Income-tax Officer, V. M/s. Prathamesh Developers, Pune

ITA 2502/PUN/2016

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5903 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 1 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-12-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 27-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJEEV GHEI
• Assessee Lawyers: R G NAHAR
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE . , , BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO.2502/PUN/2016 / ASSESSMENT YEAR : 2012-13 ITO, WARD- 2(2), PUNE. ....... / APPELLANT / V/S. M/S. PRATHAMESH DEVELOPERS, S.NO.4/1/1, WARJE, PUNE. PAN : AAJFP3456G / RESPONDENT ASSESSEE BY : SHRI R. G. NAHAR REVENUE BY : SHRI SANJEEV GHEI / DATE OF HEARING : 03.12.2018 / DATE OF PRONOUNCEMENT : 17.12.2018 / ORDER PER D. KARUNAKARA RAO, AM: THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A)-3, PUNE DATED 08.08.2016 FOR THE ASSESSMENT YEAR 2012-13. 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER :- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN ALLOWING THE ASSESSEES CLAIM OF DEDUCTION U/S 80IB(10) OF RS.1,83,67,748/- FOR A.Y. 2012-13, WHEN THE ASSESSEE HAD FAILED TO COMPLETE THE PROJECT WITHIN THE TIME STIPULATED AS PER THE PROVISIONS OF SECTION 80IB(10) OF THE ACT. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS FAILED TO APPRECIATE THAT THE APPROVAL FOR CONSTRUCTING THE HOUSING PROJECT WAS GRANTED BY THE LOCAL AUTHORITY VIDE COMMENCEMENT CERTIFICATE DATED 28.03.2007 AND THE ASSESSEE COULD COMPLETE THE SAID HOUSING PROJECT PARTLY AS ON 31.03.2012, AS EVIDENT FROM THE COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORITY. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN HOLDING THAT THE APPROVAL OR COMPLETION OF A HOUSING PROJECT WITHIN THE MEANING OF EXPLANATION (I) AND (II) APPEARING UNDER CLAUSE (A) OF SECTION 2 ITA NO.2502/PUN/2016 80IB(10) WILL HAVE TO BE TREATED AS APPROVAL OR COMPLETION OF THE BUILDING PLAN NOTWITHSTANDING THAT THE BUILDING MAY BE ONLY A PART OF THE LARGE HOUSING PROJECT, IN SO FAR AS, SUCH BUILDING SATISFIES THE CONDITIONS LAID DOWN IN SECTION 80IB(10) OF THE ACT. 4. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND ANY OR ALL THE GROUNDS OF APPEAL. 3. FROM THE ABOVE, IT IS EVIDENT THAT THE ASSESSEE HAD A PROPOSAL FOR CONSTRUCTING BUILDINGS B1, B2 AND C AND COMPLETED ONLY THE BUILDING C WITHIN THE SPECIFIED PERIOD. THE ASSESSEE CLAIMED THE BENEFIT OF DEDUCTION U/S 80IB(10) OF THE ACT IN RESPECT OF THE PROFITS EARNED WITH RESPECT TO THE SAID BUILDING C ONLY. HOWEVER, THE ASSESSING OFFICER DENIED THE BENEFIT OF DEDUCTION U/S 80IB(10) OF THE ACT HOLDING THAT ALL THE PROPOSED BUILDINGS WERE NOT COMPLETED WITHIN THE STIPULATED PERIOD. DISMISSING THE SAID LOGIC OF THE ASSESSING OFFICER, THE CIT(A) GRANTED RELIEF TO THE ASSESSEE RELYING ON THE ORDER OF HIS PREDECESSOR I.E. THE CIT(A)-II, PUNE FOR THE ASSESSMENT YEAR 2011-12. 4. AGGRIEVED WITH THE SAME, THE REVENUE IS IN APPEAL BEFORE US WITH THE GROUNDS EXTRACTED ABOVE. 5. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE FILED A COPY OF THE ORDER OF THE TRIBUNAL FOR THE SAID ASSESSMENT YEAR 2011-12 ASSESSEES OWN CASE IN RESPECT OF THE APPEAL FILED BY THE REVENUE AGAINST THE DECISION OF THE CIT(A) FOR THE ASSESSMENT YEAR 2011-12. THE LD. COUNSEL FOR THE ASSESSEE READ OUT THE CONTENTS OF PARA 9 AND 10 OF THE SAID ORDER AND SUBMITTED THAT THE PROJECT UNDER CONSIDERATION IS ONE OF THE SAME AND, THEREFORE, THE DECISION GIVEN BY THE TRIBUNAL IN ITS ORDER VIDE ITA NO.2009/PN/2014 DATED 30.11.2016 FOR THE ASSESSMENT YEAR 2011-12 3 ITA NO.2502/PUN/2016 APPLIES TO THE FACTS OF THE PRESENT CASE. THEREFORE, PRESENT APPEAL OF THE REVENUE SHOULD ALSO BE DISMISSED LIKE IN CASE OF THE APPEAL FOR ASSESSMENT YEAR 2011-12. 6. THE LD. DR FOR THE REVENUE RELIED HEAVILY ON THE ORDER OF THE ASSESSING OFFICER. 7. ON HEARING BOTH SIDES ON THIS LIMITED ISSUE OF ALLOWING BENEFIT OF DEDUCTION U/S 80IB(10) OF THE ACT IN RESPECT OF THE PROFITS RELATABLE TO THE BUILDING C, WE FIND THE ISSUE IS STAND COVERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. FOR THE COMPLETENESS OF THIS ORDER, PARA 9 AND 10 OF THE ORDER OF THE TRIBUNAL (SUPRA) IS EXTRACTED HEREUNDER :- 9. THE ASSESSING OFFICER DECLINED THE CLAIM OF DEDUCTION MERELY ON THE GROUND THAT THE ENTIRE PROJECT IS NOT COMPLETE. THE COMMISSIONER OF INCOME TAX (APPEALS) ALLOWED THE CLAIM OF ASSESSEE BY FOLLOWING VARIOUS DECISIONS OF THE TRIBUNAL AS WELL AS HONBLE HIGH COURTS. THE ASSESSING OFFICER HAS CERTAINLY FELL IN ERROR IN DECLINING THE BENEFIT OF DEDUCTION U/S 80IB(10) OF THE ACT TO THE ASSESSEE ON BUILDING C. THE HONBLE HIGH COURTS AS WELL AS VARIOUS BENCHES OF TRIBUNAL HAS HELD THAT PRO-RATA DEDUCTION CAN BE CLAIMED BY THE ASSESSEE ON THE PART OF HOUSING PROJECT WHICH IS COMPLETE IN EVERY RESPECT BEFORE THE DUE DATE. THE CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF RAHUL CONSTRUCTION CO. V/S ITO (SUPRA) GRANTED DEDUCTION TO THE ASSESSEE U/S 80IB(10) OF THE ACT ON PROPORTIONATE BASIS WHERE ONLY PART OF THE PROJECT WAS COMPLETE. 10. WE DO NOT FIND ANY ERROR IN THE WELL REASONED AND DETAILED ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) AND THUS, UPHOLD THE SAME. THE APPEAL OF THE DEPARTMENT IS DISMISSED BEING DEVOID OF ANY MERIT. 8. FROM THE ABOVE, IT IS EVIDENT THAT THE ASSESSEE IS ENTITLED TO DEDUCTION U/S 80IB(10) OF THE ACT. NON-COMPLETION OTHER BUILDING DOES NOT COME IN THE PROCESS OF CLAIM OF DEDUCTION. THEREFORE, WE FIND THE ORDER OF THE CIT(A) IS REASONED ONE AND DOES NOT CALL FOR ANY INTERFERENCE. ACCORDINGLY, THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 4 ITA NO.2502/PUN/2016 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON 17 TH DAY OF DECEMBER, 2018. SD/- SD/- ( /VIKAS AWASTHY) ( . /D. KARUNAKARA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 17 TH DECEMBER, 2018. SUJEET / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A)-3, PUNE. 4. THE PR. CCIT, PUNE. 5. , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE.