ITAO Ward1(3), Nagpur V. M/s Pioneer Construction Company, Nagpur

ITA 374/NAG/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75923 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 3 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 11-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H M WANARE
• Section: 80IB; 2

Judgement Text

, , ( - ), IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENC H, (E-COURT), MUMBAI . . , !' , #$% , $& '( BEFORE SHRI H L KARWA, PRESIDENT, & SHRI RAJENDRA, AM ./ITA NO.374/NAG/2012 ( ) * / ASSESSMENT YEAR : 2009-10) THE ITO WARD 1(3) , NAGPUR VS. PIONEER CONSTRUCTION COMPANY 263, PIONEER HOUSE, BAJAJ NAGAR, NAGPUR - 440010 PAN : AABFP6047P ( +, /APPELLANT) ( -.+, / RESPONDENT) APPELLANT BY : MR. H M WANARE RESPONDENT BY : MR. K P DEWANI DATE OF HEARING : 22.01.2014 DATE OF PRONOUNCEMENT : 22.01.2014 '$/ / O R D E R PER H L KARWA, PRESIDENT : THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF THE CIT(A)-I, NAGPUR, DATED 23.07.2012, RELATING TO A.Y . 2009-10. 2. IN THIS APPEAL, THE REVENUE HAS RAISED THE FOLLO WING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LEARNED CIT(A) ERRED IN ALLOWING CLAIM OF THE ASSES SEE U/S. 80IB(10) WHEN ASSESSEE HAS OBTAINED MULTIPLE APPROVAL FOR IN DEPENDENT HOUSING PROJECTS ON LANDS OF SIZE LESS THAN ONE ACR E. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LEARNED CIT(A) ERRED IN HOLDING THAT THE ASSESSEE I S ELIGIBLE FOR PRO- RATA CLAIM OF DEDUCTION U/S. 80IB(10) IGNORING THE FACT THAT SUCH PRO-RATA DEDUCTION IS NOT ALLOWED U/S. 80IB(10) 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LEARNED CIT(A) ERRED IN DIRECTING THE A.O. TO ALLOW DEDUCTION U/S. 2 ITA NO.374/NAG/2012 AY:2009-10 80IB(10) OF THE I.T. ACT, IN SPITE OF THE FACT THAT THE CONDITIONS PRECEDENT FOR CLAIMING DEDUCTION U/S. 80IB(10) WERE NOT FULFILLED. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LEARNED CIT(A) ERRED IN DIRECTING THE A.O. TO ALLOW DEDUCTION U/S. 80IB(10) OF THE I.T. ACT, IN SPITE OF THE FACT THAT THE ASSESSEE DID NOT COMMENCE THE PROJECT AND HAD ONLY TAKEN UP A PR OJECT WHICH HAD ALREADY COMMENCED. 2. WHILE FRAMING ASSESSMENT ORDER THE ASSESSING OFF ICER DENIED THE CLAIM OF RS. 25,02,578/- FOR DEDUCTION U/S. 80IB OF THE I.T. ACT, 1961. ON APPEAL, THE CIT(A) ALLOWED THE CLAIM OF THE ASSESSEE OBSERVING AS UNDER: 3.2. IN THE ASSESSEES CASE ON IDENTICAL FACTS THE ASSESSEE HAS BEEN GRANTED DEDUCTION U/S. 80IB(10) IN RESPECT OF HOUSING PROJECT NAMED AS PIONEER REGENCY. THE FACTS AND CIRCUMST ANCES ARE IDENTICAL TO THE EARLIER YEARS. THE A.O. OBSERVED THAT FACTS ABOUT THE CLAIM OF DEDUCTION U/S. 80IB(10) NOT ALLOWABLE IS THAT THE TOTAL BUILT UP AREA EXCEEDS 1500 SFT. AND THE AREA IS LES S THAN 1 ACRE AND MULTIPLE SANCTIONS WERE OBTAINED. THE APPELLATE AU THORITIES IN EARLIER HAVE HELD THAT ASSESSEE IS ELIGIBLE FOR DED UCTION IN RESPECT OF HOUSING PROJECT. THE ASSESSEE HAS DEVELOPED HOUSIN G PROJECT WHICH FULFILLS THE REQUISITE CONDITION FOR GRANT OF DEDUC TION U/S. 80IB(10). 4.0 THE HONBLE ITAT, NAGPUR BENCH, NAGPUR HAS, IN THE APPELLANTS CASE FOR AY 2004-05, VIDE ORDER ITA NO .364/NAG/2007 DT. 21.05.2008 GIVEN THE RELIEF TO THE APPELLANT. 4.1 I HAVE CONSIDERED THE FACTS OF THE CASE AND ASS ESSMENT ORDER. RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE ITAT, NAGPUR BENCH, NAGPUR, THE APPEAL IS HEREBY ALLOWED. 3. AFTER HEARING THE LEARNED REPRESENTATIVES OF BOT H THE PARTIES, WE FIND THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSE SSEE AND AGAINST THE REVENUE BY THE ORDER OF THE TRIBUNAL, DATED 19.12.2012, IN THE ASSESSEES OWN CASE IN ITA NO. 53/NAG/2011 FOR A.Y. 2007-08, WHEREIN IT HAS BE EN OBSERVED AS UNDER: 8. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD, WE FIND THAT THE ORDER OF THE LEARNED CI T(A) IS REASONABLE, WHO HAS ALLOWED DEDUCTION U/S. 80IB FOL LOWING THE DECISION OF THE TRIBUNAL ON IDENTICAL FACTS. THERE FORE, THERE IS NO REASON TO INTERFERE IN THE FINDINGS OF THE LEARNED CIT(A) IN BOTH THESE CASES. ACCORDINGLY, WE CONFIRM THE ORDER OF THE LEARNED CT(A) FOR BOTH OF THE ASSESSMENT YEARS AND DISMISS BOTH THE APPEALS OF THE DEPARTMENT. 3 ITA NO.374/NAG/2012 AY:2009-10 4. IN VIEW OF THE ORDERS OF THE TRIBUNAL PASSED IN THE ASSESSEES OWN CASE FOR EARLIER ASSESSMENT YEARS, WE DO NOT FIND ANY INFIRM ITY IN THE ORDER OF THE CIT(A) ON THIS ISSUE. ACCORDINGLY, WE UPHOLD THE ORDER OF THE CIT(A). 5. IN THE RESULT, THE APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE E-COURT ON THIS 22 ND DAY OF JANUARY, 2014. SD/- SD/- (RAJENDRA) (H L KARWA) ACCOUNTANT MEMBER PRESIDENT MUMBAI, DT : 22 ND JANUARY, 2014 SA COPY FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE C.I.T, CONCERNED 4. THE CIT (A)-CONCERNED 5. THE DR, NAGPUR BENCH BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI