ITO 25(2)(4), MUMBAI v. VANDANA PROPERTIES, MUMBAI

ITA 7398/MUM/2010 | 2006-2007
Pronouncement Date: 25-11-2014 | Result: Dismissed

Appeal Details

RSA Number 739819914 RSA 2010
Assessee PAN AAAFV3003E
Bench Mumbai
Appeal Number ITA 7398/MUM/2010
Duration Of Justice 4 year(s) 28 day(s)
Appellant ITO 25(2)(4), MUMBAI
Respondent VANDANA PROPERTIES, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 25-11-2014
Appeal Filed By Department
Order Result Dismissed
Bench Allotted F
Tribunal Order Date 25-11-2014
Date Of Final Hearing 25-11-2014
Next Hearing Date 25-11-2014
Assessment Year 2006-2007
Appeal Filed On 28-10-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNALF BENCH MUMB AI BEFORE SHRI JOGINDER SINGH JM AND SHRI SANJAY ARORA AM ITA NOS.7398/MUM/2010 ASSESSMENT YEARS-2006-07 THE ITO 25(2)(4) C-11 1 ST FLOOR PRATYAKSHAKAR BHAVAN BANDRA KURLA COMPLEX BANDRA(E) MUMBAI-400051 / VS. M/S VANDANA PROPERTIES B-602 PREM NAGAR BLDG. NO.6 MCF UDYAN MARG BORIVALI(W) MUMBAI-400092 ./ PAN :AAAFV3003E ( / APPELLANT ) .. ( / RESPONDENT ) ! / ASSESSEE BY: SHRI PAWAN KUMAR BEERLA ! / RESPONDENT BY : SHRI VIPUL JOSHI & ABHISHEK TILAK ' #$% &' / DATE OF HEARING 25/11/2014 ()* &' / DATE OF PRONOUNCEMENT : 25/11/2014 / O R D E R PER JOGINDER SINGH JM: THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DATE D 06/08/2010 OF THE LD. FIRST APPELLATE AUTHORITY MUM BAI ON THE GROUND THAT THE LD. COMMISSIONER OF INCOME TAX (APP EALS) ERRED IN ALLOWING DEDUCTION U/S 80IB(10) OF THE INCOME-TAX A CT 1961 WITH 2 M/S VANDANA PROPERTIES RESPECT TO AN AMOUNT OF RS.16 LAKH WHICH WAS DECLAR ED AS UNDISCLOSED INCOME BY THE ASSESSEE ON ACCOUNT OF EX TRA WORK DONE FOR ADDITION AMENITIES/INTERNAL ALTERATIONS PROBABLY ON THE REQUEST OF THE BUYERS OVER AND ABOVE THE VALUE SHOWN IN THE SALE A GREEMENT. 2. AT THE TIME OF HEARING SHRI PAWAN KUMAR BEERLA LD. DR DEFENDED THE CONCLUSION DRAWN IN THE ASSESSMENT ORD ER AND FURTHER ADVANCED HIS ARGUMENTS WHICH ARE IDENTICAL TO THE G ROUND RAISED. ON THE OTHER HAND THE LD. COUNSEL FOR THE ASSESSEE SH RI VIPUL JOSHI ALONG WITH SHRI ABHISHEK TILAK CONTENDED THAT THE I MPUGNED ISSUE IS COVERED BY THE DECISION OF THE TRIBUNAL IN THE CASE OF ITO VS M/S MIRAJ ENTERPRISES (ITA NO.4015/MUM/2010 ORDER DATED 26/03 /2014) BY FURTHER SUBMITTING THAT THE DECISION OF THE TRIBUNA L IS FROM THE SAME GROUP OF CASES HAVING IDENTICAL FACTS. THIS FACTUA L MATRIX WAS NOT CONTROVERTED BY THE REVENUE WITH THE HELP OF ANY PO SITIVE MATERIAL. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND P ERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW OF THE ABOVE ASSERTIONS WE ARE REPRODUCING HEREUNDER THE RELEVANT PORTIONS FROM TH E ORDER OF THE TRIBUNAL DATED 26/03/2014 FOR READY REFERENCE. 4. THE SOLITARY ISSUE INVOLVED IN THE GROUNDS PER TAIN TO THE ALLOWANCE OF DEDUCTION U/S 80IB(10) OF THE INCOME T AX ACT 1961. THE FACTS INVOLVED IN THE CASE ARE THAT THE ASSESSEE I S A PARTNERSHIP FIRM AND IS ENGAGED IN THE BUSINESS OF BUILDER AND DEVELOPER . A SURVEY WAS CONDUCTED ON THE ASSESSEE AND ITS SISTER CONCERNS U /S 133A OF THE INCOME TAX ACT 1961 ON 11.10.2005 WHEREIN ONE OF THE PAR TNERS OFFERED RS. 2 91 00 000/- AS ADDITIONAL INCOME FOR THE GROUP AS A WHOLE. IN SO FAR AS THE ASSESSEE WAS CONCERNED THERE WAS A DISCLOSURE OF RS. 95 00 000/-. THE ORIGINAL RETURN WAS ACCEPTED U/S 143(1) BUT SI NCE THERE WAS A DISCLOSURE OF RS. 95 00 000/- THE AO INITIATED REA SSESSMENT PROCEEDING AND ISSUED NOTICE U/S 148. IN THE RETURN IN RESPON SE TO NOTICE U/S 148 THE ASSESSEE DID NOT SHOW THE INCOME OFFERED SEPARA TELY BUT INCLUDED THE 3 M/S VANDANA PROPERTIES SAME FOR THE CLAIM OF DEDUCTION U/S 80IB(10) WHICH WAS QUANTIFIED AT RS. 2 96 77 083/- BY THE ASSESSEE. 5. THE AO WHILE FRAMING THE ASSESSMENT SOUGHT THE ASSESSEES SUBMISSION WITH REGARD TO ALLOWABILITY OF DEDUCTION CLAIMED U/S 80IB(10) AND WHETHER THE AMOUNT OFFERED FOR TAXATION AT RS. 95 00 000/- COULD BE INCLUDED INTO THE QUANTIFYING AMOUNT FOR THE COMPUT ATION OF DEDUCTION U/S 80IB(10). 6. THE ASSESSEE IN RESPONSE TO THE QUERY RAISED BY THE AO RESPONDED THAT THE ASSESSEE COMMENCED ITS PROJECT F OR HOUSING DEVELOPMENT ON 23.03.2003 AS PER COMMENCEMENT CERTI FICATE DATED 03.12.2002. AS PER THE DETAILS PROVIDED BY THE ASSE SSEE CONSTRUCTION OF BUILDING 1 WAS COMPLETED ON 15.12.2006 VIDE COMPLET ION CERTIFICATE ISSUED BY MCGM DATED 15.12.2006 VIDE LETTER DATED CHE/8362/BPWS/AP. ACCORDING TO THE ASSESSEE THE CON STRUCTION OF THIS BUILDING SHOULD HAVE BEEN COMPLETED ON OR BEFORE 31 .03.2008. THEREFORE IT CAN BE SEEN THAT THE BUILDING WAS COMPLETED MUC H BEFORE THE TIME. SIMILARLY THE CONSTRUCTION ON BUILDING NO. 2 SHOULD HAVE BEEN COMPLETED BEFORE 11.07.2009 BUT THE ASSESSEE COMPLETED THE C ONSTRUCTION ON 06.09.2007 AS PER LETTER ISSUED BY MCGM DATED 06.0 9.2007 REFERENCE NO. CE/9018/BPWS/AP. 7. THE ASSESSEE ALSO SUBMITTED THAT THE PLOT ON WH ICH THE DEVELOPMENT TOOK PLACE WAS 1.10 ACRES AS IS EVIDEN T FROM THE CERTIFICATE ISSUED BY THE ARCHITECT. 8. THE ASSESSEE ALSO SUBMITTED THAT IN SO FAR AS BU ILDING NO. 1 WAS CONCERNED IT HAD FLATS LESS THEN 1000 SQ. FT. AND W AS HAVING A COMMERCIAL SPACE OF 1500 SQ. FT AND BUILDING NO. 2 COMPRISED O F RESIDENTIAL FLATS ONLY AND ALL FLATS HAD AREA OF LESS THEN 1000 SQ. FT. TH E ASSESSEE THEREFORE SUBMITTED THAT ALL THE REQUIREMENTS FOR CLAIMING D EDUCTIONS U/S 80IB(10) HAD BEEN COMPLIED WITH. 9. THESE SUBMISSIONS AND CLARIFICATIONS DID NOT IMP RESS THE AO WHO OBSERVED THAT MERE OCCUPANCY CERTIFICATE ISSUED BY THE CONCERNED AUTHORITY SHALL NOT BE ENOUGH FOR ALLOWANCE OF DEDU CTION BECAUSE IN THE 4 M/S VANDANA PROPERTIES SURVEY OPERATION EVIDENCE HAD BEEN FOUND WHEREIN C ERTAIN FLATS HAD BEEN AMALGAMATED/JOINED TOGETHER AND CONVERTED BY THE AS SESSEE INTO BIGGER FLATS. THIS THE ASSESSEE WAS DOING IN THE GARB OF ADDITIONAL AMENITIES. SINCE THESE FACTS WERE KEPT UNDER THE COVERS THE C ONCERNED AUTHORITIES DID NOT COME TO KNOW & THE COMPLETION CERTIFICATES WERE ISSUED. THESE FACTS CREATED DOUBTS AS TO WHETHER THE FLATS IN QU ESTION WERE ACTUALLY LESS THEN 1000 SQ. FT PARTICULARLY LOOKING INTO TH E FACT THAT THE JOINT FLATS HAD ONE KITCHEN AND ONE ENTRANCE AND THAT THEY WERE IN EXCESS OF 1000 SQ.FT. AND THUS CLEARLY INFRINGED THE REQUIREMENTS OF ALLOWANCE OF DEDUCTION. THE AO ALSO MENTIONS THAT THE PROVISION OF THE IMPUGNED SECTION USES THE EXPRESSION HOUSING PROJECTS AND SINCE THERE WAS A COMMERCIAL AREA OF 1500 SQ.FT. IN BUILDING NO. 1 W HICH WAS ALSO SOLD AS HOUSING PROJECT THE CLAIM OF THE ASSESSEE FOR DEDU CTION BECAME INELIGIBLE. THE AO THEREFORE DISALLOWED THE ENTIRE CLAIM OF D EDUCTION U/S 80IB(10) WHICH INCLUDED THE DECLARED AMOUNT OF RS. 95 00 000 /- DECLARED AT THE TIME OF SURVEY AND ALSO BECAUSE IT WAS UNDERTAKEN B Y THE MANAGING PARTNER OF THE ASSESSEE FIRM THAT THE DECLARED AMO UNT SHALL NOT BE INCLUDED FOR THE CLAIM OF DEDUCTION U/S 80IB(10). B Y INCLUDING THE SURRENDERED SUM IN THE QUALIFYING AMOUNT FOR THE CL AIM OF DEDUCTION U/S 80IB(10) ACCORDING TO THE AO WAS RETRACTION OF TH E AMOUNT SO OFFERED AT THE TIME OF SURVEY U/S 133A. 10. AGGRIEVED THE ASSESSEE APPROACHED THE CIT(A) BEFORE WHOM THE FACTS AND SUBMISSIONS MADE BEFORE THE AO WERE REITE RATED. THE CIT(A) ON CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND THE ORDER OF THE AO OBSERVED THAT FOR THE CLAIM OF DEDUCTION U/S 80IB(1 0) INDIVIDUAL PLOT SIZE FOR INDIVIDUAL BUILDING TO BE IN EXCESS OF 1 ACRE I S NOT NECESSARY. HE OBSERVED THAT IN THE INSTANT CASE BUILDING 1 AND 2 ARE CONSTRUCTED ON ONE PLOT WHICH MEASURES 1.10 ACRES. THIS WILL NOT DISEN TITLE THE ASSESSEE FROM THE CLAIM OF DEDUCTION AND THEREFORE THE AO WAS U NJUSTIFIED TO DENY THE DEDUCTION. 11. ON THE ISSUE OF JOINING/AMALGAMATION OF FLAT AR EA WHICH EXCEEDED 1000 SQ. FT. WAS AN ISSUE WHICH FIRST CAM E IN ASSESSMENT YEAR 2005-06 WHEREIN THE CIT(A) CONSIDERING THE EVIDEN CE FOUND IN THE SAME 5 M/S VANDANA PROPERTIES SURVEY OPERATION U/S 133A DATED 11.10.2003 OF THE FLATS JOINED TOGETHER RESULTING INTO THE AREA EXCEEDING 1000 SQ .FT. HAD OPINED IN FAVOUR OF THE ASSESSEE. IN THE APPEAL FILED BY THE REVENUE THE COORDINATE BENCH OF THE ITAT HELD FOR THE PURPOSE OF ALLOWING DEDUCTION U/S 801B(10) THE ASSESSEE SHOULD FULFILL ALL THE CONDITIONS MENTIONED THEREIN. FROM THE BROC HURES FOUND DURING THE COURSE OF SURVEY IT IS CLEAR THAT THE ASSESSEES INTENTIO N WAS TO BUILD 3 BHK FLATS ON 6 TH TO 9 TH FLOORS OF A WING. THE ACTUAL CONSTRUCTION AS FOUN D DURING THE SURVEY IS AS PER THE PLAN SHOWN IN THE BROCHURES. THIS HAS THUS CREATED A DOUBT IN MINDS OF REVENUE AUTHORITIES. AS PROVIDED UNDER THE EXPLANATI ON (III) TO CLAUSE (A) OF SUB- SECTION (10) OF SEC 801B 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 AUTH ORITY. IN THE CASE BEFORE US THE COMPLETION CERTIFICATE DATED 06.01.2005 HAS BEEN IS SUED BY THE MCGM AS CONSTRUCTED AS PER APPROVED PLAN. THE DUTY OF THE A SSESSEE COMPANY ENDS ON THE SAID DATE. AS PER THE APPROVED PLAN THERE ARE NO RE SIDENTIAL UNITS HAVING AREA OF MORE THAN 1000 SQ.FT.. THEREFORE WE ARE OF THE OPI NION THAT THE ASSESSEE HAS FULFILLED THE CONDITIONS PRESCRIBED U/S 801B(10) OF THE ACT AND WE SEE NO REASON TO INTERFERE WITH THE FINDINGS OF THE CIT(A) ON THI S ISSUE. 12. THE CIT(A) HAD ALSO GIVEN A CATEGORICAL OBSERVA TION THAT NO NEW FACTS HAD BEEN BROUGHT TO LIGHT BY THE AO EXCEPT FO R THE BROCHURES. 13. THE CIT(A) ON COMMERCIAL AREA & KIDS SCHOOL FU RTHER OBSERVED THAT THAT ISSUE WAS TAKEN INTO CONSIDERATION BY PU NE SPECIAL BENCH OF THE ITAT IN THE CASE OF BRAHMA ASSOCIATES REPORTED IN 30 SOT 155. BASED ON THE FINDINGS OF THE SB THE CIT(A) REVERSED THE ORDER OF THE AO ON THE OBJECTION OF HAVING COMMERCIAL AREA/KIDS SCHOOL IN 1500 SQ.FT. 14. ON THE ISSUE OF INCLUSION OF RS. 95 00 000/- IN THE CLAIM OF DEDUCTION U/S 80IB(10) THE CIT(A) WAS OF THE VIEW THAT THE ASSESSEE ENTERED INTO SUPPLEMENTARY AGREEMENTS WITH THE FLAT OWNERS WHEREIN THE ASSESSEE WAS REQUIRED TO PROVIDE CERTAIN EXTRA AMEN ITIES TO THEM. THE OBJECTION ON WHICH THE AO DEVELOPED HIS CASE WAS TH AT THE MANAGING PARTNER AT THE TIME OF SURVEY HAD OFFERED THE AMOU NT OF RS. 95 00 000/- FOR TAXATION WOULD NOT BE ELIGIBLE FOR THE CLAIM O F DEDUCTION U/S 80IB(10). THE CIT(A) OBSERVED I HAVE CONSIDERED THE SUBMISSIONS OF THE REPRESENT ATIVE AND THE STAND TAKEN BY THE AO. ADMITTEDLY THE APPELLANT OFFERED ADDITIONA L INCOME OF RS. 95 LACS FOR THIS ASSESSMENT YEAR AND THE MANAGING PARTNER FURTHER ST ATED THAT THE APPELLANT 6 M/S VANDANA PROPERTIES WOULD NOT BE ENTITLED TO DEDUCTION U/S 80IB(10) IN RESPECT OF THIS ADDITIONAL INCOME AS THE SAME WAS RECEIVED FOR PROVIDING EXTRA AMENITIES AND ALTERNATIONS AFTER GIVING POSSESSION OF FLATS. THIS IS THE BASIS ON WHICH THE A.O. DENIED DEDUCTION U/S 801B(10). AS CONTENTED BY THE REPRESEN TATIVE THE ALLOWANCE OF DEDUCTION IS TO BE DECIDED BASED ON THE MATERIALS G ATHERED AT THE TIME OF SURVEY AND NOT MERELY ON THE BASIS OF STATEMENT RECORDED. AT THE TIME OF SURVEY. A PERUSAL OF PARA 13.3(II) SHOWS THAT THE AMOUNT WAS RECEIVED ON 13.12.2004 AND 10.12.2004 WHICH IS BEFORE THE DATE OF OCCUPATION C ERTIFICATE. FURTHER THE APPELLANT HAS ADMITTED INCOME OF ONLY RS. 4 72 000/- FROM A WING AND THE MAJOR INCOME OF RS. 1 97 04 583/- IS FROM B WING OF BUILDI NG NO. 1. THE APPELLANT HAS SUBMITTED OCCUPATION CERTIFICATE DATED 23.12.2005 R ESPECT OF B WING. AS ON THE DATE OF SURVEY OCCUPATION CERTIFICATE ITSELF WAS N OT RECEIVED AND THEREFORE THE A.O. COULD NOT HAVE CONCLUDED THAT THE AMOUNT RECEIV ED REPRESENTS PAYMENT FOR PROVIDING ALTERATIONS AND AMENITIES AFTER HANDING O VER THE POSSESSION OF FLATS. FURTHER AS FAR AS A WING IS CONCERNED THE OCCUPATIO N CERTIFICATE WAS DATED 06.01.2005 WHICH IS BEFORE THE DATE OF SURVEY AND T HERE CAN BE SOME PORTION OF RECEIPT TOWARDS PROVISIONS OF AMENITIES AFTER GIVIN G POSSESSION OF FLATS. I ACCEPT THE PLEA OF THE REPRESENTATIVE THAT THE DECISION OF THE HONBLE MUMBAI TRIBUNAL IN THE CASE OF HIRALAL MAGANLAL & CO. IS NOT APPLICABL E TO THE FACTS OF THIS CASE AS IT IS DISTINGUISHABLE ON ACCOUNT OF THE FACT THAT THE DECLARATION OF ADDITIONAL INCOME IN THE CASE OF THE APPELLANT WAS BASED ON ERRONEOUS ASSUMPTION OF FACTS THAT THE ADDITIONAL INCOME WAS RECEIVED FOR WORK CARRIED OUT AFTER THE COMPLETION OF PROJECT WHILE THE PROJECT (B WING) WAS NOT COMPLETE D AS ON THE DATE OF SURVEY. FURTHER THE STATEMENT OF THE MANAGING PARTNER OF T HE APPELLANT FIRM WAS NOT RECORDED UNDER OATH AS IN THE CASE OF HIRALAL MAGAN LOL & CO. I THEREFORE ACCEPT THE CLAIM OF THE APPELLANT THAT THE DECISION OF HON BLE MUMBAI TRIBUNAL IN THE CASE OF HIRALAL MAGANLAL & CO. IS NOT APPLICABLE TO THE FACTS OF THE CASE. FURTHER AS CONTENDED BY THE REPRESENTATIVE AS THE APPELLAN T DOES NOT HAVE ANY OTHER SOURCE OF INCOME EXCEPT THE INCOME FROM MIRAJ RESID ENCY WHICH IS ENTITLED TO DEDUCTION U/S 801B(10) THE AO WOULD NOT BE JUSTIFIE D IN DENYING THE DEDUCTION AS HELD BY THE HONBLE AMNITSAR ITAT IN THE CASE OF K ASHMIR STEEL ROLLING MILLS (39 TTJ 126). 15. UPON HOLDING THAT THE ASSESSEE IS ELIGIBLE TO C LAIM THE DEDUCTION EVEN ON THE SURRENDERED AMOUNT THE CIT(A) BIFURCAT ED THE DEDUCTION TO 75:25 BY OBSERVING THAT IT WOULD NOT BE POSSIBLE T O DETERMINE WHETHER THE AMOUNTS RECEIVED BY THE ASSESSEE FOR THE PURPOS E OF OFFERING ADDITIONAL AMENITIES AND ALTERATIONS WERE BEFORE OR AFTER COMPLETION AND OCCUPATION. THE CIT(A) THEREFORE ALLOWED THE CLA IM ON INCOME AT 75% AND SUSTAINED THE DENIAL OF DISALLOWANCE AT 25% OF INCOME. 16. AGAINST THIS DECISION BOTH THE PARTIES ARE BEF ORE THE ITAT. 7 M/S VANDANA PROPERTIES 17. BEFORE US THE DR SUPPORTED THE ORDER OF THE AO AND CLAIMED THAT THE ENTIRE DEDUCTION SHOULD BE WITHDRAWN AND THE AR SUBMITTED THAT THE ORDER OF THE CIT(A) WAS CORRECT IN ALL RESPECTS TH EREFORE THE ENTIRE DEDUCTION SHOULD BE ALLOWED. 18. WE HAVE HEARD THE DETAILED ARGUMENTS OF THE CON TESTING PARTIES. SINCE THE SURRENDER OF ADDITIONAL INCOME WAS MADE I N OTHER CASES AND THE ISSUES OF JOINING THE FLATS TO MAKE THEM BIGGER FLA TS EXCEEDING 1000 SQ. FT. WERE THE SUBJECT MATTER OF OTHER ASSESSEES AND OTHE R YEARS OF THE ASSESSEE THE DETAILS WERE CALLED FOR. THE AR SUBMI TTED THE DETAILS BEFORE THE BENCH AND ON THE BASIS OF SUCH ORDERS IN THE CA SE OF VANDANA ENTERPRISES AND OTHER YEARS IN THE CASE OF THE ASSE SSEE WE FIND THAT THE COORDINATE BENCHES HAD BEEN TAKING CONSISTENT STAND AND ALLOWED THE DEDUCTION U/S 80IB(10) ON IDENTICAL FACTS AND ALLO WED THE DEDUCTION AS CLAIMED. THE RELEVANT PORTION OF THE ORDER OF THE C OORDINATE BENCH IN THE CASE OF THE ASSESSEE HAS BEEN REPRODUCED EARLIER IN THIS ORDER. 19. RESPECTFULLY FOLLOWING THE DECISION BASED ON I DENTICAL FACTS AS IN THE INSTANT CASE WE DO NOT FIND ANY REASON TO DEVI ATE FROM THE DECISION TAKEN IN ASSESSMENT YEAR 2005-06. WE THEREFORE HO LD THAT THE ASSESSEE IS ELIGIBLE FOR THE CLAIM OF DEDUCTION U/S 80IB(10) . 20. UPON HOLDING THIS WE ARE STILL ENCOUNTERED WIT H TWO ISSUES I.E. WHETHER THERE WAS A RETRACTION OF THE STATEMENT GIV EN BY THE MANAGING PARTNER TO NOT TO INCLUDE THE AMOUNT OF RS. 95 00 0 00/- IN THE AMOUNT QUALIFYING FOR DEDUCTION U/S 80IB(10). TO ADJUDICA TE ON THIS ISSUE WE HAVE TO CONSIDER THE FOLLOWING: A. WHETHER AT THE TIME OF SURVEY ANYTHING WAS FOUND T O SUGGEST THE SOURCE OF RS. 95 00 000/- TO BE NOT THE PART OF THE EXISTIN G BUSINESS; B. WHETHER THE SOURCE OF RS. 95 00 000/- IS THE BUSINES S OF THE ASSESSEE OR SOMETHING ELSE; AND C. WHETHER THE STATEMENT GIVEN OATH U/S 133A IS BINDING AND CANNOT BE RETRACTED. 21. SO FAR AS (A) IS CONCERNED THE CIT(A) HAS CONC LUDED THAT THE AO HAS NOT BROUGHT ANY NEW FACTS FOR THE YEAR UNDER CO NSIDERATION. THE FACTS THAT EMERGED AT THE TIME OF SURVEY U/S 133A REMAIN AS IT IS AND ALSO THAT THEY WERE CONSIDERED EVEN IN ASSESSMENT YEAR 2005-0 6 AS WELL WHEREIN THE COORDINATE BENCH HAS ALLOWED THE CLAIM. 8 M/S VANDANA PROPERTIES 22. COMING TO (B) AS OBSERVED US IN (A) NO NEW MA TERIAL HAS BEEN BROUGHT TO LIGHT FOR THE INSTANT YEAR BY THE AO TH E FACTS ARE EVIDENT THAT WHATEVER FUNDS WERE RECEIVED BY THE ASSESSEE PERTA INED TO AND HAD DIRECT NEXUS WITH THE BUSINESS OF THE ASSESSEE AND NO OTHER SOURCE THEREFORE THOUGH THE IMPUGNED AMOUNT WAS ADDITIONA LLY OFFERED IT STILL REMAINED RECEIPT/INCOME PERTAINING TO THE BUSINESS. IT IS IN ANY CASE A SETTLED LINE OF ADJUDICATION THAT ANY CLAIM FOR DED UCTION UNDER INCOME TAX ACT ARE DEPENDENT UPON THE CONDITIONS LAID DOWN UND ER THE PROVISIONS OF THE ACT AND THERE ARE REQUISITE FORMALITIES WHICH A RE REQUIRED TO BE DONE AS PER THE LAW. ONCE THESE CONDITIONS ARE FULFILLED THE ASSESSEE IS ENTITLED FOR STATUTORY DEDUCTION OR CLAIM TO WHICH HE IS ENT ITLED TO. MERE CONSENT OR ACQUIESCENCE BY THE ASSESSEE CANNOT TAKE AWAY THE O THERWISE A LEGITIMATE CLAIM TO WHICH HE IS ENTITLED TO. IT IS AN ADMITTED POSITION OF LAW THAT AN ADMISSION OR ACQUIESCENCE CANNOT BE A FOUND ATION FOR ASSESSMENT WHERE THE INCOME IS RETURNED UNDER ERRONEOUS IMPRES SION OR MISCONCEPTION OF LAW. IT IS OTHERWISE OPEN TO THE A SSESSEE TO DEMONSTRATE AND SATISFY THE AUTHORITIES CONCERNED THAT HIS PART ICULAR INCOME WAS NOT TAXABLE OR CLAIM FOR DEDUCTION IS OTHERWISE LAWFULL Y ALLOWABLE TO HIM. IF IN LAW AN ITEM IS NOT TAXABLE NO AMOUNT OF ADMISSION CAN BE MADE TAXABLE. IN VIEW OF THE SAID PRINCIPLE IT WAS TO BE HELD TH AT EVEN THOUGH THE ASSESSEE HAD SURRENDERED ITS CLAIM BEFORE THE ASSES SING OFFICER THE SAME COULD BE CHALLENGED ON MERITS IF IT HAD A STRO NG CASE FOR SUCH A CLAIM BASED ON FACTS AND MATERIAL ON RECORD AND CON DITIONS RELEVANT FOR CLAIMING SUCH DEDUCTION STOOD FULFILLED . 23. HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS SHETH DEVELOPERS (P) LTD REPORTED IN 254 CTR 127 (BOM) ( COPY FILED BEFORE US) HELD EXPLANATION TO SUB-S (1) OF S 158BB WAS AMENDED BY THE FINANCE ACT 2002 WITH RETROSPECTIVE EFFECT FROM 1ST JULY 1995. PRIOR TO THE AMENDMENT ACCORDING TO THE EXPLANATION THE TOTAL INCOME OR LOSS WAS TO BE COM PUTED IN ACCORDANCE WITH CHAPTER IV. CONSEQUENT TO THE AMENDMENT BY FINANCE ACT 2002 WITH RETROSPECTIVE EFFECT FROM 1ST JULY 1995 THE TOTAL INCOME OR LOSS HAS TO BE COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT. CONSEQUENTLY W.E.F. 1ST JULY 1995 THE TOTAL INCOME/LOSS FOR THE BLOCK PERI OD HAS TO BE COMPUTED 3N ACCORDANCE WITH THE PROVISIONS OF THE ACT AND THE SA ME WOULD INCLUDE CHAPTER V/-A. SEC 80-LB IS A PART OF CHAPTER VI-A. IN VIEW OF THE ABOVE WHILE COMPUTING THE UNDISCLOSED INCOME FOR THE BLOCK PERIOD THE RES PONDENT ASSESSEE IS ENTITLED TO CLAIM DEDUCTION FROM ITS INCOME UNDER S. 80-LB. IT IS NOT THE CASE OF THE REVENUE THAT THE MONEY FOUND IN POSSESSION OF THE ASSESSEE COULD NOT BE EXPLAINED AND/OR ITS SOURCE COULD NOT BE EXPLAINED TO THE SAT ISFACTION OF THE AO. IN THE PRESENT CASE UNDISCLOSED INCOME FOUND IN THE FORM O F CASH WAS EXPLAINED AS HAVING BEEN ACQUIRED WHILE CARRYING ON BUSINESS AS A BUILDER AND THIS EXPLANATION WAS ACCEPTED BY THE AO BY HAVING ASSESSE D THE UNDISCLOSED INCOME FOR THE BLOCK PERIOD AS INCOME FROM PROFITS AND GAI NS OF BUSINESS OR PROFESSION. IN 9 M/S VANDANA PROPERTIES THE PRESENT CASE NO QUESTION OF APPLICATION OF SS. 68 69 AND 69A 69B AND 69C ARISES AS THE SAME HAS NOT BEEN INVOKED BY THE DEPA RTMENT. IT IS AN ADMITTED POSITION BETWEEN THE PARTIES AS REFLECTED EVEN IN T HE ORDER OF THE AO THAT UNDISCLOSED INCOME WAS IN FACT RECEIVED BY ASSESSEE IN THE COURSE OF CARRYING OUT ITS BUSINESS ACTIVITIES AS A BUILDER. 24. FROM THE ABOVE IT IS CLEAR THAT THE ASSESSEE SU RRENDERED THE INCOME WHOSE ONLY SOURCE WAS THE BUSINESS OF THE ASSESSEE. 25. ON THESE OBSERVATIONS WE ARE OF THE VIEW THAT THE CLAIM OF THE ASSESSEE TO INCLUDE RS. 95 00 000/- IN THE COMPUTAT ION OF DEDUCTION U/S 80IB(10) IS IN ACCORDANCE WITH LAW AND MUST BE ALLO WED AND WE THEREFORE SUSTAIN THE ORDER OF THE CIT(A). 26. COMING TO (C) WHETHER THE STATEMENT ON OATH U/ S 133A IS BINDING AND CANNOT BE RETRACTED WE HAVE TO MAKE A CATEGORI CAL OBSERVATION HERE THAT STATEMENT GIVEN U/S 133A IS NOT ON OATH. SECTI ON 133A(III) OBSERVES RECORD A STATEMENT OF ANY PERSON WHICH MAY BE USEF UL FOR OR RELEVANT TO ANY PROCEEDING UNDER THE ACT. THEREFORE THE STATEM ENT MADE BY THE MANAGING PARTNER TO NOT TO INCLUDE THE AMOUNT OF RS . 95 00 000/- IN THE CLAIM OF DEDUCTION WOULD HAVE NO RELEVANCE FIRST O N THE FACT THAT THE STATEMENT WAS MADE U/S 133A. SECONDLY EVEN IF THE STATEMENT WAS RECORDED ON OATH THE ASSESSEE HAS PREROGATIVE TO C HANGE HIS/ITS STAND AFTER TAKING INTO CONSIDERATION THE FACTS THAT EMER GE FROM THE PAPERS SEIZED OR IMPOUNDED. THE LAW DOES NOT BAR OR CREATE ANY TYPE OF ESTOPPEL TO RETRACT FROM THE STATEMENT EVEN IF GIVEN ON OAT H IF THE FACTS ARE OTHERWISE. HENCE THE ASSESSEE WAS CORRECT TO INCLU DE THE AMOUNT OFFERED IN THE QUALIFYING AMOUNT OF THE CLAIM FOR DEDUCTION U/S 80IB(10). 2.2. IF THE OBSERVATION MADE IN THE ASSESSMENT ORDE R CONCLUSION DRAWN IN THE IMPUGNED ORDER MATERIAL AVAILABLE ON RECORD AND THE ASSERTIONS MADE BY THE LD. RESPECTIVE COUNSEL IF KEPT IN JUXTAPOSITION AND ANALYZED WE FIND THAT IMPUGNED ISSUE IS COVERE D BY THE DECISION OF THE TRIBUNAL WHEREIN THE DECISION FROM HONBLE JURISDICTION HIGH COURT IN THE CASE OF CIT VS SHETH DEVELOPERS (P.) L TD. 254 CTR 127 10 M/S VANDANA PROPERTIES (BOM) HAS BEEN DISCUSSED. IT IS ALSO NOTED THAT SU RVEY ACTION U/S 133A OF THE ACT WAS CARRIED OUT ON 11/10/2005 WHER EIN STATEMENT OF JAGAT V. SHAH MANAGING PARTNER OF THE ASSESSEE FIR M WAS RECORDED ON 11/10/2005. THE ASSESSEE RECEIVED SOME PART OF SAL E CONSIDERATION IN CASH ON THE REQUEST OF THE CUSTOMERS AND IN REPL Y TO QUESTION NO. 14 HE SPECIFICALLY TENDERED THAT THE IMPUGNED AMOUN TS WERE TRANSACTED IN CASH AND THUS A VOLUNTARY DISCLOSURE OF ADDITIONAL INCOME OF RS.2.91 CRORES WAS MADE OVER AND ABOVE TH E NORMAL BUSINESS INCOME. THE BREAK UP OF THE SAID DISCLOSU RE IS AS UNDER:- NAME OF THE FIRM ASS. YEAR. AMOUNT (RS.) M/S VANDANA BUILDERS 2005-06 60 00 000 2006-07 15 00 000 M/S VANDANA ENTERPRISES 2005-06 75 00 000 2006-07 30 00 000 M/S VANDANA PROPERTIES 2006-07 16 00 000 M/S MIRAJ ENTERPRISES 2006-07 95 00 000 TOTAL 2 91 00 000 THE TOTALITY OF FACTS CLEARLY INDICATES THAT THE DI SCLOSURE IS OFF SHOOT OF SURVEY CARRIED OUT ON 11/10/2005 ON THE SA ME GROUP OUT OF WHICH ON IDENTICAL FACT THE CASE OF M/S MIRA J ENTERPRISES (SUPRA) HAS BEEN DECIDED BY THE TRIBUNAL. NO NEW F ACT HAS BEEN BROUGHT ON RECORD BY EITHER SIDE BEFORE US. RESPEC TFULLY FOLLOWING THE AFORESAID DECISION OF THE TRIBUNAL THAT TOO IN THE SAME GROUP/IDENTICAL FACTS WE FIND NO INFIRMITY IN THE CONCLUSION DRAWN BY THE LD. COMMISSIONER OF INCOME TAX (APPEAL S). IT IS AFFIRMED RESULTING INTO DISMISSAL OF APPEAL OF TH E REVENUE. FINALLY THE APPEAL OF THE REVENUE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN TH E 11 M/S VANDANA PROPERTIES PRESENCE OF LD. REPRESENTATIVE FROM BOTH SIDES AT T HE CONCLUSION OF THE HEARING ON 25 TH NOVEMBER 2014. SD/- SD/- (SANJAY ARORA) ( JOGINDER SINGH) ACCOUNTANT MEMBER J UDICIAL MEMBER ' -% MUMBAI; .# DATED.- 25/11/2014 F{X~{T? P.S/. # . . !' #'$ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ' /& ( ) / THE CIT(A)- CONCERNED MUMBAI 4. ' /& / CIT CONCERNED MUMBAI 5. 0$1  ' 2* ' -% / DR ITAT MUMBAI E BENCH 6. 34 5% / GUARD FILE. % / BY ORDER 0& & //TRUE COPY// & / %' ( (DY./ASSTT. REGISTRAR) ' -% / ITAT MUMBAI.