Agni Estates and Foundation Pvt Ltd., CHENNAI V. DCIT, CHENNAI

ITA 1056/CHNY/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 6013 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 5 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 08-08-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 21-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASISH TRIPATHY
• Keywords: Competent authority
• Section: 154

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI . . . , , ' # BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER ./ ITA NOS.1056, 1057 & 1058/MDS/2016 & '& / ASSESSMENT YEARS : 2010-11 & 2012-13 M/S AGNI ESTATES AND FOUNDATION PVT. LTD., C/O M/S SUBBARAYA AIYAR PADMANABHAN & RAMAMANI ADVOCATES, NEW NO.114 (OLD NO.248), ROYAPETTAH HIGH ROAD, ROYAPETTAH, CHENNAI - 600 014. PAN : AAACA 7990 C V. THE DEPUTY COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 1(1), CHENNAI - 600 006. ()*/ APPELLANT) (+,)*/ RESPONDENT) )* - . / APPELLANT BY : SH. VIKRAM VIJAYARAGHAVAN, ADVOCAT E +,)* - . / RESPONDENT BY : SHRI ASISH TRIPATHY, JCIT / - 0' / DATE OF HEARING : 08.08.2017 12' - 0' / DATE OF PRONOUNCEMENT : 05.10.2017 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: ALL THE THREE APPEALS OF THE ASSESSEE ARE DIRECTE D AGAINST THE RESPECTIVE ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS)-1, CHENNAI, AND PERTAIN TO ASSESSMENT YEA RS 2010-11 2 I.T.A. NOS.1056 TO 1058/MDS/16 AND 2012-13. SINCE COMMON ISSUE ARISES FOR CONSIDE RATION IN ALL THE THREE APPEALS, WE HEARD THESE APPEALS TOGETHER AND DISPOSING OF THE SAME BY THIS COMMON ORDER. 2. THERE WAS A DELAY OF 376 DAYS IN FILING THE APPE AL IN I.T.A. NO.1057/MDS/2016 BY THE ASSESSEE. THE ASSESSEE HAS FILED A PETITION FOR CONDONATION OF DELAY. WE HAVE HEARD T HE LD.COUNSEL AND THE LD. D.R. WE FIND THAT THERE WAS SUFFICIENT CAUSE FOR NOT FILING THE APPEAL BEFORE THE STIPULATED TIME. THER EFORE, WE CONDONE THE DELAY AND ADMIT THE APPEAL. 3. SH. VIKRAM VIJAYARAGHAVAN, THE LD.COUNSEL FOR TH E ASSESSEE, SUBMITTED THAT I.T.A. NO.1056/MDS/2016 IS ARISING O UT OF THE ORDER PASSED BY THE CIT(APPEALS) UNDER SECTION 154 OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'). OTHER TWO APPEALS ARE REGULAR APPEALS. ACCORDING TO THE LD. COUNSEL, THE ASSESSE E CLAIMED DEDUCTION UNDER SECTION 80-IB(10) OF THE ACT IN RES PECT OF HOUSING PROJECT. THE ASSESSING OFFICER REJECTED THE CLAIM OF THE ASSESSEE FOR BOTH THE ASSESSMENT YEARS ON THE GROUND THAT TH E BUILT-UP AREA EXCEEDED THE PRESCRIBED LIMIT OF 1500 SQ.FT. REFER RING TO THE ORDER OF THE CIT(APPEALS), MORE PARTICULARLY PAGE 5 FOR A SSESSMENT YEAR 2010-11, THE LD.COUNSEL SUBMITTED THAT THE BUILT-UP AREA IS 1316 3 I.T.A. NOS.1056 TO 1058/MDS/16 SQ.FT. IN ONE BLOCK OF VILLAS AND ANOTHER BLOCK OF VILLAS IT IS 1191 SQ.FT. IN BOTH THE CASES, ACCORDING TO THE LD. COUNSEL, IT DOES NOT EXCEED 1500 SQ.FT. THE ASSESSING OFFICER INCLUDED PORTICO AREA AND COMMON AREA FOR COMPUTING THE BUILT-UP AREA. ACCOR DING TO THE LD. COUNSEL, COMMON AREA CANNOT FORM PART OF BUILT-UP A REA. THE LD.COUNSEL PLACED HIS RELIANCE ON THE JUDGMENT OF M ADRAS HIGH COURT IN CIT V SUBBA REDDY (HUF) (2015) 373 ITR 103 . 4. ON THE CONTRARY, SHRI ASISH TRIPATHY, THE LD. DE PARTMENTAL REPRESENTATIVE, SUBMITTED THAT THE ASSESSEE UNDERTO OK THREE PROJECTS. IN RESPECT OF SELAIYUR AND PALLIKARANAI PROJECTS, THE CIT(APPEALS) ALLOWED THE CLAIM OF THE ASSESSEE UNDE R SECTION 80- IB(10) OF THE ACT. HOWEVER, IN RESPECT OF PORUR PR OJECT, ACCORDING TO THE LD. D.R., THE CIT(APPEALS) DIRECTED THE ASSESSI NG OFFICER TO RE- EXAMINE THE MATTER AND THEREAFTER DECIDE THE SAME A S PER HIS DIRECTION. ACCORDING TO THE LD. D.R., THE BUILT-UP AREA EXCEEDED 1500 SQ.FT. IN RESPECT OF PORUR PROJECT, THEREFORE, THE CIT(APPEALS) HAS RIGHTLY DIRECTED THE ASSESSING OFFICER TO VERIF Y THE SAME. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, THE ASSESSEE IS IN THE BUSINESS OF CIVIL CONSTRUCTION. THE ASSESSEE 4 I.T.A. NOS.1056 TO 1058/MDS/16 PROMOTED HOUSING PROJECTS IN SELAIYUR, PALLIKARANAI AND PORUR. IN RESPECT OF SELAIYUR AND PALLIKARANAI PROJECTS, THE CIT(APPEALS) ALLOWED THE CLAIM OF THE ASSESSEE UNDER SECTION 80- IB(10) OF THE ACT FOR THE ASSESSMENT YEAR 2010-11. FOR THE ASSES SMENT YEAR 2012-13, THE ONLY ISSUE IS IN RESPECT OF CLAIM OF D EDUCTION UNDER SECTION 80-IB(10) OF THE ACT IN RESPECT OF PORUR PR OJECT. IN THE PORUR PROJECT, THE CIT(APPEALS), FOR ASSESSMENT YEAR 2012 -13, FOUND THAT THE BUILT-UP AREA EXCEEDED 1500 SQ.FT., THEREFORE, THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION UNDER SECTION 80-IB(10) OF THE ACT. HOWEVER, FOR ASSESSMENT YEAR 2010-11, THE CIT(APPEA LS) FOUND THAT THE MATTER NEEDS TO BE RE-EXAMINED. ACCORDING LY, HE DIRECTED THE ASSESSING OFFICER FOR RE-EXAMINATION OF THE ISS UE. 6. THE QUESTION ARISES FOR CONSIDERATION IS WHETHER THE ASSESSEE CONSTRUCTED RESIDENTIAL UNIT EXCEEDING 150 0 SQ.FT. AS CLAIMED BY THE REVENUE? THE MADRAS HIGH COURT IN S UBBA REDDY (HUF) (SUPRA) EXAMINED THIS ISSUE AND AFTER REFERRI NG TO SUB-CLAUSE (14) OF SECTION 80-IB OF THE ACT, FOUND THAT THE DE FINITION FOR BUILT-UP AREA AS PROVIDED IN SECTION 80-IB(14) OF THE ACT, CAME INTO EFFECT FROM 01.04.2005. MOREOVER, COMMON AREA AND FACILIT IES ARE DEFINED IN TAMIL NADU APARTMENT OWNERSHIP ACT, 1994. THE HI GH COURT 5 I.T.A. NOS.1056 TO 1058/MDS/16 FURTHER FOUND THAT AS PER TAMIL NADU APARTMENT OWNE RSHIP ACT, 1994, BASEMENT, CELLARS, YARDS, GARDENS, PARKING AR EAS AND STORAGE SPACES ARE ALL COMMON AREAS. IN VIEW OF THE ABOVE, THE DEFINITION AS PROVIDED IN SECTION 80-IB(14) OF THE ACT, WHICH IS APPLICABLE FROM 01.04.2005, THE ASSESSING OFFICER HAS TO RE-EXAMINE THE MATTER IN THE LIGHT OF THE PLANNING PERMISSION GRANTED BY THE COMPETENT AUTHORITY UNDER TAMIL NADU TOWN AND COUNTRY PLANNIN G ACT AND ALSO ACTUAL CONSTRUCTION MADE BY THE ASSESSEE. ACC ORDINGLY, ORDERS OF BOTH THE AUTHORITIES BELOW ARE SET ASIDE AND THE ISSUE OF CLAIM OF DEDUCTION IN RESPECT OF PORUR PROJECT IS REMITTED B ACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE-EXAMINE THE MATTER AFRESH IN THE LIGHT OF THE MATERIAL THAT MAY BE FILED BY THE ASSESSEE AND THEREAFTER DECIDE THE SAME IN THE LIGH T OF JUDGMENT OF MADRAS HIGH COURT IN SUBBA REDDY (HUF) (SUPRA). IT IS ALSO MADE CLEAR THAT THE ASSESSING OFFICER IS AT LIBERTY TO R EFER THE MATTER TO VALUATION OFFICER TO FIND OUT THE ACTUAL BUILT-UP A REA, IF NECESSARY. 7. WITH THE ABOVE OBSERVATION, ALL THE APPEALS OF T HE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 6 I.T.A. NOS.1056 TO 1058/MDS/16 ORDER PRONOUNCED ON 5 TH OCTOBER, 2017 AT CHENNAI. SD/- SD/- ( ) ( . . . ) (S. JAYARAMAN) (N.R.S. GANESAN) ' / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 4 /DATED, THE 5 TH OCTOBER, 2017. KRI. - +056 76'0 /COPY TO: 1. )* /APPELLANT 2. +,)* /RESPONDENT 3. / 80 () /CIT(A)-1, CHENNAI 4. PRINCIPAL CIT, CHENNAI-1, CHENNAI 5. 69 +0 /DR 6. :& ; /GF.