Income Tax Officer (Ward) -4, Margao V. Mrs. Melba Malaika Pereira, Goa

ITA 68/PAN/2014

• Counselvise Citation: 6824114 RSA 2014
• Duration Of Justice: 1 year(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-03-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 19-03-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 24-02-2014

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI P. K. BANSAL, HONBLE ACCOUNTANT MEMBER AND SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER ITA NO. 67 /PNJ/2014 (ASST. YEAR : 2010 - 1 1 ) ITO, WARD - 4, MARGAO . VS. SHRI CAJITANO MARIO PEREIRA, 2 ND FLOOR, DREAM CENTRE , NEAR NAVELIM JUNCTION, NAVELIM SALCETE - GOA. PAN NO. ADNPP 6682 R (APPELLANT) (RESPONDENT) ITA NO. 68/PNJ/2014 (ASST. YEAR : 2010 - 11 ) ITO, WARD - 4, MARGAO. VS. MRS. MELBA MALAIKA PEREIRA , 2 ND FLOOR, DREAM CENTRE, NEAR NAVELIM JUNCTION, NAVELIM SALCETE - GOA. PAN NO. A EUPP 6194 G (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI NAVEEN DAIVAJNA - AR DEPARTMENT BY : SHRI MANJUNATH I. PUJAR - DR . DATE OF HEARING : 19 / 0 3 /2015 . DATE OF PRONOUNCEMENT : 19 / 0 3 /201 5 . O R D E R PER D.T. GARASIA , J .M TH ESE APPEAL S BY THE DIFFERENT ASSESSEE S , WHO ARE HUSBAND AND WIFE , AGAINST THE SEPARATE ORDER S OF LD. CIT (A), PANAJI , EACH , DATED 2 10 / 11 /201 3 FOR THE A.Y. 20 1 0 - 1 1 . SINCE, COMMON ISSUE INVOLVED AND THE APPEALS WERE HEARD TOGETHER, SO THESE ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER. 2. FOR THE SAKE OF CONVENIENCE, FACTS ARE TAKEN FROM I.T.A.NO. 67/PNJ/2014. THE FOLLOWING GROUNDS ARE RAISED BY THE ASSESSEE : 1. THE ORDER OF LD. CIT(A) IS OPPOSED TO LAW AND FACT OF THE CASE. 2. THE LD. CIT(A) PANAJI HAS ERRED IN ALLOWING THE DEDUCTION CLAIMED BY THE ASSESSEE U/S. 80IB(10) OF THE INCOME TAX ACT, 1961. 3. THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTER ANY OF THE GROUNDS OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING. 3. SHORT FACTS OF THE CASE ARE THAT ASSESSEE IS AN INDIVIDUAL ENGAGED IN THE BOOKS OF ACCOUNTS OF BUILDERS AND CONTRACTORS UNDER THE NAME AND STYLE OF M/S. DREAM HOUSE BUILDERS . ASSESSEE HAS CLAIMED DEDUCTION OF RS. 3,44,45,912/ - U/S. 80IB(10) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE 'ACT', FOR SHORT) BEING HALF OF THE INCOME WAS IN THE HANDS OF THE ASSESSEE AND HALF OF THE INCOME IN THE HANDS OF HIS SPOUSE AS THEY ARE GOVERNED BY THE PORTUGUESE CIVIL CODE. THE ASSESSING OFFICER HAS VERIFIED THE COMPUTATION OF INCOME AND FOUND THAT IN RESPECT OF DREAM EMERALD PROJECT PHASE - I & PHASE - II , ASSESSEE HAD CLAIMED DEDUCTION U/S. 80IB(10) OF THE ACT. THE ASS ESSING OFFICER HAS VERIFIED PLAN/MAP AND FOUND THAT THE TOTAL SIZE OF 3 THE PLOT OF LAND OF THE PROJECT IS 6725 SQ.MTS. AND BUILD UP AREA IS 8410.73 SQ.MTS. FROM THE DETAILS OF FLATS/SHOPS, IT IS FOUND THAT THE ASSESSEE HAS CONSTRUCTED FOUR ROW BUNGALOWS , WHICH IS BUILD UP WITH 180 SQ.MTS. EACH AND ALSO IN PHASE - II, THE ASSESSEE HAS CONSTRUCTED FOUR BUNGALOWS WITH 180 SQ.MTS. EACH . THE BUILD UP AREA OF THESE BUNGALOWS EXCEEDS THE PRESCRIBED LIMIT OF 1500 SQ.FT. AS LAID DOWN IN SEC. 80IB(10) OF THE ACT. , HENCE, DEDUCTION WAS NOT ALLOWED BY THE ASSESSING OFFICER. 4 . THE MATTER WAS CARRIED TO THE LD. CIT(A) AND THE LD. CIT(A) HAS ALLOWED THE APPEAL BY OBSERVING AS UNDER: - THERE IS NO CHANGE IN THE FACTS AND CIRCUMSTANCES OF THE CASE COMPARED TO EARLIER Y EAR AND THEREFORE, RELYING ON MY OWN ORDER AND ORDER OF THE HON'BLE ITAT, PANAJI PASSED IN THE CASE OF THE APPELLANT FOR A. YR. 2009 - 10 IN ITA NO.81/PNJ/2013, DATED 28.08.2013, THE A.O. IS DIRECTED TO ALLOW THE CLAIM OF DEDUCTION U/S 80IB(10)IN ITS ENTIRETY . THIS GROUND OF APPEAL OF THE APPELLANT IS ALLOWED. 5 . WE HAVE HEARD THE RIVAL CONTENTION OF BOTH THE PARTIES LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT ASSESSEE HAS ENTERED INTO DEVELOPMENT AGREEMENT WITH THE LAND OWNER. THE PERMISSION FOR CONSTRUCTION OF HOUSING PROJECT WAS TAKEN FROM C OMPETENT AUTHORITY. THE PERMISSIONS WERE ISSUED IN THE NAMES OF LAND OWNER. THE ASSESSEE IS ENGAGED IN BUSINESS OF DEVELOPING THE 4 HOUSING PROJECT. THE ASSESSEE HAS TAKEN ALL RISK AND REWARDS RELATING TO THE PROJECT. THE ASSESSING OFFICER HAS DISALLOWED TH E CLAIM ON THE GROUND THAT THE PERMISSION OF THE HOUSING PROJECT WAS NOT APPROVED IN THE NAME OF THE ASSESSEE. THE COMPLETION CERTIFICATE WAS NOT ISSUED BY LOCAL AUTHORITY AND THE ROW HOUSES WERE MORE THAN 1500 SQ. FT PROJECT, THEREFORE THE DEDUCTION U/S 80IB(10) WAS DISALLOWED. WE FIND THAT AS PER THE DECISION OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT VS RADHA DEVELOPERS, 341 ITR 403 , WHEREIN IT IS HELD THAT THERE IS NO REQUIREMENT THAT THE LAND MUST BE OWNED BY THE BUILDER. THE LAND OWNER ACCEPT S THE FULL PRICE OF THE LAND AND NO RESPONSIBILITY. THE ENTIRE RISK OF INVESTMENT AND EXPENDITURE INCURRED BY THE DEVELOPER. THE DEVELOPER IS ENTITLED FOR DEDUCTION U/S 80IB(10) OF THE I. T. ACT. WE F IN D THAT THE ISSUE IN CONTROVERSY IS SQUARELY COVERED BY THE DECISION OF HON'BLE HIGH COURT. WE RESPECTFULLY FOLLOWING THE SAME WE ARE OF THE VIEW THAT LD. CIT(A) IS JUSTIFIED IN ALLOWING THE DEDUCTION U/S 80IB(10) OF THE I. T. ACT. WE FIND THAT THE AO HAS AL SO DISALLOWED THE CLAIM ON THE GROUND THAT SOME OF THE ROW HOUSING S OF THE PROJECT ARE MORE THAN 1500 SQ. FT. IN AREA I.E. BUNG A LOW NO. G 1, G2, G3 & G4. THE LD. AR SUBMITTED BEFORE US THAT TH E S E 4 BUNG A LOWS ARE NOT PART AND PARCEL OF THE HOUSING PROJECT. THE LD. AR FURTHER SUBMITTED THAT THE LAND ON 5 WHICH THIS HOUSING PROJECT BEING CONSTRUCTED IS MORE THAN 1 ACRE OF THE LAND THAT IS ALSO EVIDENT FROM THE PLAN APPROVED BY THE COMPETENT AUTHORITY. WE FIND THAT ASSESSEE HAS SATISFIED ALL THE CONDITION THEREFORE WE ARE OF THE VIEW THAT THE LD. CIT(A) IS JUSTIFIED IN HIS ACTION AND OUR INTERFERENCE IS NOT REQUIRED. 6 . IN THE RESULT BOTH THE APPEALS OF THE DEPARTMENT ARE D ISMISSED. ( ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH MARCH , 201 5 ). SD/ - SD/ - (P.K. BANSAL) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 19 TH MARCH , 201 5 . VR/ - COPY TO: 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE LD. CIT 4 . THE CIT(A) 5 . THE D.R 6 . GUARD FILE. BY ORDER ASSISTANT REGISTRAR I.T.A.T., PANAJI