Income-tax Officer, V. M/s. Sameer Developers, Pune

ITA 614/PUN/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0451 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 30-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMITRA BANERJI
• Assessee Lawyers: S N DOSHI
• Keywords: Competent authority

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC , PUNE , BEFORE MS. SUSHMA CHOWLA, JM . / ITA NO. 6 1 4 /PN/201 5 / ASSESSM ENT YEAR : 20 08 - 09 THE INCOME TAX OFFICER, WARD 5(2), PUNE . / APPELLANT VS. M/S. SAMEER DEVELOPERS, 58, YASMIN SAHAYOG SOCIETY, BHIGWAN ROAD, BARAMATI, PUNE 413102 . / RESPONDENT / APPELLAN T BY : SMT. SUMITRA BANERJI / RESPONDENT BY : SHRI S.N. DOSHI / DATE OF HEARING : 25 . 1 0 .201 6 / DATE OF PRONOUNCEMENT: 18 . 1 1 .201 6 / ORDER PER SUSHMA CHOWLA, J M : TH IS APPEAL FILED B Y THE REVENUE IS AGAINST THE ORDER OF CIT (A) - 7 , PUNE , DATED 2 3 . 0 2 .20 1 6 RELATING TO ASSESSMENT YEAR 20 08 - 09 AGAINST ORDER PASSED UNDER SECTION 1 4 3(3) OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . ITA NO. 614 /PN/20 1 5 M/S. SAMEER DEVELOPERS 2 2 . THE REVENUE HAS RAISED THE FOLLOWING GROUND S OF APPE AL : - 01. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) WAS FAILED TO APPRECIATE THE FACT THAT THE ASSESSEE HAS FAILED TO OBTAIN COMPLETION CERTIFICATE OF THE HOUSING PROJECT AT VILLAGE JALOCHI, GAT NO.157, TAL BARAMATI, DIST PUNE BEFORE 31.03.2009 AS REQUIRED UNDER EXPLANATION (II) TO SECTION 80IB(10) OF THE IT ACT, 1961? 02. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) HAS ERRED IN ALLOWING DEDUCTION U/S 80IB(10) WHEN THE ASSESSEE HAD COMPLET ED ONLY SIX BUILDINGS OUT OF 7 BUILDINGS UPTO 31.03.2009 WHEREAS, THE PLAN WAS APPROVED BY LOCAL AUTHORITY FOR 7 BUILDINGS, THUS VIOLATING THE PROVISION OF SUB - SECTION (II) OF CLAUSE (A) TO SECTION 80IB(10) OF THE IT ACT? 03. FOR THE FACTS AND SUCH OTHE R REASONS AS MAY BE URGED AT THE TIME OF HEARING, THE ORDER OF THE LD. COMMISSIONER OF (APPEALS) MAY BE VACATED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 3. THE ISSUE ARISING IN THE PRESENT APPEAL IS THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IN RESPECT OF SIX BUILDINGS COMPLETED OUT OF SEVEN BUILDINGS UP TO 31.03.2009, WHEREAS THE PLAN WAS APPROVED BY THE LOCAL AUTHORITY FOR CONSTRUCTION OF SEVEN BUILDINGS. 4. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE ISSUE ARISING IN THE PRESENT APPEAL IS SQUARELY COVERED BY THE ORDER OF TRIBUNAL IN ASSESSEES OWN CASE RELATING TO ASSESSMENT YEARS 2009 - 10 AND 2010 - 11 AND THE CIT(A) HAD ALLOWED THE CLAIM FOLLOWING THE ORDER OF CIT(A) FOR THE EARLIER YEARS. 5. THE LEAR NED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE ON THE OTHER HAND, IS AGGRIEVED BY THE ORDER OF CIT(A) AS THE ASSESSEE HAD FAILED TO OBTAIN COMPLETION CERTIFICATE AND SINCE HAD ONLY COMPLETED SIX BUILDINGS OUT OF SANCTIONED SEVEN BUILDINGS. ITA NO. 614 /PN/20 1 5 M/S. SAMEER DEVELOPERS 3 6. BRIEFLY, IN THE FACTS OF THE CASE, THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF CONSTRUCTION ACTIVITY. FOR THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAD DEVELOPED HOUSING PROJECT AT JALOCHI IN BARAMATI COMPRISING OF SEVEN BUILDINGS. THE HOUSING PROJECT WAS SANCTION ED ON 16.09.2004. HOWEVER, OUT OF SEVEN BUILDINGS TO BE CONSTRUCTED, BUILDING NOS.2 TO 7 WERE COMPLETED BEFORE 31.03.2009 I.E. WITHIN PERIOD ALLOWED FOR COMPLETION OF HOUSING PROJECT UNDER SECTION 80IB(10)(A) OF THE ACT . THE ASSESSEE HAD RECEIVED COMPLET ION CERTIFICATE FROM THE LOCAL COMPETENT AUTHORITY IN THIS REGARD THOUGH THE BUILDING NO.1 WAS NOT COMPLETED. THE ASSESSING OFFICER WAS OF THE VIEW THAT SINCE THE ENTIRE HOUSING PROJECT WAS NOT COMPLETED BEFORE 31.03.2009, THE ASSESSEE WAS NOT ELIGIBLE TO CLAIM DEDUCTION UNDER SECTION 80IB(10) OF THE ACT AT RS. 39,67,335/ - . THE EXPLANATION OF ASSESSEE WAS NOT ACCEPTED BY THE ASSESSING OFFICER AND THE DEDUCTION CLAIMED UNDER SECTION ACCEPTED BY THE ASSESSING OFFICER AND THE DEDUCTION CLAIMED UNDER SECTION 80IB(10) OF THE ACT WAS DENIED. 7. THE ASSESSEE HAS FILED AN APPEAL BEFO RE THE CIT(A), WHO IN TURN, RELIED ON THE ORDER OF CIT(A) RELATING TO ASSESSMENT YEARS 2009 - 10 AND 2010 - 11 AND ALLOWED THE CLAIM OF ASSESSEE. 8. THE REVENUE HAD FILED AN APPEAL AGAINST THE ORDER OF CIT(A) RELATING TO ASSESSMENT YEARS 2009 - 10 AND 2010 - 11 W HICH WAS DECIDED BY THE TRIBUNAL IN ITA NOS.200 & 201/PN/2014, VIDE ORDER DATED 19.01.2015. THE CLAIM OF THE ASSESSEE WAS ALLOWED ON PRO RATA BASIS IN RESPECT OF SIX BUILDINGS WHICH WERE ITA NO. 614 /PN/20 1 5 M/S. SAMEER DEVELOPERS 4 COMPLETED BEFORE 31.03.2009. THE RELEVANT FINDINGS OF THE TRIBUNAL A RE AS UNDER: - 6. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US. THERE IS NO DISPUTE TO THE FACT THAT IN THE INSTANT CASE OUT OF THE 7 BUILDINGS OF THE HOUSING PROJECT UNDERTAKEN BY THE ASSESSEE, 6 BUILDINGS, I.E. BUILDING NO. 2 TO 7 WERE COMPLETED BY THE ASSESSEE BEFORE 31 - 03 - 2009 AND ONLY BUILDING NO.1 WAS INCOMPLETE AS ON 31 - 03 - 2009. THEREFORE, THE ISSUE TO BE DECIDED IS AS TO WHETHER THE ASSESSEE IS ENTITLED FOR PROPORTIONATE DEDUCTION IN RESPECT OF THE 6 BUILDINGS WHICH WERE COMPLETED BEFORE 31 - 03 - 2009 OR THE ENTIRE DEDUCTION SHOULD BE DISALLOWED. THE ISSUE OF PRO PORTIONATE DEDUCTION HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY SERIES OF DECISIONS OF THE COORDINATE BENCHES OF THE TRIBUNAL. THE HONBLE MADRAS HIGH COURT IN THE CASE OF VISHWAS PROMOTERS PVT. LTD. VS. ACIT REPORTED IN 255 CTR 149 HAS HELD THAT WITHI N A COMPOSITE HOUSING PROJECT WHERE THERE ARE ELIGIBLE AND INELIGIBLE UNITS, THE ASSESSEE CAN CLAIM DEDUCTION IN RESPECT OF ELIGIBLE UNITS IN THE PROJECT AND EVEN WITHIN THE BLOCK THE ASSESSEE IS ENTITLED TO CLAIM PROPORTIONATE RELIEF IN THE UNITS SATISFYI NG TO THE EXTENT OF THE BUILT UP AREA. THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF BENGAL AMBUJA HOUSING DEVELOPMENT LD. VS. CIT VIDE ITA NO.453/2006 ORDER DATED 05 - 01 - 2007 HAS ALSO HELD THAT PRO - RATA DEDUCTION IS PERMISSIBLE U/S.80IB(10). FOLLOWING T HE ABOVE DECISIONS, THE COORDINATE BENCHES OF THE TRIBUNAL ARE CONSISTENTLY TAKING THE VIEW THAT THE ASSESSEE IS ENTITLED TO PRO - RATA DEDUCTION IN RESPECT OF THE INCOME DERIVED FROM THE ELIGIBLE UNITS. SINCE THE LD.CIT(A) WHILE DECIDING THE ALTERNATE CLAI M OF PRO - RATA DEDUCTION HAS FOLLOWED THE DECISION OF THE HONBLE MADRAS HIGH COURT AND THE DECISIONS OF VARIOUS BENCHES OF THE HONBLE MADRAS HIGH COURT AND THE DECISIONS OF VARIOUS BENCHES OF THE TRIBUNAL, THEREFORE, IN ABSENCE OF ANY CONTRARY MATERIAL BROUGHT TO OUR NOTICE WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE C IT(A). WE ACCORDINGLY UPHOLD THE SAME. GROUNDS RAISED BY THE REVENUE ARE ACCORDINGLY DISMISSED. 9. THE ISSUE WAS DECIDED BY THE TRIBUNAL BY RELYING ON THE RATIO LAID DOWN BY HONBLE MADRAS HIGH COURT IN VISHWAS PROMOTERS PVT. LTD. VS. ACIT REPORTED IN 255 CTR 149 (MAD) AND THE HONBLE CALCUTTA HIGH COURT IN BENGAL AMBUJA HOUSING DEVELOPMENT LTD. VS. CIT VIDE ITA NO.453/2006, DATED 05.01.2007 . 10. THE ISSUE ARISING IN THE PRESENT APPEAL IS IDENTICAL TO THE ISSUE BEFORE THE TRIBUNAL IN ASSESSMENT YEARS 2 009 - 10 AND 2010 - 11 AND FOLLOWING THE SAME PARITY OF REASONING, I HOLD THAT THE ASSESSEE IS ENTITLED TO PRO RATA DEDUCTION ITA NO. 614 /PN/20 1 5 M/S. SAMEER DEVELOPERS 5 UNDER SECTION 80IB(10) OF THE ACT ON COMPLETED BUILDINGS. UPHOLDING THE ORDER OF CIT(A), THE GROUNDS OF APPEAL RAISED BY THE REVENUE A RE DISMISSED. 11 . IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED ON THIS 18 TH DAY OF NOVEMBER , 201 6 . SD/ - (SUSHMA CHOWLA) / JUDICIAL MEMBER / PUNE ; DATED : 18 TH NOVEMBER , 201 6 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESP ONDENT; 3. ( ) / THE CIT(A) - 7 , PUNE ; 3. ( ) / THE CIT(A) - 7 , PUNE ; 4. / THE PR. CIT - 6 , PUNE ; 5. 6. , , , - / DR SMC , ITAT, PUNE; / GUARD FILE . / BY ORDER , // TRUE CO PY // / SR. PRIVATE SECRETARY , / ITAT, PUNE