Income-tax Officer, V. Shri Hiraman Nivrutti Bhujbal, Pune

MA 9/PUN/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3091 (ITAT-PUNE)
• Duration Of Justice: 3 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-04-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 23-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: V L JAIN
• Keywords: Competent authority; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE MS. SUSHMA CHOWLA, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER MA NO. 09/PN/2015 (ARISING OUT OF ITA NO.667/PN/2013) (ASSESSMENT YEAR : 2009-10) ITO, WARD-9(1), PUNE .. APPLICANT VS. SHRI HIRAMAN NIVRUTTI BHUJBAL, FLAT NO.7, LALIT RAJ PARK, TANAJI NAGAR, CHINCHWAD, PUNE-33 .. RESPONDENT PAN NO.AAUPB5023C ASSESSEE BY : SHRI V.L. JAIN REVENUE BY : SHRI RAJESH DAMOR DATE OF HEARING : 27-03-2015 DATE OF PRONOUNCEMENT : 08-04-2015 ORDER PER R.K.PANDA, AM : THE REVENUE THROUGH THIS MISCELLANEOUS APPLICATION REQUESTS THE TRIBUNAL TO RECALL THE ORDER PASSED BY IT VIDE ORDE R DATED 27-05-2014 AND DECIDE THE ISSUE AFRESH. 2. THE LD. DEPARTMENTAL REPRESENTATIVE DREW THE ATT ENTION OF THE BENCH TO THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE WHICH READS AS UNDER : WHILE FILING THE APPEAL BEFORE THE HON'BLE TRIBUNA L, THE ASSESSEE HAD RAISED FOLLOWING TWO GROUNDS OF APPEAL AS UNDER :- 1. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN CO NFIRMING THE DISALLOWANCE OF CLAIM OF DEDUCTION U/S.80IB(10) AMOU NTING TO RS.25,48,221/- FOR THE REASON THAT - 2 (A) GRAM PANCHAYAT IS NOT A LOCAL AUTHORITY COMPET ENT TO ISSUE APPROVALS AND COMPLETION FOR THE HOUSING PROJECT AND (B) THE ROAD AREA WAS NOT PART OF THE PROJECT AN D HENCE THE AREA OF THE LAND WAS LESS THAN ONE ACRE. 2. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY OF THE GROUNDS OF APPEAL OR ADDITION TO THE SAME, IF DEEMED NECESSARY. 02. THE HON'BLE ITAT, PUNE BENCH A, PUNE, VIDE ITS O RDER IN ITA NO.667/PN/2013 DATED 27.05.2014 (COPY ENCLOSED AS ANN EXURE I) HAS DECIDED THE FIRST ISSUE IN FAVOUR OF ASSESSEE BY RELYING O N ITS OWN DECISION IN THE CASE OF SHRI KRISHNA HARIBHAU LOHOKARE . THE SAID JUDGMENT HAS BEEN REPRODUCED IN PARA 2 OF THE ITAT'S ORDER UNDER CONSIDERATION. ON GOING THROUGH WHICH, IT IS SEEN THAT IN THE RELIED UPON CASE, THE SANCTION TO REVISED LAYOUT AND BUILDING PLAN WAS GIVEN BY THE COLLECTOR, PUNE AND ONLY COMPLETION CERTIFICATE WAS ISSUED BY THE KESHAVNAGAR GRAM PANCHAYAT, MUNDHWA. IN THE PRESENT C ASE, THE COMMENCEMENT CERTIFICATE AS WELL AS THE COMPLETION C ERTIFICATE BOTH WAS ISSUED BY GRAM PANCHAYAT, MEDANKARWADI. THUS, THE F ACTS ARE DIFFERENT. IN ADDITION, THE ASSESSING OFFICER, WHILE DE CIDING THE ISSUE HAS RELIED UPON THE LETTER DATED 14/12/2011 OF SUB DIVI SIONAL OFFICER, JUNNER SUB DIVISION, WHICH IS MADE AS PART OFFICER, JU NNER SUB-DIVISION.' THE LD. CIT(A) WHILE REJECTING THE ASSESSEE'S GROUND OF APPEAL ON THIS ISSUE, HAS MENTIONED IN PARA 11 OF HIS ORDER THAT' THE APPELLANT WAS FULLY AWARE THAT COMPETENT AUTHORITY TO SANCTION LAYOUT PL AN WAS ASSTT. DIRECTOR, TOWN PLANNING WHICH IS PROVED BY THE FACT THAT FIRST LAYOUT WAS PUT UP BEFORE HIM ON 20.05.1999. DESPITE THIS, REVISED APPROVAL WAS TAKEN FROM GRAM PANCHAYAT ON 29.05.2004 WHICH IS QUI TE INTRIGUING AND SHOWS THAT APPELLANT DELIBERATELY OBTAINED ILLEGAL AP PROVAL AND COMMENCEMENT/ COMPLETION CERTIFICATE FROM GRAM PANC HAYAT AUTHORITIES.' SECONDLY, ON THE ISSUE OF OMISSION OF ROAD AREA FROM TH E PROJECT AREA TO CALCULATE THE AREA OF THE PLOT, THE LD. TRI BUNAL HAS RELIED UPON ITS OWN DECISION IN THE CASE OF BUNTY BUILDERS VS ITO. THE SAID JUDGMENT HAS BEEN REPRODUCED IN PARA 4 OF THE ITAT'S ORDER UND ER CONSIDERATION. IN THAT CASE, ROAD AREA WAS SURRENDERED BY THE ASSESSEE TO THE CORPORATION AS AMENITY SPACE WHICH WAS PART AND PARCEL OF THE HOUSING PROJECT AND WAS AN INTERNAL ROAD. IN THE PRESENT CASE, THE ROAD AREA FALLS OUTSIDE THE PROJECT. TO UNDERSTAND THE SITUATION, THE ASSESSING OFFICER HAS ANNEXED ACTUAL PHOTOGRAPH OF THE SITE AND A LOCAT ION MAP AS PART OF THE ASSESSMENT ORDER. AS PER WHICH, THE ROAD IN QUESTION CLEARLY APPEARS OUTSIDE THE BOUNDARY WALLS OF THE PROJECT. IT HAS ALSO BEEN MENTIONED IN THE ASSESSMENT ORDER THAT, THE ROAD IS NOT AN INTERNAL R OAD BUT A PUBLIC ROAD, WHICH CATERS TO ALL THE PUBLIC IN THE LOCALITY . THE VALUATION OFFICER, SOLAPUR, AFTER PHYSICAL VERIFICATION OF THE PROJECT UNDER CONSIDERATION HAS SUBMITTED HIS REPORT DATED 21/11/2011. THE V.O. IN PART 'B' OF HIS REPORT REGARDING SIZE OF PLOT HAS PASSED A NOTE IN THIS REGARD. WHICH IS REPRODUCED BELOW FOR READY REFERENCE: 'THE LAY OUT SHOWS THE SECTION-9 WITH LAND AREA OF 238 4.10 SQM, BEING A ROAD WHICH IS NOT AN INTERNAL ROAD, BUT A PUBLIC ROA D, OUTSIDE THE COMPOUNDS (CAMPUSES) OF THE SUBJECT PROJECT, WHICH CAT ERS TO ALL THE PUBLIC IN THE LOCALITY.' 3 FURTHER, THE LD. CIT(A) WHILE DECIDING THE ISSUE HAS C ONCLUDED AS UNDER: 'THE APPELLANT HAS RELIED UPON HON'BLE PUNE TRIBUNAL 'S DECISION IN THE CASE OF BUNTY BUILDERS ALONG WITH OTHER DECISIONS. IT I S SEEN THAT ROAD AREA IN THOSE CASES WERE EXCLUSIVE TO THE PROJECT WHILE IN THE PRESENT CASE, ROAD AREA THOUGH IN LAYOUT PLAN IS NOT EXCLUSIVE TO THE PROJECT AND ALSO FALLS OUTSIDE OF ALL THE PLOTS I.E. PLOT NO. 1 TO 8 AND THEREFORE, THE FACTS BEING DISTINGUISHABLE NO SUPPORT CAN BE DERIVED B Y THE APPELLANT FROM THOSE CASES. ACCORDINGLY, IT IS HELD THAT THE AO W AS JUSTIFIED IN CONCLUDING THAT SIZE OF PLOT FOR THE PROJECT WAS LESS T HAN ONE ACRE AND THEREFORE, IT WAS NOT ELIGIBLE FOR DEDUCTION U/S.80IB (10) OF INCOME-TAX ACT. 03. CONSIDERING THE FACTS DISCUSSED ABOVE, THE FINDINGS O F THE HON. TRIBUNAL APPEARED TO BE CONTRARY TO THE MATERIAL ON RECORD, AND THEREFORE, THE DECISION OF THE HON'BLE TRIBUNAL IN T HE CASE OF ASSESSEE FOR AY 2009-10 WAS NOT ACCEPTED BY THE DEPARTMENT AS THE FACTS OF THE RELIED UPON CASES ARE DIFFERENT. 04. FURTHER, THE HON. TRIBUNAL HAS NOT ADJUDICATED T HE ISSUE RELATING TO DELETING OF BUILDINGS A & D FROM THE LAYOUT PLAN WITHOUT ANY APPLICATION OR REVISED PROPOSAL BY THE ASSESSEE. THE SAID GROUND WAS ALLOWED BY THE LD. CIT(A) ONLY FOR TECHNICAL PURPOSE . HOWEVER, CONSIDERING THE LOW TAX EFFECT INVOLVED IN THIS CASE F OR AY 2009-10, NO APPEAL BEFORE HON'BLE HIGH COURT WAS FILED AGAINST TH E DECISION OF HON'BLE TRIBUNAL. 05. IN VIEW OF THE ABOVE, THE LD. CIT-5, PUNE HAS AU THORIZED UNDERSIGNED TO PRAY THE HON'BLE ITAT TO BE PLEASED TO RECALL THE ORDER DATED 27.05.2014 AND GIVE DECISION/ORDER AFTER DULY CONSIDERING THE FACTS AND MATERIALS DISCUSSED ABOVE IN FAVOUR OF THE DEP ARTMENT TO MEET THE END OF THE JUSTICE. 3. THE LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED TH AT THE CONTENTS OF THE MISCELLANEOUS APPLICATION IS SELF-EXPLANATOR Y. THEREFORE, THE ORDER OF THE TRIBUNAL BE RECALLED AND THE MATTER BE DECIDED AFRESH AS PER FACT AND LAW. 4. THE LD. COUNSEL FOR THE ASSESSEE ON THE OTHER HA ND STRONGLY OPPOSED THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE. HE SUBMITTED THAT THE TRIBUNAL WHILE DECIDING THE APPE AL HAS FOLLOWED VARIOUS DECISIONS INCLUDING THE DECISIONS OF THE CO ORDINATE BENCHES OF THE TRIBUNAL AND HELD THAT GRAM PANCHAYAT IS A LOCA L AUTHORITY COMPETENT TO ISSUE APPROVAL AND COMPLETION CERTIFIC ATE FOR THE HOUSING 4 PROJECT AND THAT THE ROAD AREA WAS PART OF THE PROJ ECT AND HENCE THE AREA OF THE LAND WAS MORE THAN 1 ACRE. NOW THE REVENUE THROUGH THIS MISCELLANEOUS APPLICATION REQUESTS THE TRIBUNAL TO REVIEW ITS OWN ORDER WHICH IS NOT PERMISSIBLE IN LAW. HE ACCORDINGLY SU BMITTED THAT THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE SHOU LD BE DISMISSED. 5. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES. WE FIND THE TRIBUNAL WHILE DECIDING THE ISSUE AS TO WHETHER GRAM PANCHAYAT IS A LOCAL AUTHORITY OR NOT HAS FOLLOWED THE DECISION OF THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF SHR I KRISHNA HARIBHAU LOHOKARE VS. ITO VIDE ITA NO.937/PN/2010 FOR A.Y. 2006-07. SIMILARLY, THE TRIBUNAL FOLLOWING THE DECISION OF T HE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF BUNTY BUILDERS VS. ITO REPO RTED IN 139 TTJ (PUNE) 367 HAS HELD THAT ROAD AREA WAS PART OF THE PROJECT AND HENCE THE AREA OF THE LAND WAS MORE THAN 1 ACRE. THUS BOTH T HE ISSUES WERE DECIDED IN FAVOUR OF THE ASSESSEE BY FOLLOWING THE DECISIONS OF THE COORDINATE BENCHES OF THE TRIBUNAL. 6. THE LD. DEPARTMENTAL REPRESENTATIVE AT THE TIME OF HEARING OF THE APPEAL HAD NOT OBJECTED TO THE ARGUMENT OF THE LD. COUNSEL FOR THE ASSESSEE AGAINST THESE DECISIONS. NOTHING CONTRARY WAS BROUGHT TO OUR NOTICE BY THE LD. DEPARTMENTAL REPRESENTATIVE AT TH E TIME OF HEARING. ON A POINTED QUERY RAISED BY THE BENCH TO THE PRESE NT LD. DEPARTMENTAL REPRESENTATIVE AS TO WHETHER THE DEPARTMENT HAS INF ORMED TO THE MUNICIPAL AUTHORITIES ABOUT THE ILLEGAL CONSTRUCTIO N BY THE ASSESSEE ON THE BASIS OF ILLEGAL CERTIFICATE ISSUED BY THE GRAM PANCHAYAT MEDANKARWADI, THE LD. DEPARTMENTAL REPRESENTATIVE R EPLIED IN THE 5 NEGATIVE. THEREFORE, WHEN THE DEPARTMENT HAS NOT T AKEN ANY ACTION AGAINST THE ASSESSEE BY INFORMING THE PUNE MUNICIPA L CORPORATION FOR SUCH ILLEGAL CONSTRUCTION, IF ANY, ON THE BASIS OF ILLEGAL APPROVAL, THEREFORE, IN OUR OPINION, THERE IS NO MISTAKE IN T HE ORDER OF THE TRIBUNAL ALLOWING THE APPEAL OF THE ASSESSEE BY FOLLOWING TH E DECISION OF THE COORDINATE BENCHES. THE POINTS NOW RAISED BY THE R EVENUE IN THE MISCELLANEOUS APPLICATION AMOUNTS TO REVIEW OF ITS OWN ORDER BY THE TRIBUNAL WHICH IN OUR OPINION IS NOT PERMISSIBLE I N LAW. IN THIS VIEW OF THE MATTER AND IN ABSENCE OF ANY APPARENT MISTAKE I N THE ORDER OF THE TRIBUNAL BEING POINTED OUT BY THE LD. DEPARTMENTAL REPRESENTATIVE, WE DISMISS THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE. 7. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE REVENUE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 08-04-2015. SD/- SD/- (SUSHMA CHOWLA) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBE R PUNE DATED: 08 TH APRIL, 2015 SATISH COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. THE CIT(A)-V, PUNE 4. THE CIT-V, PUNE 5. THE D.R, A PUNE BENCH 6. GUARD FILE BY ORDER // TRUE COPY // ASSISTANT REGISTRAR ITAT, PUNE BENCHES, PUNE