M/s. Khinvasara Chavan Associates, Pune V. Income-tax Officer, Ward-11(4), Pune

ITA 996/PUN/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 79743 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 23-08-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 05-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NO.996/PN/2011 (A.Y: 2007-08) M/S. KHINVASARA CHAVAN ASSOCIATES 22, MUKUND NAGAR, PUNE 411037 PAN: AAEFK7548R APPELLANT VS. ITO, WARD 11(4), PUNE RESPONDENT APPELLANT BY : SHRI S.N. P URANIK RESPONDENT BY : SHRI S.P . WALIMBE DATE OF HEARING: 16.04.2014 DATE OF ORDER : 28.04.2014 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX(APPEAL)-I, [IN SHORT CIT(A)] PUNE, DATED 27.01.2011 FOR A.Y. 2007-08 ON THE FOLLOWING GROUNDS. 1. IN VIEW OF THE FACTS LOWER AUTHORITIES HAVE ERRED I N NOT ALLOWING DEDUCTION U/S 80IB, SAME MAY PLEASE BE ALL OWED. 2. LOWER AUTHORITIES HAVE ERRED IN REJECTING APPELLANT 'S CONTENTION THAT LAW AS APPLICABLE FOR THE YEAR IN W HICH PLANS ARE APPROVED HAS TO BE APPLIED AND NOT THE LA W AMENDED BY FINANCE ACT 2004. 3. LOWER AUTHORITIES HAVE ERRED IN REJECTING APPELLANT 'S CLAIM THOUGH ON STANDALONE BASIS, BUILDING B IS ELIGIBLE U/S 80IB(10). 4. LOWER AUTHORITIES HAVE ERRED IN REJECTING APPELLANT S CONTENTION THAT BUILDING B IS SEPARATE HOUSING PROJ ECT INDEPENDENTLY ELIGIBLE FOR DEDUCTION U/S 80IB(10). 2 5. APPELLANT PRAYS TO ADD, ALTER, AMEND, EXPLAIN, CLAR IFY AND/OR WITHDRAW THE GROUND /S AS AND WHEN OCCASION SO DEMANDS. 2. THIS IS REVENUES MATTER VIDE GROUND NO.4, WHICH READS AS UNDER: LOWER AUTHORITIES HAVE ERRED IN REJECTING APPELLAN T S CONTENTION THAT BUILDING B IS SEPARATE HOUSING PROJ ECT INDEPENDENTLY ELIGIBLE FOR DEDUCTION U/S 80IB(10) 3. AT THE OUTSET OF HEARING, IT WAS POINTED OUT THA T A SIMILAR ISSUE AROSE IN ASSESSEES OWN CASE FOR A.YS.2005-06 AND 2006-07 VIDE M.A. NOS.144 AND 145/PN/2013, DATED 23.10.2013 , WHEREIN, THE TRIBUNAL HAS DEALT AND DECIDED THE ISS UE IN FAVOUR OF ASSESSEE BY OBSERVING AS UNDER: 3. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES. ADMITTEDLY, WHILE DECIDING THE ISSUE OF ALLOWABILITY OF DEDUCTION U/S.80IB(10), WE FIND THE LD. COUNSEL FOR THE ASSESSEE HAS ARGUED THAT THE SECOND OBJECTION OF THE CIT(A) THAT BUILDING A AND B A RE NOT SEPARATE PROJECTS AS THEY ARE SANCTIONED BY A SINGL E PLAN AND COMMENCEMENT CERTIFICATION IS DECIDED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL IN THE CASE OF M/S. SUBHAS H F. BAFNA (SUPRA). THIS ASPECT WAS NOT CONSIDERED BY T HE TRIBUNAL IN THE OPERATIVE PORTION OF THE ORDER OF T HE TRIBUNAL. WE, THEREFORE, MODIFY PARA 5.2 OF THE OR DER OF THE TRIBUNAL WHICH SHOULD BE READ AS UNDER: '5.2 WE FURTHER FIND THE PLAN OF THE PROJECT IN THE INSTANT CASE IS APPROVED ON 22 ND MARCH, 2001. THEREFORE, IN VIEW OF THE DECISIONS OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF HIRANANDANI AKRUTI JV REPORTED IN 39 SOT 498, IN THE CASE OF SA ROJ SALES ORGANIZATION FOR A.Y. 2005-06 AND IN THE CASE OF M/S. HAWARE CONSTRUCTIONS PVT. LTD. (SUPRA) AND THE VARIOUS OTHER DECISIONS RELIED ON BY THE LD. COUNSE L FOR THE ASSESSEE, WE ARE OF THE CONSIDERED OPINION THAT THE AMENDMENT AS INTRODUCED BY THE FINANCE ACT, 2004 W.E.F. 01-04-2005 CANNOT BE APPLICABLE TO THE ASSESSEE'S CASE SO AS TO DISENTITLE THE BENEFIT OF DEDUCTION U/S.80IB(10) OF THE ACT. FURTHER, IT IS T HE 3 SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE HAS CLAIMED THE BENEFIT OF DEDUCTION U/S.80IB(10) ONLY ON THE BUILDING WHICH IS RESIDENT IAL AND NOT ON THE BUILDING WHICH IS COMMERCIAL IN NATU RE. SO FAR AS THE OTHER OBJECTION OF THE LD.CIT(A) THAT BUILDING 'A' AND 'B' ARE NOT SEPARATE PROJECTS AS T HEY ARE SANCTIONED BY A SINGLE PLAN AND COMMENCEMENT CERTIFICATE, WE FIND THE ISSUE STANDS DECIDED IN FA VOUR OF THE ASSESSEE BY THE DECISION OF THE TRIBUNAL IN THE CASE OF MR. SUBHASH F. BAFNA (SUPRA) WHEREIN IT HAS BEEN HELD THAT AS LONG AS THOSE BLOCKS OF BUILDINGS CAN SATISFY THE CONDITIONS OF SECTION 80IB(10) ON A STA ND- ALONE BASIS DEDUCTION U/S.80IB(10) CANNOT BE DECLINED. UNDER THESE CIRCUMSTANCES, WE ARE OF THE CONSIDERED OPINION THAT THE REVENUE AUTHORITIES ARE NOT JUSTIFIED IN REJECTING THE CLAIM OF DEDUCTION U/S.80IB(10) OF THE ACT TO THE ASSESSEE ON THE RESIDENTIAL BUILDING. THE GROUND RAISED BY THE ASSE SSEE IS ACCORDINGLY ALLOWED.' 4. FACTS BEING SIMILAR, BY FOLLOWING THE DECISION O F M/S. SUBHASH F. BAFNA, ISSUE WAS DECIDED IN FAVOUR OF AS SESSEE BY OBSERVING THAT BOTH THE PROJECTS A AND B ARE NO T SEPARATE PROJECTS AS THEY ARE AS LONG AS THOSE BLOCKS OF BUI LDINGS CAN SATISFY THE CONDITIONS OF SECTION 80IB(10) ON THE S TAND ALONE BASIS DEDUCTION U/S.80IB(10) COULD NOT BE DENIED. UNDER THE FACTS AND CIRCUMSTANCES, THE REVENUE AUTHORITIES WERE NOT JUS TIFIED IN REJECTING THE CLAIM U/S.80IB(10) TO THE ASSESSEE ON RESIDENTIAL BUILDINGS. THE ASSESSING OFFICER IS DIRECTED ACCOR DINGLY. AS A RESULT, THE APPEAL FILED BY ASSESSEE IS ALLOWED. 5. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED. PRONOUNCED IN THE OPEN COURT ON THIS THE DAY 28 TH OF APRIL, 2014. SD/- SD/- (G.S. PANNU) (SHAILENDRA KUMAR YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED: 28 TH APRIL, 2014 GCVSR 4 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, I.T.A.T., PUNE