Dy.Comm.of Income Tax,Circle-8,, Nagpur V. M/s Maranas, Nagpur

ITA 55/NAG/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9622 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 8 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-12-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 23-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H WANARE
• Assessee Lawyers: M MANI
• Keywords: Revised return
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR E-BENCH, NAGPUR (THROUGH VIDEO CONFERENCE AT MUMBAI) . . , . / BEFORE SHRI R.K. GUPTA, JUDICIAL MEMBER / AND , . . SHRI RAJENDRA, ACCOUNTANT MEMBER . / ITA NO. 55/NAG/2011 / ASSESSMENT YEAR 2005-06 DY. COMMISSIONER OF INCOME TAX, CIRCLE 8, NAGPUR, 5 TH FLOOR, AMBEDKAR BHAWAN, SEMINARY HILLS. NAGPUR. VS. M/S. MAHARANAS, SHIVHARE BHAVAN, KOSHTIPURA, SITABULDI, NAGPUR. PAN: AABFM 6025 G ( / APPELLANT ) ( / RESPONDENT ) REVENUE BY : SHRI H. WANARE, ASSESSEE BY : SHRI M. MANI ! '#$ / DATE OF HEARING : 17-12-2012 %& ! '#$ / DATE OF PRONOUNCEMENT : 17-12-2012 '( / O R D E R PER RAJENDRA, AM THE PRESENT APPEAL IS DIRECTED AGAINST THE ORDER DT . 07-01-2011 PASSED BY THE CIT(A)-II, NAGPUR. THE GROUNDS OF APPEAL FILED BY THE ASSESSING OFFICER (AO) READS AS UNDER: ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE, TH E LD. CIT(A), ERRED IN HOLDING THAT DEDUCTION U/S. 80IB(10) OF THE I.T. ACT IS ALLOWABL E ON PRORATE BASIS IS RESPECT OF RESIDENTIAL UNITS. ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE, TH E LD. CIT(A), ERRED IN HOLDING THAT DEDUCTION U/S. 80IB(10) IN SPITE OF THE FACT THAT C OMMERCIAL UNITS WERE ALSO CONSTRUCTED BY THE ASSESSEE IN CONTRAVENTION OF THE PROVISION OF SECTION 80IB(10). ANY OTHER GROUND THAT MAY BE RAISED AT THE TIME OF HEARING. ITA NO. 55/NAG/2011 M/S. MAHARANAS 2 2. ASSESSEE-FIRM, ENGAGED IN THE BUSINESS OF CONSTRUCT ION OF BUILDINGS, FILED ITS RETURN OF INCOME ON 31-10-2008 DECLARING TOTAL INCO ME OF RS. 1.57 LAKHS. LATER ON A REVISED RETURN WAS FILED ON 27-06-2007 DECLARING TO TAL INCOME OF RS. 2.67 LAKHS. IN THE REVISED RETURN, CLAIM OF DEDUCTION U/S. 80IB (1 0) OF THE INCOME TAX ACT, 1961 (ACT) WAS ALSO REVISED. AO WAS OF THE OPINION THAT ASSESSEE HAD FAILED TO FULFIL THE CONDITIONS STIPULATED IN SECTION 80IB(10), BECAUSE THE HOUSING PROJECT WAS A MIX OF RESIDENTIAL AND COMMERCIAL UNITS. HE ISSUED A NOTI CE TO THE ASSESSEE ASKING IT TO EXPLAIN AS TO WHY DEDUCTION U/S. 80IB(10) SHOULD NO T BE DIS-ALLOWED. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, AO MAD E ADDITION OF RS. 20.44 LAKHS TO THE TOTAL INCOME OF THE ASSESSEE. 3. ASSESSEE PREFERRED AN APPEAL BEFORE THE FIRST APPEA L AUTHORITY (FAA). FOLLOWING THE ORDER OF HIS PREDECESSOR IN ASSESSEE S OWN CASE AND THE ORDER OF THE TRIBUNAL DT. 05-01-2009 (ITA NO. 345/NAG/2007), HE HELD THAT DEDUCTION U/S. 80IB(10) OF THE ACT WAS ALLOWABLE ON PRO-RATA BASIS . 4. BEFORE US, DEPARTMENTAL REPRESENTATIVE (DR) RELIED UPON THE ORDER OF THE AO, WHEREAS, AUTHORISED REPRESENTATIVE (AR) RELIED UPON THE ORDERS OF THE TRIBUNAL IN ITS OWN CASE PASSED FOR THE EARLIER YEARS (SUPRA). RES PECTFULLY FOLLOWING THE SAID ORDER OF THE TRIBUNAL, WE DECIDE BOTH THE GROUNDS OF APPEAL AGAINST THE AO. AS A RESULT, APPEAL FILED BY THE AO STANDS DISMISS ED. ORDER PRONOUNCED BY E-BENCH AT MUMBAI ON THIS 17 TH DAY OF DECEMBER, 2012. SD/- SD/- ( . . / R.K. GUPTA ) ( / RAJENDRA ) ') / JUDICIAL MEMBER $ ') / ACCOUNTANT MEMBER *+ MUMBAI, ,' DATE: 17 TH DECEMBER, 2012 TNMM COPY TO: 1. APP EL LANT 2. RESPONDENT 3. THE CONCERNED CIT (A) 4. THE CONCERNED CIT 5. DR, ITAT, NAGPUR 6. GUARD FILE -' ' //TRUE COPY// BY ORDER, ASST. REGISTRAR, ITAT