Income-tax Officer, V. Shri Shrikant Balbhim Mokate, Pune

ITA 2169/PUN/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9215 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 27-03-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 08-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MUKESH JHA
• Assessee Lawyers: D R BARVE

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE . . . . , , BEFORE SHRI D.KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO. 2169/PUN/2014 / ASSESSMENT YEAR : 2010-11 ITO, WARD - 3(3), PUNE . / APPELLANT V/S SHRI SHRIKANT BALBHIM MOKATE, 31, RAGHUBAL NIWAS, KOTHRUD, PUNE 411 029 PAN : AAXPM1356L . / RESPONDENT ASSESSEE BY : SHRI D.R. BARVE REVENUE BY : SHRI MUKESH JHA, / ORDER PER D. KARUNAKARA RAO, AM : THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORD ER OF THE CIT(A)-II, PUNE DATED 30-09-2014 RELATING TO ASSESSMENT YEAR 2 010-11. 2. THE REVENUE HAS FILED THE GROUNDS AGAINST THE AL LOWANCE OF DEDUCTION U/S.80IB(10) OF THE ACT BY THE CIT(A) AMOUNTING TO RS.1,77,82,218/-. 3. BRIEFLY STATED RELEVANT FACTS OF THE CASE ARE TH AT ASSESSEE IS A PROMOTER AND BUILDER AND ALSO ENGAGED IN THE BUSINESS OF CIV IL CONSTRUCTION. HE FILED HIS RETURN OF INCOME DECLARING TOTAL INCOME OF RS.6 ,43,780/-. AO NOTICED THAT THE ASSESSEE UNDERTOOK A RESIDENTIAL PROJECT AT S.N O.119/6, WARJE, PUNE. THE PROJECT CONSISTS OF 5 BUILDINGS, NAMELY A,B,C, D & E CONSISTING OF 65 FLATS. / DATE OF HEARING :29.06.2017 / DATE OF PRONOUNCEMENT: 30.06.2017 2 ITA NO.2169/PUN/2014 VIDE AGREEMENT DATED 16-01-2007 ASSESSEE ACQUIRED D EVELOPMENT RIGHTS. ASSESSEE COMPLETED THE PROJECT ON 30-03-2012, AS PE R THE CERTIFICATE GIVEN BY THE PUNE MUNICIPAL CORPORATION. ASSESSEE CLAIMED D EDUCTION U/S.80IB(10) OF THE ACT. AO DISALLOWED THE DEDUCTION CLAIMED BY TH E ASSESSEE. WHILE DISALLOWING THE ASSESSEES CLAIM AO REFERRED TO THE CONDITIONS RELATING TO THE AREA OF ONE ACRE (4047 SQ.MTRS.) ON FINDING THAT T HE DP ROAD IS PART OF THE AREA, WHERE RESIDENTIAL PROJECT IS LOCATED; AO EXCL UDED THE RELEVANT AREA FOR AREA CALCULATION. IN THAT CASE, THE AREA FALLS BE LOW ONE ACRE. MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AUTHORITY WHEREI N VARIOUS CONTENTIONS WERE RAISED ON BEHALF OF ASSESSEE. FIRST APPELLATE AUTH ORITY ALLOWED THE CLAIM OF THE ASSESSEE RELYING ON THE DECISION OF HIS PREDECE SSOR IN ASSSESSEES OWN CASE FOR THE EARLIER ASSESSMENT A.Y. 2009-10 AND TH E ORDER OF THE TRIBUNAL UPHOLDING THE DECISION OF THE CIT(A). 4. AGGRIEVED BY THE ORDER OF THE CIT(A) THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 5. AFTER HEARING BOTH THE SIDES, WE FIND THIS ISSUE IS SQUARELY COVERED BY THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2009-10. THE CIT(A) WHILE ALLOWING THE CLAIM OF THE ASSESSEE HAS DISCUSSED THIS ISSUE IN PARA NOS. 3.4 TO 3.6. FOR THE SAKE OF BREVITY, PAR A NOS. 3.5 AND 3.6 ARE EXTRACTED AS UNDER: 3.5 THE ABOVE DECISION WHEN CONTESTED BEFORE THE I TAT BY THE DEPARTMENT, THE HONBLE ITAT, PUNE VIDE ORDER ITA N O.829/PN/2013 DT. 28-04-2014, UPHOLDING THE CIT(A)S DECISION HAS HELD AS UNDER : 6. THE CIT(A) RELYING ON THE RATIO OF THE BUNTY BU ILDERS (SUPRA) HELD THAT THE ASSESSEE WAS ENTITLED FOR DEDUCTION B ASED ON THE AREA OF THE PLOT AS PER 7/12 EXTRACT BEING 4300 SQ.MTRS., W HICH WAS MORE THAN MINIMUM STIPULATED AREA OF 1 ACRE (4047 SQ.MTRS.). IN VIEW OF ABOVE, THE CIT(A) WAS JUSTIFIED IN GRANTING RELIEF TO THE ASSESSEE UNDER THE PROVISION OF SECTION 80IB(10), WHICH NEEDS NO INTER FERENCE FROM OUR SIDE. WE UPHOLD THE SAME. 3 ITA NO.2169/PUN/2014 3.6 THE ISSUE INVOLVED BEING PARI MATERIAL THE SAME AS THAT FOR A.Y. 2009- 10 BEING PERTAINING TO THE SAME PROJECT, THE DECISI ON TAKEN EARLIER AND THE SUBSEQUENT DECISION OF THE TRIBUNAL DATED 28-04-201 4 IN APPELLANTS CASE IS BEING FOLLOWED AND THE DISALLOWANCE MADE BY THE ASS ESSING OFFICER IS HELD AS LIABLE TO BE DELETED FOR THE YEAR UNDER CONSIDERATI ON. 6. NOTHING CONTRARY HAS BEEN BROUGHT TO OUR NOTICE BY THE LD. DEPARTMENTAL REPRESENTATIVE TO CONTROVERT THE FINDI NGS GIVEN BY THE CIT(A). WE FIND THE ORDER OF THE CIT(A) IS A REASONED ONE A ND DOES NOT CALL FOR ANY INTERFERENCE FROM OUR SIDE. ACCORDINGLY, GROUNDS R AISED BY THE REVENUE ARE DISMISSED. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH DAY OF JUNE, 2017. SD/- SD/- (VIKAS AWASTHY) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE; DATED : 30 TH JUNE, 2017. / COPY OF THE ORDER FORWARDED TO : / BY ORDER , // TRUE COPY // //TRUE COPY// /ASSISTANT REGISTRAR , / ITAT, PUNE 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT(A) - I I, PUNE 4. THE CIT - I I, PUNE 5 . DR, ITAT, A BENCH PUNE; 6 . / GUARD FILE.