M/s. S.K. Promoters and Developers, Pune V. Income-tax Officer, Pune

ITA 1551/PUN/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9819 (ITAT-PUNE)
• Duration Of Justice: 11 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 06-09-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 02-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANN KAPTHUAMA
• Assessee Lawyers: R G NAHAR
• Section: 143(3); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO. 1550 AND 1551/PN/2011 (ASSESSMENT YEARS: 2003-04 TO 2004-05) M/S. S.K. PROMOTERS & DEVELOPERS AHINSA APARTMENT, 768/18 DECCAN GYMKHANA, PUNE-411 004 PAN AAWFS 4391 Q .. APPELLANT VS. I.T.O. WARD 1(3) PUNE RESPONDENT APPELLANT BY : SHRI R.G. NAHAR RESPONDENT BY : SMT. ANN KAPTHUAMA DATE OF HEARING: 26-11-2012 DATE OF PRONOUNCEMENT: 27-11-2012 ORDER PER G.S. PANNU, A.M.: THESE TWO APPEALS BY THE ASSESSEE ARE DIRECTED AGA INST SEPARATE ORDERS OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-I PUNE, DATED 28-2-2011 WHICH, IN TURN, H AVE ARISEN FROM ORDERS DATED 13-12-2010 AND 30-12-2009 PASSED BY THE ASSESSING OFFICER, UNDER SECTION 143(3) R.W. S. 147 OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT) PERTAI NING TO A.YS 2003-04 AND 2004-05. 2. IN BOTH THESE APPEALS, THE SOLITARY ISSUE RELATE S TO ASSESSEES CLAIM FOR DEDUCTION U/S 80-IB(10) OF THE ACT IN RELATION TO PROFITS EARNED FROM THE ACTIVITY OF DEV ELOPING AND BUILDING A HOUSING PROJECT. IT WAS A COMMON POINT BETWEEN THE PARTIES THAT THE FACTS AND CIRCUMSTANCES RELATI NG TO THE CONTROVERSY IN BOTH THESE YEARS ARE IDENTICAL AND T HEREFORE, 2 ITA NO. 1550 AND 1551/PN/2011 S.K. PROMOTERS & BUILDERS A.Y. 2003-04 AND 2004-05 WE MAY REFER TO THE DETAILS RELATING TO THE A.Y. 20 03-04 IN ORDER TO APPRECIATE THE CONTROVERSY. 3. IN BRIEF, THE FACTS ARE THAT THE ASSESSEE IS A P ARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF PROMOTERS AND BUILD ERS. FOR THE A.Y. 2003-04 IT FILED ITS RETURN OF INCOME ON 3 0-11-2003 DECLARING TOTAL INCOME AT RS. NIL WHICH, INTER ALIA , INCLUDED A CLAIM FOR DEDUCTION U/S 80-IB(10) OF THE ACT OF RS. 2,33,75,703/- WHICH WAS REVISED DURING THE COURSE O F ASSESSMENT PROCEEDINGS TO RS. 1,76,76,061/- WHICH W AS ALLOWED DURING THE ASSESSMENT PROCEEDINGS U/S 143(3 ) OF THE ACT ON 24-3-2006 IN RELATION TO PROFITS EARNED FROM DEVELOPING AND BUILDING A HOUSING PROJECT NAMED PRATHAMESH NAGARI. SUBSEQUENTLY, THE ASSESSING OFFICER FORMED A BELIEF THAT THE DEDUCTION U/S 80-IB(10) OF THE ACT HAS BEEN WRONGLY ALLOWED AND THEREFORE, HE ISSUED A NOTICE U/S 148 OF THE ACT ON 29-3-2009 REOPENING THE ASSES SMENT IN ORDER TO TAX THE ESCAPED INCOME. IN THE SUBSEQUE NT ASSESSMENT FINALIZED U/S 143(3) READ WITH SEC. 147 DATED 30-12-2009, THE ASSESSING OFFICER HAS DENIED THE CL AIM OF DEDUCTION U/S 80-IB(10) OF THE ACT. 4. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT FACTS AND CIRCUMSTANCES FOR THE YEAR S UNDER CONSIDERATION ARE IDENTICAL TO THOSE FOR A.Y. 2005- 06, 2006- 07 AND 2007-08 WHICH WAS THE SUBJECT MATTER OF CONSIDERATION BEFORE US IN ITA NO. 1552 TO 1554/PN/ 2011 AND VIDE OUR ORDER OF EVEN DATE, WE HAVE DECIDED TH E ISSUE 3 ITA NO. 1550 AND 1551/PN/2011 S.K. PROMOTERS & BUILDERS A.Y. 2003-04 AND 2004-05 IN FAVOUR OF THE ASSESSEE. APPLYING THE PARITY OF R EASONING GIVEN IN THE SAID ORDER, THE GROUNDS OF APPEAL FOR THE YEARS UNDER CONSIDERATION ARE DECIDED IN FAVOUR OF THE AS SESSEE. 5. FOR SIMILAR REASONS, THE APPEAL FOR A.Y. 2004-05 IS ALSO DECIDED IN FAVOUR OF THE ASSESSEE. 6. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED. DECISION PRONOUNCED IN THE OPEN COURT ON 27 TH NOVEMBER 2012. SD/- SD/- (R.S. PADVEKAR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 27 TH NOVEMBER 2012 ANKAM COPY TO:- 1. ASSESSEE 2. DEPARTMENT 3. THE CIT (A)-III PUNE 4. THE CIT- III PUNE 5. THE DEPARTMENTAL REPRESENTATIVE, A BENCH, I.T.A.T., PUNE. BY ORDER //TRUE COPY// SR. P.S. I.T.A.T., PUNE