Assistant Commissioner of Income-tax, V. M/s. Shroff Developers, Pune

ITA 1147/PUN/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9115 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 11 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 11-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: V L JAIN
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURV EDI, AM . / ITA NO.1147/PUN/2015 / ASSESSMENT YEAR : 2011-12 THE ASST. COMMISSIONER OF INCOME TAX, CIRCLE-2,IST FLOOR, B-WING, PMT BUILDING, SHANKARSHETH ROAD, PUNE - 37 . / APPELLANT VS. M/S. SHROFF DEVELOPERS, SHROFF HOUSE NO.74/75/2/1, P.K. SHROFF MARG, BANER, PUNE 411 045 PAN : AAXFS6555R . RESPONDENT / APPELLANT BY : SHRI ACHAL SHARMA, ADDL.CIT / RESPONDENT BY : SHRI V.L. JAIN DATE OF HEARING : 31.07.2017 / DATE OF PRONOUNCEMENT: 31.07.2017 / ORDER PER SUSHMA CHOWLA, JM: THIS APPEAL FILED BY THE REVENUE IS AGAINST THE ORD ER OF CIT(A)-3, PUNE, DATED 22.04.2015 RELATING TO ASSESSMENT YEAR 2011-1 2 AGAINST ORDER PASSED UNDER SECTION 143(3) OF THE INCOME-TAX ACT, 1961 (I N SHORT THE ACT). 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD.CIT(A) ERRED IN ALLOWING DEDUCTION U/S.80IB(10) OF THE ACT TO TH E HOUSING PROJECT WHEN THE BUILT-UP AREA OF COMMERCIAL UNITS EXCEEDED THE PRESCRIBED LIMIT OF 5% OF THE TOTAL PROJECT AREA SUBJECT TO MA XIMUM OF 2000 SQ.FT. THEREBY VIOLATING THE PROVISIONS OF SECTION 80IB(10 ) OF THE ACT. ITA NO.1147/PUN/2015 M/S. SHROFF DEVELOPERS 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD.CIT(A) ERRED IN NOT APPRECIATING THE FACT THAT THE SANCTION DATE D 07-06-2008 WAS THE REVISED SANCTION ISSUED BY THE COLLECTOR, PUNE WHIC H REFERRED TO EARLIER SANCTIONS DATED 27-04-2006 AND 05-08-2006 AND THUS THE COMMERCIAL ARE WHICH HAD COME UP ON THE AMENITY SPACE WAS ESSE NTIALLY A PART OF THE HOUSING PROJECT. 3. THE LD. AUTHORISED REPRESENTATIVE FOR THE ASSESS EE AT THE OUTSET POINTED OUT THAT THE ISSUE RAISED IN THE PRESENT AP PEAL IS SQUARELY COVERED BY THE ORDERS OF THE TRIBUNAL AGAINST THE CLAIM OF DED UCTION UNDER SECTION 80IB(10) OF THE ACT. HE FURTHER REFERRED TO THE ORDERS OF T HE AO AND THE CIT(A) AND POINTED OUT THAT THE AUTHORITIES BELOW HAD DENIED T HE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT RELYING ON THE ORDER RE LATING TO ASSESSMENT YEAR 2007-08. 4. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND PLACED RELIANCE ON THE ORDER OF THE ASSESSING OFFICER. 5. BRIEFLY, IN THE FACTS OF THE CASE, THE ASSESSEE WAS A REAL ESTATE DEVELOPER ENGAGED IN THE EXECUTION OF THE HOUSING P ROJECT NAMED AS SHROFF HOUSE. THE ASSESSEE HAD CLAIMED THE DEDUCTION UND ER SECTION 80IB(10) OF THE ACT. THE PROJECT CONSISTED OF 42 RESIDENTIAL U NITS BEING 18 ROW HOUSES AND 24 FLATS. THE CLAIM OF DEDUCTION UNDER SECTION 80I B(10) WAS DENIED BY THE ASSESSING OFFICER IN ASSESSMENT YEAR 2007-08 ON ACC OUNT OF AMENITY SPACE CONSTRUCTED BY THE ASSESSEE HOLDING IT TO BE COMMER CIAL AREA AND SINCE IT EXCEEDED 2000 SQ.FT., THE ASSESSEE WAS DENIED THE C LAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. SIMILAR CLAIM IN THE SUBSEQUENT YEARS WAS ALSO DENIED TO THE ASSESSEE. THE ASSESSING OFFICER NOTE D THAT THE PUNE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE RELATING TO ASS ESSMENT YEAR 2007-08 HAD ALLOWED THE CLAIM OF DEDUCTION UNDER SECTION 80IB(1 0) OF THE ACT BUT SINCE THE COPY OF THE ORDER WAS NOT OFFICIALLY RECEIVED FROM THE PUNE BENCH OF THE TRIBUNAL, HENCE, THE DEDUCTION CLAIMED UNDER SECTIO N 80IB(10) OF THE ACT WAS ITA NO.1147/PUN/2015 M/S. SHROFF DEVELOPERS 3 DENIED TO THE ASSESSEE AT RS.59,94,390/-. THE CIT( A) RELYING ON THE ORDER OF THE TRIBUNAL IN ITA NO.754/PN/2010 RELATING TO ASSE SSMENT YEAR 2007-08 ORDER DATED 16-12-2013 ALLOWED THE CLAIM OF THE ASSESSEE UNDER SECTION 80IB(10) OF THE ACT. RELEVANT FINDINGS OF THE TRIBUNAL ARE REP RODUCED BY THE CIT(A) UNDER PARA 3.2 AT PAGES 3 TO 6 OF THE APPELLATE ORDER. 6. THE REVENUE IS IN APPEAL AGAINST THE SAID FINDIN GS OF THE CIT(A). 7. WE HAVE HEARD THE RIVAL CONTENTION AND PERUSED T HE RECORD. WE FIND THAT THE ISSUE RAISED IN THE PRESENT APPEAL IN RELA TION TO THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT EMANATES FROM ASS ESSMENT YEAR 2007-08, WHICH WAS THE FIRST YEAR OF CLAIM OF DEDUCTION UNDE R SECTION 80IB(10) OF THE ACT. THE CLAIM OF THE ASSESSEE WAS DENIED BY THE ASSESSI NG OFFICER IN THE FIRST YEAR, I.E. 2007-08. HOWEVER, THE TRIBUNAL IN ASSESSEES OWN CASE RELATING TO ASSESSMENT YEAR 2007-08 HAD ALLOWED THE CLAIM OF TH E ASSESSEE. RELEVANT FINDINGS OF THE TRIBUNAL ARE REPRODUCED AT PAGES 3 TO 6 OF THE APPELLATE ORDER AND THE SAME ARE BEING REFERRED BUT NOT BEING REPRO DUCED, FOR THE SAKE OF BREVITY. THE TRIBUNAL IN THE LATER YEARS, I.E. ASS ESSMENT YEARS 2008-09 TO 2010-11 HAS CONSISTENTLY ALLOWED THE CLAIM OF THE A SSESSEE VIDE DIFFERENT ORDERS. FOLLOWING THE SAME PARITY OF REASONING, WE UPHOLD THE ORDER OF CIT(A) IN ALLOWING THE CLAIM OF DEDUCTION UNDER SECTION 80 IB(10) OF THE ACT. THUS, GROUNDS OF APPEAL RAISED BY THE REVENUE ARE DISMISS ED. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 31 ST DAY OF JULY, 2017. SD/- SD/- (ANIL CHATURVEDI) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; DATED : 31 ST JULY, 2017. SATISH ITA NO.1147/PUN/2015 M/S. SHROFF DEVELOPERS 4 / COPY OF THE ORDER IS FORWARDED TO : THE APPELLANT; THE RESPONDENT; ( ) THE CIT(A)-3, PUNE / THE CIT - 3, PUN E , , / DR A, ITAT, PUNE; / GUARD FILE. / BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY, ITAT, PUNE BENCHES, PUNE