Paras Bhomraj Oswal, Kolhapur V. Assistant Commissioner of Income-tax,

ITA 560/PUN/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0944 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2004-2005
• Appeal Filed On: 27-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMITRA BANERJI
• Section: 263; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, PUNE . . , BEFORE SHRI R.K. PANDA, AM . / ITA NOS.559 & 560/PN/2015 / ASSESSMENT YEARS : 2003-04 & 2004-05 SHRI PARAS BHOMRAJ OSWAL, PROP. M/S. POOJA BUILDERS & DEVELOPERS, BHAKTI POOJA NAGAR, MANGALWAR PETH, KOLHAPUR PAN : AABPO1487C . / APPELLANT V/S ACIT, CIRCLE - 1, KOLHAPUR . / RESPONDENT / APPELLANT BY : SHRI M.K. KULKARNI / RESPONDENT BY : SMT. SUMITRA BANERJI / ORDER PER R.K.PANDA, AM : THE ABOVE 2 APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER DATED 23-02-2015 OF THE CIT(A)-1 & 2, KOLHAP UR RELATING TO ASSESSMENT YEARS 2003-04 & 2004-05 RESPECTIVELY. FOR THE SAKE OF CONVENIENCE THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER. 2. IDENTICAL GROUNDS HAVE BEEN RAISED BY THE ASSESSEE FOR BOTH THE YEARS. THE GROUNDS OF APPEAL FOR A.Y. 2003-04 ARE BEING REPRODUCED AS THE LEAD CASE : WITHOUT PREJUDICE TO EACH OTHER 1. THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW T HE LD. CIT(A) WAS NOT JUSTIFIED IN' DELIVERING HIS APPEAL ORDER WITH OUT APPLYING HIS MIND TO THE FACTS OF THE CASE IN THE DETAILED WRITTEN SUBMI SSIONS SUBMITTED / DATE OF HEARING :21.09.2016 / DATE OF PRONOUNCEMENT:23.09.2016 2 ITA NOS.559 AND 560/PN/2015 BEFORE HIM BEFORE HEARING OF THE APPEAL. IT WAS EXPE CTED OF HIM TO GO THROUGH ENTIRE SUBMISSIONS BEFORE DECIDING THE APPEAL. THE ORDER OF THE LD. CIT(A) BE SET ASIDE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LA W THE A. O. WAS NOT JUSTIFIED AND CIT(A) CONFIRMING THE ORDER OF THE A. O. U/S 144 WHEN COMPLETE INFORMATION WAS SUBMITTED ON RECORD IN RESPON SE TO NOTICES AND COMMUNICATIONS. THE ASSESSMENT THEREFORE, BE ANNULLED BY SETTING ASIDE THE ORDER OF CIT(A). 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LA W THE ASSESSMENT COMPLETED AFTER IT WAS SET ASIDE BY CIT-KOLHAPU R UNDER S. 263 OF THE ACT SHOULD HAVE BEEN COMPLETED WITHIN THE LIM ITATION LAID DOWN IN S. 153(2A) OF THE ACT. THE ASSESSMENT COMPLETED VIDE ORDER DT. 18-3-2014 IS BAD IN LAW AND THE SAME BE QUASHED. THE LD. CIT(A) FA ILED TO APPRECIATE THIS LEGAL ISSUE THOUGH WRITTEN SUBMISSIONS WERE MADE TO T HAT EFFECT. THE APPEAL ORDER SUFFERS FROM THE NON-APPLICATION OF MIND . THE SAME BE SET ASIDE. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LA W AND SINCE HON'BLE BOMBAY HIGH COURT HAS HELD THE CL. (D) INSERT ED IN S. 80-IB(10) W.E.F. 1-4-2005 IS PROSPECTIVE AND NOT RETROSPECTIVE, THE SAID CLAUSE (D) WAS NOT APPLICABLE TO THE FACTS OF THE CASE INVO L VED IN A. Y. 2003-04 WHICH IS PRIOR TO 01-4-2005. THE ORDER PASSED BY CIT(A) WITH OUT CONSIDERING THE JURISDICTIONAL HIGH COURT JUDGMENT IS BAD IN LAW AND WITHOUT JURISDICTION. IT BE QUASHED AND SET ASIDE. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW THE CIT(A) WAS NOT JUSTIFIED IN DISALLOWING THE CLAIM OF DEDUCTIO N UNDER S. 80IB(10) OF THE ACT AND THE LD. CIT(A) CONFIRMING HIS ORDER WHIC H ORDER OF THE A.O. IS CONTRARY TO THE PROVISIONS OF LAW AND THEREFORE, IS I LLEGAL AND WITHOUT JURISDICTION. THE DISALLOWANCE BE DELETED. 6. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LA W THE LEVY OF INTEREST U/S 234A, 2348 AND 234C IS NOT JUSTIFIED. 7. THE APPELLANT CRAVES/LEAVE TO ADD, AMEND OR ALTER ANY OF THE ABOVE GROUNDS OF APPEAL. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE HAD FILED HIS RETURN OF INCOME ON 31-03-2004 DECLARING TAXABLE INCOME O F RS.2,19,760/-. THE AO PASSED THE ORDER U/S.143(3) DATED 2 9-12-2005 DETERMINING THE TOTAL INCOME AT RS.39,77,805/-. IN THE SAID ORDER THE AO HAD DISALLOWED THE CLAIM OF DEDUCTION U/S.80IB(10) AMOUNTIN G TO RS.37,58,016/-. 3 ITA NOS.559 AND 560/PN/2015 4. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A) WH O VIDE ORDER DATED 28-11-2006 DELETED THE ADDITION MADE BY TH E AO AND ALLOWED THE APPEAL FILED BY THE ASSESSEE. ON FURTHER APPEA L BY THE REVENUE THE TRIBUNAL VIDE ORDER DATED 30-06-2009 RESTO RED THE MATTER BACK TO THE FILE OF THE AO TO DECIDE THE ISSUE DENOVO FOLLO WING THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF BRAHMA ASSOCIATE AND OTHERS VIDE ORDER DATED 06-04-2009. AGA INST THIS ORDER, THE ASSESSEE FILED A MISCELLANEOUS APPLICATION FOR NON DISPOSA L OF OTHER ISSUES IN THE APPEAL FILED BY THE ASSESSEE. SINCE THE MA W AS NOT DECIDED BY THE TRIBUNAL THE AO PASSED AN ORDER U/S.143(3 ) ON 31-12- 2010 STATING AS UNDER : AS THE ABOVE ISSUES WERE NOT DECIDED BY THE HONBLE IT AT, A MISCELLANEOUS APPLICATION DATED 24-12-2010 HAS BEEN FI LED BY THE DEPARTMENT, THE DECISION OF THE HONBLE ITAT IS STILL AWAITED. 7. FURTHER, AGAINST THE DECISION OF HONBLE ITAT, SPE CIAL BENCH, PUNE IN THE CASE OF BRAHMA ASSOCIATE & OTHERS, REVENUE HAS PR EFERRED APPEAL BEFORE THE HONBLE HIGH COURT OF MUMBAI, DECISION OF WHICH IS STILL AWAITED. 8. IN VIEW OF THE FOREGOING PARAS, FINAL DECISION ON ALLOWABILITY OF DEDUCTION U/S.80IB TO THE ASSESSEES PROJECT BHAKTI POOJ A NAGAR WILL BE TAKEN AS AND WHEN THE DECISION OF HONBLE ITAT ON THE MISCELLENEOUS APPLICATION FILED BY THE REVENUE IN THE ASSESSEES OWN C ASE. 9. AS SUCH, COMPUTATION OF INCOME OF THE ASSESSEE FOR THE A.Y. 2003-04 IS TO REMAIN THE SAME AS IN THE ORDER GIVING EFFECT TO ORDER OF CIT(A). 10. ASSESSED U/S.143(3) OF THE I.T. ACT, 1961. NO DEMAND . 5. THE LD.CIT VIDE ORDER DATED 26-03-2013 PASSED U/S.26 3 HELD THAT THE ORDER PASSED BY THE AO U/S.143(3) DATED 31-12 -2010 WAS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. HE ACCORDINGLY SET ASIDE THE MATTER TO THE FILE OF THE A O FOR DETERMINATION OF THE ISSUES INVOLVED IN TERMS OF THE DIRECTIO N GIVEN BY THE TRIBUNAL VIDE ITS ORDER DATED 30-06-2009. IT MAY BE PERTINENT TO MENTION HERE THAT THE TRIBUNAL VIDE ORDER DATED 22-02-2 013 DISMISSED 4 ITA NOS.559 AND 560/PN/2015 THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE. THE AO, TH EREAFTER, PROCEEDED TO COMPLETE THE ASSESSMENT SUBSEQUENT TO T HE ORDER PASSED U/S.263 BY ISSUING STATUTORY NOTICES U/S.143(2) AND 142(1). REJECTING THE VARIOUS EXPLANATIONS GIVEN BY THE ASSESSEE AND CONS IDERING THE FACT THAT THE BUILT UP AREA IN SOME OF THE RESIDENTIAL UNIT S EXCEEDED 1500 SQ.FT. AND NON-FULFILMENT OF VARIOUS OTHER CONDITIONS THE AO DISALLOWED THE CLAIM OF DEDUCTION U/S.80IB(10) AT RS.37,58,044/ - IN THE ORDER PASSED U/S.144 R.W.S. 263 OF THE I.T. ACT. 6. SIMILARLY FOR A.Y. 2004-05 THE AO DISALLOWED THE CLAIM U/S.80IB(10) AT RS.39,22,272/-. 7. IN APPEAL THE LD.CIT(A) UPHELD THE ACTION OF THE AO. AG GRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSESSEE IS IN APPEAL B EFORE THE TRIBUNAL. 8. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET REFE RRING TO THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.YRS. 20 05-06 TO 2009-10 VIDE ITA NOS. 561 TO 565/PN/2013 AND CO NO.14/ PN/2013 ORDER DATED 29-11-2013 SUBMITTED THAT THE TRIBUNAL HAS RESTORED THE ISSUE RELATING TO DEDUCTION U/S.80IB(10) TO THE FILE OF THE AO WITH CERTAIN DIRECTIONS. REFERRING TO THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2011-12 VIDE ITA NO.1300/PN/2014 ORDER DATED 12-08-2016 HE SUBMITTED THAT THE TRIBUNAL IN THE SAID OR DER HAS ALSO RESTORED THE ISSUE RELATING TO DEDUCTION U/S.80IB(10) TO THE FILE OF THE AO FOR DECIDING THE ISSUE. HE ACCORDINGLY SUBMITTED THAT THESE TWO APPEALS ALSO SHOULD BE RESTORED TO THE FILE OF THE AO FOR DECIDING THE ISSUE OF DEDUCTION U/S.80IB(10) IN THE LIGHT OF THE DIRECTION OF THE TRIBUNAL FOR SUBSEQUENT YEARS. 5 ITA NOS.559 AND 560/PN/2015 9. THE LD. DEPARTMENTAL REPRESENTATIVE WHILE SUPPORTING T HE ORDER OF THE CIT(A) FAIRLY SUBMITTED THAT SHE HAS NO OBJECTION IF THE MATTER IS RESTORED TO THE FILE OF THE AO FOR ADJUDICATION OF THE ISSU E IN THE LIGHT OF THE DIRECTION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR S UBSEQUENT YEARS. 10. I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE AO AND CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. I HAVE ALSO CONSIDERED THE VARIOU S DECISIONS CITED BEFORE ME. I FIND THE AO IN THE ORDER PASSED U/S.14 4 R.W.S. 263 HAS DISALLOWED THE CLAIM OF DEDUCTION U/S.80IB(10) AMOUNTING TO RS.37,58,044/- FOR A.Y. 2003-04 AND RS.39,22,272/- FOR A.Y. 200 4-05 ON THE GROUND THAT THE ASSESSEE HAS VIOLATED THE CON DITIONS PRESCRIBED U/S.80IB(10) SINCE THE BUILT UP AREA OF SOME OF THE RESIDENT IAL UNITS EXCEEDED THE PRESCRIBED LIMIT OF 1500 SQ.FT. I FIND THE LD.C IT(A) UPHELD THE ACTION OF THE AO. 11. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESS EE THAT UNDER IDENTICAL FACTS THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.YRS. 2005-06 TO 2009-10 VIDE ITA NOS. 561 TO 565/PN/2013 O RDER DATED 29-11-2013 HAS RESTORED THE ISSUE TO THE FILE OF THE AO WITH CERTAIN DIRECTIONS. FURTHER, FOLLOWING THE ABOVE DECISION THE TRIBUN AL IN ASSESSEES OWN CASE FOR A.Y. 2011-12 VIDE ITA NO.1300/PN /2014 ORDER DATED 12-08-2016 HAS ALSO RESTORED THE ISSUE TO THE FILE OF THE AO WITH CERTAIN DIRECTIONS. IN VIEW OF THE ABOVE, I FIND MER IT IN THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE A BOVE TWO APPEALS ALSO SHOULD BE RESTORED TO THE FILE OF THE AO FOR DECIDING THE ISSUE AFRESH IN THE LIGHT OF THE DIRECTION OF THE TRIBUNAL. I ACCORDINGLY SET ASIDE THE ORDERS OF THE CIT(A) FOR BOTH THE YEARS AN D RESTORE THE MATTER FOR BOTH YEARS TO THE FILE OF THE AO FOR DECIDING TH E ISSUE AFRESH 6 ITA NOS.559 AND 560/PN/2015 IN THE LIGHT OF THE DIRECTION OF THE TRIBUNAL FOR A.YRS. 2005- 06 TO 2009- 10 AND 2010-11. GROUNDS RAISED BY THE ASSESSEE ARE A CCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 12. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 23-09-2016. SD/- ( R.K. PANDA ) ACCOUNTANT MEMBER PUNE ; DATED :23 RD SEPTEMBER, 2016. '# $# / COPY OF THE ORDER FORWARDED TO : / BY ORDER , /// // $ % / TRUE COPY // // TRUE COPY // &' % * / SR. PRIVATE SECRETARY *, / ITAT, PUNE 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT (A) - 1 & 2, KOLHAPUR 4. THE CIT- 1 & 2, KOLHAPUR 5. $ %%* , * , SMC BENCH / DR, ITAT, SMC BENCH PUNE; 6. 2 / GUARD FILE.