TMI Blog2012 (11) TMI 933X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant by : Shri C.G.K. Nair Respondent by : Shri Vijay C. Kothari ORDER PER D.K.AGARWAL (JM) This appeal preferred by the Revenue is directed against the order dated 10.6.2010 passed by the ld. CIT(A) for the assessment year 2007-08. 2. Briefly stated facts of the case are that the assessee firm is engaged as a Builder and Developer and is in the business of construction. It fi led return declaring total income at Rs. Nil after claiming deduction u/s 80IB (10) of the Income Tax Act, 1961 (in short the Act). During the course of assessment proceedings, the AO on going through the computation of total income observed that profit of the project as per Profit and Loss Account is Rs.51,34,648/- and to this the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ratio of the decision in Plastiblends India Limited V/s ACIT (2009) 318 ITR 352 (Bom) (FB) observed that genuineness of all the expenditures have not been doubted by the AO and the appellant derived income from an undertaking developing and building housing project, therefore even after disallowance of expenditure on account of non-deduction of TDS and non-deposit of TDS consequential increase in profit cannot be presumed to be non-profit from housing project and accordingly while distinguishing the decision in the case of Liberty India (supra) held that the appellant is eligible for deduction u/s 80IB(10) of the Act on enhanced profit by disallowing the expenditure of Rs.95,17,020/- with a direction to AO to consider the claim of deduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order passed by the AO be restored. 6. On the other hand, the ld. Counsel for the assessee, at the outset, submits that the issue is squarely covered in favour of the assessee by the order of the Tribunal in the case of (a) ACIT V/s Sri Lakshmi Builders and vice-versa in ITA No.244/Vizag/2008 and in ITA No.323/Vizag/2010 (AY:2005-06) dated 22.11.2010, (b) S.B.Builders Developers V/s ITO in ITA No.1245/Mum/2009 (AY- 2006-07) dated 14.5.2010 and (c) ITO V/s M/s Shri Ganesh Developers and Builders in ITA No.4328/Del/2009 (AY:2006-07) dated 11.3.2011. He further submits that the decisions relied on by the ld. DR in Millenium Writing Products (P.) Ltd.(supra), the Tribunal has remitted the matter back to the AO and the other decisions in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting to Ra.4,50,12,485/-the assessee had not deducted tax in time though it was required to do so and therefore they cannot be allowed as deduction as stipulated under section 40(a)(ia). Therefore, while computing the income from the business, he disallowed and added back the aforesaid amount to the net profit in the Profit and Loss Account and arrived at gross total income of Rs.8,26,90,888/-. However, while allowing the deduction u/s 80IB(10), he allowed deduction only of Rs.3,76,78,403/- and arrived at a total income of Rs.4,50,12,485/- on which the tax was charged. On appeal, the ld. CIT(A) upheld the action of the AO. On further appeal, the Tribunal after considering the relevant provisions of Act and various decisions including the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and held in paragraph 7(b) of the order as under : 7(b) In respect of disallowance of contract payments under section 194C of the Act, reason being the TDS deducted is not deposited before the expiry of time prescribed under section 200(1) of the Act, thereby, Assessing Officer disallowed by invoking provisions of section 40(a)(ia) of the Act. We find that these contract payments are part of Profit and Loss Account and expenditure is disallowed by Assessing Officer in the absence of non-deposit of TDS within the due date. First of all, it is to be mentioned that neither the Assessing Officer nor CIT(A) has discussed why this item is not eligible for deduction under section 80IB or why it is eligible. But seeing dates of payments of TDS, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
