Income tax Officer, V. Venkatesh Creators Promoters & Developers, Pune

ITA 258/PUN/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1442 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-05-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 01-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOK BABU
• Keywords: Set aside
• Section: 143(3); 260A; 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO. 258/PUN/2017 / ASSESSMENT YEAR : 2012-13 ITO, WARD-14(1), PUNE ....... / APPELLANT / V/S. SHRI VENKATESH CREATORS PROMOTERS & DEVELOPERS, 96/B, 96C, DPM, KANUNVAR PRABHUNAGAR, OPP. RAILWAY STATION, MUNDHWA, PUNE-411036. PAN : AABAFS6199K / RESPONDENT ASSESSEE BY : NONE REVENUE BY : SHRI ASHOK BABU / DATE OF HEARING : 13.05.2019 / DATE OF PRONOUNCEMENT : 14.05.2019 / ORDER PER ANIL CHATURVEDI, AM : THIS APPEAL BY THE REVENUE IS FILED AGAINST THE ORDER OF THE LD. CIT(APPEALS)-8, PUNE DATED 30.10.2016 FOR THE ASSESSMENT YEAR 2012-13. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER:- 2. THE ASSESSEE IS A PARTNERSHIP FIRM STATED TO BE ENGAGED AS PROMOTERS, DEVELOPERS AND BUILDERS. THE ASSESSEE ELECTRONICALLY FILED ITS RETURN OF INCOME FOR AY 2012-13 ON 30.09.2012, DECLARING TOTAL INCOME OF RS. NIL. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER ASSESSMENT WAS FRAMED U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT ACT) VIDE ORDER DATED 30.03.2015 AND THE 2 ITA NOS. 258/PUN/2017 A.Y.2012-13 TOTAL INCOME WAS DETERMINED AT RS.1,14,22,670/-. AGGRIEVED BY THE ORDER OF ASSESSING OFFICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE CIT(A) WHO VIDE ORDER DATED 30.10.2016 IN APPEAL NO.PN/CIT(A)-8/ITO, WD-6(2), PUNE/78/2015-16/167 GRANTED PARTIAL RELIEF TO THE ASSESSEE. AGGRIEVED BY THE ORDER OF CIT(A), REVENUE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS:- 1. THE HONBLE CIT(A) ERRED IN ALLOWING DEDUCTION TO THE ASSESSEE U/S 80IB WHEN ASSESSEE COULD NOT COMPLETE THE HOUSING PROJECT AS REQUIRED UNDER PROVISIONS OF SEC 80IB(10)(A)(II) OF THE INCOME TAX ACT, 1961. 2. THE HONBLE CIT(A) ERRED IN ALLOWING DEDUCTION TO THE ASSESSEE U/S 80IB WHEN THE EXPLANATION (II) TO CLAUSE (A) OF SEC. 80IB(10) PROVIDES THAT THE DATE OF COMPLETION OF THE CONSTRUCTION OF THE HOUSING PROJECT SHALL BE TAKEN TO BE THAT THE DATE ON WHICH THE COMPLETION CERTIFICATE IN RESPECT OF SUCH HOUSING PROJECT IS ISSUED BY THE LOCAL AUTHORITY AND NO SUCH CERTIFICATE WAS SUBMITTED BY THE ASSESSEE. 3. THE HONBLE CIT(A) ERRED IN INTERPRETING SECTION 80IB(10), IN THE CONTEXT OF APPLICABILITY OF EXPLANATION (II) TO CLAUSE (A), IN A MANNER NEITHER CONTEMPLATED NOR PROVIDED FOR UNDER THE ACT. 4. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND ANY OR ALL THE GROUNDS OF APPEAL. ALL THE GROUNDS BEING INTER-CONNECTED, ARE CONSIDERED TOGETHER. 3. ON THE DATE OF HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE NOR ANY ADJOURNMENT APPLICATION WAS FILED. WE FIND THAT SINCE THE ISSUES RAISED IN THE PRESENT GROUNDS OF THE REVENUE HAVE ALREADY BEEN DECIDED IN THE PAST, WE PROCEED TO DISPOSE OF THE APPEAL EX-PARTE QUA THE ASSESSEE. 4. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS CLAIMED DEDUCTION OF RS.1,14,22,671/- U/S 80IB(10) OF THE ACT IN RESPECT OF THE HOUSING PROJECT CONSTRUCTED AT PLOT NO.2C, VILLAGE, MUNDWA, DISTRICT-PUNE. THE ASSESSING OFFICER WAS OF THE VIEW THAT AS PER THE PROVISION OF SECTION 80IB(10) OF THE ACT, IT WAS INCUMBENT UPON THE ASSESSEE TO COMPLETE THE HOUSING PROJECT WITHIN 4 YEARS FROM THE 3 ITA NOS. 258/PUN/2017 A.Y.2012-13 END OF FINANCIAL YEAR IN WHICH THE PROJECT WAS APPROVED BY THE LOCAL AUTHORITY. IN CASE OF THE ASSESSEE, HE NOTICED THAT THE ASSESSEE GOT COMPLETION CERTIFICATE FOR 4 WINGS OUT OF 5 WINGS WITHIN FOUR YEARS FROM THE END OF FINANCIAL YEAR IN WHICH THE PROJECT WAS STARTED BUT COULD NOT GET THE COMPLETION CERTIFICATE WITHIN 4 YEARS FOR ONE OF THE WING. HE ALSO NOTICED THAT ON IDENTICAL FACTS IN CASE OF THE ASSESSEE FOR AY 2009-10, THE ASSESSING OFFICER HAD HELD THAT THE ASSESSEE TO BE NOT ELIGIBLE FOR DEDUCTION U/S 80IB(10) BUT HOWEVER TRIBUNAL HAD DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. THE ASSESSING OFFICER NOTED THAT AGAINST THE ORDER OF TRIBUNAL, PROPOSAL HAS BEEN SENT FOR FILING APPEAL U/S 260A MEANING THEREBY THAT THE ORDER OF THE TRIBUNAL WAS NOT ACCEPTED BY THE REVENUE. HE THEREFORE FOLLOWING THE DECISION OF HIS PREDECESSOR, DENIED THE CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT TO THE ASSESSEE. 5. AGGRIEVED BY THE ORDER OF ASSESSING OFFICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE CIT(A) WHO BY FOLLOWING THE ORDER OF TRIBUNAL IN ASSESSEES OWN CASE FOR AY 2009-10 [ORDER DATED 09.09.2014] AND FOR THE REASONS STATED IN PARA 7 & 8 OF THE ORDER, DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF CIT(A), REVENUE IS NOW BEFORE US. 6. BEFORE US, LD.DR SUPPORTED THE ORDER OF ASSESSING OFFICER. 7. WE HAVE HEARD LD. DR AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ISSUE IN THE PRESENT GROUND IS WITH RESPECT TO DENIAL OF CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT. WE FIND THAT THE ASSESSING OFFICER WHILE DENYING THE CLAIM OF DEDUCTION HAD FOLLOWED THE ORDER OF HIS PREDECESSOR FOR AY 2009-10. WE FIND THAT THE CIT(A) WHILE ALLOWING THE CLAIM OF THE ASSESSEE HAS NOTED THAT IN AY 2009-10 IN ASSESSEES OWN CASE, THE ISSUE HAS BEEN DECIDED BY THE TRIBUNAL IN ASSESSEES FAVOUR BY DISMISSING THE APPEAL OF THE REVENUE. BEFORE US, REVENUE HAS NOT POINTED OUT ANY FALLACY IN THE FINDING OF CIT(A) NOR HAS 4 ITA NOS. 258/PUN/2017 A.Y.2012-13 POINTED OUT ANY DISTINGUISHING FEATURE IN THE FACTS AND CIRCUMSTANCES OF THE CASE IN THE YEAR UNDER CONSIDERATION AND THAT OF AY 2009-10. FURTHER, REVENUE HAS ALSO NOT PLACED ANY MATERIAL BEFORE US TO DEMONSTRATE THAT THE ORDER OF TRIBUNAL IN ASSESSEES OWN CASE FOR AY 2009-10 HAS BEEN SET ASIDE/OVER-TURNED/STAYED BY HIGHER JUDICIAL FORUM. IN VIEW OF THE AFORESAID FACTS AND FOLLOWING THE DECISION OF CO-ORDINATE BENCH OF THE TRIBUNAL, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF CIT(A) AND THUS THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 8. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON 14 TH DAY OF MAY, 2019. SD/- SD/- SD/- SD/- (SUSHMA CHOWLA) (ANIL CHATURVEDI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 14 TH MAY, 2019. AMIT KUMAR / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT-ITO, WARD-14(1), PUNE 2. / THE RESPONDENT-SHRI VENKATESH CREATORS PROMOTERS & DEVELOPERS, 96/B, 96C, DPM, KANUNVAR PRABHUNAGAR, OPP. RAILWAY STATION, MUNDHWA, PUNE-411036. 3. THE CIT(APPEALS)-8, PUNE. 4. THE CCIT, PUNE. 5. , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. / BY ORDER, SENIOR PRIVATE SECRETARY , / ITAT, PUNE.