DCIT, Cir.-3, Pune V. Shri Mahesh Pandurang Bhagwat, Pune

ITA 824/PUN/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9723 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 07-08-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 13-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y K BHASKAR
• Assessee Lawyers: S N DOSHI
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER , AND SHRI R.K.PANDA, ACCOUNTANT MEMBER. ITA.NO.824/PN/2011 (ASSTT. YEAR : 2008-09) DCIT, CIRCLE-3, PUNE. .. APPELLANT VS. MAHESH PANDURANG BHAGWAT, 1007-1009, JANKI CORNER, SADASHIV PETH, PUNE. PAN: ABBPB2876P .. RESPONDENT APPELLANT BY : SHRI Y.K.BHASKAR RESPONDENT BY : SHRI S.N.DOSHI DATE OF HEARING : 07.08.2012 DATE OF PRONOUNCEMENT : 28.08.2012 ORDER PER SHAILENDRA KUMAR YADAV, JM : THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF THE CIT(A) ON THE POINT OF CLAIM OF DEDUCTION U/S.80IB( 10). THE CIT(A), FOLLOWING DECISION FOR A.Y. 2007-08 IN ASSESSEES O WN CASE HAS ALLOWED THE APPEAL IN FAVOUR OF THE ASSESSEE. SAME HAS BEE N OPPOSED BEFORE US. THE LD. AUTHORISED REPRESENTATIVE POINTED OUT THAT THE ISSUE AT HAND IN A.Y. 2007-08, WHICH HAS BEEN FOLLOWED BY CIT(A) HAS BEEN CONFIRMED BY THE TRIBUNAL BY OBSERVING AS UNDER: 4. HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL ON RECORD, WE FIND THAT THE ISSUE RAISED BY THE REV ENUE IN THIS APPEAL IS SQUARELY COVERED IN FAVOUR OF THE ASSESSE E, BY THE DECISION OF CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE O F M/S BUNTY BUILDERS (SUPRA). IN THE CASE OF M/S BUNTY BUILDER S (SUPRA) THERE WERE DEDUCTIONS MENTIONED FOR ROAD WIDENING AREA, O PEN SPACE, AREA UNDER INTERNAL ROADS, AMENITIES SPACES AND TRA NSFORMER AND THE NET AREA AFTER DEDUCTION CAME ONLY TO 2923.25 S Q. MTRS. THE TRIBUNAL ALSO RELIED UPON THE CBDT CIRCULAR NO. 5 O F 2005 DATED 15-7-2005 WHICH CONTAINED THE EXPLANATORY NOTES ON AMENDMENTS BROUGHT OUT BY THE FINANCE ACT (NO. 2) CITED IN 276 ITR 170 (STATUTE), WHEREIN THE GUIDELINES ISSUED WERE AS FO LLOWS: EXTENSION OF THE TIME LIMIT FOR OBTAINING APPROVAL OF HOUSING PROJECTS FOR THE PURPOSE OF TAX HOLIDAY UNDER SECTI ON 80-IB AND ALLOWING DEDUCTION FOR RE-DEVELOPMENT OR RECONS TRUCTION OF EXISTING BUILDING IN SLUM AREAS. 2 THIS SECTION DOES NOT SPECIFICALLY PROVIDE AREA LIM IT FOR THE GARDEN, THE DEVELOPMENT PLAN ROADS, INTERNAL MEANS OF ACCESS, ETC., IN THE HOUSING PROJECT. THEREFORE, T HE SAME SHOULD CONFORM TO THE PROJECT PLAN APPROVED BY THE LOCAL AUTHORITY IN ACCORDANCE WITH THE REGULATIONS IN FOR CE. ALSO, THE AREA LIMIT OF THE PLOT HAS TO BE CONSTRUED WITH REFERENCE TO THE AREA OF THE SITE ON WHICH THE HOUSING PROJECT I S CONSTRUCTED AND NOT WITH REFERENCE TO THE DEMARCATI ON OF LAND DONE BY THE LAND DEVELOPMENT AUTHORITY. 5. RESPECTFULLY FOLLOWING THE AFORESAID DECISION OF THE TRIBUNAL IN THE CASE OF BUNTY BUILDERS (SUPRA), WE HOLD THAT TH E ASSESSEE IS ENTITLED TO DEDUCTION U/S 80IB(10) OF THE ACT BASED ON THE AREA OF THE PLOT AS PER 7/12 EXTRACT BEING 4500 SQ. MTRS, W HICH IS MORE THAN THE MINIMUM STIPULATED AREA OF ONE ACRE (4047 SQ. MTRS). ACCORDINGLY, WE DIRECT THE AUTHORITIES BELOW TO ALL OW THE DEDUCTION U/S 80-IB(10) AS CLAIMED BY THE ASSESSEE. 2. NOTHING CONTRARY WAS BROUGHT TO OUR KNOWLEDGE BY REVENUE. THE FACTS BEING SIMILAR, FOLLOWING SAME REASONING, WE A RE NOT INCLINED TO INTERFERE WITH THE FINDING OF THE CIT(A) WHO HAS AL LOWED THE DEDUCTION U/S.80IB(10) BASED ON THE AREA OF PLOT AS PER 7/12 EXTRACT BEING 450 SQ. MT. WHICH IS MORE THAN MINIMUM STIPULATED AREA OF 1 ACRE (4047 SQ.MT.). SAME IS UPHELD. 3. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE 28 TH DAY OF AUGUST, 2012. SD/- SD/- ( R.K.PANDA ) ( SHAILENDRA KUMAR YAD AV ) ACCOUNTANT MEMBER JUDICIAL MEMBER GSPS PUNE, DATED THE 28 TH AUGUST, 2012. COPY OF THE ORDER IS FORWARDED TO: 1. THE ASSESSEE 2. THE DCIT, CIRCLE-3, PUNE. 3. THE CIT(A)-II, PUNE. 4. THE CIT-II, PUNE. 5. THE DR B BENCH, PUNE. 6. GUARD FILE. BY ORDER //TRUE COPY// PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE.