Model Construction Pvt. Ltd., Panaji V. The Assistant Commissioner of Income Tax, Central Circle, Panaji., Panaji

CO 73/PAN/2015

• Counselvise Citation: [2016] 123 COUNSELVISE.COM (IT) 1979 (ITAT-PANAJI)
• Duration Of Justice: 29 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 20-01-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 22-12-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D S SUNDARESAN
• Keywords: Search and seizure
• Section: 80IB; 37

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. 415 /PNJ/201 5 (ASST. YEAR : 20 12 - 1 3 ) DCIT, CENTRAL CIRCLE, PANAJI - GOA . VS. M/S. MODELS CONSTRUCTION PVT. LTD., 4 TH FLOOR, JOFFRE RESIDENCY, BEHIND GOA COLLEGE OF PHARMACY, PANAJI GOA. PAN NO. AAECM 5100 A (APPELLANT) (RESPONDENT) IT (SS) A NO S . 37 & 38 /PNJ/201 5 (ASST. YEAR : 20 1 0 - 1 1 & 2011 - 12 ) DCIT, CENTRAL CIRCLE, PANAJI - GOA. VS. M/S. MODELS CONSTRUCTION PVT. LTD., 4 TH FLOOR, JOFFRE RESIDENCY, BEHIND GOA COLLEGE OF PHARMACY, PANAJI GOA. PAN NO. AAECM 5100 A (APPELLANT) (RESPONDENT) C.O.NO. 73/PNJ/2015 ( ITA NO. 37 /PNJ/201 5 ) (ASST. YEAR : 20 10 - 1 1 ) M/S. MODELS CONSTRUCTION PVT. LTD., 4 TH FLOOR, JOFFRE RESIDENCY, BEHIND GOA COLLEGE OF PHARMACY, PANAJI GOA. V S. DCI T, CENTRAL CIRCLE, PANAJI - GOA. PAN NO. AAECM 5100 A (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI PRAMOD VAIDYA ADV . DEPARTMENT BY : SHRI D.S. SUNDARESAN - D R DATE OF HEARING : 20 / 0 1 /201 6 . DATE OF PRONOUNCEMENT : 20 / 0 1 /201 6 . 2 ITA NO. 4 15 /PNJ/201 5 IT(SS)A NOS.3 7 & 38/PNJ/2015 & C.O. NO. 73/PNJ/2015 O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER I.T.A.NO. 415/PNJ/2015 IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF COMMIS SIONER OF INCOME TAX (APPEALS) , PANAJI - 2 IN ITA NO. 156/CIT(A) - VI/BNG/2014 - 15 & ITA NO.16 6 /PNJ/CIT(A)PNJ - 2/2014 - 15 , DATED 26 /0 8 /201 5 FOR THE ASSESSMENT YEAR 2012 - 13 . I.T.(SS)NO. 37/PNJ/2015 IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), PANAJI - 2 IN APPEAL NO.156/CIT(A) - VI/BNG/2014 - 15 & ITA NO.164/PNJ/CIT(A)PNJ - 2/2014 - 15 , DATED 26 /08/201 5 FOR THE ASSESSMENT YEAR 2012 - 13. C.O.NO. 73/PNJ/2015 IS A CROSS OBJECTION FILED BY THE ASSESSEE IN IT(SS)A NO. 37/PNJ/2015 , AN D ; I.T.(SS)NO.38/PNJ/2015 IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), PANAJI - 2 IN APPEAL NO.156/CIT(A) - VI/BNG/2014 - 15 & ITA NO.16 5 /PNJ/CIT(A)PNJ - 2/2014 - 15, DATED 26 /08/201 5 FOR THE ASSESSMENT YEAR 201 1 - 1 2 . 2. DR. D.S. SUN DARESAN, LEARNED DEPARTMENTAL REPRESENTATIVE REPRESENTED ON BEHALF OF THE REVENUE AND SHRI PRAMOD VAIDYA, LEARNED ADVOCATE REPRESENTED ON BEHALF OF THE ASSESSEE. 3 . AT THE TIME OF HEARING, IT WAS SUBMITTED BY THE DEPARTMENTAL REPRESENTAT IVE THAT THERE IS ONLY ONE ISSUE IN ALL THE REVENUES APPEAL BEING AGAINST THE ACTION OF THE COMMISSIONER OF INCOME TAX (APPEALS) IN HOLDING THAT THE ASSESSEE WAS ENTITLED TO THE CLAIM OF DEDUCTION UNDER SEC. 80IB(10) IN RESPECT OF ITS HOUSING PROJECT MOD ELS LEGACY AND THE SAID DEDUCTION WAS LIABLE TO BE DENIED ONLY IN RESPECT OF 0 5 FLATS REPRESENTING 02 FLATS SOLD TO EASTERN INDIA EDUCATION INSTITUTE AND 03 FLATS SOLD TO HINDUSTAN MEDICAL INSTITUTION. IT WAS ALSO SUBMITTED BY THE 3 ITA NO. 4 15 /PNJ/201 5 IT(SS)A NOS.3 7 & 38/PNJ/2015 & C.O. NO. 73/PNJ/2015 A U T H O R I Z E D REPRESENTA TIVE T H A T IN THE CROSS OBJECTION THE ASSESSEE HAS CHALLENGED THE ACTION OF THE COMMISSIONER OF INCOME TAX (APPEALS) IN DENYING THE ASSESSEE T H E BENEFIT OF DEDUCTION UNDER SEC. 80IB(10) IN RESPECT TO THE SAID 05 FLATS. IT WAS SUBMITTED BY THE DEPARTMENTAL RE PRESENTATIVE THAT WHEN THE ASSESSEE HAD FILED ITS RETURN OF INCOME FOR THE RELEVANT ASSESSMENT YEARS, IT HAD CLAIMED DED UCTION UNDER SEC. 80IB(10). IT WAS THE SUBMISSION THAT THERE WAS SEARCH AND SEIZURE OPERATION ON THE PREMISES OF THE ASSESSEE ON 31/01/ 2012. IT WAS THE SUBMISSION THAT IN THE COURSE OF SEARCH, THE DOCUMENTS SHOWING FLATS - WISE DETAILS OF NAME OF THE PURCHASER , DATE OF AGREEMENT, AGREEMENT AMOUNT AND AMOUNT RECEIVED AND BALANCE THEREON IN RESPECT OF BUILDING NO. 10A OF THE PROJECT MODELS LEGACY UNDERTAKEN BY THE ASSESSEE COMPANY WAS FOUND AND SEIZED. IT WAS THE SUBMISSION THAT DURING THE COURSE OF ASSESSMENT , ON THE BASIS OF SEIZED MATERIAL, THE ASSESSING OFFICER HAD DISALLOWED THE CLAIM OF DEDUCTION UNDER SEC. 80IB(10) ON THE GROUND TH A T 02 FLATS HAVE BEEN SOLD TO M/S. EASTERN INDIA EDUCATION AL INSTITUTION AND 03 FLATS HAD BEEN SOLD TO M/S. HINDUSTAN MEDICAL INSTITUTION VIDE AN AGREEMENT DATED 21/10/2009 . IT WAS THE SUBMISSION THAT THE SAID SALE OF MORE THAN ONE FLAT TO THE SAID EASTERN INDIA EDUCATIONAL INSTITUTION AND HINDUSTAN MEDICAL INSTITUTION WAS A VIOLATION OF THE PROVISIONS OF SEC. 80IB(10)(E) & (F) . IT WAS THE SUBMISSION THAT ON APPEAL, COMMISSIONER OF INCOME TAX (APPEALS) HAD ACCE P TED THE FINDINGS OF THE ASSESSING OFFICER THAT THE SAID 02 FLATS WERE S O L D TO M/S. EASTERN INDIA EDUCATIONAL INSTITUTION AND 03 FLATS TO M/S. HINDUSTAN MEDICAL INSTITUTION . IT WAS THE SUBMISSION THAT , H OWEVER , THE COMMISSIONER OF INCOME TAX (APPEALS) DIRECTED THAT THE DEDUCTION UNDER SEC. 80IB(10) WAS LIABLE TO BE RESTRICTED IN RESPECT OF PRO - RATA PROFITS IN RESPECT OF THE SAID 05 FLATS . IT WAS THE SUBMISSION TH A T THE PROVISIONS OF SEC. 80IB(10) DID NOT PROVIDE FOR THE PRO - RAT A D I S A L L O W A N C E S . IT WAS THE SUBMISSION THAT EITHER ASSESSEE WAS ENTITLED 4 ITA NO. 4 15 /PNJ/201 5 IT(SS)A NOS.3 7 & 38/PNJ/2015 & C.O. NO. 73/PNJ/2015 TO THE DEDUCTION UNDER SEC. 80IB(10) OR IN THE CASE OF VIOLATIONS, IF ANY, THERE WAS NO PROVISION FOR ALLOWING PRO - RATA DEDUCTION UNDER SEC. 80IB(10). IT WAS SUBMITTED THAT THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) IS LIABLE TO REVERSED AND T HAT OF THE ASSESSING OFFICER SHOULD BE RESTORED. 4 . IN REPLY , AUTHORIZED REPRESENTATIVE OF THE ASSESSEE PLACED BEFORE US COP Y OF THE DECISION OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF VISWAS PROMOTERS (P) LTD. VS. ACIT REPORTED IN 255 ITR 149 , WHE REIN IT HAS BEEN HELD THAT WITHIN A COMPOSITE HOUSING PROJECT, WHERE THERE ARE ELIGIBLE AND INELIGIBLE UNITS, THE ASSESSEE CAN CLAIM DEDUCTION IN RESPECT OF ELIGIBLE UNITS IN THE PROJECT O R EVEN WITHIN THE BLOCK, THE ASSESSEE IS ENTITLED TO CLAIM PROPORTI ONATE RELIEF IN R E S P E C T O F THE UNITS SATISFYING THE EXTENT OF THE BUILT - UP AREA . THIS DECISION RELAT E S TO THE ASSESSMENT YEAR 2004 - 05 TO 2008 - 09. HE FURTHER PLACED RELIANCE ON THE DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL AT PUNE IN THE CASE OF ITO VS. PARAS BUILDERS REPORTED IN (2015) 58 TAXMANN.COM 286 WHEREIN IT HAS BEEN HELD THAT MERELY BECAUSE ASSESSEE HAD VIOLATED THE PROVISIONS OF SEC. 80IB(10)(C) IN RESPECT OF TWO UNITS, DEDUCTION UNDER SEC. 80IB(10) COULD NOT BE DENIED IN ENTIRETY AND ASSESSEE WAS E NTITLED TO SAID DEDUCTION IN RESPECT OF BALANCE UNITS WHICH HAD BEEN CONSTRUCTED AS PER CONDITIONS LAID DOWN IN SEC. 80IB(10)(C). THE SAID DECISION RELATES TO THE ASSESSMENT YEAR 2007 - 08 . HE FURTHER PLACED RELIANCE ON THE DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL , CHENNAI BENCHES IN THE CASE OF DCIT VS. RAJARATHNAM CONSTRUCTION (P) LTD. REPO R TED IN 33 ITR (TR.) 466 WHEREIN IT HAS BEEN HELD THAT SINCE THERE WAS A PARTIAL COMPLIANCE, DEDUCTION UNDER SEC. 80IB(10) WAS ALLOWABLE ON PRO - RATA BASIS . THI S RELATES TO THE ASSESSMENT YEAR 2006 - 07 TO 2008 - 09 . HE FURTHER PLACED RELIANCE ON THE DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL MUMBAI BENCHES IN THE CASE OF G.V. CORPORATION VS. ITO 5 ITA NO. 4 15 /PNJ/201 5 IT(SS)A NOS.3 7 & 38/PNJ/2015 & C.O. NO. 73/PNJ/2015 WHEREIN IT HAS BEEN HELD THAT FOLLOWING THE SPECIAL BENCH DECI SION IN THE CASE OF BRAHMA ASSOCIATES VS. JCIT (2009) 119 ITD 255 EVEN IF THE ASSESSEE COULD NOT BE GIVEN ENTIRE DEDUCTION UNDER SEC. 80IB, IT WOULD STILL BE ELIGIBLE FOR PROPORTIONATE DEDUCTION . THIS DECISION RELATES TO THE ASSESSMENT YEAR 2004 - 05. IT W AS THE SUBMISSION THAT THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) IN HOLDING THAT THE ASSESSEE WAS ENTITLED TO PRO - RATA DEDUCTION UNDER SEC. 80IB(10) WAS LIABLE TO BE UPHELD . 5. IN RESPECT OF CROSS OBJECTION, AUTHORIZED REPRESENTATIVE OF THE A SSESSEE PLACED RELIANCE ON THE DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL AHMEDABAD BENCH IN THE CASE OF PATEL JASHWANTLA A VS. ITO REPORTED IN (2015) 58 TAXMANN.COM 135 WHEREIN IT HAS BEEN HELD THAT WHERE THE AMENDMENT IN SEC. 80IB RESTRICTING ALLO TMENT OF MORE THAN ON E RESIDENTIAL UNITS IN HOUSING PROJECT TO SAME PERSON CAME INTO FORCE W.E.F. 01/04/2010 AND ALL PAYMENTS WERE MADE EVEN BEFORE SAID AMENDMENT CAME INTO FORCE, AUTHORITIES WERE NOT JUSTIFIED IN REJECTING CLAIM OF DEDUCTION ON THE BASIS O F A CONDITION CREATED BY A PROVISION WHICH CAME INTO FORCE SUBSEQUENT TO ALLOTMENT OF RESIDENTIAL UNITS . IT WAS THE SUBMISSION THAT IN VIEW OF THE DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL AHMEDABAN BENCH , THE ASSESSEE WAS ENTITLED TO DEDUCTION UN DER SEC. 80IB(10) IN ITS ENTIRETY. IT WAS THE SUBMISSION T H AT THE ASSESSEE HAD ENTERED INTO AN AGREEMENT DATED 10/04/2009 AND PAYMENTS IN RESPECT OF THE SAID AGREEMENT HAD ALSO BEEN MADE. IT WAS THE SUBMISSION THAT SUBSEQUENTLY AS THE PURCHASERS WERE UNA BLE TO MAKE THE PAYMENTS WITHIN THE STIPULATED TIME, ANOTHER AGREEMENT HAD BEEN ENTERED INTO I N A U G U S T , 2 0 0 9 AND THE REGISTRATION DONE ON 21/10/2009 . IT WAS THE SUBMISSION THAT AN AGREEMENT WAS ALSO ENTERED INTO ON 10/04/2009 A S , AS PER THE SUB - REGISTRAR AT GO A, THE AGREEMENT COULD HAVE VALIDITY OF O N L Y 03 MONTHS. IT WAS THE 6 ITA NO. 4 15 /PNJ/201 5 IT(SS)A NOS.3 7 & 38/PNJ/2015 & C.O. NO. 73/PNJ/2015 SUBMISSION THAT THE PROVISIONS OF SEC. 80IB(10) CAME INTO STATUTE BOOK ON 01/04/2010 AND BY THAT TIME, THE PAYMENTS HAD ALSO BEEN MADE BY THE PURCHASE R EXCEPT FOR 03. IT WAS THE SUBMISSION T HAT THE ASSESSEE WAS ENTITLED TO THE DEDUCTION UNDER SEC. 80IB IN ITS ENTIRETY . 6 . IN REPLY, DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THIS AGREEMENT DATED 10/04/2009 WAS NEVER FOUND IN THE COURSE OF SEARCH NOR WAS DISCUSSED NOR REFERRED TO. IT WAS THE SUBMISSION THAT THE AGREEMENT DATED 10/04/2009 IS CLEARLY AN AFTERTHOUGH T AND COULD NOT BE TAKEN INTO CONSIDERATION. 7 . WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AT THE OUTSET COMING TO THE ALLEGATION MADE BY THE DEPARTMENTAL REPRESENTATIVE THAT THE AGREEMENT DATED 10/04/2009 WAS NOT FOUND DURING THE COURSE OF SEARCH IS CONCERNED, IT IS NOTICED THAT THERE IS AN AGREEMENT DATED 10/04/2009, AN AGREEMENT O F A U G U S T , 2 0 0 9 AND AGREEMENT FOR SALE DATED 23/10/2009, WHICH IS A REGISTERED DOCUMENT . HOWEVER , T HE AGREEMENT DATED 10/04/2009 IS O N A NON - JUDICIAL STAMP PAPER OF 10/ - WHICH IS PURCHASED ON 12/02/2 0 08 IN THE NAME OF MRED. INTERESTINGLY, WHEN AN AGREEMENT IS ENTERED INTO T H E STAMP PAPER IS PURCHASED IN THE NAME OF THE AGREEMENT HOLDER, THIS IS ALSO E VIDENT FROM THE FACT THAT THE REGISTERED AGREEMENT FOR SALE DATED 21/10/2009 CLEARLY SHOWS THE NAME OF THE PURCHASER AS M/S. HINDUSTAN MEDICAL INSTITUTION IN ONE CASE AND M/S. EASTERN INDIA EDUCATIONAL INSTITUTION IN OTHER CASE. O N L Y T H I S S A L E A G R E E M E N T I S R E G I S T E R E D . T H E R E G I S T E R E D S A L E D E E D H A S N O T B E E N P R O D U C E D B E F O R E U S . THUS, WE ARE OF THE VIEW T HAT THE SUBMISSION OF THE DEPARTMENTAL REPRESENTATIVE THAT THE AGREEMENT DATED 10/04/2009 IS AN AFTERTHOUGHT IS FOUND TO BE SUBSTANTIALLY SUBSTANTIATED ON THE BASIS OF THE EVIDENCES. FURTHER, THE AGREEMENT DATED 10/04/2009 IS NOT WITNESSED EITHER , NOR SIG NED ON EVERY PAGE . HERE IT MAY BE WORTHWHILE 7 ITA NO. 4 15 /PNJ/201 5 IT(SS)A NOS.3 7 & 38/PNJ/2015 & C.O. NO. 73/PNJ/2015 TO MENTION THAT IN THE CASE OF BOTH M/S. EASTERN INDIA EDUCATIONAL INSTITUTION AND IN THE CASE OF M/S. HINDUSTAN MEDICAL INSTITUTION , THE AUTHORIZED SIGNATORY IS THE SAME BEING MR. KAPIL MEHTA . 8 . NOW COMIN G TO THE DETAILS OF PAYMENTS , IT SHOWS THAT THE INITIAL PAYMENT S OF 15 ,40,000/ - , 19 LAC , AS THE CASE MAY BE , IS ON THE BOOKING AND SI GNING , THE SUBSEQUENT PAYMENTS ARE BETWEEN SEPTEMBER 2009 AND OCTOBER 2010 AND THE DELIVERY ALONG WITH FINAL PAYMENT WAS IN THE MONTH OF JANUARY, 2012 . 04 PAYMENTS ARE AFTER 1 ST APRIL, 2010 AS PER THE AGREEMENT ITSELF . THE FIRST PAYMENT OF 19 LAC IN THE CASE OF M/S. HINDUSTAN MEDICAL INSTITUTION IS SUPPORTED BY A RECEIPT D A T E D 31/08/2009 . THIS ADMITTEDLY CREATES VALIDITY TO THE AGREEMENT O F A U G U S T , 2 0 0 9 AS PER THE AGREEMENT ITSELF ON BOOK ING AND SIGNING THE INITIAL PAYMENT HAS BEEN MADE. SO ALSO , THE PAYMENT OF 21 LAC ON 31/08/2009 IN THE CASE OF M/S. EASTERN INDIA EDUCATIONAL INSTITUTION . T HIS ALSO CLEARLY SUPPORTS THE ARGUMENTS OF DEPARTMENTAL REPRESENTATIVE THAT THE AGREEMENT DATED 10/04/2009 IS IN FACT AN AFTERTHOUGHT . 9. NOW COMING TO THE DECISION QUOTE D BY THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE IN THE CASE OF PATEL JASHWANTAL A (SUPRA) IT IS NOTICED THAT THE COORDINATE BENCH OF THIS TRIBUNAL AHM E DABAD BENCH HAS NOWHERE ACCEPTED THAT PAYMENTS HAVE BEEN MADE AFTER THE SAID PROVISION HAS COME INTO F ORCE 01/04/2010, THE ASSESSEE WOULD BE ENTITLED TO ANY DEDUCTION UNDER SEC. 80IB(10) MUCH LESS PRO - RATA DEDUCTION. IN THE CASE OF PATEL JASHWANTAL A (SUPRA) , ALL THE PAYMENTS HAD BEEN MADE BEFORE THE PROVISIONS CAME INTO EFFECT. IN ASSESSEES CASE T H I S IS NOT SHOW N A N D THERE ARE 0 5 PAYMENTS AFTER THE PROVISIONS CAME INTO EFFECT. HERE WHAT MUST BE MENTIONED IS THAT THE SAID PROVISIONS OF (E) & (F) T O SUB - SEC. (10) T O SEC. 80IB W A S I N S E R T E D B Y T H E 8 ITA NO. 4 15 /PNJ/201 5 IT(SS)A NOS.3 7 & 38/PNJ/2015 & C.O. NO. 73/PNJ/2015 F I N A N C E ( N O . 2 ) ACT , 2 0 0 9 W . E . F . 0 1 / 0 4 / 2 0 1 0 , I . E . S O M E W H E R E I N A U G U S T 2 0 0 9 T H E P R O V I S I O N W A S V E R Y W E L L M A D E A W A R E , B U T P U T I N T O O P E R A T I O N F R O M 0 1 / 0 4 / 2 0 1 0 . I N T H E ASSESSEE S C A S E , T H E I N I T I A L P A Y M E N T S I T S E L F H A V E B E E N R E C E I V E D O N 3 1 / 0 8 / 2 0 0 9 C L E A R L Y A F T E R I T W A S A L S O K N O W N T H A T S U C H A M E N D M E N T S H A V E T A K E N P L A C E A N D A F T E R 0 1 / 0 4 / 2 0 1 0 P A Y M E N T S H A V E A L S O B E E N R E C E I V E D . T H U S , T H E ASSESSEE W A S V E R Y W E L L A W A R E O F T H E A M E N D M E N T T O S E C . 80IB(10) B E I N G I N T R O D U C E D B Y T H E FINANCE (NO.2) ACT, 2009 A N D S T I L L T H E ASSESSEE P R O C E E D E D W I T H T H E S A L E O F M O R E T H A N O N E F L A T T O T H E S A M E C O N C E R N S K N O W I N G F U L L Y A W A R E T H A T I T W O U L D N O T B E E N T I T L E D T O D E D U C T I O N UNDER SEC. 80IB(10) A N D T H E N P R O C E E D E D T O C L A I M D E D U C T I O N UNDER SEC. 80IB(10) Y E A R A F T E R Y E A R . T H I S A L O N G W I T H T H E C R E A T I O N O F T H E A G R E E M E N T D A T E D 1 0 / 0 4 / 2 0 0 9 O N L Y S H O W S T H E CONTUMA T IOUS C O N D U C T O F T H E ASSESSEE . 10 . N O W C O M I N G T O T H E I S S U E O F P R O - R A T A D E D U C T I O N S , I T M U S T B E U N D E R S T O O D T H A T S E C . 80IB(10) H A S G O T M U L T I P L E C L A U S E S . O N E O F T H E C L A U S E S I S T H A T T H E P R O J E C T I S O N T H E S I Z E O F P L O T O F L A N D W H I C H H A S A MINIMUM A R E A O F O N E A C R E . T H E P R O V I S I O N S O F S E C . 80IB(10) D O E S N O T T A L K O F A N Y P R O - R A T A D E D U C T I O N S . T H I S I S B E C A U S E W H E N A N Y U N I T O R A N Y P O R T I O N O F T H E P R O J E C T V I O L A T E S A N Y O F T H E P R O V I S I O N S O F S E C . 80IB(10) , T H E N I F T H E P R I N C I P L E S O F P R O - R A T A A R E T O B E APPLIED , T H E N T H E U N D I V I D E D INTEREST I N T H E L A N D T O T H E E X T E N T O F P R O - R A T A P O R T I O N W O U L D H A V E T O B E E X C L U D E D A N D , I F T H I S G E T E X C L U D E D , T H E N T H E B A L A N C E O F T H E L A N D I T S E L F M I G H T F A L L B E L O W T H E M I N I M U M R E Q U I R E M E N T O F S E C . 80IB(10) . T H I S B E I N G S O , E V E N T H E A R G U M E N T O F AUTHORIZED REPRESENTATIVE OF THE ASSESSEE T H A T E A C H U N I T I S A S E P A R A T E U N I T E L I G I B L E F O R D E D U C T I O N UNDER SEC. 80IB(10) W O U L D N O T S T A N D F O R C E I N S O F A R A S E A C H U N I T W O U L D N O T H A V E T H E B A S I C R E Q U I R E M E N T O F O N E A C R E A N D W H O L E B U I L D I N G W O U L D H A V E T O B E C O N S I D E R E D O R T H E W H O L E P R O J E C T W O U L D H A V E T O B E C O N S I D E R E D I N I T S ENTIRETY . 9 ITA NO. 4 15 /PNJ/201 5 IT(SS)A NOS.3 7 & 38/PNJ/2015 & C.O. NO. 73/PNJ/2015 11 . C O M I N G T O T H E V A R I O U S O T H E R D E C I S I O N S R E L I E D U P O N B Y T H E AUTHORIZED REPRESENTATIVE OF THE ASSESSEE , N O N E O F T H E S A M E W O U L D A P P L Y I N S O F A R A S N O N E O F T H E M A R E I N R E L A T I O N T O T H E O W N I N G O F M U L T I P L E R E S I D E N T I A L U N I T S B Y T H E S A M E P E R S O N I N CONTRAVENTION O F T H E P R O V I S I O N S O F S E C . 80IB(10) ( E ) & ( F ) . 1 2 . I T W O U L D A L S O B E W O R T H W H I L E T O U N D E R S T A N D W H Y T H E L E G I S L A T U R E B R O U G H T I N T H E P R O V I S I O N S O F S U B - C L A U S E ( E ) & ( F ) T O S U B - S E C . 1 0 T O S E C . 8 0 I B . T H E M E M O R A N D U M E X P L A I N I N G T H E P R O V I S I O N S W H I C H R E A D A S F O L L O W S : - F U R T H E R , THE OBJECTIVE OF THE TAX BENEFIT FOR HOUSING PROJECTS IS TO BUILD HOUSING STOCK FOR LOW AND MIDDLE INCOME HOUSEHOLDS. THIS HAS BEEN ENSURED BY LIMITING THE SIZE OF THE RESIDENTIAL UNIT. HOWEVER, THIS IS BEING CIRCUMVENTED BY THE DEVELOPER BY ENTERING INTO AGREEMENT TO SELL MULTIPLE ADJACENT UNITS TO A SINGLE BUYER. ACCORDINGLY, IT IS PROP OSED TO INSERT A NEW CLAUSE IN THE SAID SUB - SECTION TO PROVIDE THAT THE UNDERTAKING WHICH DEVELOPS AND BUILDS THE HOUSING PROJECT SHALL NOT BE ALLOWED TO ALLOT MORE THAN ONE RESIDENTIAL UNIT IN THE HOUSING PROJECT TO THE SAME PERSON, NOT BEING AN INDIVIDUA L, AND WHERE THE PERSON IS AN INDIVIDUAL, NO OTHER RESIDENTIAL UNIT IN SUCH HOUSING PROJECT IS ALLOTTED TO ANY OF THE FOLLOWING PERSONS: I. SPOUSE OR MINOR CHILDREN OF SUCH INDIVIDUAL; II. THE HINDU UNDIVIDED FAMILY IN WHICH SUCH INDIVIDUAL IS THE KARTA; I II. ANY PERSON REPRESENTING SUCH INDIVIDUAL, THE SPOUSE OR MINOR CHILDREN OF SUCH INDIVIDUAL OR THE HINDU UNDIVIDED FAMILY IN WHICH SUCH INDIVIDUAL IS THE KARTA THIS AMENDMENT WILL TAKE EFFECT FROM 1 ST DAY OF APRIL, 2010 AND SHALL ACCORDINGLY, APPLY IN RE LATION TO ASSESSMENT YEAR 2010 - 11 AND SUBSEQUENT YEARS. 1 3 . I T M U S T B E U N D E R S T O O D T H A T T H E T R I B U N A L I S A N A P P E L L A T E A U T H O R I T Y . T H E A P P E L L A T E A U T H O R I T Y I S B O U N D B Y T H E S T A T U E . I T C A N N O T E X C E E D W H A T H A S B E E N L E G I S L A T E D . I T M U S T B E O B E Y A N D M U S T G I V E E F F E C T T O T H E W O R D S O F T H E L E G I S L A T I O N . A N APPELLATE AUTHORITY C A N N O T T I N K E R W I T H T H E L A W . I T 10 ITA NO. 4 15 /PNJ/201 5 IT(SS)A NOS.3 7 & 38/PNJ/2015 & C.O. NO. 73/PNJ/2015 I S B O U N D B Y S T A T U E A N D I T S H O U L D N O T A N A T T E M P T T O CLOT H I T S E L F W I T H C O N S T I T U T I O N A L P O W E R S W H I C H I T I S N O T B L E S S E D W I T H . 1 4 . A S I M P L E R E A D I N G O F T H E M E M O R A N D U M C L A R I F I E S T H A T T H E R E L E V A N T C L A U S E S W E R E I N T R O D U C E D T O D I S C O U R A G E T H E CIRCUMVENTION O F T H E P R O V I S I O N S B Y A N A L L O T M E N T O F M U L T I P L E A D J A C E N T U N I T S T O A S I N G L E B U Y E R . I T I S A L S O C L A R I F I E S T H A T T H E N E W C L A U S E S W E R E I N S E R T E D T O P R O V I D E T H A T T H E U N D E R T A K I N G W H I C H D E V E L O P S A N D B U I L D S A H O U S I N G P R O J E C T S H A L L N O T B E A L L O W E D T O A L L O T M O R E T H A N O N E R E S I D E N T I A L U N I T I N T H E H O U S I N G P R O J E C T T O T H E S A M E P E R S O N , N O T B E I N G A N I N D I V I D U A L . T H E W O R D S S I N G L E B U Y E R A N D S A M E P E R S O N L E A V E S N O D O U B T A B O U T T H E O B J E C T I V E B E H I N D T H E I N T R O D U C T I O N O F C L A U S E S ( E ) & ( F ) I N S E C . 80IB(10) B Y T H E FINANCE (NO.2) ACT, 2009 . I N T H E S E CIRCUMSTANCES , W E A R E O F T H E V I E W T H A T T H E ASSESSEE I S N O T E N T I T L E D T O D E D U C T I O N UNDER SEC. 80IB(10) O F T H E ACT A S C L A I M E D . C O N S E Q U E N T L Y , T H E O R D E R O F T H E COMMISSIONER OF INCOME TAX (APPEALS) S T A N D S R E V E R S E D A N D T H A T O F T H E ASSESSING OFFICER I S R E S T O R E D . 1 5 . IN THE RESULT, APPEAL S OF THE R E V E N U E A R E A L L O W E D A N D T H E C R O S S O B J E C T I O N O F T H E ASSESSEE I S D I S M I S S E D . ORDER PRONOUNCED IN THE COURT AT THE CLOSE O F THE HEARING ON WEDNESDAY , THE 2 0 TH DAY OF JANUARY , 201 6 AT GOA . S D / - S D / - (N.S.SAINI) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 2 0 TH JANUARY , 201 6 . VR/ - 11 ITA NO. 4 15 /PNJ/201 5 IT(SS)A NOS.3 7 & 38/PNJ/2015 & C.O. NO. 73/PNJ/2015 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 .