9911796707
Advanced Search 
TMI Blog2014 (9) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) of the Act by order dt.29.12.2010 wherein the income of the assessee was determined at Rs. 87, 99,41,890. In doing so, the Assessing Officer inter alia recomputed the deduction under section 80 IB(10) of the Act at Rs. 139,31,40,676 as against Rs. 144,37,51,701 claimed by the assessee and excluded the profit from sale of undivided interest in land while computing the deduction under section 80 IB(10) of the Act. 2.2 Aggrieved by the order of assessment for Assessment Year 2008-09 dt.29.12.2010, the assessee preferred an appeal before the concerned CIT(Appeals). During the pendency of this appeal, the CIT, LTU, Bangalore issued a show cause notice to the assessee, initiating revision proceedings u/s.263 of the Act after revising and holding the aforesaid order of assessment for Assessment Year 2008-09 passed by the Assessing Officer to be erroneous and prejudicial to the interests of revenue on the following points : "(i) Wrong claim and allowance of deduction u/s.80 IB(10). (ii) The short fall in the remittance of TDS byRs.10,13,572 which related to a gross receipt of Rs. 4,47,29,567 which requires disallowances u/s.40(a)(ia). (iii) To consider the short computation of frin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there was a shortfall in remittance of TDs during the year. He, therefore, directed the Assessing Officer that the relatable amount of payment made to contractors had to be disallowed u/s.40(a)(ia) of the Act. iii) The issue of short computation of value of fringe benefit was not dealt with in the impugned order under section 263 of the Act, since it arose in the order u/s. 115WE of the Act dt.9.12.2010. iv) With regard to the issue of credit for TDS, the learned CIT, LTU directed the Assessing Officer to verify the income offered and allow the corresponding TDS in the proper assessment year as per law. v) With regard to the claim for deduction out of provision "others" of Rs. 28.50 Crores, the learned CIT, LTU, directed the Assessing Officer to verify the provision created with evidence to be produced and set aside the matter for fresh consideration. vi) With regard to the issue relating to the deduction claimed under section 36(1)(iii) of Rs. 41.95 Crores the learned CIT, LTU, noted that the allowance of the said deduction was appropriate and no revision was required to be made in respect of the said issue. 3. Aggrieved by the order the learned CIT, LTU, Bangalore unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an error prejudicial to the interest of the revenue in the order passed by the learned Assessing Officer allowing the deduction for the provision for expenses to be incurred in respect of completed projects, warranting revision u/s. 263 of the Act and consequently, the order passed by the CIT holding that the failure of the learned Assessing Officer to examine the same constitutes an error requires to be vacated. 5. For the above and other grounds that may be urged at the time of hearing of the appeal, your appellant humbly prays that the appeal may be allowed and justice rendered and the appellant may be awarded costs in prosecuting the appeal and also order for the refund of the institution fees as part of the costs." 4. From a perusal of the grounds of appeal raised (supra), it is seen that the assessee is only challenging three issues considered by the learned CIT, LTU in the proceedings under section 263 of the Act for Assessment Year 2008-09. Originally, the learned CIT, LTU, had raised six issues, which were set out earlier in this order (supra) and later dropped proceedings in respect of two issues, viz., fringe benefit tax and interest claimed under section 36(1)(iii) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordinate benches of this Tribunal in the assessee's own case for earlier years. 7.2 Per contra, the learned Departmental Representative relied on the order of the learned CIT, LTU and submitted that the CIT had correctly invoked the provisions of section 263 of the Act in directing the Assessing Officer to deny the assessee the deduction claimed under section 80 IB(10) of the Act. 7.3.1 We have heard the rival contentions and perused and carefully considered the material on record. The order of the co-ordinate bench of this Tribunal in the assessee's own case for Assessment Year 2006-07 in ITA No.339/Bang/2011 (supra) is an order passed on the jurisdiction under section 263 of the Act. In the said order, the Tribunal found that the issue considered by the Assessing Officer in assessment proceedings and decided by the appellate authorities relating to deduction under section 80 IB(10) of the Act was the same as the issue being considered by the learned CIT under section 263 of the Act and therefore the learned CIT, LTU, could not exercise jurisdiction under section 263 of the Act. In this view of the matter, the order passed under section 263 of the Act was cancelled. Howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Officer was directed to make enquiries and verify the submissions of the assessee. In our view having concluded that the assessee is not a developer and builder, it becomes a case where the CIT has exercised the powers u/s.263 of the Act and revised the order of the Assessing Officer by modifying the assessment. In the light of the above directions, there is nothing further to be done by the Assessing Officer. 32. In the light of the above directions of the CIT in the order u/s.263 of the Act, we have to examine the question as to whether the assessee can be said to be only a 'builder' and not a 'developer and builder'. In this regard we have already seen the reply of the assessee to the show cause notice u/s.263 of the Act. Without rebutting those submissions and calling for information the CIT in the impugned order has concluded that the Assessee is only a "Builder" and not a "Developer and Builder" of housing project. In our view such a finding is without any basis and without bringing on record material and contrary to the claim made by the Assessee. The same cannot be sustained and is hereby vacated. 33. Since the aspect raised by the CIT in the impugned order u/s.263 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch a finding is without any basis and without bringing on record material and contrary to the claim made by the Assessee. The same cannot be sustained and is hereby vacated. The directions of the CIT in the impugned order are modified as stated above. The issue as to whether the Assessee is only a "Builder" and not a "Developer and Builder" of housing project is remanded to the AO to be considered afresh in the light of the directions given above. For the reasons given above we partly allow the appeal of the Assessee." 7.3.3 On an appreciation of the matter, we find that the facts and circumstances of the case in the impugned Assessment Year 2008-09 is similar to the issue considered and decided by the Tribunal for Assessment Year 2007-08. The observations extracted from the order of the co-ordinate benches (supra), are, in our view, squarely applicable to the case on hand since the learned CIT, LTU, has concluded that the assessee is a "builder" without rebutting any of the submissions and contentions put forth by the assessee with regard to the various activities carried out by the assessee in the reply to the show cause notice issued under section 263 of the Act. We, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive prayed that the Assessing Officer may be directed to verify the said claim in the proceedings while giving effect to the impugned order under section 263 of the Act. 8.2 The learned Departmental Representative supported the order of the learned CIT, LTU and submitted that the said reconciliation sought to be put forth by the learned Authorised Representative (supra) was not before the learned CIT, LTU when he perused the impugned order under section 263 of the Act and therefore the finding therein cannot be disturbed. 8.3 We have heard both parties and perused and carefully considered the material on record. On an appreciation of the submissions made and the material before us, we are of the view that the learned CIT, LTU ought not to have straightaway held that there was a shortfall in remittance of TDS ofRs.10,13,572 and consequently disallowance ofRs.4,47,29,567 relating to the above shortfall needs to be disallowed under section 40(a)(ia) of the Act. It is seen from the impugned order under section 263 of the Act that the assessee has requested the learned CIT, LTU to inform as to how the shortfall of Rs. 10,13,572 was arrived at. It was always the plea of the assessee b ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
