ACIT, Pune v. M/S KRUTI CONSTRUCTION, Pune

ITA 1470/PUN/2012 | 2006-2007
Pronouncement Date: 29-10-2013 | Result: Dismissed

Appeal Details

RSA Number 147024514 RSA 2012
Assessee PAN AAGFK4851R
Bench Pune
Appeal Number ITA 1470/PUN/2012
Duration Of Justice 1 year(s) 3 month(s) 24 day(s)
Appellant ACIT, Pune
Respondent M/S KRUTI CONSTRUCTION, Pune
Appeal Type Income Tax Appeal
Pronouncement Date 29-10-2013
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 29-10-2013
Assessment Year 2006-2007
Appeal Filed On 05-07-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES B PUNE BEFORE SHRI G.S. PANNU ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR JUDICIAL MEMBER ITA NO.1470/PN/2012 (ASSESSMENT YEAR : 2006-07) ASST. COMMISSIONER OF INCOME TAX CIRCLE 5 PUNE . APPELLANT VS. M/S. KRUTI CONSTRUCTIONS 783 BHAWANI PETH PUNE 411 042. PAN : AAGFK4851R . RESPONDENT C.O. NO.37/PN/2013 (ARISING OUT OF ITA NO.1470/PN/2012) (ASSESSMENT YEAR : 2006-07) M/S. KRUTI CONSTRUCTIONS 783 BHAWANI PETH PUNE 411 042. PAN : AAGFK4851R . APPELLANT VS. ASST. COMMISSIONER OF INCOME TAX CIRCLE 5 PUNE . RESPONDENT DEPARTMENT BY : MR. B. Y. CHAWAN ASSESSEE BY : MR. RAJENDRA AGIWAL DATE OF HEARING : 14-10-2013 DATE OF PRONOUNCEMENT : 29-10-2013 ORDER PER G. S. PANNU AM THE APPEAL BY THE REVENUE AND CROSS-OBJECTION BY T HE ASSESSEE IS DIRECTED AGAINST AN ORDER OF THE COMMISSIONER OF IN COME TAX (APPEALS)-III PUNE DATED 15.09.2011 WHICH IN-TURN HAS ARISEN FR OM AN ORDER DATED 16.11.2010 PASSED BY THE ASSESSING OFFICER UNDER S ECTION 147 READ WITH SECTION 143(3) OF THE INCOME-TAX ACT 1961 (IN SHORT THE ACT) PERTAINING TO THE ASSESSMENT YEAR 2006-07. ITA NO.1470/PN/2012 C.O. NO.37/PN/2013 A.Y. 2006-07 2. FIRST WE SHALL TAKE-UP THE APPEAL OF THE REVENU E IN WHICH THE ONLY ISSUE RELATES TO ASSESSEES CLAIM FOR DEDUCTION UND ER SECTION 80-IB(10) OF THE ACT IN RELATION TO PROFITS AND GAINS DERIVED FROM T HE BUSINESS OF DEVELOPING LAND AND CONSTRUCTION OF A HOUSING PROJECT NAMELY KUMAR PRESIDENCY PHASE1. THE ASSESSING OFFICER IN AN ASSESSMENT MA DE UNDER SECTION 143(3) R.W.S. 147 OF THE ACT DATED 16.11.2010 DENIE D THE DEDUCTION CLAIMED UNDER SECTION 80-IB(10) OF THE ACT AMOUNTING TO RS. 26 13 489/- PRIMARILY FOR THE REASON THAT SOME OF THE RESIDENTIAL UNITS IN TH E PROJECT DID NOT COMPLY WITH THE CONDITION PRESCRIBED IN CLAUSE (C) OF SECTION 8 0-IB(10) OF THE ACT. CLAUSE (C) OF SECTION 80-IB(10) OF THE ACT PRESCRIBES THAT THE BUILT-UP AREA OF THE RESIDENTIAL UNITS IN AN APPROVED PROJECT SHOULD NOT EXCEED 1500 SQ.FT. IN A CITY OTHER THAN DELHI AND MUMBAI. AS PER THE ASSESSING O FFICER IN THE PRESENT CASE SUCH A CONDITION HAS NOT BEEN FULFILLED INASM UCH AS IN CASE OF FOUR RESIDENTIAL UNITS NAMELY FLAT NOS. 602 & 702 IN B WING AND FLAT NOS. 202 & 203 IN C WING WERE COMBINED INTO BIGGER UNITS AND THE BUILT-UP AREA OF THE COMBINED UNITS EXCEEDED 1500 SQ.FT.. IN THIS BACKGR OUND ASSESSING OFFICER HELD THAT SINCE THE BUILT-UP AREA OF THE AFORESAID COMBINED FLATS EXCEEDED THE MAXIMUM LIMIT PRESCRIBED IN CLAUSE (C) OF SECTION 8 0-IB(10) OF THE ACT THE CLAIM OF DEDUCTION UNDER SECTION 80-IB(10) OF THE A CT RELATING TO THE PROFITS OF THE ENTIRE PROJECT AMOUNTING TO RS.26 13 489/- WAS LIABLE TO BE DENIED. 3. NOTABLY THE AFORESAID OBJECTION OF THE ASSESSIN G OFFICER IS SIMILAR TO WHAT WAS RAISED BY THE REVENUE IN THE ASSESSEES OW N CASE FOR EARLIER ASSESSMENT YEARS OF 2003-04 TO 2005-06 AND 2007-08 . IT WAS ALSO A COMMON POINT BETWEEN THE PARTIES THAT FOR THE AFORESAID AS SESSMENT YEARS THE TRIBUNAL IN THE ASSESSEES OWN CASE HAS UPHELD THE ELIGIBILI TY OF THE ASSESSEE FOR CLAIMING OF DEDUCTION UNDER SECTION 80-IB(10) OF TH E ACT AND SUCH ORDERS OF THE TRIBUNAL HAVE BEEN AFFIRMED BY THE HONBLE BOMB AY HIGH COURT. IN THIS CONNECTION THE LEARNED REPRESENTATIVE FOR THE ASSE SSEE HAS FURNISHED THE ORDER OF THE TRIBUNAL IN THE ASSESSEES OWN CASE FO R THE ASSESSMENT YEARS ITA NO.1470/PN/2012 C.O. NO.37/PN/2013 A.Y. 2006-07 2003-04 2004-05 AND 2007-08 VIDE ITA NOS. 1031 10 32 AND 1033/PN/2011 DATED 29.08.2012 AND THE ORDER FOR THE ASSESSMENT Y EAR 2005-06 VIDE ITA NO. 265/PN/2010 DATED 27.07.2011 WHICH ARE ON RECORD. THE RESPECTIVE ORDERS OF THE HONBLE BOMBAY HIGH COURT FOR THE AFORESAID ASS ESSMENT YEARS DATED 05 TH MARCH 2013 VIDE INCOME TAX APPEAL (L) NO. 72 TO 7 4 2013 AND INCOME TAX APPEAL NO. 52 OF 2012 FOR ASSESSMENT YEAR 2005- 06 DATED 03 RD APRIL 2013 HAVE ALSO BEEN PLACED ON RECORD. 4. IN VIEW OF THE AFORESAID PRECEDENTS IN THE ASSES SEES OWN CASE FOR ASSESSMENT YEARS OF 2003-04 TO 2005-06 AND 2007-08 WE HEREBY AFFIRM THE ORDER OF THE CIT(A) HOLDING THAT ASSESSEE SATISFIED THE CONDITION PRESCRIBED IN CLAUSE (C) TO SECTION 80-IB(10) OF THE ACT AND IT I S ENTITLED TO THE DEDUCTION UNDER SECTION 80-IB(10) OF THE ACT IN RESPECT OF PR OFITS AND GAINS DERIVED FROM THE PROJECT KUMAR PRESIDENCY PHASE1. 5. IN THE RESULT THE ORDER OF THE CIT(A) IS HEREBY AFFIRMED AND THE APPEAL OF THE REVENUE IS DISMISSED. 6. IN THE CROSS-OBJECTION FILED BY THE ASSESSEE TW O ASPECTS HAVE BEEN RAISED. FIRSTLY IT IS CONTENDED THAT THE CIT(A) ER RED IN NOT ADJUDICATING THE GROUND OF THE ASSESSEE SEEKING TO CHALLENGE THE VAL IDITY OF RE-ASSESSMENT PROCEEDINGS INITIATED BY THE ASSESSING OFFICER BY I SSUANCE OF NOTICE UNDER SECTION 147/148 OF THE ACT. 7. WE FIND THAT ON THIS ASPECT THE CIT(A) OBSERVED THAT SINCE HE HELD THE ASSESSEE ENTITLED TO THE DEDUCTION UNDER SECTION 80 -IB(10) OF THE ACT IN RESPECT OF ENTIRE PROFITS AND GAINS DERIVED FROM TH E PROJECT IN QUESTION THE ADJUDICATION OF THE AFORESAID GROUND WOULD ONLY BE AN ACADEMIC EXERCISE. EVEN BEFORE US THE AFORESAID POSITION CONTINUES IN ASMUCH AS THE ASSESSEE HAS BEEN HELD ENTITLED TO THE DEDUCTION UNDER SECTI ON 80-IB(10) OF THE ACT IN ITA NO.1470/PN/2012 C.O. NO.37/PN/2013 A.Y. 2006-07 RESPECT OF THE PROFITS AND GAINS DERIVED FROM ITS P ROJECT KUMAR PRESIDENCY PHASE1. THEREFORE WE AFFIRM THE ACTION OF THE CI T(A) AND HOLD THAT ADJUDICATION OF ASSESSEES CHALLENGE TO THE VALIDIT Y OF INITIATION OF RE-ASSESSMENT PROCEEDINGS IS AN ACADEMIC EXERCISE A ND IS ACCORDINGLY NOT BEING ADJUDICATED FOR THE PRESENT. OF COURSE IT W OULD BE OPEN FOR THE ASSESSEE TO PRESS FOR SUCH ADJUDICATION IF ON A LA TER DATE OUR ORDER IN THE APPEAL OF THE REVENUE IN FOREGOING PARAGRAPHS IS A LTERED BY ANY HIGHER AUTHORITY. 8. THE OTHER GROUND RAISED BY THE ASSESSEE IN THE C ROSS-OBJECTION IS PRIMARILY IN SUPPORT OF THE CONCLUSION BY THE CIT(A ) IN UPHOLDING THE ASSESSEES CLAIM FOR DEDUCTION UNDER SECTION 80-IB( 10) OF THE ACT WHICH WE HAVE ALREADY DEALT WITH IN THE EARLIER PART OF THIS ORDER WHILE CONSIDERING THE APPEAL OF THE REVENUE IN FAVOUR OF THE ASSESSEE. A CCORDINGLY THIS GROUND IS ALSO ACADEMIC IN NATURE. 9. IN THE RESULT CROSS-OBJECTION FILED BY THE ASSE SSEE IS ALSO DISMISSED FOR THE REASONS STATED ABOVE. 10. RESULTANTLY THE APPEAL OF THE REVENUE AS WELL AS CROSS-OBJECTION OF THE ASSESSEE ARE DISMISSED AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH OCTOBER 2013. SD/- SD/- (R.S. PADVEKAR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE DATED: 29 TH OCTOBER 2013 SUJEET ITA NO.1470/PN/2012 C.O. NO.37/PN/2013 A.Y. 2006-07 COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-III PUNE; 4) THE CIT-III PUNE; 5) THE DR B BENCH I.T.A.T. PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY I.T.A.T. PUNE