Income-tax Officer, V. M/s. Saubhgyalaxmi Developers, Pune

ITA 2299/PUN/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5839 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 4 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 30-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E BEFORE SHRI R.S.SYAL, VP AND SHRI PARTHA SARATHI CHAUDHURY, JM / ITA NO. 2299/PUN/2016 / ASSESSMENT YEAR : 2010-11 THE INCOME TAX OFFICER, WARD-3(1), PUNE. ....... / APPELLANT / V/S. M/S. SAUBHAGYALAXMI DEVELOPERS. K.G. MANSION, 1233/C, APTE ROAD, DECCAN GYMKHANA, PUNE-411 004. PAN : AAMFM3372R / RESPONDENT ASSESSEE BY : SHRI KISHOR PHADKE REVENUE BY : SHRI PANKAJ GARG / DATE OF HEARING : 31.01.2019 / DATE OF PRONOUNCEMENT : 01.02.2019 / ORDER PER PARTHA SARATHI CHAUDHURY, JM : THIS APPEAL PREFERRED BY THE REVENUE EMANATES FROM THE ORDER OF LD. CIT(APPEALS)-1, PUNE DATED 28.07.2016 FOR THE ASSESSMENT YEAR 2010-11 AS PER GROUNDS OF APPEAL ON RECORD. 2. THE BRIEF FACTS IN THIS CASE ARE THAT THE ASSESSEE-FIRM IS ENGAGED IN REAL ESTATE DEVELOPMENT ACTIVITY AND IT HAD FILED RETURN OF INCO ME FOR ASSESSMENT 2 ITA NO. 2299/PUN/2016 A.Y.2010-11 YEAR 2010-11 ON 21.09.2010 DECLARING TOTAL INCOME OF RS.2, 31,25,690/-. THE RETURN OF INCOME WAS REVISED ON 27.04.2011 SHOWING TAXAB LE INCOME OF RS.1,03,562/- AFTER CLAIMING DEDUCTION U/S.80IB(10) OF THE INCO ME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) AMOUNTING TO RS.2,27,49,856/-. THEREAFTER, THE CASE WAS SELECTED FOR SCRUTINY AND ASSES SMENT WAS COMPLETED U/S.143(3) OF THE ACT AND ASSESSED TOTAL INCOME OF THE ASS ESSEE BEING AT RS.2,28,53,420/- IN WHICH DEDUCTION CLAIMED U/S.80IB(10) WAS DISALLOWED . 3. WITH REGARD TO THIS BACKGROUND, THE FACTS ON RECORD REVEALS THAT THE ASSESSEE HAD UNDERTAKEN A PROJECT OF REDEVELOPMENT OF SLUM IN BHAVANI PETH (S. NO.527, KASEWADI), PUNE. THE SAID DEVELOPMENT PROJECT WAS APPROVED BY THE 'SLUM RE-DEVELOPMENT AUTHORITY'(SRA), AN AGE NCY WHICH WAS THE NODAL AGENCY FOR SUCH RE-DEVELOPMENT PROJECT. SRA A ND PMC HAD FLOATED THE TENDER FOR RE-DEVELOPMENT OF THE BHAVANI PETH A REA SLUM MANDATING CONSTRUCTION OF BUILDING CONSISTING OF 448 RESIDENT IAL UNITS WHICH WAS TO BE HANDED OVER TO THE EXISTING SLUM DWELLERS WITHOU T ANY CONSIDERATION FROM THEM. THE CONSIDERATION FOR SUCH DEVELOPMENT A CTIVITY WAS IN THE FORM OF TRANSFERABLE DEVELOPMENT RIGHTS (TDR) TO BE ISSUED BY THE PMC ON ACHIEVING THE PRE-DEFINED STAGES OF COMPLETION O F THE BUILDING BY THE ASSESSEE. THE ASSESSEE HAD NOT CLAIMED DEDUCTION U/ S. 80IB(10) IN THE ORIGINAL RETURN OF INCOME AS AT THAT TIME SRA SCHEM E OF MAHARASHTRA GOVT. WAS NOT NOTIFIED BY THE CBDT FOR ELIGIBILITY OF DEDUCTION U/S. 80IB(L0) OF THE I.T. ACT, 1961. HOWEVER, IN THE MON TH OF JANUARY VIDE NOTIFICATION NO.0L/2011 DATED 5/1/2011 CBDT NOTIFIE D THE SCHEME FOR SLUM RE-DEVELOPMENT PREPARED BY MAHARASHTRA REGIONA L TOWN PLANNING ACT 1961, ELIGIBLE FOR DEDUCTION U/S.80IB(10) OF TH E I.T. ACT, 1961. CONSIDERING THE ABOVE POSITION THE ASSESSEE FILED R EVISED RETURN OF INCOME IN WHICH DEDUCTION U/S. 80IB(10) AMOUNTING TO RS.2, 27,49,856/- WAS 3 ITA NO. 2299/PUN/2016 A.Y.2010-11 CLAIMED. THE AO DURING THE COURSE OF ASSESSMENT PRO CEEDINGS EXAMINED THE DOCUMENTS FURNISHED BY THE ASSESSEE AND CAME TO THE CONCLUSION THAT THE ASSESSEE WAS MERELY A CONTRACTOR AND NOT A DEVELOPER AND THEREFORE, NOT ELIGIBLE FOR DEDUCTION U/S.80IB(10) OF THE I.T. ACT, 1961. ACCORDINGLY, HE DISALLOWED THE CLAIM U/S.80IB(10) A MOUNTING TO RS.2,27,49,856/- AND ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE. 4. AT THE FIRST APPELLATE STAGE, THE LD. AR OF THE ASSESSEE FILED WRITTEN SUBMISSION STATING THAT THE ASSESSEE WAS ALLOWED DE DUCTION U/S.80IB(10) OF THE ACT BY THE LD. CIT(A) IN ASSESSMENT YEAR 200 9-10 WHICH HAS BEEN SUBSEQUENTLY UPHELD BY THE PUNE BENCH OF THE TRIBUN AL ALSO. ON THESE FACTS AND CIRCUMSTANCES, THE LD. CIT(A) HELD AS FOL LOWS: 6. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CAS E AS WELL AS REPLY OF THE APPELLANT. IN THIS CASE, IT IS SEEN THAT RELIEF WAS ALLOWED BY THE CIT(A)-II, PUNE IN APPELLANTS OWN CASE IN A.Y.2009 -10 IN HIS ORDER DATED 28.02.2013. SUBSEQUENTLY, HON'BLE PUNE ITAT HAS UPH ELD THE DECISION OF THE LD. CIT(A) IN ITA NO.1474/PN/2013 FOR A.Y.2009- 10 DATED 29.01.2016. THIS BEING SO, RELYING UPON THE DECISIO N OF HON'BLE PUNE TRIBUNAL (SUPRA.), IT IS HELD THAT THE APPELLANT IS A DEVELOPER AND NOT CONTRACTOR AS HELD BY THE AO. ACCORDINGLY, THE AO I S DIRECTED TO ALLOW DEDUCTION U/S.80IB(10) AMOUNTING TO RS.2,27,49,856/ -. THUS, THE GROUND IS ALLOWED. 5. WE HAVE PERUSED THE CASE RECORDS AND CONSIDERED THE FACTS AND CIRCUMSTANCES IN THIS CASE AND ALSO GIVEN CONSIDERA BLE THOUGHT ON THE SUBMISSIONS OF THE PARTIES HEREIN. THE LD. CIT(A) H AS PROVIDED RELIEF TO THE ASSESSEE SINCE IN ASSESSEES OWN CASE FOR ASSES SMENT YEAR 2009-10, THE LD. CIT(A) ON THE SAME FACTS AND CIRCUMSTANCES, ON THE SAME ISSUE HAD PROVIDED RELIEF TO THE ASSESSEE WHICH WAS UPHEL D BY THE PUNE BENCH OF THE TRIBUNAL IN ITA NO.1474/PN/2013 FOR THE ASSE SSMENT YEAR 2009- 10 DATED 29.01.2016. 4 ITA NO. 2299/PUN/2016 A.Y.2010-11 THAT, IN THE INCOME TAX PROCEEDINGS, RULE OF CONS ISTENCY HAS TO BE MAINTAINED AND RULING OF THE CO-ORDINATE BENCH OF T HE TRIBUNAL HAS TO BE FOLLOWED. RESPECTFULLY, FOLLOWING THE DECISION IN ITA NO.1474/PN/2013 (S UPRA.), WE UPHOLD THE FINDINGS OF THE LD. CIT(APPEALS) AND RELIEF PROVID ED TO THE ASSESSEE IS THEREBY SUSTAINED. HENCE, GROUNDS RAISED B Y THE REVENUE IN APPEAL ARE DISMISSED. 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON 01 ST DAY OF FEBRUARY, 2019. SD/- SD/- R.S.SYAL P ARTHA SARATHI CHAUDHURY VICE PRESIDENT JUDICIAL MEMBER / PUNE; / DATED : 01 ST FEBRUARY, 2019. SB !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS)-1, PUNE. 4. THE PR. CIT-2, PUNE. 5. '#$ %%&' , ( &' , )*+ , / DR, ITAT, B BENCH, PUNE. 6. $,- ./ / GUARD FILE. // TRUE COPY// (0 / BY ORDER, %1 &+ / PRIVATE SECRETARY ( &' , / ITAT, PUNE. 5 ITA NO. 2299/PUN/2016 A.Y.2010-11 DATE 1 DRAFT DICTATED ON 31 .01.2019 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 01.02 .201 9 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER