ITO, Ward 8(4), Pune V. M/s. Yash Promoters and Builders, Pune

ITA 2011/PUN/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 72239 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-10-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 17-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MODI; WALIMBE
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER , AND SHRI R.K. PANDA, ACCOUNTANT MEMBER. ITA.NO.2011/PN/2012 (ASSESSMENT YEAR 2009-10) INCOME TAX OFFICER, WARD-8(4), AKURDI, PUNE .. APPELLANT VS. M/S.YASH PROMOTERS AND BUILDERS, SHOP NO.14, MHADA COMPLEX, SANT TUKARAM NAGAR, PIMPRI, PUNE. PAN NO. AAAFY 5813H .. RESPONDENT ASSESSEE BY : SHRI DEEPAK SHARMA, C.A. REVENUE BY : SHRI A.K. MODI & SHRI WALIMBE DATE OF HEARING : 22-10-2013 DATE OF PRONOUNCEMENT : 22-10-2013 ORDER PER R.K. PANDA, AM : THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER DATED 04- 07-2012 OF THE CIT(A)-V, PUNE RELATING TO ASSESSME NT YEAR 2009-10. 2. AN ADJOURNMENT PETITION WAS FILED BY THE LD. COU NSEL FOR THE ASSESSEE REQUESTING FOR ADJOURNMENT OF THE CASE. HOWEVER, S INCE THE ISSUE IS COVERED BY THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN C ASE FOR THE IMMEDIATELY PRECEDING ASSESSMENT YEAR, THEREFORE, THE ADJOURNME NT PETITION WAS REJECTED AND THE APPEAL WAS TAKEN UP FOR HEARING. 3. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD.CIT(A) HAS ERRED IN HOLDING THAT THE ROAD ACQUISITION AREA IS TO BE CONSIDERED AS PART OF AREA OF THE PLOT FOR CALCULATION OF MINIMUM 1 ACRE OF AREA FOR CLAIMING DEDUCTION U/S.80IB(10) OF THE INCOME TAX ACT, 1961. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LA W, THE LD.CIT(A) HAS ERRED WHILE INTERPRETING THE CBDT CIRCULAR NO.5 OF 2005 DATED 15-07-2005 TO INCLUDE THE AREA OF ROAD TO BE THE AREA ELIGIBLE U/ S.80IB. 2 3.1 AFTER HEARING THE LD. DEPARTMENTAL REPRESENTATI VE AND ON PERUSAL OF THE ORDERS OF THE AUTHORITIES BELOW WE FIND THE ASS ESSEE CLAIMED DEDUCTION OF RS.2,33,49,404/- U/S.80IB(10) OF THE I.T. ACT IN RE SPECT OF ITS PROJECT PREM AANGAN SITUATED AT PIMPRI, PUNE. THE ASSESSING OF FICER FOUND THAT AFTER EXCLUSION OF 513.80 SQ.MTRS RELATING TO ROAD RESERV ATION FOR DP ROAD, THE AREA OF THE PLOT BECOMES LESS THAN ONE ACRE AND THEREFOR E, THE ASSESSEE IS NOT ENTITLED TO DEDUCTION U/S.80IB(10) OF THE I.T. ACT. REJECTING THE VARIOUS EXPLANATIONS OF THE ASSESSEE THE ASSESSING OFFICER DISALLOWED THE DEDUCTION U/S.80IB(10). 3.2 IN APPEAL THE LD.CIT(A) FOLLOWING HIS ORDER FOR A.Y. 2008-09 ALLOWED THE CLAIM OF THE ASSESSEE. WE FIND THE APPEAL FILE D BY THE REVENUE FOR A.Y. 2008-09 VIDE ITA NO.498/PN/2012 ORDER DATED 17-04-2 013 WAS DISMISSED BY THE TRIBUNAL BY HOLDING AS UNDER : 5. AFTER GOING THROUGH RIVAL SUBMISSIONS AND MATERIAL ON RECORD WE FIND THAT ISSUE BEFORE US IS REGARDING DISALLOWANCE OF DEDUCT ION U/S.80IB(10) ON THE BASIS THAT CONDITION GIVEN U/S.80IB(10) THAT AREA OF T HE PLOT OF PROJECT SHOULD BE MINIMUM 1 ACRE. INFACT THE ASSESSING OFFICER HAS NOT CONSIDERED THE AREA OF 513.80 SQ.MTRS. WHICH WAS A ROAD ACQUISITION AREA RESERV ED ON THIS PLOT. AS STATED ABOVE AMONG VARIOUS CONDITIONS INCLUDING DEDUCT ION U/S.80IB(10) AREA OF THE PLOT OF PROJECT SHOULD BE 1 ACRE. AFTER REDU CING THIS AREA NET AREA REMAINED AT 3560.20 SQ. MTRS AS AGAINST THE PLOT SIZE OF 4074 SQ. MTRS, THEREFORE, THE ASSESSING OFFICER REJECTED THE CLAIM OF DEDUCTION U/S.80IB(10). 6. ACCORDING TO THE ASSESSEE HE HAD PURCHASED THE LAND B Y WAY OF REGISTERED DEVELOPMENT AGREEMENT DATED 31-08-2004 IN WHICH TOTAL LAND AREA OF 4074 SQ. MTRS WAS MENTIONED. IT WAS ALSO FOUND THAT REGISTRATION OF THIS DEVELOPMENT AGREEMENT WAS ALSO MADE FOR 4074 SQ.MTRS F OR THE PURPOSE OF REGISTRATION AND PAYMENT OF STAMP DUTY THEREON. THE SANCTIONED PLAN OR THE BUILDING PLAN APPROVED ALSO MENTIONED THE PLOT AREA AT 4074 SQ. MTRS OUT OF WHICH DEDUCTION FOR ROAD ACQUISITION AREA BY PCMC AT 513.80 SQ. MTRS WAS MADE. 7. THE ASSESSING OFFICER DID NOT CONSIDER THE ARGUMENT O F ASSESSEE THAT ROAD ACQUISITION AREA SHOULD NOT BE EXCLUDED. THE A SSESSING OFFICER HAS NOT DISPUTED THE FACT THAT WHEN THE PROJECT WAS SANCTIONED THE ROAD ACQUISITION AREA WAS STILL IN POSSESSION OF THE ASSESSEE AND WAS NOT HANDE D OVER TO THE CORPORATION TILL THAT POINT OF TIME. FURTHER, THE ASSESSEE WAS ENTITLED TO FSI ON ACCOUNT OF ROAD ACQUISITION AND THEREFORE THIS WAS TAK EN CARE IN DEVELOPMENT AGREEMENT ITSELF. 3 8. IN VIEW OF THE ABOVE, ASSESSEE WAS CORRECT IN TAKING STAND THAT AREA OF THE PLOT IS 4074 SQ. MTRS AS PER PLAN AND REGISTERED DEV ELOPMENT AGREEMENT AND REDUCTION OF ROAD ACQUISITION AREA FROM THIS GROSS PLOT AREA FOR CALCULATION OF MINIMUM 1 ACRE WAS NOT JUSTIFIED. ACCORDINGLY, CI T(A) WAS JUSTIFIED IN HOLDING THAT ASSESSEE WAS ENTITLED FOR DEDUCTION IN RESPE CT OF HOUSING PROJECT PREM AANGAN WHICH NEEDS NO INTERFERENCE FROM OUR SI DE. WITH THE ABOVE REASONING WE UPHOLD THE SAME. 3.3 SINCE THE LD.CIT(A) HAS FOLLOWED HIS ORDER FOR A.Y. 2008-09 WHICH HAS BEEN UPHELD BY THE TRIBUNAL, THEREFORE, RESPECT FULLY FOLLOWING THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE IN THE IMMED IATELY PRECEDING ASSESSMENT YEAR AND IN ABSENCE OF ANY CONTRARY MATE RIAL BROUGHT TO OUR NOTICE WE FIND NO INFIRMITY IN THE ORDER OF THE CIT(A). A CCORDINGLY, WE UPHOLD THE ORDER OF THE LD.CIT(A). THE GROUNDS RAISED BY THE REVENUE ARE ACCORDINGLY DISMISSED. 4. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF, I.E. ON 22 ND DAY OF OCTOBER, 2013. SD/- SD/ (SHAILENDRA KUMAR YADAV ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED : 22 ND OCTOBER 2013. SATISH COPY OF THE ORDER IS FORWARDED TO: 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT(A)-V, PUNE 4. THE CIT-V, PUNE 5. THE DR B BENCH, PUNE. 6. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY, INCOME TAX APP ELLATE TRIBUNAL, PUNE.