TMI Blog2012 (9) TMI 1100X X X X Extracts X X X X X X X X Extracts X X X X ..... nits of Type-A flats; 90 units of Type-B & Type-C units were under construction, the Assessing Officer himself computed the built up area by including the stair case area, therefore, it exceeded the prescribed limit. Such factual finding recorded in the impugned order was not controverted by the Revenue by bringing any positive material on record. In view of these facts we are of the considered opinion that the assessee is clearly entitled for such deduction. Therefore, we find no justification to interfere with the conclusion drawn in the impugned order, which is affirmed. Apportionment of expenses in the ratio of turn over to different units - no part of the head office expenses pertaining to management were debited to Krishna Lok Unit - Held that:- There is a categorical finding that the assessee company has not taken any loan secured or unsecured for Krishna Lok and the ledger print out of the current account maintained with Oriental Bank of Commerce and Punjab National Bank were furnished during assessment proceedings which clearly indicates that the total receipt from Krishna Lok project sale is utilized for the purpose of meeting expenses of Krishna Lok and none of the lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Del/10, ITA No. 4694/Del/10 - - - Dated:- 26-9-2012 - SHRI JOGINDER SINGH: JUDICIAL MEMBER SHRI SHAMIM YAHYA: ACCOUNTANT MEMBER Assessee by : Shri Kapil Goel Adv. Revenue by : Shri R.B. Meena Sr. DR O R D E R PER JOGINDER SINGH, J.M:: The revenue is aggrieved by the impugned order dated 23rd March 2010 by the order of the ld. CIT(A), New Delhi for A.Y. 2006-07, whereas the assessee has challenged the impugned order dated 11-8-2010 passed by the ld. first appellate authority, New Delhi for A.Y. 2007-08. Since the facts and the issues are common, both these appeals were heard together. Therefore, these can be disposed off by a common order, more so when both the appeals pertain to the same assessee. 2. First we shall take up the appeal of the Revenue (A.Y. 2006-07), wherein first ground raised is that the ld. first appellate authority erred on facts and in law in allowing additional evidence filed during first appellate stage contravening rule 46A of the Rules. 2.1. The crux of arguments on behalf of the Revenue is that opportunity was not granted to the Assessing Officer to go through the additional evidence filed before the ld. CIT(A), the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of deduction claimed u/s 80-IB(10), allegedly ignoring the plan submitted by the assessee to the Mathura Varindavan authority and the total built up are of type A flat being more than 1500 sq. ft. The assertion of the ld. Sr. DR Shri R.B. Meena is identical to the ground raised by submitting that the built up area of type A flat is more than 1500 sq. ft., therefore, the assessee is not entitled to deduction. 3.1. On the other hand, the learned counsel for the assessee took us to various pages of the paper book, including sanction plan approved by Competent Authority by further submitting that the common area to the tune of 8.172 sq. mts. Which pertains to stair case is not part of the built up area of the flat as the same is used by all the residents, being the common area, and if this area is reduced from the total area it comes below the prescribed limit of 1500 sq. ft. 3.2. We have considered the rival submissions and perused the material available on record. We have also perused the sanction plan and area of each unit like bed rooms, toilet, kitchen, drawing room, balcony, power room and store etc. We find that if the total area as per approved plan is examined, it c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 60,58,419/- made on account of apportionment of expenses in the ratio of turn over to different units. The crux of the arguments on behalf of the Revenue is that no part of the head office expenses pertaining to management were debited to Krishna Lok Unit. In nut shell the assessment order was defended on the issue. 4.1. On the other hand, the learned counsel for the assessee took us to various pages of the paper book by submitting that the expenses were booked separately in the books of account, which are audited one. Our attention was also invited to page 36 wherein break up of the expenses has been given. A query was raised by the Bench whether such break up was submitted before the Assessing Officer. It was uncontrovertedly explained that this break up was very much available before the Assessing Officer . 4.2. We have perused page 36 which is part of the synopsis as per which (Schedule J ), the administrative and other expenses pertains to head office. Krishna Lok a/c and remaining has been duly explained. Whereas in Schedule K the selling expenses, which include advertisement and publicity; sales promotion booking; and selling expenses have been bifurcated, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uter peripherals which as per the assessee are depreciable @ 60%, which was denied by the Assessing Officer . We find that the ld. CIT(A) considered the issue in a justified manner and deleted the addition of ₹ 7425/-. We find no justification to interfere with the same as nothing contrary was brought to our notice. 6. Ground no. 5 is general in nature and requires no deliberation from our side. 7. Finally, the appeal of the revenue is partly allowed. 8. Now we shall take up the appeal of the assessee (ITA no. 4694/Del/10 for A.Y. 2007-08). Though the assessee has raised as many as seven grounds of appeal, but if all the grounds are summarized, the only ground remains which pertains to the disallowance of deduction u/s 80-IB(10). Learned counsel for the assessee also fairly explained that the issue pertains to only 80-IB (10) and the remaining grounds are only argumentative. 8.1. The crux of argument on behalf of the assessee is that the vide letter dated 5-11-2008 the assessee had applied for completion certificate but the completion certificate was not issued to the assessee which is beyond the control and power of the assessee. Our attention was also invited to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aimed by the assessee and the assessee violated the conditions stipulated u/s 80-IB(10) in Type A flats. Ultimately, the ld. Assessing Officer denied such deduction to the assessee. The assessee filed various documents before the Assessing Officer and the same were examined by her. Finally the ld. Assessing Officer concluded that the conditions laid down u/s 80-IB(10) were not satisfied, therefore, the claim of deduction could not be allowed to the assessee. 8.5. On appeal before the ld. CIT(A) the claim of the assessee was examined and ultimately the assessment order was upheld. The aggrieved assessee is in appeal before this Tribunal. 8.6. If the totality of facts available on record and the assertion made by the ld. respective counsels are kept in juxtaposition, broadly the ld. CIT(A) is influenced by the sale transactions with Rajasthan Global Securities Ltd., wherein pursuant to summons u/s 131 issued to Rajasthan Global Securities Ltd., it was confirmed that the amount of ₹ 5,36,89,920/- was paid to the assessee as advance for purchase of 37 flats in Krishnalok project. However, what it may the moot issue to be adjudicated by us pertains to sec. 80- IB(10). We fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning profits in 80-IB project as well as non 80-IB projects. 8.7. If the aforesaid is analyzed, we find that the grievance of the revenue is that the sales made to M/s Rajasthan Global Securities Ltd. are not properly accounted for and undue profit has arisen on account of sec. 80-IB, whereas the claim of the assessee is that it is a normal business transaction and the assessee has no mutual relation what-so-ever with M/s Rajasthan Global Securities Ltd. So far as the built up area is concerned, as has been alleged by the revenue that it is beyond the prescribed limit of 1500 sq. ft., we have perused the sanction plan, submissions before the Assessing Officer as well as before the ld. CIT(A) and the break up dimensions adduced by the assessee. Such break up even has been reproduced at pages 7 8 of the impugned order, as per which the total area has been claimed by the assessee at 1492.43 sq. ft. 8.8. Another point mentioned in the assessment order for denying deduction by the Assessing Officer is that the assessee did not file the bifurcation. However, we find that such bifurcation was duly filed by the assessee that too room-wise of all the units. Still the deduction was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es whether the project was completed by the assessee within time. As is evident from the letter of the assessee dated 5-11-2008 addressed to the Vice Chairman Mathura Vrindavan Development Authority, on which the seal and signature of the concerned authority is affixed (page 28 of the paper book), it has been specifically requested that the construction has been completed and further request has been made for grant of completion certificate of Phase-I, meaning thereby, if not earlier, the project was presumed to be complete as on 5-11-2008 because the concerned development authority has neither said that the project was not complete nor completion certificate was issued to the assessee. In the absence of any variation or allegation if such certificate is not issued to the assessee, whether the assessee can be penalized for the act of an authority on which it has no control, the obvious reply is that for the fault of others anybody should not be penalized, more specifically when the project was approved on 16-3-2005. Therefore, the law applicable as on date will be applicable to the assessee. It is not expected that the assessee will demolish the construction work which is already i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endra Developers etc. (ITA nos. 2743 to 2745 ITA nos. 3056 to 3058/Del/2010) vide order dated 1-8-2012, held that wherein the assessee applied for completion certificate before the lower authorities in time and such certificate was not issued by the local authority, such non-issuance was beyond the control of the assessee. While coming to this conclusion the Bench also considered another case of M/s Girija Colonizers (ITA nos. 2417 to 2422/Del/11 order dated 9-12-2011). 8.14. The ld. Sr. D.R. also placed reliance upon the decision of the Tribunal of Chennai Bench in ACIT Vs. Viswas Promoters P. Ltd. (2010) 005 ITR (Trib) 0449 on the issue of built up area not exceeding 1500 sq. ft. It was held that if this condition is not fulfilled, the assessee is not eligible for deduction. However, we find that in the present appeal, the built up area is below the prescribed limit of 1500 sq. ft. Therefore, this decision may not help the revenue being distinguishable on facts. 8.15. If this issue is analyzed with the view point of rule of consistency, we are of the considered opinion that though the principle of res-judicata is not applicable to the income-tax proceedings, yet for the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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