Goel Jindal Builders, Pune V. ITO, Wd-11(3), Pune, Pune

ITA 450/PUN/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 66953 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 05-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Share purchase agreement; Reasonable cause; Condonation of delay
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER, AND SHRI R.S.PADVEKAR, JUDICIAL MEMBER. ITA.NO.450/PN/2012 (ASSTT. YEAR : 2006-07) M/S.GOEL JINDAL BUILDERS, S-204, ASHOKA MALL, BUND GARDEN ROAD, PUNE 411001. .. APPELLANT PAN: AAATG6821D VS. ITO, WARD-11(2), PUNE. .. RESPONDENT ASSESSEE BY : NONE DEPARTMENT BY : SHRI ACHAL SHARMA DATE OF HEARING : 16.04.2013 DATE OF PRONOUNCEMENT : 30.04.2013 ORDER PER R.S.PADVEKAR, JM : IN THIS APPEAL THE ASSESSEE HAS CHALLENGED THE IMP UGNED ORDER OF THE LD. CIT(A)-I DATED 24.02.2011 FOR THE A.Y. 2 006-07. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS IN THE APP EAL: 1. THE APPELLANT REQUESTS FOR CONDONATION OF DELAY OF ABOUT 146 DAYS SINCE THERE WAS REASONABLE CAUSE IN NOT FILING THE APPEAL WITHIN THE PRESCRIBED TIME LIMIT. 2. THE LEARNED CIT(A) ERRED IN CONFIRMING THE DISALLOW ANCE OF DEDUCTION CLAIMED U/S.80IB(10) OF RS.32,22,937/- IN RESPECT OF THE HOUSING PROJECT SURYAGANGA AT DHAYARI, PUNE. 3. THE LEARNED CIT(A) WAS NOT JUSTIFIED IN HOLDING THA T AS A FEW ADJOINING TWO FLATS WERE COMBINED INTO ONE FLAT, FO R THE PURPOSES OF SECTION 80IB(10), THEY CONSTITUTED ONE UNIT AND THE BUILT UP AREA OF SUCH UNIT HAD EXCEEDED 1500 SQ .FT. AND ACCORDINGLY, THE DEDUCTION U/S.80IB(10) WAS NOT AVA ILABLE TO THE APPELLANT. 4. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT EVEN, THOUGH, SOME OF THE ADJOINING FLATS WERE COMBINED INTO ONE FLAT, SINCE AS PER 2 THE SANCTIONED BUILDING PLANS THEY CONSTITUTED SEPA RATE UNITS AND FOR THE PURPOSES OF SECTION 80IB(10), BOTH SUCH UNITS WERE TO BE CONSIDERED AS SEPARATE AND AS THE BUILT UP AR EA OF EACH UNIT WAS LESS THAN 1500 SQ.FT. THE ASSESSEE SATISFI ED THE CONDITION U/S.80IB(10). 5. THE LEARNED CIT(A) ERRED IN NOT APPRECIATING THAT A. AS PER THE PLANS SANCTIONED BY THE LOCAL AUTHORITY, THE TWO ADJOINING FLATS WERE CONSIDERED AS INDEPENDENT UNITS. B. SEPARATE ELECTRICITY METERS WERE ALLOTTED TO EACH O F THE UNITS WHICH CLEARLY INDICATED THAT THE TWO UNITS WE RE INDEPENDENT. C. THE GRAM PANCHAYAT TAX WAS LEVIED SEPARATELY FOR TH E TWO UNITS. D. THE SOCIETY FORMED HAD ALSO REGISTERED THE TWO UNIT S AS INDEPENDENT UNITS AND THE SHARE CERTIFICATES WERE A LSO ISSUED SEPARATELY FOR THE TWO UNITS. E. THE TWO ADJOINING UNITS WERE COMBINED INTO ONE BY T HE CUSTOMERS WHO PURCHASED THE UNITS AND NOT BY THE APPELLANT AND HENCE, FOR THE PURPOSE OF DETERMINING THE BUILT UP AREA, THE TWO UNITS COMBINED INTO ONE WERE TO BE CONSIDERED AS INDEPENDENT UNITS. 6. WITHOUT PREJUDICE TO THE ABOVE GROUNDS, THE ASSESSE E SUBMITS THAT THE DEDUCTION OUGHT TO HAVE BEEN ALLOWED PROPO RTIONATELY IN RESPECT OF THE UNITS WHOSE BUILT UP AREA WAS LES S THAN 1500 SQ.FT. 2. THOUGH THE NOTICE OF HEARING IS SERVED ON THE AS SESSEE, NONE WAS PRESENT. WE FIND THAT THERE IS A DELAY OF 146 DAYS IN FILING THE PRESENT APPEAL. THE ASSESSEE HAS FILED AN AFFIDAV IT WITH PRAYER FOR CONDONING THE DELAY. WE HAVE PERUSED THE AFFIDAVIT FILED BY THE ASSESSEE AND WE FIND THAT THERE IS A REASONABLE CAU SE FOR CONDONING THE DELAY. WE, THEREFORE, IN THE INTEREST OF JUSTI CE, CONDONE THE DELAY AND ADMIT THE APPEAL FOR DISPOSAL. 3. THE FACTS WHICH ARE REVEALED FROM THE RECORD ARE AS UNDER. THE ASSESSEE IS A BUILDER AND DEVELOPER. THE ASSES SEE CLAIMED THE DEDUCTION U/S.80IB(10) OF RS.32,22,937/- ON THE PRO FIT RELATING TO HOUSING PROJECT NAMELY SURYAGANGA IN SURVEY NOS.2 /9/2 AND 2/10/A/2, DHAYARI, PUNE. THE ASSESSING OFFICER HAS OBSERVED THAT IN SURVEY NO.2/9/2, THERE WERE SIX BUILDINGS, A1 TO A-6, HAVING 16 FLATS OF 2BHK IN EACH BUILDING AND 9 SHOPS. SO FAR AS SURVEY NO.2/10/A/2, THERE ARE THREE BUILDINGS, I.E., B1 TO B3, HAVING 12 3 FLATS OF 1BHK IN TWO BUILDINGS AND 20 FLATS IN ONE BUILDING. THE ASSESSING OFFICER VISITED THE PROJECT SITE ON 16.12 .2008 DURING THE COURSE OF ASSESSMENT PROCEEDINGS ALONGWITH GOVERNME NT REGISTERED VALUER TO VERIFY WHETHER THE ASSESSEE IS FULFILLING THE CONDITIONS LAID DOWN IN SECTION 80IB(10) FOR CLAIMING THE SAID DEDU CTION. THE ASSESSING OFFICER HAS OBSERVED THAT AS THE PROJECT IS SITUATED NEAR PUNE, THE MAXIMUM PERMISSIBLE BUILT UP AREA FOR EAC H RESIDENTIAL UNIT/FLAT IS 1500 SQ.FT. AS NOTED BY THE ASSESSING OFFICER, DURING THE COURSE OF INSPECTION IN RESPECT OF BUILDINGS AT SUR VEY NO.2/9/2 HAVING SIX BUILDINGS, THE FOLLOWING FACTS WERE FOUN D: I) FLAT NO.A6 303 & 304 (FLAT OWNER TULSI ARUN/TULSI A NUJA AND TULSI ANANTRAO)- IT IS SEEN THAT THE ABOVE TWO FLATS WERE CONVERTED INTO ONE SINGLE FLAT BY DEMOLISHING THE COMMON WALL BETWEEN THE ABOVE TWO FLATS. THE TOTAL BUILT UP AREA OF THE ABOVE CONVERTED (COMBINED) FLATS AS MEASURED BY THE GOVERNMENT REGISTERED VALUER IS 1753.56 SQ.FEET AS REPORTED BY HIM. FURTHER ON ENQU IRY WITH SMT.ANUJA TULSI THE OWNER OF THE FLAT IT IS IN FORMED BY HER THAT THE ABOVE TWO FLATS WERE CONVERTED INTO ON E SINGLE FLAT BEFORE THE OCCUPATION OF THE FLAT AND ABOVE CO NVERSION WAS CARRIED OUT THROUGH THE CONTRACTOR OF THE BUILD ER. A LETTER DATED 16.12.2008 IS ALSO OBTAINED FROM HER G IVING THE ABOVE FACTS. II) FLAT NO.A2 301 & 302 (FLAT OWNER DEEWAN APARNA & MUKUND DEEWAN): THESE TWO FLATS ARE ALSO CONVERTED INTO ONE SINGLE FLAT HAVING ONLY ONE ENTRANCE. THE TOTAL BUILT UP AREA OF THIS CONVERTED (COMBINED FLAT IS 1753.56 SQ .FEET. III) FLAT NO.A3 303 & 304 (FLAT OWNER SONAWANE N.N. & SM ITA SONAWANE): THESE TWO FLATS ARE ALSO CONVERTED INTO ONE SINGLE FLAT HAVING ONLY ONE ENTRANCE. THE TOTAL BU ILT UP AREA OF THIS CONVERTED (COMBINED) FLAT IS 1753.56 S Q.FEET. THE SHOPPING AREA IS MEASURED AT 1955.52 SQ.FEET AS REPORTED BY THE GOVERNMENT REGISTERED VALUER. 4. IN SUM AND SUBSTANCE IN THE OPINION OF THE ASSES SING OFFICER, IN RESPECT OF THE ABOVE FLATS THE ASSESSEE HAS VIOL ATED THE CONDITION OF BUILT UP AREA WHICH WAS FOUND TO BE MORE THAN 15 00 SQ.FT. THE ASSESSING OFFICER HAS ALSO REFERRED TO THE REPORT O F THE GOVERNMENT APPROVED VALUER DATED 19.09.2008. THE ASSESSEE FIL ED HIS REPLY TO THE ASSESSING OFFICER EXPLAINING THE SITUATION HOW THE SAID FLATS ARE 4 JOINED WHICH IS REPRODUCED IN THE ASSESSMENT ORDER WHICH IS AS UNDER: THE TWO UNITS (FLATS) WHICH PRESENTLY ARE JOINED AN D USED BY THE BUYERS AS SINGLE UNIT SHOULD BE TREATED AS TWO INDE PENDENT UNITS FOR THE FOLLOWING REASONS (A) BUILDERS HAVE SOLD TWO FLATS BY EXECUTING TWO DIFFE RENT AGREEMENTS AND SEPARATE REGISTRATIONS AND BUILDER H AVE GIVEN THE POSSESSION TO THE BUYERS AS INDEPENDENT F LATS. (B) AFTER POSSESSION FLAT OWNERS MADE SOME CHANGES ON T HEIR OWN AND THEIR OWN COST FOR WHICH BUILDER CAN NOT BE HELD RESPONSIBLE. (C) THE BUYER HAS GOT RIGHT ON THESE TWO FLATS AS INDEP ENDENT RIGHTS WHICH DOES NOT GET EXTINGUISHED IN ANY WAY J UST BY THE REMOVAL OF ONE WALL. THEREFORE, THE AREA WHICH IS TO BE CONSIDERED IS ONLY AREA OF A FLAT. IN RESPECT OF LETTER GIVEN BY SMT.ANUJA TULSI DURIN G INSPECTION IT IS SUBMITTED BY THE ASSESSEE THAT AS STATED BY HER IN THE LETTER THE CHANGES WERE EFFECTIVE BEFORE OCCUPATION AND NO T BEFORE POSSESSION AND THE ABOVE CONVERSION WAS CARRIED OUT BY NOT ENGAGING THE BUILDER BUT BY THE CONTRACTOR WHO ARE AVAILABLE AT THE SITE. 5. THE ASSESSING OFFICER WAS NOT CONVINCED WITH THE EXPLANATION OF THE ASSESSEE AND HE DENIED THE ENTIRE CLAIM OF D EDUCTION TO THE ASSESSEE U/S.80IB(10) BY GIVING THE FOLLOWING REASO NS: (A) THE GOVERNMENT REGISTERED VALUER HAS REPORTED THAT THE MEASUREMENT OF THE COMBINED FLAT I.E., A6 303 & 304 IS 1753.56 SQ.FEET WHICH IS MORE THAN MAXIMUM PERMISSI BLE BUILT UP AREA I.E., 1500 SQ.FEET AS PER CONDITIONS OF SECTION 80IB(10)(C). SIMILARLY FLAT NO.A2 301 & 302 AND FL AT NO.A3 303 & 304 WHICH ARE COMBINED FLATS HAVING ONLY ONE ENTRANCE AND BUILT UP AREA 1753.56 SQ.FEET EACH I.E ., EXCEEDING PERMISSIBLE BUILT UP AREA OF 1500 SQ.FEET UNDER SECTION 80IB(10)(C). (B) THE FLAT OWNER OF FLAT A6 303 & 304 SMT.TULSI ANUJA VIDE HER LETTER DATED 16.12.2008 HAS CLEARLY STATED THAT THE CONVERSION OF THE TWO FLATS BY DEMOLISHING THE COMM ON WALL BETWEEN THE TWO FLATS HAVE BEEN CARRIED OUT BY THE BUILDER GOEL JINDAL THROUGH ITS CONTRACTOR BEFORE OCCUPATIO N OF THE FLAT. THE ASSESSEE HAS REQUESTED TO PROVIDE COPY OF LETTER FOR MAKING ACCURATE COMMENTS ON THE CONTENTIONS OF THIS LETTER. ACCORDINGLY A COPY WAS PROVIDED TO THE ASSESSEE ON 22.12.2008. HOWEVER, NO FURTHER COMMUNICATION IS R ECEIVED 5 FROM THE ASSESSEE IN THIS REGARD. THIS SHOWS THAT THE ASSESSEE HAS NO COMMENTS TO OFFER ON THIS LETTER. (C) THE ASSESSEE IN ITS LETTER SUBMISSION DATED 18.12.2 008 HAS FILED LETTERS FROM FLAT OWNERS OF FLAT NO.A2 301 & 302 AND A3 303 & 304 REGARDING CONVERSION OF THEIR FLATS. IN THE LETTER DATED 18.12.2008 ISSUED BY THIS OFFICE THE ASSESSEE WAS REQUESTED TO PRODUCE THE ABOVE FLAT OWNERS FOR VERI FICATION. THIS VERIFICATION WAS REQUIRED TO CONFIRM THE FACTS GIVEN IN THEIR LETTER AND TO VERIFY WHETHER THE CONVERSION O F THE FLAT WAS CARRIED OUT BY THE BUILDER OR HIS CONTRACTOR OR ANY OTHER PERSON. (SINCE THIS INFORMATION IS NOT GIVEN BY TH EM IN THEIR RESPECTIVE LETTER). HOWEVER, SINCE THE ASSESSEE DI D NOT PRODUCE THEM FOR VERIFICATION THIS FACT COULD NOT B E VERIFIED. CONSIDERING THE ABOVE FACT IT IS PROVED THAT THE AB OVE THREE COMBINED FLATS A6 303 & 304, A2 301 & 302 AND A3 30 3 & 304 INCLUDED IN THE ABOVE PROJECT OF THE ASSESSEE ARE H AVING AREA 1756.53 SQ.FEET EACH WHICH IS MORE THAN THE PERMISS IBLE AREA OF THE FLAT I.E., 1500 SQ.FEET. HENCE THE CONDITIONS GIVEN IN SECTION 80IB(10)(C) IS NOT FULFILLED IN RESPECT OF THE ABOV E PROJECT. THEREFORE, THE ASSESSEE IS NOT ELIGIBLE FOR THE DED UCTION U/S.80IB(10). ACCORDINGLY THE DEDUCTION U/S.80IB(1 0) CLAIMED BY THE ASSESSEE AMOUNTING TO RS.32,22,937/- IS DISA LLOWED. PENALTY PROCEEDINGS U/S.271(1)(C) IS INITIATED ON T HIS ISSUE FOR CONCEALING THE PARTICULARS OF INCOME AND FOR FURNIS HING INACCURATE PARTICULARS OF INCOME. 6. THE ASSESSEE CARRIED THE ISSUE BEFORE THE LD. CI T(A) BUT WITHOUT SUCCESS. THE REASONS GIVEN BY THE LD. CIT( A) FOR CONFIRMING THE ACTION OF THE ASSESSING OFFICER ARE AS UNDER: 3.3 I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CA SE AND THE LAW AS PER APPARENT FROM RECORD. THE APPELLANT IS A BUILDER AND DEVELOPER WHO HAS DEVELOPED HOUSING PROJECT MAINLY CONSISTING OF RESIDENTIAL UNITS AT DHAYARI, PUNE WHICH IS OUTS IDE THE JURISDICTION OF PUNE MUNICIPAL CORPORATION. BECAUSE OF THE SAME, THE PROJECT HAS BEEN APPROVED BY THE DISTRICT COLLE CTOR, PUNE. THE FIRST COMMENCEMENT CERTIFICATE OF CONSTRUCTION WAS APPARENTLY RECEIVED BY THE APPELLANT ON 3.9.2004 VI DE ORDER NO. PMH/NSSR/190/2004. THEREFORE, IT CAN BE SEEN THAT T HE PROJECT COMMENCED IN F.Y. 2004-05 RELEVANT TO A.Y. 2005-06 AND THEREFORE, IT IS NOT DIFFICULT TO HOLD THAT THE AMENDED PROVISIONS WILL APPLY. ASSESSMENT YEAR 2006-07 WAS APPARENTLY THE FIRST YEAR IN WHICH THIS DEDUCTION W AS CLAIMED. THE ASSESSING OFFICER PICKED UP THE CASE FOR SCRUTI NY BY ISSUING NOTICE U/S 143(2) ON 23.6.2007 AND THE SCRUTINY WAS CARRIED OUT BEFORE COMPLETING THE ASSESSMENT U/S 143(3) ON 24.1 2.2008. AN INSPECTION WAS CARRIED OUT BY THE ASSESSING OFFICER ON 16.12.2008 ALONGWITH A GOVERNMENT REGISTERED VALUER FOR 6 VERIFICATION OF THE CONDITIONS CONTAINED IN SEC. 80 IB(10) BEFORE COMPLETING THE ASSESSMENT. IN THE SAID PROCESS IT W AS FOUND BY THE ASSESSING OFFICER THAT FLAT NO. 303 AND 304 OF BUILDING A-6 CLAIMED TO HAVE BEEN SOLD INDEPENDENTLY TO ARUN TUL SI/ANUJA TULSI AND ANANTRAO TULSI/ SHAKUNTALA TULSI ARE IN R EALITY ONE FLAT HAVING A COMBINED AREA OF 1753.56 SQ.FT. IT WA S ALSO FOUND ON ENQUIRY WITH SMT. ANUJA TULSI THAT THE AFORESAID TWO FLATS WERE CONVERTED INTO ONE SINGLE FLAT BEFORE THE OCCU PATION OF THE FLAT AND THE SAID CONVERSION WAS CARRIED OUT THROUG H THE CONTRACTOR/BUILDER. THE ASSESSING OFFICER OBTAINED A LETTER DATED 16.12.2008 ADMITTING THE AFORESAID FACTS FROM SMT. ANUJA TULSI. HE FOUND SIMILAR FACTS IN RESPECT OF FLAT NO . 301 AND 302 OF BUILDING A-2 AND FLAT NO. 303 AND 304 OF BUILDIN G A-3. IT WAS ALSO FOUND BY THE ASSESSING OFFICER THAT THESE FLAT S HAD ONLY ONE ENTRANCE AND WERE USED AS ONE DWELLING UNITS ON LY. THESE FACTS WERE CONFRONTED WITH THE APPELLANT AND IT WAS ALSO ARGUED BEFORE AO THAT THE APPELLANT HAS SOLD THESE FLATS I NDEPENDENTLY THROUGH SEPARATE DEEDS OF SALE, THEY HA VE BEEN APPROVED AND CONSTRUCTED AS INDEPENDENT UNITS AND T HE APPELLANT HAS NO ROLE TO PLAY IN GETTING THEM JOINE D AND THEREFORE, IT SHOULD NOT BE TAKEN THAT THE CONDITIO N OF SIZE HAS BEEN VIOLATED. AFTER CONSIDERING THE FACTS OF THE CASE AND THE LAW IN THE LIGHT OF THE GROUND RAISED BY THE APPELL ANT SAYING THAT THE ASSESSING OFFICER HAS GROSSLY ERRED IN DISALLOWING THE DEDUCTION, IT IS SEEN THAT THE FIND ING OF THE ASSESSING OFFICER IS A FINDING OF FACT SHOWING THAT SIX FLATS HAVE BEEN MERGED INTO THREE INDEPENDENT UNITS AND ARE BE ING SO USED AND BECAUSE OF THIS THE COMBINED SIZES OF THES E UNITS WERE OF MORE THAN 1500 SQ.FT., EACH. THEREFORE, ON THE A FORESAID FINDING OF FACT THE ASSESSING OFFICER CAME TO THE C ONCLUSION THAT THE APPELLANT HAS VIOLATED THE CONDITION CONTENDED 80IB(10)(C). THERE IS NO DISPUTE THAT THE SIX FLATS HAVE BEEN JO INED AND ARE BEING USED AS INDEPENDENT UNITS AND IN REALITY ARE OF SIZES WHICH IS MORE THAN 1500 SQ.FT. THE ASSESSING OFFI CER HAS ALSO TRIED TO BRING ON RECORD EVIDENCES LIKE LETTER FROM THE OCCUPANTS ETC. TO SHOW THAT THE CONVERSIONS HAVE BEEN TRADE T HROUGH THE BUILDER BEFORE THE OCCUPATION. THE APPELLANT ON TH E OTHER HAND HAS TRIED TO CLAIM THAT THEY HAVE NO ROLE TO PLAY I N THE SAID ACT OF MAKING THE SIX UNITS INTO THREE OF BIGGER SIZE A ND FOR THIS THEY HAVE TRIED TO RELY ON THE APPROVAL OF PLAN, DEED OF SALE, ELECTRICITY CONNECTION, TAX BY GRAMSABHA ETC. TO SA Y THAT THE APPELLANT AS WELL AS THE RESPECTIVE AGENCIES HAVE R ECOGNIZED THE SIX UNITS AS INDEPENDENT AND THEREFORE, THEY HA VE TO BE TAKEN AS THAT AND IN THAT CASE NO VIOLATION CAN BE SEEN. DEDUCTION U/S 80IB(10) IS A BENEFIT GIVEN BY THE GO VERNMENT BY FOREGOING 100% OF THE TAX LEVIABLE ON THE INCOME FO R ACHIEVEMENT OF CERTAIN SOCIAL GOALS AND THE SAME HA S BEEN PROFESSED IN EXPLANATORY NOTES ETC. TO AUGMENT THE SUPPLY OF AFFORDABLE HOUSING. THEREFORE, CERTAIN CONDITIONS H AVE BEEN PRESSED IN THE SECTION TO ENSURE THE SAID OBJECTIVE . THEREFORE, 7 ANY FACT WHICH CAN SHOW THAT THE FACTS ARE BEING MA NIPULATED TO DEFEAT THE PURPOSE HAS TC BE GIVEN DUE RECOGNITI ON AND WEIGHTAGE. THE FINDING OF THE FACT WHICH HAS REMAIN ED UNDISPUTED THAT FLATS HAVE BEEN COMBINED AND EACH S UCH COMBINED UNIT IS IN EXCESS OF THE LIMIT PRESCRIBED IN LAW HAS TO BE ACCEPTED TO BE TRUE EVEN IF SEPARATE DOCUMENTS H AVE BEEN MADE FOR SALE AND ELECTRICITY CONNECTION ETC. IT CA NNOT BE DENIED THAT THE PLANS ARE APPROVED BY THE COMPETENT AUTHOR ITY AS MADE BY THE BUILDER SUBJECT TO THE RULES AND REGULA TIONS OF THE LOCAL AREA AND WHETHER THE CONSTRUCTION HAS BEEN MA DE AS PER PLAN OR NOT IS SUBJECTED TO VERIFICATION SUBSEQUENT LY AND THAT TOO GENERALLY ON A TEST CHECK BASIS. THEREFORE, IF THE PLAN SHOWS THE UNITS AS UNCOMBINED, IT CANNOT BE OF MUCH EVIDENTIA RY VALUE. AS A CONSEQUENCE OF THIS IT HAS TO BE ASSUMED THAT THE SUBSEQUENT ACTS OF SALE WILL BE FOR UNITS AS SPECIFIED IN THE PLAN AND THEREFORE, THE EXECUTION OF SEPARATE DEEDS OF SALE ALSO CANNOT BE CONSIDERED TO HAVE MUCH EVIDENTIARY VALUE. IT IS CL EAR IN THE ABOVE REFERRED FACTS THAT THE PERSONS WHO HAVE PURC HASED THE FLATS WHICH HAVE BEEN JOINED ARE FROM THE SAME FAMI LY. IT IS TRUE THAT THE LAW AS WAS APPLICABLE AT THE RELEVANT POIN T OF TIME DID NOT PROHIBIT PURCHASE OF UNITS BY THE MEMBERS OF TH E SAME FAMILY BUT HERE THE OBJECTION IS NOT ON THE BASIS O F SALE OF UNITS TO THE SAME MEMBERS OF THE FAMILY BUT IS ON THE ISS UE OF EFFECTIVELY MAKING AND SELLING FLATS WHICH ARE IN R EALITY OF MORE THAN THE PRESCRIBED SIZE I.E. 1500 SQ.FT. IT IS ALS O A WELL KNOWN FACT THAT THE COOPERATIVE SOCIETY IS MADE WITH THE HELP OF THE BUILDER AND HE HAS TO ENSURE THAT EACH UNIT AS SHOW N IN THE PLAN AND THE SALE DEED BECOMES INDEPENDENT MEMBERS. OTHER MEMBERS OF THE SOCIETY ARE ALSO LIKELY TO INSIST FO R THE SAME AS THAT WOULD ENSURE HIGHER REVENUE TO THE SOCIETY. AS A CONSEQUENCE OF THESE SITUATIONS, IT IS QUITE NATURA L THAT THE UNITS AS APPEARING IN THE DOCUMENTS WILL BE SO RECOGNIZ ED BY DIFFERENT AUTHORITIES WHO ARE SUPPOSED TO GRANT ELE CTRICITY CONNECTION ETC. IN VIEW OF THE ABOVE DISCUSSION, IT IS SEEN THAT THE FACTS RELIED UPON BY THE APPELLANT TO CLAIM THA T THE FLATS WERE SOLD AS SMALLER UNITS CANNOT BE GIVEN ADEQUATE WEIGHTAGE WHICH CAN NULLIFY THE FINDING GIVEN BY THE ASSESSIN G OFFICER ON THE BASIS OF HIS INSPECTION CARRIED OUT AT THE SITE ALONG WITH THE GOVT. REGISTERED VALUER AND ALSO THE AFFIRMATIO NS OBTAINED FROM THE OCCUPANTS OF THOSE VERY FLATS DURING THE C OURSE OF INSPECTION ITSELF. THE SUBSEQUENT LETTERS ISSUE D BY THE SAME VERY OCCUPANTS TO SUIT THE APPELLANT CANNOT BE CONS IDERED TO REPRESENT TRUE STATE OF AFFAIRS. IT IS ALSO IMPORTA NT TO POINT OUT HERE THAT THE ACT OF COMBINING TWO FLATS INTO ONE H AS BEEN FOUND IN ALL CASES AT THIRD FLOOR OF DIFFERENT BUILDINGS. THE FLATS COMBINED ARE HAVING NUMBERS 301, 302, 303 AND 304, WHICH CLEARLY SHOWS THAT THE APPELLANT HAS PLANNED THIS A FFAIR ACCORDINGLY. IT IS ALSO NOTED THAT THE ABOVE FACT WAS FOUND DURING AN INSPECTION CARRIED OUT ON 16.12.2008 WHIL E COMPLETING THE FIRST YEAR OF ASSESSMENT OF THIS PRO JECT AND IT IS 8 OBSERVED THAT THE SAID PROJECT WAS STILL ON TILL TH E SAID DATE OF INSPECTION AND THEREFORE, IT IS DIFFICULT TO ASSUME THAT THE APPELLANT HAD NO CONTROL OVER THE SAID ACT OF COMBI NING FIATS INTO ONE. IN ALL PROBABILITIES THE FINAL COMPLETION OF THE ENTIRE PROJECT MUST HAVE REMAINED TO BE OBTAINED AND THEREFORE, TH E APPELLANT CANNOT CLAIM THAT IT WAS THE RESPONSIBILITY OF THE PURCHASER UNLESS HE IS HIMSELF INVOLVED INTO IT. FOR THESE ABOVE REFERRED REASONS, I HAVE NO HESITATION IN COMING TO THE CONC LUSION THAT THE ASSESSING OFFICER HAS NOT ERRED IN GIVING THE F INDING THAT THE APPELLANT HAS VIOLATED THE CONDITION 80IB(10)(C) AN D FOR THE SAID REASON THE DEDUCTION CANNOT BE ALLOWED. THE APPELLA NT DURING THE APPEAL HAS ALSO CONTENDED THAT THE DCIT, CIR. 1 (2) WHILE MAKING THE ASSESSMENT IN THE SUBSEQUENT YEAR I.E. A .Y. 2007- 08 HAS ALLOWED THE DEDUCTION AFTER SATISFYING HIMSE LF ABOUT THE FULFILLMENT OF THE SAID CONDITIONS AND THEREFORE, I N THIS YEAR ALSO THE SAME SHOULD BE ACCEPTED. THE COPY OF THE ASSESS MENT ORDER WAS PLACED ON RECORD. IT IS OBSERVED THAT THE SAID ORDER WAS PASSED BY DCIT, CIR. 1(2) ON 22.12.2009 BUT THERE I S NO MENTION IN THE ASSESSMENT ORDER THAT THE ABOVE REFERRED FAC T OF VIOLATION OF 80IB(10)(C) FOUND DURING INSPECTION BY ITO, WARD 11(2), PUNE ON 16.12.2008 WAS KNOWN TO HIM OR NOT. THERE IS NO EVIDENCE ON RECORD ALSO WHICH CAN SHOW THAT THE DY. CIT, CIR .1(2) WAS AWARE ABOUT THE FINDING GIVEN BY THE ITO, 11(2), PU NE IN A.Y. 2006-07 AND HE HAS APPLIED HIS MIND TO THE FACTS FO UND IN THE SAID YEAR, BEFORE COMING TO THE CONCLUSION THAT THE CONDITION OF SEC. 80IB(10)(C) IS SATISFIED. THEREFORE, CONSIDERI NG THE ABOVE FACT AND ALSO THE FACT THAT THE TWO ASSESSING OFFIC ERS ARE DIFFERENT, THE FINDING GIVEN IN A.Y. 2007-08 CANNOT BE TAKEN AS A FINDING GIVEN ON SAME SET OF FACTS. THEREFORE, THIS ARGUMENT OF THE APPELLANT IS NOT ACCEPTED. IT IS ALSO NOTED THA T THE APPELLANT WAS GIVEN ADEQUATE OPPORTUNITY TO REBUT THE FACTS F OUND BY THE ASSESSING OFFICER DURING INSPECTION AND THE SAME WA S NOT PROPERLY AVAILED DURING ASSESSMENT AND THEREFORE, M UCH BENEFIT CANNOT BE GIVEN ON CERTAIN ISSUES RAISED IN THE SUB MISSION. THE APPELLANT HAS TRIED TO RAISE A CONFUSION IN RESPECT OF THE DISCUSSION MADE IN THE ASSESSMENT ORDER WHEREIN THE AO HAS STATED THAT THE ASSESSEE DID NOT PRODUCE THE PARTIE S FOR VERIFICATION. AS PER AUTHORISED REPRESENTATIVE THE ASSESSING OFFICER IN THE SAME PARAGRAPH HAS ALSO REFERRED TO THE CONFIRMATION LETTERS FILED FROM ALL THESE PARTIES T O CLAIM THAT .THE APPELLANT HAS DISCHARGED HIS ONUS. IT IS OBSERVED IN THIS RESPECT THAT THE CLAIM FOR DEDUCTION WAS MADE BY TH E APPELLANT AND AS PER LAW IT WAS HIS PRIMARY RESPONSIBILITY TO ESTABLISH THAT THE CONDITIONS ARE COMPLETELY FULFILLED TO THE SATISFACTION OF THE ASSESSING OFFICER. HOWEVER, IN THE PRESENT CASE THE ASSESSING OFFICER BROUGHT ON RECORD EVIDEN CES WHICH CLEARLY SHOWED THAT THE CLAIM WAS INCORRECT AND THEREAFTER AGAIN THE APPELLANT WAS REQUIRED TO ESTABLISH THE FACTS REGARDING THE FULFILLMENT OF CONDITIONS. IF THE AS SESSING OFFICER ON SUBMISSION OF FRESH CONFIRMATION FROM THE RESPEC TIVE FLAT 9 OWNERS ASKED FOR THEIR PRESENCE FOR VERIFICATION OF THE FACTS IT WAS THE ONUS OF THE APPELLANT AND FAILURE TO PRODUC E SUCH PERSONS HAS TO BE TAKEN AS THE FAILURE TO DISCHARGE THE ONUS LEGALLY CAST ON THE APPELLANT AND THEREFORE, FOR TH IS REASON ALSO IT CANNOT BE SAID THAT THE ASSESSING OFFICER ERRED IN COMING TO THE AFORESAID CONCLUSION. THE APPELLANT HAS ALSO RELIED ON CERTAIN JUDGMENTS WHICH HE HAS HIMSELF ADMITTED TO BE NOT DIRECTLY RELATING TO THE FACTS OF THIS CASE, HOWEVE R, THE SAME WERE CONSIDERED AND FOUND TO BE OF NOT MUCH HELP TO GROUND OF THE APPELLANT. SO FAR AS THE DECISION OF BR AHMA ASSOCIATES IS CONSIDERED, THE SAME IS ADM ITTEDLY FOR A.Y. 2004-05 AND HAS NO APPLICATION IN THIS YEAR RELATIN G TO THE ISSUE IN HAND. CONSIDERING THE DISCUSSIONS MADE HEREINA BOVE, THIS GROUND OF APPEAL IS TREATED AS DISMISSED. 7. NOW THE ASSESSEE IS IN APPEAL BEFORE US. WE HAV E HEARD THE LD. DR. THE SHORT ISSUE IN CONTROVERSY IS THE ALLE GED VIOLATION OF THE BUILT UP AREA IN RESPECT OF SIX FLATS IN THE ENTIRE PROJECT. WE FIND THAT IN THIS CASE NOWHERE IT IS DISPUTED THAT AS PE R SANCTIONED PLAN THOSE FLATS ARE SHOWN SEPARATELY. MOREOVER, BUILDE R HAS SOLD THE ABOVE FLATS BY EXECUTING INDEPENDENT AGREEMENT. EV EN THE POSSESSION LETTER GIVEN TO THE RESPECTIVE BUYERS AR E INDEPENDENT. WE FURTHER FIND THAT AS CLAIMED BY THE ASSESSEE, THE F LAT OWNERS MADE SOME CHANGES AT THEIR OWN COST AND BUILDER HAS NO R OLE TO PLAY IN IT. WE FURTHER FIND THAT EVEN IF THE ASSESSING OFFICER HAS MADE THE ASSERTION THAT IN RESPECT OF THE FLAT OWNERS OF A6 303 & 304, SMT.TULSI ANUJA AS STATED IN HER LETTER THAT THE CO NVERSION OF THE FLATS BY DEMOLISHING THE COMMON WALL BETWEEN THE TW O FLATS HAS BEEN CARRIED OUT BY THE BUILDER THROUGH ITS CONTRAC TOR BEFORE OCCUPATION OF THE FLAT, BUT NOTHING IS ON RECORD TO SUGGEST THAT THE SAID LETTER WAS PUT TO THE ASSESSEE. MOREOVER, THE VERSION OF THE ASSESSING OFFICER ITSELF IS VERY VAGUE AS HE SAYS T HAT THE BUILDER HAS DONE THE SAID CONVERSION THROUGH THE CONTRACTOR AND NOT DIRECTLY BY HIMSELF. NOWHERE IT IS DISPUTED, IN FACT THAT AS P ER THE SANCTIONED PLAN THE BUILT UP AREA OF EACH FLAT IS WITHIN THE L IMIT I.E., BELOW 1500 SQ.FT. IN RESPECT OF SOME OF THE FLAT OWNERS, THE ASSESSING OFFICER DIRECTED THE BUILDER TO PRODUCE THEM. IN OUR OPINI ON, THE ASSESSING OFFICER COULD HAVE EXERCISED THIS POWER BETTER U/S. 131 OF THE ACT AS 10 BUILDER CANNOT FORCE ANY PERSON TO REMAIN PRESENT B EFORE THE ASSESSING OFFICER. THE FACT REMAINS THAT AS PER TH E EVIDENCE ON RECORD, THE APPROVAL OF THE LOCAL AUTHORITY TO THE SANCTIONED PLAN IS FOR THE INDEPENDENT FLAT AND WHAT THE FLAT OWNERS H AVE DONE SUBSEQUENTLY IS NOTHING TO DO WITH THE BUILDER. ON THE PERUSAL OF THE REASONS GIVEN BY THE LD. CIT(A), WE FIND THAT A S OBSERVED BY HIM, ONE OF THE FLAT OWNERS SMT.TULSI ANUJA STATED THAT THE RESPECTIVE TWO FLATS WERE CONVERTED INTO ONE SINGLE FLAT BEFORE THE OCCUPATION BY THE SAID FLAT OWNER AND THE SAID CONV ERSION WAS CARRIED OUT THROUGH THE CONTRACTOR/BUILDER. THE LD . CIT(A) ALSO REJECTED THE EXPLANATION OF THE ASSESSEE THAT THE F LATS WERE SOLD INDEPENDENTLY THROUGH SEPARATE DEEDS OF SALE. WHEN THERE IS DOCUMENTARY EVIDENCE IN THE FORM OF REGISTERED SALE DEED, CAN THAT BE DISCARDED WHILE FIXING THE LIABILITY ON THE ASSE SSEE. LAW IS WELL SETTLED THAT IN TAXING STATUTE, THE PRESUMPTIONS AN D ASSUMPTIONS HAVE NO ROLES TO PLAY. THE ASSESSING OFFICER HAS T O MAKE OUT CONVINCING CASE TO DISALLOW THE CLAIM OF THE ASSESS EE IF OTHERWISE THE CLAIM IS WELL SUPPORTED BY THE DOCUMENTARY EVID ENCE. EVEN AS PER THE GENERAL PRINCIPLES OF THE EVIDENCE ACT, THE FACT STATED IN THE REGISTERED DOCUMENT OR THE FACTS WHICH ARE REVEALED FROM THE PART OF THE PUBLIC DOCUMENT WHICH IS IN THE FORM OF THE SAN CTIONED PLAN BY THE CONCERNED LOCAL AUTHORITY, THAT CANNOT BE EASIL Y DISCARDED MERELY ON SOME ORAL EVIDENCE OR WRITING. IT IS CER TAINLY STRANGE THAT THERE ARE OBSERVATIONS BY THE LD. CIT(A) WITH HIS P ERSONAL KNOWLEDGE THAT THE COOPERATIVE SOCIETIES ARE MADE W ITH THE HELP OF THE BUILDER AND HE IS INDULGED IN TO SHOWING MORE M EMBERS IN THE SOCIETIES FOR ENSURING HIGHER REVENUE. WE ALSO FIN D THAT IN THE SUBSEQUENT ASSESSMENT YEAR, I.E., IN 2007-08, THE A SSESSEE HAS BEEN ALLOWED THE DEDUCTION. CERTAIN STRANGE OBSERV ATIONS ARE MADE BY THE LD. CIT(A) THAT THE ASSESSING OFFICER WHO IS IN THE RANK OF DY. COMMISSIONER OF INCOME-TAX, WAS NOT AWARE ABOUT THE FINDINGS GIVEN BY THE ITO, PUNE, IN ASSESSEES OWN CASE IN T HE IMMEDIATELY PRECEDING YEAR I.E., A.Y. 2006-07. IN OUR OPINION, BOTH THE AUTHORITIES BELOW HAVE ERRONEOUSLY DENIED THE DEDUC TION TO THE 11 ASSESSEE. WE, THEREFORE, ALLOW THE GROUNDS TAKEN BY THE ASSESSEE AND DIRECT THE ASSESSING OFFICER TO ALLOW THE DEDUC TION U/S.80IB(10) IN A.Y. 2006-07. 8. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON THIS THE 30 TH DAY OF APRIL, 2013. SD/- SD/- ( G.S.PANNU ) ( R.S.PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER GSPS PUNE, DATED THE 30 TH APRIL, 2013 COPY OF THE ORDER IS FORWARDED TO: 1. THE ASSESSEE 2. THE ITO, WARD-11(2), PUNE. 3. THE CIT(A)-I, PUNE. 4. THE CIT-I, PUNE. 5. THE DR B BENCH, PUNE. 6. GUARD FILE. BY ORDER //TRUE COPY// PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE.