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2021 (7) TMI 104 - AT - Income TaxDenial of deduction u/s 80IB(10) on certain on-money received by the assessee which was also declared as income - HELD THAT:- The assessee received a sum as `on-money’ which was not declared in the books of account but offered as additional income during the course of survey in respect of its otherwise eligible housing project. The said money was duly accounted for in the total income at the time of filing of the return - when the issue of allowing the deduction cropped up, the AO came to hold that the said amount could not be considered as `business income’ as the buyers denied having given such on-money. We are at loss to comprehend as to how the sum admittedly received as on-money on the booking of flats, can be construed as not arising from the same source when the question of granting deduction u/s 80IB(10) thereon surfaced. The doctrine of approbate and reprobate does not allow the Department to blow hot and cold in the same breath, thereby accepting one consequence arising from the statement of the assessee while rejecting the other one. When the assessee made a surrender with the clear backdrop of having received 'on money’ and the Revenue accepted the same while including it in the total income, it cannot later on claim that no deduction u/s 80IB(10) can be granted on the same as the assessee failed to prove that the flat bookers gave such on-money. If we accept the view point of the Revenue that source of the income is unexplained and does not pertain to the housing project, then, in the given facts, when there is no positive material other than the assessee’s statement of receiving such an amount as 'on money’, then there is no income in the first instance calling for its inclusion in the total income. Once it is agreed to be 'on-money’ from the flats-bookings at the time of its inclusion in the total income, a fortiori, such an income, being from sale of flats albeit received as on-money, qualifies for the deduction as well. We, therefore, overturn the impugned order on this score and order to allow deduction u/s 80IB(10) on such amount. - Decided in favour of assessee.
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