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TMI Blog2023 (9) TMI 589X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Respondent : Ms. Anne Varghese ORDER PER S. RIFAUR RAHMAN (AM) 1. These appeals are filed by the assessee against different orders of Learned Commissioner of Income Tax (Appeals)-17, Mumbai [hereinafter in short Ld.CIT(A) ] dated 26.05.2017 for the A.Ys. 2012-13 and 2013-14. 2. At the outset, we observe that the present appeals are filed by the assessee with a delay of 117 days and assessee also filed an affidavit in this regard and prayed for condonation of delay. Assessee filed an affidavit dated 21.02.2018 and submitted as under: - 2) That I am working as a Junior Accountant in the Accounts Department of M/s. Om Swami Smaran Developers Private Limited. Whereas, Mr. Nilesh Mehta is my senior and he is designated as a Senior Accountant. 3) That in case of M/s. Om Swami Smaran Developers Private Limited, we have received an assessment order dated March 27, 2015 for Assessment Year 2012-13 issued under Section 143(3) of the Income Tax Act, 1961 ( the Act'). 4) That as per the said the assessment order, we have found that the Company's Returned Income have been enhanced by Rs.1,41,42,520 and a consequential demand of Rs. 25,67,730 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TA. No. 288/Coch/2017 the Coordinate Bench of the Tribunal has considered the issue of condonation of delay and by following various judicial precedents along with the decision of the Hon'ble Supreme Court in the case of Collector, Land Acquisiont v. Mst Katiji and ors. (167 ITR 471) condoned the delay of 2819 days observing as under: - 6. We have heard the rival submissions and perused the record. There was a delay of 2819 days in filing the appeal before the Tribunal. The assessee has stated the reasons in the condonation petition accompanied by an affidavit which has been cited in the earlier para. The assessee filed an affidavit explaining the reasons and prayed for condonation of delay. The reason stated by the assessee is due to inadvertent omission on the part of Shri Unnikrishnan Nair N, CA in taking appropriate action to file the appeal. He had a mistaken belief that the appeal for this year was filed by the assessee as there was separate Counsel to take steps to file this appeal before the ITAT. Therefore, we have to consider whether the Counsel s failure is sufficient cause for condoning the delay. The Madras High Court considered an identical issue in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right for injustice being done because of non deliberate delay. In the case on our hand, the issue on merit regarding allowability of deduction u/s. 80IB of the Act was covered in favour of the assessee by the binding Judgment of the jurisdictional High Court. Moreover, no counter-affidavit was filed by the Revenue denying the allegation made by the assessee. It is not the case of the Revenue that the appeal was not filed deliberately. Therefore, we have to prefer substantial justice rather than technicality in deciding the issue. As observed by Apex Court, if the application of the assessee for condoning the delay is rejected, it would amount to legalise injustice on technical ground when the Tribunal is capable of removing injustice and to do justice. Therefore, this Tribunal is bound to remove the injustice by condoning the delay on technicalities. If the delay is not condoned, it would amount to legalising an illegal order which would result in unjust enrichment on the part of the State by retaining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of the assessee by the Judgment of the jurisdictional High Court. Therefore, for the purpose of advancing substantial justice which is of prime importance in the administration of justice, the expression sufficient cause should receive a liberal construction. In our opinion, this Judgment of the jurisdictional High Court is also squarely applicable to the facts of this case. A similar view was taken by the Madras High Court in the case of Venkatadri Traders Ltd. v. CIT (2001) 168 CTR (Mad) 81: (2001) 118 Taxman 622 (Mad). 6.5 The Mumbai Bench of this Tribunal in the case of Bajaj Hindusthan Ltd. v. Jt. CIT (AT) (277 ITR 1) has condoned the delay of 180 days when the appeal was filed after the pronouncement of the Judgment of the Apex Court. Furthermore, the Revenue has not filed any counter-affidavit opposing the application of the assessee for condonation of delay. The Apex Court in the case of Mrs. Sandhya Rani Sarkar vs. Smt. Sudha Rani Debi (AIR 1978 SC 537) held that non-filing of affidavit in opposition to an application for condonation of delay may be a sufficient cause for condonation of delay. In this case, the Revenue has not filed any counter-affidavit op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal income of ₹. NIL under normal provisions and u/s. 115JB of the Act at ₹. 1,61,46,576/-. The return was processed u/s. 143(1) of the Act. The case was selected for scrutiny under CASS and notices u/s. 143(2) and 142(1) of Income-tax Act, 1961 (in short Act ) were issued and served on the assessee. In response Authorised Representative of the assessee attended and submitted the relevant information as called for. 8. Assessee is engaged in the business of construction and development. The assessee has developed slum project at vile Parle known as Ajinkya Durga. The assessee is following mercantile system of accounting and recognizes the revenue on percentage completion method. The Assessing Officer observed that during the year assessee has declared sales at ₹. 2,17,00,000/- and after debiting expenses net profit of ₹. 1,37,00,520/-. Assessing Officer observed in revised computation of total income that assessee has claimed deduction u/s. 80IB(10) of the Act amounting to ₹. 1,65,88,576/- in respect of the profit earned from SRA project undertaken during the current year. He observed that as per Form no. 10CCB the project was commenced on 18.12.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above observation Assessing Officer finally observed in his order that assessee has allotted three flats to Mr. Dwarkanath Tewari and therefore the same is against the provisions of clause (f) of section 80IB(10) of the Act. Since the conditions prescribed u/s. 80IB(10) of the Act have not been fulfilled by the assessee, its claim for deduction under the above said section is hereby rejected for this year also similar to the previous assessment year. Further, he observed that from the fact of filing revised return of income for the A.Y. 2012-13 also, it is clear that assessee in principle agreed that it has violated the conditions for claim of deduction u/s. 80IB(10) of the Act. Further, he observed on request to allow deduction u/s. 80IB(10) of the Act on pro-rata basis is also not acceptable as the Income-tax Act does not allow such deduction on pro-rata basis and hence the same is rejected. Accordingly, he disallowed he claim made by the assessee u/s. 80IB(10) of the Act. 10. Aggrieved assessee preferred an appeal before the Ld.CIT(A) and filed disallowance as under: - The Appellant respectfully submits that even though more than one flat have been sold to particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal filed by the assessee. 12. Aggrieved assessee is in appeal before us raising following grounds in its appeal: - Ground- 1: Deduction under Section 80IB(10) of the Act not allowed On the facts and in the circumstances of the case, the Learned CIT(A) has legally erred in confirming the order passed by the Learned AO not allowing the deduction under Section 80IB(10) of the Act. It is prayed that the Learned AO be directed to allow the deduction under Section 80IB(10) of the Act. The Appellant craves leave to add, alter, amend or withdraw all or any of the Grounds of Appeal herein and to submit such statements, documents and papers as may be considered necessary either at or before the appeal hearing. 13. At the time of hearing, Ld. AR of the assessee submitted that the issue under consideration is the claim of deduction u/s. 80IB(10) of the Act and this being the second year of claim, he submitted that assessee has taken up the project of slum rehabilitation project and accordingly, assessee has claimed the deduction u/s. 80IB(10) of the Act. However, he agreed that three flats were allotted to one person and it is violation of the guidelines and as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation by the Departmental Authorities that any other conditions of section 80IB(10) of the Act in respect of any other flats of the housing project are violated. Thus, the issue before us is whether for violation of the conditions of clause (f) of section 80IB(10) of the Act in respect of two flats, assessee s claim of deduction in respect of entire housing project can be disallowed. In our view, reading the provisions of section 80IB(10) as a whole and the legislative intent / object behind introducing such provision into the statute would reveal that it is a beneficial provision introduced by the legislature to deal with the housing problem. Thus, such provision has to be construed liberally. Undisputedly, except violation of conditions of clause (f) of section 80IB(10) of the Act in respect of two flats, all other conditions of section 80IB(10) of the Act are fulfilled in respect of the housing project which is evident from the fact that there is no other allegation made by the Assessing Officer. Therefore, in our view, for violation of conditions of clause (f) of section 80IB(10) of the Act in respect of two flats, the deduction for the entire housing project or in respect of o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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