DCIT, Jaipur V. GURU PRAGYA INFRA (P) LTD., Jaipur

ITA 597/JPR/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 5604 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2017
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 02-06-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PRATIMA KAUSHIK CIT DHK
• Assessee Lawyers: ANIL KUMAR NUHAL
• Section: 43B; 80IB

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS [KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA-@ ITA NO. 597/JP/16 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2011-12 THE DY. COMMISSIONER OF INCOME TAX, CIRCLE-2, JAIPUR CUKE VS. M/S GURU PRAGYA INFRA (P) LTD., B-17, NIRMAN NAGAR, AJMER ROAD, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AACCG 8882 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO.598/JP/16 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2012-13 THE DY. COMMISSIONER OF INCOME TAX, CIRCLE-2, JAIPUR CUKE VS. M/S GURU PRAGYA INFRA (P) LTD., B-17, NIRMAN NAGAR, AJMER ROAD, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AACCG 8882 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI ANIL KUMAR NUHAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SMT. PRATIMA KAUSHIK ( CIT ) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 09.02.2017 ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 10/02/2017. VKNS'K@ ORDER PER SHRI VIKRAM SINGH YADAV, A.M. THESE ARE TWO APPEALS FILED BY THE REVENUE AGAINST TWO SEPARATE ORDERS OF LD. CIT (A)-I, JAIPUR DATED 30.03.2016 FOR A.Y. 2011-12 AND A.Y. 2012-13 RESPECTIVELY. ITA NOS. 597 & 598/JP/16 THE DCIT, CIRCLE-2, JAIPUR VS. GURU PRAGYA INFRA (P ) LTD. JAIPUR 2 IN THESE APPEALS, THE REVENUE HAS TAKEN FOLLOWING G ROUNDS OF APPEAL: IN ITA NO. 597/JP/16 A.Y. 2011-12: (1) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS . 3,96,42,786/- MADE ON A/C OF DISALLOWANCE OF DEDUCTION CLAIMED 80-IB(10) OF THE ACT. IN ITA NO. 598/JP/16 A.Y. 2012-13: (1) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS . 2,96,80,114/- MADE ON A/C OF DISALLOWANCE OF DEDUCTION CLAIMED 80-IB(10) OF THE ACT.. (2) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS .51,764/- MADE U/S 36(1)(VA) OF THE I.T. ACT. 2. AT THE START OF THE HEARING, AN ADJOURNMENT APPL ICATION WAS MOVED BY SHRI ANIL KUMAR NUHAL REPRESENTING KALANI & CO. CHA RTERED ACCOUNTANTS STATING THAT THE LD. COUNSEL FOR THE ASSESSEE SHRI P.C. PAR WAL WHO WAS TO ARGUE THE MATTER COULD NOT ATTEND THE SUBJECT HEARING DUE TO CERTAIN PERSONAL EXIGENCIES. IT WAS ACCORDINGLY REQUESTED TO ADJOURN THE HEARING IN THE MATTER. AT THE SAME TIME, IT WAS SUBMITTED THAT THE ISSUE INVOLVED IN B OTH THESE APPEALS IS COVERED BY THE DECISION OF THIS BENCH IN ASSESSEES OWN CAS E FOR A.Y. 2009-10 AND 2010-11 DATED 24.01.2017 AND THEREFORE, WHERE THE B ENCH SO DECIDES TO HEAR THESE MATTERS TODAY, THESE TWO APPEALS MAY BE DECID ED TAKING INTO CONSIDERATION THE SAID DECISION PASSED BY THIS BENC H AND OTHER MATERIAL AVAILABLE ON RECORD. ITA NOS. 597 & 598/JP/16 THE DCIT, CIRCLE-2, JAIPUR VS. GURU PRAGYA INFRA (P ) LTD. JAIPUR 3 2.1 WE HAVE TAKEN NOTE OF THE FACT THAT DUE TO PERS ONAL EXIGENCIES, THE MATTER COULD NOT BE REPRESENTED BY LD COUNSEL FOR T HE ASSESSEE SHRI P C PARWAL, AT THE SAME TIME, GIVEN THAT THE ISSUE INVO LVED IN THESE TWO APPEALS IS STATED TO BE COVERED IN ASSESSEES CASE BY OUR OWN DECISION DATED 24.01.2017, WE WERE NOT INCLINED TO ADJOURN THESE MATTERS AND T HE ADJOURNMENT APPLICATION WAS ACCORDINGLY REJECTED. BOTH THE APP EALS ARE ACCORDINGLY TAKEN UP AND DISPOSED OFF BY THIS CONSOLIDATED ORDER TAKI NG INTO CONSIDERATION OUR EARLIER DECISION DATED 24.01.2017 AND OTHER MATERIA L AVAILABLE ON RECORD. 2.2 ON PERUSAL OF THE ASSESSMENT ORDER PASSED BY TH E ASSESSING OFFICER FOR A.Y. 2011-12 DATED 28.02.2015, IT IS NOTED THAT THE AO HAS DISALLOWED THE CLAIM OF THE ASSESSEE U/S 80IB(10) IN RESPECT OF GURU SH IKHAR HOUSING PROJECT. THE REASON FOR THE DISALLOWANCE STATED BY THE ASSESSING OFFICER HAS BEEN THE NON-FULFILMENT OF THE CONDITIONS SPECIFIED IN SECTI ON 80IB(10)(A)(III), (E) & (F) OF THE ACT AS DISCUSSED IN DETAIL IN THE EARLIER ASSES SMENT ORDER FOR A.Y. 2010-11. SIMILAR IS THE SITUATION IN CASE OF ASSESSMENT YEAR 2012-13. THE LD. CIT(A) HAS ALSO STATED THAT AS THE FACTS OF THE CASE REMAINS T HE SAME, IN VIEW OF THE PRINCIPAL OF CONSISTENCY, HE DO NOT FIND ANY REASON TO DIFFER WITH THE FINDINGS OF THE LD. CIT(A) IN EARLIER YEARS. HE ACCORDINGLY DI RECTED THE AO TO ALLOW DEDUCTION TO THE APPELLANT U/S 80IB(10) OF THE ACT. SIMILAR FINDINGS HAS BEEN GIVEN BY THE LD. CIT(A) FOR A.Y. 20012-13. 2.3 THIS BENCH VIDE ITS ORDER DATED 24.01.2017 HAS RECENTLY EXAMINED THE MATTER AT LENGTH IN RESPECT OF ELIGIBILITY OF THE A SSESSEE COMPANY TO CLAIM DEDUCTION U/S 80IB(10) OF THE ACT IN RESPECT OF THE SAME HOUSING PROJECT NAMELY GURU SHIKHAR FOR AY 2009-10 AND AY 2010-11 . THE OPERATIVE PART OF OUR FINDINGS IS REPRODUCED AS UNDER: ITA NOS. 597 & 598/JP/16 THE DCIT, CIRCLE-2, JAIPUR VS. GURU PRAGYA INFRA (P ) LTD. JAIPUR 4 (8) THERE IS NO DISPUTE AS TO THE FACT THAT ASSESS EE HAS COMPLIED WITH THE CONDITIONS STATED IN SUB CLAUSE (B), (C) & (D). THE DISPUTE REMAINS ONLY WITH REFERENCE TO THE CONDITIONS STATED IS SUB CLAUSE (A ), (E) & (F). IN PRESENT CASE, TO DECIDE THE FULFILLMENT OF CONDITION REFERRED IN CLA USE (A), (E) & (F), FOLLOWING ISSUES NEEDS TO BE CONSIDERED:- (I) WHO IS THE LOCAL AUTHORITY TO APPROVE THE HOUSI NG PROJECT AND TO ISSUE THE COMPLETION CERTIFICATE OF THE HOUSING PROJECT? (II) WHEN THE APPLICATION FOR ISSUE OF THE COMPLETI ON CERTIFICATE IS MADE WITHIN THE PRESCRIBED TIME, ANY DELAY IN ISSUE OF T HE COMPLETION CERTIFICATE WOULD RELATE BACK TO THE DATE OF MAKING OF APPLICATION OR NOT? (III) WHETHER EACH BLOCK OF HOUSING COMPLEX IN THE PROJECT IS TO BE CONSIDERED SEPARATELY OR ALL BLOCK OF THE HOUSING COMPLEX IN T HE PROJECT IS TO BE CONSIDERED TOGETHER FOR ASCERTAINING THE DATE OF CO MPLETION OF THE CONSTRUCTION OF THE HOUSING PROJECT? (IV) WHETHER WHERE SOME OF THE FLATS IN A BLOCK ARE NOT FULFILLING THE CONDITION OF ALLOTMENT OF THE FLAT, ENTIRE DEDUCTION IS TO BE DISALLOWED OR THE CLAIM IS TO BE RESTRICTED PROPORTIONATELY? (9.7) IN LIGHT OF ABOVE, IT IS CLEAR THAT THE AUTH ORITY WHICH HAS BEEN AUTHORIZED AND MANDATED TO APPROVE THE DEVELOPMENT AND CONSTRU CTION OF HOUSING PROJECTS IN THE JAIPUR REGION IS THE JAIPUR DEVELOP MENT AUTHORITY. FURTHER, IN TERMS OF SECTION 3(1) READ WITH SECTION 3(3) OF THE JDA ACT, THE JAIPUR ITA NOS. 597 & 598/JP/16 THE DCIT, CIRCLE-2, JAIPUR VS. GURU PRAGYA INFRA (P ) LTD. JAIPUR 5 DEVELOPMENT AUTHORITY IS DEEMED TO BE A LOCAL AUTHO RITY FOR THE PURPOSES OF THIS ACT WHICH INCLUDES THE DEVELOPMENT AND CONSTRU CTION OF HOUSING PROJECTS IN THE JAIPUR REGION. THE OTHER LOCAL AUTHORITIES SUC H AS MUNICIPALITY OR GRAM PANCHAYAT SHALL WORK IN THEIR RESPECTIVE JURISDICTI ONS AND AT THE SAME TIME WHEN IT COMES TO THE DEVELOPMENT AND CONSTRUCTION O F HOUSING PROJECTS, THE APPLICANT CAN SEEK THE PERMISSION THROUGH THE CONCE RNED LOCAL AUTHORITY AND SUCH AUTHORITIES SHALL FORWARD THE APPLICATION WITH THEIR RECOMMENDATIONS, IF ANY TO JAIPUR DEVELOPMENT AUTHORITY. THE AUTHORITY TO APPROVE THE DEVELOPMENT AND CONSTRUCTION OF HOUSING PROJECTS LI ES WITH JAIPUR DEVELOPMENT AUTHORITY AND IT IS UP TO JAIPUR DEVELOPMENT AUTHOR ITY WHETHER TO APPROVE THE HOUSING PROJECT OR NOT. IN ABSENCE OF APPROVAL FRO M THE JAIPUR DEVELOPMENT AUTHORITY, THE ASSESSEES BUILDING PLANS AND CONSTR UCTION THEREOF WOULD BE IN VIOLATION OF THE JDA ACT AND CANNOT BE SAID TO BE A PPROVED. FURTHER, ON PERUSAL OF THE APPLICATION FILED BY THE ASSESSEE FOR APPROV AL OF MAPS AS WELL AS FOR ISSUANCE OF COMPLETION CERTIFICATES TO THE GRAM PAN CHAYAT AS WELL AS TO THE JDA, IT IS AGAIN CLEAR THAT IT IS JDA WHICH IS THE FINAL APPROVING AUTHORITY, THE REASON FOR THE SAME IS THAT HAD THE GRAM PANCHAYAT BEING THE ULTIMATE AUTHORITY, THERE WAS NO NECESSITY FOR THE ASSESSEE TO APPROACH JDA FOR APPROVAL OF ITS PROPOSED BUILDING, PLAN AS WELL AS FOR ISSUA NCE OF THE COMPLETION CERTIFICATE. GIVEN THAT THE ASSESSEE HAS ITSELF RE ACHED OUT TO THE JDA WHICH ESTABLISHES BEYOND ANY DOUBT THAT THE PROJECT AREA FALLS WITHIN THE JURISDICTION AND THE AUTHORITY OF JDA AND IT IS JDA WHICH IS TO APPROVE THE BUILDING PLAN AND ISSUANCE OF THE COMPLETION CERTIFICATE. IN LIGHT OF ABOVE, WE ARE OF THE CONSIDERED VIEW THAT HOUSING PROJECT FALLS WITH THE JAIPUR REGION AND THE JDA IS THE APPROVING AUTHORITY FOR DEVELOPMENT AND CONSTRU CTION OF THE HOUSING PROJECTS AND IT SHALL BE THE LOCAL AUTHORITY FOR TH E PURPOSES OF CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. ITA NOS. 597 & 598/JP/16 THE DCIT, CIRCLE-2, JAIPUR VS. GURU PRAGYA INFRA (P ) LTD. JAIPUR 6 (10.9) THE NEXT QUESTION THAT ARISES FOR CONSIDERA TION IS WHEN IT CAN BE SAID THAT THE CONSTRUCTION OF THESE BLOCKS A TO G W ERE COMPLETE. WHETHER THE CONSTRUCTION GOT COMPLETED ON THE DATE OF APPLICATI ON I.E, 23.03.2012 OR ON/BEFORE THE MEETING OF JDA HELD ON 28.08.2012 OR WHEN THE COMPLETION CERTIFICATE WAS ISSUED BY JDA ON 21.03.2013 (IN RES PECT OF BLOCK A TO E). IN THIS REGARD, THE ASSESSEE HAS SUBMITTED THAT AT THE TIME OF MOVING THE APPLICATION FOR ISSUANCE OF THE COMPLETE CERTIFICATE AS EVIDENC E BY THE ARCHITECT REPORT AS WELL AS ISSUANCE OF THE NO OBJECTION CERTIFICATE BY THE CHIEF FIRE BRIGADE OFFICER, NAGAR NIGAM, JAIPUR ALL BLOCKS WERE COMPLETED IN MA RCH, 2012 ITSELF. HOWEVER, THE JDA HAS ISSUED A LETTER DATED 08.05.2012 WHEREI N IT IS STATED THAT ON PHYSICAL INSPECTION, WORK IN RESPECT OF BLOCK A TO D IS ALMOST COMPLETE EXCEPT SOME FITTING/FINISHING AND IN RESPECT OF BLOCK E, F AND G, THE CIVIL CONSTRUCTION WORK IS IN PROGRESS. THE ASSESSEE HAS CHALLENGED T HIS LETTER OF JDA DATED 08.05.2012 STATING THAT IT DOESNT SPECIFY THE NATU RE OF CIVIL WORK WHICH IS IN PROGRESS AND SECONDLY, THIS LETTER WAS NEVER RECEIV ED BY THE ASSESSEE. IN OUR VIEW, THERE ARE NOT ENOUGH MATERIAL ON RECORD FOR U S TO TAKE A VIEW IN THE MATTER. IN THE INTEREST OF JUSTICE AND FAIR PLAY, THE MATTER REQUIRE TO BE SET- ASIDE TO THE FILE OF AO FOR FRESH EXAMINATION SO TH AT ALL RELEVANT FACTS AND DOCUMENTS ARE BROUGHT ON RECORD TO DETERMINE THE AC TUAL DATE OF COMPLETION OF BLOCKS A TO G. (10.10) IN LIGHT OF ABOVE, IT IS CLEAR THAT IN RES PECT OF BOCK H & I, THE CONSTRUCTION HAS BEEN COMPLETED AS ON 31.03.2012 EV EN THOUGH THE APPROVAL HAS BEEN GRANTED ON 11.07.2012 AND COMPLETION CERTI FICATE ISSUED BY JDA ON 1.08.2012. THE DELAY IN ISSUANCE OF COMPLETION CER TIFICATE CANNOT BE ATTRIBUTED TO THE ASSESSEE AND THE ASSESSEE CANNOT BE PENALIZE D BY WAY OF DENIAL OF TAX ITA NOS. 597 & 598/JP/16 THE DCIT, CIRCLE-2, JAIPUR VS. GURU PRAGYA INFRA (P ) LTD. JAIPUR 7 DEDUCTION WHICH IT IS OTHERWISE ELIGIBLE TO AND SOL ELY ON THE GROUND OF DELAY IN ISSUANCE OF COMPLETION CERTIFICATE. AS HELD BY HON BLE BOMBAY HIGH COURT IN CASE OF HINDUSTAN SAMUH AWAS LTD (SUPRA), THE EXPLA NATION HAS INTRODUCED AN ELEMENT OF UNNECESSARY STRICTNESS IN THE PROVISION WHICH IS IN THE NATURE OF EXEMPTION AND NOT IN THE NATURE OF CHARGING AND THE COMPLETION OF THE HOUSING PROJECT IS A PHYSICAL ACT WHICH CAN BE DEMONSTRATED ON THE SPOT. WE ARE ACCORDINGLY OF THE VIEW THAT IN RESPECT OF BLOCK H & I, THE ASSESSEE SATISFIES THE CONDITION OF COMPLETION OF CONSTRUCTION BEFORE 31.0 3.2012. (11.2) WE HAVE HEARD THE RIVAL CONTENTIONS AND PU RSUED THE MATERIAL AVAILABLE ON RECORD. THE MADRAS HIGH COURT IN CASE OF VISWAS PROMOTERS PRIVATE LIMITED (SUPRA) IN THE CONTEXT OF CONDITION RELATIN G TO BUILT-UP AREA NOT EXCEEDING 1500 SQ. FT HAS HELD THAT WITHIN A COMPOS ITE HOUSING PROJECT WHERE THERE ARE ELIGIBLE AND INELIGIBLE UNITS, THE ASSESS EE CAN CLAIM DEDUCTION IN RESPECT OF ELIGIBLE UNITS IN THE PROJECT AND EVEN W ITHIN THE BLOCK, THE ASSESSEE IS ENTITLED TO CLAIM PROPORTIONATE RELIEF IN THE UNITS SATISFYING THE EXTENT OF THE BUILT UP AREA. NO CONTRARY AUTHORITY HAS BEEN BROU GHT TO THE NOTICE OF THE BENCH. IN OUR VIEW, SIMILAR ANALOGY CAN BE DRAWN I N RESPECT OF HOUSING PROJECT CONSISTING OF NUMBER OF BLOCKS WHERE THE CONSTRUCTI ON HAS BEEN COMPLETED AND COMPLETION CERTIFICATE ISSUED IN RESPECT OF SOME OF THE BLOCKS. AS WE HAVE NOTED ABOVE, THE CONSTRUCTION HAS BEEN COMPLETED AND COMPLETION CERTIFICATE HAS BEEN ISSUED BY JDA IN RESPECT OF BLOCK H & I. ACCORDINGLY, THE ASSESSEE SHALL BE ELIGIBLE TO CLAIM PROPORTIONATE DEDUCTION U/S 80IB(10) IN RESPECT OF BLOCK H & I. (12.6) IN LIGHT OF ABOVE DISCUSSIONS, WHERE THE AL LOTMENT OF FLATS HAS BEEN MADE PRIOR TO 1.4.2009, THE ASSESSEE SHALL BE ELIGI BLE TO CLAIM THE TAX DEDUCTION IN RESPECT OF SUCH FLATS EVEN IF THERE IS VIOLATION OF CLAUSE (E) & (F) OF SECTION ITA NOS. 597 & 598/JP/16 THE DCIT, CIRCLE-2, JAIPUR VS. GURU PRAGYA INFRA (P ) LTD. JAIPUR 8 80IB(10) OF THE ACT. HOWEVER, WHERE THE ALLOTMENTS OF FLATS HAVE BEEN MADE AFTER 1.4.2009, THE ASSESSEE WILL NECESSARILY BE RE QUIRED TO DEMONSTRATE THE SATISFACTION OF CLAUSES (E) AND (F) OF SECTION 80IB (10) OF THE ACT. ON PERUSAL OF ASSESSMENT ORDER, IT IS NOTED THAT COMPLETE DETAILS OF ALLOTEES WERE NOT FURNISHED BEFORE THE AO AND THE AO BASED ON LIMITED INFORMATION PROVIDED BY THE ASSESSEE, HAS IDENTIFIED CERTAIN CASES WHERE VI OLATION OF ABOVE SAID CONDITIONS HAVE BEEN NOTED. THE ASSESSEE HAS RESPO NDED TO THESE LIMITED CASES AND EVEN LD CIT(A) HAS UPHELD THE CONTENTION OF THE ASSESSEE THAT THE ALLOTMENT HAS EITHER NOT BEING MADE OR BOOKING OF FLATS HAS H APPENED PRIOR TO INSERTION OF CLAUSE (F) OF SECTION 80IB(10) OF THE ACT IN THESE LIMITED CASES. IN OUR VIEW, THE LEGISLATURE HAS USED THE EXPRESSION ALLOTMENT AND NOT THE EXPRESSION BOOKING OF THE RESIDENTIAL UNIT WHICH PRECEDE THE ALLOTMENT OF RESIDENTIAL UNIT AS GENERALLY UNDERSTOOD IN THE HOUSING SECTOR. UNL ESS, IN A GIVEN CASE, WHERE THE BOOKING AND ALLOTMENT ARE SAME AS DEMONSTRATED THROUGH THE CONTRACTUAL UNDERSTANDING BETWEEN THE BUILDER AND THE ALLOTTEE OF THE RESIDENTIAL UNIT, IT WOULD NOT BE CORRECT TO USE THESE TERMS INTER-CHANG EABLY. IN LIGHT OF ABOVE DIRECTIONS, WE ACCORDINGLY SET-ASIDE THE MATTER TO THE FILE OF THE AO TO EXAMINE THE ALLOTMENT OF FLATS MADE BY THE ASSESSEE IN ENTI RETY AND EXAMINE THE SATISFACTION OF CONDITIONS UNDER CLAUSE (E) AND CLA USE (F) OF SECTION 80IB(10) OF THE ACT. (12.7) IN LIGHT OF ABOVE DISCUSSIONS AND TAKING IN TO CONSIDERATION THE ENTIRETY OF FACTS AND CIRCUMSTANCES OF THE CASES INCLUDING T HE ARGUMENTS AND LEGAL AUTHORITIES QUOTED BEFORE US, THE REVENUES APPEAL FOR BOTH THE YEARS IS PARTLY ALLOWED WITH ABOVE DIRECTIONS FOR STATISTICAL PURPO SES. 2.4 IN LIGHT OF THE ABOVE, GIVEN THAT THERE ARE NO CHANGES IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE MATTER RELATING TO C LAIM OF DEDUCTION U/S ITA NOS. 597 & 598/JP/16 THE DCIT, CIRCLE-2, JAIPUR VS. GURU PRAGYA INFRA (P ) LTD. JAIPUR 9 80IB(10) IS COVERED BY THE DECISION OF THIS BENCH I N ASSESSEES OWN CASE FOR A.YS. 2009-10 AND 2010-11 AND OUR FINDINGS AND DIRE CTION CONTAINED IN THE SAID ORDER SHALL APPLY MUTATIS MUTANDIS IN THESE TWO APP EALS AS WELL. IN THE RESULT, THE GROUND TAKEN BY THE REVENUE IN RESPECT OF CLAIM OF DEDUCTION U/S 80IB(10) FOR BOTH THE YEARS UNDER CONSIDERATION IS PARTLY AL LOWED FOR STATISTICAL PURPOSES. 3. IN RESPECT OF ASSESSMENT YEAR 2012-13, THE REVE NUE HAS TAKEN ANOTHER GROUND CHALLENGING THE ORDER OF LD. CIT(A) IN DELET ING THE ADDITION OF RS. 51,764/- MADE U/S 36(1)(VA) OF THE ACT. IN THI S REGARD, WE REFER TO THE RELEVANT FINDINGS OF THE LD. CIT(A) WHICH IS REPROD UCED AS UNDER: I HAVE DULY CONSIDERED THE SUBMISSIONS OF THE APPE LLANT, THE ASSESSMENT ORDER AND THE MATERIAL PLACED ON RECORD. THE AO MAD E THE DISALLOWANCE OF RS.51,764/- AS THE EMPLOYEE CONTRIBUTION TOWARDS ESI/PF WAS NOT PAID WITHIN THE STIPULATED TIME. DURING THE APPELLATE P ROCEEDINGS THE AR AGITATED THE ADDITION AND SUBMITTED THAT THESE WERE PAID BEFORE THE DUE DATE OF FILING OF THE RETURN OF INCOME AND HENCE THE DISALLOWANCE WAS NOT JUSTIFIED. THE AR RELIED UPON A NUMBER OF DEC ISIONS INCLUDING THOSE OF JURISDICTIONAL HIGH COURT IN SUPPORT OF ITS CON TENTION. IT MAY BE MENTIONED THAT HONBLE RAJASTHAN HIGH COURT IN CASE OF CIT VS. SBBJ (2014) 265 CTR (RAJ.) 471 AND CIT VS. UDAIPUR DUGDH UTPADAK SANGH LTD. (2014) 265 CTR (RAJ.) 59 HAS HELD THAT WHERE PF/ESI PAID AFTER DUE DATE UNDER RESPECTIVE ACTS BUT BEFORE FILING OF RETURN O F INCOME U/S 139(1), THESE CANNOT BE DISALLOWED UNDER SECTION 43B OR U/S 36(1)(VA) OF THE ACT, 1961. RESPECTFULLY FOLLOWING THE DECISION OF HONB LE RAJASTHAN HIGH COURT , THE ADDITION OF RS. 51,764/- STANDS DELETED . ITA NOS. 597 & 598/JP/16 THE DCIT, CIRCLE-2, JAIPUR VS. GURU PRAGYA INFRA (P ) LTD. JAIPUR 10 3.1 WE HAVE GONE THROUGH THE ORDER OF THE LD. CIT(A ) AND WE DO NOT SEE ANY INFIRMITY IN THE SAID ORDER. IN THE RESULT THE GROUND TAKEN BY THE REVENUE IS DISMISSED. IN THE RESULT BOTH THE APPEALS FILED BY THE REVENU E ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 10/02 /2017. SD/- SD/- (KUL BHARAT ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER JAIPUR DATED:- 10/02/2017 PILLAI VKNS'K DH IZFRFYFI VXZSF'KR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE DCIT, CIRCLE-2, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- M/S GURU PRAGYA INFRA (P) LTD., JAI PUR 3. VK;DJ VK;QDR@ CIT - 1, JAIPUR 4. VK;DJ VK;QDRVIHY@ THE CIT(A) -1, JAIPUR 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 597 & 598/JP/2016) VKNS'KKUQLKJ@ BY ORDER, GK;D IATHDKJ@ ASSISTANT. REGISTRAR.