M/s. SuranaMutha Bhansali Developers, Pune V. Assistant Commissioner of Income-tax, Circle - 5, Pune

ITA 2306/PUN/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9216 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 11 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 03-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR MILIND CHAHURE
• Assessee Lawyers: V L JAIN
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI PARTHA SARATHI CHAUDHURY, JM . / ITA NO.2306/PUN/2017 / ASSESSMENT YEAR : 2013-14 M/S. SURANAMUTHA BHANSALI DEVELOPERS, 236, PATIL PLAZA, NR. SARASBAUG, PUNE-411009. PAN : ABGFS1894K ....... / APPELLANT / V/S. ACIT, CIRCLE-5, PUNE. / RESPONDENT ASSESSEE BY : SHRI V. L. JAIN REVENUE BY : SHRI (DR.) MILIND CHAHURE / DATE OF HEARING : 01.10.2019 / DATE OF PRONOUNCEMENT : 01.10.2019 / ORDER PER D. KARUNAKARA RAO, AM: THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-4, PUNE DATED 19.05.2017 FOR THE ASSESSMENT YEAR 2013-14. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER :- 1. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE DISALLOWANCE OF CLAIM OF RS.1,55,29,089/- UNDER SECTION 80IB(10) IN RELATION TO 40 UNITS FOR THE REASON THAT THE BUILT-UP AREA OF THE UNIT EXCEEDED 1500 SQ. FT., ONLY WHEN THE AREA OF TERRACE IS INCLUDED. 2. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THAT THE TERRACE AREA WAS A PART OF THE BUILT-UP AREA AS CONTEMPLATED IN SECTION 80IB(14)(A) OF THE INCOME TAX ACT, 1961. 3. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY OF THE GROUNDS OF APPEAL OR ADD TO THE SAME, IF DEEMED NECESSARY. 2 ITA NO.2306/PUN/2017 3. BEFORE US, AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUE, IN THIS APPEAL, RELATES TO THE INCLUSION OF THE TERRACE AREA FOR THE PURPOSE OF DETERMINING THE BUILT-UP AREA OF EACH UNIT QUA THE APPLICABILITY OF THE PROVISIONS OF SECTION 80IB(10) OF THE ACT. IN THIS REGARD, LD. COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO THE WRITTEN SUBMISSIONS FILED BEFORE THE CIT(A), WHICH ARE EXTRACTED IN THE ORDER OF THE CIT(A). BRINGING OUR ATTENTION TO THE VARIOUS ORDERS OF THE TRIBUNAL WHERE THE TERRACE AREA IS REQUIRED TO BE CONSIDERED AS PART OF THE BUILT-UP AREA, LD. COUNSEL SUBMITTED THAT THE DECISION OF THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF N.T. WADHWANI VS. ACIT AND OTHERS WERE CITED BEFORE THE CIT(A) AND IT IS FOUND PART OF HIS ORDER. HOWEVER, REFERRING TO THE OPERATIVE PARA 5.3.2 OF THE ORDER OF THE CIT(A) ON THIS ISSUE, LD. COUNSEL SUBMITTED THAT THE CIT(A) IGNORED THE SAID DECISION OF THE TRIBUNAL AND DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT PASSING A SPEAKING ORDER AS NEEDED U/S 250(6) OF THE ACT. FURTHER, REFERRING TO THE DECISION OF PUNE BENCH OF THE TRIBUNAL IN THE CASE OF DCIT VS. PRIDE PURPLE SHETH VIDE ITA NO.424/PUN/2016 FOR THE ASSESSMENT YEAR 2011-12 DATED 20.12.2017, LD. COUNSEL SUBMITTED THAT SIMILAR MATTER I.E. INCLUSION OF TERRACE WITHIN THE MEANING OF THE BUILT-UP AREA, WAS THE SUBJECT MATTER OF ADJUDICATION BEFORE THE TRIBUNAL AND THE TRIBUNAL AFTER CONSIDERING THE VARIOUS DECISIONS OF OTHER BENCHES OF THE TRIBUNAL DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. 4. ON THE OTHER HAND, LD. DR FOR THE REVENUE RELIED HEAVILY ON THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND SUBMITTED THAT THE SAID DECISION OF THE TRIBUNAL (SUPRA) ARE DISTINGUISHABLE ON FACTS. STATING THAT THE TERRACE PROVIDED 3 ITA NO.2306/PUN/2017 TO EACH OF 40 FLATS AS EXCLUSIVELY IN THAT CASE THE TERRACE AREA BECOMES PART OF THE BUILT-UP AREA. 5. WE HEARD BOTH THE SIDES ON THIS LIMITED ISSUE AND PERUSED THE ORDERS OF THE REVENUE. FOR THE SAKE OF COMPLETENESS, THE CONTENTS OF PARA 5.3.2 OF THE ORDER OF THE CIT(A) ARE EXTRACTED HEREUNDER :- 5.3.2 IN THE CASE OF THE APPELLANT, THERE ARE 40 UNITS WHERE TERRACE IS GIVEN EXCLUSIVELY TO THE FLOAT HOLDERS, THE ACCESS TO WHICH IS THROUGH THE FLAT OF THE FLAT HOLDER WHICH IS AT THE FLOOR LEVEL AND IS THE TERRACE OF THE IMMEDIATELY LOWER FLAT. THE TERRACE OF THE SAID 40 UNITS IS NOT AVAILABLE AS A COMMON TERRACE TO THE OTHER FLAT OWNERS IN THE SAID BUILDING. ONE OF THE MOST IMPORTANT CONDITIONS FOR CLAIMING DEDUCTION U/S 80IB (10) OF THE INCOME TAX ACT 1961 IS THAT THE BUILT-UP AREA OF EACH FLAT SHOULD NOT INCREASE 1500 SQ. FT. AS THE APPELLANT HAS NOT SATISFIED THE BASIC CONDITION DISCUSSED ABOVE AND HENCE THE CLAIM OF THE APPELLANT TO ALLOW THE DEDUCTION U/S. 80IB (10) OF THE INCOME TAX ACT 1961 IS REJECTED. GROUND 1 & 2 AS RAISED BY THE APPELLANT IS DISMISSED. 6. FROM THE ABOVE, IT IS EVIDENT THAT THE CIT(A) IGNORED THE DECISIONS CITED BY THE ASSESSEE. WITHOUT REFERRING TO THE DECISIONS CITED, THE CIT(A) DECIDED THE ISSUE AGAINST THE ASSESSEE. IN OUR VIEW, SUCH AN APPROACH IS UNSUSTAINABLE IN LAW. THEREFORE, THE MATTER HAS TO BE RE-EXAMINED BY THE CIT(A) AFTER CONSIDERING THE DECISIONS CITED BEFORE HIM INCLUDING THE DECISION OF PUNE BENCH OF THE TRIBUNAL IN THE CASE OF PRIDE PURPLE SHETH (SUPRA) CITED BEFORE US. THE CIT(A) IS DIRECTED TO PASS A SPEAKING ORDER CONSIDERING THE FACTS OF THE PRESENT CASE AND COMPARING THE SAME TO THAT OF THE FACTS OF THE CASES RELIED ON BY THE ASSESSEE BEFORE THE CIT(A) AS WELL AS BEFORE US. WITH THESE DIRECTIONS, THE ISSUE RAISED BY THE ASSESSEE IS REMITTED BACK TO THE FILE OF THE CIT(A) FOR FRESH ADJUDICATION. THE CIT(A) SHALL DECIDE THE ISSUE AFTER GRANTING 4 ITA NO.2306/PUN/2017 REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS PER SET PRINCIPLES OF NATURAL JUSTICE. THUS, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 01 ST DAY OF OCTOBER, 2019. SD/- SD/- (PARTHA SARATHI CHAUDHURY) (D. KARUNAKARA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 01 ST OCTOBER, 2019 SUJEET / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A)-4, PUNE. 4. THE PR. CCIT, PUNE. 5. , , , / DR, ITAT, B BENCH, PUNE. 6. / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE.