Raviraj Kothari Punjabi associates, Pune V. ACIT, Range-4, Pune

ITA 280/PUN/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9804 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 25-06-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 18-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K SINGH
• Assessee Lawyers: V L JAIN
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NO. 164 & 1438/PN/2007 & 751 & 280/PN/2010 (ASSESSMENT YEARS: 2003-04 TO 2006-07) RAVIRAJ KOTHARI PUNJABI ASSOCIATES S.NO. 68/7/8/9 BEHIND SOPAN BAUG B.T. KAWADE PATIL ROAD, GHORPADI PUNE. PAN AAFFR 1541 N .. APPELLANT VS. DY. CIT CIR. 5, PUNE RESPONDENT ITA NO. 1008/PN/2010 (ASSESSMENT YEARS: 2005-06) ASSTT. CIT CIR. 5, PUNE APPELLANT VS. RAVIRAJ KOTHARI PUNJABI ASSOCIATES S.NO. 68/7/8/9 BEHIND SOPAN BAUG B.T. KAWADE PATIL ROAD, GHORPADI PUNE. PAN AAFFR 1541 N .. RESPONDENT ASSESSEE BY : SHRI V.L. JAIN DEPARTMENT BY : SHRI S.K. SINGH, CIT DR DATE OF HEARING: 05-11-2012 DATE OF PRONOUNCEMENT: 23-11-2012 ORDER PER G.S. PANNU, A.M.: THE CAPTIONED APPEALS FOUR BY THE ASSESSEE FOR A.Y S. 2003-04 TO 2006-07 AND ONE BY THE REVENUE FOR A.Y. 2005-06, ARE DIRECTED AGAINST THE RESPECTIVE ORDERS OF THE COMMISSIONER O F INCOME-TAX (APPEALS)-II PUNE WHICH, IN TURN, HAVE ARISEN FROM ORDERS PASSED BY THE ASSESSING OFFICER, UNDER SECTION 143(3) OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT). SINCE THE ISSUES INVOLVED IN ALL THESE APPEALS ARE COMMON, THEY WERE HEARD TOGETHER AND A RE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER FOR THE SAK E OF CONVENIENCE AND BREVITY. 2 ITA NO. 164 ETC. OF 07 RAVIRAJ KOTHARI PUNJABI ASSOCIATES A.Y. 2003-4 TO 2006-07 2. IN ALL THESE, THE COMMON POINT RELATES TO ASSESS EES CLAIM OF DEDUCTION U/S 80-IB(10) OF THE ACT. THE ASSESSEE B EFORE US, IS AN ASSOCIATION OF PERSONS WHICH IS ENGAGED IN THE BUSI NESS OF PROMOTERS, BUILDERS AND LAND DEVELOPERS. IT UNDERTO OK DEVELOPMENT AND CONSTRUCTING OF A HOUSING PROJECT NAMED AS CIT ADEL AT B.T. KAWDE PATIL ROAD, PUNE AND CLAIMED DEDUCTION FOR TH E CAPTIONED ASSESSMENT YEARS IN RESPECT OF PROFITS DERIVED FROM SUCH PROJECT IN TERMS OF SECTION 80-IB(10) OF THE ACT. THE REVENUE HAS DENIED THE CLAIM OF ASSESSEE PRIMARILY FOR THE REASON THAT THE PROJECT UNDERTAKEN BY THE ASSESSEE DOES NOT FULFILL THE CON DITIONS PRESCRIBED U/S 80-IB(10) OF THE ACT. IT WAS A COMMON POINT BE TWEEN THE PARTIES THAT THE FACTS AND CIRCUMSTANCES IN THE CAPTIONED A SSESSMENT YEARS STAND ON A SIMILAR FOOTING AND THEREFORE, WE TAKE U P FOR DISCUSSION, THE FACTS IN RELATION TO ASSESSMENT YEAR 2003-04 TO FACILITATE ADJUDICATION OF THE DISPUTE. 3. IN SO FAR AS ASSESSMENT YEAR 2003-04 IS CONCERNE D, THE RELEVANT FACTS ARE THAT ASSESSEE DECLARED TOTAL SAL ES IN RELATION TO ITS PROJECT CITADEL AT RS. 13,97,83,157/- ON WHICH NE T PROFIT IN THE PROFIT AND LOSS ACCOUNT WAS SHOWN AT RS. 4,88,52,973/-. AF TER ADJUSTING THE BROUGHT FORWARD LOSSES OF RS. 48,15,337/-, THE GROS S TOTAL INCOME WAS COMPUTED AT RS. 4,40,37,636/- WHICH WAS CLAIMED AS EXEMPT U/S 80-IB(10) OF THE ACT. THE ASSESSEES CLAIM FOR SUC H DEDUCTION WAS DENIED BY THE ASSESSING OFFICER ON TWO COUNTS. FIR STLY, AS PER THE ASSESSING OFFICER, THE PROJECT IN QUESTION CONSISTE D OF CONSTRUCTED AREA FOR SHOPS AND COMMERCIAL ESTABLISHMENTS AND TH EREFORE, ACCORDING TO HIM, IT WAS NOT A PURE HOUSING PROJECT WHICH WAS A REQUIREMENT OF SEC. 80-IB(10)(A) OF THE ACT. SECON DLY, AS PER THE ASSESSING OFFICER, THE BUILT UP AREA OF CERTAIN U NITS EXCEEDED THE LIMIT OF 1500 SQ.FT. PRESCRIBED IN CLAUSE (C) OF SE C. 80-IB(10) AND 3 ITA NO. 164 ETC. OF 07 RAVIRAJ KOTHARI PUNJABI ASSOCIATES A.Y. 2003-4 TO 2006-07 THEREFORE, THE ENTIRE PROJECT WAS INELIGIBLE FOR DE DUCTION U/S 80- IB(10) OF THE ACT. THE AFORESAID TWIN OBJECTIONS H AVE ALSO BEEN AFFIRMED BY THE CIT(A) AND AS A RESULT, THE ASSESSE E IS IN APPEAL BEFORE US. 4. IN SO FAR AS THE FIRST OBJECTION OF THE ASSESSIN G OFFICER IS CONCERNED, THE RELEVANT FACTS CAN BE UNDERSTOOD AS FOLLOWS: THE PROJECT CITADEL CONSTRUCTED BY THE ASSESSEE WAS A PPROVED BY THE PUNE MUNICIPAL CORPORATION (IN SHORT PMC) VIDE COMM ENCEMENT CERTIFICATE DATED 16-7-2002 AND THE FINAL COMPLETIO N OF CONSTRUCTION CERTIFICATE WAS ISSUED BY THE PMC ON 22-2-2004. TH E OTHER SALIENT FEATURES NOTED BY THE ASSESSING OFFICER WERE THAT THE TOTAL BUILT UP AREA OF ALL THE SHOPS WAS 13,246.96 (1230.87 SQ. MT RS) WHILE THE TOTAL BUILT UP AREA OF ALL THE RESIDENTIAL FLATS WA S 1,99,299.79 SQ. FT. (18,493.94 SQ. MTRS). AS PER THE ASSESSING OFFICER , THE ASSESSEE HAD THUS CONSTRUCTED COMMERCIAL AREA OF 13,248.96 S Q. FT. WHICH WAS 6.67% (APPROXIMATELY) OF THE TOTAL CONSTRUCTED AREA OF THE PROJECT. IN THIS BACKGROUND, THE ASSESSING OFFICER HELD THAT THE SAME WAS VIOLATIVE OF CLAUSE (D) OF SEC. 80-IB(10) OF THE AC T, INSERTED BY THE FINANCE (NO. 2) ACT, 2004 WITH EFFECT FROM 1-4-2005 . ACCORDING TO THE ASSESSING OFFICER, THE ASSESSEE HAD CONSTRUCTED COMMERCIAL AREA IN EXCESS OF 2000 SQ.FT. WHICH WAS THE LIMIT P RESCRIBED IN CLAUSE (D) OF SEC. 80-IB(10) OF THE ACT. ACCORDING TO THE REVENUE, THE AFORESAID FACTS ALSO SHOW THAT THE PROJECT WAS NOT A PURE HOUSING PROJECT WHICH WAS THE REQUIREMENT FOR AVAILING DEDU CTION U/S 80- IB(10) OF THE ACT. 5. ON THIS ASPECT, THE LEARNED COUNSEL FOR THE ASSE SSEE HAS VEHEMENTLY POINTED OUT THAT RELIANCE PLACED BY THE REVENUE ON CLAUSE (D) OF SEC. 80-IB(10) OF THE ACT INSERTED BY WAY OF FINANCE 4 ITA NO. 164 ETC. OF 07 RAVIRAJ KOTHARI PUNJABI ASSOCIATES A.Y. 2003-4 TO 2006-07 (NO. 2) ACT, 2004 WAS MISPLACED, INASMUCH AS THE SA ID AMENDMENT IS PROSPECTIVE IN NATURE AND NOT RETROSPECTIVE. FU RTHER, IT IS POINTED OUT THAT THE RESTRICTION ON THE AREA EAR-MARKED FOR COMMERCIAL PURPOSES IN A HOUSING PROJECT LAID DOWN IN CLAUSE ( D) OF SEC. 80- IB(10) OF THE ACT WOULD NOT BE APPLICABLE TO THE PR OJECTS WHICH HAVE COMMENCED PRIOR TO 1-4-2005, INASMUCH AS THE LAW AS APPLICABLE AT THE TIME OF COMMENCEMENT OF THE PROJECT DID NOT CON TAIN SUCH A RESTRICTION. IT IS SUBMITTED THAT HONBLE BOMBAY H IGH COURT IN THE CASE OF BRAHMA ASSOCIATES VS. JCI 333 ITR 289 (BOM) CLEARLY LAID DOWN THAT SUCH AMENDED PROVISION DID NOT OPERATE R ETROSPECTIVELY AND THAT THE SAME WOULD BE APPLICABLE FROM 1-4-2005 PROSPECTIVELY. APART THEREFROM, RELIANCE HAS ALSO BEEN PLACED ON T HE DECISIONS OF PUNE BENCH OF THE TRIBUNAL IN THE CASE OF OPEL SHEL TERS PVT. LTD. VS. ACIT (ITA NO. 219/PN/2009 FOR A.Y. 2005-06 VIDE ORD ER DATED 31-5- 2010, G.K. BUILDERS IN ITA NO. 1077 AND 1078//PN/20 10 FOR A.Y. 2005-06 AND 2006-07 VIDE ORDER DATED 30-7-2012 AND BOMBAY BENCH OF THE TRIBUNAL IN THE CASE OF HIRANANDANI AK RUTI JV VS. DY. CIT (2010) 39 SOT 498 (MUMBAI). 6. ON THE OTHER HAND, THE LEARNED DR APPEARING FOR THE REVENUE HAS DEFENDED THE STAND OF THE REVENUE BY POINTING O UT THAT PHRASEOLOGY OF SEC. 80-IB(10) CONTAINED AN EXPRESSI ON HOUSING PROJECT WHICH WOULD INDICATE THAT A PROJECT INVOLV ING COMMERCIAL AREA WOULD NOT FALL WITHIN THE SCOPE OF SEC. 80-IB( 10) OF THE ACT EVEN IN THE ABSENCE OF CLAUSE (D) OF SECTION 80-IB(10) O F THE ACT. 7. ON THIS ASPECT, WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS. ADMITTEDLY, THE ASSESSEE HAS COMMENCE D DEVELOPMENT AND CONSTRUCTION OF ITS HOUSING PROJECT CITADEL IN TERMS OF APPROVAL GRANTED BY THE PMC WHICH IS THE P RESCRIBED LOCAL 5 ITA NO. 164 ETC. OF 07 RAVIRAJ KOTHARI PUNJABI ASSOCIATES A.Y. 2003-4 TO 2006-07 AUTHORITY WITHIN THE MEANING OF SEC. 80(IB)(10) OF THE ACT. IT IS ALSO NOT IN DISPUTE THAT THE ASSESSEE COMMENCED DEVELOPM ENT AND CONSTRUCTION OF THE HOUSING PROJECT AS PER THE COMM ENCEMENT CERTIFICATE ISSUED BY THE PMC DATED 16-7-2002. PER TINENTLY, IN PARA 2.3 OF THE ORDER OF THE CIT(A), A REFERENCE HAS BEE N MADE TO A COMMUNICATION OBTAINED FROM THE ENGINEER, PMC DATED 6-12-2005 WHEREIN IT HAS BEEN STATED THAT THE PROJECT IN QUES TION WAS APPROVED BY PMC AS A RESIDENTIAL-CUM-COMMERCIAL PROJECT. FA CTUALLY, IT IS ALSO CLEAR THAT OUT OF THE TOTAL CONSTRUCTED AREA, AN AREA OF 13,248.96 SQ. FT. IS CONSISTING OF COMMERCIAL AREA WHICH IS A PPROXIMATELY 6.7% OF THE TOTAL CONSTRUCTED AREA OF THE PROJECT. 8. AT THIS POINT, WE MAY REFER TO CLAUSE (D) TO SEC . 80-IB(10) OF THE ACT WHICH HAS BEEN INSERTED BY THE FINANCE (NO. 2) ACT, 2004 W.E.F. 1-4-2005 WHICH READS AS UNDER: THE BUILT-UP AREA OF THE SHOPS AND OTHER COMMERCIA L ESTABLISHMENTS INCLUDED IN THE HOUSING PROJECT DOES NOT EXCEED FIVE PER CENT OF THE AGGREGATE BUILT-UP AREA OF THE HOUSING PROJECT OR TWO THOUSAND SQUARE FEET, WHICHE VER ISLES. 9. IN TERMS OF THE AFORESAID PROVISION, THE CASE OF THE REVENUE IS THAT THE SAME REFLECTS THE MEANING OF EXPRESSION H OUSING PROJECT WHICH IS TO BE UNDERSTOOD AS A PURELY RESIDENTIAL P ROJECT NOT INVOLVING ANY COMMERCIAL AREA. SECONDLY, IT IS POI NTED OUT THAT THE COMMERCIAL AREA IN THE INSTANT CASE IS 13,248.96 SQ .FT. WHICH IS MORE THAN THE PERMISSIBLE AREA OF 2000 SQ.FT. OR 5% OF T HE TOTAL BUILT-UP AREA WHICHEVER IS LESS AS PROVIDED IN CLAUSE (D) OF SEC. 80-IB(10) OF THE ACT. 10. IN OUR CONSIDERED OPINION, RELIANCE PLACED BY T HE REVENUE ON CLAUSE (D) TO SEC. 80-IB(10) OF THE ACT TO DEFEAT T HE ASSESSEES CLAIM FOR DEDUCTION IN THE PRESENT CASE IS QUITE MISPLACE D. FIRSTLY, THE HONBLE BOMBAY HIGH COURT IN THE CASE OF BRAHMA ASS OCIATES (SUPRA) HAS LAID DOWN THAT THE SAID PROVISION IS PR OSPECTIVE AND NOT 6 ITA NO. 164 ETC. OF 07 RAVIRAJ KOTHARI PUNJABI ASSOCIATES A.Y. 2003-4 TO 2006-07 RETROSPECTIVE IN NATURE AND THEREFORE, IT CANNOT BE APPLIED RETROSPECTIVELY. FURTHER, THE PLEA OF THE REVENUE THAT ONLY A PURE HOUSING PROJECT IS ELIGIBLE FOR DEDUCTION IS ALSO C OMPLETELY MISPLACED HAVING REGARD TO THE JUDGMENT OF HONBLE BOMBAY HIG H COURT IN THE CASE OF BRAHMA ASSOCIATES (SUPRA). IN THE CASE BEF ORE THE HONBLE BOMBAY HIGH COURT, THE PROJECT CONSISTED OF 15 RESI DENTIAL BUILDINGS AND TWO COMMERCIAL BUILDINGS AND IT WAS NOTICED THA T LOCAL AUTHORITY HAD APPROVED THE PROJECT AS RESIDENTIAL-CUM-COMMERC IAL. THE HONBLE BOMBAY HIGH COURT EXPLAINED THAT SINCE EXPR ESSION HOUSING PROJECT WAS NOT DEFINED UNDER THE ACT, ITS MEANING WOULD HAVE TO BE GATHERED FROM THE RULES AND REGULATIONS FRAMED BY T HE APPROVING LOCAL AUTHORITY. THE HONBLE HIGH COURT EXPLAINED THAT SINCE A LOCAL AUTHORITY COULD APPROVE THE PROJECT TO BE A HOUSIN G A PROJECT WITH OR WITHOUT COMMERCIAL USER, IT WAS THEREFORE, THE INTE NT OF THE LEGISLATURE THAT DEDUCTION ENVISAGED U/S 80-IB(10) OF THE ACT WAS ALLOWABLE TO SUCH HOUSING PROJECTS APPROVED BY THE LOCAL AUTHORITY WITHOUT OR WITH COMMERCIAL USER TO THE EXTENT PERMI TTED BY THE RULES OF LOCAL AUTHORITY. THOUGH, THE ASSESSMENT YEAR BE FORE THE HONBLE BOMBAY HIGH COURT WAS PRIOR TO 1-4-2005, IT CONSIDE RED CLAUSE (D) OF SEC. 80-IB(10) OF THE ACT AS INSERTED BY THE FINANC E (NO. 2) ACT, 2004 AND HELD THE ASSESSEE ELIGIBLE FOR DEDUCTION U /S 80-IB(10) OF THE ACT. IN THE INSTANT CASE BEFORE US, THE PARIT Y OF REASONING LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN THE CASE O F BRAHMA ASSOCIATES (SUPRA) IS WHOLLY APPLICABLE. THE PROJE CT BEFORE US HAS BEEN APPROVED BY THE LOCAL AUTHORITY I.E. PMC AS A RESIDENTIAL-CUM- COMMERCIAL PROJECT AND THEREFORE, IT QUALIFIES TO BE SEEN IN THE SAME MANNER AS EXPLAINED BY THE HONBLE BOMBAY HIGH COUR T IN THE CASE OF BRAHMA ASSOCIATES (SUPRA). THEREFORE, THE AFORE SAID OBJECTION RAISED BY THE REVENUE TO DIS-ENTITLE THE ASSESSEE F ROM CLAIMING OF DEDUCTION U/S 80-IB(10) OF THE ACT IS UNTENABLE. 7 ITA NO. 164 ETC. OF 07 RAVIRAJ KOTHARI PUNJABI ASSOCIATES A.Y. 2003-4 TO 2006-07 11. NOW, WE MAY TAKE UP THE SECOND OBJECTION RAISED BY THE REVENUE WHEREBY, IT IS STATED THAT THE BUILT-UP ARE A OF SOME OF THE UNITS EXCEEDED 1500 SQ.FT., WHICH WAS THE LIMIT PRE SCRIBED IN CLAUSE (C) OF SEC. 80-IB(10) OF THE ACT. AS PER THE REVEN UE, SINCE SOME OF THE UNITS VIOLATED THE CONDITION PRESCRIBED IN CLAU SE (C) OF SEC. 80- IB(10), PROFITS FROM SUCH PROJECT ARE INELIGIBLE FO R CLAIMING DEDUCTION U/S 80-IB(10) OF THE ACT. 12. ON THIS ASPECT, THE FACTS ARE THAT AFTER INCLUD ING THE AREA COVERED BY TERRACE AND BALCONIES, THE BUILT-UP AREA EXCEEDED 1500 SQ.FT. ON THIS ASPECT, THE CIT(A) HAS HELD THAT EX PRESSION BUILT-UP AREA HAS BEEN EXPLAINED IN SECTION 80-IB(14)(A) OF THE ACT TO INCLUDE PROJECTIONS AND BALCONIES AND THEREFORE, THE STAND OF THE ASSESSING OFFICER TO THE EFFECT THAT SOME OF THE RESIDENTIAL UNITS VIOLATED THE CONDITIONS PRESCRIBED IN CLAUSE (C) OF SEC. 80-IB(1 0) OF THE ACT WAS IN ORDER. 13. IN THIS BACKGROUND, THE CLAIM OF THE ASSESSEE I S THAT THE PROJECT IN QUESTION COMMENCED PRIOR TO 1-4-2005 AND THEREFORE, THE DEFINITION OF BUILT-UP AREA PRESCRIBED IN SEC. 80 -IB(14)(A) WOULD NOT APPLY AS THE SAID SECTION WAS INSERTED BY THE FINAN CE (NO 2) ACT, 2004 W.E.F. 1-4-2005. THE LEARNED COUNSEL RELIED ON THE FOLLOWING DECISIONS IN SUPPORT OF HIS SUBMISSION:- I) ITO VS. PRIME PROPERTIES (ITA NO. 887, 888 & 889/PN/2010 FOR A.Y. 2003-04 TO 2005-06) VIDE ORDER DATED 26-4-2012 II) HAWARE CONSTRUCTIONS (P) LTD. VS. ITO (2011) 64 DTR (MUM) 251. 14. WE HAVE CAREFULLY CONSIDERED THE RIVAL SU BMISSIONS. THE ASSESSEES CLAIM FOR DEDUCTION U/S 80-IB(10) OF THE ACT HAS BEEN OBJECTED TO ON ACCOUNT OF SUB -CLAUSE (C) OF 8 ITA NO. 164 ETC. OF 07 RAVIRAJ KOTHARI PUNJABI ASSOCIATES A.Y. 2003-4 TO 2006-07 SECTION 80-IB(10) OF THE ACT. SUB-CLAUSE (C) OF SE CTION 80-IB(10) OF THE ACT REQUIRED THAT IN ORDER TO BE ELIGIBLE FOR DEDUCTION, BUILT UP AREA OF RESIDENTIAL UNITS IN CITIES OTHER THAN DEL HI OR BOMBAY SHALL NOT EXCEED 1500 SQ.FT. AS PER THE REVENUE FEW RESID ENTIAL UNITS CONTAINED IN THE HOUSING PROJECT UNDERTAKEN BY THE ASSESSEE HAD A BUILT UP AREA EXCEEDING 1500 SQ.FT. SINCE FEW UNITS VIOLATED THE CONDITION PRESCRIBED IN SUB-CLAUSE (C) OF SECTION 8 0-IB(10) OF THE ACT DEDUCTION FOR THE ENTIRE PROJECT WAS DENIED IN COMI NG TO SUCH COMPUTATION OF BUILT UP AREA, THE REVENUE HAS RELIE D UPON SUB- CLAUSE (A) OF SECTION 80-IB(14)(A) WHICH EXPLAINS T HE EXPRESSION BUILT UP AREA TO MEAN THE INNER MEASUREMENT OF TH E RESIDENTIAL UNITS AT THE FLOOR LEVEL INCLUDING THE PROJECTIONS AND BALCONIES AS INCREASED BY THE THICKNESS OF WALLS BUT EXCLUDING T HE COMMON AREAS SHARED WITH OTHER RESIDENTIAL UNITS. NO DOUBT, ON AN APPLICATION OF SUCH A DEFINITION OF BUILT UP AREA, THE CASE SET UP BY THE REVENUE IS POTENT. SO HOWEVER, IN THE PRESENT CASE, THE ISSUE IS AS TO WHETHER SUCH DEFINITION OF THE BUILT-UP AREA INSERTED BY TH E FINANCE (NO. 2) ACT, 2004 W.E.F. 1-4-2005 IS APPLICABLE OR NOT. OS TENSIBLY, PRIOR TO 1- 4-2005, THERE WAS NO SUCH DEFINITION OF THE EXPRESS ION BUILT UP AREA IN THE STATUTE AND LOGICALLY, ONE HAD TO CONSIDER T HE BUILT UP AREA AS PER LOCAL MUNICIPAL DEVELOPMENT CONTROL RULES FOLLO WED BY THE APPROVING AUTHORITIES WHICH IN THE PRESENT CASE IS PUNE MUNICIPAL CORPORATION (PMC).IN THE CASE BEFORE US, THE PROJEC T OF THE ASSESSEE HAS OSTENSIBLY COMMENCED PRIOR TO INTRODUCTION OF S EC. 80-IB(14)(A) OF THE ACT AND THEREFORE, THE AMENDMENT WHICH HAS C OME INTO EFFECT BY WAY OF SEC. 80-IB(14)(A) OF THE ACT W.E.F. 1-4-2 005 WOULD NOT AFFECT SUCH A PROJECT. THE AFORESAID PROPOSITION IS IN LINE WITH PRECEDENT BY WAY OF DECISION OF PUNE BENCH OF THE T RIBUNAL IN THE CASE OF G.K. BUILDERS IN ITA NO. 1077 & 1078/PN/201 0 FOR A.Y. 2005-06 & 2006-07 VIDE ORDER DATED 30-7-2012. IN TH E CASE OF G.K. 9 ITA NO. 164 ETC. OF 07 RAVIRAJ KOTHARI PUNJABI ASSOCIATES A.Y. 2003-4 TO 2006-07 BUILDERS (SUPRA) THE AFORESAID PROPOSITION WAS AFFI RMED FOLLOWING THE EARLIER DECISIONS OF THE TRIBUNAL IN THE CASE OF TU SHAR DEVELOPERS IN ITA NO. 165/PN/2007 AND 94/PN/2007 FOR A.Y. 2003-04 AND 2004-05 VIDE ORDER DATED 31-5-2011 AND HAWARE CONSTRUCTIONS (P) LTD. VS. ITO (2011) 64 DTR (MUM) 251. THE FOLLOWING DISCUSS ION IN THE ORDER OF THE TRIBUNAL IN THE CASE OF G.K. BUILDERS (SUPRA) IS RELEVANT:- AFTER GOING THROUGH THE ABOVE SUBMISSIONS AND MATE RIAL ON RECORD, WE ARE NOT INCLINED TO CONCUR WITH THE F INDING OF THE CIT(A). THE DEDUCTION UNDER QUESTION HAS BE EN REJECTED BY THE AO AND CONFIRMED BY THE CIT(A) ON T HE GROUND THAT IT EXCEEDED THE PRESCRIBED LIMIT WITH R ESPECT TO ROW HOUSE NO. 36. ACCORDINGLY, THE WHOLE PROJEC T WAS REJECTED. THE AO HAS REACHED TO THE CONCLUSION AFTER INCLUDING THE TERRACE AREA OF 108 SQ.FT. IN BRAHMA BUILDERS (SUPRA) WHETHER THE TERRACE IN BUILT UP AR EA COMES ONLY W.E.F 1-4-2005 BECAUSE THE DECISION IS INTRODUCTION IN THE SECTION W.E.F. THE SAID DATE. FOR THE PERIOD PRIOR TO 1-4-2005, NO SUCH DEFINITION WAS ON THE STATUTE AND HENCE, THE BUILT UP AREA HAS TO BE CONSIDERED AS PER THE DC RULE OF THE SANCTIONING AUTHORITY. THE DC RULES DO NOT INCLUDE TERRACE IN THE BUILT UP AREA. SO THE AMENDMENT WHICH HAS COME IN T HIS REGARD W.E.F. 1-4-2005 WILL NOT AFFECT THE PROJECTS WHICH HAVE COMMENCEMENT PRIOR TO 1-4-2005. THIS ISSUE HA S BEEN DECIDED FOLLOWING TUSHAR DEVELOPERS IN ITA N O. 165/PN/2007 AND 94/PN/2007 IN FAVOUR OF ASSESSEE AN D IN HAWARE CONSTRUCTIONS (P) LTD. SIMILAR VIEW HAS BEEN TAKEN WHEREBY IT WAS HELD THAT TUSHAR DEVELOPERS IS NOT INCLUDIBLE IN BUILT UP AREA OF THE FLAT PRIOR TO 1- 4-2005 AND HENCE FOR THE PROJECT COMMENCED BEFORE 1-4-2005 , TERRACE IS NOT INCLUDIBLE IN THE BUILT UP AREA. IN VIEW OF THIS, ASSESSEE IS ENTITLED FOR DEDUCTION U/S 80-IB( 10) AS CLAIMED. 15. FOLLOWING THE AFORESAID OBSERVATIONS, WE THEREF ORE, HOLD THAT SINCE THE PROJECT OF THE ASSESSEE COMMENCED PRIOR T O 1-4-2005 THE DEFINITION OF BUILT UP AREA AS PROVIDED IN SEC. 8 0-IB(14)(A) CANNOT BE APPLIED IN THIS CASE SO AS TO EVALUATE THE CONDITIO N PRESCRIBED IN SUB-CLAUSE (C) OF SECTION 80IB(10) OF THE ACT. UND ER THESE CIRCUMSTANCES, THE LIMIT OF BUILT UP AREA PRESCRI BED IN SUB-CLAUSE (C) OF SECTION 80-IB(10) OF THE ACT HAS TO BE UNDERSTOO D ON THE BASIS OF LOCAL DEVELOPMENT RULES WHICH DOES NOT INCLUDE TERR ACE/CANOPY. IF THE AREAS COVERED BY THE TERRACE/CANOPY ARE EXCLUDE D, THE BUILT UP AREA OF THE THREE ROW HOUSES IN QUESTION DOES NOT E XCEED THE LIMIT 10 ITA NO. 164 ETC. OF 07 RAVIRAJ KOTHARI PUNJABI ASSOCIATES A.Y. 2003-4 TO 2006-07 OF 1500 SQ.FT. PRESCRIBED IN SEC. 80-IB(10)(C) OF T HE ACT. IN THIS VIEW OF THE MATTER, THE AFORESAID OBJECTION RAISED BY TH E REVENUE TO DIS- ENTITLE THE ASSESSEE FROM CLAIMING OF DEDUCTION U/S 80-IB(10) OF THE ACT IS UNTENABLE. IN VIEW OF THE AFORESAID DISCUSSI ONS, THEREFORE, WE SET ASIDE THE ORDER OF THE CIT(A) AND DIRECT THE AS SESSING OFFICER TO ALLOW THE DEDUCTION U/S 80-IB(10) OF THE ACT AS CLA IMED BY THE ASSESSEE AND THE ASSESSEE SUCCEEDS IN ITS APPEAL FO R A.Y. 2003-04. . 16. NOW, WE MAY COME TO THE APPEALS OF THE ASSESSEE FOR THE REMAINING ASSESSMENT YEARS OF 2004-05, 2005-06 AND 2006-07. IN THESE APPEALS ALSO, THE ISSUE PERTAINS TO DENIAL OF DEDUCTION U/S 80- IB(10) OF THE ACT IN RELATION TO PROFITS AND GAINS FROM THE PROJECT CITADEL. THE OBJECTION OF THE REVENUE TO ASSESSE ES CLAIM FOR DEDUCTION U/S 80-IB(10) IN THE AFORESAID YEARS IS S IMILAR TO THAT OF THE ASSESSMENT YEAR 2003-04. SUCH OBJECTIONS HAVE BEEN DEALT WITH BY US IN THE PRECEDING PARAGRAPHS WHILE DEALING WITH T HE APPEAL FOR A.Y. 2003-04. OUR CONCLUSION IN ASSESSEES APPEAL FOR A .Y. 2003-04 WOULD SQUARELY APPLY TO THE SAID ASSESSMENT YEARS A LSO. HOWEVER, ONE OF THE ASPECTS WHICH REQUIRES A LITTLE DISCUSSI ON IS AS FOLLOWS: FOR THE EARLIER ASSESSMENT YEAR, THE OBJECTION OF T HE REVENUE BASED ON CLAUSE (D) OF SEC. 80-IB(10) OF THE ACT HAS BEEN NEGATED BY US ON THE GROUND THAT SUCH AMENDMENT WAS MADE BY THE FINA NCE (NO. 2) ACT, 2004 W.E.F. 1-4-2005 AND WOULD NOT OPERATE RET ROSPECTIVELY. SINCE IN THE ASSESSMENT YEAR UNDER CONSIDERATION VI Z. 2005-06 AND 2006-07, THE AFORESAID AMENDMENT IS ON THE STATUTE, THE CASE SET UP BY THE REVENUE IS THAT THE CLAIM FOR DEDUCTION BE G OVERNED ON THE BASIS OF SUCH AMENDMENT. ON THIS ASPECT, THE POINT TO BE CONSIDERED IS AS TO WHETHER THE RESTRICTION OF COMMERCIAL AR EA PRESCRIBED IN SEC. 80-IB(10)(D) OF THE ACT AS INSERTED BY THE FIN ANCE (NO. 2) ACT, 11 ITA NO. 164 ETC. OF 07 RAVIRAJ KOTHARI PUNJABI ASSOCIATES A.Y. 2003-4 TO 2006-07 2004 W.E.F 1-4-2005 CAN BE MADE APPLICABLE TO A PRO JECT WHICH HAS BEEN APPROVED AND COMMENCED PRIOR TO 1-4-2005. SIM ILAR CONTROVERSY HAS BEEN THE SUBJECT MATTER OF CONSIDER ATION BY PUNE BENCH OF THE TRIBUNAL IN THE CASE OF OPEL SHELTERS (SUPRA) AS ALSO IN THE CASE OF HIRANANDANI AKRUTI JV (SUPRA). IN THE AFORESAID PRECEDENTS, IT HAS BEEN HELD THAT THE PROVISIONS OF SEC. 80-IB(10)(D) OF THE ACT, AS INSERTED BY THE FINANCE (NO. 2) ACT, 2004 W.E.F. 1-4- 2005, SHALL APPLY TO THE PROJECTS COMMENCING ON OR AFTER 1-4-2005. THE PRIMARY REASON MADE OUT IS TO THE EFFECT THAT T HE ASSESSEE HAVING COMMENCED ITS PROJECT PRIOR TO 1-4-2005 IN T ERMS OF THE APPROVAL GRANTED BY A LOCAL AUTHORITY COULD NOT H AVE ENVISAGED THE LEGISLATIVE ACTION OF PUTTING THE RESTRICTION CONTA INED IN CLAUSE (D) OF SEC. 80-IB(10) OF THE ACT W.E.F. 1-4-2005. IN THIS BACKGROUND OF THE MATTER, WE FIND THAT EVEN FOR A.Y. 2005-06 AND 2006 -07 THE OBJECTION OF THE REVENUE IS UNSUSTAINABLE. PERTINENTLY, THE PROJECT OF THE ASSESSEE IN QUESTION I.E. CITADEL COMMENCED DEVEL OPMENT AND CONSTRUCTION PRIOR TO 1-4-2005 AND IN FACT STANDS C OMPLETED ON 23-2- 2004 AS NOTED BY THE CIT(A) IN PARA 2.1 OF THE IMPU GNED ORDER. THEREFORE, CLAUSE (D) TO SEC. 80IB(10) OF THE ACT I NSERTED BY THE FINANCE (NO. 2) ACT, 2004 W.E.F. 1-4-2005 CANNOT BE INVOKED TO DIS- ENTITLE THE ASSESSEES CLAIM FOR DEDUCTION U/S 80-I B(10) OF THE ACT FOR A.Y. 2005-06 AND 2006-07 AS WELL. 17. ON THE SIMILAR PARITY OF REASONING, FURTHER OBJ ECTION OF THE REVENUE BASED ON BUILT-UP AREA INSERTED BY THE FINA NCE (NO. 2) ACT, 2005 W.E.F. 1-4-2005 IN SECTION 80-IB(14)(A) WOULD ALSO NOT HINDER THE ASSESSEES CLAIM FOR DEDUCTION U/S 80-IB(10) FO R THE REASON THAT ITS PROJECT HAD COMMENCED PRIOR TO 1-4-2005. THEREF ORE, APPEALS FOR A.Y. 2005-06 AND 2006-07 ARE ALSO ALLOWED. 12 ITA NO. 164 ETC. OF 07 RAVIRAJ KOTHARI PUNJABI ASSOCIATES A.Y. 2003-4 TO 2006-07 18. IN THE RESULT, THE APPEALS OF THE ASSESSEE PERT AINING TO ASSESSMENT YEARS 2003-04, 2004-05, 2005-06 AND 2006 -07 ARE ALLOWED AS ABOVE. 19. THE ONLY APPEAL NOW REMAINING IS ITA NO. 1008/P N/2010 WHICH HAS BEEN PREFERRED BY THE REVENUE WITH RESPECT TO A .Y. 2005-06. IN THIS APPEAL, THE SOLITARY GRIEVANCE OF THE REVENUE IS WITH REGARD TO THE DECISION OF CIT(A) THAT THE ASSESSEES CLAIM FO R DEDUCTION U/S 80-IB(10) OF THE ACT IN RELATION TO THE PROJECT CI TADEL ENCLAVE WAS JUSTIFIED. 20. IN BRIEF, THE FACTS ARE THAT IN THE IMPUGNED AS SESSMENT MADE BY THE ASSESSING OFFICER DATED 31-12-2009 IN TERMS OF SECTION 143(3) R.W.S. 264(1) OF THE ACT, DEDUCTION U/S 80-IB(10) FOR RS. 2,02,18,240/- WAS DENIED. THE DEDUCTION CLAIMED W AS RELATING TO TWO PROJECTS VIZ. CITADEL AND CITADEL ENCLAVE, PUNE. IN SO FAR AS THE CLAIM FOR DEDUCTION RELATING TO THE PROJECT CI TADEL IS CONCERNED, IT WAS THE SUBJECT MATTER OF CONSIDERATION IN ASSES SEES APPEAL IN ITA NO. 164/PN/2010 WHICH HAS BEEN DEALT WITH BY US IN THE EARLIER PARAGRAPHS. IN THIS APPEAL OF THE REVENUE, THE CLA IM RELATES TO THE DEDUCTION CLAIMED FOR CITADEL ENCLAVE WHICH HAS B EEN ALLOWED BY THE CIT(A) IN THE IMPUGNED ORDER. 21. THE BRIEF BACKGROUND WITH REGARD TO ASSESSEES CLAIM FOR DEDUCTION RELATING TO PROJECT CITADEL ENCLAVE IS AS FOLLOWS: IN THE A.Y. 2005-06, ORIGINALLY THE ASSESSMENT WAS MADE U/ S 143(3) ON 26- 12-2007 WHEREIN CLAIM OF DEDUCTION U/S 80-I(B(10) O F THE ACT AMOUNTING TO RS. 2,02,18,046/- WAS DENIED. THE AS SESSING OFFICER CLAIMED THE TWO PROJECTS AS ONE PROJECT IN SUCH ASS ESSMENT 13 ITA NO. 164 ETC. OF 07 RAVIRAJ KOTHARI PUNJABI ASSOCIATES A.Y. 2003-4 TO 2006-07 PROCEEDINGS. FURTHER, IN RELATION TO CITADEL ENCL AVE PROJECT THE ASSESSING OFFICER RELIED UPON THE REPORT OF THE APP ROVED VALUER TO HOLD THAT SIX FLATS HAD A BUILT-UP AREA OF MORE THA N 1500 SQ.FT. AGAINST THE AFORESAID ASSESSMENT, THE ASSESSEE MOVE D AN APPLICATION FOR REVISION U/S 264 OF THE ACT, BEFORE THE COMMISSIONER OF INCOME-TAX-II PUNE (FOR SHORT CIT II). THE CI T II VIDE HIS ORDER DATED 4-5-2008 U/S 264 OF THE ACT, SET ASIDE THE MA TTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR PURPOSES OF EXAMI NING DEDUCTION U/S 80-IB(10) OF THE ACT WITH CERTAIN DIRECTIONS. HENC E, THE IMPUGNED ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) R. W.S. 264 OF THE ACT. IN HIS ORDER, THE CIT-II HELD THAT THE ASSESS ING OFFICER HAD NOT CONFRONTED THE REPORT OF THE VALUER TO THE ASSESSEE AND HE THEREFORE, DIRECTED THE ASSESSING OFFICER TO GET THE FLATS MEA SURED AGAIN BY A REGISTERED VALUER AND GIVE PROPER OPPORTUNITY TO TH E ASSESSEE OF BEING HEARD. SO FAR AS THE POINT REGARDING THE PROJ ECT CITADEL ENCLAVE BEING A CONTINUOUS PROJECT WITH OTHER PROJ ECT I.E. CITADEL WAS CONCERNED, THE CIT-II HELD THAT THE STAND OF TH E ASSESSING OFFICER WAS NOT CORRECT. IN THIS REGARD, THE CIT-I I NOTICED THE ORDER PASSED BY THE ASSESSING OFFICER IN A.Y. 2006-07 U/S 143(3) OF THE ACT DATED 31-12-2009 WHEREIN THE PROJECTS CITADEL AND CITADEL ENCLAVE WERE TREATED AS SINGLE PROJECT. THE AFORE SAID DISPUTE HAS NOT BEEN RAISED BY THE ASSESSING OFFICER IN THE IMP UGNED ASSESSMENT ORDER DATED 31-12-2009. THE ONLY POINT ON THE BASIS OF WHICH THE ASSESSEES CLAIM FOR DEDUCTION U/S 80-IB( 10) OF THE ACT FOR THE CITADEL ENCLAVE PROJECT HAS BEEN DENIED, IS T O THE EFFECT THAT THE COMMERCIAL AREA OF THIS PROJECT EXCEEDED 2000 S Q.FT. WHICH WAS VIOLATIVE OF CLAUSE (D) OF SECTION 80-IB(10) OF THE ACT. 22. IN APPEAL BEFORE THE CIT(A), THE ASSESSEE CONTE NDED THAT THE COMMERCIAL BUILDING NOTICED BY THE ASSESSING OFFICE R IN THE PROJECT 14 ITA NO. 164 ETC. OF 07 RAVIRAJ KOTHARI PUNJABI ASSOCIATES A.Y. 2003-4 TO 2006-07 CITADEL ENCLAVE WAS NOT OWNED BY THE ASSESSEE BUT IT WAS THE PROJECT CARRIED OUT BY ANOTHER FIRM VIZ. WIDE ANGLE ASSOCIATES. SECONDLY, IT WAS FURTHER POINTED OUT BY THE ASSESSE E THAT THE AFORESAID POINT RAISED BY THE ASSESSING OFFICER NEI THER EMERGED FROM THE ORIGINAL ASSESSMENT ORDER DATED 26-12-2007 AND NOR OUT OF THE ORDER OF THE CIT-II PUNE DATED 14-5-2008 PASSED U/S 264 OF THE ACT. THUS, AS PER THE ASSESSEE, THE ASSESSING OFFICER HA D TRAVELLED BEYOND THE SCOPE OF DIRECTIONS CONTAINED IN THE ORD ER OF THE CIT-II PASSED U/S 264 OF THE ACT IN THE IMPUGNED PROCEEDIN GS. THE CIT(A) UPHELD BOTH THE AFORESAID PLEAS OF THE ASSESSEE AND ACCORDINGLY HELD THE ASSESSEE ENTITLED FOR DEDUCTION U/S 80-IB( 10) OF THE ACT IN RESPECT OF CITADEL ENCLAVE PROJECT. 23. BEFORE US, THE LEARNED DR APPEARING FOR THE REV ENUE HAS SUBMITTED THAT THE CIT(A) HAS ALLOWED THE CLAIM OF THE ASSESSEE ON A WRONG ASSUMPTION THAT THE COMMERCIAL ESTABLISHMENTS IN THE PROJECT CITADEL ENCLAVE BELONGED TO A DIFFERENT FIRM. TH E LEARNED DR HAS RELIED UPON THE ORDER OF THE ASSESSING OFFICER IN S UPPORT OF THE CASE OF THE REVENUE. 24. ON THE OTHER HAND, THE LEARNED REPRESENTATIVE F OR THE ASSESSEE HAS VEHEMENTLY POINTED OUT THAT THE ACTION OF THE A SSESSING OFFICER WAS MISCONCEIVED, INASMUCH AS, FACTUALLY THE COMMER CIAL BUILDING IN QUESTION WAS NOT DEVELOPED BY THE ASSESSEE-AOP BUT BELONGED TO ANOTHER FIRM M/S. WIDE ANGLE ASSOCIATES, WHICH WAS SUPPORTED BY A REGISTERED DEVELOPMENT AGREEMENT DATED 24-12-2003, A COPY OF WHICH WAS VERY MUCH BEFORE THE ASSESSING OFFICER AN D THE SAME HAS BEEN RIGHTLY APPRECIATED BY THE CIT(A). IN THIS MA NNER, THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 80-IB(10) OF THE ACT IN RELATION TO THE PROJECT CITADEL ENCLAVE HAS BEEN DEFENDED. 15 ITA NO. 164 ETC. OF 07 RAVIRAJ KOTHARI PUNJABI ASSOCIATES A.Y. 2003-4 TO 2006-07 25. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS. ON THE AFORESAID ASPECT, IN OUR CONSIDERED OPINION, THE CI T(A) HAS RECORDED TWO FINDINGS WHICH HAVE NOT BEEN ASSAILED BY THE RE VENUE IN A COGENT MANNER BEFORE US. FIRSTLY, AS PER THE CIT(A ) THE COMMERCIAL BUILDING REFERRED TO BY THE ASSESSING OFFICER WAS N OT DEVELOPED BY THE ASSESSEE-AOP, BUT BY ANOTHER FIRM M/S. WIDE ANG LE ASSOCIATES AND THEREFORE, SUCH A BUILDING CANNOT BE CONSIDERED AS COMMERCIAL BUILDING DEVELOPED BY THE ASSESSEE IN ITS PROJECT CITADEL ENCLAVE. SECONDLY, IT HAS ALSO BEEN RECORDED BY THE CIT(A) T HAT SUCH AN ISSUE WAS NEITHER RAISED IN THE ORIGINAL ASSESSMENT ORDER AND NOR MANDATED BY THE CIT-II IN HIS ORDER PASSED U/S 264 OF THE ACT DATED 14-5-2008 AND THEREFORE, IN THE ENSUING IMPUGNED AS SESSMENT ORDER, THE ASSESSING OFFICER COULD NOT HAVE GONE IN TO THE AREAS WHICH WERE NOT COVERED IN THE DIRECTIONS CONTAINED IN THE ORDER OF THE CIT-II PUNE PASSED U/S 264 OF THE ACT. BOTH TH E ABOVE ASSERTIONS OF THE CIT(A) FIND AN ECHO IN PARA 3.8 O F THE IMPUGNED ORDER WHICH READS AS UNDER: THE ASSESSING OFFICER HAS STATED THAT SINCE IN THE ORIGINAL LAY OUT PLAN THIS COMMERCIAL BUILDING WAS SHOWN AND THE PROJECT WAS ALSO MENTIONED AS RESIDENTIAL PLUS COMMERCIAL IN THE ORIGINAL COMMENCEMENT CERTIFICATE DATED 6-6-2003, T HE COMMERCIAL AREA AS TREATED TO BE PART AND PARCEL OF THE CITADEL ENCLAVE PROJECT ONLY. BEFORE THE ASSESSING OFFICER AS WELL AS DURING THE APPELLATE PROCEEDINGS, IT HAS BEEN EXPLA INED BY THE APPELLANT THAT THE COMMERCIAL BUILDING COMPRISING O F 22 SHOPS WAS NOT A PART OF THE PROJECT CITADEL ENCLAVE BUT W AS A PROJECT OF THE FIRM WIDE ANGLE ASSOCIATES. FOR THIS, THE APPELLANT POINTED OUT TO THE REPORT OF THE REGISTERED VALUER APPOINTED BY THE ASSESSING OFFICER, AND EXPLAINED THAT THE PARTI CULAR LAND ON WHICH THE COMMERCIAL BUILDING WAS LOCATED WAS TRANS FERRED BY THE AOP TO THE FIRM M/S. WIDE ANGLE ASSOCIATES BY A REGISTERED DEVELOPMENT AGREEMENT DATED 24-12-2003, OF WHICH A COPY WAS FILED BEFORE THE ASSESSING OFFICER AS WELL AS DURING APPELLATE PROCEEDINGS. CONSIDERING THIS EXP LANATION OF THE APPELLANT, SINCE A PART OF THE LAND WAS ALREADY TRANSFERRED TO A DIFFERENT FIRM, M/S. WIDE ANGLE ASSOCIATES, WH ICH HAS IN FACT CONSTRUCTED THIS COMMERCIAL BUILDING OF 554 SQ . MTRS, AREA HAVING 22 SHOPS, IT CANNOT BE INCLUDED IN THE CITA DEL ENCLAVE PROJECT OF THE APPELLANT. THIS IS ON MERITS OF THE ISSUE. IN ANY CASE, THIS ISSUE WAS NOT RAISED IN THE ORIGINAL ASS ESSMENT ORDER AND NOT MANDATED BY THE ORDER U/S 264 DT. 14- 5-2008 OF 16 ITA NO. 164 ETC. OF 07 RAVIRAJ KOTHARI PUNJABI ASSOCIATES A.Y. 2003-4 TO 2006-07 THE CIT_II, PUNE. THEREFORE, THE ASSESSING OFFICER CANNOT GO BEYOND THE DIRECTION CONTAINED IN THE ORDER U/S 264 AND GET INTO NEW AREAS. IT IS THEREFORE, HELD THAT THE APP ELLANT WAS ENTITLED FOR DEDUCTION U/S 80-IB(10) IN RESPECT OF CITADEL ENCLAVE PROJECT, AND THERE WAS NO VIOLATION OF COND ITION U/S 80- IB(10)(D) FOR THIS PROJECT. 26. ON THE BASIS OF THE AFORESAID OBSERVATION OF TH E CIT(A) FOR WHICH THERE IS NO MATERIAL TO NEGATE THE SAME, WE F IND NO REASON TO INTERFERE WITH THE ULTIMATE CONCLUSION OF THE CIT(A ) THAT THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION U/S 80-I B(10) OF THE ACT. THUS, THE APPEAL OF THE REVENUE FAILS. 27. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE ALLOWED WHILE THE APPEAL OF THE REVENUE IS DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 23 RD NOVEMBER 2012. SD/- SD/- (SHAILENDRA KUMAR YADAV) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMB ER PUNE, DATED: 23 RD NOVEMBER 2012 ANKAM COPY TO:- 1. ASSESSEE 2. DEPARTMENT 3. THE CIT (A)-II PUNE 4. THE CIT- II PUNE 5. THE DEPARTMENTAL REPRESENTATIVE, A BENCH, I.T. A.T., PUNE. BY ORDER //TRUE COPY// SR. P.S. I.T.A.T., PUNE