Income-tax Officer, V. M/s. Sai Home Makers,

ITA 1065/PUN/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7305 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 2 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 30-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ADJOURNMENT LETTER DATED
• Assessee Lawyers: DEEPAK S DADLAN I
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE . , , , BEFORE SHRI D. KARUNAKARA RAO , AM AND SHRI VIKAS AWASTHY, JM . . / ITA NO . 1065/PUN/2015 / ASSESSMENT YEAR : 2008 - 09 THE INCOME TAX OFFICER, WARD - 1, PANVEL. ....... / APPELLANT / V/S. M/S. SAI HOME MAKERS, 310/313, 3 RD FLOOR, PERSIPOLIS BUILDING, PERSIPOLIS BUILDING, PLOT NO. 74, SEC TOR - 17, VASHI, NAVI MUMBAI - 400705 PAN :ABAFS3227J / RESPONDENT REVENUE BY : ADJOURNMENT LETTER DATED 18.10.2017 ASSESSEE BY : SHRI JITENDRA JAIN & SHRI DEEPAK S. DADLAN I / DATE OF HEARING : 18.10.2017 / DATE OF HEARING : 18.10.2017 / DATE OF PRONOUNCEMENT : 25 . 10.2017 / ORDER PER D. KARUNAKARA RAO , A M : THIS APPEAL IS FILED BY THE REVENUE FOR ASSESSMENT YEAR 2008 - 09 IN CONNECTION WITH THE ORDER OF PENALTY U/S. 271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2. IN THE GROUNDS, REVENUE IS AGGRIEVED WITH THE DECISION OF DELETION OF PENALTY BY THE CIT(A) , WHEN THE RELEVANT QUANTUM ADDITION MADE BY THE AO STANDS DELETED BY THE APPELLATE BODIES. THE ISSUE , WHICH IS A SUBJECT MATTER OF PENALTY, RELATES TO THE ALLOWABILITY OF CLAIM OF DEDUCTION 2 ITA NO . 1065/PUN/2015 , A.Y. 2008 - 09 U/S. 80IB(10) OF THE ACT IN R ESPECT OF PROFITS RELATABLE TO TWO RESIDENTIAL UNITS OF THE PROJECT. IT IS ALLEGATION OF THE ASSESSING OFFICER THAT THE SAID RESIDENTIAL UNITS HAVE VIOLATED THE SPECIFIC AREA GUIDELINES SPECIFIED IN RESIDENTIAL UNITS HAVE VIOLATED THE SPECIFIC AREA GUIDELINES SPECIFIED IN CLAUSE (C) OF SECTION 80IB(10) OF THE ACT . THE PENALTY WA S DELETED B Y THE CIT(A) ON SEEING THE DEBATE ON THE ISSUE. THE CONTENTS OF PARA 4.4.6 ARE RELEVANT. 3. BRINGING OUR ATTENTION TO THE FATE OF THE SAID ORDER OF CIT(A) ON THE QUANTUM OF APPEALS , DURING SECOND APPELLATE PROCEEDING BEFORE THE QUANTUM OF APPEALS , DURING SECOND APPELLATE PROCEEDING BEFORE THE TRIBUNAL, LD . AR FOR THE ASSESSEE FILED COPY OF THE ORDER OF THE TRIBUNAL VIDE ITA NO. 5730/MUM./2011 FOR ASSESSMENT YEAR 2008 - 09 AND BROUGHT OUR ATTENTION TO PARA 10 TO 14 WHERE ASSESSEES APPEAL WAS ALLOWED GRANTING DEDUCTION IN RESPECT OF SAID TWO RESIDENTIAL FLAT NO.C - 101 AND C - 102. 4. WE PERUSED THE SAID PARAGRAPHS AND HEARD THE LD. AR ON THIS ISSUE. WE FIND THAT THIS IS A CASE WHERE QUANTUM OF ADDITION STANDS DELETED BY THE TRIBUNAL AND THEREFORE LEVY OF PENALTY DOES NOT ARISE. THEREFORE, IT IS A CASE OF THE ASSESSEE THAT PENALTY DOES NOT SURVIVE AS THE RELEVANT ADDITIONS ARE DELETED. FOR THE SAKE OF COMPLETENESS, WE PROCEED TO EXTRACT RELEVANT LINES FROM THE SAID PARA 14 OF ORDER OF THE TRIBUNAL WHICH READS AS UNDER : 14. .. THUS, AS PER THE EXISTING PROVISIONS OF SECTION 80LB, THERE WAS NO CONDITION THAT BUILT - UP AREA WILL INCLUDE PROJECTIONS / BALCONY. ADMITTEDLY, AS PER THE REPORT OF THE DVO, FLAT NO. C - 101 AND C - 102 ARE HAVING BUILT - UP AREA OF LESS THA N 1,000 SQ. FT., EXCLUDING BALCONY / PROJECTIONS / TERRACE. THAT BEING THE CASE, IN OUR CONSIDERED OPINION, BENEFIT OF DEDUCTION UNDER SECTION 80IB(10), CANNOT BE DENIED IN RESPECT OF FLAT NO .C - 101 AND C - 102. ACCORDINGLY, WE ALLOW ASSESSEE'S CLAIM OF DEDUC TION UNDER SECTION 80IB(10), IN RESPECT OF THESE TWO FLATS ALSO . GROUNDS RAISED ARE, THEREFORE, ALLOWED. RAISED ARE, THEREFORE, ALLOWED. 3 ITA NO . 1065/PUN/2015 , A.Y. 2008 - 09 5 . FROM THE ABOVE PARAGRAPH, IT IS EVIDENT THAT THE TRIBUNAL CATEGORICALLY GRANTED DEDUCTION IN RESPECT OF THE PROFITS RELATABLE TO SAID TWO FLATS A ND ALLOWED THE GROUND RAISED BY THE ASSESSEE. HENCE, THE TWO FLATS A ND ALLOWED THE GROUND RAISED BY THE ASSESSEE. HENCE, THE ADJOURNMENT APPLICATION OF CIT - DR IS REJECTED AND PROCEEDED TO ADJUDICATE THE ISSUE DISMISSING THE APPEAL OF THE REVENUE. 6. THEREFORE, THE PR ESENT PENALTY PROCEEDING WHICH HA S THE GENESIS IN THE SAID CLAIM OF DEDUCTION U/S 80IB (10) OF THE ACT, IS NOT SUSTAINABLE IN LAW. THEREFORE, WE NEED NOT TO GO INTO THE DEBATE DISCUSSE D BY THE CIT LAW. THEREFORE, WE NEED NOT TO GO INTO THE DEBATE DISCUSSE D BY THE CIT (A) AT THIS STAGE. ACCORDINGLY , GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 7 . IN THE RESULT, A PPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON 25 TH DAY OF OCTOBER, 2017. SD/ - SD/ - ( / VIKAS AWASTHY) ( . / D. KARUNAKARA RAO ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 25 TH OCTOBER , 2017 SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS) - 11, PUNE 4. THE CIT - 11, PUNE 4. THE CIT - 11, PUNE 5 . , , , / DR, ITAT, A BENCH, PUNE. 6 . / GUARD FILE. // TRUE COPY // / BY ORDER, / / PRIVATE SECRETARY, , / ITAT, PUNE .