ACIT-AMRAVATI CIRCLE, Amaravati V. SHRI. GHANSHYAM HARICHAND KHANDELWAL, Amaravati

ITA 251/NAG/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1679 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 3 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2015
• Appeal Filed By: Department
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 02-05-2014
• Court: TRIBUNAL
• Department Lawyers: NARENDRA KANE
• Assessee Lawyers: R B ATAL
• Section: 143(3); 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH, NAGPUR BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO. 251/NAG./2014 ( ASSESSMENT YEAR : 200910 ) ASSTT. COMMISSIONER OF INCOME TAX AMRAVATI CIRCLE, AMRAVATI APPELLANT V/S SHRI GHANSHYAM HARICHAND KHANDELWAL SHANTI SADAN, CONGRESS NAGAR AMRAVATI 444 606 PAN ABEPK0014F RESPONDENT REVENUE BY : SHRI NARENDRA KANE ASSESSEE BY : SHRI R.B. ATAL DATE OF HEARING 25.08.2015 DATE OF ORDER 28.08 .2015 O R D E R PER MUKUL K. SHRAWAT, J.M. THIS APPEAL FILED BY THE REVENUE IS EMANATING FROM TH E IMPUGNED ORDER DATED 4 TH FEBRUARY 2014, PASSED BY THE LEARNED COMMISSIONER (APPEALS)II, NAGPUR, FOR THE ASSESSME NT YEAR 2009 10, ON THE FOLLOWING GROUNDS OF APPEAL: 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE AND LAW THE LEARNED CIT(APPEAL) HAS ERRED IN HOLDIN G THAT SINCE THE ASSESSEE HAS BEEN CLAIMING DEDUCTION U/S. 8018 FOR THE LAST SEVERAL YEARS AND THE SAME HAS BEEN AL LOWED SHRI GHANSHYAM HARICHAND KHANDELWAL 2 TO THE ASSESSEE, THE DEDUCTION U/S. 8018 IS ALLOWABLE TO THE ASSESSEE WITHOUT CONSIDERING THE FACT THAT ASSE SSEE FAILED TO FURNISH A CERTIFICATE FROM AMRAVATI MUNIC IPAL CORPORATION ESTABLISHING THAT THE PLOTS OF LAND INV OLVED IN THE CONSTRUCTION ARE CONTIGUOUS. 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND LAW THE LEARNED CIT(APPEAL) HAS ERRED IN NOT CONSID ERING THE FACT THAT AS PER PROVISIONS OF CLAUSE (B) OF SE CTION 8018(10) THE DEDUCTION IS ALLOWABLE IF THE PROJECT IS ON THE SIZE OF A PLOT OF LAND WHICH HAS A MINIMUM AREA OF ONE ACRE. 3. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND LAW THE LEARNED CIT(APPEAL) ERRED IN NOT APPRECIATI NG THE FACT THAT ASSESSEE HAS PREPARED 5 SEPARATE MAPS COV ERING DIFFERENT PLOTS WITH DIFFERENT AREA AND THE AMRAVAT I MUNICIPAL CORPORATION HAS ACCORDED SANCTION FOR 5 SEPARATE MAPS. 2. FACTS IN BRIEF, AS EMERGED FROM THE CORRESPONDING AS SESSMENT ORDER DATED 29 TH DECEMBER 2011, PASSED UNDER SECTION 143(3) OF THE ACT, WHERE THE ASSESSEE, IN INDIVIDUAL CAPACITY, IS I N THE BUSINESS OF CIVIL CONSTRUCTION. THE ASSESSEE HAS DEVELOPED A HOU SING PROJECT IN AMRAVATI. THE CONSTRUCTION WAS STARTED FROM THE FIN ANCIAL YEAR 2000 01. THE ASSESSEE HAD MADE A CLAIM OF DEDUCTION UNDE R SECTION 80IB OF THE ACT, FOR THE YEAR UNDER CONSIDERATION AT ` 13,11,323. THE ASSESSING OFFICER HAS RAISED THE OBJECTION THAT THE P LOTS ON WHICH THE HOUSING PROJECT WAS DEVELOPED WAS NOT ON A SINGLE P LOT BUT ON DIFFERENT PLOTS WHICH WERE NOT CONTIGUOUS. ACCORDING TO THE ASSESSING OFFICER, SINCE THE PLOTS WERE NOT CONTIGUOUS, THEREFO RE, A CRITERIA OF PROJECT TO BE DEVELOPED ON A PIECE OF LAND OF MORE TH AN ONE ACRE WAS NOT FULFILLED. RESULTANTLY, THE CLAIM WAS DISALLOWED . WHEN THE MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AUTHORITY, THE LEARNED CIT(A) HAS GRANTED THE RELIEF AS UNDER: SHRI GHANSHYAM HARICHAND KHANDELWAL 3 5. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CA SE AND THE WRITTEN SUBMISSIONS OF THE APPELLANT. IT IS APPAREN T THAT THE APPELLANT HAS BEEN CLAIMING DEDUCTION U/S. 80IB FOR THE LAST SEVERAL YEARS AND THE SAME HAS BEEN ALLOWED TO THE APPELLANT. DURING THE COURSE OF ASSESSMENT PROCEEDI NGS ALSO, VARIOUS DETAILS WERE FURNISHED BY THE APPELLA NT AS REQUIRED BY THE LD. AO TO ESTABLISH ITS CLAIM OF DE DUCTION. IT WAS ONLY ON 16-12-2011 THAT THE LD. AD REQUIRED THE APPELLANT TO FURNISH A CERTIFICATE FROM AMRAVATI MU NICIPAL CORPORATION TO ESTABLISH THAT THE PLOTS OF LAND INV OLVED IN THE CONSTRUCTION ARE CONTIGUOUS. IT WAS BECAUSE OF LACK OF TIME THAT THE APPELLANT COULD NOT FURNISH A CERTIFI CATE AND THE LD. AD DISALLOWED THE CLAIM OF DEDUCTION U/S 80 1B. THE SAID CERTIFICATE WAS EVENTUALLY RECEIVED BY THE APP ELLANT ON 06-07-2012 WHICH WAS THEN SUBMITTED BY THE APPEL LANT BEFORE THE LD. AD DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR THE SUBSEQUENT ASSESSMENT YEARS I.E . AY 2010-11. THE SAID ASSESSMENT WAS ALSO COMPLETED IN SCRUTINY VIDE ORDER DATED 28-12-2012 AND THE CLAIM OF THE APPELLANT OF DEDUCTION U/S 80IB AMOUNTING TO RS. 1264133/- HAS BEEN EXEMPTED BY THE LD. AD AND ALLOW ED AFTER VERIFICATION. THE APPELLANT HAS ALSO SUBMITTE D A COPY OF THE SAID ASSESSMENT ORDER PASSED U/S 143(3). IN VIEW OF THE ABOVE FACTS IT IS EVIDENT THAT THE APPELLANT HA S CORRECTLY CLAIMED DEDUCTION U/S 80IB AND THE SAME IS THEREFOR E HELD TO BE ALLOWABLE. THIS GROUND IS THEREFORE ALLOWED. BEING AGGRIEVED, THE REVENUE IS BEFORE US. 2. WE HAVE HEARD BOTH THE SIDES. AT THE OUTSET, WE HAVE BEE N INFORMED THAT IN ASSESSEES OWN CASE, FOR ASSESSMEN T YEAR 201011, AN ASSESSMENT WAS MADE UNDER SECTION 143(3) OF THE AC T DATED 28 TH DECEMBER 2012, WHEREIN THE ASSESSING OFFICER, AFTER SCRUTINY, HAS ALLOWED THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT OF ` 12,64,133. THEREFORE, IT IS ARGUED THAT THE CLAIM OF D EDUCTION UNDER SECTION 80IB OF THE ACT WAS NOT ONLY ALLOWED IN THE PA ST YEARS BUT ALSO IN THE SUBSEQUENT YEARS BY THE REVENUE DEPARTMENT. ON LY IN THIS YEAR, A DIFFERENT VIEW WAS TAKEN BY THE ASSESSING OF FICER THAT TOO SHRI GHANSHYAM HARICHAND KHANDELWAL 4 WITHOUT CONSIDERING THE FACTS OF THE CASE. OUR ATTENTION HAS ALSO BEEN DRAWN ON A LETTER DATED 6 TH JULY 2012, ISSUED BY THE ASSISTANT DIRECTOR, TOWN PLANNING, MUNICIPAL CORPORATION, AMRAVATI, WHER EIN IT WAS CERTIFIED THAT THE PLOTS WERE JOINT WITH EACH OTHER. THUS, CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND CERTAIN EVIDENCES PLACED IN THE SHORT COMPILATION THAT WE ARE OF THE VIEW THAT THE REVENUE DEPARTMENT SHOULD HAVE TAKEN A CONSISTENT V IEW ON IDENTICAL FACTS IN THE CASE OF THIS ASSESSEE. WE HEREB Y AFFIRM THE FACTUAL FINDINGS OF THE LEARNED CIT(A) AND DISMISS THE GROUNDS RAISED BY THE REVENUE. 3. IN THE RESULT, REVENUES APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28.08.2015 SD/ - SHAMIM YAHYA ACCOUNTANT MEMBER SD/ - MUKUL K. SHRAWAT JUDICIAL MEMBER NAGPUR, DATED: 28.08.2015 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, NAGPUR CITY CONCERNED; (5) THE DR, ITAT, NAGPUR; (6) GUARD FILE. TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY A SSISTANT REGISTRAR ITAT, NAGPUR