Khinvasara Chavan Associates, Pune V. ITO, Pune

MA 162/PUN/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1505 (ITAT-PUNE)
• Duration Of Justice: 7 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 10-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE
• 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 NO. 162/PN/2013 ARISING OUT OF ITA NO.996/PN/2011) (ASST.YEAR: 2007-08) KHINVASARA CHAVAN ASSOCIATES, 22, MUKUND NAGAR, PUNE. .. APPLICANT PAN NO. AAEFK 7548R VS. ITO, WARD-11(4), PUNE .. RESPONDENT APPLICANT BY : SHRI S.N.PURANIK RESPONDENT BY : SHRI S.P. WALIMBE DATE OF HEARING : 13-12-2013 DATE OF PRONOUNCEMENT : 08-01-2014 ORDER PER R.K.PANDA, AM : THE ASSESSEE THROUGH THIS MISCELLANEOUS APPLICATION REQUESTS THE TRIBUNAL TO RECALL THE ORDER OF THE TRIBUNAL FO R THE LIMITED PURPOSE OF ADJUDICATING GROUND OF APPEAL NO.4 RAISED BY THE ASSESSEE IN THE APPEAL WHICH HAS NOT BEEN ADJUDICATED BY THE TRIBUN AL. 2. THE LD. COUNSEL FOR THE ASSESSEE DREW THE ATTENT ION OF THE BENCH TO THE CONTENTS OF THE MISCELLANEOUS APPLICAT ION WHICH READ AS UNDER : IN ITA 966/PN/2011, HONBLE PUNE BENCH HAS PASSED THE ORDER ON 28-08-2012 GROUNDS RAISED IN APPEAL WERE : 1. IN VIEW OF THE FACTS LOWER AUTHORITIES HAVE ERR ED IN NOT ALLOWING DEDUCTION U/S 80IB, SAME MAY PLEASE ALLOWED. 2. LOWER AUTHORITIES HAVE ERRED IN REJECTING APPE LLANT'S CONTENTION THAT LAW AS APPLICABLE FOR THE YEAR IN WHICH PLANS ARE APPROVED HAS TO BE APPLIED AND NOT THE LAW AMENDED BY FINANC E ACT 2004. 2 3. LOWER AUTHORITIES HAVE ERRED IN REJECTING APPE LLANT'S CLAIM THOUGH ON STANDALONE BASIS, BUILDING B IS ELIGIBLE U/S. 80 IB (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) . HONORABLE BENCH HAS ALLOWED THE APPELLANTS CLAIM U/ S.80IB (10) AS APPELLANTS PROJECT IS APPROVED MUCH PRIOR T O AMENDMENT TO SECTION 80IB (10) BY FINANCE (NO 2) AC T 2004, AND INSERTION OF SUB SECTION (D) TO SECTION 80IB(10 ) AND SAID SUBMISSION IS NOT APPLICABLE TO THE PROJECT. HOWEVE R HONORABLE BENCH HAS NOT ADJUDICATED GROUND NO 4.: LOWER AUTHORITIES HAVE ERRED IN REJECTING APPELLANT 'S CONTENTION THAT BUILDING B IS SEPARATE HOUSING PROJECT, INDEPENDENT LY ELIGIBLE FOR DEDUCTION U/S. 80IB (10). NON ADJUDICATION OF THE GROUND IS MISTAKE APPARENT FROM RECORD RECTIFIABLE U/S. 254(2). APPLICANT THEREFORE HU MBLY REQUESTS THE BENCH TO KINDLY RECALL FOR THE LIMITED PURPOSE OF ADJUDICATION OF THE SAID GROUND. THE LD. COUNSEL FOR THE ASSESSEE REFERRING TO THE A BOVE SUBMITTED THAT SINCE GROUND OF APPEAL NO.4 HAS NOT BEEN ADJUDICATE D BY THE TRIBUNAL, THEREFORE, THE APPEAL MAY BE RECALLED FOR THE LIMIT ED PURPOSE OF ADJUDICATING GROUND OF APPEAL NO.4. 2.1 THE LD. DEPARTMENTAL REPRESENTATIVE HAS NO OBJE CTION FOR THE ABOVE. 3. AFTER HEARING BOTH THE SIDES, WE FIND GROUND OF APPEAL NO.4 RAISED BY THE ASSESSEE HAS NOT BEEN ADJUDICATED BY THE TRIBUNAL INADVERTENTLY. NON-ADJUDICATION OF A GROUND SPECIF ICALLY TAKEN BY THE ASSESSEE IS A MISTAKE APPARENT FROM RECORD RECTIFIA BLE U/S.254(2) OF THE I.T. ACT. WE, THEREFORE, RECALL THE ORDER OF THE T RIBUNAL FOR THE LIMITED PURPOSE OF ADJUDICATING GROUND OF APPEAL NO.4. THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ACCORDINGLY AL LOWED. 3 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS ALLOWED PRONOUNCED IN THE OPEN COURT ON 08-01-2014. SD/- SD/- (SHAILENDRA KUMAR YADAV) (R.K. PAND A) JUDICIAL MEMBER ACCOUNTANT MEMBER SATISH PUNE DATED : 08 TH JANUARY 2014. 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 BENCHES, PUNE