Deputy Commissioner of Income tax, Pune V. Arun Pitamber Seth, Pune

ITA 1159/PUN/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 5017 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-11-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 09-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S B PRASAD
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE . , , BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NOS.929 & 1159/PUN/2017 / ASSESSMENT YEARS : 2010-11 & 2011-12 DCIT, CIRCLE-5, PUNE. ....... / APPELLANT / V/S. ARUN PITAMBER SETH, 150-A, MUKUND NAGAR, SUNITA BUNGLOW, DAULATRAM MANDIR PATH, PUNE-411037. PAN : ACGPS6044Q / RESPONDENT REVENUE BY : SHRI S. B. PRASAD ASSESSEE BY : SHRI M. K. KULKARNI / DATE OF HEARING : 20.11.2019 / DATE OF PRONOUNCEMENT : 21.11.2019 / ORDER PER D. KARUNAKARA RAO, AM: THERE ARE TWO APPEALS UNDER CONSIDERATION. BOTH THE APPEALS FILED BY THE REVENUE ARE AGAINST THE SEPARATE ORDER OF CIT(A)-4/5, PUNE DATED 21.11.2016 AND 29.12.2016 FOR THE ASSESSMENT YEARS 2010-11 TO 2011-12 RESPECTIVELY. 2. SINCE THE ISSUES AND FACTS ARE COMMON IN BOTH THE APPEALS, THEREFORE, BOTH THE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMPOSITE ORDER. 3. THE SOLITARY ISSUE RAISED BY THE REVENUE IN BOTH THE APPEALS RELATES TO THE DISALLOWANCE OF CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT. 2 ITA NOS.929 & 1159/PUN/2017 4. BRIEFLY STATED THE RELEVANT FACTS INCLUDE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF DEVELOPERS AND BUILDING CONTRACTORS. THE ASSESSEE FILED THE RETURN OF INCOME DECLARING TOTAL INCOME OF RS.39,42,490/- FOR THE ASSESSMENT YEAR 2010-11 AND RS.1,09,53,012/- FOR THE ASSESSMENT YEAR 2011-12. THE ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT AND THE ASSESSING OFFICER DISALLOWED THE CLAIM OF DEDUCTION U/S 80IB(10) AMOUNTING TO RS.15,32,76,240/- AND RS.12,34,35,113/- FOR THE ASSESSMENT YEARS 2010-11 AND 2011-12 RESPECTIVELY. THE OPERATIONAL PARA 4.5 OF THE ASSESSMENT ORDER FOR A.Y. 2010-11 IS RELEVANT IN THIS REGARD. FOR THE SAKE OF COMPLETENESS, THE SAID PARA 4.5 OF THE ASSESSMENT ORDER FOR A.Y. 2010-11 IS EXTRACTED HEREUNDER :- 4.5 THE PROJECT PLAN AS REVISED ON 28/3/2007 SHOWS 6 BUILDINGS VIZ. A,B,C,D,E AND G. THE COMPLETION CERTIFICATES FOR THE BUILDINGS A,B AND C WERE OBTAINED AS LATE AS 31/3/2011. NOT EVEN OCCUPATION CERTIFICATES ARE PRODUCED BY THE ASSESSEE FOR THESE BUILDINGS WHICH FORM PART OF THE SAID PROJECT AND SHOULD HAVE BEEN COMPLETED BY 31/3/2009. IT IS TO BE NOTED HERE THAT THE PLAN AS REVISED ON 28/3/2007 SHOWS 6 BUILDINGS VIZ. A,B,C,D,E AND G IS AMENDMENT OF THE ORIGINAL PLAN ITSELF DT. 24/4/2004. SO THE PROJECT IS OF AT LEAST 6 BUILDINGS (EVENT IF BUILDING F IS LEFT OUT) AND NOT 3 AND ALL SHOULD HAVE BEEN COMPLETED BY 31/3/2009. 5. BEFORE THE CIT(A), THE ASSESSEE REITERATED THE SUBMISSIONS AS MADE BEFORE THE ASSESSING OFFICER. THE CIT(A), AS PER DISCUSSION GIVEN IN PARA 5.5.5 OF HIS ORDER FOR THE ASSESSMENT YEAR 2010-11, THE CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT IS ALLOWED IN FAVOUR OF THE ASSESSEE. SIMILAR VIEW TAKEN BY THE CIT(A) IN THE ASSESSMENT YEAR 2011-12. FOR THE SAKE OF COMPLETENESS, THE RELEVANT PARA 5.5.5 OF THE ORDER OF THE CIT(A) FOR THE ASSESSMENT YEAR 2010-11 IS EXTRACTED HEREUNDER :- 5.5.5 IT IS THUS SEEN THAT, FROM THE FACTS OF THE APPELLANT'S CASE, THE LAYOUT PLAN THOUGH COMMENCED ON 21.04.2004 AND WHICH SHOWED THE CONSTRUCTION PLAN OF BUILDING 'D', 'E' AND 'G', THE COMMENCEMENT CERTIFICATE 3 ITA NOS.929 & 1159/PUN/2017 FOR BUILDINGS 'A, 'B' AND 'C' WAS GRANTED ON 28.03.2007. IN BETWEEN BOTH THESE SANCTIONS, THE APPELLANT PURCHASED THE LANDS MENTIONED ABOVE AND AS SEEN FROM THE AMALGAMATION PLAN THE BUILDINGS 'A', 'B' AND 'C' WERE SANCTIONED ON THE LANDS PURCHASED AFTER THE LAYOUT PLAN WAS APPROVED. IN VIEW OF THIS AND FOLLOWING JUDICIAL DISCIPLINE, THE DATE OF COMMENCEMENT FOR BUILDINGS UNDER CONSIDERATION I.E. 'A', 'B AND 'C' WOULD BE THE DATE OF THE COMMENCEMENT OF THE BUILDING PLAN ON 28.03.2007. AS THE AO HAS DENIED THE DEDUCTION ONLY ON THE GROUND OF NON-COMPLETION OF THE BUILDINGS DURING THE STIPULATED TIME FRAME BY HOLDING THE DATE OF COMMENCEMENT TO BE THAT 0F THE COMMENCEMENT CERTIFICATE OF THE LAYOUT ON 21.04.2004 AND NOT THAT OF THE BUILDING PLAN FOR BUILDINGS 'A', 'B' AND 'C', IN VIEW OF THE DISCUSSIONS IN THE PRECEDING PARAGRAPHS, THE AO, IS DIRECTED TO TAKE THE DATE OF COMMENCEMENT TO BE 28.03.2007 FOR THE BUILDINGS 'A', 'B AND 'C' AND ALLOW DEDUCTION CLAIMED U/S 80IB(10) FOR THESE BUILDINGS FOR THE YEAR UNDER CONSIDERATION. THE APPELLANT SUCCEEDS IN GROUND NO. 1 AND 3 WHICH ARE ACCORDINGLY, ALLOWED. 6. AGGRIEVED WITH THE SAID DECISION OF THE CIT(A), THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 7. BEFORE US, AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS MADE BEFORE THE ASSESSING OFFICER AND THE CIT(A). THE LD. COUNSEL SUBMITTED THAT THE CIT(A) RIGHTLY DELETED THE DISALLOWANCE AS MADE BY THE ASSESSING OFFICER AND PRAYED FOR UPHOLDING THE ORDER OF THE CIT(A). 8. ON THE OTHER HAND, LD. DR FOR THE REVENUE RELIED ON THE ORDER OF THE ASSESSING OFFICER AND SUBMITTED THAT THE ORDER OF THE CIT(A) IS NOT A SPEAKING ORDER AND IT SHOULD BE REVERSED. 9. AFTER HEARING BOTH THE SIDES AND PERUSING THE ORDERS OF THE REVENUE AUTHORITIES, WE FIND THE ASSESSING OFFICER MADE THE DISALLOWANCE U/S 80IB(10) OF THE ACT ON THE GROUND THAT NON-COMPLETION OF THE BUILDINGS DURING THE STIPULATED TIME FRAME BY HOLDING THE DATE OF COMMENCEMENT TO BE THAT OF THE COMMENCEMENT CERTIFICATE OF THE LAYOUT ON 21.04.2004 AND NOT THAT OF THE BUILDING PLANT FOR BUILDINGS A, B AND C. THE CIT(A), AFTER FOLLOWING THE VARIOUS JUDICIAL DISCIPLINE, DELETED THE DISALLOWANCE OF 4 ITA NOS.929 & 1159/PUN/2017 DEDUCTION CLAIMED BY THE ASSESSEE U/S 80IB(10) OF THE ACT ON THE GROUND THAT THE DATE OF COMMENCEMENT FOR BUILDINGS UNDER CONSIDERATION I.E. A, B AND C WOULD BE THE DATE OF COMMENCEMENT OF THE BUILDING PLANT ON 28.03.2007. 10. CONSIDERING THE ABOVE, WE ARE OF THE OPINION THAT THE FINDING OF THE CIT(A) ON THIS ISSUE IS REASONED ONE AND THE SAME DOES NOT GO BEYOND THE LAW. THEREFORE, WE ARE OF THE CONSIDERED VIEW, THE ORDER OF THE CIT(A) IS FAIR AND REASONABLE AND IT DOES NOT CALL FOR ANY INTERFERENCE. WE UPHOLD THE SAME. THUS, THE RELEVANT GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 11. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED ON 21 ST DAY OF NOVEMBER, 2019. SD/- SD/- ( /VIKAS AWASTHY) ( . /D. KARUNAKARA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 21 ST NOVEMBER, 2019. SUJEET / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A)-5, PUNE. 4. THE PR.CIT-4, PUNE. 5. , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE.