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TMI Blog2013 (5) TMI 845X X X X Extracts X X X X X X X X Extracts X X X X ..... ved loan by way of crossed cheque/demand draft as prescribed u/s 269SS and thereby deleting the penalty of Rs. 2,87,000/- levied u/s 271D of the Act. 3. The brief facts of the case are that the Assessing Officer found that the assessee-company had availed deposits in cash in excess of Rs. 20,000/- from the following persons in contravention of provisions of section 269SS and levied penalty u/s 271D of the Act: Shri K. Ponraj Rs. 40,000 Shri L. Srinivasan Rs. 97,000 Smt. P. Latha Rs. 25,000 Smt. Janaki Rs. 1,25,000 Shri J. Sriram Rs. 28,000 4. On appeal, the ld. CIT(A) deleted the levy of penalty u/s 271D of Rs. 2,87,000/- by observing that the deposits of Rs. 40,000/- from shri K. Ponraj, Rs. 97,000/- from Shri L. Srinivasan, Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r through journal entries from M/s Well Shine Investment and Finance Services Ltd, one of the group companies of the assessee. The Assessing Officer held that as the deposits exceeding Rs. 20,000/- were received by the assessee otherwise than by a crossed cheque or crossed demand draft, it was in violation of section 269SS of the Act and levied penalty of Rs. 3,15,000/- u/s 271D of the Act. 7. On appeal, the ld. CIT(A) deleted the penalty to the extent of Rs. 2,87,000/- on the ground that the deposits from the four persons totaling to Rs. 2,87,000/- were received by way of transfer through journal entries by the assessee-company and that there was no direct acceptance of cash from the said persons by the assessee-company. Hence, there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at such transfer should be made through prescribed bank instruments. When the terms are particular about the movements of funds from one person to another, the section would operate only if the loans or deposits are accepted or loans or deposits are repaid de facto by transmission of funds, in praesenti. 18. This view has been expressed in a series of Tribunal decisions referred to by the Commissioner of Incometax( Appeals) in his orders. The Agra Bench of the Tribunal in the case of ITO vs. Amar Nath Shivraj(HUF), the Pune Bench of the Tribunal in the case of Sunflower Builders(P) Ltd. vs. DCIT, the Chennai Bench-C of the Tribunal in the case of M/s.Phoenix Entertainment Pvt. Ltd. have held that sections 269SS and 269T apply only in cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue are dismissed. 10. In assessment year 2006-07, the sole issue involved in the appeal of the Revenue is that the ld. CIT(A) erred in allowing deduction u/s 80IB(10) of the Act to the assessee even though the housing project did not satisfy the condition which mandates that each residential unit should not exceed built-up area of 1500 sq ft. 11. The brief facts of the case are that the assessee-company, during the year under consideration, constructed 52,099 sq ft of built- up area out of which deduction u/s 80IB(10) was claimed on the built- up area of 18,129 sq ft. The assessee-company had shown net profit of Rs. 48,34,827/- for the assessment year under consideration for the total built-up area of 52,099 sq ft. The assessee claimed d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sq ft. The assessee's net profit was of Rs. 48,54,827/- on the total built-up area of 52,099 sq ft. The assessee claimed deduction u/s 80IB(10) which is only on the built-up area of 18,129 sq ft which comprised of apartments below 1500 sq ft and thereby made a proportionate claim for deduction u/s 80IB(10) of Rs. 16,82,411/-. The Assessing Officer denied the claim of deduction to the assessee observing that section 80IB(10) does not consider proportionate disallowance. 17. On appeal, the ld. CIT(A), following the decision of the Hon'ble Calcutta High Court in the case of Bengal Ambuja Housing Development Ltd. (supra) allowed the claim of the assessee. 18. The ld. DR very fairly conceded that the issue is now covered in favour of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sk factors, as projected by the assessee accepted by the Tribunal, needs to be seen. Under Clause 4 of the agreement, the assessee was to collect a sum of ₹ 600/- per sq.ft. on super built-up area for the sale of undivided share of land transferred to the buyer. The said clause also fixes the ceiling as to the consideration, which would be paid to the owner, namely, at ₹ 11,51,94,000/-. The clause in the agreement further pointed out that the builder has to enter into a builder agreement with the proposed purchaser and it is open to the builder to fix such rate per square foot for construction of the area as it deems fit, over which the owner has no claim at all. The builder has to pay the specified cost of the land on the undiv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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