Kamat Construction Pvt. Ltd, Panaji V. Deputy Commissioner of Incomt Tax, Central Circle, Panaji

CO 6/PAN/2016

• Counselvise Citation: [2016] 123 COUNSELVISE.COM (IT) 2239 (ITAT-PANAJI)
• Duration Of Justice: 26 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 01-03-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: misc
• Appeal Filed On: 05-02-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANAND SHANKAR MARATHE

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI N.S. SAINI , HONBLE ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, HONBLE JUDICIAL MEMBER ITA NO. 462 /P A N/201 5 (ASST. YEAR : 20 12 - 1 3 ) DCIT, CENTRAL CIRCLE, PANAJI GOA. VS. M/S. KAMAT CONSTRUCTION PVT. LTD., F - 1, F - 2, INDIRA APARTMENTS, OPP. HOTEL DELMON, CAETAN A O ALBUQUERQUE ROAD, PANAJI GOA . PAN NO. AAACK 8135 H (APPELLANT) (RESPONDENT) CO NO. 06 /P A N/201 6 (ASST. YEAR : 20 12 - 1 3 ) M/S. KAMAT CONSTRUCTION PVT. LTD., F - 1, F - 2, INDIRA APTS . , OPP. HOTEL DELMON, CAETANAO ALBUQUERQUE ROAD, PANAJI GOA. VS. DCIT, CENTRAL CIRCLE, PANAJI GOA. PAN NO. AAACK 8135 H (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI MIHIR NANIWADEKAR ADV. DEPARTMENT BY : SHRI ANAND SHANKAR MARATHE - D R DATE OF HEARING : 0 1 / 0 3 /201 6 . DATE OF PRONOUNCEMENT : 01 / 0 3 /201 6 . O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER ITA NO. 462/PAN/2015 IS AN APPEAL FILED BY THE REVENUE AND C.O. N O. 06/PAN/2016 IS A CROSS OBJECTION FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) , PAN AJI - 2 2 ITA NO. 4 6 2/P A N/201 5 PASSED IN ITA NO. 100/CIT(A)/PNJ - 2/14 - 15 , DATED 2 8 /0 8 /201 5 FOR THE ASSESSMENT YEAR 2012 - 13 . 2. SHRI ANAND SHANKAR MARATHE, DEPARTMENTAL REPRESENTATIVE REPRESENTED ON BEHALF OF THE REVENUE AND SHRI M I HIR NANIWADEKAR, ADVOCATE REPRESENTED ON BEHALF OF THE ASSESSEE. 3 . IT WAS SUBMITTED BY THE DEPARTMENTAL REPRESENTATIVE THAT THE ISSUE IN THE REVENUES APPEAL IS AGAINST THE ACTION OF THE COMMISSIONER OF INCOME TAX (APPEALS) IN GRANTING THE ASSESSEE THE BENEFIT OF DEDUCTION UNDER SEC. 80IB(10) , WHICH HAD BEEN DENI E D BY THE ASSESSING OFFICER ON ACCOUNT OF THE FACT THAT THE ASSESSEE HAD ALLOTTED TWO FLATS TO THE SAME PERSON IN THE PROJECT. IT WAS THE SUBMISSION THAT THERE WERE TWO SETS OF FLATS WHICH HAD BEEN ALLOTTED. IT WAS THE SUBMISSION THAT FLAT S NO.104 & 103 HAD BEEN ALLOTTED TO ONE SHRI VIVEK PANVELCAR AND FLATS NO. 401 & 402 HAD BEEN ALLOTTED TO ONE SHRI SURAJ KAMBLE . IT WAS THE SUBMISSION THAT THE PROJECT WAS IN FAVOUR OF KAMAT RIVIERA WHICH WAS ON A PLOT ADMEASURING 4851 SQ.MTS . IT WAS THE SUBMISSION THAT THE PROJECT CONSISTED OF 03 BLOCKS WITH 60 FLATS AND THE BIGGEST FLAT HAS BUILT UP AREA OF 136 SQ.MTS. IT WAS THE SUBMISSION THAT THE COMMISSIONER OF INCOME TAX (APPEALS) HAD UPHELD THE VIOLATION OF THE PROVISIONS OF SEC. 80IB(10), BUT HOWEVER , ALLOWED THE ASSESSEE THE DEDUCTION UNDER SEC . 80IB(10) ON ACCOUNT OF PRO - RAT A BASIS . IT WAS THE SUBMISSION THAT THE ISSUE OF PRO - RATA HAD BEEN CONSIDERED BY THE COO R D I NATE BENCH OF THIS TRIBUNAL IN THE CASE OF DCIT VS. M/S. MODELS CONSTRUCTION PVT. LTD. IN ITA NO. 415/PNJ/2015 DATED 20/01/2016 , WHEREIN THE ISSUE OF GRANT OF DEDUCTION UNDER SEC. 80IB(10) FOR GRANTING THE PRO - RATE REBATE HAD BEEN REVERSED . IT WAS ALSO THE SUBMISSION THAT THE TRIBUNAL HAD CONSIDERED THE MEMORANDUM EXPLAINING THE PROVISIONS OF SUB - CLAUSES (E) & (F) T O SEC. 80IB(10) TO HOLD THAT ANY VIOLATION OF THE PROVISIONS OF SEC. 80IB(10) WILL RENDER THE ASSESSEE NOT ELIGIBLE FOR 3 ITA NO. 4 6 2/P A N/201 5 DEDUCTION UNDER SEC. 80IB(10) OF THE ACT. HE VEHEMENTLY SUPPORTED THE ORDER OF THE ASSESSING OFFICER. 4 . IN REPLY , AUTHORIZED REPRESENTATIVE OF THE AS SESSEE SUBMITTED THAT THE PRO - RATA BASIS OF DEDUCTION WAS LIABLE TO BE ALLOWED . IT WAS ALSO THE SUBMISSION THAT THE ALLOTMENT OF THE FLATS HAD TAKEN PLACE MUCH BEFORE THE INTRODUCTION OF THE PROVISION S BEING 01 ST AUGUST, 2009 AND CONSEQUENTLY, THE ASSESSEE WAS LIABLE TO BE GRANTED THE BENEFIT OF DEDUCTION UNDER SEC. 80IB(10) AS CLAIMED. IT WAS THE SUBMISSION THAT THIS WAS ALSO WHAT WAS PLEADED FOR IN THE CROSS OBJECTION FI L ED BY THE ASSESSEE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS . A PERUSAL OF THE FACTS OF THE PRESENT CASE CLEARLY SHOWS THAT THE PROJECT IS ON ONE ACRE AREA OF LAND. THE FLATS SIZE IS SHOWN AS 136 SQ.MTS. I N RESPECT OF THE BIGGEST FLAT . E VEN IF THE AVERAGE SIZE OF THE FLATS IS TAKEN AT 125 SQ.MTS., 04 FLATS VIOLATION WILL COME TO 500 SQ.MTS. THIS ITSELF CATEGORICALLY WOULD REDUCE THE AREA OF THE PROJECT BELOW ONE ACRE IF THE PRO - RATA DEDUCTION IS ALLOWED. THE REQUIREMENT OF ONE ACRE IS ONE THE PRIMARY REQUIREMENTS OF SEC. 80IB(10). THE VIOLATION OF THIS BASI C PROVISION ITSELF WOULD RENDER THE ASSESSEE NOT ELIGIBLE FOR DEDUCTION UNDER SEC. 80IB(10). COMING TO THE ARGUMENT THAT THE ALLOTMENTS WERE DONE BEFORE THE INTRODUCTION OF 01/0 8 /2009 , I T SHOWS T HAT IN CASE OF VIVEK PANVELCAR THE DATE OF AGREEMENT ITSELF IN RESPECT OF SECOND FLAT IS 10/10/2009 . E NTERING AN AGREEMENT DOES NOT AMOUNT THE ALLOTMENT OF FLAT. A PERUSAL OF THE MEMORANDUM EXPLAINING THE PROVISION ALSO DOES NOT SHOW ANYWHERE THAT EARLIER ALLOTMENTS SHOULD NOT BE CONSIDERED. IN FACT, THE WORDING OF THE SAID MEMORANDUM EXPLAINING THE PROVISION CLEARLY TALKS OF CLARIFYING THE INTRODUCTION OF THE PROVISIONS TO DISCOURAGE THE CIRCUMVENTION OF THE PROVISIONS BY AN ALLOTMENT OF MUL TIPLE ADJACENT UNITS. IN THE PRESENT CASE ALSO , IT CLEARLY SHOWS THAT ADJACENT UNITS HAVE BEEN ALLOTTED. IN THESE CIRCUMSTA N CES, IT IS NOTICED THAT THE ISSUE 4 ITA NO. 4 6 2/P A N/201 5 IN THIS APPEAL IS SQUARELY COVERED BY THE DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL IN T HE CASE OF M/S. MODELS CONSTRUCTION PVT. LTD. (SUPRA) . IN THESE CIRCUMSTANCES, RESPECTFULLY FOLLOWING THE DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF M/S. MODELS CONSTRUCTION PVT. LTD. (SUPRA) , THE FINDING OF THE COMMISSIONER OF INCOME TAX (APPEALS) IS REVERSED AND THAT OF ASSESSING OFFICER IS RESTORED. CONSEQUENTLY, THE DEDUCTION UNDER SEC. 80IB(10) STANDS DISALLOWED. 6 . IN THE RESULT, APPEAL OF THE REVENUE STANDS ALLOWED AND THE CROSS OBJECTION OF THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE HEARING ON TUESDAY , THE 01 ST DAY OF MARCH , 201 6 AT GOA . S D / - S D / - (N.S.SAINI) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 0 1 ST MARCH, 201 6 . VR/ - COPY TO: 1 . THE ASSESSEE. 2 . THE REVENUE. 3 . THE CIT 4 . THE CIT(A) 5 . THE D.R . 6 . GUARD FILE. BY ORDER ASSISTANT REGISTRAR I.T.A.T., PANAJI 5 ITA NO. 4 6 2/P A N/201 5 DATE INITIAL ORIGINAL DICTATION PAD & DRAFT ARE ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 01/03/2016 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 01/03/2016 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 01/03/2016 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 01/03/2016 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 01/03/2016 SR.PS 6. DATE OF PRONOUNCEMENT 01/03/2016 SR.PS 7. FILE SENT TO THE BENCH CLERK 01/03/2016 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER