M/s Ankit Enterprises, Pune V. ITO WARD 2(2), Pune, Pune

ITA 156/PUN/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9788 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-11-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 21-11-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 04-02-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MUKESH VERMA
• Assessee Lawyers: SUNIL PATHAK
• Keywords: Opportunity of being heard; Additional evidence
• Section: 80IB

Judgement Text

1 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. 156/PN/2011 (ASSESSMENT YEAR 2004-05) ANKIT ENTERPRISES, 2 ND FLOOR, CITY POINT, 17 BOAT CLUB ROAD, PUNE 411 001 PAN NO. AAFFA 1172N .. APPELLANT VS. INCOME TAX OFFICER, WARD-2,(2), PUNE .. RESPONDENT ITA NO. 172/PN/2011 (ASSESSMENT YEAR 2004-05) DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1(1), PUNE .. APPELLANT VS. ANKIT ENTERPRISES, 2 ND FLOOR, CITY POINT, DHOLE PATIL ROAD, PUNE 411 001. PAN NO. AAFFA 1172N .. RESPONDENT ASSESSEE BY : SRI SUNIL PATHAK & NIKHIL PATHAK DEPARTMENT BY : SRI MUKESH VERMA DATE OF HEARING : 21-11-2012 DATE OF PRONOUNCEMENT : 23-11-2012 ORDER PER R.K. PANDA, AM : THE ABOVE CROSS APPEALS FILED BY THE ASSESSEE AND THE REVENUE ARE DIRECTED AGAINST THE ORDER DATED 30-11-2010 OF THE CIT(A)-II , PUNE RELATING TO ASSESSMENT YEAR 2004-05. FOR THE SAKE OF CONVENIENCE, THESE W ERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER. ITA NO.156/PN/2011 (BY ASSESSEE) : 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS A BUILDER AND DEVELOPER AND FILED ITS RETURN OF INCOME ON 29-10-2004 DECLARING NIL INCOME. THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS NOTED THAT THE ASSESSEE HAS SHOWN SALES AT RS.17,87,87,800/- AND AFTER DEBITING VARIOUS EXPENS ES HAD SHOWN BUSINESS PROFIT OF RS.4,10,79,796/- WHICH HAS BEEN CLAIMED AS EXEMPT U /S.80IB(10). HE NOTED THAT 2 DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE HA S CARRIED OUT THE FOLLOWING PROJECTS : S.NO. NAME AND ADDRESS OF THE PROJECT DATE OF APPROVAL BY LOCAL AUTHORITIES DATE OF COMPLETION OF HOUSING PROJECT SIZE OF PLOT OF LAND 1 MAESTROS S.NO.60/7,WANOWRIE, PUNE (BUILDING, G.H.I) 07/09/1999 26/03/2003 (G AND H) 5732 (SQMTR.) 61700 SQ.FT. 2 MISTRY MOOR S.NO.13/1/1, UNDRI, PUNE 06/05/1999 REFER NOTE 5400 SQ.MTR. 3 ROSE PARADE S.NO.18(PART)/21(PART) KONDHWA KHURD, PUNE 29/06/2001 15/04/2004 (BLDG. C5, C4, C3, B1 (PART) & ROW HOUSE (PART) 4.14 ACRES 4 LAPIZ LAZULI FP.411, PLOT B 414+415, PLOT B, KOREGAON PARK, PUNE 14/12/2001 31/12/2003 14523.05 SQ.MTR. 3. SO FAR AS THE MAESTROS PROJECT IS CONCERNED TH E AO OBSERVED THAT THE ASSESSEE HAS SOLD OUT TWO FLATS AND THE SALE CONSID ERATION IS SHOWN AT RS.30,95,003/-. HE NOTED THAT DURING THE ASSESSMEN T YEAR 2001-02 THE CLAIM OF DEDUCTION U/S.80IB(10) WAS DENIED TO THE ASSESSEE D UE TO THE VARIOUS REASONS MENTIONED THEREIN. FURTHER, DURING THE COURSE OF A SSESSMENT PROCEEDINGS FOR A.Y. 2003-04 IT WAS NOTICED THAT THE BUILT UP AREA OF TW O FLATS I.E. A & B WAS MORE THAN 1500 SQ.FT. WHICH WAS CONFIRMED BY ONE OF THE FLAT OWNER SRI SAJU NANWANI WHOSE STATEMENT WAS RECORDED DURING THE COURSE OF SURVEY CONDUCTED ON 16-12-2003. FOLLOWING THE SAME REASONINGS FOR EARLIER YEAR THE AO DISALLOWED THE CLAIM OF DEDUCTION U/S.80IB(10) IN CASE OF MAESTROS PROJEC T. 4. SIMILARLY THE AO FOLLOWING HIS ORDER FOR A.Y. 20 03-04 DISALLOWED THE CLAIM OF DEDUCTION U/S.80IB(10) AMOUNTING TO RS.20,95,80 6/- IN CASE OF MISTRY MOOR PROJECT. 5. SO FAR AS THE THIRD PROJECT OF THE ASSESSEE IS CONCERNED, I.E. ROSE PARADE, THE AO NOTED THAT THE CLAIM IN RESPECT OF THIS PROJ ECT HAS BEEN COMPUTED AT RS.3,14,92,583/-. THE AO DURING THE COURSE OF ASSE SSMENT PROCEEDINGS NOTED THAT 3 THE BUILT UP AREA, AFTER INCLUDING THE AREA OF TERR ACE, EXCEEDED THE PRESCRIBED LIMIT OF 1500 SQ.FT. SINCE SOME OF THE ADJACENT UNITS WER E COMBINED INTO ONE INTEGRATED UNIT HAVING A SINGLE DOOR, SINGLE KITCHEN AND ONE E LECTRICITY METER BEING USED BY ONE FAMILY. THE AO REFERRED TO THE STATEMENT OF 3 PERSONS RECORDED DURING THE COURSE OF ASSESSMENT WHEREIN THEY HAVE STATED THAT THE UNITS PURCHASED BY THEM HAVE BEEN COMBINED HAVING ONE SINGLE ENTRANCE AND U SED BY THEM AS ONE FAMILY. THE AO THEREFORE CAME TO THE CONCLUSION THAT THE BU ILT UP AREA EXCEEDED THE PRESCRIBED LIMIT OF 1500 SQ.FT. AND ACCORDINGLY DIS ALLOWED THE CLAIM OF DEDUCTION U/S.80IB(10) FOR THIS PROJECT ALSO. 6. AS REGARDS THE FOURTH PROJECT, I.E. LAPIZ LAZUL I IS CONCERNED THE AO NOTED THAT DURING THE YEAR UNDER CONSIDERATION, THE ASSES SEE HAS SOLD OUT 22 FLATS NUMBERED AS A & B TO 11 PERSONS AND THE SALES CONSI DERATION IS SHOWN AT RS.3,22,06,880/- WHICH HAS BEEN CLUBBED WITH THE CO NSOLIDATED SALES. THE AO REFERRED TO THE STATEMENT OF SOME OF THE FLAT OWNER S WHO STATED THAT AT THE TIME OF BOOKING ITSELF, TWO FLATS WERE COMBINED TO ONE SING LE FLAT BY THE BUILDER. THE AO NOTED THAT THE BUILT UP AREA OF SOME OF THE FLATS A FTER COMBINING TWO FLATS INTO ONE FLAT EXCEED 1500 SQ.FT. AND THE FLATS HAVE SINGLE E LECTRICITY METER AND SINGLE KITCHEN, SINGLE ENTRANCE ETC. REJECTING THE VARIOUS EXPLANA TIONS GIVEN BY THE ASSESSEE THE AO DISALLOWED THE CLAIM OF DEDUCTION U/S.80IB(10) I N RESPECT OF LAPIZ LAZULI PROJECT. THUS, IN EFFECT, THE AO DISALLOWED THE EN TIRE CLAIM OF DEDUCTION U/S.80IB(10) AT RS.4,20,79,790/-. 7. IN APPEAL THE LEARNED CIT(A) FOLLOWING THE DECIS ION OF HIS PREDECESSOR FOR A.Y. 2003-04 ALLOWED THE CLAIM OF DEDUCTION U/S.80I B(10) IN RESPECT OF THE TWO PROJECTS NAMELY MAESTROS AND MISTRY MOOR. SO F AR AS THE PROJECT ROSE PARADE IS CONCERNED HE ALSO ALLOWED THE CLAIM OF D EDUCTION U/S.80IB(10) MADE BY THE ASSESSEE BY HOLDING THAT EVEN AFTER 2 UNITS WER E COMBINED TOGETHER THE BUILT UP 4 AREA OF THE FLATS/ROW HOUSES IS LESS THAN 1500 SQ.F T. AFTER EXCLUDING THE TERRACE AND BALCONY. HE FURTHER NOTED THAT THE AMENDMENT TO PR OVISIONS OF SECTION 80IB(14) WAS NOT APPLICABLE FOR A.Y. 2004-05 AND SINCE THE B UILT UP AREA OF NONE OF THE COMBINED INTEGRATED ENTITIES WORKED OUT TO MORE THA N 1500 SQ.FT., THEREFORE, THE ASSESSEE IS ENTITLED TO DEDUCTION U/S.80IB(10) IN R ESPECT OF THE PROJECT ROSE PARADE. 8. SO FAR AS THE CLAIM OF DEDUCTION U/S.80IB(10) IN RESPECT OF THE PROJECT LAPIZ LAZULI IS CONCERNED HE REJECTED THE CLAIM OF DEDUC TION U/S.80IB(10) MADE BY THE ASSESSEE ON THE GROUND THAT OUT OF 214 FLATS IN THI S PROJECT ONLY 76 FLATS WERE HAVING BUILT UP AREA OF LESS THAN 1500 SQ.FT. AND THE RE MAINING FLATS HAVE BUILT UP AREA OF MORE THAN 1500 SQ.FT. WHILE DOING SO, HE FURTHER N OTED THAT SOME OF THE FLAT OWNERS IN THEIR STATEMENTS HAVE STATED THAT THE UNITS WERE COMBINED BY THE ASSESSEE FIRM ITSELF, WHO HAS DONE UNIFICATION OF THE 2 UNITS. F URTHER, THE COMBINED FLATS HAVE ONLY ONE SINGLE DOOR, ONE KITCHEN AND ONE ELECTRICI TY METER AND A SINGLE FAMILY WAS LIVING IN THE SAID FLAT. HE, THEREFORE, REJECTED T HE CLAIM OF THE ASSESSEE THAT THE BUILT UP AREA OF THE FLAT IS TO BE CONSIDERED IND EPENDENTLY WITHOUT COMBINING THE TWO ADJOINING FLATS. HE ALSO REJECTED THE REQUEST OF THE ASSESSEE TO ALLOW PROPORTIONATE DEDUCTION IN RESPECT OF THE FLATS WHO SE BUILT UP AREA IS LESS THAN 1500 SQ.FT. 9. AGGRIEVED WITH SUCH PART RELIEF GIVEN BY THE LEA RNED CIT(A) THE ASSESSEE AS WELL AS THE REVENUE ARE IN APPEAL BEFORE US WITH TH E FOLLOWING GROUNDS : GROUNDS BY ASSESSEE : 1. THE LEARNED CIT(A) ERRED IN DISALLOWING THE DED UCTION U/S.80IB(10) IN RESPECT OF THE PROFITS OF THE ASSESSEE FROM LAPIZ LAZULI PROJE CT. 2. THE LEARNED CIT(A) WAS NOT JUSTIFIED IN HOLDING THAT AS A FEW ADJOINING TWO FLATS WERE COMBINED INTO ONE FLAT, FOR THE PURPOSES OF SE CTION 80IB(10), THEY CONSTITUTED ONE UNIT AND THE BUILT UP AREA OF SUCH UNIT HAD EXCEEDE D 1500 SQ.FT. AND ACCORDINGLY, THE DEDUCTION U/S.80IB(10) WAS NOT AVAILABLE. 5 3. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT EVE N THOUGH A FEW ADJOINING FLATS WERE COMBINED INTO ONE FLAT, AS PER THE SANCTIONED BUILDING PLAN AND FOR THE PURPOSES OF SECTION 80IB(10), THEY CONSTITUTED SEPARATE UNIT. 4. WITHOUT PREJUDICE TO THE ABOVE GROUNDS, THE ASSE SSEE SUBMITS THAT THE LEARNED CIT(A) OUGHT TO HAVE GRANTED PROPORTIONATE DEDUCTIO N IN RESPECT OF THE FLATS WHOSE BUILT UP AREA WAS LESS THAN 1500 SQ.FT. GROUNDS BY REVENUE : 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE DISALLOWANCE OF DEDUCTION CLAIMED BY T HE ASSESSEE U/S.80IB(10) IN RESPECT OF THREE PROJECTS VIZ., MAESTROE, MISTRY MOOR AND ROSE PARADE. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) HAS ERRED IN NOT APPRECIATING THE FACT THAT THE PROJECT MAESTRO E WAS INITIALLY APPROVED BY THE LOCAL AUTHORITY ON 29-09-2005 AND COMMENCED BEFORE 01-10- 1998, WHEREAS, FOR BEING ELIGIBLE FOR THE CLAIM OF DEDUCTION NU/S.80IB(10), THE PROJE CT WAS REQUIRED TO BE FIRST APPROVED AND COMMENCED AFTER 01-10-1998 IN ACCORDANCE WITH E XPLANATION (I) TO THE SAID SECTION. 3. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) HAS ERRED IN NOT APPRECIATING THE FACT THAT THE PROJECT MAESTRO E WAS CONSISTING OF UNITS EXCEEDING THE PRESCRIBED THRESHOLD BUILD-UP AREA OF 1500 SQ.FT. A S WITNESSED IN BUILDINGS G AND H OF THE SAID PROJECT, WHERE ADJOINING FLATS IN MOST OF THE CASES WERE SOLD TO ONE INDIVIDUAL OR HIS RELATIVE WHICH HAVE BEEN COMBINED, THEREBY EXCE EDING THE PRESCRIBED AREA. 4. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) HAS ERRED IN NOT APPRECIATING THE FACT THAT THE PROJECT MISTRY MOOR WAS INITIALLY APPROVED BY THE LOCAL AUTHORITY ON 29-09-1995 AND COMMENCED BEFORE 01-10-1998, WHEREAS, FOR BEING ELIGIBLE FOR THE CLAIM OF DEDUCTION U/S.80IB(10), T HE PROJECT WAS REQUIRED TO BE FIRST APPROVED AND COMMENCED AFTER 01-10-1995 IN ACCORDAN CE WITH EXPLANATION (I) TO THE SAID SECTION. 5. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) HAS ERRED IN NOT APPRECIATING THE FACT THAT THE PROJECT ROSE PA RADE WAS CONSISTING OF UNITS EXCEEDING THE PRESCRIBED THRESHOLD BUILT-UP AREA OF 1500 SQ.F T. AS EVIDENCED BY THE SPECIFIC STATEMENTS OF FLAT PURCHASERS AS WELL AS THE DEPART MENTAL VALUERS REPORT DATED 05-05- 2004, AND WHICH WAS FURTHER CORROBORATED BY THE COM PLETION CERTIFICATE ISSUED BY THE PMC, WHEREIN THE 14 UNITS CLAIMED BY THE ASSESSEE A RE COUNTED AS 7 ROW HOUSES. 6. THE ORDER OF THE CIT(A) MAY BE VACATED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 10. THE LEARNED COUNSEL FOR THE ASSESSEE WHILE ARGU ING THE CROSS APPEALS AT THE OUTSET REFERRED TO THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2001-02 TO 2003-04 VIDE ITA NO.1146/PN/2010 AND OTH ER CONNECTED APPEALS ORDER DATED 25-06-2012 AND SUBMITTED THAT THE ISSUE RELAT ING TO DEDUCTION U/S.80IB(10) IN RESPECT OF THE PROJECTS MAESTROS AND MISTRY MOOR HAVE BEEN ALLOWED BY THE TRIBUNAL AND THEREFORE THE ISSUE IS COVERED IN FAVO UR OF THE ASSESSEE. SO FAR AS DEDUCTION U/S.80IB(10) RELATING TO THE PROJECT ROS E PARADE IS CONCERNED HE SUBMITTED THAT THE LEARNED CIT(A) AFTER CONSIDERING THE REPORT OF THE DVO HAS 6 GIVEN A CLEAR CUT FINDING THAT EVEN AFTER COMBINING 2 ADJACENT FLATS INTO ONE SINGLE UNIT THE BUILT UP AREA OF NONE OF THE UNITS IS EXCE EDING 1500 SQ.FT. THEREFORE, SINCE NONE OF THE FLATS EXCEED THE MAXIMUM BUILT UP AREA OF 1500 SQ.FT. IN THE PROJECT ROSE PARADE, THEREFORE, DEDUCTION U/S.80IB(10) HA S TO BE ALLOWED. 10.1 SO FAR AS THE PROJECT LAPIZ LAZULI IS CONCE RNED, HE SUBMITTED THAT ALTHOUGH A FEW ADJOINING FLATS WERE COMBINED INTO O NE SINGLE UNIT, HOWEVER, AS PER THE SANCTIONED BUILDING PLAN AND FOR THE PURPOSES O F SECTION 80IB(10) THEY CONSTITUTED SEPARATE UNITS. REFERRING TO PAGE NO.2 9 OF THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2001-02 TO 2003-04 HE SUBMITTED THAT THE TRIBUNAL IN THE SAID ORDER HAS HELD THAT 2 ADJOINING FLATS APPR OVED BY THE LOCAL AUTHORITY AS SEPARATE UNITS AND COMPLETION CERTIFICATE ISSUED AC CORDINGLY CANNOT BE CONSIDERED AS ONE UNIT TO COMPUTE THE BUILT UP AREA FOR THE PU RPOSE OF SECTION 80IB(10) DEDUCTION ONLY BECAUSE THESE 2 FLATS HAVE BEEN COMB INED AS ONE UNIT AS PER THE CONVENIENCE AND INSTRUCTION OF THE BUYER. 11. IN HIS ALTERNATE CONTENTION, THE LEARNED COUNSE L FOR THE ASSESSEE REFERRING TO THE DECISION OF THE TRIBUNAL IN THE CASE OF D.S. KU LKARNI DEVELOPERS LTD. VS. ACIT VIDE ITA NOS. 1428 AND 1429/PN/2008 ORDER DATED 08- 08-2012 FOR A.Y. 2004-05 AND 2005-06 SUBMITTED THAT PROPORTIONATE DEDUCTION HAS TO BE ALLOWED IN RESPECT OF FLATS WHICH CONFIRMED TO BUILT UP AREA PRESCRIBED U /S.80IB(10). SINCE IN THE INSTANT CASE, OUT OF 214 FLATS, 76 FLATS HAVE BUILT UP AREA OF LESS THAN 1500 SQ.FT., THEREFORE, THE ASSESSEE SHOULD BE ALLOWED PROPORTIONATE DEDUCT ION U/S.80IB(10) IN RESPECT OF PROFIT OF THE 76 FLATS. 12. THE LEARNED DR ON THE OTHER HAND HEAVILY RELIED ON THE ORDER OF THE AO. SO FAR AS THE CLAIM OF DEDUCTION U/S.80IB(10) IN RESPE CT OF THE PROJECTS MAESTROS AND MISTRY MOOR ARE CONCERNED HE SUBMITTED THAT THE T RIBUNAL HAS DECIDED THE ISSUE 7 IN FAVOUR OF THE ASSESSEE FOR THE A.Y. 2001-02 TO 2 003-04. THEREFORE, THE SAME VIEW MAY BE TAKEN. HOWEVER, SO FAR AS THE PROJECT ROSE PARADE IS CONCERNED HE SUBMITTED THAT THE LEARNED CIT(A) WITHOUT GIVING AN Y OPPORTUNITY TO THE AO HAS HELD THAT THE BUILT UP AREA OF EACH OF THE COMBINED UNITS IS LESS THAN 1500 SQ.FTS. HE SUBMITTED THAT THE LEARNED CIT(A) HAS NEITHER CA LLED FOR A REMAND REPORT FROM THE AO NOR GAVE AN OPPORTUNITY TO THE AO TO EXPLAIN THAT THE BUILT UP AREA OF THE COMBINED UNITS IS LESS THAN 1500 SQ.FT. THEREFORE, THE MATTER MAY BE RESTORED TO THE FILE OF THE AO FOR THE PURPOSE OF VERIFICATION. 12.1 SO FAR AS THE PROJECT LAPIZ LAZULI IS CONCER NED HE SUBMITTED THAT ADMITTEDLY OUT OF 214 FLATS ONLY 76 FLATS HAVE BUIL T UP AREA OF LESS THAN 1500 SQ.FT. AND THE REMAINING FLATS HAVING BUILT UP AREA OF MOR E THAN 1500 SQ.FT. REFERRING TO THE DECISION OF THE CHENNAI BENCH OF THE TRIBUNAL I N THE CASE OF ACIT VS. VISWAS PROMOTERS PVT. LTD. REPORTED IN (2010) 5 ITR (TRIBU NAL) 449 (CHENNAI) HE SUBMITTED THAT THE TRIBUNAL IN THE SAID DECISION HA S HELD THAT IF SOME OF THE RESIDENTIAL UNITS OF THE PROJECT, COMPRISED AREA EX CEEDING THE PRESCRIBED LIMIT, THE BENEFIT AS PER THE LANGUAGE OF THE SECTION 80IB(10) CANNOT BE EXTENDED TO THE PROJECT. HE ACCORDINGLY SUBMITTED THAT IN VIEW OF THE ABOVE CITED DECISION OF THE CHENNAI BENCH OF THE TRIBUNAL, THE ASSESSEE IS NOT ENTITLED TO ANY DEDUCTION U/S.80IB(10) IN CASE OF THE PROJECT LAPIZ LAZULI. 13. REFERRING TO THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF VANDANA PROPERTIES VIDE ITA NO.3633/2009 AND 4361/2 010 THE LEARNED DR DREW THE ATTENTION OF THE BENCH TO THE FOLLOWING OBSERVA TIONS OF THE HONBLE BOMBAY HIGH COURT : 18. THE EXPRESSION 'HOUSING PROJECT' IS NEITHER DE FINED UNDER SECTION 2 OF THE ACT NOR UNDER SECTION 80IB (10) OF THE ACT. EVEN UNDER THE MUMBAI MUNICIPAL CORPORATION ACT, 1988 AS ALSO UNDER THE DEVELOPMENT CONTROL REGULATI ONS FOR GREATER MUMBAI, 1991, THE EXPRESSION HOUSING PROJECT IS NOT DEFINED. THEREF ORE, THE EXPRESSION 'HOUSING PROJECT' IN SECTION 80IB (10) WOULD HAVE TO BE CONSTRUED AS COM MONLY UNDERSTOOD. 8 19. AS RIGHTLY CONTENDED BY MR.INAMDAR, LEARNED SEN IOR ADVOCATE APPEARING ON BEHALF OF THE ASSESSEE AND MR.MISTRI, LEARNED SENIOR ADVOCATE AND MR.JOSHI, LEARNED ADVOCATE APPEARING ON BEHALF OF THE INTERVENORS, THE EXPRESS ION HOUSING PROJECT IN COMMON PARLANCE WOULD MEAN CONSTRUCTING A BUILDING OR GROU P OF BUILDINGS CONSISTING OF SEVERAL RESIDENTIAL UNITS. IN FACT, THE EXPLANATION IN SECT ION 80IB (10) SUPPORTS THE CONTENTION OF THE ASSESSEE THAT THE APPROVAL GRANTED TO A BUILDIN G PLAN CONSTITUTES APPROVAL GRANTED TO A HOUSING PROJECT. THEREFORE, IT IS CLEAR THAT CONS TRUCTION OF EVEN ONE BUILDING WITH SEVERAL RESIDENTIAL UNITS OF THE SIZE NOT EXCEEDING 1000 SQUARE FEET (E BUILDING IN THE PRESENT CASE) WOULD CONSTITUTE A 'HOUSING PROJECT' UNDER SECTION 80IB (10) OF THE ACT. 26. THE OBJECT OF SECTION 80IB (10) IN GRANTING DED UCTION EQUAL TO ONE HUNDRED PER CENT OF THE PROFITS OF AN UNDERTAKING ARISING FROM DEVELOPING AND CONSTRUCTING A HOUSING PROJECT IS WITH A VIEW TO BOOST THE STOCK OF HOUSES FOR LOWER AND MIDDLE INCOME GROUPS SUBJECT TO FULFILLING THE SPECIFIED CONDITIONS. THE FACT THAT THE MAXIMUM SIZE OF THE RESIDENTIAL UNIT IN A HOUSING PROJECT SITUATED WITH IN THE CITY OF MUMBAI AND DELHI IS RESTRICTED TO 1000 SQUARE FEET CLEARLY SHOWS THAT T HE INTENTION OF THE LEGISLATURE IS TO MAKE AVAILABLE LARGE NUMBER OF MEDIUM SIZE RESIDENTIAL U NITS FOR THE BENEFIT OF THE COMMON MAN. HOWEVER, IN THE ABSENCE OF DEFINING THE EXPRESSION' HOUSING PROJECT' AND IN THE ABSENCE OF SPECIFYING THE SIZE OR THE NUMBER OF HOU SING PROJECTS REQUIRED TO BE CONSTRUCTED ON A PLOT OF LAND HAVING MINIMUM AREA O F ONE ACRE, EVEN ONE HOUSING PROJECT CONTAINING MULTIPLE RESIDENTIAL UNITS OF A SIZE NOT EXCEEDING 1000 SQUARE FEET CONSTRUCTED ON A PLOT OF LAND HAVING MINIMUM A REA OF ONE ACRE WOULD BE ELIGIBLE FOR SECTION 80IB (10) DEDUCTION. HE ACCORDINGLY SUBMITTED THAT THE CLAIM OF PRO-RATA DEDUCTION IN CASE OF THE PROJECT LAPIZ LAZULI SHOULD NOT BE GIVEN TO THE ASSESSEE. 14. THE LEARNED COUNSEL FOR THE ASSESSEE IN HIS REJ OINDER SUBMITTED THAT THE DECISION OF THE CHENNAI BENCH OF THE TRIBUNAL IN TH E CASE OF VISWAS PROMOTERS (SUPRA) HAS BEEN OVERRULED BY THE THIRD MEMBER OF C HENNAI ITAT IN THE CASE OF SANGHVI & DOSHI ENTERPRISE VS. ITO REPORTED IN 131 ITD 151 (TM). THEREFORE, THE SAID DECISION IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. 14.1 SO FAR AS THE DECISION OF THE HONBLE BOMBAY H IGH COURT IN THE CASE OF VANDANA PROPERTIES (SUPRA) IS CONCERNED HE SUBMITTE D THAT THE SAID DECISION IS ALSO NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE SIN CE THE ISSUE THERE WAS NOT ON PRO- RATA DEDUCTION. IT HAS BEEN HELD THAT CONSTRUCTION OF EVEN 1 BUILDING WITH SEVERAL RESIDENTIAL UNITS OF THE SIZE NOT EXCEEDING 1000 SQ .FT. WOULD CONSTITUTE A HOUSING PROJECT U/S.80IB(10) OF THE ACT. IT HAS FURTHER BE EN HELD THAT IN ABSENCE OF DEFINING THE EXPRESSION HOUSING PROJECT EVEN 1 HOUSING PRO JECT CONTAINING MULTIPLE 9 RESIDENTIAL UNITS OF A SIZE NOT EXCEEDING 1000 SQ.F T. CONSTRUCTED ON A PLOT OF LAND HAVING MINIMUM AREA OF 1 ACRE WOULD BE ELIGIBLE FOR DEDUCTION U/S.80IB(10). HE ACCORDINGLY SUBMITTED THAT THE APPEAL FILED BY THE REVENUE HAS TO BE DISMISSED AND PROPORTIONATE DEDUCTION IN RESPECT OF THE PROFIT OF THE PROJECT LAPIZ LAZULI HAS TO BE ALLOWED. 15. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECI SIONS CITED BEFORE US. THE ISSUE INVOLVED IN THE IMPUGNED APPEAL IS REGARDING ALLOWA BILITY OF DEDUCTION U/S.80IB(10) IN RESPECT OF 4 PROJECTS UNDERTAKEN BY THE ASSESSEE DURING THE IMPUGNED A.Y., I.E. PROJECTS MAESTROS, MISTRY MO OR, ROSE PARADE AND LAPIZ LAZULI. SO FAR AS THE DEDUCTION U/S.80IB(1 0) IN RESPECT OF THE PROJECTS MAESTROS AND MISTRY MOOR IS CONCERNED THE ISSUE STANDS DECIDED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE TRIBUNAL IN ASS ESSEES OWN CASE FOR A.Y. 2001- 02 TO 2003-04. SINCE THE LEARNED CIT(A) WHILE ALLO WING THE CLAIM OF THE ASSESSEE IN RESPECT OF THE ABOVE 2 PROJECTS HAS FOLLOWED THE ORDER OF HIS PREDECESSOR FOR A.Y. 2003-04 AND SINCE THE TRIBUNAL HAS DISMISSED T HE APPEAL FILED BY THE REVENUE, THEREFORE, IN ABSENCE OF ANY CONTRARY MATERIAL BROU GHT TO OUR NOTICE AGAINST THE ORDER OF THE TRIBUNAL, WE, RESPECTFULLY FOLLOWING T HE DECISION OF THE TRIBUNAL DISMISS THE GROUNDS RAISED BY THE REVENUE CHALLENGI NG THE ORDER OF THE CIT(A) IN ALLOWING THE CLAIM OF DEDUCTION U/S.80IB(10) IN RES PECT OF THE PROJECTS MAESTROS AND MISTRY MOOR. 15.1 SO FAR AS THE ALLOWABILITY OF CLAIM OF DEDUCTI ON U/S.80IB(10) IN RESPECT OF THE PROJECT ROSE PARADE IS CONCERNED, WE FIND THE DVO IN RESPONSE TO THE REFERENCE MADE BY THE AO HAS SUBMITTED HIS REPORT GIVING THE BUILT UP AREA OF EACH FLAT IN THE PROJECT ROSE PARADE. WE FIND THE LEARNED CIT(A) AFTER CONSIDERING THE REPORT OF 10 THE DVO HAS GIVEN A FACTUAL FINDING THAT THE BUILT UP AREA OF NONE OF THE FLATS IN THE PROJECT ROSE PARADE EXCEEDS 1500 SQ.FT. THE SUBM ISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT EVEN AFTER COMBINING THE 2 AD JACENT FLATS THE BUILT UP AREA OF NONE OF THE FLATS AS DETERMINED BY THE DVO EXCEEDS 1500 SQ.FT. COULD NOT BE CONTROVERTED BY THE LEARNED DR. UNDER THESE CIRCUM STANCES, WE FIND NO INFIRMITY IN THE ORDER OF THE CIT(A) ALLOWING THE CLAIM OF D EDUCTION U/S.80IB(10) IN RESPECT OF THE PROJECT ROSE PARADE. 15.2 SO FAR AS THE ARGUMENT OF THE LEARNED DR THAT NO OPPORTUNITY WAS GIVEN TO THE AO AND THE LEARNED CIT(A) HAS UNILATERALLY ALLO WED THE CLAIM OF THE ASSESSEE ON THE BASIS OF THE SUBMISSIONS MADE BEFORE HIM WE FIND THERE IS NO SUCH GROUND BY THE REVENUE THAT THE LEARNED CIT(A) HAS ACCEPTED ANY ADDITIONAL EVIDENCE IN VIOLATION OF RULE 46A. FURTHER, THE LEARNED CIT(A) HAS CONSIDERED THE REPORT OF THE DVO WHICH HAS BEEN REFERRED TO BY THE AO FOR VE RIFICATION OF THE BUILT UP AREA IN SQ.FT. THEREFORE, WE DO NOT FIND ANY MERIT IN T HE ARGUMENTS OF THE LEARNED DR THAT THE MATTER SHOULD BE RESTORED TO THE FILE OF T HE AO FOR VERIFICATION. THE GROUNDS BY THE REVENUE ARE ACCORDINGLY DISMISSED. 15.3 SO FAR AS THE APPEAL OF THE ASSESSEE IS CONCER NED REQUESTING PRO-RATA DEDUCTION IN CASE OF THE 76 FLATS OUT OF 214 FLATS WHICH HAVE BUILT UP AREA OF LESS THAN 1500 ST.FT. WE FIND THE TRIBUNAL IN THE CASE O F D.S. KULKARNI DEVELOPERS LTD. (SUPRA) FOLLOWING VARIOUS DECISIONS HAS HELD THAT A SSESSEE IS ENTITLED TO PROPORTIONATE DEDUCTION OF THE PROFITS IN RESPECT O F FLATS WHICH HAVE BUILT UP AREA OF LESS THAN 1500 SQ.FT. THE RELEVANT OBSERVATIONS OF THE TRIBUNAL READ AS UNDER : 20. IN THIS BACKGROUND, THE ALTERNATIVE PLEA OF TH E ASSESSEE SPRINGS UP. THE PLEA IS THAT THE DEDUCTION U/S. 80 IB (10) BE DENIED ONLY W ITH RESPECT TO THE UNITS WHICH DO NOT CONFORM TO THE CONDITION CONTAINED IN SEC. 80 IB (1 0)(C ) AND FOR THE BALANCE ELIGIBLE RESIDENTIAL UNITS, THE DEDUCTION SHOULD BE ALLOWED. THE REVENUE HAS OPPOSED THE SAID PLEA ON THE GROUND THAT THE ASSESSEE IS NOT ENTITLE D TO A PROPORTIONATE DEDUCTION U/S. 80 IB (10) OF THE ACT. 11 21. ON THIS ASPECT, WE FIND THAT THE MUMBAI BENCH O F THE TRIBUNAL IN THE CASE OF M/S. EKTA HOUSING PVT. LTD. (SUPRA) HAS UPHELD THE PLEA OF THE ASSESSEE FOR A PROPORTIONATE DEDUCTION U/S. 80 IB (10) OF THE ACT WHERE SOME OF THE RESIDENTIAL UNITS IN THE PROJECT VIOLATED THE CONDITION CONTAINED IN SEC. 80 IB (10) (C ) OF THE ACT. THE MUMBAI BENCH AFTER NOTICING THE PRECEDENTS IN THE CASE OF I) ITO V/S AIR DEVELOPERS, 25 DTR 287 (NAG.); II) DCIT V/S BRIGADE ENTERPRISES PVT. LTD., 14 DTR 371 (BANG.); III) ACIT V/S SHETH DEVELOPERS P. LTD., 33 SOT 277 (MUM.); IV) BENGAL AMBUJA HOUSING DEVELOPMENT LTD. V/S DCI T; V) SJR BUILDERS V/S ACIT, 3 ITR 569 (MUM.) HELD THAT THE ASSESSEE WOULD NOT LOOSE THE EXEMPTI ON U/S. 80 IB (10) IN ENTIRETY WHERE SOME OF THE RESIDENTIAL UNITS WINGS HAD A BUILT- UP AREA IN EXCESS OF THE LIMIT PRESCRIBED IN CLAUSE (C ) OF SEC. 80 IB (10) BUT, IT WOULD BE ENTITLED TO PROPORTIONATE DEDUCTION U/S. 80 IB (10) OF THE ACT WITH REGARD T O THE PROFITS EARNED ON THE ELIGIBLE UNITS.. PARTICULARLY, THE TRIBUNAL ALSO CONSIDERED THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF BRAHMA ASSOCIATES (SUPRA) AND HELD THAT THE SAME DOES NOT ENVISAGE DENIAL OF PROPORTIONATE DEDUCTION IN SUCH CIRCUMSTANCES. THE RELEVANT DISCUSSION, AS CONTAINED IN PARAGRAPHS 8 & 9 OF THE ORDER OF THE TRIBUNAL IN THE CASE OF M/S EKTA HOUSING PVT. LTD. READS AS UNDER : VIII) WE NOW EXAMINE THE APPLICABILITY OF THE DECI SION OF THE HONBLE BOMBAY HIGH COURT IN BRAHMA ASSOCIATES (SUPRA) TO THE FACT S OF THIS CASE. ON A CAREFUL READING OF THIS JUDGMENT, WE FIND THAT NOWHERE IT I S STATED THAT PROPORTIONATE DEDUCTION SHOULD NOT BE ALLOWED, IN CASE CERTAIN RE SIDENTIAL UNITS HAD BUILT UP AREA IN EXCESS OF PRESCRIBED LIMIT OF 1,000 SQ.FT. IN FACT, THIS ISSUE WAS NOT BEFORE THE HONBLE JURISDICTIONAL HIGH COURT. THE QUESTIO NS BEFORE THE HONBLE JURISDICTIONAL HIGH COURT WERE DIFFERENT AND, HENCE THE JUDGMENT CANNOT BE SAID TO BE ON THIS ISSUE. THE ONLY ISSUE BEFORE THE HIG H COURT IS WHEN THERE IS A COMMERCIAL ELEMENT IN A RESIDENTIAL PROJECT, WILL B E ASSESSEE BE DENIED THE ENTIRE EXEMPTION. IN THIS CASE, THE HONBLE HIGH COURT HAS OBSERVED THAT WHEN THE LOCAL AUTHORITY APPROVED A PLAN AS A HOUSING PROJECT OR A RESIDENTIAL CUM COMMERCIAL PROJECT, THE ASSESSEE WOULD BE ENTITLED TO CLAIM FO R DEDUCTION UNDER SECTION 80IB(10) EVEN IF THE PROJECT HAD COMMERCIAL ELEMENT IN EXCESS OF 10%. AT PARAS- 27 AND 28, THE COURT OBSERVED AS FOLLOWS :- 27. THE QUESTION THEN TO BE CONSIDERED IS, WHETHER THE SPECIAL BENCH OF THE TRIBUNAL WAS JUSTIFIED IN HOLDING THAT THE PROJECTS HAVING COMMERCIAL AREA UPTO 10% OF THE BUILT-UP AREA OF THE PLOT ARE ELIGIBLE F OR DEDUCTION UNDER SECTION 80IB(10) ON THE ENTIRE PROJECT UPTO 1.4.2005. ONCE THE BASIC ARGUMENT OF THE REVENUE THAT THE HOUSING PROJECTS WITH COMMERCIAL USER ARE NOT ENTITLED TO SECTION 80IB(10) DEDUCTION IS REJECTED, THEN IN THE ABSENCE OF ANY RESTRICTION IMPOSED UNDER THE ACT, IT WAS NOT OPEN TO THE TRIBUNAL TO H OLD THAT THE PROJECTS APPROVED BY THE LOCAL AUTHORITIES HAVING RESIDENTIAL BUILD INGS WITH COMMERCIAL USER UPTO 10% OF THE PLOT AREA WOULD ALONE BE ENTITLED TO DED UCTION UNDER SECTION 80IB(10). AS NOTED EARLIER, RESTRICTION REGARDING COMMERCIAL USER HAS BEEN IMPOSED FOR THE FIRST TIME BY INTRODUCING CLAUSE (D) TO SECTION 80 IB (10) WITH EFFECT FROM 1.4.2005. THEREFORE, IT WAS NOT OPEN TO THE TRIBUNAL TO HOLD THAT PRIOR TO 1.4.2005, PROJECTS HAVING COMMERCIAL USER UPTO10% OF THE PLOT AREA ALO NE WOULD BE ELIGIBLE FOR SECTION 80IB(10) DEDUCTION. 28. IN THE PRESENT CASE, THOUGH THE COMMERCIAL USER IS MORE THAN 10% OF THE PLOT AREA, THE TRIBUNAL HAS ALLOWED SECTION 80IB(10 ) DEDUCTION IN RESPECT OF 15 RESIDENTIAL BUILDINGS ON THE GROUND THAT THE PROFI TS FROM THESE EXCLUSIVELY RESIDENTIAL BUILDINGS COULD BE DETERMINED ON STAND ALONG BASIS. IN OUR OPINION, THAT WOULD NOT BE PROPER, BECAUSE SECTION 80IB(10) ALLOWS DEDUCTION TO THE ENTIRE PROJECT APPROVED BY THE LOCAL AUTHORITY AND NOT TO A PART OF THE PROJECT. IF THE CONDITIONS SET OUT IN SECTION 80IB(10) ARE SATISFIE D, THEN DEDUCTION IS ALLOWABLE ON THE ENTIRE PROJECT APPROVED BY THE LOCAL AUTHORITY AND THERE IS NO QUESTION OF 12 ALLOWING DEDUCTION TO A PART OF THE PROJECT. IN T HE PRESENT CASE, THE COMMERCIAL USER IS ALLOWED IN ACCORDANCE WITH THE DC RULES AND HENCE THE ASSESSEE WAS ENTITLED TO SECTION 80IB(10) DEDUCTION ON THE ENTIR E PROJECT APPROVED BY THE LOCAL AUTHORITY. HOWEVER, THE ASSESSEE HAS NOT CHALLENGE D THE DECISION OF THE TRIBUNAL IN RESTRICTING THE DEDUCTION TO A PART OF THE PROJE CT. THEREFORE, WHILE HOLDING THAT IN LAW, THE ASSESSEE WAS ENTITLED TO SECTION 80IB(1 0) DEDUCTION ON THE PROFITS OF THE ENTIRE PROJECT, IN THE FACTS OF THE PRESENT CAS E, SINCE THE ASSESSEE HAS NOT CHALLENGED THE DECISION OF THE TRIBUNAL, WE ARE NOT INCLINED TO DISTURB TO DISTURB THE DECISION OF THE TRIBUNAL IN RESTRICTING THE SE CTION 80IB(10) DEDUCTION ONLY IN RESPECT OF THE PROFITS DERIVED FROM 15 RESIDENTIAL BUILDINGS. IX) THUS, IT COULD BE SEEN THAT THE HONBLE HIGH COURT DO NOT APPROVE THE FINDINGS OF THE TRIBUNAL THAT A RESIDENTIAL BUILDING WITH CO MMERCIAL USER UP TO 10% OF THE PLOT AREA WOULD ALONE BE ENTITLED TO DEDUCTION UNDER SEC TION 80IB(10). THE ISSUE THAT, IN CASE WHERE CERTAIN RESIDENTIAL UNITS ARE OF A BUILT UP A REA IN EXCESS OF THE PRESCRIBED LIMIT OF 1,000 SQ.FT. IN RESIDENTIAL PROJECT, THIS WOULD RES ULT IN THE ENTIRE EXEMPTION BEING LOST, OR WHETHER THE ASSESSEE WOULD BE ENTITLED TO A PROPORT IONATE DEDUCTION WAS NOT BEFORE THE HIGH COURT. THUS, IN OUR OPINION, THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN BRAHMA ASSOCIATES (SUPRA) DOES NOT COME TO THE RESC UE OF THE REVENUE. 22. FOLLOWING THE AFORESAID PRECEDENT, WE, THEREFOR E, HOLD THAT MERELY BECAUSE THE ASSESSEE HAS VIOLATED THE CONDITION U/S. 80 IB(10)( C ) IN RELATION TO THE FLATS ON THE 11 TH FLOOR, THE DEDUCTION U/S. 80 IB(10) CANNOT BE DENIE D IN ITS ENTIRETY, BUT, THE DENIAL SHALL BE LIMITED TO THE PROFITS IN RESPECT OF THE FLATS O N THE 11 TH FLOOR ALONE. FOR THE BALANCE OF THE RESIDENTIAL UNITS, THE PLEA OF THE ASSESSEE FOR DEDUCTION U/S. 80 IB(10) OF THE ACT IS JUSTIFIED, AND THE ASSESSEE SUCCEEDS ON THIS ASPECT . 16. RESPECTFULLY FOLLOWING THE DECISION OF THE TRIB UNAL IN THE CASE OF D.S. KULKARNI DEVELOPERS LTD. (SUPRA) WE HOLD THAT THE A SSESSEE IS ENTITLED TO PROPORTIONATE DEDUCTION IN RESPECT OF THE FLATS WHI CH HAVE BUILT UP AREA OF LESS THAN 1500 SQ.FT. WE ACCORDINGLY REMIT BACK THE MATTER T O THE FILE OF THE AO WITH THE DIRECTION TO CALCULATE THE PROPORTIONATE DEDUCTION AND ALLOW THE DEDUCTION U/S.80IB(10) ON SUCH PROPORTIONATE PROFIT. NEEDLES S TO SAY, THE AO SHALL GIVE DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE WHILE DE TERMINING SUCH PROPORTIONATE DEDUCTION. 17. SO FAR AS THE DECISIONS RELIED ON BY THE LEARNE D DR WE FIND THOSE ARE DISTINGUISHABLE AND NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. AS REGARDS THE DECISION OF THE CHENNAI BENCH OF THE TRIBUNAL IN TH E CASE OF VISWAS PROMOTERS (SUPRA) WE FIND THE CHENNAI BENCH OF THE ITAT (TM) IN THE CASE OF SANGHVI & DOSHI ENTERPRISE (SUPRA) HAS REVERSED THE SAME AND FOLLOWING THE DECISION OF 13 HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. BENGAL AMBUJA HOUSING DEVELOPMENT LTD. VIDE ITA NO.458 OF 2006 ORDER DATE D 5-1-2007 HAS HELD THAT THE ASSESSEE IS ENTITLED TO DEDUCTION U/S.80IB(10) IN R ESPECT OF FLATS HAVING BUILT UP AREA NOT EXCEEDING 1500 SQ.FT. AND NOT ENTITLED TO DEDUCTION IN RESPECT OF THOSE FLATS HAVING THEIR BUILT UP AREA EXCEEDING 1500 SQ.FT. T HEREFORE, THE DECISION OF THE CHENNAI BENCH OF THE TRIBUNAL RELIED ON BY THE LEAR NED DR IS NOT APPLICABLE. 18. SO FAR AS THE DECISION OF THE JURISDICTIONAL HI GH COURT IN THE CASE OF VANDANA PROPERTIES (SUPRA) IS CONCERNED WE FIND THE SAID DE CISION IS ALSO NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE SINCE THE ISSUE THERE WAS NOT OF PRO-RATA DEDUCTION. THE HONBLE HIGH COURT IN THE SAID DECISION HAS HEL D THAT CONSTRUCTION OF EVEN 1 BUILDING WITH SEVERAL RESIDENTIAL UNITS OF THE SIZE NOT EXCEEDING 1000 SQ.FT. WOULD CONSTITUTE A HOUSING PROJECT U/S.80IB(10). WE ACCO RDINGLY HOLD THAT THE DECISIONS RELIED ON BY THE DR ARE DISTINGUISHABLE AND NOT APP LICABLE TO THE FACTS OF THE PRESENT CASE. THUS, THE ASSESSEES GROUND RELATING TO PRO-RATA DEDUCTION IS ALLOWED. 19. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED AND THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. PRONOUNCED IN THE OPEN COURT ON THIS THE 23 RD DAY OF NOVEMBER, 2012. SD/- SD/- (SHAILENDRA KUMAR YADAV) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE DATED: THE 23 RD NOVEMBER 2012 SATISH COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. CIT(A)-II, PUNE 4. THE D.R, A PUNE BENCH 5. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY ITAT, PUNE BENCHES, PUNE