ACIT, Cir.-5,, Pune v. M/s. Kruti Construction,, Pune

ITA 265/PUN/2010 | 2005-2006
Pronouncement Date: 27-07-2011 | Result: Dismissed

Appeal Details

RSA Number 26524514 RSA 2010
Assessee PAN AAGFK4851R
Bench Pune
Appeal Number ITA 265/PUN/2010
Duration Of Justice 1 year(s) 5 month(s) 11 day(s)
Appellant ACIT, Cir.-5,, Pune
Respondent M/s. Kruti Construction,, Pune
Appeal Type Income Tax Appeal
Pronouncement Date 27-07-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 27-07-2011
Assessment Year 2005-2006
Appeal Filed On 15-02-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B PUNE BEFORE SHRI I C SUDHIR JUDICIAL MEMBER AND SHRI G S PANNU ACCOUNTANT MEMBER ITA NO 265/PN/10 (ASSTT. YEAR: 2005-06) ASSTT. COMMISSIONER OF I.T. .. APPELLANT CIR. 5 PUNE VS. M/S KRUTI CONSTRUCTION .. RESPONDEN T 783 BHAWANI PETH PUNE PAN AAGFK4851R APPELLANT BY : SMT ANN JAPTHUAMA RESPONDENT BY : SHRI RAJENDRA AGIWAL ORDER PER G.S. PANNU AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE OR DER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-III PUNE DATED 1 0.11.2009 WHICH IN TURN HAS ARISEN OUT OF THE ORDER DATED 12.12.2007 PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) OF THE INCOME-TAX ACT 1961 (IN SH ORT THE ACT) PERTAINING TO THE ASSESSMENT YEAR 2005-06. 2. IN THIS APPEAL THE REVENUE HAS CONTENDED THAT TH E COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN ALLOWING THE ASSESSEES CL AIM FOR DEDUCTION UNDER SECTION 80-IB(10) OF THE ACT. 3. BEFORE US THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS SUBMITTED THAT THE COMMISSIONER OF INCOME-TAX (APPEALS) HAS NOT APPRECIA TED THE FACTS BROUGHT OUT BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER BUT HAS MERELY RELIED UPON THE REMAND REPORT DATED 28.9.2009 OF THE ASSESSING OFF ICER WHICH REITERATED THE VIEW OF THE APPROVED VALUER IN REGARD TO THE BUILT- UP AREA OF THE FLATS. 2 4. ON THE OTHER HAND THE LEARNED COUNSEL FOR THE R ESPONDENT-ASSESSEE POINTED OUT THAT THE COMMISSIONER OF INCOME-TAX (APPEA LS) HAS ALLOWED THE APPEAL OF THE ASSESSEE BY RELYING ON THE REMAND REPORT OF THE ASSESSING OFFICER WHICH CLEARLY SHOWED THAT THE TOTAL BUILT-UP AREA OF N ONE OF THE UNITS EXCEEDED THE PRESCRIBED LIMIT OF 1500 SQ.FT. AND AGAINST SUCH FACTU AL ASPECT THERE IS NO CONTRARY MATERIAL. 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS. IN THIS CASE THE ASSESSEE IS ENGAGED IN THE BUSINESS OF CONSTRUCTION OF A HOUSI NG PROJECT AND IT HAD CLAIMED A DEDUCTION UNDER SECTION 80-IB OF THE ACT A MOUNTING TO RS 85 89 639/- IN THE RETURN OF INCOME. THE ASSESSING OFF ICER DISALLOWED THE CLAIM ON THE GROUND THAT AREA OF SOME OF THE FLATS ENUMER ATED IN PARA 3 OF THE ASSESSMENT ORDER EXCEEDED 1500 SQ.FT. WHICH WAS MORE THAN THE PRESCRIBED AREA AS PER SECTION 80IB(10) OF THE ACT. IN APPEAL BEFO RE THE COMMISSIONER OF INCOME-TAX (APPEALS) THE ASSESSEE CONTENDED THAT THE TOT AL BUILT-UP AREA AND THE SALEABLE AREA AS PER THE SALE AGREEMENTS WAS DIFFER ENT INASMUCH AS THE AREA MENTIONED IN THE SALE DEED WAS MORE THAN THE ACTU AL BUILT-UP AREA. THE PLEA SET-UP BY THE ASSESSEE WAS SOUGHT TO BE VERIFIED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) FOR WHICH PURPOSE HE CALLED FOR A REMAND REPORT FROM THE ASSESSING OFFICER. THE COMMISSIONER OF INCOME-TAX (APPEALS) HAS NOTICED IN PARA 3.3 OF THE ORDER THAT THE ASSESSING OFFICER WAS DIR ECTED TO CONDUCT VERIFICATION OF THE MEASUREMENT OF THE RESIDENTIAL UNI TS IN THE PROJECT AND THEN FURNISH HIS REPORT. THE COMMISSIONER OF INCOME-TAX (APPE ALS) CONSIDERED THE REMAND REPORT OF THE ASSESSING OFFICER DATED 29.10.2009 A COPY OF WHICH HAS ALSO BEEN FILED IN THE PAPER BOOK FILED BEFORE US. THE COMMISSIONER OF INCOME- TAX (APPEALS) RECORDS THAT AS PER THE SAID REPORT THE M EASUREMENT OF THE UNITS/FLATS NOTICED BY THE ASSESSING OFFICER IN THE ASSESSMEN T PROCEEDINGS WAS BELOW THE PRESCRIBED LIMITS OF 1500 SQ. FT. IN THE REM AND REPORT IT HAS ALSO BEEN NOTICED THAT THE MATTER WAS REFERRED TO SHRI HARSHAD R UPAREL APPROVED VALUER FOR CARRYING OUT THE MEASUREMENT AND THE REMAND REPORT WAS BASED ON SUCH 3 MEASUREMENT. CONSIDERING THE ASPECTS BROUGHT OUT IN THE REMAND REPORT THE COMMISSIONER OF INCOME-TAX (APPEALS) HAS ARRIVED AT A FA CTUAL FINDING THAT NONE OF THE UNIT/FLATS NOTICED BY THE ASSESSING OFFICER IN T HE ASSESSMENT ORDER EXCEEDED THE PRESCRIBED LIMIT OF 1500 SQ. FT. AND ACCORDI NGLY THE COMMISSIONER OF INCOME-TAX (APPEALS) HELD THE CLAIM OF THE ASSESSEE F OR DEDUCTION UNDER SECTION 80IB(10) AS JUSTIFIED. IN THIS BACKGROUND OF THE MATTER WE FIND NO REASONS TO INTERFERE WITH THE CONCLUSION DRAWN BY THE COMMISSION ER OF INCOME-TAX (APPEALS) WHICH IS BASED ON THE REMAND REPORT OF THE A SSESSING OFFICER AND IN ANY CASE THERE IS NO MATERIAL BROUGHT OUT BY THE REVE NUE BEFORE US SO AS TO REQUIRE ANY INTERFERENCE FROM OUR SIDE. THUS THE REVE NUE HAS TO FAIL IN THIS ASPECT. 6. IN GROUND NO. 4 THE REVENUE HAS STATED AS UNDER: 4. THE LD CIT(A) ERRED ON FACTS AND IN LAW IN NOT APPRECIATING THAT AREA OF NUMBER OF SUCH UNITS WERE MORE THAN THE PRESCRIBED LIMIT FOR ALLOW ANCE OF DEDUCTION U/S 80IB(10) OF THE INCOME-TAX ACT IN VIEW OF THE FACT THAT MORE THAN ONE CONSTRUCTED UNIT WAS JOINED TOGETHER TO MAKE ONE DWELLING UNIT A FACT WHICH IS CLEARLY BROUGHT OUT BY THE A.O IN THE ASSESSMENT ORDER. 7. AT THE TIME OF HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE FAIRLY CONCEDED THAT THIS ASPECT OF THE CONTROVERSY WAS MIS-CONCEIVE D AS THE SAME DOES NOT ARISE OUT OF THE ORDERS OF THE AUTHORITIES BEL OW. ACCORDINGLY ON THIS ASPECT ALSO THE REVENUE FAILS. 8. IN THE RESULT THE APPEAL OF THE REVENUE IS DISMISSE D. DECISION WAS PRONOUNCED IN THE OPEN COURT ON 27 TH DAY OF JULY 2011. SD/- SD/- (I.C. SUDHIR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMB ER PUNE: DATED: 27 TH JULY 2011 B COPY OF THE ORDER IS FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. THE CIT(A)-III PUNE 4. THE CIT-III PUNE 5. THE D.R B BENCH PUNE 6. GUARD FILE TRUE COPY BY ORDER ASSTT. REGISTRAR ITAT PUNE 4