Income-tax Officer, V. M/s. System Enterprises, Pune

ITA 2210/PUN/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0475 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-11-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 10-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL
• Assessee Lawyers: VIPIN GUJRATHI

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE . . , ! , # $ BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM . / ITA NOS.2210 & 2211/PN/2014 #& & / ASSESSMENT YEARS : 2007-08 & 2010-11 ITO, WARD-7(1), PUNE . / APPELLANT V/S M/S. SYSTEM ENTERPRISES, 289, TEJ HOUSE, M.G. ROAD, PUNE 411001 PAN : AAFFS5784G . / RESPONDENT / APPELLANT BY : SHRI P. L. KUREEL / RESPONDENT BY : SHRI VIPIN GUJRATHI / ORDER PER R.K.PANDA, AM : THE ABOVE 2 APPEALS FILED BY THE REVENUE ARE DIREC TED AGAINST THE SEPARATE ORDERS DATED 25-09-2014 OF THE CIT(A)-II, PUNE RELATING TO ASSESSMENT YEARS 2007-08 & 2010-11 RESP ECTIVELY. SINCE IDENTICAL GROUNDS HAVE BEEN TAKEN BY THE REVENUE IN BOTH THESE APPEALS, THEREFORE, THESE WERE HEARD TOGETHER AND A RE BEING DISPOSED OF BY THIS COMMON ORDER. 2. FIRST WE TAKE UP ITA NO.2210/PN/2014 FOR A.Y. 20 07-08 AS THE LEAD CASE. FACTS OF THE CASE, IN BRIEF, ARE THAT T HE ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF BUILDER S. IT FILED ITS RETURN / DATE OF HEARING :09.11.2016 / DATE OF PRONOUNCEMENT:11 .11.2016 2 ITA NOS.2210 & 2211/PN/2014 OF INCOME ON 31-10-2007 DECLARING NIL INCOME AFTER CLAIMING DEDUCTION OF RS.55,68,568/- U/S. 80IB(10) OF THE I. T. ACT. THE RETURN WAS PROCESSED U/S.143(1) OF THE I.T. ACT. SUBSEQUEN TLY, THE ASSESSING OFFICER ISSUED NOTICE U/S.148 WHICH WAS S ERVED ON THE ASSESSEE ON 19-12-2012. IT WAS REPLIED BY THE ASSE SSEE THAT THE RETURN FILED ON 31-10-2007 MAY BE TREATED AS RETURN FILED IN RESPONSE TO NOTICE U/S.148 OF THE I.T. ACT. DURING THE COURS E OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTED THAT THE AS SESSEE HAS CONTINUED CONSTRUCTION OF A HOUSING PROJECT BY THE NAME KAILASH KUTIR ON A PIECE OF LAND AT SURVEY NO.9, HISSA NO. 21A TO 21D & 27 WANOWRIE, PUNE 40. THE PROJECT COMPRISES OF 7 RO W HOUSES AND 56 FLATS IN A, B & C BUILDINGS AS PER COMMENCEMENT CERTIFICATE NO.CC/1951/05 DATED 25-08-2005 ISSUED BY PMC. THE A SSESSING OFFICER ASKED THE ASSESSEE TO JUSTIFY THE CLAIM OF DEDUCTION U/S.80IB(10) OF THE I.T.ACT. REJECTING THE VARIOUS EXPLANATIONS GIVEN BY THE ASSESSEE AND FOLLOWING THE ORDER OF HIS PRED ECESSOR FOR A.Y. 2009-10 WHICH HAS BEEN UPHELD BY THE CIT(A) THE ASS ESSING OFFICER DISALLOWED THE CLAIM OF DEDUCTION U/S.80IB(10) OF T HE I.T.ACT. 3. IN APPEAL THE LD.CIT(A) FOLLOWING THE ORDER OF T HE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2009-10 VIDE ITA NO.11 23/PN/2013 DATED 28-08-2014 ALLOWED THE CLAIM OF DEDUCTION U/ S.80IB(10) MADE BY THE ASSESSEE. 4. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE REVE NUE IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE HONBLE CIT(A) HAS ERRED IN ALLOWING THE ASSE SSEES CLAIM OF DEDUCTION U/S.80IB(10) WITHOUT APPRECIATIN G THE FACT THAT THE ASSESSEE HAS NOT FULFILLED CONDITIONS LAID DOWN IN SUB- CLAUSE (1) OF SECTION 80IB(10) OF THE I.T. ACT, 1961 FOR CLAIMING DEDUCTION U/S.80IB(10). 3 ITA NOS.2210 & 2211/PN/2014 2. THE ORDER OF THE CIT(A) BE VACATED AND THAT OF A SSESSING OFFICER BE RESTORED ON THIS ISSUE. 3. THE APPELLANT CRAVES TO ADD, ALTER, AMEND, SUBSTIT UTE OR DELETE ANY OF THE GROUNDS URGED HEREIN ABOVE AS AND W HEN FOUND NECESSARY. 5. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET S UBMITTED THAT THE ASSESSING OFFICER WHILE DISALLOWING THE CLAIM OF DEDUCTION U/S.80IB(10) HAS FOLLOWED THE ORDER OF HIS PREDECES SOR FOR A.Y. 2009- 10 WHICH HAS BEEN UPHELD BY THE CIT(A). REFERRING TO THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2009-1 0 VIDE ITA NO.1123/PN/2013 ORDER DATED 26-08-2014 HE SUBMITTED THAT THE TRIBUNAL HAS ALREADY ALLOWED THE CLAIM OF DEDUCTION U/S.80IB(10) BY SETTING ASIDE THE ORDER OF THE CIT(A). HE SUBMITTE D THAT SINCE THE LD.CIT(A) WHILE ALLOWING THE CLAIM OF DEDUCTION HAS FOLLOWED THE ORDER OF THE TRIBUNAL FOR A.Y. 2009-10 WHICH WAS TH E BASIS FOR DISALLOWANCE BY THE ASSESSING OFFICER, THEREFORE, T HE ORDER OF THE CIT(A) BE UPHELD AND THE GROUND RAISED BY THE REVEN UE SHOULD BE DISMISSED. 6. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND FAIRLY CONCEDED THAT THE ISSUE STANDS DECIDED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE TRIBUNAL FOR A.Y. 2009-10. 7. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2009-10. WE FIND THE ASSESSING OFFICER FOLLOWING THE ORDER O F HIS PREDECESSOR FOR A.Y. 2009-10 WHICH HAS BEEN UPHELD BY THE CIT(A ) DISALLOWED THE CLAIM OF DEDUCTION U/S.80IB(10) ON THE PROJECT KAILASH KUTIR. WE FIND THE CIT(A) FOLLOWING THE ORDER OF THE TRIBU NAL IN ASSESSEES 4 ITA NOS.2210 & 2211/PN/2014 OWN CASE FOR A.Y. 2009-10 ALLOWED THE CLAIM OF DEDU CTION MADE BY THE ASSESSEE U/S.80IB(10). SINCE THE VERY BASIS OF DISALLOWANCE U/S.80IB(10) WAS THE REASONINGS GIVEN IN THE ORDER FOR A.Y. 2009-10 AND SINCE THE TRIBUNAL HAS ALREADY DECIDED THE ISSU E IN FAVOUR OF THE ASSESSEE FOR A.Y. 2009-10 VIDE ITA NO.1123/PN/2013 DATED 28-08-2014, THEREFORE, IN ABSENCE OF ANY CONTRARY M ATERIAL BROUGHT TO OUR NOTICE AGAINST THE ORDER OF THE TRIBUNAL FOR A.Y. 2009-10 WE FIND NO INFIRMITY IN THE ORDER OF THE CIT(A) ALLOWI NG THE CLAIM OF DEDUCTION U/S.80IB(10). ACCORDINGLY THE GROUNDS RA ISED BY THE REVENUE ARE DISMISSED. ITA NO.2211/PN/2014 (A.Y. 2010-11) : 8. GROUNDS RAISED BY THE REVENUE ARE AS UNDER : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE HONBLE CIT(A) HAS ERRED IN ALLOWING THE ASSE SSEES CLAIM OF DEDUCTION U/S.80IB(10) WITHOUT APPRECIATIN G THE FACT THAT THE ASSESSEE HAS NOT FULFILLED CONDITIONS LAID DOWN IN SUB- CLAUSE (1) OF SECTION 80IB(10) OF THE I.T. ACT, 1961 FOR CLAIMING DEDUCTION U/S.80IB(10). 2. THE ORDER OF THE CIT(A) BE VACATED AND THAT OF A SSESSING OFFICER BE RESTORED ON THIS ISSUE. 3. THE APPELLANT CRAVES TO ADD, ALTER, AMEND, SUBSTITU TE OR DELETE ANY OF THE GROUNDS URGED HEREIN ABOVE AS AND W HEN FOUND NECESSARY. 9. AFTER HEARING BOTH THE SIDES, WE FIND THE ABOVE GROUNDS BY THE REVENUE ARE IDENTICAL TO THE GROUNDS RAISED BY THE REVENUE IN ITA NO.2210/PN/2014. WE HAVE ALREADY DECIDED THE ISSUE AND THE GROUNDS RAISED BY THE REVENUE HAVE BEEN DISMISSED. FOLLOWING THE SAME REASONINGS, THE GROUNDS RAISED BY THE REVENUE FOR THIS YEAR ARE ALSO DISMISSED. 5 ITA NOS.2210 & 2211/PN/2014 10. IN THE RESULT, BOTH THE APPEALS FILED BY THE RE VENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11-11-2016. SD/- SD/- (VIKAS AWASTHY) (R.K . PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE; DATED : 11 TH NOVEMBER, 2016. ) *#,! -! / COPY OF THE ORDER FORWARDED TO : / BY ORDER , /// // # % / TRUE COPY // // TRUE COPY // &' % * / SR. PRIVATE SECRETARY *, / ITAT, PUNE 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT (A) - II, PUNE 4. 5. THE CIT-II, PUNE # %%*, *, B BENCH / DR, ITAT, B BENCH PUNE; 6. 2 / GUARD FILE.