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2021 (12) TMI 133 - AT - Income TaxValidity of Assessment u/s 153A - denying deduction u/s 80IB(10) - whether no incriminating material were found during the course of search? - HELD THAT:- We find that in the case of assessee, assessment years 2008-09 to 2012-13 comes under the category of non-abated/completed assessment and the additions made by the ld. AO towards denying the benefit of deduction u/s 80IB(10) of the Act as well as taxing Long Term Capital Gain on sale of land as business income are not supported by any incriminating material found during the course of search and therefore, assessee succeeds on this legal ground and the addition made for A.Y. 2008-09 to A.Y. 2012-13 are deleted and deduction u/s 80IB(10) of the Act claimed by the assessee is accepted. Deduction u/s 80IB - AO denied the claim observing that the assessee worked in the capacity as contractor and not a developer as the assessee used to sale of vacant plot through a registered deed and thereafter construct the house and thus did not comply to the provision of section 80IB(10) - HELD THAT:- As in the given facts and circumstances of the case and respectfully following the judgments referred hereinabove and the decision of this Tribunal in assessee’s own case for A.Y. 2009- 10 [2018 (9) TMI 2064 - ITAT INDORE] and in absence of any contrary binding decisions placed before us by the Revenue, are of the considered view that the assessee has rightly claimed deduction u/s 80IB(10) of the Act for A.Y. 2008-09 to 2014-15 and the same needs to be allowed as claimed in the return of income. Thus the finding of Ld. CIT(A) is set aside and grounds raised on merit pertaining to claim of deduction u/s 80IB(10) of the Act for A.Y. 2008-09 to 2014-15 are allowed. Correct head of Income - gain from sale of land - LTCG or business income - HELD THAT:- We find that assessee has not shown these plots of land as stock-in-trade in the profit and loss account. As it is judicial settled that the accounting treatment is in the books of accounts regularly maintained by the assessee is one of the main indicator of intent of the assessee and the nature of the outlay. The land in question on which assessee has shown Long Term Capital Gain pursuant to their sale, have been shown in the balance sheet as an asset and never shown them as part of stock-in-trade. The cost of the said land is shown as an investment in fixed asset in the balance sheet of the assessee since the year ended March 2007 till the year ended when these were sold. The copies of the balance sheet and profit and loss account for the relevant period showing that the land in questions has not been shown as stock-in-trade but as an assets directly in the balance sheet stands failed before both the lower authorities and before us. Thus the alleged gain from sale of land shown as assets in the balance sheet has been rightly shown as long term capital gain and it cannot be taxed as business income. Addition on account of profit from unsold units - CIT-A deleted the addition - HELD THAT:- As the assessee has itself shown the profit on unsold unit and has credited the profit and loss account. Even otherwise since the unit is eligible for deduction u/s 80IB(10) of the Act as held by us in the preceding paras, there remains no justification on the part of the Ld.AO to assume the sale price and make addition for unsold units. Thus, we find no merit in the ground no.2 raised by the revenue.
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