DCIT, Bangalore V. M/s. Brigade Enterprises Ltd., Bangalore

ITA 1355/BANG/2010

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 6932 (ITAT-BANGALORE)
• Duration Of Justice: 10 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-10-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 08-12-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 02-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PADAMCHAND KHINCHA
• Section: 80IB

Judgement Text

ITA.1355/BANG/2010 P AGE - 1 IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH 'B', BANGALORE BEFORE SHRI. N. BARATHVAJA SANKAR, VICE PRESIDENT AND SHRI. GEORGE GEORGE K. JUDICIAL MEMBER I.T.A NO.1355/BANG/2010 (ASSESSMENT YEAR : 2006-07) DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE -11(2), BANGALORE .. APPELLANT V. M/S. BRIGADE ENTERPRISES LTD., PENT HOUSE, BRIGADE TOWERS, NO.135, BRIGADE ROAD, BANGALORE 560 025 .. RESPONDENT AAACB7459F APPELLANT BY : SHRI. ETWA MUNDA, COMMISSIONER OF IN COME-TAX-III RESPONDENT BY : SHRI. PADAMCHAND KHINCHA, CA DATE OF HEARING : 11.10.2011 DATE OF PRONOUNCEMENT : 11.10.2011 O R D E R PER N. BARATHVAJA SANKAR, VICE PRESIDENT : THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX(A)-I, BANGALORE, DATED.2 0.09.2010, FOR THE ASSESSMENT YEAR 2006-07. 02. THE BRIEF FACTS OF THE CASE ARE, THE ASSESSEE F ORMED A SINGLE PROJECT BY NAME 'BRIGADE MILLENNIUM' COMPRISING A T OTAL AREA OF 22 ITA.1355/BANG/2010 P AGE - 2 ACRES AND 19 GUNTAS IN SURVEY NOS.44, 45 & 55/1 OF BANGALORE SOUTH TALUK AND OBTAINED AN APPROVAL DATED.24.05.2002 FOR THE ENTIRE MACRO PROJECT FROM THE BDA. THIS MACRO PROJECT COMPRISED CERTAIN HOUSING BLOCKS, COMMUNITY HALL, ETC., AS ITS MICRO COMPONEN TS. IT COMPRISED AMONG OTHER THINGS 5 RESIDENTIAL BLOCKS BY NAME MAY FLOWER, CASSIA, MAGNOLIA, JACARANDA AND LABURNUM. THE ASSESSEE HAS CONSTRUCTED AND DEVELOPED BRIGADE MILLENIUM CONSISTING OF 5 RES IDENTIAL BLOCKS NAMELY MAYFLOWER, CASSIA, MAGNOLIA, JACARANDA AND LABURNUM. ROW HOUSES THE OAK TREE PLACE, A CLUB, A COMMUNIT Y CENTRE, A SCHOOL AND A PARK. THE ASSESSING OFFICER HELD THAT ALL THESE PROJECTS ARE TO BE HELD AS ONE SINGLE HOUSING PROJECT UNDER THE PURVIEW OF SECTION 80-IB(10) AND SINCE 3 BLOCKS NAMELY, MAGNOL IA, JACARANDA AND LABURNUM HAVE SEVERAL RESIDENTIAL UNITS WHOSE P LINTH AREA ARE ABOVE 1500 SQ.FT AND ALSO MANY SHOPS AND OTHER COMM ERCIAL ESTABLISHMENTS WHEREIN THE PLINTH AREA IS MORE THAN 2000 SQ.FT FOR EACH OF THE SUB-PROJECTS AS WELL AS THE ENTIRE PROJECT I S INELIGIBLE FOR CLAIMING DEDUCTION AS PER THE PROVISOS (C) AND (D) OF SECTION 80 IB(10). 03. THE ASSESSING OFFICER THUS POINTED OUT IN THE A SSESSMENT ORDER THAT ONCE THE BDA APPROVAL IS GIVEN ON 24.05.2002 F OR THE MACRO PROJECT CALLED 'BRIGADE MILLENIUM', THE ASSESSEE IS ENTITLED ONLY FOR ITA.1355/BANG/2010 P AGE - 3 SUCH PROJECT ON ITS COMPLETION ON FULFILLMENT OF TE RMS AND CONDITIONS MENTIONED IN SECTION 80IB(1) OF THE ACT AND SUCH DE DUCTION CANNOT BE ALLOWED ON COMPLETION OF THE UNITS EVEN THOUGH SEPA RATE PLAN APPROVALS HAVE BEEN RECEIVED FROM THE BDA. ANOTHER CONTENTION OF THE ASSESSING OFFICER WAS THAT WITHOUT PREJUDICE TO THE ABOVE, THE UNITS EVEN ARE NOT ENTITLED FOR DEDUCTION U/S.80IB( 10) OF THE ACT BECAUSE THE BUILT-UP AREA OF MANY RESIDENTIAL UNITS IN THESE RESIDENTIAL BLOCKS EXCEED 1500 SQ.FT AND SEVERAL SHOPS IN THESE UNITS CALLED MAGNOLIA, JACORDE AND LABURNUM EXCEED 2000 SQ.FT. IT IS POINTED OUT THAT THE ACT CAN ONLY BE INTERPRETED AND THE RELEVA NT WORD TO BE INTERPRETED IS 'HOUSING PROJECT' AND THEREFORE IT I S A CASE OF ALL OR NONE OF THE DEDUCTION. THE WORD 'PROPORTIONATE DEDUCTIO N' SHOULD NOT BE INCULCATED BECAUSE THAT WOULD MEAN SUPPLYING WORDS ASSUMING THE JURISDICTION OF LEGISLATIONS. BEING AGGRIEVED BY T HE ACTION OF THE ASSESSING OFFICER, ASSESSEE WENT IN APPEAL BEFORE T HE CIT(A). 04. BEFORE THE COMMISSIONER OF INCOME-TAX(A), THE A SSESSEE SUBMITTED THAT THE DECISION OF THE JURISDICTIONAL I TAT IN ASSESSEE'S OWN CASE IN DCIT V. BRIGADE ENTERPRISES (P) LTD (20 08) 119 TTJ 269 (BANG), DATED.29.08.2008 FOR A.Y.2004-05 HAS UPHELD AND ALLOWED THE ASSESSEE'S CLAIM IN RESPECT OF 80IB DEDUCTION. THE ASSESSEE ALSO SUBMITTED THAT THE ITAT HAD ALLOWED DEDUCTION U/S.8 0IB(10) FOR THE ASSESSMENT YEAR 2005-06 IN THE ASSESSEE'S OWN CASE BY FOLLOWING THE ITA.1355/BANG/2010 P AGE - 4 ABOVE ORDER. THE COMMISSIONER OF INCOME-TAX(A) AFT ER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, ALLOWED THE APPEAL OF THE ASSESSEE BY ALLOWING THE CLAIM OF THE ASSESSEE , FOR DEDUCTION U/S.80IB(10). HENCE, THE REVENUE IS IN APPEAL BEFORE US. 05. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CONSIDE RED THE MATERIAL ON RECORD. WE FIND THAT THIS ISSUE IS COV ERED BY THE EARLIER ORDER OF THE TRIBUNAL, WHEREIN IN PARA 4 AND 5, IT HAS BEEN OBSERVED AS UNDER : '4. THE LEARNED COMMISSIONER OF INCOME-TAX(A) WHILE ALLOWING THE RELIEF HAS OBSERVED AS UNDER : 'RESPECTFULLY FOLLOWING THE DECISION OF THE JURISDICTIONAL TRIBUNAL IN THE APPELLANT'S OWN CASE FOR AN EARLIER AY, I.E. AY 2004-05 AND THE FACTS PERTAI NING TO THE CURRENT YEAR BEING IDENTICAL TO THAT OF THE EARLIER YEAR AND RELATING TO ONE OF THE TWO PROJECTS DEALT BY THE HON'BLE ITAT, VIZ. BRIGADE CASSIA, I ACCORDINGLY, DIRECT THE ASSESSING OFFICER TO ALLOW DEDUCTION U/S.80IB(10) IN R/O ITS PROJECT, BRIGADE CASSIA, FO R AY 2005-06 AS WELL.' 5. WE HAVE HEARD BOTH THE PARTIES ON THE ABOVE-REFE RRED ISSUE. THE ISSUE STANDS COVERED BY THE DECISION OF THIS TR IBUNAL IN THE CASE OF THE ASSESSEE FOR THE ASST. YEAR 2004-05. T HE TRIBUNAL VIDE ORDER DATED 29TH AUGUST, 2008 IN THE CASE OF T HE ASSESSEE IN ITA NO.1198/BANG/2007 DIRECTED THE ASSESSING OFF ICER TO ITA.1355/BANG/2010 P AGE - 5 ALLOW DEDUCTION U/S.80IB(10) VIDE PARA 7 OF THE ORD ER AFTER CONSIDERING THE FOLLOWING JUDGEMENTS :- UNION OF INDIA & OTHERS V. WOOD PAPERS LTD. AND ANOTHER AIR 1991 (SC) 2049 (SC); COMMISSIONER OF INCOME-TAX V. GWALIOR RAYON SILK MANUFACTURING CO. LTD. AIR (1992 SC 1782 (SC); BAJAJ TEMPO LTD V COMMISSIONER OF INCOME-TAX 196 ITR 188 (SC); CAPSULATION SERVICES P. LTD. V. COMMISSIONER OF INCOME-TAX 91 ITR 566 (BOM.) ; PHAGOO MAL SANT RAM V. COMMISSIONER OF INCOME-TAX 74 ITR 734 (P&H); ARUN FOUNDATIONS (P) LTD. V. ACIT 108 TTJ 710 (CHENNAI) ; ACIT V. BENGAL AMBUJA HOUSING DEVELOPMENT LTD. 39- D BCAJ 546 (KOL. BENCH); SAROJ CORPORATION V. ITO 115 TTJ 485 (MUM. BENCH) THUS, THE ISSUE BEFORE US STANDS COVERED BY THE DEC ISION OF THIS BENCH IN THE CASE OF THE ASSESSEE AND FOLLOWING THA T DECISION, WE UPHOLD THE ORDER OF THE LEARNED COMMISSIONER OF INCOME- TAX(A).' 06. SINCE THE FACTS AND CIRCUMSTANCES ARE THE SAME, FOLLOWING THE ABOVE DECISION OF THE TRIBUNAL, WE DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE. ITA.1355/BANG/2010 P AGE - 6 07. IN THE RESULT, REVENUE'S APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 11TH DAY OF OCTOB ER, 2011, AT BANGALORE. SD/- SD/- (GEORGE GEORGE K) (N. BARATHVAJA SANKAR) JUDICIAL MEMBER VICE PRESIDENT