M/s. Khinvasara Chavan Associates, Pune V. Income-tax Officer, Pune

MA 145/PUN/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1203 (ITAT-PUNE)
• Duration Of Justice: 5 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-10-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2006-2007
• Appeal Filed On: 10-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MODI
• Section: 80IB

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 MA NOS. 144 AND 145/PN/2013 ARISING OUT OF ITA NOS.1193/PN/2008 AND 1397/PN/201 0) (ASST.YEARS : 2005-06 AND 2006-07) M/S. KHINVASARA CHAVAN ASSOCIATES, 22, MUKUND NAGAR, PUNE-411037 .. APPLICANT PAN NO. AAEFK7548R VS. ITO, WARD-11(4), PUNE .. RESPONDENT APPLICANT BY : SHRI S.N. PURANIK RESPONDENT BY : SHRI A.K. MODI DATE OF HEARING : 18-10-2013 DATE OF PRONOUNCEMENT : 23-10-2013 ORDER PER R.K.PANDA, AM : THE ASSESSEE THROUGH THE ABOVE MISCELLANEOUS APPLIC ATIONS REQUESTS THE TRIBUNAL FOR THE LIMITED PURPOSE OF ADJUDICATIO N OF AN ISSUE WHICH WAS NOT DECIDED BY THE TRIBUNAL. 2. THE LD. COUNSEL FOR THE ASSESSEE REFERRING TO TH E IDENTICAL WORDINGS IN BOTH THE MISCELLANEOUS APPLICATIONS DREW THE ATTENT ION OF THE BENCH TO THE FACTS NARRATED IN THE MISCELLANEOUS APPLICATIONS WH ICH READ AS UNDER : HONOURABLE BENCH HAS ALLOWED THE APPELLANTS CLAIM U/ S.80IB(10) AS APPELLANT'S PROJECT IS APPROVED MUCH PRIOR TO AMENDME NT TO SECTION 80IB (10) BY FINANCE (NO. 2) ACT 2004, AND INSERTION OF SU B SECTION (D) TO SECTION 80IB(10) AND SAID SUBMISSION IS NOT APPLICABLE TO THE PR OJECT. HOWEVER IT APPEARS, HONOURABLE BENCH HAS NOTED THE SUBMISSION OF T HE APPELLANT (ON PAGE 4 LAST LINE, CONTINUED ON PAGE 5) 'SO FAR AS THE SECOND OBJECTION OF THE LD. CIT(A) T HAT BUILDING 'A' & 'B' ARE NOT SEPARATE PROJECT AS THEY ARE SANCTIONED BY THE SINGLE PLAN AND COMMENCEMENT CERTIFICATE, THE ID. COUNSEL FOR THE A SSESSEE SUBMITTED THAT ISSUE IS ALSO COVERED IN FAVOUR OF ASSESSEE BY DECISION OF PUNE BENCH 2 OF ITAT IN CASE OF MR. SUBHAS F. BAFNA VS ITO VIDE ITA NO 533/PN/2007 FOR A. Y. 2003-04 ORDER DATED 21 ST AUGUST, 2009.' NON ADJUDICATION OF THE ABOVE ASPECT IS MISTAKE APPARE NT FROM RECORD RECTIFIABLE U/S.254(2). APPLICANT THEREFORE HUMBLY REQUESTS THE BENCH TO KIND LY RECALL FOR THE LIMITED PURPOSE OF ADJUDICATION OF THE SAID GROUND. 3. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES. ADMITTEDLY, WHILE DECIDING THE ISSUE OF ALLOWABILIT Y OF DEDUCTION U/S.80IB(10), WE FIND THE LD. COUNSEL FOR THE ASSES SEE HAS ARGUED THAT THE SECOND OBJECTION OF THE CIT(A) THAT BUILDING A AN D B ARE NOT SEPARATE PROJECTS AS THEY ARE SANCTIONED BY A SINGLE PLAN AN D COMMENCEMENT CERTIFICATION IS DECIDED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL IN THE CASE OF M/S. SUBHASH F. BAFNA (SUPRA). THIS ASPECT WAS NOT CONSIDERED BY THE TRIBUNAL IN THE OPERATIVE PORTION OF THE ORDER OF T HE TRIBUNAL. WE, THEREFORE, MODIFY PARA 5.2 OF THE ORDER 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 HIR ANANDANI AKRUTI JV REPORTED IN 39 SOT 498, IN THE CASE OF SAROJ SAL ES ORGANIZATION FOR A.Y. 2005-06 AND IN THE CASE OF M/S. HAWARE CONSTRU CTIONS PVT. LTD. (SUPRA) AND THE VARIOUS OTHER DECISIONS RELIED ON B Y THE LD. COUNSEL FOR THE ASSESSEE, WE ARE OF THE CONSIDERED OPINION THAT THE AMENDMENT AS INTRODUCED BY THE FINANCE ACT, 2004 W.E.F., 01-0 4-2005 CANNOT BE APPLICABLE TO THE ASSESSEES CASE SO AS TO DISENTIT LE THE BENEFIT OF DEDUCTION U/S.80IB(10) OF THE ACT. FURTHER, IT IS THE 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 WHIC H IS RESIDENTIAL 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 THEY ARE SANCTIONED BY A SINGL E PLAN AND COMMENCEMENT CERTIFICATE, WE FIND THE ISSUE STANDS DECIDED IN FAVOUR 3 OF THE ASSESSEE BY THE DECISION OF THE TRIBUNAL IN THE CASE OF MR. SUBHASH F. BAFNA (SUPRA) WHEREIN IT HAS BEEN HELD T HAT AS LONG AS THOSE BLOCKS OF BUILDINGS CAN SATISFY THE CONDITION S OF SECTION 80IB(10) ON A STAND-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 JUSTIF IED IN REJECTING THE CLAIM OF DEDUCTION U/S.80IB(10) OF THE ACT TO THE A SSESSEE ON THE RESIDENTIAL BUILDING. THE GROUND RAISED BY THE ASS ESSEE IS ACCORDINGLY ALLOWED. 4. IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATIO NS FILED BY THE ASSESSEE ARE ALLOWED. PRONOUNCED IN THE OPEN COURT ON THIS THE 23 RD DAY OF OCTOBER, 2013 SD/- SD/- (SHAILENDRA KUMAR YADAV) (R .K. PANDA) JUDICIAL MEMBER A CCOUNTANT MEMBER SATISH PUNE DATED: 23 RD OCTOBER 2013 COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. CIT(A)-I, PUNE 4. CIT-I, PUNE 5. THE D.R, B PUNE BENCH 6. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY ITAT, PUNE BENCH, PUNE