Deputy Commissioner of Income-tax, Circle - 14, Pune V. M/s. Shree Venkatesh Associates, Pune

ITA 2446/PUN/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 6041 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 11 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 18-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE ( THROUGH VIRTUAL COURT) BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER . / ITA NO.2446/PUN/2017 / ASSESSMENT YEAR : 2011-12 THE DY.COMMISSIONER OF INCOME - TAX, CIRCLE 14, PUNE. . / APPELLANT V/S M/S. SHREE VENKATESH ASSOCIATES, S.NO.227, MATRU SMRUTI GADITAL, HADAPSAR, PUNE 411028. PAN : ABHFS2539Q. . / RESPONDENT ASSESSEE BY : SHRI SUNIL GANOO REVENUE BY : SHRI DEEPAK GARG. / ORDER PER S.S. VISWANETHRA RAVI, JM THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORDER DT.0 3.07.2017 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEA LS)-7, PUNE FOR A.Y. 2011-12. 2. THE ONLY ISSUE TO BE DECIDED IS AS TO WHETHER THE LE ARNED COMMISSIONER OF INCOME TAX (APPEALS) IS JUSTIFIED IN ALLOWING PRO PORTIONATE DEDUCTION U/S 80IB(10) OF THE ACT IN THE FACTS AND CIRCUM STANCES OF THE CASE. / DATE OF HEARING : 2 5 . 0 9 .2020 / DATE OF PRONOUNCEMENT : 28 .0 9 .2020 2 ITA NO.246/PUN/2017 M/S. SHREE VENKATESH ASSOCIATES. 3. HEARD BOTH PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS O F DEVELOPING HOUSING PROJECTS. WE NOTE THAT DURING THE YEAR UNDER CONSIDERATION ASSESSEE HAD DEVELOPED HOUSING PROJECT BY NAME MARVILLA AT HADAPSAR. THE ASSESSEE CLAIMED AN AMOUNT OF RS.11,36,15,109/- AS DE DUCTION U/S 80IB(10) OF THE ACT. TO VERIFY THE CLAIM OF THE ASSESSEE, THE LEARNED ASSESSING OFFICER REFERRED THE MATTER TO THE VALUATION OFFICE R. ACCORDING TO THE LEARNED ASSESSING OFFICER, THE VALUATION OFFICER REPORTED THE BUILT-UP AREA OF THE BUNGLOWS / ROW HOUSES ARE MORE THAN 1500 SQ.FT AND ACCORDINGLY, THE SAID REPORT HAS BEEN CONFRONTED TO TH E ASSESSEE. WE NOTE THAT APART FROM THE OBJECTIONS RAISED THEREIN BEFORE THE LEARNED ASSESSING OFFICER WHICH IS REFLECTING FROM PAGE NOS.2 TO 4 OF HIS ORDER , ASSESSEE ALSO RAISED AN ALTERNATIVE PLEA IN GRANTING THE DEDUCTION ON PR OPORTIONATE BASIS. THE LEARNED ASSESSING OFFICER FOUND THE SUBMISSIONS MADE B Y THE ASSESSEE INCLUDING THE ALTERNATIVE PLEA NOT ACCEPTABLE AND HELD THE ASSESSEE IS NOT ENTITLED TO CLAIM DEDUCTION U/S 80IB(10) OF THE ACT FOR TH E VIOLATIONS MADE IN CONSTRUCTION OF BUNGLOW / ROW HOUSES EXCEEDING 1500 S Q.FT. THEREBY, HE DISALLOWED RS.11,36,15,409/- AND ADDED TO THE TOTAL INCOM E OF THE ASSESSEE. 4. WE NOTE THAT BEFORE LEARNED COMMISSIONER OF INCOME TA X (APPEALS) ALSO, ASSESSEE RAISED AN ALTERNATIVE PLEA IN GRANTING DED UCTION UNDER SEC.80IB(10) OF THE ACT RELATING TO ELIGIBLE UNITS AND PLACED R ELIANCE ON THE ORDERS OF THIS TRIBUNAL IN THE CASE OF M/S. D.S. KULKARNI DEVE LOPERS LIMITED IN ITA NOS.723 TO 725/PUN/2013 ORDER DT.31.07.201 4. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) CONSIDERING SUB MISSIONS OF THE ASSESSEE AND DECISION OF THIS TRIBUNAL HELD THAT ASSES SEE IS ENTITLED TO 3 ITA NO.246/PUN/2017 M/S. SHREE VENKATESH ASSOCIATES. CLAIM PROPORTIONATE DEDUCTION UNDER SEC.80IB(10) OF THE AC T RELATING TO ELIGIBLE UNITS. IT IS NEEDLESS TO MENTION THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) DENIED THE CLAIM UNDER SEC.80IB(10) OF THE ACT RELATING TO BUNGLOWS / ROW HOUSES. THE RELEVANT PORTION IN ALLOWING THE PROPORTIONATE DEDUCTION FROM THE ORDER OF LEARNED COMMIS SIONER OF INCOME TAX (APPEALS) IS REPRODUCED HEREIN BELOW FOR READY REFERENCE. 9.3 I HAVE CAREFULLY CONSIDERED THE FACTS OF THE C ASE AND LAW APPARENT FROM THE RECORDS. THE ISSUE OF PRO-RATA DEDUCTION U/S. 8 0IB(10) FOR ELIGIBLE UNITS HAS BEEN CONSIDERED BY THE JURISDICTIONAL ITAT, PUN E IN CASE OF RAMSUKH PROPERTIES (SUPRA) AND M/S D.S. KULKARNI DEVELOPERS LTD (SUPRA) AND IT AT, NAGPUR IN CASE OF AIR DEVELOPERS(SUPRA) AND ALLOWED SUCH PRO-RATA DEDUCTION. THE ITAT, MUMBAI IN CASE OF MUDHIT MADAN LAL GUPTA VS. CIT REPORTED IN 9 TAXMANN.COM 235 HAS HELD (HAT IN DEPE ND RESIDENTIAL UNIT HAD TO BE TREATED AS SEPARATE HOUSING PROJECTS FOR THE PURPOSE OF DEDUCTION U/S. 8018(10) IF OTHER CONDITIONS ARE SATISFIED. THEREFO RE, THE ROW HOUSES IN C WING ARE TO BE TREATED AS SEPARATE RESIDENTIAL PROJ ECTS. RESPECTFULLY, FOLLOWING THE JURISDICTIONAL ITAT, PUNE IN CASE OF RAMSUKH PROPERTIES (SUPRA) AND M/S D.S. KULKARNI DEVELOPERS LTD (SUPRA) AND ITAT, MURN BAI IN CASE OF MUDHIT MADANLAL GUPTA (SUPRA) AND ITAT, NAGPUR IN C ASE OF AIR DEVELOPERS(SUPRA) PRO-RATA DEDUCTION U/S. 8018(10) IS ALLOWABLE FOR ELIGIBLE UNITS OF THE APPELLANT. 5. WE NOTE THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IN PARA 5.4.3 OF HIS ORDER DISCUSSED THE ISSUE TAKING THE REFE RENCE TO THE DECISION OF THIS TRIBUNAL IN THE CASE OF M/S. D.S.KULKARNI DEVE LOPERS LTD., (SUPRA), WHEREIN WE NOTE THAT IN THE CLAIM OF THE ASSESSEE THEREIN, ON PROPORTIONATE BASIS WAS ALLOWED RELATING TO ELIGIBLE UNITS. TH EREFORE, IN THE LIGHT OF DISCUSSION MADE BY US HEREINABOVE AND IN VIEW OF TH E FINDINGS RECORDED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPE ALS), WE ARE OF THE VIEW THAT THERE IS NO INFIRMITY IN THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) AND IT IS JUSTIFIED. THUS, THE ONLY GRO UND RAISED BY THE REVENUE IS DISMISSED. 4 ITA NO.246/PUN/2017 M/S. SHREE VENKATESH ASSOCIATES. 6. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED ON 28 TH DAY OF SEPTEMBER, 2020. SD/- SD/- ( R.S. SYAL) ( S.S. VISWANETHRA RAVI) VICE PRESIDENT JUDICIAL MEMBER PUNE; DATED : 28 TH SEPTEMBER, 2020. YAMINI 0 1234 542 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5. 6. CIT(A)-7, PUNE. PRL.CIT-6, PUNE. '#$ %%&',)&', / DR, ITAT, B PUNE; $*+,/ GUARD FILE. / BY ORDER , // TRUE COPY // -./%0&1 / SR. PRIVATE SECRETARY )&', / ITAT, PUNE.