Joint Commissioner of Income-tax, V. Parmar Properties P. Ltd., Pune

ITA 2429/PUN/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0655 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 5 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 14-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K VERMA
• Keywords: Business income; Earning of tax free income; Deemed to accrue or arise in india; Tax effect; Rule 8D
• Section: 14A; 80IB

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. 2225/PUN/2016 / ASSESSMENT YEAR : 2012-13 M/S. PARMAR PROPERTIES PVT. LTD. OFFICE NO.2A, WING 1, THACKER HOUSE, 2418, EAST STREET, PUNE-411 001. PAN : AABCP1016F ....... / APPELLANT / V/S. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-4, PUNE. / RESPONDENT / ITA NO. 2429/PUN/2016 / ASSESSMENT YEAR : 2012-13 THE JOINT COMMISSIONER OF INCOME TAX, RANGE-4, PUNE. ....... / APPELLANT / V/S. M/S. PARMAR PROPERTIES PVT. LTD. OFFICE NO.2A, WING 1, THACKER HOUSE, 2418, EAST STREET, PUNE-411 001. PAN : AABCP1016F / RESPONDENT ASSESSEE BY : SHRI KISHOR PHADKE REVENUE BY : SHRI M.K. VERMA / DATE OF HEARING : 28.03.2019 / DATE OF PRONOUNCEMENT : 28.03.2019 2 ITA NOS.2225 & 2429/PUN/2016 A.Y.2012-13 / ORDER PER PARTHA SARATHI CHAUDHURY, JM : THESE TWO APPEALS PREFERRED BY THE ASSESSEE AND THE REVENUE EMANATES FROM THE ORDER OF THE LD. CIT(APPEALS)-3, PUNE DATED 29.0 7.2016 FOR THE ASSESSMENT YEAR 2012-13. FIRST, WE WOULD TAKE UP THE RE VENUE APPEAL FOR ADJUDICATION. ITA NO.2429/PUN/2016 ( BY REVENUE) A.Y.2012-13 2. THE LD. DR FOR THE REVENUE SUBMITTED AT THE VERY OUTSET THAT THE REVENUES APPEAL IS WITHIN THE TAX EFFECT AND AS PER THE CBDT VIDE CIRCULAR NO.3/2018, DATED 11.07.2018 HAS REVISED THE MONETARY LIMIT S FOR FILING OF APPEALS BY THE DEPARTMENT BEFORE THE TRIBUNAL WITH RETRO SPECTIVE EFFECT. AS PER THE CIRCULAR (SUPRA), THE MONETARY LIMIT OF TAX EFFECT FOR FILING APPEALS BEFORE THE TRIBUNAL BY THE DEPARTMENT HAS BEEN RAISED TO RS.20 LAK HS. 3. THE LD. AR OF THE ASSESSEE ALSO CONCEDED WITH THE SU BMISSIONS OF THE LD.DR AND POINTED OUT THAT AS PER CBDT CIRCULAR NO. 3/20 18 DATED 11 TH JULY, 2018, THE MONETARY LIMIT FOR FILING OF APPEAL BY THE DEPARTMEN T BEFORE THE TRIBUNAL IS RS.20 LAKHS, THEREFORE, THE APPEAL FILED BY THE DE PARTMENT IS NOT MAINTAINABLE. 4. WE HAVE PERUSED THE CASE RECORDS AND HEARD THE R IVAL CONTENTIONS. UNDISPUTEDLY, THE TAX EFFECT IN PRESENT APPEAL IS LESS THAN RS.20 LAKHS. THE CBDT CIRCULAR NO.3/2018 DATED 11 TH JULY, 2018 HAS RAISED THE MONETARY LIMIT OF TAX EFFECT FOR FILING OF APPEAL BY THE DEPARTMENT BEFORE TH E TRIBUNAL TO RS.20 LAKHS. THE CIRCULAR APPLIES TO THE APPEALS TO BE FILED BY TH E DEPARTMENT IN FUTURE, AS WELL AS THE APPEALS PENDING BEFORE THE TRIBUNAL. T HUS, IN VIEW OF THE 3 ITA NOS.2225 & 2429/PUN/2016 A.Y.2012-13 CBDT CIRCULAR, WE ARE OF THE OPINION THAT THE PRESENT APP EAL OF THE REVENUE IS LIABLE TO BE DISMISSED ON ACCOUNT OF LOW TAX EFFECT. BEFORE PARTING, WE CLARIFY HERE THAT THE REVENUE SHALL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RESTORATION OF APPEAL/S WITH THE REQUISITE SUBMISSIONS INDICATING THAT THE APPEALS ARE PROTECTED BY THE EXCEPTIONS PRESCRIBED IN PARA 10 OF THE CIRCULAR (SUPRA). 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ITA NO.2225/PUN/2016 ( BY ASSESSEE) A.Y.2012-13 6. COMING TO THE ASSESSEES APPEAL IN ITA NO.2225/PUN/2 016, GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE AS UNDER: 1.THE LEARNED CIT(A)-3 ERRED IN LAW AND ON FACTS IN CONFIRMING PROTECTIVE ADDITION MADE BY AO ON ACCOUNT OF NOTIONAL RENT OF UNSOLD AREA OF 58,965 SQ FT AS 'INCOME FROM HOUSE PROPERTY' DISREGARDING THE FACT THAT THE SAME WAS HELD AS STOCK-IN-TRADE OF THE APPELLANT. 2. ALTERNATIVELY AND WITHOUT PREJUDICE TO GROUND NO .1, THE LEARNED CIT(A)- II ERRED IN LAW AND ON FACTS IN NOT CONFINING THE P ROTECTIVE ADDITION OF LEASE RENT ONLY ON AREA FOR WHICH COMPLETION CERTIF ICATE RECEIVED. LEARNED AO & CIT(A) OUGHT TO HAVE APPRECIATED THAT 40,490 SQ.FT. AREA OUT OF 58,965 SQ.FT. UNSOLD AREA HAS NOT BEEN ASSESSED BY PMC TILL MARCH 2012. 3. THE LEARNED CIT(A)-3 ERRED IN LAW AND ON FACTS I N CONFIRMING DISALLOWANCE OF RS.54,161 U/S.14A OF THE ITA, 1961 WITHOUT APPRECIATING APPELLANT'S CONTENTION THAT NO ANY DEDUCTION IS CLA IMED FOR EXPENSES INCURRED IN RELATION TO THE EXEMPT INCOME OF RS.22, 000/-. 4. ALTERNATIVELY AND WITHOUT PREJUDICE TO GROUND NO .3, THE LEARNED CIT(A)- 3, PUNE ERRED IN LAW AND FACTS IN CALCULATING DISAL LOWANCE U/S.14A WITH INCORRECT CALCULATION. THE LEARNED AO & CIT(A) OUGHT TO HAVE APPRECIATED THAT APPELLANT HAS SUFFICIENT AMOUNT FUNDS . 5. ALTERNATIVELY AND WITHOUT PREJUDICE TO GROUND NO .3, THE CIT(A)-3, PUNE ERRED IN NOT CONFINING THE DISALLOWANCE U/S.14A, TO THE EXTENT OF EXEMPT INCOME OF RS.22,000/-. 6. THE LEARNED CIT(A)-3 ERRED IN LAW AND ON FACTS I N DENYING THE DEDUCTION OF RS.11,03,922/- CLAIMED U/S. 80-1B(10) OF THE ITA , 1961 TO THE ASSESSEE COMPANY. 4 ITA NOS.2225 & 2429/PUN/2016 A.Y.2012-13 7. ALTERNATIVELY AND WITHOUT PREJUDICE TO GROUND NO 5, THE LEARNED CIT(A)- 3 ERRED IN LAW AND ON FACTS IN NOT ALLOWING PROPORT IONATE DEDUCTION U/S 80IB(10) OF THE ITA, 1961 TO THE ASSESSEE COMPANY C ONSIDERING VARIOUS JUDICIAL PRONOUNCEMENTS AT VARIOUS FORUMS. 8. THE APPELLANT CRAVES LEAVE TO ADD / MODIFY / ALT ER / DELETE ALL / ANY OF THE GROUNDS OF APPEAL. 7. GROUND NOS. 1 AND 2 RELATES TO THE CONFIRMATION OF PRO TECTIVE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF NOTIONAL RENT OF UNSOLD AREA OF 58,965 SQ. FT. AS INCOME FROM HOUSE PROPERTY SINCE THE SAME WAS HELD AS STOCK-IN-TRADE BY THE ASSESSEE. 8. AT THE TIME OF HEARING, THE LD. AR OF THE ASSESSEE S UBMITTED THAT THE GROUND NOS. 1 AND 2 ARE IDENTICALLY COVERED BY THE DECIS ION OF THE CO-ORDINATE BENCH OF PUNE TRIBUNAL IN ITA NO.1914/PUN/2018 FOR THE AS SESSMENT YEAR 2015-16. 9. WE HAVE PERUSED THE CASE RECORDS AND CONSIDERED T HE JUDICIAL PRONOUNCEMENTS PLACED BEFORE US. THAT IN ITA NO.1914/PUN /2018, THE ASSESSING OFFICER (AO) OBSERVED THAT THE ASSESSEE WAS HOLD ING CLOSING STOCK OF ONE OFFICE BUILDING AND ONE SHOWROOM. INVOKING PROVISIONS OF S ECTION 23(4) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER ALSO CALLED THE AC T), THE AO OPINED THAT THE ANNUAL LETTING VALUE OF THE PROPERTY WAS REQUIRED TO BE DETERMINED AND ADDED TO THE ASSESSEES TOTAL INCOME. THE ASSESSEES C ONTENTION THAT TWO UNITS IN RESPECT OF WHICH INCOME FROM HOUSE PROPERTY WAS PR OPOSED TO BE COMPUTED, WERE ITS STOCK IN TRADE AND HENCE, NO INCOME C OULD BE DETERMINED THEREON UNDER THIS HEAD, DID NOT FIND FAVOUR WITH THE REVE NUE AUTHORITIES. WITH REGARD TO THESE ISSUES, THE CO-ORDINATE BENCH OF T HE PUNE TRIBUNAL HAS HELD AS FOLLOWS: 5 ITA NOS.2225 & 2429/PUN/2016 A.Y.2012-13 4. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE RELEVANT MATERIAL ON RECORD. IT IS AN UNDISPUTED FACT THAT THE ASSESS EE, A BUILDER AND DEVELOPER, WAS HOLDING TWO PROPERTIES AS ITS STOCK IN TRADE, FROM WHICH THE DEEMED RENTAL INCOME HAS BEEN COMPUTED U/S 23 O F THE ACT AND ADDED TO ITS TOTAL INCOME. THE AO HAS MADE OUT A CA SE THAT LEVY OF INCOME TAX IN RESPECT OF PROPERTIES HELD BY THE ASSESSEE A S AN OWNER, CANNOT BE MARRED EVEN IF THE SAME HAVE BEEN HELD AS STOCK IN TRADE. THE BEDROCK OF THE ACTION OF THE AUTHORITIES BELOW IS CERTAIN DECI SIONS WHICH, IN TURN, ARE BASED ON THE JUDGMENTS OF HONBLE SUPREME COURT IN EAST INDIA HOUSING & LAND DEVELOPMENT TRUST VS. CIT (1961) 42 ITR 49 ( SC) AND S.G. MERCANTILE CORPORATION PVT. LTD. VS. CIT (1972) 83 ITR 700 (SC). IT HAS BEEN HELD IN THE LATTER DECISION THAT WHERE A BUILD ER, BEING, OWNER LETS OUT PROPERTY FOR SOME TIME PENDING SALE, THE INCOME SO DERIVED IS TO BE TAXED UNDER THE HEAD INCOME FROM HOUSE PROPERTY AND NOT AS BUSINESS INCOME.SO THE RATIO IS THAT EVEN IF A BUILDER LETS OUT HIS PROPERTY, HELD AS STOCK IN TRADE, INCOME THERE FROM WILL BE CHARGEABL E UNDER THE HEAD `INCOME FROM HOUSE PROPERTY AND NOT AS `BUSINESS I NCOME. IT IS PERTINENT TO NOTE THAT SUCH A LEGAL POSITION HAS UNDERGONE SO ME TRANSFORMATION. IN CHENNAI PROPERTIES AND INVESTMENTS LTD. VS. CIT (20 15) 373 ITR 673 (SC), THE ASSESSEE WHOSE BUSINESS WAS TO ACQUIRE PROPERTI ES, LET OUT CERTAIN PROPERTIES AND THE RENTAL INCOME AS RECEIVED THEREF ROM WAS DECLARED AS BUSINESS INCOME. THE AO HELD SUCH INCOME TO BE CHAR GEABLE TO TAX UNDER THE HEAD INCOME FROM HOUSE PROPERTY. THE HON'BLE SUPREME COURT HELD THAT THE DECIDING FACTOR FOR DETERMINING AS TO WHET HER THE INCOME IS TO BE CHARGED UNDER THE HEAD INCOME FROM HOUSE PROPERTY IS NOT THE OWNERSHIP OF PROPERTY BUT THE NATURE OF OPERATIONS IN RELATION TO THEM. CONSIDERING THE OBJECTS OF THE COMPANY, THE HONBLE SUPREME COURT HELD THAT SUCH INCOME WAS CHARGEABLE TO TAX UNDER THE HE AD PROFITS AND GAINS FROM BUSINESS OR PROFESSION. MORE RECENTLY, THE HO NBLE SUPREME COURT IN RAYALA CORPORATION PVT. LTD. VS. ACIT (2016) 386 IT R 500 (SC) CONSIDERED A SITUATION IN WHICH THE ASSESSEE WAS ENGAGED IN TH E BUSINESS OF RENTING ITS PROPERTIES. THE ASSESSEE CLAIMED SUCH RENTAL IN COME AS FALLING UNDER THE HEAD PROFITS AND GAINS OF BUSINESS OR PROFESSI ON. THE AO DENIED SUCH A TREATMENT. WHEN THE MATTER FINALLY CAME UP B EFORE THE HONBLE SUPREME COURT, IT CONSIDERED BOTH THE JUDGMENTS, NA MELY, S.G. MERCANTILE CORPORATION (SUPRA) AND CHENNAI PROPERTIES AND INVE STMENTS LTD (SUPRA) AND THEREAFTER HELD THAT : `THE LAW LAID DOWN BY TH IS COURT IN THE CASE OF CHENNAI PROPERTIES (SUPRA) SHOWS THE CORRECT POSITI ON OF LAW. THAT IS HOW, THEIR LORDSHIPS HELD THAT THE INCOME WAS TO BE CHAR GED TO TAX UNDER THE HEAD PROFITS AND GAINS OF BUSINESS OR PROFESSION. 5. IN VIEW OF THE FOREGOING DISCUSSION, IT IS APPAR ENT THAT THE VIEW POINT BOLSTERED BY THE AUTHORITIES THAT ANNUAL LETTING VA LUE IN RESPECT OF UNSOLD PROPERTIES LYING WITH THE ASSESSEE AS A STOCK IN TR ADE, SHOULD BE DETERMINED U/S. 23 OF THE ACT, CANNOT BE COUNTENANC ED IN THE HUE OF THE LATER JUDGMENTS OF THE HONBLE SUMMIT COURT. ONCE I T IS HELD THAT THE INCOME OF A BUILDER IN RESPECT OF LETTING OUT OF TH E PROPERTIES IS CHARGEABLE UNDER THE HEAD PROFIT AND GAINS OF BUSINESS OR PRO FESSION, THE PROVISIONS ENSHRINED IN CHAPTER IV-D GET MAGNETIZED AND NOT THOSE UNDER THE HEAD CAPITAL GAINS. IT IS NO DOUBT TRUE THAT SECTION 23 OF THE ACT DEEMS THE DETERMINATION OF INCOME FROM HOUSE PROPER TY, WHICH IS NOT LET OUT, BUT IT IS EQUALLY TRITE THAT A DEEMING PROVISI ON CANNOT BE EXTENDED BEYOND ITS AMBIT, SO AS TO COVER THE HEADS OF INCOM E OR THE SECTIONS, TO WHICH IT DOES NOT OPERATE. MY ATTENTION HAS NOT BEE N DRAWN BY THE LD. DR TOWARDS ANY SPECIFIC PROVISION UNDER CHAPTER IV-D O F THE ACT WHICH DEEMS RENTAL INCOME ON THE PROPERTIES HELD AS STOCK IN TRADE, WAITING FOR SALE AND NOT ACTUALLY LET OUT, AS CHARGEABLE TO TAX UNDER THE HEAD PROFIT AND GAINS OF BUSINESS OR PROFESSION. AS THE ASSESS EE ADMITTEDLY DID NOT EARN ANY RENTAL INCOME FROM LETTING OUT OF THESE TW O UNITS WHICH POSITION 6 ITA NOS.2225 & 2429/PUN/2016 A.Y.2012-13 HAS ALSO NOT BEEN DISPUTED BY THE AO, IN MY CONSIDE RED OPINION, TAXING ANY HYPOTHETICAL INCOME WHICH IS OTHERWISE NOT SANC TIONED BY ANY PROVISION UNDER CHAPTER IV-D, CANNOT BE PERMITTED. 6. EVEN OTHERWISE, SECTION 5 OF THE ACT CLEARLY S TIPULATES THAT A PERSON WHO IS A RESIDENT CAN BE SUBJECTED TO TAX IN RESPEC T OF INCOME FROM WHATEVER SOURCE WHICH IS RECEIVED OR IS DEEMED TO B E RECEIVED IN INDIA OR ACCRUES OR ARISES OR DEEMED TO ACCRUE OR ARISE TO H IM IN OR OUTSIDE INDIA DURING SUCH YEAR. AS THE INSTANT IMAGINARY INCOME C HARGED TO TAX BY THE AO IS NEITHER A DEEMED INCOME UNDER THE HEAD `BUSIN ESS INCOME NOR IS RECEIVED OR DEEMED TO BE RECEIVED OR ACCRUING OR AR ISING OR DEEMED TO ACCRUE OR ARISE, NOT FAILING IN ANY OF THE CATEGORI ES GIVEN IN CLAUSES (1) TO (C) OF SECTION 5(1), I HOLD THAT THERE IS NO RATION ALE IN CHARGING IT TO TAX. I , THEREFORE, OVERTURN THE IMPUGNED ORDER AND DIRECT T O DELETE THE ADDITION OF RS.34.35 LAKH. THE LEGAL SANCTITY DRAWN FROM THIS DECISION PERTAINS TO TH E VERY SPIRIT AND SOUL OF THE INCOME TAX ACT, 1961. MEANING THEREBY, SE CTION 5 OF THE ACT STIPULATES THAT A PERSON WHO IS A RESIDENT CAN BE SUBJE CTED TO TAX IN RESPECT OF INCOME FROM WHATEVER SOURCE WHICH IS RECEIVED OR IS DEEME D TO BE RECEIVED IN INDIA OR ACCRUES OR ARISES OR DEEMED TO ACCRUE OR ARIS E TO HIM IN OR OUTSIDE INDIA DURING SUCH YEAR BUT THERE IS NO PROVISION FOR CHA RGING ANY IMAGINARY INCOME. RESPECTFULLY, FOLLOWING THE AFORESAID DECISION, GROUND NOS. 1 AND 2 RAISED BY THE ASSESSEE IN APPEAL ARE ALLOWED . 10. THE LD. AR OF THE ASSESSEE SUBMITTED THAT HE IS N OT PRESSING GROUND NOS. 3 AND 4. HENCE, GROUND NOS. 3 AND 4 ARE DISMISSED AS NOT PRESSED . 11. GROUND NO. 5 IS WITH RESPECT TO NOT CONFINING THE DISA LLOWANCE U/S.14A TO THE EXTENT OF EXEMPT INCOME OF RS.22,000/-. THE CONTEN TION OF THE ASSESSEE IS THAT THE ASSESSING OFFICER FAILED TO APPRECIATE THAT NO DEDUCTION WAS CLAIMED FOR EXPENSES INCURRED IN RELATION TO THE EXEMPT INC OME OF RS. 22,000/-. THE ASSESSING OFFICER OBSERVED THAT THE ASS ESSEE HAD MADE SUBSTANTIAL INVESTMENTS IN SHARES AND MUTUAL FUNDS AND AN EXPLANATION IN THIS REGARD WAS SOUGHT. THE ASSESSEE SUBMITTED THAT TH E INTEREST BEARING 7 ITA NOS.2225 & 2429/PUN/2016 A.Y.2012-13 FUNDS WERE NOT USED FOR MAKING SUCH INVESTMENTS HENCE, D ISALLOWANCE U/S.14A WAS NOT WARRANTED. THE ASSESSING OFFICER NOTICED T HAT THE ASSESSEE WAS NOT MAINTAINING SEPARATE POOL OF FUNDS FOR ITS NORMAL BUSINESS AND FOR INVESTMENTS FROM WHICH THE EXEMPT INCOME WAS EARNED, THE REFORE, THE PROVISIONS OF SECTION 14A WERE INVOKED AND DISALLOWANCE AS PER RULE 8D WAS DETERMINED AT RS.54,161/-. 12. THAT BEFORE THE LD. CIT(APPEALS), THE LD. AR OF THE ASS ESSEE SUBMITTED THAT THE DISALLOWANCE OUGHT NOT TO HAVE BEEN MORE THAN THE EXEMPT INCOME AND THE WORKING OF THE ASSESSING OFFICER IS BASED ON ESTIM ATES. THE ASSESSEE FURTHER STATED THAT THE ASSESSING OFFICER HAS NOT DEMONS TRATED ANY SATISFACTION IN THIS REGARD AS TO THE INCORRECT WORKING OF THE ASSESS EE AND THERE IS NO INTEREST BEARING LOAN AND ACCORDINGLY, U/S.14A BE NOT APPLICABLE. THE LD. CIT(APPEALS) UPHELD THE ADDITION MADE BY THE ASSESSING OFFICER RELYING ON THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CAS E OF GODREJ & BOYCE REPORTED AS 328 ITR 81 (BOM.) WHICH AUTHORIZES THE ASSES SING OFFICER TO RE- COMPUTE THE DISALLOWANCE U/S.14A OF THE ACT AS PER PRESC RIBED METHOD UNDER RULE 8D IN CASE HE IS NOT SATISFIED WITH THE CLAIM OF THE ASSESSEE HAVING R EGARD TO THE ACCOUNTS. THE LD. CIT(APPEALS) HAS NOT BROUGHT OU T ANY SANCTITY AS TO THE FACT WHETHER DISALLOWANCE IS TO BE RESTRICTED TO THE EXTENT OF EXEMPT INCOME OR IT CAN TRAVEL BEYOND THAT ALSO. IT IS ADMITTED BY THE REVEN UE THAT THE ASSESSEE HAS RECEIVED EXEMPT INCOME OF RS.22,000/-. THE D ISALLOWANCE, IN OUR VIEW, SHOULD BE RESTRICTED TO THE EXTENT OF EXEMPT INCOME EARNED. WE HOLD ACCORDINGLY. THUS, GROUND NO.5 RAISED IN APPEAL BY THE ASSESSEE IS ALL OWED . 13. GROUND NOS. 6 AND 7 RELATES TO DENIAL OF DEDUCTION/PR OPORTIONATE DEDUCTION CLAIMED U/S.80IB(10) OF THE ACT. THE LD. AR OF TH E ASSESSEE 8 ITA NOS.2225 & 2429/PUN/2016 A.Y.2012-13 SUBMITTED THAT THESE GROUNDS ARE COVERED IN FAVOUR OF T HE ASSESSEE IN EARLIER YEARS AS PER THE TRIBUNALS ORDER IN ASSESSEES OWN CA SE IN ITA NO.344/PUN/2010 FOR THE ASSESSMENT YEAR 2005-06. 14. WE HAVE PERUSED THE CASE RECORDS AND HAVE GIVEN CONSIDERABLE THOUGHT TO THE DECISION PLACED BEFORE US. IN ITA NO.344/PUN/2010 FOR THE ASSESSMENT YEAR 2005-06, THE ASSESSEE HAS RAISED THIS ISSUE BEFORE TRIBUNAL IN THE GROUND OF APPEAL WHICH IS AS UNDER: 1. THE LEARNED CIT(A)-II, PUNE ERRED IN LAW AND FA CTS IN DISMISSING THE APPEAL OF THE APPELLANT AND IN HOLDING THAT THE APP ELLANT IS NOT ELIGIBLE TO CLAIM DEDUCTION OF RS.1,70,96,381/- U/S.80IB (10) O F THE ITA, 1961. HE OUGHT TO HAVE CONSIDERED THE FACTS ON PROPER MERITS . THE CO-ORDINATE BENCH OF THE PUNE TRIBUNAL WITH REGARD TO THIS ISSUE HAS HELD AS UNDER: 11.THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE AS SESSEE POINTED OUT THAT SIMILAR ISSUE HAS BEEN DECIDED BY THE TRIBUNAL IN ITA NOS.234/PUN/2009 AND 569/PUN/2009, RELATING TO ASSE SSMENT YEARS 2003-04 AND 2004-05 AND VIDE ORDER DATED 22.03.2017 , THE ASSESSEE WAS HELD TO BE ENTITLED TO PROPORTIONATE DEDUCTION UNDER SECTION 80IB (10) OF THE ACT IN RESPECT OF UNITS WHICH FULFILS THE CO NDITIONS LAID DOWN OF HAVING BUILT UP AREA OF 1500 SQ.FT. 12. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE FAIRLY ADMITTED THAT SIMILAR ISSUE WAS RAISED IN ASSESSMENT YEARS 2003-04 AND 2004-05 IN RESPECT OF PARMAR GARDEN PROJECT, WHICH HAS BEEN DECIDED BY THE TRIBUNAL. 13. FOLLOWING THE SAME PARITY OF REASONING, AS IN T HE ORDERS OF TRIBUNAL IN EARLIER YEARS, WE HOLD THAT THE ASSESSEE IS ENTITLE D TO PRORATA DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. ACCORDINGLY, WE HOLD SO. THE FIRST ISSUE RAISED BY THE ASSESSEE BY WAY OF GROUNDS OF APPEAL NO.1 TO 3 IS THUS, ALLOWED. RESPECTFULLY, FOLLOWING THE AFORESAID DECISION OF THE CO-ORDINA TE BENCH OF THE TRIBUNAL, WE ALLOW GROUND NO. 6 AND 7 OF APPEAL OF THE ASSESS EE . 15. GROUND NO. 8 IS GENERAL IN NATURE AND HENCE, REQUIRES NO ADJUDIC ATION. 9 ITA NOS.2225 & 2429/PUN/2016 A.Y.2012-13 16. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 17. IN COMBINED RESULT, APPEAL OF THE REVENUE IS DISMISSED AND APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED ON 28 TH DAY OF MARCH, 2019. SD/- SD/- R.S.SYAL PA RTHA SARATHI CHAUDHURY VICE PRESIDENT JUDICIAL MEMBER / PUNE; / DATED : 28 TH MARCH, 2019. SB !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS)-3, PUNE. 4. THE PR. CIT-2, PUNE. 5. '#$ %%&' , ( &' , )*+ , / DR, ITAT, B BENCH, PUNE. 6. $,- ./ / GUARD FILE. // TRUE COPY // (0 / BY ORDER, %1 &+ / PRIVATE SECRETARY ( &' , / ITAT, PUNE. 10 ITA NOS.2225 & 2429/PUN/2016 A.Y.2012-13 DATE 1 DRAFT DICTATED ON 28 .03 .2019 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 28 .03 .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