Act. The AO concluded that since the flats were sold in a semi-finished state, they could not be considered habitable and thus did not meet the criteria for a residential unit under Section 80IB.

The CIT(A) upheld the AO's decision, emphasizing that the sale of semi-finished flats violated the first limb of clause (c) of Section 80IB(10), which requires the sale of completed residential units. The CIT(A) opined that by selling semi-finished structures, the assessee acted as a contractor rather than a developer, thus disqualifying the profits from such sales for deduction under Section 80IB.

However, the Tribunal, referencing CBDT Circular No. 4 of 2009, clarified that deduction under Section 80IB could be claimed on a year-to-year basis for profits from partial completion of projects. The Tribunal emphasized that the liberal interpretation of incentive provisions should advance the cause for which they were incorporated. The Tribunal restored the claim of deduction to the AO with instructions to reassess the claim following the CBDT Circular and relevant legal precedents.

2. Estimation of Profits at 8%:
The assessee contested the AO's estimation of profits at 8% instead of the 5% disclosed by the assessee. The AO justified the 8% estimation due to unverifiable expenditures and lack of complete details. The CIT(A) upheld this estimation, referencing judicial consensus favoring an 8% profit rate in similar business contexts.

The Tribunal agreed with the CIT(A), noting that an 8% estimation was standard in the construction business, and upheld the CIT(A)'s decision to estimate profits at 8%.

3. Disallowance of Expenditure towards Construction of a Temple:
The AO disallowed Rs. 3,92,000 spent on constructing a temple within the housing project, arguing it was not necessary for the business under Section 37(1). The CIT(A) upheld this view, considering the expenditure as religious or charitable.

The Tribunal, however, allowed the expenditure as capital expenditure, referencing the Punjab & Haryana High Court decision in Atlas Cycle Industries Ltd. v. CIT, which recognized such expenditures as part of welfare activities for employees and thus allowable.

4. Disallowance of Expenditure towards Cost of Lifts:
The AO disallowed Rs. 5,24,000 for lift costs, citing that the bill was raised in a different financial year. The CIT(A) confirmed this disallowance, noting that advance payments without corresponding bills could not be considered as expenditure.

The Tribunal set aside this issue to the AO for reassessment, allowing the assessee to provide evidence that the expenditure pertained to the relevant assessment year.

5. Disallowance of Expenditure Incurred on Lighting of the Temple:
The AO disallowed Rs. 19,939 spent on lighting the temple, which the CIT(A) upheld. The Tribunal, referencing its decision on the temple construction expenditure, allowed this expenditure as it was essential for the temple and part of the housing project.

6. Ad-hoc Disallowance on Account of Raw Materials, Labor, and Land Development Expenses:
The AO made an ad-hoc disallowance of Rs. 5,50,000 due to unverifiable expenditures. The CIT(A) reduced this to Rs. 2,00,000, referencing similar disallowances in previous years.

The Tribunal upheld the CIT(A)'s decision, recognizing the necessity of some disallowance due to the nature of the business and the difficulty in maintaining proper bills and vouchers.

7. Charging of Interest under Section 234B:
The charging of interest under Section 234B was deemed consequential. The Tribunal directed the AO to adjust the interest charges accordingly based on the final assessment outcomes.

Conclusion:
The Tribunal allowed the appeals partly for statistical purposes, directing the AO to reassess specific issues following the Tribunal's findings and legal precedents. The Tribunal emphasized the need for a liberal interpretation of incentive provisions to advance their intended purposes.