Deputy Commissioner of Income-tax, Circle - 2(2), Pune V. Amit Enterprises Housing Limited, Pune

ITA 2939/PUN/2017

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 4026 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-10-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 06-10-2021
• Assessment Year: 2011-2012
• Appeal Filed On: 08-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A M MAHADEVAN KRISHNAN
• Section: 2; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE BEFORE SHRI R.S.SYAL, VP AND SHRI PARTHA SARATHI CHAUDHURY , JM . / I TA NO S . 2938 & 2939 /PUN/20 17 / ASSESSMENT YEAR S : 2010 - 11 & 2011 - 12 THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(2), PUNE. ....... / APPELLANT / V/S. M/S. AMIT ENTERPRISES HOUSING LIMITED 1902, AMIT HOUSE, BAJIRAO ROAD, SADASHIV PETH, PUNE - 411 030 PAN : AAGCA9192A / RESPONDENT REVENUE BY : SHRI A.M MAHADEVAN KRISHNAN A SSESSEE BY : SHRI NEELESH KHANDELWAL / DATE OF HEARING : 06 . 10 .2021 / DATE OF PRONOUNCEMENT : 07 . 10 .2021 / ORDER PER BENCH : THESE TWO APPEALS PREFERRED BY THE REVENUE EMANATES FROM THE DIFFERENT ORDERS OF THE LD. CIT(APPEAL), PUNE - 1 DATED 12.09.2017 FOR THE ASSESSMENT YEARS 2010 - 11 & 2011 - 12 AS PER THE GROUNDS OF APPEAL ON RECORD. 2. THE ONLY ISSUE RAISED IN THESE APPEALS ARE WHETHER PROPORTIO NATE DEDUCTION U/S.80IB(10) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO 2 ITA NO S . 2938 & 2939 /PUN/20 17 A.Y S . 2010 - 11 & 2011 - 12 AS THE ACT) IN RESPECT OF PROJECT OF SAPPHIRE PARK WOULD BE ALLOWED TO THE ASSESSEE. 3. IT IS THE CONTENTION OF THE REVENUE THAT WIT HIN THE SCHEME OF THE PROVISION I.E. SECTION 80IB(10) OF THE ACT, THE SECTION IS TO GRANT DEDUCTION FOR THE HOUSING PROJECT AS A WHOLE WHEREAS, PER CONTRA, IT IS THE CONTENTION OF THE ASSESSEE THAT PROPORTIONATE DEDUCTION U/S.80IB (10) SHOULD BE ALLOWED AS IT IS WELL WITHIN THE SCHEME O F THE PROVISION UNDER THE ACT WHICH HAS ALSO BEEN UPHELD BY VARIOUS JUDICIAL FORUMS. 4. THAT AS PER THE SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE, ITA NO.2939/PUN/2017 FOR THE ASSESSMENT YEAR 2011 - 12 IS BEING TAKEN AS LEAD CASE FOR ADJUDICATION OF T HIS MATTER. ITA NO.2939/PUN/2017 A.Y.2011 - 12 5. THAT ON PERUSAL OF THE FINDINGS OF THE LD. CIT(APPEAL) FOR THE ASSESSMENT YEAR 2011 - 12 AT PARAS 21 & 22, HE HAS GIVEN REASONING FOR HIS DECISION THAT IN RESPECT OF SOME OF THE UNITS, THE BUILT UP AREA WAS MORE THAN 1500 SQ. FT. BUT THAT DOES NOT MEAN THAT DEDUCTION U/S.80IB(10) OF THE ACT SHOULD BE DISALLOWED IN RESPECT OF THE ENTIRE PROJECT. MEANING THEREBY, THE ASSESSEE WAS ENTITLED TO GET PROPORTIONATE DEDUCTION AS CLAIMED UNDER THE SAID PROVISIONS. TH E LD. CIT(APPEAL) HAS GIVEN THE FOLLOWING FINDINGS IN THIS REGARD : 23. HOWEVER, JUST BECAUSE BUILT UP AREA IS MORE THAN 1500 SQ. FT. IN RESPECT OF SOME OF THE UNITS, DEDUCTION U/S.80IB(10) OF THE INCOME TAX ACT, 1961 CANNOT BE DISALLOWED IN RESPECT OF TH E ENTIRE PROJECT AND THE APPELLANT WILL BE ENTITLED TO PROPORTIONATE DEDUCTION, AS CLAIMED, AS PER FOLLOWING DECISIONS : (I) M/S. ROHAN HOMES VS. ACIT [423/PN/11] (II) ANKIT ENTERPRIES [ ITA NO.156 & 172/PN/11] 3 ITA NO S . 2938 & 2939 /PUN/20 17 A.Y S . 2010 - 11 & 2011 - 12 (III) SANGHVI & DOSHI ENTERPRISES [139 ITD 151 ( CHENNAI), TM] (IV) BENGAL HOUSING DEVELOPMENT LTD. VS. DCIT IN ITA NO.595/K O L/2005 24. ACCORDINGLY, THE AO IS DIRECTED TO WORK OUT THE DEDUCTION U/S. 80IB(10) OF THE INCOME TAX ACT, 1961 IN RESPECT OF SAPPHIRE PARK PROJECT ON PROPORTIONATE BASIS AFTER EXCLUDING THE UNITS WHERE BUILT UP AREA EXCEEDS 1500 SQ.FT. ON ACCOUNT OF TERRACE GAR DEN AS DISCUSSED ABOVE 6. WE FIND IN THE CASE OF DEVASHRI NIRMAN LLP VS. ASSISTANT COMMISSIONER OF INCOME TAX, PANAJI GOA, (2021) 124 TAXMANN.COM 125 ( BOMBAY) , THE FACTS BEFORE THE HONBLE HIGH COURT WAS THAT THE ASSESSEE FILED ITS RETURN CLAIMING DEDUCTION U/S.80IB (10) OF THE ACT. THE ASSESSING OFFICER DENIED THE SAME ON THE GROUND THAT AREA OF FIVE RESIDENTIAL UNITS IN FIRST PROJECT AND THREE RESIDENTIAL UNITS IN ANOTHER PROJECT EXCEEDED 1500 SQUARE FEET WHICH WAS IN BREACH OF CONDITIONS CONTAIN ED IN SUB CLAUSE (C) OF SECTION 80IB(10) OF THE ACT. HOWEVER, THE LD. CIT(APPEALS) HELD THAT THE ASSESSEE WAS ENTITLED TO BENEFIT OF DEDUCTION UNDER SECTION 80IB(10) ON PROPORTIONATE BASIS IN RESPECT OF RESIDENTIAL UNITS HAVING BUILT UP AREA LESS THA N OR E QUAL TO 1500 SQUARE FEET AND THE TRIBUNAL HAS UPHELD THE SAME. IT WAS NOTED THAT ON A PLAIN READING OF CLAUSE (C) OF SECTION 80IB(10), IT WAS EVIDENT THAT SAME DOES NOT EXCLUDE PRINCIPLE OF PROPORTIONALITY IN ANY MANNER. THE VIEW TAKEN BY THE LD. CIT(APPE ALS) AND TRIBUNAL WAS UPHELD BY THE HONBLE BOMBAY HIGH COURT. 7. REVERTING TO THE FACTS OF THE PRESENT CASE, IT WAS AGREED BY THE LD. CIT(APPEAL) THAT IN RESPECT OF SOME UNITS, THE BUILT UP AREA EXCEEDS 1500 SQUARE FEET ON ACCOUNT OF TERRACE GARDEN AS DI SCUSSED IN HIS FINDINGS. HOWEVER, THEREFORE, THE ASSESSING OFFICER WAS DIRECTED TO ALLOW PROPORTIONATE DEDUCTION U/S.80IB (10) OF THE ACT IN RESPECT OF SAPPHIRE PARK PROJECT AFTER EXCLUDING THE UNITS WHERE BUILT UP AREA EXCEEDS 1500 SQUARE FEET ON ACCOUN T 4 ITA NO S . 2938 & 2939 /PUN/20 17 A.Y S . 2010 - 11 & 2011 - 12 OF TERRACE GARDEN. THEREFORE, IT IS IN CONFORMITY WITH THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT (SUPRA.) WHEREIN SUCH PROPORTIONATE DEDUCTION U/S.80IB(10) OF THE ACT WOULD BE ALLOWED TO THOSE UNITS WHICH ARE HAVING BUILT UP AREA LESS THAN O R EQUAL TO 1500 SQUARE FEET. IT IS ALSO THE SETTLED POSITION OF LAW THAT PRINCIPLE OF PROPORTIONALITY SHALL NOT BE EXCLUDED WHILE DETERMINING ALLOWABILITY OF DEDUCTION U/S.80IB (10) (C) OF THE ACT. 8. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THERE IS NO NEED FOR INTERFERENCE WITH THE FINDINGS OF THE LD. CIT(APPEAL) AND RELIEF PROVIDED TO THE ASSESSEE IS HEREBY SUSTAINED. THUS, GROUNDS RAISED BY THE REVENUE FOR THE ASSESSMENT YEAR 2011 - 12 ARE DISMIS SED. 9. IN THE RESULT, APPEAL OF THE REVENUE IN ITA N O.2 939/PUN/2017 FOR THE ASSESSMENT YEAR 2011 - 12 IS DISMISSED. ITA NO.2938/PUN/2017 A.Y. 2010 - 11 10. SINCE PARTIES HEREIN HAVE AGREED THAT IN ITA NO.2938/PUN/2017 FOR ASSESSMENT YEAR 2010 - 11, THE FACTS ARE ABSOLUTELY SIMILAR, ISSUES COMMON AS WITH THE FACTS AND ISSUES APPEARING IN ITA NO.2939/PUN/2017 FOR ASSESSMENT YEAR 2011 - 12, THEREFORE, OUR DECISION RENDERED IN ITA NO.2939/PUN/2017 FOR THE ASSESSMENT YEAR 2011 - 12 SHALL APPLY MUTATIS - MUTANDIS TO ITA NO.2938/PUN/2017 FOR THE ASSESSMENT YEARS 2010 - 11. IN THIS APPEAL ALSO, GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 11. IN THE RESULT, APPEAL OF THE REVENUE IN ITA NO.2938/PUN/2017 FOR THE ASSESSMENT YEAR 2010 - 11 IS DISMISSED. 5 ITA NO S . 2938 & 2939 /PUN/20 17 A.Y S . 2010 - 11 & 2011 - 12 12. IN THE COMBINED RESULT, BOTH THE APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRO NOUNCED ON 07 TH DAY OF OCTOBER , 20 2 1 . S D/ - S D/ - R.S.SYAL PARTHA SARATHI CHAUDHURY VICE PRESIDENT JUDICIAL MEMBER / PUNE; / DATED : 07 TH O CTOBE R , 202 1 . SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEAL), PUNE - 1. 4. THE PR. CIT - 1, PUNE. 5. , , , / DR, ITAT, A BENCH, PUNE. 6 . / GUARD FILE. / BY ORDER, // T RUE C O PY // / PRIVATE SECRETARY , / ITAT, PUNE . 6 ITA NO S . 2938 & 2939 /PUN/20 17 A.Y S . 2010 - 11 & 2011 - 12 DATE 1 DRAFT DICTATED ON 06 . 10 .2021 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 06.10 .202 1 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER