Deputy Commissioner of Income-tax,Circle-8, Nagpur V. M/s. Maharana & Bose Associates, Nagpur

ITA 186/NAG/2010

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1935 (ITAT-NAGPUR)
• Duration Of Justice: 2 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-01-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 21-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAMESH DAWANDE
• Section: 80IB; 147

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR , BENCH , ( E - COURT), MUMBAI , BEFORE SHRI R.K.GUPTA , J M & SHRI D.KARUNA KAR RAO , A M ITA NO. 18 6 / N AG / 20 10 ( ASSESSMENT YEAR : 200 5 - 20 0 6 ) DCIT , CIR - 8, MECL BUILDING,SEMINARY HILLS, AMBEDKAR BHAWAN, NAGPUR (MAHARASHTRA) - 4 0 40 006 VS. M/S MAHARANA & BOSE ASSOCIATES, 1 ST FLOOR, SHIVHARE BHAWAN, KOSHTIP URA, SITABULDI, NAGPUR - 440 012 PAN/GIR NO. : A AIFM 8077 H ( APPELLANT ) .. ( RESPONDENT ) /REVENUE BY : SHRI RAMESH D AWANDE /A SSESSEE BY : NONE . DATE OF HEARING : 1 3 TH DEC ., 2012 DATE OF PRONOUNCEMENT : 2 ND JAN . ,201 3 O R D E R P ER SHRI R.K.G UPTA, JM : TH E DEPARTMENT HAS PREFERRED THIS APPEAL BEFORE THE ITAT NAGPUR BENCH, NAGPUR, AGAINST THE ORDER DATED 25 - 10 - 2010 OF LEANED CIT(A) - II , NAGPUR (MAHARASHTRA) RELA TING TO THE ASSESSMENT YEAR 200 5 - 0 6 , WHICH HAS BEEN HEARD THROUGH E - COURT, MUMBAI . 2 . THE DEPARTMENT IS OBJECTING THE ACTION OF THE LEARNED CIT(A) IN HOLDING THAT THE ASSESSEE IS ENTITLED FOR 100% DEDUCTION OF THE PROFIT UNDER SECTION 80IB (10) . ITA NO. 18 6 /20 10 2 3 . IN THIS CASE, PROCEEDING S UNDER SECTION 147 WERE INITIATED. THE ASSESSMENT FOR IMMEDIATELY PRECEDING YEAR I.E. 2004 - 05, THE PROCEEDINGS UNDER SECTION 147 WERE ALSO INITIATED AND DEDUCTION CLAIMED UNDE R SECTION 80IB(10) WAS THEN DISALLOWED BY THE ASSESSING OFFICER. 4 . THE ASSESSEE HAD CONSTRUCTED HOUSING PROJECT ON 6.695 ACRES IN MOUZA TAKLI, NAGPUR. SANCTION OF THE BUILDING PROJECT WAS OBTAINED FROM NIT ON 6 - 12 - 2002 . DURING THE ASSESSMENT PROCEEDING, IT WAS SEEN THAT THE ASSESSEE HAD CONSTRUCTED CERTAIN HOUSING UNITS WHICH EXCEEDED THE MAXIMUM PERMISSIBLE AREA OF 1500 SQ.FT. FOR 10 UNITS IN THE PROJECT. THEREFORE, THE AO HAS ENTIRELY DISALLOWED THE CLAIM OF THE ASSESSEE U/S.80IB(10) HOLDING THAT THE BA SIC CONDITIONS REQUIRED TO BE FULFILLED HAVE BEEN V IOLATED. 5 . BEFORE THE LEARNED CIT(A) , IT WAS SUBMITTED THAT FOR THE ASSESSMENT YEAR 2004 - 05 ALSO, THE SIMILAR DISALLOWANCE WAS MADE , WHICH WERE DELETED BY THE CIT(A) AND ON APPEAL BEFORE THE TRIBUN AL, IN ITA NO 346/NAG/2007, VIDE ORDER DATED 5 - 1 - 2009 , THE TRIBUNAL HAS C ONFIRMED THE ORDER OF THE CIT(A) . LEARNED C IT(A) AFTER CONSIDERING THE SUBMISSION, FOUND THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF THE TRIBUNAL FOR IMMEDIATELY PRECEDING YEAR IN THE CASE OF THE ASSESSEE ITSELF. THEREFORE, HE ALLOWED THE ISSUE IN FAVOUR OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION ALSO. 6 . LEARNED DR PLACED RELIANCE ON THE ORDER OF THE ASSESSING OFFICER HERE BEFORE THE TRIBUNAL. ITA NO. 18 6 /20 10 3 7 . ON THE OTHER HAND, NO NE APPEARED ON BEHALF OF THE ASSESSEE. HENCE, THE APPEAL IS DISPOSED OF AFTER CONSIDERING THE ORDER OF THE ASSESSING OFFICER AS WELL AS THE LEARNED CIT(A) . 8 3 . AFTER CONSIDERING THE ORDER OF THE AO AND CIT(A) , WE DO NOT FIND ANY INFIRMITY IN THE FINDING OF THE LEARNED CIT(A) , WHO HAS ALLOWED THE APPEAL OF THE ASSESSEE FOLLOWING THE ORDER OF THE TRIBUNAL FOR IMMEDIATELY PRECEDING YEAR ON IDENTICAL FACTS. THEREFORE, THERE IS NO REASON TO INTERFERE IN THE FINDING OF THE LEARNED CIT(A) FOR THE YEAR UNDER CONS IDERATION ALSO. ACCORDINGLY , THE ORDER OF THE LEARNED CIT(A) IS CONFIRMED. 9 . RESULTANTLY , APPEAL OF THE DEPARTMENT IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 2 ND DAY OF JAN . 2012. 2012 SD/ - SD/ - ( ) ( D.KARUNAKAR RAO ) ( ) ( R.K.GUPTA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 02 / 01 / 201 3 . /PKM , PS COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2 . / THE RESPONDENT. 3. / THE CIT(A) , MUMBAI / NAGPUR . 4. / CIT 5. / DR, ITAT, MUMBAI / NAGPUR . 6. GUARD FILE. //TRUE COPY// / BY ORDER, ( DY./ASSTT. REGISTRAR) / ITAT, MUMBAI