Arun Bhagwat Patil, Nashik V. ITO Ward 2(2), Nashik

ITA 2309/PUN/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8480 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 9 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 23-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P S NAIK
• Assessee Lawyers: CHARUHAS D UPASANI; SAHIL V GARUD
• Keywords: Rule of consistency
• Section: 80IB; 147; 144; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO.2282/PN/2012 (ASSESSMENT YEAR : 2006-07) INCOME TAX OFFICER, WARD- 2(2), NASHIK. . APPELLANT VS. SHRI ARUN BHAGWAT PATIL, BUILDING NO.2, STADIUM COMPLEX, M.G. ROAD, NASHIK. PAN : AANPP4495P . RESPONDENT ITA NOS.2309, 2310, 2311 & 2312/PN/2012 (A. YS. : 2004-05, 2005-06, 2007-08 & 2009-10) ARUN BHAGWAT PATIL, C/O GARUD ASSOCIATES 1, ABHISHIKTA CHS, VISE MALA, OFF. COLLEGE ROAD, NASHIK 422 005. PAN : AANPP4495P . APPELLANT VS. INCOME TAX OFFICER, WARD- 2(2), NASHIK. . RESPONDENT DEPARTMENT BY : MR. P. S. NAIK ASSESSEE BY : MR. SAHIL V. GARUD & MR. CHARUHAS D. UPASANI DATE OF HEARING : 09-09-2014 DATE OF PRONOUNCEMENT : 15-09-2014 ORDER PER G. S. PANNU, AM THE CAPTIONED ARE FIVE APPEALS, FOUR PREFERRED BY T HE ASSESSEE RELATING TO ASSESSMENT YEARS 2004-05, 2005-06, 2007-08 AND 2 009-10 WHEREAS ONE APPEAL HAS BEEN PREFERRED BY THE REVENUE RELATING T O ASSESSMENT YEAR 2006- 07. SINCE ALL THE CAPTIONED APPEALS RELATE TO THE SAME ASSESSEE AND INVOLVE A COMMON ISSUE, THEY HAVE BEEN CLUBBED AND HEARD TOGE THER AND A CONSOLIDATED ORDER IS BEING PASSED FOR THE SAKE OF CONVENIENCE AND BREVITY. ITA NOS.1299 & 1300/PN/2012 A. Y. : 2008-09 2. ALL THE CAPTIONED APPEALS ARE DIRECTED AGAINST T WO SIMILARLY WORDED ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS)- II, NASHIK DATED 14.09.2012 WHICH, IN TURN, HAS ARISEN FROM SEPARATE ORDERS DATED 26.12.2011 PASSED BY THE ASSESSING OFFICER U/S 144 R.W.S. 147 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) PERTAINING TO THE ASSESSM ENT YEARS 2004-05, 2005-06, 2006-07 AND 2007-08, AND U/S 144 OF THE ACT FOR THE ASSESSMENT YEAR 2009- 10 RESPECTIVELY. 3. IN ALL THE APPEALS THE SOLITARY DISPUTE RELATES TO ASSESSEES CLAIM FOR DEDUCTION U/S 80IB(10) OF THE ACT WITH RESPECT TO T HE PROFITS EARNED FROM EXECUTION OF A HOUSING PROJECT. FOR ASSESSMENT YEA RS 2004-05, 2005-06, 2007-08 AND 2009-10, THE CIT(A) HAD SUSTAINED THE A CTION OF THE ASSESSING OFFICER DENYING ASSESSEES CLAIM FOR DEDUCTION U/S 80IB(10) OF THE ACT WHEREAS IN ASSESSMENT YEAR 2006-07 THE CIT(A) ALLOW ED THE CLAIM OF THE ASSESSEE. IN THIS BACKGROUND, ASSESSEE IS IN APPEA L BEFORE US ASSAILING THE ORDER OF THE CIT(A) DENYING RELIEF U/S 80IB(10) OF THE ACT WHEREAS FOR ASSESSMENT YEAR 2006-07 REVENUE IS IN APPEAL BEFORE US ASSAILING THE ORDER OF THE CIT(A) ALLOWING RELIEF U/S 80IB(10) OF THE A CT. 4. IN ORDER TO APPRECIATE THE CONTROVERSY, WE MAY R EFER TO THE FACTS IN RELATION TO ASSESSMENT YEAR 2004-05. ASSESSEE IS A N INDIVIDUAL WHO IS ENGAGED IN CONSTRUCTION ACTIVITY AND FOR ASSESSMENT YEAR 2004-05 HE FILED A RETURN OF INCOME ORIGINALLY ON 10.08.2006 DECLARING INCOME AT NIL. SUBSEQUENTLY, THE ASSESSING OFFICER ISSUED NOTICE U /S 147/148 OF THE ACT REOPENING THE ASSESSMENT FOR THE PURPOSES OF VERIFI CATION OF THE DEDUCTION CLAIMED U/S 80IB(10) OF THE ACT. CONSEQUENTLY, THE IMPUGNED ASSESSMENT HAS BEEN FINALIZED BY THE ASSESSING OFFICER U/S 144 R.W .S. 147 OF THE ACT DATED 26.12.2011 WHEREBY ASSESSEES CLAIM FOR DEDUCTION U /S 80IB(10) OF THE ACT IN RELATION TO THE PROFITS EARNED FROM EXECUTION OF IT S HOUSING PROJECT, NAMED, SHUBHAM PARK AMOUNTING TO RS.41,13,581/- (RESTRICTE D TO RS.8,16,651/-) HAS ITA NOS.1299 & 1300/PN/2012 A. Y. : 2008-09 BEEN DENIED. THE REASONS ADVANCED BY THE ASSESSING OFFICER IN ORDER TO DENY THE CLAIM OF DEDUCTION WERE TWOFOLD. FIRSTLY, AS P ER THE ASSESSING OFFICER, THE HOUSING PROJECT I.E. SHUBHAM PARK WAS APPROVED BY T HE LOCAL AUTHORITY I.E. NASHIK MUNICIPAL CORPORATION AS A RESIDENTIAL-CUM-C OMMERCIAL PROJECT. THE COMMERCIAL AREA COMPRISED IN THE TOTAL BUILT-UP ARE A OF THE PROJECT WAS ROUGHLY 8%. AS PER THE ASSESSING OFFICER, PRIOR TO 01.04.2 005, THE DEDUCTION U/S 80IB(10) OF THE ACT WAS AVAILABLE ONLY TO PURE HOUS ING PROJECTS MEANING THEREBY THAT A HOUSING PROJECT WITH A COMPONENT OF COMMERCIAL AREA WAS INELIGIBLE FOR THE CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT. THE SECOND REASON ADVANCED BY THE ASSESSING OFFICER WAS THAT T HE RETURN OF INCOME ORIGINALLY FILED BY THE ASSESSEE WAS NOT FILED WITH IN THE DUE DATE PRESCRIBED U/S 139(1) OF THE ACT AND THEREFORE IN TERMS OF SECTION 80AC OF THE ACT, THE DEDUCTION U/S 80IB(10) OF THE ACT COULD NOT BE ALLO WED TO THE ASSESSEE. 5. WHEN THE MATTER TRAVELLED TO THE CIT(A), ASSESSE E POINTED OUT THAT THE COMMERCIAL AREA CONTAINED IN THE HOUSING PROJECT WA S IN ACCORDANCE WITH DEVELOPMENT CONTROL RULES OF THE LOCAL AUTHORITY AN D THEREFORE THE SAME CONSTITUTED A HOUSING PROJECT WITHIN THE MEANING OF SECTION 80IB(10) OF THE ACT. THE CIT(A) HAS ACCEPTED THE PLEA OF THE ASSESSEE BY MAKING THE FOLLOWING DISCUSSION :- 11. ON PERUSAL OF ABOVE PROVISIONS OF THE ACT, I F IND THAT PRIOR TO 01/04/2005 THERE WAS NO RESTRICTION IN SEC 80IB(10) WITH RESPECT TO ANY LIMIT FOR COMMERCIAL ELEMENT. IN FACT CLAUSE (D) IN SERTED IN SEC. 80IB(10) W.E.F. 01/04/2005 BROUGHT RESTRICTION ON A HOUSING PROJECT TO LIMIT THE COMMERCIAL ELEMENT UP TO 5% OF THE AGGREGATE BUILT UP AREA OR 2000 SQ. FT., WHICHEVER IS LESS. THE SAID AMENDMENT IS NOT RETROS PECTIVE. THIS VIEW IS FORTIFIED BY THE HON'BLE BOMBAY HIGH COURT IN THE C ASE OF CIT VS. BRAMHA ASSOCIATES [239 CTR (BOM) 30] WHEREIN IT HAS HELD THAT THE AMENDMENTS BROUGHT IN BY THE FINANCE (NO.2) ACT 2004 ARE PROSP ECTIVE IN NATURE FROM AY 2005-06 AND NOT RETROSPECTIVE. THE HON'BLE HIGH COURT OF MUMBAI IN THE CASE OF CIT VS. M/S BRAHMA ASSOCIATES HAS HELD THAT EVEN A COMMERCIAL ELEMENT UP TO 50% WILL NOT RESULT IN DEN IAL OF 80IB(10) DEDUCTION IF THE PROJECT WAS APPROVED BY THE LOCAL AUTHORITIES AND THERE WAS NO SPECIFIC PROVISIONS TO PROHIBIT THE SAME. IN THE PRESENT CASE THE COMMERCIAL AREA IS LESS THAN 10% OF THE TOTAL HOUSI NG PROJECT. THE PROVISION AS THEY STOOD BEFORE 01/04/2005 DO NOT NE GATE USE OF SOME BUILT- UP AREA FOR COMMERCIAL PURPOSE. ITA NOS.1299 & 1300/PN/2012 A. Y. : 2008-09 12. IN VIEW OF THE FACTS AND CIRCUMSTANCES AS MENTI ONED ABOVE AND TAKING INTO CONSIDERATION THE PROVISIONS OF SEC 80IB(10) OF THE ACT RELEVANT FOR THE PERIOD WHEN THE APPELLANT COMMENCE D AND COMPLETED THE HOUSING PROJECT, I AM OF THE CONSIDERED VIEW THAT I TS CASE IS DIRECTLY COVERED BY THE DECISION OF HON'BLE BOMBAY HIGH COUR T IN THE CASE OF M/S BRAHMA ASSOCIATES WHEREIN IT HAS HELD AS FOLLOWS: A) UP TO 31/03/2005 (SUBJECT TO FULFILLING OTHER COND ITION), DEDUCTION U/S 80IB(10) IS ALLOWABLE TO HOUSING PROJ ECTS APPROVED BY THE LOCAL AUTHORITY HAVING RESIDENTIAL UNITS WITH C OMMERCIAL USER TO THE EXTENT PERMITTED UNDER THE DC RULES/REGULATIONS FRAMED BY THE RESPECTIVE LOCAL AUTHORITY. B) IN SUCH A CASE, WHERE THE COMMERCIAL USER PERMITTE D BY THE LOCAL AUTHORITY IS WITHIN THE LIMITS PRESCRIBED UND ER THE DC RULES/ REGULATION, THE DEDUCTION U/S 80IB(10) UP TO 31/03/2005 WOULD BE ALLOWABLE IRRESPECTIVE OF THE FACT THAT TH E PROJECT IS APPROVED AS 'HOUSING PROJECT' OR 'RESIDENTIAL PLUS COMMERCIAL'. C) IN THE ABSENCE OF ANY PROVISIONS UNDER THE INCOME TAX ACT, THE TRIBUNAL WAS NOT JUSTIFIED IN HOLDING THAT UPTO 31/03/2005 DEDUCTION U/S 80IB(10) WOULD BE ALLOWABLE TO THE PR OJECTS IS APPROVED BY THE LOCAL AUTHORITY HAVING RESIDENTIAL BUILDING WITH COMMERCIAL USER UPTO 10% OF THE BUILT-UP AREA OF TH E PLOT. D) SINCE DEDUCTIONS U/S 80IB(10) IS ON THE PROFITS DE RIVED FROM THE HOUSING PROJECTS APPROVED BY THE LOCAL AUTHORIT Y AS A WHOLE, THE TRIBUNAL WAS NOT JUSTIFIED IN RESTRICTING U/S 80IB( 10) DEDUCTION ONLY TO A PART OF THE PROJECT. HOWEVER, IN THE PRESENT C ASE, SINCE THE ASSESSEE HAS ACCEPTED THE DECISION OF THE TRIBUNAL IN ALLOWING U/S 80IB(10) DEDUCTION TO A PART OF THE PROJECT, WE DO NOT DISTURB THE FINDINGS OF THE TRIBUNAL IN THAT BEHALF. E) CLAUSE (D) INSERTED TO U/S 80IB(10) WITH EFFECT FR OM 1/4/2005 IS PROSPECTIVE AND NOT RETROSPECTIVE AND HENCE CANNOT BE APPLIED FOR THE PERIOD PRIOR TO 1/4/2005. 6. OSTENSIBLY, THE CIT(A) HAS FOLLOWED THE JUDGEMEN T OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF BRAHMA ASSOCIATES (SUPRA) TO HOLD THAT FOR HOUSING PROJECTS APPROVED PRIOR TO 01.04.2005, EXIS TENCE OF COMMERCIAL AREA WOULD NOT RESULT IN DENIAL OF DEDUCTION U/S 80IB(10 ) OF THE ACT, IF THE PROJECT WAS APPROVED BY THE LOCAL AUTHORITY ACCORDING TO THE RULES PERTAINING TO EXISTENCE OF COMMERCIAL AREA IN A HOUSING PROJECT. ACCORDING TO THE CIT(A), THE PROVISIONS OF SECTION 80IB(10) OF THE ACT AS IT STOOD BEFORE 01.04.2005, DID NOT NEGATE PRESENCE OF COMMERCIAL AREA IN THE TOTAL BUILT-UP AREA FOR THE PURPOSE OF SECTION 80IB(10) OF THE ACT. THUS, THE CIT(A) DISAGREED WITH THE ASSESSING OFFICER ON THIS ASPECT. HAVING FOUND THE ASSESSEES PROJECT ELIGIBLE FOR SECTION 80IB(10) BENEFITS, YET THE CIT(A) DENIE D THE CLAIM OF THE ASSESSEE ON THE GROUND THAT THE RETURN OF INCOME WAS ORIGINA LLY FILED BY THE ASSESSEE ON ITA NOS.1299 & 1300/PN/2012 A. Y. : 2008-09 10.08.2006 WAS BEYOND THE TIME LIMIT PRESCRIBED IN SECTION 139(1) OF THE ACT, THEREBY INVITING THE RESTRICTION IMPOSED BY SECTION 80AC OF THE ACT. ACCORDINGLY, IN THE ULTIMATE ANALYSIS, THE CIT(A) S USTAINED THE ACTION OF THE ASSESSING OFFICER IN DISALLOWING CLAIM FOR DEDUCTIO N U/S 80IB(10) OF THE ACT. 7. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE POINTED OUT THAT SECTION 80AC OF THE ACT DOES NOT IMPACT ASSESSEES CLAIM FO R DEDUCTION IN RELATION TO ASSESSMENT YEARS 2004-05 AND 2005-06 SINCE THE SAID SECTION IS APPLICABLE FOR ASSESSMENT YEAR 2006-07 ONWARDS. AT THE TIME O F HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE ALSO POINTED OUT THAT THE CIT(A) ARRIVED AT HIS FINDINGS WITH RESPECT TO THE ELIGIBILITY FOR THE RE LIEF U/S 80IB(10) OF THE ACT AFTER OBTAINING A REMAND REPORT FROM THE ASSESSING OFFICE R. 8. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPR ESENTATIVE HAS ASSAILED THE ARGUMENTS OF THE ASSESSEE BY RELYING O N THE ORDERS OF THE AUTHORITIES BELOW. 9. IN SO FAR AS THE ASSESSMENT YEAR 2004-05 IS CONC ERNED, THE ONLY REASON WHICH SURVIVES FOR CONSIDERATION IN THE APPEAL OF T HE ASSESSEE, AFTER THE ORDER OF THE CIT(A), IS ON ACCOUNT OF APPLICATION OF SECT ION 80AC OF THE ACT. PERTINENTLY, THE ASSESSING OFFICER HAD ALSO FOUND F AULT WITH THE ASSESSEES CLAIM FOR DEDUCTION U/S 80IB(10) OF THE ACT ON ACCO UNT OF PRESENCE OF COMMERCIAL AREA IN THE TOTAL BUILT-UP AREA OF THE P ROJECT. THIS ASPECT OF THE MATTER HAS BEEN HELD IN FAVOUR OF THE ASSESSEE BY T HE CIT(A) AND AGAINST THE SAME THERE IS NO APPEAL PREFERRED BY THE REVENUE. BE THAT AT IT MAY, THE ONLY ISSUE IN ASSESSEES APPEAL FOR ASSESSMENT YEAR 2004 -05 IS DENIAL OF THE DEDUCTION U/S 80IB(10) OF THE ACT ON ACCOUNT OF APP LICATION OF SECTION 80AC OF THE ACT. ITA NOS.1299 & 1300/PN/2012 A. Y. : 2008-09 10. SECTION 80AC OF THE ACT PROVIDES THAT NO DEDUCT ION ADMISSIBLE UNDER SECTION 80-IA OR SECTION 80-IAB OR SECTION 80-IB OR SECTION 80-IC OR SECTION 80- ID OR SECTION 80-IE SHALL BE ALLOWED UNLESS ASSESSE E FURNISHES A RETURN OF HIS INCOME FOR SUCH ASSESSMENT YEAR ON OR BEFORE DUE DA TE SPECIFIED UNDER SUB- SECTION (1) OF SECTION 139 OF THE ACT. ON THE BASI S OF SECTION 80AC OF THE ACT, IT IS CLAIMED BY THE REVENUE THAT THE RETURN OF INC OME FOR ASSESSMENT YEAR 2004-05 WAS ORIGINALLY FILED BY THE ASSESSEE ON 10. 08.2006, WHICH IS BEYOND THE DUE DATE SPECIFIED U/S 139(1) OF THE ACT FOR TH E SAID ASSESSMENT YEAR AND THEREFORE THE CLAIM U/S 80IB(10) OF THE ACT CANNOT BE ALLOWED. IN OUR CONSIDERED OPINION, THE STAND OF THE REVENUE IS QUI TE MISPLACED BECAUSE SECTION 80AC OF THE ACT IS RELEVANT FROM ASSESSMENT YEAR 2006-07 ONWARDS. THE PRESENCE OF THE EXPRESSION ASSESSMENT YEAR COMMENCING ON THE 1 ST DAY OF APRIL, 2006 OR ANY SUBSEQUENT ASSESSMENT YEAR IN THE OPENING SENTENCE OF SECTION 80AC OF THE ACT REFLECTS THAT THE RESTRICTI ON CONTAINED THEREIN IS NOT APPLICABLE IN COMPUTING TOTAL INCOME OF THE ASSESSE E OF THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION , I.E. 2004-05. IN VIEW OF THE AFORESAID, WE ARE UNABLE TO UPHOLD THE ACTION O F THE CIT(A) ON THIS ASPECT. NOTABLY, IN PARA 7 OF HIS ORDER, CIT(A) HAS REPRODU CED A TABULATION WHICH SHOWS THAT FOR ASSESSMENT YEAR 2004-05, THE RETURN OF INCOME FILED BY THE ASSESSEE ON 10.08.2006 WAS ACCOMPANIED BY AUDIT REP ORT IN FORM NO.3CB & 3CD AS WELL AS THE REPORT IN FORM NO.10CCB RELATING TO CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT. THEREFORE, IN SO FAR AS THE A SSESSMENT YEAR 2004-05 IS CONCERNED, WE CONCLUDE BY HOLDING THAT THE PROVISIO NS OF SECTION 80AC OF THE ACT HAVE BEEN WRONGLY INVOKED TO DENY ASSESSEES CL AIM FOR DEDUCTION U/S 80IB(10) OF THE ACT. 11. IN VIEW OF THE AFORESAID DISCUSSION, WE SET-ASI DE THE ORDER OF THE CIT(A) AND DIRECT THE ASSESSING OFFICER TO ALLOW THE ASSES SEES CLAIM FOR DEDUCTION U/S 80IB(10) OF THE ACT IN RELATION TO ASSESSMENT Y EAR 2004-05. ITA NOS.1299 & 1300/PN/2012 A. Y. : 2008-09 12. NOW, WE MAY TAKE-UP THE APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2005-06 WHEREIN ASSESSEES CLAIM FOR DEDUCTION U/S 80IB(10) OF THE ACT AMOUNTING TO RS.26,06,523/- HAS BEEN DENIED BY THE ASSESSING OFFICER ON IDENTICAL GROUNDS AS WAS DONE BY HIM FOR ASSESSMENT YEAR 2004-05. THE CIT(A) HAS ALSO DEALT WITH ASSESSEES APPEAL IN A M ANNER SIMILAR TO WHAT HAS BEEN EXAMINED BY US IN EARLIER PARAGRAPHS IN RELATI ON TO ASSESSMENT YEAR 2004-05. IN THIS YEAR ALSO THE ONLY ISSUE SURVIVIN G IN ASSESSEES APPEAL IS THE DENIAL OF DEDUCTION U/S 80IB(10) OF THE ACT BY APPL ICATION OF SECTION 80AC OF THE ACT. 13. ON THIS ASPECT, WE HAVE ALREADY EXAMINED THE PH RASEOLOGY OF SECTION 80AC OF THE ACT AND FOUND THAT THE SAME CANNOT BE I NVOKED IN RELATION TO AN ASSESSMENT YEAR COMMENCING PRIOR TO 01.04.2006 AND THEREFORE FOR THE ASSESSMENT YEAR UNDER CONSIDERATION I.E. 2005-06, T HE LOWER AUTHORITIES HAVE ERRED IN INVOKING SECTION 80AC OF THE ACT IN ORDER TO DENY THE DEDUCTION U/S 80IB(10) OF THE ACT. THEREFORE, FOLLOWING OUR DECI SION IN THE EARLIER PARAGRAPHS IN RELATION TO ASSESSMENT YEAR 2004-05, IN THIS YEA R ALSO WE SET-ASIDE THE ORDER OF THE CIT(A) AND DIRECT THE ASSESSING OFFICE R TO ALLOW ASSESSEES CLAIM FOR DEDUCTION U/S 80IB(10) OF THE ACT AMOUNTING TO RS.26,06,523/-. 14. NOW, WE MAY TAKE-UP ASSESSEES APPEAL FOR ASSES SMENT YEAR 2007-08. IN THIS YEAR, THE ASSESSING OFFICER DISALLOWED ASSE SSEES CLAIM FOR DEDUCTION U/S 80IB(10) OF THE ACT AMOUNTING TO RS.30,76,831/- FOR TWO REASONS. FIRSTLY, THE ASSESSING OFFICER FOLLOWED HIS STAND FOR ASSESS MENT YEAR 2004-05 AND HELD THAT PRESENCE OF COMMERCIAL AREA IN THE TOTAL BUILT-UP AREA OF THE PROJECT DISENTITLED THE ASSESSEE FROM THE CLAIM OF DEDUCTIO N U/S 80IB(10) OF THE ACT. SECONDLY, THE ASSESSING OFFICER NOTED THAT THE RETU RN OF INCOME FILED BY THE ASSESSEE WAS NOT ACCOMPANIED BY THE PRESCRIBED AUDI T REPORT IN FORM NO.10CCB FOR THE PURPOSES OF THE CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT. ITA NOS.1299 & 1300/PN/2012 A. Y. : 2008-09 15. IN SO FAR AS THE FIRST REASON IS CONCERNED, THE CIT(A) FOLLOWED HIS EARLIER DECISION FOR ASSESSMENT YEAR 2004-05 AND HELD THE P ROJECT OF THE ASSESSEE ELIGIBLE FOR SECTION 80IB(10) BENEFITS FOLLOWING TH E JUDGEMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF BRAHMA ASSOCIATES (SUPRA). HOWEVER, IN RELATION TO SECOND REASON, ACCORDING TO THE CIT(A), FILING OF THE AUDIT REPORT IN FORM NO.10CCB FOR THE PURPOSES OF THE CLAIM OF DEDU CTION U/S 80IB(10) OF THE ACT ALONGWITH THE RETURN OF INCOME WAS MANDATORY. SINCE, FORM NO.10CCB WAS NOT FILED ALONGWITH THE RETURN OF INCOME FILED U/S 139(1) OF THE ACT ON 31.10.2007, THE CIT(A) HELD THAT ASSESSEE WAS RIGHT LY DENIED THE BENEFIT OF SECTION 80IB(10) OF THE ACT. THEREFORE, IN SUM AND SUBSTANCE, THE CIT(A) HAS DENIED ASSESSEES CLAIM FOR DEDUCTION U/S 80IB(10) OF THE ACT ONLY ON ACCOUNT OF NON-FILING OF FORM NO.10CCB ALONGWITH THE RETURN OF INCOME FILED U/S 139(1) OF THE ACT FOR ASSESSMENT YEAR 2007-08. 16. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE VEHEMENTLY POINTED OUT THAT NON-FURNISHING OF FORM NO.10CCB ALONGWITH THE RETURN OF INCOME WAS NOT A MANDATORY PROVISION BUT WAS ONLY A DIRECTORY PROV ISION. IN-FACT, IT HAS BEEN POINTED OUT THAT THE REQUISITE FORM NO.10CCB WAS FU RNISHED IN THE COURSE OF PROCEEDINGS BEFORE THE CIT(A). THE LEARNED COUNSEL FURTHER POINTED OUT THAT IN THE COURSE OF PROCEEDINGS BEFORE THE CIT(A), THE EN TIRE SUBMISSIONS MADE BY THE ASSESSEE WERE FORWARDED TO THE ASSESSING OFFICE R FOR SEEKING A REMAND REPORT. IT WAS THEREFORE POINTED OUT THAT SO FAR A S ASSESSMENT YEAR 2007-08 IS CONCERNED, THE FORM NO.10CCB WAS AVAILABLE WITH THE ASSESSING OFFICER, THOUGH IN THE COURSE OF REMAND PROCEEDINGS CONDUCTE D BY THE CIT(A). IN THIS CONTEXT, RELIANCE HAS BEEN PLACED ON THE JUDGEMENT OF THE HONBLE JAMMU & KASHMIR HIGH COURT IN THE CASE OF CIT VS. TREHAN EN TERPRISES, (2001) 248 ITR 333 (J&K) FOR THE PROPOSITION THAT DEDUCTION COULD NOT BE DENIED, ONCE THE REQUISITE REPORT WAS ON RECORD OF THE CIT(A), EVEN IF THE SAME WAS NOT FILED BEFORE THE ASSESSING OFFICER. FOR SIMILAR PROPOSIT ION, RELIANCE HAS ALSO BEEN PLACED ON THE JUDGEMENT OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF CIT ITA NOS.1299 & 1300/PN/2012 A. Y. : 2008-09 VS. JAYANT PATEL, (2001) 117 TAXMANN.COM 707 (MAD.) . IT HAS ALSO BEEN SUBMITTED THAT THE CHANDIGARH BENCH OF THE TRIBUNAL IN THE CASE OF SURYA PHARMACEUTICALS VIDE ITA NO.296/CHD/2007 DATED 18.0 8.2010, FOLLOWING THE JUDGEMENT OF THE HONBLE JAMMU & KASHMIR HIGH COURT IN THE CASE OF TREHAN ENTERPRISES (SUPRA) HAD ALLOWED THE CLAIM OF DEDUCT ION U/S 80IB(10) OF THE ACT WHEREIN THE REQUISITE FORM NO.10CCB WAS NOT FILED B EFORE THE ASSESSING OFFICER, BUT THE SAME WAS SUBMITTED BEFORE THE CIT( A). FOR ALL THE ABOVE REASONS, IT IS SOUGHT TO BE CONTENDED THAT THE CIT( A) ERRED IN DENYING THE CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT FOR NON- FILING OF FORM NO.10CCB BEFORE THE ASSESSING OFFICER FOR ASSESSMENT YEAR 20 07-08. 17. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REP RESENTATIVE APPEARING FOR THE REVENUE CONTENDED THAT THE FILING OF AUDIT REPORT IN FORM NO.10CCB IS MANDATORY TO CLAIM DEDUCTION U/S 80IB(10) OF THE AC T. IN THIS CASE, IT IS POINTED OUT THAT THOUGH THE RETURN OF INCOME WAS ACCOMPANIE D BY THE REQUISITE AUDIT REPORT IN FORM NO.3CB & 3CD BUT THE REPORT IN FORM NO.10CCB IN RELATION TO CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT WAS NOT FURNISHED ALONGWITH THE RETURN OF INCOME. 18. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS. IN ASSESSMENT YEAR 2007-08, THE ONLY REASON BEING HELD AGAINST TH E ASSESSEE FOR DENYING THE DEDUCTION U/S 80IB(10) OF THE ACT IS THE FACT THAT ASSESSEE DID NOT SUBMIT THE PRESCRIBED FORM NO.10CCB ALONGWITH THE RETURN OF IN COME. THE REQUISITE FORM NO.10CCB HAS BEEN FURNISHED BY THE ASSESSEE AT THE TIME OF APPELLATE PROCEEDINGS BEFORE THE CIT(A). 19. AT THE TIME OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSMENT PROCEEDINGS WERE FINALIZED BEFO RE THE ASSESSING OFFICER IN AN EX PARTE MANNER AS THE ASSESSEE COULD NOT ATTEND THE ASSESS MENT PROCEEDINGS. HOWEVER, IT HAS BEEN SUBMITTED THAT B EFORE THE CIT(A) ASSESSEE ITA NOS.1299 & 1300/PN/2012 A. Y. : 2008-09 FURNISHED ALL REQUISITE MATERIAL INCLUDING PRESCRIB ED FORM NO.10CCB IN RELATION TO ASSESSEES CLAIM FOR DEDUCTION U/S 80IB(10) OF T HE ACT. IN THIS CONTEXT, THE FOLLOWING OBSERVATIONS OF THE HONBLE MADRAS HIGH C OURT IN THE CASE OF JAYANT PATEL (SUPRA) ARE RELEVANT :- IT IS NO DOUBT THAT IN THE CASE BEFORE THE GUJARAT HIGH COURT, THE ASSESSEE HAD FILED THE AUDIT REPORT THE ASSESSMENT CAME TO BE MADE AND IN THIS CASE, THE AUDIT REPORT WAS PRODUCED ONLY BEFOR E THE APPELLATE AUTHORITY. THAT FACT, HOWEVER, DOES NOT MAKE ANY DIFFERENCE IN SOFAR AS THE PURPOSE AND OBJECT OF THAT SECTION ARE CONCERNED AND THE MANNER IN WHICH THEY ARE TO BE ADVANCED. THE APPELLATE AUTHORITY UNDER THE ACT HAS ALSO TH E POWERS OF THE ORIGINAL AUTHORITY. IT IS OPEN TO THE APPELLANT AU THORITY TO DIRECT THE ITO TO RECEIVE THE AUDIT REPORT OR TO DIRECT HIM TO CONSID ER THE AUDIT REPORT FILED BEFORE THE APPELLATE AUTHORITY ON MERITS OR TO CONSIDER TH E REPORT HIMSELF. [UNDERLINED FOR EMPHASIS BY US] 20. THE ISSUE BEFORE THE HONBLE HIGH COURT WAS REL ATING TO DEDUCTION U/S 80J OF THE ACT WHICH WAS DENIED ON THE GROUND THAT ASSESSEE HAD NOT COMPLIED WITH THE MANDATORY PROVISION OF FILING AN AUDIT REPORT IN THE PRESCRIBED FORM ALONGWITH RETURN OF INCOME. THE RE QUISITE REPORT WAS FILED BEFORE THE CIT(A) WHO ALLOWED THE APPEAL OF THE ASS ESSEE THEREBY GRANTING THE CLAIM OF DEDUCTION U/S 80J OF THE ACT. THE TRI BUNAL HAD AFFIRMED THE ORDER OF THE CIT(A). THE HONBLE MADRAS HIGH COURT HELD THAT WHEN A RELIEF IS SOUGHT FOR U/S 80J OF THE ACT, THE FILING OF AUDIT REPORT ALONGWITH THE RETURN OF INCOME WAS NOT MANDATORY BUT IT WAS A DIRECTORY PRO VISION. THE HONBLE HIGH COURT FURTHER OBSERVED THAT IF THE AUDIT REPORT WAS FILED AT ANY TIME BEFORE FRAMING OF ASSESSMENT THE REQUIREMENT OF THE PROVIS IONS OF THE ACT SHOULD BE HELD TO HAVE BEEN MET. IN COMING TO SUCH CONCLUSIO N, THE HONBLE HIGH COURT RELIED UPON THE EARLIER JUDGEMENTS OF (I) HONBLE B OMBAY HIGH COURT IN THE CASE OF CIT VS. SHIVANAND ELECTRONICS, 219 ITR 721; (II) HONBLE GUJARAT HIGH COURT IN THE CASE OF ZENITH PROCESSING MILLS VS. CI T, 219 ITR 721; AND, (III) HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. MAHALAXMI RICE FACTORY, (2007) 294 ITR 631 (P&H). THEREFORE, IN V IEW OF THE AFORESAID JUDICIAL RULINGS, IT HAS TO BE UNDERSTOOD THAT THE REQUIREMENT OF FILING THE PRESCRIBED REPORT IN FORM NO.10CCB WITH RESPECT TO THE DEDUCTION U/S ITA NOS.1299 & 1300/PN/2012 A. Y. : 2008-09 80IB(10) OF THE ACT IS A DIRECTORY PROVISION AND NO T A MANDATORY REQUIREMENT, AS HELD BY THE CIT(A). THE AFORESAID ASPECT HAS AL SO FOUND FAVOUR WITH THE HONBLE JAMMU & KASHMIR HIGH COURT IN THE CASE OF T REHAN ENTERPRISES (SUPRA), WHEREIN IT HAS BEEN HELD THAT EVEN WHERE T HE PRESCRIBED FORM WAS ON RECORD BEFORE THE CIT(A), THE DEDUCTION OUGHT TO BE GRANTED TO THE ASSESSEE EVEN IF THE SAME WAS NOT FILED BEFORE THE ASSESSING OFFICER. APPLYING THE RATIO OF THE AFORESAID JUDGEMENTS TO THE FACTS OF THE PRE SENT CASE, WE FIND THAT THE CLAIM OF THE ASSESSEE HAS BEEN UNJUSTLY DENIED BY T HE CIT(A). IN-FACT, ASSESSEE POINTED OUT BEFORE US THAT AT NO OCCASION, IT WAS SHOW-CAUSED BY THE ASSESSING OFFICER ABOUT THE NON-AVAILABILITY OF FORM NO.10CCB ON RECORD. THEREFORE, IT WAS BEFORE THE CIT(A), ASSESSEE FURNI SHED THE REQUISITE FORM NO.10CCB AND IN-FACT, THE CIT(A) CALLED FOR A REMAN D REPORT FROM THE ASSESSING OFFICER ALSO. THEREFORE, CONSIDERING THE ENTIRETY OF FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, AND IN THE BACKG ROUND THE LEGAL POSITION ENUNCIATED BY THE HONBLE JAMMU & KASHMIR HIGH COUR T IN THE CASE OF TREHAN ENTERPRISES (SUPRA) AS ALSO BY THE HONBLE MADRAS H IGH COURT IN THE CASE OF JAYANT PATEL (SUPRA), IT HAS TO BE HELD THAT THE AC TION OF THE ASSESSEE IN FURNISHING THE REQUISITE REPORT IN FORM NO.10CCB BE FORE THE CIT(A), AND WHICH WAS AVAILABLE FOR VERIFICATION BY THE ASSESSING OFF ICER IN THE COURSE OF REMAND PROCEEDINGS CONDUCTED BY THE CIT(A), COMPLIES WITH THE REQUIREMENT OF FILING THE PRESCRIBED REPORT FOR CLAIM OF DEDUCTION U/S 80 IB(10) OF THE ACT. THEREFORE, WE FIND THAT THE CLAIM OF THE ASSESSEE FOR DEDUCTIO N U/S 80IB(10) OF THE ACT PERTAINING TO ASSESSMENT YEAR 2007-08 IS REASONABLE AND DESERVES TO BE ALLOWED. WE HOLD SO. 21. IN CONCLUSION, WE SET-ASIDE THE ORDER OF THE CI T(A) AND DIRECT THE ASSESSING OFFICER TO ALLOW THE ASSESSEES CLAIM FOR DEDUCTION U/S 80IB(10) OF THE ACT IN RELATION TO ASSESSMENT YEAR 2007-08. ITA NOS.1299 & 1300/PN/2012 A. Y. : 2008-09 22. NOW, WE MAY TAKE-UP THE LAST APPEAL OF THE ASSE SSEE, WHICH PERTAINS TO ASSESSMENT YEAR 2009-10. IN THIS YEAR ALSO, THE ON LY ISSUE IS DENIAL OF ASSESSEES CLAIM FOR DEDUCTION U/S 80IB(10) OF THE ACT AMOUNTING TO RS.35,87,305/- PERTAINING TO PROFITS DERIVED FROM SHUBHAM PARK PROJECT. THE CLAIM HAS BEEN DENIED BY THE INCOME-TAX AUTHORITIES FOR SIMILAR REASONS DEALT BY US IN RELATION TO ASSESSMENT YEAR 2007-08 IN THE EARLIER PARAGRAPHS. 23. BEFORE US, IT WAS A COMMON GROUND BETWEEN THE P ARTIES THAT THE FACTS AND CIRCUMSTANCES IN ASSESSMENT YEAR 2009-10 WITH R ESPECT TO CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT IS SIMILAR TO THA T CONSIDERED BY US IN ASSESSMENT YEAR 2007-08 IN THE EARLIER PARAGRAPHS. THEREFORE, OUR DECISION FOR ASSESSMENT 2007-08 IN THE EARLIER PARAGRAPHS AP PLIES MUTATIS-MUTANDIS IN THIS YEAR TOO, AND THUS, THE APPEAL FOR ASSESSMENT YEAR 2009-10 IS ALSO ALLOWED. 24. NOW, WE MAY TAKE-UP THE APPEAL OF THE REVENUE W HICH PERTAINS TO ASSESSMENT YEAR 2006-07 WHEREIN THE GROUNDS OF APPE AL RAISED BY THE REVENUE READ AS UNDER :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED CIT (APPEALS)-LL, NASHIK ERRED IN DELETING THE ADDITION OF RS.36,12,672/- MADE ON ACCOUNT OF DISALLOWANCE OF D EDUCTION CLAIMED U/S 80IB(10) OF THE I T ACT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LEARNED CIT (APPEALS)-LL, NASHIK ERRED IN ACCEPTING THE ASSESSEE'S CONTENTION AS REGARDS TO INCLUSION OF COMMERCIAL UN IT IN HOUSING PROJECT & OWNERSHIP OF LAND RELYING ON VARIOUS DECISIONS GIVE N BY THE APPELLATE AUTHORITIES. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED CIT (APPEALS)-LL, NASHIK ERRED IN DELETING THE ADDITION MADE BY THE AO ON ACCOUNT OF DISALLOWANCE OF DEDUCTION CLAIMED AT RS.36,12,672/- U/S 80IB(10) OF THE I T ACT ON THE GROUND THAT PRIOR TO 01.04.2005 THERE WAS NO RESTRICTION IN SECTION 80IB WITH RESPECT TO LIMIT F OR COMMERCIAL ELEMENT IN HOUSING PROJECTS. ONLY AFTER 01.04.2005 CLAUSE (D) WAS INSERTED IN SECTION 80IB(10) BRINGING RESTRICTION IN HOUSING PROJECT TO LIMIT THE COMMERCIAL ELEMENT UPTO 5% OF THE AGGREGATE BUILT UP AREA OR 2 000 SQ FEET, WHICHEVER IS LESS RELYING ON VARIOUS DECISIONS GIVEN BY THE A PPELLATE AUTHORITIES. ITA NOS.1299 & 1300/PN/2012 A. Y. : 2008-09 25. ALTHOUGH, THE REVENUE HAS RAISED MULTIPLE GROUN DS OF APPEAL BUT THE SOLITARY GRIEVANCE IS AGAINST THE DECISION OF THE C IT(A) HOLDING THAT ASSESSEE WAS ELIGIBLE FOR THE CLAIM OF DEDUCTION U/S 80IB(10 ) OF THE ACT AMOUNTING TO RS.36,12,672/- WITH RESPECT TO THE PROFITS DERIVED BY THE ASSESSEE FROM ITS HOUSING PROJECT, NAMELY, SHUBHAM PARK. 26. IN BRIEF, THE RELEVANT FACTS ARE THAT ASSESSEE UNDERTOOK DEVELOPMENT AND CONSTRUCTION OF A HOUSING PROJECT, NAMELY, SHU BHAM PARK. THE PROFITS EARNED FROM THE SAID PROJECT DURING THE YEAR UNDER CONSIDERATION WERE CLAIMED AS EXEMPT U/S 80IB(10) OF THE ACT. THE ASSESSING O FFICER NOTICED THAT THE SAID PROJECT WAS APPROVED BY THE LOCAL AUTHORITY I.E. NA SHIK MUNICIPAL CORPORATION AS A RESIDENTIAL-CUM-COMMERCIAL PROJECT. THE ASSES SING OFFICER HAS FURTHER NOTICED THAT THE BUILT-UP AREA OF COMMERCIAL UNITS WAS APPROXIMATELY 8% OF THE TOTAL BUILT-UP AREA. SINCE THE PROJECT WAS APPROVE D PRIOR TO 01.04.2005, AS PER THE ASSESSING OFFICER, THE DEDUCTION U/S 80IB(10) O F THE ACT WAS TO BE RESTRICTED TO CONSTRUCTION OF RESIDENTIAL UNITS ONL Y IN RELATION TO DEVELOPMENT AND BUILDING OF A HOUSING PROJECT. BECAUSE THE PRO JECT DEVELOPED AND BUILT BY THE ASSESSEE INCLUDED COMMERCIAL BUILT-UP AREA THER EFORE THE ASSESSING OFFICER HELD THE ASSESSEE INELIGIBLE FOR THE CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT. THE ASSESSING OFFICER ALSO NOTED THAT W.E .F. 01.04.2005 CLAUSE (D) WAS INSERTED IN SECTION 80IB(10) OF THE ACT BRINGIN G RESTRICTION ON CONSTRUCTION OF COMMERCIAL AREA IN A HOUSING PROJECT. AS PER TH E SAID PROVISION COMMERCIAL AREA IN A HOUSING PROJECT WAS LIMITED TO 5% OF THE AGGREGATE BUILT-UP AREA OR 2000 SQ.FT., WHICHEVER IS LESS. THE ASSESSING OFFI CER HELD THAT EVEN THIS CONDITION WAS NOT FULFILLED BY THE ASSESSEE, AS THE COMMERCIAL AREA WAS APPROXIMATELY 8% OF THE TOTAL BUILT-UP AREA. 27. THE CIT(A) HELD THAT THE AFORESAID OBJECTION OF THE ASSESSING OFFICER WAS UNFOUNDED. ACCORDING TO HIM, PRIOR TO 01.04.20 05 THERE WAS NO RESTRICTION PRESCRIBED IN SECTION 80IB(10) OF THE ACT WITH RESP ECT TO THE LIMIT ON ITA NOS.1299 & 1300/PN/2012 A. Y. : 2008-09 COMMERCIAL AREA IN A HOUSING PROJECT. THEREFORE, A CCORDING TO HIM THE RESTRICTION CONTAINED IN CLAUSE (D) OF SECTION 80IB (10) OF THE ACT, WHICH WAS INSERTED W.E.F. 01.04.2005, WOULD NOT BE APPLICABLE IN THE INSTANT CASE BECAUSE THE PROJECT OF THE ASSESSEE WAS APPROVED BY THE LOCAL AUTHORITY PRIOR TO 01.04.2005. THE CIT(A) ALSO HELD THAT SO LONG A S THE PROJECT OF THE ASSESSEE WAS APPROVED BY THE LOCAL AUTHORITY INCLUS IVE OF THE COMMERCIAL AREA, AND THE SAME BEING IN ACCORDANCE WITH THE LOC AL DEVELOPMENT CONTROL RULES, THE SAME WAS ENTITLED TO THE CLAIM OF DEDUCT ION U/S 80IB(10) OF THE ACT. IN COMING TO SUCH CONCLUSION, THE CIT(A) HAS RELIED UPON THE JUDGEMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF BRAHMA ASS OCIATES (SUPRA). 28. IN THE COURSE OF REMAND PROCEEDINGS BEFORE THE CIT(A), ASSESSING OFFICER RAISED ANOTHER OBJECTION WITH REGARD TO THE OWNERSHIP OF THE LAND ON WHICH ASSESSEE HAD DEVELOPED THE HOUSING PROJECT, SHUBHAM PARK. AS PER THE ASSESSING OFFICER, ASSESSEE WAS NOT OWNER OF TH E LAND ON WHICH THE IMPUGNED PROJECT WAS DEVELOPED AND THEREFORE ASSESS EE WAS NOT ELIGIBLE FOR SECTION 80IB(10) BENEFITS. ON THIS ASPECT, THE CIT (A) HELD THAT LEGAL OWNERSHIP FOR THE LAND ON WHICH THE PROJECT WAS DEVELOPED, WA S NOT A CRITERIA FOR EXAMINING THE CLAIM OF DEDUCTION U/S 80IB(10) OF TH E ACT. FOR THE AFORESAID PROPOSITION, CIT(A) RELIED UPON THE DECISION OF THE AHMEDABAD BENCH OF THE TRIBUNAL IN THE CASE OF NIKHIL ASSOCIATES VS. ITO, (2011) 12 TAXMANN.COM 76 (AHD) AND ALSO THE DECISION OF THE CHENNAI BENCH OF THE TRIBUNAL IN THE CASE OF ACIT VS. SMT. C. RAJINI, (2011) 9 TAXMANN.COM 11 5 (CHENNAI). AGAINST THE AFORESAID DECISION OF THE CIT(A), REVENUE IS IN APP EAL BEFORE US. 29. AT THE TIME OF HEARING, THE LEARNED DEPARTMENTA L REPRESENTATIVE HAS NOT CONTROVERTED THE FINDING OF THE CIT(A) WITH RES PECT TO THE COMMERCIAL AREA IN THE PROJECT, WHICH IS BASED ON THE JUDGEMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF BRAHMA ASSOCIATES (SUPRA). ON ACCOUNT OF THE ISSUE BEING COVERED BY THE PROPOSITION OF LAW LAID DOWN B Y THE HONBLE JURISDICTIONAL ITA NOS.1299 & 1300/PN/2012 A. Y. : 2008-09 HIGH COURT, AND IN THE ABSENCE OF ANYTHING CONTRARY BROUGHT OUT BY THE REVENUE, WE FIND NO REASON TO INTERFERE WITH THE CO NCLUSION OF THE CIT(A). 30. EVEN WITH REGARD TO THE ISSUE OF THE OWNERSHIP OF LAND RAISED BY THE ASSESSING OFFICER, WE FIND THAT THE CIT(A) MADE NO MISTAKE IN REJECTING THE SAME. PERTINENTLY, SECTION 80IB(10) OF THE ACT PRE SCRIBES DEDUCTION IN THE CASE OF AN UNDERTAKING DEVELOPING AND BUILDING HOUS ING PROJECT . THE ENTIRE SCHEME OF SECTION 80IB(10) OF THE ACT DOES NOT POST ULATES THAT THE LAND ON WHICH ASSESSEE UNDERTAKES DEVELOPMENT AND BUILDING OF A HOUSING PROJECT NEEDS TO BE OWNED BY THE ASSESSEE. RATHER, THE PHR ASEOLOGY OF SECTION 80IB(10) OF THE ACT LENDS ITSELF TO AN UNDERSTANDIN G THAT THE DEDUCTION IS ELIGIBLE WHEREVER AN ASSESSEE UNDERTAKES DEVELOPMEN T AND BUILDING OF A HOUSING PROJECT, IRRESPECTIVE OF THE OWNERSHIP OF T HE LAND ON WHICH SUCH PROJECT IS CONSTRUCTED. AT THE TIME OF HEARING, NO DECISION TO THE CONTRARY HAS BEEN BROUGHT OUT BY THE REVENUE AND THEREFORE WE HE REBY AFFIRM THE CONCLUSION OF THE CIT(A) ON THIS ASPECT ALSO. 31. IN SUM AND SUBSTANCE, WE HEREBY AFFIRM THE ORDE R OF THE CIT(A) ALLOWING ASSESSEES CLAIM FOR DEDUCTION U/S 80IB(10 ) OF THE ACT FOR ASSESSMENT YEAR 2006-07 AMOUNTING TO RS.36,12,672/-. 32. BEFORE PARTING, WE MAY ALSO MENTION THAT IN ASS ESSMENT YEARS 2004-05, 2005-06, 2007-08 AND 2009-10, WHICH HAVE BEEN DEALT WITH BY US IN EARLIER PARAS, THE DISPUTE RELATED ASSESSEES CLAIM FOR DED UCTION U/S 80IB(10) OF THE ACT IN RELATION TO THE PROJECT, SHUBHAM PARK. IN ASSESSMENT YEARS 2004-05, 2005-06, 2007-08 AND 2009-10, ONE OF THE REASONS WE IGHING WITH THE ASSESSING OFFICER TO DENY THE DEDUCTION WAS THE PRE SENCE OF COMMERCIAL AREA IN THE PROJECT. THE CIT(A) HAD DISAGREED WITH THE ASSESSING OFFICER ON THE AFORESAID ASPECT IN SUCH ASSESSMENT YEARS I.E. 2004 -05, 2005-06, 2007-08 AND 2009-10, BUT OFCOURSE THE CIT(A) DENIED THE CLA IM ON ANOTHER GROUND. ITA NOS.1299 & 1300/PN/2012 A. Y. : 2008-09 HOWEVER, THE FINDING OF THE CIT(A) ON THE ASPECT OF EXISTENCE OF COMMERCIAL AREA IN THE PROJECT, SHUBHAM PARK IN ASSESSMENT Y EARS 2004-05, 2005-06, 2007-08 AND 2009-10 IN FAVOUR OF THE ASSESSEE HAVE NOT BEEN CHALLENGED BY THE REVENUE IN APPEAL BEFORE THE TRIBUNAL. IT IS O NLY IN RELATION TO ASSESSMENT YEAR 2006-07 THAT SUCH DECISION OF THE CIT(A) HAS B EEN CHALLENGED, ALTHOUGH IT IS IN CONFORMITY WITH HIS DECISION IN OTHER ASSE SSMENT YEARS. THEREFORE, EVEN ON THE PRINCIPLE OF CONSISTENCY ALSO, WE FIND NO MERIT IN THE APPEAL OF THE REVENUE FOR ASSESSMENT YEAR 2006-07. 33. IN THE RESULT, APPEAL OF THE REVENUE FOR ASSESS MENT YEAR 2006-07 IS DISMISSED. 34. RESULTANTLY, WHEREAS THE CAPTIONED FOUR APPEALS PREFERRED BY THE ASSESSEE ARE ALLOWED, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH SEPTEMBER, 2014. SD/- SD/- (R.S. PADVEKAR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 15 TH SEPTEMBER, 2014. SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-II, NASHIK; 4) THE CIT-II, NASHIK; 5) THE DR B BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// ASSISTANT REGISTRAR I.T.A.T., PUNE