Namrata Construction Co., Talegaon Dabhade v. ITO, ward 8(3), Pune, Pune

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV JUDICIAL MEMBER AND SHRI G.S. PANNU ACCOUNTANT MEMBER ITA NO. 1373/PN/09 (ASSESSMENT YEAR: 2005-06) NAMRATA CONSTRUCTION CO. .. APPELLANT 592 RAVIWAR PETH TALEGAON DABHADA PUNE PAN AABFN 1736B VS. INCOME-TAX OFFICER .. RESP ONDENT WARD 8(3) PUNE APPELLANT BY: WRITTEN SUBMISSIONS RESPONDENT B Y: MR. HARESHWAR SHARMA ORDER PER G.S. PANNU A.M .: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME-TAX-V PUNE 24.09.2009 PASSE D UNDER SECTION 263 OF THE INCOME-TAX ACT 1961 (IN SHORT THE ACT) SETTIN G ASIDE THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER PERTAINING TO THE A SSESSMENT YEAR 2005-06. 2. THE RELEVANT FACTS ARE THAT THE ASSESSEE A PART NERSHIP FIRM IS ENGAGED IN THE BUSINESS OF BUILDERS AND DEVELOPERS. FOR THE AS SESSMENT YEAR 2005-06 THE ASSESSEE FILED RETURN DECLARING TOTAL INCOME AT RS NIL WHICH WAS ACCEPTED BY THE ASSESSING OFFICER IN AN ORDER PASSED UNDER SECT ION 143(3) OF THE ACT. 3. ON AN EXAMINATION OF THE ASSESSMENT RECORDS OF T HE ASSESSEE THE COMMISSIONER OF INCOME-TAX OBSERVED THAT THE ASSESS ING OFFICER HAD COMMITTED AN ERROR IN ALLOWING DEDUCTION UNDER SECTION 80IB(1 0) OF THE ACT OF RS 12 89 644/- IN RESPECT OF A HOUSING PROJECT SHRINIVAS SANKUL. AFTER HAVING CONSIDERED THE OBJECTIONS OF THE ASSESSEE THE COMMISSIONER OF INC OME-TAX HELD THAT THE ORDER ITA NO 1373/PN/09 NAMRATA CONSTRUCTION CO. PUNE 2 PASSED BY THE ASSESSING OFFICER WAS ERRONEOUS AND P REJUDICIAL TO THE INTEREST OF REVENUE AND ACCORDINGLY SET ASIDE THE SAID ORDER AN D DIRECTED THE ASSESSING OFFICER TO FRAME THE ASSESSMENT DE NOVO. 4. AT THE TIME OF HEARING IT HAS BEEN BROUGHT TO O UR NOTICE THAT SIMILAR ISSUE HAD COME UP BEFORE CO-ORDINATE BENCH IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2004-05 AND THE TRIBUNAL VIDE ORDER DATED 8.10.2010 IN ITA NO 644/PN/09 HAS QUASHED THE ORDER UNDER SECTION 263 P ASSED BY THE COMMISSIONER OF INCOME-TAX. ACCORDINGLY FOLLOWING THE SAID ORDER OF THE TRIBUNAL IN THE ASSESSEES OWN CASE AND ON THE PARI TY OF REASONING WE HOLD THAT THE COMMISSIONER OF INCOME-TAX WAS NOT JUSTIFIED IN INVOKING THE PROVISIONS OF SECTION 263 OF THE ACT AND SETTING ASIDE THE ASSESS MENT ORDER PASSED BY THE ASSESSING OFFICER FOR THE IMPUGNED ASSESSMENT YEAR. WE THEREFORE SET ASIDE THE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX AND RESTORE THE ORDER PASSED BY THE ASSESSING OFFICER. 3. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED. PRONOUNCED IN THE OPEN COURT ON THIS 28TH DAY OF FE BRUARY 2011. SD/- SD/- (SHAILENDRA KUMAR YADAV) (G.S . PANNU) JUDICIAL MEMBER ACCOUNTANT MEMB ER PUNE DATED: 28 TH FEBRUARY 2011 COPY TO:- 1) NAMRATA CONSTRUCTION CO. PUNE 2) THE ITO WD 8(3) PUNE 3) THE CIT V PUNE 4) THE DEPARTMENTAL REPRESENTATIVE B BENCH I .T.A.T. PUNE. BY ORDER //TRUE COPY// ASST. REGISTRAR I.T.A.T. PUNE B ITA NO 1373/PN/09 NAMRATA CONSTRUCTION CO. PUNE 3