M/s Pramod and Others, Bangalore V. CIT, Bangalore

ITA 800/BANG/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 8584 (ITAT-BANGALORE)
• Duration Of Justice: 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 11-01-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 07-08-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JASON P BOAZ ITA TO TO
• Assessee Lawyers: K R PRADEEP
• Keywords: Search and seizure; Difference of opinion; Bonafide mistake; Change of opinion
• Section: 80IB; 263

Judgement Text

ITA.800 TO 802,962,977 TO 979, 1023 & 1024/B/09 PAGE - 1 IN THE INCOME-TAX APPELLATE TRIBUNAL BANGALORE BENCH 'A' BEFORE SHRI. K. P. T. THANGAL, VICE PRESIDENT AND SHRI. A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER 1. I.T.A.NO.800/BANG/2009 (ASSESSMENT YEAR : 20 04-05) 2. I.T.A.NO.801/BANG/2009 (ASSESSMENT YEAR : 20 04-05) 3. I.T.A.NO.802/BANG/2009 (ASSESSMENT YEAR : 20 04-05) 4. I.T.A.NO.1023/BANG/2009 (ASSESSMENT YEAR : 20 04-05) 5. I.T.A.NO.1024/BANG/2009 (ASSESSMENT YEAR : 20 05-06) 6. I.T.A.NO.962/BANG/2009 (ASSESSMENT YEAR : 20 05-06) 7. I.T.A.NO.977/BANG/2009 (ASSESSMENT YEAR : 20 05-06) 8. I.T.A.NO.978/BANG/2009 (ASSESSMENT YEAR : 20 05-06) 9. I.T.A.NO.979/BANG/2009 (ASSESSMENT YEAR : 20 05-06) 1. M/S. PRAMOD & OTHERS, 2. MRS. VASANTHA KUMARI, 3. MR. C. GOPALAN, 4-5. M/S. GOPALAN ENTERPRISES, 6. MR. C. GOPALAN, 7. M/S. GOPALAN ENTERPRISES, 8. M/S. PRAMOD & OTHERS, 9. MRS. VASANTHA KUMARI, NO.5, RICHMOND ROAD, BANGALORE .. APPELLANT V. 1-5. COMMISSIONER OF INCOME TAX, BANGALORE-1, BANGALORE 6-7. INCOME-TAX OFFICER, WARD-1(4), BANGALORE .. RESPONDENT APPELLANT BY : SHRI. K. R. PRADEEP RESPONDENT BY : SHRI. JASON P. BOAZ ITA.800 TO 802,962,977 TO 979, 1023 & 1024/B/09 PAGE - 2 O R D E R PER K. P. T. THANGAL, VICE PRESIDENT : ALL THESE APPEALS ARE BY THE ASSESSEES BELONGING T O THE SAME GROUP. ITA NOS.800 TO 802 AND 1023, 1024/BANG/2009 ARE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX PASSED U/S.263, WHILE ITA NOS.962, 977 TO 979/BANG/2009 ARE AGAINST THE O RDER OF THE COMMISSIONER OF INCOME-TAX(A), ARISING OUT OF THE A SSESSMENT ORDER OF THE ASSESSING OFFICER PASSED U/S.143(3). 2. AS PER THE RECORDS, THERE IS A DELAY IN FILING A PPEAL NOS.800 TO 802 OF ABOUT 86 DAYS. THE ASSESSEE FILED AN AFFIDA VIT AND SUBMITTED THE DELAY OCCURRED UNDER THE FOLLOWING CIRCUMSTANCE S. THE REGULAR ACCOUNTANT WORKING FOR M/S. GOPALAN ENTERPRISES GRO UP RECEIVED THE ORDER OF THE COMMISSIONER OF INCOME-TAX U/S.263 IN THE CASE OF C. GOPALAN, VASANTHA KUMARI, PRAMAD AND OTHERS ON 14.3 .2009. SOMEHOW THE ORDERS WERE MISPLACED ALONGWITH OTHER F ILES AND THE ACCOUNTANT LOST SIGHT OF THEM. SUBSEQUENTLY, ON 31 .7.2009 WHEN THE ACCOUNTANT WAS LOOKING FOR SOME PAPERS IN THE FILES REALIZED THE MISTAKE COMMITTED AND NOTED THE ORDERS WERE WRONGLY PLACED IN THE FILE INSTEAD OF SENDING THEM TO THE ASSESSEE'S REPR ESENTATIVE'S OFFICE FOR FILING THE APPEALS. HENCE THERE IS A DELAY OF ABOUT 2 MONTHS AND 24 DAYS IN FILING THE APPEAL WHICH OCCURRED DUE TO INADVERTENCE AND IT ITA.800 TO 802,962,977 TO 979, 1023 & 1024/B/09 PAGE - 3 WAS AN UNINTENTIONAL MISTAKE WHICH THE ASSESSEE'S R EPRESENTATIVE SUBMITTED TO BE CONDONED AND EXCUSED. HE FURTHER S UBMITTED ASSESSEE WILL SUFFER IRREPARABLE DAMAGE AND INJURY IF THE IS SUE IS NOT DECIDED ON MERIT ON THE OTHER HAND, HE SUBMITTED, THE OTHER PA RTY WILL NOT SUFFER. 3. THE LEARNED DR ON THE OTHER HAND SUBMITTED, ON R EADING OF THE ABOVE EXPLANATION WOULD MAKE IT CLEAR THAT THE DELA Y WAS NOT BECAUSE OF ANY REAL AND GENUINE DEFECTS AND LAXITY, WHICH H E SUBMITTED MAY NOT BE CONDONED. 4. HEARING THE RIVAL SUBMISSIONS, WE ARE OF THE VIE W THAT THE DELAY IS TO BE CONDONED AND FOR THE MISTAKE OF THE ACCOUN TANT THE ASSESSEE SHOULD NOT BE MADE TO SUFFER. WE CONDONE THE DELAY AND PROCEED TO DECIDE THE ISSUE ON MERIT. 5. IN ITA NOS.1023 AND 1024/BANG/2009, THE ASSESSEE 'S REPRESENTATIVE SUBMITTED THAT THOUGH THE APPEALS WE RE FILED IN TIME, AS AN ABUNDANT CAUTION, THE ASSESSEE HAS FILED AN AFFI DAVIT AND MADE A REQUEST FOR CONDONATION OF THE DELAY FOR THE REASON THAT THE ORDER U/S.263 RECEIVED FROM THE COMMISSIONER OF INCOME-TA X WAS MISPLACED AND THEREAFTER THE ASSESSEE MADE A REQUES T FOR MAKING AVAILABLE CERTIFIED COPIES. THE ASSESSEE'S REPRESE NTATIVE BROUGHT OUR ITA.800 TO 802,962,977 TO 979, 1023 & 1024/B/09 PAGE - 4 ATTENTION TO PAGE 23 OF THE PAPER BOOK WHICH IS A L ETTER DT.31.8.2009, WHICH HAS BEEN ACKNOWLEDGED BY THE REVENUE ON 2.9.2 009, WHICH READS AS UNDER : 'WE REQUEST YOUR HONOUR TO KINDLY PROVIDE US CERTIF IED COPIES OF THE ORDERS PASSED U/S.263 OF THE ACT FOR THE ABOVE MENTIONED ASSESSMENT YEARS 2004-05 AND 2005-06 AS T HE ORIGINALS SENT BY YOUR OFFICE HAS BEEN MISPLACED AT OUR END. THE FEES PAID COPIES OF CHALLAN TOWARDS COPYING CHA RGES IS ENCLOSED.' THEREAFTER COPIES WERE MADE AVAILABLE TO THE ASSESS EE ON 18.9.2009 AND THE APPEALS WERE FILED ON 5.11.2009. APPARENTL Y THE APPEAL IS FILED WITHIN TIME BUT AS AN ABUNDANT CAUTION THE AS SESSEE FILED AN AFFIDAVIT EXPLAINING THE REASONS FOR THE DELAY AND MADE A REQUEST FOR CONDONATION. 6. HEARING THE LEARNED DR, WE ARE CONVINCED THE DEL AY IS TO BE CONDONED AND HENCE WE CONDONE THE DELAY AND PROCEED TO DECIDE THE ISSUE ON MERIT. 7. THE ASSESSMENT ORDER FOR ASSESSMENT YEAR 2004-05 WAS PASSED BY THE ASSESSING OFFICER U/S.143(3) ON 20.6.2006. SUBSEQUENTLY ON PERUSAL OF THE RECORDS, COMMISSIONER OF INCOME-TAX FORMED THE OPINION IN ALL THESE FIVE APPEALS THAT THE ORDER PA SSED BY THE ITA.800 TO 802,962,977 TO 979, 1023 & 1024/B/09 PAGE - 5 ASSESSING OFFICER WAS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVENUE WITHIN THE MEANING OF SECTION 263 FOR THE R EASONS MENTIONED BELOW. 8. THE ASSESSING OFFICER ALLOWED THE ASSESSEE'S CLA IM OF DEDUCTION U/S.80IB(10) WRONGLY AS THE ASSESSEE HAD NOT FULFILLED THE CONDITIONS LAID DOWN IN CLAUSE (10) OF SECTION 80IB FOR THE HOUSING PROJECTS AS A WHOLE. THE COMMISSIONER OF INCOME-TA X NOTED THAT AS PER THE INFORMATION AVAILABLE, SOME OF THE HOUSING UNITS WHICH WERE SOLD DURING THE RELEVANT FINANCIAL YEAR FOR THE ASS ESSMENT YEAR UNDER CONSIDERATION, EXCEEDED THE SPECIFIED LIMIT OF MAXI MUM BUILT-UP AREA FOR RESIDENTIAL UNITS, AS THE BUILT-UP AREA OF THE FLATS HAVE BEEN ARRIVED AT CONSIDERING ONLY THE INNER MEASUREMENT OF THE UN ITS AT THE FLOOR LEVEL WITHOUT TAKING CONSIDERATION OF THE COMMON AR EAS SHARED WITH OTHER RESIDENTIAL UNITS. HE FURTHER NOTED THE ASSE SSING OFFICER ALLOWED THE ASSESSEE'S CLAIM OF DEDUCTION U/S.80IB AS THE AMOUNT OF UNDIVIDED INTEREST OF RS.1,58,90,000/- IN THE LAND WHICH WAS PAID TO VENDORS/LAND OWNERS AND INCOME OF RS.20,34,248/- W ERE CONSIDERED AS PROFITS DERIVED FROM THE PROJECT ELIGIBLE FOR DE DUCTION U/S.80IB(10). 9. IN THE PREMISES OF THE ABOVE FACTS, SHOW CAUSE N OTICE WAS ISSUED ON 2.12.08 CALLING FOR OBJECTION FROM THE AS SESSEE. ASSESSEE'S ITA.800 TO 802,962,977 TO 979, 1023 & 1024/B/09 PAGE - 6 REPRESENTATIVE FILED A WRITTEN SUBMISSION DT.9.12.0 8. IN THE WRITTEN SUBMISSION THE ASSESSEE CLAIMED THAT THERE WAS NO M ATERIAL TO INITIATE PROCEEDINGS CONTEMPLATED U/S.263. THERE WAS NO ERR OR IN THE ORDER FOR ASSESSMENT YEAR UNDER CONSIDERATION IN ALL THE CASES POSTED ON 26.12.2006. IT WAS FURTHER CONTENDED, THOUGH IT IS STATED IN THE NOTICE THAT THE ASSESSMENT ORDER SUFFERS FROM ERROR, NO SP ECIFIC ERROR WHICH IS PREJUDICIAL TO THE INTERESTS OF REVENUE HAS BEEN SP ECIFIED THEREIN AND, THEREFORE, THE NOTICE IS NOT AS PER LAW. ASSESSEE FURTHER OBJECTED THE ALLEGATION THAT THE ASSESSEE HAS NOT FULFILLED THE CONDITIONS LAID DOWN IN CLAUSE (C) OF SECTION 80IB(10) AND THERE ARE CER TAIN UNITS WHICH EXCEED THE BUILT-UP AREA PRESCRIBED IN THE SECTION TO CLAIM THE BENEFIT. IN SPITE OF SUCH A CLAIM IN THE NOTICE THERE IS NO SPECIFIC MENTION AS TO WHICH ARE THE UNITS THAT HAVE VIOLATED THIS PROVISI ON I.E., EXCEEDING THE BUILT-UP AREA. IT WAS CONTENDED THAT THE ASSES SEE HAS NOT CONSTRUCTED ANY PROJECT WHEREIN THE BUILT-UP AREA E XCEEDS THE MAXIMUM BUILT-UP AREA OF 1,500 SFT I.E., THE LIMIT PRESCRIBED AS FAR AS THE CITY OF BANGALORE IS CONCERNED. IN FACT, THE A SSESSING OFFICER PERSONALLY VERIFIED THESE FLATS BY CONDUCTING PHYSI CAL INSPECTION OF THE BUILDING AND THE ASSESSMENT TOOK PLACE AFTER A NUMBER OF HEARINGS. THE ELIGIBILITY FOR DEDUCTION WAS EXAMINED IN DETAI L. IT WAS CONTENDED THAT IN THE ABSENCE OF ANY SPECIFIC MENTI ON OF THE FLATS WHICH HAS MORE AREA THAN THE MAXIMUM PRESCRIBED, TO CLAIM THE ITA.800 TO 802,962,977 TO 979, 1023 & 1024/B/09 PAGE - 7 BENEFIT U/S.80IB(10), THE ASSESSEE IS HANDICAPPED T O GIVE A PROPER REPLY. 10. COMING TO THE RECEIPT OF AMOUNT TOWARDS UNDIVID ED INTEREST IN LAND PAID TO THE VENDORS, IT WAS CONTENDED THAT IT IS A RECEIPT ON SALE OF PROJECT AS A WHOLE AND, THEREFORE, IT IS ALSO ELIGI BLE FOR DEDUCTION. IN THE CASE IT IS NOWHERE MENTIONED THAT UNDIVIDED INT EREST IN LAND SHOULD BE EXCLUDED U/S.80IB(10). 11. COMING TO THE MISCELLANEOUS RECEIPTS, IT WAS CO NTENDED THAT THIS RECEIPT WAS TOWARDS ADDITIONAL CONSIDERATION R ECEIVED FROM THE BUYERS OF THE FLATS FOR PROVIDING ADDITIONAL/MODIFI ED SPECIFICATION IN THE BUILDING. IT WAS SUBMITTED THAT WITHOUT PREJUD ICE IF THE MISCELLANEOUS RECEIPTS ARE EXCLUDED FROM THE SALE R ECEIPTS, THEN COST SHOULD ALSO BE EXCLUDED ON PROPORTION BASIS, IN WHI CH CASE THERE WILL BE NO DEDUCTION CLAIMED AND ALLOWED. IN THE PREMIS ES OF THE ABOVE FACTS, IT WAS REQUESTED TO DROP THE PROCEEDINGS AS THERE WAS NO ERROR IN THE ORDER WHICH WAS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. IT WAS FURTHER SUBMITTED THAT THE BUILT-UP AREA DETAILS SU BMITTED FOR EACH RESIDENTIAL UNITS IS THE AREA WHICH IS SOLD TO EACH INDIVIDUAL BUYER AND CONSIST OF THE ENTIRE BUILT-UP AREA WITHOUT ANY SEP ARATION BETWEEN THE ITA.800 TO 802,962,977 TO 979, 1023 & 1024/B/09 PAGE - 8 COMMON AREA AND THE CARPET AREA AND NO AREA HAS BEE N RETAINED AFTER THE SALE. 12. CONSIDERING THE ASSESSEE'S SUBMISSION, THE COMM ISSIONER OF INCOME-TAX CAME TO THE CONCLUSION THAT THE ASSESSIN G OFFICER HAS ALLOWED THE DEDUCTION CLAIMED U/S.80IB(10) WITHOUT EXAMINING ANY DETAIL OF THE RECEIPTS ON ACCOUNT OF UNDIVIDED INTE REST IN LAND PAID TO THE VENDORS AND MISCELLANEOUS INCOME WHILE CALLING FOR RELEVANT DETAILS AND VIOLATION OF AREA SPECIFICATION. THUS HE HELD THAT THE ASSESSING OFFICER FAILED TO EXAMINE THE EXACT NATUR E OF THE RECEIPTS AND WHETHER SUCH RECEIPTS WERE FROM THE BUSINESS HO USING PROJECT. HE FURTHER HELD THE ASSESSING OFFICER FAILED TO EXA MINE THE BASIS OF MEASUREMENT OF THE BUILT-UP AREA OF THE UNITS OF TH E HOUSING PROJECT, BUT HE ACCEPTED THE CLAIM OF THE ASSESSEE THAT NONE OF THE FLATS EXCEEDS THE MAXIMUM BUILT-UP AREA PRESCRIBED BY THE SECTION FOR CLAIMING DEDUCTION U/S.80IB(10). HE FURTHER HELD T HE COMMON AREA SHARED WITH OTHER RESIDENTIAL UNITS HAS BEEN EXCLUD ED FOR THE PURPOSE OF MEASURING THE BUILT-UP AREA OF THE UNITS BY CLAU SE (A) TO SUB-SECTION 14 OF SECTION 80IB WHICH WAS INSERTED BY THE FINANC E ACT (NO.2) 2004 ONLY W.E.F.1.4.2005. THE INFORMATION AVAILABL E ON RECORD DOES NOT INDICATE THAT THE BUILT-UP AREA OF THE UNITS FO R THE PURPOSE OF ITA.800 TO 802,962,977 TO 979, 1023 & 1024/B/09 PAGE - 9 SECTION 80IB(10) WAS MEASURED TAKING INTO CONSIDERA TION THE COMMON AREA SHARED WITH OTHER RESIDENTIAL UNITS. 13. THIS ISSUE WAS TAKEN UP WITH THE ASSESSEE VIDE LETTER DT.2.12.2008 AND THE ASSESSEE HAD NOT TOUCHED THE P OINT DIRECTLY IN THE REPLY. MERE STATEMENT THAT SIMILAR STEREO TYPE NOT ICES WERE ISSUED IN TWO OTHER CASES INDICATING NON-APPLICATION OF MIND BEFORE ISSUE OF NOTICE IS NO ANSWER. HENCE, THE COMMISSIONER OF IN COME-TAX FORMED THE OPINION THAT THE ASSESSING OFFICER FAILED TO MA KE NECESSARY VERIFICATION BEFORE ALLOWING DEDUCTION U/S.80IB(10) . ASSESSMENT ORDER, THEREFORE, WAS HELD ERRONEOUS AND PREJUDICI AL TO THE INTERESTS OF REVENUE. HENCE, HE SET ASIDE THE SAME AND DIRECTED THE ASSESSING OFFICER TO MAKE FRESH ASSESSMENT AFTER MAKING NECES SARY VERIFICATION KEEPING IN MIND THE ABOVE OBSERVATIONS. AGGRIEVED BY THE ABOVE ORDER, ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 14. THE LEARNED REPRESENTATIVE FOR THE ASSESSEE BRO UGHT OUR ATTENTION TO PAPER BOOK PAGES 27 TO 28 WHICH IS A N OTICE DT.6.2.2009 ISSUED BY THE COMMISSIONER OF INCOME-TAX. PARTICUL ARLY DRAWING OUR ATTENTION TO PARA 2, THE LEARNED REPRESENTATIVE SUB MITTED THAT THE LEARNED COMMISSIONER OF INCOME-TAX HAS NOT GIVEN AN Y DETAILS EXCEPT STATING THAT 'THE AVAILABLE INFORMATION IN THE RECO RDS INDICATES THAT ITA.800 TO 802,962,977 TO 979, 1023 & 1024/B/09 PAGE - 10 NONE OF THE HOUSING UNITS WHICH WERE SOLD DURING TH E RELEVANT FINANCIAL YEAR EXCEEDED THE SPECIFIED LIMIT OF MAXI MUM BUILT-UP AREA FOR RESIDENTIAL UNIT, AS THE BUILT-UP AREA OF THE F LATS HAS BEEN ARRIVED AT CONSIDERING ONLY THE INNER MEASUREMENTS OF THE UNIT S AT THE FLOOR LEVEL WITHOUT INCLUDING THE COMMON AREAS SHARED WITH OTHE R RESIDENTIAL UNITS.' THE ASSESSEE'S REPRESENTATIVE AGAIN SUBMIT TED THAT THE OBJECTION OF THE COMMISSIONER OF INCOME-TAX WITH RE GARD TO THE UNDIVIDED INTEREST IN LAND AMOUNTING TO RS.1,34,40, 450/- PAID TO THE VENDORS/LAND OWNERS AND OTHER MISCELLANEOUS INCOME OF RS.1,11,19,806/- HAS BEEN WRONGLY CONSIDERED BY THE ASSESSING OFFICER AS PROFIT DERIVED FROM THE PROJECT FOR DEDU CTION U/S.80IB(10), IS TOO VAGUE AND THERE IS NO SPECIFIC FINDING THAT THE ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVENUE. HE SU BMITTED THE ASSESSEE SOLD THE LAND AND BUILDING TOGETHER FOR PROFIT. EV ERY FLAT OWNER HAD AN UNDIVIDED SHARE IN THE LAND. THEREFORE, ONE CAN NOT BE SEPARATED FROM THE OTHER THAT IS TO SAY THE ASSESSEE HAS SOLD AN UNSPECIFIED PART OF THE LAND TO AN INDIVIDUAL PURCHASER ALONG WITH T HE FLATS. 15. COMING TO THE MISCELLANEOUS RECEIPTS OBJECTED B Y THE COMMISSIONER OF INCOME-TAX, THE LEARNED COUNSEL SUB MITTED THESE ARE PART OF CONSTRUCTION THAT IS SOME OF THE FLAT OWNER S HAVE SPECIFIED TYPE OF TILES OR MARBLES AND ADDITIONAL CHARGES (MISCELL ANEOUS) ARE ITA.800 TO 802,962,977 TO 979, 1023 & 1024/B/09 PAGE - 11 COLLECTED ON THIS ACCOUNT ONLY. HE SUBMITTED ALL T HE FLATS WERE CONSTRUCTED WITHIN THE PRESCRIBED LIMIT OF 1,500 SF T AND THERE IS NO INSTANCE OF ANY FLAT WHERE THE AREA IS MORE. THE E LIGIBILITY FOR DEDUCTION WAS CONSIDERED BY THE ASSESSING OFFICER I N DETAIL AND AFTER SATISFYING HIMSELF HE ALLOWED THE CLAIM OF DEDUCTIO N. THE LEARNED REPRESENTATIVE SUBMITTED THE RECEIPT OF UNDIVIDED I NTEREST IN THE LAND IS THE RECEIPT TOWARDS THE SALE OF APARTMENT. IT I S THE SALE PROCEEDS OF THE FLAT WHICH IS A PART OF THE SALE AND IS, THEREF ORE, ELIGIBLE FOR DEDUCTION. THE ACT HAS NOWHERE EXCLUDED ANY SUCH R ECEIPTS. SECTION 80IB(10) SPEAKS OF PROFITS FROM ELIGIBLE UNDERTAKIN G DEVELOPING AND BUILDING HOUSING PROJECTS AS WELL AS THE LAND, THAT IS TO SAY BOTH THE LAND AND BUILDING ARE TO BE CONSIDERED WHILE COMPUT ING 80IB(10) DEDUCTION. 16. THE ASSESSEE'S REPRESENTATIVE BROUGHT OUR ATTEN TION TO PAGES 38 TO 40 OF THE PAPER BOOK THAT IS THE STATEMENT OF TH E FLATS SOLD FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. NONE OF THE F LATS, HE SUBMITTED EXCEEDED THE AREA OF 1,500 SFT. THE LEARNED REPRES ENTATIVE FOR THE ASSESSEE FURTHER SUBMITTED THAT FOR THE PURPOSE OF SECTION 80IB(10), THE DEFINITION OF BUILT-UP AREA WAS INSERTED BY THE FINANCE ACT (NO.2) 2004, W.E.F.1.4.2005 AND, THEREFORE, FOR THE YEAR U NDER CONSIDERATION THE COMMON AREA IS TO BE EXCLUDED WHILE COMPUTING T HE DEDUCTION ITA.800 TO 802,962,977 TO 979, 1023 & 1024/B/09 PAGE - 12 U/S.80IB(10). ACCORDING TO THE COMMISSIONER OF INC OME-TAX, THE ORDER OF THE ASSESSING OFFICER IS ERRONEOUS AND PRE JUDICIAL TO THE INTERESTS OF REVENUE FOR THE REASON THAT WHILE COMP UTING THE AREA OF THE RESIDENTIAL UNITS, THE ASSESSING OFFICER EXCLUD ED THE COMMON AREAS SHARED. EVEN IF THE ORDER OF THE ASSESSING O FFICER IS PREJUDICIAL TO THE INTERESTS OF REVENUE, IT IS NOT ERRONEOUS IN THE LIGHT OF CLAUSE (14)(A) TO SECTION 80IB WHICH CAME INTO EFFECT FROM 1.4.2005. THE LEARNED REPRESENTATIVE INVITED OUR ATTENTION TO PAG E 70 OF THE PAPER BOOK WHICH IS THE DESCRIPTION OF THE APARTMENT, WHI CH CLEARLY SHOWS THE BUILT-UP AREA AT 895 SFT AND ONE NUMBER OF CELL AR CAR PARKING SPACE. OUR ATTENTION WAS AGAIN INVITED TO PAGE 109 OF THE PAPER BOOK THAT IS THE LETTER DT.7.3.2006 ADDRESSED TO THE ASS ESSING OFFICER AND SUBMITTED THE SALE DEEDS OF 94 FLATS WERE SUBMITTED BEFORE THE ASSESSING OFFICER PRIOR TO THIS DATE AND THIS WAS T HE LETTER ENCLOSING THE SALE DEEDS OF ANOTHER THREE FLATS BRINGING THE TOTAL NUMBER OF FLATS TO 97. ABOUT THE REMAINING ONE, IT WAS MENTIONED ' WE COULD NOT GET COPIES OF THE REMAINING 1 SALE DEED BUT HOWEVER WE CONFIRM THAT THE BUILT-UP AREA OF THE SALE FLATS IS LESS THAN 1500 S FT AND IMMEDIATELY ON RECEIPT, THE SAME WILL BE SUBMITTED TO YOU.' THE F INDING OF THE COMMISSIONER OF INCOME-TAX THAT THE ASSESSING OFFIC ER HAS NOT CONSIDERED THE FACTS IN DETAIL AND HAD NOT APPLIED THE MIND IS INCORRECT. THE INDIVIDUAL SALE DEEDS WERE SUBMITTE D BEFORE THE ITA.800 TO 802,962,977 TO 979, 1023 & 1024/B/09 PAGE - 13 ASSESSING OFFICER AND CONSIDERED. HENCE, THE LEARN ED REPRESENTATIVE SUBMITTED THAT THE FINDING OF THE COMMISSIONER OF I NCOME-TAX THAT THE ASSESSING OFFICER FAILED TO MAKE NECESSARY VERIFICA TION BEFORE ALLOWING THE DEDUCTION U/S.80IB(10) IS INCORRECT AN D, THEREFORE, THE FURTHER CONCLUSION BY THE COMMISSIONER OF INCOME-TA X THE ORDER OF THE ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVENUE IS ALSO INCORRECT. 17. IN THE PREMISES OF THE ABOVE SUBMISSIONS, THE A SSESSEE'S REPRESENTATIVE SUBMITTED THAT THE REVENUE CANNOT TA KE A DIFFERENT STAND FOR DIFFERENT YEARS. FOR THE ABOVE PROPOSITION HE RELIED ON THE DECISION OF THE HON'BLE MADRAS HIGH COURT IN THE CA SE OF COMMISSIONER OF INCOME-TAX V. L. G. RAMAMURTHI & OT HERS (1977) 110 ITR 453. HE FURTHER SUBMITTED RELYING UPON THE JURISDICTIONAL HIGH COURT DECISION IN THE CASE OF NIPPON ELECTRONI CS (INDIA) PVT. LTD., (181 ITR 518) THAT THE ELIGIBILITY FOR CLAIM SHOULD BE VERIFIED IN THE INITIAL YEAR AND ONCE THE ELIGIBILITY IS ACCEPT ED, THE SAME MUST BE CONTINUED. THE ASSESSEE'S REPRESENTATIVE FURTHER R ELIED ON THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF SIE MENS INFORAMTION SYSTEM LTD., (295 ITR 333) FOR THE PROP OSITION THAT THERE CANNOT BE ANY CHANGE OF OPINION IF THE ALLOWANCE HA S BEEN GIVEN IN THE ORIGINAL ASSESSMENT. THE ASSESSING OFFICER WOU LD BE INCORRECT IF ITA.800 TO 802,962,977 TO 979, 1023 & 1024/B/09 PAGE - 14 A DECISION IS TAKEN CONTRARY TO THE DECISION ORIGIN ALLY TAKEN. IN ANY CASE, THE ASSESSEE'S REPRESENTATIVE SUBMITTED THERE CANNOT BE A TOTAL REJECTION OF THE CLAIM. RESTRICTION OF DEDUCTION, IF ANY, SHOULD BE LIMITED PROPORTIONAL TO THE VIOLATION IN ANY PARTIC ULAR RESIDENTIAL UNIT IN COMPARISON WITH THE TOTAL PROJECT AS HELD BY THE HON'BLE ITAT, KOLKATA BENCH IN THE CASE OF ACIT V. BENGAL AMBUJA HOUSING DEVELOPMENT LTD., IN ITA NOS.1735 AND 1595/KOL/2005 , DT.24.3.2006, FOR THE ASSESSMENT YEAR 2002-03. 18. IN REPLY TO THE ABOVE, THE LEARNED DR FIRST OBJ ECTED THE CONDONATION APPLICATION FILED BY THE ASSESSEE. HE SUBMITTED THE SUBMISSION THAT THE PAPERS WERE MIXED UP WITH SOME OTHER PAPERS AND AFTER A LONG GAP ASSESSEE'S ACCOUNTANT WHILE SEARCH ING FOR SOME OTHER RECORDS FOUND IT ETC., ARE TOO VAGUE AND SHOWS THE LAXITY ON THE PART OF THE ASSESSEE IN FILING THE APPEAL. HE SUBMITTED FU RTHER THERE IS NO POSITIVE EVIDENCE WITH REGARD TO THE ABOVE SUBMISSI ONS. HENCE, HE SUBMITTED THE APPEAL SHOULD BE REJECTED ON THIS GRO UND. 19. CONSIDERING THE RIVAL SUBMISSIONS, WE ARE OF TH E VIEW THAT BY NOT CONDONING THE DELAY AND THEREBY PREVENTING THE ASSESSEE FROM PROCESSING THE MATTER ON MERIT IS A DIFFICULT PROPO SITION TO ACCEPT FOR THE REASON THAT BY DECIDING THE ISSUE ON MERIT, REV ENUE IS NOT ITA.800 TO 802,962,977 TO 979, 1023 & 1024/B/09 PAGE - 15 PREJUDICED ANYWAY. IF WE REJECT THE APPLICATION ON THIS TECHNICAL GROUND AND IF THE ASSESSEE IS REALLY HAVING A REASO NABLE CAUSE, IT WILL AMOUNT TO INJUSTICE. HENCE, WE CONDONE THE DELAY A ND PROCEED TO DECIDE THE ISSUE ON MERIT. 20. THE LEARNED DR SUBMITTED TO COME TO THE REAL FA CTS, IT IS NECESSARY TO GO TO THE APPEAL BY THE ASSESSEE ON TH E ASSESSMENT COMPLETED FOR THE ASSESSMENT YEAR 2005-06. THE ASS ESSMENT ORDER FOR ASSESSMENT YEAR 2005-06 WAS THE ROOT CAUSE FOR THE COMMISSIONER OF INCOME-TAX TO PASS THE ORDER. ASSE SSMENT ORDERS U/S.143(3) FOR ASSESSMENT YEAR 2005-06 IN ITA NO.96 2, 977, 978 AND 979/BANG/2009 ARE DATED 26.12.2007, WHEREAS ORDERS U/S.263 IN ITA NOS.1023 AND 1024/BANG/2009 IS DATED 6.3.2009 AND I N ITA NOS.800 TO 802/BANG/2009, ORDER U/S.263 IS DATED 26.2.2009. 21. WITH THE ABOVE INTRODUCTION, THE SENIOR DR TOOK US THROUGH THE ASSESSMENT ORDERS WHICH WERE THE BASIS FOR THE REOP ENING OF THE EARLIER YEARS' ASSESSMENT ORDERS. ACCORDING TO THE SENIOR DR THE ASSESSMENT ORDERS ARE CRYPTIC AND ARE ALMOST IDENTI CAL. THE ASSESSING OFFICER COLLECTED THE DETAILS FROM THE SUB-REGISTRA R AND CORPORATION OFFICES REGARDING THE PLANT SANCTION, PROPERTY SOLD ETC., AND HELD THE SALE DEED COPIES WERE OBTAINED FROM THE ASSESSEE IN THE CASE OF SOME ITA.800 TO 802,962,977 TO 979, 1023 & 1024/B/09 PAGE - 16 OF THE FLATS SOLD DURING THE YEAR UNDER CONSIDERATI ON AND ON THE BASIS OF THE VERIFICATION OF THE DETAILS COLLECTED, IT WA S FOUND THAT THE WORKING OF THREE BED ROOM FLATS EXPLAINING THE SUPE R BUILT-UP AREA INCLUDING COMMON AREA SUCH AS CORRIDOR, STAIR CASE, COMMUNITY HALL, GYM, SWIMMING POOL ETC., AND ACTUAL AREA OF THE FLA T AVAILABLE FOR EXCLUSIVE USE OF THE BUYER IN THE PROJECT 'TEMPLE T REE', WAS AS UNDER : HOUSING UNIT AREA IN SQ.FT.W.R.T CLAUSE (C) OF SECTION 80IB(10) 1. NO.A-301 1276 2 BEDROOM A-301/1 770 PENT HOUSE TERRACE/PROJECTION 675 PROJECTION REGISTERED FOR EXCLUSIVE USE OF THE OWNER TOTAL 2,721 2. NO.A-302 1276 3 BEDROOM A-302/1 345 PENT HOUSE TERRACE/PROJECTION 1095 PROJECTION REGISTERED FOR EXCLUSIVE USE OF THE OWNER TOTAL 2716 3. NO.B-301 1276 3 BEDROOM NO.B-301/1 344 PENT HOUSE TERRACE/PROJECTION 1095 PROJECTION REGISTERED FOR EXCLUSIVE USE OF THE OWNER TOTAL 2716 4. NO.B-306 1277 3 BEDROOM TERRACE/PROJECTION 810 PROJECTION REGISTERED FOR EXCLUSIVE USE OF THE OWNER TOTAL 2087 5. C-302 (INCLUDING PENT HOUSE) 1492 3 BEDROOM TERRACE/PROJECTION 1095 PROJECTION REGISTERED FOR EXCLUSIVE USE OF THE OWNER 2587 ITA.800 TO 802,962,977 TO 979, 1023 & 1024/B/09 PAGE - 17 22. FROM THE ABOVE FACTS, THE ASSESSING OFFICER CON CLUDED THAT HOUSING UNITS SOLD DURING THE YEAR WERE EXCEEDING T HE LIMIT LAID DOWN IN CLAUSE (C) OF SECTION 80IB(10). IT WAS UNDER TH ESE CIRCUMSTANCES HE MADE A PROPOSAL TO DISALLOW THE CLAIM OF THE ASSESS EE FOR THE ASSESSMENT YEAR 2005-06. AGAIN THE LEARNED DR BROU GHT OUR ATTENTION TO PARA 8 OF THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2005-06 IN REGULAR APPEAL WHICH READS AS UNDER : '8. FROM THE REPLY RECEIVED AND ENQUIRIES CONDUCTED , IT IS OBSERVED THAT THE PENT HOUSE UNITS ARE SINGLE UN ITS HAVING ENTRY FROM THE MAIN DOOR OF THE HOUSE AND PENT HOUS ES ARE ACCOMMODATING BED ROOMS AND STUDY ROOMS. THE PLACE REGISTERED AS TERRACE NOTHING BUT PROJECTION TO THE PENT HOUSE WITH VITRIFIED/MAT/CERAMIC TILES HAVING ABOUT 4 TO 5 RAISED WALLS AROUND AND HAVE BEEN REGISTERED FOR TH E EXCLUSIVE USE OF THE BUYER. THERE IS NO OTHER ACCE SS TO THE PENT HOUSE OR TERRACE WHICH IS PROJECTION TO THE PE NT HOUSE EXCEPT FROM THE MAIN DOOR OF THE HOUSE. IT IS ALSO FOUND THAT THE KEB/ELECTRIC CONNECTION TO THE MAIN HOUSE AND P ENT HOUSE ARE SINGLE HAVING SINGLE METER READING. IT I S ALSO FACT THAT THE SAID FLATS WITH PENT HOUSE WERE REGISTERED ON THE SAME DAY AND TO THE SAME PERSONS IN SEPARATE DEEDS WITH MAIN AND SUB NUMBERS WHEREVER THE TOTAL BUILT UP AR EA IS CROSSING THE LIMIT OF 1500 SQFT AND PENT HOUSES WIT H LESS THAN 1500 SQFT BUILT UP AREA HAVE BEEN REGISTERED W ITH ITA.800 TO 802,962,977 TO 979, 1023 & 1024/B/09 PAGE - 18 SINGLE DEED AND NUMBER, WITHOUT ATTRIBUTING ANY REA SONS FOR SUCH BIFURCATIONS.' THE ASSESSEE'S EXPLANATION ON THE POINT WAS THAT TH IS POINT HAS ALREADY BEEN EXPLAINED FOR THE EARLIER YEARS ETC., WAS REJE CTED BY THE ASSESSING OFFICER AS A SUBMISSION TOO VAGUE. 23. THEREAFTER THE LEARNED DR BROUGHT OUR ATTENTION TO THE ORDER OF THE ASSESSING OFFICER IN RESPECT OF WHICH APPEALS A RE FILED ON ORDER OF THE COMMISSIONER OF INCOME-TAX U/S.263, FOR THE PR OPOSITION THAT IN REALITY THE ASSESSING OFFICER HAS NOT CONSIDERED TH ESE FACTS WHICH SUBSEQUENTLY CAME TO THE KNOWLEDGE OF THE ASSESSING OFFICER. THE MERE FACT THAT THE LEARNED DR'S SUBMISSION THAT THE SUBMISSION OF THE ASSESSEE'S REPRESENTATIVE THAT THE ASSESSING OFFICE R APPLIED HIS MIND AND THERE WERE ABOUT 16 HEARINGS, DOES NOT CURE THE DEFECT IN THE ASSESSMENT ORDER. EVEN AFTER GIVING A NUMBER OF OP PORTUNITIES AND HEARINGS, IF THE ASSESSING OFFICER FAILS TO LOOK IN TO THE FACTS WHICH REQUIRE CONSIDERATION, THEN THE ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVENUE. ON THE VERY FACTS THE AS SESSING OFFICER FAILED TO CONDUCT PROPER ENQUIRY WHICH GIVES JURISD ICTION TO THE COMMISSIONER OF INCOME-TAX. IN THE ASSESSMENT ORDE R THE ASSESSING OFFICER HAD MADE A DETAILED TABULATION TO ARRIVE AT THE TAXABLE INCOME. A READING OF THE ORDER OF THE ASSESSING OFFICER WIL L MAKE IT CLEAR THAT ITA.800 TO 802,962,977 TO 979, 1023 & 1024/B/09 PAGE - 19 WITH REGARD TO DEDUCTION U/S.80IB(10) HE HAD NOT AP PLIED HIS MIND AND HAD ALSO NOT CONDUCTED PROPER ENQUIRY. THE ONL Y RELEVANT DISCUSSION BY THE ASSESSING OFFICER CLEARLY SHOWS H E HAS NOT CONSIDERED THE FACTS WHICH CAME INTO LIGHT WHILE PA SSING THE ORDER FOR THE YEAR 2005-06. IT WAS ON THE PREMISES OF THE AB OVE FACTS, THE LEARNED COMMISSIONER OF INCOME-TAX ASSUMED JURISDIC TION U/S.263 AND SET ASIDE THE ASSESSMENT ORDER. ONCE AGAIN THE LEARNED DR BROUGHT OUR ATTENTION TO PARA 8 OF THE ASSESSMENT O RDER WHICH IS QUOTED HEREINABOVE IN PARA 21. THE FACT THAT THE P ENT HOUSE UNITS ARE SINGLE UNITS HAVING ENTRY FROM THE MAIN DOOR OF THE HOUSE AND PENT HOUSE ACCOMMODATE STUDY AND BED ROOMS ETC., AS NOTE D BY THE ASSESSING OFFICER FOR THIS YEAR WAS NOT CONSIDERED BY THE ASSESSING OFFICER FOR THE PREVIOUS YEARS. SUCH LACK OF ENQUI RY LED TO ORDER U/S.263 BY THE COMMISSIONER OF INCOME-TAX. HENCE, THE LEARNED DR SUBMITTED THAT THE ORDER OF THE COMMISSIONER OF INC OME-TAX PASSED U/S.263 IS TO BE UPHELD. HE FURTHER SUBMITTED THER E IS A LACK OF APPLICATION OF MIND BY THE ASSESSING OFFICER WHICH GIVES CLEAR JURISDICTION TO THE COMMISSIONER OF INCOME-TAX AND FOR THE ABOVE PROPOSITION HE RELIED ON THE FOLLOWING DECISIONS : I) SMT. RENU GUPTA V. CIT (2008) 301 ITR 45 (RAJ); II) DUGGAL & CO., V. CIT (1996) 220 ITR 456 (DEL); ITA.800 TO 802,962,977 TO 979, 1023 & 1024/B/09 PAGE - 20 III) K. A. RAMASWAMY CHETTIAR AND ANOTHER V. CIT(19 96) 220 ITR 657 IV) TOYOTA MOTOR CORPN.V. CIT(2008) 218 CTR 539 (SC ) 24. IN REPLY THE LEARNED REPRESENTATIVE FOR THE ASS ESSEE BROUGHT OUR ATTENTION TO PARA 14 OF THE ORDER WHICH THE LEARNED DR SUBMITTED WAS THE BASIS FOR PASSING ORDER U/S.263. THE SUBMISSIO N THAT THE ASSESSING OFFICER HAS NOT APPLIED HIS MIND IS DEVOI D OF MERIT. HE TOOK US THROUGH PARA 14 WHICH READS AS UNDER : '14. THE FACTS AND CIRCUMSTANCE DIFFERS FROM THE CA SE REFERRED TO. IN THE PREVIOUS YEAR THE VERIFICATION IS DONE IN RESPECT OF THE FLATS SOLD DURING THE YEAR 2003-04 I .E., FOR ASSESSMENT YEAR 2004-05 AS VERIFIED FROM THE RECORD S BY SURVEYING THE UNITS WHICH ARE IN THE MARGIN OF 1500 SQ.FT THAT IN THE CASE OF 'TEMPLE TREE' AND 'MILLENIUM HABITAT E' PROJECTS OF THE GROUP. IN THE PRESENT CASE THE UNI TS TAKEN WERE FROM THE FLATS SOLD DURING THE YEAR 2004-04 I.E., A SSESSMENT YEAR 2005-06 AND FRESH MATERIALS WERE BROUGHT ARE R EGISTERED SALE DEEDS, AS BASIS FOR CONSIDERING BUILT UP AREA WITH PENT HOUSE, PROJECTIONS, ETC.,' THE LEARNED REPRESENTATIVE SUBMITTED THE SUBMISSION OF THE DR THAT THERE WAS A FAILURE ON THE PART OF THE ASSESSING OF FICER TO CONDUCT ENQUIRY AND THERE WAS NO PROPER APPLICATION OF MIND IS INCORRECT. ITA.800 TO 802,962,977 TO 979, 1023 & 1024/B/09 PAGE - 21 25. FROM THE ABOVE THE LEARNED REPRESENTATIVE SUBMI TTED THERE IS A CLEAR FINDING BY THE ASSESSING OFFICER THE FACTS FO R THE ASSESSMENT YEARS 2004-05 AND 2005-06 ARE QUITE DIFFERENT. THE REFORE, HE OBJECTED THAT THE REGULAR ASSESSMENTS FOR 2005-06 W ERE THE BASIS TO PASS ORDER U/S.263 IS WITHOUT MERIT. 26. THE LEARNED REPRESENTATIVE FURTHER SUBMITTED TH E COMMISSIONER OF INCOME-TAX HAS NOT VISITED THE BUILDING BEFORE P ASSING THE ORDER WHEREAS THE ASSESSING OFFICER VISITED THE FLAT AND SATISFIED HIMSELF BEFORE DECIDING THE ISSUE IN ASSESSEE'S FAVOUR. TH E COMMISSIONER OF INCOME-TAX WITHOUT VISITING THE FLAT SAYS THE STAIR CASE IS FROM INNER SIDE OF THE FLAT WHEREAS THERE IS NO SUCH CASE BY T HE ASSESSING OFFICER WHO ACTUALLY VISITED THE PLACE. THEREFORE, THIS FI NDING OF THE COMMISSIONER OF INCOME-TAX IS TO BE REJECTED AS SUP ERFLUOUS. THE ASSESSEE HAS NOT VIOLATED ANY RULES IF THE FLAT OWN ERS SUBSEQUENTLY HAVE MADE ANY CHANGES, FOR WHICH THE ASSESSEE IS NO T RESPONSIBLE. HENCE, THE APPEALS BY THE ASSESSEES ARE TO BE ALLOW ED, HE SUBMITTED. 27. CONSIDERING THE RIVAL SUBMISSIONS, WE ARE OF TH E VIEW THAT THE REASONING GIVEN BY THE COMMISSIONER OF INCOME-TAX T O INVOKE JURISDICTION U/S.263 DOES NOT STAND THE SCRUTINY. IT IS TRUE THE ASSESSMENT ORDER IS NOT ELABORATE AND IS NOT DISCUS SING THE ISSUE IN ITA.800 TO 802,962,977 TO 979, 1023 & 1024/B/09 PAGE - 22 DETAIL, BUT THAT DOES NOT MAKE THE ASSESSMENT ORDER ERRONEOUS. ACCORDING TO THE DR THE ASSESSMENT WAS COMPLETED FO R THE ASSESSMENT YEAR 2005-06 WHEREIN THE ASSESSING OFFIC ER FOUND THAT BUILT-UP AREA IN THE MILLENIUM HABITATE PROJECT AT LEAST THREE FLATS WERE MORE THAN THE MAXIMUM PRESCRIBED LIMIT IN THE STATUTE U/S,80IB(10)(C). HOWEVER, THE ASSESSEE'S REPRESENT ATIVE'S SUBMISSION IS THAT WHILE CONSIDERING THE BUILT-UP AREA, THE CO MMISSIONER OF INCOME-TAX HAS TAKEN INTO CONSIDERATION THE FLOOR L EVEL INCLUDING THE PROJECTION AND BALCONIES, AS INCREASED BY THE THICK NESS OF THE WALL, BUT EXCLUDING THE COMMON AREA SHARED WITH OTHER RESIDEN TIAL UNITS. 28. THE DEFINITION OF THE BUILT-UP AREA AS IT STAND S NOW CAME INTO EFFECT W.E.F.1.4.2005 AND, THEREFORE, THIS DEFINITI ON IS NOT APPLICABLE FOR THE ASSESSMENT YEAR 2004-05. THEREFORE, THERE IS NO ERROR NOR MISTAKE IN THE ORDER OF THE ASSESSING OFFICER WITH REGARD TO THE ABOVE POINT. THE ASSESSEE'S REPRESENTATIVE FURTHER SUBMI TTED WITH REGARD TO MILLENIUM HABITATE, THE ACTUAL BUILT AREA OF THE TH REE FLATS C-315, D- 312 AND E-306, IN THE THIRD FLOOR INCLUDING THE PEN T HOUSE IS 1475 SQFT, 1420 SQFT AND 1475 SQFT RESPECTIVELY IS ACTUA LLY LESS THAN 1,500 SQFT.. THE ASSESSING OFFICER HELD THAT THE PROJECT ION TO THE PENT HOUSE REGISTERED FOR THE EXCLUSIVE USE OF THE BUYER IN AL L THE THREE FLATS WERE ADDED TO THIS. IT WAS ONLY AFTER THIS ADDITION, THE AREA CROSSED THE ITA.800 TO 802,962,977 TO 979, 1023 & 1024/B/09 PAGE - 23 1,500 SQFT LIMIT. AS STATED ABOVE, THE PROJECTION AND BALCONIES WERE INCLUDED IN THE BUILT-UP AREA ONLY AFTER THE CHANGE THAT CAME INTO EFFECT W.E.F.1.4.2005 IN THE FORM OF SECTION 80IB(1 4)(A). IT IS ALSO THE CASE OF THE ASSESSEE THAT THE ENTRY INTO THE TERRAC E FROM THESE THREE FLATS ON THE THIRD FLOOR WERE NOT FROM THE RESPECT IVE FLATS. IT WAS COMMON ENTRANCE AND THE AGREEMENT FOR SALE IS ALSO SEPARATE FOR THE FLATS AS WELL AS FOR THIS PART. THEREFORE, THE ASS ESSEE'S REPRESENTATIVE'S SUBMISSION THAT THIS CANNOT BE TREATED AS ONE, WE A RE OF THE VIEW IS TO BE ACCEPTED. 29. THE CASE OF THE REVENUE ON THE OTHER HAND IS TH AT NOW THE ENTRANCE IS FROM THE FLATS ITSELF. THEREFORE, IT S HOULD BE TREATED AS ONE. WE ARE UNABLE TO SUBSCRIBE TO THIS VIEW FOR THE REA SON THAT IF TWO FLATS ARE SEPARATELY SOLD AND SUBSEQUENTLY IF THE OWNER R EMOVES THE WALL BY ADDING A STAIR CASE, IT IS CONNECTED, IT IS DIFFICU LT TO HOLD THAT AS FAR AS THE BUYER IS CONCERNED, AT THE TIME OF HIS SELLING BOTH WAS ONE SINGLE FLAT. DEFINITELY, THIS PROVISION IS NOT APPLICABLE IF THE CHANGE IS MADE BY THE OCCUPANTS OR THE PURCHASER SUBSEQUENT TO THE SALE OF THE FLATS. IF THE BUILDER HIMSELF HAD BUILT AND PROVIDED THE FACI LITY BEFORE SALE, THEN THE SECTION 80IB(10) IS VIOLATED. ITA.800 TO 802,962,977 TO 979, 1023 & 1024/B/09 PAGE - 24 30. THE SUBMISSION OF THE LEARNED DR THAT THESE FAC TS CAME INTO KNOWLEDGE OF THE REVENUE WHILE PASSING THE ORDER FO R THE ASSESSMENT YEAR 2005-06 AND, THEREFORE, THE COMMISSIONER OF IN COME-TAX REOPENED THE ASSESSMENTS ON THE BASIS OF THE NEW FA CTS PRIMA FACIE, IS UNACCEPTABLE. THERE IS ANOTHER SPECIFIC FINDING BY THE ASSESSING OFFICER THAT HE VISITED THE FLATS AND SATISFIED HIM SELF THAT IN NONE OF THE FLATS THE AREA WAS MORE THAN THE MAXIMUM PRESCR IBED BY THE STATUTE WHEREAS IT WAS THE SUBMISSION OF THE ASSESS EE THAT THE COMMISSIONER OF INCOME-TAX HAD NOT VISITED BUT ON P RESUMPTION HE CONCLUDED ON THE BASIS OF THE RECORDS THAT WERE MAD E AVAILABLE BEFORE HIM. THE ORDER OF THE ASSESSING OFFICER WHICH IS F OR THE ASSESSMENT YEAR 2005-06 IS THE BASIS FOR ORDER U/S.263. WE HA D MENTIONED HEREIN ABOVE THAT FLAT NOS.C-315, D-312 AND E-310 E VEN ACCORDING TO THE ASSESSING OFFICER IS LESS THAN 1,500 SFT. THIS GOES BEYOND THE MAXIMUM LIMIT IF PROJECTION TO THE PENT HOUSE IS AL SO ADDED WHICH IS IN THE EXCLUSIVE USE OF THE BUYER. 31. IN THE ORDER OF THE COMMISSIONER OF INCOME-TAX, THE LEARNED COMMISSIONER OF INCOME-TAX SPECIFICALLY MENTIONS TH AT ASSESSING OFFICER FAILED TO MAKE NECESSARY VERIFICATION BEFOR E ALLOWING DEDUCTION U/S.80IB(10) WITH REGARD TO THE MEASUREME NT OF THE BUILT- UP AREA OF EACH UNITS. HE ALSO MENTIONS THIS IS BE CAUSE THE COMMON ITA.800 TO 802,962,977 TO 979, 1023 & 1024/B/09 PAGE - 25 AREAS SHARED WITH RESIDENTIAL UNITS HAS BEEN EXCLUD ED FOR THE PURPOSE OF MEASUREMENT OF THE BUILT-UP AREA BY CLAUSE (A) O F SUB-SECTION 14 OF SECTION 80IB INSERTED BY THE FINANCE ACT (NO.2) 200 4, W.E.F.1.4.2005. WE ARE AFRAID REASONING OF THE COMMISSIONER OF INCO ME-TAX IS SELF- DEFEATING. THE SECTION COMES INTO EFFECT FROM 1.4. 2005 WHICH IS EFFECTIVE FROM ASSESSMENT YEAR 2006-07. IN OTHER WO RDS, THE COMMISSIONER OF INCOME-TAX IS TRYING RESTRICTIVE EF FECT FOR THE CHANGE MADE IN CLAUSE (A) OF SECTION 80IB(14). WE ARE AFR AID THIS CANNOT BE CONSIDERED IN SECTION 263 FOR THE SIMPLE REASON THA T IN ANY CASE THIS WILL BE A DEBATABLE POINT AND ANY DEBATABLE ISSUE C ANNOT BE CONSIDERED IN SECTION 263 ORDER. THEREFORE, THE FI RST REASONING OF THE COMMISSIONER OF INCOME-TAX WITH REGARD TO THE EXCES S AREA FAILS AND IT IS DISMISSED. 32. COMING TO THE SECOND POINT, THE ARGUMENT OF THE REPRESENTATIVE FOR THE ASSESSEE IS RECORDED BY THE COMMISSIONER OF INCOME-TAX VIDE PAGE 3, PARA 7 OF HIS ORDER, OBSERVING AS UNDER : '7. REGARDING THE RECEIPT OF THE AMOUNTS TOWARDS UN DIVIDED INTEREST IN LAND PAID TO THE VENDORS/LAND OWNERS, I T HAS BEEN SUBMITTED THAT IT IS A RECEIPT ON SALE OF APARTMENT S CONSISTING OF UNDIVIDED INTEREST OF LAND AND BUILDING AND THE SAID SUM BEING THE SALE PROCEEDS ON SALE OF FLATS, IS PART O F THE SALES AND IS ELIGIBLE FOR DEDUCTION. IT HAS BEEN POINTED OUT THAT THE ITA.800 TO 802,962,977 TO 979, 1023 & 1024/B/09 PAGE - 26 ACT HAS NOWHERE EXCLUDED ANY SUCH RECEIPTS AND SECT ION 80IB(10) SPEAKS OF PROFIT FROM ELIGIBLE UNDERTAKING AND RESIDENTIAL PROJECTS CONSISTS OF BOTH LAND AND BUIL DING.' SUFFICE TO SAY THAT THE COMMISSIONER OF INCOME-TAX HAS NOT GIVEN ANY REASON AS TO WHY HE IS COMING TO THE CONCLUSION THA T WHEN THE ACT SPEAKS OF A PROJECT, THE UNDIVIDED INTEREST OF THE LAND SHOULD BE TREATED SEPARATELY AND THE BUILDING PORTION SHOULD BE TAKEN SEPARATELY. THERE IS NO DECIDED CASE REFERRED. IN THE ABSENCE OF ANY DECIDED CASE, IN THE NORMAL PARLANCE, 'PROJECT' HAS TO BE TREATED AS ONE AND THE SAME. THE BUILDING IS NOT SOLD SEPARATELY. FIRSTLY BECAU SE NO PERSON COULD CLAIM HIS UNDIVIDED INTEREST IN THE LAND BY IDENTIF YING THAT THIS PART OF THE LAND IS HIS. AS SUCH, WE ARE OF THE VIEW THAT I T SHOULD BE TREATED AS ONE AND THE SAME AS CONTENDED BY THE LEARNED REPRES ENTATIVE FOR THE ASSESSEE. EVEN IF IT IS A DEBATABLE POINT, THIS CA NNOT BE A SUBJECT MATTER OF SECTION 263, FOR THE REASON THAT U/S.263 THE COMMISSIONER OF INCOME-TAX GETS JURISDICTION ONLY IF THE ORDER IS E RRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVENUE. BOTH THE ELEMENTS HAVE TO BE PRESENT TOGETHER. IN THIS CASE IT IS DIFFICULT TO HOLD THAT THE VIEW EXPRESSED BY THE COMMISSIONER OF INCOME-TAX THAT TH E LAND SHOULD BE TREATED SEPARATELY AND THE BUILDING SHOULD BE TREAT ED SEPARATELY IS THE RIGHT VIEW. IT IS A PLAUSIBLE VIEW. A PLAUSIBLE V IEW DOES NOT MAKE THE ORDER OF THE ASSESSING OFFICER ERRONEOUS AND PR EJUDICIAL TO THE ITA.800 TO 802,962,977 TO 979, 1023 & 1024/B/09 PAGE - 27 INTERESTS OF REVENUE. THIS REASON OF THE COMMISSIO NER OF INCOME-TAX IS HENCE, WITHOUT MERIT. 33. COMING TO THE MISCELLANEOUS RECEIPTS, THE ASSE SSEE'S REPRESENTATIVE SUBMITTED THAT THESE ARE ADDITIONAL CHARGES RECEIVED FROM THE BUYERS OF THE FLATS FOR PROVIDING ADDITION AL/MODIFIED SPECIFICATION LIKE TILES, MARBLES ETC., AND, THEREF ORE, IT IS PART AND PARCEL OF THE CONSTRUCTION COST AND IT CANNOT BE TR EATED SEPARATELY. WE HEARD THE LEARNED DR ON THE POINT. 34. WE ARE OF THE VIEW THAT THE VIEW CANVASSED BY T HE LEARNED REPRESENTATIVE FOR THE ASSESSEE WHICH WAS ALSO THE ARGUMENT ADVANCED BEFORE THE COMMISSIONER OF INCOME-TAX(A) IS TO BE A CCEPTED. SIMPLY BECAUSE IT IS TERMED AS MISCELLANEOUS, IT CANNOT BE EXCLUDED FROM THE RECEIPTS ELIGIBLE FOR DEDUCTION U/S.80IB(10). 35. THE ASSESSEE'S REPRESENTATIVE ALSO RELIED ON TH E FOLLOWING DECISIONS SO AS TO BRING HOME THE POINT THAT THE CO MMISSIONER OF INCOME-TAX LACKS JURISDICTION U/S.263. FIRSTLY HE RELIED ON THE DECISION OF THE ALLAHABAD HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME-TAX V. GOYAL PRIVATE FAMILY SPECIFIC TRUST ( 171 ITR 698), WHEREIN IT IS HELD THAT MERELY BECAUSE THE ASSESSIN G OFFICER'S ORDER IS ITA.800 TO 802,962,977 TO 979, 1023 & 1024/B/09 PAGE - 28 BRIEF AND CRYPTIC IT IS NOT SUFFICIENT TO BRAND THE ASSESSMENT ORDER AS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVEN UE. UNLESS SPECIFIC ERROR HAS BEEN POINTED OUT, THE ORDER CANNOT BE TER MED AS PREJUDICIAL TO THE INTERESTS OF REVENUE. EVEN IF IT IS PREJUDI CIAL IT CANNOT BE SAID THAT THE COMMISSIONER OF INCOME-TAX ASSUMES JURISDI CTION UNLESS THE ORDER IS ERRONEOUS AS WELL. IN THE CASES BEFORE US , THE COMMISSIONER OF INCOME-TAX ASSUMES JURISDICTION AND DIRECTS THE ASSESSING OFFICER TO PASS ORDER ON POINTS ON WHICH TWO VIEWS ARE POSS IBLE. HENCE, WE ARE OF THE VIEW THE ORDER PASSED BY THE COMMISSIONE R OF INCOME-TAX IS WITHOUT JURISDICTION. THE LEARNED REPRESENTATIV E FOR THE ASSESSEE ALSO RELIED ON THE FOLLOWING DECISIONS : I) CIT V. KANDA RICE MILLS - 178 ITR 446(P&H); II) CIT V. CHAWLA TRUNK HOUSE - 139 ITR 182 (P&H); III) CIT V. MAHENDRA KUMAR BANSAL 297 ITR 99 (ALL); IV) RAYON SILK MILLS V. CIT-221 ITR 155 (GUJ); V) CIT V. TAJ PRINTERS - 178 ITR 384 (ALL); VI) CIT V. SAKTHI CHARITIES - 244 ITR 226 (MAD) 36. IN THE CASE OF SAKTHI CHARITIES (244 ITR 226) ( SUPRA), THE HON'BLE HIGH COURT HELD COMMISSIONER OF INCOME-TAX HAD NO JURISDICTION TO SET ASIDE THE ASSESSMENT ORDER MERE LY TO CONDUCT ANOTHER ENQUIRY TO REACH THE SAME RESULT WHICH WAS ARRIVED AT EARLIER. THE HON'BLE HIGH COURT FURTHER HELD THAT THOUGH IT IS NOT EXPECTED OF ITA.800 TO 802,962,977 TO 979, 1023 & 1024/B/09 PAGE - 29 THE COMMISSIONER OF INCOME-TAX TO RECORD HIS FINAL CONCLUSION IN THE ORDER PASSED IN REVISION, HE MUST AT LEAST INDICATE IN HIS ORDER HOW THE ORDER OF THE ITO IS ERRONEOUS AND PREJUDICIAL TO TH E INTERESTS OF THE REVENUE. 37. SUFFICE TO SAY THAT THE COMMISSIONER OF INCOME- TAX HAS INVOKED JURISDICTION IN THE INSTANT CASE MAINLY ON THREE POINTS AS MENTIONED ELSEWHERE IN THIS ORDER. FIRSTLY SOME OF THE FLATS AREA EXCEEDS THE LIMIT PRESCRIBED UNDER THE ACT I.E., 1, 500 SFT. WE HAVE ELABORATELY DISCUSSED THE ISSUE AND HELD THAT THE C ONCLUSION ARRIVED AT BY THE COMMISSIONER OF INCOME-TAX IS WITHOUT MERIT. 38. COMING TO THE SECOND AND THIRD POINTS, THAT IS THE LAND AND BUILDING SHOULD BE TREATED SEPARATELY FOR CALCULATI NG DEDUCTION U/S.80IB(10) AND MISCELLANEOUS RECEIPTS RESPECTIVEL Y ALSO, IN VIEW OF OUR ELABORATE DISCUSSIONS IN THE FOREGOING PARAGRAP HS, THE COMMISSIONER OF INCOME-TAX'S CONCLUSION IS WITHOUT MERIT. ON FACTS, ON THE ISSUE THAT LAND AND BUILDING SHOULD BE TREAT ED SEPARATELY, WE HAVE HELD THAT DEFINITELY THERE ARE TWO VIEWS POSSI BLE SINCE THERE IS NO DECIDED CASE. HENCE, THERE IS NO SCOPE FOR PROCEED INGS U/S.263 ON THIS POINT ALSO. ITA.800 TO 802,962,977 TO 979, 1023 & 1024/B/09 PAGE - 30 39. COMING TO THE POINT RELATING TO MISCELLANEOUS R ECEIPTS ON WHICH THE COMMISSIONER OF INCOME-TAX DIRECTED THE S AME TO BE EXCLUDED, ON FACTS IT IS THE CASE THAT THESE ARE TH E PAYMENTS COLLECTED FOR EXTRA WORK DONE FOR THE BUYERS, THOUGH IT IS NA MED AS 'MISCELLANEOUS EXPENDITURE'. IT IS NOTHING BUT A P ART OF THE PROJECT WORK. FOR THE REASONS STATED, WE SET ASIDE THE ORD ER OF THE COMMISSIONER OF INCOME-TAX U/S.263 IN THE CASE OF A LL THE ASSESSEES. APPEALS BY THE ASSESSEES ARE ALLOWED. ITA.962/BANG/2009 - C. GOPALAN - ASSESSMENT YEAR 20 05-06 : 40. THOUGH THE ASSESSEE HAS URGED AS MANY AS 11 GRO UNDS, IN FACT IT IS CONFINED TO TWO POINTS, NAMELY NON-ALLOWANCE OF DEDUCTION U/S.80IB(10) AND LEVY OF INTEREST U/S.234B AND 234C . 41. THE ASSESSEE'S REPRESENTATIVE RELIED ON THE DEC ISION OF THE ITAT, BANGALORE BENCH IN THE CASE OF M/S. GOPALAN E NTERPRISES (I) (P) LTD., VIDE ITA NO.395/BANG/2006 AND M/S. ACIT V . BENGAL AMBUJA HOUSING DEVELOPMENT LTD., IN ITA NOS.1735 & 1595/KOL/2005 (KOLKATA BENCH ITAT). 42. THE ISSUE IS DISCUSSED BY THE COMMISSIONER OF I NCOME-TAX(A) VIDE PARAS 3.1 TO 3.3 AS UNDER : ITA.800 TO 802,962,977 TO 979, 1023 & 1024/B/09 PAGE - 31 '3.1 GROUND NO.1 TO 4 : ALL THESE GROUNDS PERTAIN T O ELIGIBILITY OF DEDUCTION U/S.80IB(10) OF INCOME TAX ACT, 1961. THE AUTHORISED REPRESENTATIVE PLEADS THAT SIMILAR A DDITIONS WERE ALSO MADE IN THE RELATED CASE OF M/S. GOPALAN ENTERPRISES (INDIA) PVT. LTD., BY THE ASSESSING OFFICER BUT THE LEARNED COMMISSIONER OF INCOME-TAX(A) AND ALSO ITAT DECIDED THE CASE IN FAVOUR OF THE ASSESSEE VIDE ITA NO.395/BANG /2006 DT.24.10.2008 WHICH WAS ALLOWED BY THE COMMISSIONER OF INCOME-TAX(A) AND ALSO ITAT. COPIES OF THE ORDERS WERE PLACED ON RECORD WHICH WERE PERUSED. A FURTHER CAS E LAW, VIZ., M/S. G R DEVELOPERS V. DCIT, CIRCLE -3(1), BANGALOR E IN ITA NO.668 & 669/BANG/2006 DT.5.2.2009 FILED BY THE AUT HORISED REPRESENTATIVE WAS ALSO PERUSED. 3.2 I FIND DIFFERENCE IN FACTS OF THE CITED CASES A ND THE CASE ON HAND. IN THE CASE OF M/S. G. R. DEVELOPERS, THE ISSUE WAS WHETHER THE EXEMPTION U/S.80IB IS AVAILABLE TO A PR OJECT WHICH IS IN MAJOR WAY RESIDENTIAL AND A SMALL PORTION OF IT INVOLVES COMMERCIAL CONSTRUCTION? THE ASSESSING OFFICER AND THE COMMISSIONER OF INCOME-TAX(A) HELD, IN THAT CASE, T HAT SUCH EXEMPTION IS AVAILABLE PURELY TO HOUSING PROJECTS I NVOLVING ONLY RESIDENTIAL UNITS. THE LEARNED TRIBUNAL HELD THAT PROPORTIONAL EXEMPTION COULD BE MADE AVAILABLE TO T HE ASSESSEE U/S.80IB(10) OF INCOME TAX ACT. IT IS OBS ERVED THAT THE FACTS OF GOPALAN ENTERPRISES THE OTHER CITED CASES DIFFER FROM THE FACTS OF THE CASE ON HAND THOUGH SIMILAR IN ONE WAY THAT LIKE THE CASE OF THE APPELLANT, OCCUPANTS OF FLATS BELOW THE TERRACE MADE CONSTRUCTION ON TERRACE FOR HABITABLE USAGE BU T THE DIFFERENCE LIES IN THE NATURE OF CONSTRUCTION AND I TS USAGE. IN THE CASE OF GOPALAN ENTERPRISES, THE CONSTRUCTIONS WERE FOUND ITA.800 TO 802,962,977 TO 979, 1023 & 1024/B/09 PAGE - 32 TO BE TEMPORARY STRUCTURE OF TILED ROOFING OVER THE TERRACE FLOOR FOR OCCUPANTS BELOW TO SHIELD THEM FROM SUN AND RAI N AND THEREFORE THE LEARNED COMMISSIONER OF INCOME-TAX(A) AS WELL AS THE ITAT HELD THAT SUCH TEMPORARY STRUCTURES CAN NOT BE ADDED TO THE BUILT-UP-AREA SANCTIONED BY BDA AND TH EREFORE HELD THAT THE BUILT-UP-AREA IS LESS THAN 1500 SQFT AND THUS ALLOWED THE RELIEF U/S.80IB(10) OF I.T.ACT. BUT IN THE CASE ON HAND, THE ASSESSING OFFICER HAS GIVEN A SPECIFIC FI NDING THAT ALL THE OCCUPANTS OF THE FLAT BELOW THE TERRACE HAVE CO NSTRUCTED PERMANENT STRUCTURES TO BE USED AS PENT HOUSE WITH SINGLE BED ROOM BESIDES CONSTRUCTING PROJECTIONS FOR EXCLUSIVE USE BY THEM VIDE PAGE 4 OF THE ASSESSMENT ORDER, THUS EXCEEDING THE PRESCRIBED LIMIT OF 1500 SQFT PER RESIDENTIAL UNIT. IN VIEW OF THE ABOVE FINDING OF FACT, NOT EVEN DISPUTED BY THE AUT HORIZED REPRESENTATIVE. I SEE NO REASON TO ALLOW THE APPEA L ON THIS GROUND. 3.3 HOWEVER, THE AR PLEADED FURTHER THAT THE ASSESS ING OFFICER HAS ALLOWED THE CLAIM OF THE APPELLANT IN J UST THE PRECEDING YEAR I.E. IN ASSESSMENT YEAR.2004-05 AND FACTS BEING SIMILAR, A DIFFERENT VIEW TAKEN BY THE SUCCESSOR IS WRONG AND UNJUSTIFIED. HOWEVER, FROM RECORDS, I FIND THAT TH E ASSESSMENT OF ASSESSMENT YEAR.2004-05 HAS BEEN SET ASIDE BY TH E COMMISSIONER OF INCOME-TAX U/S.263 OF I.T.ACT FOR D OING IT DENOVO AND THEREFORE THE ARGUMENT OF SIMILAR FACTS AND HENCE DELETION IS NOT SUSTAINABLE. THE CASE LAWS CITED B Y THE A.R. OF KARNATAKA AND MADRAS HIGH COURTS ARE ALSO NOT APPLI CABLE BECAUSE THE SITUATION AND FACTS WHEN ASSESSMENT OF ASSESSMENT YEAR.2004-05 WAS COMPLETED HAS CHANGED AFTER IT BEI NG RIPPED ITA.800 TO 802,962,977 TO 979, 1023 & 1024/B/09 PAGE - 33 OPEN U/S.263 OF I.T.ACT. I CONFIRM THE ADDITION AN D DISMISS THE GROUNDS OF APPEAL.' READING OF THE ABOVE MAKES IT CLEAR THAT THE PLEA O F THE ASSESSEE'S REPRESENTATIVE THAT FOR EARLIER YEARS ON IDENTICAL FACTS THE ISSUE WHICH WAS DECIDED IN ASSESSEE'S FAVOUR WAS REJECTED HOLDI NG THAT THE COMMISSIONER OF INCOME-TAX HAS INVOKED THE JURISDIC TION U/S.263 FOR 2004-05. 43. THE ASSESSEE'S PLEA THAT THE JURISDICTIONAL HIG H COURT AND MADRAS HIGH COURT DECISION IN THE CASE OF COMMISSIO NER OF INCOME- TAX V. L. G. RAMAMURTHI & OTHERS (SUPRA) WAS ALSO R EJECTED BY THE COMMISSIONER OF INCOME-TAX(A) HOLDING THAT AFTER IN VOKING OF THE JURISDICTION BY THE COMMISSIONER OF INCOME-TAX U/S. 263, THE FACTS HAS UNDERGONE CHANGE. SUFFICE TO SAY THAT WE HAVE DEAL T WITH THE ORDER OF THE COMMISSIONER OF INCOME-TAX U/S.263 FOR THE ASSE SSMENT YEAR 2004-05 AND THE SAME HAS BEEN SET ASIDE AS BEYOND S COPE OF SECTION 263. THEREFORE, APPEAL BY THE ASSESSEE ON THIS POI NT DESERVES TO BE ALLOWED. ITA.800 TO 802,962,977 TO 979, 1023 & 1024/B/09 PAGE - 34 44. THE OTHER ISSUE RELATING TO LEVY OF INTEREST U/ S.234B AND 234C ARE ONLY CONSEQUENTIAL. THE ASSESSING OFFICER MAY GIVE CONSEQUENTIAL RELIEF. ITA NOS.977, 978 & 979/BANG/2009 - M/S. GOPALAN ENT ERPRISES, M/S. PRAMOD & OTHERS & MRS. VASANTHA KUMARI : 45. SINCE THE ISSUES INVOLVED IN THESE APPEALS ARE IDENTICAL TO ITA.962/BANG/2009, WHICH WE HAVE DEALT IN PARAS 37 TO 41 ABOVE, FOLLOWING THE SAME, WE ALLOW THE APPEALS OF THE ASS ESSEES. 46. IN THE RESULT, ITA NOS.800 TO 802, 1023 & 1024/ BANG/2009 ARE ALLOWED AND ITA NOS.962, 977 TO 979/BANG/2009 ARE A LSO ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 10TH DAY OF FEBRU ARY, 2010. SD/- SD/- (A. MOHAN ALANKAMONY) (K. P. T. THANGAL) ACCOUNTANT MEMBER VICE PRESIDENT BANGALORE DATED : 10TH FEBRUARY, 2010 MCN* COPY TO: 1. THE ASSESSEE 2. THE ASSESSING OFFICER 3. THE COMMISSIONER OF INCOME-TAX 4. COMMISSIONER OF INCOME-TAX(A) 5. DR 6. GF, ITAT, NEW DELHI 7. GF, ITAT, BANGALORE