Income Tax Officer Ward-4(2), Kolkata V. M/s Martin Burn Ltd., Kolkata

ITA 2169/KOL/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9604 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 5 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-01-2017
• Appeal Filed By: Department
• Bench Allotted: C
• Next Hearing Date: 18-10-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 24-07-2013
• Court: TRIBUNAL
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : KOLKATA [BEFORE HONBLE SRI ABY T.VARKEY, JM & DR.ARJUN L AL SAINI, AM ] I.T.A NOS.2169 & 2170 /KOL/2013 ASSESSMENT YEARS : 2006- 07 & 2007-08 I.T.O., WARD-4(2) -VS.- M/S. MARTIN BUR N LTD. KOLKATA KOLKATA [PAN : AABCM 9913 A] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI RAJAT KUMAR KURE EL, JCIT. SR.DR FOR THE RESPONDENT : SHRI PRANABESH SARKAR, ADV OCATE DATE OF HEARING 21.12.2016. DATE OF PRONOUNCEMENT 11 . 01.2017. ORDER PER ABY T.VARKEY, JM THESE ARE TWO APPEALS PREFERRED BY THE REVENUE AGA INST THE ORDER OF CIT(A)-IV, KOLKATA DATED 14.03.2013 FOR AY 2006-07 AND 2007-08 . 2. THE SOLE ISSUE THAT HAS BEEN RAISED BY THE REVE NUE IS AGAINST THE ORDER OF THE LD. CIT(A)-IV, KOLKATA ALLOWING RELIEF U/S 80IB(10) FOR BOTH THE ASSESSMENT YEARS. SINCE THE ISSUES RAISED BY THE REVENUE IN BOTH THE ASSESS MENT YEARS ARE SAME, THE FACTS IN RESPECT OF A.Y.2006-07 IS ONLY DISCUSSED. 3. THE BRIEF FACTS OF THE CASE IS THAT THE ASSES SEE IS A PUBLIC LIMITED COMPANY ENGAGED IN THE BUSINESS OF REAL ESTATE AND LEASING AND HIRE PURCHASE. THE ASSESSEE FILED ITS RETURN OF INCOME DISCLOSING A TOTAL INCOME OF RS.1,10,05,5 65/-. LATER THE CASE WAS SELECTED FOR SCRUTINY. THE AO NOTES THAT THE ASSESSEE CLAIMED DE DUCTION U/S 80IB AT A SUM OF RS.3,01,20,081/-. THE AO ACKNOWLEDGED THAT THE ASSE SSEE HAS FILED A COPY OF FORM 2 ITA NOS.2169&2170/KOL/2013 M/S. MARTIN BURN LTD.. A.YR.2006-07 & 2007-08 2 NO.10CCB AND HAS CLAIMED DEDUCTION IN RESPECT OF SH REERAM NAGAR RESIDENTIAL COMPLEX, VIP ROAD, MOUZA-TEGHORIA, KOLKATA-700052. THE AO NOTES THAT IN FORM NO.10CCB COL.NO.23A IT IS NOTED THAT THE BUILT UP A REA OF THE SHOPS AND OTHER COMMERCIAL ESTABLISHMENTS SITUATED IN THE PROJECT I S 10,245 SQ.FT. THE AO NOTES THAT AS PER SECTION 80IB(10) FOR THE PURPOSE OF DEDUCTION U NDER THIS SECTION THE TOTAL BUILD UP AREA OF SHOPS AND OTHER COMMERCIAL ESTABLISHMENT SH OULD NOT EXCEED FIVE PERCENT OF THE AGGREGATE BUILT UP AREA OF THE HOUSING PROJECT OR 2 000 SQ.FT WHICHEVER IS LESS. SINCE IN THIS CASE THE BUILT UP AREA OF SHOP AND OTHER COMME RCIAL ESTABLISHMENTS IS ONLY 10,245 SQ.FT DEDUCTION IS NOT ALLOWABLE/S 80IB AND SO DED UCTION U/S 80IB OF RS.3,01,20,081/- WAS DISALLOWED. AGGRIEVED THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A), WHO ALLOWED THE DEDUCTION U/S 80IB CLAIMED BY THE ASSES SEE BY HOLDING AS UNDER :- 4.2. I HAVE READ THE ASSESSMENT ORDER AS WELL AS GONE THROUGH THE SUBMISSIONS MADE BY THE A.R. OF THE APPELLANT. IT IS FOUND THAT ON SAME SET OF FACTS IN THE EARLIER ASSESSMENT, YEAR I.E. 2005-06, THE LD. INCOME TAX APPELLATE TRI BUNAL, KOLKATA BENCH IN THE APPELLANT'S OWN ORDER IN I.T.A. NO.1775/K/2011 FOR THE ASSESSMENT YEAR 2005-06 BY ORDER DATED 06.12.2012 HAS PASSED THE ORDER IN FAVOUR OF THE APPELLANT COMPANY AND HAS ALLOWED DEDUCTION U/S. 801B(10) ON THE PROJECT OF BUILT-U P AREA BELOW 1500 SQ.FT. AS WELL A PRO- RATA BASIS SHOP AND COMMERCIAL SPACE. RESPECTFULLY FOLLOWING THE JUDGMENT OF THE HON'BLE ITAT, I HOLD THAT THE APPELLANT AS ENTITLED TO DEDU CTION ON FLATS WHICH HAVE BUILT-UP AREA BELOW 1500 SQ.FT. THE APPELLANT GETS A RELIEF OF R S.2,36,24,482/- ON ACCOUNT OF FLATS WHICH HAVE BUILT-UP AREA AS BELOW 1500 SQ.FT. AGGRIEVED BY THE AFORESAID ORDER OF THE LD. CIT(A) THE REVENUE IS BEFORE US. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED T HE RECORDS. WE TAKE NOTE THAT THE LD. CIT(A) HAS TAKEN NOTE OF THE COORDINATE BENCH IN AS SESSEES OWN CASE VIDE ITA NO.1775/KOL/2011 FOR A.Y.2005-06 VIDE ORDER DATED 0 6.12.2012 WHEREIN THE TRIBUNAL ALLOWED THE DEDUCTION U/S 80IB(10) OF THE ACT ON PR OJECTS WHERE THE BUILT UP AREA IS BELOW 1,500 SQ.FT. AS WELL AS ON PRO RATA BASIS OF SHOP/COMMERCIAL SPACE. SINCE THE LD. CIT(A) HAS ALLOWED THE CLAIM BY FOLLOWING THE ORDER OF THE TRIBUNAL, WE ARE ALSO BOUND BY THE DECISION OF THE CO-ORDINATE BENCH IN ASSESSE ES OWN CASE ON SIMILAR FACTS AND LAW. THE LD. DR COULD NOT POINT OUT ANY CHANGE IN F ACTS OR LAW IN BOTH THE ASSESSMENT 3 ITA NOS.2169&2170/KOL/2013 M/S. MARTIN BURN LTD.. A.YR.2006-07 & 2007-08 3 YEARS UNDER CONSIDERATION BEFORE US. THEREFORE RESP ECTFULLY FOLLOWING THE ORDER OF THE CO-ORDINATE BENCH FOR A.Y.2005-06, WE CONFIRM THE O RDER OF THE LD. CIT(A) AND DISMISS THE APPEALS OF THE REVENUE. 5. IN THE RESULT THE APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 11. 01.2017. SD/- SD/- [DR.A.L.SAINI] [ ABY T.VARKEY ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 11. 01.2017. [RG PS] COPY OF THE ORDER FORWARDED TO: 1.M/S. MARTIN BURN LTD., 1, R.N.MUKHERJEE ROAD, KOL KATA-700001. 2. I.T.O., WARD-4(2), KOLKATA. . 3..CIT(A)-IV, KOLKATA 4. CIT- II, KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSTT.REGISTRAR, ITAT, KOLKATA BENCHES 4 ITA NOS.2169&2170/KOL/2013 M/S. MARTIN BURN LTD.. A.YR.2006-07 & 2007-08 4