TMI Blog2018 (12) TMI 1582X X X X Extracts X X X X X X X X Extracts X X X X ..... ct has been duly appreciated by the CIT (A) as incorporated above. Apart from that, on merits also assessee is eligible for deduction u/s.80ID which we have already discussed in detail while deciding the appeal for the Assessment Year 2009-10. Thus, we do not find any infirmity in the order of the ld. CIT (A). Accordingly, the appeal of the Revenue is dismissed. - I.T.A. No.3260/DEL/2014, I.T.A. No.5885/DEL/2014 - - - Dated:- 25-9-2018 - Amit Shukla, Judicial Member And Shri L.P. Sahu, Accountant Member For the Appellant : Shri S.R. Senapati, Sr.D.R. For the Respondent : S/Shri Rajiv Saxena, Adv., Ajit Kumar Jha, Adv. Shyam Sunder, AR ORDER PER AMIT SHUKLA, J.M.: The appeal for the Assessment Year 2009-10 has been filed by the Revenue against impugned order dated 31.03.2014 for the quantum of assessment passed u/s. 143(3) for the Assessment Year 2009-10; and appeal for the Assessment Year 2008-09 has been filed against the impugned order dated 20.08.2014 in relation to the order passed u/s.154, both passed by ld. CIT (Appeals)-II, Faridabad. 2. We will first take up the appeal for the Assessment Year 2009-10, wherein the Revenue has raised the foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al council, Gurgaon. iii) Copy of house tax bills dated 04.10.2007 in the name of assessee. iv) Copy of XEN/Dakshin Haryana Bijli Vitran Nigam (DHBVN) Ltd. Letter dated 18.06.2007 releasing electricity connection for 25000 KW to the assessee. v) Copy of water/service charges bill dated 07.01.2007. vi) Copy of hotel restaurant approval classification committee dated 18.09.2007 granting 3-star status to assessee hotel. vii)Form No. 10CCBBA dated 03.09.2009 duly signed by Sh. Ramesh Sardana, C.A. counsel of assessee. 4. Learned Assessing Officer after detailed discussion held that assessee is not eligible for deduction u/s.80ID for the reasons that, Assessee has shown 'building under construction' during the year in Schedule 5 of audit report, whereas the hotel building is supposed to be completed by 30.09.2007, i.e., date of completion certificate submitted by the assessee. Total investment in the building under construction as on 01.04.2008 was reflected at ₹ 31,10,824/- which as per the Assessing Officer was very unrealistic figure as no 3-star hotel can be completed at such a low-cost of civil construction. He held that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the deduction, filed following details and documents before the ld. CIT (A). i) Project approval from Ministry of Tourism vide letter no. 5-TH-I (62) 06 dated 01.12.2006. (ii) Certificate for running of three star Hotel, from Hotel restaurant Approval classification committee . Govt. of India, Department of Tourism. (iii) Grant of Authorization (EPC GI concessional duty of 5%) for import of items name services provider Hotel Restaurant from the Joint Director General of Foreign trade, New Delhi India, Ministry of Commerce Industry (Govt, of India) vide Authorization No. - 0530144188 dated 26.07.2007. (iv) Electric load sanctioned letter dated 18.06.2007. (v) Certificate of registration No. R. C. No. L.T/GRW/00028 under section 11(1) of Haryana Tax under Luxuries Act 2007 valid from 07.08.2007. (vi) Food license from municipality for sales of food and aerated water for serving of foods to room guest w.e.f. 20.06.2007. (vii) Certificate of registration for running of Hotel Restaurant from the excise taxation Authority Gurgaon (Haryana) vide Tin No. 06631930636 valid from 07.12.2006. (viii) No-objection from the Fire Departme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention of the undersigned to the fact that it had deposited taxes to the tune of ₹ 26,48,721/- pertaining to financial year 2007-08 and ₹ 71,72,194/- for the financial year 2008-09 with the Excise and Taxation Department as Luxury Tax. c) Furthermore, the appellant added that as prescribed by Govt, of India for National Security Reasons , every Hotelier has to submit the complete particulars of the foreigner guest in Form C (Hotel arrival report) under Rule 14 for Registration of foreigners Rules (1939) giving complete particulars of guest (Foreigner) in the prescribed form alongwith the passport number. The appellant submitted copy of Form C pertaining to a guest in the hotel (Shri Dewatre Charles), a Foreigner, which was submitted with concerned department on 21.09.2007. This shows that Mr. Charles stayed in the hotel in September 2007. Similarly, the appellant stated that six foreigners booked the Hotel on 20.09.2007. A copy of six Form C s duly completed giving passport number of each every foreigner submitted with the concerned department on 22.09.2007 was also given during appellate proceedings. On the basis of this concrete evidence the appellant subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TO Vs Novelty Garments (2007) 256 ITR 688 (Rajasthan), it was held that the submissions of Auditor's Report for the purpose of deduction of 80HHC of the Income Tax Act in the old format of Form No. 10CCAC in place of new format is a defect, which can be corrected by filing the auditor's report in the revised format during the course of assessment proceedings. 6.1 Apart from that, he had also given his finding on the additional evidence like; i) copy of Form-C pertaining to Shri Dewatre Charles which was submitted with the concerned Department on 21.09.2007; ii) Passport No. and other details of six foreigners, who stayed in Hotel and whose particulars were submitted with the concerned Department of the Government on 20.09.2007; iii) a certificate issued by one of the assessee s client, namely, Maruti Suzuki India Ltd. giving details of payment made by it to the assessee company and all these payments were made in relation to the guests of Maruti Suzuki India Ltd., who stayed in the Hotel; iv) the invoice date given in the said Certificate, which makes it abundantly clear that a number of clients of Maruti Suzuki India Ltd. who stayed in the Hotel during the year under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otel only, then such an income derived from the hotel business is eligible for deduction u/s.80ID and same cannot be taxed. He further pointed out that even the Assessing Officer has not treated the said income under the head income from other sources and once it is a business income then ostensibly such a business income derived from the hotel is eligible for deduction u/s.80ID. He also pointed out to various documents (paper book) filed before us, which were also filed before the Assessing Officer as well as ld. CIT (A). 9. We have heard the rival submissions and also perused the relevant findings given in the impugned orders as well as matter referred to before us. The main reason for denial of deduction by the Assessing Officer u/s.80ID is that, assessee was not in a position to operate the hotel as it was still under construction. The reason for coming to this conclusion was that; firstly , in the audit report in Schedule-5 Auditors have shown building construction and investment under construction as on 01.04.2008 at ₹ 31,10,824/- which is too low; and secondly, the completion certificate dated 03.09.2007 issued by Executive Engineering Municipal Council, Gurg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Amount (Rs.) Maruti Suzuki India Ltd. 44,00,890.00 Suzuki Power-train India Ltd. 1,65,40,246.00 Suzuki Powertrain India Ltd. 34,49,610.00 Maruti Suzuki India Ltd. 69,15,662.00 Koni Travels India Ltd. 2,29,160.00 Sojit India Limited 28,12,138.00 Phoeonix India Limited 2,15,919.00 Teneco RC India Ltd. 1,07,870.00 Sona Koyo Stearing System Ltd. 2,46,354.00 Wave Engineering Design Ltd. 1,00,694.00 Ageies BPO Services Ltd. 15,903.00 Sri Ranbaxy Ltd. 1,95,971.00 Amtek Auto Ltd. 48,400.00 Suzuki Motorcycle India Pvt. Ltd. 71,796.00 Havell s India Ltd. 49,000.00 Hero Honda Motors Ltd. 76,162.00 Sygenta India Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return of income. The assessee had filed an application u/s.154 before the Assessing Officer claiming the deduction u/s.80ID on the ground that assessee had filed the revised return dated 31.01.2009 in which such a claim was made, and therefore, assessee should be allowed such a claim. The Assessing Officer held that the income tax return downloaded from the system reveals that the claim of deduction u/s.80ID was not made and similar claim has been rejected in the assessment proceedings for the Assessment Year 2009-10 also. 13. The facts in brief and background are that assessee had filed its original return of income on 30.09.2008 showing gross total income of ₹ 1,45,04,849/- as per e-filing acknowledgement no.46088290300908/-. Though, it has been stated by the assessee that the entire amount of gross total income was claimed as deduction under Chapter-VI A. However, ld. CIT(A) has noted that the assessment folder did not reveal such return, but at the same time it is an undisputed fact that assessee had filed revised return of income on 31.03.2009 declaring gross total income of ₹ 2,28,98,593/- which was available in the assessment folder with e-filing acknowled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission and facts and material on record, the ld. CIT (A) has noted the following facts emerging from the records:- 1. The appellant filed its original return of income on 30.09.2008 claiming a deduction of ₹ 1,45,04,849/- under Chapter VIA of the Income Tax Act. Subsequently, by filing revised returns, the appellant claimed the enhanced amount of ₹ 2,28,96,593/- as a deduction. As per the copy of the latest return filed by the appellant on 31.03.2009 (E filing Acknowledgement No. 677251603100309), a deduction of ₹ 2,28,96,593/- was claimed u/s 80ID of the Income Tax Act. II. The AO, on the other hand, did not allow the claim of Section 80ID on the ground that the appellant had not claimed the aforesaid deduction. III. A perusal of the order u/s 154 of the Income Tax Act reveals that the AO rejected appellant's claim for deduction u/s 80ID amounting to ₹ 1,45,04,849/-. However, on a perusal of the assessment folder, a copy of the said return filed on 30.09.2008 could not be found. IV. The only evidence available in the assessment folder is the return of income filed by the appellant on 31.03.2009 bearing E-filing Acknowledgement No.67 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
