Ms. Baljeet Kaur Sekhon, Mohali V. DCIT, Mohali

ITA 4/CHANDI/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 81075 (ITAT-CHANDIGARH)
• Duration Of Justice: 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 10-12-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 01-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Assessee Lawyers: KAPIL KHANNA
• Keywords: Opportunity of being heard; Period of limitation; Condonation of delay
• Section: 143(3); 80IB; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A & B, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R.SOOD, ACCOUNTANT MEMBER ITA NO. 3/CHD/2014 ASSESSMENT YEAR : 2005-06 MS.BALJEET KAUR SEKHON, VS. THE D..C.I.T., # 2228, PHASE 7, CIRCLE 6(1), MOHALI. MOHALI. PAN: ABXPS6329L ITA NO. 1221/CHD/2011 ASSESSMENT YEAR : 2006-07 MRS.BALJEET KAUR SEKHON, VS. THE D..C.I.T., PROP.M/S DEE ESS ESTATES, CIRCLE 6(1), # 2228, PHASE VII, MOHALI. PAN: ABXPS6329L ITA NO. 4/CHD/2014 ASSESSMENT YEAR : 2006-07 MS.BALJEET KAUR SEKHON, VS. THE D..C.I.T., # 2228, PHASE 7, CIRCLE 6(1), MOHALI. MOHALI. PAN: ABXPS6329L AND ITA NO. 5/CHD/2014 ASSESSMENT YEAR : 2007-08 MS.BALJEET KAUR SEKHON, VS. THE D..C.I.T., # 2228, PHASE 7, CIRCLE 6(1), MOHALI. MOHALI. PAN: ABXPS6329L 2 APPELLANT BY : S/SHRI TEJ MOHAN SINGH & KAPIL KHANNA RESPONDENT BY : SHRI S.K.MITTAL, DR DATE OF HEARING : 10.12.2014 DATE OF PRONOUNCEMENT : 16.12.2014 O R D E R PER BHAVNESH SAINI, J.M. : THIS ORDER SHALL DISPOSE OFF ALL THE ABOVE APPEALS FILED BY THE ASSESSEE FOR DIFFERENT ASSESSMENT YEARS ON IDEN TICAL ISSUES. 2. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOT H THE PARTIES, PERUSED THE FINDINGS OF THE AUTHORITIES BE LOW AND CONSIDERED THE MATERIAL AVAILABLE ON RECORD. ALL T HE APPEALS ARE DECIDED AS UNDER : ITA NO.3/CHD/2014 (ASSESSMENT YEAR 2005-06) : 3. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AG AINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEAL S), CHANDIGARH DATED 1.11.2013 FOR ASSESSMENT YEAR 2005 -06, CHALLENGING THE ORDER OF THE LEARNED CIT (APPEALS) IN UPHOLDING THE ORDER OF THE ASSESSING OFFICER FOR DI SALLOWING DEDUCTION UNDER SECTION 80IB(10) OF THE INCOME TAX ACT(IN SHORT THE ACT) 4. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSE SSMENT WAS ORIGINALLY FRAMED IN THIS CASE VIDE ORDER UNDER SEC TION 143(3) 3 OF THE ACT DATED 28.12.2007 DISALLOWING DEDUCTION U NDER SECTION 80IB(10) OF THE ACT. THE LEARNED CIT (APP EALS) DISMISSED THE APPEAL FILED BY THE ASSESSEE VIDE ORD ER DATED 24.11.2008 IN APPEAL NO.358/07-08 AND ON FURTHER AP PEAL BEFORE THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGAR H BENCH BY THE ASSESSEE, THE TRIBUNAL HAD VIDE ORDER DATED 30.6.2010 IN ITA NO.4/CHD/2009 DIRECTED THE ASSESSING OFFICER TO VERIFY THE CLAIM OF THE ASSESSEE UNDER SECTION 80IB(10) OF THE ACT. AS PER THE DIRECTIONS OF THE TRIBUNAL, THE ASSESSIN G OFFICER WROTE TO DISTRICT VALUATION OFFICER (DVO) TO SEND T HE REPORT AND AFTER CONSIDERING THE REPORT OF THE DVO, THE AS SESSING OFFICER HAS AGAIN DENIED DEDUCTION CLAIMED UNDER SE CTION 80IB(10) OF THE ACT OF RS.2,38,83,552/-. 5. THE ASSESSEE CHALLENGED THE DENIAL OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT BEFORE THE LEARNED CIT (APPEALS) AND DURING THE COURSE OF APPELLATE PROCEEDINGS, THE LEARNED COUNSEL FOR THE ASSESSEE HAS FILED A WRITTEN SUBMIS SION, INTER- ALIA, STATING THEREIN THAT THE DVO HAD TAKEN THE TO TAL COVERED AREA OF THE PLOT WITHOUT EXCLUDING MUMTY, WHICH WAS APPROXIMATELY 108 SQ.FT. IN ALL THE THREE CATEGORY (A, B & C) OF DUPLEX HOUSES. IN VIEW OF THE SUBMISSION OF THE ASS ESSEE, THE ASSESSING OFFICER GOT THE MEASUREMENTS DONE AND HAS REPORTED VIDE HER LETTER NO.5256 DATED 14.08.2013 T HAT THERE WAS NO MUMTY IN ALL THE THREE CATEGORIES OF DUPLEX HOUSES AND SO THE QUESTION OF INCLUDING THE MUMTY AREA, WH ILE CALCULATING THE BUILT UP AREA OF THESE UNITS, DOES NOT ARISE. 4 6. THE ASSESSING OFFICER ALSO REPORTED THAT HOUSES IN ALL THE THREE CATEGORIES ARE DUPLEX HOUSES AND SINCE THE ST AIRCASES IN ALL THE THREE CATEGORIES WERE DULY COVERED AND WERE FOR EXCLUSIVE USE OF INDIVIDUAL UNIT OWNERS, THE COVERE D AREA OF THE STAIRCASE, WHICH WAS LEFT TO BE INCLUDED IN DVO 'S REPORT DATED 27.12.2007 WAS RIGHTLY INCLUDED IN THE BUILT UP AREA IN THE SUBSEQUENT REPORT DATED 28.12.2007. THE ASSESSI NG OFFICER HAS ALSO FORWARDED A COPY OF DVO'S REPORT D ATED 13.08.2013, ACCORDING TO WHICH THE BUILT UP AREA OF THE THREE CATEGORIES OF HOUSES IS AS UNDER: S.NO. CATEGORY NO. OF UNITS BUILT UP AREA 1. A 8 1528.58 SQ.FT (INCLUDING STAIRCASE AREA 163.82 SQ.FT.) 2. B 28 16 02.38 SQ.FT. (INCLUDING STAIRCASE AREA 208.08 SQ.FT.) 3. C 32 1453.37 SQ.FT (INCLUDING STAIRCASE AREA 228.08 SQ.FT.) 7. THE REPORT OF THE ASSESSING OFFICER ALONGWITH TH E DVO'S REPORT WAS GIVEN TO THE ASSESSEE'S COUNSEL FOR COMM ENTS AND THE ASSESSEE HAS FILED A REPLY, RELEVANT PORTION OF WHICH REPRODUCED BELOW: 'THE OBSERVATION OF THE DVO IS INCORRECT AS THE STA IR CASE DO NOT FORM PART OF THE COVER AREA. I ENCLOSE HERE WITH THE PHOTOGRAPHS OF VARIOUS CATEGORIES OF THE RESIDENTIAL UNITS I.E. A, B AND C. THE PERUSAL OF T HE SAME WILL REVEAL THAT THE STAIR CASES ARE ONLY COVE RED ON THE 1 ST FLOOR AND NOT ON THE GROUND FLOOR DESPITE THE FACT THAT THE STAIR CASE STARTS ON THE GROUND FLOOR AND ENDS ON THE 1 ST FLOOR. THE ROOF COVERAGE FOR THE STAIR CASE STARTING ON THE GROUND FLOOR AND 1 ST FLOOR IS ON THE 1 ST FLOOR ITSELF AND NOT ON THE GROUND FLOOR. THE DVO HAS 5 ARBITRARILY INCLUDED THE BUILT AREA OF THE GROUND F LOOR AND WORKED OUT THE TOTAL BUILT UP AREA OF EACH UNIT . IF THE SAME IS EXCLUDED THE BUILT UP AREA OF EACH CATE GORY OF RESIDENTIAL UNIT WOULD BE LESS THAN 1500 SQ. FT. WHEN A PORTION IS NOT COVERED BY ROOF AT A PARTICULAR LE VEL THEN HOW CAN THE SAME BE INCLUDED IN THE BUILT UP AREA? IF THE SAME IS EXCLUDED THEN THE BUILT UP ARE A OF EACH RESIDENTIAL UNIT WOULD BE LESS THAN 1500 SQ FT AND THE ASSESSEE WOULD BE LEGITIMATELY ILLEGIBLE FOR DEDUCTION U/S 80IB(10) OF THE INCOME TAX ACT, 1961. ' 8. THE LEARNED CIT (APPEALS) CONSIDERING THE SUBMIS SIONS OF THE ASSESSEE DISMISSED THE APPEAL OF THE ASSESSEE. HIS FINDINGS IN PARAS 5 AND 6 OF THE APPELLATE ORDER AR E REPRODUCED AS UNDER : 5. I HAVE CONSIDERED THE SUBMISSION OF THE LD. COU NSEL, THE REPORT OF THE ASSESSING OFFICER AND OF THE DVO AND AP PELLANT'S REPLY IN RESPONSE TO THE REMAND REPORT. THE MAIN OBJECTIO N OF THE APPELLANT BEFORE THE ASSESSING OFFICER AND BEFORE TH E UNDERSIGNED IS AGAINST NOT EXCLUDING THE AREA OF MUMTY AND AGAINST INCLUDING THE AREA OF STAIRCASE IN THE BUILT UP AREA BY THE DVO I N HIS REPORT. 5.1 THE ASSESSING OFFICER HAS REPORTED AFTER INSPECTION OF THE SITE THAT THE MUMTIES DO NOT EXIST IN ALL THE THREE CATE GORIES OF HOUSES AND SO INCLUSION OR EXCLUSION OF THE SAME DOES NOT ARISE. THEREFORE, THE CONTENTION OF THE APPEL LANT IN THIS REGARD BECOMES IRRELEVANT. 5.2 REGARDING THE STAIRCASE, THE MAIN OBJECTION OF THE APPELLANT IS THAT THE SAME DOES NOT FORM PART OF THE COVERED ARE A, SINCE STAIRCASE IS COVERED ONLY ON THE FIRST FLOOR AND NOT ON THE G ROUND FLOOR. THIS CONTENTION OF THE APPELLANT CANNOT BE ACCEPTED, SIN CE THE BUILT UP AREA OF THE STAIR CASE AT BOTH THE FLOORS VIZ. GROU ND FLOOR AND FIRST FLOOR IS TO BE TAKEN IN TO ACCOUNT FOR THE PURPOSES OF COMPUTING THE COVERED AREA. THE ARGUMENT OF THE LD.COUNSEL THAT PORTIONS NOT COVERED BY ROOF CANNOT BE INCLUDED, DOES NOT HOLD W ATER, BECAUSE 6 THESE ARE DUPLEX HOUSES AND FOR COMPUTING THE BUILT UP AREA, THE ENTIRE AREA OF GROUND FLOOR AND FIRST FLOOR HAS TO BE INCLUDED AND AREAS WITHOUT ROOF ARE ALSO TO BE TAKEN INTO ACCOUN T. THE BUILT UP AREA LARGELY MEANS THE COVERED, USEFUL AND USEABLE AREA. THE CONTENTION OF THE LD. COUNSEL IN THIS REGARD IS ACCORD INGLY REJECTED. 5.3 IN VIEW OF THE ABOVE DISCUSSION, IT IS HELD TH AT THE ASSESSING OFFICER HAS RIGHTLY DISALLOWED THE CLAIM OF DEDUCTI ON U/S 80IB(10) AND HIS ACTION IN THIS REGARD IS UPHELD. GROUNDS OF APPEAL TAKEN BY THE APPELLANT ARE ACCORDINGLY DISMISSED. 6. IN THE RESULT, THE APPEAL IS DISMISSED. 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. THE LEARNED COUNSEL FOR THE ASSESSEE REFERRED TO THE ORDER OF T HE INCOME TAX APPELLATE TRIBUNAL REMANDING THE MATER TO THE F ILE OF THE ASSESSING OFFICER. COPY OF THE SAME IS FILED IN T HE PAPER BOOK AS WELL AS REFERRED TO THE REPORT OF THE DVO ( PB-90) AND ALSO REFERRED TO SOME PHOTOGRAPHS OF THE PROPERTY I N QUESTION AND SPECIFICALLY REFERRED TO THE PHOTOGRAPHS FILED AT PAGE 108 OF THE PAPER BOOK AND SUBMITTED THAT THE STAIR CASE S ARE ONLY COVERED ON THE 1 ST FLOOR AND NOT ON THE GROUND FLOOR DESPITE THE FACT THAT THE STAIR CASE STARTS ON THE GROUND F LOOR AND ENDS ON THE 1 ST FLOOR. THE ROOF COVERAGE OF THE STAIR STARTING ON THE GROUND FLOOR AND 1 ST FLOOR IS ON THE 1 ST FLOOR ITSELF AND NOT ON THE GROUND FLOOR. THE DVO AND THE ASSESSIN G OFFICER HAD INCLUDED THE BUILT UP AREA OF THE GROUND FLOOR AND WORKED OUT THE TOTAL BUILT UP AREA OF EACH UNIT. IF THE SAME IS EXCLUDED, THE BUILT UP AREA OF EACH CATEGORY OF RES IDENTIAL UNIT WOULD BE LESS THAN 1500 SQ.FT. WHEN A PORTION IS NOT COVERED BY ROOF AT GROUND FLOOR, IT CANNOT BE PART OF THE B UILT UP AREA. HE, THEREFORE, SUBMITTED THAT THE ASSESSEE WOULD BE ENTITLED 7 FOR DEDUCTION UNDER SECTION 80IB OF THE ACT AND REF ERRED TO THE REPORT OF DVO TO SHOW THAT IF GROUND FLOOR AREA OF THE STAIR CASE, WHICH IS NOT BUILT UP AREA, IS REDUCED, THEN THE BUILT AREA WOULD BE LESS THAN 1500 SQ.FT. ON THE OTHER HAND, THE LEARNED D.R. FOR THE REVENUE RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. THE LEARNED COUNSEL FOR THE AS SESSEE ALSO CONTENDED THAT IN CASE ANY NEED ARISES, THE MATTER MAY BE REFERRED TO THE ASSESSING OFFICER FOR VERIFICATION THAT THE GROUND FLOOR IS INCLUDED WRONGLY IN THE BUILT UP AR EA WHERE NO CONSTRUCTION HAS BEEN RAISED ON THE STAIR CASE. 9.1 IN VIEW OF THE SUBMISSIONS OF THE PARTIES AND FACTS OF THE CASE, IT IS CLEAR THAT THE ASSESSEE HAS SUBSTANCE I N HIS CONTENTION THAT THE BUILT UP AREA AS MENTIONED ABOV E IN THIS ORDER INCLUDES THE STAIR CASE AREA. THE PHOTOGRAP HS FILED ON RECORD WOULD REVEAL THAT THE STAIR CASE IS LEADING FROM GROUND FLOOR TO 1 ST FLOOR AND THERE IS NO CONSTRUCTION AT THE GROUND FLOOR. THE PERUSAL OF THE SAME WOULD REVEAL THAT THE STAIR CASES ARE ONLY COVERED ON THE 1 ST FLOOR AND NOT ON THE GROUND FLOOR DESPITE THE FACT THAT THE STAIR CASE STARTS O N THE GROUND FLOOR AND ENDS ON THE 1 ST FLOOR. THERE IS NO ROOF ON THE GROUND FLOOR BECAUSE IT IS COVERED ON THE 1 ST FLOOR ONLY. UNDER SECTION 80IB(10) OF THE ACT, THE MAXIMUM BUILT UP A REA TO BE COVERED IS OF 1500 SQ.FT. THE DEFINITION OF BUILT UP AREA IS NOT PROVIDED IN THE ACT BUT THE MEANING OF BUILT UP AREA IN COMMON SENSE WOULD CLEARLY INDICATE THAT THERE SHOU LD BE SOME CONSTRUCTION OR BUILDING RAISED OR COVERED ARE A TO SHOW THAT IT WAS BUILT UP AREA. WHEN THE STAIR CASE IS LEADING FROM 8 THE GROUND FLOOR TO 1 ST FLOOR AND STAIR CASE COVERED AT 1 ST FLOOR, THERE COULD NOT BE ANY BUILT UP AREA AT GROUND FLOO R COVERED IN THE STAIR CASE. IT, THEREFORE, APPEARS THAT TH E ASSESSING OFFICER AND DVO HAD TAKEN THE AREA OF THE STAIR CAS E TWICE FOR THE PURPOSE OF TAKING MEASUREMENT OF THE BUILT UP A REA OF STAIR CASE. THE ROOF COVERAGE IS ON 1 ST FLOOR AND NOT ON GROUND FLOOR. IT CANNOT BE INCLUDED IN THE BUILT UP AREA OF GROUND FLOOR. THE INCOME TAX APPELLATE TRIBUNAL, A HMEDABAD BENCH IN THE CASE OF AMALTAS ASSOCIATES VS. ITO, 1 31 ITD 142 HELD AS UNDER : WHEN THE MEANING OF 'BALCONY 1 IS TAKEN INTO CONSIDERATION WITH THE DEFINITION OF 'BUILT-UP-AREA' AS PROVIDED IN TH E ACT, IT WAS CLEAR THAT FINDING OF THE LOWER AUTHORITIES WERE NOT SUSTAINAB LE IN LAW. IT WAS AN ADMITTED FACT THAT THE OPEN TERRACE IN FRONT OF PEN T-HOUSE WAS CONSIDERED AS BALCONY/VERANDHA. THE OPEN TERRACE BE ING NOT COVERED AND OPEN TO SKY WOULD NOT BE PART OF THE INNER MEAS UREMENT OF THE RESIDENTIAL FLOOR AT ANY FLOOR LEVEL. THE DEFINITIO N OF 'BUILT-UP AREA' IS INCLUSIVE OF BALCONY WHICH IS NOT OPEN TERRACE. THE DVO HAD CONSIDERED THE OPEN TERRACE AS ANALOGOUS TO BALCONY/VERANDAH W ITHOUT ANY BASIS. THERE/ORE, THE LOWER AUTHORITIES WERE NOT JUSTIFIED IN REJECTING THE CLAIM OF THE ASSESSEE BY TAKING ME OPEN TERRACE AS BALCON Y/VERANDAH. THEREFORE, THE ASSESSEE HAD COMPLIED WITH ALL THE R EQUIREMENTS OF SECTION 80(IB) IN THIS REGARD. THEREFORE, THE LOWER AUTHORITIES SHOULD NOT HAVE RE JECTED THE CLAIM OF THE ASSESSEE AT LEAST ON ALTERNATE CONTENTION THAT THE ASSESSEE WOULD BE ENTITLED FOR DEDUCTION UNDER SECTION 80-1B(10) ON PRO RATA BASIS. NO OTHER POINT WAS CONSIDERED AGAINST THE ASSESSEE FOR REFUSING RELIEF UNDER SECTION 80-1B(10) BY THE LOWER AUTHORITIES. S INCE THE OPEN TERRACE IS NOT PART OF BALCONY/VERANDAH, THEREFORE, ACCORDI NG TO THE SUBMISSIONS OF THE ASSESSEE, THE BUILT UP AREA OF THE ASSESSEE WAS WITHIN THE PRESCRIBED LIMIT. 9 THE ASSESSEE FULFILLED THE CONDITIONS AND REQUIREME NT OF THE SECTION 80- 1B(1O), THEREFORE, THE CLAIM OF THE ASSESSEE FOR DE DUCTION SHOULD NOT HAVE BEEN DENIED BY THE LOWER AUTHORITIES. ACCORDIN GLY, THE ORDERS OF THE LOWER AUTHORITIES WAS TO BE SET ASIDE AND THE A SSESSING OFFICER WAS TO BE DIRECTED TO GRANT DEDUCTION UNDER SECTION 80- 1 B( 1C) AS CLAIMED BY THE ASSESSEE. [PARA 11] THE ASSESSEE'S APPEAL WAS TO BE ALLOWED. 10. THIS FACT, THEREFORE, REQUIRES VERIFICATION AT THE LEVEL OF THE ASSESSING OFFICER. THE AUTHORITIES BELOW WERE , THEREFORE, NOT JUSTIFIED IN HOLDING THAT THE ASSESSEE WAS NOT ENTITLED FOR DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. THE AUTHORITIES BELOW ARE ALSO NOT JUSTIFIED IN TAKING THE BUILT UP AREA OF THE STAIR CASE AT GROUND FLOOR AND 1 ST FLOOR FOR THE PURPOSE OF COMPUTING THE COVERED AREA PARTICULARLY WHEN NOTHIN G IS COVERED AT THE GROUND FLOOR. WE, THEREFORE, FIND SUBSTANTIAL FORCE IN THE CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE. IT MAY BE NOTED HERE THAT OTHER CONDITI ONS UNDER SECTION 80IB(10) OF THE ACT HAVE BEEN FULFILLED BY THE ASSESSEE. THEREFORE, THE ONLY ISSUE LEFT IS FOR COMPUTATION O F THE BUILT UP AREA FOR THE PURPOSE OF GIVING RELIEF TO THE ASS ESSEE. WE, THEREFORE, SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THIS ISSUE FOR A LIMITED PURPOSE TO THE FIL E OF THE ASSESSING OFFICER WITH DIRECTION TO THE ASSESSING O FFICER TO VERIFY THE BUILT UP AREA IN THE CASE OF THE ASSESSE E AND IN CASE NO CONSTRUCTION IS RAISED AT THE GROUND FLOOR TO CO VER STAIR CASE, THE ASSESSEE WOULD BE ENTITLED FOR RELIEF. THE ASSESSING OFFICER MAY MAKE JOINT INSPECTION OF THE PROPERTY I N THE PRESENCE OF ASSESSEE OR HER REPRESENTATIVE AND IN C ASE NEED ARISES, MAY ALSO TAKE HELP OF THE DVO IF THE FACT S O JUSTIFIED. 10 THE ASSESSING OFFICER SHALL, THEREFORE, PASS A SPEA KING ORDER ON THE SAME BY GIVING REASONABLE SUFFICIENT OPPORTU NITY OF BEING HEARD TO THE ASSESSEE. WE MAY ALSO NOTE HER E THAT IN RESPECT OF CATEGORY C IN WHICH 32 UNITS HAVE BEEN BUILT UP, EVEN IF THE STAIR CASE IS INCLUDED TWICE IN THE BUI LT UP ARE, THE SAME IS MENTIONED AT 1453.37 SQ.FT. MEANING THEREBY THE BUILT UP AREA EVEN IF THE STAIR CASE IS INCLUDED TWICE, W AS LESS THAN THE MAXIMUM BUILT UP AREA OF 1500 SQ.FT.. THEREFO RE, THE AUTHORITIES BELOW SHOULD HAVE NOT DENIED THE CLAIM OF THE ASSESSEE FOR DEDUCTION UNDER SECTION 80IB(10) OF TH E ACT BECAUSE THE SAME SHOULD HAVE BEEN GRANTED TO THE AS SESSEE ON PRO-RATA BASIS. THE ASSESSING OFFICER IS ACCOR DINGLY DIRECTED TO GRANT RELIEF TO THE ASSESSEE EVEN ON TH IS REASON ALSO. WE RELY UPON THE SAME DECISION OF INCOME TA X APPELLATE TRIBUNAL, AHMEDABAD BENCH IN THE CASE OF AMALTAS ASSOCIATES VS. ITO (SUPRA) IN WHICH THE TRIBUNAL FO LLOWING THE DECISION OF THE NAGPUR BENCH IN THE CASE OF ITO VS. AIR DEVELOPERS, 122 ITD 125 HELD THAT THE ASSESSEE WOUL D BE ENTITLED FOR DEDUCTION UNDER SECTION 80IB(10) OF T HE ACT ON PRO-RATA BASIS. THE ASSESSING OFFICER SHALL TAKE INTO CONSIDERATION THIS FINDING AS WELL WHILE PASSING TH E ASSESSMENT ORDER. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. 11 ITA NO.1221/CHD/2011 (ASSESSMENT YEAR 2006-07) : 12. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEAL S), CHANDIGARH DATED 29.6.2009 FOR ASSESSMENT YEAR 2006 -07. IN THIS APPEAL, THE ASSESSEE CHALLENGED THE ORDER OF L EARNED CIT (APPEALS) IN NOT GRANTING DEDUCTION UNDER SECTION 8 0IB(10) OF THE INCOME TAX ACT(IN SHORT THE ACT). THE LEARNE D CIT (APPEALS) DISMISSED THE APPEAL OF THE ASSESSEE CONS IDERING THE ISSUE TO BE IDENTICAL AS WAS DECIDED IN ASSESSMENT YEAR 2005- 06. 13. THE APPEAL IS TIME BARRED. THE ASSESSEE IN TH E APPLICATION FOR CONDONATION OF DELAY AND IN AFFIDAV IT STATED THAT THE IMPUGNED ORDER WAS SERVED AS PER ACKNOWLED GEMENT OF THE POST OFFICE ON 1.7.2009 WHICH WAS MIS-PLACED AND, THEREFORE, THE SAME COULD NOT BE ATTENDED. THE AS SESSEE EXPLAINED THAT SHE LOST HER HUSBAND IN APRIL, 2007 AND THEREAFTER BECAME VICTIM OF SERIOUS ILLNESS OF HER ONLY SON. THE ONLY ACTIVITY OF THE ASSESSEE WAS EITHER TO RUN TO HOSPITAL OR TO SEEK OPINION OF SPECIALIST FOR HER SONS TREA TMENT. THE HEALTH OF HER SON DETERIORATED AND HE IS NOW IN SEM I- VEGETATIVE STATE, WHICH PREVENTED HER FROM ATTENDIN G ANY OTHER ACTIVITY. IT IS STATED THAT THE SON OF THE ASSESS EE IS LYING DEAD, WHICH IS CLEAR FROM THE DISCHARGE SUMMARY OF FORTIS HOSPITAL, MOHALI, PGI, CHANDIGARH AND GURUNANAK DEV CHARITABLE HOSPITAL, TARN TARAN. COPIES OF THE SAM E ARE FILED. IT IS, THEREFORE, EXPLAINED THAT THAT IS NO HOPE OF RECOVERY AND THE SON OF THE ASSESSEE WAS LYING IN THE SAME STATE FOR THE 12 LAST THREE YEARS AND THE ASSESSEE IS ONLY LOOKING A FTER WITH THE HELP OF NURSES AND ATTENDANTS. THE ASSESSEE ALSO PRAYED TO ALMIGHTY TO BE KIND BY RELIEVING HER SON OF THE TOR TUROUS STATE. IT IS, THEREFORE, EXPLAINED THAT THE DELA Y IN FILING THE APPEAL MAY BE CONDONED. THE LEARNED COUNSEL FOR T HE ASSESSEE REITERATED THE SUBMISSIONS STATED IN THE A PPLICATION AND AFFIDAVIT OF THE ASSESSEE SUPPORTED BY MEDICAL CERTIFICATE. ON THE OTHER HAND, THE LEARNED D.R FOR THE REVENUE STATED THAT THE DELAY SHOULD NOT BE CONDONED. 14. ON CONSIDERATION OF THE RIVAL SUBMISSIONS AND M ATERIAL ON RECORD AND CONSIDERING THE SERIOUS ILLNESS OF TH E SON OF THE ASSESSEE, WE ARE OF THE VIEW THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FROM FILING THE APPEAL WITHIN T HE PERIOD OF LIMITATION. THEREFORE, THE DELAY IN FILING THE APP EAL IS CONDONED PARTICULAR WHEN SIMILAR ISSUE IS INVOLVED IN ALL THE APPEALS. THE DELAY IN FILING THE APPEAL IS, THEREF ORE, CONDONED. 15. THE LEARNED CIT (APPEALS) REJECTED THE CLAIM OF THE ASSESSEE FOR DEDUCTION UNDER SECTION 80IB(10) OF TH E ACT BY FOLLOWING THE ORDER FOR ASSESSMENT YEAR 2005-06. I N ASSESSMENT YEAR 2005-06, WE HAVE RESTORED THE ISSUE OF DEDUCTION UNDER SECTION 80IB OF THE ACT TO THE ASSE SSING OFFICER FOR VERIFICATION OF THE BUILT UP AREA. A CCORDINGLY, THE ORDERS OF THE AUTHORITIES BELOW IN THIS YEAR ARE AL SO SET ASIDE AND THE ASSESSING OFFICER IS DIRECTED TO FOLLOW THE ORDER OF THE TRIBUNAL FOR ASSESSMENT YEAR 2005-06 ABOVE AND PASS A 13 SPEAKING ORDER ACCORDINGLY. 16. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. ITA NO.3/CHD/2014 (ASSESSMENT YEAR 2006-07) : 17. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEAL S), CHANDIGARH DATED 5.11.2013 FOR ASSESSMENT YEAR 2006 -07, CHALLENGING THE LEVY OF PENALTY UNDER SECTION 271(1 )(C) OF THE ACT. THE ASSESSING OFFICER LEVIED PENALTY ON REFU SAL OF GRANT OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. T HE LEARNED CIT (APPEALS) CONFIRMED THE LEVY OF PENALTY. SINC E IN ASSESSMENT YEAR 2006-07, THE ISSUE OF QUANTUM IS RE STORED TO THE FILE OF THE ASSESSING OFFICER, THEREFORE PENALT Y IS NOT LEVIABLE AT THIS STAGE. THE ORDERS OF THE AUTHORI TIES BELOW ARE, THEREFORE, SET ASIDE AND THE LEVY OF PENALTY I S CANCELLED. THE ASSESSING OFFICER IS AT LIBERTY TO TAKE NECESSA RY ACTION, IF SO ADVISED IN ACCORDANCE WITH LAW, AFTER PASSING TH E ASSESSMENT ORDER IN THE YEAR UNDER CONSIDERATION. 18. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ITA NO.5/CHD/2014 (ASSESSMENT YEAR 2006-07) : 19. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEAL S), CHANDIGARH DATED 5.11.2013 FOR ASSESSMENT YEAR 2007 -08. 14 20. ON GROUND NOS. 1 AND 2, THE ASSESSEE CHALLENGED THE ORDERS OF THE AUTHORITIES BELOW IN DENYING THE DEDU CTION UNDER SECTION 80IB(10) OF THE ACT. THE LEARNED C IT (APPEALS) FOLLOWING THE ORDER FOR ASSESSMENT YEAR 2005-06 DIS MISSED THE SAME CLAIM OF THE ASSESSEE. IN ASSESSMENT YEAR 20 05-06, WE HAVE RESTORED THE MATTER TO THE FILE OF THE ASSESSI NG OFFICER WITH DIRECTION TO VERIFY THE BUILT UP AREA. THERE FORE, FOLLOWING THE REASONS FOR DECISION IN ASSESSMENT YE AR 2005- 06, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELO W AND SIMILARLY RESTORE THE ISSUE OF DEDUCTION UNDER SECT ION 80IB(10) OF THE ACT TO THE FILE OF THE ASSESSING OF FICER FOR PASSING THE ORDER AFRESH AS WAS DIRECTED IN ASSESSM ENT YEAR 2005-06. THESE GROUNDS OF APPEAL ARE, THEREFORE, ALLOWED FOR STATISTICAL PURPOSES. 21. ON GROUND NO.3, THE ASSESSEE CHALLENGED THE DISALLOWANCE OF RS.14,25,362/- ON ACCOUNT OF COST O F CONSTRUCTION OF PROPERTY. THE ASSESSING OFFICER O BSERVED THAT THE ASSESSEE HAS SHOWN INCOME FROM SHORT TERM CAPIT AL GAINS AND THE DETAILS OF THE SAME ARE MENTIONED IN THE OR DERS OF THE ASSESSING OFFICER AND THE LEARNED CIT (APPEALS). THE ASSESSEE IN RESPECT OF SALE OF SHOP AND SHOWROOM, 1 ST FLOOR AT DHAKOLI CLAIMED THE COST OF CONSTRUCTION IN A SUM O F RS.14,25,362/- AS ON 1.4.2006. THE ASSESSING OFFI CER NOTED THAT NO CONSTRUCTION COST DETAILS HAVE BEEN FURNISH ED BY THE ASSESSEE. NO PROOF OF ACQUISITION OF THESE PROPER TIES HAVE BEEN FILED. THEREFORE, IN THE ABSENCE OF THE DETA ILS, NO BENEFIT OF COST OF CONSTRUCTION CAN BE ALLOWED TO T HE 15 ASSESSEE. THE ADDITION WAS ACCORDINGLY MADE OF RS.14.25,362/-. THE LEARNED CIT (APPEALS) ALSO CO NFIRMED THE ADDITION BECAUSE NO EVIDENCE OF INVESTMENT IN T HE COST OF CONSTRUCTION HAS BEEN FURNISHED EVEN IN THE APPELLA TE PROCEEDINGS. 22. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. THE LEARNED COUNSEL FOR ASSESSEE SUBMITTED THAT THE COST OF CON STRUCTION WAS COMING UP FROM THE PRECEDING ASSESSMENT YEAR AN D COMPLETE DETAILS HAVE BEEN MENTIONED IN THE BOOKS O F ACCOUNT, WHICH HAVE NOT BEEN CONSIDERED BY THE AUTHORITIES B ELOW. ON THE OTHER HAND, THE LEARNED D.R FOR THE REVENUE REL IED UPON THE ORDERS OF THE AUTHORITIES BELOW. 23. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE A RE OF THE VIEW THAT THE MATTER REQUIRES RECONSIDERATION AT TH E LEVEL OF THE ASSESSING OFFICER. SINCE IT IS CLAIMED THAT C OMPLETE DETAILS OF COST OF CONSTRUCTION HAVE BEEN MENTIONED IN THE BOOKS OF ACCOUNT AND BOOKS OF ACCOUNT HAVE BEEN PR ODUCED BEFORE THE ASSESSING OFFICER AT ASSESSMENT STAGE, T HEREFORE, THIS FACT COULD HAVE BEEN VERIFIED BY THE ASSESSING OFFICER FROM THE BOOKS PRODUCED BY THE ASSESSEE. THEREFOR E, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTO RE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH DIR ECTION TO REDECIDE THIS ISSUE BY VERIFYING THE FACT OF MENTIO NING OF COST OF CONSTRUCTION IN THE BOOKS OF ACCOUNT BY GIVING R EASONABLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 24. IN THE RESULT, THIS GROUND OF APPEAL OF THE ASS ESSEE IS 16 ALLOWED FOR STATISTICAL PURPOSES. 25. ON GROUND NO.4, THE ASSESSEE CHALLENGED ADDITIO N OF RS.20 LACS ON ACCOUNT OF SALE OF PLOT AND THIS GROU ND IS NOT PRESSED BY THE LEARNED COUNSEL FOR ASSESSEE. THER EFORE, THE SAME IS DISMISSED. 26. IN THE RESULT, THIS APPEAL OF THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. 27. IN THE RESULT, THE APPEALS OF THE ASSESSEE IN I TA NO.3/CHD/2014, ITA NO.1221/CHD/2011 AND ITA NO.5/CHD/2014 ARE ALLOWED FOR STATISTICAL PURPOSES, WHEREAS THE APPEAL OF THE ASSESSEE IN ITA NO.4/CHD/2014 IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 16 TH DAY OF DECEMBER, 2014. SD/- SD/- (T.R.SOOD) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 16 TH DECEMBER, 2014 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH