M/s. Siddhivinayak Constructions, Aurangabad V. Deputy Commissioner of Income tax,

ITA 142/PUN/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7512 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 3 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 19-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Additional evidence; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI PARTHA SARATHI CHAUDHURY, JM / ITA NO.142/PUN/2017 / ASSESSMENT YEAR : 2012-13 M/S. SIDDHIVINAYAK CONSTRUCTIONS, 215-216, 1 ST FLOOR, BUILDING NO.3, APANA BAZAAR, JALNA ROAD, AURANGABAD-431 001 PAN : ABPFS9625M ....... / APPELLANT / V/S. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, AURANGABAD. / RESPONDENT ASSESSEE BY : SHRI S.N. PURANIK REVENUE BY : SHRI SUDHENDU DAS / DATE OF HEARING : 30.04.2019 / DATE OF PRONOUNCEMENT : 30.04.2019 / ORDER PER PARTHA SARATHI CHAUDHURY, JM : THIS APPEAL PREFERRED BY THE ASSESSEE EMANATES FROM TH E ORDER OF THE LD. CIT(APPEALS)-12, PUNE DATED 13.10.2016 FOR THE ASSESSM ENT YEAR 2012-13 AS PER FOLLOWING GROUNDS OF APPEAL ON RECORD: 2 ITA NO.142 /PUN/2017 A.Y.2012-13 1. COMMISSIONER (APPEALS) HAS ERRED IN CONFIRMING T HE ASSESSMENT BY ASSESSING OFFICER ASSESSING THE INCOME AT RS.5,13,5 8,770/- AS AGAINST RETURNED INCOME OF RS. NIL. 2. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CA SE, CIT(A) HAS ERRED BOTH OF FACTS AS WELL AS IN LAW IN REJECTING APPELL ANT CLAIM OF DEDUCTION U/S.80IB(10) OF THE ACT, 1961. APPELLANT PRAYS FOR CANCELLATION OF DISALLOWANCE. 3. APPELLANT PRAYS JUST AND EQUITABLE RELIEF. 4. ASSESSING OFFICER HAS ERRED IN CHARGING INTEREST U/S.234B, C AND OTHER SECTIONS. 5. APPELLANT PRAYS TO ADD, ALTER, AMEND, MODIFY AND /OR WITHDRAW THE GROUND/S , DURING THE APPELLATE PROCEEDINGS. 2. THE CRUX OF THE GRIEVANCE OF THE ASSESSEE IN THIS AP PEAL IS DENIAL OF DEDUCTION U/S.80IB(10) OF THE INCOME TAX ACT, 1961 (HEREIN AFTER REFERRED TO AS THE ACT). 3. THE BRIEF FACTS IN THIS CASE ARE THAT THE ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN CONSTRUCTION OF RESIDENTIAL PROJECTS. THE RETUR N OF INCOME WAS FURNISHED ON 30.09.2012 DECLARING TOTAL INCOME OF RS. NIL. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS SHOWN PROFIT OF RS.5 ,13,58,770/- AND ALSO CLAIMED REDUCTION U/S.80IB(10) OF THE ACT OF RS.5,13,58,770 /-. THE ASSESSING OFFICER DENIED THE DEDUCTION U/S.80IB(10) OF THE AC T AS THE ASSESSEE FAILED TO FILE CERTIFICATE OF THE COMPLETION OF PROJECT AND DETERMINED TOTAL INCOME AT RS.5,13,58,770/-. 4. AT THE TIME OF HEARING, THE LD. AR OF THE ASSESSEE SUB MITTED THAT AT THE TIME OF ASSESSMENT PROCEEDINGS AS WELL AS AT THE TIME OF H EARING BEFORE THE LD. CIT(APPEALS), THE ASSESSEE HAD NOT PROCURED COMPLETIO N CERTIFICATE FOR THE PROJECT IN QUESTION. HOWEVER, AT THE PRESENT DATE, T HE ASSESSEE HAS PROCURED THE SAID COMPLETION CERTIFICATE FOR THE PROJECT WHICH HAS BEEN FILED ALSO IN THE PAPER BOOK BEFORE US. THE LD. AR OF THE ASSES SEE PRAYED THAT IN 3 ITA NO.142 /PUN/2017 A.Y.2012-13 VIEW OF THE COMPLETION CERTIFICATE BEING RECEIVED, THE MATT ER MAY BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER FOR PROPER ADJUDICA TION AND THIS VIEW IN TERMS OF FACT IS ABSOLUTELY SIMILAR TO THE DECISION OF THE CO-ORDINATE PUNE BENCH OF THE TRIBUNAL IN ITA NO.886/PUN/2016 FOR THE ASSE SSMENT YEAR 2011-12 IN THE CASE OF M/S. RAJ KASLIWAL VS. DCIT WHEREIN THE CO-ORDINATE BENCH OF THE TRIBUNAL HAS OBSERVED THAT THE ASSESSING OFFICER DENIED THE CLAIM OF DEDUCTION U/S.80IB(10) OF THE ACT FOR WANT OF VALID C OMPLETION /OCCUPANCY CERTIFICATE. THE ASSESSEE COULD NOT IMPROVE THE CASE EVEN DURING THE FIRST APPELLATE PROCEEDINGS. THEREFORE, AS ADDITIONAL EVID ENCE, THE COMPLETION CERTIFICATE WAS ACCEPTED BY THE PUNE BENCH OF THE TRIBUNAL SINCE THE SAME GOES TO THE ROOT OF THE MATTER RELATING TO TH E VALID CLAIM OF DEDUCTION U/S.80IB(10) OF THE ACT AND THE MATTER WAS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER FOR MAKING FRESH ASSESSMENT. 5. THE LD. DR, PER CONTRA, HAS PLACED RELIANCE ON THE FINDIN GS OF THE SUB- ORDINATE AUTHORITIES. HOWEVER, PRINCIPALLY AGREED THAT THE MATTER IS SIMILAR IN FACTS WITH ITA NO.886/PUN/2016 (SUPRA.). 6. WE HAVE PERUSED THE CASE RECORDS AND HEARD THE R IVAL CONTENTIONS AND GIVEN CONSIDERABLE THOUGHT TO THE JUDICIAL PRONOUNCEMEN T PLACED ON RECORD. THAT ON PERUSAL OF THE FACTS OF THE PRESENT CASE AS WE LL AS THE FACTS AS APPEARING IN ITA NO.886/PUN/2016 (SUPRA.), WE FIND THEY ARE SUBSTANTIALLY SIMILAR. IN THAT CASE, THE CO-ORDINATE BENCH OF THE TRIBUN AL HAS OBSERVED AS UNDER: 6. ON CONSIDERING THE OBJECTIONS RAISED BY THE LD. DR FOR THE REVENUE FOR ADMISSION OF THE SAID ADDITIONAL EVIDENCES, WE FIND IT RELEVANT AND APPROPRIATE TO ADMIT THE ADDITIONAL EVIDENCES CONSI DERING THE SIGNIFICANCE OF THE SAME. THE VALIDITY OF THE SAID COMPLETION CERTIFICATE AND ITS ISSUANCE IS THE SUBJECT MATTER OF LITIGATIO N AND THE SAME GOES TO THE ROOT OF THE MATTER RELATING TO THE VALID CLAIM OF DEDUCTION U/S.80IB(10) OF THE ACT. 4 ITA NO.142 /PUN/2017 A.Y.2012-13 ACCORDINGLY, WE ORDER THE REVENUE AUTHORITIES TO AD MIT THE ADDITIONAL EVIDENCES AND RE-ADJUDICATE THE ONLY ISS UE OF CLAIM OF DEDUCTION U/S.80IB(10) OF THE ACT. THUS, THE IMPUGN ED ORDER IS SET ASIDE AND THE ISSUE IS REMITTED BACK TO THE FILE OF AO FO R MAKING ASSESSMENT AFRESH. NEEDLESS TO SAY, AO SHALL GIVE REASONABLE O PPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH SET PRINCI PLE OF NATURAL JUSTICE. THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. REVERTING TO THE FACTS OF THE PRESENT CASE, THE ASSESS EE WAS NOT IN POSSESSION OF THE COMPLETION CERTIFICATE AT THE RELEVANT POINT OF TIME WHEN THE PROCEEDINGS WERE GOING ON BEFORE THE REVENUE AUTHO RITIES. HOWEVER, AT PRESENT THE ASSESSEE HAS FILED COMPLETION CERTIFICATE BE FORE US AND HAS PLEADED THAT IN VIEW OF EARLIER DECISION OF THE PUNE BENCH OF THE TRIBUNAL AS CITED HEREIN ABOVE, THE MATTER MAY BE RESTORED BACK TO THE FILE OF ASSESSING OFFICER FOR PROPER ADJUDICATION IN THE INTEREST OF JUSTICE. 7. IN VIEW OF THE MATTER, WE SET ASIDE THE ORDER OF THE LD. CIT(APPEALS) AND RESTORE THE MATTER BACK TO THE FILE OF ASSESSING OFFICER TO ADJUDICATE THE ISSUE AFTER CONSIDERING THE COMPLETION CERTIFICATE WHICH IS NOW IN POSSESSION OF THE ASSESSEE AND AS PER LAW AFTER PROVIDING REASONABLE OPPORTUN ITY OF HEARING TO THE ASSESSEE. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURP OSES. ORDER PRONOUNCED ON 30 TH DAY OF APRIL, 2019. SD/- SD/- ANIL CHATURVEDI PA RTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER / PUNE; / DATED : 30 TH APRIL, 2019. SB 5 ITA NO.142 /PUN/2017 A.Y.2012-13 !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS)-12, PUNE. 4. THE PR. CIT, CENTRAL, NAGPUR. 5. '#$ %%&' , ( &' , )*+ , / DR, ITAT, B BENCH, PUNE. 6. $,- ./ / GUARD FILE. // TRUE COPY // (0 / BY ORDER, %1 &+ / PRIVATE SECRETARY ( &' , / ITAT, PUNE. 6 ITA NO.142 /PUN/2017 A.Y.2012-13 DATE 1 DRAFT DICTATED ON 30 .0 4 .2019 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 30 .0 4 .201 9 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER