Shri Paras Bhomraj Oswal, Kolhapur V. Asst. CIT, Circle-1, Kolhapur

ITA 1128/PUN/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6732 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-06-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 23-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MUKUTESH DUBE
• Keywords: Benefit of exemption
• Section: 143(3); 80IB; 263; 2

Judgement Text

INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NOS. 1127 AND 1128/PN/2013 (ASSESSMENT YEARS : 2003-04 AND 2004-05) SHRI PARAS BHOMRAJ OSWAL, PROP. M/S. POOJA BUILDERS & DEVELOPERS, 2804/B WARD, MANGALWAR PETH, KOLHAPUR PAN NO.AABPO1487C .. APPELLANT VS. ACIT, CIRCLE-1, KOLHAPUR .. RESPONDENT ASSESSEE BY : SHRI M.K. KULKARNI DEPARTMENT BY : SHRI MUKUTESH DUBE DATE OF HEARING : 04-06-2014 DATE OF PRONOUNCEMENT : 23-06-2014 ORDER PER R.S. PADVEKAR, JM : BOTH THESE APPEALS ARE FILED BY THE ASSESSEE CHALLE NGING THE IMPUGNED ORDERS OF THE LD. CIT-I, KOLHAPUR PASSED U /S.263 OF THE INCOME TAX ACT FOR THE ASSESSMENT YEARS 2003-04 AND 2004-05 QUESTIONING THE LEGALITY AND VALIDITY OF THOSE ORDE RS. 2. WE FIND THAT THE GROUNDS TAKEN IN BOTH THE APPEA LS ARE COMMON AND ALSO MULTIPLE BUT THE SOLITARY ISSUE WHICH ARIS ES FOR OUR CONSIDERATION IS WHETHER THE LD.CIT-I, KOLHAPUR HAS EXERCISED HIS JURISDICTION U/S.263 OF THE INCOME TAX ACT WITHIN T HE FOUR CORNERS OF THE MANDATES OF THE SAID SECTION ? 3. AS PER THE FACTS ON RECORD, THE ASSESSEE IS A PR OPRIETOR OF M/S.POOJA BUILDERS AND DEVELOPERS. THE ASSESSEE FI LED THE RETURN OF INCOME FOR THE A.Y. 2003-04 DECLARING TOTAL INCOME OF RS.2,19,760/- AND RS.7,25,167/- FOR A.Y. 2004-05. THE ASSESSEE A LSO CLAIMED THE 2 DEDUCTION U/S.80IB(10) OF THE INCOME TAX ACT, 1961 AT RS.37,58,016/- IN A.Y. 2003-04 AND RS.39,27,272/- IN A.Y. 2004-05 IN RESPECT OF THE HOUSING PROJECT BHAKTI POOJA NA GAR AT KOLHAPUR. IN THE A.Y. 2003-04, THE ASSESSING OFFICER NOTED TH AT (I) TWO RESIDENTIAL PROJECTS WERE HAVING BUILT UP AREA IN E XCESS OF 1500 SQ.FT. AND (II) 15 OTHER RESIDENTIAL UNITS WERE ALSO FOUND TO HAVE BUILT UP AREA IN EXCESS OF 1500 SQ.FT. THE ASSESSING OFFICER MADE THE DISALLOWANCE U/S.80IB(10) DEDUCTION WHICH WAS CARRI ED BEFORE THE LD.CIT(A) AND THE ASSESSEE SUCCEEDED AS THE LD.CIT( A) GAVE RELIEF TO THE ASSESSEE. 4. THE REVENUE CARRIED THE ISSUE BEFORE THE TRIBUNA L IN BOTH THE ASSESSMENT YEARS. THE ITAT DISPOSED OF THE APPEALS FILED BY THE REVENUE BY ITS COMMON ORDER DATED 30-06-2009 IN ITA NO.446/PN/2006 FOR A.Y. 2003-04 AND ITA NO.1119/PN/ 2007 FOR A.Y. 2004-05 RESPECTIVELY AND ALSO THE APPEAL FILED BY T HE ASSESSEE BEING ITA NO.612/PN/2008 AGAINST THE ORDER PASSED BY THE CIT-I, KOLHAPUR U/S.263 OF THE INCOME TAX ACT DATED 19-03-2008. TH E TRIBUNAL REMITTED THE MATTER OF DEDUCTION U/S.80IB(10) TO TH E FILE OF THE ASSESSING OFFICER WITH DIRECTION TO DECIDE THE ISSU E AFTER CONSIDERING THE DECISION OF THE ITAT SPECIAL BENCH OF THE TRIBU NAL IN THE CASE OF M/S. BRAHMA ASSOCIATES AND OTHERS REPORTED IN 122 T TJ 443. THE OPERATIVE PART OF THE DIRECTIONS OF THE ITAT, PUNE IN ITA NO.446/PN/2006 AND ITA NO.119/PN/2007 AND ITA NO.61 2/PN/2008 VIDE ORDER DATED 30-06-2009 ARE AS UNDER : 2. WE HAVE HEARD BOTH THE SIDES. LEARNED CIT IN TH E ORDER U/S 263 HAVE SPECIFICALLY MENTIONED THAT THE RELIANCE P LACED BY THE ASSESSES IN THE CASE OF ARUN EXCELLO FOUNDATION PVT . LTD. VS. ACIT [2007] 108 TTJ 71 (CHENNAI) WAS WITH EFFECT FROM 01 /04/2005 I.E. A.Y. 2005-06 AND THE DEDUCTION IS ALSO ALLOWABLE ON PRO-RATA BASIS. LEARNED COMMISSIONER HAS ALSO REFERRED THAT ON ACCO UNT OF SAID DECISION ABOUT THE APPLICABILITY OF THE PROVISIONS OF SECTION 80-IB(10) THE SAME IS SUB-JUDICE BEFORE SPECIAL BENCH OF THE TRIBUNAL. ON ACCOUNT OF THESE REASONS ONCE THE REVENUE AUTHORITI ES ARE AWARE OF 3 THE FACT THAT THE MATTER WAS SUB-JUDICE BEFORE SPEC IAL BENCH HOWEVER, PROCEEDED WITH THE MATTER THEREFORE, THE V EHEMENT SUBMISSION OF BOTH THE SIDES I.E. SHRI M.K. KULKARN I APPEARING FROM THE SIDE OF THE ASSESSEE AND LEARNED CIT(DR) SHRI A .S. SINGH APPEARING FROM THE SIDE OF THE REVENUE HAVE MADE A REQUEST THAT THE MATTER MAY BE RESTORED BACK TO A.O. FOR RECONSIDERA TION OF THE ENTIRE ISSUE SINCE A VERDICT HAS COME FROM THE SPECIAL BEN CH PUNE IN THE CASE OF M/S BRAHMA ASSOCIATES AND OTHERS, ORDER DAT ED 06/04/2009. HOWEVER, THE RESPECTED SPECIAL BENCH VIDE PARA 115 HAS DEALT THIS SITUATION AS UNDER:- '115. THERE MAY BE CASES WHERE THE TOTAL BUILT UP C OMMERCIAL AREA IS MORE THAN 10% OF TOTAL AREA. THESE PROJECTS, IN OUR OPINION, NORMALLY SHOULD NOT GET BENEFIT OF EXEMPTION UNLESS SUCH UND ERTAKING CAN SHOW THAT INCOME FROM CONSTRUCTION OF RESIDENTIAL DWELLI NG UNITS CAN BE WORKED OUT SEPARATELY AND EVEN AFTER EXCLUDING THE COMMERC IAL USE OF PLOT, THE PROJECT SATISFIES ALL THE REQUIREMENTS OF SECTION 8 0IB(10) OF THE INCOME- TAX ACT. IN OTHER WORDS, IN ORDER THAT THE PROFITS FROM DWELLING UNIT SEGMENT OF THE PROJECT IS ELIGIBLE FOR DEDUCTION UN DER SECTION 80IB(10) IN SUCH A CASE-, SIZE OF THE PLOT, EXCLUDING PORTIO N UNDER COMMERCIAL UNIT, MUST BE MORE THAN MINIMUM AREA OF ONE ACRE AND RESI DENTIAL UNITS BUILT ON SUCH AREA MUST SATISFY CONDITION OF CLAUSE (C) OF THE PROVISION. IN OUR CONSIDERED OPINION, ABOVE INCOME OF UNDERTAKING FROM PROJECT REFERRED TO ABOVE SHOULD BE GRANTED EX EMPTION UNDER THE STATUTORY PROVISION, AS SUCH INCOME SATISFY THE PURPOSE OF THE ENACTMENT. IN ANY CASE, DENIAL OF DEDUCTION IS SUCH CASES WILL BE PURELY BASED ON HYPER TECHNICAL GROUND, BECAUSE INS TEAD OF SEEKING APPROVAL AS RESIDENTIAL CUM COMMERCIAL PROJECT FOR THE ENTIRE PROJECT, THE ASSESSEE COULD HAVE AS WELL TAKEN SEPARATE APPR OVAL FOR RESIDENTIAL SEGMENT WHICH, EVEN ON STANDALONE BASIS , WOULD HAVE SATISFIED ALL THE REQUISITE CONDITIONS. AS WE HAVE ALREADY POINTED OUT, APPROVAL AS RESIDENTIAL PROJECT WAS NOT A CONDITION PRECEDENT FOR GRANT OF DEDUCTION UNDER SECTION 80 IB, AND IN CITY LIKE PUNE, THERE WAS NO PROVISION IN THE LOCAL REGULATION TO APPROV E PROJECT AS A 'HOUSING PROJECT'. THERE WOULD BE NO LEGAL JUSTIFIC ATION TO DENY EXEMPTION TO RESIDENTIAL SEGMENT OF SUCH A HOUSING PROJECT, WHICH SATISFIES CONDITIONS OF SECTION 80IB(10) ON STANDAL ONE BASIS, MERELY BECAUSE THEIR PROJECT HAS BEEN APPROVED BY LOCAL AU THORITY AS A RESIDENTIAL CUM COMMERCIAL PROJECT. IF THE INCOME O F THE PROJECT PERTAINING EXCLUSIVELY TO THE CONSTRUCTION OF THE R ESIDENTIAL UNITS CAN BE SEPARATELY WORKED AND OTHER REQUIREMENTS OF SECT ION ARE SATISFIED, THERE IS NO GOOD REASON TO WITHHOLD GRANT OF INCENT IVE TO SUCH INCOME OF THE UNDERTAKING. APART FROM THE ABOVE, OTHER UND ERTAKINGS EXCEEDING ABOVE LIMIT LE, THOSE WITH COMMERCIAL BUI LT UP OF MORE THAN 10% OF AREA, IN OUR OPINION, ARE NOT ENTITLED TO BENEFIT OF EXEMPTION AS THOSE UNDERTAKINGS HAVE NOT WORKED IN ACCORDANCE WITH SPIRIT AND INTENDMENT OF THE STATUTORY PROVISION. 3. WE FIND FORCE IN THE SUBMISSION OF BOTH THE S IDES THROUGH WHICH THEY HAVE MADE A REQUEST FOR DE-NOVO CONSIDERATION OF THE ENTIRE ISSUE IN THE LIGHT OF THE VERDICT OF THE SPECIAL BE NCH. SINCE BOTH THE SIDES HAVE AGREED TO REFER THIS ISSUE BACK TO THE S TAGE OF THE A.O. THEREFORE, IN OUR CONSIDERED OPINION NO PREJUDICE S HALL BE CAUSED TO EITHER OF THEM IF WE SEND THIS ISSUE BACK TO A.O. W ITH THE DIRECTION TO FOLLOW THE SPECIAL BENCH DECISION. OTHERWISE ALSO I N SUCH TYPE OF CASES THIS BENCH IS CONSISTENTLY ADOPTING THIS RECO URSE BUT WITH THE 4 DIRECTION TO TREAT THE SAID ORDER OF THE RESPECTED SPECIAL BENCH AS ANNEXED TO THE ORDER. 4. IN VIEW OF THE ABOVE DIRECTION BOTH THE APPEALS MAY BE TREATED AS ALLOWED ONLY FOR STATISTICAL PURPOSE. ITA NO. 1119/PN/2007 : (REVENUE'S APPEAL) : 5. THIS APPEAL OF THE REVENUE EMANATES FROM T HE ORDER OF CIT(A),KOLHAPUR DATED 14/06/2007 WHEREIN HE HAS SI MPLY FOLLOWED HIS OWN DECISION FOR THE A.Y. 2003-04. SINCE WE HAV E RESTORED THAT YEAR BACK TO A.O. FOR RE-ADJUDICATION IN THE LIGHT OF THE VERDICT OF THE SPECIAL BENCH AND THE COMMISSIONER HAS FOLLOWED THE PAST HISTORY THEREFORE, IN THE INTEREST OF THE JUSTICE, THE RIGH T RECOURSE IS TO REFER THIS YEAR AS WELL BACK TO A.O. TO BE DECIDED ON THE SAME LINES SINCE THE ISSUES RAISED BY THE REVENUE IN THIS APPEAL ARE IDENTICAL. 6. ALL THESE APPEALS ARE ALLOWED ONLY FOR STATISTIC AL PURPOSE. 4.1 IN THE OPINION OF THE LD.CIT-I, KOLHAPUR THE AS SESSING OFFICER WAS REQUIRED TO RE-EXAMINE THE ISSUE ON MERITS AND DECIDE THE CLAIM OF DEDUCTION U/S.80IB OF THE INCOME TAX ACT IN THE LIGHT OF THE DECISION OF THE HONBLE SPECIAL BENCH OF THE ITAT, PUNE IN THE CASE OF BRAHMA ASSOCIATES (SUPRA). 5. THE ASSESSING OFFICER PASSED THE ORDER IN THE MA TTER REMITTED FOR A.Y. 2003-04 AND OPERATIVE PART OF THE SAID ORD ER IS AS UNDER : 4. THE ASSESSEE APPROACHED TO LD. CIT(A) AGAINST T HE DISALLOWANCE MADE BY THE THEN A.O. CIT(A) DECIDED T HE APPEAL IN FAVOUR OF THE ASSESSEE. FURTHER, REVENUE PREFERRED APPEAL BEFORE THE HON'BLE ITAT AGAINST THE DECISION OF LD. CIT(A). IN THIS CASE, HON'BLE ITAT IN THEIR ORDER DATED 30.06.2009 RELYING ON THE DECISION OF HON'BLE ITAT, SPECIAL BENCH, PUNE IN THE CASE OF BRAHMA ASS OCIATES & OTHERS RESTORED THE MATTER BACK TO THE A.O. AND DIRECTED T O FOLLOW THE DECISION OF SPECIAL BENCH DECISION. THE GROUND RESTORED BACK TO THE A.O. BY THE ITAT IN THEIR ORDER (SUPRA) ARE AS UNDER:- (I) ISSUE OF APPLICABILITY OF AMENDMENT MADE UN DER SECTION 80IB(10) I.E. RETROSPECTIVE OR PROSPECTIVE IN NATUR E AND (II) ISSUE OF DEPARTMENTAL STORE; 5. IT IS NECESSARY TO MENTION HERE THAT AGAINST THE DECISION OF HON'BLE ITAT, SPECIAL BENCH, PUNE IN THE CASE OF BR AHMA ASSOCIATES & OTHERS; REVENUE HAS PREFERRED APPEAL IN THE HON'BLE HIGH COURT OF MUMBAI. FURTHER, THERE ARE OTHER ISSUES INVOLVED IN THE ASSESSEE'S CASE AND HON'BLE ITAT ORDER DATED 30.06.2009 IS SIL ENT ABOUT THESE ISSUES. DETAILS OF SUCH ISSUES ARE AS UNDER:- 5 (I) ISSUE OF ELIGIBILITY OF PROJECT OF THE ASSESSE E FOR DEDUCTION U/S 80IB(10) ALTHOUGH HE HAD ACCEPTED THA T THE BUILT UP AREA OF BUNGALOW NO.C-5 & D-5 EXCEEDED THE SPECI FIED LIMIT BUILT UP AREA OF 1500 SQR. FT. (II) ISSUE OF TREATING THE EXCESSIVE BUILT UP AREA OF BUNGALOW NO. C-5 85 C-6 AS MARGINALLY EXCESS AND ALSO CONDON ING THE EXCESSIVE BUILT UP AREA BY THE LD. CIT(A). (III) ISSUE OF EXCLUSION OF THE BUILT UP AREA OF VE RANDAH FROM THE TOTAL BUILT UP AREA; AS SUCH RELIEF GRANTED BY THE CIT(A) TO THE ASSESSEE AND TREATING THE VERANDAH AS EQUIVALEN T TO PORCH. 6. AS ABOVE ISSUES WERE NOT DECIDED BY THE HON'BLE ITAT, A MISCELLANEOUS APPLICATION DATED 24.12.2010 HAS BEEN FILED BY THE DEPARTMENT; THE DECISION OF HON'BLE ITAT IS STI LL AWAITED. 7. FURTHER, AGAINST THE DECISION OF HON'BLE ITAT, SPECIAL BENCH, PUNE IN THE CASE OF BRAHMA ASSOCIATES & OTHE RS; REVENUE HAS PREFERRED APPEAL BEFORE THE HON'BLE HIG H COURT OF MUMBAI, DECISION OF WHICH IS STILL AWAITED. 8. IN VIEW OF THE FOREGOING PARAS, FINAL DECISION ON ALLOWABILITY OF DEDUCTION U/S 80IB TO THE ASSESSEE' S PROJECT 'BHAKTI POOJA NAGAR' WILL BE TAKEN AS AND WHEN THE DECISION OF HON'BLE ITAT ON THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IN THE ASSESSEE'S OWN CASE. 9. AS SUCH, COMPUTATION OF INCOME OF THE ASSESSEE F OR THE A.Y. 2003-04 IS TO REMAIN THE SAME AS IN THE ORDER GIVING EFFECT TO ORDER OF CIT(A). 10. ASSESSED U/S 143(3) OF THE I.T. ACT, 1961. NO D EMAND. 6. THE LD.CIT-I, KOLHAPUR WAS OF THE OPINION THAT T HE ORDERS PASSED BY THE ASSESSING OFFICER FOR THE A.YRS. 2003 -04 AND 2004-05 DATED 31-12-2010 WERE NOT IN COMPLIANCE WITH THE D IRECTIONS OF THE TRIBUNAL. HE, THEREFORE, PROCEEDED TO REVISE THE A SSESSMENT ORDERS FOR BOTH THE ASSESSMENT YEARS AND PASSED THE ORDERS U/S.263 AND SETTING ASIDE THE ASSESSMENT ORDERS FOR BOTH THE YE ARS HE HELD THAT THE ORDERS PASSED BY THE ASSESSING OFFICER ARE ERRO NEOUS FOR BOTH THE ASSESSMENT YEARS SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE LD.CIT-I, KOLHAPUR ALSO DIRECTED THE ASSESSING OFFICER TO EXAMINE THE ISSUE INVOLVED IN TERMS OF THE DIREC TIONS GIVEN BY THE ITAT, PUNE AND TO PASS THE ORDER ACCORDINGLY. THE FINDINGS AND REASONING OF THE LD.CIT-I, KOLHAPUR IN A.Y. 2003-04 IN THE ORDER PASSED U/S.263 ARE AS UNDER : 6 IN THIS CASE THE TRIBUNAL HAD SET ASIDE THE ISSUE TO THE FILE OF THE AO WITH CERTAIN SPECIFIC DIRECTIONS. AS PER THE SCHEME OF LIMITATION THE ORDERS IN THIS CASE WERE REQUIRED TO BE PASSED BY 3 1.12.2010. THE AO HAS PASSED AN ORDER WHEREIN HE HAS CONSCIOUSLY N OT VERIFIED THE ISSUES INVOLVED IN TERMS OF THE ITAT'S DIRECTIONS O BSERVING THAT A MISCELLANEOUS APPLICATION HAS BEEN PREFERRED AGAINS T THE ITAT'S ORDER AND THAT THE ORDER RELIED UPON BY THE ITAT WAS NOT ACCEPTED BY THE REVENUE. THIS WAS A GRIEVOUS MISTAKE OF LAW COMMITT ED BY THE ASSESSING OFFICER. FILING OF A MISCELLANEOUS APPLIC ATION DOES NOT ARM THE ASSESSING OFFICER WITH A LEGAL SHIELD TO DISREG ARD THE DIRECTIONS ISSUED BY THE ITAT. A QUESTION ALSO ARISES AS TO WH ETHER THE AO WOULD HAVE ANY OPPORTUNITY TO REVISIT THE CASE ON R ECEIPT OF DECISION ON THE MISCELLANEOUS APPLICATION FILED OR AFTER FIN AL SETTLEMENT OF THE ISSUE BY POSSIBLY THE HIGHEST APPELLATE AUTHORITY I .E. THE APEX COURT. IN THE SCHEME OF LIMITATION UNDER THE I.T, ACT, 196 1 IT IS SEEN THAT THE AO WOULD NOT HAVE ANY OPPORTUNITY TO REVISIT THE CA SE AFTER RECEIPT OF DECISION ON THE MISCELLANEOUS APPLICATION OR AFTER A FINAL SETTLEMENT OF THE RATIO RENDERED IN THE CASE OF BRAHMA ASSOCIATES . THEREFORE, THE INCOME OF THE ASSESSEE WOULD BE THE AMOUNT AS ASSES SED BY THE AO IN THE ORDER DATED 31.12.2010. AS THE IMPUGNED DEDU CTION U/S. 8018(10) STOOD ALLOWED TO THE ASSESSEE IN THE ORDER PASSED ON 31.12.2010, THE SAME WOULD BECOME FINAL. HENCE, THE RE IS NO SUBSTANCE IN THE ASSESSEE'S SUBMISSION THAT THE ORD ER PASSED BY THE AO NOT FINAL AND THAT SUCH AN ORDER COULD NOT BE RE VISED. 7. IN VIEW OF THE AFORESAID DISCUSSION THE ORDER PA SSED BY THE AO ON 31.12.2010 FOR A.Y. 2003-04 IS FOUND TO BE ERRONEOU S IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF REVENUE AND IS SET A SIDE TO THE FILE OF THE AO FOR DETERMINATION OF THE ISSUES INVOLVED IN TERM S OF THE DIRECTIONS GIVEN BY THE ITAT VIDE ITS ORDER DATED 30.06.2009. IN THIS ORDER NO OBSERVATIONS ON MERITS OF THE ISSUES INVOLVED ARE B EING MADE AS THESE ARE SPECIFICALLY COVERED BY THE ITAT'S DIRECT IONS IN THE CASE OF BRAHMA ASSOCIATES LTD. THE AO SHALL ESSENTIALLY EXA MINE THE ISSUES INVOLVED IN TERMS OF THE DIRECTIONS GIVEN BY THE IT AT AND PASS AN ORDER ACCORDINGLY. 6.1 THE REASONS GIVEN IN A.Y. 2004-05 ARE VERBATIM FOR SETTING ASIDE THE ORDER PASSED BY THE ASSESSING OFFICER. 7. NOW THE ASSESSEE HAS CHALLENGED THE ORDERS PASSE D BY THE LD.CIT-I, KOLHAPUR SETTING ASIDE BOTH THE ASSESSMEN T ORDERS FOR A.YRS. 2003-04 AND 2004-05 PASSED BY THE ASSESSING OFFICER WHEN THE ISSUE OF DEDUCTION U/S.80IB(10) WAS REMITTED BY THE TRIBU NAL. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTI ES AND PERUSED THE RECORD. WE HAVE ALREADY REPRODUCED THE CHRONOL OGICAL FACTS HEREIN ABOVE. IN THIS CASE, THE TRIBUNAL HAS REMIT TED THE ISSUE OF ALLOWABILITY OF DEDUCTION U/S.80IB(10) TO THE FILE OF THE ASSESSING OFFICER WITH DIRECTIONS THAT HE SHOULD DECIDE THE S AME AFTER 7 CONSIDERING THE DECISION OF THE HONBLE SPECIAL BEN CH, ITAT, PUNE IN THE CASE OF BRAHMA ASSOCIATES (SUPRA). WE HAVE REP RODUCED HEREINABOVE THE ORDER PASSED BY THE ASSESSING OFFI CER DATED 31-12- 2010 WHICH IS CLAIMED TO BE IN COMPLIANCE WITH THE DIRECTIONS OF THE TRIBUNAL. WE HAVE ALSO REPRODUCED THE OPERATIVE PA RT OF THE TRIBUNALS ORDER FOR A.Y. 2003-04. SO FAR AS THE A SSESSMENT ORDER FOR A.Y. 2004-05 IS CONCERNED THERE IS NO DIFFERENCE IN THE NARRATIONS OF THE A.O. 8.1 THE WAY THE ASSESSMENT ORDER IS PASSED BY THE A .O. IS HAVING THE SERIOUS INFIRMITY AND IN OUR OPINION ALSO IT IS NOT IN ACCORDANCE WITH LAW AND NOT AS PER THE DIRECTIONS OF THE TRIBU NAL IN BOTH THE ASSESSMENT YEARS. IT IS TO BE NOTED HERE THAT THE CIT(A) ALLOWED THE CLAIM OF THE ASSESSEE AGAINST WHICH THE REVENUE WAS IN APPEAL IN BOTH THE ASSESSMENT YEARS AND THE MATTER WAS REMITT ED BACK BY THE TRIBUNAL TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER WAS DUTY BOUND TO DECIDE THE ISSUE RESTORED TO HIM BY WAY OF A REASONED ORDER. THE WAY THE ASSESSING OFFICER HAS PASSED THE ASSESSMENT ORDERS IS OF SERIOUS CONCERN. HE HAS ME NTIONED THAT MISCELLANEOUS APPLICATION WAS PENDING HENCE, THE DE CISION CANNOT BE TAKEN. HE HAS ALSO MENTIONED THAT DECISION IN THE CASE OF BRAHMA ASSOCIATES (SUPRA) HAS NOT BEEN ACCEPTED BY THE DEP ARTMENT AND HENCE, FINALLY IN A STRANGE WAY, HE HELD THAT THE A SSESSEES INCOME REMAINED THE SAME AS IN THE ORDER GIVING EFFECT TO THE ORDER OF THE CIT(A) FOR THE A.Y. 2003-04 AND IN THE A.Y. 2004-05 . HE DETERMINED THE TOTAL INCOME AT RS.7,25,167/- BY STATING THAT TOTAL INCOME COMPUTED IN THE YEAR GIVING EFFECT TO THE ORDER OF THE CIT(A), KOLHAPUR. THE ASSESSING OFFICER WAS DUTY BOUND TO FOLLOW THE DIRECTIONS OF THE TRIBUNAL AND PASS THE ORDER. IN OUR OPINION, THE LD.CIT-I, KOLHAPUR HAS RIGHTLY HELD THAT THE ORDERS PASSED BY THE 8 ASSESSING OFFICER WHEN THE ISSUE OF DEDUCTION U/S.8 0IB(10) WAS REMITTED TO HIS FILE ARE ERRONEOUS AND ALSO PREJUDI CIAL TO THE INTEREST OF THE REVENUE. IN THE PRESENT CASE, THE ASSESSING OFFICER FAILED TO COMPLY WITH THE DIRECTIONS OF THE TRIBUNAL HENCE HE FAILED IN HIS DUTY TO PASS THE ORDERS BY COMPLYING WITH THE DIRECTIONS OF THE TRIBUNAL AND HENCE THE ORDER PASSED BY THE ASSESSING OFFICER IN BOTH THE ASSESSMENT YEARS ARE ERRONEOUS. 8.2 SO FAR AS ANOTHER LIMB WHETHER THOSE ARE PREJUD ICIAL TO THE INTEREST OF THE REVENUE IS CONCERNED, IN OUR OPINIO N, THAT CAN ONLY BE DECIDED WHEN THE ASSESSING OFFICER PASSES THE ORDER IN COMPLIANCE WITH THE DIRECTIONS OF THE TRIBUNAL. WE, THEREFORE , DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDERS OF THE LD.CIT-I , KOLHAPUR. ACCORDINGLY, BOTH THE ORDERS ARE CONFIRMED. 9. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON 23-06-2014. SD/- SD/- (G.S. PANNU) (R.S. PAD VEKAR) ACCOUNTANT MEMBER JUDICIAL MEM BER PUNE DATED:23 RD JUNE 2014 SATISH COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. CIT(A), KOLHAPUR 4. CIT-I, KOLHAPUR 5. THE D.R, B PUNE BENCH 6. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY ITAT, PUNE BENCHES, PUNE