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TMI Blog2024 (7) TMI 1181X X X X Extracts X X X X X X X X Extracts X X X X ..... as on the facts of the case by confirming the disallowance of claimed 50% deduction u/s 80IB-(7A) with reference to the interest income of Rs. 24,970/- on bank FDR and with reference to the income on sale of shop in the shopping complex developed and maintained by the appellant, ignoring the fact that the income of interest from FDR and profit on sale of shopping area, were part & parcel of business income derived from construction and maintenance of a multiplex in terms of section 80IB-(7A) of the Income Tax Act, 1961. 2. That without prejudice to above, the Id. CIT(A) has erred in law by ignoring the fact that 80IB-(7A) deduction with reference to the interest income and income from sale of shops was allowed to the appellant in the imm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me derived from multiplex theatre eligible for deduction claimed under section 80IB (7A) of the Act and to disallow the deduction claimed under section 80IB(7A) of the Act on interest income and income on sale of the shop. Consequent to the order passed under section 263 of the Act, the assessment disallowing the deduction of Rs. 4,62,485/- under section 80IB(7A) of the Act on interest income and income on sale of the shop was completed under section 263/154/143(3) of the Act on 18.03.2014. 3.2 On appeal directed against the order dated 18.04.2014 passed under section 263/154/143(3) of the Act, the Ld. CIT(A) dismissed the appeal stating that he was not competent to decide the case which had already been decided by the CIT being co-terminu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Only the disallowance of deduction, under section 80IB(7A) of the Act, relatable to income earned on sale of the shop has been challenged before the Tribunal. 4. The Ld. Authorised Representative (In short, the 'AR') submitted that the shop which sold out was part of the Multiplex Complex and a business apparatus to earn income; hence, the sale of the same was nothing but the business income and thus, the claim of deduction under section 80IB(7A) of the Act was valid. Further, it was contended that the appellant/assessee's claim of fulfilling all the terms & conditions to claim deduction under section 80IB(7A) of the Act was not disputed by the Revenue. It was argued that there was no restriction/bar/prohibition on such claim of deduction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the source of profit, in the present case was sale of the shop being part of the multiplex complex. Hence, the income derived from such sale was business income from multiplex complex and not incidental to the business. 4.1 The Ld. AR also emphasised that similar disallowance of deduction under section 80IB(7A) of the Act was not done in past though the appellant/assessee had sold shops in the past also. Hence, in view of the rule of consistency, the deduction under section 80IB(7A) of the Act in the relevant year should also be allowed as it was done in AY 2007-08 in the scrutiny assessment. In support of this contention, the Ld. AR placed reliance on the decision of the Hon'ble Supreme Court in the case of Radhasoami Satsang, 193 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the business of building, owning and operating a multiplex theatre, for a period of five consecutive years beginning from the initial assessment year in any place: Provided that nothing contained in this clause shall apply to a multiplex theatre located at a place within the municipal jurisdiction (whether known as a municipality, municipal corporation, notified area committee or a cantonment board or by any other name) of Chennai, Delhi, Mumbai or Kolkata; (b) the deduction under clause (a) shall be allowable only if- (i) such multiplex theatre is constructed at any time during the period beginning on the 1st day of April, 2002 and ending on the 31st day of March, 2005; (ii) the business of the multiplex theatre is not formed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lex theatre by the appellant/assessee at the time of accrual/receivable of income on sale/transfer of the shop. Further, we do not find any merit in the contention of the Ld. AR that the similar disallowance of deduction under section 80IB(7A) of the Act has not been made in AY 2007-08 in scrutiny assessment because the appellant/assessee has shown income on sale/transfer of the shop under the head "Capital Gains" in AY 2007-08. Hence, there is no precedent of consistency of assessing the income accrued/received on sale/transfer of the shop under the head "Business income". Therefore, the case law relied upon in this regard by the Ld. AR is of no relevance. The decision of the Hon'ble Supreme Court in the case of Saraf Exports (supra) relie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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