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2017 (6) TMI 516 - AT - Income TaxEligibility for exemption u/s. 54EC - part payment receipt - Held that:- The period of six months for making deposit u/s. 54EC of the Act should be reckoned from the dates of actual receipt of the consideration, because in the present case the assessee has received part payment after six months at the time of registration of sale deed or even after that in few of instances. If the period is reckoned from the date of agreement and receipt of part payment at the first instance, then it would lead to an impossible situation by asking assessee to invest money in specified asset before actual receipt of the same. Admittedly assessee received part payments after execution of agreement to sale and handing over of possession thereby completing the transaction in terms of section 53A of Transfer of Property Act but invested in specified bonds i.e. NABARD bonds within one month of the receipt of sale consideration being part payment. Hence, we are of the considered view that the assessee is eligible for exemption u/s. 54EC of the Act on part payment received after completion of transaction on 02.07.2004. Penalty under section 271(1)(c) - sale of plot of land chargeable to tax under the head of capital gains or under the head of business income - Held that:- The issue in respect of the items of sale of land (development rights) to M/s Saytam Builders & sale of land (development rights) of M/s Brahma builders and an amount received as compensation from M/s Wagmare i.e. the surplus of ₹ 49,03,620/- is covered in favour of assessee by Hon’ble Bombay High Court decision in assessee’s own case for 2004-05. Respectfully following the same, we confirm the order CIT(A) deleting the penalty. In respect to the business expenses disallowance we are of the view that mere on confirmation of disallowance of expenses and that also on estimate basis, the penalty for concealment of income u/s 271(1)(c) of the Act cannot be levied and hence, we confirm the order of CIT(A) deleting the penalty. This appeal of revenue is dismissed. Revision u/s 263 - sale of land as business income as against the assessee’s claim accepted by AO as income chargeable as capital gains - Held that:- Admitted facts are that in this year the AO has discussed the facts while framing the assessment under section 143(3) and finally assessed the income arising out of the sale of plot of land by entering into development agreement with Kubix Realities Pvt. Ltd. on 27-04-2006 as long term capital gain. Similarly, in assessee’s own case sale of plot of land was assessed as business income. But, Tribunal finally held that the same should be assessed as long term capital gain for AY 2004-05. However, in AY 2005-06, the Tribunal took a different view in assessee’s own case and held that the profit on sale of plot of land is to be assessee as business income. It means there are two view possible and once there are two views possible, the revision under section 263 of the Act is not possible Entitlement for deduction under section 80IB (10) - assessee had sanctioned lay out plan of eight buildings. But finally obtain completion certificate in respect to seven buildings - Held that:- As in the case of CIT vs. Vandana Properties Section 80IB(10) [2012 (4) TMI 54 - BOMBAY HIGH COURT] held that the deduction is held to be allowable where a new housing project is constructed on a plot of land having minimum area of 1 acre but with existing housing project and entitlement to construction and additional building E on the plot of land. Hon’ble Bombay High Court allowed the claim of the assessee. We are of the view that the facts in the present case are similar and hence, respectfully following the same we allow the claim of the assessee.
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