Income-tax Officer, V. M/s. Sai Samarth Construction, Pune

ITA 1752/PUN/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1160 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 27-11-2018
• Assessment Year: 2012-2013
• Appeal Filed On: 17-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMIT DUA
• Assessee Lawyers: NITIN RANDER
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , , . , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI D. KARUNAKARA RAO , AM . / IT A NO. 17 52 /P U N/201 6 / ASSESSMENT YEAR : 20 1 2 - 1 3 THE INCOME TAX OFFICER WARD 8(4), PUNE . / APPELLANT VS. M/S. SAI SAMARTH CONSTRUCTION OFFICE NO.9, UMED BHAVAN, CANARA BUILDING, PIMPRI, PUNE 411018 . / RESPONDENT PAN: ABDFS8798G / APPELLANT BY : SHRI AMIT DU A , JCIT / RESPONDENT BY : SHRI NITIN RANDER / DATE OF HEARING : 2 7 . 1 1 .201 8 / DATE OF PRONOUNCEMENT: 30 . 1 1 .201 8 / ORDER PER SUSHMA CHOWLA, J M : TH E APPEAL FILED BY REVENUE IS AGAINST ORDER OF CIT (A) - 9 , PUNE , DATED 24.05.2016 RELATING TO ASSESSMENT YEAR 20 1 2 - 1 3 AGAINST ORDER PASSED UNDER SECTION 143(3) OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . 2. THE REVENUE HAS RAISED THE FOLLOWING GROUND S OF APPEAL: - 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) WAS CORRECT IN HOLDING THAT THE PROVISIONS OF CLAUSES (E) & (F) OF SECTION 80IB(10) CANNOT BE APP LIED TO TRANSACTIONS CARRIED OUT BEFORE 19.08.2009I.E. BEFORE CLAUSES (E) & (F) WERE INSERTED VIDE FINANCE AC, 2009. IT A NO. 17 52 /P U N/20 1 6 M/S. SAI SAMARTH CONSTRUCTION 2 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) WAS JUSTIFIED IN ALLOWING DEDUCTION U/S 80IB(10) EV EN WHEN THE ASSESSEE HAS VIOLATED THE CONDITIONS OF SECTION 80IB(10) OF THE I.T. ACT, 1961. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) WAS JUSTIFIED BY TREATING THE DATE OF DEVELOPMENT AGREEMENT AS POINT OF TIME OF ALLOTMENT OF RESIDENTIAL UNITS. 3. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE AT THE OUTSET POINTED OUT THAT THE ISSUE RAISED IN THE PRESENT APPEAL IS SQUARELY COVERED BY THE ORDER OF TRIBUNAL IN ASSESSEES OWN CASE RELATING TO ASSESSMENT YEAR 2010 - 11, WHEREIN THE TRIBUNAL IN CROSS APPEALS IN ITA NOS.990/PN/2014 & 1014/PN/2014, VIDE ORDER DATED 15.02.2016 HAS ALLOWED PROPORTIONATE DEDUCTION CLAIMED UNDER SECTION 80IB(10) OF THE ACT ON ELIGIBLE UNITS OF HOUSING PROJECT. 4. THE LEARNED DEPAR TMENTAL REPRESENTATIVE FOR THE REVENUE PLACED RELIANCE ON THE ORDER OF ASSESSING OFFICER. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. BRIEFLY, IN THE FACTS OF THE CASE, THE ASSESSEE HAD CLAIMED DEDUCTION UNDER SECTION 80IB(10) OF THE A CT WHICH WAS DENIED TO THE ASSESSEE ON ACCOUNT OF TWO FLATS IN THE NAME OF SHRI DEVERAM Y KATE AND THREE FLATS IN WING - I IN THE NAME OF SHRI INDER KRIPALANI HAVING SALEABLE AREA MORE THAN 1500 SQ.FT. THE ASSESSING OFFICER CONSEQUENTLY, DENIED THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT, IN TURN, APPLYING THE RATIO OF PRECEDING ASSESSMENT YEAR 2010 - 11. THE CIT(A) NOTED THAT THE ISSUE STANDS COVERED BY THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE RELATING TO ASSESSMENT YEAR 2010 - 11, WHER EIN IT WAS HELD THAT CLAUSES (E) & (F) OF SECTION 80IB(10) OF THE ACT WERE INTRODUCED ON 07.06.2009 AND THE BILL WAS PASSED BY THE PARLIAMENT ON 19.08.2009 I.E. AFTER IT A NO. 17 52 /P U N/20 1 6 M/S. SAI SAMARTH CONSTRUCTION 3 THE DATE OF EXECUTION OF AGREEMENT TO SELL BETWEEN THE PARTIES AND HENCE THE SAID PROVISI ONS WERE NOT APPLICABLE. THE RELEVANT FINDINGS OF THE TRIBUNAL ARE REPRODUCED BY THE CIT(A) UNDER PARA 5.3 AT PAGES 12 TO 14 OF THE APPELLATE ORDER. THE CIT(A) FOLLOWING THE DICTATE OF THE TRIBUNAL HAS ALLOWED THE CLAIM OF ASSESSEE. 6. WE FIND THAT THE ISSUE IN THE PRESENT APPEAL STANDS COVERED BY THE ORDER OF TRIBUNAL AND CONSEQUENTLY HOLD THAT IN THE YEAR UNDER CONSIDERATION I.E. ASSESSMENT YEAR 2012 - 13, THE ASSESSEE HAS CLAIMED THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IN RESPECT OF THE SAME PRO JECT AND FOLLOWING THE SAME PARITY OF REASONING AS IN ASSESSMENT YEAR 2010 - 11, THE ASSESSEE IS ENTITLED TO CLAIM THE PROPORTIONATE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. THE FINDINGS OF THE TRIBUNAL ARE REPRODUCED IN THE ORDER OF CIT(A) UNDER PARA 5 .3 AT PAGES 12 TO 14. FOR THE SAKE OF BREVITY, THE SAME ARE NOT BEING REPRODUCED, BUT THE SAME ARE REFERRED TO, FOR ADJUDICATING THE ISSUE. HENCE, THE GROUNDS OF APPEAL RAISED BY REVENUE ARE DISMISSED. 7 . IN THE RESULT, APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED ON THIS 30 TH DAY OF NOVEMBER , 201 8 . SD/ - SD/ - ( D.KARUNAKARA RAO ) (SUSHMA CHOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 30 TH NOVEMBER , 201 8 . GCVSR IT A NO. 17 52 /P U N/20 1 6 M/S. SAI SAMARTH CONSTRUCTION 4 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT(A) - 9 , PUNE ; 4. THE PR. CIT - 5 , PUNE ; 5. 6. , , / DR A , ITAT, PUNE ; / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE