M/s. A.G. Joshi & Company, Pune V. ACIT, Pune

ITA 633/PUN/2009

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 3177 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 5 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-11-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 26-05-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A S SINGH
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI I.C. SUDHIR AND SHRI D. KARUNAKARA RAO ITA NO. 633/PN/09 (ASSTT. YEAR 2004-05) M/S. A. G. JOSHI & COMPANY 49/1, PARVATI, PUNE SATARA ROAD, PUNE PAN NO. AACFA1851B .... APPELLANT VS. ACIT, RANGE-11, PUNE . RESPONDENT APPELLANT BY : SHRI KISHOR PHADKE RESPONDENT BY : SHRI A.S. SINGH ORDER PER D. KARUNAKARA RAO AM THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER O F THE CIT-I, PUNE DATED 26/03/2009 FOR THE A.Y 2004-05. GROUNDS READS A S UNDER:- 1. THE LEARNED CIT-I, PUNE ERRED IN PASSING ORDER U/S. 263 OF THE ITA, 1961 WITHOUT APPRECIATING THE FACTS OF THE LEGAL PO SITION THERETO. 2. THE LEARNED CIT-I, PUNE FURTHER ERRED IN INTERPR ETING AMENDMENTS IN SECTION 80-IB(10) AS IF THE SAME ARE RETROSPECTI VE AMENDMENT. 3. THE LEARNED CIT-I, PUNE ALSO ERRED NOT INTERPRET ING THE MEANING OF HOUSING PROJECT CONSIDERING THE CONTEXT IN WHICH IT IS USED IN SECTION 80- IB(10) OF THE ITA, 1961. 2. DURING THE PROCEEDINGS BEFORE US, LD. COUNSEL FOR TH E ASSESSEE TOOK US THROUGH THE ORDER DATED 26/03/2009 OF THE CIT PASSED U /S. 263 AND POINTING OUT TO PARA 6, LD. AR MENTIONED THAT THE ISSUE IN QUESTI ON REVOLVES AROUND THE DEBATABLE ISSUE OF WHETHER THE AMENDED PROVISIONS OF SEC. 80-IB(10) OF THE ACT ARE APPLICABLE TO THE PROJECT OF THE ASSESSEE, WH ICH WAS APPROVED AND COMPLETED BEFORE 01/04/2005 OR NOT. FURTHER, LD. COUNS EL MENTIONED THAT AS ON ITA NO. 633/PN/09 A.Y: 2004-05 PAGE 2 OF 3 THE DATE OF ISSUE OF SHOW CAUSE NOTICE AND PASSING OF THE ORDER U/S. 263 OF THE ACT, THERE IS LOT OF DEBATE ON THIS ISSUE. THERE ARE NUMBER OF DECISIONS ON BOTH SIDES OF THIS ISSUE. IN THIS REGARD, LD. COUNSEL FIL ED A LIST OF CASES AND THE DATE OF PRONOUNCEMENT OF THESE ORDERS. FURTHER, LD. COUNSEL NARRAT ED THAT, WHEN THERE ARE TWO VIEWS POSSIBLE ON THE ISSUE, THE CIT CANNOT ASSUME JURISD ICTION VALIDLY U/S. 263 OF THE ACT. FOR THIS PURPOSE LD. COUNSEL RELI ED ON THE SUPREME COURT JUDGEMENT IN THE CASE OF CIT VS. MAX INDIA LTD. (2 007) 295 ITR 282 (SC). THEREIN JUDGEMENT IN THE CASE OF MALABAR INDUSTRIAL C O. LTD. VS. CIT (2000) 243 ITR 83 (SC). 3. ON THE OTHER HAND, LD. DR FOR THE REVENUE ARGUED ST ATING THAT, THE CIT CAN ASSUME JURISDICTION AS AND WHEN THERE EXIST A DEC ISION OF AO WHICH IS PREJUDICIAL TO THE INTEREST OF REVENUE. OTHERWISE, L D. DR RELIED ON THE ORDERS OF THE REVENUE. 4. WE HAVE HEARD BOTH THE PARTIES ON THIS LEGAL ISSUE . WE PERUSED THE VARIOUS DECISIONS CITED BY THE AR. SOME OF THEM ARE RE PRODUCED AS UNDER:- DATE CASE CITATION 10 TH JULY,2006 LAUKIK DEVELOPERS 108 TTJ 364 28 TH JANUARY, 2007 HARSHAD DOSHI 109 TTJ 335 16 TH FEB, 2007 ARUN EXCELLO FOUNDATIONS P. LTD. 108 TTJ 71 24 TH JANUARY, 2008 SAROJ SALES ORGANISATION 115 TTJ 485 26 TH MARCH, 2009 A. G. JOSHI (PRESENT ASSESSEE)- 263 ORDER PASSED 6 TH APRIL, 2009 BRAHMA ASSOCIATES 122 TTJ 433 21 ST AUG, 2009 M/S.APPORVA PROPERTIES AND ESTATES PVT. LTD. ITA 113/PN/2007 ITA 562/PN/2008 ITA 1550/PN/2008 5. ON PERUSAL OF THE ABOVE DECISIONS IT IS NOTICED T HAT WHILE SOME OF THE DECISIONS ARE IN FAVOUR OF DENIAL OF EXEMPTION (IE L AUKIK DEVELOPERS) AND OTHERS ARE IN FAVOUR OF GRANTING THE DEDUCTION U/S. 80-IB(10) . THUS, THERE EXISTS TWO VIEWS ON THE ISSUE OF APPLICABILITY OF THE AMENDED PROVISIONS OF SEC. 80-IB(10) OF THE ACT TO THE PROJECTS APPROVED AND COMPLETED PRIOR TO THE SAID AMENDMENT. CONSIDERING THIS FACT OF OURS GIVEN ABOVE AND ONLY BA SED ON THE DEBATABLE NATURE OF THE ISSUE, WE ARE OF THE OPINION THAT THE CIT ERRON EOUSLY ASSUMED THE JURISDICTION AND THE SAME GOES AGAINST THE SPIRIT OF THE APEX COURT IN THE CASE OF ITA NO. 633/PN/09 A.Y: 2004-05 PAGE 3 OF 3 MAX INDIA LIMITED AND MALABAR INDUSTRIAL CO. LIMITED (SUPRA). NO DECISION ON MERITS IS GIVEN. ACCORDINGLY, ON THE ISSUE OF ASSUMPT ION OF JURISDICTION WE APPROVE AND ALLOW THE GROUNDS 1 AND 2. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 12 TH NOVEMBER, 2010. SD/- SD/- (I.C. SUDHIR) (D.KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBE R PUNE DATED THE 12 TH NOVEMBER, 2010 R COPY OF THE ORDER IS FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. CIT-I, PUNE 4. D.R. ITAT B BENCH BY ORDER ASSISTANT REGISTRAR I.T.A.T PUNE