ACIT, CHENNAI V. M/s. Shriram Properties Ltd., CHENNAI

ITA 1467/CHNY/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 64646 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 05-12-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 16-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHAJI P JACOB IRS
• Assessee Lawyers: R SIVARAMAN
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI BEFORE DR. O.K.NARAYANAN, VICE-PRESIDENT AND SHRI V. DURGA RAO, JUDICIAL MEMBER I.T.A. NO. 1467/MDS/2012 ASSESSMENT YEAR : 2005-06 THE ASSISTANT COMMISSIONER OF INCOME-TAX, COMPANY CIRCLE-VI(2), CHENNAI 34. VS. M/S. SHRIRAM PROPERTIES LTD., GREAMS DUGAR 4 TH & 5 TH FLOOR, NO.149, GREAMS ROAD, CHENNAI 600 006. PAN AAFCS5801D (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SHAJI P. JACOB, IRS, ADDL. CIT RESPONDENT BY : SHRI R. SIVARAM AN, ADVOCATE DATE OF HEARING : 5 TH DECEMBER, 2012 DATE OF PRONOUNCEMENT : 14 TH DECEMBER, 2012 O R D E R PER DR.O.K.NARAYANAN, VICE-PRESIDENT THIS APPEAL FILED BY THE REVENUE RELATES TO THE ASSESSMENT YEAR 2005-2006. THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX(APPEALS)-V AT CHENNAI, 2 ITA 1467/2012 DATED 17.4.2012 AND ARISES OUT OF THE ASSESSMENT CO MPLETED UNDER SEC.143(3) OF THE INCOME-TAX ACT, 1961. 2. THE GROUNDS RAISED BY THE REVENUE IN THE PRESENT APPEAL READ AS BELOW : 2.1 THE LEARNED CIT(A) ERRED IN DIRECTING THE ASSESSING OFFICER TO ALLOW DEDUCTION U/S 80IB(10) F OR THOSE FLATS WHERE THE BUILT-UP AREA FALLS BELOW 150 0 SQ.FT. IN THE CASE OF PROJECT SAMURUDDHI. 2.2 IT IS SUBMITTED THAT THE ASSESSEE COMPANY HAD NOT FILED ARCHITECH CERTIFICATE TO SUBSTANTIATE THA T THE FLATS ARE LESS THAN 1500 SQ.FT. AS IN A.Y. 2006-07. 3.1 THE LEARNED CIT(A) ERRED IN DIRECTING THE ASSESSING OFFICER TO GIVE PROPORTIONATE DEDUCTION U /S 80IB AS MANDATED BY THE ITAT, CHENNAI IN THE CASE O F M/S SANGHVI & DOSHI ENTERPRISE (2011) (131 ITD 151) . 3.2 THE LEARNED CIT(A) FAILED TO NOTE THAT THERE I S NO QUESTION OF PROPORTIONATE ALLOWANCE OF CLAIM U/S 80 IB AND IF THE CONDITIONS AS STIPULATED U/S 80IB(10) AR E NOT SATISFIED, NO DEDUCTION CAN BE ALLOWED U/S 80IB OF THE INCOME-TAX ACT. 3 ITA 1467/2012 3.3 THE LEARNED CIT(A) OUGHT TO HAVE SEEN THAT WHE N THE LAW DID NOT PERMIT BUILT-UP AREA OF EACH DWELLI NG UNIT EXCEEDING 1500 SQ.FT. U/S 80IB, THE SAME CANNO T BE INFERRED EITHER. THIS RESTRICTION IS APPLICABLE TO THE ENTIRE PROJECT. 3.4 IT IS SUBMITTED THAT, THE DECISION OF THE ITAT IN THE CASE OF M/S SANGHVI & DOSHI HAS NOT BEEN ACCEPTED BY THE DEPARTMENT AND FURTHER APPEAL TO HIGH COURT HAVE BEEN PREFERRED BY THE DEPARTMENT. 3.5 IT IS ALSO SUBMITTED THAT, HAVING REGARD TO TH E DECISION OF THE ITAT, CHENNAI BENCH IN THE CASE OF VISWAS PROMOTORS P. LTD. (126 ITD 263), THE LEARNED CIT(A) OUGHT TO HAVE UPHELD THE ACTION OF THE ASSESSING OFFICER. 3. WE HEARD SHRI SHAJI P. JACOB, THE LEARNED COMMIS SIONER OF INCOME-TAX APPEARING FOR THE REVENUE AND SHRI R. SIVARAMAN, THE LEARNED COUNSEL APPEARING FOR THE RESPONDENT-AS SESSEE. 4. AS FAR AS DEDUCTION UNDER SEC.80IB(10) IS CONCE RNED, THE COMMISSIONER OF INCOME-TAX(APPEALS) HAS FOLLOWED TH E THIRD 4 ITA 1467/2012 MEMBER ORDER OF THE INCOME-TAX APPELLATE TRIBUNAL, CHENNAI BENCH RENDERED IN THE CASE OF M/S. SANGHVI & DOSHI ENTERPRISE (131 ITD 151). THE SAID DECISION OF THE TRIBUNAL H AS RECENTLY BEEN UPHELD BY THE HONBLE HIGH COURT OF MADRAS IN THE JUDGMENT OF THEIR LORDSHIPS DATED 1.11.2012 IN TAX CASE (APPEAL) NOS. 581 & 582 OF 2011 AND OTHERS. THEREF ORE, AS FAR AS THE ELIGIBILITY OF THE ASSESSEE TO CLAIM DEDUCTI ON UNDER SEC.80IB(10) IS CONCERNED, THE SAME IS NOW SETTLED IN FAVOUR OF THE ASSESSEE. THEREFORE, THOSE GROUNDS RAISED BY T HE REVENUE FAIL. 5. AS FAR AS THE TECHNICAL OBJECTION POINTED OUT BY THE REVENUE THAT THE ASSESSEE HAS NOT FILED THE CERTIFI CATE OF ARCHITECT TO SUBSTANTIATE ITS CLAIM FOR DEDUCTION F OR THE IMPUGNED ASSESSMENT YEAR, WE FIND THAT IT IS ONLY FRIVOLOUS. AS OBSERVED BY THE COMMISSIONER OF INCOME-TAX(APPEALS) WHILE DE ALING WITH THE ASSESSMENT FOR THE SUBSEQUENT ASSESSMENT YEAR 2 006-07, THE ASSESSEE HAS FURNISHED THE REPORT OF THE ARCHIT ECT AND THE SAID REPORT WAS GONE THROUGH BY THE ASSESSING AUTHO RITY AND THE TECHNICAL AND PHYSICAL DETAILS AS CERTIFIED BY THE ARCHITECT WERE ACCEPTED. AS FAR AS BUILDING PROJECT IS CONCERNED, THE CERTIFICATE 5 ITA 1467/2012 OF THE ARCHITECT ISSUED FOR THE SUBSEQUENT YEAR 200 6-07 WILL DEFINITELY SERVE THE PURPOSE FOR THE IMPUGNED ASSES SMENT YEAR, AS WELL. THEREFORE, THIS CONTENTION RAISED BY THE REVENUE DOES NOT SUCCEED. 6. IN RESULT, THIS APPEAL FILED BY THE REVENUE IS D ISMISSED. ORDER PRONOUNCED ON FRIDAY, THE 14 TH OF DECEMBER, 2012 AT CHENNAI. SD/- SD/- (V.DURGA RAO) (DR. O.K.NARAYANAN) JUDICIAL MEMBER VICE-PRESIDENT CHENNAI, DATED, THE 14 DECEMBER, 2012. MPO* COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR 6. GF.