Shambhu Properties, Pune V. Deputy Commissioner of Income tax, Pune

ITA 1004/PUN/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1013 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 7 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 21-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K VERMA
• Assessee Lawyers: B D BHIDE
• Section: 201; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, J UDICIAL MEMBER . / ITA NO . 1004 /PUN/201 7 / ASSESSMENT YEAR : 20 1 2 - 13 M/S. SHAMBHU PROPERTIES, 218, SHANIWAR PETH, PUNE - 411030 PAN : ABBFS8039F ....... / APPELLANT / V/S. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 12, PUNE / RESPONDENT ASSESSEE BY : SHRI B.D. BHIDE REVENUE BY : SHRI M.K. VERMA / DATE OF HEARING : 2 1 - 11 - 2019 / DATE OF PRONOUNCEMENT : 17 - 12 - 2019 / ORDER PER S.S. VISWANETHRA RAVI, JM : THIS APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 09 - 12 - 2016 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 5 , PUNE [CIT(A)] FOR ASSESSMENT YEAR 201 2 - 13. 2 ITA NO.1004/PUN/2017, A.Y. 2012 - 13 2. THE ONLY ISSUE IS TO BE DECIDED IS AS TO WHETHER THE CIT(A) JUSTIFIED IN DENYING DEDUCTION U/S. 80IB(10) OF THE ACT IN TERMS OF THE THEORY OF PROPORTIONATE DEDUCTION CONCERNING FLAT NO. 301 IN B WING IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. HEARD BOTH PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE NOTE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF PROMOTERS, BUILDERS AND C ONTRACTORS AND CONDUCTS ITS BUSINESS UNDER THE NAME AND STYLE OF M/S. SHAMBHU PROPERTIES. THE PUNE MUNICIPAL CORPORATION APPROVED A HOUSING PROJECT CONSISTING OF A AND B WINGS HAVING 11 AND 4 FLOORS, RESPECTIVELY VIDE COMMENCEMENT CERTIFICATE DATED 27 - 0 3 - 2006. THE ASSESSEE COMPLETED THE HOUSING PROJECT IN TERMS OF REVISED PLAN BY RESTRICTING 47 FLATS IN A WING. THE ARCHITECT ISSUED CERTIFICATE DATED 31 - 03 - 2010 ABOUT THE COMPLETION OF HOUSING PROJECT WHICH IS AT PAGE 134 OF THE PAPER BOOK , BUT HOWEVER PUNE MUNICIPAL CORPORATION ISSUED COMPLETION CERTIFICATE PART 1 BELATEDLY BY A GAP OF MERELY 11 & MONTHS. WE NOTE THAT THE PUNE MUNICIPAL CORPORATION ISSUED COMPLETION CERTIFICATE COVERING ENTIRE A WING AND 3 FLOORS OF B WING EXCLUDING THE 4 TH FLOOR IN B WING DUE TO DISPUTE REGARDING NALA BORDER . THE CIT(A) GRANTED DEDUCTION TO ENTIRE A WING AND DENIED TO B WING. THE CONTENTION OF LD. AR, SHRI B.D. BHIDE THAT THE ASSESSEE EARNED PROFIT ON SALE OF FLAT NO. 301IN B WING WHICH IS AT PAGE NO. 159 OF THE PAPER BOOK AND IT IS COVERED BY THE COMPLETION CERTIFICATE PART 1 ISSUED BY THE PUNE MUNICIPAL CORPORATION AND THE ASSESSEE IS ENTITLED FOR DEDUCTION U/S. 80IB(10) OF THE ACT IN VIEW OF THE ORDER OF THIS TRIBUNAL IN BATCH OF CASE S IN PADMAVATI DEVELOPERS V S. DY. COMMISSIONER OF INCOME TAX IN ITA NOS. 1691 & 1692/PN/2012 VIDE 3 ITA NO.1004/PUN/2017, A.Y. 2012 - 13 ITS CONSOLIDATED ORDER DATED 29 - 05 - 2015 AND REFERRED TO PARAS 37 AND 38 OF THE SAID ORDER. 4. ON PERUSAL OF THE RELEVANT PORTION A T PARAS 37 AND 38 OF THE ORDER OF THIS TRIBUNAL IN T HE CASE OF PADMAVATI DEVELOPERS VS. DY. COMMISSIONER OF INCOME TAX (SUPRA) WE FIND THAT THIS TRIBUNAL HELD THAT THE DEDUCTION U/S. 80IB(10) OF THE ACT IS AVAILABLE ON PRO - RATA DEDUCTION IN RESPECT OF RESIDENTIAL UNITS WHICH HAVE BEEN COMPLIED WITH THE COND ITIONS. THE CO - ORDINATE BENCH WHILE COMING TO SUCH CONCLUSION PLACED RELIANCE ON THE DECISION OF HONBLE HIGH COURT OF MADRAS IN THE CASE OF VISWAS PROMOTERS PRIVATE LIMITED VS. ASSISTANT COMMISSIONER OF INCOME TAX REPORTED IN 255 CTR 149 (MAD.) WHEREIN W E FIND THAT THE HONBLE HIGH COURT OF MADRAS WAS PL EASED TO HOLD THE PROPORTIONATE RELIEF IS AVAILABLE TO CLAIM DEDUCTION IN RESPECT OF ELIGIBLE UNITS WITHIN A COMPOSITE HOUSING PROJECT. THEREFORE, WE FIND FORCE IN THE ARGUMENTS OF LD. AR, SHRI B.D. BHIDE , THE ASSESSEE IS ENTITLED TO CLAIM DEDUCTION IN RESPECT OF FLAT NO. 301 IN B WING COVERED BY THE COMPLETION CERTIFICATE PART 1 ISSUED BY THE PUNE MUNICIPAL CORPORATION. 5. SHRI M.K. VERMA, THE LD. DR DID NOT DISPUTE FLAT NO. 301 IN B WING IS NOT PART OF COMPLETION CERTIFICATE PART 1. THEREFORE, WE HOLD THAT THE ASSESSEE IS ENTITLED TO CLAIM DEDUCTION U/S. 80IB(10) OF THE ACT AGAINST THE ELIGIBLE UNIT IN FLAT NO. 301 IN B WING IN TERMS OF THEORY OF PROPORTIONATE DEDUCTION AS LAID DOWN BY THE HONBLE HIGH COURT OF MADRAS IN THE CASE OF VISWAS PROMOTERS PRIVATE LIMITED (SUPRA) WHICH HAS BEEN FOLLOWED BY THIS TRIBUNAL IN THE CASE OF PADMAVATI DEVELOPERS VS. DY. COMMISSIONER OF 4 ITA NO.1004/PUN/2017, A.Y. 2012 - 13 INCOME TAX (SUPRA). THUS, THE ONLY GROUND RAISED BY THE ASSESSEE IS ALLOWED. 6 . IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH DECEMBER, 2019. SD/ - SD/ - ( D. KARUNAKARA RAO ) (S.S. VISWANETHRA RAVI) ACCOUNTANT MEMBER JUDICIAL MEMBE R / PUNE; / DATED : 17 TH DECEMBER, 2019 RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 5 , PUNE 4. THE PR. COMMISSIONER OF INCOME TAX - 4 , PUNE 5. , , , / DR, ITAT, B BENCH, PUNE. 6. / GUARD FILE. // // TRU E COPY // / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE