2020 (9) TMI 243 - HC - Income Tax

Advance receipts - deduction under Section 80IAB - substantial question of law - HELD THAT - We admit this appeal on the following two substantial questions of law - 2 (B) Whether Appellate Tribunal ought to have appreciated that the alternate plea of assessee treating the impugned receipt as 'Advance Receipt' was never made before the Assessing Officer and this plea was made for the first time before CIT (A)? (C) Whether the Appellate Tribunal ought to have appreciated that the claim of deduction under Section 80IAB rejected by the Assessing Officer as well as CIT(A) was not contested by the Assessee subsequently and the assessee by advancing such alternate plea tried to neutralize the revenue effect consequent to reject of its claim of deduction under Section 80IAB? Deduction u/s 80IB(10) - disallowance of claim with proper evidence Assessing Officer had established the assessee does not fulfill the conditions for claiming deduction u/s 80IB(10) - HELD THAT - CIT(A) has taken into account the detailed submissions made on behalf of the assessee while adjudicatin the issue in favour of the assessee applying the judicial interpretations available built up area has also been addressed by the CIT(A) based on documentary evidences. Documentary evidences revealed that built up area was within the permissible limit. The Revenue before us could not point out any deficiency in the order of the CIT(A). We also take note of the significant plea on behalf of the assessee that the claim of deduction under Section 80IB(10) of the Act was duly allowed by the AO in subsequent year 2010-11 and 2011-12 in the assessment framed under Section 143(3) of the Act. Also, in the absence of rebuttal of observations made by the CIT(A), we do not see any justification to interfere with the order of the CIT(A). We thus express our concurrence with the conclusion drawn by the CIT(A) and hence, decline to interfere Disallowance of proportionate interest expense - assessee company has incurred substantial interest expense while giving interest free loans - HELD THAT - Revenue could not support the case of the AO for disallownce. The issue in the context of the facts is no longer res integra and covered in favour of the assessee by several judicial precedents as rightly recorded by the CIT(A). Question Nos.2(D)and 2(E) cannot be termed as substantial questions of law

Summary

Issues:
1. Appeal against ITAT order for assessment year 2008-2009.
2. Substantial questions of law proposed by Revenue.
3. Admittance of appeal on two substantial questions.
4. Tribunal's findings on deduction under Section 80IB(10) of the Act.
5. Tribunal's findings on disallowance of interest expenditure under Section 36(1)(iii) of the Act.
6. Dismissal of appeal regarding two proposed questions.

Analysis:

1. The Tax Appeal was filed by the Revenue against the order of the Income Tax Appellate Tribunal (ITAT) for the assessment year 2008-2009.

2. The Revenue proposed several substantial questions of law, including issues related to the treatment of sale consideration, deduction under Section 80IAB, and interest expense disallowance.

3. The High Court admitted the appeal on two substantial questions, which revolved around the timing of the plea regarding the treatment of the receipt as an advance and the contestation of the deduction under Section 80IAB.

4. Regarding the deduction under Section 80IB(10) of the Act, the Tribunal found that the assessee fulfilled the conditions for claiming the deduction, as evidenced by the development agreements, approvals from the Municipal Corporation, and the control exercised over the land and construction.

5. Concerning the disallowance of interest expenditure under Section 36(1)(iii) of the Act, the Tribunal noted that the assessee demonstrated excess own funds over interest-free advances and earned substantial interest, leading to the reversal of the disallowance made by the Assessing Officer.

6. The High Court concluded that the proposed questions related to the deduction under Section 80IB(10) and the disallowance of interest expenditure did not constitute substantial questions of law, resulting in the dismissal of the appeal on those grounds.