Subscription   Feedback   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Forum Articles Highlights TMI Notes SMS News Newsletters Calendar Imp. Links Database More...
Extracts
Home List
← Previous Next →

M/s. Shree Krishna Developers Versus I.T.O., Ward-36 (2) , Kolkata

Revision u/s 263 - Deduction u/s 80IB(10) to be disallowed - Held that:- Cl. (d) of s. 80-IB(10) inserted w.e.f. 1st April, 2005 which provides that deduction under s. 80-IB(10) would be allowable where the commercial user does not exceed five per cent of the aggregate built-up area of the housing project or two thousand square feet, whichever is less. In the absence of any restriction under the Act, it was not open to the Tribunal to hold that the projects approved by the local authorities havi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e period prior to 1st April, 2005. In the present case, the plan for construction of the Housing Project at 1/1, R.R.L.Mitra Road, Kolkata 700085 was sanctioned by the Kolkata Municipal Corporation 09.12.1999, i.e., prior to 1-4-2005. In view of the aforesaid decision on the point, we do not find that any useful purpose will be served by examining this issue again by the AO, as admittedly the plan sanction in the case of the Assessee was prior to the statutory amendment.

In the given .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rcial area in the project exceeded to statutory limits laid down in Sec.80IB(10)(d) of the Act. We, therefore, quash the order u/s 263 of the Act and allow the appeal of the assessee. - ITA No.807/Kol/2012 - Dated:- 15-1-2016 - Shri N.V.Vasudevan, JM & Shri Waseem Ahmed, AM For The Appellant : Shri D.S.Damle, FCA For The Respondent : Shri Sandeep Chaube, CIT(DR) ORDER Per Shri N.V.Vasudevan, JM This is an appeal by the assessee directed against the order dated 23.03.2012 of CIT-XII, Kolkata .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Act : a) Copy of the floor wise Sanctioned Plan made by the CMC (dated 09.02.1999) a) Details and Certificate regarding date of completion of the project obtained from CMC. c) Details regarding the name and address of the Flat Purchaser, with area of flat, and consideration received from them. d) Details of changes made in promoter and Developer since inception of Project Construction. 3. On 29.09.2009 the Assessee filed details of flat sold with name of the purchaser. Flat No., Built-up area o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

11.2009, in which the AO pointed out as follows:- 1. During the course of hearing you had been requested. vide note sheet dated f01.09.2009, 29.09.2009 and 27.10.2009 to produce the following details:- a) Copy of floor wise & flat wise plan sanctioned by Calcutta Municipal Corporation (CMC). b) Details of changes made in promoters & Developers since very inception of the housing project. c. Details of reconstruction of existing Business, if any. The above details have not been produced b .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

-05. As per 1. T Act, the plan sanctioned during the F.Y. 1999-2000, requires that the construction of the project should be completed within four years from the end of the Financial Year it which the plan. has been sanctioned i.e. on or before 31.03.2004 and completion order of the construction to be obtained from the plan sanctioning authority for the purpose of claiming deduction u/s 80IB(10). As per 1. T. Act, the date of completion certificate issued by the plan sanctioning authority is to .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tted by you, reveals that the total area of some of the flats were more than '1500 S. ft. and shown the same as "Super B area. During the course of hearing, you were requested to submit the copy of detailed floor wise plan sanctioned, in order to verify the area of flats constructed in each floor, but for reasons best known to you, you have failed to submit the same for verification and hence failed to substantiate that the area of flats sold were not violating' the prescribed ' .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ction of Calcutta Municipal Corporation) on the basis of a sanctioned plan of CMC dated 09.12.1999. From the records of earlier years, it further appears that the plot of land was originally owned by one "Shree Shree Iswar Brojeswar Mahadev Thakur Jew Trust as Debottar Estate" and in May, 1995 by virtue of an order of the Hon ble High Court, Kolkata the said property was leased out to 5 (five) persons who on their part nominated 10 (ten) persons as their nominees. On 30.10.1995, ten re .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

.1996 to develop the said premises for construction of multistoried building. By virtue of the said Joint Venture Agreements 4 (four) sale agreements were executed on 29.-6.1996 between the out going leases as "Vendor" and the intending purchasers. Afterwards, the remaining existing leases for better result executed a MOU between eight leases to construct the building and as per clauses of the MOU, the leases handed over the said plot of land in favor of Shree Krishna Developers (the a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ndition required to be satisfied. for availing deduction u/s 80-IB(10), as above was not satisfied, since the present A. 0. P. with 5 (five) members is the re-constituted AOP, debarring you the claim of deduction u/s 80-IB(10) amounting to ₹ 1,62,09,343/-, which has wrongly been claimed by you. d)From the records of earlier years. it is also seen that the original members of the A.O.P. have contributed their portions of lands for construction of the housing projects and the value of such l .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

m of land should not be disallowed. Considering the above facts and in the circumstances stated above, you are requested to show cause all to why your claim of 'deduction u/s 80IB(10) to the tune of ₹ 1,62,09,343/- and 'interest paid on members capital in the form of land' should not be disallowed for non satisfying the conditions laid down in the Act for allowing such deduction. 5. The AO did not allow the claim of the assessee for deduction u/s 80IB(10) of the Act for the rea .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

year in which original plan was sanctioned on 09.12.1999 relevant to financial year 1999-2000. For all the above reasons the AO denied the benefit of deduction u/s 80IB(10) of the Act to the assessee. 6. It is not in dispute before us that the assessee filed an appeal against the order of assessment by the AO and the CIT(A) vide his order dated 10.05.2010 held that the assessee fulfilled all the conditions for grant of deduction u/s 80IB (10) of the Act and therefore deduction claimed by the as .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of sec. 80IB(2) and hence ineligible for deduction u/s 80IB(10). (ii) The assessee AOP s business of development and construction had come existence well before 01-10-1998 and hence ineligible for deduction u/s 80IB(10). (iii) The assessee AOP has committed infringement of provisions of sec. 80IB(10)(c) of the I.T.Act, 1961 and hence ineligible for deduction u/s 80IB(10). (iv) The assessee AOP has committed infringement of provisions of sec.80IB(10)(d) of the I.T.Act, 1961 and hence ineligible f .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ssing Officer is required to act as an Investigator. Such an order is also prejudicial to the interest of the Revenue. 8. After hearing the submissions of the assessee the C.I.T. ultimately passed the impugned order in which he held as follows :- 5.1 There is no dispute that the A.O has not considered the above issue while verifying the claim of deduction under section 80IB of the Act. The Assessing Officer has been entrusted the role of an investigator, prosecutor as well as adjudicator under t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e Assessing Officer. Section 263 has therefore been enacted to empower the Commissioner to correct an erroneous order passed by the Assessing Officer which he considers to be prejudicial to the interest of the revenue. The provisions of section 263 would loose significance if they were to be interpreted in a manner that prevented the Commissioner from revising the erroneous order passed by the Assessing Officer, which was prejudicial to the interest of the revenue. In fact, such a course would b .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ssed on an incorrect assumption of facts or incorrect application of law or without applying the principles of natural justice or without application of mind or without making requisite inquiries will satisfy the requirement of the order being erroneous and prejudicial to the interest of the revenue within the meaning of section 263. 5.2 Considering above, the assessment order passed by the A.C. is set aside with a direction to the AO to verify that the above issue and pass a fresh order as per .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

l filed by the assessee against the order of AO dated 18.12.2009 passed u/s 143(3) of the Act. It was his submission that in view of clause (c) to Explanation - 1 to section 263(1) of the Act, the C.I.T. does not have jurisdiction to consider the matter which has already been considered and decided in an appeal by CIT(A). It was further submitted by him that though factually the issues considered in the proceedings u/s 263 of the Act were already considered by the AO while completing the assessm .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

arned DR however placed reliance on the order of C.I.T. 11. We have given a careful consideration to the rival submissions. It is clear from the order of AO dated 18.12.2009 u/s 143(3) of the Act and the show cause notice issued u/s 263 of the Act dated 30.01.2012 that the three out of the four issues set out in the show cause notice u/s 263 of the Act were considered by the AO while framing the assessment. It is not in dispute that the CIT(A) has given a decision on the aforesaid three issues i .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

dated 30.1.2012 u/s 263 of the Act is concerned, the same relates to the existence of build up area of more than 2000 sq.ft in the project completed by the assessee. On this issue we find that the assessee in reply to the show cause notice u/s 263 of the Act had specifically pointed out before CIT as follows :- d)Built-up area of Shops more than 2000 sq ft. In this regard we would like to put forward as under : 1. That your assessee has built and constructed the project as per the approved sanc .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ound this plea of the assessee to be false. Apart from the above we find that the existence of covered area in the housing project will not be applicable for housing projects, whose building plans had been sanctioned prior to the amendment to section 80IB(10)(d) of the Act. It has been so held by the Hon ble Bombay High Court in the Brahma Associates 333 ITR 289 (Bom). The Hon ble Bombay high Court held that on the date when the legislature introduced 100 per cent deduction under s. 80-IB(10), i .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e intended to allow deduction to all housing projects approved by a local authority with or without commercial user to the extent permitted under the DC Rules. Once the local authorities can approve a project to be a housing project with or without commercial user, then the project approved is eligible for deduction under s. 80-IB(10) irrespective of the fact that the project is approved as housing project or as residential plus commercial . Fact that prior to 1st April, 2005, deduction under s. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d) of s. 80-IB(10) inserted w.e.f. 1st April, 2005 which provides that deduction under s. 80-IB(10) would be allowable where the commercial user does not exceed five per cent of the aggregate built-up area of the housing project or two thousand square feet, whichever is less. In the absence of any restriction under the Act, it was not open to the Tribunal to hold that the projects approved by the local authorities having residential buildings with commercial user upto 10 per cent of the plot are .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

what is new what is new
  ↓     Latest Happenings     ↓  

Highlight: Notification regarding GST rate for branded cereal, pulses and flour

News: Notification regarding GST rate for branded cereal, pulses and flour

Highlight: Anti-dumping duty on import of bus/truck tyres from China

Highlight: Cabinet approves Extension of time period of the Scheme "Special Industry Initiative for J&K" (Sll J&K) - Udaan

Highlight: Non-payment of service tax - maintenance and repair charges - appellants had knowingly and deliberately shown the repair charges as job work charges to mislead about their taxability - demand confirmed.

Highlight: BAS - execution of the project of smart card for vehicle registration – implementing the SOC-VRC project - The fact that the Government has outsourced some part of the work and paid certain consideration for such outsourced work, does not make the activity subject to service tax.

Forum: Input tax credit

Forum: Cess paid instead of SGST

Forum: Excise duty credit on finished stock at additional place of business.

Circular: Amendments in Hand Book of Procedures 2015-20 –reg.

News: Cabinet approves Extension of time period of the Scheme "Special Industry Initiative for J&K" (Sll J&K) - Udaan

Highlight: Constitution of National Anti-profiteering Authority (NAA) under GST-reg. - Trade Notice

Highlight: Amendments in Hand Book of Procedures 2015-20 –reg. - Various amendments are made in Chapter-4 of Hand Book of Procedures 2015-2020.

Forum: GST rates on mobile recharge business

Circular: Constitution of National Anti-profiteering Authority (NAA) under GST-reg.

Forum: import purchase

Highlight: Sharing of expenses - BAS - promotion of business of group companies - sharing of expenditure for common facilities cannot be treated as service by one to another in such arrangement.

News: RBI Reference Rate for US $

Forum: 3B mistake

Article: Credit of unsold stock [Section 140(3)] - Actual Credit as well as Notional Credit - Part-I - GST Transitional provisions

Circular: Certain Clarifications sought on Construction Services provided in the Real Estate Sector – reg.

News: Anti-dumping duty on import of bus/truck tyres from China

News: Fast-track GST refund, else ₹ 65K cr may be stuck: Exporters

Highlight: It is open to the Settlement Commission to use best judgment in arrival of the figure. Nonetheless it has to explain the manner in which the best judgment figure has been arrived at by the Settlement Commission - HC

Highlight: Deemed dividend u/s 2(22)(e) - advances given to societies - in the absence of legal right of the assessee in the said society the amount advanced cannot be treated as deemed income.

Highlight: When electrical installations are treated as plant and machinery the depreciation has to be allowed @ 25% as per provisions contained u/s 32

TMI Note: Capital Gain - transfer of right in the land or transfer of land itself - addition u/s 50C - Harassment to the honest tax payers

Highlight: Option to avail composition scheme under GST by electronically filing an intimation in FORM GST CMP-02 and FORM GST ITC-03 upto 30-9-2017 - See Rule 3(3A)

TMI Note: Does ICDS apply for the purposes of computing exemption u/s 11 to 13.

Highlight: Voluntary Reporting of Estimated Current Income and Advance Tax Liability - CBDT issues draft notification

TMI Note: Certain ICDS provisions are inconsistent with judicial precedents. Whether these judicial precedents would prevail over ICDS.

Highlight: Provisions of ICDS shall prevail w.e.f. AY 2017-18 to the transactional issues dealt therein over earlier judicial pronouncements.

Notification: Levy of anti dumping duty on New/unused pneumatic radial tyres with or without tubes and/or flap of rubber (including tubeless tyres) having normal rim dia code above 16 originating in, or exported from China PR

News: Voluntary Reporting of Estimated Current Income and Advance Tax Liability

TMI Note: In case of conflict between ICDS and other specific provisions of the Income-tax rules, 1962 governing taxation of income like rules 9A, 9B etc. of the Rules, which provisions shall prevail.

TMI Note: Does ICDS apply to computation of Minimum Alternate Tax (MAT) u/s 115JB of the Act or Alternate Minimum Tax (AMT) u/s 115JC of the Act.

TMI Note: Where a term has not been defined under ICDS, nor under the Act, but has different interpretations given to it by the courts in tax cases, and in ICAI Accounting Standards, which interpretation would prevail while interpreting ICDS.

TMI Note: Whether the provisions of ICDS apply to a non-resident who claims the benefit of a double taxation avoidance agreement (DTAA).

TMI Note: In case any of the ICDS provisions is contrary to a circular or press release issued by the CBDT, which would prevail over the other.

TMI Note: ICDS-I requires disclosure of significant accounting policies and other ICDS requires specific disclosures. Where is the taxpayer required to make such disclosures specified in ICDS.

Notification: Income Computation and Disclosure Standards (ICDS) - New ICDS to be effective from AY 2017-18

News: RBI Reference Rate for US $

Highlight: GST - Detention of goods under transport - discrepancy in documents - the statutory provisions provide a mechanism for adjudication following detention of goods including for the provisional release thereof pending adjudication - HC

Highlight: Reassessment - first few paragraphs of the assessment order dealt with objections and disposed of accordingly - Unfortunately, the manner in which the AO has decided the issue is wholly unsustainable in law - HC

Highlight: Business expenditure u/s 37 - liquidated damage - breach of contract terms - Expenditure was not incurred for any purpose which is an offence or which is prohibited by law - cannot be disallowed - HC

Highlight: Valuation - inclusion of reimbursement of expenses - managing participation of clients in certain mela, fairs, promotional activities etc. - They are liable to service tax on the gross amount received - They cannot restrict their tax liability to only agency commission

Highlight: TDS liability - ITAT confirmed the liability - We do not see how it is possible for us to uphold the order of the Tribunal and when it purports to decide two Appeals of the Revenue by single paragraph conclusion - HC

Highlight: Reopening of assessment - sufficiency of material available with the AO to form a belief that income chargeable to tax had escaped assessment - bogus purchases - seller refused to respond - notice would not be interfered with - HC

Highlight: Exemption u/s 11 - education activities - transport and hostel facilities surplus cannot be considered as business income of the assessee society

News: Draft Notification for insertion of new rule 39A in the Income-tax Rules, 1962 – comments and suggestions-reg.



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version