TMI Blog2017 (6) TMI 770X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 32(1). Disallowance made by the AO under section 80IB(10) - Held that:- A perusal of the above part of the impugned order reveals that the Ld. CIT(A) has allowed the claim of the assessee following the decision of the Tribunal in the own case of the assessee for A.Y. 2004-05, 2005-06 & 2006- 07. Since the issue is squarely covered by the decision of the Tribunal in the own case of the assessee and no differentiating fact has been brought into our knowledge for the year under consideration. Disallowance of bogus purchases - Held that:- CIT vs. Nikunj Enterprises (P.) Ltd.” (2013 (1) TMI 88 - BOMBAY HIGH COURT) wherein held the findings of the tribunal that where the assessee filed letters of confirmation of suppliers, copies of bank statement showing entries of payment through account payee cheques to suppliers and stock reconciliation statements, sale of purchased goods was not doubted, the transactions were supported with evidences and confirmations, in such an event merely because the suppliers have not appeared before the AO or the Ld. CIT(A), one can not conclude that the purchases were not genuine. - ITA No.6116/M/2014, And ITA No.6208/M/2014 - - - Dated:- 3-4-2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowance of ₹ 6,27,167/- has been made by the AO on account of difference/mismatch of the figures in the accounts of the assessee and the payee of the amount paid by the assessee to Mr. Ajay Wade. He has further stated that the assessee has been following the mercantile system of accounting whereas Mr. Ajay Wade, the payee, has been following the cash system of accounting. That the assessee had booked the said payment on accrual basis and TDS being deducted thereupon; whereas, since Mr. Ajay Wade has been following cash system of accounting the said amount was not shown in his accounts as receipts. The Assessing Officer (hereinafter referred to as the AO) therefore disallowed the difference of ₹ 6,27,167/-. The Ld. Counsel for the assessee has also filed an application for additional evidence as per rule 29 of the Income Tax Appellate Tribunal Rules, 1963 stating that the assessee has now obtained confirmation of accounts from Mr. Ajay Wade and that the alleged difference of amount has already been paid by the assessee to Mr. Ajay Wade during the next financial year. 4. We have gone through the copy of the confirmations filed but we note that the same were not enough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one flat exceeding the maximum permissible area, i.e. 1000 sq. ft. thereby violating the conditions required for deduction u/s.80IB( 10). (vii ) On the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred in deleting the addition of ₹ 95,203/- u/s 69C of the I.T. Act as unexplained expenditure made by the AO. (viii) On the facts and in the circumstances of the case and in law , the Ld CIT(A) erred in not appreciating the fact that the alleged purchase bills were not supported by the supply of goods. (ix) On the facts and in the circumstances of the case and in law, the Ld. CIT(A) grossly erred in not appreciating the fact that the notices under 133 issued to the parties from whom alleged bills were received were returned undelivered by the postal authorities and ward Inspector and the assessee has also fai led to produce the party before the AO. (x) On the facts and in the circumstances of the case, and in law, the ld. CIT(A) erred in not considering that the assessee tried to camouf lage the non-genuine transactions as genuine to introduce the unexplained money. (xi) On the facts and in the circumstances of the case and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 37,250 2006-07 7,36,978 2007-08 41,03,254 2008-09 567,96,889 2009-10 Nil 2010-11 7,79,043 The AO however has not allowed the said deduction on the grounds that original the commencement certif icate was issued in the name of M/s.Dhruv Const ruction to develop Wings 'A B 'C' . The said a ppro va l wa s consolidated ap proval under common approval No.CHE/1078/LOP Wing 'A' and 'B' were developed by the said Dhruv Cons t ruct ion. However in respect of wing 'C' asses see M/s . Ci ty Developer s entered into a joint venture dated 18-11-2003 and became a joint developer along with M/s.Dhruv Construction on the terms and conditions specified therein. On perusal of the said agreement it is seen that certain clauses of the agreement are still blank e.g. clause No.16. Even clause No.3 clearly states that all the 3 properties were amalgamated and l ayout was approved under No.CHE/1078/LOP dated 01-01-2003 and layout condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respectively. It is nothing but adjoining common flats with common amenities like kitchen etc. Only for the purpose of registration it is divided into parts so that the area does not exceed 1000 sq.ft. Similarly flat No.702 802 are just one above the other and accordingly for the purpose of deduction is considered as one units as held in the case of K.G. Vyas 16 ITD 195 (Mumbai Tribunal) and 107 ITRD 321 (Mumbai Tribunal). On these counts also the contention of the assessee that the adjoining flats are separate units does not hold good as per the judgment of Mumbai Tribunal. Accordingly the claim of deduction u/s.80IB(10) on the ground of excessive area constructed in respect of residential unit is also violated and therefore disallowed. The AO has made the addition as in the earlier years. I have gone through the contention of the AO and I find that after detailed reasoning my predecessor has allowed the said deduction to the appellant. The Hon. ITAT, Mumbai in the appellant's own case has allowed relief to the appellant for AY 2004-05, 2005-06 and 2006-07 by upholding the decision of CIT(A). Respectfully following the decision of Hon Tribunal in the appellant's o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here was no evidence that the said concerns gave bogus vouchers to the assessee and even the statements made by the alleged suppliers in no way implicate the transaction with the assessee then under such circumstances it cannot be said that entries for the purchase of goods made in the books of account of the assessee were bogus and no addition in this respect can be made. The Ld. Counsel for the assessee has further relied upon the decision of the Hon ble Bombay High Court in the case of CIT vs. Nikunj Enterprises (P.) Ltd. (2013) 35 taxman.com 384 (Bombay) wherein the Hon ble Bombay High Court has upheld the findings of the tribunal that where the assessee filed letters of confirmation of suppliers, copies of bank statement showing entries of payment through account payee cheques to suppliers and stock reconciliation statements, sale of purchased goods was not doubted, the transactions were supported with evidences and confirmations, in such an event merely because the suppliers have not appeared before the AO or the Ld. CIT(A), one can not conclude that the purchases were not genuine. 15. In the light of above stated legal position, we do not find infirmity in the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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