M/s Swadesh Developers & Builders, Bhopal V. The ACIT 2(1), Bhopal

ITA 233/IND/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 66765 (ITAT-INDORE)
• Duration Of Justice: 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 30-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Keywords: Opportunity of being heard; Additional evidence; Valuation report

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NOS. 232 TO 234/IND/2012 A.YS.2005-06 TO 2007-08 M/S. SWADESH DEVELOPERS & BUILDERS, BHOPAL PAN AAKFS 6977 P :: APPELLANT VS ACIT-2(1), BHOPAL :: RESPONDENT APPELLANT BY SHRI A SHISH GOYAL RESPONDENT BY SHRI R.A. VERMA DATE OF HEARING 1 9 .12.12 DATE OF PRONOUNCEMENT 1 9 .12.12 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THE ASSESSEE IS AGGRIEVED BY THE COMMON ORDER DATED 29.2.2012, PASSED BY LD. FIRST APPELLATE AUTHORITY, BH OPAL. THE GROUNDS RAISED IN THESE APPEALS ARE THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) W AS NOT 2 JUSTIFIED IN NOT ACCEPTING THE ADDITIONAL EVIDENCES FI LED BY THE ASSESSEE BEFORE HIM AND IN HOLDING THAT THE BUILT UP AREA OF THE DWELLING UNIT A-37 EXCEEDED THE LIMIT OF 1500 SQ.FT., CONSEQUENTLY, THE ASSESSEE IS NOT ENTITLED TO DEDUCTION U/S 80IB(10) OF THE ACT FOR THE WHOLE PR OJECT, RESULTANTLY, DISALLOWING THE DEDUCTION AT RS.36,34,356 /- (A.Y. 2005-06), RS.80,11,118 (A.Y. 2006-07) AND RS.55,35,845/- (A.Y. 2007-08). 2. DURING HEARING OF THIS APPEAL, WE HAVE HEARD SHRI ASHISH GOYAL, LD. COUNSEL FOR THE ASSESSEE AND SHRI R. A. VERMA, LEARNED SR. DR. THE CRUX OF ARGUMENTS ON BEHALF OF THE ASSESSEE IS THAT THE TOTAL LAND AREA OF THE PROJECT W AS 6.51 ACRES, THE FIRST APPROVAL WAS GRANTED ON 17.1.2004 , AND THE REVISED APPROVAL WAS GRANTED ON 12.3.2004 FOR CONSTRUCTION OF 193 HOUSES. IT WAS SUBMITTED THAT ONL Y ONE HOUSE I.E. A-37 WAS MEASURED WHICH, AS PER THE REVENUE , 3 WAS MORE THAN 1500 SQ.FT. IT WAS CLAIMED BY THE LEARNED COUNSEL FOR THE ASSESSEE THAT IT WAS BELOW PRESCRIBED LIMIT FOR WHICH OUR ATTENTION WAS INVITED TO VARIOUS PAGES OF THE PAPER BOOK AND THE CERTIFICATE ISSUED BY VARIOUS AUTHORITIES. PLEA WAS ALSO RAISED THAT THE ASSESSEE FILED APPLICATION, ANNEXED WITH VARIOUS DOCUMENTS, FOR ADMISSION OF ADDITIONAL EVIDENCE BEFORE THE LD. CIT(A) WHICH WAS REJECTED EVEN AFTER GETTING A REMAND REPORT FROM TH E ASSESSING OFFICER. ON THE OTHER HAND, THE LD. SR. DR SHRI R.A. VERMA STRONGLY DEFENDED THE IMPUGNED ORDER BY SUBMITTING THAT THE HOUSE NO. A-37 WAS MEASURED IN T HE PRESENCE OF THE REPRESENTATIVE OF THE ASSESSEE WHICH WAS BEYOND THE PRESCRIBED LIMIT OF 1500 SQ.FT., THEREFOR E, THE CLAIM OF THE ASSESSEE IS UNJUSTIFIED. IT WAS ALSO PLE ADED THAT THE ADDITIONAL EVIDENCE WHICH WAS FILED BEFORE THE LD. CIT(A) WAS NOT FILED DURING ASSESSMENT PROCEEDINGS I NSPITE 4 OF THE FACT THAT SUFFICIENT OPPORTUNITY WAS PROVIDED T O THE ASSESSEE. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRIEF, AR E THAT THE ASSESSEE WAS ACCORDED PERMISSION BY THE MUNICIPAL CORPORATION, BHOPAL FOR DEVELOPING A COLONY AND CONSTRUCTION OF HOUSES ON TOTAL AREA COMPRISING 6.15 AC RES OF LAND AT VILLAGE DAMKHEDA. AS PER THE REVENUE, ONE HOUSE I.E. A-37 WAS MEASURED BY THE VALUER IN THE PRES ENCE OF THE ASSESSEE AND IT WAS FOUND AT 1860.18 SQ.FT. STATEMENT OF SMT. SUSHMA BHATNAGAR, OCCUPANT OF THE HOUSE, WAS RECORDED WHO ADMITTED THAT SHE WAS RESIDING IN THE HOUSE SINCE 10.6.2005 AND NO CHANGE WAS MADE BY HE R IN THE BUILT UP AREA. SINCE THE AREA WAS CLAIMED TO BE MO RE THAN 1500 SQ. FT. AND EXCEEDED THE PRESCRIBED LIMIT, T HE CLAIMED DEDUCTION U/S 80IB(10) OF THE ACT WAS DENIED TO THE ASSESSEE. ON APPEAL, THE LD. CIT(A) AFFIRMED THE D ENIAL 5 OF DEDUCTION WHICH IS UNDER CHALLENGE BEFORE THIS TR IBUNAL. THERE IS NO DISPUTE TO THE FACT THAT THE ASSESSEE BY W AY OF ADDITIONAL EVIDENCES FILED ONE APPLICATION BEFORE THE L D. CIT(A) BY ANNEXING THE FOLLOWING DOCUMENTS: (A) COPY OF MEASUREMENT OF BUNGALOW A-37 BY MUNICIP AL CORPORATION AS MADE ON 16.3.2009. (B) COPY OF THE MAP OF THE COLONY. (C) COPY OF THE REVISED MAP OF THE HOUSES I.E. A, B , C & D INCLUDING A-37. (D) CERTIFICATE FROM GRAM PANCHAYAT DATED 20.4.2006 . (E) COPY OF APPLICATION DATED 12.2.2008, 20.2.2008 & 22.12.2008. (F) COPY OF CERTIFICATE FROM MUNICIPAL CORPORATION DATED 24.2.2009 . WE FIND THAT IF THE AFORESAID DOCUMENTS ARE ANALYSED, EXCEPT THE DOCUMENT MENTIONED AS (E), ALL ARE GOVERNM ENT DOCUMENTS, ISSUED BY VARIOUS AUTHORITIES AND THE DOCUMENT MENTIONED AS (D) IS APPLICATION FOR ISSUANCE OF COMPLETION CERTIFICATE. THE LD. CIT(A) SOUGHT REMAND REPORT FOR THESE ADDITIONAL EVIDENCES AND THE ASSESSING OFFIC ER DID NOT OBJECT TO THE ADMISSION OF ADDITIONAL EVIDENCE AND STILL THE LD. CIT(A) CHOSE TO REJECT THE ADDITIONAL EVIDENC E ON THE GROUND THAT THE ASSESSEE WAS PROVIDED AMPLE OPPORTUNITY TO GET THE VALUATION REPORT FROM THE MUNICIPAL CORPORAT ION 6 AND VALUATION WAS NOT FILED BY THE ASSESSEE, THEREFORE, THE ADDITIONAL EVIDENCE WAS NOT ADMITTED. ON QUESTIONING FRO M THE BENCH, IT WAS EXPLAINED BY THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE REPORT FROM THE MUNICIPAL CORPORATION IS DATED 16.3.2009 (PAGES 83 & 84 OF THE PAPER BOOK), THEREFORE, IT WAS VERY MUCH AVAILABLE BEFORE THE AUTHOR ITIES. AS PER THE ASSESSEE, THE DEVELOPMENT/CONSTRUCTION WO RK WAS COMPLETED ON 30.3.2006 FOR 89 BUNGALOWS (CERTIFIC ATE DATED 20.4.2006-PAGE 11 OF SYNOPSIS) AND FOR REMAINING 104 BUNGALOWS, IT WAS COMPLETED ON 30.1.2008 (PAGE 12 OF SYNOPSIS). AS PER CERTIFICATE OF THE APPROVED ENGINEE R (PAGE 68 OF THE PAPER BOOK), THE CONSTRUCTION WAS COMPLETED ON 30.1.2008. AS PER THE APPLICATION DATED 31.3.2008, ADDRESSED TO CHIEF EXECUTIVE OFFICER, MUNICIPALITY (P AGE 69 OF THE PAPER BOOK), THE ASSESSEE CLAIMED THAT CONSTRUCT ION WAS COMPLETE AND THE ASSESSEE REQUESTED FOR ISSUANCE OF COMPLETION CERTIFICATE. EVEN AS PER THE LETTER DATED 7 20.2.2008, ISSUED BY MUNICIPALITY (PAGE 70), CONTAININ G CERTAIN KHASRA NUMBERS, THE WORK WAS FOUND TO BE COMPLETED. THE LEARNED COUNSEL FOR THE ASSESSEE INV ITED OUR ATTENTION TO VARIOUS PAGES OF THE PAPER BOOK AS PER WHICH IT WAS CLAIMED THAT THE AREA OF THE FLATS IS BELOW THE PRESCRIBED LIMIT. ADMITTEDLY, THERE IS CATEGORICAL FI NDING IN PARA 6.2 (PAGE 4) OF THE IMPUGNED ORDER THAT THE AREA OF HOUSE NO. A-37 IS 1860.18 SQ.FT. THE LEARNED COUNSEL FOR THE ASSESSEE ALSO TOOK THE PLEA THAT MEASUREMENT OF ONLY ONE HOUSE DOES NOT MEAN THAT THE AREA IN RESPECT OF ALL THE HOUSES ARE BEYOND PRESCRIBED LIMIT. THE LEARNED COUNS EL FOR THE ASSESSEE FILED DETAILS OF BUILT UP AREA OF 193 DUPLEX HOUSES (PAGE 2 OF SYNOPSIS) BY CLAIMING THAT THE AREA IS BELOW PRESCRIBED LIMIT OF 1500 SQ.FT. BY FURTHER ASSE RTING THAT THE ORIGINAL PERMISSION ACCORDED BY THE GRAM PANCHAYAT ON 17.1.2004 WAS REVISED ON 12.3.2004 BY FURTHER SUBMITTING THAT EVEN THE MUNICIPALITY ISSUED THE 8 CERTIFICATE ON 24.2.2009. WE FIND THAT THERE IS NO FI NDING EITHER IN THE ASSESSMENT ORDER OR IN THE IMPUGNED O RDER THAT THE BUILT UP AREA OF ALL UNITS IS MORE THAN THE PRESCRIBED LIMIT OF 1500 SQ.FT. IT SEEMS THAT THE WHO LE CONCLUSION IS BASED UPON HOUSE NO. A-37 ONLY. KEEPIN G IN VIEW THE TOTALITY OF THE FACTS AND THE PRINCIPLE THAT N O PERSON SHOULD CONDEMNED UNHEARD. THE ASSESSING OFFIC ER IS DIRECTED TO TAKE THE MEASUREMENT OF THE CONSTRUCTE D HOUSES AND AFTER SATISFYING HIMSELF DECIDE AFRESH IN ACCORDANCE WITH LAW. THE ASSESSING OFFICER IS ALSO DIR ECTED TO EXAMINE THE AUTHENTICITY/GENUINENESS OF THE DOCUMENTS, ANNEXED WITH THE APPLICATION FILED BEFORE T HE LD. CIT(A), CLAIMED TO BE ISSUED BY VARIOUS AUTHORITI ES AS THE LETTER CLAIMED TO BE ISSUED BY MUNICIPAL CORPORAT ION DOES NOT SPECIFY THAT IT PERTAINS TO HOUSE NO.A-37. W E ALSO FIND THAT ON ONE HAND, THE LD. CIT(A) REFUSED TO ADMIT THE ADDITIONAL EVIDENCE AND ON THE OTHER HAND, ON PAGE 16, 9 WHILE GIVING ITS FINDING ON MERIT, HAS MADE DISCUSSI ON ON THIS EVIDENCE AND ON PAGE 22, ON THE ISSUE OF COMPLE TION CERTIFICATE, MADE OBSERVATIONS BY PLACING RELIANCE ON T HESE VERY DOCUMENTS. THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE ARE REMANDED BACK TO THE FILE OF THE LD. ASSES SING OFFICER TO EXAMINE THE CLAIM OF THE ASSESSEE FOR WHICH DUE OPPORTUNITY OF BEING HEARD BE PROVIDED. THUS, ALL THE SE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOS ES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES OF BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 19.12.2012. SD SD (R.C.SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEM BER DATED: 19.12.2012 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE !VYS!