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TMI Blog2012 (5) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... k and on the profit declared on the sale of the said flats, assessee claimed the deduction u/s.80IB(10) of the Act of Rs. 1,14,91,144/-. The A.O. denied the said deduction to the assessee relying on the assessment order for the A.Y. 2003-04. We find that no detail discussion in the assessment order on this issue. The Ld. CIT (A) confirmed the order of the A.O. denying the deduction to the assessee by giving reference of the A.Y. 2003-04. Now, the assessee is in appeal before us. 3. We have heard the parties. We find that in the A.Y. 2003-04 the order of the Ld. CIT (A) was challenged before the Tribunal by filing appeals being ITAs 6033 and 6143/M/2007 and Tribunal allowed the claim of the assessee following the decision of the Special Bench in the case of M/s. Brahma Associates (supra), copy of the Tribunal order is placed on record. We, therefore, set aside the order of the Ld. CIT (A) on this issue and allow the ground taken by the assessee as admittedly the flats sold by the assessee in this year are out of stockin- trade with the assessee in respect of the Project "Ram Laxman Tower" and issue of allowability of the deduction has already been allowed in favour of assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sit 1,275,000.00 Society maintenance recd. 949,300.60 Share money 21,771.00 Society formation 88,500.00 Car Parking Charges 545,000.00 Grill Charges 494,739.00 Video Door Security Chgs. 1,425,000.00 Legal Charges 44,250.00 Total 8,382,964.60 7. Present assessee has collected the different charges from the flat buyers as builder for the specific purposes but as comparative expenditure is lesser hence, the balance credit was taken to the profit and loss account. No further description is available before us to clarify the nature of the receipts. So far as development charges are concerned, as explained by the Ld. Counsel the same are collected from flat buyers for the development purpose. In our opinion, the same has got direct nexus with the development of housing project. Same way, the following receipts are having direct nexus with the housing project. Sr. No. Particulars Amount in Rs. 1 Extra work 13,87,216.00 2 Interest from flat buyers for late payment 336,892.00 3 Car Parking 545,000.00 4 Grill Charges 494,739.00 5 Video Door Security Chgs. 1,425,000.00 8. In our opinion, the following receipts cannot be said to have first degree ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consequence, the deduction claimed by the assessee u/s.80IB(10) was also reduced. The assessee carried the issue before the Ld. CIT (A) and Ld. CIT (A) following the decision of the Tribunal in the of assessee's sister concern, namely M/s. Ganga Developers (ITA no.9136/M/2004) for the A.Y. 2001-02 directed the A.O. to examine the issue of allowability of the assessee's claim in the light of the said decision. The operative part of the findings of the Ld. CIT (A) is as under:- "5.3 I have considered the assessment order and the submissions of the appellant. As I find, the Hon'ble ITAT 'K' Bench, Mumbai, has vide its order dated 28.6.2007 in the case of appellant's sister concern, M/s. Ganga Developers vs. DCIT Central Circle 31 (ITA no.9136/Mum/2004) for the A.Y. 2001-02 passed its order on similar ground. In this decision, the Hon'ble ITAT has agreed in principle on proposition of proportionate allocation of expenses and has restored the matter to the Assessing Officer to decide the issue in the light of the discussion made by the Hon'ble ITAT in this order. Respectfully, following this decision on similar issue in the appellant's sister concern, I direct the Assessing Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her income to the extent of Rs. 5,93,744/-. The A.O. was of the opinion that the said receipts/income has not direct nexus with the construction activity. He, therefore, reduced the said receipts from the eligible profit declared by the assessee. The assessee carried the issue before the Ld. CIT (A) but without success. Nothing is placed before us to show the nature of the receipt. We have already adjudicated identical issue in the A.Y. 2006- 07. As the required details are not available with us, we restore this issue to the file of the A.O. to decide the same after considering our decision in assessee's appeal for the A.Y. 2006-07. Accordingly, ground no.1 is allowed for the statistical purposes. 19. The Ld. Counsel for the assessee submits that the assessee Is not pressing ground no.2, as ground no.2 is not pressed the same is dismissed as not pressed. 20. Ground no.3 reads as under:- "2. The learned Commissioner of Income Tax (Appeals) further erred in confirming the disallowance of Rs. 25,24,061/- out of indirect expenses separately while computing the income on the ground that the same should be reduced from the deduction allowable u/s.80-IB(10) in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.9136/Mum/2004 dated 28.06.2007 for A.Y. 2001-02; without appreciating that the relevant facts of the assessee are not identical to the facts of the case relied upon. 3. On the facts and in the circumstances of the case and in law, the Ld. CIT (A) has erred in directing the Assessing Officer to allocate proportionate indirect expenses to the project 'Sai Jyot' while allowing the deduction u/s.80-IB on the basis of "cost" incurred on various projects during the year as against the allocation done by the Assessing Officer on the basis of "income" declared from various projects; without appreciating the fact that the indirect expenses are directly related to the "Income" earned and not to the "Cost" incurred by the assessee during the year." 26. We have heard the parties. The grievance of the revenue which we find from the ground is that the Ld. CIT (A) directed the A.O. to rework the allocation of the indirect expenses in the light of the decision of the Tribunal in the assessee's one of the sister concern i.e. M/s. Ganga Developers (supra). We have already adjudicated identical issue in assessee's appeal for the A.Y. 2006-07. In our opinion, as the Ld. CIT (A) has d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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