M/s. Rane Associates, Pune V. Income-tax Officer,

CO 34/PUN/2016

• Counselvise Citation: [2016] 123 COUNSELVISE.COM (IT) 2655 (ITAT-PUNE)
• Duration Of Justice: 1 month(s) 22 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-12-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 25-10-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUMITRA BANERJI
• Section: 80IB

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE , BEFORE SHRI R. P. TOLANI, JM / ITA NO.127/PN/2015 ! '#! / ASSESSM ENT YEAR : 2011-12 THE INCOME TAX OFFICER, WARD 2(1), PUNE. . /APPELLANT VS. M/S RANE ASSOCIATES, 201/1324, ANANT CHAMBERS, OPP. RUPEE CO. OP. BANK, J M ROAD PUNE, PIN-411005 PAN: AAAFL6980A . / RESPONDENT CO NO. 34/PN/2016 (ARISING OUT OF ITA NO.127/PN/2015) ASSESSMENT YEAR : 2011-12 M/S RANE ASSOCIATES, 201/1324, ANANT CHAMBERS, SHIVAJI NAGAR, PUNE- 411 005 PAN : AAAFL6980A ....... APPELLANT $ / V/S. INCOME TAX OFFICER, WARD -2(1), PUNE / RESPONDENT / APPELLANT BY : NONE / RESPONDENT BY : SMT. SUMITRA BANERJI / DATE OF HEARING : 13.12.2016 / DATE OF PRONOUNCEMENT : 16.12.2016 ITA NO.127/PN/2015 & CO. NO. 34/PN/2016 2 % / ORDER PER R. P. TOLANI, JM: THIS IS REVENUE APPEAL AND ASSESSEES CROSS OBJECTION. THE ISSUE RAISED IN REVENUE APPEAL IS COVERED IN FAVOUR OF THE ASSES SEE AND CROSS OBJECTION FILED BY THE ASSESSEE IS ONLY IN SUPPORT OF COM MISSIONER OF INCOME TAX ( APPEALS)S ORDER AND IS INFRUCTUOUS. 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1. LD. CIT (A) ERRED IN ALLOWING DEDUCTION U/S 80 IB (10 ) OF THE INCOME TAX ACT, 1961 OF RS. 30,92,585/-. 2. THE LD. CIT(A) ERRED IN HOLDING THAT THE PROJECT V ANSHAJ PRESTIGE HAD COMMENCED CONSTRUCTION MUCH BEFORE THE AMENDMENT TO SECTION 80 IB (14) (A) AND THEREFORE, IT IS NOT POS SIBLE FOR THE ASSESSEE TO COMPLY WITH THE DEFINITION OF BUILT UP AREA. 3. THE LD. CIT(A) ERRED IN HOLDING THAT THE ASSESSEE I S ELIGIBLE FOR DEDUCTION U/S 80 IB (10) WITHOUT APPRECIATING THAT AS PER PROVISIONS OF SECTION 80 IB (14) (A) OF THE ACT, BUILT UP AREA IS TO BE CALCULATED TAKING INTO ACCOUNT ALL THE PROJECTIONS AND BALCONIES AND AS SUCH THE FLATS ON THE FIRST FLOOR OF BUILDING B EX CEEDED THE BUILT UP AREA OF 1500 SQ .FT MAKING THE ASSESSEE INELIGIB LE FOR DEDUCTION U/S 80 IB (10) OF THE ACT. 4. THE LD. CIT(A) ERRED IN HOLDING THAT THE ASSESSEE I S ELIGIBLE FOR DEDUCTION U/S 80 IB (10) IGNORING THE FINDINGS G IVEN IN THE ASSESSMENT ORDER WHICH WAS BASED ON THE FACTS AND W HICH WAS ALSO BASED ON THE REPORT OF THE GOVT. APPROVED VALUER. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE THE ISSUING OF NOTICE. SINCE THE ISSUES IN QUESTION ARE COVERED BY THE D ECISION OF ITAT, PUNE IN ASSESSEES OWN CASE AND OTHER CASES ALSO, THE SE ARE DECIDED EX- PARTE QUA THE ASSESSEE AFTER HEARING LD. SR. DR AND ON PERUSAL OF RECORD. 4. LD. D.R. RELIED ON THE ORDER OF ASSESSING OFFICER, HOWEVE R, IT IS NOT DISPUTED THAT IN OTHER SIMILAR CASES, THE SAME VIEW AS ADOPTED BY LD.CIT(A) IN THIS CASE HAS BEEN AFFIRMED BY ITAT, PUNE. LD.C IT(A) HAS ITA NO.127/PN/2015 & CO. NO. 34/PN/2016 3 ALSO HELD THAT ASSESSEE WAS BUILDER OF A RESIDENTIAL PROJE CT NAMELY, VANSHAJ PRESTIGE WHICH IS ELIGIBLE FOR DEDUCTION U/S. 80IB (10) BY FOLLOWING OBSERVATIONS : 4.1. FURTHER,DURING THE CURRENT APPELLATE PROCEEDING S THE APPELLANT HAS ALSO RELIED ON A RECENT PUNE ITAT DECIS ION IN THE CASE OF SHRI NARESH T. WADHWANI V/S. DICT, ITA NOS. 18,19 & 20/PN/2013 DATED 28.10.2014 WHEREIN THE HONBLE ITAT HA S HELD AS UNDER : 27. CONSIDERED IN THE ABOVE BACKGROUND, WE CONCLUDE B Y HOLDING THAT THE ASSESSING OFFICER AND THEREAFTER, TH E CIT (A) HAS ERRED IN INCLUDING THE AREA OF PROJECTED TERRACE ( OPEN TO SKY) FOR THE PURPOSES OF COMPUTING BUILT UP AREA WHILE EXAMINING THE CONDITION PRESCRIBED IN CLAUSE(C) OF SE CTION 80 IB (10) OF THE ACT. ONCE THE AREA OF PROJECTED TERRAC E (OPEN TO SKY) IS EXCLUDED THEN THERE IS NO DISPUTE THAT THE R ESIDUAL BUILT-UP AREA OF SIX UNITS IN QUESTION FALLS WITHIN THE PRESCRIBED LIMIT OF 1500 SQ.FT. AS A RESULT, WE HOLD THA T ASSESSEE FULFILLS THE CONDITION PRESCRIBED IN CLAUSE (C) OF SECTION 80 IB (10) OF THE ACT WITH REGARD TO THE SIX UNITS IN QUESTION. THEREFORE, WE SET ASIDE THE ORDER OF THE C IT (A) AND DIRECT THE ASSESSING OFFICER TO CONSIDER THAT THE S IX UNITS IN QUESTION FULFILL THE CONDITION PRESCRIBED IN CLAUSE (C ) OF SECTION 80 IB (10) OF THE ACT. 28. .. 29. OSTENSIBLY, ASSESSEE HAS BEEN FOUND TO HAVE FULFILLED THE CONDITION PRESCRIBED IN CLAUSE (C ) OF SECTION 80 IB (10) OF THE ACT EVEN IN RELATION TO SIX UNITS I N QUESTION AND THEREFORE THE ENTIRE PROJECT OF THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S 80 IB (10) OF THE ACT. 4.2. IN VIEW OF THE ABOVE FACTS AND THE ISSUE BEING PARI MATERIA SIMILAR AS IT IS PERTAINING TO THE SAME PROJECT OF THE APPELLANT FIRM VIZ. VANSHAJ PRESTIGE FOLLOWING THE DECISION TAKEN FOR A.Y. 2009- 10 AS WELL AS THE LATEST DECISION OF THE PUNE ITAT (C ITED SUPRA), THE GROUNDS OF APPEAL NO. 2 & 3 RAISED BY THE APPELLANT AR E ALLOWED FOR BOTH THE YEARS UNDER CONSIDERATION. 5. I HAVE HEARD CONSIDERED THE SUBMISSIONS AND MATERIAL A VAILABLE ON RECORD. SINCE THE LD. CIT(A) HAS FOLLOWED THE PUNE ITAT , JUDGMENT WHILE HOLDING THAT THE ASSESSEE WAS ELIGIBLE OF DEDUCTION U/S 80IB(10) OF THE ACT, THERE IS NO INFIRMITY IN THE ORDER OF CIT(A). BESID ES, LD. D.R. DID NOT CONTROVERT THE FACTUAL AND LEGAL FINDINGS ARRIVED AT BY LD.CIT(A) WHILE HOLDING THIS VIEW. CONSEQUENTLY, LD. CIT(A)S ORDER IS UPHELD. ITA NO.127/PN/2015 & CO. NO. 34/PN/2016 4 6. THE ASSESSEES CROSS OBJECTION IS ONLY IN SUPPORT OF THE ORDER OF LD.CIT(A) IS IN FRUCTUOUS AND DISMISSED ACCORDINGLY. 7. IN THE RESULT, THE REVENUE APPEAL AND ASSESSEES CR OSS OBJECTION BOTH ARE HEREBY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16.12.2016. SD/- (R. P. TOLANI) / JUDICIAL MEMBER / PUNE ; DATED : 16 TH DECEMBER, 2016 SB %&'()*)# COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. ! ! ' # $ / THE CIT(A)-II, PUNE; 4. THE CIT-II, PUNE. 5. 6. %&' (()* + ! )* + , , - - .. / DR SMC, ITAT, PUNE; '/01 GUARD FILE. // TRUE COPY// % / BY ORDER, (2)3 / PRIVATE SECRETARY ! )* + / ITAT, PUNE