M/s. Namrata Developers, Talegaon Dabhade V. ITO, Wd 8(3), Pune, Pune

ITA 557/PUN/2011

• Counselvise Citation: 55724514 RSA 2011
• Duration Of Justice: 2 year(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-05-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 07-11-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 29-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: NITIN W KHARE

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER , AND SHRI R.K.PANDA, ACCOUNTANT MEMBER. ITA.NO.557/PN/2011 (ASSTT. YEAR : 2007-08) M/S.NAMRATA DEVELOPERS, 592, RAVIWAR PETH, TALEGAON DABHADE, TALUKA MAVAL, DIST. PUNE .. APPELLANT PAN: AABFN735C VS. ITO, WARD-8(3), PUNE. .. RESPONDENT ASSESSEE BY : SHRI NITIN W.KHARE DEPARTMENT BY : SHRI ACHAL SHARMA DATE OF HEARING : 27.05.2013 DATE OF PRONOUNCEMENT : 28.05.2013 ORDER PER SHAILENDRA KUMAR YADAV, JM : THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) ON FOLLOWING GROUND: 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEAR NED COMMISSIONER OF INCOME-TAX(APPEALS)-V, PUNE, ERRED IN CONFIRMING THE DISALLOWANCE OF THE CLAIM U/S.80IB(1 0) OF THE INCOME TAX ACT, 1961. 2. BASICALLY THE ISSUE IS WITH REGARD TO DISALLOWAN CE OF CLAIM U/S.80IB(10) AMOUNTING TO RS.51,61,509/-. ASSESSEE FIRM IS A BUILDER AND DEVELOPER. THE ASSESSING OFFICER VIDE HIS ORDER DATED 24.12.2009 ASSESSED THE ASSESSEES TOTAL INCOME AT RS.51,61,510/- AS AGAINST RETURNED INCOME OF RS.1,10,145/-. BASIC ALLY, THE ADDITION HAS BEEN MADE ON ACCOUNT OF DISALLOWANCE U /S.80IB(10) WHICH HAS BEEN CONFIRMED BY THE CIT(A) AND THE DISA LLOWANCE IS MAINLY BEING ON ACCOUNT OF SIZE OF THE PLOT. THE S TAND OF THE ASSESSEE HAS BEEN THAT CIT(A) ERRED IN HOLDING THAT TWO BUILDINGS OF NAMRATA SATELLITE AND NAMRATA MAGIC CONSTITUTED TWO DIFFERENT 2 PROJECTS. THE CIT(A) ERRED IN CALCULATING THAT GRO SS AREA OF THE LAND IS OVER ONE ACRE, IT IS PHYSICALLY DIVIDED INTO TWO DIFFERENT PIECES DUE TO THE DP ROAD, OTHER ROAD, AND HCMTR PASSAGE. THE STAND OF THE ASSESSEE HAS BEEN THAT SIZE OF THE PLOT IS 8,800 SQ .MT. (6600 + 2200) AND SAME WAS CLEARLY STATED IN APPROVED SITE PLAN. GOVERNMENT APPROVED VALUER APPOINTED BY THE DEPARTMENT HAS ALS O REPORTED ON PAGE 1 OF HIS REPORT WHICH FORMED PART OF THE ASSES SMENT ORDER. THE SAID GOVERNMENT APPROVED VALUER HAS FURTHER GIV EN DETAILS OF LAND COVERED UNDER EACH BUILDING. ACCORDING TO THE LD. AUTHORISED REPRESENTATIVE INITIALLY APPROVED PLAN WAS SANCTION ED IN RESPECT OF PLOT OF LAND ADMEASURING 6600 SQ.MT. THE ASSESSEE FIRM FURTHER CONVERTED PLOT OF 2200 SQ.MT. THEREBY MAKING TOTAL CONSOLIDATED AREA OF LAND AS 8800 SQ.MT. ACCORDING TO LD. AUTHO RISED REPRESENTATIVE THIS WAS DISPLAYED IN APPROVED PLAN AS ALREADY BEEN CLARIFIED BY THE GOVERNMENT APPROVED VALUER, SHRI H ARSHAD RUPAREL, APPOINTED BY INCOME TAX DEPARTMENT. IN TH IS REGARD, LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT SECOND BUI LDING IS NOT CONSTRUCTED ON THIS SUBSEQUENTLY ACQUIRED PLOT. GO VERNMENT APPROVED VALUER WAS APPOINTED TO VERIFY THE DEDUCTI ON U/S.80IB(10). HOWEVER, THE ASSESSING OFFICER HAS CONVENIENTLY BRU SHED ASIDE THE SAID REPORT OF THE GOVERNMENT APPROVED VALUER WHILE DISALLOWING THE CLAIM U/S.80IB(10). THE LD. AUTHORISED REPRESENTAT IVE AMONG VARIOUS OBJECTIONS RAISED AN OBJECTION THAT NO OPPO RTUNITY WAS PROVIDED TO EXAMINE THE SAID GOVERNMENT VALUER WITH REGARD TO ITS REPORT. THUS, IN SUM AND SUBSTANCE, LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT DUE OPPORTUNITY WAS NOT PROVIDED TO THE ASSESSEE BY AUTHORITIES BELOW, WHICH IS NOT JUSTIFIED. ACCORDI NGLY, ORDERS OF THE AUTHORITIES BELOW BE SET ASIDE. 3. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATI VE SUPPORTED THE AUTHORITIES BELOW AND SUBMITTED THAT ASSESSEE IS NOT ENTITLED TO DEDUCTION U/S.80IB(10). 4. AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MA TERIAL ON RECORD, THE ISSUE BEFORE US IS WITH REGARD TO ALLOW ING THE CLAIM OF 3 DEDUCTION U/S.80IB(10) WHICH HAS BEEN DENIED BY LOW ER AUTHORITIES MAINLY ON ACCOUNT OF SIZE OF THE PLOT OF PROJECT. AS DISCUSSED ABOVE, THE GOVERNMENT VALUER WAS APPOINTED TO VERIFY THE S IZE OF THE PLOT FOR ALLOWING THE CLAIM OF DEDUCTION U/S.80IB(10). THE REPORT WHICH HAS BEEN MADE BASIS FOR DISALLOWING THE CLAIM OF DE DUCTION U/S.80IB(10) WAS NOT CONFRONTED TO ASSESSEE AT RELE VANT POINT OF TIME. THIS IS DENIAL OF PRINCIPLES OF NATURAL JUST ICE, WHICH IS NOT JUSTIFIED. SO IN THE INTEREST OF JUSTICE, WE SET A SIDE THE AUTHORITIES BELOW AND RESTORE THE MATTER TO THE ASSESSING OFFIC ER WITH DIRECTION TO DECIDE THE SAME AS PER FACT AND LAW AFTER PROVID ING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. SINCE WE A RE RESTORING THE ISSUE TO THE FILE OF THE ASSESSING OFFICER, WE ARE REFRAINING TO COMMENT ON THE MERIT OF THE ISSUE AT HAND. 5. AS A RESULT, APPEAL IS ALLOWED FOR STATISTICAL P URPOSES. PRONOUNCED IN THE OPEN COURT ON THIS THE 28 TH DAY OF MAY, 2013. SD/- SD/- ( R.K.PANDA ) ( SHAILENDRA KUMAR YAD AV ) ACCOUNTANT MEMBER JUDICIAL MEMBER GSPS PUNE, DATED THE 28 TH MAY, 2013 COPY OF THE ORDER IS FORWARDED TO: 1. THE ASSESSEE 2. THE ITO, WARD-8(3), PUNE. 3. THE CIT(A)-V, PUNE. 4. THE CIT-V, PUNE. 5. THE DR B BENCH, PUNE. 6. GUARD FILE. BY ORDER //TRUE COPY// PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE.