Income-tax Officer, Ward - 12(1), Pune V. M/s. Shambhu Properties, Pune

ITA 717/PUN/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1905 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 18-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VISHWAS MUNDHE
• Assessee Lawyers: MAHESH PANSE
• Keywords: Tax effect
• Section: 143(3)

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI PARTHA SARATHI CHAUDHURY, JM . / ITA NOS.1261/PUN/2017 & 717/PUN/2018 / ASSESSMENT YEARS : 2013-14 & 2014-15 THE INCOME TAX OFFICER, WARD 12(1), PUNE. . / APPELLANT V/S M/S. SHAMBHU PROPERTIES, 218, SHANIWAR PETH, PUNE 411 030. PAN : ABBFS8039F. . / RESPONDENT ASSESSEE BY : SHRI MAHESH PANSE. REVENUE BY : SHRI VISHWAS MUNDHE. / ORDER PER ANIL CHATURVEDI, AM : 1. THESE TWO APPEALS FILED BY THE REVENUE ARE EMANATING O UT OF THE ORDERS OF COMMISSIONER OF INCOME TAX (A) 5 AND 13, PUN E DATED 09.12.2016 AND 20.01.2017 FOR THE ASSESSMENT YEARS 2013 -14 AND 2014-15, RESPECTIVELY. 2. BEFORE US, AT THE OUTSET, BOTH THE PARTIES SUBMITTED THAT THOUGH THE APPEALS FILED BY THE REVENUE ARE FOR TWO DIFFERENT ASSE SSMENT YEARS BUT THE FACTS AND ISSUES INVOLVED IN BOTH THE APPEALS ARE IDENTICAL EXCEPT FOR THE ASSESSMENT YEAR AND THE AMOUNTS INVOLVED AND THEREFORE THE SUBMISSIONS MADE BY THEM WHILE ARGUING ONE APPEAL WOULD BE EQUALLY APPLICABLE TO THE OTHER APPEAL ALSO AND THUS BOTH THE A PPEALS CAN BE / DATE OF HEARING : 27.06.2019 / DATE OF PRONOUNCEMENT: 27.06.2019 2 HEARD TOGETHER. IN VIEW OF THE AFORESAID SUBMISSIONS OF BO TH THE PARTIES, WE, FOR THE SAKE OF CONVENIENCE, PROCEED TO DISPOSE OF BOT H THE APPEALS BY A CONSOLIDATED ORDER BUT HOWEVER, PROCEED WITH NARRA TING THE FACTS IN ITA NO.1261/PUN/2017 FOR A.Y. 2013-14. 3. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RE CORD ARE AS UNDER :- ASSESSEE IS A FIRM ENGAGED IN THE BUSINESS OF PROMOTERS, B UILDERS AND CONTRACTORS. ASSESSEE FILED ITS RETURN OF INCOME FOR A.Y. 2013-14 ON 20.09.2013 DECLARING TOTAL INCOME OF RS.NIL. THE CASE WA S SELECTED FOR SCRUTINY AND THEREAFTER ASSESSMENT WAS FRAMED U/S 143(3) OF TH E ACT VIDE ORDER DATED 21.03.2016 AND THE TOTAL INCOME WAS DET ERMINED AT RS.88,47,990/-. AGGRIEVED BY THE ORDER OF AO, ASSESSEE C ARRIED THE MATTER BEFORE LD.CIT(A) WHO VIDE ORDER DT.09.12.2016 (IN APP EAL NO.PN/CIT(A)5/ITO, WARD-12(1), PUNE/132/2016-17) GRANTED PARTIAL RELIEF TO THE ASSESSEE. AGGRIEVED BY THE ORDER OF LD.CIT(A ), REVENUE IS NOW IN APPEAL BEFORE US AND HAS R AISED THE FOLLOWING GROUNDS : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN ALLOWING THE DEDUCTION U/S.80IB (10) OF THE ACT, 1961 ON PRO RATA BASIS IN RESPECT OF PROJECT TWIN NEST. 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A), WAS JUSTIFIED IN ALLOWING THE DEDUCTION U/S 80IB(10) OF THE ACT TO A HOUSING PROJECT APPROVED ON 27.03.2006 WHICH WAS ST ILL INCOMPLETE BY 31.03.2011 IN VIOLATION OF SECTION 80IB(10)(A) EXPL ANATION (II) OF THE ACT WHICH REQUIRES THE COMPLETION CERTIFICATE TO BE ISS UE BY THE LOCAL AUTHORITY FOR THE EARLIER APPROVED HOUSING PROJECT. 4. SIMILAR GROUNDS HAVE BEEN RAISED BY THE REVENUE IN I TA NO.717/PUN/2018 FOR A.Y. 2014-15. 3 5. BEFORE US, AT THE OUTSET, LD.A.R. SUBMITTED THAT THE APP EAL OF THE REVENUE IS NOT MAINTAINABLE ON ACCOUNT OF LOW TAX EFFECT A ND THEREFORE, THE APPEAL OF THE REVENUE BE DISMISSED. LD.D.R. DID NOT OBJECT TO THE AFORESAID CONTENTION MADE BY THE LD.A.R. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. ON PERUSING THE GROUNDS OF APPEAL RA ISED BY THE REVENUE, WE FIND THAT REVENUE IS AGGRIEVED BY THE ORDER OF LD. CIT(A) IN RESPECT OF THE RELIEF GIVEN BY HIM. AS PER THE RECENT AN NOUNCEMENT OF CENTRAL BOARD OF DIRECT TAXES (CBDT) DATED 11.07.2018 (CIRC ULAR NO. 3 OF 2018), NO DEPARTMENT APPEALS ARE TO BE FILED AGAINST RELIE F GIVEN BY LD. CIT(A) BEFORE THE INCOME TAX APPELLATE TRIBUNAL UNLESS THE TAX EFFECT, EXCLUDING INTEREST, EXCEEDS RS.20 LAKHS. THE CIRCULAR FURTHER ST ATES THAT THE INSTRUCTIONS WILL APPLY RETROSPECTIVELY TO THE PENDIN G APPEALS ALSO. IN THE PRESENT CASE, IT IS AN UNDISPUTED FACT THAT ON T HE ADDITION WHICH IS IN DISPUTE, THE TAX EFFECT IS LESS THAN RS.20 LAKHS. IN TH E ABSENCE OF ANY MATERIAL PLACED ON RECORD BY THE REVENUE TO DEMONS TRATE THAT THE ISSUE IN THE PRESENT APPEAL IS COVERED BY EXCEPTIONS PRO VIDED IN PARA 10 OF THE AFORESAID CBDT CIRCULAR, WE ARE OF THE VIEW THAT THE MONETARY LIMIT PRESCRIBED BY THE INSTRUCTIONS OF THE AFORESAID CBDT C IRCULAR WOULD BE APPLICABLE TO THE PRESENT APPEAL OF THE DEPARTM ENT. WE THEREFORE HOLD THE PRESENT APPEAL OF REVENUE TO BE NOT MAINTAINABLE ON ACCOUNT OF LOW TAX EFFECT AND ACCORDINGLY DISMISS THE APPE AL OF REVENUE WITHOUT EXPRESSING ANY OPINION ON MERITS OF THE CASE. HOW EVER, IN CASE THERE IS ANY ERROR IN THE COMPUTATION OF THE TAX EFFECT IN VOLVED OR IF FOR ANY REASON, THE AFORESAID CBDT CIRCULAR IS NOT APPLICABLE, IT WOULD BE OPEN TO THE REVENUE TO SEEK REVIVAL OF THE APPEAL. THUS, THE GROUNDS OF THE REVENUE ARE DISMISSED. 4 7. IN THE RESULT, THE APPEAL OF REVENUE IN ITA NO.1261/PUN/2017 FOR A.Y. 2013-14 IS DISMISSED. 8. NOW WE TAKE UP REVENUES IN ITA NO.717/PUN/2018 FOR A.Y 2014- 15. 8.1. AS FAR AS THE GROUNDS RAISED IN APPEAL IN ITA NO.717 /PUN/2018 FOR A.Y. 2014-15 IS CONCERNED, IN VIEW OF THE SUBMISSION OF B OTH THE PARTIES THAT THE FACTS OF THE CASE IN THE YEAR BEING IDEN TICAL TO THE FACTS AND ISSUE OF THE CASE IN ITA NO.1261/PUN/2017 FOR A.Y. 20 13-14, WE THEREFORE FOR THE REASONS STATED HEREIN WHILE DISPOSING OF THE APPEAL IN ITA NO.1261/PUN/2017 FOR A.Y. 2013-14 AND FOR SIMILAR REAS ONS HOLD THAT THE APPEAL OF REVENUE TO BE NOT MAINTAINABLE ON AC COUNT OF LOW TAX EFFECT AND ACCORDINGLY DISMISS THE APPEAL OF REVENUE. THUS, THE GROUNDS OF REVENUE ARE DISMISSED. 9. IN THE RESULT, THE APPEAL OF REVENUE IN ITA NO.717/ PUN/ 2018 FOR A.Y. 2014-15 IS DISMISSED. 10. TO SUM UP, BOTH THE APPEALS OF REVENUE ARE DISMISSE D. ORDER PRONOUNCED ON THE 27 TH DAY OF JUNE, 2019. SD/- SD/ - ( PARTHA SARATHI CHAUDHURY ) ( ANIL CHATURVEDI ) ! / JUDICIAL MEMBER '! / ACCOUNTANT MEMBER PUNE; DATED : 27 TH JUNE, 2019. YAMINI 5 #$%&'('% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5 6. CIT(A)-5, PUNE & CIT(A)-13, PUNE. PR. CIT-4, PUNE & PR.CCIT-PUNE. '#$ %%&',) &', / DR, ITAT, A PUNE; $,-./ GUARD FILE. / BY ORDER // TRUE COPY // /01%2&3 / SR. PRIVATE SECRETARY ) &' , / ITAT, PUNE.