Income-tax Officer ,Ward -1(1), Nagpur V. M/s Air Develpers, Nagpur

ITA 386/NAG/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3905 (ITAT-NAGPUR)
• Duration Of Justice: 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-04-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 12-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHARDHA NICHHAL ACIT
• Keywords: Revised return
• Section: 234B; 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR E-BENCH, NAGPUR (THROUGH VIDEO CONFERENCE AT MUMBAI) BEFORE SHRI R.K. GUPTA, JUDICIAL MEMBER A ND SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER I.T.A. NO.386/NAG/2012 (AY: 2009-2010) INCOME - TAX OFFICER, WARD - 1(1) ROOM NO. 507, 5 TH FLOOR, MECL BUILDING, SEMINARY HILLS NAGPUR-440006 PAN: VS. M/S AIR DEVELOPERS 44, FARMLAND, RAMDASPETH NAGPUR-440010 PAN: AABFA5916C (APPELLANT) (RESPONDENT) REVENUE BY : SMT. SHARDHA NICHHAL ( ACIT) ASSESSEE BY : K.P. DEWANI. DATE OF HEARING: 15.03.2013 DATE OF PRONOUNCEMENT :3.4.2013 O R D E R PER D. KARUNAKARA RAO, AM: 1. THIS APPEAL FILED BY THE ASSESSEE AGAINST ORDER OF THE CIT(A) NO. II-NAGPUR DATED 27.12.2011. THE GROUNDS OF APPEAL READ AS UNDER: (I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE CIT(A) ERRED IN HOLDING THAT THE ASSESSEE IS ELIGIBLE FOR PRO-RATA CLAIM OF DEDUCTION U/S 80IB(10) OF THE I.T.ACT, IGNORING THE FACT THAT SUCH PRO-RATA DEDUCTION IS NOT ALLOWABLE U/S 80IB(10). (II) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW THE CIT(A) ERRED IN DIRECTING THE AO TO ALLOW DEDUCTION U/S 80IB(10) OF THE I.T. ACT IN SPITE OF THE FACT THAT THE CONDITIONS PRECEDENT FOR CLAIMING DEDUCTION U/S 80IB(1) WERE NOT FULFILLED. 2. IN LIMINE, BOTH THE PARTIES IN THE DISPUTE MENTI ONED THAT THE PRESENT APPEAL IS COVERED BY THE JURISDICTIONAL HIGH COURT JUDGMENT I N THE CASE OF BRAHMA ASSOCIATES 51 DTR 298. IN THIS REGARD, WE PERUSED THE CONTENTS OF PARAGRAPH-2 TO 4 OF THE CIT(A) ORDER DATED 14.08.2012. THE SAME READ AS UNDER:- I.T.A. NO.386/NAG/2012 M/S AIR DEVELOPERS 2.1 THE ASSESSEE HAS FILED REVISED RETURN OF INCOME DEC LARING TOTAL INCOME AT RS. 3,48,680/- AFTER CLAIMING DEDUCTION U /S 80IB(1) OF RS. 15,77,874/-. AS PER THE FACTS NARRATED IN THE ASSES SMENT ORDER IT IS SEEN THAT ASSESSEE IS A BUILDERS AND DEVELOPER. THIS FIR M HAS TAKEN UP A PROJECT EXCLUSIVE AT MOUZA NARI OF CONSTRUCTION OF A HOUS ING PROJECT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO HAS OBSERVE D THAT ASSESSEE FIRM HAS EXCEEDED THE PRESCRIBED LIMIT OF 1500 SQ.FT. IN RESPECT OF CERTAIN FLATS AND CLAIMED DEDUCTION U/S 80IB(10) OF THE ACT. DURI NG THE ASSESSMENT PROCEEDINGS THE AO DISALLOWED DEDUCTION U/S 80IB(10 ) OF THE ACT IN RESPECT OF THE PROJECT CALLED EXCLUSIVE. THE ASSESSEE FIR M HAD CLAIMED THAT THE BUILT UP AREA OF RESIDENTIAL UNIT EXCLUDING BALCONY AREA IS NOT EXCEEDING 1500 SQ.FT. HOWEVER AO HAS DISALLOWED THE CLAIM MAD E BY THE ASSESSEE STATING THAT THE AREA OF RESIDENTIAL UNIT IS IN EXC ESS OF 1500 SQ. FT. AS BALCONY AREA IS TO BE INCLUDED FOR CALCULATION OF B UILT UP AREA OF RESIDENTIAL UNIT. THEREFORE DEDUCTION U/S 80IB(10) OF THE ACT I S DISALLOWED. 3. AGAINST THIS ORDER THE ASSESSEE COMPANY HAVE RAI SED VARIOUS GROUNDS AND MADE WRITTEN SUBMISSIONS WHICH ARE AS F OLLOWS: (I) THE ORDER PASSED BY AO IS ILLEGAL, INVALID AND BAD IN LAW. (II) THE ADDITION MADE BY AO AT RS. 15,77,874/- IS UNJUSTIFIED, UNWARRANTED AND EXCESSIVE. (III) THE LD. AO ERRED IN DISALLOWING THE CLAIM OF DEDUCTION U/S 80IB IN RESPECT OF HOUSING PROJECT TITLED AS EXCLUSIVE PROJ ECT. (IV) THE ASSESSEE DENIES LIABILITY TO BE ASSESSED TO INT EREST U/S 234B OF THE I.T. ACT 1961. WITHOUT PREJUDICED THE LEVY OF I NTEREST U/S 234B OF I.T. ACT, 1961 IS UNJUSTIFIED, UNWARRANTED AND E XCESSIVE. 4. I HAVE CAREFULLY CONSIDERED THE ISSUE BEFORE ME. THE MAIN CONTENTION OF THE AO IS THAT IN EARLIER YEARS THE C LAIM OF ASSESEE HAS BEEN REJECTED ON THE GROUND THAT THE AREA OF RESIDENTIAL UNIT WAS IN EXCESS OF 1500 SQ. FT. THIS ISSUE HAS ALREADY BEEN DECIDED IN THE APPELLANTS OWN CASE I.T.A. NO.386/NAG/2012 M/S AIR DEVELOPERS BY THE HONBLE TRIBUNAL IN ITA NO. 447/NAG/2007 DAT ED 21.05.2008 WHEREIN THE HONBLE TRIBUNAL HAS HELD THAT PROPORTI ONATE DEDUCTION TO THE EXTENT OF CONSTRUCTED AREA NOT EXCEEDING 1500 SQ. F T. PER UNIT IS AVAILABLE TO APPELLANT. THE ASSESSEE HAS DEVELOPED HOUSING PR OJECT EXCLUSIVE WHICH IS APPROVED BY THE LOCAL AUTHORITY WHICH FULFILLS T HE REQUISITE CONDITION FOR GRANT OF DEDUCTION U/S 80IB(10). IN THIS CASE THE D ECISION OF THE BOMBAY HIGH COURT IN THE CASE OF CIT V. BRAHMA ASSOCIATES REPORTED IN 51 DTR 298 THE HONBLE HIGH COURT HAS ENDORSED THE PRINCIPLE O F PROPORTIONATE EDUCATION BEING AVAILABLE U/S 80IB(10). 5. CONSIDERING THE TOTALITY OF FACTS OF THE CASE AN D FOLLOWING THE DECISION OF THE HONBLE TRIBUNAL (SUPRA), I HOLD TH AT THE ASSESSEE IS ENTITLED TO DEDUCTION U/S 80IB(10) OF THE ACT. IT IS A SETTLED ISSUE AT THE LEVEL OF THE JURISDICT IONAL HIGH COURT THAT THE ASSESSEE IS ENTITLED TO PROPORTIONATE DEDUCTION. 3. CONSIDERING THE ABOVE SETTLED NATURE OF THE ISSUE, WE ARE OF THE OPINION, ORDER OF THE CIT(A) DOES NOT CALL FOR ANY INTERFERENCE. 4. ACCORDINGLY GROUNDS OF REVENUE ARE DISMISSED, IN TH E RESULT APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 3 RD DAY OF APRIL, 2013. SD/- SD/- (R.K. GUPTA) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE : 3.4.2013 AT :MUMBAI I.T.A. NO.386/NAG/2012 M/S AIR DEVELOPERS COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE DCIT (A), CONCERNED. 4. THE CIT CONCERNED. 5. THE DR NAGPUR, BENCH, ITAT, NAGPUR. 6. GUARD FILE. // TRUE COPY// SK BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI