Deputy Commissioner of Income-tax, Circle - 5, Pune V. Sudhir Kantilal Bothara, Pune

ITA 1777/PUN/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 5294 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 21-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO. 1777 /P U N/201 7 / ASSESSMENT YEAR : 20 1 3 - 1 4 THE DY . COMMISSIONER OF INCOME TAX, CIRCLE - 5 , PUNE . / APPELLANT VS. SHRI SUDHIR KANTILAL BOTHARA, LANDMARK CENTRE, PUNE - SATARA ROAD, PARVATI, PUNE 411009 . / RESPONDENT PAN: A BCPB6444J / APPELLANT BY : SHRI A JAY MODI / RESPONDENT BY : SHRI RAJIV THAKKAR / DATE OF HEARING : 2 6 . 0 7 .201 8 / DATE OF PRONOUNCEMENT: 30 . 0 7 .201 8 / ORDER PER SUSHMA CHOWLA, J M : THE APPEAL FILED BY REVENUE IS AGAINST ORDER OF CIT (A) - 4 , PUNE , DATED 28 . 0 2 .20 1 7 RELATING TO ASSESSMENT YEAR 20 1 3 - 1 4 AGAINST ORDER PASSED UNDER SECTION 143(3) OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. COMMISSIONER OF INCOME - TAX (APPEALS) HAS ERRED IN DIRECTING THE ITA NO. 1777 /P U N/20 1 7 SHRI SUDHIR K. BOTHARA 2 ASSESSING OFFICER TO DELETE THE ADDITION OF RS.65, 73,910/ - ON ACCOUNT OF DEDUCTION U/S 80IB(10) OF THE ACT, AS SIZE OF THE PLOT AREA WAS LESS THAN ONE ACRE WHICH IS ONE OF THE REQUIREMENT FOR ALLOWING THE CLAIM OF DEDUCTION U/S 80IB(10). 2. FOR THIS AND SUCH OTHER REASONS AS MAY BE URGED AT THE TIME OF H EARING, THE ORDER OF THE CIT(A) MAY BE VACATED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 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 IN ITA NO.1317/PUN/2016, RELATING TO ASSESSMENT YEAR 2012 - 13, ORDER DATED 11.04.2018. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE PLACED RELIANCE ON THE ORDER OF ASSESSING OFFICER. 5. WE HAVE HEARD THE RI VAL CONTENTIONS AND PERUSED THE RECORD. THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF PROMOTERS & BUILDERS. THE ASSESSEE HAD FILED THE RETURN OF INCOME DECLARING TOTAL INCOME OF 30,19,440/ - . DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAD CARRIED OUT RESIDENTIAL HOUSING PROJECT NAMELY SWAGAT ENCLAVE, AT AMBE GAON KHURD, JAMBHULWADI, PUNE AND CLAIMED DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. THE ASSESSING OFFICER RELYING ON EARLIER ASSESSMENT YEARS HAD REJECTED THE CLAIM OF ASSESSEE ON THE GROUND THAT THE SIZE OF THE PLOT AREA IS LESS THAN ONE ACRE, WHICH WAS THE REQUIREMENT FOR ALLOWING THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. 6. THE CIT(A) ALLOWED THE CLAIM OF ASSESSEE RELYING ON THE ORDER OF HIS PREDECESSOR IN ASSESSEES OWN CASE REL ATING TO ASSESSMENT YEAR 2009 - 10. 7. THE REVENUE IS IN APPEAL AGAINST THE ORDER OF CIT(A). ITA NO. 1777 /P U N/20 1 7 SHRI SUDHIR K. BOTHARA 3 8. WE FIND THAT THE PUNE BENCH OF TRIBUNAL IN ASSESSEES OWN CASE VIDE ORDER DATED (SUPRA) HAS UPHELD THE ORDER OF CIT(A). THE RELEVANT FINDINGS OF THE TRIBUNAL A RE AS UNDER: - 7. WE HEARD BOTH THE PARTIES, PERUSED THE ORDERS OF THE REVENUE ON THIS ISSUE. IT IS UNDISPUTED FACT THAT THE SOLITARY REASON FOR DENIAL OF CLAIM OF DEDUCTION U/S.80IB(10) OF THE ACT BY THE AO IS WITH REGARD TO FULFILMENT OF THE CONDITIONS RELATING TO AREA OF PLOT OF ONE ACRE. AO EXCLUDED CERTAIN AREAS AS MENTIONED ABOVE FOR BRINGING DOWN TO THE AREA BELOW ONE ACRE AND THEREBY DENIED THE CLAIM OF THE ASSESSEE. FOR THE SAKE OF COMPLETENESS, WE PROCEED TO EXTRACT PARA NOS.5 & 5.1 OF THE ORD ER OF CIT(A) AS FOLLOWS : 5.1 I HAVE GONE THROUGH THE GROUNDS OF APPEAL, STATEMENT OF FACTS AND SUBMISSION FILED BY THE ASSESSEE AS WELL AS CONTENTS OF THE ASSESSMENT ORDER. THE VARIOUS CASE LAWS RELIED UPON BY THE LD. COUNSEL HAVE BEEN PERUSED. IN THE AFORESAID CASES, THE HONBLE ITAT HAS HELD THAT OPEN SPACE, TRANSFORMER AND AMENITY SPACE SHOULD BE CONSIDERED FOR THE PURPOSE OF COMPUTATION OF SIZE OF THE PLOT ON WHICH THE HOUSING PROJECT IS CONSTRUCTION U/S.80IB(10) OF THE ACT. FURTHER, IT IS PERTINEN T TO NOTE THAT THE APPELLANT CLAIMED DEDUCTION U/S.80IB(10) FOR THE FIRST TIME IN THE ASST. YR. 2009 - 10 AND THE SAME WAS DISALLOWED BY THE A.O. AGGRIEVED AGAINST THE SAME, HE PREFERRED APPEAL BEFORE CIT(A) - 4, PUNE. THE APPEAL HAS BEEN DECIDED IN THE FAVO UR OF THE APPELLANT VIDE APPELLATE ORDER NO.PN/CIT(A) - 4/ACIT/DCIT, CIRCLE - 11(2)/147/2011 - 12/298, DATED 30 - 12 - 2015 FOLLOWING THE AFORESAID DECISIONS OF HONBLE JURISDICTIONAL TRIBUNAL BY MAKING FOLLOWING OBSERVATIONS : 5.1 IN THE LIGHT OF THE ABOVE AND RES PECTFULLY FOLLOWING THE DECISIONS OF THE HONBLE ITAT, PUNE IN THE ABOVEMENTIONED CASES, I AM IN AGREEMENT WITH THE STAND TAKEN BY CIT(A) - 4 IN A.Y. 2009 - 10 IN THE ASSESSEES OWN CASE. THE AO IS ACCORDINGLY DIRECTED TO DELETE THE DISALLOWANCE OF RS.5,31, 73,220/ - CLAIMED U/S.80IB(10) OF THE ACT. FROM THE ABOVE, IT IS EVIDENT THAT THE CIT(A) RELIED HEAVILY ON THE DECISIONS OF COORDINATE BENCH OF THE TRIBUNAL INCLUDING THAT OF BUNTY BUILDERS (SUPRA). WE FIND THE DECISION OF THE TRIBUNAL IN THE CASE OF BUN TY BUILDERS (SUPRA) IS RELEVANT FOR THE PROPOSITION THAT AREA OF AMENITY SPACE IS COMPULSORILY REQUIRED TO BE HANDED OVER THE MUNICIPAL AUTHORITIES BY THE ASSESSEE AND THEREFORE, THE SAME CONSTITUTES AN INTEGRAL PART OF THE HOUSING PROJECT. THE AREA OF CO MMON ROADS, AREA OF TRANSFORMER ETC. OBVIOUSLY FALL WITHIN THE MEANING OF AMENITY SPACE COMPULSORILY REQUIRED FOR THE HOUSING PROJECT. FURTHER, WE ALSO DO NOT APPRECIATE THE FACT THAT THE REVENUE OFFICERS ARE SELECTIVELY DENYING THE CLAIM OF DEDUCTION U /S.80IB(10) OF THE ACT IN A PARTICULAR ASSESSMENT YEAR WHEN SIMILAR CLAIM IS ALLOWED IN THE HOUSING PROJECTS OF THE ASSESSEE. FURTHER, WE FIND IN THE CASE OF ITO VS. SATYANARAYAN RAMSWAROOP AGARWAL, 50 TAXMANN.COM 111 THE TRIBUNAL HELD THAT AREA OF ONE AC RE AS PRESCRIBED IN CLAUSE (B) OF SECTION 80IB MEANS AREA OF ONE ACRE AVAILABLE FOR HOUSING PROJECT INCLUSIVE OF AMENITIES AS PER NORMS OF CONCERNED MUNICIPAL CORPORATION OR LOCAL BODY. ITA NO. 1777 /P U N/20 1 7 SHRI SUDHIR K. BOTHARA 4 THEREFORE, ON FACTS, THE TOTAL AREA OF THE PLOT OF LAND IS 4500 SQ.MT RS WHICH INCLUDES THE AREA MEANT FOR OPEN SPACE OF 445.16 SQ.MTRS AND AREA FOR TRANSFORMER OF 36. SQ.MTR, AREA FOR AMENITY SPACE OF 667.74 SQ.MTRS AND AREA FOR DP ROAD WIDENING OF 48.40 SQ,MTRS. THIS ISSUE OF INCLUSION OF AREAS FOR THE PURPOSE OF ONE AC RE IS ALREADY SETTLED BY THE DECISION OF THIS BENCH OF THE TRIBUNAL (SUPRA). THEREFORE, IN VIEW OF THE ABOVE DISCUSSION ON THIS SOLITARY ISSUE, WE ARE OF THE OPINION THAT THE ORDER OF CIT(A) IS FAIR AND REASONABLE AND IT DOES NOT CALL FOR ANY INTERFEREN CE. 9. THE ISSUE ARISING IN THE PRESENT APPEAL IS IDENTICAL TO THE ISSUE BEFORE THE TRIBUNAL IN ASSESSEES OWN CASE (SUPRA) AND FOLLOWING THE SAME PARITY OF REASONING, WE DISMISS THE GROUNDS OF APPEAL RAISED BY THE REVENUE. 10 . IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED ON THIS 30 TH DAY OF JULY , 201 8 . SD/ - SD/ - (ANIL CHATURVEDI) (SUSHMA CHOWLA ) / ACCOUNTANT MEMBER / JUDICI AL MEMBER / PUNE ; DATED : 30 TH JULY , 201 8 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT(A) - 4 , PUNE ; 4. THE PR. CIT - 3 , PUNE ; 5. 6. , , / DR A , ITAT, PUNE ; / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE