DCIT, CHENNAI V. Akshaya Pvt Ltd., CHENNAI

ITA 667/CHNY/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9137 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-06-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 18-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R CLEMENT RAMESH KUMAR
• Assessee Lawyers: A S SRIRAMAN
• Section: 40A(3); 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , A B ENCH, CHENNAI . , . , # $ BEFORE SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER AND SHRI G.PAVAN KUMAR, JUDICIAL MEMBER ./ I.T.A.NO.666 & 667/MDS/2016 ( / ASSESSMENT YEAR: 2011-12 & 2012-13) THE DEPUTY COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE-I(1), CHENNAI - 34. VS M/S. AKSHAYA PVT.LTD. G SQUARE, 46, RAJIV GANDHI SALAI, KANDANCHAVADI, CHENNAI - 600 096. PAN: AAFCA1708D ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR. R.CLEMENT RAMESH KUMAR, ADDL. CIT, /RESPONDENT BY : MR. A.S.SRIRAMAN, ADVOCATE /DATE OF HEARING : 24 TH MAY, 2016 /DATE OF PRONOUNCEMENT : 14 TH JUNE, 2016 / O R D E R PER A. MOHAN ALANKAMONY, AM:- THESE TWO APPEALS ARE FILED BY THE REVENUE AGGRIEV ED BY THE SEPARATE ORDERS OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-1, CHENNAI BOTH DATED 30.12.20 15 IN ITA NOS.132 & 86/CIT(A)-1/2014-15 PASSED UNDER SEC TION 143(3) R.W.S. 250(6) OF THE ACT FOR THE ASSESSMENT YEARS 2011-12 & 2012-13. SINCE THE APPEALS ARE RELATED T O THE SAME ASSESSEE FOR THE SUCCESSIVE ASSESSMENT YEARS, THEY ARE HEARD TOGETHER AND DISPOSED OFF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2 ITA NO.666 & 667/MDS/2016 ITA NO.666/MDS/2016: 2. THE ONLY EFFECTIVE GROUND RAISED BY THE REVENUE IN ITS APPEAL IS THAT THE LEARNED COMMISSIONER OF INCOME T AX (APPEALS) HAS ERRED IN DIRECTING THE LEARNED ASSESS ING OFFICER TO ALLOW DEDUCTION UNDER SECTION 80IB(10) OF THE AC T ON PROPORTIONATE BASIS WHEN SOME OF THE UNITS EXCEED T HE MAXIMUM BUILT UP AREA OF 1500 SQ.FT., AS STIPULATED UNDER SECTION 80IB(10)(C) OF THE ACT . ITA NO.667/MDS/2016: 3. THE ONLY EFFECTIVE GROUND RAISED BY THE REVENUE IN ITS APPEAL IS THAT THE LEARNED COMMISSIONER OF INCOME T AX (APPEALS) HAS ERRED IN DELETING THE DISALLOWANCE MA DE BY THE LEARNED ASSESSING OFFICER AMOUNTING TO ` 52,61,472/- BY INVOKING THE PROVISIONS OF SECTION 40A(2) OF THE AC T. 4. BRIEF FACTS OF THE CASES ARE THAT THE ASSESSEE I S ENGAGED IN THE BUSINESS OF REAL ESTATE DEVELOPERS A ND FLAT PROMOTERS FILED ITS RETURNS OF INCOME FOR THE ASSES SMENT YEAR 2011-12 ON 26.11.2011 ADMITTING INCOME OF RS.3,32,7 1,220/- AND FOR THE ASSESSMENT YEAR 2012-13 ON 15.09.2012 ADMITTING INCOME OF RS.6,41,19,200/-. FOR BOTH THES E 3 ITA NO.666 & 667/MDS/2016 ASSESSMENT YEARS, THE CASES WERE TAKEN UP FOR SCRUT INY UNDER CASS AND NOTICE UNDER SECTION 143(2) WAS ISSU ED ON 2.8.2012 AND 14.08.2013 FOR THE ASSESSMENT YEARS 20 11-12 & 2012-13 RESPECTIVELY, WHEREIN THE LEARNED ASSESSI NG OFFICER MADE THE AFORESAID ADDITIONS. ITA NO.666/MDS/2016 (A.Y. 2011-12): 5. GROUND : DISALLOWANCE OF DEDUCTION U/S.80IB OF THE ACT SINCE CERTAIN FLATS WERE CONSTRUCTED ABOVE THE MAXI MUM BUILT UP AREA OF 1500 SQ.FT:- 5.1. AT THE OUTSET, LEARNED AUTHORIZED REPRESENTATI VE SUBMITTED BEFORE US BY STATING THAT THIS ISSUE HAS BEEN DEALT WITH BY THIS TRIBUNAL IN THE ASSESSEES OWN CASE FO R THE EARLIER ASSESSMENT YEAR 2009-10 IN ITA NO.1840/MDS/ 2014 VIDE ORDER DATED 19.06.2015 IN FAVOUR OF THE ASSESS EE BY HOLDING THAT THE DEDUCTION WILL BE ALLOWABLE PROPOR TIONATELY. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HA S ONLY FOLLOWED THE ABOVE STATED DECISION. THEREFORE, IN T HESE CIRCUMSTANCES, WE DO NOT FIND IT NECESSARY TO INTER FERE WITH THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ON THIS ISSUE AND ACCORDINGLY, WE HEREBY CONFIRM HIS ORDER. 4 ITA NO.666 & 667/MDS/2016 ITA NO.667/MDS/2016 (A.Y. 2012-13): 6. GROUND : DISALLOWANCE OF ` 52,61,472/- UNDER SECTION 40A(3) BEING THE EXCESS RENT OF PERUNGUDI PREMISES PAID TO M/S. AKSHAYA HOME: 6.1. IT WAS NOTICED BY THE LEARNED ASSESSING OFFICE R THAT THE ASSESSEE HAS PAID RENT TOWARDS PERUNGUDI PREMISES T O M/S. AKSHAYA HOME WHEREIN THE MANAGING DIRECTOR OF THE ASSESSEE COMPANY IS THE PROPRIETOR. ON THE SAME PRE MISES, M/S. HOME SOLUTIONS RETAIL INDIA PVT.LTD., HAD PAID RENT @ RS. 80.74 PER SQ.FT AMOUNTING TO RS.7,78,244/- PER MONTH WHILE AS THE ASSESSEE HAD PAID RENT @ RS. 126.22 PE R SQ.FT. AMOUNTING TO RS.12,16,700/- PER MONTH. BOTH THE ASS ESSEE AND M/S. HOME SOLUTIONS RETAIL INDIA PVT.LTD HAD RE NTED OUT IDENTICAL SPACE OF 9639.32 SQ.FT., IN THE SAME PREM ISES. THEREFORE THE LEARNED ASSESSING OFFICER INVOKED THE PROVISIONS OF SECTION 40A (2) OF THE ACT AND MADE A DDITION OF RS.52,61,472/- [(12,16,700 7,78,244 )X 12 ]. 6.2. ON APPEAL, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) DELETED THE ADDITION FOLLOWING THE ORDER OF HIS PREDECESSOR FOR THE ASSESSMENT YEAR 2010-11 & 2011- 12. 5 ITA NO.666 & 667/MDS/2016 6.3. AT THE OUTSET, WE FIND NOTHING ON RECORD TO PO INT OUT THAT THE REVENUE HAS CARRIED THE ISSUE IN APPEAL BEFORE THE TRIBUNAL ON THE EARLIER OCCASION. IN THESE CIRCUMST ANCES, WE HAVE TO ONLY PRESUME THAT THE REVENUE HAS ACCEPTED THE STAND OF THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) FOR THE EARLIER ASSESSMENT YEARS ON THIS IDENTICAL ISSUE. THEREFORE, WE DO NOT FIND IT NECESSARY TO INTERFERE WITH THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS). HENCE THIS ISSUE IS ALSO DECIDED IN FAVOUR OF THE A SSESSEE. 7. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE A RE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 14 TH JUNE, 2016 SD/- SD/- ( . ) ( . ) (G.PAVAN KUMAR) ( A.MOHAN ALANKAM ONY ) # % / JUDICIAL MEMBER % / ACCOUNTANT MEMBER # /CHENNAI, ( /DATED 14 TH JUNE, 2016 SOMU *+ ,+ /COPY TO: 1. APPELLANT 2. RESPONDENT 3. - () /CIT(A) 4. - /CIT 5. + 1 /DR 6. /GF