M/s. Kumar Housing Corporation Ltd, Pune V. Addl. CIT, Range-6, Pune

ITA 1290/PUN/2013

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9183 (ITAT-PUNE)
• Duration Of Justice: 4 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 27-06-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 12-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset; Depreciation; Opportunity of being heard; Revised return
• Section: 143(3); 139(5)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO. 1290 /P U N/201 3 / ASSESSMENT YEAR : 20 09 - 10 M/S. KUMAR URBAN DEVELOPMENT PVT. LTD., (INCORPOREITY KUMAR HOUSING CORPORATION PVT. LTD. WHICH MERGED INTO KUMAR URBAN DEVELOPMENT PVT. LTD.) 10 TH FLOOR, KUMAR BUSINESS CENTRE, OP P. PUNE CENTRAL, BUND GARDEN ROAD, PUNE 411001 . / APPELLANT PAN: AACCS9537K VS. THE ADDL. COMMISSIONER OF INCOME TAX, RANGE - 6, PUNE . / RESPONDENT . / ITA NO. 1291 /P U N/201 3 / ASSESSMENT Y EAR : 20 09 - 10 THE ASST. COMMISSIONER OF INCOME TAX, CIRCLE - 6, PUNE . / APPELLANT VS. M/S. KUMAR URBAN DEVELOPMENT PVT. LTD., (INCORPOREITY KUMAR HOUSING CORPORATION PVT. LTD. WHICH MERGED INTO KUMAR URBAN DEVELOPMENT PVT. LTD.) 10 TH FLOOR , KUMAR BUSINESS CENTRE, OPP. PUNE CENTRAL, BUND GARDEN ROAD, PUNE 411001 . / RESPONDENT PAN: AACCS9537K ASSESSEE BY : SHRI NIKHIL PATHAK REVENUE BY : SHRI SARDAR SINGH MEENA ITA NO. 1290 /P U N/20 1 3 ITA NO. 1291 /PUN/201 3 M/S. KUMAR URBAN DEVELOPMENT PVT. LTD. 2 / DATE OF HEARING : 06 .0 7 . 2017 / DATE OF PRONOUNCEMENT: 12 . 0 7 .201 7 / ORDER PER SUSHMA CHOWLA, J M : TH E CROSS APPEAL S FILED BY THE ASSESSEE AND THE REVENUE ARE AGAINST THE ORDER OF CIT (A) - II I, PUNE , DATED 28.03.2013 RELATING TO ASSESSMENT YEAR 20 09 - 10 AGAINST ORDER PASSED UNDER SECTION 143(3) OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . 2 . THE CROSS APPEALS FILED BY THE ASSESSEE AND THE REVENUE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 3. THE ASSESSE E IN ITA NO. 1290 /PUN/201 3 HAS RAISED THE FOLLOWING GROUND S OF APPEAL : - ON FACTS AND IN LAW, 1] THE LEARNED CIT (A) ERRED IN REJECTING THE REVISED RETURN FILED BY THE ASSESSEE COMPANY ON THE GROUND THAT THE ASSESSEE HAD SOUGHT TO POSTPONE ITS LIABILITY AN D THE FILING OF REVISED RETURN WAS NOT BONA FIDE WITHOUT APPRECIATING THAT THE REVISED RETURN FILED BY THE ASSESSEE WAS VALID AND THE SAME SHOULD HAVE BEEN CONSIDERED WHILE DETERMINING THE INCOME OF THE ASSESSEE. 2] THE LEARNED C I T(A) ERRED IN HOLDING THA T A . THAT BY FILING A REVISED RETURN, THE ASSESSEE WAS ADOPTING A COLOURABLE DEVISE TO POSTPONE ITS TAX LIABILITY. B . THE REVERSAL OF SALE CONSIDERATION AND THE WRITE OFF OF THE AMOUNT RECEIVABLE FROM MILESTONE DEVELOPERS WAS NOT A BONA FIDE TRANSACTION AND T HE SOLE INTENTION WAS TO POSTPONE THE TAX LIABILITY OF THE ASSESSEE. C . THERE WAS NO OMISSION OR WRONG STATEMENT IN THE ORIGINAL RETURN FILED BY THE ASSESSEE AND THEREFORE, THE REVISED RETURN FILED WAS INVALID IN LAW. ITA NO. 1290 /P U N/20 1 3 ITA NO. 1291 /PUN/201 3 M/S. KUMAR URBAN DEVELOPMENT PVT. LTD. 3 3] THE LEARNED C I T(A) ERRED IN NOT APPR ECIATING THAT THE ASSESSEE HAD FILED THE REVISED RETURN WITHIN THE TIME PRESCRIBED U/S 139(5) AND THEREFORE, THERE WAS NO REASON TO REJECT THE VALID REVISED RETURN FILED BY THE ASSESSEE. 4] THE LEARNED C I T(A) FAILED TO APPRECIATE THAT A . THE AGREEMENT FOR SALE OF OFFICE PREMISES TO CEREBRUM IT PARK LTD. HAD GOT CANCELLED AND HENCE, THE REVENUE FROM THE SAID AGREEMENT HAD NOT ACCRUED TO THE ASSESSEE AND ACCORDINGLY, THE ASSESSEE WAS JUSTIFIED IN REVISING ITS ACCOUNTS AND FILING REVISED RETURN DECLARING LESS ER INCOME AS COMPARED TO THE ORIGINAL RETURNED INCOME. B . THE ASSESSEE HAD NOT ADOPTED ANY COLOURABLE DEVICE TO REDUCE ITS INCOME AND THE REVISED RETURN FILED BY THE ASSESSEE WAS BONA FIDE AND AS PER LAW. C . SINCE THE REVENUE ACCOUNTED IN RESPECT OF THE TRANSA CTION WITH CEREBRUM IT PARK LTD. HAD NOT ACCRUED BECAUSE THE AGREEMENT FOR SALE HAD BEEN CANCELLED, NO INCOME HAD ACCRUED TO THE ASSESSEE IN THIS YEAR, AND HENCE, THE ASSESSEE WAS JUSTIFIED IN FILING THE REVISED RETURN. D . THE ASSESSEE WAS ENTITLED TO CLAIM DEDUCTION U/S 80IA(4) IN THIS YEAR AND THE REVISED RETURN WAS NOT FILED BECAUSE THE ASSESSEE WAS NOT ENTITLED TO CLAIM DEDUCTION U/S 80IA(4). E . THE CLAIM OF BAD DEBT MADE BY THE ASSESSEE WAS CORRECT AND JUSTIFIED IN LAW AND HENCE, THERE WAS NO REASON TO REJ ECT THE CLAIM MADE BY IT. F . THE ASSESSEE HAD COMPLIED WITH ALL THE CONDITIONS FOR FILING A VALID REVISED RETURN AND THEREFORE, THE SAME OUGHT TO HAVE BEEN CONSIDERED WHILE DETERMINING THE TAX LIABILITY. 5] THE LEARNED CIT(A) ERRED IN HOLDING THAT THE ASSES SEE WAS NOT ENTITLED TO CLAIM DEPRECIATION OF RS.20,80,650/ - (20.43.721+ 36,929) CLAIMED BY THE ASSESSEE IN RESPECT OF THE ASSETS LEASED TO KUMAR CITY CLUB PVT. LTD. 5.1] THE LEARNED C I T(A) ERRED IN HOLDING THAT THE ASSESSEE WAS NOT ELIGIBLE TO CLAIM DEP RECIATION IN RESPECT OF THE CAPITAL ASSETS IN THE FORM OF 'CLUB HOUSE INCLUDING SWIMMING POOL' AND GYMNASIUM LEASED OUT TO KUMAR CITY CLUB PVT. LTD. ON THE GROUND THAT THE ASSESSEE HAD NOT USED THE SAID ASSETS FOR THE PURPOSE OF ITS BUSINESS AND ACCORDINGL Y, THE DEPRECIATION WAS NOT ALLOWABLE. 5.2] THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE ASSESSEE HAD USED THE SAID ASSETS FOR THE PURPOSE OF ITS BUSINESS AND THEREFORE, THE DEPRECIATION WAS RIGHTLY CLAIMED BY THE ASSESSEE COMPANY. 6] THE LEARNED CI T(A) ERRED IN DISALLOWING THE INTEREST EXPENDITURE PERTAINING TO THE INTEREST FREE ADVANCES GIVEN TO VARIOUS PARTIES ON THE GROUND THAT THE ASSESSEE HAD DIVERTED BORROWED FUNDS FOR MAKING INTEREST FREE ADVANCES AND HENCE, THE INTEREST ATTRIBUTABLE TO SUCH ADVANCES WAS NOT ALLOWABLE AS A DEDUCTION U/S 36( 1 )(III) OF THE ACT. ITA NO. 1290 /P U N/20 1 3 ITA NO. 1291 /PUN/201 3 M/S. KUMAR URBAN DEVELOPMENT PVT. LTD. 4 6.1] THE LEARNED CIT(A) ERRED IN HOLDING THAT THE ASSESSEE HAD UTILIZED BORROWED FUNDS FOR THE PURPOSES OF MAKING INTEREST FREE ADVANCES TO VARIOUS PARTIES INCLUDING SISTER CONCERNS TOT ALING TO RS.164,94,97,755/ - AND HENCE, THE INTEREST ATTRIBUTABLE TO SUCH ADVANCES WAS NOT ALLOWABLE AS A BUSINESS DEDUCTION IN THIS YEAR. 6.2] THE LEARNED C I T(A) FAILED TO APPRECIATE THAT THE SAID INTEREST FREE AMOUNTS WERE ADVANCED BY THE ASSESSEE TO VA RIOUS PARTIES INCLUDING SISTER CONCERNS FOR THE PURPOSES OF BUSINESS AND HENCE, THE LEARNED CIT(A) WAS NOT JUSTIFIED IN DISALLOWING THE INTEREST. 6.3] THE LEARNED CIT(A) FURTHER ERRED IN NOT APPRECIATING THAT THE ASSESSEE HAD SUFFICIENT INTEREST FREE FUN DS AVAILABLE WITH IT WHICH WERE MORE THAN THE AMOUNT OF INTEREST FREE ADVANCES MADE BY THE ASSESSEE AND ACCORDINGLY, THERE WAS NO REASON TO MAKE ANY DISALLOWANCE OF INTEREST. 4. THE REVENUE IN ITA NO.1291/PUN/2013 HAS RAISED THE FOLLOWING GROUNDS OF APPEA L: - 1. THE ORDER OF THE COMMISSIONER OF INCOME - TAX(APPEALS) IS CONTRARY TO LAW AND TO THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE COMMISSIONER OF INCOME - TAX (APPEALS) ERRED IN ALLOWING THE CLAIM OF DEDUCTION U/S 80IA(4) AS THE CONDITIONS OF IPS - 2008 W ERE NOT FULFILLED BY THE ASSESSEE. THE ASSESSEE'S PROJECT WAS NOT NOTIFIED BY THE GOVT. FOR CLAIM OF DEDUCTION U/S 80IA(4) FOR THE A.Y. UNDER CONSIDERATION. 3. THE COMMISSIONER OF INCOME - TAX (APPEALS) IS NOT JUSTIFIED IN DIRECTING THE ASSESSING OFFICER T O GRANT DEDUCTION U/S 80 I B(10) ONLY PLACING RELIANCE ON THE HON'BLE ITAT, PUNE'S DECISION. 4. FOR THIS AND SUCH OTHER REASONS AS MAY BE URGED AT THE TIME OF THE HEARING, THE ORDER OF THE COMMISSIONER OF INCOME - TAX (APPEALS) MAY BE VACATED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 5. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE AT THE OUTSET NOT PRESSED THE GROUNDS OF APPEAL NO.1 TO 4 AND 5 TO 5.2. HE FURTHER POINTED OUT THAT THE ISSUE RAISED VIDE GROUNDS OF APPEAL NO.6 TO 6.3 IS AGAINST TH E DISALLOWANCE OF INTEREST UNDER SECTION 36(1)(III) OF THE ACT, WHICH IS SQUARELY COVERED BY THE ORDER OF TRIBUNAL IN ASSESSEES OWN CASE IN EARLIER YEARS, WHEREIN FOR VERIFICATION, THE MATTER HAS BEEN SENT BACK TO THE FILE OF ASSESSING OFFICER. HE ALSO P OINTED OUT THAT BOTH THE ISSUES RAISED BY THE REVENUE IN ITS APPEAL ARE ALSO COVERED BY THE ORDER OF TRIBUNAL IN ASSESSEES OWN CASE. ITA NO. 1290 /P U N/20 1 3 ITA NO. 1291 /PUN/201 3 M/S. KUMAR URBAN DEVELOPMENT PVT. LTD. 5 6. BRIEFLY, IN THE FACTS OF THE CASE, THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION HAD CLAIMED THE DEDUCTION UNDER SECTIO N 80IB(10) OF THE ACT IN RESPECT OF ONE PROJECT AT KUMAR PURAM . THE ASSESSEE HAD ALSO CLAIMED DEDUCTION UNDER SECTION 80IA(4)(III) OF THE ACT. THE ASSESSING OFFICER DENIED THE DEDUCTION UNDER SECTION 80IA(4) OF THE ACT BECAUSE OF VIOLATION OF CONDITIONS UNDER THE SAID SECTION. SINCE THE SIMILAR DISALLOWANCE MADE IN EARLIER YEARS AND THE ASSESSEE HAD NOT FULFILLED THE CONDITIONS OF SAID SECTION, THE DISALLOWANCE WAS MADE AT RS.29,91,51,391/ - . CERTAIN OTHER DISALLOWANCES WERE MADE, AGAINST WHICH, THE ASSE SSEE IS NOT IN APPEAL. FURTHER, THE ASSESSEE HAD CLAIMED THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IN RESPECT OF KUMAR PURAM PROJECT AT RS.35,01,100/ - . THE ASSESSING OFFICER NOTED THAT THE SAID PROJECT WAS AN ONGOING PROJECT AND THE ASSESSEES CLAI M FOR DEDUCTION UNDER SECTION 80IB(10) OF THE ACT OF THIS PROJECT WAS REJECTED IN ASSESSMENT YEAR 2003 - 04. HE FURTHER NOTED THAT FACTUAL AND LEGAL MATRIX WAS THE SAME AS IN THE SAID YEAR AND FOLLOWING THE SAME, THE ASSESSEES CLAIM FOR DEDUCTION UNDER SEC TION 80IB(10) OF THE ACT WAS REJECTED. THE LAST ADDITION MADE IN THE HANDS OF ASSESSEE WAS ON ACCOUNT OF DIVERSION OF INTEREST BEARING FUNDS TO THE SISTER CONCERN. THE ASSESSING OFFICER NOTED THAT TOTAL SECURED FUNDS AS ON THE YEAR ENDING WERE AT RS. 256. 83 CRORES AND THE TOTAL INTEREST OUTGO OF THE ASSESSEE AT RS.36.22 CRORES. THE ADVANCES MADE TO THE GROUP CONCERN AMOUNTED TO RS.11,89,32,883/ - FURTHER, AMOUNT WAS ADVANCED TO KUMAR URBAN DEVELOPMENT LIMITED AT RS. 77,87,13,339/ - AND SHARE APPLICATION PEND ING ALLOTMENT IN TWO COMPANIES I.E. PUNE MUMBAI REALITY PVT. LTD. AND RIVER VIEW PROPERTIES LIMITED AMOUNTED TO RS.86,86,50,600/ - . THE ASSESSING OFFICER WAS OF THE VIEW THAT INTEREST EXPENDITURE CLAIMED WAS NOT ALLOWABLE EXPENDITURE UNDER SECTION 36(1)(II I) OF THE ACT AS THE INTEREST BEARING FUNDS HAD ITA NO. 1290 /P U N/20 1 3 ITA NO. 1291 /PUN/201 3 M/S. KUMAR URBAN DEVELOPMENT PVT. LTD. 6 NOT BEEN EXPENDED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS. THE ASSESSEE HAD CLAIMED THE INTEREST EXPENDITURE AT RS.36.22 CRORES AND THE AVERAGE RATE OF INTEREST EXPENDITURE WAS 10.16%. ACCORDINGL Y, SUM OF RS.18,63,36,188/ - WAS DISALLOWED UNDER SECTION 36(1)(III) OF THE ACT. 7. THE CIT(A) ALLOWED THE CLAIM OF ASSESSEE UNDER SECTION 80IA(4)(III) OF THE ACT AND ALSO UNDER SECTION 80IB(10) OF THE ACT IN RESPECT OF KUMAR PURAM PROJECT. HOWEVER, THE C IT(A) UPHELD THE DISALLOWANCE MADE UNDER SECTION 36(1)(III) OF THE ACT. 8. THE ASSESSEE IS IN APPEAL AGAINST THE SAID DISALLOWANCE MADE UNDER SECTION 36(1)(III) OF THE ACT AND THE REVENUE IS IN APPEAL AGAINST THE ORDER OF CIT(A) IN ALLOWING THE CLAIM OF DEDUCTION UNDER SECTION 80IA(4) AND IN RESPECT OF KUMAR PURAM PROJECT UNDER SECTION 80IB(10) OF THE ACT. 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE GROUNDS OF APPEAL NO.1 TO 4 AND 5 TO 5.2 RAISED BY THE ASSESSEE ARE NOT PRESSED. HENCE, THE SAME ARE DISMISSED AS NOT PRESSED. THE REMAINING ISSUE S ARISING IN THE CROSS APPEALS BEFORE US ARE SQUARELY COVERED BY THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE IN ASSESSMENT YEARS 2007 - 08 AND 2008 - 09. THE TRIBUNAL IN ITA NOS.1190 & 11 91/PN/2013 AND 1271 & 1272/PN/2013 VIDE ORDER DATED 12.08.2016 HAD DECIDED THE ISSUE OF DISALLOWANCE OF INTEREST EXPENDITURE UNDER SECTION 36(1)(III) OF THE ACT VIDE PARA 9.2, WHEREIN THE MATTER WAS SET - ASIDE TO THE FILE OF ASSESSING OFFICER TO ASCERTAIN T HE FINANCIAL POSITION OF ASSESSEE AT THE TIME OF GIVING ADVANCES , THAT , ITA NO. 1290 /P U N/20 1 3 ITA NO. 1291 /PUN/201 3 M/S. KUMAR URBAN DEVELOPMENT PVT. LTD. 7 WHETHER IT HAD INTEREST FREE FUNDS AVAILABLE AT THE RELEVANT TIME. THE RELEVANT FINDINGS OF THE TRIBUNAL I.E. VIDE PARA 9.2, READ AS UNDER : - 9.2 W E HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESENTATIVES OF RIVAL SIDES. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS UPHELD THE FINDINGS OF ASSESSING OFFICER IN DISALLOWING THE INTEREST U/S. 36(1)(III) OF THE ACT ON THE AMOUNTS ADVANCES TO VARIOUS PARTIES. THE ASSESSING OFFICER HAS OBSERV ED THAT THE AMOUNTS WERE ADVANCED TO THE SISTER CONCERNS FOR NON - BUSINESS PURPOSE AND THERE IS NO BENEFIT TO THE ASSESSEE FROM SUCH ADVANCES EITHER DIRECTLY OR INDIRECTLY. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS DISTINGUISHED THE DECISION OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. RELIANCE POWER UTILITY LTD. (SUPRA), ON FACTS. FROM THE PERUSAL OF IMPUGNED ORDER WE OBSERVE THAT THE ASSESSEE HAS ADVANCED MONEY TOWARDS SHARE APPLICATION MONEY TO PUNE MUMBAI REALTY PVT. LT D. AND RIVER VIEW PROPERTIES PVT. LTD. LONG TIME BACK. ALTHOUGH, THE ASSESSEE HAS ASSERTED THAT FUNDS HAVE BEEN ADVANCED TO THE SISTER CONCERN FOR HOLDING THE STAKE BUT FOR QUITE LONG PERIOD THE AMOUNT IS SHOWN AS SHARE APPLICATION MONEY PENDING ALLOTMEN T. THUS, THE CONTENTION OF THE ASSESSEE THAT THE FUNDS HAVE BEEN ADVANCED FOR THE PURPOSE OF STRATEGIC INVESTMENT SEEMS TO BE FARCE. IN SO FAR AS ADVANCES TO MR. RAJESH TIWARI IS CONCERNED NO EXPLANATIONS WHATSOEVER HAS BEEN FURNISHED BY THE ASSESSEE AN D NO BUSINESS EXPEDIENCY HAS BEEN SHOWN. THE LD. AR OF THE ASSESSEE HAS CONTENDED THAT THE ASSESSEE IS HAVING OWN INTEREST FREE FUNDS SUFFICIENT TO COVER THE INVESTMENTS AS PER THE BALANCE SHEET AS ON 31 - 03 - 2008. HOWEVER, IT IS NOT EVIDENT FROM THE RECOR DS AS TO WHETHER THE ASSESSEE WAS HAVING SUFFICIENT OWN INTEREST FREE FUNDS FOR MAKING INVESTMENT AT THE TIME OF GIVING ADVANCES. THE AUTHORITIES BELOW HAVE NOT VERIFIED THIS FACT WHICH IS MATERIAL FOR ADJUDICATING THE ISSUE. THUS, IN VIEW OF THE ABSENCE OF VITAL INFORMATION, WE ARE OF THE CONSIDERED VIEW THAT THIS ISSUE NEEDS A REVISIT TO THE FILE OF ASSESSING OFFICER TO ASCERTAIN THE FINANCIAL POSITION OF THE ASSESSEE AT THE TIME OF GIVING ADVANCES. IN CASE OWN INTEREST FREE FUNDS OF THE ASSESSEE ARE S UFFICIENT TO COVER THE ADVANCES AT THE TIME OF MAKING SUCH ADVANCES, NO DISALLOWANCE SHOULD BE MADE IN VIEW OF THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. RELIANCE POWER UTILITY LTD. (SUPRA). ACCORDINGLY , GROUND NO. 3 RAISED IN THE APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2007 - 08 IS ALLOWED FOR STATISTICAL PURPOSE. 10. THE ISSUE ARISING IN THE PRESENT APPEAL IS IDENTICAL TO THE ISSUE BEFORE THE TRIBUNAL IN EARLIER YEARS AND EVEN THE ADVANCES WERE MADE IN EARLIER YEARS AND FOLLOWING THE SAME PARITY OF REASONING, WE REMIT THIS ISSUE ALSO BACK TO THE FILE OF ASSESSING OFFICER TO DETERMINE THE AVAILABILITY OF INTEREST FREE FUNDS AND ALSO TO WORK OUT THE DISALLOWANCE OF INTEREST UNDER SECTION 36(1)(III) OF THE ACT, IF ANY , IN LINE WITH DIRECTIONS OF TRIBUNAL IN EARLIER YEAR . THE ASSESSING OFFICER SHALL AFFORD REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, GROUNDS OF APPEAL NO.6 TO 6.3 RAISED BY THE ASSESSEE ARE ALLOWED ITA NO. 1290 /P U N/20 1 3 ITA NO. 1291 /PUN/201 3 M/S. KUMAR URBAN DEVELOPMENT PVT. LTD. 8 FOR STATISTICAL PURPOSE. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE THUS, PARTLY ALLOWED AS INDICATED ABOVE. 11. NOW, COMING TO THE GROUNDS OF APPEAL RAISED BY THE REVENUE, WHEREIN THE REVENUE IS FIRST AGGRIEVED BY THE ORDER OF CIT(A) IN ALLOWING THE DEDUCTION UND ER SECTION 80IA(4)(III) OF THE ACT. THE TRIBUNAL HAD CONSIDERED VARIOUS ASPECTS OF THE CLAIM OF ASSESSEE AND HAD NOTED THE FACTUAL ASPECTS AND HAD RELIED ON EARLIER DECISION OF THE PUNE BENCH OF TRIBUNAL IN M/S. KOLTE PATIL DEVELOPERS LTD. VS. DCIT IN ITA NOS.1411 TO 1415/PN/2013, RELATING TO ASSESSMENT YEARS 2003 - 04, 2005 - 06 & 2007 - 08 TO 2009 - 10 AND IN ITA NOS.1478 TO 1483/PN/2013, RELATING TO ASSESSMENT YEARS 2004 - 05 TO 2009 - 10, ORDER DATED 20.02.2015. THE TRIBUNAL IN M/S. KOLTE PATIL DEVELOPERS LTD. VS . DCIT (SUPRA) NOTED THAT THE DISALLOWANCE WAS MADE IN ASSESSMENT YEAR 2007 - 08 AS INDUSTRIAL PARK WAS NOT COMPLETE AS ON 31.03.2007 AS THE COMPLETION CERTIFICATE WAS OBTAINED BY THE ASSESSEE FROM LOCAL AUTHORITY ON 09.05.2007 AND ALSO THE INDUSTRIAL PARK D ID NOT FULFILL THE CRITERIA OF LOCATING MINIMUM NUMBER OF 30 INDUSTRIAL UNITS. THE TRIBUNAL WHILE DECIDING THE APPEAL OF ASSESSEE VIDE PARA 6.6 AT PAGE 18 OF THE ORDER NOTED THE FINDINGS OF THE TRIBUNAL IN M/S. KOLTE PATIL DEVELOPERS LTD. VS. DCIT (SUPRA) AND REPRODUCED THE SAME AT PAGES 19 TO 21 OF THE ORDER AND OBSERVED AS UNDER: - . IN THE PRESENT CASE THE PROJECT OF THE ASSESSEE WAS INITIALLY APPROVED UNDER IPS 2002 ON 15 - 02 - 2005. THE ASSESSEE HAD CLAIMED DEDUCTION U/S. 80IA(4)(III) IN ASSESSMENT YEA R 2006 - 07 WHICH WAS ALLOWED TO THE ASSESSEE. THE ASSESSEE COULD NOT COMPLETE THE PROJECT WITHIN THE TIME FRAME SPECIFIED IN IPS 2002 I.E. 31 - 03 - 2006. THE ASSESSEE APPLIED FOR NOTIFICATION OF THE PROJECT UNDER IPS 2008. THE PROJECT WAS NOTIFIED BY CBDT O N 09 - 07 - 2010. AFTER NOTIFICATION OF THE PROJECT UNDER IPS 2008, THE ELIGIBILITY OF DEDUCTION HAS TO BE SEEN WITH RESPECT TO THE NEW SCHEME. THUS, IN VIEW OF THE FACTS OF THE CASE AND THE OBSERVATIONS OF THE CO - ORDINATE BENCH OF THE TRIBUNAL WE FIND NO MERIT IN THE CONTENTIONS OF THE LD. DR THAT THE ASSESSEE IS NOT ELIGIBLE TO CLAIM DEDUCTION U/S. 80IA(4)(III) IN ASSESSMENT YEARS UNDER APPEAL. ITA NO. 1290 /P U N/20 1 3 ITA NO. 1291 /PUN/201 3 M/S. KUMAR URBAN DEVELOPMENT PVT. LTD. 9 12. FURTHER, SECOND OBJECTION OF THE REVENUE OF NOT ESTABLISHING 30 UNITS WAS ALSO CONSIDERED BY THE TRIBUNAL I N ASSESSEES OWN CASE AND FOLLOWING THE RATIO LAID DOWN BY THE TRIBUNAL IN M/S. KOLTE PATIL DEVELOPERS LTD. VS. DCIT (SUPRA) VIDE PARA 6.7 REFERENCE WAS MADE TO THE SAID DECISION AT PAGES 22 TO 25 OF THE ORDER AND HELD AS UNDER: - THE ORDER OF THE TRIBU NAL IN THE CASE OF M/S. KOLTE PATIL DEVELOPERS LTD. VS. DY. COMMISSIONER OF INCOME TAX (SUPRA) FURTHER STRENGTHENS THE CASE OF ASSESSEE IN ALLOWING THE DEDUCTION U/S. 80IA(4)(III) OF THE ACT. ACCORDINGLY, THE GROUND OF APPEAL RAISED BY DEPARTMENT AGAINST ALLOWING DEDUCTION U/S. 80IA(4)(III) TO THE ASSESSEE IS DISMISSED. 13. WE ARE MAKING RELIANCE ON THE SAID DECISION OF TRIBUNAL IN ASSESSEES OWN CASE BUT FOR THE SAKE OF BREVITY, ONLY RELEVANT PARAS ARE BEING REPRODUCED AS AGAINST COMPLETE FACTUAL AND LE GAL ASPECTS NOTED BY THE TRIBUNAL AND REFERRED TO IN THE SAID ORDER. FOLLOWING THE SAME PARITY OF REASONING, WE UPHOLD THE ORDER OF CIT(A) IN ALLOWING THE CLAIM OF DEDUCTION UNDER SECTION 80IA(4)(III) OF THE ACT. 14. NOW, COMING TO THE GROUND OF APPEAL N O.2 RAISED BY THE REVENUE AGAINST THE ALLOWANCE OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IN RESPECT OF KUMAR PURAM PROJECT. THE TRIBUNAL HAD NOTED THE SAID ISSUE VIDE PARA 3 AT PAGE 2 OF THE ORDER AND NOTED THAT THE TRIBUNAL HAD ALREADY DECIDED THE ISSUE IN ASSESSMENT YEAR 2001 - 02 AND RELYING ON THE SAME VIDE PARA 3 ONWARDS AT PAGES 2 TO 7 OF THE ORDER HELD THE ISSUE TO BE IDENTICAL AND ALLOWED THE CLAIM OF ASSESSEE. THE ASSESSING OFFICE R IN THE PRESENT CASE HAS ALSO DISALLOWED THE CLAIM OF ASSESSEE UNDER SECTION 80IB(10) OF THE ACT IN RESPECT OF KUMAR PURAM PROJECT, IN TURN, RELYING ON THE ASSESSMENT ORDERS IN EARLIER YEARS. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE HAS FA ILED TO POINT OUT ANY DIFFERENCE IN THE FACTUAL ASPECTS AND CONSEQUENTLY, WE FIND NO MERIT IN THE ITA NO. 1290 /P U N/20 1 3 ITA NO. 1291 /PUN/201 3 M/S. KUMAR URBAN DEVELOPMENT PVT. LTD. 10 GROUND OF APPEAL NO.2 RAISED BY THE REVENUE AND THE SAME IS REJECTED. THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE THUS, DISMISSED. 1 5 . IN THE RESULT, AP PEAL OF ASSESSEE IS PARTLY ALLOWED AS INDICATED ABOVE AND THE APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED ON THIS 12 TH DAY OF JU LY , 201 7 . SD/ - SD/ - (ANIL CHATURVEDI ) (SUSHMA C HOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 12 TH JU LY , 201 7 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPEL LANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A) - II I, PUNE ; 4. / THE CIT - III , PUNE ; 5. , , / DR B , ITAT, PUNE; 6. / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE