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Per B.R. Baskaran (AM) :-

All the three appeals filed by the assessee are directed against the revision orders passed by Ld Pr. CIT u/s 263 of the Act for assessment years 2009-10, 2010-11 and 2012-13. The assessee is challenging the validity of revision orders passed by Ld Pr. CIT.

2. The assessee is engaged in the business of builders and property developers. For assessment years 2009-10 and 2010-11, the original assessments were completed u/s 143(3) r.w.s. 153A of the Act, consequent to the search operation conducted in the hands of the assessee u/s 132 of the Act on 10-09-2009. The assessee had declared a total income of Rs.280.82 crores in AY 2009-10 after claiming deduction u/s 80IB(10) and sec. 80IA(4) of Housing Development & Infrastructure Ltd.

5. Consequent to the agreement, the assessee purchased 1900 acres of land and conveyed the same to the Slum Rehabilitation Authority as per SRA Scheme. Since the assessee put the claim that its activities also form part of Airport development, which is an infrastructure facility, and hence it is eligible to claim deduction u/s 80IA(4) in respect of profits related to TDR receipts less Housing Development & Infrastructure Ltd.

cost related thereto in the form of purchase of land, construction of flats etc. The AO rejected the claim for deduction u/s 80IA(4) and the assessee challenged the same by filing appeal before Ld CIT(A). The assessing officer also made various other additions. Before Ld CIT(A), the assessee did not get favourable orders and hence it filed appeals before the Tribunal for AY 2009-10 and 2010-11.

8. In all the three assessment years under consideration, the assessee determined the cost relating to TDR sales on estimated basis and allocated the same against the proceeds of TDR sales. Accordingly it computed profit from TDR sales and claimed the same as deduction u/s 80IA(4) of the Act, as it is the claim of the assessee that it is involved in development of infrastructure facility. In the year relevant to AY 2009-10, the assessee sold TDR rights for Rs.265 crores and claimed a sum of Rs.105.65 crores as cost related to TDR. Accordingly the profit was estimated at Rs.159.08 crores (Rs.265 crores less Rs.105.65 crores) and the assessee claimed deduction of entire profit u/s 80IA(4) of the Act. In the year relevant to AY 2010-11, TDR sale receipts was Rs.1307.87 crores and the assessee estimated the cost of sales at Rs.627.61 crores. The assessee also allocated proportionate administration cost to the tune of Rs.154.89 crores. Accordingly it computed the profit from Airport contract at Rs.525.36 crores and claimed the same as deduction u/s 80IA(4) of Housing Development & Infrastructure Ltd.

"41. At this stage, we would like to appreciation Ld Counsel for the assessee, Dr. K. Shivram for bringing to the notice of this Bench the facts which have arisen after the conclusion of the first appellate proceedings. By this factual submission by Ld Counsel, miscarriage of justice would be prevented. The facts as they are before us today leave us no choice but to restore this issue back to the files of the AO for framing the assessment denovo. Since the very basis of the claim of deduction u/s 80IA(4) of the Act do not exist, the claim of deduction u/s 80IA(4) cannot be entertained and therefore rejected subject to the outcome of the arbitration proceedings and the profit arising out of the sale of TDR has to be recomputed in line with the revised computation of cost of sale of TDR as filed before us by the Ld Counsel. The AO is directed to consider the revised computation of cost of sale of TDR after giving a reasonable and fair opportunity of being heard to the assessee. The assessee is directed to substantiate its claim by bringing any relevant material which was not submitted in the earlier proceedings. The AO is also free to collect any relevant information as Housing Development & Infrastructure Ltd.