2015 (8) TMI 1160 - AT - Income Tax

Income disclosed during the survey - treated as Income from Other Sources or Business Income - disallowance of deduction u/s 80IB on the income disclosed during the survey - Held that - We do not find any justification for the different stand of the Revenue authorities - one at the time of survey and another at the time of regular assessment. During the course of survey, the Revenue authorities themselves have considered the receipt noted in the diary to be on-money received for booking of the flats in Ornate House. The assessee admitted the same and surrendered the amount as its income from Ornate House project. Admittedly, the assessee did not have any other business activity during the year under consideration. Considering the totality of these facts and the arguments of both the sides, in our opinion, there was no justification for the Assessing Officer to hold that the amount was the income from other sources and not the income from Ornate House project. Similar issue is considered by the ITAT, Ahmedabad Bench in the case of M/s. Nilkanth Developers 2014 (12) TMI 928 - ITAT AHMEDABAD to hold that the amount was the receipt from developing and building of housing project in the name and style of Ornate House which was eligible for deduction u/s 80IB(10) - Decided in favour of assessee.

Summary

Issues Involved:
1. Whether the Commissioner of Income Tax (Appeals) erred in passing an ex-parte order without giving proper opportunity of being heard.
2. Whether the income of Rs. 76,25,000 disclosed during the survey should be treated as "Income from Other Sources" or "Business Income" and whether the deduction under Section 80IB of the IT Act, 1961, is applicable to this income.

Issue-wise Detailed Analysis:

1. Opportunity of Being Heard:
The first ground of appeal was whether the CIT(A) erred in passing an ex-parte order without giving the assessee a proper opportunity of being heard. However, this ground was not pressed by the assessee's counsel during the hearing and was thus rejected as not pressed.

2. Classification of Income and Deduction under Section 80IB:
The primary issue remaining for adjudication was whether the income of Rs. 76,25,000 disclosed during the survey should be treated as "Income from Other Sources" or "Business Income" and whether the deduction under Section 80IB of the IT Act, 1961, is applicable to this income.

Facts and Arguments:
- The assessee, a partnership firm engaged in developing and building housing projects, filed a return disclosing nil income after claiming a deduction under Section 80IB(10) amounting to Rs. 1,18,96,902.
- During a survey conducted under Section 133A, certain loose papers indicating receipt of on-money from the Ornate House project were found. The assessee admitted that the diary entries related to on-money received for bookings in the project and surrendered Rs. 76,25,000 as undisclosed income.
- The assessee recorded this amount as business income in its books and claimed it under Section 80IB(10). However, the Assessing Officer treated this amount as "Income from Other Sources" and disallowed the deduction under Section 80IB(10).
- The CIT(A) upheld the Assessing Officer's decision, reasoning that the benefit under Section 80IB(10) cannot be extended to tax evaders who did not disclose their receipts correctly and that the assessee failed to provide detailed information about the on-money receipts.

Tribunal's Analysis:
- The Tribunal emphasized that under Section 80IB(10), the assessee is entitled to a 100% deduction of the "profits derived from such housing project." The only requirement is that the profit should be derived from an eligible housing project.
- It was undisputed that the Ornate House project was eligible for deduction under Section 80IB(10). Therefore, the deduction should be allowed for 100% of the profit from this housing project, regardless of whether the receipt was properly recorded in the regular books of accounts.
- The Tribunal found no justification for the Revenue's different stand during the survey and regular assessment. During the survey, the Revenue treated the Rs. 76,25,000 as on-money from the housing project, which the assessee admitted and surrendered as its income.
- The Tribunal referred to a similar case, M/s. Nilkanth Developers, where the ITAT, Ahmedabad Bench, held that the deduction under Section 80IB(10) is allowable on the entire profit derived from the housing project, including any on-money received.

Conclusion:
- The Tribunal concluded that the sum of Rs. 76,25,000 was indeed the profit derived from the housing project and eligible for deduction under Section 80IB(10). The Tribunal directed the Assessing Officer to allow the deduction on this amount.
- Consequently, the assessee's appeal was partly allowed, specifically on the ground related to the classification of income and the applicability of the deduction under Section 80IB(10).

Order Pronouncement:
The order was pronounced in the Court on 7th August 2015 at Ahmedabad, resulting in the assessee's appeal being partly allowed.