Madras High Court
M/S.Coromondel Cabeles P. Ltd vs The Assistant Commissioner Of Income … on 9 May, 2025
Author: C.Saravanan
Bench: R.Suresh Kumar, C.Saravanan
2025:MHC:1207
T.C.A.Nos.294 of 2018 & etc., batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On 21.10.2024
Pronounced On 09.05.2025
Coram:
THE HON'BLE MR.JUSTICE R.SURESH KUMAR
and
THE HON'BLE MR.JUSTICE C.SARAVANAN
T.C.A.Nos.294 to 299 of 2018 and T.C.A.Nos.355, 356, 378, 389,
390, 393, 396, 401, 402, 409 & 411 of 2021
T.C.A.Nos.294 to 299 of 2018:
M/s.Coromondel Cabeles P. Ltd.,
A-7, 6th Cross Street,
Indira Nagar, Adyar,
Chennai – 600 020.
PAN: AAACC7190E ... Appellant
Versus
The Assistant Commissioner of Income Tax,
Company Circle – I (3),
Chennai. ... Respondent
T.C.A.Nos.355, 356, 378, 389, 390, 393,
396, 401, 402, 409 & 411 of 2021:
The Commissioner of Income Tax,
Chennai. ... Appellant
Versus
M/s.Coromondel Cabeles P. Ltd.,
A-7, 6th Cross Street,
Indira Nagar, Adyar,
Chennai – 600 020.
PAN: AAACC7190E ... Respondent
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T.C.A.Nos.294 of 2018 & etc., batch
Prayer in T.C.A.Nos.294 to 299 of 2018:
Tax Case Appeals filed under Section 260A of the Income Tax Act,
1961 against the common order of the Income Tax Appellate Tribunal 'C'
Bench, Chennai in I.T.A.No.1779/Mds/2013 dated 04.03.2016.
Prayer in T.C.A.Nos.355 & 356 of 2021:
Tax Case Appeals filed under Section 260A of the Income Tax Act,
1961 against the separate orders of the Income Tax Appellate Tribunal 'C'
Bench, Chennai in M.A.No.41/Mds/2017 in I.T.A.No.1782/Mds/2013 and
M.A.No.43/Mds/2017 in I.T.A.No.1784/Mds/2013 dated 12.05.2017
respectively.
Prayer in T.C.A.Nos.378, 389, 390, 393, 396, 401, 402, 409 & 411 of
2021:
Tax Case Appeals filed under Section 260A of the Income Tax Act,
1961 against the separate orders of the Income Tax Appellate Tribunal 'C'
Bench, Chennai in I.T.A.No.1949/Mds/2013, I.T.A.No.1782/Mds/2013,
I.T.A.No.1786/Mds/2013, I.T.A.No.1944/Mds/2013,
I.T.A.No.1785/Mds/2013, I.T.A.No.1779/Mds/2013,
I.T.A.No.1947/Mds/2013, I.T.A.No.1784/Mds/2013,
I.T.A.No.1788/Mds/2013 dated 04.03.2016 respectively.
For Appellant in
T.C.A.Nos.294 to 299 of 2018
and
For Respondent in
T.C.A.Nos.355, 356, 378, 389,
390, 393, 396, 401, 402, 409
& 411 of 2021 : Mr.M.Gopinath
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For Respondent in
T.C.A.Nos.294 to 299 of 2018
and
For Appellant in
T.C.A.Nos.355, 356, 378, 389,
390, 393, 396, 401, 402, 409
& 411 of 2021 : Mr.T.Ravikumar,
Senior Standing Counsel
COMMON JUDGMENT
(Judgment of the Court was delivered by C.SARAVANAN, J.)
These appeals have been filed by the Assessee and the Income Tax
Department under Section 260A of the Income Tax Act, 1961 (hereinafter
referred to as ‘IT’ Act). They are being disposed of by this Common
Judgment.
2. The dispute in these appeals arise out of the impugned Common
Order dated 04.03.2016 passed by the Income Tax Appellate Tribunal
(hereinafter referred to as “ITAT”) in Appeal in I.T.A.Nos.1779-
1788/Mds/2013 filed by the Assessee and Appeal in I.T.A.Nos.1944-
1949/Mds/2013 filed by the Income Tax Department for the respective
Assessment Years viz., Assessment Years 2006-2007 to 2011-2012.
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3. For the sake of clarity, instead of refererring the parties as
Appellant and Respondent, we shall use the expression, ‘Assessee’ and
‘Income Tax Department’ as both of them are Appellants and Respondents
in these batch of appeals.
4. The dispute in these appeals pertain to the Assessment Years
2006-2007 to 2011-2012. Some of the appeals have been filed by the
Income Tax Department against Miscellaneous Orders passed by the
Appellate Tribunal. Details of the Appeals filed by the Assessee and the
Income Tax Department are tabulated below:-
Table I
Sl. Assessee’s Assessment Impugned Order of Income Impugned Orders
No. Appeal Years ITAT against which Tax of ITAT against
in Appeal in column Departmen which Appeal in
TCA.Nos. No.(iii) have been t’s Appeal Column No.(v)
filed in have been filed
TCA.Nos.
(i) (ii) (iii) (iv) (v) (vi)
1, 2 294/2018 2006-2007 I.T.A.No.1779/Mds/ 401/2021 I.T.A.No.1779/Mds/
2013 2013
3 393/2021 I.T.A.No.1944/Mds/
2013*
4 396/2021 I.T.A.No.1785/Mds/
2013
5 295/2018 2007-2008 I.T.A.No.1780/Mds/ - -
2013
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Sl. Assessee's Assessment Impugned Order of Income Impugned Orders
No. Appeal Years ITAT against which Tax of ITAT against
in Appeal in column Departmen which Appeal in
TCA.Nos. No.(iii) have been t's Appeal Column No.(v)
filed in have been filed
TCA.Nos.
6 296/2018 2008-2009 I.T.A.No.1781/Mds/ - -
2013
7, 8 297/2018 2009-2010 I.T.A.No.1782/Mds/ 389/2021 I.T.A.No.1782/Mds/
2013 2013
9 355/2021 MA.No.41/Mds/
2017 #
in
I.T.A.No.1782/Mds/
2013
10 390/2021 I.T.A.No.1786/Mds/
2013
11 402/2021 I.T.A.No.1947/Mds/
2013*
12 298/2018 2010-2011 I.T.A.No.1783/Mds/ - -
2013
13, 299/2018 2011-2012 I.T.A.No.1784/Mds/ 409/2021 I.T.A.No.1784/Mds/
14 2013 2013
15 378/2021 I.T.A.No.1949/Mds/
2013 *
16 356/2021 MA.No.43/Mds/
2017 #
in
I.T.A.No.1784/Mds/
2013
17 411/2021 I.T.A.No.1788/Mds/
2013
Note:
1. # dated 12.05.2017;
2. Rest of the orders are dated 04.03.2016;
3. * Appeal filed by the Income Tax Department before ITAT in Column (v)
4. Rest of the appeals before ITAT in Colum (iv) & (vi) were filed by the
Assessee.
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5. The Assessee’s appeals in T.C.A.Nos.294 to 299 of 2018 were
admitted by this Court on 29.06.2018. At the time of admission, the
following substantial questions of law were framed for being answered:-
(i) Whether the Appellate Tribunal is correct in law in
rejecting the computation of Long Term Capital Gains
based on the sale agreement followed by the execution
of the sale deeds and reporting of Long Term Capital
Gains in the subsequent assessment years while
approving impliedly the computation of Long Term
Capital Gains in those subsequent assessment years
based on unregistered JDA?
(ii) Whether the Appellate Tribunal is correct in Law in
rejecting the grounds alternatively raised for taxing the
surplus based on Section 45 (2) of the Act read with the
transaction presumed to be executed as per the
unregistered JDA in treating the Appellant Company as
a Joint Developer?
(iii) Whether the Appellate Tribunal is correct in not
deleting the share of profit from the housing project
taxed based on the execution of the transaction through
the unregistered JDA despite the tacit acceptance of the
taxation of the financial results from the joint
development in the status of AOP?
6. In the appeals filed by the Income Tax Department as detailed in
Column (v) to above Table I in Paragraph No.4, no questions of law were
framed by this Court at the time of their admission. They were admitted
during the period when the Country was still under lockdown due to the
outbreak of Covid-19 Pandemic.
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7. In these appeals, the Income Tax Department has raised identical
substantial questions of law which are as follows:-
1. Whether on the facts and in the circumstance of
the case, the Tribunal was right in holding that
the transaction emanating from the Joint
Development Agreement dated 23.11.2005 by
which 62.46% of land was transfered cannot be
liable to tax in Assessment Year 2006-07 as per
Section 2(47)(v) of the Income Tax Act, 1961
r/w. 53A of the Transfer of Property Act, 1882?
2. Whether reasoning and finding of the Tribunal is
proper by holding that no transfer took place in
the previous year relevant to the Assessment
Year 2006-07 when all the conditions stipulated
under Section 53A on the T.P.Act were satisfied
and the Transferee had also taken possession of
the property and the Transferee was ready and
willing to perform the contract was also
satisfied?
3. Whether on the facts and circumstances of the
case, the Tribunal was justified in holding that
the assessment for the assessment year 2007-08
and 2008-09 as substantive when the substantive
assessment for the assessment of capital gains
on transfer of land was made for the assessment
year 2006-07 when possession was given?
4. Is not the finding of the Tribunal perverse and
bad by holding that the capital gains on transfer
of 62.46% of land is taxable in the Assessment
Year 2007-08 especially when the developer has
sold part of the undivided share of the land
falling under his share using the power of
attorney given by the Assessee in the Financial
Year 2006-07 which could happen only when the
possession of the land given to the Developer?
5. Whether on the facts and circumstances of the
case the Tribunal was right in holding that only
the sale value of the land is to be taken as a
consideration from the Joint Development7/67
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T.C.A.Nos.294 of 2018 & etc., batchAgreement as against the Market value of
37.54% of constructed area received by the
Assessee in terms of the Joint Development
Agreement?
6. Whether on the facts and circumstance of the
case the Tribunal was justified in remitting the
claim of Rs.68,99,590/- as the cost of
improvement for the Assessment Year 2007-08
to the file of Assessing Officer without recording
any reasons to differ from the findings given by
the Assessing Officer and the CIT (Appeals)
especially all the material was available before
it?
7. Whether on the facts and circumstances of the
case the Tribunal erred in law in remitting the
claim of cost of improvement when it was clearly
proved the assessment proceedings that it was a
bogus transaction and bills were supplied by
Hawala Operator in Bombay?
8. Whether on the facts and circumstance of the
case the Tribunal was justified in directing the
Assessing Officer to compute the short term
capital gains and the sale value of the building
for the Assessment Year 2008-09 to 2011-12
when the receipt of such building through joint
development agreement was not brought to tax
in the Assessment Year 2006-07 and the said
direction of the Tribunal is perverse?
9. Whether on the facts and circumstance of the
case the Tribunal was correct and justified in
cancelling the penalty levied u/s.271(1)(c)
especially when the quantum assessment had not
attained finality as appeals are pending?
10. Whether on the facts and circumstance of the
case the Tribunal was right in setting aside the
levy of penalty when the act of concealment of
income had been substantiated beyond doubt
especially in a situation where the return of
income was not filed within the due date and the
Original JDA was found during survey
operation and return was filed in response to
Section 148 notice issued thereafter only?”8/67
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8. At the time of the disposal of the main appeal by ITAT vide
Impugned Common Order dated 04.03.2016 which was heard on
29.12.2015, the Assessee had taken an alternative plea that the Assessee
was entitled to the benefit of Section 80IB(10) of the IT Act which
according to the Assesee was not considered by the ITAT while passing
the Impugned Common Order dated 04.03.2016.
9. The learned counsel for the Assessee submitted that the Assessee
will be satisfied, if the below mentioned substantial question of law is
decided. It reads as under:-
4. Whether the Appellate Tribunal is correct in Law in
rejecting the alternate grounds for computing such
surplus/profits from the housing project pertainng
to the share of Appellant Company under the head
– “Income from Business” which alternate ground
was based on the Revenue’s stnad as well as the
decision to compute capital gains based on the
unregistered JDA?”
10. It is noticed that though the Assesee also raised above question
of law as substantial question of law, it was omitted to be framed as a
substantial question of law to be answered in the Assessee’s Appeal in
T.C.A.Nos.294 to 299 of 2018.
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11. After hearing the arguments, we proceed to frame the following
substantial question of law as the only substantial question of law to be
answered based on the articulation of the case facts and dispute by the
counsels.
12. For the sake of clarity, the above substantial question of law is
re-phrased as follows:-
“Whether the assessee was entitled to the benefit of
Section 80IB(10) of the IT Act, in absence of a claim for
deduction under Section 80AC of the IT Act, in the Return
of Income filed under Section 139 of the IT Act?”
13. It is the case of the Assessee that if the benefit of Section
80IB(10) of the IT Act is extended, it will efface the entire demand which
was confirmed by the Assessing Officer vide Assessment Orders dated
14.05.2012, 14.06.2012 and 15.06.2012 which decision was partly
affirmed by the Appellate Commissioner vide Order dated 28.08.2013
and by the ITAT vide the Impugned Order dated 04.03.2016.
14. It is submitted that if the benefit of the Order of Section
80IB(10) of the IT Act is extended to the Assesse, Impugned Orders of
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the Tribunal will have to be set aside and consequently, the Department’s
appeal also will have to be dismissed.
15. The brief facts of the case are that the Assessee Company had
signed a Joint Venture Development Agreement [JVDA] and an
Agreement for Sale [AOS] both dated 23.11.2005 with a Developer named
M/s.Doshi Housing, a Partnership Firm. As per these Agreements, the
Assessee was required to transfer proportionate share in the land to the
said Developer and as a consideration, for such transfer, the Assessee was
entitled to sell 37.54% of the built up area.
16. The son of the Managing Director of the Assessee Company
was introduced as a partner of the Developer Firm which was engaged to
develop the land which belonged to the Assessee under these Agreements.
17. A part of the sale consideration from the transfer of the land to
the Developer was upfront paid to the son of the Managing Director of the
Assessee who was a partner of the Developer Firm. This was not reflected
in the Returns that were filed by the Assessee.
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18. Assessment was also completed based on the Returns filed by
the Assessee on the capital gains declared by the Assessee Company on
account of the Joint Venture Development Agreement and Agreement For
Sale [JVDA & AOS] both dated 23.11.2005.
19. The capital gain was confined to the indexed value of the land
and was calculated on the Guideline Value of the land. The difference
between the Market Value and the Guideline Value of the land was to be
paid directly to the son of the Managing Director of the Asseesse.
20. Meanwhile, a Survey was conducted under Section 133A of the
IT Act during the year 2012 by the Income Tax Department. During the
survey, statements were also recorded from the Managing Director of the
Assessee Company on 24.01.2012, wherein, it was confirmed that the
share in the profit from the venture was partly given as a consideration to
the son of the Managing Director of the Assessee who was introduced as a
Partner in the Developer Firm, viz., M/s.Doshi Housing.
21. Thus, assessments were completed for the respective
Assessment Years under Section 143(3) read with Section 147 of the IT
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Act on various dates. The details of the Assessment Orders for the
respective Assessment Years are as follows:-
TABLE II
Sl.No. Assessment Year Assessment
Date
1. 2006-07 14.05.2012
2. 2007-08 14.06.2012
3. 2008-09 14.06.2012
4. 2009-10 14.06.2012
5. 2010-11 15.06.2012
22. These Assessment Orders were thus the subject matter of the
Appeal before the Appellate Commissioner in I.T.A.Nos.21 & 32 to
36/12-13/A-I by the Assessee.
23. The Appellate Commissioner dismissed the appeal of the
Assessee for the Assessment Year 2006-2007 vide Order dated
28.08.2013 holding that AOS & JVDA dated 23.11.2005 came into effect
from the same date. Therefore, the Assessee was held liable to pay tax on
capital gains from the sale value of the project equivalent to 37.54 % of
the saleable area that was receiveable by the Assessee in view of Section
2(47) of the IT Act.
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24. Operative portion of the Order dated 28.08.2013 of the
Appellate Commissioner in I.T.A.Nos.21 & 32 to 36/12-13/A-I is
reproduced below:-
“5. I have carefully considered all the facts of the case and
submissions of the learned AR. As was discussed
elaborately in foregoing paragraphs, it was concluded
that retraction by the appellant was countered by the
department successfully. Once this retraction is treated as
meaningless, then all the facts revealed in the statement
given by the MD and others will hold good. This means
all JDA is in operation with effect from 23.11.2005. The
ensuing inference would automatically mean the long
term capital gains would attract from AY 2006-07 and
sale value of the project equivalent to 37.54% of the
salable value is receivable in the hands of the appellant.
It is also clear from the statements and other evidences
that the amount only to the extent of guideline value was
accounted in the books of the appellant willfully and the
balance amount was diverted to Shri.Surendernath’s
account as share profit in the Doshi Housing, the
developer. The AO could orchestrate the facts in this case
successfully within the frame work of law. In view of the
matter, the assessments done by AO are upheld for all the
assessment years. However, the sale proceeds for the
projects ‘Etopia-I’ started reaching the appellant with
regard to its share of built up area for AY 2009-10
onwards, there was no capital gain arisen for AY 2007-
08 and 2008-09. Therefore, the protective assessments
made by the AO for these two years are deleted. Relief
given to this extent.”
25. Since the Assessee received income with regard to its share of
the built up area only from the Assessment Year 2009-2010 onwards, it
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was held that there was no capital gain during the Assessment Years
2007-2008 and 2008-2009.
26. Therefore, the Protective Assessments for these Assessment
Years were deleted. Thus, the appeals were partly allowed and were
partly dismissed by the Appellate Commissioner.
27. On further appeal before the ITAT in appeals as specified in
Column Nos. (iv) & (vi) of Table I to Paragraph No. 4 of this Order, the
ITAT passed the Impugned Common Order dated 04.03.2016 which are
the subject matter of these appeals.
28. The Appellate Commissioner had partly allowed the appeals
filed by the Assessee against penalty that was earlier imposed by the
Assessing Officer under Section 271(1)(c) of the IT Act pursuant to
Assessment Orders dated 14.05.2012, 14.06.2012 and 15.06.2012 for
these Assessment Years. The Appellate Commissioner had partly
allowed the appeal by restricting the penalty to 100% from 300% for
these Assessment Years.
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29. Aggrieved by the aforesaid Common Order dated 28.08.2013 in
I.T.A.Nos.21, 32 to 36 of 2012-13/A1 of the Appellate Commissioner, the
Assessee filed Appeals in I.T.A.Nos.1779-1784/Mds/2013 before the
ITAT.
30. The Assessee had also filed appeals against the Common Order
dated 28.08.2013 of the Appellate Commissioner in I.T.A.Nos.1785 to
1788/Mds/2013 before the ITAT insofar as Penalty Order passed under
Section 271(1)(c) of the IT Act pursuant to Assessment Orders dated
14.05.2012, 14.06.2012 and 15.06.2012 for these Assessment Years.
31. Similarly, the Income Tax Department also filed Appeals before
the ITAT in I.T.A.Nos.1944-1949/Mds/2013 against the aforesaid
Common Order dated 28.08.2013 in I.T.A.Nos.21, 32 to 36 of 2012-
13/A1 of the Appellate Commissioner.
32. The ITAT partly allowed and partly dismissed these appeals
vide Common Order dated 04.03.2016 which are impugned in these Tax
Case Appeals as detailed in the Table I in Paragraph No.4 of this Order.
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33. Insofar as the Impugned Common Order dated 04.03.2016
dropped the penalty imposed on the Assessee under Section 271 of the IT
Act and on other issues arising out of the aforesaid Common Order dated
04.03.2016, the Income Tax Department had earlier filed about 55
Appeals in T.C.A.Nos.354 to 358 of 2021 & T.C.A.Nos.364 to 413 of
2021.
34. Out of these 55 Appeals filed by the Income Tax Department,
only 11 Appeals along with 6 Appeals of the Assessee survive for
consideration before us in these Tax Case Appeals as detailed in Column
No.(iii) & Column No.(iv) of Table I in Paragraph No.4 of this Order.
35. We were informed that many of the appeals filed by the Income
Tax Department were dismissed / disposed on account of Monetary /
Litigation Policy of the Government issued from time to time.
36. Out of 11 Appeals of the Income Tax Department, Appeals in
T.C(A) Nos.355 and 356 of 2021 arise out of Impugned Common
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Order dated 12.05.2017 in M.A.Nos.41&43/Mds/2017 in
I.T.A.Nos.1782 &1783/Mds/2013.
37. The Assessee had earlier filed M.A Nos.39 to 43/Mds/2017 to
modify Impugned Common Order dated 04.03.2016 of the ITAT in
I.T.A.Nos.1779 to 1788/Mds/2013 which were disposed of along with the
Appeals of the Income Tax Department in I.T.A.Nos.1944 to
1949/Mds/2013.
38. T.C.A.No.396 of 2021, T.C.A.No.390 of 2021 and
T.C.A.No.411 of 2021 have been filed by the Income Tax Department
against Impugned Common Order dated 04.03.2016 of the ITAT in the
following Appeals whereby penalty imposed were dropped / modified.
The other surviving appeals of the Income Tax Department insofar as
reduction in penalty imposed under Section 271(1)(c) of the IT Act from
300% to 100% .
39. The Income Tax Department had filed I.T.A.Nos.1945 &
1946/Mds/2013 for the Assessment Year 2007-2008 and the Assessment
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Year 2008-2009 against the cancellation of protective demand for these
Assessment Years.
40. I.T.A.Nos.1944, 1947, 1948 & 1949/Mds/2013 were filed
before the ITAT against the Order of the Appellate Commissioner by the
Income Tax Department, whereby 300% penalty imposed by the
Assessing Officer for the Assessment Year 2006-2007, 2009-2010, 2010-
2011 and 2011-2012 under Section 271(1)(c) of the IT Act was reduced to
100%.
41. These Appeal in I.T.A.Nos.1944, 1947, 1948 &
1949/Mds/2013 were filed by Income Tax Department before the ITAT.
42. Details of these Appeals are as under:-
Table III
Sl.Nos.in T.C.(A).Nos. Assessment Year Impugned
Table -1 in Order dated
Para 4 of this
04.03.2016 in
Order.
the Asseesse’s
Appeal before
the ITAT
3 393 of 2021 2006-2007 I.T.A.No.1944/
Mds/2013
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Sl.Nos.in T.C.(A).Nos. Assessment Year Impugned
Table -1 in Order dated
Para 4 of this
04.03.2016 in
Order.
the Asseesse’s
Appeal before
the ITAT
4 396 of 2021 2006-2007 I.T.A.No.1785/
Mds/2013
10 390 of 2021 2009-2010 I.T.A.No.1786/
Mds/2013
11 402 of 2021 2009-2010 I.T.A.No.1947/
Mds/2013
15 378 of 2021 2011-2012 I.T.A.No.1949/
Mds/2013
17 411 of 2021 2011-2012 I.T.A.No.1788/
Mds/2013
43. Earlier, the Assessee filed M.A.Nos.41 & 42/Mds/2016 in
I.T.A.Nos.1780 & 1781 of 2013 under Section 154 of the IT Act to
modify Order dated 04.03.2016 of the ITAT in the following Appeals of
the Assessee:-
Table IV
Assessment Year M.A.Nos. Impugned Order dated
04.03.2016 in the
Asseesse’s Appeal
before the ITAT
2007-2008 41/Mds/2016 1780/Mds/2013
2008-2009 42/Mds/2016 1781/Mds/201320/67
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44. These Miscellaneous Applications were disposed of by the
ITAT vide its Order dated 20.05.2016. Operative Portion of the Order
dated 20.05.2016 of the ITAT in M.A.No.41/Mds/2016 in I.T.A.No.1780
of 2013 and M.A.No.42/Mds/2016 in I.T.A.No.1781 of 2013 for the
Assessment Year 2007-2008 and the Assessment Year 2008-2009
respectively are reproduced below:-
“3. We have gone through the Order of the
Tribunal. Admittedly, there is a mistake in
mentioning the figure as Rs.8,99,590/- instead of
Rs.68,99,590/-. It is a typographical mistake and it
should be read as Rs.68,99,590/- in para 20 at page
73.
4. …..
5. We have heard both the parties. In our
opinion for the assessment year 2008-09, the
assessment is to be treated as substantive assessment
and the income has to be computed as short term
capital gains or long term capital gains as the case
may be. Thus, the amended para 23 reads as follows:
“23. Since, we have vacated the finding of
the CIT (Appeals), for the assessment year
2006-07 by observing that there is no
transfer u/s.2(47)(v) of the Act, the
assessment for the assessment year 2008-
09 is to be treated as substantive as
discussed in earlier paragraph for the
assessment year 2007-08 and the income
has to be computed as long term capital
gains or short term capital gains, as the
case may be, after giving an opportunity21/67
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shall work out the capital gains afresh.
Accordingly, the levy of interest u/s.234A
for the Assessment Year 2009-09 is to be
computed, which is mandatory in nature.”
6. …..
7. In our opinion, the assessment year in para
25 was wrongly mentioned as 2009-2010 instead of
Assessment Year 2008-2009 and it should be read as
Assessment Year 2008-09 only. After this correction,
para 25 to be read as follows:
“25. Before us, the ld. AR submitted that
report as well as document have no
relavance with the assessment of the
assessee. However, the assessee has not
produced anything to prove the cost of
construction. It is the duty of the assessee
to produce necessary evidence to show
that the assessee actually incurred
towards improvement of capital asset.
However, the assessee asked one more
opportunity to see the document collected
by the A.O., which was relied upon by him,
at the back of the assessee. In view of
this, we remit this issue to the file of the
AO for fresh consideration and the
assessee is directed to produce necessary
evidence in support of the claim of the
assessee, as the AO used the report
collected from the Commercial
Department, Maharashtra viz. MahaVat
without providing the same to the
assessee.
Accordingly, in the assessment year
2008-09, the income has to be computed22/67
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T.C.A.Nos.294 of 2018 & etc., batchas short term capital gains or long term
capital gains, as the case may be.”7.1. Further, we make it clear that there is no
change in final result of the appeals.
8. In the result, the Miscellaneous Applications
are partly allowed.”
45. The Assessee thereafter filed M.A.Nos.264 to 268/Mds/2016
for the Assessment Years 2007-2008 to 2011-2012. M.A.Nos.264 to
268/Mds/2016 were filed for Rectification of the Order dated 20.05.2016
of the ITAT passed in M.A.Nos.41 & 42/Mds/2016 in I.T.A.Nos. 1779 to
1784/Mds/2013.
46. Before the ITAT, it was submitted that Protective Assessment
had become substantive assessment and therefore, no further directions
were required from the ITAT so as to compute capital gains as the ITAT
had given direction that protective assessment automatically converted
into substantive assessment for the Assessment Years 2007-2008 to 2011-
2012. Thus, the ITAT vide its Order dated 20.01.2017 disposed the
aforesaid Miscellaneous Applications.
47. The ITAT ordered few modifications to the Common Order
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dated 04.03.2016 vide its Order dated 20.01.2017 .
48. Paragraph 4 of the Order dated 20.01.2017 in M.A.Nos.264 to
268/Mds/2016 for the Assessment Years 2007-2008 to 2011-2012 reads
as under:-
“4. We heard both the parties and perused the
material on record. We find force in the argument of the
Ld. AR. Admittedly, this Tribunal vacated the assessment
order for the Assessment Year 2006-07 holding that there
are no transfer so as to attract tax on capital gains,
thereafter observed that assessment orders from the
Assessment Years 2007-08 to 2011-12 to be considered as
substantive assessments. Being so, there is no necessity of
giving further finding by the Tribunal with regard to
computation of long term capital gain and short term
capital gain in these assessment years.
4.1 Accordingly, para 23 of this Tribunal order
cited supra reads as follows:
“23. Since, we have vacated the finding of
the CIT (Appeals) for the Assessment Year
2006-07 by observing that there is no
transfer u/s. 2(47)(v) of the Act, the
assessment for the assessment year 2008-09
is to be treated as substantive as discussed in
earlier paragraph for the Assessment Year
2007-08 and the income has to be computed
after giving an opportunity of hearing to the
assessee and the AO shall work out the
capital gains afresh. Accordingly, the levy of
interest u/s. 234A for the Assessment Year
2008-09 is to be computed, which is
mandatory in nature.”4.2 In other words, the Assessment Orders which
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2011-12 to be considered as substantive assessments and
it is to be enforced subject to out findings with reference
to other grounds raised by the assessee in its appeals for
these Assessment Years. There are no other changes in
the Order of the Tribunal cited supra, other than findings
in our Order in M.A.Nos.41 & 42/Mds/2016 dated
20.05.2016.”
49. The Assessee thereafter once again filed fresh application for
Rectification of the Impugned Common Order dated 04.03.2016 in
I.T.A.Nos.1779 to 1788, 1944 to 1949/Mds/2013 vide following
Miscellaneaous Applications as detailed below:-
Table V
Assessment Year Miscellaneous Impugned Order
Application No. dated 04.03.2016
in the Asseesse’s
Appeal before
the ITAT
2007-2008 39/Mds/2017 1780/Mds/2013
2008-2009 40/Mds/2017 1781/Mds/2013
2009-2010 41/Mds/2017 1782/Mds/2013
2010-2011 42/Mds/2017 1783/Mds/2013
2011-2012 43/Mds/2017 1784/Mds/2013
50. The ITAT disposed of the above Miscelleneous Applicaiton
Nos.39-43/Mds/2017 vide Common Order dated 12.05.2017. The ITAT
concluded that there was no development activity in the Assessment Year
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2006-2007 in terms of Section 2(47)(v) of the Act. Therefore, capital gain
was to be computed only from the Assessment Years 2007-2008 & 2011-
2012 and not from the Assessment Year 2006-2007.
51. The ITAT further held that Assessing Officer has to consider the
issue of computation of capital gains on sale of assessee’s share of
constructed area, along with the undivided share in land, if it was actually
transferred by the assessee in these Assessment Years.
52. In other words, the Assessing Officer could not bring into tax
the entire share in the constructed area along with the undivided share in
land, only on receipt basis of constructed area as transferred unless there is
actual transferin terms of Section 45 of the Act by the assessee in the light
of the Judgment of this Court in “CIT Vs. Dr.D.L.Racachandra Rao”,
[199] 236 ITR 51 (Mds.) and “Statesman Limited Vs. ACIT”, 114 ITD
595 (Kol.) wherein it was held that the Tribunal was right in law in
directing bifurcation of the capital gains into long term capital gains
pertaining to land and short term capital gains pertaining to superstructure.
53. Operative portion of the Impugned Common Order dated
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12.05.2017 reads as under:-
“6. We have heard both the parties and perused the
material on record. Now, the main grievance of the
assessee is with regard to computation of capital gains for
assessment year 2007-08 to 2011-12. It was submitted
that the assessee has not effected any sale of constructed
area and the assessee only sold the land vide sale
agreement dated 23.11.2005 and there cannot be any
capital gains on sale of constructed area which was by the
Developer only. Contrary to this, ld. D.R submitted that
the assessee has received 37.54% of saleable value of
property in constructed area for exchange of 62.46% area
of land. So, the sale of constructed area of 37.54% of total
area of constructed area was sold by the assessee in these
assessment years viz., 2007-08, 2008-09, 2009-10, 2010-
11 and 2011-12. Being so, it is to be taxed. In our
opinion, the Tribunal has given findings on the basis of
JDA entered by the assessee on 23.11.2005. Hence,
consideration for transfer of 62.46% of area of land
transferred by the assessee to the Developer under JDA
would be the constructed area allotted to the assessee
under the JDA.
It was also given findings that there was no transfer
in terms of Section 2(47)(v) of the Act in the A.Y 2006-07
in view of the no action by Developer in this assessment
year, though the JDA was entered between the assessee
and Developer on 23.11.2005. The capital gains to be
computed for assessment years 2007-08 & 2011-12 and
not for assessment year 2006-07 and there was no
development activity in the assessment year 2006-07 in
terms of Section 2(47)(v) of the Act.
7. Now, the contention of the ld. A.R is that in
respect of sale of flats i.e., constructed area, it was not
sold by the assessee. So, it cannot be brought to tax in the
hands of assessee. In our opinion, this facts is required to
be verified by the Assessing Officer whether actual sale of
assessee’s share in constructed area was sold by the
assessee or not. In the event of sale of constructed area by
assessee, then computation of capital gains on sale of
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assessee’s share of constructed area is to be brought to tax
under the head “capital gains” after giving due deduction
enumerated u/s. 48 of the Act. The AO has to consider this
issue of computation of capital gains on sale of assessee’s
share of constructed area, along with the undivided share
in land, if it was actually transferred by the assessee in
these assessment years. In other words, the AO cannot
bring into tax the entire share of constructed area along
with the undivided share in land, only on receipt basis of
constructed area as transferred unless there is actual
transfer in terms of Section 45 of the Act by the assessee.
It is needless to say that the AO has to consider the
undivided share of cost in land, which is embedded with
flats, which was sold by the assessee while computing
capital gains. The Assessing Officer has to take note of
the judgement of the jurisdictional High Court in the case
of CIT Vs. Dr.D.L.Racachandra Rao in [199] 236 ITR 51
(Mds.) wherein held that the Tribunal was right in law in
directing bifurcation of the capital gains into long term
capital gains pertaining to land and short term capital
gains pertaining to superstructure. For the same
proposition, the order of the Tribunal in the case of
Statesman Limited Vs. ACIT in 114 ITD 595(Kol.) wherein
held that assessee company having transferred ownership
rights only in respect of 56.8 percent of land to the
developer under the development agreement and retained
ownership of 43.2 per cent of land, and later sold four
floors in the new multi-storeyed building constructed by
the developer along with proportionate undivided shares
in land to different purchasers, the sale consideration has
to be apportioned between the land and superstructure,
and gain arising and disposal of land is long term capital
gain while the gain on disposal of four floors of the
building is to be treated as short term capital gain.
8. With this observation, these Miscellaneous
Applications filed by the assessee are disposed off
accordingly.”
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54. The Respondent-Income Tax Department has thus filed
T.C.A.Nos.355 of 2021 & 356 of 2021 as detailed in Sl.Nos.4 & 6 of
Table I to Paragraph No.4 of this Order against the Impugned Common
Miscellaneous Order dated 12.05.2017 passed by the Tribunal under
Section 254 (2) of the IT Act.
Submission of the Appellant:
55. The learned counsel for the Assessee submitted that the issue is
no longer res-integra and is covered by a plethora of decisions of the
Courts. Particularly, our attention was drawn to the decision of this Court
rendered in “Commissioner of Income Tax Vs. Sanghvi & Doshi
Enterprise”, (2013) 255 CTR (Mad) 156 and “Commissioner of Income
Tax Vs. M/s.Ceebros Property” in T.C.A.No.137 & T.C.A.No.138 of
2009 dated 02.11.2012. It is submitted that the Appellant was entitled to
the benefit of Section 80IB(10) of the IT Act.
56. It is submitted that the decision of this Court in “Commissioner
of Income Tax Vs. Sanghvi & Doshi Enterprise”, (2013) 255 CTR
(Mad) 156 has also been affirmed by the Hon’ble Supreme Court in
“Commissioner of Income Tax Vs. Sanghvi and Doshi Enterprise”,
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(2017) 84 taxmann.com 241 (SC).
57. That apart, references were also made to few other decisions in
the following cases:-
i. Commissioner of Income Tax Vs. Shravanee
Constructions [81 CCH 253].
ii. Commissioner of Income Tax Vs. Radhe Developers
[(2012) 17 Taxman.Com.156 (Gujarat) 341 ITR 403].
iii. The Commissioner of Income Tax Vs. Sri Lakshmi
Brick Industries [(17.03.2021-MADHC) TCA.Nos.387
to 394 of 2013:MANU/TN/1844/2021]
iv. M/s.Bashyam Constructions P Ltd. Vs. The Deputy
Commissioner of Income Tax dated 30.01.2019.
v. Astorica Leathers Vs. Income Tax Officer, Business
Award III(1) in TCA No.533 & 534 of 2018.
58. On the other hand, the learned Senior Standing Counsel for the
Income Tax Department submitted that the benefit of Section 80IB (10) of
the IT Act is not available to the Assessee as the Assessee had not claimed
benefit under Section 80IB(10) of the IT Act in the returns filed under
Section 139 (1) of the IT Act. It is submitted in view of the express
language in Section 80AC of the IT Act, the benefit of Section 80IB (10)
of the IT Act cannot be allowed.
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59. That apart, it is submitted by the learned Senior Standing
Counsel for the Income Tax Department that the whole assessment
proceedings were based on the definition of “transfer” in Section 2 (47) of
the IT Act. It is submitted that in the background of the Survey conducted
during the year 2012 and the information gathered, statements were
recorded during the course of Survey, which has not been retracted.
60. It is therefore submitted by the learned Senior Standing Counsel
for the Income Tax Department that the benefit of Section 80IB (10) of
the IT Act was not available to the Assessee. It is further submitted that
the Assessing Officer also did not get a chance to examine the issue as to
whether the Assessee was entitled to the benefit of Section 80IB (10) of
the IT Act since it was not claimed in the Returns filed under Section
139(1) of the IT Act. In this connection, reference was made to the
following decisions of the Hon’ble Supreme Court:
i. Goetze (India) Ltd. Vs. Commisioner of Income
Tax, (2006) 284 ITR 323 / 2006 SCC Online SC
1446.
ii. Shriram Investments Vs. Commissioner of Income
Tax – III, (2024) 167 Taxmann.com 139 (SC).
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61. That apart, the learned Senior Standing Counsel for the Income
Tax Department also drew our attention to the decision of the Hon’ble
Supreme Court in “Kunhayammed Vs. State of Kerala”, 2001(129) ELT
11(SC).
62. Explaining the case, the learned Senior Standing Counsel for
the Income Tax Department submitted that the Assessee Company’s profit
pertaining to the sale of land for approximately Rs.25 Crores was
channelized through the son of the Managing Director as a partner in the
Developer Firm who did not contribute anything for developing the
project and earned share in the profits alone which was actually the
suppress sale consideration of the Assessee Company.
63. It is submitted by the learned Senior Standing Counsel for the
Income Tax Department that the suppression of capital gains in the form
of re-routing the profits to the son of the Managing Director of the
Assessee Company who was a partner of the Developer Firm, the Assessee
Company concealed the capital gains and reduced the profit by
introducing a bogus claim for improvement of cost by M/s.Takshil
Trading Private Limited, Mumbai which had allegedly undertaken the
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contract for the value of Rs.4.52 Crores. The claim of the said
M/s.Takshil Trading Private Limited was not established as genuine in
nature and therefore, cost of improvement was liable to be rejected.
64. It is also submitted by the learned Senior Standing Counsel for
the Income Tax Department that the crucial point to be decided is the year
of taxation and as per the original JVDA, by which the Assessee had
handed over possession of 62.46% of the total area of land in lieu of
Agreement to receive 37.54% of the constructed space and as per the
JVDA possession was handed over and the same was accepted during the
Assessment Year 2006-2007. Therefore, the long term capital gains on
the first transaction between the Assessee Company and the Developer is
to be taxed in the Assessment Year 2006-2007 and the subsequent gains
when the flats are allotted to the Assessee Company and sold in the market
and the year of such flat is to be taxed accordingly.
65. It is submitted that provisions of Section 2(47)(v) of the IT Act
are attracted in view of the JVDA entered between the Assessee Company
and the Developer Firm i.e., M/s.Doshi Housing on 23.11.2005 which was
found during the course of the survey under Section 133A of the IT Act
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done on 24.01.2012.
66. It is submitted that the ITAT erred in law in not considering the
fact that Smt.Rani Gopinath in a statement recorded had clearly stated that
the JVDA was in vogue and amount was paid to her son Surendranath of
about Rs.25 Crores belonging only to CCPL by which she offered an
additional income of Rs.25 Crores.
67. It is further submitted that in the case of “Pullengod Rubber
Produce Company Limited Vs. State of Kerala”, 91 ITR 18, it was held
that ‘admission’ is an extremely important piece of evidence though it is
not a conclusive one. Therefore, a statement made voluntarily by the
Assessee would form the basis of the assessment. The mere fact that the
Assessee had retracted the statement could not make the statement
unacceptable. Burden lay on the Assessee to establish that the admission
made in the statement at the time of survey was wrong and infact there
was no additional income.
68. The learned Senior Standing Counsel for the Income Tax
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Department submitted that the Hon’ble Supreme Court in “Narayanan
Phagawan Tharao Gosavi Vatajiwale Vs. Gopal”, AIR 1960 SC Page
100 and that of the Kerala High Court in the case of “V.Kunhandu Vs.
CIT” reported in 219 ITR 235 have all held that statements are also
binding and can form the sole basis for the assessment if they are not
effectively retracted.
69. It is also submitted by the learned Senior Standing Counsel for
the Income Tax Department that the ITAT failed to note that in respect of
bogus cost of improvement which was clearly proved by the Income Tax
Department that the claim was bogus in nature and the bills were supplied
by a Hawala Operator in Bombay and the disallowance made by the
Assessing Officer was therefore proper and it has been wrongly set aside
by the Tribunal without any rhyme or reason.
70. It is submitted by the learned Senior Standing Counsel for the
Income Tax Department that all the conditions are satisfied for levying
capital gains for the Assessment Year 2006-2007 and possession was
given and also conditions stipulated by Section 53A of the Transfer of
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Property Act, 1882 was satisfied. Therefore, it is submitted that the ITAT
erred in holding that the substantive assessment to be made during the
Assessment Years 2007-2008 and 2008-2009 which is not proper.
71. It is also submitted by the learned Senior Standing Counsel for
the Income Tax Department that the ITAT erred in remitting the claim
pertaining to the cost of improvement for the Assessment Year 2007-
2008 to the file of Assessing Officer without recording any reason to
differ from the finding rendered by the Assessing Officer and that of the
Appellate Commissioner, especially when all the materials were available
before the ITAT. Therefore, it is submitted that remand itself is bad,
which is contrary to the Judgment of this High Court in Cholamandalam
MS General Insurance Company Limited Vs. Royal Sundaram
Alliance General Insurance Company Limited reported in (2013) 357
ITR Page 0597 (Mad.).
72. It is submitted by the learned Senior Standing Counsel for the
Income Tax Department that the ITAT did not take into account the
fraudulent act done and the transaction from M/s.Takshil Trading Private
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Limited who is a dealer from Maharashtra was suspicious, who issued
false bills without delivery of goods and that the Assessing Officer had
issued Notice under Section 133(6) of the IT Act to the Deputy
Commissioner (Vigilance) on 07.02.2012, seeking particuars of the said
Company and that the Assistant Commissioner of Sales-Tax had held
investigation and stated that the transactions were not genuine and no
books of accounts were found and the said Company had not done any
genuine business and had only done cheque discounting and has indulged
in issue of bogus tax invoices.
73. It is submitted that the incorrect shifting of taxable profits to a
related enterprises by claiming deduction under Section 80IB(10) of the
IT Act was on account of JVDA dated 23.11.2005 whereby the Assessee
and the Developer M/s.Doshi Housing by which Assessee was to receive
sale proceeds for 34.5% of the constructed area in Project ‘Etopia-I’ and
the first year of sale proceeds of the constructed area was for the
Assessment Year 2006-2007 was about Rs.35 Crores approximately and
in order to suppress the true and correct profit, guideline value was shown
as difference between the actual sale proceeds of the plots belonging to the
Assessee share and the guideline value of the land sold during the year
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were shifted to that of the firm. The reallocated profits did not suffer
taxation since the Company had claimed deduction under Section
80IB(10) of the IT Act on such profits and the profits pertaining to the
Company which was stipend of by introducing M.G.Surendranath as a
partner for which the firm did not pay taxes on his profits for claiming
deduction under Section 80IB(10) of the IT Act and also the partner did
not pay taxes since the claim of the firm was exempt under Section
10(2A) of the IT Act.
74. It is submitted that the essential documentary evidence to prove
the genuineness of the expenditure incurred was never produced by the
Assessee nor it was shown that the Assessee has funds to support the said
expenditure and had claimed it as a current liability in Schedule – H which
payment had not been squired with the creditors and after a passage of six
years, no tax has been deducted on the said claim of expenditure towards
the cost of improvement.
75. The learned Senior Standing Counsel for the Income Tax
Department submitted that the claim for deductions by the Assessee is
fully covered as per the settled law of the Hon’ble Supreme Court in the
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case of “Goetze (India) Limited Vs. Commisioner of Income Tax”,
(2006) 284 ITR 323 / 2006 SCC Online SC 1446 which held that
restrictions under Section 80A(5) of the IT Act was limited to the power
of the Assessing Authority to entertain new claim other than by a Revised
Return and certainly did not impinge upon the power of the Appellate
Commissioner and the Tribunals. Therefore, the learned Appellate
Commissioner is fully empowered to admit the additional grounds as per
the settled law.
76. It is submitted that the decision of the Bombay High Court in
“EBR Enterprises Vs. Union of India”, (2019) 107 Taxman.com 220,
was not applicable to the facts and circumstances of the Assessee’s case
since the issue was confined to revisional power of the Commissioner
under Section 264 of the IT Act with attendant restrictions. It was further
submitted that the above position of law has been upheld in the following
decisions:-
i. Anchor Pressing Private Limited Vs. Commissioner
of Income Tax, (1986) 161 ITR 159 SC.
ii. NTPC Limited Vs. Commissioner of Income Tax,
(1988) 229 ITR 383 SC.
iii. Commissioner of Income Tax Vs. Sam Global
Securities Limited, (2014) 360 ITR 682 (Delhi).
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iv. Commissioner of Income Tax Vs. Jai Parabolic
Springs Limited, (2008) 306 ITR 42, Delhi HC.
v. Commissioner of Income Tax Vs. Nataraj Stationery
Products Private Limited, (2009) 312 ITR 222.
vi. Commissioner of Income Tax Vs. Rose Services
Apartment India Private Limited, (2010) 326 ITR 100,
Delhi HC, Division Bench.
vii. Principle Commissioner of Income Tax Vs. Western
Shipyard Limited in I.T.A.No.644/2015.
viii. Influence Vs. Commissioner of Income Tax, (2015)
Taxman.com 192 Delhi HC.
ix. Principle Commissioner of Income Tax Vs. E-Funds
International Private Limited, (2015) 379 ITR 292
(Delhi).
x. Oracle (BPO) Services Private Limited Vs. Principle
CIT in I.T.A.No.593/2018 dated 07.01.2019.
xi. Pruthvi Brokers and Share Holders Private Limited
Vs. Commissioner of Income Tax, 349 ITR 336.
xii. Jute Corporation of India Vs. Commissioner of
Income Tax and another, (1991) 187 ITR 688 (SC).
xiii. Commissioner of Income Tax Vs. Ramco
International, 221 CTR 491 (P&H).
xiv. Assistant Commissioner of Income Tax Vs. Amber
Enterprises in I.T.A.No.5176 MUM/2014.
xv.Doshi Estate Vs. Assistant Commissioner of Income
Tax in I.T.A.No.966/CHNY/2017.
77. It is the contention of the Income Tax Department that by
giving possession of the land the Developer, the Assessee had sold a part
of the undivided share in the land through a Power of Attorney in favour
of the Partnership concern in which the son of the Managing Director of
the Assessee was partner. According to the Income Tax Department, it
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clearly indicates that since the possession of the land was transferred to
the Partnership concern, there was income the hands of the Assessee
during the Assessment Year 2006-2007.
78. Secondly, it was contested by the Income Tax Department that
the ITAT erred in remitting the case back to the Assessing Authority
whose decision was affirmed by the Appellate Commssioner.
79. It is submitted that the ITAT failed to note that the bogus cost
of improvement has been well established in the Assessment Order and the
bills were supplied by the Hawala Operator in Bombay. It is the case of
the Income Tax Department that a sum of Rs.25 Crores was paid to the
Assessee’s Managing Director’s son who was introduced as a partner in the
Joint Venture between the Assessee and the said Partnership Firm.
80. It is submitted that during the course of survey, statement was
recorded from the Managing Director of the Assessee Company, wherein,
the Managing Director offered to pay tax on capital gains based on the
value which was to be substituted as per the terms of the Joint Venture
Development Agreement (JVDA) between her son who was present
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during the survey.
81. Further, it is the case of the Income Tax Department that by
virtue of original Joint Venture Development Agreement (JVDA) dated
23.11.2005, the Assessee had agreed to hand over possession of 62.46% of
the total land area in lieu of the Agreement to receive 37.54% of the
constructed space and that the said Joint Venture Development Agreement
(JVDA) clearly stated possession was handed over the same which was
accepted.
82. We have considered the arguments advanced by the learned
counsel for the Assessee and learned Senior Standing Counsel for the
Income Tax Department.
83. Basically there are four sets of appeal before us. As far as the
Assessee is concerned, the Assessee has confined the scope of its appeal
with regard to benefit under Section 80IB(10) read with Section 80AC of
the IT Act. As far as the appeals of the Income Tax Department are
concerned, there are three categories of appeals which arise out of
miscelleanous orders and order dropping penalty in view of the reward
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order of the ITAT.
84. In these appeals, we are confining our opinion to answer to the
supplementary question of law framed by us as was requested by the
learned counsel for the Assessee. If the benefit of Section 80IB(10) of the
IT Act is extended to the Assessee, rest of the issue will become academic.
85. Section 80IB of the IT Act was inserted in the year 1999 vide
Finance Act, 1999 with effect from 01.04.2000. The provision has seen
many amendments since its insertions in year 1999 vide Finance Act,
1999 with effect from 01.04.1999.
86. As far as the period covered by these Tax Case Appeals are
concerned, sub-section (10) to Section 80IB of the IT Act as substituted
by the Finance Act (No.2), 2004 with effect from 01.04.2005 later as
amended by Finance Act (No.2), 2009 with effect from 01.04.2010 are
relevant and few other minor amendments during the interregnum.
87. During the period covered by the Assessment Year 2006-2007,
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sub-section (10) to Section 80IB of the IT Act had only four clauses viz.,
(a) to (d). Clauses (e) and (f) to sub-section (10) to Section 80IB of the
IT Act were inserted by Finance Act (No.2), 2009 with effect from
01.04.2010. Thus, for the period after 01.04.2010, sub-clauses (e) and (f)
to sub-section (10) to Section 80IB of the IT Act as inserted by Finance
Act (No.2), 2009 with effect from 01.04.2010 are to read along for the
period in dispute covered by the appeal for Assessment Year 2011-2012.
88. Sub-section (10) to Section 80IB of the IT Act as it stood with
effect from 01.04.2005 is relevant from 01.04.2005 for the Assessment
Year 2006-2007. Sub-section (10) to Section 80IB of the IT Act as it
stood amended with effect from 01.04.2010 is relevant from 01.04.2010
for the Assessment Year 2011-2012. Following table gives the snapshot
of Sub-section (10) to Section 80IB of the IT Act with the above
amendments:-
Table VI
Section 80IB(10) of the IT Act Section 80IB(10) of the IT Act
with effect from 01.04.2005 with effect from 01.04.2010
“10. The amount of deduction in
the case of an undertaking
developing and building housing
projects approved before the 31st ’31st day of March, 2007′ was
day of March, [2007] by a local substituted with ’31st day of44/67
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with effect from 01.04.2005 with effect from 01.04.2010
authority shall be hundred per March, 2008′ vide amendment
cent of the profits derived in the to the above section vide
previous year relevant to any Finance Act (No.2), 2009 with
assessment year from such effect from 01.04.2009.
housing project if, —
(a) such undertaking has
commenced or commences
development and
construction of the
housing project on or
after the 1st day of
October, 1998 and
completes such
construction, —
(i) in a case where a housing
project has been approved
by the locak authority
before the 1st day of of
April, 2004, on or before
the 31st day of March,
2008;
(ii)in a case where a housing
project has been, or, is Inserted by the Finance Act,
approved by the local 2010 with effect from
authority on or after the 1st 01.04.2010.
day of April, 2004, [but
not later than the 31st day
of March, 2005] within
four years from the end of
the financial year in which
the housing project is
approved by the local
authority.
Explanation. – For the purposes
of this clause,-
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Section 80IB(10) of the IT Act Section 80IB(10) of the IT Act
with effect from 01.04.2005 with effect from 01.04.2010
(i) in a case where the
approval in respect of the
housing project is obtained
more than once, such
housing project shall be
deemed to have been
approved on the date on
which the building plan of
such housing project is
first approved by the local
authority;
(ii)the date of completion of
construction of the housing
project shall be taken to be
the date on which the
completion certificate in
respect of such housing
project is issued by the
local authority;
(iii)[in a case where a
housing project has been
approved by the local Inserted by the Finance Act,
authroity on or after the 2010 with effect from
1st day of April, 2005, 01.04.2010.
within five years from the
end of the financial year
in which the housing
project is approved by
the local authority.]
(b) the project is on the size of a
plot of land which has a
minimum area of one acre:
Provided that nothing in clause
(a) or clause (b) shall apply to a
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T.C.A.Nos.294 of 2018 & etc., batchSection 80IB(10) of the IT Act Section 80IB(10) of the IT Act
with effect from 01.04.2005 with effect from 01.04.2010
housing project carried out in
accordance with a scheme framed
by the Central Government or a
State Government for
reconstruction or redevelopment
of existing buildings in areas
declared to be slum areas under
any law for the time being in
force and such scheme is notified
by the Board in this behalf;
(c) the residential unit has a
maximum built-up area of one
thousand square feet where such
residential unit is situated within
the city of Delhi or Mumbai or
within twenty-five kilometres
from the municipal limits of
these cities and one thousand and
five hundred square feet at ][any
other place;
(d) the built-up area of the shops
and other commercial
establishments included in the The word 'five' per cent was
housing project does not exceed substituted by the word 'three'
five per cent. of the aggregate per cent vide Finance Act,
built-up area of the housing 2010 with effect from
project or two thousand square 01.04.2010.
feet, whichever is less.
(e) not more than one Inserted by the Finance Act,
residential unit in the housing 2010 with effect from
project is alloted to any person 01.04.2010.
not being an individual; and
(f) in a case where a residential Inserted by the Finance Act,
unit in the housing project is 2010 with effect from
allotted to a person being an 01.04.2010.
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Section 80IB(10) of the IT Act Section 80IB(10) of the IT Act
with effect from 01.04.2005 with effect from 01.04.2010
individual, no other residential
unit in such housing project is
allotted to any of the following
persons, namely:
(i) the individual or the
spouse or the minor
children of such
individual,
(ii)the Hindu undivided
family in which such
individual is the karta,
(iii) any person representing
such individual, the
spouse or the minor
children of such
individual or the Hindu
undivided family in which
such individual is the
karta.]
[Explanation. - For the
removal of doubts, it is
hereby declared that
nothing contained in this
sub-section shall apply to
any undertaking which
executes the housing
project as a works
contract awarded by any
person (including the
Central or State
Government).”
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89. The Joint Development Agreement and Agreement for Sale
are dated 23.11.2005. Therefore, permission of the local authority would
have been after 01.04.2004. Therefore, Clause(a)(ii) to Sub-Section 10 to
Section 80IB of the IT Act is relevant. There are also indication that the
sale from the individual apartments also started flowing to the Assessee
from the year 2009-2010.
90. It has to be noted that the benefit of Section 80IB of the IT Act
was linked for the first time to Section 80AC of the IT Act with effect
from 01.04.2006 vide Finance Act, 2006 as Section 80AC of the IT Act
was inserted by Finance Act, 2006. Section 80AC of the IT Act was not
there in the IT Act when Joint Development Agreement and Agreement
for Sale dated 23.11.2005 were signed with the Developer.
91. Section 80AC of the IT Act as inserted by Finance Act, 2006
with effect from 01.04.2006 read as under:-
Section 80AC. Deduction not to be allowed unless return
furnished.—
Where in computing the total income of an assessee of any
previous year relevant to the assessment year commencing on
the 1st day of April, 2006 or any subsequent assessment year,
any deduction is admissible under section 80-IA or section
80-IAB or section 80-IB or section 80-IC or section 80-ID or49/67
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T.C.A.Nos.294 of 2018 & etc., batchsection 80-IE; no such deduction shall be allowed to him
unless he furnishes a return of his income for such
assessment year on or before the due date specified under
sub-section (1) of section 139.
93. As per Section 80AC of the IT Act as inserted by the Finance
Act, 2006 with effect from 01.04.2006, no deduction is to be allowed
under Section 80-IA or Section 80-IAB or Section 80-IB or Section 80-
IC or Section 80-ID or Section 80-IE of the IT Act, if no Return of
Income was filed under Section 139(1) of the IT Act on or before the due
date specified under sub-section (1) to Section 139 of the IT Act claiming
such deduction under them.
94. In this connection, a reference is invited to the decision of the
Hon’ble Supreme Court in “Goetze (India) Ltd. Vs. Commissioner of
Income Tax”, (2006) 284 ITR 323 / 2006 SCC Online SC 1446, wherein
it was held as under:-
“4. The decision in question is that the power of the
Tribunal under Section 254 of the Income Tax Act,
1961 is to entertain for the first time a point of law
provided the fact on the basis of which the issue of law
can be raised before the Tribunal. The decision does
not in any way relate to the power of the assessing
officer to entertain a claim for deduction otherwise
than by filing a revised return. In the circumstances of50/67
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T.C.A.Nos.294 of 2018 & etc., batchthe case, we dismiss the civil appeal. However, we
make it clear that the issue in this case is limited to
the power of the assessing authority and does not
impinge on the power of the Income Tax Appellate
Tribunal under Section 254 of the Income Tax Act,
1961. There shall be no order as to costs.”
95. The aforesaid decision in Goetze (India) Ltd. (cited supra) was
also followed by this Court recently in “Sree Venkateswara Educational
Trust Vs. The Income Tax Officer” in T.C.A.No.168 & 169 of 2020
vide Order dated 02.09.2024 in T.C.A.No.168 & 169 of 2020 which is as
follows:-
“18. A reading of the decision of the Hon’ble Supreme
Court in Goetze (India) Ltd., (cited supra) makes it
clear that it restricts the power of the Assessing
Authority and does not impinge on the power of the
Income Tax Appellate Tribunal (ITAT) under Section
254 of the Act. The Hon’ble Supreme Court has clearly
held that limited to the power of the Assessing Authority
and does not impinge on the power of the Income Tax
Appellate Tribunal under Section 254 of the Income
Tax Act, 1961.
…
24. The Hon’ble Supreme Court in Formica India
Division, Bombay, Burma Trading Corporation Limited
Vs. Collector of Cenral Excise and others, 1995 Supp
(3) SCC 552/1995 (77) ELT 511, had held as under:-
“When it was found that they were liable to pay
duty on the intermediary porduct and had not
paid the same, but had paid the duty on the end
product, they would not ordinarily have complied
with the requirements of Rule 56A. Once the
Tribunal took the view that they were liable to
pay duty on the intermediary product and they51/67
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T.C.A.Nos.294 of 2018 & etc., batchwould have been entitled to the benefit of the
notification had they met with the requirement of
Rule 56A, the proper course was to permit them
to do so rather than denying to them the benefit
on the technical ground that the point of time
when they would have done so had clapsed and
they would not be permitted to comply with Rule
56A after that stage had passed. We are,
therefore, of the opinion that the appellants
should be permitted to avail of the benefit of the
notification by complying at this stage with Rule
56A to the satisfaction of the Department.”
25. In our view also, if assessments are to be
completed, deductions and applciable exemptions that
are otherwise available to an assessee can be extended
by the Assessing Officer to an assessee before finalising
the assessment.
96. The aforesaid decision has been recently reiterated by the
Hon’ble Supreme Court in “Shriram Investments Vs. Commissioner of
Income Tax – III” (cited supra).
97. In “Commissioner of Sales Tax Vs. Auriya Chambers of
Commerce”, (1986) 3 SCC 50 : 1986 SCC (Tax) 449 : (1987) 167 ITR
458 : (1986) 62 STC 327, the Hon’ble Supreme Court held that the rules or
procedures are hand-maids of justice not its mistress. Relevant portion of
the judgement is extracted hereunder:-
“29. It is true that except special provisions indicated
before, there is no specific provision which prescribes a52/67
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T.C.A.Nos.294 of 2018 & etc., batchprocedure for applying for refund in such a case. But
the rules or procedures are handmaids of justice not its
mistress. It is apparent in the scheme of the Act that
sales tax is leviable only on valid transaction. If excess
amount is realised, refund is also contemplated by the
scheme of the Act. In this case undoubtedly sales tax on
forward contracs have been illegally recovered on a
mistaken view of law. The same is lying with the
government. The assessee or the dealer has claimed for
the refund in the revision. In certain circumstances
refund specifically has been mentioned. There is no
prohibition against refund except the prohibition of two
years under the proviso of Section 29. In this case that
two years prohibition is not applicable because the law
was declared by this Court in Budit Prakash Jai Prakash
case on May 3, 1954 and the revision was filed in 1955
and it was dismissed in 1958 on the ground that it had
been filed after a long delay. Thereafter, the assessee
had filed an application before the Sales Tax Officer for
refund. The refund claimed for the first time on May 24,
1959. The Sales Tax Officer had dismissed the
application as barred by limitation under Article 96 of
the First Schedule of the Indian Limitation Act, 1908.”
98. In this connection, attention is also drawn to the decision of the
Hon’ble Supreme Court in “Unichem Laboratories Ltd. Vs.
Commissioner of Central Excise”, 2002 (145) E.L.T. 502 (S.C.) wherein
the Hon’ble Supreme Court held as under:-
“13……There can be no doubt that the authorities
functioning under the Act must, as are in duty bound,
protect the interest of the Revenue by levying and collecting
the duty in accordance with law – no less and also no more.
It is no part of their duty to deprive an assessee of the
benefit available to him in law with a view to augment the53/67
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T.C.A.Nos.294 of 2018 & etc., batchquantum of duty for the benefit of the Revenue. They must
act reasonably and fairly.”
99. The Hon’ble Supreme Court in “Formica India Division,
Bombay, Burma Trading Corporation Ltd. Vs. Collector of Central
Excise and Others.,” 1995 Supp (3) SCC 552, held as under:-
“2. The High Court, however, took note of the fact that no
contention had been raised before the Tribunal that the
appellants should be permitted to meet the requirements of
Rule 56-A of the Central Excise Rules and, therefore, they
cannot be permitted to avail of that benefit in a writ
petition brought under Article 266 of the Constitution.
That indeed was a technical view to take because if the
appellants were entitled to the benefit of the Notification
No. 71/71 CE dated 29.05.1971, to deny that benefit on the
technical ground of non-compliance with Rule 56-A would
be tantamount to permitting recovery of double duty on
the intermediary product. The circumstances in which the
appellants did not pay the duty on the intermediary
produce before putting the same to captive consumption
for producing that stage, the appellants contested the
correctness of the classification and had, therefore, not
paid the duty on the intermediary product. When it was
found that they were liable to pay duty on the
intermediary product and had not paid the same, but had
paid the duty on the end product, they could not
ordinarily have complied with the requirements of Rule
56-A. Once the Tribunal took the view that they were
liable to pay duty on the intermediary product and they
would have been entitled to the benefit of the notification
had they met with the requirement of Rule 56-A, the
proper course was to permit them to do so rather than
denying to them the benefit on the technical ground that
the point of time when they could have done so had
elapsed and they could not be permitted to comply with
Rule 56-A after that stage had passed. We are, therefore,
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T.C.A.Nos.294 of 2018 & etc., batchavail of the benefit of the notification by complying at
this stage with Rule 56-A to the satisfaction of the
Department.”
100. A reading of Section 80AC of the IT Act as extracted above
indicates that to be eligible for deduction under Section 80IB(10) of the
IT Act as also the other provisions referred therein, an assessee should
have to have filed a Return of Income under Section 139(1) of the IT Act
on or before the due date and made a claim.
101. Thus, the restriction to claim the benefit under Section
80IB(10) of the IT Act cannot be imposed on the Assessee for the period
prior to 01.04.2006. In other words, the benefit of Section 80IB of the IT
Act will be otherwise available to the Assessee for the Assessment Year
2006-2007 on the income earned between 01.04.2005-31.04.2006 [i.e.,
Previous Year 2005-2006].
102. Thus, the deduction under Section 80IB(10) of the IT Act has
to be restricted when read along with Section 80AC of the IT Act only
with effect from 01.04.2006, as it contained a restriction for availing
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103. Thus, the requirement of Section 80AC of the IT Act as
inserted by the Finance Act, 2006 with effect from 01.04.2006 cannot be
made applicable to the Assessment Year 2006-2007.
104. Therefore, failure on the part of the Assessee to make a claim
on the income earned during the Previous Year 2005-2006 i.e., between
01.04.2005 and 31.03.2006 which income was assessable during the
Assessment Year 2006-2007 cannot be denied even if no claim was made
in the Return of Income that was filed under Section 139(1) of the IT Act
in view of Para 4 of the decision of the Hon’ble Supreme Court in Goetze
(India) Ltd. (cited supra) and other decisions of the Hon’ble Supreme
Court referred to supra.
105. In these cases, the Assessee is however claiming the benefit of
Section 80IB(10) of the IT Act for the entire period in dispute between
Assessment Years 2006-2007 to 2011-2012 in the light of the decision of
this Court in “Commissioner of Income Tax Vs. Sanghvi & Doshi
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Enterprise”, (2013) 255 CTR (Mad) 156 as affirmed by the Hon’ble
Supreme Court in “Commissioner of Income Tax Vs. Sanghvi and
Doshi Enterprise”, (2017) 84 taxmann.com 241 (SC).
106. In the above case, the Division Bench of this Court in
“Commissioner of Income Tax Vs. Sanghvi & Doshi Enterprise”,
(2013) 255 CTR (Mad) 156, dealt with deduction under Section 80IB(10)
of the IT Act.
107. In “Commissioner of Income Tax Vs. Sanghvi & Doshi
Enterprise”, (2013) 255 CTR (Mad) 156, the substantial questions of law
raised were answered in favour of the Assessee Company and against the
Income Tax Department. The Division Bench thus reframed the
substantial question of law as under:-
“2. In the course of the hearing before this Court, the Revenue,
however, presented a petition for reframing the questions of
law, since the questions admitted did not project the issues
fully. On a perusal of the questions now raised before this
Court, after hearing the learned Senior Counsel appearing for
the assessee, who had no serious objection for reframing the
questions, the following substantial questions of law as
reframed arise for consideration:
1. Whether on the facts and in the circumstances of the
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T.C.A.Nos.294 of 2018 & etc., batchcase, the Tribunal was right in holding that developer or
builder, is eligible for claiming benefit under s.80-IB(10)
and assessee can be treated as developer or builder, eligible
for claiming benefit under s.80-IB(10) of the IT Act?
2. Whether on the facts and in the circumstances of the
case, the Tribunal was right in holding that the assessee had
complied with the condition of submission of completion
certificate from local authority within the time-limit as per
the provisions of s.80-IB(10)(a) of the IT Act?
3. Whether on the facts and in the circumstances of the
case, the Tribunal was right in holding that the assessee is
entitled for the deduction under s.(a) for the housing project
with respect to residential flats with built-up area not
exceeding 1500 Sq.ft even though in the same housing
project, the assessee had constructed flats exceeding built-
up area of 1500 Sq.ft?
4. Whether on the facts and in the circumstances of the
case, the Tribunal was right in holding that the provisions of
s.(a) provide for partial deduction to the housing project
with respect to residential flats with built-up area of less
than 1500 Sq.ft where the same project contains flats with
built-up area exceeding 1500 Sq.ft?”
108. The Division Bench in “Commissioner of Income Tax Vs.
Sanghvi & Doshi Enterprise”, (cited supra) held as under:-
“29. …As rightly pointed out by learned senior counsel
appearing for the assessee, a bare reading of Section
80IB of the IT Act shows that the deduction
contemplated therein is oriented towards the project and
not with reference to an assessee. It is no doubt true that
the project has to be done by the assessee, but then,
when the deduction is specific enough as regards the
particular activity, we fail to see how one should assume
any significance in the matter of considering a
deduction.
30. As rightly pointed out by the learned senior counsel
appearing for the assessee, in the decision in CIT Vs.
Radhe Developers (supra), the Gujarat High Court58/67
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T.C.A.Nos.294 of 2018 & etc., batchconsidered the question on ownership as a condition for
grant of deduction under Section 80IB(10) of the Act in
depth and accepted the case of an assessee similarly
placed. It held that the provisions nowhere require that
developers who are the owner of the land alone would be
entitled for grant of deduction under Section 80IB(10) of
the Act. Going through the decision of the Gujarat High
Court, we have no hesitation in holding that we are in
respectful agreement with the law declared by the
Gujarat High Court”.
109. The said decision was also affirmed by the Hon’ble Supreme
Court in “Commissioner of Income Tax Vs. Sanghvi and Doshi
Enterprise”, (2017) 84 taxmann.com 241 (SC). However, a reading of
the above decision indicates that the benefit of Section 80IB(10) of the IT
Act was claimed by the said Assessee in the Return of Income filed under
Section 139 of the IT Act in the said case.
110. However, for the Assessment Year 2007-2008 [Previous
Year 2006-2007 i.e., on the income earned between 01.04.2006 and
31.03.2007 and thereafter such benefit cannot be extended to the Assessee
for the reasons stated hereinafter in view of the restriction in Section
80AC of the Act.
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111. In this connection, we are duty bound to make a reference to
the decision of the King’s Division Bench in “Cape Brandy Vs. Inland
Revenue Commissioners”, (1921) 1 KB 64, wherein, Rowlatt J. had
expressed the principle in the following words:-
“In a taxing Act one has to look merely at what is clearly
said. There is no room for any intendment. There is no
euqity about a tax. There is no presumption as to tax.
Nothing is to be read in, nothing is to be implied. One
can only look fairly at the language said.”
112. The above view of the King’s Division Bench has been
followed by the Hon’ble Supreme Court in several decisions rendered in
the context of tax case laws. Therefore, the benefit of Section 80IB(10) of
the Act cannot be straight away extended to the Assessee in the light of
the express language in Section 80AC of the IT Act for the rest of the
Assessment Years barring Assessment Year 2006-2007.
113. In this case, admittedly, no such deduction was claimed under
Section 80IB of the Act by the Assessee in the Return of Income filed
under Section 139(1) of the IT Act. Section 80AC of the IT Act makes it
expressly clear that the benefit of the aforesaid provision cannot be
allowed if no Return of Income was filed before the due date specified
under the aforesaid provision of the IT Act. This is the express
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requirement of Section 80AC of the IT Act and therefore, cannot be read
down in a statutory appeal even though, the Assessee would have been
otherwise entitled to the benefit of Section 80IB of the Act but for the
restriction in Section 80AC of the Act. Since, the scope of Section 260A
of the IT Act is limited, we do not have powers similar to the powers
vested with the Supreme Court under Article 142 of the Constitution of
India.
114. The decisions that have been referred to by the Assessee also
do not deal with the cases where there was a failure to make a claim for
deduction in the Return of Income filed under Section 139(1) of the IT
Act under any of the provisions enumerated in Section 80AC of the IT
Act. The cases cited by the Assessee did not deal with a case where
statutory requirements in Section 80AC of the IT Act was not observed.
Therefore, the decisions referred to by the Assessee, cannot come to the
rescue of the Assessee for the rest of the Assessment Years barring
Assessment Year 2006-2007.
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115. We are therefore of the view that the decision of this Court in
“Commissioner of Income Tax Vs. Sanghvi & Doshi Enterprise” (cited
supra) and the other decisions of the Hon’ble Supreme Court (cited supra)
cannot be applied straight away and blindly to allow the deduction under
Section 80IB(10) of the IT Act in view of the express restriction in
Section 80AC of the IT Act for the Assessment Years 2007-2008
onwards.
116. The decision of the Hon’ble Supreme Court in “Goetze
(India) Ltd. Vs. Commisioner of Income Tax”, (2006) 284 ITR 323 /
2006 SCC Online SC 1446 which was referred to supra which has been
followed in few other cases cannot be extended to the Assessee for the
Assessment Years 2007-2008 onwards, as no claim was made by the
Assessee in the Return of Income filed by the Assessee under Section
80IB(10) of the IT Act.
117. It is our prima facie view that claiming deduction in the Return
of Income under Section 139(1) of the IT Act though was only procedural
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and the restrictions in Section 80AC of the Act as inserted for the first
time in the IT Act vide Finance Act, 2006 with effect from 01.04.2006 was
directory and not mandatory. However, such a declaration can be made by
this Court only under Article 226 of the Constituion of India and not under
Section 260A of the Income Tax Act, 1961. In case such challenge is
made, the Court will independently decide the issue.
118. Therefore, the benefit of Section 80IB(10) of the IT Act can be
claimed by the Assessee for the Assessment Year 2007-2008 onwards
subject to a valid challenge to Section 80AC of the IT Act in a separate
and collateral proceeding following the ratio of the Hon’ble Supreme
Court in Auriya Chambers of Commerce, Unichem Laboratories
Limited and Formica India Division (cited supra).
119. Therefore, the substantial questions of law is partly answered
against the Assessee for the period covered between Assessment Years
2007-2008 to 2011-2012 with the above liberty to challenge the restriction
in Section 80AC of the Act in the manner known to law.
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120. Therefore, the substantial question of law in T.C.A.No.294 of
2018 for the Assessment Year 2006-2007 are answered in favour of the
Assessee and answered against the Income Tax Department in terms of the
decisions of this Court rendered in Sanghvi & Doshi Enterprise (cited
supra) as apporved by the Hon’ble Supreme Court in the light of the ratio
in Paragraph 4 of Goetze (India) Ltd., (cited supra) and Auriya
Chamber of Commerce, (cited supra).
121. The substantial questions of law in the appeals for the rest of
the Assessment Years i.e., from the Assessment Years 2007-2008 to
2011-2012 covered by Assessee’s appeals in T.C.A.Nos.295 to 299 of
2018 are to be answered against the Assessee and in favour of the Income
Tax Department for the present subject to a valid challenge / declaration
under Article 266 of the Constitution of India.
122. Therefore, T.C.A.Nos.295 to 299 of 2018 are dismissed for
statistical purpose to enable the Assessee to work out the remedy in the
manner known to law.
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123. Cosequently, rest of the appeals filed by the Income Tax
Department as detailed in Column No.V to Table I in Paragraph.No. 4
of this Order are also allowed for statistical purpose. Liberty is given to
the parties to revive these appeals subject to the Assessee succesfully
moving a collateral proceeding for declaring the restrictions in Section
80AC of the IT Act as directory and not mandatory.
124. In the result, these Tax Case Appeals are dismissed/allowed as
under:-
i. T.C.A.No.294 of 2018 is allowed.
ii. T.C.A.Nos.295 to 299 of 2018 are dismissed
for statistical purpose.
iii. T.C.A.Nos.355, 356, 378, 389, 390, 393, 396,
401, 402, 409 & 411 of 2021 are allowed
for statistical purpose.
iv. No costs.
(R.S.K., J.) (C.S.N., J.)
09.05.2025
Neutral Citation : Yes / No
nst/mrr/arb
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To:
1.Income Tax Appellate Tribunal ‘C’ Bench,
Chennai.
2.The Assistant Commissioner of Income Tax,
Company Circle I (3),
Chennai.
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R.SURESH KUMAR, J.
and
C.SARAVANAN, J.
nst/mrr/arb
Pre-Delivery Common Judgment in
T.C.A.Nos.294 to 299 of 2018,
T.C.A.Nos.355, 356, 378, 389, 390, 393,
396, 401, 402, 409 & 411 of 2021
09.05.2025
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