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TMI Blog2018 (9) TMI 2064X X X X Extracts X X X X X X X X Extracts X X X X ..... itors, their bank account and also the supporting bills. This ground of the revenue s appeal is dismissed. - ITA No.17/Ind/2017 (Assessment Year: 2009-10) - - - Dated:- 26-9-2018 - SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER Appellant by : Shri P.K. Mitra, D.R. Respondent by : Shri S.S. Deshpadey, AR ORDER PER KUL BHARAT, J.M: This appeal is filed by the revenue is directed against the order of Commissioner of Income Tax (Appeals), Ujjain, dated 25.10.2016 pertaining to the assessment year 2009- 10. The revenue has raised following grounds of appeal: 1. On the facts and in the circumstances of the case the Ld. CIT(A) erred in deleting the addition made by the A.O. of ₹ 2,53,19,825/- on account of disallowance of deduction claimed u/s 80IB(10) of the Act and ₹ 16,74,394/- on account of bogus creditors without appreciating the facts and evidences brought into light by the A.O. during assessment proceedings and remand proceedings. 2. On the facts and in the circumstances of the case the Ld. CIT(A) erred in holding the assessee eligible for deduction u/s 80IB(10) in absence of date of original permission of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 3,81,46,910/-, whereas the assessee has claimed deduction u/s 80IB(10) of the Act at ₹ 2,53,19,825/-. It is further observed by the A.O. that in respect to the question of completion, the assessee submitted that the project of developing and building housing project is still in process and hence completion certificate is not produced. The A.O. observed that one of the conditions prescribed for allowance of deduction u/s 80IB of the Act is that where a housing project has been approved by the local authority on or after first date of April, 2005, the completion should be within 5 years from the end of the financial year in which the housing project is approved by the local authority. The section defines the date of completion as the date of completion of construction of the housing project shall be taken to be the date on which the completion certificate in respect of such housing project is issued by local authority. Further, A.O. observed that as per the assessee s reply, it is clear that no such certificate has been issued, therefore, the assessee is not eligible for deduction u/s 80IB(10) of the Act. Further, the A.O. observed that assessee had got the plot registered i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... completion certificate. 4.2.4 The appellant is the owner of the project land. There is a comprehensive agreement with the buyer of the house, wherein each and every detail is mentioned as to the ownership of land, the details of the common amenities to be provided, the built up area of the house, the type of electrical and sanitory fittings to be provided, the total cost of the house and the construction stage wise payment schedule and the probable time period with in which the possession shall be handed over. The projects are advertised and such in the media and by way of pamphlets and hoarding in the town and exhibitions etc. The copies of the various agreements, sale deeds emphasize the fact that the subject matter of sale is a complete residential unit and not an open plot or an incomplete structure. The said main agreement which is the document that governs the sale contains a clause whereby the customer has an option to get the sale deed executed in his favour while the construction is in progress. 4.2.5 the agreements go to prove that the appellant has in fact acted as a developer and not as a contractor. Most of the houses sold are financed by one bank or the othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate has been granted for the Project as whole and not for individual houses. The same stands testimony to the fact that the appellant has constructed all the houses as a single project and not as a contractor. It may also be seen that the developer/builder has handed over the colony as a whole to the Municipal Corporation and not individual houses at different points of time. 4.2.8 The Assessing Officer has not brought on record even a single instance where the house has been later constructed by the customer himself or by a different contractor or is still lying unconstructed. Each and every house has been built by the appellant alone. This being the case it only means that the appellant is the developer and builder of the project as a whole and not a contractor for individual customer. The possession letters and the sale deeds have been examined by the concerned Sub-Registrar of Properties of Bhopal and the Registries have taken place accordingly, no deficiencies, whatsoever, have been pointed out by them ever since the project has been started. In the light of the above facts on record it is clear that the case cited by the Assessing Officer (Sky Builders Developers Vs. IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee can claim deduction on a year to year basis. We therefore, do not see any infirmity in the order of the Ld. CIT(A) and the ground of the revenue s appeal is rejected. 8. Part of the ground No.1 is against deleting the addition of ₹ 16,74,394/- on account of bogus creditors. Ld. D.R. supported the order of the assessing officer and submitted that Ld. CIT(A) was not justified in deleting the addition. Ld. D.R. submitted that the notices sent to these creditors were returned unserved, therefore, the A.O. was justified in making the addition. Ld. Counsel for the assessee supported the order of the Ld. CIT(A) and submitted that the assessing officer failed to appreciate the facts that all these were suppliers and the assessee has been purchasing material from them. The Ld. CIT(A) has deleted this addition by observing as under: The above creditors are old suppliers in the business of the appellant. All the three parties are filing their Income Tax Returns. The appellant is frequently making purchases from the above parties. The A.O. has not disallowed the expenses claimed by the appellant as a result of transaction with the above parties. The appellant furnishe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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