9911796707
TMI Blog2022 (3) TMI 969X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Amarjit Singh, Accountant Member And Shri Sandeep Singh Karhail, Judicial Member For the Appellant : Mani Jain For the Respondent : T. Shankar ORDER PER AMARJIT SINGH, AM: The present appeal filed by the assessee is directed against the order passed by the CIT(A)-25, Mumbai, dated 11.11.2016 which in turn arises from the assessment order passed by the A.O u/s 143(3) r.w.s 147 of the I.T. Act, dated 01.03.2013 for A.Y. 2007-08. The assessee has raised the following grounds before us: 1. On the facts and circumstances of the appellant's case and in law the Ld. Commissioner of Income Tax erred in confirming the action of Ld. AO in not allowing deduction of ₹ 2,76,05,035/- u/s. 80IB(10). 2. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03.2012 the assessee filed return of income on 24.01.2013 wherein an amount of ₹ 33,54,000/- was shown as a part of total business income of the assessee. The assessee has claimed an amount of ₹ 2,76,05,035/- as deduction u/s 80IB of the Act on the profit from its Pimpari Projects. This claim of deduction was arrived at by clubbing profit from Pimpari Project (Manish Garden) (₹ 2,42,51,035/-) and unexplained income (Pimpari Project) (₹ 33,54,000/-). During the course of assessment the assessee explained vide letter dated 15.03.2013 before the assessing officer that it is entitled for deduction u/s 80IB(10) of the Act on the aforesaid income which is attributable to the business of the assessee. Regarding the claim of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be allowed to the assessee. The ld. Counsel has referred the decision of ITAT, Pune in the case of M/s Surana Mutha Bhasali Developers Vs. ACIT, Circle 11(2) vide ITA No. 2825/Pun/2017 dated 02.07.2021 wherein held that income received as on money is eligible for deduction u/s 80IB(10) of the Act. On the other hand, the ld. D.R relied on the order of the lower authorities. 5. Heard both the sides and perused the material on record. Without retreating the facts as elaborated above, during the course of survey proceedings carried out on 23.12.2008 the assessee has disclosed unaccounted receipt from Pimpari Project amounting to ₹ 33,54,000/-. The assessee has claimed deduction u/s 80IB(10) of the Act on the aforesaid unaccounted r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Revenue accepted the same while including it in the total income, it cannot later on claim that no deduction u/s 80IB(10) can be granted on the same as the assessee failed to prove that the flat bookers gave such on-money. If we accept the view point of the Revenue that source of the income is unexplained and does not pertain to the housing project, then, in the given facts, when there is no positive material other than the assessee s statement of receiving such an amount as `on money , then there is no income in the first instance calling for its inclusion in the total income. Once it is agreed to be `on-money from the flatsbookings at the time of its inclusion in the total income, a fortiori, such an income, being from sale of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The fact in brief is that A.O has levied penalty u/s 271(1)(c) of the Act vide order dated 31.03.2018 for ₹ 11,28,956/-. The assessee has filed appeal before the ld. CIT(A), however the ld. CIT(A) has dismissed the appeal of the assessee holding that assessee has opted for Vivad se Vishwas Scheme, vide application dated 21.01.2021. 7. During the course of appellate proceedings before us the ld. Counsel contended that assessee has not opted for Vivad se Vishwas Scheme in respect of the impugned penalty levided by the assessing officer vide order dated 31.03.2018. In this regard the assessee has filed paper book comprising copies of form No. 1 5 of Vivad se Vishwas Scheme along with submission made before the ld. CIT(A). On the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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