Kasturi Housing & Construction Pvt. Ltd., Pune V. ITO, Wd.-11(3), Pune

ITA 902/PUN/2011

• Counselvise Citation: 90224514 RSA 2011
• Duration Of Justice: 3 year(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 03-10-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 23-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE
• Assessee Lawyers: V L JAIN
• Keywords: Opportunity of being heard

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 M.A. NO.66/PN/2014 ARISING OUT OF ITA NOS.901 & 902/PN/2011 (A.YS: 2002-03 & 2003-04) KASTURI HOUSING & CONSTRUCTION PVT. LTD., 1, ADAMS COURT, 2 ND FLOOR, OPP. HOTEL MAHABLESHWAR, BANER ROAD, PUNE - 411045 PAN: AABCK8526H APPLICANT VS. ITO, WARD 11(3), PUNE RESPONDENT ITA NOS.901 & 902/PN/2011 (A.YS: 2002-03 & 2003-04) KASTURI HOUSING & CONSTRUCTION PVT. LTD., 1, ADAMS COURT, 2 ND FLOOR, OPP. HOTEL MAHABLESHWAR, BANER ROAD, PUNE - 411045 PAN: AABCK8526H APPLICANT VS. ITO, WARD 11(3), PUNE RESPONDENT APPLICANT BY : SHRI V.L. JAIN RESPONDENT BY : SHRI S.P. WALIMBE DATE OF HEARING : 27-06-2014 DATE OF PRONOUNCEMENT : 27-06-2014 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS MISCELLANEOUS APPLICATION HAS BEEN MOVED BY T HE ASSESSEE ARISING OUT OF ORDER OF THE TRIBUNAL IN IT A NOS.901 & 902/PN/2011 DATED 31-10-2012. MA NO.66/PN/14 ARISING OUT OF ITA NOS.901 & 902 KASTURI HOUSING & CONSTRUCTION PVT. LTD. 2. THE ASSESSEE, INTER ALIA, HAS SUBMITTED THAT THE TRIBUNAL HAS DECIDED THE ISSUE BY OBSERVING AS UNDER: FACTS BEING IDENTICAL, SO FOLLOWING THE AFORESAID ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE (SUPRA), WE HOL D THAT THE CIT(A) WAS NOT JUSTIFIED IN RESTRICTING TH E CLAIM U/S 80-IB(10) OF THE ACT PRO RATA WITH REFERENCE TO THE ELIGIBLE UNITS. SIMILARLY THE CIT(A) WAS JUSTIFIED IN ALLOWING THE PROPORTIONATE DEDUCTION U/S 80-IB(10) OF THE ACT IN VIEW OF THIS ISSUE IS DECIDED IN FAVOUR OF ASSESSEE AND THE AO IS DIRECTED TO COMPUTE ELIGIBLE PROFIT AFTER PROVIDING OF OPPORTUNITY OF BEING HEAR D TO ASSESSEE AND ALLOW CLAIM ACCORDINGLY. 3. THE LEARNED AUTHORIZED REPRESENTATIVE SUBMITTED THAT CERTAIN DECISIONS RELIED ON BY THE ASSESSEE HAVE NO T BEEN CONSIDERED BY THE TRIBUNAL WHICH ARE AS UNDER: A) GV CORPORATION (133 TTJ 178) (MUM) B) MAGARPATTA TOWNSHIP DEVELOPMENT & CONSTN.CO. (ITA NO.822/PUN/2011) C) KRUTI CONSTRUCTIONS (ITA NO.1031/PUN/2011) D) CITY DEVELOPMENT CORPORATION (ITA NO.1489/PUN/ 2009) 4. THE STAND OF THE ASSESSEE HAS BEEN THAT BASICALL Y THE ASSESSEE HAS SUBMITTED THAT THE ISSUE OF JOINED FLA TS HAS NOT BEEN APPRECIATED AS PER DECISIONS RELIED ON BY THE ASSESSEE. NON CONSIDERATION OF CASES RELIED ON BY THE ASSESSE E ON THE ISSUE AT HAND IS A MISTAKE APPARENT ON THE RECORD. ACCORDINGLY, WE RECALL OUR ORDER ON THIS POINT. 5. HAVING RECALLED THESE APPEALS, LET US DECIDE THI S ISSUE ON MERIT. THE ISSUE CLAIMS TO BE NOT APPRECIATED A S PER CASES RELIED ON BY THE ASSESSEE AS FAR AS ALLOWABIL ITY OF CLAIM OF DEDUCTION U/S.80IB(10) OF THE ACT IS CONCERNED W ITH REGARD TO JOINED FLATS. THE STAND OF THE ASSESSEE HAS BEE N THAT THE FLATS HAVE BEEN JOINED BY THE PURCHASERS, NOT BY TH E ASSESSEE. IT IS PERTINENT TO MENTION HERE THAT THE TRIBUNAL HAS DECIDED THE APPEAL BY FOLLOWING THE ASSESSEES OWN CASE MA NO.66/PN/14 ARISING OUT OF ITA NOS.901 & 902 KASTURI HOUSING & CONSTRUCTION PVT. LTD. FOR A.Y. 2004-05, BUT WHILE DECIDING THE APPEAL FOR THE YEARS UNDER CONSIDERATION, CERTAIN OTHER DEVELOPMENTS HAV E TAKEN PLACE IN TERMS OF CERTAIN DECISIONS OF THE TRIBUNAL ON THE ISSUE WHICH WERE NOT TAKEN INTO CONSIDERATION. THE SE FACTS NEED DEEP PROBE INTO THE MATTER. SO, THE ISSUE OF ALLOWABILITY OF DEDUCTION WITH REGARD TO FLATS CLAIMED TO BE JOI NED BY THE PURCHASERS HAS TO BE APPRECIATED AS PER FACT AND LA W. 6. SO, IN THE INTEREST OF JUSTICE, WE RESTORE THIS ISSUE TO THE ASSESSING OFFICER WITH A DIRECTION TO DECIDE THE MA TTER AS PER FACT AND LAW AND AFTER PROVIDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS ALLOWED AND THE APPEALS IN ITA NOS.901 & 902/PN/11 ARE ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS THE DAY 27 TH OF JUNE, 2014. SD/- SD/- (R.K. PANDA) (SHAILENDRA KUMAR YA DAV) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED 27 TH JUNE, 2014 GCVSR COPY TO:- 1) ASSESSEE 2) DEPARTMENT 3) THE CIT(A)-I, PUNE 4) THE CIT-I, PUNE 5) THE DR, B BENCH, I.T.A.T., PUNE. 6) GUARD FILE BY ORDER //TRUE COPY// SENIOR PRIVATE SECRETARY, ITAT, PUNE.