DCIT, Uttrakhand V. Shri Ved Prakash Gupta, Uttrakhand

ITA 5531/DEL/2013

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0083 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 01-06-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 10-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJNA
• Assessee Lawyers: ASHWINI TENEJA
• Section: 80IB

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL IN (DELHI BENCH H NEW DELHI) BEFORE SHRI N.K.SAINI, ACCOUNTANT MEMBER AND SMT GEORGE GEORGE K, JUDICIAL MEMBER ITA NO. 5531 /DEL/2013 (ASSESSMENT YEAR: 2010-11) DCIT VS. VED PRAKASH GUPTA INCOME TAX OFFICE, TAL LI BAMORI, HALDWANI, DISTT. NAINITAL HAL DWANI UTTRAKHAND UTTRAKHAND PAN : ADDPG3515 G (APPELLANT) (RESPONDE NT) APPELLANT BY : SH. P.DAM KANUNJNA, SR. DR RESPONDENT BY : SH. ASHWINI TENEJA , CA DATE OF HEARING : 01/06/2015 DATE OF PRONOUNCEMENT : 03 /06/2015 ORDER PER N.K.SAINI, A. M. : 1. THIS IS AN APPEAL BY THE DEPARTMENT AGAINST TH E ORDER DATED 29/07/2013 OF CIT(A)- II, DEHRADUN. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS AP PEAL :- 1. THAT THE LD. CIT(A) II, DEHRADUN HA S ERRED IN LAW AND ON FACT IN ALLOWING PROPORTIONATE DEDUCTION U/S 80IB OF ITA NO. 5531 / DEL/2013 2 THE I.T.ACT 1961 WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAS VIOLATED THE CONDITIONS LAID DOWN IN 8 0IB (10) (C) & 80IB(10) (F) OF THE I.T.ACT, 1961 AND THERE I S NOTHING IN THE SECTION TO SAY THAT THE PRECONDITIONS LAY DOWN IN STATUTE SATISFIED IN PORTION WILL MAKE ASSESSEE ELIGIBLE FO R CLAIMING PROPORTIONATE DEDUCTION. 1. THAT THE ORDER OF THE LD. CIT(A)-II, DEHRADUN IS AGAINST THE SPIRIT OF LEGISLATURE AND THE ORDER OF THE AO IS LI ABLE TO BE RESTORE. 2. THAT THE APPELLANT CRAVES, LEAVE TO ADD, ALTER, AMEND OR VARY FROM THE ABOVE GROUNDS OF APPEAL. 3. THE ONLY GRIEVANCE OF THE DEPARTMENT IN THIS APPEAL RELATES TO THE DEDUCTION U/S 80IB OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED AS THE ACT). 4. THE FACTS OF THE CASE IN BRIEF ARE THAT THE AS SESSEE E-FILED ITS RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 15,7 1,410/- ON 15.10.2010 LATER ON THE CASE WAS SELECTED FOR SCRUT INY. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO NOTICED TH AT THE ASSESSEE CLAIMED DEDUCTION OF RS. 21,35,110/- U/S 80 IB OF T HE ACT. THE AO DID NOT ALLOW THE CLAIM OF THE ASSESSEE BY OBSERVING TH AT THERE WAS NOTHING IN THE SECTION 80IB TO SAY THAT THE PRE-CON DITION LAID DOWN IN STATUTE SATISFIED IN PORTION AND ASSESSEE GET PROPO RTIONATE DEDUCTION. THE AO HELD THAT THE ASSESSEE VIOLATED THE CONDITIO NS LAID DOWN IN SECTION 80 IB(10) (C) AND (F) OF THE ACT. HE THEREF ORE, DISALLOWED THE CLAIM OF RS. 21,31,110/- U/S 80IB OF THE ACT. ITA NO. 5531 / DEL/2013 3 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND SUBMITTED THAT THE UNITS CONFIRMING TO T HE DIMENSION SHOULD BE ALLOWED FOR DEDUCTION U/S 80IB OF THE ACT , HOWEVER, THE ASSESSEE DID NOT CHALLENGE THE DENIAL OF RELIEF ON THE UNITS EXCEEDING THE STIPULATED DIMENSIONS. THE RELIANCE WAS PLACED ON THE FOLLOWING CASE LAWS :- (I) SJR BUILDERS VS. ACIT [ITA NO. 1192/BANG./2008] ; AND (II) VISWAS PROMOTERS (P) LTD. VS. ACIT [TC (APPEA L) NOS. 1014 OF 2009, 857 OF 2010 AND 190 TO 192 OF 2012, W.A. N O. 471 OF 2010} 6. THE LD. CIT ALLOWED THE CLAIM OF THE ASSESSEE BY OBSERVING AS UNDER :- 3.1. THE FINDING OF LD. AO AND THE CAS E LAWS CITED BY THE LD. AR HAVE BEEN PERUSED. THE 2 CASES CITED ARE SQU ARELY ON THE ISSUE OF ALLOWING RELIEF ON PRO RATA BASIS W ITH RESPECT TO UNITS FULFILLING NORMS. IN VIEW OF THIS THE LD. AO IS DIRECTED TO ALLOW RELIEF U/S 80IB OF THE ACT FOR THOSE UNITS WH ICH FULFILL THE STIPULATED NORMS. NOW THE DEPARTMENT IS IN APPEAL. 7. THE LD. DR REITERATED THE OBSERVATIONS MAD E BY THE AO IN THE ASSESSMENT ORDER DATED 07.03.2013 AND FURTHER S UBMITTED THAT THE DEDUCTION U/S 80IB IS NOT ALLOWABLE ON PRO RATA BASIS, THEREFORE, THE LD. CIT(A) WAS NOT JUSTIFIED IN ALLOWING THE CL AIM OF THE ASSESSEE. 8. IN HIS RIVAL SUBMISSIONS, THE LD. COUNSEL FO R THE ASSESSEE STRONGLY SUPPORTED THE ORDER OF THE LD. CIT(A) AND FURTHER SUBMITTED ITA NO. 5531 / DEL/2013 4 THAT THE DEDUCTION U/S 80IB IS ALLOWABLE ON PRO RAT A BASIS FOR THOSE DWELLING UNTIS WHICH HAD BUILD UP AREA LESS THAN 1, 500 SQ. FT. THE RELIANCE WAS PLACED ON THE FOLLOWING CASE LAWS :- (I) VISWAS PROMOTERS (P) LTD. V. ACIT 255 CTR 149 {2013} (MAD HC) (II) CIT VS. ARUN EXCELLO FOUNDATIONS (P.) LTD. 259 CTR 362 (MAD) (III) ACIT V. BENGAL AMBUJA HOUSING D EVELOPMENT LIMITED-ITAT-C BENCH, KOLKATA, IN I.T.A. NO. 1595/KOL/2005 FOR THE A.Y. 2002-03, ORDER DATED 24.03.2006. (IV) DY. CIT VS. BRIGADE ENTERPRISE S (P) LTD. 14 DTR 371 (BANG) (V) ITO VS. AIR DEVELOPERS 25 DTR 287 (NAG) (VI) SREEVASTSA REAL ESTATES (P) LTD. VS. ITO 41 DTR 497 (CHENNAI D) (VII) SANGHVI & DOSHI ENTERPRISES VS . ITO 60 DTR 306 (CHENNAI A (ATM) (VIII) DY. CIT VS. MANGARPATTA TOWNSHI P DEVELOPMENT & CONSTRUCTION CO. 79 DTR 150 (PUNE B) (IX) DY. COMMISSIONER OF IT V. M/S EKTA HOUSING P. LTD.IN I.T.A. NO. 3649/MUM/2009, ORDER DATED 20.05.2011 (X) ACIT VS. JAIN HOUSING & CONSTRUCT IONS LTD. IN I.T.A. NO. 1369/MDS./2009, ORDER DATED 05.02.2010 (XI) ACIT V. SHETH DEVELOPERS P. LTD. 33 SOT 277 (MUM.) (XII) SJR BUILDERS V. ACIT, 3 ITR (TRIB.) 569 (MUM ) 9. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE IT APPEARS THAT THE AO DISALLOWED THE CLAIM OF THE ASSESSEE FOR THE REASON THAT FEW OF THE UNITS EXCEEDED STIPULATED DI MENSIONS OF 1,500 SQ. FT. HE DID NOT ALLOW THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 80IB ON THOSE UNITS ALSO WHICH WERE HAVING THE BUIL T UP AREA OF LESS ITA NO. 5531 / DEL/2013 5 THAN 1500 SQ. FT. THIS ISSUE IS SQUARELY COVERED BY THE AFORESAID REFERRED TO DECISIONS OF THE VARIOUS BENCHES OF THE ITAT. 10. THE HONBLE MADRAS HIGH COURT IN THE CASE OF VISWAS PROMOTERS P. LTD. VS. ACIT 255 CTR 149 (SUPRA) ON A SIMILAR ISSUE HELD THAT THE ASSESSEE WAS ENTITLED TO HAVE BENEFIT OF DEDUCTION U/S 80IB (10) FOR RESIDENTIAL FLATS SATISFYING LESS TH AN 1500 SQ. FT. CONDITION. 11. WE, THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS DO NOT SEE ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A) WH O DIRECTED THE AO TO ALLOW THE RELIEF U/S 80IB OF THE ACT ON THOSE UNIT S WHICH FULFIL THE STIPULATED NORMS. ACCORDINGLY, WE DO NOT SEE ANY MERIT IN THIS APPEAL OF THE DEPARTMENT. 12. IN THE RESULT, APPEAL OF THE DEPARTMENT IS DISM ISSED. (ORDER PRONOUNCED IN OPEN COURT ON 03JUNE, 2015.) SD/- SD/- (GEORGE GEORGE K) (N.K.SAINI) JUDICIAL MEMBER ACC OUNTANT MEMBER DATED 03JUNE, 2015 BINITA COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. CIT (ITAT), NEW DELHI. ITA NO. 5531 / DEL/2013 6 AR, ITAT N. DELHI