Deputy Commissioner of Income-tax, V. M/s. G.K. Developers, Pune

ITA 283/PUN/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0346 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-12-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 19-03-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Revision of order; Valuation report; Assessment record; Set aside
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 143(3); 92; 80IB; 22

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI R.P. TOLANI, JM AND SHRI ANIL CHATURVEDI, AM / ITA NO.283/PUN/2015 / ASSESSMENT YEAR : 2009-10 DY.COMMISSIONER OF INCOME TAX , CIRCLE 8, PRATYAKSHA KAR BHAVAN, DR. AMBEDKAR MARG, NEAR AKURDI RAILWAY STATION, AKURDI, PUNE 411 044. . / APPELLANT V/S M/S. G.K. DEVELOPERS, B. BLOCK, 21/1, PIMPIRI, PUNE 411 017. PAN : AAFFG5688P. . / RESPONDENT / APPELLANT BY : SHRI VINOD KUMAR / RESPONDENT BY : SHRI SUNIL GANOO / ORDER PER ANIL CHATURVEDI, AM : THIS APPEAL FILED BY THE REVENUE IS EMANATING OUT OF THE ORDERS OF COMMISSIONER OF INCOME TAX (A) 6, PUNE DT.17.1 2.2014 FOR THE ASSESSMENT YEAR 2009-10. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON R ECORD ARE AS UNDER :- / DATE OF HEARING :21.12.2016 / DATE OF PRONOUNCEMENT: 22.12.2016 2 ITA NO.283/PUN/2015 AY.NO.2009-10 2.1 ASSESSEE IS A PARTNERSHIP FIRM STATED TO BE ENGAGED IN THE BUSINESS OF BUILDERS AND LAND DEVELOPERS. ASSESSEE FILED ITS RETURN OF INCOME FOR A.Y. 2009-10 ON 15.09.2009 DECLARING TOTAL INCOM E OF RS.86,35,530/-. THE CASE WAS SELECTED FOR SCRUTINY AND T HEREAFTER THE ASSESSMENT WAS FRAMED U/S 143(3) VIDE ORDER DT.25.03.2011 A ND THE TOTAL INCOME WAS DETERMINED AT RS.86,58,930/-. THER EAFTER ON EXAMINING THE ASSESSMENT RECORDS, LD. CIT ALLEGED THAT WHILE FRAMING THE ASSESSMENT ORDER, THE CLAIM OF DEDUCTION U/S 801B(10) HAS NOT BEEN EXAMINED BY THE AO TO SEE THAT THE RELE VANT CONDITIONS STIPULATED HAVE BEEN FULFILLED AND THAT THE DEDUCTION WAS GR ANTED TO THE ASSESSEE WHICH WAS NOT ADMISSIBLE. HE ACCORDINGLY, VI DE ORDER DT.26.03.2013, HELD THAT THE ASSESSMENT ORDER FRAMED U/S 143(3) DT.25.03.2011 TO BE ERRONEOUS, IN SO FAR AS IT WAS PREJUDIC IAL TO THE INTEREST OF REVENUE WITHIN THE MEANING OF SEC.263 OF THE IT ACT AND ACCORDINGLY SET ASIDE THE ORDER PASSED BY AO U/S 143( 3) AND DIRECTED THE AO TO REFRAME THE ASSESSMENT ORDER AS PE R THE DIRECTIONS CONTAINED IN THE ORDER. PURSUANT TO THE DIREC TIONS OF LD. CIT, ASSESSMENT ORDER WAS FRAMED BY AO U/S 143 R.W.S 2 63 VIDE ORDER DT.18.02.2014 AND DETERMINED THE TOTAL INCOME AT RS.9,90,73,100/-. AGGRIEVED BY THE ORDER OF AO, ASSESSEE C ARRIED THE MATTER BEFORE LD. CIT(A) WHO VIDE ORDER DT.17.12.2014 ( IN APPEAL NO.PN/CIT(A)-6/DCIT, CIR.8/727/13-14) ALLOWED THE APPEAL OF THE ASSESSEE BY INTER-ALIA HOLDING THAT THE ORDER PASSED BY AO IN CONSEQUENCE TO ORDERS U/S 263 DOES NOT SURVIVE. THE OBSERVATIONS OF LD.CIT(A) ARE AS UNDER : DURING THE COURSE OF APPELLATE PROCEEDINGS, SHRI. SUNIL GANOO, LEARNED COUNSEL OF THE APPELLANT ATTENDED AN D SUBMITTED THAT HONBLE PUNE TRIBUNAL IN ITA NO. 1145/PN/2013 FOR A.Y. 2009-10 DATED 30.05.2014 HAS SET ASIDE THE ORDER U/S. 263 OF INCOME-TAX ACT PASSED B Y THE CIT-5, PUNE. ACCORDINGLY, IT WAS SUBMITTED THAT TH E ORDER 3 ITA NO.283/PUN/2015 AY.NO.2009-10 PASSED IN CONSEQUENCE TO SEC.263 ORDER WILL NOT SUR VIVE. AFTER GOING THROUGH THE ORDER OF THE TRIBUNAL, IT I S SEENT HAT THE ORDER PASSED ON 25.03.2011 U/S.263 OF INCOME-TA X ACT HAS BEEN SET ASIDE BY HONBLE PUNE TRIBUNAL HOLDING AS UNDER : 20. THUS, ON ALL THE THREE GROUNDS RAISED BY THE COMMISSIONER WE FIND THAT THE COMMISSIONER MISDIRECTED HIMSELF IN INVOKING SECTION 263 OF THE ACT TO HOLD THE ASSESSMENT ORDER DATED 25.03.2011 (SUPRA) AS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. IN THE RESULT, WE SET-ASI DE THE ORDER OF THE COMMISSIONER AND RESTORE THE ASSESSMENT ORDER DATED 25.03.2011 (SUPRA) QUA THE ISSUES RAISED BY THE COMMISSIONER. 6. THIS BEING SO, THE ORDER PASSED ON 18.02.2014 I N CONSEQUENCE TO THE ORDER U/S 263 OF INCOME-TAX ACT WILL NOT SURVIVE. ACCORDINGLY, THE SAME IS ANNULLED. 3. AGGRIEVED BY THE ORDER OF LD. CIT(A), REVENUE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS : 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. D.R. CIT(A) WAS JUSTIFIED IN TREATI NG THE ASSESSMENT MADE U/S 143(3) R.W.S. 263 TO BE NOT SUR VEYING WHEN THE VALIDITY OF ACTION U/S 263 IS SUB-JUDICE B EFORE THE HONBLE BOMBAY HIGH COURT ? 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. D.R. CIT(A) WAS JUSTIFIED IN SETTIN G ASIDE THE ORDER U/S 143(3) R.W.S. 263 OF THE I.T. ACT BY IGNO RING THE FACT THAT AO HAS ALLOWED THE CLAIM U/S 80IB(10) WITHOUT EXAMINING THE FACTS AVAILABLE ON RECORD WHICH SHOWE D THAT THE ASSESSEE IN THIS YEAR HAS SHOWN EXCESSIVE PROFI TS IN 80IB PROJECT VIS--VIS EARLIER YEARS AND VIS--VIS NON 8 0IB PROJECT BEFORE ACCEPTING THE SAME ? 3. THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTE R ANY OF THE ABOVE GROUNDS OF APPEAL. 4. BEFORE US, LD. D.R. SUBMITTED THAT WHILE FRAMING THE ASSESSMENT ORDER U/S 143(3), THE CLAIM OF DEDUCTION U/S 80IB(10) WAS ALLOWED TO THE ASSESSEE. THEREAFTER ON EXAMINING TH E ASSESSMENT RECORDS, LD. CIT(A) NOTED THAT ASSESSEE HAD SHOWN HIGHER PROFIT MARGIN FOR ELIGIBLE PROJECT (ROSELAND RESIDENCY) WHERE LOWER PROFIT MARGIN FOR THE NON-ELIGIBLE PROJECT (DWARAKA SU NCREST) AND ALSO OBSERVED THAT AS PER THE VALUATION REPORT, TH E TOTAL AREA OF 4 ITA NO.283/PUN/2015 AY.NO.2009-10 ROW HOUSE NO.04 & 01 WAS MORE THAN THE PERMISSIBLE LIMIT O F 1500 SQ.FT. AS STIPULATED U/S 80IB(10) OF THE ACT. LD.CIT THER EFORE RIGHTLY CONCLUDED THAT THE ORDER OF AO WAS ERRONEOUS AND PREJ UDICIAL TO THE INTEREST OF REVENUE. THE LD. D.R. FURTHER SUBMITTED THAT AGAINST THE ORDER OF LD. CIT PASSED U/S 263, ASSESSEE APPEALED BEFORE THE TRIBUNAL. THE HONBLE TRIBUNAL VIDE ORDER DT.30.05.2014 HAS SET ASIDE THE ORDER OF LD. CIT PASSED U/S 263 AND RESTORED THE ASSESSMENT ORDER DT.25.03.2011 PASSED BY AO U/S 143(3) OF THE A CT. HE SUBMITTED THAT AGAINST THE ORDER OF TRIBUNAL, DEPARTMENT HA S PREFERRED APPEAL BEFORE BOMBAY HIGH COURT AND THE APPEA L IS PENDING. HE THEREFORE SUBMITTED THAT IN SUCH A SITUATION , THE IMPUGNED ORDER PASSED BY LD. CIT(A) BE SET ASIDE. LD. A.R . ON THE OTHER HAND SUBMITTED THAT WHEN THE ORDER OF LD. CIT PAS SED U/S 263 ITSELF HAS BEEN SET ASIDE BY THE TRIBUNAL, THE CONSEQUENT IAL ORDER PASSED U/S 143(3) R.W.S. 263 DOES NOT SURVIVE AND LD. CIT (A) HAS RIGHTLY ANNULLED THE ORDER. HE THUS SUPPORTED THE ORDER OF LD. CIT(A ) 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT IS AN UNDISPUTED FACT THAT ORIGINAL ASSESSMENT ORDER U/S 143(3) WAS PASSED BY AO ON 25.03 .2011. THEREAFTER, LD. CIT VIDE ORDER DATED 26.03.2012 PASSED U /S 263 SET ASIDE THE ORDER OF AO PASSED U/S 143(3). CONSEQUENT TO ORDER PASSED U/S 263, AO FRAMED ASSESSMENT U/S 143(3) R.W.S. 26 3 VIDE ORDER DATED 18.02.2014. AGAINST THE ORDER PASSED BY LD. CIT U/S 263, ASSESSEE CARRIED THE MATTER BEFORE THE TRIBUNAL. TH E CO- ORDINATE BENCH OF THE TRIBUNAL IN ITA NO.1145/PN/2005 OR DER DT.30.05.2014 HAD SET ASIDE THE ORDER OF THE COMMISSIONER PASSED U/S 263 OF THE ACT AND HAD RESTORED THE ASSESSMENT O RDER PASSED 5 ITA NO.283/PUN/2015 AY.NO.2009-10 U/S 143(3) DT.25.03.2011 THAT WAS PASSED BY AO. BEFORE U S IT IS REVENUES CONTENTION THAT AGAINST THE ORDER OF THE TRIB UNAL, IT HAS FILED APPEAL BEFORE HONBLE BOMBAY HIGH COURT. HOWEVER, BEFO RE US NO MATERIAL HAS BEEN PLACED ON RECORD BY REVENUE TO DE MONSTRATE THAT THE AFORESAID ORDER PASSED BY THE CO-ORDINATE BE NCH OF THE TRIBUNAL, WHEREBY THE ORDER OF COMMISSIONER PASSED U/S 2 63 OF THE ACT HAS BEEN SET ASIDE BY HONBLE BOMBAY HIGH COURT. IN SUCH CIRCUMSTANCES, WE FIND NO REASON TO INTERFERE WITH THE OR DER OF LD. CIT(A) AND THUS, THE GROUND OF REVENUE IS DISMISSED. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON THE 22 ND DAY OF DECEMBER, 2016. SD/- SD/- ( R.P. TOLANI ) ( ANIL CHATURVEDI ) / JUDICIAL MEMBER ! / ACCOUNTANT MEMBER PUNE; ! DATED : 22 ND DECEMBER, 2016. YAMINI '#$%&'&$ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5. 6. COMMISSIONER OF INCOME TAX (APPEALS) -6, PUNE, COMMISSIONER OF INCOME TAX - 5, PUNE. #$% &&'( , ) '( , / DR, ITAT, B PUNE; %*+ , / GUARD FILE / BY ORDER , //// // TRUE COPY T // TRUE COPY// -./ &0 '1 / SR. PRIVATE SECRETARY ) '( , / ITAT, PUNE