ITO, Ward 1(2), Nashik V. M/s. Chaitanya Builders and Land Developers, Nashik

ITA 1392/PUN/2013

• Counselvise Citation: 139224514 RSA 2013
• Duration Of Justice: 1 year(s) 1 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 01-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B C MALAKAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO.1392/PN/2013 (A.Y: 2004-05) ITO, WARD 1(2), NASHIK APPELLANT VS. M/S. CHAITANYA BUILDERS AND LAND DEVELOPERS 687, MHB COLONY, SATPUR, NASHIK 422007 PAN: AACFC3306R RESPONDENT APPELLANT BY : SHRI B.C. MA LAKAR RESPONDENT BY : NONE DATE OF HEARING: 05.08.2014 DATE OF ORDER : 14.08.2014 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEAL)-I, NASHIK, D ATED 10.04.2013 FOR A.Y. 2004-05 ON THE FOLLOWING GROUND S. 1. IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE T HE LEARNED CIT(A)-I IS NOT JUSTIFIED IN ALLOWING THE D EDUCTION U/S 80IB(10) OF THE ACT. 2. IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE T HE LEARNED CIT (A) IS NOT JUSTIFIED IN NOT APPRECIATIN G THE FACT THAT THE CONDITION FOR ELIGIBILITY FOR CLAIMING DED UCTION UNDER THE SECTION 80IB(10) OF THE ACT ON THE ROW HO USE PROJECT OF THE ASSESSEE BUILT ON GAT NOS. 66/B/L, 6 6/B/2 AND 66/B/3 MEASURING LESS THAN ONE ACRE AREA THUS CONTRAVENING ONE OF THE PROVISION FOR BEING ELIGIBL E FOR CLAIMING DEDUCTION UNDER SECTION 80IB(10). 3. IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE T HE LEARNED CIT (A) IS NOT JUSTIFIED IN NOT TAKING COGN IZANCE THAT THE ORDERS OF THE LD. CIT(A) AND HON'BLE ITAT FOR T HE ASSESSMENT YEAR 2008-09 HAVE NOT BEEN ACCEPTED BY T HE 2 ITA NO.1392 OF 13 M/S. CHAITANYA BUILDERS & LAND DEVELOPERS DEPARTMENT AND FURTHER APPEAL TO THE HON'BLE HIGH C OURT, MUMBAI IS UNDER CONSIDERATION. 4. THE ORDER OF THE LD. CIT (A) BE CANCELLED AND THAT OF THE A.O. BE RESTORED. 5. THE APPELLANT CRAVES LEAVE TO ADD/ALTER/AMEND GROUN DS OF APPEAL. 2. THE ASSESSEE IS A FIRM ENGAGED AS BUILDER AND LA ND DEVELOPER. THE ASSESSING OFFICER HAS DISALLOWED TH E CLAIM OF DEDUCTION U/S.80IB(10) OF THE I.T. ACT AMOUNTING TO RS.12,44,967/- IN THE REOPENED ASSESSMENT. 2.1 THE MATTER WAS CARRIED BEFORE FIRST APPELLATE A UTHORITY, WHEREIN THE VARIOUS CONTENTIONS WERE RAISED ON BEHA LF OF THE ASSESSEE AND THE CIT(A) HAVING CONSIDERED THE SAME HAS GRANTED RELIEF BY FOLLOWING ITAT ORDER ON SIMILAR ISSUE IN A.Y. 2008-09. THE SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF TH E REVENUE, INTER ALIA, SUBMITTED THAT THE CIT(A) IS NOT JUSTIF IED IN NOT APPRECIATING THE FACT THAT THE CONDITION FOR ELIGIB ILITY FOR CLAIMING DEDUCTION UNDER THE SECTION 80IB(10) OF THE ACT ON THE ROW HOUSE PROJECT OF THE ASSESSEE BUILT ON GAT NOS. 66/ B/L, 66/B/2 AND 66/B/3 MEASURING LESS THAN ONE ACRE AREA THUS CONTRAVENING ONE OF THE PROVISION FOR BEING ELIGIBL E FOR CLAIMING DEDUCTION UNDER SECTION 80IB(10). THE CIT (A) IS A LSO NOT JUSTIFIED IN NOT TAKING COGNIZANCE THAT THE ORDERS OF THE CIT(A) AND ITAT FOR THE ASSESSMENT YEAR 2008-09 HAVE NOT B EEN ACCEPTED BY THE DEPARTMENT AND THEY ARE IN APPEAL B EFORE THE JURISDICTIONAL HIGH COURT. ACCORDINGLY, THE ORDER OF CIT(A) BE SET ASIDE AND THAT OF ASSESSING OFFICER BE RESTORED. N ONE APPEARED ON BEHALF OF THE ASSESSEE, SO THE MATTER IS BEING D ECIDED EXPARTE, ON THE BASIS OF ARGUMENTS OF THE LEARNED DEPARTMENT AL REPRESENTATIVE AND MATERIAL ON RECORD. 2.2 WE FIND THAT THE ASSESSING OFFICER HAS MADE DIS ALLOWANCE BY OBSERVING THAT THE DECISION OF CIT(A) IN A.Y. 20 08-09 ON 3 ITA NO.1392 OF 13 M/S. CHAITANYA BUILDERS & LAND DEVELOPERS SIMILAR ISSUE WAS NOT ACCEPTED AND THE MATTER WAS B EFORE ITAT AT A PARTICULAR POINT OF TIME. IN A.Y.2008-09, THE CI T(A) HAS ALLOWED A SIMILAR DEDUCTION IN FAVOUR OF THE ASSESSEE BY OB SERVING AS UNDER: IT IS FOUND THAT THE APPELLANT HAS FULFILLED ALL T HE REQUIREMENTS FOR A CLAIM U/S 80IB(10), THEREFORE, T HE AO WAS NOT JUSTIFIED IN REJECTING THE CLAIM. HE IS, T HEREFORE, DIRECTED TO ALLOW THE CLAIM OF RS.33,49,895/- MADE BY THE APPELLANT U/S 80IB(10). THE IMPUGNED DISALLOWANCE OF RS.33,49,895/- IS, THEREFORE, DELETED. THIS GROUND OF APPEAL IS ALLOWED. THE MATTER WAS CARRIED BEFORE THE ITAT, WHEREIN, T HE ORDER OF CIT(A) WAS CONFIRMED IN ITA NO.962/PN/2011 AND C O NO.60/PN/2011 FOR A.Y. 2008-09 VIDE ORDER DATED 28. 02.2013 BY OBSERVING AS UNDER: 'THERE IS NOTHING IN THE PROVISION TO SUGGEST THAT THERE IS A NECESSITY THAT ENTIRE PERMISSIBLE FSI ON THE PLOT O F LAND HAS TO BE CONSUMED. IT IS PREROGATIVE OF BUILDER TO CON SUME THE FSI ON THE PLOT AND THERE ARE VARIOUS FACTORS WHICH ARE IN THE DOMAIN OF BUILDER ITSELF. THERE IS NOWHERE ENVI SAGED IN THE LAW THAT THE ENTIRE FSI SHOULD BE UTILIZED FOR THE PURPOSE OF CLAIMING DEDUCTION U/S 80IB(10). THE ASS ESSEE HAS FULFILLED ALL MAIN CONDITIONS OF SECTION 80IB(1 0) NAMELY SIZE OF THE PLOT AS PER COMPLETED BUILDING PLAN IS 7368 SQ. MT. AND PERMISSIBLE BUILT UP AREA WAS 4569 SQ. MT. WHICH IS MORE THAN 1 ACRE (4047 SQ. MT.). SECONDLY, THE APPR OVAL TO CONSTRUCT FROM THE LOCAL AUTHORITY IS 21/06/2003 WH ICH IS AFTER 01/10/1998. THIRDLY, THE RESIDENTIAL UNIT DEV ELOPED AND BUILT UP AREA OF 300 SQ. FT. PER UNIT WHICH IS LESS THAN 1500 SQ. FT. AS APPLICABLE TO NASHIK, AND LASTLY TH E CONSTRUCTION HAS BEEN COMPLETED AS PER THE COMPLETI ON CERTIFICATE ON 04/11/2006 WHICH IS BEFORE 31/03/200 8. THUS ALL THE CONDITIONS HAVE BEEN COMPLIED BY THE A SSESSEE FOR CLAIMING DEDUCTION U/S 80IB(10) OF THE ACT ON T HE HOUSING PROJECT. THE ASSESSING OFFICER WAS NOT JUSTIFIED IN REJECTING THE CLAIM ON THE GROUND THAT ASSESSEE HAS NOT UTILIZED THE FULLY PERMISSIBLE FSI. THERE I S NO SUCH PREREQUISITE CONDITION IN LAW FOR UTILIZING THE ENT IRE FSI. IN VIEW OF THE ABOVE, CIT(A) WAS JUSTIFIED IN HOLDING THAT ASSESSEE HAS FULFILLED ALL REQUIREMENTS FOR CLAIMIN G DEDUCTION U/S 80IB(10). THEREFORE, ASSESSING OFFICE R WAS NOT JUSTIFIED IN REJECTING THE CLAIM AND HE WAS RIG HTLY DIRECTED TO ALLOW THE CLAIM OF RS.33,49,895/- MADE BY THE 4 ITA NO.1392 OF 13 M/S. CHAITANYA BUILDERS & LAND DEVELOPERS ASSESSEE U/S 80IB(10) OF THE ACT WHICH DOES NOT REQ UIRE ANY INTERFERENCE FROM OUR SIDE. WE UPHOLD THE SAME. THUS, ITAT HAS SETTLED THE ISSUE WITH REGARD TO SI ZE OF PLOT AS DISCUSSED ABOVE. MOREOVER, NOTHING CONTRARY HAS BEEN BROUGHT ON RECORD BEFORE US BY THE REVENUE WITH REG ARD TO THE ORDER FOR A.Y. 2008-09. 2.3 IN VIEW OF ABOVE, THE CIT(A) WAS JUSTIFIED IN O BSERVING THAT THE ASSESSEE HAS FULFILLED ALL THE CONDITIONS AS PE R PROVISIONS OF SECTION 80IB(10) OF THE ACT. SO, THERE WAS NO JUST IFICATION FOR DISALLOWING THE CLAIM OF THE ASSESSEE OF RS.12,44,9 67/- UNDER THE PROVISIONS OF SECTION 80IB(10) OF THE ACT. THIS RE ASONED FINDING OF CIT(A) WHICH IS FORTIFIED BY THE ORDER OF ITAT, PUN E IN A.Y. 2008- 09 IN ASSESSEES OWN CASE, NEEDS NO INTERFERENCE FR OM OUR SIDE. WE UPHOLD THE SAME. 3. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DI SMISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE 14 TH DAY OF AUGUST, 2014. SD/- SD/- (R.K. PANDA) (SHAILENDRA KUMAR YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED: 14 TH AUGUST, 2014 GCVSR COPY TO:- 1) DEPARTMENT 2) ASSESSEE 3) THE CIT(A)-I, NASHIK 4) THE CIT-I, NASHIK 5) THE DR, A BENCH, I.T.A.T., PUNE. 6) GUARD FILE BY ORDER //TRUE COPY// SENIOR PRIVATE SECRETARY, I.T.A.T., PUNE