Dy.CIT, Circle-3(1), Hyderabad V. Saket Engineers Private Limited, Hyderabad

ITA 633/HYD/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 69990 (ITAT-HYDERABAD)
• Duration Of Justice: 7 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 01-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ADAGIRI
• Assessee Lawyers: P JITENDRA KUMAR
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH, HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NO. 633/HYD/2013 ASSESSMENT YEAR : 2009-10 DY. COMMISSIONER OF INCOME-TAX, APPELLANT CIRCLE 3(1), HYDERABAD. VS. SAKET ENGINEERS P. LTD., RESPONDENT HYDERABAD. (PAN AAFCS 3079K) APPELLANT BY : SHRI B. YADAGIRI RESPONDENT BY : SHRI P. JITENDRA KUMAR DATE OF HEARING : 27/11/2013 DATE OF PRONOUNCEMENT : 18/12/2013 ORDER PER CHANDRA POOJARI, A.M.: THIS APPEAL FILED BY THE REVENUE IS DIREC TED AGAINST THE ORDER PASSED BY THE CIT(A)-IV, HYDERABAD DATED 19/02/201 3, FOR ASSESSMENT YEARS 2009-10, WHEREIN THE REVENUE HAS RAISED THE F OLLOWING SUBSTANTIAL GROUND: THE LEARNED CIT(A) OUGHT TO HAVE NOTICED THAT THE A SSESSEE HAS NOT FULFILLED THE CONDITIONS LAID DOWN FOR CLAIMING DED UCTION U/S 80IB(1), AS SOME OF THE FACILITIES PROVIDED ARE CLEARLY COMM ERCIAL IN NATURE WHICH EXCEEDED THE THRESHOLD LIMIT. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSESSEE HAD CLAIMED DEDUCTION U/S 80IB ON TWO PROJECTS, VIZ., SAKET PRA NAM AND SAKET SRIYAM. THE ASSESSING OFFICER HAD DISALLOWED THE DE DUCTION FOR THE REASON, FIRSTLY, THAT THE AREA OF SOME OF THE FLATS IN THESE PROJECTS WAS MORE THAN THE PERMITTED AREA OF 1500 SFT AND SECONDLY, THAT THE 2 ITA NO. 633/HYD/13 SAKET ENGINEERS PVT. LTD. PROJECTS WERE COMMERCIAL IN NATURE WITH FACILITIES LIKE SQUASH COURT, ATM, E-SEVA, HOBBY CENTER, LIBRARY, LAUNDRY, YOGA & MEDITATION CENTRE, COMMERCIAL SPACE, PRIMARY HEALTH CARE CENTR E, HEALTH CLUB, CONVENIENT SHOPPING CENTER, HELIPAD, GYMNASIUM, SWI MMING POOL ETC. 3. ON APPEAL, BEFORE THE CIT(A) THE ASSESSEE SUBMIT TED THAT THE IT HAD CLAIMED DEDUCTION U/S 80IB ON THESE TWO PROJ ECTS FOR AY 2007-08 ALSO. THE CIT(A) CALLED FOR A REMAND REPORT FROM THE ASSESSING OFFICER, WHO SUBMITTED THE REMAND REPORT AND THE CONTENTS THERE ARE AS UNDER: ' IN THE ASSESSMENT ORDER, IT WAS MENTIONED THAT TH E AREA OF THE SOME OF THE FLATS AT 'SAKET PRANAM' EXCEED THE THRE SHOLD LIMIT OF 1500 S. FT. AND THAT IT CONSISTS OF SQUASH COURT / ATM/ HOBBY CENTRE ETC.... HOWEVER, THE FLATS WERE MEASURED AND IT IS NOTICED THAT THE BUILT UP AREA AS DEFINED IN SEC. 80 18(14) OF THE ACT) OF THE ABOVE REFERRED FLATS WAS 1296 S.FT. AND 1344 S.FT. RESPECTIVELY, THUS, WITHIN THE THRESHOLD LIMIT OF 1 500 S.FT. WITH REGARD TO THE VENTURE 'SAKET SRIYAM' IN THE AS SESSMENT ORDER IT WAS MENTIONED THAT MAJORITY OF THE FLATS A RE FOUND TO BE BEYOND 1500 S.FT. AND THAT THE FACILITIES PROVIDED ARE CLEARLY OF COMMERCIAL NATURE. DURING THE COURSE OF INSPECTION THE MEASUREMENTS OF THE FLATS THE AREA OF WHICH WAS MEN TIONED TO BE EXCEEDING 1500 S.FT. AS PER THE BROCHURE, WERE TAKE N AND IT WAS NOTICED THAT THE BUILT UP AREA OF THE FLATS DID NOT EXCEED 1500 S.FT. REGARDING THE COMMERCIAL SPACE MENTIONED IN T HE ASSESSMENT ORDER, IT IS NOTICED THAT IN RESPECT OF BOTH THE VENTURES 'SAKET PRANAM' AND SAKET SRIYAM, NO COMMER CIAL SPACE WAS AVAILABLE FOR SALE AND THE FACILITIES MENTIONED IN THE BROCHURES ARE AMENITIES PROVIDED FOR THE INMATES / FLAT OWNERS AND IS NOT BUILT UP FOR COMMERCIAL EXPLOITATION / SALE. THE ASSESSEE, THEREFORE, HAVING SATISFIED THE ABOVE DISCUSSED CONDITIONS IS ELIGIBLE FOR DEDUCTION U/S. 8018(10) OF THE ACT.' 4. IN VIEW OF THE CATEGORICAL REPORT OF THE ASSESS ING OFFICER ON THESE FACTUAL ASPECTS OF THE TWO PROJECTS IN QUESTI ON, SAKET PRANAM AND SAKET SRIYAM, THE CIT(A) DIRECTED THE ASSESSING OFFICER TO ALLOW ASSESSEES CLAIM OF DEDUCTION U/S 80IB. 3 ITA NO. 633/HYD/13 SAKET ENGINEERS PVT. LTD. 5. AGGRIEVED BY THE ORDER OF CIT(A), THE REVENUE IS IN APPEAL BEFORE US. 6. WE HAVE HEARD THE ARGUMENTS OF BOTH THE PARTIES AND PERUSED THE RECORD. IT IS OBSERVED THAT THE CIT(A) DIRECTED THE ASSESSING OFFICER TO DELETE THE ADDITION PLACING RELIANCE ON THE REMA ND REPORT SUBMITTED BY THE ASSESSING OFFICER. WE FIND THAT THE FINDINGS IN THE REMAND REPORT ARE CONTRARY TO THE FINDINGS RECORDED BY THE ASSESS ING OFFICER IN THE ASSESSMENT ORDER. IN VIEW OF THE CONTRARY FINDINGS OF THE ASSESSING OFFICER, WE ARE OF THE VIEW THAT THE ASSESSING OFFI CER HAS TO EXAMINE THE CORRESPONDING SALE DEED EXECUTED BY THE ASSESSE E AMONG VARIOUS PARTIES. THEREFORE WE REMIT THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO EXAMINE THE ENTIRE ISSU E AFRESH AND DECIDE THE SAME IN ACCORDANCE WITH LAW AFTER PROVIDING REA SONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. ACCORDINGLY, THE GROUND RAISED BY THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, APPEAL OF THE REVENUE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 18/12/2013. SD/- SD/- ( SAKTIJIT DEY ) JUDICIAL MEMBER ( CHANDRA POOJARI ) ACCOUNTANT MEMBER HYDERABAD, DATED 18 TH DECEMBER, 2013 KV COPY TO:- 1) DCIT, CIRCLE 3(1), 7 TH FLOOR, B BLOCK, IT TOWERS, AC GUARDS, HYDERABAD. 2) SAKET ENGINEERS P. LTD., 1-31/, SAKET, KAPRA, EC IL, HYDERABAD 500 062 3) THE CIT (A)-IV, HYDERABAD 4) THE CIT-III, HYDERABAD. 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDER ABAD. 4 ITA NO. 633/HYD/13 SAKET ENGINEERS PVT. LTD. S.NO DESCRIPTION DATE INTLS 1. DRAFT DICTATED ON SR.P.S./P.S 2. DRAFT PLACED BEFORE AUTHOR SR.P.S/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.P.S./PS SR.P.S./ P.S 6. KEPT FOR PRONOUNCEMENT ON SR. P.S./P.S. 7. FILE SENT TO THE BENCH CLERK SR.P.S./P.S 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER