Modi Shelters Pvt Limited, Secunderabad, Hyderabad V. DCIT, Circle-16(1), Hyd, Hyderabad

ITA 1292/HYD/2016

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 5768 (ITAT-HYDERABAD)
• Duration Of Justice: 3 year(s) 11 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB-B
• Assessment Year: 2012-2013
• Appeal Filed On: 06-10-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJAT MITRA
• Assessee Lawyers: S RAMA RAO
• Keywords: Condonation of delay
• Section: 143(3); 80IB; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER (THROUGH VIRTUAL HEARING) ITA NO.1292/HYD/2016 ASSESSMENT YEAR:2012 - 13 MODI SHELTERS PRIVATE LIMITED, HYDERABAD. PAN: AADCM 8355 N VS. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE - 16(1), HYDERABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI S. RAMA RAO REVENUE BY: SHRI RAJAT MITRA, DR DATE OF HEARING: 17/09/2020 DATE OF PRONOUNCEMENT: 28 /09/2020 ORDER PER A. MOHAN ALANKAMONY, AM.: THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT (A) - 4, HYDERABAD IN APPEAL NO.0157/DCIT, CIRCLE - 16(1)/15 - 16/CIT(A) - 4/HYD /2016 - 17, DATED 18/07/2016 PASSED U/S. 143(3) R.W.S 250(6) OF THE ACT FOR THE AY 2012 - 13. 2. THE ASSESSEE HAS RAISED SIX GROUNDS IN ITS APPEAL WHICH ARE EXTRACTED HEREIN BELOW FOR REFERENCE: - 2 1. THE ORDER OF THE LD. CIT (A) IS ERRONEOUS BOTH ON FACTS AND IN L AW. 2. THE LD. CIT (A) ERRED IN CONFIRMING DISALLOWANCE OF DEDUCTION CLAIMED U/S. 80IB OF RS. 1,45,81,384/ - IN RESPECT OF HOUSING PROJECT EMERALD PARK AND EMERALD PARK ANNEX. 3. THE LD. CIT (A) ERRED IN HOLDING THAT THE BUILT UP AREA OF EACH HOUSE IN EMARAL D PARK AND EMARALD PARK ANNEX IS MORE THAN 1500 SQ. FT., WHEN ALL THE HOUSES ARE OF THE AREA OF LESS THAN 1500 SQ FT. 4. THE LD CIT (A) OUGHT TO HAVE SEEN THAT THE OPEN TERRACE AND OPEN PORTICO CANNOT FORM PART OF THE BUILT UP AREA FOR THE PURPOSE OF SECTION 80IB(10) AND IF THE OPEN TERRACE WERE TO BE EXCLUDED, THE BUILT UP AREA IS LESS THAN 1500 SQ FT EACH AND THE APPELLANT IS EN TITLED FOR DEDUCTION U/S. 80IB OF THE ACT. 5. THE LD. CIT (A) ERRED IN CONFIRMING THE DISALLOWANCE OF DEDUCTION CLAIMED U/S. 80IB OF RS. 45,06,930/ - IN RESPECT OF HOUSING PROJECT PALM SPRINGS PHASE - II (APARTMENTS) ON THE GROUND THAT CONSIDERED APARTMENT PRO JECT AS VILLA PROJECT. 6. ANY OTHER GROUND THAT MAY BE URGED AT THE TIME OF HEARING. 3. AT THE OUTSET, LD. AR SUBMITTED BEFORE US THAT THERE IS A DELAY OF 2 DAYS IN FILING THE APPEAL BEFORE THE TRIBUNAL. IN THIS REGARD, LD. AR BROUGHT OUR ATTENTION TOWARD S THE AFFIDAVIT FILED BY THE ASSESSEE SEEKING CONDONATION OF DELAY WHEREIN THE REASON FOR NOT FILING THE APPEAL WITHIN THE PRESCRIBED TIME LIMIT WAS EXPLAINED. FOR REFERENCE, THE RELEVANT PORTIONS FROM THE AFFIDAVIT IS EXTRACTED HEREIN BELOW: - THE SAI D ORDER WAS SERVED ON 5/8/2016. THE PERIOD OF 60 DAYS ENDED ON 4/10/2016. IN THIS REGARD IT IS SUBMITTED THAT THE MANAGER (ACCOUNTS) OF THE APPELLANT COMPANY SRI LAXMIKANTH REDDY AND THE ACCOUNTS STAFF WERE PREOCCUPIED WITH THE AUDIT OF ACCOUNTS FOR ASSE SSMENT YEAR 2016 - 17 THE LAST DATE FOR WHICH WAS 30/09/2016 AND THE DATE WAS EXTENDED LATER. THE MANAGER ACCOUNTS WAS CONTEMPLATING TO CONSULT THE ADVOCATE ON 4/10/2016 FOR CLARIFICATION AND FILING OF THE APPEAL. THE ADVOCATE SRI S. RAMA RAO WAS SICK AND COULD NOT ATTEND THE OFFICE ON 4/10/2016 & 5/10/2016. THEREFORE, THE APPEAL IS GOT 3 PREPARED ON 6/10/2016 AND IS BEING FILED BEFORE THE HONBLE ITAT ON THE SAME DAY. THERE IS A DELAY OF 2 DAYS IN FILING THE APPEAL. 4. AFTER HEARING THE SUBMISSIONS OF TH E LD. AR AND ON PERUSAL OF THE AFFIDAVIT FILED BY THE ASSESSEE EXPLAINING THE REASONS FOR THE DELAY IN FILING THE APPEAL BEFORE THE TRIBUNAL, WE FIND MERIT IN THE SUBMISSIONS OF THE ASSESSEE BECAUSE IT IS APPARENT THAT THE ASSESSEE WAS NOT ABLE TO FILE TH E APPEAL BEFORE THE TRIBUNAL WITHIN THE STIPULATED TIME DUE TO THE ILL HEALTH OF HIS COUNSEL. HENCE, IN THE INTEREST OF JUSTICE, WE HEREBY CONDONE THE DELAY OF 2 DAYS IN THE FILING THE APPEAL BEFORE THE TRIBUNAL AND PROCEED TO DISPOSE OFF THE APPEAL ON MERITS. 5. THE LD. AR FURTHER SUBMITTED BEFORE US THAT THE ENTIRE ISSUE IN THE APPEAL IS WITH RESPECT TO THE DENIAL OF DEDUCTION U/S. 80IB OF THE ACT TO WARDS THE FOLLOWING PROJECTS: - SL NO NAME OF THE PROJECT AREA NO. OF HOUSES 1. EMERALD PARK ANNOJIGUDA 148 2. EMERALD PARK ANNEXE ANNOJIGUDA 104 3. PALM SPRINGS PHASE - II KOMPALLY 63 THE LD. AR FURTHER SUBMITTED THAT IN REGARD TO THE ISSUE OF THE PROJECTS EMERALD PARK AND EMERALD PARK ANNEXE, THE HONBLE TRIBUNAL HA D HELD THE MATTER AGAINST THE ASSESSEE FOR THE EARLIER ASSESSMENT YEARS. 4 THEREFORE, THOSE RELEVANT GROUNDS RAISED BEFORE THE TRIBUNAL MAY BE DISMISSED. THE LD. AR FURTHER PLEADED THAT AS REGARDS TO THE THIRD PROJECT VIZ., PALM SPRINGS PHASE - II THE MATTER MAY BE REMITTED BACK TO THE FILE OF LD. AO BECAUSE THE ASSESSEE HAD COMPLI ED WITH THE PROVISIONS OF THE ACT SUBSEQUENTLY. THE LD. DR COULD NOT SERIOUSLY CONTROVERT TO THE SUBMISSIONS OF THE LD. AR. 6. AFTER HEARING BOTH SIDES, WE HEREBY DISMISS THE RELEVANT GROUNDS RAISED BY THE ASSESSEE TO WARDS THE CLAIM OF DEDUCTION U/S. 80 IB OF THE ACT FOR THE PROJECTS VIZ., EMERALD PARK AND EMERALD PARK ANNEXE. FURTHER, AS REQUESTED BY THE LD.AR IN THE INTEREST OF JUSTICE, WITH RESPECT TO THE CLAIM OF DEDUCTION U/S. 80IB OF THE ACT FOR THE PROJECT PALM SPRINGS PHASE - II, W E HEREBY REMIT TH E MATTER BACK TO THE FILE OF LD. AO FOR DE - NOVO CONSIDERATION. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 28 TH SEPTEMBER, 2020. SD/ - SD/ - (P. MADHAVI DEVI) ( A. MOHAN ALANKAMONY ) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDERABAD, DATED: 28 TH SEPTEMBER, 2020. 5 OKK COPY TO: - 1. MODI SHELTERS PRIVATE LIMITED C/O. SHRI S. RAMA RAO, ADVOCATE, FLAT NO.102, SHRIYAS ELEGANCE, 3 - 6 - 643, STREET NO.9, HIMAYAT NAGAR, HYDERABAD 500 029. 2. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE - 16(1), INCOME TAX TOWERS, AC GUARDS, HYDERABAD. 3. THE C OMMISSIONER OF INCOME TAX (APPELS) - 4, HYDERABAD. 4. THE PRINCIPAL COMMISSIONER OF INCOME TAX - 4, HYDERABAD. 5. THE DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. 6. GUARD FILE