Income-tax Officer, Jalgaon V. M/s.Manas Developers, Bhusawal

ITA 1402/PUN/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1008 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 3 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 01-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRI
• Keywords: Set aside
• Section: 143(3); 80IB

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO.1402/PUN/2017 / ASSESSMENT YEAR : 2012-13 THE INCOME TAX OFFICER, WARD-2(1), JALGAON. . / APPELLANT. V/S M/S. MANAS DEVELOPERS, C/O.COLOR STOP, KHADKA ROAD, BHUSAWAL 425 201. PAN : AAMFM1444J. . / RESPONDENT ASSESSEE BY : NONE (WRITTEN SUBMISSIONS FILED) REVENUE BY : SHRI PANKAJ GARG. / ORDER PER ANIL CHATURVEDI, AM : 1. THIS APPEAL FILED BY THE REVENUE IS EMANATING OUT OF THE OR DER OF COMMISSIONER OF INCOME TAX (A) 2, NASHIK DATED 31.03.2017 FOR THE ASSESSMENT YEAR 2012-13. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON R ECORD ARE AS UNDER :- ASSESSEE IS A PARTNERSHIP FIRM STATED TO BE ENGAGED IN T HE BUSINESS OF CONSTRUCTION AND DEVELOPMENT. ASSESSEE ELECT RONICALLY FILED ITS RETURN OF INCOME FOR A.Y. 2012-13 ON 26.09.2012 DECLARING TOTAL INCOME AT RS.NIL. THE CASE WAS SELECTED FOR SCRUTINY AND T HEREAFTER / DATE OF HEARING : 23.07.2019 / DATE OF PRONOUNCEMENT: 06.09.2019 2 ASSESSMENT WAS FRAMED U/S 143(3) OF THE ACT DATED 20.03 .2015 DETERMINING THE TOTAL INCOME AT RS.69,52,144/- INTER-ALIA BY DENYING THE CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT. AGGRIEVED BY T HE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD.CIT(A) WHO VID E ORDER DT.31.03.2017 (IN APPEAL NO.NSK/CIT(A)-2/165-15-16) ALLOWED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF LD.CIT (A), REVENUE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS : 1. IN THE FACTS & CIRCUMSTANCES OF THE CASE & L AW , WHETHER THE LD . CIT(A) WAS JUSTIFIED IN DIRECTING THE ASSESSING OFF I CER TO ALLOW THE DEDUCTION U/S 80IB(10) OF THE INCOME TAX ACT 1961 ( HEREINAFTER REFERRED AS 'ACT') OF RS 69 , 52 , 144/- TO THE ASSESSEE? 2. IN THE F ACTS & CIRCUMSTANCES OF THE CASE & LAW, WHETHER THE LD. CIT(A) WAS JUST I FIED IN DIRECTING THE ASSESSING OFFICER TO ALLOW TH E DEDUCTION U/S 80IB(10) OF THE ACT TO THE ASSESSEE I GNORING THE FACT THAT THE ASSESSEE HAD CONSTRUCTED THE RESIDENTIAL U NIT IN EXCESS OF 1500 SQ.FT. IN VIOLAT I ON TO THE PROVISIONS OF SECTION 80IB(10) OF THE ACT ? 3. IN THE FACTS & CIRCUMSTANCES OF THE CASE & LAW, WHETHER THE LD. CIT(A) WAS JUSTIFIED IN DIRECTING THE ASSESSING OFF ICER TO ALLOW THE DEDUCTION U/S 80IB(10) OF THE ACT TO THE ASSESSEE B Y RELY I NG UPON THE ITAT BENCH 'A' PUNE'S ORDER DT. 30.9.2013 IN ASSESS EE'S OWN CASE FOR AY 2007-08 & 2008-09, WHEN THE SECTION 80IB(10 ) (F) OF THE ACT CLEARLY PROHIB I TS T HE ASSESSEE TO SELL MORE THAN ONE RESIDENTIAL UNIT TO THE BUYER, HIS/HER SPOUSE, HIS/HER MINOR CHILDREN O F THE BUYER I N CASE THE BUYER I S AN INDIVIDUAL? 4. IN THE FACTS & CIRCUMSTANCES OF THE CASE & LAW, WHETHER THE LD. CIT(A) WAS JUSTIFIED IN DIRECTING THE ASSESSING OFF ICER TO ALLOW THE DEDUCTION U/S 80IB(10) OF THE ACT TO THE ASSESSEE, IGNORING THE FACT THAT DEV I ATION OR VIOLATION OF EVEN A SINGLE CLAUSE OF SUB - SECT I ON(10) OF SECT I ON 8016, CALLED FOR DISALLOWANCE OF CLA I M U/S 80IB(10) AS I T I S GIVEN FOR THE ENTIRE PROJECT? 5. IN THE FACTS & CIRCUMSTANCES OF THE CASE & LAW, WHETHER THE LD . CIT(A) HAD ERRED IN ALLOWING THE DEDUCTION U/S 8016 (10) WITHOUT APPRECIAT I NG THE FOLLOWING FACTS OF THE CASE : I) THAT THE LAND ON WHICH THE SAID PROJECT WAS CLAIMED TO HAVE BEEN DEVELOPED WAS IN THE NAME OF THE INDIVIDU AL PARTNERS WHOM CAN NEVER MEAN TO 'INDUSTRIAL UNDERTAKING OR UNDERTAKING' WITHIN THE MEANING OF SECTION 80IB. II) THAT THE PROJECT AS A WHOLE HAD NOT BEEN APPROVED B Y THE LOCAL AUTHORITY. THE SEPARATE APPROVALS OBTA I NED FOR CONST R UCTION OF RESIDENTIAL UNIT ON EACH PLOT WAS AGAINST THE SCHEME OF SECTION 80IB(10) AND CIRCULAR NO 05/2 005 DATED 15.07.2005 AND THEY WERE NOT BUILDING PLAIN AS PER THE SAID CIRCULAR. 3 III) THAT THE COMPLETION CERTIFICATE FROM LOCAL AUTHORIT Y WAS NOT OBTAINED FOR THE ENTIRE 'BUILDING' BUT FOR INDIVIDUAL UNIT SEPARATELY. 6. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE, THE ORDER OF THE CIT(A) BE VACATED AND THAT OF THE A.O. BE RESTORED. 3. ALL THE GROUNDS BEING INTER-CONNECTED ARE CONSIDERED TOGETHE R. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AO NOTIC ED THAT ASSESSEE HAD DEVELOPED A HOUSING PROJECT BY THE NAME SUNDER NAGAR AT BHUSAWAL AND THE NET PROFITS FROM IT OF RS.69,52,144/- WAS CLAIMED AS DEDUCTION U/S 80IB(10) OF THE ACT. AO WAS OF THE VIEW THAT ASSESSEE WAS NOT ELIGIBLE FOR DEDUCTION U/S 80IB OF THE ACT AS IT HA S NOT COMPLIED WITH THE VARIOUS CONDITIONS STIPULATED U/S 80IB(10) OF THE A CT. BEFORE AO IT WAS ALSO SUBMITTED THAT FOR EARLIER YEARS 2007-08 T O 2010-11 FOR SIMILAR REASONS, THE AO HAD DISALLOWED THE CLAIM OF DEDUCTION BUT SUBSEQUENTLY LD.CIT(A) HAD DECIDED THE ISSUE IN FAVOUR OF T HE ASSESSEE. AO NOTED THAT WITH RESPECT TO THE ASSESSMENT IN EARLIER YEARS THE QUESTION HAD NOT ATTAINED THE FINALITY AS THE DEPARTMENT HAS GONE INTO APPEAL BEFORE THE HON'BLE HIGH COURT. HE THEREFORE FOLLOWING THE ORDER OF HIS PREDECESSOR CONCLUDED THAT ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE ACT AND ACCORDINGLY DENIED THE CLAIM OF DEDUCTION. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATT ER BEFORE LD.CIT(A), WHO DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE B Y NOTING THAT ON SIMILAR FACTS IN A.YS. 2007-08 TO 2010-11 THE ISSUE WAS DECIDED IN ASSESSEES FAVOUR BY THE ITAT. AGGRIEVED BY THE ORDER OF LD.CIT(A), REVENUE IS NOW BEFORE US. 5. ON THE DATE OF HEARING NONE APPEARED ON BEHALF OF THE ASSESSEE THOUGH NOTICE WAS SERVED ON THE ASSESSEE. ASSESSEE HA S HOWEVER FILED 4 WRITTEN SUBMISSIONS DATED 03.06.2019 WHEREIN INTER-ALIA IT H AS BEEN SUBMITTED THAT IN EARLIER YEARS THE ISSUE HAS BEEN DECID ED BY THE CO-ORDINATE BENCH OF THE TRIBUNAL IN ASSESSEES FAVOUR AN D ALSO PLACED ON RECORD THE COPY OF THE DECISIONS OF THE TRIBUNAL FOR A.Y S. 2007-08 TO 2010-11. WE THEREFORE PROCEED TO DISPOSE OF THE APP EAL EX-PARTE QUA THE ASSESSEE BASED ON THE WRITTEN SUBMISSIONS FILED BY T HE ASSESSEE, MATERIAL AVAILABLE ON RECORD AND AFTER HEARING THE LD. D.R. 6. LD. D.R. SUPPORTED THE ORDER OF AO. 7. WE HAVE HEARD THE LD. D.R. AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT GROUND IS WITH RESPECT TO CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT. THE CLAIM OF DEDUCTION U/S 80IB W AS DENIED TO THE ASSESSEE AS AO WAS OF THE VIEW THAT THE ASSESSEE HAS NOT COMPLIED WITH THE CONDITIONS STIPULATED U/S 80IB OF THE ACT. IT IS ALSO A FACT THAT IDENTICAL ISSUE AROSE IN ASSESSEES OWN CASE FOR A.YS. 2007 -08 TO 2010- 11 WHEREIN THE CO-ORDINATE BENCH OF THE TRIBUNAL HAS HELD THE ASSESSEE TO BE ELIGIBLE FOR DEDUCTION. 8. BEFORE US, REVENUE HAS NOT PLACED ANY MATERIAL ON RECO RD TO DEMONSTRATE THAT THE DECISIONS OF CO-ORDINATE BENCH OF T HE TRIBUNAL IN ASSESSEES OWN CASE FOR EARLIER YEARS I.E., A.YS. 2007-08 TO 2010-11 HAS BEEN SET ASIDE BY HIGHER JUDICIAL AUTHORITIES NOR HAS POINT ED ANY DISTINGUISHING FEATURE IN THE FACTS OF THE CASE FOR THE YEA R UNDER CONSIDERATION AND THAT OF EARLIER YEARS. WE THEREFORE FIN D NO REASON TO INTERFERE WITH THE ORDER OF LD.CIT(A). THUS, THE GROUNDS OF THE REVENUE ARE DISMISSED. 5 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISS ED. ORDER PRONOUNCED ON 6 TH DAY OF SEPTEMBER, 2019. SD/- SD/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) ! / JUDICIAL MEMBER ! / ACCOUNTANT MEMBER PUNE; DATED : 6 TH SEPTEMBER, 2019. YAMINI #$%&'('% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5 6. CIT(A)-2, NASHIK. PR. CIT-2, NASHIK. '#$ %%&',) &', / DR, ITAT, B PUNE; $*+,/ GUARD FILE. / BY ORDER // TRUE COPY // -./%0&1 / SR. PRIVATE SECRETARY ) &', / ITAT, PUNE.