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TMI Blog2018 (12) TMI 1582X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee has incurred Rs. 71,21,612/- on civil work during the relevant financial year and also the audit report shows 'Building under Construction' in Schedule -5, which reflects that the hotel was not completed during the year under consideration. ii. Whether on the facts and in the circumstances of the case the Ld. CIT(A) was right in accepting the completion certificate issued by Executive Engineer (Building) Municipal Council, Gurgaon whereas the same does not contain any description of building in respect of which it is issued and where the same is located. iii. Whether on the facts and in the circumstances of the case the Ld. CIT(A) was right in accepting the post facto resubmission of Form No. 10CCBBA furnished by the assessee whereas in the original Form No. 10CCBBA, the auditor has failed to fill up vital particulars such as name and address of the hotel, date of commencement of operation by hotel, initial assessment year and particulars of approval from the town planning authority in column- 5,6,7 and 8 respectively. iv. Whether on the facts and in the circumstances of the case, the Ld. CIT(A) was right in accepting the additional evidence under Rule-46A wherea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is the basic and fundamental requirement as per the office procedures. On perusal of the Form No.10CCBBA he noticed that vital particulars in given in column 5 to 8 have not been filled, which is a mandatory requirement as per provisions of section 80ID(3)(iv) of the Act; and accountant was required to fill in correct and complete particulars there and then again at the time of filling of return of income. He held that post facto resubmissions of Form No.10CCBBA by removing the defects /deficiencies detected when pointed out by him does not carry any weight and are liable to be rejected summarily as the complete and full particulars have to be filled in and submitted at the time of filling of Income Tax Return, as prescribed by Income Tax Act. Accordingly, he disallowed the entire claim made by the assessee. 5. Before the ld. CIT (A) assessee apart from filing of the relevant material and documents placed before the Assessing Officer, also filed additional evidences by way of petition under Rule 46A and pointed out that Assessing Officer had confronted with certain discrepancies to be explained vide order sheet entry dated 30.12.2011, whereas assessment was to be framed on next ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. (xi) House Tax Receipt from Municipal Corporation of Haryana. (xii) No objection certificate from civil surgeon from Gurgaon, Haryana. 5.1 Apart from that point-wise rebuttal was also made which has been elaborately discussed by the ld. CIT (A) in his impugned order. 6. After considering the entire facts and material on record, the ld. CIT (A) has given his finding with regard to the various discrepancies pointed out by the Assessing Officer and held that assessee was eligible for deduction u/s.80ID. In sums and substance, the finding of the ld. CIT (A) were as under:- a) As regards AO's observation that the appellant had spent unrealistically low amount of construction of hotel, the learned counsel of the appellant submitted that instead of buying a plot of land, it had bought covered area measuring 18500 sq.ft. and it was because of the availability of covered area that nominal expenses were made on civil work. While submitting that only an amount of Rs. 71,21,612/- was spent on civil works on the aforesaid building, the appellant hastened to add that it incurred additional amount of Rs. 1,19,89,188/- till 31.03.2008 and Rs. 1,93,70,992/- till 31.03.2009 towards o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one of its reputed clients, namely Maruti Suzuki India Ltd duly confirmed by the company concerned. A number of invoices in the said details relate to the year under consideration. This evidence further cements the fact that during the year in question, the hotel was very much functioning. e) As regards, AO's observation that the completion certificate issued by Executive Engineer (Building) Municipal Council, Gurgaon lacked genuineness, the appellant pointed out that the said certificate clearly mentioned the location of the hotel as per which it was located at Delhi Road in the City of Gurgaon. Since the location of the Hotel was specified in the Completion Certificate issued by the Executive Engineer (Building), Municipal Council, Gurgaon, the appellant stressed the fact that no adverse inference could be derived by the AO on the basis of this Certificate. (f) As regards defects in Form 10CCBBA pointed out by the AO as one of the grounds for disallowance of deduction u/s 80ID of the Income Tax Act, the appellant submitted that there were some defects, which were removed as soon as the appellant came to know about it from the AO. This fact gets corroborated by the order- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blishing kitchen under rules and conditions specified by him; viii) House Tax Receipt from Municipal Corporation of Haryana dated 09.10.2007; ix) no Objection Certificate from Haryana Fire Service dated 09.01.2007; and x) the assessee also gave copies of Renewal Certificates wherever the initial Certificate, issued for a fixed period of time, had expired. He thus, held that once the guests were in hotel and the assessee has earned receipts from the hotel business, then that means not only it was functional but also the entire receipts were from the business and accordingly he allowed the claim of the assessee. 7. Before us, learned Department Representative submitted that the Assessing Officer has pointed out certain discrepancies with regard to the allowability of deduction u/s.80ID. Though, the same were confronted on 29.12.2011, but assessee had filed all the documents which Assessing Officer has duly considered while passing the assessment order and therefore, it is incorrect to hold that additional evidences should be admitted. Apart from that, there no substantial amount spent by the assessee on the building but on other amenities during the Assessment Year which puts a ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that, assessee has also filed additional evidences which too have been incorporated above and also the details of the guests who stayed in the hotels and the payments received through cheques. The assessee had also paid various taxes levied on the bills raised to the guests who were mainly the guests of Maruti Suzuki India Ltd. From the perusal of the record, it is seen that assessee has disclosed the cost of the land at Rs. 1,18,69,000/- in its balance sheet as on 31.03.2006 and thereafter, various additions/construction expenses have been capitalized which aggregated to more than Rs. 71 lacs. Further, the assessee had also spent on civil work for sums aggregating to Rs. 1,19,89,188/- till 31st March, 2008; and again Rs. 1,93,70,992/- till 31st March, 2009 under the head 'amenities' required for hotel like furniture and fixtures, lift, telephone, generator, fire-extinguishers, kitchen equipments and catena of other amenities required in the hotel rooms and hotel business. The hotel is not merely a building but also has to provide various amenities to the guests for which assessee had given the details not only in the balance sheet but also before the authorities below. The assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he completion of assessment and whatever material assessee could provide was given and further evidences have been filed before the ld. CIT (A) to prove the functioning and operation of the hotel. Ld. CIT (A) had sent the entire additional evidences to the Assessing Officer for proper examination. However, the Assessing Officer instead of examining the same has objected for such an admission without any cogent grounds. Ld. CIT (A) has given a very detailed finding not only for the admissibility of such evidence but also how they are relevant for deciding the issue in hand. 11. The finding of the ld. CIT (A) is not only based on correct appreciation of fact but also in accordance with law. Thus, we do not find any reason to deviate from such a finding and accordingly, the order of the ld. CIT (A) is affirmed and consequentially the grounds raised by the Revenue are dismissed. 12. Now coming to the appeal for the Assessment Year 2008-09, the main issue involved is that, Assessing Officer has rejected the claim of deduction u/s.80ID amounting to Rs. 1,45,04,850/- on the ground that same was not being claimed in the original return of income but only by way of revised return of inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equent to filing this return, it revised its returns twice on 31.03.2009 bearing acknowledgement No. 67607880310309 and 67725160310309. Both these returns filed subsequent to the return available with the AO, show a claim under Chapter VIA amounting to Rs. 2,28,96,593/- resulting in NIL total income for the appellant. The only distinction between these two returns is that in the latest return filed by the appellant on 31.03.2009 bearing acknowledgement No. 677251603100309, the appellant claimed the deduction under Section 80ID of the Income Tax Act. In this return, the entire amount of gross total income was claimed as a deduction, resulting in NIL taxable income for the year under consideration." 13.1 In support of its claim, the assessee also gave a copy of Form No.10CCBBA as per which the appellant was entitled to a deduction u/s 80ID of the Act amounting to Rs. 2,28,96,593/-. He held that the Assessing Officer has completely ignored the latest return filed by the assessee and has denied the claim of deduction simply on the ground that no such claim has been made in the original return of income. However, considering the submission and facts and material on record, the ld. CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er has erred in not appreciating the entire facts before denying the claim of deduction u/s.80ID. He also held that in any case such a claim can always be entertained by the appellate authorities, in view of the judgment of Hon'ble Supreme Court in the case of Goetz India Ltd. vs. CIT, reported in (2006) 284 ITR 323 (SC). 14. During the course of hearing, we asked the ld. DR to file a paper book based on assessment records which has been filed before us. From the perusal of the same, we find that there is an income tax return dated 31.03.2009 vide efiling acknowledgement no. 67426740310309 wherein assessee has claimed deduction under Chapter-VIA amounting to Rs. 2,28,96,593/-. Original return of income has also been filed before us. Once it is an undisputed fact that revised return has been filed and claim has been made by the assessee, then such a claim has to be entertained by the Assessing Officer and this fact has been duly appreciated by the ld. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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