Income-tax Officer,, Ratnagiri v. Shri Vijaykumar Kanhaiyalal Oswal, Ratnagiri

ITA 1567/PUN/2011 | 2007-2008
Pronouncement Date: 15-07-2013 | Result: Dismissed

Appeal Details

RSA Number 156724514 RSA 2011
Assessee PAN AABPO0351P
Bench Pune
Appeal Number ITA 1567/PUN/2011
Duration Of Justice 1 year(s) 7 month(s) 10 day(s)
Appellant Income-tax Officer,, Ratnagiri
Respondent Shri Vijaykumar Kanhaiyalal Oswal, Ratnagiri
Appeal Type Income Tax Appeal
Pronouncement Date 15-07-2013
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 15-07-2013
Assessment Year 2007-2008
Appeal Filed On 05-12-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV JUDICIAL MEMBER AND SHRI R.K. PANDA ACCOUNTANT MEMBER ITA NO. 1567/PN/2011 (ASSESSMENT YEAR: 2007-08) I.T.O. WARD 2 RATNAGIRI APPELLANT VS. SHRI VIJAYKUMAR KANHAIYALAL OSWAL SHANTI SUPER MARKET RAM LANE RATNAGIRI 415 612 PAN AABPO 0351 P .. RESPONDENT APPELLANT BY: SHRI Y.K. B HASKAR RESPONDENT BY: SHRI M.K. K ULKARNI DATE OF HEARING : 10-07-2013 DATE OF ORDER : 15.07.2013 ORDER PER SHAILENDRA KUMAR YADAV JM: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE CIT(A)- KOLHAPUR DATED 10-10-2011 FOR A.Y. 2007-08 RAISING THE FOLLOWING GROUNDS:- 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 42 43 183/- M ADE BY AO ON ACCOUNT OF DISALLOWANCE OF DEDUCTION U/S 80- IB(10) OF THE ACT WITHOUT APPRECIATING FACT THAT TH E AO HAS IDENTIFIED THE DEFECTS IN FULFILLMENT OF REQUIR EMENTS TO ELIGIBLE THE ASSESSEE FOR CLAIMING DEDUCTION U/S 80 -IB(10) OF THE ACT. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE L D. CIT(A) ERRED IN CONSIDERING THAT THE MUNICIPAL COUNCIL DID NOT ISSUE COMPLETION CERTIFICATE IN RESPECT OF THE PROJ ECT FULLY BUT ISSUED FOR PARTIAL COMPLETION WITHOUT APPRECIA TING FACT THAT THE AO HAD BROUGHT ON RECORD THE FACT BY RECORDING THE STATEMENTS OF THE CONTRACTOR AND THE ASSESSEE. 3. IN FACTS AND CIRCUMSTANCES OF THE CASE THE LD. C IT(A) HAS ERRED IN CONSIDERING THAT THE CONDITION OF BUILT UP AREA 1500 SQ. FT. FOR DEDUCTION U/S 80-IB(10) OF THE ACT IS NOT FULFILLED BY THE ASSESSEE WITHOUT APPRECIATING FAC T THAT THE AO HAD BROUGHT ON RECORD THE FACT BY VISITING T HE SITE OF THE PROJECT AND RECORDING THE STATEMENTS OF THE CONTRACTOR AND THE ASSESSEE. 2. THE ASSESSEE HAS UNDERTAKEN TO BUILD A PROJECT V IZ SHANTI RESIDENCY PROJECT IN RATNAGIRI. THE PLAN WAS APPR OVED BY THE RATNAGIRI MUNICIPAL CORPORATION VIDE NO. OD/RNP/SABA/868/6767 DATED 15-3-2007. THIS WAS A RE VISED PLAN SUBMITTED BY THE ASSESSEE WHICH WAS APPROVED B Y RATNAGIRI MUNICIPAL CORPORATION. THE TOTAL CONSTRUCTION AREA AS PER THE REVISED PLAN WAS 25893 SQ.FT. AS AGAINST 34253 SQ.F T. APPROVED IN THE ORIGINAL PLAN. THEREFORE THE APPROVED AREA F OR CONSIDERATION WAS FOUND TO BE 25893 SQ.FT. HOWEVER THE TOTAL FS I IN RESPECT OF THE BUILDING REMAINED AT 34253 SQ.FT. AND THE OCCUP ANTS COULD DEVELOP THE FSI AVAILABLE TO THEM AS PER THE SALE D EED. THE ASSESSEE COMPLETED THE PROJECT IN TWO INSTALLMENTS. THE ASSESSEE STARTED CONSTRUCTION ACTIVITIES AND COMPLETED THE W ORK OF 17 BUNGALOWS FOR WHICH OCCUPATION CERTIFICATE WAS GRAN TED ON 24-5- 2007. THE SECOND LOT OF 10 BUNGALOWS WAS COMPLETED SUBSEQUENTLY AND OCCUPATION CERTIFICATE FOR THE SAME WAS GIVEN O N 15-2-2008. SINCE THE PROJECT HAD STARTED AFTER 1-4-2004 AND WA S COMPLETED BEFORE 31-3-2008 THE ASSESSEE CLAIMED A DEDUCTION U/S 80-IB TO THE TUNE OF RS. 42 43 183/-. THIS AMOUNT WAS ADDED BACK AND NOT ALLOWED AS DEDUCTION U/S 80-IB OF THE ACT. 3. THE ASSESSING OFFICER VISITED THE PREMISES OF TH E ASSESSEE SOMETIMES IN FINANCIAL YEAR 2009 AND A STATEMENT OF SHRI NAWATHE CONTRACTOR WAS RECORDED. THEREAFTER THE ASSESSING OFFICER CONCLUDED THAT THE PROJECT WAS NOT COMPLETED IN RES PECT OF 27 BUNGALOWS. THE ASSESSING OFFICER OBSERVED THAT THE PLAN WAS CERTIFIED BY THE RATNAGIRI MUNICIPAL CORPORATION FO R 34170 SQ.FT. WHEREAS THE ACTUAL BUILT UP AREA OF THE ASSESSEE WA S 25893 SQ.FT. THE ASSESSING OFFICER ALSO OBSERVED THAT THE OCCUPA NCY/POSSESSION CERTIFICATE DATED 5-12-2008 WAS A PART COMPLETION CERTIFICATE. HE CONCLUDED THAT THE RATNAGIRI MUNICIPAL CORPORATION DID NOT ISSUE OCCUPANCY/POSSESSION CERTIFICATE FOR THE ENTIRE PRO JECT AND DISALLOWED THE CLAIM OF THE ASSESSEE. 4. THE MATTER WAS CARRIED IN APPEAL BEFORE THE FIRS T APPELLATE AUTHORITY WHEREIN THE CLAIM OF THE ASSESSEE WAS ALL OWED. THE SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF THE REVENUE . 5. THE LEARNED DR SUBMITTED THAT THE CIT(A) WAS NOT JUSTIFIED IN DELETING THE ADDITION OF RS. 42 43 183/- MADE BY TH E ASSESSING OFFICER ON ACCOUNT OF DISALLOWANCE OF DEDUCTION U/S 80-IB(10) OF THE ACT WITHOUT APPRECIATING THE FACT THAT THE ASSESSIN G OFFICER HAS IDENTIFIED THE DEFECTS IN FULFILLMENT OF REQUIREMEN TS TO ELIGIBLE THE ASSESSEE FOR CLAIMING DEDUCTION U/S 80-IB(10) OF TH E ACT. THE CIT(A) ALSO ERRED IN CONSIDERING THAT THE MUNICIPAL COUNCIL DID NOT ISSUE COMPLETION CERTIFICATE IN RESPECT OF THE PROJ ECT FULLY BUT ISSUED FOR PARTIAL COMPLETION WITHOUT APPRECIATING THE FAC T THAT THE ASSESSING OFFICER HAD BROUGHT ON RECORD THE FACT BY RECORDING THE STATEMENTS OF THE CONTRACTOR OF THE ASSESSEE. THE CIT(A) ALSO ERRED IN CONSIDERING THAT THE CONDITION OF BUILT UP AREA UPTO 1500 SQ.FT. FOR DEDUCTION U/S 80-IB(10) OF THE ACT WAS NOT FULF ILLED BY THE ASSESSEE WITHOUT APPRECIATING THE FACT THAT THE ASS ESSING OFFICER HAD BROUGHT ON RECORD THE FACT BY VISITING THE SITE OF THE PROJECT AND RECORDING THE STATEMENTS OF THE CONTRACTOR OF THE A SSESSEE. ACCORDINGLY THE ORDER OF THE CIT(A) BE SET ASIDE A ND THAT OF THE AO BE RESTORED. ON THE OTHER HAND THE LEARNED AUTHORI SED REPRESENTATIVE SUPPORTED THE ORDER OF THE CIT(A) WH O HAS ALLOWED THE CLAIM OF THE ASSESSEE U/S 80-IB(10) OF THE ACT AMOUNTING TO RS. 42 43 183/-. 6. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE MATERIAL ON RECORD WE FIND THAT THE ASSESSEE HAS U NDERTAKEN TO BUILD A PROJECT VIZ. SHANTI RESIDENCY PROJECT IN RA TNAGIRI. THE POSSESSION OF THE BUNGALOWS WAS GIVEN BEFORE THE MO NTH OF MARCH 2008. THE OCCUPANCY /POSSESSION CERTIFICATE WAS AL SO ISSUED ON 15-2-2008 WHICH CLEARLY STATED THAT THE BUNGALOWS H AVE BEEN CONSTRUCTED ACCORDING TO THE REVISED APPROVED PLAN DATED 1-3-2007. THERE WAS A LARGE GAP BETWEEN 15-2-2008 AND THE DAT E OF VISIT TO THE PREMISES BY THE ASSESSING OFFICER. THERE IS NO THING ON RECORD TO SUGGEST THAT THE EXTRA CONSTRUCTION OR MERGING OF B UNGALOW NOS. 9 AND 10 WAS DONE BY THE ASSESSEE BEFORE THE OCCUPANC Y/POSSESSION CERTIFICATE WAS ISSUED. THERE IS ALSO NOTHING ON R ECORD WHICH COULD LEAD TO AN INFERENCE THAT THE OCCUPANCY CERTIFICATE IN RESPECT OF WORK COMPLETED AS PER THE REVISED APPROVED PLAN WAS INCORRECT. IN FACT THE ASSESSEE DID NOT HAVE ANY CONTROL OVER TH E OCCUPANTS ONCE OCCUPATION IS GIVEN TO THEM. IN CASE THE OCCUPANT S CHOOSE TO MODIFY THEIR PROPERTY IN ANY WAY WHICH DOES NOT CON FIRM WITH THE APPROVED LAYOUT IN SUCH A SITUATION IT HAS TO BE SEEN THAT SUCH MODIFICATIONS WERE CARRIED OUT BY THE DEVELOPER BUI LDER EVEN BEFORE THE OCCUPANCY/POSSESSION CERTIFICATE WAS ISSUED AND PROPERTY WAS GIVEN IN POSSESSION WITH ILLEGAL CONSTRUCTION. FURT HER THE ASSESSING OFFICER HAS NOT EXAMINED THE OWNERS OF THESE ROW HOUSES/BUNGALOWS WHO WOULD BE THE BEST PERSONS HAVI NG KNOWLEDGE ABOUT THE ACTUAL FACT OF CONSTRUCTION OF THE PREMISES. UNDER THE FACTS AND CIRCUMSTANCES THE CIT(A) WAS J USTIFIED IN HOLDING THAT THE BUILT UP AREA OF BUNGALOW NOS. 9 10 AND 17 WAS NOT MORE THAN 1500 SQ.FT. THESE BUNGALOWS WERE CONS TRUCTED ACCORDING TO THE REVISED CONSTRUCTION PLAN ESPECIAL LY WHEN THE MUNICIPAL AUTHORITIES HAVE CERTIFIED THAT THE CONST RUCTION WAS CARRIED OUT ACCORDING TO THE REVISED APPROVED PLAN ONLY. SUBSEQUENT CHANGES IF ANY IN THE PLAN WOULD NOT DEBAR THE ASSESSEE FROM CLAIMING DEDUCTION U/S 80-IB(10) OF T HE ACT. 7. IN THE RESULT THE APPEAL OF THE REVENUE IS DISM ISSED. PRONOUNCED IN THE OPEN COURT ON THIS 15 TH JULY 2013 SD/- SD/- (R.K. PANDA) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE DATED: 15 TH JULY 2013 ANKAM COPY TO:- 1) ASSESSEE 2) DEPARTMENT 3) THE CIT(A) KOLHAPUR 4) THE CIT- KOLHAPUR 5) THE DR A BENCH I.T.A.T. PUNE. 6) GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY I.T.A.T. PUNE