ITO wd -2[2] Pune, Pune V. Smt Suman Jagannath Pharande, Pune

ITA 711/PUN/2012

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 0983 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 6 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 08-09-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 09-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 133A; 80IB; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI PRADIP KUMAR KEDIA , A M . / ITA NO S . 71 1 & 712 /PN/20 1 2 / ASSESSMENT YEAR S : 200 6 - 0 7 & 20 0 8 - 0 9 THE DY. COMMISSIONER OF INCOME TAX, CIRCLE 2 , PUNE . / APPELLANT CIRCLE 2 , PUNE . / APPELLANT VS. SMT. SUMAN JAGANNATH PHARANDE FT. NO.14/110, SANMATI CO - OP. H OU S IN G SOC IETY, AGARKAR NAGAR, PUNE 411001 . / RESPONDENT PAN: AKKPP8413A . / ITA NO S . 1 7 29 & 1 7 30 /PN/201 2 / ASSESSMENT YEARS: 200 7 - 0 8 & 20 0 9 - 1 0 / ASSESSMENT YEARS: 200 7 - 0 8 & 20 0 9 - 1 0 THE INCOME TAX OFFICER, WARD 2(2), PUNE . / APPELLANT VS . SMT. SUMAN JAGANNATH PHARANDE FT. NO.14/110, SANMATI CO - OP. H OU S IN G SOCIETY, AGARKAR NAGAR, PUNE 411001 . / RESPONDENT PAN: AKKPP8413A / APPELLANT BY : SHRI RAJESH DAMOR / RESPOND ENT BY : SHRI NIKHIL PATHAK / DATE OF HEARING : 0 8 .0 9 .2015 / DATE OF PRONOUNCEMENT: 30 . 1 0.2015 ITA NO S. 711 AND 712 /PN/201 2 ITA NOS.1729 AND 1730/PN/2012 SMT.SUMAN JAGANNATH PHARANDE 2 / ORDER PER SUSHMA CHOWLA, JM: TWO APPEAL S FILED BY THE REVENUE ARE AGAINST THE CONSOLIDATED ORDER OF CIT (A) - I I , PUNE , DATED 30 . 1 2 .201 1 RELATING TO ASSESSMENT YEAR S 200 6 - 0 7 AND 20 0 8 - 0 9 AGAINST RESPECTIVE ORDER S PASSED UNDER SECTION 1 4 3 (3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) . ANOTHER TWO APPEAL S FILED BY THE REVENUE ARE AGAINST THE CONSOLIDATED ORDER OF CIT (A ) - II, PUNE , DATED 30 . 04 .201 2 RELATING TO ASSESSMENT YEAR S 200 7 - 0 8 AND 200 9 - 1 0 AGAINST RESPECTIVE ORDER S PASSED UNDER SECTION 143(3) R.W.S. 147 AND 143 OF THE INCOME TAX ACT, 1961 . 2. ALL THE APPEALS FILED BY THE REVENUE RELATING TO THE SAME ASSESSEE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 3 . THE ASSESSEE IN ITA NO. 711 /PN/201 2 HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : - 1 . THE ORDER OF THE COMMISSIONER OF INCOME - TAX (APPEALS) IS CONTRARY TO LAW AND TO THE FACTS AND CIRCUMSTANCES OF THE CASE. 2 . THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) GROSSLY ERRED IN ALLOWING THE ASSESSEE'S CLAIM OF DEDUCTION OF RS. 45,40,947/ - ULS 80 IB (10) IN RESPECT OF THE PROJECT UNDERTAKEN BY 'M / S SUMAN CONSTRUCTION S' WHICH IS A RESIDENTIAL CUM COMMERCIAL PROJECT AND IN WHICH THE COMMERCIAL AREA EXCEEDED THE PRESCRIBED LIMITS. 3 . THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) GROSSLY ERRED IN FAILING TO APPRECIATE THAT IN THE ORIGINAL PLAN COMMERCIAL AREA WAS VERY MUCH PART OF THE PROJECT UNDERTAKEN BY 'M /S SUMAN CONSTRUCTIONS' AND THAT 'M /S SUMAN DEVELOPERS', THE CONCERN TO WHICH THE SAID COMMERCIAL PROJECT IS CLAIMED TO BELONG, CAME INTO EXISTENCE ONLY ON 15.06.2007 I.E. AFTER THE INITIATION OF THE PROJECT IN 2004 . 4 . THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) GROSSLY ERRED IN FAILING TO APPRECIATE THAT IT WAS ONLY IN JULY, 2007 THAT THE PLAN WAS REVISED THEREBY SEPARATING THE COMMERCIAL PORTION FROM THE RESIDENTIAL PORTION AND IN WHICH THE COMMERCIAL PORTION W AS SHOWN AS UNDERTAKEN BY 'M / S SUMAN DEVELOPERS', A NEWLY STARTED CONCERN. 5 . THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) GROSSLY ERRED IN FAILING TO APPRECIATE THAT THERE WAS NO CLEAR DEMARCATION BETWEEN THE TWO SEPARATE PROJECTS AND, IN FACT, THE SO - CALLED SEPARATE COMMERCIAL PROJECT ITA NO S. 711 AND 712 /PN/201 2 ITA NOS.1729 AND 1730/PN/2012 SMT.SUMAN JAGANNATH PHARANDE 3 OVERLAPPED WITH THE EARLIER RESIDENTIAL CUM COMMERCIAL PROJECT WHICH IN ITSELF WOULD ESTABLISH THAT BOTH ARE INTEGRAL PARTS OF THE SAME PROJECT. 6 . THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) GROSSLY ERRED IN HOLD ING THAT CANOPY WAS NOT PART OF BUILT - UP AREA WITHOUT APPRECIATING THAT THE SAME COULD BE ACCESSED FROM THE FIRST FLOOR AND USED AS A TERRACE AND, THEREFORE, AFTER INCLUDING ITS AREA TO THE BUILT - UP AREA OF THE BUNGALOW, THE TOTAL BUILT - UP AREA EXCEEDED 1 500 SQ. FTS. WHICH WAS IN VIOLATION OF THE PROVISIONS OF SEC. 80 IB (10)(C) OF THE INCOME - TAX ACT, 1961. 7 . THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) GROSSLY ERRED IN GIVING UNDUE IMPORTANCE TO THE REMAND REPORT IN THIS MATTER WHICH WAS BASED ON A FEW PHOTOGRAPHS AND IN IGNORING THE FINDING GIVEN IN THE ASSESSMENT ORDER WHICH WAS BASED ON FACTS. 8 . THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) GROSSLY ERRED IN TREATING THE PROJECT AS COMPLETED THEREBY IGNORING THE FINDING MADE AT THE TIME OF THE SUR VEY THAT BUNGALOWS NO.12, 13 & 15 HAD REMAINED INCOMPLETE. 9 . THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) GROSSLY ERRED IN ROUTINELY ACCEPTING THE ASSESSEE'S SUBMISSION THAT THE PENDING WORKS WERE RELATED TO RENEWAL AND REPLACEMENT WHEREAS AS PER TH E ASSESSEE'S OWN ADMISSION, 'MAJOR CONSTRUCTION WORK OF 'M / S SUMAN CONSTRUCTIONS' WAS COMPLETED BY 31.03.2008' WHICH IN ITSELF PROVES THAT THE PROJECT HAD NOT BEEN COMPLETED FULLY. 10 . FOR THESE AND SUCH OTHER GROUNDS AS MAY BE URGED AT THE TIME OF THE H EARING, THE ORDER OF THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) MAY BE VACATED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 11 . THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND ANY OR ALL THE GROUNDS OF APPEAL. 4 . THE PRESENT SET OF FOUR APPEALS FILED BY THE REVENUE AGAINST THE ASSESSEE RELATED TO THE IDENTICAL ISSUE, BUT REFERENCE IS BEING MADE TO THE FACTS IN ITA NO.712/PN/2012 TO ADJUDICATE THE ISSUE. BOTH THE AUTHORIZED REPRESENTATIVES ADMITTED THAT THE FACTS AND ISSUE IN ALL THE APPEALS SLAT ED FOR HEARING ARE IDENTICAL. 5. THE ISSUE ARISING IN THE PRESENT APPEAL IS IN RELATION TO THE DEDUCTION CLAIMED UNDER SECTION 80IB(10) OF THE ACT AGAINST THE HOUSING PROJECT KNOWN AS M/S. SUMAN CONSTRUCTION. THE FIRST ASPECT OF THE SAID CLAIM OF DEDUCT ION UNDER SECTION 80IB(10) OF THE ACT IS WHERE THE ASSESSEE IN THE ORIGINAL PLAN HAD INCLUDED COMMERCIAL AREA EXCEEDING 2000 SQ.FT, THEN IS THE ASSESSEE ENTITLED TO THE AFORESAID CLAIM OF DEDUCTION. THE SECOND ASPECT OF THE ISSUE IS THAT CERTAIN FLATS IN THE PROJECT HAD ADJACENT CANOPY, WHICH COULD BE ACCESSED FROM THE FIRST FLOOR AND AFTER INCLUDING THE AREA OF CANOPY TO TH E BUILT UP AREA OF THE ROW HOUSES, T HE TOTAL AREA EXCEEDED 1500 SQ.FT. AND HENCE, ITA NO S. 711 AND 712 /PN/201 2 ITA NOS.1729 AND 1730/PN/2012 SMT.SUMAN JAGANNATH PHARANDE 4 THERE WAS VIOLATION OF PROVISIONS OF SECTION 80IB(10 ) OF THE ACT. THE THIRD ASPECT OF THE ISSUE IS THE NON - COMPLETION OF THE PROJECT BEFORE STIPULATED DATE I.E. 31.03.2008 . 6. BRIEFLY, IN THE FACTS OF THE PRESENT CASE, THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF CONSTRUCTION UNDER THE NAME AND STYLE OF M/ S. SUMAN CONSTRUCTIONS. THE ASSESSEE HAD UNDERTAKEN RESIDENTIAL CUM COMMERCIAL PROJECT AT SR. NO.23/B, KONARK VIHAR, FARANDENAGAR, WADI BUDURK, NANDED AND HAD CLAIMED DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. IN ASSESSMENT YEAR 2008 - 09, THE ASSESSEE H AD CLAIMED DEDUCTION UNDER SECTION 80IB(10) OF THE ACT AT RS.45,40,947/ - . SURVEY UNDER SECTION 133A OF THE ACT WAS CARRIED OUT AT THE PREMISES OF THE ASSESSEE ON 19.12.2008 . THE ASSESSING OFFICER NOTED THAT THE ASSESSEE WAS CONSTRUCTING PROJECT ON LAND A DMEASURING 2,33,180 SQ.FT. THE ORIGINAL PLAN DATED 24.02.2004 INCLUDED COMMERCIAL AREA TOTALING 40,911 SQ.FT. THE ASSESSING OFFICER IN THIS REGARD NOTED THAT WHERE THE AREA OF THE COMMERCIAL UNIT EXCEEDED 2000 SQ.FT., IT WAS NOT ENTITLED TO THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT . ANOTHER ASPECT NOTED BY THE ASSESSING OFFICER WAS UNDER SECTION 80IB(10) OF THE ACT . ANOTHER ASPECT NOTED BY THE ASSESSING OFFICER WAS THAT AS PER THE AUDIT REPORT SUBMITTED BY THE ASSESSEE, THE PROJECT HAD COMMENCED CONSTRUCTION ON 21.03.2004 , WHILE AS PER THE PLAN SANCTIONED BY THE LOCAL AUTH ORITY I.E. GRAMPANCHAYAT, WADI (BUDU R K) , NANDED, C OMMENCEMENT CERTIFICATE FOR THE PROJECT WAS GIVEN ON 15.05.2004 . SINCE THE ASSESSEE HAD ALREADY STARTED INCURRING EXPENSES FOR DEVELOPMENT, THE ASSESSING OFFICER ADOPTED THE COMMENCEMENT DATE AS 21.03.2004 AND HENCE, THE PROJECT SHOULD HAVE BEEN COMPLETED BEFORE 31.03.2008 . HOWEVER, DURING THE COURSE OF SURVEY AND INSPECTIO N OF BUNGALOW NOS.12, 13 AND 15, IT WAS SEEN THAT THE SAID B U NGALOWS WERE NOT COMPLETE AS ON 09.12.2008 . THE PLEA OF THE ASSESSEE BEFO RE THE ASSESSING OFFICER WAS THAT IT WAS UNDERTAKEN TWO PROJECTS I.E. ONE PROJECT WAS THE RESIDENTIAL PROJECT UNDER THE NAME AND STYLE OF M/S. SUMAN CONSTRUCTIONS AND ANOTHER WAS COMMERCIAL CUM RESIDENTIAL PROJECT UNDER THE NAME AND STYLE OF M/S.SUMAN DEVE LOPERS. THE ASSESSEE FURTHER CLAIMED THAT TWO PROJECTS WERE SEPARATE AND NO DEDUCTION UNDER SECTION 80IB(10) OF THE ACT WAS CLAIMED FOR THE ITA NO S. 711 AND 712 /PN/201 2 ITA NOS.1729 AND 1730/PN/2012 SMT.SUMAN JAGANNATH PHARANDE 5 COMMERCIAL CUM RESIDENTIAL PROJECT. THE ASSESSING OFFICER HOWEVER, ON PERUSAL OF THE ORIGINAL AND REVISED PLANS, C ONCLUDED THAT THERE WERE NO DIFFERENT PROJECTS, BUT A SINGLE PROJECT. THE ASSESSING OFFICER ALSO NOTED THAT DURING THE COURSE OF SURVEY, CERTAIN DOCUMENTS WERE IMPOUNDED, WHICH SHOWED THAT THE BILLS WERE RAISED IN THE NAME OF M/S. SUMAN CONSTRUCTION AND E NTRIES IN THE REGISTER MAINTAINED AT THE SITE WERE CONTINUING STILL 05.12.2008 . THE CLAIM OF THE ASSESSEE THAT THE LAND WAS DEMARCATED FOR THE HOUSING PROJECT AND COMMERCIAL CUM RESIDENTIAL PROJECT AS DISTINCT AND SEPARATE, WAS ALSO NOT ACCEPTED BY THE AS SESSING OFFICER. FURTHER, THE ASSESSEE WAS FOUND NOT TO HAVE CONSTRUCTED BUNGALOW NOS.5 TO 11 IN THE PROJECT. ANOTHER DISCREPANCY NOTED BY THE ASSESSING OFFICER WAS THAT THE ASSESSEE HAD PLAN TO CONSTRUCT 129 RESIDENTIAL BUNGALOWS IN THE SAID PROJECT, WH EREAS 26 BUNGALOWS OUT OF THE SAME EXCEEDED THE AREA OF 1500 SQ.FT. ON ACCOUNT OF PROJECTION AT THE FIRST FLOOR, WHICH WAS NOT INCLUDED WHILE CALCULATING THE BUILT UP AREA OF THE BUNGALOWS. THE CERTIFICATE SUBMITTED BY THE ASSESSEE OF GRAMPANCHAYAT REGARD ING BUILT UP AREA OF BUNGALOWS AND DRAWINGS OF THE BUNGALOWS, WAS NOT ACCEPTED BY THE ASSESSING OFFICER BUNGALOWS AND DRAWINGS OF THE BUNGALOWS, WAS NOT ACCEPTED BY THE ASSESSING OFFICER HOLDING THAT THE SAID AREA IS INCLUDABLE IN THE HANDS OF ASSESSEE. SINCE THE ASSESSEE HAD FAILED TO COMPLY WITH THE PROVISIONS OF SECTION 80IB(10) OF T HE ACT , THE CLAIM OF DEDUCTION WAS DENIED TO THE ASSESSEE. 7. BEFORE THE CIT(A), THE ASSESSEE MADE ELABORATE SUBMISSIONS WHICH HAVE BEEN REPRODUCED BY THE CIT(A) UNDER PARA 3.1 AT PAGES 6 TO 13 OF THE APPELLATE ORDER. THE SAID SUBMISSIONS WERE FORWARDED TO THE ASSESSING OFFICER, WHO IN TURN FURNISHED REPORT DATED 21.10.2010, WHICH IS REPRODUCED UNDER PARA 3.3 AT PAGES 14 AND 15 OF THE APPELLATE ORDER. IN REPLY, THE ASSESSEE FURNISHED FURTHER ARGUMENTS TO THE REPORT OF THE ASSESSING OFFICER, WHICH IS REPR ODUCED AT PAGES 15 TO 20 OF THE APPELLATE ORDER. THE SAID REPLY OF THE ASSESSEE WAS ALSO CONFRONTED TO THE ASSESSING OFFICER. THE REPLIES OF THE ASSESSEE ARE REPRODUCED IN THE APPELLATE ORDER ITSELF. THE CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE A SSESSEE AND VARIOUS MATERIAL PRODUCED, NOTED THAT THE ITA NO S. 711 AND 712 /PN/201 2 ITA NOS.1729 AND 1730/PN/2012 SMT.SUMAN JAGANNATH PHARANDE 6 ASSESSING OFFICER HAD FORMED AN OPINION REGARDING THE PROJECT BEING INTEGRAL ON THE BASIS OF COPY OF ORIGINAL PLAN THOUGH THE ORIGINAL PLAN WAS LATER REVISED AND THE ASSESSING OFFICER DID NOT ACCEPT THE SUBMISSIONS OF THE ASSESSEE IN THIS REGARD AND NOTED THAT A SINGLE PROJECT C OULD NOT CONVERTED INTO TWO DIFFERENT PROJECTS. AFTER NOTING THE OBJECTIONS OF ASSESSING OFFICER IN PARA 4 OF THE APPELLATE ORDER, THE CIT(A) EXPOUNDED ON THE FACTUAL ASPECTS OF THE SAID CASE VIDE PARAS 4.1 TO 4.3 AT PAGES 34 AND 35 OF THE APPELLATE ORDER , WHICH ARE AS UNDER: - 4.1 THE APPELLANT DURING THE APPELLATE PROCEEDINGS HAS CONTENDED AND EXPLAINED THAT THE APPELLANT OWNED A PIECE OF LAND ADMEASURING ABOUT 2,71,778 SQ.FT (6 .12 ACRE) AND THE LAYOUT PLAN WAS SUBMITTED TO THE LOCAL AUTHORITY AT WADI (BUDRUK, NANDED). THE PROJECT WAS CONTEMPLATED UNDER THE NAME OF 'SU M AN CONSTRUCTIONS'. OUT OF THE TOTAL AREA OF 2,71,778 SQ.FT, 2,30,864 SQ.FT WAS EARMARKED FOR THE HOUSING PROJECT DIVIDING INTO DIFFERENT SIZES OF PLOTS AND TOTAL NUMBER OF SUCH PLOTS WERE 136 WHICH WERE EXCLUSIVELY EARMARKED FOR HOUSING PROJECTS. THE REMAINING AREA OF 40,914 SQ.FT WAS EARMARKED FOR COMMERCIAL UNITS AND THE SAID AREA WAS DIVIDED INTO 4 PLOTS NO 1 T O 4 HAVING DIFFERENT SIZES. PLOT NO.1 9836 SQ.FT. PLOT NO.2 9962 SQ.FT. PLOT NO.3 10061 SQ.FT. PLOT NO.4 11028 SQ.FT. 40,914 SQ.FT. 4.2 THE ABOVE PLAN WAS SUBMITTED TO THE LOCAL AUTHORITY IN THE MONTH 4.2 THE ABOVE PLAN WAS SUBMITTED TO THE LOCAL AUTHORITY IN THE MONTH OF MARCH 2004 AND THE SAME WAS SA NCTIONED BY THE LOCAL AUTHORITY IN MAY 2004. LATER IN THE YEAR 2007, THE PLAN WAS REVISED AND A SEPARATE LAYOUT WAS PREPARED AND SUBMITTED TO THE LOCAL AUTHORITY. IN THE LAYOUT THE COMMERCIAL AREA EARMARKED WAS REDUCED TO 38,830 SQ.FT. FROM 40,914 SQ.FT AND SEPARATE PLOTTING WAS DONE AND DISTRIBUTED BETWEEN THREE PLOTS IN COMPARISON TO ORIGINALLY FOUR PLOTS THE THREE PLOTS WERE AS UNDER : PLOT A 15,216 SQ.FT. PLOT B 11,750 SQ.FT. PLOT C 11,862 SQ.FT. THE NUMBER OF PLOTS FOR BUNG A LOWS WAS R EDUCED FROM 136 TO 129 AND A NEW ROAD WAS LAID FROM THE MAIN ROAD TO THE HOUSING COLONY. THUS THE HOUSING PROJECT OF SUMAN CONSTRUCTION, THE PROPRIETARY CONCERN OF THE APPELLANT CONSISTED OF 129 DWELLING/RESIDENTIAL UNITS WHICH WAS COMPLETED BEFORE 31 - 3 - 2008. THE NECESSARY COMPLETION CERTIFICATES FOR THE SAME HAS BEEN OBTAINED BY THE APPELLANT FROM THE LOCAL AUTHORITY. 4.3 THE OTHER PROJECT WHICH WAS COMMENCED IN 2007 IN THE OTHER PROPRIETARY CONCERN OF THE APPELLANT SUMAN DEVELOPERS STARTED AS PER THE COMMENCEMENT CERTIFICATE ON 26 TH JULY 2007 WHICH AGAIN REDUCED FROM 3 PLOTS INTO 2 PLOTS. 1) PLOT A + 15,216 SQ.FT RECORDED AS C1 2) PLOT B & C AMA LGAMAT ED AND RECORDED AS C2 ADMEASURING 23,612 SQ.FT. ON C 1 & C2 PLOTS TWO BUILDINGS ARE CONSTRUC TED WITH GROUND + 3 FLOORS TITLED AS SUMAN HEIGHTS 1 AND SUMAN HEIGHTS 2. IN SUMAN HEIGHT 1 - 14 FLATS ARE CONSTRUCTED FROM 1 ST TO 3 RD FLOOR AND 25 SHOPS ON THE GROUND FLOOR. IN SUMAN HEIGHTS 2 - 42 FLATS ARE CONSTRUCTED FROM 1 ST TO 3 RD FLOOR AND 24 SHO PS ARE CONSTRUCTED ON THE GROUND FLOOR. THE APPELLANT HAS ALSO STATED THAT SEPARATE ITA NO S. 711 AND 712 /PN/201 2 ITA NOS.1729 AND 1730/PN/2012 SMT.SUMAN JAGANNATH PHARANDE 7 BOOKS OF ACCOUNTS, SEPARATE BANK ACCOUNTS, SEPARATE OFFICES, SEPARATE SHOP AND ESTABLISHMENT LICENSES FOR THE TWO PROPRIETARY CONCERNS SUMAN CONSTRUCTION AND SUMAN DEVE LOPERS WERE TAKEN, SERVICE TAX REGISTRATION, WHICH IS NOT APPLICABLE TO RESIDENTIAL HOUSING PROJECTS BUT APPLICABLE TO COMMERCIAL PROJECT WAS TAKEN FOR SUMAN DEVELOPERS, SEPARATE TAN NUMBERS FOR BOTH THE CONCERNS. THE APPELLANT, HAS, THEREFORE, CONTENDE D THAT THESE FACTS CLEARLY INDICATES THAT THE TWO PROJECTS ARE DISTINCT AND SEPARATE PROJECTS. THE A.O. DURING THE ASSESSMENT PROCEEDINGS HAS NOT AT ALL LOOKED INTO THESE ASPECTS OF THE PROJECT UNDERTAKEN BY THE APPELLANT AT NANDED. THE FACTS BROUGHT ON RECORD AND SEQUENCE OF EVENTS DO INDICATE THAT THE PROJECT UNDERTAKEN BY THE APPELLANT IS NOT ONE INTEGRAL PROJECT BUT COM RISES OF TWO SEPARATE PROJECTS. 8. THE CIT(A) T HEREAFTER , ACCEPTED THE PLEA OF THE ASSESSEE OF EXISTENCE OF TWO SEPARATE PROPRIETA RY CONCERN S M/S. SUMAN CONSTRUCTION AND M/S. SUMAN DEVELOPERS AND OBSERVED AS UNDER: - 4.6.1 THE SUBMISSION MADE BY THE APPELLANT AND THE MATERIAL ON RECORD HAS BEEN PERUSED. THE EXISTENCE OF TWO SEPARATE PROPRIETARY CONCERNS VIZ. SUMAN CONSTRUCTION AND SUMAN DEVELOPERS IS UNDISPUTED. THE PROJECT INITIALLY PLANNED WAS SUBJECTED TO CHANGES AND IT RESULTED INTO TWO SEPARATE PROJECTS. SO FAR AS THE PROJECT OF SUMAN CONSTRUCTION IS CONCERNED, IT COMPRISED OF 129 BUNG A LOWS WHICH WERE REDUCED FROM 136 AND A CLEAR DEMARCATION BY WAY OF A SEPARATE ROAD FROM THE MAIN ROAD WAS CONSTRUCTED AND THE PLOTTINQ OF THE LAYOUT HAS BEEN DONE BY THE APPELLANT. MOREOVER, THE APPELLANT HAS TAKEN SEPARATE APPROVAL FROM THE LOCAL AUTHORITY. ANOTHER IMPORTANT ASPECT IS THE M AINTENANCE OF SEPARATE BOOKS OF ACCOUNT, BANK ACCOUNT, SEPARATE OFFICES AND EVEN ESTABLISHMENT LICENSES TAKEN BY THE APPELLANT HAVE BEEN SEPARATELY TAKEN FOR THE TWO PROPRIETARY CONCERNS. THE A .O . HAS NOT EXAMINED AND LOOKED INTO THESE TWO PROPRIETARY CONCERNS. THE A .O . HAS NOT EXAMINED AND LOOKED INTO THESE ASPECTS OF THE T WO PROJECTS WHILE DECIDING THE ISSUE. ANOTHER IMPORTANT ASPECT WHICH HAS BEEN OVERLOOKED BY THE A .O . IS THE STATEMENT RECORDED OF THE SITE ENGINEER DURING THE COURSE OF SURVEY ACTION IN WHICH IT HAS BEEN CATEGORICALLY MENTIONED REGARDING THE EXISTENCE O F TWO SEPARATE PROJECTS. THE DELIVERY CHALLAN ON WHICH THE AO HAS BASED HIS FINDING FOR MAKING THE DISALLOWANCE CONTAINED THE SIGNATURE OF THE STOREKEEPER OF SUMAN DEVELOPER AND THE STAMP ON IT. IN THE STATEMENT RECORDED IN QUESTION NO. 23, THE SITE ENG INEER HAD ALSO EXPLAINED THAT THE SAID DELIVERY CHALLANS PERTAINED TO SUMAN DEVELOPERS AS IN THE VERY SAME STATEMENT HE HAS STATED THAT THE CORRESPONDING BILLS FOR THE DELIVERY CHALLAN CAN BE SUBMITTED. EVEN IN THE REMAND REPORT THE ASSESSING OFFICER HA S NOT COMMENTED ON THE SUBMISSIONS OF THE APPELLANT, BUT HAS ONLY REITERATED THE FINDINGS OF THE ASSESSING OFFICER AS RECORDED IN THE ASSESSMENT ORDER. THE FACTS BROUGHT ON RECORD CLEARLY INDICATES THAT THE TWO PROJECTS ARE NOT ONE INTEGRAL PROJECT BUT TWO SEPARATE PROJECTS AS EVEN THE TIMING OF THE PROJECT WITH RESPECT TO ITS CONSTRUCTION ARE SEPARATE AS THE MARKETING DONE BY THE APPELLANT BY WAY OF ADVERTISEMENT HAVE BEEN DONE FOR TWO PROJECTS SEPARATELY. 4.7 THUS ON GOING THROUGH THE VARIOUS FACT AN D ASPECT OF THE PROJECTS AS BROUGHT OUT BY THE APPELLANT AND ALSO ON GOING INTO THE DETAILS OF THE SEPARATE LAYOUT PLAN AND THE APPROVAL GRANTED BY THE LOCAL AUTHORITY AND ALSO THE TIMING OF CONSTRUCTION DO CLEARLY INDICATE PRIMA FACIE EXISTENCE OF TWO SEPARATE AND DISTINCT PROJECTS AND WHICH WERE DEMARCATED. 9 . THE REVENUE IS AGGRIEVED BY THE AFORESAID FINDINGS OF CIT(A) THAT THE ASSESSEE HAD TWO SEPARATE PROJECTS I.E. ONE RESIDENTIAL PROJECT AND THE OTHER IS COMMERCIAL CUM RESIDENTIAL PROJECT. THE SECOND OBJECTION OF THE ASSESSING OFFICER THAT THE TOTAL BUILT UP ITA NO S. 711 AND 712 /PN/201 2 ITA NOS.1729 AND 1730/PN/2012 SMT.SUMAN JAGANNATH PHARANDE 8 AREA OF THE COMMERCIAL CUM RESIDENTIAL UNITS EXCEEDED 2000 SQ.FT., WAS ALSO REJECTED BY THE CIT(A) SINCE HE ACCEPTED THAT THERE WERE TWO SEPARATE PROJECTS UNDERTAKEN BY TWO PROPRIETARY CONCE RNS OF THE ASSESSEE AND WHERE THE COMMERCIAL AREA WAS CALCULATED ON THE BASIS OF ORIGINAL PLAN, WHICH IN TURN WAS REVISED, BUT WHICH FORMED PART OF THE SECOND PROJECT, IT CANNOT BE SAID THAT THE ASSESSEE HAD VIOLATED THE PROVISIONS OF SECTION 80IB(10) OF T HE ACT . 10 . THE NEXT OBJECTION OF THE ASSESSING OFFICER THAT THE BUILT UP AREA OF SOME OF UNITS EXCEEDED 1500 SQ.FT BY INCLUDING THE AREA OF CANOPY / PORCH IN THE BUILT UP AREA, WAS ALSO NOT ACCEPTED BY THE CIT(A) BY OBSERVING AS UNDER: - 6.1 DURING THE APPELLATE PROCEEDINGS, THE APPELLANT CONTENDED THAT THE BUILT UP AREA OF EACH UNIT BELOW THE PRESCRIBED LIMIT OF 1500 SQ.FT AND THAT DURING THE PERIOD 15.05.2004 TO 31.03.2008 (A.Y 2005 - 06) TO A.Y. 2008 - 09 129 RESIDENTIAL UNITS OF DIFFERENT BUILT UP AR EA WERE CONSTRUCTED RANGING FROM 575 SQ.FT TO 1470 SQ.FT AND THE SAME IS EVIDENT FROM THE CERTIFICATES ISSUED BY THE LOCAL AUTHORITY. IT WAS ALSO SUBMITTED BY THE APPELLANT THAT THE A. O . HAS ADDED THE AREA OF 'CANOPY' TO THE BUILT UP AREA, HOWEVER, THE AREA OF CANOPY CANNOT BE INCLUDED IN THE BUILT UP AREA AS IT IS NOT A 'PROJECTION' ON FLOOR LEVEL ON GROUND FLOOR NOT IT IS A PROJECTION ON THE FIRST FLOOR. IT HAS ALSO BEEN CONTENDED THAT THE LOCAL AUTHORITIES ARE MORE METICULOUS WITH REFERENCE TO CONS UMPTION OF FSI HAVE AUTHORITIES ARE MORE METICULOUS WITH REFERENCE TO CONS UMPTION OF FSI HAVE NOT INCLUDED THE AREA OF CANOPY IN THE BUILT UP AREA. THE ARCHITECT WHO HAS PLANNED AND SUPERVISED THE UNITS CERTIFIED THAT BUILT UP AREA OF NONE OF THE UNITS EXCEEDED 1500 SQ.FT. AND THE REVENUE AUTHORITIES WHO COLLECT STAMP DUTY HA S REGISTERED ALL THE SALE DEEDS WITHOUT ADDING THE CANOPY AREA TO THE BUILT UP AREA AND THE STANDARDIZED BUILDING BYE - LAWS AND DEVELOPMENT CONTROL RULE FOR B & C CLASS MUNICIPAL COUNCIL OF MAHARASHTRA CLEARLY STATES THAT THE AREA OF CANOPY/PORCH ARE NO T TO BE CALCULATED IN THE BUILT UP AREA. IT HAS FURTHER BEEN EXPLAINED BY THE APPELLANT THAT 'CANOPY' IS ALLOWED BY ALL LOCAL AUTHORITIES WITHIN THE OPEN SPACE AROUND HOUSING UNIT AND THE CANOPY IS A 'MEANS OF ACCESS' AND TO PROTECT THE PERSON FROM SUN AND RAIN WHILE GETTING DOWN FROM THE VEHICLE AND ENTERING THE PREMISES, THUS IT IS A WEATHER SHED WITHOUT ANY SIDE WALL AND NOT A HABITABLE ROOM. 6.2 ON THE BASIS OF THE SUBMISSION MADE BY THE APPELLANT MY PREDECESSOR CIT(A) II HAD CALLED FOR A REMAND REPORT FROM THE A.O. ON THE ISSUE OF 'WHETHER CANOPY COULD HAVE BEEN INCLUDED WITHIN THE DEFINITION OF BUILT UP AREA AS PROVIDED U/S 80IB(10)(14)(A) OF THE IT ACT 1961 AND ALSO WHETHER THE 'CANOPY' COULD BE COVERED UNDER THE AMBIT OF THE TERMS 'PROJECT IONS' AND 'BALCONIES' AS MENTIONED IN 80IB(14)(A). IN THE REMAND REPORT DATED 23 - 11 - 2011. THE A.O. HAS HELD AS UNDER: 'I HAVE GONE THROUGH THE ABOVE SUBMISSION. IN THE CASE OF ACIT VS SMT. SAROJ KAPOOR (2010) 38 OTR (IND)(TRIB) 475 ITAT INDORE BENCH DECIDED THAT COGNIZANCE TO THE CERTIFICATE ISSUED BY TECHNICAL EXPERT I.E. ARCHITECT AND CERTIFICATES ISSUED BY THE LOCAL AUTHORITY TO BE GIVEN. CERTIFICATE ISSUED BY THE GRAM PANCHAYAT DATED 28.10.2007 AND DATED 3103.2008 AND CERTIFICATE ISSUED BY A RCHITECT DATED 25.03.2008 ARE KEPT ON ITA NO S. 711 AND 712 /PN/201 2 ITA NOS.1729 AND 1730/PN/2012 SMT.SUMAN JAGANNATH PHARANDE 9 RECORD. FROM THESE CERTIFICATES IT IS CLEAR THAT BUILT - UP AREA OF ANY UNIT (BUNG A LOW) DOES NOT EXCEED THE PRESCRIBED LIMIT OF 1500 SQ.FT. IN VIEW OF THIS THE CERTIFICATE ISSUED BY LOCAL AUTHORITY DATED 28.10.2007 A ND CERTIFICATE ISSUED BY ARCHITECT DATED 25.03.2008 IS CONCLUSIVE FOR TAKING COGNIZANCE IN THE CASE. I HAVE GONE THOUGH THE SUBMISSION MADE BY THE ASSESSEE CAREFULLY. THE BUILT - UP AREA HAS BEEN INSERTED BY THE FINANCE ACT, 2004 IS W.E.F. 1.4.2005. BULLT - UP AREA MEANS THE INNER MEASUREMENT OF THE RESIDENTIAL UNIT AT THE FLOOR LEVEL, INCLUDING THE PROJECTION AND BALCONIES, AS INCREASED BY THE THICKNESS OF THE WALLS BUT DOES NOT INCLUDE THE COMMON AREA SHARED WITH OTHER RESIDENTIAL UNITS. I HAVE TAKEN 'T HE LATEST PHOTOGRAPHS OF ROW HOUSES WHICH SHOWS THAT THE UPPER AREA OF CANOPY IS NOT USABLE AS EVIDENT FROM THE PHOTOGRAPH WHICH IS ENCLOSED HEREWITH FOR KIND PERUSAL. ON SEEING THE PHOTOGRAPH, IT IS FOUND THAT CANOPY IS OPEN TO SKY AND IS NOT USED BY A NY H A BIT A NT. ' 6.3 THUS, IN VIEW OF THE CLEAR AND UNAMBIGUOUS FINDINGS OF THE A .O . THAT THE CANOPY IS NOT A HABITABLE AREA AND THE FACT IS ALSO EVIDENT FROM THE PHOTOGRAPH WHICH HAS ALSO BEEN ENCLOSED ALONG WITH THE REPORT, AS THE SAME IS BELOW THE F IRST FLOOR AND NOT ATTACHED TO IT AND IS OPEN TO THE SKY. THUS, THE 'CANOPY' COULD NOT BE CONSIDERED PART OF BUILT - UP AREA AND IT DOES NOT COME UNDER THE AMBIT OF THE TERMS 'PROJECTIONS' AND 'BALCONIES' AS CONTEMPLATED U/S 80IB(10)(14)(A). THE CANOPY CA N MORE BE EQUATED WITH A PORTICO WHICH IS PROVIDED IN THE HOUSES OR BUNG A LOWS FOR THE PURPOSE OF SHADE FROM SUN AND RAIN. THUS THE AREA OF THE RESIDENTIAL BUNGALOWS WITHOUT THE AREA OF CANOPY BEING CONSIDERED IN ARRIVING AT THE BUILT UP AREA REMAINS BEL OW 1500 SQ.FT AND, THEREFORE, NO VIOLATION OF THE CONDITIONS OF SEC. 80LB (10) HAS BEEN DONE BY THE APPELLANT AS PER THE FINDING OF THE A .O . IN THE ASSESSMENT ORDER THAT 26 BUNGALOWS EXCEEDS 1500 SQ.FT AREA. 1 1 . THE LAST OBJECTION OF THE ASSESSING OFF ICER WAS THE NON - COMPLETION OF THE PROJECT BY 31.03.2008 I.E. FOUR YEARS, SINCE THE PLANS WERE SANCTIONED ON 21.03.2004. THE CIT(A) ALLOWED THE CLAIM OF THE ASSESSEE BY OBSERVING AS UNDER: - 7.1 DURING THE APPELLATE PROCEEDINGS, IT HAS BEEN CONTENDED THAT THE LOCAL AUTHORITY HAD SANCTIONED THE PLAN ON 15 - 5 - 2004 AND, THEREFORE, THE APPELLANT WAS UNDER OBLIGATION TO COMPLETE THE PROJECT BEFORE 31 - 3 - 2009 AS CONTEMPLATED U/S 80IB(10), HOWEVER, THE ASSESSEE HAS COMPLETED THE PROJECT BEFORE 31 - 3 - 2008. IT HAS BEEN FURTHER SUBMITTED THAT THE AO HAD COME TO A CONCLUSION THAT THE PROJECT WAS NOT COMPLETED BASED ON THE DATE OF COMMENCEMENT MENTIONED IN THE AUDIT REPORT AND THE FINDING DURING THE SURVEY ACTION U/S 133A WITH REFERENCE TO THE DWELLING UNITS NO. 12 , 13 & 15, THE APPELLANT HAS CONTENDED THAT THE RELEVANCE OF THE COMMENCEMENT DATE MENTIONED IN THE AUDIT REPORT IS WITH REFERENCE TO THE EXPENSES INCURRED AND NOT THE STIPULATED AND PRESCRIBED U/S 80LB (10). REGARDING THE REFERENCE MADE BY THE A.O. OF NON - COMPLETION OF THE BUNGLOW NO 12, 13 & 15 AS HELD BY THE A.O. THE APPELLANT HAS DRAWN ATTENTION TOWARDS THE QUESTION NO. 17 WHICH WERE PUT TO THE SITE ENGINEER WHERE THE STATEMENT WAS RECORDED D URING THE SURVEY ACTION CLEARLY INDICATES THAT THE PEND ING WORKS WERE RELATED TO RENEWAL AND REPLACEMENT SUCH AS GLASS & DOOR & WINDOWS WORK ETC AND THE MAJOR CONSTRUCTION WORK OF SUMAN CONSTRUCTION WAS COMPLETED BY 31 - 3 - 2008. THE APPELLANT HAS ALSO SUBMITTED THE COPY OF THE COMPLETION CERTIFICATES ISSUED B Y THE LOCAL AUTHORITY, THE GRAMPANCHAYAT, WADI BUDRUK, NANDED WHICH HAS CERTIFIED THAT THE CONSTRUCTION OF THE 129 UNITS OF SUMAN CONSTRUCTIONS HAS BEEN COMPLETED BEFORE 31 - 3 - 2008. ON GOING THROUGH THE SUBMISSION OF THE APPELLANT AND ALSO THE STATEMENT OF THE SITE ENGINEER AND FINALLY THE CERTIFICATE ISSUED BY THE LOCAL AUTHORITY, IT BECOMES CLEAR THAT THE PROJECT HAS BEEN COMPLETED BEFORE 31 - 3 - 2008 AND ITA NO S. 711 AND 712 /PN/201 2 ITA NOS.1729 AND 1730/PN/2012 SMT.SUMAN JAGANNATH PHARANDE 10 THE A.O.'S FINDING THAT THE THREE BUNGALOW NO. 12,13 & 15 WERE NOT COMPLETED IS WITHOUT ANY BASIS AND THE FINDING HAS BEEN DONE WITHOUT BRINGING ANY MATERIAL ON RECORD. IN THE RESULT, THE GROUND OF APPEAL NO. 4 RAISED BY THE APPELLANT IS ALSO LIABLE TO BE ALLOWED. 12. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE POINTED OUT THAT THE ISSUE RAIS ED IN ALL THE APPEALS IS IDENTICAL I.E. AGAINST DEDUCTION UNDER SECTION 80IB(10) OF THE ACT . IN MAY, 2004, THE ASSESSEE RECEIVED SANCTION FOR CONSTRUCTION OF 136 R OW HOUSES OF AREA OF 230864 SQ.FT. THE ASSESSEE HAD PROPOSED AND SUBMITTED PLA NS FOR COMMER CIAL AREA OF 40914 SQ.FT., WHICH WAS NOT PART OF THE PLANS SUBMITTED IN MAY, 2004. OUR ATTENTION WAS DRAWN TO THE LAY OUT PLAN PLACED AT PAGE 74 OF THE PAPER BOOK AND IT WAS POINTED OUT THAT THE FINDING OF THE ASSESSING OFFICER WAS THAT THE ACTIVITY OF CO NSTRUCTION HAD STARTED ON 31.03.2004, SO THE PROJECT HAD TO BE COMPLETED BY 31.03.2008. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE FURTHER POINTED OUT THAT THE TAX AUDIT REPORT FILED BY THE ASSESSEE ALSO SAYS THAT THE PROJECT WAS STARTED IN M ARCH, 2004. ON PAGE 78 OF THE PAPER BOOK, THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE FURTHER POINTED OUT THAT THE REVISED LAY OUT PLAN WITH SPACE FOR PARKING AND CONSTRUCTION OF 127 ROW HOUSES IS FILED. THIS PROJECT HAS BEEN SPACE FOR PARKING AND CONSTRUCTION OF 127 ROW HOUSES IS FILED. THIS PROJECT HAS BEEN UNDERTAKEN UNDER THE NAME AND STYLE OF M/S. SUMAN CONSTRUCTIONS. FOR COMMERCIAL AREA TO BE CONSTRUCTED, THE ASSESSEE STARTED NEW CONSTRUCTION UNDER THE NAME AND STYLE OF M/S. SUMAN DEVELOPERS. THE LICENSES FOR THE ESTABLISHMENTS WERE OBTAINED IN 2007 AND ALSO NEW TAN WAS APPLIED FOR BY THE ASSESSEE. THE CLAIM OF THE ASSESSEE UNDER SECTION 80IB(10) OF THE ACT WAS AGAINST 127 ROW HOUSES. IT WAS POINTED OUT BY HIM THAT THE ASSESSING OFFICER HAD DENIED THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT BY TREATING BOTH THE PRO JECTS AS ONE AND THE COMMERCIAL AREA BEING IN EXCESS, NO DEDUCTION WAS ALLOWABLE. FURTHER, REFERENCE WAS MADE TO THE SURVEY ACTION CARRIED OUT BY THE ASSESSING OFFICER WITH SPECIAL REFERENCE TO PARA 4.3 OF THE ASSESSMENT ORDER. THE LEARNED DEPARTMENTAL R EPRESENTATIVE FOR THE REVENUE ALSO STATED THAT THE ASSESSING OFFICER HAD DENIED THE DEDUCTION BECAUSE BOTH THE PROJECTS WERE A SINGLE PROJECT AND THEIR COMMERCIAL AREA EXCEEDED 2000 SQ.FT. AND SECONDLY, THE CANOPY AREA OF SOME OF ROW HOUSES WHEN ADDED TO T HE CO VERED AREA, THEN THE TOTAL AREA WAS MORE ITA NO S. 711 AND 712 /PN/201 2 ITA NOS.1729 AND 1730/PN/2012 SMT.SUMAN JAGANNATH PHARANDE 11 THAN 1500 SQ.FT. , THOUGH THE ASSESSEE CLAIMS THAT THE CANOPY AREA WAS LOWER TO THE FIRST FLOOR COVERED AREA. THE RELIANCE WAS PLACED ON THE RATIO LAID DOWN BY PUNE BENCH OF TRIBUNAL IN KUMAR BUILDERS CONSORTIU M VS. ACIT IN ITA NOS.1164 & 2210/PN/2012 , RELATING TO ASSESSMENT YEARS 2008 - 09 AND 2009 - 10, ORDER DATED 15.04.2013 FOR THE PROPOS ITION THAT THE GARDEN AREA IS TO BE INCLUDED IN THE COVERED AREA TO COMPUTE THE TOTAL AREA OF THE ROW HOUSES. THE LEARNED DEP ARTMENTAL REPRESENTATIVE FOR THE REVENUE WAS OF THE VIEW THAT IF THE ASSESSEE CLAIMED T HAT IT H AS SEPARATE TWO PROJECTS IN 2007, THEN THE ONUS WAS ON THE ASSESSEE TO ESTABLISH SEPARATE PROJECTS. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE ALSO POINTED OUT THAT THE ROW HOUSES EVEN IF WERE COMPLETED BY MARCH, 2008 , WERE SOLD SUBSEQUENTLY. 13. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE IN REPLY, SUBMITTED THAT THE ISSUE IN THE PRESENT APPEAL IS WHETHER THERE WERE TWO PROJECTS OR ONE PROJECT. OUR ATTENTION WAS DRAWN TO THE LAY OUT PLAN PLACED AT PAGE 74 OF THE PAPER BOOK, WHERE THE COMMERCIAL AREA WAS IN RESPECT OF PLOTS 1 TO 4 AND THERE WERE 136 ROW HOUSES. THE LAYOUT PLAN WAS PASSED IN MARCH, 2004 . THE LEARNED AUTHORIZED REPRESEN TATIVE FOR THE ASSESSEE FURTHER POINTED OUT THAT THE PERMISSION FOR CONSTRUCTION OF ROW HOUSES PARTLY I.E. 121 TO 135 WAS GIVEN ON 15.05.2004 , AS PER THE PLANS PLACED AT PAGES 75 AND 76 OF THE PAPER BOOK. ON PAGE 78 OF THE PAPER BOOK, REVISED LAY OUT PLAN FOR 128 ROW HOUSES WAS PASSED ON 28.10.2007 . THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THERE WAS NO COMMERCIAL AREA IN THIS PROJECT. THEN, HE REFERRED TO THE COMPLETION CERTIFICATE OF 129 UNITS PLACED AT PAGES 104 AND 105 O F THE PAPER BOOK AND THE CERTIFICATE OF GRAMPANCHAYAT AT PAGE 107 OF THE PAPER BOOK AND THE LIST OF BUILT UP AREA AT PAGES 107 TO 109 OF THE PAPER BOOK. IN RESPECT OF COMMERCIAL AREA CONSTRUCTED BY THE ASSESSEE, THE LEARNED AUTHORIZED REPRESENTATIVE FOR T HE ASSESSEE POINTED OUT THAT INITIALLY, FOUR PLOTS WERE KEPT ASIDE AS PER THE PLAN AT PAGE 74 OF THE PAPER BOOK AND THEN, TWO PLOTS WERE BIFURCATED AS PER THE PLAN AT PAGE 79 OF THE PAPER BOOK , THEN ON 26.07.2007, SANCTION WAS GIVEN FOR THE COMMERCIAL ITA NO S. 711 AND 712 /PN/201 2 ITA NOS.1729 AND 1730/PN/2012 SMT.SUMAN JAGANNATH PHARANDE 12 PROJ ECT NO.C1 AND ON 24.04.2008, SANCTION WAS GIVEN FOR PROJECT C2 AND THE CONSTRUCTION WAS AFTER COMPLETION OF 129 ROW HOUSES. THE RELEVANT DOCUMENTS HAVE BEEN PLACED AT PAGES 84 TO 89 OF THE PAPER BOOK. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSE E STRESSED THAT THE TERM HOUSING PROJECT IS NOT DEFINED IN THE ACT AND EVEN GROUP OF BUILDINGS IS HOUSING PROJECT. RELIANCE WAS PLACED ON THE RATIO LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN CIT VS. VANDANA PROPERTIES REPORTED IN 353 ITR 36 (BOM) , WH EREIN IT HAS BEEN HELD THAT EVEN ONE BUILDING IS A HOUSING PROJECT. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE CONTENTED THAT 127 ROW HOUSES WERE INDEPENDENT PROJECTS. FURTHER, HE POINTED OUT THAT INTENTION WAS TO DEVELOP SEPARATE PROJECTS EV EN WHERE LAY OUT PLAN WAS SANCTIONED FOR THE WHOLE PLOT. ON THE PLOT NOS.C1 AND C2 COMPRISING OF TWO PLOTS , COMMERCIAL PROJECT WAS DEVELOPED AND NO DEDUCTION UNDER SECTION 80IB(10) OF THE ACT WAS CLAIMED. OUR ATTENTION WAS DRAWN TO THE LIST OF ADVANCES F OR ROW HOUSES PLACED AT PAGES 126 AND 127 OF THE PAPER BOOK AND ALSO AT PAGES 131 AND 132, SEPARATE ADVANCE BEING RECEIVED FOR C1 AND C2. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE RECEIVED FOR C1 AND C2. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE FURTHER DREW OUR ATTENTION TO THE PLAN PLACED AT PAGE 160 AND POINTED OUT THAT THERE WAS ROAD BETWEEN C1 AND C2 ON ONE SIDE AND ROW HOUSES ON THE OTHER SIDE. HE FURTHER POINTED OUT THAT DURING THE COURSE OF SURVEY, THE ASSESSEE HAS SUBMITTED THAT HE WAS UNDERTAKING TWO PROJECTS, WHICH WERE INDEPENDENT OF EACH OTHER. AS PER THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE, 127 ROW HOUSES SATISFIED THE CONDITIONS OF BEING HOUSING PROJECT AND CONSEQUENTLY, ENTITLED TO THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. FURTHER, RELIANCE WAS PLACED ON THE D ECISION OF PUNE BENCH OF TRIBUNAL IN SIDDHIVINAYAK KOHINEER VENTURE VS. ADDL.CIT . (2014) 97 DTR 68 (PUNE) (TRIB) AND IN M/S. ROHAN HOMES VS. ACIT IN ITA NO.423/PN/2011, RELATING TO ASSESSMENT YEAR 2007 - 08 , ORDER DATED 31.01.2013 . THE LEARNED AUTHORIZED RE PRESENTATIVE FOR THE ASSESSEE FURTHER STRESSED THAT COMMENCEMENT WAS IN MAY, 2004, WHICH IN ANY CASE WAS COMPLETED BY 31.03.2008 AND THERE WAS NO DISPUTE IN THIS REGARD. ITA NO S. 711 AND 712 /PN/201 2 ITA NOS.1729 AND 1730/PN/2012 SMT.SUMAN JAGANNATH PHARANDE 13 14. AS FAR AS 26 ROW HOUSES ARE CONCERNED, WHERE THE CANOPY AREA WAS PROVIDED, THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE REFERRED TO THE REMAND REPORT , WHEREIN THE ASSESSING OFFICER HAD CERTIFI ED THAT THE CANOPY AREA WAS NOT USEABLE. IT WAS FURTHER POINTED OUT BY HIM THAT SINCE THE PROJECT HAD STARTED BEFORE 01.04.2005 , THE DEFINITION OF BUILT UP AREA WAS NOT APPLICABLE. RELIANCE IN THIS REGARD WAS PLACED ON THE DECISION OF PUNE BENCH OF TRIBUNAL IN SHRI NARESH T. WADHWANI VS. DCIT & ANR. IN ITA NOS.18, 19 & 20/PN/2013 & ORS. , ORDER DATED 28.10.2014 . IN RESPECT OF RELIANCE PLACED UPON BY THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE ON KUMAR BUILDERS CONSORTIUM VS. ACIT (SUPRA), IT WAS POINTED OUT THAT THE PLINTH AREA OF FLAT INCLUDED THE PROJECTIONS, WHICH WAS IN THE FORM OF GARDEN. 15. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ASSESSEE IS ENGAGED IN THE CONSTRUCTION BUSINESS AND FOR THE YEAR UNDER CONSIDERATION HAD CLAIMED DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IN RESPECT OF ROW HOUSES CONSTRUCTED UNDER THE NAME AND STYLE OF M/S. SU MAN CONSTRUCTIONS. THE CASE OF THE ASSESSEE BEFORE US IS THAT IT DEVELOPED A PLOT FOR WHICH THE LAYOUT PLAN IS PLACED AT PAGE 74 OF THE PAPER BOOK. THE LAYOUT PLAN IS IN RESPECT OF 136 ROW HOUSES AND COMMERCIAL AREA BEING C1 T O C4, LAYOUT PLAN IS DATED 2 4.02.2004 AND PLACED AT PAGE 74 OF THE PAPER BOOK. THE ASSESSEE HAS ALSO ATTACHED THE COPY OF COMMENCEMENT CERTIFICATE AT PAGE 75 OF THE PAPER BOOK WITH ENGLISH TRANSLATION AT PAGE 76 OF THE PAPER BOOK. AS PER THE SAID COMMENCEMENT CERTIFICATE DATED 15.0 5.2004, PERMISSION AS PER APPLICATION DATED 10.05.2004 FOR FLAT NOS.12 1 TO 135 WAS GRANTED AS PER PLAN ATTACHED. FURTHER, THE ASSESSEE FURNISHED REVISED LAYOUT PLAN FOR THE RESIDENTIAL PROJECT UNDER THE NAME AND STYLE OF M/S. SUMAN CONSTRUCTION S , WHICH IS APPROVED ON 08.10.2007 , WHICH IS PLACED AT PAGE 78 OF THE PAPER BOOK AND IS FOR 127 ROW HOUSES , T HE REVISED LAYOUT PLAN SANCTIONED BY THE GRAMPANCHAYAT ON 28.10.2007 . A T PAGE 79 OF THE PAPER BOOK IS ATTACHED THE LAYOUT PLAN OF THE COMMERCIAL AREA C1 AND C2. ORIGINALLY, IN THE INITIAL LAYOUT PLAN DATED 24.02.2004, THERE WERE THREE PORTION S OF COMMERCIAL AREA C1 TO C4. ITA NO S. 711 AND 712 /PN/201 2 ITA NOS.1729 AND 1730/PN/2012 SMT.SUMAN JAGANNATH PHARANDE 14 HOWEVER, AS PER THE REVISED PLAN, THERE WERE ONLY TWO PLOTS C1 AND C2. THE ASSESSEE RECEIVED THE PERMISSION TO CONSTRUCT IN PLOT C1 I.E. GROUND + THREE ON 26.07.2007 AND THE COPY OF SANCTIONED LETTER IS PLACED AT PAGES 84 AND 85 OF THE PAPER BOOK. THEREAFTER, THE ASSESSEE RECEIVED PERMISSION TO CONSTRUCT C2 PORTIONS OF COMMERCIAL AREA I.E. FLATS + COMMERCIAL AREA ON 24.04.2008 . THE COPY O F THE SANCTIONED LETTER IS PLACED AT PAGES 88 AND 89 OF THE PAPER BOOK. ON THE OTHER HAND, THE ASSESSEE RECEIVED THE COMPLETION CERTIFICATE OF 129 UNITS OF ROW HOUSES ON 31.03.2008 . THE COMPLETION CERTIFICATE WITH ITS ENGLISH TRANSACTION IS PLACED AT PAG ES 104 AND 105 OF THE PAPER BOOK. THE CERTIFICATE OF THE G R AMPANCHAYAT, WADI DATED 31.03.2008 THAT THE CONSTRUCTION HAS BEEN COMPLETED BEFORE 31.03.2008 IS PLACED AT PAGE 106 OF THE PAPER BOOK ALONG WITH THE LIST OF UNIT NUMBERS AND THEIR BUILT UP AREA AT PAGES 107 TO 109 OF THE PAPER BOOK. THE PERUSAL OF THE SAID LIST PLACED AT PAGES 107 TO 109 OF THE PAPER BOOK OF ROW HOUSES NUMBERING 127 REFLECT THAT NONE OF THE UNITS ARE HAVING BUILT UP AREA OF MORE THAN 1500 SQ.FT. THE ABOVE SAID DOCUMENTS REFLECT T HAT THE SANCTION FOR C1 AND C2 WAS GRANTED MUCH LATER THAN THE SANCTION GRANTED FOR THE CONSTRUCTION OF C1 AND C2 WAS GRANTED MUCH LATER THAN THE SANCTION GRANTED FOR THE CONSTRUCTION OF ROW HOUSES. FURTHER, REVISED LAYOUT PLAN PLACED AT PAGE 79 REFLECTS THAT THE COMMERCIAL AREA CONSTRUCTED BY THE ASSESSEE UNDER THE NAME AND STYLE OF M/ S. SUMAN DEVELOPERS WAS NOT PART OF THE RESIDENTIAL PROJECT CONSTRUCTED BY THE ASSESSEE UNDER THE NAME OF M/S. SUMAN CONSTRUCTIONS. EVEN THE SANCTION FOR CONSTRUC TING C2 UNIT, COMMERCIAL AREA WAS GRANTED AFTER THE COMPLETION OF 129 ROW HOUSES. THE CIT(A) HAS ELABORATELY CONSIDERED THE FACTUAL ASPECTS OF THE CASE VIDE PARAS 4.1 TO 4.3, WHICH WE HAVE REPRODUCED IN THE PARAS HEREINABOVE. IN LINE WITH THE DOCUMENTS REFERRED TO BY US AND THE FINDINGS OF CIT(A) , WE UPHOLD THE ORDER OF CIT(A) IN HOLDING THAT TH E PROJECT UNDERTAKEN BY THE ASSESSEE WAS NOT ONE INTEGRAL PROJECT BUT COMPRISED OF TWO SEPARATE PROJECTS. THE PROJECT UNDERTAKEN BY THE ASSESSEE AGAINST WHICH, IT HAS CLAIMED DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IS IN RESPECT OF RESIDENTIAL UNITS, WHEREIN NO COMMERCIAL AREA HAS BEEN CONSTRUCTED AND HENCE, WE FIND NO MERIT IN THE ORDER OF ASSESSING OFFICER IN DENYING THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT ITA NO S. 711 AND 712 /PN/201 2 ITA NOS.1729 AND 1730/PN/2012 SMT.SUMAN JAGANNATH PHARANDE 15 TO THE ASSESSEE ON THE PREMISE THAT THE COMMERCIAL AREA CONSTRUCTED BY THE ASSESSEE EXC EEDED 2000 SQ.FT., HENCE IT VIOLATED THE CONDITIONS LAID DOWN IN SECTION 80IB(10) OF THE ACT. THE COMMERCIAL AREA CONSTRUCTED BY THE ASSESSEE WAS MUCH AFTER THE CONSTRUCTION OF ROW HOUSES AND EVEN IN RESPECT OF ONE PROJECT I.E. C2, THE PERMISSION TO CONST RUCT WAS SANCTIONED ON 24.04.2008 I.E. EVEN AFTER THE RESIDENTI AL PROJECT CLAIMED TO HAVE BEEN COMPLETED ON 31.03.2008 , FOR WHICH THE COMPLETION CERTIFICATE WAS ALSO ISSUED BY THE AUTHORITIES. THE PROJECT INITIALLY PLANNED BY THE ASSESSEE WAS REVISED AND THE ASSESSEE CONSTRUCTED THE RESIDENTIAL PROJECT OF 129 ROW HOUSES, WHICH WAS REDUCED FROM ORIGINAL PLAN OF 136 ROW HOUSES AND THERE WAS A CLEAR DEMARCATED ROAD FROM THE MAIN ROAD AND THE PLOTTING OF THE LAYOUT WAS DONE BY THE ASSESSEE IN THIS REGARD. FUR THER, THE ASSESSEE HAD TAKEN SEPARATE PERMISSIONS FROM THE LOCAL AUTHORITY FOR THE SANCTION OF TWO PROJECTS AND EVEN FOR THEIR COMPLETION. FURTHER, THE ASSESSEE HAD MAINTAINED SEPARATE BOOKS OF ACCOUNT UNDER TWO PROPRIETARY CONCERNS, ONE FOR THE CONSTRUCT ION OF ROW HOUSES AND THE SECOND FOR THE CONSTRUCTION OF COMMERCIAL AREA. THE CIT(A) VIDE PARA 4.6.1 HAS ALSO REFERRED TO THE STATEMENT RECORDED OF THE SITE THE CIT(A) VIDE PARA 4.6.1 HAS ALSO REFERRED TO THE STATEMENT RECORDED OF THE SITE ENGINEER DURING THE COURSE OF SURVEY, IN WHICH HE ADMITTED THE EXISTENCE OF TWO SEPARATE PROJECTS. FURTHER, THE ASSESSING OFFICER HAD REJECTED THE CLAIM OF THE ASSESSEE SINCE DURING THE COURSE OF SURVEY, CERTAIN DELIVERY CHALLANS WERE IMPOUNDED WHICH INCLUDED THE BILLS OF TWO CONCERNS. THE SAID ENGINEER DURING THE COURSE OF SURVEY ITSELF, HAD EXPLAIN ED THAT THE SAID CHALLANS PERTAIN TO M/S. SUMAN DEVELOPERS AND HE ALSO STATED THAT THE CORRESPONDING BILLS FOR THE SAME COULD BE SUBMITTED. FURTHER, THE CIT(A) NOTED THAT IN THE REMAND REPORT , THE ASSESSING OFFICER HAD NOT COMMENTED UPON THE SUBMISSIONS O F THE ASSESSEE, BUT HAD ONLY REITERATED THE FINDINGS OF ASSESSING OFFICER IN THE ASSESSMENT ORDER. IN THE ABOVE SAID FACTS AND CIRCUMSTANCES, WE HOLD THAT THE TWO PROJECTS WHICH HAVE BEEN COMMENCED ON DI FFERENT DATES AFTER TAKING SEPARATE APPROVALS CANNOT BE SAID TO BE A SINGLE PROJECT, IN WHICH THE RESIDENTIAL ROW HOUSES ALSO INCLUDED THE COMMERCIAL AREA. WE HOLD THAT THE ASSESSEE IS ENTITLED TO THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IN RESPECT OF ITA NO S. 711 AND 712 /PN/201 2 ITA NOS.1729 AND 1730/PN/2012 SMT.SUMAN JAGANNATH PHARANDE 16 RESIDENTIAL PROJECT . T HE COMMERCIAL PR OJECT WHICH HAS BEEN SANCTIONED, COMMENCED AND COMPLETED ON A LATER DATE AND ON WHICH, NO DEDUCTION UNDER SECTION 80IB(10) OF THE ACT HAS BEEN CLAIMED BY THE ASSESSEE, IS A SEPARATE PROJECT FROM THE RESIDENTIAL PROJECT OF ROW HOUSES COMPLETED BY THE ASSESS EE. ACCORDINGLY, WE FIND NO MERIT IN THE ORDER OF ASSESSING OFFICER IN THIS REGARD AND UPHOLDING THE ORDER OF CIT(A), WE HOLD THAT THE ASSESSEE IS ENTITLED TO THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. IN VIEW THEREOF, THERE IS NO MERIT IN THE OBSERVATIONS OF ASSESSING OFFICER THAT THE ASSESSEE IS NOT ENTITLED TO THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT SINCE THE COMMERCIAL AREA EXCEEDED 2000 SQ.FT. 16. THE NEXT OBJECTION OF THE ASSESSING OFFICER DENYING THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT TO THE ASSESSEE WAS SINCE THE TOTAL BUILT UP AREA OF SOME UNITS EXCEEDED 1500 SQ.FT., BY INCLUDING THE AREA OF CANOPY / PORCH IN THE BUILT UP AREA. ADMITTEDLY, AS POINTED OUT BY US FROM THE CERTIFICATE OF GRAMPANCHAYAT, THE BU ILT UP AREA OF EACH UNIT OF ROW HOUSES WAS BELOW 1500 SQ.FT. HOWEVER, IN RESPECT OF THE FIRST FLOOR, THERE WAS AN AREA OF CANOPY WHICH WAS LOWER THAN THE FIRST FLOOR UNIT. THE CASE OF THE ASSESSEE WAS THAT THE AREA OF CANOPY COULD NOT BE INCLUDED IN THE BUILT UP AREA SINCE IT WAS NOT A PROJECTION ON FLOOR LEVEL OR GROUND FLOOR, IT WAS PROJECTION ON THE FIRST FLOOR. THE SAID CANOPY / PORCH WAS ONLY A SHELTER TO BE PROVIDED TO THE PERSON FROM SUN AND RAIN WHILE GETTING DOWN FROM THE VEHICLE AND ENTERING TH E PREMISES . THE CIT(A) DURING THE COURSE OF APPELLATE PROCEEDINGS HAD SOUGHT REMAND REPORT IN THIS REGARD FROM THE ASSESSING OFFICER AND UNDER PARA 6.2, THE FINDING OF THE ASSESSING OFFICER IS THAT THE CANOPY WAS NOT A HABITABLE AREA. IN VIEW THEREOF, TH E CIT(A) ALLOWED THE CLAIM OF THE ASSESSEE AND THE REVENUE VIDE GROUND OF APPEAL NO.6 HAS AGITATED THE ISSUE. THE CASE OF THE REVENUE BEFORE US IS THAT THE SAID CANOP Y COULD BE ACCESSED FROM THE FIRST FLOOR AND USED AS PORTION. WE FIND NO MERIT IN THE PL EA OF THE REVENUE AND THE GROUND OF APPEAL RAISED IN THIS REGARD IS DISMISSED. ITA NO S. 711 AND 712 /PN/201 2 ITA NOS.1729 AND 1730/PN/2012 SMT.SUMAN JAGANNATH PHARANDE 17 17. ANOTHER OBJECTION OF THE ASSESSING OFFICER IN DENYING THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IS THAT WHERE THE PLANS WERE SANCTIONED ON 21.03.2004 BY THE LOCAL AUT HORITY, THE PROJECT HAD TO BE COMPLETED BY 31.03.2008 AND THE SAID ROW HOUSES WERE NOT COMPLETED AS ON 09.12.2008 I.E. THE DATE OF SURVEY. WE HAVE ALREADY NOTED THAT THE LAYOUT PLAN IS DATED 24.02.2004, WHICH IS PLACED AT PAGE 74 OF THE PAPER BOOK. THERE A FTER, THE GRAMPANCHAYAT OFFICE, WADI HAS ISSUED COMMENCEMENT CERTIFICATE WHICH IS FOR CONSTRUCTION OF FLAT NOS.120 TO 135 , WHICH IS DATED 15.05.2004, COPY OF WHICH IS PLACED AT PAGES 75 AND 76 OF THE PAPER BOOK. LATER, A REVISED LAYOUT PLAN WAS SUBMITTED FOR CONSTRUCTION OF 129 ROW HOUSES IN ALL AS AGAINST THE ORIGINAL PLAN FOR 136 ROW HOUSES. IN VIEW THEREOF, WHERE THE FIRST SANCTION OF THE PLAN I.E. COMMENCEMENT CERTIFICATE HAS BEEN ISSUE D ON 15.05.2004 , THE OBLIGATION ON THE ASSESSEE TO COMPLETE THE PR OJECT WAS BEFORE 31.03.2009 AS PER THE CONDITIONS STIPULATED UNDER SECTION 80IB(10) OF THE ACT. HOWEVER, THE ASSESSEE CLAIMS TO HAVE COMPLETED BEFORE 31.03.2008 . THE ASSESSING OFFICER HAD COME TO A CONCLUSION THAT THE PROJECT WAS NOT COMPLETED B ASED ON D ATE OF COMMENCEMENT MENTIONED IN THE AUDIT THE PROJECT WAS NOT COMPLETED B ASED ON D ATE OF COMMENCEMENT MENTIONED IN THE AUDIT REPORT AND THE DOCUMENTS FOUND DURING THE COURSE OF SEARCH FROM THE PREMISES OF THE ASSESSEE. IN RESPECT OF FIRST OBJECTION OF THE ASSESSING OFFICER, IT WAS CLARIFIED BY THE ASSESSEE THAT IN THE AUDIT REPORT, THE REFERENCE WAS TO THE EXPENSES INCURRED AND NOT THE STIPULATED DATE OF COMMENCEMENT OF PROJECT AS PRESCRIBED UNDER SECTION 80IB(10) OF THE ACT. FURTHER, IN RESPECT OF THE BILLS FOUND DURING THE COURSE OF SURVEY, THE SAME RELATED TO RENEWAL AND REPLACEMENT WORK TO BE CARRIED OUT IN BUNGALOW NOS.12, 13 AND 15. THE MAJOR CONSTRUCTION WORK WAS COMPLETED BY 31.03.2008 . THE COMPLETION CERTIFICATE IN THIS REGARD WAS ISSUED BY THE GRAMPANCHAYAT, WADI , AGAINST CONSTRUCTION OF 129 UNITS FOR COMPLETION BEFORE 31.03 .2008. IN VIEW OF THE ABOVE SAID FACTS AND CIRCUMSTANCES, WE FIND NO MERIT IN THE ORDER OF ASSESSING OFFICER IN THIS REGARD AND UPHOLDING THE ORDER OF CIT(A) VIDE PARA 7.1, WE HOLD THAT THE ASSESSEE IS ENTITLED TO THE CLAIM OF DEDUCTION UNDER SECTION 80IB (10) OF THE ACT IN THE CAPTIONED ASSESSMENT YEAR. THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE THUS, DISMISSED. ITA NO S. 711 AND 712 /PN/201 2 ITA NOS.1729 AND 1730/PN/2012 SMT.SUMAN JAGANNATH PHARANDE 18 18. THE FACTS AND ISSUES IN ITA NO S . 71 2 /PN/201 2 , 1729/PN/2012 AND 1730/PN/2012 ARE IDENTICAL TO THE FACTS AND ISSUES IN ITA NO. 711 /PN/201 2 AND OUR DECISION IN ITA NO. 711 /PN/201 2 SHALL APPLY MUTATIS MUTANDIS TO ITA NO S . 712 /PN/201 2, 1729/PN/2012 AND 1730/PN/2012 . 19. IN THE RESULT, ALL THE APPEAL S OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED ON THIS 30 TH DAY OCTOBER , 201 5 . SD/ - SD/ - (PRADIP KUMAR KEDIA ) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; D ATED : 30 TH OCTOBER , 2015. GCVSR / COPY OF THE ORDER IS FORWARDED TO : / COPY OF THE ORDER IS FORWARDED TO : 1. / TH E APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A) - I I , PUNE ; 4. / THE CIT - I I , PUNE ; 5. , , / DR A , ITAT, PUNE; 6. / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE