2016 (6) TMI 33 - AT - Income Tax

Deduction u/s 80-IB - Addition as projects not completed during the year on the basis of project completion method regularly followed by the assessee - Held that - It is only after the end of the litigation and vacation of the stay order the assessee got the occupation certificate on 18.02.2010 for the additional floors. We also find that the possession were given to the buyers of the flats as per the original sanction plan whereas the additional floors were still under construction during the year. The total number of flats as per the original plan were 155 to which 44 flats were added after revised occupation certificate obtained from the BMC. In the case of Hawala Construction Private Ltd. 2011 (8) TMI 1080 - ITAT MUMBAI the Tribunal held that a project is completed when a occupation certificate is received in respect of buildings and revenue authorities are not justified in rejecting the project completion method constantly followed by the assessee. Thus we are of the considered view that the method of accounting followed by the assessee i.e. project completion method was correct and recognized one and AO was wrong in rejecting the same while accepting the same method in the earlier and preceding years - Decided in favour of assessee.

Issues Involved:
1. Deletion of addition of ?52,71,02,218/- by CIT(A) regarding the completion status of three projects.
2. Disallowance under Section 40A(2)(b) for services rendered to Kukreja Services P Ltd.

Detailed Analysis:

1. Deletion of Addition of ?52,71,02,218/-:

The core issue revolves around whether the three projects, namely 'Sai Ashish', 'Hari Kunj', and 'Chembur Heights', were completed during the year under consideration. The Assessing Officer (AO) treated these projects as completed based on the Occupation Certificate obtained and the spot verification report by the inspector. The AO added the difference between the advance received against the sale of flats and the work in progress as income, amounting to ?52,71,02,218/-.

The CIT(A) deleted this addition, holding that the projects were not completed as per the project completion method regularly followed by the assessee and accepted by the department in preceding and succeeding years. The CIT(A) emphasized that the additional floors constructed due to revised plans and the ongoing construction activities indicated that the projects were not complete. The CIT(A) also noted that the AO's reliance on the spot verification report was flawed as it only pertained to completed buildings, not those under construction.

The Tribunal upheld the CIT(A)'s decision, noting that the assessee followed the project completion method consistently, which was accepted by the department in other years. The Tribunal found that the projects were ongoing and not completed during the year, as evidenced by the substantial construction and advances received in subsequent years. The Tribunal also cited various judicial precedents supporting the project completion method and concluded that the AO was incorrect in treating the projects as completed and adding the said amount to the income of the assessee.

2. Disallowance under Section 40A(2)(b):

The second issue pertains to the disallowance of ?7,50,000/- under Section 40A(2)(b) for business centre and administrative charges paid to M/s. Kukreja Services Pvt. Ltd., a sister concern of the assessee. The AO had initially disallowed ?9,30,000/-, which was reduced to ?7,50,000/- by the CIT(A).

The Tribunal noted that this issue had been settled in favor of the assessee in earlier assessment years (2006-07, 2007-08, and 2008-09) by the ITAT, where it was held that the payments made to the sister concern were not excessive or unreasonable. The Tribunal found no new facts or evidence to deviate from its earlier decisions and, therefore, deleted the disallowance, following the principle of consistency.

Additional Issues:

The Tribunal also addressed other issues related to the reduction of deduction under Section 80-IB(10) for various projects due to other income. The AO had reduced the deduction, arguing that the income from amenities and other services did not have a direct nexus with the core construction activities. The Tribunal, following its earlier decisions, held that such income was part of the core construction activities and allowed the deduction under Section 80-IB(10).

Conclusion:

The Tribunal dismissed the revenue's appeal and allowed the assessee's appeal, upholding the CIT(A)'s deletion of the addition of ?52,71,02,218/- and the disallowance under Section 40A(2)(b). The Tribunal's decision was based on the consistent application of the project completion method and the principle of consistency in judicial decisions.

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