M/s. A.G.Joshi & Company, Pune V. ITO,(OSD), Pune, Pune

ITA 634/PUN/2009

• Counselvise Citation: 63424514 RSA 2009
• Duration Of Justice: 2 year(s) 1 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 26-05-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA KUMAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE SHRI I.C. SUDHIR (JM) AND SHRI G.S. PANNU (AM) ITA NO. 634/PN/2009 (ASSTT. YEAR : 2005-06) M/S. A G JOSHI & COMPANY , 49/1, PARVATI, PUNE SATARA ROAD, PUNE PAN: NOT AVAILABLE .. APP ELLANT V. ITO 1 (OSD), PUNE . RESPONDENT ASSESSEE BY : SHRI KISHORE PHADKE DEPARTMENT BY : SHRI. NARENDRA KUMAR ORDER PER I.C. SUDHIR, JM THE ASSESSEE HAS QUESTIONED REVISIONAL ORDER PASSE D U/S. 263 OF THE ACT ON THE GROUND THAT LD CIT HAS ERRED IN INTE RPRETING AMENDMENTS IN SECTION 80 IB (10) AS IF THE SAME ARE RETROSPECT IVE AMENDMENT AND HAS FURTHER ERRED IN NOT INTERPRETING THE MEANING HOUSING PROJECT CONSIDERING THE CONTEXT IN WHICH IT IS USED IN SEC TION 80 IB (10) OF THE ACT. 2. AT THE OUTSET OF HEARING, THE LD. A.R. SUBMITTE D THAT ON AN IDENTICAL ISSUE RAISED IN THE GROUNDS, UNDER THE SIMILAR FACT S AND CIRCUMSTANCES IN THE CASE OF ASSESSEE ITSELF FOR A.Y. 2004-05 IN ITA NO. 633/PN/2009 VIDE ITS ORDER DATED 12 TH NOVEMBER 2010, THE TRIBUNAL HAD ALLOWED THE APPEAL OF THE ASSESSEE QUESTIONING THE VALIDITY OF THE RE VISIONAL ORDER PASSED U/S. 263 OF THE ACT. THE LD. A.R. HAS FURNISHED CO PY OF THE ORDER DATED 12 TH NOVEMBER 2010 OF THE TRIBUNAL ADOPTING THE SIMILAR ARGUMENTS ADVANCED BY IT BEFORE THE TRIBUNAL IN THE A.Y. 2004 -05. ITA . NO 634/PN/2009 A.G. JOSHI & CO... A.Y 2005-06 PAGE OF 4 2 3. THE LD. D.R. DID NOT DISPUTE THE ABOVE SUBMISSIO NS. HE, FURTHER, PLACED RELIANCE ON THE ORDER PASSED U/S. 263 OF THE ACT UNDER CONSIDERATION. 4. THE ISSUE INVOLVED BEFORE THE LD CIT REMAINED TH AT AS TO WHETHER THE AMENDED PROVISIONS OF SEC. 80 IB (10) OF THE AC T ARE APPLICABLE TO THE PROJECT OF THE ASSESSEE, WHICH WAS APPROVED AND PL EADED BEFORE 1.4.2005 OR NOT. THE CONTENTION OF THE ASSESSEE BE FORE THE LD CIT AND TRIBUNAL IS THAT AS ON THE DATE OF ISSUE OF SHOW CA USE NOTICE AND PASSING OF THE ORDER U/S. 263 OF THE ACT, THERE WAS LOT OF DEBATE ON THIS ISSUE. THERE WERE NUMBER OF DECISIONS OF BOTH SIDES OF THI S ISSUE. ACCORDINGLY, THE CONTENTION OF THE LD A.R. REMAINED THAT THERE A RE TWO VIEWS POSSIBLE ON THE ISSUE, HENCE THE LD CIT CANNOT ASSUME JURISD ICTION VALIDLY U/S. 263 OF THE ACT. RELIANCE WAS PLACED ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT V/S. MAX INDIA LTD.(2007) 295 ITR 282 (SC), WHEREIN ITS EARLIER DECISION IN THE CASE OF MALABAR INDUSTR IAL CO. LTD. V/S. CIT (2000) 243 ITR 83 (SC) HAS BEEN FOLLOWED. WE FIN D THAT UNDER SIMILAR FACTS AND CIRCUMSTANCES, THE TRIBUNAL IN A.Y. 2004 -05 (SUPRA) ON AN IDENTICAL ISSUE HAS GIVEN FOLLOWING FINDING : 4. WE HAVE HEARD BOTH THE PARTIES ON THIS LEGAL IS SUE. WE PERUSED THE VARIOUS DECISIONS CITED BY THE AR. SOM E OF THEM ARE REPRODUCED 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 ITA . NO 634/PN/2009 A.G. JOSHI & CO... A.Y 2005-06 PAGE OF 4 3 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 THAT WHILE SOME OF THE DECISIONS ARE IN FAVOUR OF DENIAL OF EX EMPTION (IE LAUKIK DEVELOPERS) AND OTHERS ARE IN FAVOUR OF GRAN TING THE DEDUCTION U/S. 80-IB(10). THUS, THERE EXISTS TWO VIEWS ON THE ISSUE OF APPLICABILITY OF THE AMENDED PROVISIONS O F SEC. 80-IB(10) OF THE ACT TO THE PROJECTS APPROVED AND COMPLETED P RIOR TO THE SAID AMENDMENT. CONSIDERING THIS FACT OF OURS GIVEN ABO VE AND ONLY BASED ON THE DEBATABLE NATURE OF THE ISSUE, WE AR E OF THE OPINION THAT THE CIT ERRONEOUSLY ASSUMED THE JURISDICTION A ND THE SAME GOES AGAINST THE SPIRIT OF THE APEX COURT IN THE CASE OF MAX INDIA LIMITED AND MALABAR INDUSTRIAL CO. LIMITED (SUPRA). NO DECISION ON MERITS IS GIVEN. ACCORDINGLY, ON THE ISSUE OF ASSU MPTION OF JURISDICTION WE APPROVE AND ALLOW THE GROUNDS 1 AND 2. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED. 5. FOLLOWING THE ABOVE DECISION, WE HOLD THAT THE L D CIT HAS ERRONEOUSLY ASSUMED JURISDICTION WHICH GOES AGAINST THE SPIRIT OF DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT V/S. MAX INDIA LIM ITED (SUPRA). THE REVISIONAL ORDER U/S. 263 IN QUESTION IS THUS HELD INVALID AND IS SET ASIDE. IN CONSEQUENCE, THE ASSESSMENT ORDER I.E. SUBJECT MATTER OF THE REVISIO NAL ORDER IS RESTORED. THE GROUNDS ARE ACCORDINGLY ALLOWED. 6. CONSEQUENTLY, APPEAL IS ALLOWED. ITA . NO 634/PN/2009 A.G. JOSHI & CO... A.Y 2005-06 PAGE OF 4 4 ORDER PRONOUNCED IN THE OPEN COURT ON 30TH JUNE 20 11 SD/- SD/- ( G.S.PANU ) ACCOUNTANT MEMBER ( I.C. SUDH IR ) JUDICIAL MEMBER PUNE, DATED THE 30TH JUNE, 2011 US COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT I, PUNE 4. THE D.R. B BENCH, PUNE 5. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE