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TMI Blog2022 (7) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... he Income Tax Act of Rs.3,85,54,219/- by ignoring the fact that commencement certificate was obtained first time on 31.03.2005. 2) On the facts and circumstances of the case and in law, the Ld. CIT(A) did not take cognizance of the fact that assessee himself revised his return of income, withdrawing his claim of deduction u/s. 80IB and did not press his claim during assessment proceedings. The CIT(A) did not give opportunity to the AO, when assessee claimed deduction u/s. 80IB, first time before the CIT(A)." 5. The brief facts of the case are that the assessee is an individual engaged in the business of civil contractor and builder. The assessee is also a Director in M/s. Garve Motors Pvt. Ltd. The return of income for A.Y. 2011-12 was e-filed on 26-09-2011 declaring total income at Rs.64,85,567/- after claiming the exemption of the profits derived from housing project namely Treasure and Emrald Palace, under provisions of section 80IB(10) of the Income Tax Act. Subsequently, survey operations under the provisions of section 133A were conducted in the business premises of the respondent-assessee on 15-02-2013. During the course of survey operations, statement was recorded from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of assessment by the AO. The ld. DR further submits that the assessee had preferred an appeal before the CIT(A) after the penalty proceedings initiated u/s. 271(1)(c) of the Act were dropped which clearly demonstrate that the assessee is not entitled for deduction u/s. 80IB(10) of the Act, for having not completed the project within stipulated period. 9. On the other hand, the Ld. AR for the assessee submits that during the course of survey operation, the assessee was pressurized by the AO to withdraw the claim for deduction of profits u/s. 80IB(10) of the Act and there is no bar for the CIT(A) to entertain the new claim, in support of this proposition he had placed reliance in the case of CIT Vs. Pruthvi Brokers and Shareholders (P) Ltd. reported in 349 ITR 336 (Bom.). On merits he submits that the construction of Plot A was completed completion certificate was obtained on 31-03-2009 and construction of Plot B was completed and completion certificate was obtained on 31-03-2012 and the assessee was clearly entitled to claim deduction u/s. 80IB(10) of the Act. 10. Heard the rival submissions and perused the material on record. The issue in the present grounds of appeal relates to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0IA of the Act and there is nothing on record to indicate that the CIT(A) had satisfied himself as to the satisfaction of conditions necessary for allowing the benefit u/s. 80IB(10) of the Act. Further, the CIT(A) failed to refer to material on record, if any, that the assessee is entitled to benefit of deduction u/s. 80IB(10) of the Act and in any event the direction of CIT(A) allowing the benefit u/s. 80IB(10) of the Act is contrary to plain provisions of sub-section (5) of section 80A of the Act. Thus, the order of CIT(A) is illegal and perverse, cannot be sustained in the eyes of law, hence, reversed and the order of AO is restored. Thus, grounds raised by the Revenue are allowed. 13. In the result, the appeal of Revenue is allowed. 14. Now, we shall take up appeal in ITA No. 2286/PUN/2017 for A.Y. 2012-13 of Revenue. 15. The brief facts of the case are that the assessee is an individual engaged in the business of civil contractor and builder. The assessee is also a Director in M/s. Garve Motors Pvt. Ltd. The assessee carried on a residential project under the name Treasure and Emrald Palace. The assessee filed return of income declaring a total income of Rs.1,91,42,440/- on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar facts the predecessor Ld. CIT(A) has adjudicated and rejected the plea of the assessee to admit additional evidence? 2. Whether on the facts and in the circumstances of the case and in law the Ld. CIT(A) has erred in allowing the deduction u/s. 80IB(10) of the I.T. Act of Rs.3,85,54,219/- by ignoring the fact that commencement certificate was obtained first time on 31/03/2005? 3. Whether on the facts and in the circumstances of the case, the Ld. CIT(A) did not take cognizance of the fact that assessee himself revised his return of income, withdrawing his claim of deduction u/s. 80IB(10) and did not press his claim during assessment proceedings. The Ld. CIT(A) did not tie opportunity to the AO, when assessee claimed deduction u/s. 80IB, first time before the Ld. CIT(A)?" 16. Heard the rival submissions and perused the material on record. The issue in the present appeal is whether the CIT(A) was justified or not in allowing deduction on profits earned from housing project u/s. 80IB(10) of the Act in exercise of powers vested with him under the provisions of section 154 of the Act. Admittedly, the assessee withdrawn the claim for deduction of profits from housing project of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 80IB(10) of the Act read with the provisions of sub-section (5) of section 80A of the Act. 19. Further, we notice that the claim for deduction u/s. 80IB(10) of the Act can be made only subject to fulfillment of condition precedents. In the present case, the AO had no occasion to examine the claim of appellant for deduction u/s. 80IB(10) of the Act. There is nothing on record to indicate that the CIT(A) had satisfied himself as to the fulfillment of conditions for allowing the benefit u/s. 80IB(10) of the Act nor the CIT(A) had referred any material on record indicating that the assessee is entitled for the benefit of deduction u/s. 80IB(10) of the Act. Furthermore, the deduction under the provisions of section 80IB(10) can be allowed subject to condition that the assessee makes a claim in the return of income as provided by the provisions of sub-section (5) of section 80A of the Act. There was no claim made by the assessee for deduction u/s. 80IB(10) of the Act in the original return of income. Thus, the order of CIT(A) in allowing benefit of deduction is plainly contrary to the provisions of Income Tax Act. The CIT(A) ought not to have exercised his jurisdiction u/s. 154 of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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