2016 (11) TMI 1040 - AT - Income Tax

Deduction u/s 80IB - Held that - The assessee is eligible to claim deduction under section 80-IB(10) dehors the area of commercial establishment. In so far as the built-up area of residential units C-5, D-5 and 19 bungalows is concerned the issue is set aside to the Assessing Officer to decide the issue in line with the directions given by the co-ordinate Bench of the Tribunal while adjudicating the appeals in the preceding assessment years. Disallowance of deduction under section 14A read with rule 8D in respect of share of profit received by the assessee from partnership firm - Held that - Disallowance under section 14A is with respect to expenditure incurred for earning tax-free income. The share of profits from partnership firm is exempt from tax under section 10(2A) of the Act in the hands of the partner. Therefore, it is tax-free income in the hands of the assessee. The assessee has not made any disallowance for earning tax-free income. The Assessing Officer has rightly invoked the provisions of section 14A read with rule 8D for making such disallowance. Circular No. 8 of 2014 rather clarifies the reason as to why the share of profits of a partnership firm is exempt from tax in the hands of partner. The interpretation drawn by the learned counsel for excluding share of partnership firm from scope of section 14A is not sustainable. We do not find any infirmity in the order of Commissioner of Income-tax (Appeals) in upholding the disallowance made by the Assessing Officer. Addition u/s 69 - Held that - Addition has been made on the basis of the CIB information received. As per the contentions of the learned counsel for the assessee, the assessee neither owns the property mentioned in the information received from CIB nor has it sold any such property during the period relevant to the assessment year 2011-12. The learned counsel has also placed on record the letters from the office of the Sub-Registrar, Karveer, Kolhapur, in support of his contentions. We are of the view that this issue needs a revisit to the Assessing Officer for verification. The Assessing Officer after verification of records and the letters placed on record by the learned counsel from the office of the Sub- Registrar, Kolhapur, shall decide this issue afresh, in accordance with law.

Issues Involved:
1. Disallowance of deduction under section 80-IB(10) of the Income-tax Act, 1961.
2. Disallowance under section 14A read with rule 8D regarding share of profit from a partnership firm.
3. Addition under section 69 of the Income-tax Act.
4. Levy of interest under section 234B and section 234C of the Income-tax Act.

Detailed Analysis:

1. Disallowance of Deduction under Section 80-IB(10):
The primary issue was whether the assessee was eligible for a deduction under section 80-IB(10) for the housing project "Bhakti Pooja Nagar." The Assessing Officer disallowed the claim on two grounds: the commercial area exceeded the prescribed limit, and the built-up area of certain residential units exceeded 1,500 square feet. The Tribunal referenced its earlier decision in the assessee's case for previous assessment years, where it was held that the restriction on the commercial area introduced by the Finance (No. 2) Act, 2004, effective from April 1, 2005, would not apply to projects approved before this date. Consequently, the Tribunal upheld the assessee's eligibility for the deduction concerning the commercial area. However, the issue of the built-up area of residential units was remitted back to the Assessing Officer for reconsideration in line with previous directions.

2. Disallowance under Section 14A read with Rule 8D:
The assessee contended that the share of profit from the partnership firm should not attract disallowance under section 14A since the firm's income was already taxed. The Tribunal rejected this argument, stating that the share of profits from the partnership firm is exempt from tax under section 10(2A) in the hands of the partner, thus qualifying as tax-free income. Consequently, the provisions of section 14A read with rule 8D were applicable, and the disallowance made by the Assessing Officer was upheld.

3. Addition under Section 69:
The Assessing Officer added ?6,90,172 to the assessee's income based on information that the assessee had sold a property to Mrs. Sunita Kulkarni. The assessee denied owning or selling the property during the relevant period and provided letters from the Sub-Registrar's office supporting this claim. The Tribunal found merit in the assessee's argument and remitted the issue back to the Assessing Officer for verification and a fresh decision based on the records and letters provided.

4. Levy of Interest under Section 234B and Section 234C:
The Tribunal noted that the levy of interest under sections 234B and 234C is mandatory and consequential, thus rejecting the assessee's ground against it.

Conclusion:
The appeal was partly allowed. The Tribunal upheld the disallowance under section 14A and the levy of interest under sections 234B and 234C. It remitted the issues related to the built-up area of residential units and the addition under section 69 back to the Assessing Officer for further verification and decision.

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