Asstt.CIT, Cen.Cir.2(2) Pune, Pune V. Marigold Premises Pvt.Ltd., Pune

ITA 536/PUN/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 85193 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 8 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 02-01-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 15-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M S VERMA
• Assessee Lawyers: HARI KISHAN
• Keywords: Question of law

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE MS. SUSHMA CHOWLA, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO.536/PN/2012 (ASSTT.YEAR : 2004-05) ACIT CENTRAL CIRCLE-2(2), PUNE .. APPELLANT VS. MARIGOLD PREMISES PVT. LTD., S.NO.15, KALYANI NAGAR, VADGAONSHERI, PUNE 411 014. PAN NO.AABCM2608J .. RESPONDENT ASSESSEE BY : SHRI HARI KISHAN REVENUE BY : MS. M.S. VERMA, CIT DATE OF HEARING : 20-11-2014 DATE OF PRONOUNCEMENT : 26-11-2014 ORDER PER R.K. PANDA, AM : THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER DATED 29-09-2011 OF THE CIT(A)-I, PUNE RELATI NG TO THE ASSESSMENT YEAR 2004-05. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE COMPANY IS A LIMITED COMPANY WHICH IS ENGAGED IN THE BUSINE SS OF (A) DEVELOPMENT AND CONSTRUCTION OF INDUSTRIAL PARK AT VADGAONSHERI, PUNE (B) DEVELOPMENT AND SALE OF RESI DENTIAL AND COMMERCIAL PROPERTIES. DURING THE IMPUGNED ASS ESSMENT YEAR, THE ASSESSEE CLAIMED DEDUCTION OF RS.10,74,83 ,088/- U/S.80IA(4)(III) RELATING TO THE PROFIT/INCOME EARN ED FROM THE DEVELOPMENT AND OPERATIONS OF THE INDUSTRIAL PARK N OTIFIED BY 2 THE PRESCRIBED AUTHORITY AS PER INDUSTRIAL PARK SCH EME 2002 SO-354(E) DATED 01-04-2002. DURING THE COURSE OF A SSESSMENT PROCEEDINGS, ON BEING QUESTIONED BY THE ASSESSING O FFICER TO JUSTIFY THE CLAIM, IT WAS STATED THAT SEPARATE BOOK S OF ACCOUNTS ARE BEING MAINTAINED FOR BOTH THE AFORESAID ACTIVIT IES. THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAS NOT C OMPLIED TO THE REQUIREMENTS OF THE PROVISIONS OF SECTION 80IA( 4)(III) R.W. RULE 18C. FURTHER, ACCORDING TO THE ASSESSING OFFI CER IF THE DEDUCTION IS HELD TO BE ALLOWABLE SUBSEQUENTLY, THE N THE RENTAL INCOME, INTEREST INCOME AND OTHER INCOME SHOWN BY T HE ASSESSEE SHOULD BE HELD TO BE INELIGIBLE FOR BEING THE INCOME OF THE INDUSTRIAL PARK FOR THE COMPUTATION OF THE DEDU CTION. RELYING ON VARIOUS DECISIONS THE ASSESSING OFFICER DENIED THE BENEFIT OF DEDUCTION CLAIMED BY THE ASSESSEE U/S. 8 0IA(4)(III) OF THE I.T ACT. 3. IN APPEAL THE LD.CIT(A) ALLOWED THE CLAIM OF THE ASSESSEE HOLDING THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S. 80IA(4)(III) OF THE I.T. ACT. 4. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE REVE NUE IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT(A) HAS ERRED IN ALLOWING THE DEDUCTI ON U/S. 80IA(4)(III) OF THE I. T. ACT , 1961, WHEN THERE WA S NO NOTIFICATION AT THE TIME OF COMPLETION OF THE ASSESSMEN T. (THE NOTIFICATION NO. 209/2007/F.NO. 178/78/2007-ITA-I O F CBDT HAS BEEN ACTUALLY ISSUED ON 03/07/2007). 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT(A) HAS ERRED IN HOLDING THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S. 80IA(4)(III) OF THE I. T . ACT, 1961 3 THOUGH THE SPECIFIC CONDITION IN THE NOTIFICATION PE RTAINING TO THE ASSESSEE REGARDING THE NUMBER OF UNITS WAS NOT FULFIL LED. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD CIT(A) HAS ERRED IN NOT CONSIDERING THE R ATIOS OF THE DECISIONS OF THE HON'BLE ITAT FOR THE A.Y. 2003-04 (I TA NO. 723/PN/2007) DATED 24/06/2011 AS DECIDED BY THE DECI SION OF THE THIRD MEMBER DISMISSING THE ASSESSEE CLAIM FOR DEDUCTION U/S. 80IA. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD CIT(A) HAS ERRED IN HOLDING THAT THE ASSESSE E IS ELIGIBLE FOR DEDUCTION U/S. 80IA(4)(III) OF THE I. T . ACT, 1961, FOR THE YEAR UNDER CONSIDERATION WHEN PMC HAS ISSUED COMP LETION CERTIFICATE FOR ONLY 6 UNITS AS AGAINST MINIMUM OF 105 UNITS SPECIFIED IN THE NOTIFICATION DATED 03/07/2007. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD CIT(A) HAS ERRED IN HOLDING THAT THE ASSESSE E WAS ELIGIBLE FOR DEDUCTION U/S.80IA(4) OF THE I.T. ACT, 1961 ON RENTAL INCOME. 5. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET S UBMITTED THAT THE ISSUE STANDS DECIDED AGAINST THE ASSESSEE BY THE DECISION OF THE PUNE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2003-04 VIDE ITA NO.723/PN/2007 ORDER DATED 24 -06- 2011. THE LD. COUNSEL FOR THE ASSESSEE REFERRED TO THE DECLARATION U/S.158A(1) FILED IN FORM NO.8 ALONG WI TH A COPY OF THE ORDER OF THE JURISDICTIONAL HIGH COURT VIDE IN COME TAX APPEAL NO.484/2012 ORDER DATED 26-03-2013 WHEREIN T HE HONBLE HIGH COURT HAS ADMITTED THE APPEAL OF THE A SSESSEE ON THE FOLLOWING SUBSTANTIAL QUESTIONS OF LAW : (A) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE TRIBUNAL ERRED IN DENYING THE D EDUCTION CLAIMED BY THE APPELLATE AMOUNTING TO RS.72,28,116/- UNDER SECTION 80IA(4)(III) OF THE ACT IN RESPECT OF INCOME DERIVED BY IT FROM THE INDUSTRIAL PARK FOR ASSESSMENT YEAR 2003-04. (B) WHETHER IT IS OPEN TO THE TRIBUNAL TO RELY UPON RULE 18C OF THE RULES AND CERTAIN PROVISIONS FROM THE INDUSTRIAL PARK SCHEME, 2002 AS LAYING DOWN THE CONDITION CONSTRUCTIO N OF THE MINIMUM NO. OF UNITS SHOULD BE COMPLETED BEFORE DEDUC TION 4 COULD BE CLAIMED UNDER SECTION 80IA(4)(III) OF THE A CT, WHEN NO SUCH CONDITION EXISTS IN THE SAID SECTION. (C) WHETHER THE NOTIFICATION BY THE CENTRAL BOARD O F DIRECT TAXES NOTIFYING THE APPELLANTS INDUSTRIAL PARK VIDE N OTIFICATION DATED JULY 03, 2007 RELATES BACK TO THE DATE ON WHIC H THE APPELLANT FILED THE APPLICATION ON JANUARY 31, 2003 OR IN THE LEAST FROM FEBRUARY 17, 2003, I.E. THE DATE ON WHICH THE PROJECT WAS APPROVED BY THE MINISTRY OF COMMERCE AND INDUSTRY IN THE GOVERNMENT OF INDIA?. HE SUBMITTED THAT THE ASSESSING OFFICER HAS ALREADY SENT HIS REPORT U/S.158A R.W. RULE 16 VIDE LETTER DATED 22-0 4-2014. HE ACCORDINGLY SUBMITTED THAT APPROPRIATE ORDER MAY BE PASSED. 6. THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE O THER HAND FAIRLY CONCEDED THAT IDENTICAL QUESTION OF LAW HAS BEEN ADMITTED BY THE HONBLE HIGH COURT WHICH IS PENDING FOR DISPOSAL. THEREFORE, APPROPRIATE ORDER MAY BE PASS ED. 7. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE AS SESSEE. THERE IS NO DISPUTE TO THE FACT THAT THE ISSUE RELA TING TO ALLOWABILITY OF DEDUCTION U/S. 80IA(4)(III) OF THE I.T. ACT HAS BEEN DECIDED AGAINST THE ASSESSEE BY THE TRIBUNAL I N ASSESSEES OWN CASE FOR A.Y. 2003-04. IN VIEW OF THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE, THE GROUNDS RAISED BY THE REVENUE ARE ALLOWED. HOWEVER, ON FURTHER APPEAL BY THE ASSESSEE, THE HONBLE HIGH COURT HAS ALREADY ADMITT ED THE 3 SUBSTANTIAL QUESTIONS OF LAW WHICH ARE ALREADY MENT IONED AT PARA 5 ABOVE. THEREFORE, IN VIEW OF THE DECLARATIO N U/S.158A(1) FILED BY THE ASSESSEE IN FORM NO.8, WE DIRECT THE A SSESSING 5 OFFICER TO AMEND THE ORDER IF THE ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THE HIGHER AUTHORITIES AT A LATER DATE. WE HOLD AND DIRECT ACCORDINGLY. GROUNDS RAISED BY THE REVENUE ARE ACCORDINGLY ALLOWED. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S ALLOWED. PRONOUNCED IN THE OPEN COURT ON 26-11-2014. SD/- SD/- (SUSHMA CHOWLA) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED : 26 TH NOVEMBER 2014 SATISH COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT(A)-I, PUNE 4. CIT-I, PUNE 5. D.R. A BENCH, PUNE 6. GUARD FILE BY ORDER // TRUE COPY // ASSIST ANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, PUNE