DCIT, Cir.-3, Pune V. M/s. P.V.Madhadkar & associates, Pune

ITA 826/PUN/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9736 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-08-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 09-08-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 13-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJEEV HARIET

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.826/PN/2011 (ASSTT. YEAR : 2008-09) DCIT, CIRCLE-3, PUNE. .. APPELLANT VS. P.V.MADHADKAR & ASSOCIATES, 127/7/B, PALLAVI HOUSE, GANGOTE PATH, PUNE. .. RESPONDENT PAN: AAHFP7331E APPELLANT BY : SHRI RAJEEV HARIET RESPONDENT BY : SHRI NIKHIL PATHAK DATE OF HEARING : 09.08.2012 DATE OF PRONOUNCEMENT : 22.08.2012 ORDER PER SHAILENDRA KUMAR YADAV, JM : THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF THE CIT(A) DATED 17.03.2011, ON THE FOLLOWING GROUN DS: 01. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME -TAX (APPEALS) IS CONTRARY TO LAW AND TO THE FACTS AND CIRCUMSTANCES OF THE CASE. 02. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEAL S) ERRED IN DELETING THE ADDITION OF 39,80,772/- MADE BY THE ASSESSING OFFICER BY WAY OF DISALLOWING THE ASSESSE E'S CLAIM OF DEDUCTION U/S.80-IB(10) OF THE INCOME-TAX ACT, 1961 INSTEAD OF CONFIRMING SUCH ADDITION. 03. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEAL S) FAILED TO APPRECIATE THE FACT THAT THE ASSESSEE'S P ROJECT WAS PART OF THE PROJECT UNDERTAKEN BY SMT. SUNITA MAHAD KAR 2 AND THAT SINCE THE SAID PROJECT WAS SANCTIONED BEFO RE 01.10.1998 AND HAD NOT BEEN COMPLETED BY 31/03/2008 , THE ASSESSEE WAS NOT ELIGIBLE FOR DEDUCTION U/S 80- IB(10). 04. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEARNED CIT(APPEALS) FAILED TO APPRECIATE THE FACT THAT IN THE AUDIT REPORT IN FORM 10CCB APPENDED TO THE RETURN OF INCOME, AT CLAUSE 9, THE ASSESSEE HAD SHO WN THE INITIAL ASSESSMENT YEAR FOR CLAIM OF DEDUCTION AS A .Y. 2004-05. ALSO, AT CLAUSE 23(A), DATE OF APPROVAL BY LOCAL AUTHORITY WAS MENTIONED AS 17.05.2002. THUS THE AUD IT REPORT IN ITSELF SUBSTANTIATES THE DEPARTMENT'S STA ND THAT THE PROJECT WAS STARTED BEFORE THE YEAR 2004. 05. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEARNED CIT(APPEALS) FAILED TO APPRECIATE THE FACT THAT THE COMMENCEMENT CERTIFICATE ISSUED EARLIER AS WELL AS THE SUBSEQUENT APPROVALS OF PLAN WERE IN THE NAM E OF SMT. SUNITA MAHADKAR AND THAT THE NAME OF THE ASSES SEE FIRM NOWHERE APPEARS IN ANY OF THE PLANS APPROVED O R THE COMMENCEMENT CERTIFICATE ISSUED BY THE PMC. 06. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEARNED CIT(APPEALS) ERRED IN NOT APPRECIA TING THE FACT THAT THE ASSESSEE, IN ITS SUBMISSION BEFORE TH E CIT(APPEALS), HAS STATED THAT AFTER THE SAID AREA W AS COVERED WITHIN THE LIMITS OF PMC, IN 2001, THE ORIG INAL PLAN OBTAINED BY SMT. MAHADKAR WAS REVISED AND INSTEAD O F TWO BUILDINGS PROPOSED IN THE ORIGINAL PLAN, ONLY O NE BUILDING WAS PROPOSED TO BE CONSTRUCTED IN THE REVI SED PLAN AND THAT AFTER TRANSFER OF THE SAID PLOT TO TH E ASSESSEE BY SMT.MAHADKAR IN 2004, BUILDING PLAN WAS SANCTION ED FOR ONLY ONE BUILDING AND COMMENCEMENT CERTIFICATE FOR THE SAME WAS OBTAINED WHICH PROVES THAT THE ASSESSEE IT SELF ADMITS THAT ITS PLAN APPROVED IN 2004 WAS SANCTIONE D IN CONTINUATION OF THE REVISED PLAN SANCTIONED IN 2001 WHEN THE OWNERSHIP OF THE ENTIRE PLOT VESTED WITH SMT. MAHADKAR. 07. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT (APPEALS) ERRED IN NOT APPRECI ATING THE FACT THAT THE ASSESSEE CLAIMS ITS PROJECT TO BE TOT ALLY INDEPENDENT ONE AND NOT AS A PART OF THE ORIGINAL P ROJECT STARTED BY SMT. MAHADKAR, EVEN WHILE CONTINUING TO NAME ITS BUILDING AS 'A 4' AS HAD BEEN PROPOSED IN THE O RIGINAL PLAN. 2. AT THE OUTSET OF HEARING, THE LD. AUTHORISED REP RESENTATIVE STATED THAT THIS CASE IS COVERED BY THE ORDER OF IT AT PUNE BENCH IN 3 THE ASSESSEES OWN CASE FOR A.Y. 2006-07 IN ITA.NO. 1117/PN/2010 WHEREIN TRIBUNAL HAS DECIDED SIMILAR ISSUE BY OBSER VING AS UNDER: 6. AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND TH E MATERIAL ON RECORD, WE FIND THAT IT IS UNDISPUTED THAT THE O RIGINAL KEY PLAN WAS SUBMITTED ON 1-10-1998. THE SAID PROJECT W AS SANCTIONED IN THE NAME OF SMT SUNITA MAHADKAR WITH REGARDS TO WHOLE OF LAND IN QUESTION AND THE SAID KEY PLAN WAS REVISED ON 8-1-2001. SUBSEQUENT TO THIS, THE ASSESSEE ENTER ED INTO DEVELOPMENT RIGHTS WITH REGARDS TO THE PROJECT IN Q UESTION AND THE SAID DEVELOPMENT RIGHT OF THE LAND ITSELF WAS A CQUIRED BY THE ASSESSEE ON 2-8-2004. PLOT OF THIS DEVELOPMENT RIGHT WAS PART OF KEY PLAN SUBMITTED ON 1-10-998 AS MENTIONED ABOVE. SUBSEQUENTLY, THE BUILDING PLAN/COMMENCEMENT CERTIF ICATE WAS GRANTED BY THE PMC ON 8-10-2004. THE DATE OF 8- 1-2001 WAS MERELY THE DATE WHEN MRS. SUNITA MAHADKAR, THE ORIGINAL OWNER OF THE LAND HAD GOT HER REVISED ITS LAYOUT PL AN AFTER THE SAID AREA WAS INCLUDED WITHIN THE PMC LIMITS. AS TH E ASSESSEE HAD GOT THE BUILDING PLAN APPROVED ON 8-10-2004 AS DISCUSSED ABOVE, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 80IB(10)(A)(II) OF THE ACT THE TIME WAS AVAILABLE U PTO 31-3-2009 FOR COMPLETION OF THE PROJECT WHICH IS EVIDENT FROM THE COMPLETION CERTIFICATE ISSUED BY THE PMC ON 3-7-200 8. THIS FACT HAS NOT BEEN DISPUTED BY THE REVENUE AUTHORITI ES, BECAUSE THE ASSESSING OFFICER HIMSELF MADE AN INQUIRY DIREC TLY WITH THE PMC VIDE HIS LETTER DATED 12-12-2008. LAYOUT/KEY PL AN DATED 1-10-1998 WAS IN RESPECT OF WHOLE PROPERTY OF EARLI ER OWNER SMT. SUNITA MAHADKAR. LAY OUT PLAN/KEY PLAN IS DIFF ERENT FROM SANCTION OF PLAN AND COMMENCEMENT THEREOF. ASSESSEE ENTERED INTO DEVELOPMENT AGREEMENT DATED 2-8-2004 WITH REGA RDS TO PORTION OF PROPERTY OF SMT. SUNITA MAHADKAR. SO THE RE IS NO QUESTION OF ANY SANCTION AND COMMENCEMENT PRIOR TO IT. THE COMMENCEMENT TOOK PLACE ON THIS PROPERTY OF ASSESSE E ADMEASURING 52245 SQ.FT. OUT OF HOLDING OF SMT. SUN ITA MAHADKAR ACQUIRED BY ASSESSEE VIDE DEVELOPMENT AGRE EMENT DATED 28-2004. SO, THERE WAS NO QUESTION OF COMMENC EMENT PRIOR TO 2-8-2004. THE DATE OF LAYOUT OF PREVIOUS O WNER I.E. 1-10-1998 SHOULD NOT BE CONFUSED WITH DATE OF SANCT ION OF PLAN AND COMMENCEMENT THEREOF AS HELD IN THE CASE O F ADITYA DEVELOPERS (SUPRA). CONSIDERING ALL THE FACTS AND CIRCUMSTANCES, WE ARE NOT INCLINED TO INTERFERE WIT H THE FINDINGS OF THE CIT(A) WHO HAS DELETED THE ADDITION OF RS.32,30,904/- MADE BY THE ASSESSING OFFICER BY WAY OF DISALLOWING THE ASSESSEES CLAIM OF DEDUCTION U/S 8 0-IB(10) OF THE ACT. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. 4 NOTHING CONTRARY WAS BROUGHT TO OUR KNOWLEDGE ON BE HALF OF THE ASSESSEE. FACTS BEING SIMILAR, FOLLOWING THE SAME REASONING, THE APPEAL OF THE REVENUE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE 22 ND DAY OF AUGUST, 2012. SD/- SD/- ( R.K.PANDA ) ( SHAILENDRA KUMAR YAD AV ) ACCOUNTANT MEMBER JUDICIAL MEMBER GSPS PUNE, DATED THE 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.