Piyush Buildwell India Ltd., New Delhi V. DCIT, CC- I, Faridabad

ITA 4238/DEL/2017

AI Insights

The case involves Piyush Buildwell India Ltd., which appealed against the orders of the Commissioner of Income-tax (Appeals) disallowing a deduction claim under section 80-IB for the assessment years 2008-09 to 2011-12. The primary issue was whether the residential units qualified for the deduction based on their built-up area. The Assessing Officer initially disallowed the deduction, and upon appeal, the Commissioner upheld this decision after a site verification confirmed that the flats' built-up area exceeded 1000 sq. ft. The Tribunal dismissed the appeals, agreeing with the lower authorities' findings and noting the Assessee's failure to provide substantial evidence to support their claim.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 116377 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-12-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 13-12-2022
• Assessment Year: 2008-2009
• Appeal Filed On: 26-06-2017
• Other Referred Cases: CIT vs. Amattas Associates
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘F’ NEW DLEHI BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI N.K. CHOUDHRY, JUDICIAL MEMBER ITA Nos. 4238, 4619, 4620 & 4621/Del/2017 Assessment Years: 2008-09, 2009-10, 2010-11 & 2011-12 Piyush Buildwell India Ltd., 1 st Floor, Piyush Global-I, Plot No. 5, YMCA Chowk, NH-2, Opp. Escorts Mujesar Metro Station, Faridabad. PAN: AADCP7767M VersuS DCIT, Central Circle-1, Faridabad. (Appellant) (Respondent) Appellant by : None Respondent by: Sh. T. Kipgen, Ld. CIT- DR Date of hearing : 14.12.2022 Date of order : 28.12.2022 ORDER PER BENCH: These appeals have been preferred by the Assessee against the orders dated 21.03.2017 and 28.04.2017, impugned herein, passed by the learned Commissioner of Income-tax (Appeals)-3, Gurgaon (in short “Ld. Commissioner”) u/s. 250 of the Income-tax Act, 1961 (in short ‘the Act’) for the assessment years 2008-09 to 2011-12 respectively. ITA Nos. 4238, 4619, 4620 & 4621/Del/2017 2 2. In all these appeals, the issues and facts involved are almost similar, therefore, for the sake of brevity, the same have been taken together for adjudication by this composite order. We are deciding ITA No. 4238/Del./2017 as a lead case and its result shall be applicable mutatis mutandis to all the appeals under consideration. 3. Various notices including the notice for the date of hearing on 14.12.2022 have been sent to the assessee, however, the same received back by the Registry with the remark of Postal Authorities “firm is closed”. From the record, it appears that the notice was served to the Assessee by the Revenue Department on the direction of the Hon’ble Bench, at the latest address of the Assessee through ITBA Portal as well as to the existing address. However none appeared on behalf of the Assessee, thus, considering the said factual position, we are inclined to decide these appeals as ex-parte. ITA No. 4238/Del/2017 : 4. In the instant case, in first round of litigation, an addition of Rs.8,66,85,089/- was made by disallowing the claim made by the Assessee u/s. 80-IB of the Act. As per the provisions of section 80-IB of the Act, the deduction is not admissible in respect of the flats situated within 25 kilometer from the Municipal Limits of Delhi and Mumbai which are having built-up area more than 1000 sq. feet. The Assessing Officer rejected ITA Nos. 4238, 4619, 4620 & 4621/Del/2017 3 the deduction u/s. 80-IB of the Act on the premise that the Assessee did not satisfy the conditions enumerated u/s. 80-IB of the Act. 5. On appeal, the ld. Commissioner vide order dated 28.01.2011 in Appeal No. 58-IT/CIT(A)-I/Ldh/2009-10 directed the Assessing Officer to verify the factual position regarding the area of residential units having a built-up area upto 1000 sq. ft. and grant the benefit of proportionate deduction accordingly. 5.1 In compliance to the directions of ld. CIT(Appeals), the Assessing Officer visited the concerned residential units of the Assessee company situated at sector 89, Faridabad and took measurement of 2 BHK flats in Block –N & L and also obtained a copy of map from the Assessee, but the exact measurement could not be taken due to non-availability of technical person. To confirm the claim in this regard, a letter to the District Valuation Officer, New Delhi was also written vide letter No. 54 dated 19.04.2011 to depute a technical person but the said letter was received back in original from the DVO, New Delhi with the remarks that the matter falls under the jurisdiction of DVO, Jaipur. Thereafter, the Assessing Officer issued various letters to various authorities including the District Town Planner, Faridabad, however, did not get any proper response. Ultimately, keeping in view the urgency of the matter, the Assessee was also requested several times to furnish all the ITA Nos. 4238, 4619, 4620 & 4621/Del/2017 4 documentary evidences in this regard. In response thereto, the Assessee though filed its reply dated 26.03.2012, but without any documentary evidence in support of its claim. In spite of best efforts, made by the Assessing Officer, no technical person was deputed to confirm the area of two bed room facts, which are less than 1000 sq. ft. Therefore, in absence of relevant documentary evidence in support of the Assessee’s claim, and non-cooperative attitude of the Assessee with the department to furnish the complete details, the Assessing Officer disallowed the claim of Rs.8,66,85,089/- made by the Assessee u/s. 80-IB of the Act and consequently, added the same in the income of the Assessee. 6. The Assessee, being aggrieved, preferred first appeal before the ld. Commissioner who sought remand report from the Assessing Officer and directed the Assessing Officer to make site verification. 6.1 The Assessing Officer in compliance to the said direction, carried out the measurement of two bed room sets in Piyush Heights Society, Sector-89, Faridabad, from the AE, CPWD, and stated that two bed room flats were picked up at random basis in ‘O’ block of different flats and the built up area was found to be 101.325 sqm (1090.257 sq. ft.) at the first floor flats and 93.427 sqm (1005.27 sq.ft.) at the 4 th floor, which is more than 1000 sq. ft. and hence, makes the appellant ineligible for deduction u/s. 80-IB of the Act. In the report, no ITA Nos. 4238, 4619, 4620 & 4621/Del/2017 5 common area has been included in the measurement of flats, however, balconies and open area attached to the flats have been included. 6.2 During the appellate proceedings before the ld. Commissioner, the Assessee controverted the said report filed by the Assessing Officer by submitting that reference has been made to certificate of Engineer, M/s. R.K. & Associates, who has certified that the built-up area is less than 1000 sq. ft. and some items constituting the part of the built-up area needs to be excluded from the calculation made by the CPWD. 6.3 The ld. Commissioner rejected the said contention of the assessee by holding : (i) the certificate from private engineers, M/s. R.K. Associates cannot be relied upon to contradict the report of CPWD. (ii) Secondly, the exclusions mentioned in the reply by the Assessee have been considered by the CPWD while giving its report regarding measurement of flats in accordance with the parameters for measurement. (iii) Thirdly, the judgment of Hon’ble Gujrat High Court discussed earlier in the order specifically held in the case of CIT vs. Amattas Associates that built-up area means the inner measurements of the residential unit at the floor level, including the projections and balconies, as increased by the thickness of walls, but does not include the common areas shared with other units. (iv) Fourthly, CPED report is in accordance with the above judgment. The ld. Commissioner, ultimately held that the built up area of the two bed room flats are more than 1000 ITA Nos. 4238, 4619, 4620 & 4621/Del/2017 6 sq. ft. and hence, the appellant is not eligible for deduction u/s. 80-IB of the Act. 7. We have given thoughtful consideration to the determinations made by the ld. Commissioner and observe that the ld. Commissioner not only simply relied upon the order passed by the Assessing Officer, but also got verified the facts through site inspection and on the basis of full enquiry report decided the issue under consideration. As it appears from the orders passed by the authorities below, the Assessee in spite of availing ample opportunities, failed to substantiate its claim before the authorities below. Even before us as well, the Assessee did not appear in spite of various notices. In the absence of substantive and corroborating materials in support of Assessee’s claim u/s. 80-IB of the Act, we do not find any reason and/or material to controvert the findings of the ld. Commissioner. Consequently, we are inclined not to interfere in the impugned order as the same does not suffer from any perversity, illegality and/or impropriety. Accordingly, the appeal filed by the Assessee stands dismissed. In view of our decision in ITA No. 4238/Del/2017, all the appeals filed by the Assessee are also liable to be dismissed. ITA Nos. 4238, 4619, 4620 & 4621/Del/2017 7 10. In the result, all the appeals filed by the Assessee stand dismissed. Order pronounced in the open court on 28/12/2022. Sd/- Sd/- (ANIL CHATURVEDI) (N.K. CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL MEMBER *aks/-