Deputy Commissioner of Income tax, Pune V. M/s. Kumar Builder Consortium, Pune

ITA 430/PUN/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0913 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 1 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-03-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 20-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NANDITA KANCHAN
• Keywords: Set aside
• Section: 143(3); 147; 148

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI PARTHA SARATHI CHAUDHURY, JM . / ITA NOS.430 & 431/PUN/2017 / ASSESSMENT YEARS : 2007-08 AND 2012-13 THE DY. C OMMISSIONER OF I NCOME TAX , CIRCLE 7, PUNE. . / APPELLANT V/S M/S. KUMAR BUILDER CONSTRUCTION, 10 TH FLOOR, KBC, CTS-29, BUND GARDEN ROAD, CAMP, PUNE 411001. PAN : AAHFK7992A. . / RESPONDENT ASSESSEE BY : SHRI NIKHIL PATHAK. REVENUE BY : MS. NANDITA KANCHAN / ORDER PER ANIL CHATURVEDI, AM : THESE TWO APPEALS FILED BY THE REVENUE ARE EMANATING OUT OF A CONSOLIDATED ORDER OF COMMISSIONER OF INCOME TAX (A), PUNE- 5, PUNE DATED 12.10.2016 FOR THE ASSESSMENT YEARS 2007-08 AND 2012-13, RESPECTIVELY. 2. BEFORE US AT THE OUTSET, BOTH THE PARTIES SUBMITTED T HAT THOUGH THE APPEALS FILED BY THE REVENUE ARE FOR TWO DIFFERENT ASSE SSMENT YEARS BUT THE FACTS AND ISSUES INVOLVED IN BOTH THE APPEALS AR E IDENTICAL EXCEPT FOR THE ASSESSMENT YEAR AND THE AMOUNTS INVOLVE D AND THE / DATE OF HEARING : 27.02.2019 / DATE OF PRONOUNCEMENT: 26.03.2019 2 LD.CIT(A) HAS ALSO PASSED A CONSOLIDATED ORDER AND THEREFO RE THE SUBMISSIONS MADE BY THEM WHILE ARGUING ONE APPEAL WOULD BE EQUALLY APPLICABLE TO THE OTHER APPEAL ALSO AND THUS, BOTH THE A PPEALS CAN BE HEARD TOGETHER. IN VIEW OF THE AFORESAID SUBMISSIONS OF B OTH THE PARTIES, WE, FOR THE SAKE OF CONVENIENCE, PROCEED TO DISPOS E OF BOTH THE APPEALS BY A CONSOLIDATED ORDER. 3. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RE CORD ARE AS UNDER :- ASSESSEE IS A PARTNERSHIP FIRM STATED TO BE ENGAGED IN THE BUSINESS OF PROMOTER AND BUILDERS. ASSESSEE ELECTRONIC ALLY FILED ITS ORIGINAL RETURN OF INCOME FOR A.Y. 2007-08 ON 31.10.2007 DEC LARING TOTAL INCOME OF RS.1,13,50,042/-. THE ASSESSMENT WAS INIT IALLY PROCESSED U/S 143(3) OF THE ACT ON 30.12.2009 BY DENYING THE CLAIM OF DEDUCTION U/S 80IB(10) OF RS.6,85,84,507/-. SUBSEQUENTLY, T HE CASE WAS RE-OPENED BY ISSUING NOTICE U/S 148 OF THE ACT ON 2 9.03.2014 WHICH WAS SERVED ON THE ASSESSEE. THEREAFTER, THE CASE WAS TAKEN UP FOR SCRUTINY AND ASSESSMENT WAS FRAMED U/S 143 R.W.S. 147 OF THE ACT VIDE ORDER DT.13.03.2015 AND THE TOTAL INCOME WAS D ETERMINED AT RS.21,97,74,320/-. AGGRIEVED BY THE ORDER OF AO, ASSESSE E CARRIED THE MATTER BEFORE LD.CIT(A), WHO VIDE CONSOLIDATED ORDER D ATED 12.10.2016 FOR A.YS. 2007-08 AND 2012-13, GRANTED SUBSTA NTIAL RELIEF TO THE ASSESSEE. AGGRIEVED BY THE ORDER OF LD.CIT(A), RE VENUE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING EFFECTIVE GROUND : WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CAS E, THE LD.CIT(A) WAS RIGHT IN ALLOWING THE DEDUCTION U/S 80IB(10) OF THE ACT, 1961 ON PRO RATA BASIS IN RESPECT OF KUMAR SHANTINIKETAN PROJECTS. 3 3.1. SIMILAR GROUND HAS BEEN RAISED BY THE REVENUE IN IT A NO.431/PUN/2017 FOR A.Y. 2012-13. 4. DURING THE COURSE OF RE-ASSESSMENT PROCEEDINGS, AO N OTICED THAT ASSESSEE HAD CLAIMED DEDUCTION U/S 80IB(10) OF THE A CT FOR THE PROJECT KUMAR SHANTINEKATAN WHEREIN TWO FLATS IN D B UILDING HAVING GARDEN AREA OF 236.03 SQ.FT WAS NOT INCLUDED AND CO UNTED WHILE MEASURING BUILT UP AREA OF THOSE SAID TWO FLATS. HE NOTED THAT IF THE GARDEN AREA WAS INCLUDED IN THE BUILT UP AREA, THE TOTA L BUILT UP AREA OF THE TWO FLATS WOULD EXCEED THE STIPULATED AREA OF 150 0 SQ.FT THEREBY VIOLATING THE PROVISIONS OF SEC.80IB(10) OF THE ACT. THE AS SESSEE WAS THEREFORE SHOW CAUSED AS TO WHY THE CLAIM OF DEDUCTION S HOULD NOT BE DISALLOWED. THE ASSESSEE MADE SUBMISSIONS WHICH WERE NOT FOUND ACCEPTABLE TO THE AO. AO WAS OF THE VIEW THAT FOR CLAIM ING DEDUCTION, ALL THE CONDITIONS STIPULATED IN SEC.80IB(10) OF THE ACT HAS T O BE FOLLOWED IN TOTO. IN THE PRESENT CASE, HE NOTED THAT S INCE TWO FLATS WERE HAVING MORE THAN 1500 SQ.FT, THERE WAS VIOLATION OF TH E CONDITION. HE ALSO NOTED THAT IN A.Y. 2008-09, SIMILAR ISSUE WAS INVOLVE D IN ASSESSEES CASE AND AO HAS DISALLOWED THE CLAIM OF DEDUC TION. HE THEREFORE FOLLOWING THE ORDER OF HIS PREDECESSOR DENIED THE ENTIRE CLAIM OF DEDUCTION OF RS.13,98,39,769/- U/S 80IB(10) OF THE ACT. A GGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD.CIT(A), WHO NOTED THAT THE TRIBUNAL IN ASSESSEES OWN CASE IN A.Y. 20 08-09 AND 2009-10 VIDE ORDER DT.15.04.2013 HAS DIRECTED TO ALLOW TH E DEDUCTION U/S 80IB(10) OF THE ACT ON PRO RATA BASIS WITH REFERENCE TO THE QUALIFYING RESIDENTIAL UNITS AND THE DISALLOWANCE BE RESTRICTE D ONLY TO THOSE RESIDENTIAL UNITS WHERE THE BUILT UP AREA EXCEEDS T HE PRESCRIBED 4 LIMIT. HE THUS DECIDED THE ISSUE IN ASSESSEES FAVOUR BY OBSERVING AS UNDER : 4 . 3 I HAVE CAREFULLY PERUSED THE MATERIAL ON RECORD A N D SUBMISSION MADE B Y T HE APPELLANT AND THE ITAT PUNE'S ORDER DATED 1 5 . 04.2013 IN APPELLANT'S CAS E . TH E IS S UE AT HAND HAS BEEN DECIDED BY THE HON ' BLE ITAT IN APPELLANT'S CASE VIDE ORDER ITA N O . 1164/PN/2012-A . Y . 2008-09 AND ITA NO . 2210/PN/2012- A . Y. 2009-10 WHERE IN T HE FOLLOWING PARAGRAPHS IT HAS BEEN HELD AS UND E R:- ' 9 . AFTER GOING THROUGH THE ABOVE SUBMISSION AND MATERI AL ON RECORD, WE FIND T HAT THE ASSESSEE HAS CLAIMED DEDUCTION U/S . 80IB(10) IN RESPECT OF PROJ E CT KUM AR SHANTINIKETAN. ACCORDING TO THE ASSESSING OFFICER, BUILT UP AREA OF TWO FLATS ( FLA TS N O .3 AND 4 IN BUILDING 'D' EXCEEDED 1500 SQ . FT . WH I CH IS NOT IN DISPUTE . NOW TH E A L TE RNATE CONTENTION BEFORE US IS WHETHER DEDUCTION SHOULD BE ALLOWED ON PROPO R TIONAT E B ASIS IN RESPECT OF UNITS WHOSE BUILT UP AREA IS LESS THAN 1500 SQ. FT. WE FIND THAT ITAT , P UNE A BENCH IN ROHAN HOMES IN ITA . NO . 42 3 /PN/2011 DATED 31 . 03.2013 WH E R E I N T R IBUNAL HAS HELD AS UNDER: '11 . WE HAVE CAREFULLY CONSIDERED THE A F ORESA I D PLEA SE T UP BY THE L EARN E D C IT -D R. ON A CAREFUL READING OF THAT THE ENTIRE JUDGMENT OF BOMBAY HIGH COURT I N TH E CA S E OF VANDANA PROPERTIES (SUPRA) , WE DO NOT FIND ANY - SUPPORT TO THE PROPOS ITIO N THAT PROPORTIONATE DEDUCTION U/S 80IB(10) OF THE .. 12 ............... . 13 THE C ALCUTTA BENCH OF THE TRIBUNAL IN THE CASE OF BENGAL AMBUJ A H OUS I NG DEVELOPMENT LTD . (SUPRA) HELD AS UNDER:- 14 ............ . 15 ............ . 16 ............. 17.. 18. NOTHING CONTRARY WAS BROUGHT TO OUR KNOWLEDGE AND A BOVE DECISION IN ROHAN HOMES (SUPRA) LAID DOWN THAT ASS ESSEE WILL NOT BE ELIGIBLE FOR DEDUCTION IN R ES P ECT TO THE UNITS EXCEEDING PRESCRIBED LIMIT , BUT HE ' WILL BE ENTITLED FOR BALANCE RESIDENTIAL UNITS WHICH ARE WITHIN THE PRESCRIBED L I MITS OF SIZE OF 1500 SQ. FT. AS APPLICABLE TO THE PUNE MUNICIPAL CORPORATION. W E FIND THAT THE ITAT PUNE A BENCH IN THE CASE OF ANKIT ENTERP RISES VS. ITO AND OTHERS, ITA NO.156/PN/2011, HAS ALSO HELD AS UN DER :- 16. RESPECTFULLY FOLLOWING THE DECISION OF THE TR IBUNAL IN THE CASE OF D. S. KULKARNI DEVELOPERS LTD. (SUPRA).. 17. SO FAR AS THE DECISION RELIED ON BY THE LEARNED DR WE FIND THOSE ARE DISTINGUISHABLE AND NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE .. 18. SO FAR AS THE DECISION OF THE JURISDICTIONAL HI GH COURT IN THE CASE OF VANDANA PROPERTIES (SUPRA) IS CONCERNED WE 5 19. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED AND THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLO WED. 9.1 IN VIEW OF ABOVE, WE FIND THAT THE ITAT PUNE BE NCH IN THE CASE OF ROHAN HOMES (SUPRA) CONSIDERED ALL THE DECISION AND HELD THAT PRORATA DEDUCTION IS TO BE ALLOWED. IN THE SAID CASE, TRIBU NAL HAS DISCUSSED THE DECISION OF HON'BLE BOMBAY HIGH COURT IN THE CASE O F VANDANA PROPERTIES WHICH WAS RELIED UPON BY THE LD. DEPARTM ENTAL REPRESENTATIVE, INTER ALIA OBSERVED THAT THE SAID D ECISION OF HON'BLE BOMBAY HIGH COURT IN VANDANA PROPERTIES IS NOT APPL ICABLE TO THE ISSUE OF PRORATA DEDUCTION SINCE QUESTION INVOLVED WAS EN TIRELY DIFFERENT. IN PARA 11 OF ROHAN HOMES (SUPRA), THE ONLY ISSUED BEF ORE THE HON'BLE HIGH COURT WAS AS TO WHETHER CONSTRUCTION OF ONE BU ILDING CONTAINING MULTIPLE RESIDENTIAL UNITS CAN BE CONSID ERED AS PROJECT BY ITSELF. SO THE DECISION OF VANDANA PROPERTIES DOES NOT HELP THE REVENUE. THIS VIEW IS FORTIFIED BY THE DECISION OF THE ITAT MUMBAI BENCH IN EKTA PROMOTERS PVT. LTD. 3649/MUM/2009 DATED 25.05.2011 PERTAINING TO AY. 2004-05 RELYING UPON ITAT KOLKATA BENCH HAS AS ALSO THE DECISION IN THE CASE OF BRIGADE ENTERPRISES, IT HAS BEEN HEL D THAT DEDUCTION U/S 80IB(10) WAS TO BE ALLOWED ON PRORATA BASIS WITH RE FERENCE TO QUALIFYING RESIDENTIAL UNITS AND ASSESSEE WOULD NOT BE DENIED CLAIM FOR DEDUCTION U/S 80IB(10) IF SOME OF ITS RESIDENTIAL UNITS ARE O F BUILT UP AREA EXCEEDING PRESCRIBED LIMIT IN CLAUSE (C) OF SECTION 80IB(10) OF THE ACT. .. IT IS ALSO CLARIFIED THAT MADRAS HIGH COURT IN THE CASE OF VISHWAS PROMOTERS 81 DTR 68 HAS HELD THAT EVEN IF BUILT UP AREA OF FEW UNITS EXCEED 1500 SQ. FT. ASSESSEE WOULD NOT LOSE DEDUCTI ON IN ENTIRELY AND PRORATE DEDUCTION WOULD BE ALLOWED. THIS TAKES CARE OF THE OBJECTION OF THE LD. DEPARTMENTAL REPRESENTATIVE IN THIS REGARD. IN VIEW OF ABOVE DISCUSSION WE SET ASIDE THE ORDER OF THE CIT(A) ON THE ISSUE AND DIRECT THE ASSESSING OFFICER TO RE-WORK AND ALLOW DEDUCTIO N U/S 80IB(10) OF THE ACT TO THE ASSESSEE.' 4.4 IN VIEW OF THE ABOVE FACTS AND FOLLOWING THE D ECISION OF THE HON'BLE PUNE ITAT IN THIS REGARD FOR A.YRS. 2008-09 & 2009- 10 IN APPELLANT'S OWN CASE, THE ASSESSING OFFICER IS DIRECTED TO REWO RK THE DEDUCTION IN RESPECT OF THE APPELLANT'S PROJECT 'KUMAR SHANTINIK ETAN' AS PER DIRECTIONS ISSUED BY THE HON'BLE ITAT IN ITS ORDER DATED 15.04.2013. GROUND OF APPEAL NO.1 RAISED BY THE APP ELLANT IS THEREFORE, HELD TO BE ALLOWED. THE APPELLANT SUCCEE DS IN GROUND NO.1 FOR BOTH THE YEARS. 4.1. AS FAR AS A.Y. 2012-13 IS CONCERNED, AO NOTED THAT ASSESSEE HAD CLAIMED DEDUCTION OF RS.2,82,89,304/- U/S 80IB(10) OF THE ACT FOR THE PROJECT KUMAR SHANTINIKETAN. IT WAS NOTICED THAT THE FLATS BEARING NOS.3 AND 4 AT D BUILDING WITH GARDEN AREA OF 236.03 SQ. FT AND THE GARDEN AREA WAS NOT CONSIDERED IN THAT BUILT UP AREA OF THE FLATS. AO HAD OBSERVED THAT IF THE GARDEN AREA WAS INCLUDED IN TH E BUILT UP AREA THEN THE MAXIMUM PERMISSIBLE BUILT UP AREA WOULD EXCEED TH E MANDATORY REQUIREMENT PRESCRIBED U/S 80IB(10) OF THE ACT . HE 6 ACCORDINGLY DENIED THE CLAIM OF DEDUCTION U/S 80IB(10) OF T HE ACT FOR THE ENTIRE PROJECT. HE ALSO NOTED THAT ASSESSEE HAS CLAIMED RS.12,91,69,257/- U/S 80IB(10) OF THE ACT FOR THE PROJECT KUMAR KRUTI WHICH COMPRISES OF 5 BUILDINGS. HE NOTICED THAT IN A.Y . 2008- 09, AO HAD OBSERVED THAT THE PROJECT OF KUMAR KRUTI WAS FOUND TO BE PART OF ONE BIGGER PROJECT KUMAR CITY WHICH WAS SANCT IONED ON 08.03.2003. THE ORIGINAL PLAN WAS SUBSEQUENTLY REVISED SE VERAL TIMES AND THE REVISED PLAN WAS SANCTIONED ON 02.03.2005 AND T HERE WERE 12 BUILDINGS FROM A-1 TO A-12. AO THUS NOTED THAT THE PRO JECT OF KUMAR KRUTI WAS PART OF BIGGER PROJECT OF KUMAR CITY WHICH WAS SANCTIONED ON 08.08.2003 WHICH SHOULD HAVE BEEN COMPLETED BY 31.03.20 08 BUT THE SAME WAS NOT COMPLETED TILL 31.03.2008 RESULTING INTO V IOLATION OF CLAUSE (A) OF SEC.80IB(10) OF THE ACT. IT WAS FURTHER NOTICED THAT IN THE PROJECT OF KUMAR KRUTI, 8 FLATS WERE FOUND TO BE HAVING AREA OF MORE THAN MAXIMUM PERMISSIBLE AREA OF 1500 SQ.FT IF GARDEN AREA WAS INCLUDED IN THE FLAT. IT WAS NOTED THAT IF THE GARDEN ARE A WAS INCLUDED IN THE PERMISSIBLE AREA OF FLAT, IT WAS RESULTED INTO THE AREA BEING MORE THAN 1500 SQ. FT. BEING THE PRESCRIBED MAXIMUM PERMISSIBLE A REA RESULTING INTO VIOLATION OF CLAUSE (C) OF SEC. 80IB(10) OF THE ACT. IN VIEW OF THE AFORESAID VIOLATIONS, THE AO HAD DENIED THE CLAIM OF D EDUCTION FOR THE ENTIRE PROJECT. WITH RESPECT TO A.Y. 2012-13, LD.CIT(A) HAD ALLOWED THE CLAIM OF THE ASSESSEE BY OBSERVING AS UNDER : 5 . 3 I HAVE PERUSED THE MATERIAL ON RECORD AND SUBMIS SION MADE BY THE APPEL LA NT CAREFULLY AND THE ITAT PUNE'S COMMON ORDER DATED 15.04.2013 IN APPE L LANT ' S CAS E FOR A.YRS . 2008-09 AND 2009-10 HAS BEEN PERUSED . THE ISSUE A T HAND HAS BEEN DEC I DED B Y THE HON ' BLE ITAT IN APPELLANT'S CASE V I DE ORDER ITA. NO. 1164/PN/2012 - A . Y.200 8 -09 AND ITA NO.2210/PN/ 20 1 2 - A.Y . 2009-10 WHERE I N THE FO L LOWING PARA G RAPH S I T HA S BEEN HELD AS UNDER:- 7 17. AFTER GOING THROUGH THE ABOVE SUBMISSION AND MATERI AL ON RECORD, WE FIND THAT THE ASSESSEE HAS DISALLOWED THE CLAIM OF THE ASSESSEE ON THREE ACCOUNT VI Z . , T H E PROJECT KUAMR KRUTI IS PART OF LARGER PROJECT NAMED K UMAR CITY PROJECT , A SS E SS E E SHOULD HAVE COMPLETED THE PROJECT BY 31 . 03.2008. FURTHER, THE COMMERCIAL A R EA ; IN KUMAR CITY PROJECT IS MORE THAN LIMITS PRESCRIBED, THE S A ID CONDITION HAS ALSO BE EN VIOLATED AND LASTLY BUILT UP AREA OF EIGHT FLATS EX CEED 1500 S Q. FT. WHICH IS ALSO VIOLATIO N OF CONDITIONS PRESCRIBED U/S. 80IB(10). AS DIS C USSED ABOVE , FOLLOWING THE REASONIN G IN PROJECT KUMAR SHANTINIKETAN, WE HAVE ALLOWED DEDUCTION ON PRORATES BASI S W I TH REGARD TO COMPLETED ELIGIBLE FLATS VIDE PARS 9 OF THIS O R DER. ACCORDINGLY ASS E S S I NG OFFICER IS DI R ECTED TO REWORK DEDUCTION OF C L AIM U/S. 80IB(10) ON ELIGIBLE F LA TS AF T E R E X CLUDING EIGHT FLATS WHOSE AREA EXCEED PRESCRIBED LI M I T OF AREA . 18. REGARDING TWO REMAINING ISSUES WE FIN D NO DISPUTE THAT PROJECT KUMA R K RUTI IS A PART OF KUMAR CITY PROJECT AS FAR AS LAYO UT DATED 08.08.2003 IS CONCERNED. THER E I S NO DISPUTE THAT THERE ARE COMMON LAYOUT FO R PROJECT KUMAR KRUTI AND K UMAR C IT Y PROJECT. TH E STAND OF THE ASSESSEE HAS BEEN TH AT P R OJECT K U M AR K RUTI IS AN INDEPENDENT PROJECT AND NOT PART OF KUMAR CITY PROJE C T . SIMPLY BECAUSE P R O J E CT KURNAR KRUTI IS A PART OF KUMAR CITY PROJECT IN THE LAYOUT , I T IS NOT JUSTIFIED I N H O L D I NG TH A T PROJECT KUMAR KRUTI IS PART OF K UMAR CITY PROJEC T . IT IS OBVIOUSLY C LE A R F R O M BUILD I NG PLAN OF KUMAR CITY PROJECT DATED 1 3.10.2003 A S ENCLOSED ON PA G E 5 OF THE PAPERBOOK WHEREIN AREA ON WHICH KUMAR KRUTI PROJECT WAS TO BE CONSTRUC TE D H AD BEEN SHOWN BLANK. IT MAKES ABUNDANTLY CLEAR THAT THE AS S ESSEE HA S NOT CONCE I V ED THE BUILDING PL A NT FOR PROJECT KUMAR KRUTI PRIOR TO 01.04 . 2004 . IN F ACT BUI L DIN G P L AN FOR PROJECT KUMAR KRUTI WAS SANCTIONED ON 26 . 07 . 2006 FOR T HE FIRST TIME WHICH IS E VID ENT FROM BUILDING PLAN SANCTION PLACED ON PAGE 8 OF THE PAP E RBOOK . THUS, PROJECT K U MAR KRUTI HAS BEEN INDEPENDENTLY SANCTIONED VIDE BUILDING PLAN DATED 26 . 07 . 2006 . IN TH I S SITUATION, THE ASSESSING OFFICER WAS NOT JUSTIFIED IN HOLDING THAT , SINCE LAYOUT PLAN IS COMMON, PROJECT KUMAR KRUTI IS A PART OF KUMAR CITY PROJECT . EVEN IF THERE I S A COMMON LAYOUT PLAN, BUT BUILDINGS PLANS ARE OBTAI NED I N DEPENDENTLY/ SEPARAT E L Y FO R VARIOUS PROJECTS, IT CANNOT BE HELD THAT ALL P R OJECTS ARE ONE AND PART OF SAME PR O JE CT . AS PER EXPLANATION TO CLAUSE (A) OF SECTION 80IB(10) , THE DATE OF APPROVAL OF HOU S I NG PROJECT MEANS THE DATE ON WHICH BUILDING PLAN WAS APPROVED BY THE LOCAL AUTHO RI T Y. I T MAKES CLEA R THAT BUILDING PLAN AND LAYOUT PLAN ARE TWO DIFFEREN T SANCT I ONS . I T I S N O T IN DISPUTE THAT BUILDING PLAN FOR PROJECT KUMA R KRUTI WAS S A NCT I ONED INDEPENDE NTLY O N 26.07 . 2006 . EVEN THEN, THE ASSESSING OFFICER HAS DENIED DEDUCTION ON THE GROU N D TH AT THERE IS A C OMMON LAYOUT FOR THE BOTH THE PROJECTS, I . E . , PROJECT KUMAR AND K U MAR CITY PROJEC T , AS WE HAVE CLARIFIED ABOVE LAYOUT SHOULD NO T BE CONFU S ED W ITH THE BUILDING PLAN. LAYOUT PLAN IS ONLY A CONCEPTUAL PLA N GIVI N G GENERAL I DEA O F DEVELOPME N T OF THE LAND. HOWEVER, BUILDING P LAN IS THE PLAN AS PER WH I CH CO N ST R U C TIO N IS PROMOTED AS PER DETAILS SANCTIONS AS PER RELEVANT BUILDING BYE LAWS APPLIC A BL E T O THE AREA. EVEN AUTHORITIES FOR SANCTION OF LAYOUT PLAN AND BUILD I NG PLAN ARE DIFFE R ENT . AS BUILDING PLAN FOR PROJECT KUMAR KRUTI W A S SANCTIONED ON 26 . 07.2006 , AUTHOR ITIES BELOW WERE NOT JUSTIFIED IN HOLDING THAT THI S PROJECT IS A PART OF K UMAR CITY PROJ ECT . EVEN IF THE R E IS A COMMON LAYOUT PLAN BUT INDEPENDENT BUILDING PLAN, THE P ROJ ECT APPROVED UNDER SEPARATE BUILDING PLANS IS TO BE CONSIDERED AS INDEPENDENT P R O J E CT AND NOT PART OF LARGER PROJECT. WE FIND THAT ITAT PUNE ' A' BENCH IN APOORVA PRO PER T I ES AND ESTATES PVT. LTD. VS . DCIT DATED 21.08.2009. 19 2 0 . OUR FINDING IS FORTIFIED BY THE RATIO LAID DOWN BY THE ITAT PUNE BENCH IN A DIY A DEVELOPERS DISCUSSED ABOVE. WE ALSO FIND THAT ITAT 8 PUNE BENC H IN DCLT VS . A NK I T ENTERPRISES HAD OCCASION TO DECIDE SIMILAR ISSUE AND TA KI NG A L L FACTS AND CIRCUM ST ANC ES INTO CONSIDERATION , DEC I DED THE SIMILAR ISSUE IN FAVOU R OF ASSESSEE WHEREIN S ANCTION OF BUILDING PLAN HAS BEEN MADE BASIS FOR HOLDING I NDEPENDEN T P R OJECT FO R T HE PURPO SE OF CLAIMING DEDUCTION U/S . 80IB(10). WE F I ND THAT ITAT PUNE BENCH IN P. V . MAHAD KAR & ASSOCIATES I N ITAT NO. 1117/PN/2010 HAS DISCUSSED AND DECIDED SIM I LAR I S S U E I N FAVOUR OF ASSESSEE BY OBSERVING AS UNDER:- 2 1 . IN VIEW OF ABOVE , PROJECT KUMAR KRUTI WAS INDEPENDENT PROJECT SINCE BUILD I N G PLAN OF THE SAID PROJECT WAS SANCTIONED INDEPENDENT LY ON 26 . 07 . 2006. IN THESE FA C T S AND CIRCUMSTANCES, REVENUE AUTHORITIES BELOW WERE NOT JUSTIFIED I N HOLDIN G THA T PROJECT KUMAR KRUTI IS PART OF KUMAR CITY PROJECT OTHE R POINT ON WHICH THE ASSESSI NG OFFICER HAS DENIED THE DEDUCTION IS THAT COMMER CI AL AREA IN SAID PROJECT EXCEED E D THE LIMI T S PRESCRIBED U/S 80IB(10). SINCE WE HAVE HELD THAT PROJECT K UMA R K RU TI INDEPENDENT OF KUMAR CITY PROJECT, AND THERE IS NO COMMERCIAL A R E A I N PROJEC T K U M A R KRUTI THEN THERE IS NO QUESTION OF VIOLATING THE LIMITS OF COMMERCIAL AREA AS PRES C RI BED U/S. 80IB(10) WITH REGARD TO DEDUCTION OF CLAIM U/S . 80IB(10) IN RESPECT OF P R OJE CT KUMAR KRUTI IN QUESTION . REGARDING PRORATA DEDUCTION U/S . 80IB(10) OF THE ACT , W E HAVE ALREADY HELD THAT THE ASSESSEE IS ELIGIBLE F OR DEDUCTION IN RESPEC T OF ELIGIBLE FLATS NOT E XCEEDING PRESCRIBED LIMIT OF 1500 SQ. FT. AFTER EXCLUDING FLATS EXCEEDING 1500 S Q. FT . AND THE ASSESSING OFFICER HAS BEEN DIRECTED TO REWO R K DEDUCTION ACCORDINGLY. IN V I EW OF ABOVE, THE ASSES S ING OFFICER IS DIRECTED TO ALLOW THE CLA I M OF A SSES S E E I N RESPECT OF PROJECT KUMAR KRUTI FOR THE REASONS DISC USSED AB O VE. 22. AS A RESULT, THIS APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED. 23.. THE FIRST ISSUE IS WITH REGARD TO PRORATE CLAIM OF D EDUCTION U/S 80IB(10) IN RESPECT OF ELIGIBLE FLATS IN THE PROJECT KUMAR K RUTI WHILE FEW FLATS EXCEEDED THE PRESCRIBED LIMIT OF 1500 SQ.FT. THE I SSUE OF PRORATE DEDUCTION HAS BEEN ALLOWED BY US IN A.Y. 2008-09 VI DE PARA 16 OF THIS ORDER. FACTS BEING SIMILAR THE ASSESSING OFFICER I S DIRECTED TO REWORK THE DEDUCTION IN RESPECT OF ELIGIBLE FLATS AS DISCU SSED ABOVE. 5.4 IN VIEW OF THE ABOVE FACTS AND FOLLOWING THE DE CISION OF HON'BLE PUNE ITAT IN THIS REGARD FOR THE AYRS. 2008-09 AND 2009 - 10 IN APPELLANTS OWN CASE, THE ASSESSING OFFICER IS DIRECTED TO REWO RK THE DEDUCTION IN RESPECT OF THE APPELLANT'S PROJECT 'KUMAR KRUTI' AS PER THE DIRECTIONS ISSUED BY THE HON'BLE ITAT IN ITS ORDER DATED 15.04 .2013. GROUND OF APPEAL NO.2 FOR AY 2012-13 RAISED BY THE APPELLANT IS THEREFORE, HELD TO BE ALLOWED . THE APPELLANT SUCCEEDS IN THIS GROUND OF APPEAL . AGGRIEVED BY THE ORDER OF LD.CIT(A), REVENUE IS NOW BEFORE US. 5. BEFORE US, LD.D.R. SUPPORTED THE ORDER OF LOWER AUTHOR ITIES. LD.A.R. ON THE OTHER HAND, REITERATED THE SUBMISSIONS MADE BEFORE AO AND LD.CIT(A). HE FURTHER SUBMITTED THAT EVEN IN A.Y. 201 1-12, THE CO-ORDINATE BENCH OF THE TRIBUNAL HAS ALLOWED THE CLAIM OF PROPORTIONATE DEDUCTION IN ITA NO.2002/PUN/2014 VIDE ORD ER 9 DT.13.01.2017. HE PLACED ON RECORD THE COPY OF THE AFOR ESAID DECISION. HE THUS, SUPPORTED THE ORDER OF LD.CIT(A). 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN BOTH THESE APPEALS ARE WITH RES PECT TO THE PROPORTIONATE DEDUCTION U/S 80IB(10) OF THE ACT. WE FIND THAT LD.CIT(A) HAS FOLLOWED THE DECISIONS OF CO-ORDINATE BENCH OF T HE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO.1164/PN/2012 & ITA NO.2210/PN/2012 DATED 15.04.2013 AND ALSO THE DECISION OF TRIBUNAL IN ITA NO.2002/PUN/2014 ORDER DT.13.01.2017. BEFORE US, N O MATERIAL HAS BEEN PLACED ON RECORD BY THE REVENUE TO D EMONSTRATE THAT THE DECISIONS OF TRIBUNAL THAT WERE FOLLOWED BY THE L D.CIT(A) WHILE DISMISSING THE APPEALS OF REVENUE HAVE BEEN SET A SIDE / STAYED OR OVERRULED BY THE HIGHER JUDICIAL AUTHORITIES. BEFORE US , REVENUE HAS NOT PLACED ANY MATERIAL ON RECORD TO POINT OUT ANY DISTINGUISHING FEATURE IN THE FACTS OF THE CASE FOR THE YEAR UNDER CONS IDERATION AND THAT OF EARLIER YEARS NOR HAS PLACED ANY CONTRARY BINDING DECISION IN ITS SUPPORT. IN VIEW OF THE AFORESAID FACTS, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF LD.CIT(A). THUS, THE GROUNDS OF REVENUE IN BOTH THE APPEALS ARE DISMISSED. 7. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED ON 26HT DAY OF MARCH, 2019. SD/- SD/- ( PARTHA SARATHI CHAUDHURY ) ( ANIL CHATURVEDI ) ! / JUDICIAL MEMBER '! / ACCOUNTANT MEMBER PUNE; DATED : 26 TH MARCH, 2019. YAMINI 10 #$%&'('% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3 . 4. 5. 6. CIT(A), PUNE-5, PUNE. . THE PR.CIT, PUNE-4, PUNE. '#$ %%&',) &', / DR, ITAT, B PUNE; $*+,/ GUARD FILE. / BY ORDER , / / TRUE COPY / / //T// TRUE COPY // -./%0&1 / SR. PRIVATE SECRETARY ) &', / ITAT, PUNE.