Income Tax Officer,Ward 8(1), Nagpur V. M/s. New High Rise Construction, Nagpur

ITA 4/NAG/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1916 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 11 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-01-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 19-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAMESH DAWANDE
• Assessee Lawyers: M MANI
• Section: 80IB

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR , BENCH , ( E - COURT), MUMBAI , BEFORE SHRI R.K.GUPTA , J M & SHRI D.KARUNA KAR RAO , A M ITA NO. 04 / N AG / 20 1 1 ( ASSESSMENT YEAR : 200 6 - 20 0 7 ) ITO, WARD 8(1), MECL BUILDING,SEMINARY HILLS, AMBEDKAR BHAWAN, NAGPUR (MAHARASHTRA) - 440 006 VS. M/S NEW HIGH RISE CONSTRUCTION, NEW SNEHA NAGAR, NEAR COCA COLA F ACTORY, WARDHA ROAD, NAGPUR (MAHARASHTRA) PAN/GIR NO. : A A FFN 6319 Q ( APPELLANT ) .. ( RESPONDENT ) /REVENUE BY : SHRI RAMESH D AWANDE /A SSESSEE BY : SHRI M.MANI DATE OF HEARING : 1 3 TH DEC ., 2012 DATE OF PRONOUNCEMENT : 2 ND JAN . ,201 3 O R D E R P ER SHRI R.K.G UPTA, JM : TH E DEPARTMENT HAS PREFERRED THIS APPEAL BEFORE THE ITAT NAGPUR BENCH, NAGPUR, AGAINST THE ORDER DATED 29 - 11 - 2010 OF LEANED CIT(A) - II , NAGPUR (MAHARASHTRA) RELA TING TO THE ASSESSMENT YEAR 200 6 - 0 7 , WHICH HAS BEEN HEARD THROUGH E - COURT, MUMBAI . 2 . THE DEPARTMENT IS OBJECTING THE ACTION OF THE LEARNED CIT(A) IN ALLOWING THE DEDUCTION U NDER SECTION 80IB(10). ITA NO. 04 /20 11 2 3 . THE AO DISALLOWED THE DEDUCTION UNDER SECTION 80IB (10) OF RS. 8,60, 684/ - BY OBSERVING THAT THE ASSESSEE HAS VIOLATED CONDITIONS OF SECTION 80IB (10) AS THE ASSESSEE HAS CONSTRUCTED COMMERCIAL AREA ON 7000 SQ.FT., WHICH EXCEED BUILT UP AREA OF 1500 SQ.FT. IN PLOT NOS.11, 12, 22, 38 & 39. VARIOUS DETAILS WERE FILED BEFORE THE LEARNED CIT(A) . RELIANCE WAS PLACED ON THE DECISION OF THE TRIBUNAL IN THE CASE OF ITO VS. AIR DEVELOPERS, PASSED IN ITA NO. 447/NAG/2007, WHERE ON IDENTICAL FACTS , THE ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL. LEARNED CIT(A) AFTER CONSIDERING THE SUBMISSION AND PERUSING THE MATERIAL ON RECORD, HELD THAT THE DECISION OF THE TRIBUNAL IS APPLICABLE ON THE FACTS OF THE PRESENT CASE. LEARNED CIT(A) NO TED THAT THE CERTAIN UNITS EXCEEDED 1500 SQ.FT. AND IN THIS REGARD THE TRIBUNAL HAS HELD THAT THE ASSESSEE IS ENTITLED DEDUCTION UNDER SECTION 80IB ON A PROPORTIONATE BASIS . THEREFORE, THE CIT(A) DIRECTED TO ALLOW THE DEDU CTION UNDER SECTION 80IB(1 0 ) ON A PROPORTIONATE BASIS AFTER EXCLUDING THOSE UNITS, WHICH ARE EXCEEDED THE PRESCRIBED LIMIT OF 1500 SQ.FT. 4 . LEARNED DR PLACED RELIANCE ON THE ORDER OF THE ASSESSING OFFICER HERE BEFORE THE TRIBUNAL. 5 . ON THE OTHER HAND, LEARNED AR OF THE ASSESSEE HAS P LACED RELIANCE ON THE ORDER OF THE LEARNED CIT(A) . 6 . AFTER CONSIDERING THE ORDER OF THE A SSESSING OFFICER AND CIT(A) , WE FOUND NO INFIRMITY IN THE FINDING OF THE LEARNED CIT(A) , WHO HAS ALLOWED THE ISSUE IN FAVOUR OF THE ASSESSEE IN PART FOLLOWING THE O RDER ITA NO. 04 /20 11 3 OF THE TRIBUNAL ON IDENTICAL FACTS. ACCORDINGLY , THE ORDER OF THE LEARNED CIT(A) IS HEREBY CONFIRMED. 7 . RESULTANTLY , APPEAL OF THE DEPARTMENT IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 2 ND DAY OF JAN . 2012. 201 3 SD/ - SD/ - ( ) ( D.KARUNAKAR RAO ) ( ) ( R.K.GUPTA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 02 / 01 / 201 3 . /PKM , PS COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2 . / THE RESPONDENT. 3. / THE CIT(A) , MUMBAI / NAGPUR . 4. / CIT 5. / DR, ITAT, MUMBAI / NAGPUR . 6. GUARD FILE. //TRUE COPY// / BY ORDER, ( DY./ASSTT. REGISTRAR) / ITAT, MUMBAI