Appeal Details
Counselvise Citation
[2010] 135 COUNSELVISE.COM (IT) 8651 (ITAT-BANGALORE)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
6 month(s) 6 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
26-11-2010
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
B
Next Hearing Date
23-11-2010
Assessment Year
2007-2008
Appeal Filed On
20-05-2010
Judgement Text
IN THE INCOME-TAX APPELLATE TRIBUNAL BANGALORE BENCH B, BANGALORE BEFORE SMT P. MADHAVI DEVI, JM AND SHRI A. MOHAN ALANKAMONY, AM I.T.A. NO.691(BANG.)/2010 (ASSESSMENT YEAR : 2007-08) THE DEPUTY COMMISSIONER OF INCOME-TAX, CIR CLE-11(1), BANGALORE. APPELLANT VS M/S CONFIDENT PROJECT(INDIA) PVT.LTD., BTM LAYOUT, BANGALORE RESPONDENT REVENUE BY : SMT. PREETI GARG, CIT-III APPELLANT BY : SHRI V. SUDHINDRANATH, ADVOCATE O R D E R PER SMT. P. MADHAVI DEVI, JM; THIS APPEAL OF THE REVENUE RELATES TO ASSESSMENT YE AR : 2007-08. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS; I. THAT THE ORDER OF THE CIT(A) IN SO FAR AS IT IS PREJUDICIAL TO THE REVENUE IS OPPOSED TO THE LAW AND FACTS AND CIRCUMSTANCES OF THE CASE. II. THE LD.CIT(A) HAS ERRED IN DELETING THE DISALLO WANCE MADE BY THE AO ON ACCOUNT OF DISALLOWANCE OF THE DEDUCTION CLAIMED U/S 80IB(10) OF THE IT ACT IN RES PECT OF CAPELLA PROJECT. III. THE LD.CIT(A) HAS ERRED IN ACCEPTING THE FACT THAT ON THE DATE OF PHYSICAL VERIFICATION OF THE CAPELLA PR OJECT, THE APARTMENT NO.1013 AND 1014 WERE FOUND TO BE SINGLE APARTMENT HAVING BUILT UP ARE OF MORE THAN ITA NO.691(B)/2010 2 1500M SQ.FT AND IN NOT APPRECIATING THAT THE CONDIT ION LAID DOWN IN SECTION 80IB(10) WERE NOT FULFILLED IN RESPECT OF THE CONCERNED HOUSING PROJECT. IV. THE LD.CIT(A) WAS NOT JUSTIFIED IN ALLOWING THE APPEAL ON THE PRESUMPTION THAT THE MODIFICATION WAS DONE B Y THE BUYER AFTER THE SALE OF TWO FLATS, WITHOUT ASCE RTAINING ALL THE RELEVANT FACTS. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE COMPANY IS IN THE BUSINESS OF CONSTRUCTION OF APARTMENTS AND PROP ERTY DEVELOPMENT. FOR THE RELEVANT ASSESSMENT YEAR, THE ASSESSEE FILE D RETURN OF INCOME ON 27-10-2007 DECLARING A TOTAL INCOME OF RS.1.83,6 3,910/- AFTER CLAIMING DEDUCTION U/S 801B(10) OF THE IT ACT. TH EREAFTER, A SURVEY U/S 133A OF THE IT ACT WAS UNDERTAKEN ON 28-10-2009 ON THE SITE OF THE PROJECT AND AS PER THE REPORT OF THE SURVEY, IT WAS NOTICED THAT FLAT NOS.1013 & 1014 OF THE PROJECT WERE IN FACT ONE UNI T MEASURING 1863 SQ.FT, THUS MAKING ASSESSEE INELIGIBLE FOR DEDUCTIO N U/S 801B(10) AND ACCORDINGLY THE AO DISALLOWED THE CLAIM. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A), WHO ALLOWED THE SAME AND THE REVENUE IS IN APPEAL B EFORE US. 3. THE LEARNED DR PLACED RELIANCE ON THE ORDER OF T HE AO, WHILE LEARNED COUNSEL FOR THE ASSESSEE SUPPORTED THE ORDE R OF CIT(A). 4. AFTER HEARING BOTH THE PARTIES AND AFTER CONSIDE RING THE ARGUMENTS OF THE LEARNED DR THAT THE JOINING OF BOT H FLATS INTO ONE FLAT ITA NO.691(B)/2010 3 IS IN CONNIVANCE WITH THE ASSESSEE HEREIN AND ALSO THE ARGUMENTS OF THE ASSESSEE THAT THE JOINING OF THE FLATS IS CARRIED A FTER THE PURCHASER PURCHASING THE TWO ADJACENT FLATS, WE FIND THAT THE CIT(A) HAD PROPERLY APPRECIATED THE FACTS. THE CIT(A) OBSERVED THAT TH E DDIT(INV.) HAS STATED THAT THERE ARE TWO SEPARATE APPROVED PLANS F OR FLAT NOS.1013 & 1014 AND SEPARATE REGISTRATION AND SEPARATE SALE DE EDS WHICH SPEAK THAT AREA OF NONE OF THEM IS MORETHAN 1500 SQ.FT AN D THAT THE MEASUREMENT BY THE INVESTIGATING TEAM WAS TAKEN IN DECEMBER 2009 I.E. AFTER THE SALE OF THESE FLATS I.E. AFTER OCCUP ATION IN FEBRUARY 2009. HE ALSO OBSERVED THAT THE ONLY THE WALL BETWEEN THE TWO FLATS IS REMOVED AND THE ASSESSEE HAS VIRTUALLY NO CONTROL OVER THE FLAT OWNERS. ON A QUERY FROM THE BENCH, IT WAS SUBMITTED BY THE LEARN ED COUNSEL FOR THE ASSESSSEE THAT OUT OF 201 APARTMENT UNITS BUILT IN THE SAID PROJECTS, ONLY THESE TWO FLATS WERE PURCHASED BY A SINGLE PER SON AND WERE JOINED BY THE PURCHASER BY REMOVING THE WALL BETWEEN THE T WO FLATS AND NO OTHER STRUCTURAL CHANGES HAVE BEEN MADE BY HIM IN T HE SAID FLATS. 5. THE LEARNED COUNSEL FOR THE ASSESSEE ALSO DREW O UR ATTENTION TO PAGE-58 OF THE PAPER BOOK, WHICH IS A STATEMENT OF THE PURCHASER TO THE EFFECT THAT HE HAS PURCHASED THE APARTMENT NOS.1013 & 1014 IN CONFIDENT CAPELLA, KAKANAD, KOCHI AND ONLY THEREAFT ER HE REALIZED THAT THE APARTMENT ROOMS WERE INADEQUATE FOR HIS PERSONA L USE AND THEREFORE, GOT THE MODIFICATION DONE BY HIMSELF TO COMBINE THE ITA NO.691(B)/2010 4 APARTMENTS INTO A SINGLE ONE TO SUIT HIS REQUIREMEN T. IN VIEW OF ALL THESE FACTS, WE ARE OF THE OPINION, THAT THE CIT(A) HAS PROPERLY APPRECIATED THE EVIDENCE IN GRANTING RELIEF TO THE ASSESSEE AND NO INTERFERENCE IS CALLED FOR. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 26 TH NOVEMBER, 2010. ( A. MOHAN ALANKAMONY) (SMT. P . MADHAVI DEVI) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE: BANGALORE DATED: 24-11-2010. AM* COPY TO : 1. THE ASSESSEE 2. THE REVENUE 3. CIT(A) 4. CIT 5. DR 6. GF (BLORE) BY ORDER AR, ITAT, BANGALORE
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