TMI Blog2022 (7) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee. Disallowance of deduction claimed u/s 80IB(10) - HELD THAT:- As we note that assessee company has not fulfilled the conditions of section 80IB(10) of the Act. However, we note that assessee has submitted before us a letter dated 03.05.2007 of Bardoli Nagarpalika, which is paced at paper book page no.1 and also submitted letter dated 09.07.2008 of Nagar Niyojan (town planner), Surat Branch, these papers were not examined by the assessing officer. Therefore, we remit this issue back to the file of the assessing officer to adjudicate the issue afresh. The assessee is also directed to submit relevant evidences and documents to prove its claim of deduction under section 80IB(10) - Therefore, statistical purposes, ground no.2 raised by the assessee is allowed. Addition of development/construction receipts as alleged unrecorded receipts - HELD THAT:- We note that as the issue is squarely covered in assessee s own case wherein the Co-ordinate Bench held that it would be reasonable to estimate 6% on net profit on total on-money receipts. We note that addition of development/construction receipts was made by the assessing officer, treating it alleged unrecorded re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. It is therefore prayed that above addition made by assessing officer and confirmed by Commissioner of Income-tax (Appeals) may please be deleted. 5. Assessee craves leave to add, alter or delete any ground(s) either before or in the course of hearing of the appeal. 4. So far ground no.1 is concerned, Learned Counsel for the assessee submits that order passed by the Assessing officer under section 143(3) of the Act, dated 31.03.2013, is beyond the statutory time limit prescribed under section 153 of the Act, as the assessment order was served on the assessee on 03.04.2013, therefore assessment proceedings initiated under section 143(3) of the Act should be annulled. 5. On the other hand, Learned Departmental Representative (Ld.DR) for the Revenue pleads that assessee has not proved that assessment order passed under section 143(3) of the Act dated 31.03.2013, was served on the assessee on 03.04.2013. The assessing officer passed order on 31.03.2013, which is within the statutory time limit prescribed under section 153 of the Act. Just to say that the assessment order was passed beyond the statutory time limit is not sufficient, the assessee has to prove with do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Rs.44,85,887/- u/s 80IB(10) of the Act. In assessee`s case, survey u/s133A of the Act was conducted on 30.12.2009 by DDIT Wing, Surat. During the course of assessment proceedings, the books of account have been produced by assessee and assessing officer had verified them. On verification of the details furnished by the assessee company, it was noticed by AO that assessee has sold out more than one units to persons as specified under clause (f) to the section 80IB(10) of the Act. Unit No. A-115, A-116 and A-117 were sold out to Shri Arvindbhai Hirabhai Patel, Smt. Manjulaben Hirabhai Patel and Smt. Manjulaben Arvindbhai Patel and Unit No. A-110 and A-111 were sold out to Hasmukhbhai S. Patel during the F.Y.2009-10. As per the said clause, deduction u/s 80IB(10) of the Act is allowable only if not more than one unit is allotted in the project to a person and his/her spouse and minor child. Therefore, assessing officer asked the assessee to furnish the explanation. In response, the assessee submitted its reply on 26.03.2012 which is reproduced by the assessing officer in para no.4 of the assessment order. 9. The assessing officer having gone through the submission of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trar Office, Bardoli Book No.l, Regi. No. 1046. Mr. Nitin Gopal Rana, owner of the said land has given Development rights to M/s. Jay Kesar Bhavani Development (p) Ltd. Mr. Nitin Gopal Rana shall sell open plots of land to any intending purchaser with a condition that the purchaser shall make the construction of row houses through M/s Jay Kesar Bhavani Developers (P) Ltd only and purchaser shall abider by the same condition. The developer shall be required to deal with the intending purchaser of the units till the stage of physical possession:..... The assessee's contention has been examined. The first undisputed fact is that the Housing Project was approved the Local Authority on 09.07.2008 i.e. F.Y. 2008- 09 and not F.Y. 2007-08 as claimed by the assessee. Therefore, the assessee's claim fails to meet the basic condition of section 80IB(10) i.e. project should have approved before 31s! March 2008. Moreover, the agreement dated 22.10.2008 made with the landlord also pertains to F.Y. 2008-09. The original agreement dated 20.04.2007 is basically an agreement for purchase of land. As per the Supplementary Agreement, dated 22.10.2008 plots shall be sold to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. The ld DR also pointed out that letter dated 09.07.2008 of Nagar Niyojan (town planner), Surat Branch has not been examined by the Assessing Officer. It is also not clear whether Bardoli Nagarpalika is competent authority to give the permission or whether Nagar Niyojan, town planner, Surat Branch is competent authority to sanction the development plan. Therefore, he submits that the issue should be remitted back to the file of the Assessing officer to examine whether Bardoli Nagarpalika is competent authority or Nagar Niyojan (town planner), Surat Branch, is a competent authority to sanction the assessee s project to be eligible under section 80IB(10) of the Act. 15. We have heard both the parties and carefully gone through the submissions put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the facts of the case including the findings of the ld. CIT(A) and other material brought on record. Before us, ld Counsel submitted a letter dated 03.05.2007 of Bardoli Nagarpalika, which is paced at paper book page no.1. The ld Counsel also submitted letter dated 09.07.2008 of Nagar Niyojan (town planner), Surat Branch, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : a) The assessee cannot be considered an undertaking, developing and / building housing projects. The plots have been purchased by buyers and after that it has entered into Construction Contracts with the buyers of plots. b) The built - up area of the construction work has not been mentioned in the Construction Agreement and the size/s of open plots is/are as under:- Plot Number Area in ( Sq. Feet) 1 2170 2 2170 3 2170 4 2170 6 1997.50 7 3215.90 10 1925 11 1925 12 1890 Also unit No. A-136 has plot area of 1620 Sq Ft. 18. Thus, we note that assessee company has not fulfilled the conditions of section 80IB(10) of the Act. However, we note that assessee has submitted before us a letter dated 03.05.2007 of Bardoli Nagarpalika, which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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