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TMI Blog2013 (7) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... roval by the Central Government on 7.1.2008 and complied with all the requirements of sec. 80IA(4)(iii) of the Act. 3. The learned CIT(A) ought to have held that all the conditions required for grant of deduction u/s. 80IA(4)(iii) of the IT Act are fulfilled. 3. Brief facts of the case are that the assessee-company is a builder and developer of housing projects. For A.Y. 2008-09 the assessee-company filed its return of income on 30.09.2007 admitting total income of Rs. 21,70,67,700. The Assessing Officer completed the assessment u/s. 143(3) of the Act determining the taxable income of the assessee-company at Rs. 36,44,81,905 by disallowing exemption u/s. 80IA of the Act. On appeal, the CIT(A) observed that the assessee company was not ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oval has already commenced with the Ministry. The AR submitted that similar projects of the assessee company taken up during the Financial Year 2005-06 (Asst Year 2006-07) were approved from the date of commencement of the project by the Ministry of Commerce, Department of Industrial Policy & Promotion, Secretariat for Industrial Assistance, Govt. of India (SIA). The assessee- company has adopted a consistent policy of recognizing Revenue on Percentage Completion method by following AS-7 issued by the ICAI and the Closing Work in Progress is derived after including a notional profit of 10% of the actual cost of the work under progress. 6. The AR also submitted that the notional profits recorded in the books of accounts cannot be construed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and are not real profits derived either out of sale/through operating the facility, the assessee has not obtained a formal certificate u/s. 1OCCB of the Income-tax Act, 1961. The AR pleaded the Bench to allow the benefits of Sec. 801A(4) (iii) keeping in view the above facts and more specifically the fact that the assessee has reflected only notional profits in its income statement in view of a policy adopted by the company. 8. The learned DR submitted that there is no valid approval as required u/s. 80IA of the Act. 9. We have heard both the parties and perused the material on record. In our opinion, it is an admitted fact that there is no approval u/s. 10CCB of the Act for the assessee's project. The AR submitted before us that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee fulfilled the conditions laid down u/s. 80IA(4)(iii) of the Act and it is entitled for deduction u/s. 80IA of the Act. In this case admittedly the assessee applied for approval under Industrial Policy 2002 vide application dated 8.1.2007 under Non-automatic approval scheme. Under this scheme, the Empowered Committee could reject the application of the assessee after giving opportunity to the assessee and order of rejection shall be passed within 12 weeks from date of receipt of application. 7. The assessee made a plea before us that since the Ministry of Commerce received the application of the assessee on 10.1.2007, the period of 12 weeks expired on 10.4.2007 and there was no communication until 15th January, 2009 and only on 15th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on made by the assessee, there was no scheme in operation under Industrial Park Policy, 2002. The 2002 scheme had lapsed as it was effective, notified and applicable up to 31st March, 2006. The 2002 scheme was no longer in operation. It is not possible to agree with the contention of the assessee that scheme 2002 was substituted with new scheme 2008. In our opinion, at the time of making initial application by the assessee to DIPP there was no scheme under Industrial Policy Scheme, 2002. A new scheme was framed and gazetted only on 8th January 2008 and this scheme has been implemented with effect from 1st April 2006. Being so, we cannot hold that the 2002 scheme continued to be in operation till 8th January, 2008. Being so, the assessee can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase to be remitted back to the Assessing Officer for fresh consideration after getting approval from Ministry of Commerce, Government of India on this issue. The assessee submitted that there was a search action in the case of the assessee u/s. 132 of the Act. The Assessing Officer is going to frame the assessment u/s. 153A of the Act covering this assessment year also. Accordingly, he prayed that the issue may be remitted back to the Assessing Officer. If there was search action in this case of the assessee and consequence of passing of order u/s. 153A, it cannot be a reason to remit the issue back to the file of the Assessing Officer to reconsider the issue as each assessment is independent and separate proceedings. Accordingly, this plea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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