Balkrishnan Shanmugham Chettiar, alias S. Balan, Pune V. Deputy Commissioner of Income-tax,

ITA 715/PUN/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7116 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 6 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-12-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 28-11-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 18-05-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Loose papers; Revised return

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE . , , BEFORE SHRI D.KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NOS.715 AND 1294/PUN/2015 / ASSESSMENT YEARS : 2011-12 & 2012-13 BALKRISHNAN SHANMUGHAM CHETTIAR, ALIAS S. BALAN NIRANKAR, 1133/5, SHIVAJINAGAR, FERGUSSION COLLEGE ROAD, PUNE 411 016 PAN AALPC5158J . /APPELLANT VS. DCIT, CENTRAL CIRCLE-1(1), PUNE . / RESPONDENT ASSESSEE BY : SHRI M.R. BHAGWAT & SHRI PRAYAG JHA REVENUE BY : SHRI AJAY MODI, JCIT / DATE OF HEARING : 28.11.2017 / DATE OF PRONOUNCEMENT: 08 .12.2017 / ORDER PER D. KARUNAKARA RAO, AM : THERE ARE 2 APPEALS FILED BY THE ASSESSEE UNDER CONSIDERATION AGAINST THE SEPARATE ORDERS OF CIT(A) -11, PUNE DATED 31-12-2014 AND 27-07-2015 RESPECTIVELY FOR THE ASSE SSMENT YEARS 2011-12 AND 2012-13. 2. SINCE THE ISSUES RAISED BY THE ASSESSEE IN BOTH THE APPEALS ARE IDENTICAL, THEREFORE, BOTH THE APPEALS WERE CLU BBED AND ADJUDICATED IN THIS COMPOSITE ORDER. 3. FOR THE SAKE OF REFERENCE, WE PROCEED TO EXTRACT THE GROUNDS RAISED BY THE ASSESSEE FOR THE A.Y. 2011-12 : ITA NOS.715 & 1294/PUN/2015 BALKRISHNAN S. CHETTIAR 2 1. THE LD.CIT(A) ERRED IN SUSTAINING THE ADDITION OF RS.4,24,27,370/- ON ACCOUNT OF REJECTION OF CLAIM F OR DEDUCTION OF PROFITS AND GAINS ARISING FROM INDUSTRIAL PARK U/S. 80IA(4)(III). 2. THE DEDUCTION U/S.80IA(4)(III) MAY BE GRANTED TO THE ASSESSEE AND HIS TOTAL INCOME BE REDUCED TO THAT EXTENT. 4. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE MENT IONED THAT THE ONLY ISSUE WHICH REQUIRES ADJUDICATION BY THE T RIBUNAL RELATES TO THE ALLOWABILITY OF CLAIM OF DEDUCTION U/S.80IA( 4)(III) OF THE ACT. THE CLAIM OF OTHER ISSUES RELATING TO DISALLOWANCE U/S.14A FOR A.Y. 2012-13 AND OTHERS ARE REQUIRED TO BE DISMISSED EIT HER AS NOT PRESSED OR GENERAL IN NATURE. WE ORDER ACCORDIN GLY. 5. BRIEFLY STATED RELEVANT FACTS ARE THAT ASSESSEE IS AN INDIVIDUAL AND ENGAGED IN CONSTRUCTION BUSINESS AS A DEVELOPER , PROMOTER AND BUILDER. ASSESSEE FILED THE RETURN OF INCOME O N 28-09-2011 DECLARING TOTAL INCOME OF RS.2,28,11,168/-. SUBSEQ UENTLY, ASSESSEE FILED THE REVISED RETURN ON 27-03-2013 DEC LARING TOTAL INCOME OF RS.2,87,15,830/-. ASSESSEE MOVED AN APPL ICATION FOR DEVELOPMENT OF SOME OF ITS UNITS UNDER INDUSTRIAL P ARK SCHEME KNOWN AS SAI TRINITY TO THE MINISTRY OF COMMERCE & INDUSTRY AND RECEIVED APPROVAL FOR THE SAME ON 09-12-2005. I N THE MEANTIME, SURVEY ACTION U/S.133A WAS CONDUCTED AT T HE OFFICE PREMISES OF M/S. SAI CONSTRUCTIONS PVT. LTD., ASSES SEES SISTER COMPANY AT 604 & 605, SAI CHAMBERS, WAKDEWADI, PUNE ON 20- 01-2010 AND CERTAIN LOOSE PAPERS WERE IMPOUNDED. P AGE NO.102 OF BUNDLE NO.8 IMPOUNDED IS A COPY OF LETTER DATED 04-03-2009 FROM THE UNDER SECRETARY, MINISTRY OF COMMERCE AND INDUSTRY ADDRESSED TO M/S. BALAN, PUNE. AS PER THE SAID LET TER THE BUILDING IN WHICH INDUSTRIAL PARK IS BEING DEVELOPED BY THE ASSESSEES PROPRIETARY CONCERN WHICH BELONGS TO PARTNERSHIP FI RM M/S. S. BALAN AND COMPANY AND NOT TO ANY INDIVIDUAL. IN THE SAID LETTER, IT ITA NOS.715 & 1294/PUN/2015 BALKRISHNAN S. CHETTIAR 3 WAS MENTIONED THAT A PART OF THE BUILDING IS BEING DEVELOPED AS INDUSTRIAL PARK AND THEREFORE AO HELD THAT THE ASSE SSEE IS NOT ELIGIBLE UNDER INDUSTRIAL PARK SCHEME, 2002. AO FU RTHER HELD THAT THE ASSESSEE HAD NOT TAKEN FRESH APPROVAL AS REQUIR ED UNDER THE INDUSTRIAL PARK SCHEME 2002. ASSESSEE MOVED ANOTHE R APPLICATION BEFORE THE EMPOWERED COMMITTEE SEEKING CHANGE IN NUMBER OF UNITS IN THE INDUSTRIAL PARK FROM 6 TO 3 UNITS AND GOT APPROVAL ON 11-06-2012. SINCE THE CLAIM OF THE ASS ESSEE WAS ACCEPTED BY THE LD.CIT(A)-II, PUNE FOR THE A.YRS. 2 009-10 AND 2010-11, THE ASSESSEE SUBMITTED BEFORE THE AO TO CO NSIDER THE SAME FOR THE A.YRS. 2011-12 AND 2012-13. HOWEVER, THE AO DISTINGUISHED THE DECISIONS OF THE LD.CIT(A)-II, PU NE AND WAS OF THE VIEW THAT PARA 8 OF THE NOTIFICATION TALKS ABOU T THE COMMENCEMENT OF INDUSTRIAL PARK AND NOT COMMENCE MENT OF INDUSTRIAL UNITS AND THE PERIOD OF INDUSTRIAL PARK SCHEME AS NOTIFIED BY THE CENTRAL GOVT. WAS FROM 01-04-1997 T O 31-03-2006. EVENTUALLY, THE AO HELD THAT THE ASSESSEE IS NOT EN TITLED TO DEDUCTION U/S.80IA(4)(III) OF THE ACT AND MADE ADDI TION OF RS.4,24,27,370/- TO THE TOTAL INCOME OF THE ASSESSE E. CIT(A) AFTER ELABORATELY DISCUSSING THE PROVISIONS OF SECTION 80 IA(4)(III), APPLICABILITY OF INDUSTRIAL PARK SCHEMES 2002 AND 2 008, ABSENCE OF COMPLETION/OCCUPANCY CERTIFICATES ETC. UPHELD TH E ADDITION MADE BY THE AO. 6. AGGRIEVED WITH THE SAID ORDER OF THE CIT(A) THE ASSESSEE IS IN APPEAL BEFORE US FOR THE A.YRS. 2011-12 AND 2012-13 . 7. ON HEARING BOTH THE PARTIES, WE FIND THE ISSUE N OW STANDS COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF T HE TRIBUNAL IN THE ASSESSEES OWN CASE FOR THE A.YRS. 2009-10 AND 2010-11 IN ITA ITA NOS.715 & 1294/PUN/2015 BALKRISHNAN S. CHETTIAR 4 NOS. 1306 & 1307/PN/2013 AND CONNECTED APPEALS ORDE R DATED 25-11-2016. FOR THE SAKE OF COMPLETENESS, WE PROCE ED TO EXTRACT THE OPERATIONAL PARAGRAPHS OF THE TRIBUNAL ORDER AN D THE SAME READ AS UNDER : 66. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE AO AND CIT(A) AND THE PAP ER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED TH E VARIOUS DECISIONS CITED BEFORE US. WE FIND NO INFIRMITY IN THE ORDER OF THE CIT(A). WE FIND THE ASSESSING OFFICER DISALLOWED THE CLAIM OF DEDUC TION U/S.80IA(4)(III) ON THE BASIS OF THE LETTER DATED 04-03-2009 FROM T HE UNDER SECRETARY IN THE MINISTRY OF COMMERCE AND INDUSTRY THAT THE ASSES SEE WAS NOT ELIGIBLE FOR DEDUCTION U/S.80IA(4). FURTHER IN THE STATEMENT RECORDED DURING THE COURSE OF SURVEY ACTION U/S.133A THE ASS ESSEE HAD WITHDRAWN SUCH CLAIM MADE U/S.80IA(4). ACCORDING TO THE ASSESSING OFFICER PENDENCY OF THE REVIEW PETITION BEFORE THE CONCERNED AUTHORITY DID NOT MAKE THE ASSESSEE ELIGIBLE FOR THE SAID DED UCTION. WE FIND IN APPEAL THE LD.CIT(A) AFTER OBTAINING A REMAND REPOR T FROM THE ASSESSING OFFICER AND CONSIDERING THE COMMENTS OF T HE ASSESSEE TO SUCH REMAND REPORT ALLOWED THE CLAIM OF DEDUCTION U /S.80IA(4), THE REASONS OF WHICH ARE ALREADY REPRODUCED IN THE PREC EDING PARAGRAPHS. 67. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF T HE CIT(A) ON THIS ISSUE. WE FIND IDENTICAL ISSUE HAD COME UP BEFORE THE TRIB UNAL IN THE CASE OF M/S. KOLTE PATIL DEVELOPERS LTD. VS. DCIT AND VICE VERSA VIDE ITA NOS. 1411 TO 1415/PN/2013 AND ITA NOS. 1478 TO 1483/PN/2 013 FOR A.YRS. 2004-05 TO 2009-10. THE TRIBUNAL AFTER ELABORATELY CONSIDERING IDENTICAL ISSUE HAD DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY OBSERVING AS UNDER : . . . . . . . . . . . . . . . . 68. SINCE THE ORDER OF THE CIT(A) ON THIS ISSUE IS IN CONSONANCE WITH THE ISSUE DECIDED BY THE TRIBUNAL UNDER IDENTI CAL CIRCUMSTANCES, THEREFORE, IN ABSENCE OF ANY CONTRAR Y MATERIAL BROUGHT TO OUR NOTICE, WE DO NOT FIND ANY INFIRMITY IN HIS DETAILED ORDER ON THIS ISSUE. ACCORDINGLY, THE SAME IS UPHE LD AND THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 8. FROM THE ABOVE, IT IS EVIDENT THAT THE TRIBUNAL WHILE DECIDING THE ISSUE IN FAVOUR OF THE ASSESSEE HAS RELIED ON T HE DECISION OF THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF M/S. KOLTE PATIL DEVELOPERS LTD. VS. DCIT AND VICE VERSA VIDE ITA NOS. 1 411 TO 1415/PN/2013 AND ITA NOS. 1478 TO 1483/PN/2013 FOR A.Y RS. 2004- 05 TO 2009-10 AND DISMISSED THE GROUNDS RAISED BY THE REVENUE. ITAT CONSIDERED THE SUBSEQUENT APPROVAL OF THE SCHEME DATED ITA NOS.715 & 1294/PUN/2015 BALKRISHNAN S. CHETTIAR 5 11-06-2012, WHILE GRANTING THE DEDUCTION. IN EFFECT, THE R EQUIREMENT OF GRANTING DEDUCTION U/S.80IA(4)(III) OF THE ACT IS APPROVED IN THE ASSESSEES OWN CASE. THEREFORE, FOLLOWING THE RULE OF CONS ISTENCY, WE ALLOW THE GROUNDS RAISED BY THE ASSESSEE ON THIS ISSUE IN BOTH THE A.YRS. 2011-12 AND 2012-13. ACCORDINGLY, GROUNDS RAISED BY THE ASSESSEE IN BOTH THE ASSESSMENTS ARE PARTLY ALLOWED. 9. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASSESSEE ARE PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 08 TH DAY OF DECEMBER, 2017. SD/- SD/- (VIKAS AWASTHY) (D. KARUNAKARA RAO) /JUDICIAL MEMBER / ACCOUNTANT MEMBER PUNE; DATED : 08 TH DECEMBER, 2017. COPY OF THE ORDER FORWARDED TO : BY ORDER // TRUE COPY // //TRUE COPY// SENIOR PRIVATE SECRETARY , / ITAT, PUNE THE APPELLANT THE RESPONDENT THE CIT(A) - 1 1, PUNE CIT - 11, PUNE % , , A BENCH PUNE; GUARD FILE.