M/s Atharva Constructions., Pune v. ACIT, Pune

ITA 250/PUN/2013 | 2009-2010
Pronouncement Date: 26-11-2014 | Result: Allowed

Appeal Details

RSA Number 25024514 RSA 2013
Assessee PAN ABGFS8798G
Bench Pune
Appeal Number ITA 250/PUN/2013
Duration Of Justice 1 year(s) 9 month(s) 28 day(s)
Appellant M/s Atharva Constructions., Pune
Respondent ACIT, Pune
Appeal Type Income Tax Appeal
Pronouncement Date 26-11-2014
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 26-11-2014
Date Of Final Hearing 29-01-2014
Next Hearing Date 29-01-2014
Assessment Year 2009-2010
Appeal Filed On 28-01-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A PUNE BEFORE SHRI G.S. PANNU ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA JUDICIAL MEMBER ITA NO.248/PN/2013 (ASSESSMENT YEAR: 2008-09) M/S. SAI SAMARTH CONSTRUCTIONS UMED BHAVAN OFFICE NO.9 CANARA BANK BUILDING PIMPRI PUNE 411018 PAN: ABGFS8798G . APPELLANT VS. THE DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 1(2) PUNE . RESPONDENT ITA NOS.249 AND 250/PN/2013 (ASSESSMENT YEARS: 2008-09 AND 2009-10) M/S. ATHARVA CONSTRUCTIONS UMED BHAVAN OFFICE NO.9 CANARA BANK BUILDING PIMPRI PUNE 411018 PAN: AABTA9671N . APPELLANT VS. THE DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 1(2) PUNE . RESPONDENT ITA NOS.251 TO 253/PN/2013 (ASSESSMENT YEARS: 2007-08 TO 2009-10) M/S. SAI DRISHTI CONSTRUCTIONS UMED BHAVAN OFFICE NO.9 CANARA BANK BUILDING PIMPRI PUNE 411018 PAN: AACAS7705B . APPELLANT VS. THE DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 1(2) PUNE . RESPONDENT ITA NOS.248 TO 253/PN/2013 M/S. SAI SAMARTH CONSTRUCTION AND GROUP 2 APPELLANT BY : SHRI V.L. JAIN RESPONDENT BY : SMT. M.S. VERMA CIT DATE OF HEARING : 24-11-2014 DATE OF PRONOUNCEMENT : 26-11-2014 ORDER PER SUSHMA CHOWLA JM: THIS BUNCH OF SIX APPEALS FILED BY VARIOUS ASSESSEES ARE AGAINST RESPECTIVE ORDERS OF CIT(A)-CENTRAL PUNE ALL DATED 24.12.201 2 RELATING TO RELEVANT ASSESSMENT YEARS 2007-08 TO 2009-10 PASSED UNDER SECTION 153C R.W.S. 143(3) OF THE INCOME TAX ACT. 2. ALL THE APPEALS RELATING TO VARIOUS ASSESSEES INVOLVING SIM ILAR ISSUE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS C ONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. HOWEVER REFERENCE IS BEING MADE TO THE FACTS IN ITA NO.251/PN/2013 TO ADJUDICATE THE ISSUE. 3. THE ASSESSEE IN ITA NO.251/PN/2013 HAS RAISED THE FOL LOWING GROUNDS OF APPEAL AND THE SAME WERE RAISED IN OTHER AP PEALS ALSO EXCEPT THE QUANTUM OF AMOUNT:- 1. THE LEARNED CIT(A) ERRED ON FACTS AND IN LAW IN BRING ING TO TAX AN AMOUNT OF RS.40 LACS AS INCOME BASED ON THE DISCLOSURE OF ADVANCE RECEIVED AGAINST BOOKING WHILE DISREGARDING THE ACCOUNTING POLICY FOR REVENUE RECOGNITION ACCORDI NG TO WHICH IT WAS TAKEN INTO ACCOUNT IN A.Y. 10-11. 2. THE LEARNED CIT(A) ERRED ON FACTS AND IN LAW IN NOT T REATING THE AMOUNT OF RS.40 LACS AS ELIGIBLE FOR DEDUCTION U/S 80I B(10) AS THE INCOME WAS DERIVED FROM A PROJECT QUALIFYING FOR A CLAIM OF DEDUCTION U/S 80IB(10) OF THE INCOME TAX ACT 1961. 3. WITHOUT PREJUDICE TO THE ABOVE THE LEARNED CIT(A) HAS ERRED ON FACTS AND IN LAW IN BRINGING TO TAX THE ENTIRE RECE IPTS AS INCOME WITHOUT A CORRESPONDING DEDUCTION FOR EXPENDITURE E MANATING FROM THE SAME SEIZED MATERIAL. ITA NOS.248 TO 253/PN/2013 M/S. SAI SAMARTH CONSTRUCTION AND GROUP 3 4. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY OF T HE GROUNDS OF APPEAL OR ADD TO THE SAME IF DEEMED NECESSARY. 4. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSES SEE POINTED OUT THAT THE ISSUE RAISED IN THE PRESENT APPEAL IS SQUARELY COVERED BY THE ORDER OF TRIBUNAL IN THE CASE OF ASSOCIATED PERSON SHRI N ARESH T WADHWANI VS. DCIT IN ITA NOS.18 19 & 20/PN/2013 RELATING TO ASSESSMENT YEARS 2007-08 TO 2009-10 AND IN DCIT VS. SHRI NARESH T. WADHWANI IN ITA NOS.60 & 61/PN/2013 RELATING TO ASSESSM ENT YEARS 2007-08 & 2008-09 VIDE ORDER DATED 23.10.2014. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVE NUE HAS PLACED RELIANCE ON THE ORDERS OF AUTHORITIES BELOW. 6. THE BRIEF FACTS OF THE CASE ARE THAT SEARCH AND SE IZURE OPERATIONS UNDER SECTION 132 OF THE ACT WERE CONDUCTED ON 13.08.20 08 AT THE RESIDENTIAL PREMISES SITUATED AT PWD 10/10 PIMPRI COLONY PU NE RELATING TO WADHWANI GROUP OF CASES. SIMULTANEOUSLY SURVE YS UNDER SECTION 133A OF THE ACT WERE CONDUCTED AT BUSINESS PRE MISES OF THE GROUP AS ENLISTED AT PAGES 1 AND 2 OF THE ASSESSMENT O RDER. THE WADHWANI GROUP OF PIMPRI WAS DEALING IN PURCHASE AND SALE OF LAND DEVELOPMENT OF LAND ETC. IN ADDITION THEY WERE ALSO INVOLVE D IN CONSTRUCTION OF FLATS / SHOPS AND SALES THEREOF. SHRI NAR ESH T. WADHWANI WAS THE MAIN PERSON WHO WAS HANDLING ACTIVITIES OF THE GROUP. THE GROUP COMPRISED OF SHRI NARESH T. WADHWANI A ND SHRI DHARMENDRA T. WADHWANI AND VARIOUS BUSINESS CONCERNS O F THE GROUP WERE ENGAGED IN THE BUSINESS OF CONSTRUCTION AS WELL AS P URCHASE AND SALE OF LAND. THE ASSESSEE AOP WAS ONE OF THE CONCERNS OF THE WADHWANI GROUP. DURING THE COURSE OF SEARCH AND SEIZURE DISCLOSUR E OF RS.7 ITA NOS.248 TO 253/PN/2013 M/S. SAI SAMARTH CONSTRUCTION AND GROUP 4 CRORES WAS MADE BY SHRI NARESH T. WADHWANI ON ACCOUNT OF UNACCOUNTED RECEIPTS AND PAYMENTS AS UNDISCLOSED INCOME FOR VARIOUS PROJECTS UNDERTAKEN BY HIM AND HIS GROUP. FURTHER VIDE LETTER DATED 23.09.2008 SUBMITTED DURING POST SEARCH ENQUIRIES THE BIFUR CATION OF THE DISCLOSURE OF RS.7 CRORES WAS SUBMITTED BY THE ASSES SEE AND FOR FINANCIAL YEAR 2006-07 THE ASSESSEE DECLARED RS.40 LAKHS FOR FINANCIAL YEAR 2007-08 DISCLOSURE OF RS.60 LAKHS AND FOR FINANCIAL YEA R 2008-09 DISCLOSURE OF RS.20 LAKHS WAS MADE. THE ASSESSEE HOWEVE R DID NOT INCLUDE THE DISCLOSED AMOUNT IN THE RETURNS OF INCOME FILED IN RESPONSE TO THE NOTICE UNDER SECTION 153C OF THE ACT. THE ASSES SEE HOWEVER MADE SUBMISSION THAT THE RETURNS ALREADY FILED AT RS.NIL INCOME BE CONSIDERED FOR ASSESSMENT. THE ASSESSEE WAS SHOW CAUSED AS TO W HY IT HAD NOT DISCLOSED THE ADDITIONAL INCOME. IN REPLY VIDE LETTER DATED 23.04.2010 THE ASSESSEE SUBMITTED THAT THE DECLARATION HAD BEEN M ADE OF UNDISCLOSED RECEIPTS IN THE HANDS OF VARIOUS ENTITIES FOR TH E RELEVANT YEARS AND HOWEVER SINCE THE ENTITIES WERE EXECUTING THE HOUSING PROJECT PROFITS OF WHICH QUALIFY FOR DEDUCTION UNDER SECTION 80IB(10) OF THE ACT THE INCOME WAS SHOWN AT RS.NIL. THE ASSESSING OFFICER OBSE RVED THAT THE INCOME DECLARED UNDER SECTION 132(4) OF THE ACT ON THE BA SIS OF SEIZED MATERIAL WAS UNDISCLOSED INCOME AND EVEN WHERE THE ASSES SEE WAS ELIGIBLE FOR THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT THE UNDISCLOSED INCOME WOULD NOT BE ENTITLED TO CLAIM DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. CONSEQUENTLY SUM OF RS.40 LAKHS WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE AS INCOME FROM UNDISCLOSED SOURCES. THE CIT(A) UPHELD THE ORDER OF ASSESSING OFFICER IN VIEW OF SIMILAR CLAIM BEING DECIDED IN THE CASE OF SHRI NARESH T. WADH WANI BY THE CIT(A) HIMSELF. ITA NOS.248 TO 253/PN/2013 M/S. SAI SAMARTH CONSTRUCTION AND GROUP 5 7. THE ASSESSEE IS IN APPEAL AGAINST THE SAID ORDER OF CIT(A). 8. WE FIND THAT SIMILAR ISSUE OF ELIGIBILITY TO CLAIM THE DEDUCTIO N UNDER SECTION 80IB(10) OF THE ACT IN RESPECT OF THE ADDIT IONAL INCOME OFFERED BY THE ASSESSEE AROSE BEFORE THE TRIBUNAL IN SHRI NARESH T. WADHWANI VS. DCIT (SUPRA) AND THE CLAIM OF THE ASSESSEE WAS HELD TO BE ELIGIBLE VIDE ORDER DATED 28.10.2014. THE RELEVANT FINDINGS OF TRIBUNAL ARE AS UNDER:- 34. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSION S. FACTUALLY SPEAKING IT IS QUITE EVIDENT THAT IN THE COURSE OF HI S DEPOSITION U/S 132(4) OF THE ACT ON 14.08.2008 ASSESSEE DECLARED CERT AIN ADDITIONAL INCOMES FOR VARIOUS ASSESSMENT YEARS WHICH WERE HITHERTO NOT FORMING PART OF THE INCOME DECLARED IN THE REGULAR BOOKS OF ACCOUNT. THE ASSESSING OFFICER HAS FURTHER NOTE D THAT VIDE A WRITTEN COMMUNICATION DATED 23.09.2008 DURING POST-SEAR CH ENQUIRIES ASSESSEE FURNISHED A BIFURCATION OF THE A DDITIONAL INCOME OF RS.7 CRORES WHICH WAS ADMITTED BY HIM IN THE STATEM ENT RECORDED DURING THE COURSE OF SEARCH U/S 132(4) OF T HE ACT ON 14.08.2008. THE DETAILS OF SUCH DECLARATION HAS BEEN TA BULATED IN PARA 8.2 OF THE ASSESSMENT ORDER. A PERUSAL OF SUCH DETAILS READ ALONGWITH THE SUBSEQUENT ORDER PASSED U/S 154 OF THE ACT DATED 18.04.2011 BY THE ASSESSING OFFICER CLEARLY REVEALS THA T VARIOUS LOOSE PAPERS/DIARIES FOUND AND SEIZED DURING THE COUR SE OF SEARCH INDICATED THAT ASSESSEE WAS INDULGING IN ACCEPTING MO NEY IN CASH AGAINST SALE OF FLATS/SHOPS IN THE PROJECT UNDERTAKEN BY HIM; AND SUCH AMOUNTS WERE NOT REFLECTED IN THE REGULAR BOOKS OF ACCOUNT. PERTINENTLY IT HAS BEEN ACCEPTED BY THE ASSESSING OF FICER THAT THE IMPUGNED SUM OF RS.60 00 000/- COMPRISES OF UNDISCLOSED RE CEIPTS RECEIVED FROM CUSTOMERS AGAINST THE SALE OF FLATS IN THE PROJECT SAI NISARG PARK - MAYURESHWAR WHICH HAS BEEN UNDERTAKEN BY ASSESSEE THROUGH HIS PROPRIETARY CONCERN M/S MANGAL MURTI DEVELOPERS; AND THAT THE RECEIPTS PERTAIN TO THE ASSE SSMENT YEAR UNDER CONSIDERATION. IN-FACT THE TABULATION MADE BY THE ASSESSING OFFICER IN PARA 8.13 OF THE ASSESSMENT ORDER WHICH I S STATED TO BE BASED ON THE SEIZED MATERIAL REVEALS THE NAMES OF THE CUSTOMERS THE DATE AND THE AMOUNTS RECEIVED IN RELATION TO TH E HOUSING PROJECT SAI NISARG PARK - MAYURESHWAR UNDERTAKEN BY THE PROP RIETARY CONCERN M/S MANGALMURTI DEVELOPERS. A COPY OF THE D EPOSITION MADE BY THE ASSESSEE U/S 132(4) OF THE ACT HAS ALSO B EEN PLACED IN THE PAPER BOOK AT PAGES 189 TO 214 WHICH ALSO SUPPO RTS THE AFORESAID FACT-SITUATION. THEREFORE CONSIDERING THE ( I) MATERIAL SEIZED IN THE COURSE OF SEARCH; (II) DEPOSITION MADE BY THE ASSESSEE IN THE COURSE OF SEARCH U/S 132(4) OF THE ACT; AND (I II) FINDINGS OF THE ASSESSING OFFICER IN THE ASSESSMENT ORDER PASSED U /S 153A(A) R.W.S. 143(3) OF THE ACT DATED 27.10.2010 (ESPECIALLY PAR AS 8.2 8.4 AND 8.13) READ WITH ORDER U/S 154 DATED 18.04.2011 (SUPR A) IT WOULD BE APPROPRIATE TO DEDUCE THAT THE SOURCE OF THE IMPUGNED ADDITIONAL INCOME IS THE HOUSING PROJECT SAI NISARG P ARK - ITA NOS.248 TO 253/PN/2013 M/S. SAI SAMARTH CONSTRUCTION AND GROUP 6 MAYURESHWAR WHICH HAS BEEN EXECUTED BY THE ASSESSEE IN HIS PROPRIETARY CONCERN M/S MANGALMURTI DEVELOPERS. IN OTHER WORDS FACTUALLY SPEAKING THE INCOME REPRESENTED BY THE IMPU GNED SUM OF RS.60 00 000/- HAS BEEN EARNED BY THE ASSESSEE IN THE C OURSE OF DEVELOPMENT AND EXECUTION OF HOUSING PROJECT SAI NIS ARG PARK - MAYURESHWAR THOUGH SUCH INCOME WAS HITHERTO NOT REF LECTED IN THE REGULAR BOOKS OF ACCOUNT. FURTHER THERE IS NO DISPU TE TO THE FACT- SITUATION THAT THE PROFITS OF THE SAI NISARG PARK MAYURESHWAR PROJECT UNDERTAKEN BY THE ASSESSEE ARE ENTITLED TO T HE BENEFITS OF SECTION 80IB(10) OF THE ACT. 35. IN THE ABOVE BACKGROUND THE MOOT QUESTION IS WH ETHER SUCH ADDITIONAL INCOME DECLARED IN THE COURSE OF SEARCH IS ELIGIBLE FOR THE BENEFITS OF SECTION 80IB(10) OF THE ACT ESPECIALLY WH EN THE RELEVANT PROJECT IS OTHERWISE ELIGIBLE FOR THE BENEFITS OF SE CTION 80IB(10) OF THE ACT. 36. IN THIS CONTEXT IT WAS A COMMON POINT BETWEEN TH E PARTIES THAT AN IDENTICAL CONTROVERSY HAS BEEN CONSIDERED BY THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF M/S MALPANI EST ATES VS. ACIT VIDE ITA NOS.2296 TO 2298/PN/2012 VIDE ORDER DATED 3 0.01.2014. THE RELEVANT DISCUSSION IN THE ORDER OF THE TRIBUNAL DATED 30.01.2014 (SUPRA) IS REPRODUCED HEREINAFTER TO FACILIT ATE APPRECIATION OF REASONING THAT PREVAILED WITH THE TRIB UNAL TO ALLOW THE CLAIM OF ASSESSEE THEREIN :- 10. IN THE PRESENT CASE IT IS NOT IN DISPUTE THAT THE ASSESSEE HAS DERIVED INCOME FROM UNDERTAKING A HOUS ING PROJECT THE CREST AT PIMPLE SAUDAGAR PUNE WHICH IS EL IGIBLE FOR SECTION 80IB(10) BENEFITS. IN THE RETURN OF INCO ME ORIGINALLY FILED U/S 139(1) OF THE ACT ASSESSEE HAD CLAIMED DEDUC TION U/S 80IB(10) OF THE ACT IN RELATION TO THE PROFITS D ERIVED FROM THE SAID HOUSING PROJECT AND THE SAME STANDS ALLOWED EVEN IN THE IMPUGNED ASSESSMENT WHICH HAS BEEN MADE U/S 153A(1)(B) OF THE ACT AS A CONSEQUENCE OF A SEARCH AC TION U/S 132(1) OF THE ACT. 11. IN THE COURSE OF SEARCH IN A STATEMENT DEPOSED U/S 132(4) OF THE ACT ASSESSEE DECLARED CERTAIN ADDITIONA L INCOME PERTAINING TO THE HOUSING PROJECT IN QUESTION. THE ADDITIONAL INCOME DECLARED WAS ON ACCOUNT OF ON-MONEY RECEIVED FROM THE CUSTOMERS TO WHOM FLATS WERE SOLD IN THE SAID PROJ ECT. AT THE TIME OF HEARING LEARNED COUNSEL REFERRED TO THE C OPY OF STATEMENT RECORDED U/S 132(4) OF THE ACT OF SHRI RAJ ESH MALPANI A PARTNER OF THE ASSESSEE FIRM AND ALSO COPI ES OF SOME OF THE SEIZED PAPERS WHICH INDICATED RECEIPT O F ON- MONEY AND THE SAME HAVE PLACED IN THE PAPER BOOK AT PAGES 35 TO 52. A PERUSAL OF THE SEIZED MATERIAL SHOWS THAT A COMPLETE DETAIL OF THAT ON-MONEY RECEIVED IS ENUMERAT ED VIZ. NAME OF THE CUSTOMERS AMOUNT AND THE RESPECTIVE FLAT SOLD IN THE PROJECT. EVEN IN THE DEPOSITION MADE U/S 132(4) OF TH E ACT THE PARTNER OF THE ASSESSEE FIRM MADE A YEARWISE DE TAIL OF ADDITIONAL INCOME DECLARED ON ACCOUNT OF ON-MONEY REC EIVED ON SALE OF FLATS IN THE PROJECT. ACCORDINGLY THE IMPUG NED SUM HAS BEEN DECLARED AS UNACCOUNTED INCOME FROM THE HO USING PROJECT IN QUESTION. IN THE RETURN OF INCOME FILED I N RESPONSE OF ITA NOS.248 TO 253/PN/2013 M/S. SAI SAMARTH CONSTRUCTION AND GROUP 7 NOTICE ISSUED U/S 153A(1)(A) OF THE ACT ASSESSEE HAS DECLARED SUCH ADDITIONAL INCOME AS INCOME FROM HOUSING PROJECT THE CREST AT PIMPLE SAUDAGAR PUNE. THE DECLARATION MADE IN THE RETURN OF INCOME HAS NOT BEEN DISPUTED BY THE ASSES SING OFFICER. THE ONLY DISPUTE RAISED BY THE ASSESSING OF FICER IS WITH REGARD TO NATURE OF SUCH INCOME WHICH ACCORDI NG TO THE ASSESSING OFFICER DOES NOT FALL UNDER OF THE ANY HEA DS OF INCOME AS DESCRIBED U/S 14 OF THE I.T. ACT. IN COMI NG TO SUCH CONCLUSION HE HAS DISAGREED WITH THE STAND OF THE ASS ESSEE THAT SUCH ADDITIONAL INCOME WAS A BUSINESS INCOME OF THE ASSESSEE RELATING TO THE HOUSING PROJECT THE CREST AT PIMPLE SAUDAGAR PUNE. HOWEVER AS PER THE CIT(A) THE INCOME IN QUESTION IS ASSESSABLE UNDER THE HEAD INCOME FROM O THER SOURCES. OSTENSIBLY THE CIT(A) HAS NOT AGREED WITH TH E INFERENCE OF THE ASSESSING OFFICER THAT THE IMPUGNED INCOME DOES NOT FALL UNDER ANY HEADS OF INCOME U/S 14 OF THE ACT BECAUSE ACCORDING TO HER SUCH INCOME IS LIABLE TO BE ASSESSED UNDER THE HEAD INCOME FROM OTHER SOURCES. THUS AS OF NOW BEFORE US THE INFERENCE OF THE ASSESSING OFFICER DOE S NOT SURVIVE ANY LONGER SINCE THE ORDER OF THE ASSESSING O FFICER HAS MERGED IN THE ORDER OF THE CIT(A) AND IN ANY CASE TH E REVENUE IS NOT IN APPEAL ON THIS ASPECT. BE THAT AS IT MAY FACTUALLY SPEAKING IT CANNOT BE DENIED THAT THE ADDITIONAL INCOM E IN QUESTION RELATES TO THE HOUSING PROJECT THE CREST AT PIMPLE SAUDAGAR PUNE UNDERTAKEN BY THE ASSESSEE. THE MATER IAL SEIZED IN THE COURSE OF SEARCH; THE DEPOSITION MADE BY THE ASSESSEES PARTNER DURING SEARCH U/S 132(4) OF THE AC T; AND ALSO THE RETURN OF INCOME FILED IN RESPONSE TO NOTICE ISSUED U/S 153A(1)(A) OF THE ACT AFTER THE SEARCH CLEARLY SHOW THAT THE SOURCE OF IMPUGNED ADDITIONAL INCOME IS THE HOUSING P ROJECT THE CREST AT PIMPLE SAUDAGAR PUNE. THE AFORESAID MAT ERIAL ON RECORD DEPICTS THAT THE IMPUGNED INCOME IS NOTHIN G BUT UNACCOUNTED MONEY RECEIVED BY THE ASSESSEE FROM CUS TOMERS ON ACCOUNT OF SALE OF FLATS OF ITS HOUSING PROJECT TH E CREST AT PIMPLE SAUDAGAR PUNE. CLEARLY THE SOURCE OF THE ADDITIO NAL INCOME IS THE SALE OF FLATS IN THE HOUSING PROJECT T HE CREST. THEREFORE ONCE THE SOURCE OF INCOME IS ESTABLISHED THE ASSESSABILITY THEREOF HAS TO FOLLOW. THE NATURE OF INCOME TH US ON FACTS HAS TO BE TREATED AS BUSINESS INCOME ALBEIT THE SAME WAS NOT ACCOUNTED FOR IN THE ACCOUNT BOOKS. IN THIS MANNER WE ARE UNABLE TO ACCEPT THE STAND OF THE ASSE SSING OFFICER OR OF THE CIT(A) THAT THE SAID INCOME IS NOT LIABLE TO BE TAXED AS BUSINESS INCOME. 12. NOW COMING TO THE POINT AS TO WHETHER SUCH BUS INESS INCOME QUALIFIES TO BE ELIGIBLE FOR DEDUCTION U/S 80 IB(10) OF THE ACT IN THE COURSE OF AN ASSESSMENT MADE U/S 153 A(1)(B) OF THE ACT. ON THIS ASPECT THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE ASSESSMENT IN CASE S OF SEARCH ACTION OR REQUISITION ARE MADE U/S 153A OR 15 3C OF THE ACT IN ORDER TO ASSESS UNDECLARED INCOMES AND SUCH PROVISIONS ARE FOR THE BENEFIT OF THE REVENUE AND T HEREFORE A CLAIM U/S 80IB(10) OF THE ACT CANNOT BE CONSIDERED IN SUCH PROCEEDINGS ESPECIALLY WHEN SUCH A CLAIM WAS NOT MADE IN THE RETURN OF INCOME ORIGINALLY FILED UNDER SECTION 1 39 OF THE ACT. IN THIS REGARD THE LEARNED DEPARTMENTAL REPRESEN TATIVE ITA NOS.248 TO 253/PN/2013 M/S. SAI SAMARTH CONSTRUCTION AND GROUP 8 HAS REFERRED TO THE JUDGMENT OF THE HONBLE SUPREME C OURT IN THE CASE OF CIT VS. SUN ENGINEERING WORKS PVT. LTD. 19 8 ITR 297 (SC) TO POINT OUT THAT EVEN IN THE CASES OF RE-AS SESSMENT U/S 147/148 OF THE ACT FRESH CLAIMS CANNOT BE RAISED BY THE ASSESSEE. SECONDLY IT IS POINTED OUT BY THE LEARNED DEPARTMENTAL REPRESENTATIVE THAT EVEN IF THE CLAIM WA S TO BE CONSIDERED THEN IT WAS NOT ALLOWABLE BECAUSE THE REQUIS ITE CONDITION THAT THE RETURN OF INCOME HAS TO BE ACCOM PANIED BY THE PRESCRIBED AUDIT REPORT HAS NOT BEEN COMPLIED W ITH BY THE ASSESSEE. ON THE BASIS OF AFORESAID REASONS THE CLA IM OF THE ASSESSEE HAS BEEN OPPOSED. 13. SECTIONS 153A TO 153C OF THE ACT CONTAIN PROVIS IONS RELATING TO ASSESSMENTS TO BE MADE IN CASES WHERE S EARCH IS INITIATED U/S 132 OR A REQUISITION IS MADE U/S 132A OF THE ACT AFTER 31 ST MAY 2003. CLAUSE (B) OF SUB-SECTION (1) OF SECTION 153A POSTULATES ASSESSMENT OR RE-ASSESSMENT OF TOTA L INCOME OF SIX ASSESSMENT YEARS PRECEDING THE ASSESSMENT YE AR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH I S CONDUCED OR REQUISITION IS MADE. SHORN OF OTHER DETA ILS IT WOULD SUFFICE FOR US TO NOTICE CLAUSE (I) OF THE EXP LANATION BELOW SECTION 153A(2) OF THE ACT WHICH READS AS UNDER :- EXPLANATION. FOR THE REMOVAL OF DOUBTS IT IS HEREBY DECLARED THAT - (I) SAVE AS OTHERWISE PROVIDED IN THIS SECTION SECTION 153B AND SECTION 153C ALL OTHER PROVISIONS OF THIS ACT SHA LL APPLY TO THE ASSESSMENT MADE UNDER THIS SECTION. 14. IN TERMS OF THE ABOVE REFERRED CLAUSE (I) OF TH E EXPLANATION IT IS EVIDENT THAT ALL THE PROVISIONS OF THE AC T SHALL APPLY TO AN ASSESSMENT MADE U/S 153A OF THE ACT SAV E AS OTHERWISE PROVIDED IN THE SAID SECTION OR IN SECTION 153B OR SECTION 153C OF THE ACT. IN THE BACKGROUND OF THE E XPRESSION ALL OTHER PROVISIONS OF THIS ACT SHALL APPLY CONTAINE D IN EXPLANATION (I) BELOW SECTION 153A OF THE ACT AND IN THE CONTEXT OF THE CONTROVERSY BEFORE US THE MOOT POINT TO BE EXAMINED IS AS TO WHETHER OR NOT DEDUCTIONS ENUMERA TED IN CHAPTER VIA OF THE ACT ARE TO BE CONSIDERED IN MAKIN G AN ASSESSMENT MADE U/S 153A(1)(B) OF THE ACT. SECTION 153A(1)(B) OF THE ACT REQUIRES THE ASSESSING OFFICER TO ASSESS OR REASSESS THE TOTAL INCOME OF THE ASSESSMENT YEA RS SPECIFIED THEREIN. OSTENSIBLY SECTION 80A(1) OF THE A CT PRESCRIBES THAT IN COMPUTING THE TOTAL INCOME OF AN ASS ESSEE THERE SHALL BE ALLOWED FROM HIS TOTAL INCOME THE DEDUCT IONS SPECIFIED IN CHAPTER VIA OF THE ACT. THE MOOT POINT IS AS TO WHETHER THE AFORESTATED POSITION PREVAILS IN AN ASSE SSMENT MADE U/S 153A(1)(B) OR NOT? IN OUR CONSIDERED OPINIO N HAVING REGARD TO THE EXPRESSION ALL OTHER PROVISIONS OF THIS ACT SHALL APPLY TO THE ASSESSMENT MADE UNDER THIS SEC TION IN EXPLANATION (I) OF SECTION 153A OF THE ACT IT CLEARLY IMPLIES THAT IN ASSESSING OR REASSESSING THE TOTAL INCOME FOR TH E ASSESSMENT YEARS SPECIFIED IN SECTION 153A(1)(B) OF T HE ACT THE IMPORT OF SECTION 80A(1) OF THE ACT COMES INTO PL AY AND THERE SHALL BE ALLOWED THE DEDUCTIONS SPECIFIED IN CHAP TER VIA OF THE ACT OF COURSE SUBJECT TO FULFILLMENT OF THE R ESPECTIVE ITA NOS.248 TO 253/PN/2013 M/S. SAI SAMARTH CONSTRUCTION AND GROUP 9 CONDITIONS. THEREFORE WE ARE UNABLE TO SUBSCRIBE TO THE STAND OF THE CIT(A) TO THE EFFECT THAT THE BENEFITS OF CHA PTER VIA OF THE ACT WHICH INTER-ALIA INCLUDE SECTION 80IB(10) OF T HE ACT ARE NOT APPLICABLE TO AN ASSESSMENT MADE UNDER SECTI ONS 153A TO 153C OF THE ACT. IN OUR CONSIDERED OPINION THE PHRASEOLOGY OF SECTION 153A R.W. EXPLANATION (I) AS NO TED ABOVE DOES NOT SUPPORT THE PREMISE ARRIVED AT BY THE CIT(A) AND ACCORDINGLY THE SAME IS REJECTED. THEREFORE ASS ESSEES CLAIM FOR DEDUCTION U/S 80IB(10) OF THE ACT EVEN WITH REGARD T O THE ENHANCED INCOME WAS WELL WITHIN THE SCOPE AND AMBIT OF AN ASSESSMENT U/S 153A(1)(B) OF THE ACT AND THE ASSES SING OFFICER WAS OBLIGATED TO CONSIDER THE SAME AS PER LAW. 15. THE OTHER ARGUMENT OF THE LD. CIT-DR TO THE EFFEC T THAT THE RETURN OF INCOME WAS NOT ACCOMPANIED BY THE PRES CRIBED AUDIT REPORT ON THE ENHANCED CLAIM OF DEDUCTION IS TO O HYPER- TECHNICAL AND SUPERFICIAL. PERTINENTLY THE ASSESSING OFFICER HAS NOT ALTOGETHER DENIED THE CLAIM OF DEDUCTION AND IN ANY CASE THE CLAIM WAS INITIALLY MADE IN THE RETURN ORIGINALLY FILED WHICH WAS DULY ACCOMPANIED BY THE PRESCRIBED AUDIT REPO RT. 16. THE ARGUMENT SET-UP BY THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE BASIS OF THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF SUN ENGINEERING WORKS PVT. LTD. (SUPRA) IN OUR VIEW IS ALSO UNTENABLE HAVING REGARD T O THE FACTS OF THE PRESENT CASE. NO DOUBT THE HONBLE SUPRE ME COURT HAS OBSERVED THAT REOPENING OF AN ASSESSMENT U/S 147/148 IS FOR THE BENEFIT OF THE REVENUE. IN THE C ASE BEFORE THE HONBLE SUPREME COURT ASSESSEE WANTED TO SET-OFF LO SS AGAINST THE ESCAPED INCOME WHICH WAS TAXED IN THE R E- ASSESSMENT PROCEEDINGS AND THE CLAIM OF SUCH SET-OFF W AS NOT MADE IN THE RETURN OF INCOME ORIGINALLY FILED. ACCOR DING TO THE HONBLE SUPREME COURT THE CLAIM WAS NOT ENTERTAINABLE BECAUSE THE SAID CLAIM NOT CONNECTED WITH THE ASSESSM ENT OF ESCAPED INCOME. IN-FACT THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF SUN ENGINEERING WORKS PVT. LTD. (SUPRA) IS NOT AN AUTHORITY TO SAY THAT ASSESSEE CANNOT RAISE A CLAIM PERTAINING TO AN ISSUE WHICH IS CONNECTED TO THE ASS ESSMENT OF ESCAPED INCOME. IN-FACT IF A CLAIM WHICH IS CONNECTE D TO THE ESCAPED INCOME IS SET-UP BEFORE THE ASSESSING OFFICE R IN THE COURSE OF RE-ASSESSMENT PROCEEDINGS THE SAME IS LIAB LE TO BE CONSIDERED AND THE JUDGMENT OF THE HONBLE SUPREME C OURT IN THE CASE OF SUN ENGINEERING WORKS PVT. LTD. (SUPRA) O NLY PRECLUDES SUCH NEW CLAIMS BY THE ASSESSEE WHICH ARE UNCONNECTED WITH THE ASSESSMENT OF ESCAPED INCOME. IN THE PRESENT CASE WE ARE DEALING WITH AN ASSESSMENT U/S 1 53A OF THE ACT AND THE SCOPE OF SUCH AN ASSESSMENT HAS ALRE ADY BEEN EXAMINED BY US IN THE CONTEXT OF THE RELEVANT S PECIFIC PROVISIONS WHICH DO NOT LEAVE ANY SCOPE FOR AMBIGUITY . THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF SUN ENGINEERING WORKS PVT. LTD. (SUPRA) HAS BEEN RENDERED ON A DIFFERENT FOOTING AND IS STRICTLY NOT APPLICABLE TO THE PRESENT PROCEEDINGS. SO HOWEVER EVEN IF ONE WERE TO IMPORT T HE REASONING RAISED BY THE LEARNED DEPARTMENTAL REPRESEN TATIVE BASED ON THE JUDGMENT OF THE HONBLE SUPREME COURT TO THE PRESENT CASE YET WE DO NOT FIND THAT IT WOULD DEBAR T HE ITA NOS.248 TO 253/PN/2013 M/S. SAI SAMARTH CONSTRUCTION AND GROUP 10 ASSESSEE FROM CLAIMING DEDUCTION U/S 80IB(10) OF THE ACT ON THE IMPUGNED ADDITIONAL INCOME DECLARED IN THE RETURN F ILED IN RESPONSE TO NOTICE U/S 153A(1)(A) OF THE ACT. IN TH E PRESENT CASE THE CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT W AS MADE IN THE RETURN OF INCOME ORIGINALLY FILED AND IN THE R ETURN FILED IN PURSUANCE TO THE NOTICE U/S 153A(1)(A) OF THE ACT TH E CLAIM U/S 80IB(10) OF THE ACT IS ONLY ENHANCED AND THEREFO RE IT IS NOT A FRESH CLAIM. THEREFORE IN OUR VIEW THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF SUN ENGINEERING WORKS PVT. LTD. (SUPRA) DOES NOT HELP THE REVENUE IN THE PR ESENT CASE. 17. IN-FACT THE HONBLE BOMBAY HIGH COURT IN THE CASE OF SHETH DEVELOPERS (P) LTD. (SUPRA) WAS CONSIDERING THE C LAIM OF DEDUCTION U/S 80IB(10) OF THE ACT IN RELATION TO THE UNDISCLOSED INCOME DECLARED CONSEQUENT TO THE SEARCH ACTION. IN THE CASE BEFORE THE HONBLE HIGH COURT IT WAS FACTU ALLY EMERGING THAT UNDISCLOSED INCOME WAS EARNED BY THE ASSESSEE IN THE COURSE OF CARRYING ON HIS BUSINESS A CTIVITY OF A BUILDER AND THE SAME WAS ACCEPTED BY THE DEPARTMENT BUT THE CLAIM OF THE DEDUCTION U/S 80IB(10) WAS DENIED IN RELATION TO SUCH INCOME. HOWEVER THE CLAIM WAS UPHELD BY THE HONBLE BOMBAY HIGH COURT. IN THE PRESENT CASE FACTUA LLY THERE IS NO MATERIAL TO NEGATE THE ASSERTION OF THE AS SESSEE WHICH ARE BORNE OUT OF THE MATERIAL ON RECORD THAT T HE ADDITIONAL INCOME IN QUESTION HAS BEEN RECEIVED IN TH E COURSE OF CARRYING ON ITS BUSINESS ACTIVITY OF DEVELOPING THE HOUSING PROJECT THE CREST AT PIMPLE SAUDAGAR PUNE WHICH IS EL IGIBLE FOR SECTION 80IB(10) BENEFITS. THEREFORE IN TERMS OF THE PARITY OF REASONING LAID DOWN BY THE HONBLE BOMBAY HIGH COU RT IN THE CASE OF SHETH DEVELOPERS (P) LTD. (SUPRA) THE CLAIM OF THE ASSESSEE IS JUSTIFIED. 18. IN-FACT ONCE IT IS FACTUALLY EXPLICIT THAT THE ADD ITIONAL INCOME IN QUESTION IS DERIVED FROM THE HOUSING PROJE CT THE CREST AT PIMPLE SAUDAGAR PUNE WHICH IS ELIGIBLE FOR SEC TION 80IB(10) BENEFITS SUCH AN INCOME MERELY GOES TO ENHA NCE THE BUSINESS INCOME DERIVED FROM THE ELIGIBLE HOUSING PR OJECT AND SHALL BE ENTITLED FOR SECTION 80IB(10) BENEFITS EVEN AS PER THE RATIO OF THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF GEM PLUS JEWELLERY INDIA LTD. (SUPRA). 19. IN THE RESULT ON THE BASIS OF THE AFORESAID LEGA L POSITION AND THE MATERIAL AND EVIDENCE ON RECORD ASSESSEE IS E LIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE ACT IN RELATION TO IMPUGNED ADDITIONAL INCOME OFFERED IN A STATEMENT U/S 132(4) OF THE ACT IN THE COURSE OF SEARCH AND SUBSEQUENTLY DECLARED I N THE RETURN FILED IN RESPONSE TO NOTICE U/S 153A(1)(A) OF THE ACT. IN THE RESULT APPEAL OF THE ASSESSEE FOR ASSESSMENT YEA R 2008- 09 IS ALLOWED. 37. IN VIEW OF THE LEGAL POSITION EXPLAINED IN THE AB OVE PRECEDENT AND THE MATERIAL AND EVIDENCE ON RECORD ASSESSEE IS E LIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE ACT EVEN IN RELATION T O IMPUGNED ADDITIONAL INCOME OFFERED IN A STATEMENT DEPOSED U/S 132(4) OF THE ACT DURING THE COURSE OF SEARCH AND SUBSEQUENTLY DE CLARED IN THE ITA NOS.248 TO 253/PN/2013 M/S. SAI SAMARTH CONSTRUCTION AND GROUP 11 RETURN OF INCOME FILED IN RESPONSE TO NOTICE U/S 153 A(1)(A) OF THE ACT. THUS ASSESSEES CLAIM FOR DEDUCTION U/S 80IB(10) OF TH E ACT IN RELATION TO THE IMPUGNED ADDITIONAL INCOME OF RS.60 00 00 0/- IS LIABLE TO BE UPHELD. 38. BEFORE PARTING WE MAY REFER TO THE DECISION OF T HE CHANDIGARH BENCH OF THE TRIBUNAL IN THE CASE OF LIBERTY PLYWOOD (P.) LTD. (SUPRA) RELIED UPON BY THE LEARNED CIT-DR FOR THE PROPOSITION THAT INCOME SURRENDERED DURING THE COURSE OF A SURVEY ACTION WA S TO BE ASSESSED SEPARATELY AS DEEMED INCOME. ON THE BASIS OF THE SAID PROPOSITION THE CHANDIGARH BENCH OF THE TRIBUNAL DE NIED THE CLAIM OF THE ASSESSEE TO SET-OFF BUSINESS LOSSES AGAINST SU CH SURRENDERED INCOME IN THE CONTEXT OF SECTIONS 70 AND 71 OF THE ACT. BY DRAWING AN ANALOGY FROM THE SAID PRECEDENT IT IS CANVASSED B Y THE REVENUE THAT THE IMPUGNED ADDITIONAL INCOME IS NOT ELIGIBLE FO R THE BENEFITS OF SECTION 80IB(10) OF THE ACT. 39. WE HAVE CAREFULLY PERUSED THE FACT-SITUATION IN THE CASE BEFORE THE CHANDIGARH BENCH OF THE TRIBUNAL AND FIND THAT T HE RATIO OF THE SAID DECISION HAS TO BE UNDERSTOOD WITH REFERENCE TO PECULIAR FACTS OF THE CASE. IN THE CASE BEFORE THE CHANDIGARH BENCH O F THE TRIBUNAL THE UNDISCLOSED INCOME SURRENDERED BY THE ASSESSEE I N THE COURSE OF SEARCH WAS IN THE SHAPE OF UNACCOUNTED CASH INVESTM ENTS ETC. AND THE MATERIAL SEIZED DID NOT SHOW THE SOURCES OF ACQUI SITION OF THE UNDISCLOSED INCOME REFLECTED BY SUCH UNACCOUNTED CASH ETC.. SO HOWEVER IN THE PRESENT CASE IT IS FACTUALLY CLEAR THAT THE IMPUGNED ADDITIONAL INCOME IS NOTHING BUT MONIES RECEIVED BY T HE ASSESSEE FROM CUSTOMERS AGAINST SALE OF FLATS IN ITS HOUSING PR OJECT SAI NISARG PARK - MAYURESHWAR WHICH WAS NOT RECORDED IN THE R EGULAR ACCOUNT BOOKS. CLEARLY IN THE CASE BEFORE US SOURCE OF ADDITI ONAL INCOME IS THE EXECUTION OF THE HOUSING PROJECT AND ONCE THE S OURCE OF INCOME IS ESTABLISHED THE ASSESSABILITY HAS TO FOLLOW. THE SAID FA CT-POSITION IS QUITE DIFFERENT AND DISTINCT FROM WHAT WAS BEFORE T HE CHANDIGARH BENCH OF THE TRIBUNAL AND THEREFORE THE PROPOSITION LAID DOWN BY THE CHANDIGARH BENCH OF THE TRIBUNAL IS NOT APPLICABLE TO THE PRESENT FACT-SITUATION. HENCE RELIANCE PLACED BY THE LEARNED C IT-DR ON THE SAID DECISION DOES NOT HELP THE CASE OF THE REVENUE. 40. IN THE RESULT WE SET-ASIDE THE ORDER OF THE CIT (A) AND DIRECT THE ASSESSING OFFICER TO ALLOW THE DEDUCTION U/S 80IB (10) OF THE ACT EVEN IN RELATION TO THE INCOME SURRENDERED DURING T HE COURSE OF SURVEY ON ACCOUNT OF THE UNDISCLOSED RECEIPTS FROM T HE HOUSING PROJECT SAI NISARG PARK - MAYURESHWAR AMOUNTING TO RS.60 00 000/-. THUS ON THIS GROUND ASSESSEE SUCCEEDS. 9. THE ISSUE RAISED IN THE PRESENT APPEAL BEFORE US IS IDEN TICAL TO THE ISSUE RAISED BEFORE THE TRIBUNAL IN SHRI NARESH T. WADHWANI VS. DCIT (SUPRA) AND FOLLOWING THE SAME PARITY OF REASONING WE HOLD THAT THE ASSESSEE IS ENTITLED TO THE CLAIM OF DEDUCTION UNDER SECTIO N 80IB(10) OF THE ACT ON THE ADDITIONAL INCOME IN THE STATEMENT RECOR DED UNDER SECTION ITA NOS.248 TO 253/PN/2013 M/S. SAI SAMARTH CONSTRUCTION AND GROUP 12 132(4) OF THE ACT. ACCORDINGLY WE DIRECT THE ASSESSING OFF ICER TO ALLOW DEDUCTION UNDER SECTION 80IB(10) OF THE ACT ON THE ADDITIO NAL INCOME OFFERED BY THE ASSESSEE. THUS THE GROUNDS OF APPEAL R AISED BY THE ASSESSEE ARE ALLOWED. 10. THE FACTS AND ISSUE IN ITA NOS.248 249 250 252 AND 253/PN/2013 ARE IDENTICAL TO THE FACTS AND ISSUE IN ITA NO.251/PN/2013 AND FOLLOWING THE SAME PARITY OF REASONING WE HOLD THAT THE ASSESSEE IS ENTITLED TO CLAIM DEDUCTION UNDER SE CTION 80IB(10) OF THE ACT ON ADDITIONAL INCOME OFFERED IN THE STATEMENT REC ORDED UNDER SECTION 132(4) OF THE ACT IN ITA NOS.248 249 250 252 AND 253/PN/2013 ALSO. 11. IN THE RESULT ALL THE APPEALS OF THE ASSESSEES ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 26 TH DAY OF NOVEMBER 2014. SD/- SD/- (G.S. PANNU) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE DATED: 26 TH NOVEMBER 2014. GCVSR COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-CENTRAL PUNE; 4) THE CIT-CENTRAL PUNE; 5) THE DR A BENCH I.T.A.T. PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// ASSISTANT REGISTRAR I.T.A.T. PUNE