M/s. Tulsi Developers, Pune V. Deputy Commissioner of Income-tax, Circle - 7, Pune

ITA 2491/PUN/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4681 (ITAT-PUNE)
• Duration Of Justice: 11 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 26-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS SHABANA PARVEEN
• Section: 80IB; 32; 10

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE BEFORE SHRI ANIL CHATURVEDI, AM . / ITA NOS.2490 TO 2492/PUN/2017 / ASSESSMENT YEARS : 2006-07 TO 2008-09 M/S. TULSI DEVELOPERS, 428-A, SHOP NO.9, RANJEET COMPLEX, NEW MANGALWAR PETH, PUNE 411011. PAN : AADFT2709H. . / APPELLANT V/S THE DY.COMMISSIONER OF INCOME TAX, CIRCLE 7, PUNE. . / RESPONDENT ASSESSEE BY : SHRI PRAMOD SHINGTE. REVENUE BY : MRS. SHABANA PARVEEN. / ORDER PER ANIL CHATURVEDI, AM : THE THREE APPEALS FILED BY THE ASSESSEE ARE EMANATING OUT OF SEPARATE ORDERS OF COMMISSIONER OF INCOME TAX (A), PUNE- 5, PUNE DT.31.07.2017 FOR THE ASSESSMENT YEARS 2006-07 TO 2008- 09, RESPECTIVELY. 2. BEFORE ME, AT THE OUTSET, BOTH THE PARTIES SUBMITTE D THAT THOUGH THE APPEALS FILED BY THE ASSESSEE ARE FOR THREE D IFFERENT ASSESSMENT YEARS BUT THE FACTS AND ISSUES INVOLVED IN ALL THE APPEALS ARE IDENTICAL EXCEPT FOR THE ASSESSMENT YEARS AN D THE AMOUNTS INVOLVED AND THEREFORE THE SUBMISSIONS MADE BY T HEM / DATE OF HEARING : 24.10.2018 / DATE OF PRONOUNCEMENT: 25.10.2018 2 WHILE ARGUING ONE APPEAL WOULD BE EQUALLY APPLICABLE TO THE OTHER APPEALS ALSO AND THUS, ALL THE THREE APPEALS CAN BE HEAR D TOGETHER. IN VIEW OF THE AFORESAID SUBMISSIONS OF BOTH THE PARTIES, I, FOR THE SAKE OF CONVENIENCE, PROCEED TO DISPOSE OF ALL THE THREE APPEALS BY A CONSOLIDATED ORDER BUT HOWEVER, PROCEED WITH NARRATIN G THE FACTS IN ITA NO.2490/PUN/2017 FOR ASSESSMENT YEAR 2006-07. 3. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RE CORD ARE AS UNDER :- ASSESSEE IS A PARTNERSHIP FIRM STATED TO BE ENGAGED IN T HE BUSINESS OF PROMOTERS, BUILDERS AND DEVELOPERS. ASSESSEE HAD CLAIMED DEDUCTION U/S 80IB(10) OF THE ACT FOR ITS GOKUL N AGARI PROJECT AT PIMPLE GURAV, PUNE. THE CLAIM OF THE ASSESSEE FOR CLAIM OF DEDUCTION WAS DENIED BY THE AO MAINLY FOR THE REASON THAT THE ASSESSEES HOUSING PROJECT WAS NOT OF ONE ACRE OF LAND, WHICH WAS THE MINIMUM AREA REQUIRED IN ACCORDANCE WITH SECTION 80IB (10) OF THE ACT. ACCORDING TO AO, THE AREA WAS ONLY 4000 SQ. M TRS. AFTER THE APPROVED PLAN OF PIMPRI CHINCHWAD MUNICIPAL CORPORATION (PCMC), WHEREAS IN ACCORDANCE WITH THE PRESCRIBED CONDITION OF MINIMUM AREA OF ONE ACRE, THE AREA OF THE LAND SHOULD HAVE BEEN 4046.86 SQ. MTRS. AO ALSO REJECTED THE CLAIM OF DEDUCTION FOR THE REASON THAT PROJECT WAS WITH RESPECT TO 7 BUILDINGS A, B , C, D, E, F AND G AND OUT OF WHICH ONLY A, B, C & D BUILDINGS WERE C OMPLETED BY THE STIPULATED DATE OF 31.03.2008. AGGRIEVED BY THE OR DER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD.CIT(A), WHO CONFIRME D THE ORDER OF AO. THEREAFTER, THE MATTER WAS CARRIED BEFORE T HE TRIBUNAL. THE TRIBUNAL VIDE ORDER DT.30.07.2013 IN ITA NOS.1394 TO 1396/PN/2010 AND ITA NO.1796/PN/2012 FOR A.YS. 2005-06 TO 3 2008-09 REMANDED THE MATTER BACK TO AO TO DECIDE THE ISSUE OF DEDUCTION U/S 80IB(10) OF THE ACT AFRESH IN VIEW OF THE D IRECTIONS OF THE AFORESAID ORDER. PURSUANT TO THE DIRECTIONS OF ITAT, AO PASSED ORDER GIVING EFFECT TO THE ORDER OF ITAT U/S 254 OF THE A CT VIDE ORDER DT.30.03.2015 WHEREIN HE AGAIN HELD THAT ASSESSEES CONTE NTION THAT SIZE OF THE PLOT TO BE OF MORE THAN ONE ACRE TO BE NOT TRUE. HE THUS ONCE AGAIN DENIED THE CLAIM OF DEDUCTION U/S 80IB(1 0) OF THE ACT OF RS.19,65,236/-. AGGRIEVED BY THE ORDER OF AO, ASSE SSEE CARRIED THE MATTER BEFORE LD.CIT(A), WHO VIDE ORDER DT.31.0 7.2017 (IN APPEAL NO.PN/CIT(A)-5/DY.CIT, CIR-7, PUNE/238/2015-16) UPHELD THE ORDER OF AO BY FOLLOWING HER OWN DECISION IN ASSE SSEES OWN CASE FOR A.Y. 2005-06 AND HELD AS UNDER : 4.4. I HAVE PERUSED THE MATERIAL ON RECORD AND THE CONTENTION OF THE APPELLANT CAREFULLY. THE ONLY ISSUE TO BE DECIDED IS WHETHER THE AOS ACTION IN HOLDING THE PLOT SIZE TO BE LESS THA N ONE ACRE RELYING ON THE VALUERS REPORT WAS CORRECT OR NOT. THIS ISSUE HAS ALREADY BEEN ADJUDICATED BY THE UNDERSIGNED BY UPHOLDING TH E ACTION OF TH E AO AND AGA I NST THE APPELLANT , IN THE APPELLANT'S OWN CASE IN APPEAL NO PN/CIT ( A)-5 / DY . CIT,CIR-7, PUNE/237/2015-16 FOR AY 2005-06 DATED 18.11.20 1 6 HAS HELD A T PARA 5 . 4 AND PARA 5.5 AS U NDER: - 5.4 I HAVE PERUSED THE MATER I AL O N RECORD AND T HE CONTENTION OF THE APPELLAN T CAREFULL Y . THE ON LY ISSUE TO BE D EC I DED IS WHETHER THE AOS ACTION I N HOLD I N G T H E PLOT SIZE TO BE LESS THAN ONE ACRE RELYING ON THE VALUERS REPORT WAS CORRECT OR NOT. THE APPELLANT IN ITS SUBMISSIONS/STATEMENT OF FACT HAS CONTENDED TH AT , T HE HOUSING PROJECT SANCTIONED BY THE LOCAL AUTHORIT Y IS ON THE PLOT AREA OF 1 ACRE AND NO DISALLOWANCES ARE CALLED FOR . A PERUSAL OF THE VALUER'S REPORT C L EARLY INDICATES THA T , THE VALUER HAS CONSI DE R ED AT PARA 1.3 THE FOLLOWING DOCUMENTS WHICH WERE SUBMITTED: - 1) COMMENCEMENT CERTIFICATE 2) COMP L ETION CERTIF I CATE 3) LAYOUT PLAN FOR 2007 AND 2012 4) DEVELOPMENT AGREEMENT 5) PLOT PURCHASE AGREEM E N T AT COLU MN N O . 3 THE VALUERS REPOR T STATES 80IB(10) B - SI ZE OF THE PLOT - SH OU LD B E MORE THAN 1 ACRE I.E., MORE THAN 4046.82 SQM. AT PARA 3 . 1 OF THE REPORT TH E V A L U E R CATEGORICALLY ST A TES 'A S PER PURCH AS E D EE D : SHRI VE L JI B . CHOTHANI AND OT H E R S E NTERED IN TO 4 DEV E L OP MENT AGREEMENT V ID E NO. 7608 D AT ED 1 7/12/2002 FOR T H E ARE A I S 1300 SQM + 1 3 00 SQM + 1400 SQM = 400 0 SQM FO R RS . 4 6 , 41,000/ - (HUF ) . AT 3 . 2 P ARA OF THE REPORT THE V A L UER GIVES A FINDIN G O F THE PLOT AREA BEI NG 4 000 SQM . A DET A I L ED . P ERUSAL OF PARA 3 . 3 W H I CH IS THE PLOT AR E A ST ATEMENT , THE VALU E R GIV ES FINDIN G AS U N DER AT THE FIRST POI N T : - ' P L OT A R EA STATEMENT 1. ' AS PER PURCHASE DEED AND AREA STATEMEN T OF SANCT I ONED PLA N , A RE A OF P L OT I S 4000 SQM I . E . 0 . 988 4 AC R E WHIC H I S LESS T H A N 1 AC R E . AT TH E 2 ND AND 3 RD PO I NT OF THE PARA THE VALU E RS STATES THAT , ' THE ASSES S EE CLAIM ED TH A T ON THE SAME SA N CTIONED PLAN A REA A CT U A L LY MEASU R ED IS MENTIONE D AS 4077 . 21 SQM I.E . 1 . 00 7 5 A CRE WH I CH IS MORE THAN ONE ACRE. HOW EVER ON THE SAM E SA N CTI O NED PLAN , A R E A UN D E R R O A D IS AS 218 . 49 SQM DEDUCTIN G THE SAME FROM ACTUAL AR EA O F 4 0 77 . 3 2 SQ M. NET A R E A OF PLOT IS 38 5 8 . 2 SQM I . E. 0.9 5 35 A CRE , W HICH I S LES S TH A N A A C RE . ' H E THEN GOES ON TO ELABO R ATE ON T H E R OA D AREA ;N TH E S ANC TI ONED PLOT AND L ESSE N S IT F R OM THE CLA I M E D PLOT AREA , TO IND I CAT E THE PL OT SIZE WHICH IS LESS THAN ONE AC RE. SIMILAR L Y HE WORK S O U T THE AREA STATEMENT OF THE PLOT AS PER P LAN A R E A AF T E R L E S S ENING THE ROAD AR EA FROM 4000 SQ . MTRS WH I CH HE STATES IS PU R C H AS ED TO BE , AS U NDE R : - IF I CONSIDER 4000 SQM AS CORRECT PLOT AREA WHICH IS PURCHASED THE AREA STATEMENT AS PER PLAN IS AREA OF PLOT 4000.00 SQM (-) THE PROPOSED ROAD 218.49 SQM (-) ROAD AREA 320.32 SQM 3461.19 SQM NET GROSS AREA OF PLOT I.E. THE PLOT AREA IN ACRE 0.8553 ACRE WHICH IS LESS THAN 1 ACRE. A T P ARA 3 . 3 HE M AKES A STA TEMENT AS UND ER : - 'H E N CE THE AREA W HICH IS P URCHASED AND SANCTI O NE D IN THE PLA N AND I N POSS ESS I O N IS LESS THAN A ACR E.' I T E ND NOT TO A GREE W I TH THE APPELLAN T , THAT THE AO HAS TAKE N AN A DVERSE I NF E RENCE. THE REP ORT OF THE VALUE R IS CLEAR ON TH I S ISSUE . TH E AO HA S ONLY TAKEN T HE SIZE OF THE PLOT AS S TATED BY THE VALU ER . THE V ALUER CLEARLY S T ATE S THA T , THE PLO T S I Z E I S BE L OW O NE A CR E AS PER THE PURC HA SE DEE D AND THE S ANCT ION ED P L AN . T H E CONTENTION OF THE APPELLANT, THAT THE VALUER HAS STATED TH E PLOT AREA IN HAND I S 4077 . 21 SQ . MTR IS MISCONSTRUED . THE FULL READING OF ALL TH E PARAGRAPHS I N THE VALUERS REPORT CLEARLY SHOW THAT, T H E VA L UER M E NTION S T HE CLA I M B U T STI CK S T O HIS FINDINGS OF THE PLOT SIZE-BEING LESS THAN ONE ACRE . 5 5.5 THE APPELLANT DID NO T SUBSTANTIATE HIS CLAIM OF THE PL OT S IZ E B EIN G MO RE THAN ONE ACRE DURING APPELLATE PROCEEDING. THO U GH I T CLA IMED I N T HE WRITT EN SU BMIS SIO N DA TE D 15 . 11 . 2016 TO H AVE ATT AC HED COPI ES O F TH E P L AN A S A NN E X U RE NO.1 CERTIFICATE FROM THE ARCHITECT AS ANNEXURE NO.2 FOR CLARIFYING THE PLOT AREA, THE SAME HAS NOT BEEN ANNEXED. WHAT HAS BEEN ANNEXED IS COPY OF THE ORDER OF HON'BLE ITAT DT . 30 . 07.2013 AS ANNE X URE NO . 1 (AS A G A I N M EN TION ED IN THE SUBMISSION) PART REPORT OF THE DEPARTMENTAL VALUER AS ANN EXU R E NO . 2 , DE C IS I ON OF THE HON'BLE ITAT, PUNE IN THE CASE OF BUNTY BUILDERS VS. I TO 2010,127 ITAT 28 6 PUNE AS ANNE X URE NO . 3. THEREFORE , THE APPELLANT WAS U NABLE TO S U B S T A N TIA T E I TS CLAIM OF THE PLOT SIZE BEING MORE THA N O NE ACRE. TH E OT HER CONTENTION OF THE AP PEL LANT THAT , IN T HE I NI T IAL A S S E S S ME N T TH E AO WAS CONFUS ED DUE TO THE CONV ERS ION OF A RES INTO ACR ES A ND S Q F E ET , NO W IS IRRELEVANT AS T HE AO HAS BASED H IS DECISION ON THE C A L C UL A T I O NS OF T H E PLOT LAND AREA BY AN EXPERT . THE APPELLANT HAS TR I ED TO DRAW A PI C T U RE , THAT I T S PLOT ARE A WAS LESS THAN O NE ACRE DUE TO THE R OAD AREA BEING LE SSE N ED B Y THE VALUER. IT HA S CONTENDED T HA T , THE ROAD AREA IS TO B E CONSIDERED I N T HE P L O T A REA FO R C A LCUL AT I ON OF THE PL OT S I ZE BY RELY I NG OF THE J UDGME NT OF THE HO N ' B LE IT A T PU NE IN TH E C AS E OF B U N TY B UI L DE R S (SU PR A]. THIS C ASE H A S NO APPL I C AT IO N T O T HE F A C T S OF THE APPE L LANTS CASE. IN THE SA ID CASE, THERE W AS NO D IS PUTE REGA R DI NG T HE OR I G I NAL PLOT S I ZE, WHI C H FELL BELO W T H E R EQUIRED AREA OF T HE O NE ACRE AFTER LE SSE NI N G THE ROAD AR E A . I N THE APPELLAN T'S CA SE , THE ORIGINAL PLOT S I Z E ITSELF IS LESS T H A N O N E ACRE, THUS V I O L A T IN G THE PRO V I SIO NS OF THE SECTION 80IB ( 1 0 ) B ; WHICH FALLS FURT HER U NDER ONE ACRE O N T HE LESSENIN G O F T HE ROAD AREA. HE N C E, T H E DECISION W ILL B E A PPL I C A BLE ONLY IF TH E P LO T S I ZE IN I TI AL LY I S O NE ACRE. IN VI E W OF THE DISCUSSION S IN TH E PRECEDING PARA GR A PHS , THE ACTION OF TH E AO IN HOLDIN G T HE PLOT AREA TO BE L E S S THAN ONE ACRE IS SU ST A I NED AND THE DISALLO W A N C E U/S 80IB(10) UPHELD. THE APPELLANT FAILS IN THESE GROUNDS OF APPEAL WHICH ARE DISMISSE D. FOLLOWING THE ABOVE, THE ACTION OF THE AO IS SUSTAI NED AND THE DISALLOWANCE U/S 80IB(10) UPHELD. THE APPELLAN T FAILS IN THESE GROUNDS OF APPEAL WHICH ARE DISMISSED. 4. AGGRIEVED BY THE ORDER OF LD.CIT(A), ASSESSEE IS NOW IN APPEAL AND HAS RAISED THE FOLLOWING GROUNDS : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LEARNED ASSESSING OFFICER ERRED IN NOT ACCEPTING TH E FACT THAT DEPARTMENTAL VALUATION OFFICER HAS POINTED OUT THAT THE GROSS PLOT OF AREA OF LAND IS 4077.21 SQUARE METERS AND THEREFORE IT IS MORE THAN 1 ACRE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LEARNED ASSESSING OFFICER ERRED IN NOT CONSIDERING THE PLOT SIZE ON THE DATE OF SUBMISSION OF PLAN AND NOT APPRECIATING THE FACT THAT SURRENDER FOR THE ROAD IS A SUBSEQUENT EVENT AND CONDITIONS F OR 1 ACRE HAS TO BE SEEN ON THE DATE OF SUBMISSION OF THE PLAN. 6 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LEARNED ASSESSING OFFICER ERRED IN NOT ALLOWING THE DEDUCTION OF RS. 19,90,240/-- U/S 80IB(10) OF THE INCOME TAX ACT, 19 61 ALTHOUGH ALL REQUISITE CONDITIONS FOR CLAIMING THE DEDUCTION ARE COMPLIED WITH. 4.1. SIMILAR GROUNDS ARE RAISED IN ITA NOS.2491 AND 2492/PUN/2017 FOR A.YS. 2007-08 AND 2008-09, RESPECTIVELY. 5. ALL THE GROUNDS BEING INTER-CONNECTED ARE CONSIDERED TOGETHER. 6. BEFORE ME, AT THE OUTSET, LD.A.R. SUBMITTED THAT LD.CIT(A) WHILE DECIDING THE ISSUE HAD FOLLOWED THE ORDER IN ASSESSEE S OWN CASE FOR A.Y. 2005-06. LD.A.R. SUBMITTED THAT AGAINST THE ORDER OF LD.CIT(A), ASSESSEE HAD CARRIED THE MATTER BEFORE THE TRIB UNAL AND THE TRIBUNAL VIDE ORDER DT.20.04.2018 IN ITA NO.484/PUN/20 17 HAS HELD THAT THE ASSESSEE HAD FULFILLED THE CONDITIONS OF H OLDING THE PLOT OF HAVING AREA OF LAND MORE THAN ONE ACRE AND T HEREFORE DIRECTED THE AO TO ALLOW THE CLAIM OF ASSESSEE OF DEDUCTI ON U/S 80IB(10) OF THE ACT. HE PLACED ON RECORD THE COPY OF T HE AFORESAID ORDER AND POINTED TO THE RELEVANT FINDINGS OF TRIBUNAL. HE THEREFORE SUBMITTED THAT SINCE THE FACTS OF THE CASE IN THE YEAR U NDER CONSIDERATION ARE SIMILAR TO A.Y. 2005-06, AS HAS ALSO BEEN ADMITTED BY LD.CIT(A), THEREFORE, FOLLOWING THE ORDER OF TRIBU NAL IN ASSESSEES OWN CASE FOR A.Y. 2005-06, ASSESSEE BE GRANT ED DEDUCTION U/S 80IB(10) OF THE ACT. LD.D.R. ON THE OTHER H AND, DID NOT CONTROVERT THE SUBMISSIONS MADE BY LD.A.R. BUT HOWEV ER SUPPORTED THE ORDER OF LOWER AUTHORITIES. 7. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MA TERIAL ON RECORD. THE ISSUE IN THE PRESENT GROUND IS WITH RESP ECT TO DENIAL 7 OF CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT FOR THE REASON THAT THE AREA OF PLOT ON WHICH THE HOUSING PROJECT WAS CONST RUCTED WAS HELD BY AO TO BE OF LESS THAN ONE ACRE OF LAND. THE CLAIM OF ASSESSEE OF DEDUCTION U/S 80IB(10) OF THE ACT WAS ALSO D ENIED BY THE AO IN A.Y. 2005-06 FOR THE SAME REASON. AGAINST THE ORDER OF AO, WHICH WAS CONFIRMED BY LD.CIT(A), ASSESSEE HAD CARRIED THE MATTER BEFORE THE TRIBUNAL. THE TRIBUNAL VIDE ORDER DT.20.0 4.2018 (IN ITA NO.484/PUN/2017) HAS DECIDED THE ISSUE IN FAVOUR O F THE ASSESSEE BY HOLDING AS UNDER : 10. COMING TO THE FACTS OF PRESENT CASE BEFORE THE TRIBUNAL, THE TRIBUNAL IN THE FIRST ROUND HAD NOTED THAT IN THE A REA STATEMENT, AREA OF PLOT WAS MENTIONED AS 4000 SQ.MTRS. IN THE SANCT IONED BUILDING PLAN; AND ON THE SAID PLAN ITSELF, IN THE MIDDLE, P LOT AREA BY TRIANGULATION METHOD, AREA WAS 4077.21 SQ.MTRS. TH E CASE OF ASSESSEE BEFORE THE TRIBUNAL WAS THAT IN COMMON PAR LANCE, ONE ACRE OF PLOT OF LAND WAS REFERRED TO AS 40R, WHICH IN TU RN, WAS EQUAL TO 4000 SQ.MTRS., BUT THAT DOES NOT MEAN THAT AREA OF PLOT OF LAND WAS 4000 SQ.MTRS. IN THE PRESENT CASE, THE AREA OF PLO T OF LAND ON MEASUREMENTS AS PER TRIANGULATION METHOD WAS 4077.2 1 SQ.MTRS. I.E. MORE THAN ONE ACRE AS STIPULATED IN CLAUSE (B) TO SECTION 80IB(10) OF THE ACT. THE ASSESSEE WHEN IT HAD SUBMITTED ITS PLAN FOR DEVELOPMENT HAD IN POSSESSION AREA WHICH WAS MORE T HAN ONE ACRE AT 4077.21 SQ.MTRS. HOWEVER, AS PER NORMS OF THE M UNICIPAL CORPORATION AND OTHER AUTHORITIES, THE ASSESSEE IN ORDER TO DEVELOP THE SAID PLOT OF LAND HAD TO EARMARK LAND FOR DP RO AD EQUIVALENT TO 218.49 SQ.MTRS. THE SAID FACT WAS ALSO MENTIONED I N THE SANCTIONED PLAN ITSELF. IN OTHER WORDS, FOR GETTING THE SANCT ION FOR DEVELOPMENT OF HOUSING PROJECT ON THE PLOT OF LAND, WHICH MEASU RED TO 4077.21 SQ.MTRS. BY ACTUAL MEASUREMENTS, THEN THE SAID SANC TION WOULD BE ACCORDED WHERE THE ASSESSEE GIVES UP AREA FOR DP RO AD MEASURING 218.49 SQ.MTRS. THE SAID WAS THE CONDITION FOR GE TTING PERMISSION TO DEVELOP THE HOUSING PROJECT AT THE SAID PLACE. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE BEFORE U S HAS POINTED OUT THAT AGAINST THE SAID AREA LEFT FOR DP ROAD, TH E ASSESSEE WAS ENTITLED TO INCREASED FSI. IN OTHER WORDS, THE ASS ESSEE GAINED FROM LEAVING THE LAND FOR DP ROAD. THE COURTS HAVE TIME AND AGAIN HELD THAT THE CONDITION WHICH NEEDS TO BE FULFILLED FOR CLAIMING THE DEDUCTION, AS PER CLAUSE (B) IS THE ACTUAL MEASUREM ENT OF PLOT OF LAND ON THE DATE OF START OF DEVELOPMENT. THE ASSESSEE HAD IN THE PRESENT SET OF FACTS, PURCHASED THE PLOT OF LAND, WHICH MEA SURED SLIGHTLY MORE THAN ONE ACRE AT 4077.21 SQ.MTRS. IN OTHER WO RDS, THE BASIC CONDITION OF FULFILLMENT OF HAVING PLOT AREA OF ONE ACRE STANDS FULFILLED BY THE ASSESSEE. THE SAID AREA HAD TO BE SET APART ONLY AS PER THE REQUIREMENTS OF DIFFERENT RULES UNDER THE MUNICIPAL ITY ACT, BUT THE SAME DOES NOT LEAD TO THE CONCLUSION THAT THE ASSES SEE HAD LESS THAN ONE ACRE OF PLOT OF LAND AREA FOR ITS DEVELOPM ENT. THE GROSS TOTAL AREA WAS MORE THAN ONE ACRE AND HENCE, THE AS SESSEE WAS ENTITLED TO CLAIM THE DEDUCTION UNDER SECTION 80IB( 10) OF THE ACT 8 IRRESPECTIVE OF THE FACT THAT THE ASSESSEE HAD SET APART CERTAIN PORTION OF LAND FOR MAKING DP ROAD. THERE IS NO ME RIT IN THE ORDERS OF AUTHORITIES BELOW IN DENYING THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. ACCORDINGLY, THE ASSESSING OF FICER IS DIRECTED TO ALLOW THE DEDUCTION UNDER SECTION 80IB(10) OF THE A CT AS THE ASSESSEE HAD FULFILLED THE CONDITION OF HOLDING PLO T OF LAND, HAVING AREA OF MORE THAN ONE ACRE. THE FINDING OF CIT(A) THAT THE ORIGINAL PLOT SIZE ITSELF IN THE HANDS OF ASSESSEE WAS LESS THAN ONE ACRE WAS NOT CORRECT, IN VIEW OF ACTUAL MEASUREMENTS OF LAND AS PER TRIANGULATION METHOD, WHAT HAD TO BE SEEN AS THE AC TUAL MEASUREMENT OF PLOT OF LAND AND NOT THE PLOT SIZE M ENTIONED IN LOCAL LANGUAGE OF 40R. THE DVO HAD ALSO REFERRED TO SAME AREA OF 4077.21 SQ.MTRS. REVERSING THE ORDER OF CIT(A), CL AIM OF ASSESSEE OF 80IB(10) DEDUCTION IS ALLOWED. THE GROUNDS OF APPE AL RAISED BY THE ASSESSEE ARE THUS, ALLOWED. 8. BEFORE ME, REVENUE HAS NOT POINTED OUT ANY DISTINGUISHI NG FEATURE IN THE FACTS OF THE PRESENT CASE AND THAT OF EAR LIER YEAR. FURTHER, LD.CIT(A) ALSO WHILE DECIDING THE ISSUE HAD FOLLOWED HE R OWN ORDER FOR A.Y. 2005-06 MEANING THEREBY THAT THE FACT S IN THE YEAR UNDER CONSIDERATION WERE IDENTICAL TO THAT OF A.Y. 200 5-06. I THEREFORE FOLLOWING THE SAME REASONING, AS HELD BY PUNE BE NCH OF THE TRIBUNAL WHILE DECIDING THE ASSESSEES APPEAL FOR A.Y. 2 005-06 AND FOR SIMILAR REASONS HOLD THAT THE ASSESSEE HAS FULFILLED THE CONDITIONS BY HOLDING THE PLOT OF LAND HAVING AREA OF MORE T HAN ONE ACRE. IN SUCH A SITUATION, I HOLD THAT THE ASSESSEE IS E LIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE ACT. I THEREFORE DIRECT THE AO TO GRANT DEDUCTION U/S 80IB(10) OF THE ACT. THUS, THE GROUND OF THE ASSESSEE IS ALLOWED. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN ITA NO.2490/PUN/2017 FOR A.Y. 2006-07 IS ALLOWED. 10. AS FAR AS THE GROUNDS RAISED IN APPEALS IN ITA NOS.24 91 & 2492/PUN/2017 FOR A.YS. 2007-08 AND 2008-09 ARE CONC ERNED, IN VIEW OF THE SUBMISSIONS OF BOTH THE PARTIES THAT THE FACTS OF THE CAS E IN THE YEARS BEING IDENTICAL TO THE FACTS AND ISSUE OF THE CASE IN ITA 9 NO.2490/PUN/2016 FOR A.Y. 2006-07, I THEREFORE FOR THE REASONS STATED HEREIN WHILE DISPOSING OF THE APPEAL IN ITA NO.2490/PUN/2016 FOR A.Y. 2006-07, AND FOR SIMILAR REASONS , HOLD THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE ACT AND THUS ALLOW THE GROUNDS OF APPEALS OF ASSESSEE IN IT A NOS.2491 & 2492/PUN/2017. THUS, THE GROUNDS OF THE ASSESSEE ARE ALLOWED. 11. IN THE RESULT, THE APPEALS OF ASSESSEE IN ITA NOS. 2491 & 2492/PUN/2017 FOR A.YS.2007-08 AND 2008-09 ARE ALLO WED. 12. TO SUM UP, ALL THE APPEALS OF THE ASSESSEE ARE ALL OWED. ORDER PRONOUNCED ON THE 25 TH DAY OF OCTOBER, 2018. SD/--- ( ANIL CHATURVEDI ) ' / ACCOUNTANT MEMBER PUNE; DATED : 25 TH OCTOBER, 2018. YAMINI #$%&'(' % / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5 6. CIT(A), PUNE-5, PUNE. PR. CIT-, PUNE-4, PUNE. '#$ %%&',) &', *+ / DR, ITAT, SMC PUNE; $-.// GUARD FILE. / BY ORDER // TRUE COPY // 012%3&4 / SR. PRIVATE SECRETARY ) &' , / ITAT, PUNE.