DCIT, Bangalore v. M/s. Confident Projects (India) Pvt. Ltd.,, Bangalore

ITA 1293/BANG/2010 | 2008-2009
Pronouncement Date: 07-09-2011 | Result: Dismissed

Appeal Details

RSA Number 129321114 RSA 2010
Assessee PAN AACCC7506L
Bench Bangalore
Appeal Number ITA 1293/BANG/2010
Duration Of Justice 9 month(s) 14 day(s)
Appellant DCIT, Bangalore
Respondent M/s. Confident Projects (India) Pvt. Ltd.,, Bangalore
Appeal Type Income Tax Appeal
Pronouncement Date 07-09-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 07-09-2011
Assessment Year 2008-2009
Appeal Filed On 23-11-2010
Judgment Text
ITA.1293/BANG/2010 PAGE - 1 IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH 'A' BANGALORE BEFORE SHRI. N. BARADHVAJA SANKAR VICE PRESIDENT AND SMT. P. MADHAVI DEVI JUDICIAL MEMBER I.T.A NO.1293/BANG/2010 (ASSESSMENT YEAR : 2008-09) DEPUTY COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE -1(1) BANGALORE .. APPELLANT V. PAN : AACCC7506L M/S. CONFIDENT PROJECTS (INDIA) P. LTD. NO.574 PARK HOUSE 80 FEET ROAD 8TH BLOCK KORAMANGALA BANGALORE 560 095 .. RESPONDENT APPELLANT BY : SHRI. G. V. GOPALA RAO COMMISSIONER OF INCOME-TAX-I RESPONDENT BY : SHRI. V. SUDHINDRANATH ADVOCATE DATE OF HEARING : 07/09/2011 : DATE OF PRONOUNCEMEN T : 07/09/2011 O R D E R PER N. BARATHVAJA SANKAR VICE PRESIDENT : THIS IS AN APPEAL FILED BY THE ASSESSEE M/S. CONF IDENT PROJECTS (INDIA) P. LTD. BANGALORE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX(A)-I BANGALORE DATED.24.08.2010 FOR T HE ASSESSMENT YEAR 2008-09. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAS CONSTRUCTED AND SOLD A PROJECT CONSISTING OF AN AREA OF 130 CEN TS BY NAME CONFIDENT CAPELLA WHICH IS LOCATED AT SY NO.588/1 588/2 588/3 588/4 590/6 590/10 AND 590/11 IN VAZHAKKALA VILLA GE KANAYANNUR ITA.1293/BANG/2010 PAGE - 2 TALUK KOCHI. THE PROJECT WAS APPROVED BY THE LOCA L AUTHORITY ON 02.06.2006 AND IT WAS COMPLETED IN MARCH 2009. TH E TOTAL NUMBER OF APARTMENTS IN THE PROJECT IS 201 NUMBERS. EACH APA RTMENT IS INDIVIDUALLY LESS THAN 1500 SQ.FT BUILT-UP AREA. T HE DEPUTY DIRECTOR OF INCOME TAX (INVESTIGATION)-I ERNAKULAM INSPECTED T HE PROJECT IN DECEMBER 2009 AND SUBMITTED A REPORT. IN THE REPO RT IT WAS INFORMED THAT APARTMENT NOS.1013 AND 1014 ARE MERGED TOGETHE R AND CONVERTED INTO A SINGLE UNIT AND THEREBY THE TOTAL BUILT-UP A REA OF THE APARTMENT EXCEEDED THE PRESCRIBED LIMIT OF 1500 SQ.FT. THE A SSESSING OFFICER REJECTED THE CLAIM OF EXEMPTION U/S.80IB(10) ON THI S PROJECT AND ADDED BACK THE PROFIT AS TAXABLE TURNOVER. AGGRIEVED BY THIS THE ASSESSEE FILED AN APPEAL BEFORE THE COMMISSIONER OF INCOME-T AX(A) WHO ACCEPTED THE CLAIM OF THE ASSESSEE AND SET ASIDE TH E ORDER PASSED BY THE ASSESSING OFFICER IN RESPECT OF 80IB(10) CLAIM MADE BY THE ASSESSEE. REVENUE IS AGGRIEVED WITH THIS AND IS IN APPEAL BEFORE US. 03. WE HAVE HEARD BOTH SIDES AND PERUSED THE MATERI ALS ON RECORD. WE FIND THAT THIS CASE IS COVERED BY THE EARLIER OR DER OF THE COORDINATE BENCH OF THE TRIBUNAL IN THE ASSESSEE'S OWN CASE FO R THE ASSESSMENT YEAR 2007-08 IN ITA NO.691/BANG/2010 DATED.24.11.2 010 WHEREIN VIDE PARA NOS.4 AND 5 IT HAS BEEN OBSERVED AS UNDER : ITA.1293/BANG/2010 PAGE - 3 '4. AFTER HEARING BOTH THE PARTIES AND AFTER CONSID ERING THE ARGUMENTS OF THE LEARNED DR THAT THE JOINING OF BOT H FLATS INTO ONE FLAT IS IN CONNIVANCE WITH THE ASSESSEE HEREIN AND ALSO THE ARGUMENTS OF THE ASSESSEE THAT THE JOINING OF THE F LATS IS CARRIED AFTER THE PURCHASER PURCHASING THE TWO ADJACENT FLA TS WE FIND THAT THE COMMISSIONER OF INCOME-TAX(A) HAD PROPERLY APPR ECIATED THE FACTS. THE COMMISSIONER OF INCOME-TAX(A) OBSERVED THAT THE DDIT (INV) HAS STATED THAT THERE ARE TWO SEPARATE A PPROVED PLANS FOR FLAT NOS.1013 AND 1014 AND SEPARATE REGISTRATIO N AND SEPARATE SALE DEEDS WHICH SPEAK THAT AREA OF NONE O F THEM IS MORE THAN 1500 SQ.FT AND THAT THE MEASUREMENT BY THE INV ESTIGATING TEAM WAS TAKEN IN DECEMBER 2009 I.E. AFTER THE SALE OF THESE FLATS I.E. AFTER OCCUPATION IN FEBRUARY 2009. HE ALSO OB SERVED THAT ONLY THE WALL BETWEEN THE TWO FLATS IS REMOVED AND THE ASSESSEE HAS VIRTUALLY NO CONTROL OVER THE FLAT OWNERS. ON A QUERY FROM THE BENCH IT WAS SUBMITTED BY THE LEARNED COUNSEL FOR THE ASSESSEE THAT OUT OF 201 APARTMENT UNITS BUILT IN THE SAID P ROJECTS ONLY THESE TWO FLATS WERE PURCHASED BY A SINGLE PERSON A ND WERE JOINED BY THE PURCHASER BY REMOVING THE WALL BETWEE N THE TWO FLATS AND NO OTHER STRUCTURAL CHANGES HAVE BEEN MAD E BY HIM IN THE SAID FLATS. 5. THE LEARNED COUNSEL FOR THE ASSESSEE ALSO DREW O UR ATTENTION TO PAGE-58 OF THE PAPER BOOK WHICH IS A STATEMENT OF THE PURCHASER TO THE EFFECT THAT HE HAS PURCHASED THE A PARTMENT NOS.1013 & 1014 IN CONFIDENT CAPELLA KAKANAD KOCH I AND ONLY THEREAFTER HE REALIZED THAT THE APARTMENT ROOMS WER E INADEQUATE FOR HIS PERSONAL USE AND THEREFORE GOT THE MODIFIC ATION DONE BY HIMSELF TO COMBINE THE APARTMENTS INTO A SINGLE ONE TO SUIT HIS REQUIREMENT. IN VIEW OF ALL THESE FACTS WE ARE OF THE OPINION THAT ITA.1293/BANG/2010 PAGE - 4 THE COMMISSIONER OF INCOME-TAX(A) HAD PROPERLY APPR ECIATED THE EVIDENCE IN GRANTING RELIEF TO THE ASSESSEE AND NO INTERFERENCE IS CALLED FOR.' 04. SINCE THE FACTS AND CIRCUMSTANCES ARE THE SAME FOLLOWING THE ABOVE DECISION OF THE TRIBUNAL WE DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE. 05. IN THE RESULT APPEAL BY THE REVENUE IS DISMISS ED. ORDER PRONOUNCED IN OPEN COURT AT THE TIME OF HEARI NG ON 07TH DAY OF SEPTEMBER 2011 AT BANGALORE. SD/- SD/- (SMT. P. MADHAVI DEVI) (N. BARATHVAJA SANKAR) JUDICIAL MEMBER VICE PRESIDENT