M/s. Kumar & Co., Pune V. Additional Commissioner of Income-tax,

MA 75/PUN/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3089 (ITAT-PUNE)
• Duration Of Justice: 10 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-05-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 15-05-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 30-06-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B C MALAKAR
• Keywords: Depreciation
• Section: 143(3); 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER MA NOS.75 & 76/PN/2014 (ARISING OUT OF ITA NOS.1651 & 1652/PN/2012) (ASSESSMENT YEARS : 2006-07 & 2007-08) M/S KUMAR COMPANY, KUMAR CAPITAL, 1 ST FLOOR, 2413, EAST STREET, PUNE 411 001. .. APPLICANT PAN NO.AABFK6106A VS. ADDL. COMMISSIONER OF INCOME TAX, RANGE 5, PUNE. .. RESPONDENT ASSESSEE BY : SHRI RAJENDRA AGIWAL REVENUE BY : SHRI B. C. MALAKAR DATE OF HEARING : 15-05-2015 DATE OF PRONOUNCEMENT : 22-05-2015 ORDER PER R.K.PANDA, AM : THE ASSESSEE HAS FILED TWO SEPARATE MISCELLANEOUS A PPLICATIONS REQUESTING THE TRIBUNAL TO RECALL THE COMMON ORDER OF THE TRIBUNAL PASSED ON 30.04.2014 FOR ASSESSMENT YEARS 2006-07 A ND 2007-08 ARISING OUT OF ITA NOS.1651 & 1652/PN/2012 AND DECIDE THE I SSUE AFRESH IN THE LIGHT OF CORRECT FACTUAL AND LEGAL POSITION. FOR T HE SAKE OF CONVENIENCE, BOTH THE MISCELLANEOUS APPLICATIONS WERE HEARD TOGE THER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER. MA NO.75/PN/2014 : 2. THE LD. COUNSEL FOR THE ASSESSEE REFERRING TO TH E MISCELLANEOUS APPLICATION SUBMITTED THAT THE ASSESSEE HAD TAKEN A GROUND BEFORE THE 2 TRIBUNAL REGARDING ALLOCATION OF INTEREST WHILE WOR KING OUT ELIGIBLE PROFITS FOR DEDUCTION UNDER SECTION 80-IB(10) OF TH E ACT. HE SUBMITTED THAT THE ASSESSING OFFICER IN THE ORDER PASSED UNDE R SECTION 143(3) OF THE ACT HAS APPORTIONED INTEREST EXPENSE OF RS.1,69 ,25,345/- BETWEEN ELIGIBLE 80-IB(10) PROJECTS AND NON-ELIGIBLE 80-IB( 10) PROJECTS AND REDUCED THE PROFITS FROM ELIGIBLE PROJECTS AND CONS EQUENTLY RECOMPUTED DEDUCTION UNDER SECTION 80-IB(10) OF THE ACT. 3. THE CIT(A) REJECTED THE GROUND OF APPORTIONMENT OF ENTIRE INTEREST TOWARDS NON-ELIGIBLE 80-IB(10) PROJECTS ON THE GROUND THAT THE FUND FLOW POSITION FOR ASSESSMENT YEAR 2007-08 AS P ER CLOSING WIP INDICATES THAT THERE WAS DEFICIT IN BOTH CATEGORIES OF PROJECTS. HE FURTHER NOTED THAT THE BUSINESS OF THE ASSESSEE IS COMPOSIT E AND BORROWED FUNDS ARE USED AS WORKING CAPITAL FOR EXECUTION OF VARIOU S CONSTRUCTION PROJECTS. SUCH INTEREST EXPENDITURE IS TREATED AS PERIOD COST AND DEBITED TO THE COMMON PROFIT & LOSS ACCOUNT AND NOT AS DIRE CT COST OF A PARTICULAR PROJECT. HE FURTHER NOTED THAT THE LOAN S WERE AVAILED AND UTILIZED FOR ALL THE PROJECTS AND THERE WAS NO ONE TO ONE LINKAGE BETWEEN BORROWED FUNDS AND THEIR DEPLOYMENT IN NON-ELIGIBLE 80-IB(10) PROJECTS. HE SUBMITTED THAT DURING THE COURSE OF H EARING BEFORE THE TRIBUNAL, THE ASSESSEE HAD SUBMITTED A NOTE DETAILI NG OUT THE MANNER OF THE PREPARATION AND MAINTENANCE OF ITS BOOKS OF ACC OUNT, WHICH READS AS UNDER :- IT IS SUBMITTED THAT THE APPELLANT MAINTAINS CONSOL IDATED ACCOUNTS. FURTHER, THE APPELLANT MAINTAINS PROJECT WISE DETAILS OF DIRECT EXPENSES AND INCOME SO AS TO ARRIVE AT THE PROJECT-WISE GROSS PROFIT (REFER PAGE 38 AND 100 OF THE FACTUAL PAPER 3 BOOK). APART FROM THE SAME, THE APPELLANT ALSO IDEN TIFIES THE PROJECT-WISE DETAILS OF DEBTORS/ CREDITORS, ADVANCE FROM FLAT HOLDERS AND T HE LISTING OF THESE DETAILS/ ITEMS ARE DISCLOSED IN THE AUDITED FINANCIALS. THE SAID C LASSIFICATION IS DONE AT THE TIME OF THE ENTERING INTO THE TRANSACTION ITSELF. FURTHER, IT IS ALSO SUBMITTED THAT PROJECTS WHEREIN THE APPELLANT HAS ENTERED INTO A JOINT VENTURE AGREEMENT WITH OTHER PARTY, SEPARATE SET OF BOOKS ARE MAINTAINED (REFER PAGE 105 OF THE FACTUAL PAPER BOOK). DURING THE YEARS UNDER CONSIDERATION, THE ADVANCES AND FUNDS RECEIVED BY THE APPELLANT DEPOSITED IN A COMMON BANK ACCOUNT OPENED BY THE APPELLANT FOR ADMINISTRATIVE CONVENIENCE. THROUGH THE SAID BANK A CCOUNT, THE PROJECT-WISE BORROWED FUNDS AND INTEREST CANNOT BE IDENTIFIED. T HEREFORE THE APPELLANT ONCE AGAIN REITERATES ITS STAND THAT NECESSITY OF BORROW ED FUNDS WHETHER SURPLUS/ DEFICIT HAS TO BE EXAMINED BASED ON THE FUNDFLOW STATEMENT SUBMITTED VIDE PAGE NO. 168 TO PAGE 171 OF THE FACTUAL PAPER BOOK. 4. HE SUBMITTED THAT ALTHOUGH IT WAS BROUGHT TO THE NOTICE OF THE TRIBUNAL, HOWEVER, THE TRIBUNAL DECIDED THE ISSUE A GAINST THE ASSESSEE. HE SUBMITTED THAT THERE SEEMS TO BE INACCURACY OCCU RRED IN THE ORDER OF THE TRIBUNAL DUE TO MIX-UP OF THE FACTS. HE SUBMIT TED THAT IT IS AN ACCEPTED FACT THAT THE ASSESSEE HAD SUFFICIENT OWNE D FUNDS BY WAY OF ADVANCE FROM CUSTOMERS IN 80-IB(10) PROJECTS AND AS SUCH NO FUNDS SPECIFICALLY HAVE BEEN BORROWED FOR THE PURPOSES OF THESE ELIGIBLE PROJECTS. FURTHER, THE BORROWED FUNDS WERE NEITHER TAKEN FOR ELIGIBLE PROJECTS NOR UTILIZED FOR THE CONSTRUCTION OF SUCH PROJECTS AND THEREFORE, THE LOWER AUTHORITIES HAVE ERRED IN APPORTIONING IN TEREST EXPENSES TO THE PROJECTS ELIGIBLE FOR DEDUCTION UNDER SECTION 80-IB (10) OF THE ACT. HE SUBMITTED THAT THE ASSESSEE HAS ALREADY DISCHARGED ITS ONUS REGARDING ACTUAL UTILIZATION OF INTEREST BEARING FUNDS FOR PA RTICULAR PROJECTS BY SUBMITTING THE DETAILED PROJECT-WISE CHART SUMMARIZ ING THE FUND FLOW POSITION. IN THE SAID CHARTS, THE PROJECT-WISE CUS TOMER ADVANCES HAVE ALSO BEEN MENTIONED AND THEREAFTER THE PROJECT-WISE SURPLUS AND DEFICIT WAS WORKED OUT. IT WAS FURTHER SUBMITTED THAT THE ACCOUNTS HAVE BEEN 4 AUDITED BY THE TAX AUDITOR AS WELL AS AUDIT REPORTS SUBMITTED FOR GRANT OF DEDUCTION UNDER SECTION 80-IB(10) OF THE ACT AND THE ASSESSING OFFICER HAS NOT RAISED OBJECTION REGARDING CORRECTN ESS AND COMPLETENESS OF ACCOUNTS. FURTHER, IT IS NOT CORRECT BEFORE THE TRIBUNAL TO HOLD THAT THE ONUS IS ENTIRELY ON THE ASSESSEE TO DEMONSTRATE THE ACTUAL UTILIZATION OF INTEREST BEARING FUNDS WHICH THE ASSESSEE ADMITS THAT UTILIZATION OF PROJECT-WISE BORROWED FUNDS AND INTEREST CANNOT BE IDENTIFIED FROM THE EXAMINATION OF COMMON BANK ACCOUNTS. THE LD. COUNS EL FOR THE ASSESSEE FURTHER SUBMITTED THAT VARIOUS DECISIONS W ERE CITED BEFORE THE TRIBUNAL AT THE TIME OF HEARING, HOWEVER, THESE ARE NOT CONSIDERED. THEREFORE, NON-CONSIDERATION OF THE DECISIONS CITED BEFORE THE TRIBUNAL CONSTITUTES A MISTAKE APPARENT FROM RECORD WITHIN T HE MEANING OF SECTION 254(2) OF THE ACT. HE ACCORDINGLY SUBMITTE D THAT THE ORDER OF THE TRIBUNAL SHOULD BE RE-CALLED AND THE ISSUE BE D ECIDED AFRESH IN THE LIGHT OF THE CORRECT FACTUAL AND LEGAL POSITION. 5. THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVE NUE, ON THE OTHER HAND, STRONGLY OPPOSED THE MISCELLANEOUS APPL ICATION FILED BY THE ASSESSEE. HE SUBMITTED THAT THE TRIBUNAL AFTER CON SIDERING THE FACTUAL ASPECTS AND THE SUBMISSIONS MADE BY THE LD. COUNSEL FOR THE ASSESSEE AT THE TIME OF HEARING HAS COME TO A FINDING WHICH IS AGAINST THE ASSESSEE. NOW, THE ASSESSEE THROUGH THIS MISCELLANEOUS APPLIC ATION REQUESTS THE TRIBUNAL TO RECALL THE ORDER WHICH AMOUNTS TO REVIE W OF ITS OWN ORDER BY THE TRIBUNAL WHICH IS NOT PERMISSIBLE IN THE LAW. HE ACCORDINGLY, 5 SUBMITTED THAT THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE SHOULD BE DISMISSED. 6. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE PARTIES. WE FIND THAT THE TRIBUNAL WHILE DECIDING THE ISSUE, HAD THOROUGHLY CONSIDERED THE SUBMISSIONS MADE BY THE ASSESSEE BEF ORE THE TRIBUNAL AND CAME TO A CONCLUSION. FOR READY REFERENCE, WE REPRODUCE THE RELEVANT PART OF THE ORDER OF THE TRIBUNAL, WHICH R EADS AS UNDER :- 7. THE CIT(A) HAS NOT ACCEPTED THE PLEA OF THE ASSESSEE THAT NO INTEREST EXPENDITURE IS LIABLE TO APPORTION AGAINST PR OFITS OF THE 80IB(10) PROJECTS. THE CIT(A) HAS OBSERVED THAT THE B USINESS OF EXCLUSION OF PROJECTS CARRIED OUT BY THE APPELLANT IS COMPOSITE AND IN THE ABSENCE OF ANY NEXUS BETWEEN THE BORROWED FUNDS AND TH EIR UTILIZATION IN NON 80IB(10) PROJECTS, THE INTEREST EXPENDITURE WA S REQUIRED TO BE APPORTIONED AMONG ALL THE PROJECTS I.E. NON 80IB(10) AS WELL AS 80IB(10) PROJECTS. THE CONCLUSION OF THE CIT(A) ON THIS ASPECT IS AS UNDER :- THE APPELLANT HAS BORROWED ON INTEREST SUBSTANTIAL FUNDS WHICH ARE USED AS WORKING CAPITAL FOR EXECUTION OF V ARIOUS CONSTRUCTION PROJECTS. SUCH INTEREST EXPENDITURE IS TREATED AS 'PERIOD COST' AND DEBITED TO THE COMMON PROFIT & LO SS ACCOUNT AND NOT AS DIRECT COST OF A PARTICULAR PROJECT. THE LOA NS WERE AVAILED AND UTILIZED FOR ALL THE PROJECTS AND THE FUNDS WER E MIXED UP AND AS ADMITTED BY THE APPELLANT ITSELF IT WAS NOT POSSIBL E TO IDENTIFY AND ALLOCATE THE INTEREST COST TO A PARTICULAR PROJECT. THERE WAS INTERLACING AND INTER-MINGLING OF FUNDS EVEN THOUGH THE PROJECTS ARE GEOGRAPHICALLY LOCATED AT DIFFERENT SITES. AS W HEN THERE IS REQUIREMENT OF FUNDS FOR EXECUTION OF A PARTICULAR P ROJECT WHETHER 80IB(10) PROJECT OR NON 80(IB)(10) PROJECT, THE FUN DS ARE DRAWN FROM THE COMMON POOL OF FUNDS, WHICH ARE BEING USED BY THE APPELLANT FOR VARIOUS ACTIVITIES. IN SUCH A SITUATI ON, THE CLAIM OF THE APPELLANT THAT BORROWED FUNDS WERE NOT UTILIZED FOR 80IB (10) PROJECTS AND THEREFORE, THERE CANNOT BE ANY APPORTI ONMENT OF INTEREST EXPENDITURE TO 80IB(10) PROJECTS, IS NOT T ENABLE. WHEN THE BUSINESS OF EXECUTION OF PROJECTS CARRIED OUT BY THE APPELLANT IS COMPOSITE AND WHEN THE APPELLANT IS NOT ABLE ESTABL ISH THE NEXUS OR ONE-TO-ONE LINKAGE BETWEEN THE BORROWED FUNDS AN D THEIR UTILIZATION IN THE NON 80IB(10)PROJECTS, THE FINANC E COST IS REQUIRED TO BE APPORTIONED AMONG ALL THE PROJECTS. 8. AFTER HOLDING THAT THE INTEREST EXPENDITURE WAS RE QUIRED TO BE APPORTIONED AMONG ALL THE PROJECTS, THE CIT(A) CONSID ERED THE NEXT 6 GRIEVANCE OF THE ASSESSEE WHEREBY THE BASIS OF APPORTIONM ENT ADOPTED BY THE ASSESSING OFFICER WAS SOUGHT TO BE ASSAILED. THE AS SESSING OFFICER HAD APPORTIONED THE INTEREST EXPENDITURE IN THE RATIO OF PROFITS OF 80IB(10) PROJECTS AND NON 80IB(10) PROJECTS. THE CIT (A) ACCEPTED THE PLEA OF THE ASSESSEE THAT THE ASSESSING OFFICER WAS WRONG IN THIS REGARD AND HE UPHELD THE METHOD OF APPORTIONMENT CANVASSED B Y THE ASSESSEE WHICH WAS ON THE BASIS OF THE RATIO OF TOTAL WORK-IN-P ROGRESS OF SUCH PROGRESS. IN PARA 7.2.1 OF HIS ORDER THE CIT(A) HAS TA BULATED THE APPORTIONMENT OF INTEREST ON THE BASIS OF THE TOTAL W ORK-IN-PROGRESS WORKED OUT BY THE ASSESSEE. THE CIT(A) DIRECTED THE ASSE SSING OFFICER TO VERIFY THE CORRECTNESS OF THE WORKING DONE BY THE ASSESSEE BY MAKING THE FOLLOWING DISCUSSION WHICH IS RELEVANT :- THE ASSESSING OFFICER IS ACCORDINGLY, DIRECTED TO VERIFY THE CORRECTNESS OF THE ADDITIONS TO WORK-IN-PROGRESS SH OWN IN THE RESPECTIVE YEARS AND THE TOTAL WORK-IN-PROGRESS AS ON 31/03/2006 AND 31/03/2007 FILED BY THE APPELLANT VIS-A-VIS THE STATEMENTS OF ACCOUNTS FILED WITH THE RETURN OF INCOME FOR THESE YEARS. ON DUE VERIFICATION, IF IT IS FOUND THAT THE DETAILS OF WO RK-IN-PROGRESS FILED BY THE APPELLANT ARE IN AGREEMENT WITH THE STATEMEN TS OF ACCOUNTS FILED WITH THE RETURN OF INCOME, THE INTEREST EXPEN DITURE, DEPRECIATION AND ADMINISTRATIVE EXPENSES SHALL BE A PPORTIONED ON THE BASIS OF THE TOTAL WORK-IN-PROGRESS INCLUDING L AND COST OF 80IB(10) AND NON 80IB(10) PROJECTS AS ON 31/03/2006 AND 31/03/2007. THUS, THE APPORTIONMENT OF THE EXPENDIT URE IN QUESTION SHALL BE MADE IN THE RATIO OF TOTAL W-I-P OF THE PROJECTS INCLUDING LAND COST AS AGAINST IN THE RATIO OF PROF ITS OF THE PROJECTS APPLIED BY THE ASSESSING OFFICER. SUBJECT TO THESE DIRECTIONS, THE GROUNDS OF APPEAL RAISED BY THE APPELLANT IN THE AP PEALS FOR BOTH THE ASSESSMENT YEARS UNDER CONSIDERATION ARE PARTLY ALLOWED. 9. AGAINST THE AFORESAID ORDER OF THE CIT(A) ASSESSEE IS IN APPEAL BEFORE US. AT THE TIME OF HEARING, THE LEARNED COUN SEL FOR THE ASSESSEE POINTED OUT THAT THE ASSESSEE WAS MAINTAINING PROJECT-W ISE DETAILS AND ACCOUNT OF DIRECT EXPENSES AND INCOME SO AS TO ARRIVE AT PROJECT-WISE PROFIT AND MANNER OF ACCOUNT MAINTENANCE ALSO REFLEC TS PROJECT-WISE DETAILS OF DEBTORS/CREDITORS ADVANCED FROM FLAT-HOLDER S, ETC.. IT WAS POINTED OUT THAT IN VIEW OF THE AVAILABILITY OF SUCH DETAILS ACCOUNTS FOR EACH PROJECT, ASSESSEE WAS ABLE TO ESTABLISH THAT IN THE C ASE OF 80IB(10) PROJECTS THERE WAS SURPLUS OF FUND POSITION THROUGHOUT T HE YEAR ON ACCOUNT OF RECEIPT OF CUSTOMERS ADVANCES AND THEREFORE ONLY NON- INTEREST BEARINGS FUNDS WERE UTILIZED TOWARDS EXPENDITU RE ON SUCH PRODUCTS. IT WAS ALSO CONTENDED THAT THOUGH THE ASSESSEE IS NO AGGRIEVED WITH THE BASIS OF APPORTIONMENT OF INTEREST DECIDED BY THE CIT(A), SO HOWEVER, AS PER THE ASSESSEE THE SPECIFIC ADVA NCES RECEIVED FROM CUSTOMERS FOR THE 80IB(10) PROJECTS WERE AVAILABL E FOR SPENDING IN THE RESPECTIVE PROJECTS AND THE SPENDING OF INTEREST B EARING FUNDS FOR SUCH PROJECTS WOULD ONLY BE FOR THE SHORTFALL, IF ANY. THE LEARNED COUNSEL SUBMITTED THAT ASSESSEE WOULD SATISFIED IF THE DIRECTIONS O F THE CIT(A) ARE MODIFY TO THAT EXTENT REQUIRING THE ASSESSING OFFI CER TO CONSIDER THE 7 AVAILABILITY OF SUCH ADVANCES WHILE CONSIDERING ALLOCA TION OF INTEREST INCURRED ON COMMON BORROWINGS. 10. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REP RESENTATIVE HAS RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW IN SUP PORT OF THE CASE OF THE REVENUE. 11. HAVING CONSIDERED THE RIVAL POSITIONS AND IT IS AP PARENT THAT THE STAND OF THE ASSESSEE IS THAT 80IB(10) PROJECTS HAVE SURPLU S BY WAY OF ADVANCES FROM CUSTOMERS AND THAT THERE WAS NO NECESSITY O F ALLOCATING ANY INTEREST EXPENDITURE ON SUCH PROJECTS BECAUSE THE I NTEREST-BEARING FUNDS WERE NOT UTILIZED FOR THE SAME. THE AFORESAID C ONTENTION OF THE ASSESSEE HAS NOT BEEN ACCEPTED BY THE CIT(A). IN PARA 7 .1.1 OF HIS ORDER THE CIT(A) HAS NOTICED THAT ASSESSEES ASSERTIONS THAT FOR T HE ASSESSMET YEAR 2006-07 THERE WAS A SURPLUS IN 80IB(10) PROJECTS CONSIDERING THE RECEIPTS FROM CUSTOMERS AND THE ADDITIONS TO THE WORK-I N-PROGRESS MADE, SO HOWEVER, HE NOTED THAT FOR THE ASSESSMENT YEAR 2007-08 THE CUSTOMER RECEIPTS WERE LESS THAN THE ADDITIONS MADE TO T HE WORK-IN- PROGRESS SUGGESTING THAT THERE WAS DEFICIT IN THAT YEAR. FOR THE AFORESAID REASON, THE CIT(A) CONCLUDED THAT THE SURPLUS OR DEFI CIT OF FUNDS IN CASE OF 80IB(10) PROJECTS WAS NOT CONSENT EVERY YEAR AND TH AT IT WOULD VARY DEPENDING ON THE REQUIREMENT OF FUNDS AND THE RECEIP TS OF CUSTOMERS. THE AFORESAID FACTUAL MATRIX IS NOT DISPUTED. MOREOVE R, IT TRANSPIRES IN THE COURSE OF THE HEARING THAT THE ADVANCES AND FUNDS RECEIVED BY THE ASSESSEE ARE DEPOSITED IN ANOTHER BANK ACCOUNT OPENED BY THE ASSESSEE FOR ADMINISTRATIVE CONVENIENCE. IT WAS ALSO STATED THA T THROUGH THE SAID BANK ACCOUNT, THE PROJECT-WISE BORROWED FUNDS AND INT EREST CANNOT BE IDENTIFIED. 12. FOR THE AFORESAID REASONS, THE CIT(A) HAS REACHED TO A FACTUAL FINDING THAT LOANS WERE AVAILABLE AND UTILIZED FOR A LL THE PROJECTS AND THE FUNDS WERE MAKES UP AND AS ADMITTED BY THE ASSESSEE, IT WA S NOT POSSIBLE TO IDENTIFY AND ALLOCATED THE INTEREST COST TO ANY PARTICULAR PROJECTS. UNDER SUCH FACTUAL SCENARIO, IN OUR VIEW, I T WOULD NOT BE PROPER TO ACCEPT THE PLEA OF THE ASSESSEE THAT NO INTER EST EXPENDITURE IS TO BE APPORTIONED AGAINST THE PROFITS OF 80IB(10) PRO JECTS. THE STAND OF THE CIT(A) ON THIS ASPECT IS HEREBY AFFIRMED IN-PRINCI PLE. 13. HOWEVER, AT THE TIME OF HEARING, THE LEARNED CO UNSEL VEHEMENTLY POINTED OUT THAT THE NECESSITY OF BORROWED AS BEING USE D IN A PARTICULAR PROJECT IS TO BE EXAMINED AS TO WHETHER OR NOT A SURPL US OR DEFICIT APPEARED IN A PROJECT WHICH COULD BE EXAMINED ON TH E BASIS OF THE FUNDS-FLOW SUBMITTED. IN OUR CONSIDERED OPINION, THE SAID PLEA CAST AND ONUS ENTIRELY ON THE ASSESSEE TO DEMONSTRATE THE ACTUAL U TILIZATION OF INTEREST-BEARING FUNDS OF A PARTICULAR PROJECT, WHICH THE ASSESSEE ADMITS THAT THE PROJECT-WISE BORROWED FUNDS AND INTEREST CANN OT BE IDENTIFIED FROM THE EXAMINATION OF THE BANK ACCOUNT. 14. THUS, WE FIND NO FORCE IN THE PLEA OF THE ASSESSEE AND ACCORDINGLY THE ORDER OF THE CIT(A) IS HEREBY AFFIRMED AND THE A SSESSEE FAILS. 8 7. FROM THE ABOVE, WE FIND THE TRIBUNAL WHILE DECID ING THE ISSUE HAS CLEARLY MENTIONED THAT THE ONUS WAS ENTIRELY ON THE ASSESSEE TO DEMONSTRATE THE ACTUAL UTILIZATION OF INTEREST-BEAR ING FUNDS FOR A PARTICULAR PROJECT AND THE ASSESSEE ADMITS THAT THE UTILIZATION OF PROJECT- WISE BORROWED FUNDS AND INTEREST CANNOT BE IDENTIFI ED FROM THE EXAMINATION OF THE COMMON BANK ACCOUNT. UNDER THES E CIRCUMSTANCES, WE FIND THE TRIBUNAL UPHELD THE ORDER OF THE LD. CI T(A) AND THEREFORE, IN OUR OPINION, THERE IS NO APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL SO AS TO RECTIFY THE SAME WITHIN THE MEANING OF SEC TION 254(2) OF THE ACT. THE ASSESSEE THROUGH THIS MISCELLANEOUS APPLI CATION WANTS THE TRIBUNAL TO MODIFY ITS OWN ORDER WHICH AMOUNTS TO R EVIEW OF ITS OWN ORDER BY THE TRIBUNAL WHICH IS NOT PERMISSIBLE IN T HE LAW. IN THIS VIEW OF THE MATTER, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DEVOID OF ANY MERIT AND THEREFORE, IS DISMISSED. MA NO.76/PN/2014 : 8. THE ASSESSEE THROUGH THIS MISCELLANEOUS APPLICAT ION REQUESTS THE TRIBUNAL TO RE-CALL THE ORDER OF THE TRIBUNAL AND P ASS APPROPRIATE ORDERS. 9. THE FIRST ISSUE RAISED BY THE ASSESSEE IN THIS M ISCELLANEOUS APPLICATION IS REGARDING THE ALLOCATION OF INTEREST WHILE WORKING OUT ELIGIBLE PROFITS FOR DEDUCTION UNDER SECTION 80-IB( 10) OF THE ACT. 10. AFTER HEARING BOTH THE SIDES, WE FIND THE ABOVE ISSUE RAISED BY THE ASSESSEE IN THIS MISCELLANEOUS APPLICATION IS IDENT ICAL TO THE ISSUE IN 9 MA NO.75/PN/2014 WHICH WE HAVE ALREADY DECIDED IN T HE PRECEDING PARAGRAPHS AND THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE HAS BEEN DISMISSED. FOLLOWING THE SAME REASONING, THIS ISSUE RAISED BY THE ASSESSEE IN THIS MISCELLANEOUS APPLICATION IS DISMI SSED. 11. ONE MORE ISSUE IN THIS MISCELLANEOUS APPLICATIO N RAISED BY THE ASSESSEE IS THAT THE GROUND IN RELATION TO GRANT OF DEDUCTION UNDER SECTION 80-IB(10) OF THE ACT IN RESPECT OF HOUSING PROJECT KUMAR PADMALAYA HAS REMAINED TO BE ADJUDICATED. 12. THE LD. COUNSEL FOR THE ASSESSEE REFERRING TO T HE MISCELLANEOUS APPLICATION SUBMITTED THAT ALTHOUGH A SPECIFIC GROU ND HAD BEEN TAKEN BEFORE THE TRIBUNAL REGARDING THE DISALLOWANCE OF D EDUCTION UNDER SECTION 80-IB(10) OF THE ACT OF RS.1,01,94,782/- IN RESPECT OF THE HOUSING PROJECT KUMAR PADMALAYA, HOWEVER, INADVER TENTLY THE GROUND RAISED BY THE ASSESSEE ON THIS ISSUE REMAINED TO BE ADJUDICATED. HE ACCORDINGLY SUBMITTED THAT THE ORDER OF THE TRIBUNA L BE RECALLED FOR THE LIMITED PURPOSE OF ADJUDICATION OF THE ABOVE GROUND . 13. THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REV ENUE, ON THE OTHER HAND, FAIRLY AGREED THAT THE GROUNDS RAISED B Y THE ASSESSEE ON THE ABOVE ISSUE REMAINED TO BE ADJUDICATED. 14. AFTER HEARING BOTH THE SIDES, WE FIND THE ASSES SEE HAD TAKEN FOLLOWING TWO GROUNDS OF APPEAL BEFORE THE TRIBUNAL REGARDING THE 10 DISALLOWANCE UNDER SECTION 80-IB(10) OF THE ACT IN RESPECT OF HOUSING PROJECT KUMAR PADMALAYA :- DISALLOWANCE UNDER SECTION 80-1B(10) IN RESPECT OF HOUSING PROJECT- 'KUMAR PADMALAYA' 6. ERRED IN CONFIRMING THE DISALLOWANCE OF DEDUCTION U NDER SECTION 80-1B(10) OF THE ACT OF RS.1,01,94,782/- IN RESPECT OF A HOUSING PROJECT - 'KUMAR PADMALAYA'; 7. SHOULD HAVE APPRECIATED THAT DEDUCTION UNDER SEC TION 80-1B(10) OF THE ACT, IS AVAILABLE, IF HOUSING PROJECT ON STANDA LONE BASIS SATISFY ALL THE CONDITIONS OF THE SECTION 80-IB(10) OF THE ACT, THE DEDUCTION IS TO BE ALLOWED. 15. HOWEVER, INADVERTENTLY THE ABOVE TWO GROUNDS RE MAINED TO BE ADJUDICATED. WE THEREFORE RECALL THE ORDER OF THE TRIBUNAL IN ITA NO.1652/PN/2012 FOR ASSESSMENT YEAR 2007-08 FOR THE LIMITED PURPOSE OF DECIDING THE ABOVE TWO GROUNDS. THE MISCELLANEO US APPLICATION FILED BY THE ASSESSEE IS PARTLY ALLOWED. 16. IN THE RESULT, M.A.NO.75/PN/2014 FILED BY THE A SSESSEE IS DISMISSED AND M.A.NO.76/PN/2014 FILED BY THE ASSESS EE IS PARTLY ALLOWED. PRONOUNCED IN THE OPEN COURT ON 22-05-2015 SD/- SD/- (VIKAS AWASTHY) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBE R PUNE DATED: 22 ND MAY, 2015 SUJEET COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. THE CIT(A)-III, PUNE 4. THE CIT-III, PUNE 5. THE D.R., B PUNE BENCH 6. GUARD FILE BY ORDER // //// //TRUE COPY// ASSISTANT REGISTRAR ITAT, PUNE BENCHES, PUNE