MOT UDHARAM PANJABI, Pune v. ACIT, Central Circle,2(1), PUNE, Pune

ITA 442/PUN/2009 | 2004-2005
Pronouncement Date: 29-07-2011 | Result: Allowed

Appeal Details

RSA Number 44224514 RSA 2009
Assessee PAN AARPP2118D
Bench Pune
Appeal Number ITA 442/PUN/2009
Duration Of Justice 2 year(s) 3 month(s) 11 day(s)
Appellant MOT UDHARAM PANJABI, Pune
Respondent ACIT, Central Circle,2(1), PUNE, Pune
Appeal Type Income Tax Appeal
Pronouncement Date 29-07-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 29-07-2011
Assessment Year 2004-2005
Appeal Filed On 17-04-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV JUDICIAL MEMBER AND SHRI G.S. PANNU ACCOUNTANT MEMBER I.T.A. NO. 442/PN/2009 AND 443/PN/2009 A.Y. 2004-05 & 2005-06 SHRI MOTI UDHARAM PANJABI C/O. SHAH KHANDELWAL JAIN & ASSOCIATES CHARTERED ACCOUNTANTS 1 ST FLOOR ALANKAR CINEMA BUILDING PUNE - 411001 PAN AARPP2118D APPELLANT VS. ASSTT.CIT CEN.CIR.2(1) PUNE. RESPONDENT APPELLANT BY: SHRI NILESH KHANDELWAL RESPONDENT BY: S/SHRI HARESHWAR SHARMA & SANJAY SIN GH ORDER PER SHAILENDRA KUMAR YADAV JM BOTH THESE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST ORDER OF THE CIT(A)-II PUNE DATED 24-03-200 9 FOR A.Y. 2004-05 AND 2005-06 ON THE SIMILAR ISSUES. SO THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY T HIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. IN I.T.A. NO. 442/PN/2009 ASSESSEE HAS OPPOSE D THE ORDER OF CIT(A) ON FOLLOWING GROUNDS. 1. ON FACTS & CIRCUMSTANCES PREVAILING IN THE CASE & AS PER PROVISIONS OF LAW IT BE HELD THAT THE APPELLANT HAS COMPLIED WITH ALL THE CONDITIONS AS PER THE ACT AND IS ELIGIBLE TO CLAIM OF BENEFIT IN PAGE 2 OF 29 I.T.A. NO. 442/PN/2009 AND 443/PN/2009 A.Y. 2004-05 & 2005-06 SHRI MOTI UDHARAM PANJABI TERMS OF PROVISIONS OF SEC. 80IB(10) OF THE ACT. I T FURTHER BE HELD THAT CLAIM OF RS.62 41 605/- MADE BY THE APPELLANT U/S.80IB(10) IS ALLOWABLE DEDUCTION & THE SAME BE ALLOWED AS DEDUCTIBLE AMOUNT. THE DISALLOWANCE MADE BY THE ASSESSING OFFICER & THAT CONFIRMED BY THE 1 ST APPELLATE AUTHORITY BE DELETED. 2. ON FACTS & CIRCUMSTANCES PREVAILING IN THE CASE & AS PER PROVISIONS OF LAW IT BE HELD THAT REASONS ASSIGNED BY THE ASSESSING OFFICER & INTERALIA RELIED UPON BY THE 1 ST APPELLATE AUTHORITY & ADDITIONAL REASONS ASSIGNED BY THE 1 ST APPELLATE AUTHORITY FOR CONFIRMING ADDITION /DISALLOWANCE OF RS.62 41 605/- DO NOT JUSTIFY AND OR /WARRANT SUCH DISALLOWANCE/ ADDITION. 3. ON FACTS & CIRCUMSTANCES PREVAILING IN THE CASE & AS PER PROVISIONS OF LAW IT BE HELD THAT INFERENCE DRAWN BY THE 1 ST APPELLATE AUTHORITY FOR CONFIRMING SUCH DISALLOWANCE /ADDITION ARE PERVERSE. THE DEDUCTION CLAIMED BY THE APPELLANT BE ALLOWED IN FULL AS PER PROVISIONS OF FACTS PREVAILING IN THE CASE. IN ITA NO. 443/PN/2009 FOR AY 2005-06 THE ASSESSEE HAS OPPOSED THE ORDER OF THE CIT(A) ON THE FOLLOWING GR OUNDS: 1. ON FACTS AND CIRCUMSTANCES PREVAILING IN THE CASE AND AS PER PROVISIONS OF LAW IT BE HELD THAT T HE APPELLANT HAS COMPLIED WITH ALL THE CONDITIONS AS P ER THE ACT AND IS ELIGIBLE TO CLAIM OF BENEFIT IN TERM S OF PROVISIONS OF SEC. 80-I(10) OF THE ACT. IT FURTHER BE HELD THAT CLAIM OF RS. 3 05 62 183/- MADE BY THE APPELLA NT U/S 80-IB(10) IS ALLOWABLE DEDUCTION AND THE SAME B E ALLOWED AS DEDUCTIBLE AMOUNT. THE DISALLOWANCE MADE BY THE A.O AND THAT CONFIRMED BY THE FIRST APPELLAT E AUTHORITY BE DELETED. 2. ON FACTS AND CIRCUMSTANCES PREVAILING IN THE CASE AND AS PER PROVISIONS OF LAW IT BE HELD THAT REASONS ASSIGNED BY THE A.O AND INTER ALIA RELIED U PON PAGE 3 OF 29 I.T.A. NO. 442/PN/2009 AND 443/PN/2009 A.Y. 2004-05 & 2005-06 SHRI MOTI UDHARAM PANJABI BY THE FIRST APPELLATE AUTHORITY AND ADDITIONAL REA SONS ASSIGNED BY THE FIRST APPELLATE AUTHORITY FOR CONFI RMING ADDITION/DISALLOWANCE OF RS. 3 05 62 183/- DO NOT JUSTIFY AND/OR WARRANT SUCH DISALLOWANCE/ADDITION. 3. ON FACTS AND CIRCUMSTANCES PREVAILING IN THE CAS E AND AS PER PROVISIONS OF LAW IT BE HELD THAT INFER ENCE DRAWN BY THE FIRST APPELLATE AUTHORITY FOR CONFIRMI NG SUCH DISALLOWANCE/ADDITION ARE PERVERSE. THE DEDUCTION CLAIMED BY THE APPELLANT BE ALLOWED IN FU LL AS PER PROVISIONS OF THE ACT AND FACTS PREVAILING I N THE CASE. 3. THE ASSESSEE IS A PROPRIETOR OF RAMA BUILDERS & DEVELOPERS WHICH IS ENGAGED IN DEVELOPMENT OF HOUSI NG PROJECTS. IN THIS CASE SEARCH AND SEIZURE OPERATIO N WAS CONDUCTED ON 17/03/2006. THE RETURN IN RESPONSE TO NOTICE U/S. 153A WAS FILED ON 08/10/2009 FOR THE A. Y. 2004-05 DECLARING TOTAL INCOME OF RS.23 29 090/- AN D THE ASSESSMENT WAS COMPLETED AT A TOTAL INCOME OF RS.86 66 995/- BY THE CONCERNED A.O. WHICH WAS CONF IRMED BY THE CIT(A). THE MAIN ISSUE IN THE APPEAL IS WITH REGARD TO DISALLOWANCE OF CLAIM U/S 80IB(10) WHICH WAS MAD E AT RS.62 41 605/-. THE A.O. DISALLOWED THE CLAIM UNDE R 80IB(10) ON THE BASIS OF VARIOUS DEFICIENCIES FOUND VIS-A-VIS THE PROVISIONS OF THIS SECTION. THE DEFICIENCIES FOUND THE ASSESSEES CLARIFICATIONS AND THE COMMENTS OF THE A.O. ARE GIVEN BELOW IN TABULAR FORM REPRODUCED FROM THE ASSESSMENT ORDER. PAGE 4 OF 29 I.T.A. NO. 442/PN/2009 AND 443/PN/2009 A.Y. 2004-05 & 2005-06 SHRI MOTI UDHARAM PANJABI SR. NO DEFICIENCY FOUND ASSESSEES CLARIFICATIONS COMMENTS OF THE A.O. 1 COPY OF SANCTIONED PLAN BY PCMC PUNE PUNE SHOWS THAT THE ORIGINAL AND THE INITIAL PLAN WAS SANCTIONED ON 8-8-1996. THIS FACT HAS NOTHING TO DO WITH THE CLAIM MADE U/S 80LB(10) BECAUSE THE CLAIM RELATES TO SECTOR B WHICH IS SANCTIONED BY COMMENCEMENT CERTIFICATE DATED 18/7/2003. THE COMMENCEMENT CERTIFICATE DATED 18/7/2003 FOR THE PURPOSES OF MENTIONING 'REVISED COMMENCEMENT CERTIFICATE' REFERS TO THE COMMENCEMENT CERTIFICATE DATED 19/5/1997 WHICH AGAIN REFERS TO THE INITIAL COMMENCEMENT CERTIFICATE DATED 8/8/1996. 2 EXPLN [I] TO SEC. 80LB(10) REQUIRED THAT IN A CASE WHERE THE APPROVAL IN RESPECT OF THE HOUSING PROJECT IS OBTAINED MORE THAN ONCE SUCH HOUSING PROJECT SHALL BE DEEMED TO HAVE BEEN APPROVED ON THE DATE ON WHICH THE BUILDING PLAN OF SUCH HOUSING PROJECT IS FIRST APPROVED BY THE LOCAL AUTHORITY.' SO THE NEW PROJECT CALLED SECTOR B HAS TO BE HELD TO BE IN CONTINUATION OF THE FIRST PROJECT IT IS INCORRECT TO CORRELATE THE SECTOR B PROJECT WITH THE SECTOR A PROJECT. THEREFORE THIS EXPLANATION[I] DOES NOT ATTRACT TO THE ASSESSEE'S CLAIM UNDER CONSIDERATION. BOTH THE PROJECTS CALLED SECTOR A & B ARE LOCATED IN THE SAME PLOT OF LAND. THAT BEING THE FACT THE PCMC WHILE SANCTIONING THE NEW PROJECTS RECKONS THEM AS EXPANSION OF THE ORIGINAL SCHEME. THIS IS ONLY FOR THEIR CONVENIENCE AND HAS NO LEGAL STANDING. FOR ALL OTHER PURPOSES SECTOR B IS AN INDEPENDENT PROJECT SANCTIONED 18/7/2003. THE EXPLANATION [I] TO SECTION 80LB(10) IS CLEAR IN ITS CONSTRUCTION AND TERMS. THIS IS A CASE WHERE THE APPROVAL IN RESPECT OF THE HOUSING PROJECT IS OBTAINED MORE THAN ONCE AND HENCE THIS HOSING PROJECT IS DEEMED TO HAVE BEEN APPROVED ON THE DATE ON WHICH THE BUILDING PLAN HAS FIRST BEEN APPROVED WHICH HAPPENS TO BE 8/8/1996. SECONDLY THE ASSESSEE'S CONTENTION THAT IN SECTOR B THERE ARE NO COMMERCIAL UNITS AND ALL ARE ONLY RESIDENTIAL UNIT S STRENGTHENS THE FACT THAT AS PER DC RULES MORE SPECIFICALLY BY VIRTUE OF DC RULE NO IT IS MANDATORY FOR OBTAINING APPROVAL FOR A HOUSING PROJECT ONLY AFTER PROVIDING 5% AREA FOR CONVENIENT COMMERCIAL UNITS. THE FACT THAT THE ASSESSEE GOT 100% AREA FOR RESIDENTIAL UNITS ALONE SHOWS THAT WHILE SANCTIONING THE PAGE 5 OF 29 I.T.A. NO. 442/PN/2009 AND 443/PN/2009 A.Y. 2004-05 & 2005-06 SHRI MOTI UDHARAM PANJABI CALLED SECTOR A COMMENCED ON 8-8-1996. PLAN OF SECTOR B THE CONCERNED SANCTIONING AUTHORITY HAS CONSIDERED THE FULFILLMENT OF THE REQUIREMENT OF AREA FOR COMMERCIAL UNITS PROVIDED BY THE ASSESSEE IN SECTOR A. IN THIS WAY SECTOR B IS NOT AN INDEPENDENT AND ISOLATED PROJECT AS CLAIMED. 3 THE PROJECT IS APPROVED PRIOR TO 1-10-1998 AND AS SUCH THIS PROJECT DOES NOT QUALIFY FOR THE DEDUCTION U/S. 80IB(10). IT IS INCORRECT TO CORRELATE THE SECTOR B PROJECT WITH THE SECTOR A PROJECT. SECTOR B PROJECT WAS COMMENCED AS PER CERTIFICATE DATED 18/7/2003 AS SUCH IT WAS NOT APPROVED PRIOR TO 1-10-1998. THE COMMENTS IN ITEM 2 ABOVE ARE APPLICABLE TO THIS ITEM; HENCE NOT REPEATED. 4 THE AREA OF THE PLOT IS 8300 SQ. MTR I.E. 89 308 SQ. FT. HOWEVER THIS PROJECT IS RESIDENTIAL CUM COMMERCIAL. THE SANCTION RESIDENTIAL AREA IS 2502.85 SQ. MTR. I.E. 26 930 SQ. FT AND THE SANCTIONED COMMERCIAL AREA IS 520.33 SQ.MTRS. I.E.5 598 SQ.FT .SECTION 80IB(10} ALLOWS DEDUCTION FOR HOUSING PROJECT. THE PROJECT OF THE SECTOR A COMPRISED OF COMMERCIAL AND RESIDENTIAL UNITS. SECTOR B COMPRISES ONLY RESIDENTIAL PROJECTS. THIS SHOWS THAT IN SECTOR B RESIDENTIAL UNITS ARE 100%. THERE IS THEREFORE NO QUESTION OF MAINTAINING ANY RATIO BETWEEN COMMERCIAL AND RESIDENTIAL UNITS. COMMENTS MENTIONED AGAINST ITEM NO.2 TAKE CARE OF THE DEFICIENCY MENTIONED IN THIS ITEM. THE CLAIM OF THE ASSESSEE THEREFORE FAILS. PAGE 6 OF 29 I.T.A. NO. 442/PN/2009 AND 443/PN/2009 A.Y. 2004-05 & 2005-06 SHRI MOTI UDHARAM PANJABI ASSESSEE WAS SANCTIONED AS RESIDENTIAL COMMERCIAL BY PIMPRI CHINCHWAD MUNICIPLE CORPORATION 5 WITH EFFECT FROM 1-4-2005 WHICH SAYS THAT BUILT UP AREA OF THE SHOPS AND OTHER COMMERCIAL ESTABLISHMENTS INCLUDED IN THE HOUSING PROJECT DOES NOT EXCEED 5% OF THE AGGREGATE BUILD UP AREA OF THE HOUSING PROJECT OR 2000 SQ.FT. WHICHEVER IS LESS. SECTOR B COMPRISES ONLY RESIDENTIAL PROJECTS. THIS SHOWS THAT IN SECTOR B RESIDENTIAL UNITS ARE 100%. THERE IS THEREFORE NO QUESTION OF MAINTAINING ANY RATIO BETWEEN COMMERCIAL AND RESIDENTIAL UNITS COMMENTS AGAINST ITEM NO..2 ARE APPLICABLE HERE ALSO. 6 THIS AMENDMENT TALKS ABOUT THE HOUSING PROJECTS WHICH HAS BEEN APPROVED PRIOR TO FIRST DAY OF APRIL 2004. THE ASSESSEE'S PROJECT HAS A COMMERCIAL AREA OF 5 598 SQ.FT. WHICH IS MORE THAN 2000 SQ.FT AND ALSO MORE THAN 5% LIMIT . THE ASSESSEE IS NOT ENTITLED FOR IN SECTOR B THERE ARE NO COMMERCIAL UNITS. HENCE BOTH THE CEILINGS HAVE NOT BEEN CROSSED /EXCEEDED BY THE ASSESSEE. COMMENTS AGAINST ITEM NO..2 ARE APPLICABLE HERE ALSO. PAGE 7 OF 29 I.T.A. NO. 442/PN/2009 AND 443/PN/2009 A.Y. 2004-05 & 2005-06 SHRI MOTI UDHARAM PANJABI DEDUCTION U/S 80IB(10}. 7 AN A UDIT REPORT FOR THE ELIGIBLE BUSINESS HAD TO BE DRAFTED FOR WHICH SEPARATE BOOKS OF ACCOUNT SHOULD HAVE BEEN MAINTAINED. AN AUDIT REPORT FOR THE ELIGIBLE BUSINESS HAS BEEN SUBMITTED ALONG WITH THE RETURN. THERE IS NO PROVISION IN THE ACT SAYING THAT SEPARATE BOOKS SHOULD BE MAINTAINED FOR THE ELIGIBLE BUSINESS ALONE. ALTHOUGH AN AUDIT REPORT IS FURNISHED FOR THE IMPUGNED ELIGIBLE UNIT THE AUDITORS HAVE STATED THAT WHERE THE INDIRECT EXPENSES COULD NOT BE ATTRIBUTED TO THE ELIGIBLE UNIT THEY ARE APPORTIONED ON PRO-RATA BASIS BETWEEN THE ELIGIBLE AND NON-ELIGIBLE BUSINESS UNITS. TO THAT EXTENT IT HAS TO BE SAID THAT ALTHOUGH THERE IS NO EXPLICIT PROVISION FOR MAINTENANCE OF SEPARATE BOOKS OF ACCOUNT IMPLIEDLY IT INDICATES THE ESSENTIALITY OF MAINTAINING SUCH ACCOUNTS SEPARATELY FOR THE PURPOSE OF SEEKING BENEFITS OF SEC. 80IB[10]. THE ASSESSEE'S EXPLANATION THEREFORE IS NOT ACCEPTABLE. 3. ACCORDING TO THE A.O. THE INITIAL COMMENCEMENT CERTIFICATE FOR THE PROJECT AS A WHOLE WAS DATED 08 /08/1996 AND IN ALL THE SUBSEQUENT COMMENCEMENT CERTIFICATES DATED 19/05/1997 15/02/2003 AND 18/07/2003 IT WAS MENTIONED THAT THOSE WERE REVISED PLAN/APPROVALS. THEREFORE IT WAS HELD THAT THE ASSESSEES PROJECT COMMENCED PRIOR TO 01/10/1998 AND THEREFORE DEDUCTI ON U/S.80IB(10) COULD NOT BE ALLOWED. HE ALSO OBSERV ED THAT ASSESSEE HAD ARTIFICIALLY DIVIDED THE PROJECT WHICH WAS ALREADY UNDER EXECUTION INTO TWO PARTS CALLING THE M PAGE 8 OF 29 I.T.A. NO. 442/PN/2009 AND 443/PN/2009 A.Y. 2004-05 & 2005-06 SHRI MOTI UDHARAM PANJABI SECTOR A AND SECTOR B. IN RESPECT OF ABOVE MEN TIONED SECTOR B CLAIM FOR DEDUCTION U/S.80IB(10) WAS CLAIM ED FOR THE A.Y.2004-05 AND 2005-06. THE OBJECTION OF A.O. WAS THAT IN CASE IT WAS A NEW PROJECT THERE SHOULD HAVE BEEN NEW PROJECT REPORT NEW LAYOUT AND NEW SANCTION ORD ER. BASED ON THESE OBSERVATIONS THE A.O. HELD THAT SECT OR A AND SECTOR B WERE PART OF THE SAME PROJECTS AND THE INITIAL COMMENCEMENT CERTIFICATE WAS DATED 08/08/1996 AND THEREFORE PRIOR TO 01/10/1998 AS SUCH DEDUCTION U/S.80IB(10) WAS DENIED WHICH WAS CONFIRMED BY CIT( A). SAME HAS BEEN OPPOSED BEFORE US. ON THE OTHER HAND LEARNED DR SUPPORTED THE ORDER OF THE ASSESSING OFF ICER. 4. AFTER GOING THROUGH RIVAL SUBMISSIONS AND MATERI AL ON RECORD WE FIND IT APPROPRIATE TO ANALYZE THE PROVI SION OF SECTION 80IB(10) WHICH READS AS UNDER. 80IB(10): THE AMOUNT OF DEDUCTION IN THE CASE OF A N UNDERTAKING DEVELOPING AND BUILDING HOUSING PROJECT S APPROVED BEFORE 31 ST DAY OF MARCH 2007 BY A LOCAL AUTHORITY SHALL HUNDRED PER CENT OF THE PROFITS DE RIVED IN THE PREVIOUS YEAR RELEVANT TO ANY ASSESSMENT YEA R FROM SUCH HOUSING PROJECT IF (A) SUCH UNDERTAKING HAS COMMENCED OR COMMENCES DEVELOPMENT AND CONSTRUCTION OF THE HOUSING PROJECT ON OR AFTER THE 1 ST DAY OF OCTOBER 1998 AND COMPLETES SUCH CONSTRUCTION PAGE 9 OF 29 I.T.A. NO. 442/PN/2009 AND 443/PN/2009 A.Y. 2004-05 & 2005-06 SHRI MOTI UDHARAM PANJABI (I) IN A CASE WHERE A HOUSING PROJECT HAS BEEN APPROVED BY THE LOCAL AUTHORITY BEFORE THE 1 ST DAY OF APRIL 2004 ON OR BEFORE THE 31 ST DAY OF MARCH 2008; (II) IN A CASE WHERE A HOUSING PROJECT HAS BEEN OR IS APPROVED BY THE LOCAL AUTHORITY ON OR AFTER THE 1 ST DAY OF APRIL 2004 WITHIN FOUR YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE HOUSING PROJECT IS APPROVED BY THE LOCAL AUTHORITY. (III) IN A CASE WHERE A HOUSING PROJECT HAS BEEN APPROVED BY THE LOCAL AUTHORITY ON OR AFTER THE 1 ST DAY OF APRIL 2005 WITHIN FIVE YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE HOUSING PROJECT IS APPROVED BY THE LOCAL AUTHORITY. EXPLANATION FOR THE PURPOSES OF THIS CLAUSE - (I) IN A CASE WHERE THE APPROVAL IN RESPECT OF THE HOUSING PROJECT IS OBTAINED MORE THAN ONCE SUCH HOUSING PROJECT SHALL BE DEEMED TO HAVE BEEN APPROVED ON THE DATE ON WHICH THE BUILDING PLAN OF SUCH HOUSING PROJECT IS FIRST APPROVED BY THE LOCAL AUTHORITY; (II) THE DATE OF COMPLETION OF CONSTRUCTION OF THE HOUSING PROJECT SHALL BE TAKEN TO BE THE DATE ON WHICH THE COMPLETION CERTIFICATE IN RESPECT OF SUCH HOUSING PROJECT IS ISSUED BY THE LOCAL AUTHORITY; (B) THE PROJECT IS ON THE SIZE OF A PLOT OF LAND WHICH HAS A MINIMUM AREA OF ONE ACRE : PAGE 10 OF 29 I.T.A. NO. 442/PN/2009 AND 443/PN/2009 A.Y. 2004-05 & 2005-06 SHRI MOTI UDHARAM PANJABI PROVIDED ---------- (C) THE RESIDENTIAL ---------------- 5. ACCORDING TO ASSESSING OFFICER DATE OF SANCTION PLAN IS 8-8-1996 WHICH IS PRIOR TO 1/10/1998. ALL OTHER SUBSEQUENT CERTIFICATES DATED 19-5-1997 15-2-2003 AND 18-7-2003 WERE REVISED PLANS. ASSESSEE HAS ARTIFICI ALLY DIVIDED THE PROJECT INTO A AND B SECTOR. SO ASSESSE E IS NOT ELIGIBLE FOR DEDUCTION U/S 80-IB(10). WE FIND THAT IN GENERAL THE PROJECT OF DEVELOPMENT OF BUILDING IS STARTED B Y A DEVELOPER FOR WHICH HE HAS TO SUBMIT THE BUILDING P LANS WHICH ARE PREPARED BY ARCHITECT AS PER NORMS OF JURISDICTIONAL CORPORATION. ON SCRUTINY OF THE BUI LDING PLANS AND AFTER PAYING FEES SUCH PLAN IS APPROVE D BY THE CORPORATION. ON APPROVAL OF BUILDING PLAN THE COMMENCEMENT CERTIFICATE IS ISSUED BY CORPORATION I N WHICH CONDITIONS AS LAID DOWN BY CORPORATION HAVE T O BE COMPLIED BY DEVELOPER FOR UNDERTAKING THE DEVELOPME NT. AS SUCH BUILDING PLAN IS SUBJECT TO CONDITIONS MENTION ED IN THE COMMENCEMENT CERTIFICATE. THE BUILDING PLAN BEA RS THE NO. OF COMMENCEMENT CERTIFICATE FOR THE PURPOSE OF CROSS REFERENCE BY CORPORATION AS AND WHEN BUILDING PLAN IS MODIFIED A FRESH COMMENCEMENT CERTIFICATE IS ISSUE D. THE CHANGED IN BUILDING PLAN WOULD BE MENTIONED IN THAT COMMENCEMENT CERTIFICATE NUMBER SO THAT FILE IN WHI CH PROJECT DETAILS MENTIONED CAN EASILY BE REFERRED B Y THE CORPORATION. THE BUILDING PLAN SANCTION IS THE FINA L DRAWING APPROVED BY CORPORATION FOR COMMENCEMENT OF CONSTRUCTION ACTIVITY. THE DEVELOPER HAS TO INTIM ATE AND PAGE 11 OF 29 I.T.A. NO. 442/PN/2009 AND 443/PN/2009 A.Y. 2004-05 & 2005-06 SHRI MOTI UDHARAM PANJABI GET APPROVAL OF CORPORATION AS AND WHEN HE INTENDS TO MODIFY OR CHANGE A STRUCTURE OF BUILDING AS COMPARE D WITH THE SANCTIONED DRAWING. SUCH BUILDING PLANS AFTER ITS FIRST APPROVAL MAY UNDERGO CHANGES FOR VARIOUS REASONS. T HE REFERENCE OF FIRST COMMENCEMENT CERTIFICATE ON SUBS EQUENT PLAN/ MODIFICATION IS FOR INTERNAL REFERENCE BY COR PORATION. ONCE THE CONSTRUCTION ACTIVITY IS COMPLETED BY THE DEVELOPER AS PER THE APPROVED PLANS AND AFTER COMPL YING WITH ALL THE CONDITIONS AS MENTIONED IN THE COMMENC EMENT CERTIFICATE THE DEVELOPER CAN APPLY FOR COMPLETION CERTIFICATE. A COMPLETION CERTIFICATE IS NORMALLY GRANTED AFTER THE DEVELOPER HAS OBTAINED NO OBJECTION CERTI FICATE FROM VARIOUS STATUTORY AUTHORITIES AND HAS SUBMITT ED THE SAME TO THE CORPORATION ALONGWITH FINALLY APPROVED PLAN. THE COMPLETION CERTIFICATE IS ISSUED BY CORPORATION FOR A PROJECT CERTIFYING THAT ALL STATUTORY COMPLIANCES F OR BUILDING HAVE BEEN DULY ADHERED BY THE DEVELOPER. 6. IN THE INSTANT CASE THE ASSESSEE HAS COMMENCED T HE DEVELOPMENT OF PROJECT ON 08/08/96 AS EVIDENT FROM COMMENCEMENT CERTIFICATE WHICH IS PLACED AT PAGE 8 OF PAPER BOOK ISSUED BY THE CORPORATION. THE COMMENCE MENT OF THE SAID PROJECT WAS FOR THE BUILDING PLANS APPR OVED ON SECTOR A ONLY WHICH IS EVIDENT FROM THE FACT THAT W HILE ISSUING THE SAID COMMENCEMENT CERTIFICATE FOR START ING THE CONSTRUCTION ACTIVITY ON PROJECT IT WAS SPECIFICAL LY MENTIONED THEREIN THAT EXISTING STRUCTURE TO BE DEM OLISHED AT THE TIME OF SECTOR B WILL BE DEVELOPED. IT MEAN S IN COMMENCEMENT CERTIFICATE DATED 8-8-1996 WAS PERTAIN ING PAGE 12 OF 29 I.T.A. NO. 442/PN/2009 AND 443/PN/2009 A.Y. 2004-05 & 2005-06 SHRI MOTI UDHARAM PANJABI TO SECTOR A ONLY WHEREIN WITH REGARDS TO SECTOR B IT WAS MENTIONED THAT EXISTING STRUCTURE TO BE DEMOLISHED AT THE TIME WHEN THE SECTOR B WOULD BE DEVELOPED. THE DEVELOPMENT COMMENCED ON SECTOR A ALSO UNDERWENT MODIFICATIONS FROM TIME TO TIME AND THE DETAILS OF THE VARIOUS COMMENCEMENTS CERTIFICATE FOR SECTOR A ARE TABULATED AS UNDER. S.NO DATE OF RECEIPT OF APPLICATION BY PCMC COMMENCEMENT CERTIFICATE DATE & NO. 1 06/02/1996 BP/CHINCHWAD/59/96 DATED 08/08/1996 2 15/01/1997 BP/CHINCHWAD/75/97 DATED 19/05/1997 IT IS ONLY ON 15/02/2003 ASSESSEE WAS ABLE TO OBTAI N THE COMMENCEMENT CERTIFICATE FOR COMMENCEMENT OF BUILDI NG PROJECT OF SECTOR B WHICH IS EVIDENT FROM THE FACT THAT THE COMMENCEMENT CERTIFICATE ISSUED ON 15/02/2003 DOES NOT BEAR ANY CONDITIONS IN RESPECT OF NON DEVELOPMENT OF ANY PORTION OF LAND. THE SANCTIONED PLAN DATED 15/02/20 03 PERTAINS TO PLANS OF SECTOR B WHICH WAS NOT GRANTED EARLIER AS DISCUSSED ABOVE. HOWEVER THE CORPORATION HAS REFERRED TO COMMENCEMENT CERTIFICATE DATED 19/05/1997 WHILE SANCTIONING THE BUILDING PLAN ON 15/02/2003 WHICH M AY BE FOR CONVENIENCE FOR INTERNAL REFERENCE ONLY. THU S THE REFERENCE OF COMMENCEMENT CERTIFICATE DATED 19/05/1 997 ON BUILDING PLAN LAYOUT OF SECTOR B DATED 15/02/20 03 HAS NO SIGNIFICANCE EXCEPT THAT OF THE CROSS REFERENCES . WITHOUT PREJUDICE TO ABOVE WE FIND THAT THE COMMENCEMENT PAGE 13 OF 29 I.T.A. NO. 442/PN/2009 AND 443/PN/2009 A.Y. 2004-05 & 2005-06 SHRI MOTI UDHARAM PANJABI CERTIFICATE DATED 19/05/1997 SPECIFICALLY DENIED DEVELOPMENT ON SECTOR B IN ABSENCE OF FULFILLING TH E STIPULATED CONDITION MENTIONED IN AS PER THE SAID COMMENCEMENT CERTIFICATE. THE COMMENCEMENT CERTIFIC ATE ISSUED BY CORPORATION FROM TIME TO TIME AS PER THE BUILDING PLANS MODIFIED FOR THE BUILDINGS IN SECTOR B ARE A S PER CHART BELOW. S.NO DATE OF RECEIPT OF APPLICATION BY PCMC COMMENCEMENT CERTIFICATE DATE & NO. 1 10/12/2002 BP/CHINCHWAD/17/2003 DATED 15/02/2003 2 06/06/2003 BP/CHINCHWAD/63/2003 DATED 18/07/2003 3 12/01 /2005 BP/CHINCHWAD/26/2005 DATED 24/03/2005 IN THIS BACKGROUND THE ASSESSEE WAS JUSTIFIED TO SU BMIT THAT THE COMMENCEMENT CERTIFICATE DATED 15/02/2003 IS COMMENCEMENT CERTIFICATE FOR DEVELOPMENT OF SECTOR B BECAUSE IN FIRST SANCTION I.E. COMMENCEMENT CERTIFI CATE DATED 19/05/1997 THERE WAS A PROBABILITIES WITH REG ARD TO DEVELOPMENT OF SECTOR B ON ACCOUNT OF DEFICIENCY MENTIONED THEREON. FURTHER THE COMMENCEMENT CERTIF ICATE DATED 08/08/1996 ALONG WITH CORRESPONDING SANCTIONE D PLAN WAS ONLY FOR SECTOR A WHICH IS EVIDENT FROM TH E FACT THAT SAID COMMENCEMENT CERTIFICATE WAS SUBJECT TO CONDITION NO.1 TO 11 AS MENTIONED IN PARA 7.1 OF CI T(A)S ORDER AS UNDER. PAGE 14 OF 29 I.T.A. NO. 442/PN/2009 AND 443/PN/2009 A.Y. 2004-05 & 2005-06 SHRI MOTI UDHARAM PANJABI 'PERMISSION FOR DEVELOPMENT OF SECTOR 'B' SHALL NOT GRANTED UNLESS THE DULY MODIFIED 8(4) ORDER FROM U.L.C. IN ACCORDANCE WITH THE APPROVED DEVELOPMENT PLAN IS SUBMITTED .' BY VIRTUE OF CONDITIONS LAID DOWN IN LETTER DATED 19/11/2008 THE SAID COMMENCEMENT CERTIFICATE DATED 19/05/1997 DID NOT ALLOW ANY CONSTRUCTION ACTIVITY IN SECTOR B OF THE SANCTIONED LAY OUT. HOWEVER IN SUB SEQUENT COMMENCEMENT CERTIFICATE AND THE LAYOUT PLAN DATED 15/02/2003 THE ABOVE MENTIONED CONDITIONS HAVE BEEN TAKEN CARE. ACCORDINGLY SAME IS THE MATTER OF RECO RD. THEREFORE THE ASSESSEE IS JUSTIFIED IN CLAIMING TH AT SECTOR B IS AN INDEPENDENT AND SEPARATE PROJECT AND HENCE ELIGIBLE FOR DEDUCTION U/S. 80IB(10). TO SUM UP TH E ORIGINAL COMMENCEMENT CERTIFICATE DATED 08/08/1996A ND REVISED CERTIFICATE 19/05/1997 THERE WAS A CONDITIO N ACCORDING TO WHICH SECTOR B AREA DEVELOPMENT PLAN C OULD NOT BE SANCTIONED UNLESS ORDER U/S.8(4) ULC WAS OBT AINED FROM CONCERNED AUTHORITY. SUBSEQUENTLY COMMENCEMENT CERTIFICATES DATED 15/12/2003 AND 18/07/2003 WERE W ITH REGARDS TO SECTOR B FOR WHICH ULC CERTIFICATE WAS OBTAINED BY ASSESSEE. SO THESE ARE CLEARLY TWO PROJECTS HAVI NG DIFFERENT COMMENT CERTIFICATES. 7. AFTER COMPLETING ENTIRE PROJECT OF SECTOR A & B ASSESSEE APPLIED TO CORPORATION FOR THE ISSUE OF CO MPLETION CERTIFICATE. SINCE THE LAYOUT OF THE LAND SANCTION ED BY CORPORATION WAS FOR ENTIRE LAND WHICH INCLUDES SEC TOR A & B. ACCORDINGLY FOR CONVENIENCE THE CORPORATION HAS ISSUED A SINGLE FINAL COMPLETION CERTIFICATE BUT FACT RE MAINS THAT PAGE 15 OF 29 I.T.A. NO. 442/PN/2009 AND 443/PN/2009 A.Y. 2004-05 & 2005-06 SHRI MOTI UDHARAM PANJABI ASSESSEE HAS COMPLETED TWO PROJECTS AS MENTIONED AB OVE AS SECTOR A AND SECTOR B. 8. ACCORDING TO THE PROVISIONS OF 80IB(10)(B) MINIM UM AREA FOR 4047 SQ.MT. IS CONDITION PRECEDENT FOR ALL OWING DEDUCTION IN QUESTION. AS PER SANCTIONED PLAN DATED 08/08/1996 FOLLOWING AREA STATEMENT WAS GIVEN. ACCORDING TO A.O. NET PLOT AREA OF 5612.9 SQ.MT. WA S DIVIDED AS FOLLOWS SECTOR A PLOT AREA 2932.25 SQ. MT. AND SECTOR B PLOT AREA 2680.66 SQ.MT. THEREFORE IT WA S NOTICED THAT IF AS PER ASSESSEES CONTENTION SECTOR A & B A RE TO BE TREATED AS SEPARATE PROJECTS ALTOGETHER TOTAL NET AREA OF SECTOR B AFTER REDUCING THE AREA UNDER DEVELOPMENT PLAN ROAD AND AREA UNDER RESERVATION FOR SCHOOL PLUS OPE N SPACE DEDUCTION OF 630 SQ.MTRS. FALLS MUCH BELOW T HE STIPULATED AREA MINIMUM OF 1 ACRE I.E. 4047 SQ.MTRS . IN ACCORDANCE WITH SECTION 80IB(10)(B). THE AREA UNDER DEVELOPMENT PLAN ROAD IS TO BE TRANSFERRED TO PCMC AND IS NOT UNDER OWNERSHIP OF THE ASSESSEE. FURTHER THE RESERVATION MADE BY SCHOOL IS ALSO NOT PART OF PROJ ECT AND IS TO BE HANDED OVER TO PCMC FOR ESTABLISHING A SC HOOL FOR PEOPLE OF THE AREA IN GENERAL. ONLY THE OPEN SPAC E IS PART OF PROJECT AND EVEN IF THE CORRESPONDING TO SECTOR B IS PARTICULARS SQ.MTRS. TOTAL AREA OF PLOT 8300.00 DEDUCTIONS I) D P ROAD 1709.24 II) RESERVATION FOR 347.85 III) OPEN SPA CE 630.00 NET PLOT AREA 5612.91 PLOT AREA OF SECTOR A 2636.29 PLOT AREA OF SECTOR B 2976.62 PAGE 16 OF 29 I.T.A. NO. 442/PN/2009 AND 443/PN/2009 A.Y. 2004-05 & 2005-06 SHRI MOTI UDHARAM PANJABI ADDED TO THE NET AREA IT IS LESS THAN MINIMUM AREA OF 1 ACRE AS PRESCRIBED UNDER SECTION 80IB(10) WHICH IS EQUAL TO 4047 SQ.MTRS. IN APPEAL CIT(A) OBSERVED THAT THE AR CHITECT MADE ALLOCATION OF SECTOR A & B AS PER REVISED PLAN AS UNDER. NET PLOT AREA OF SECTOR A 2932.25 SQ.MTRS ADD: D.P. ROAD (20 MTR. PERTAINING TO SECTOR A ) 474.75 SQ. MTRS ------------------- 3407.00 SQ. MTRS BALANCE PLOT AREA OF SECTOR B 8300.00 (-) 3407 -------------------- 4893.00 SQ. MTRS BUILT UP AREA OF SECTOR B 5188.96 SQ. MTRS ============== THIS CALCULATION MADE ON BEHALF OF ASSESSEE WAS BY ARCHITECT WAS NOT FOUND CORRECT BY THE CIT(A). IN THE LIGHT OF VARIOUS LAYOUT PLAN DISCUSSED CIT(A) OBSERVED TH AT IN SECTOR A OPEN SPACE WAS NOT CONSIDERED AT ALL. AS PER REVISED SANCTION PLAN NO. BP/CHINCHWAD/17/2003 DAT ED 15/02/2003 AND BP/CHINCHWAD/63/2003 DATED 18/07/2003 WHICH PERTAINING TO SANCTION PLAN FOR DEVELOPMENT OF SECTOR B OPEN SPACE AREA HAS BEEN M ARKED IN SECTOR A AT 283 SQ.MTRS. AND IN SECTOR B AT 341 .29 SQ.MTRS. THEREFORE ACTUAL PLOT AREA OF SECTOR A F OR ABOVE COMPUTATION BY ARCHITECT WOULD BE 3407 + 283 = 3690 SQ.MTR. AND BALANCE AREA FOR SECTOR B WOULD BE 8300 -3690 = 4610 SQ.MTRS AND NOT 4893 SQ.MTRS. OBSERVED BY CI T(A). HE FURTHER OBSERVED THAT FROM THIS BALANCE OF SECTO R B 4610 SQ.MTRS THE D.P. ROAD (12 MTRS WIDE ROAD PERT AINING PAGE 17 OF 29 I.T.A. NO. 442/PN/2009 AND 443/PN/2009 A.Y. 2004-05 & 2005-06 SHRI MOTI UDHARAM PANJABI TO SECTOR B) I.E.1239.49 SQ. MTRS AND SCHOOL RES ERVATION AREA FALLING WITHIN LAYOUT OF SECTOR B I.E.347.85 SQ.MTRS WOULD BE DEDUCTED LEAVING A BALANCE OF ONLY 3022.6 6 SQ. MTRS PLOT AREA IN SECTOR B. IN THIS BACKGROUND CIT(A) OBSERVED THAT AS PER PROVISIONS OF SECTION 80IB(10) (B) PROJECT SHOULD BE ON THE SIZE OF PLOT OF LAND WHICH HAS MINIMUM AREA OF ONE ACRE. REFERENCE TO THE WOR D PLOT OF LAND THAT THE PROJECT SHOULD BE ON A PLOT WHICH IS AVAILABLE FOR CONSTRUCTION AS PER THE PCMC RULES AFTER THE MANDATORY RESERVATION AND EXTRACTIONS FOR THE PURPO SE OF DEVELOPMENT PLAN ROAD AREA ARE EXCLUDED FROM GROSS AREA OF LAND AND THERE IS NO SCOPE OF CONSIDERING FSI GR ANTED IN LIEU OF SUCH EXTRACTION OR RESERVATION TOWARDS THIS DEFINITION OF PLOT OF LAND. SECTION 80IB(10) DOES NOT TALK ANYTHING ABOUT FSI OR FAR OR TDR. ACCORDING TO CIT (A) CIRCULAR NO.5 DATED 15/07/2005 ISSUED BY CBDT CONTAINING EXPLANATORY NOTES ON PROVISIONS RELATED TO FINANCE NO.2 ACT 2004 AS CONTAINED IN 276 ITR (ST) 171 STATES THAT AREA LIMIT OF THE PLOT HAS TO BE CONSTR UED WITH REFERENCE TO AREA OF SITE ON WHICH THE HOUSING PROJ ECT IS CONSTRUCTED AND NOT WITH REFERENCE TO THE DEMARCATI ON OF LAND BY THE LAND DEVELOPMENT AUTHORITY. IN VIEW T HE CIT(A) HELD THAT AFTER PERUSAL OF CONSTRUCTION ON LAND BY PCMC TOWARDS DEVELOPMENT PLAN ROAD AND THE RESERVA TION FOR SCHOOL THE AREA OF PLOT OF LAND FOR SECTOR B RE MAINS AT ONLY 3022.66 SQ.MTRS. WHICH IS LESS THAN ONE ACRE (4047 SQ.MTRS). THE FSI/FAR GRANTED IN LIEU OF SUCH EXTR ACTION CANNOT BE CONSIDERED AS CONTRIBUTING TOWARDS THIS MINIMUM ONE ACRE CRITERION BECAUSE THE SECTION SPEA KS OF PAGE 18 OF 29 I.T.A. NO. 442/PN/2009 AND 443/PN/2009 A.Y. 2004-05 & 2005-06 SHRI MOTI UDHARAM PANJABI PHYSICAL AREA OF PLOT OF ONE ACRE AND NOT FOR FSI E TC. THE PROJECT EXPLANATION OF ASSESSEE THAT SECTOR A & B WERE SEPARATE PROJECT THEREFORE THE COMMENCEMENT WAS N OT PRIOR TO 01/10/1998 AS ALLEGED BY THE A.O.WAS CONSI DERED STILL THE CLAIM OF DEDUCTION U/S. 80IB(10) WAS NOT ADMISSIBLE TO THE ASSESSEE ON AN ALTOGETHER DIFFERE NT FOOTING. ON THIS ISSUE THE STAND OF ASSESSEE WAS T HAT SIMILAR ISSUE CAME BEFORE ITAT PUNE BENCH IN ITA 1808/PN/05 IN A.Y. 2003-04 M/S. BUNTY BUILDERS VS. ITO ON SIMILAR ISSUE TRIBUNAL HELD AS UNDER. 7. WE HAVE HEARD BOTH THE SIDES AT LENGTH AND ALSO CAREFULLY PERUSED THE ORDERS OF THE AUTHORITIES BELOW IN THE LIGHT OF THE COMPILATION FILED AND THE CASE LAWS CITED. THE UNDI SPUTED FACTS AS NARRATED BY BOTH THE SIDES WERE THAT THE APPELLA NT HAD CONSTRUCTED A HOUSING PROJECT ON A PLOT BEARING S. NO. 123/1 KALAS PUNE. THE AREA OF THE SAID PLOT AS PER THE 7 /12 EXTRACT WAS MENTIONED AS 4600 SQ MTS. THERE WAS A DEVELOPME NT AGREEMENT DATED 25-11-1999 AND THEREIN AS WELL THE AREA WAS MENTIONED AS 4600 SQ MTS. THIS IS THE PRELIMINARY C ONTROVERSY ABOUT THE EXISTENCE OF ACTUAL AREA OF THE IMPUGNED PLOT OF LAND WHICH WAS CLAIMED TO BE IN POSSESSION OF THE APPELL ANT I.E. 5048.48 SQ MTS WHETHER TO HELD AS PART OF THE PROJE CT FOR THE PURPOSE OF ELIGIBILITY OF DEDUCTION U/S. 80IB(10) O F I.T. ACT. THIS AREA WAS UNDISPUTEDLY VERIFIED AS PER THE DEMA RCATION CERTIFICATE PLACED BEFORE US. THERE IS NO DENIAL OF THE FACT THAT THERE WAS EXCESSIVE LAND WHICH WAS MORE THAN THE AR EA OF LAND DOCUMENTED IN THE DEED OF TRANSFER. HOWEVER THE BAS IC QUESTION WHICH IS TO BE ANSWERED BY US IS WHETHER T HE PAGE 19 OF 29 I.T.A. NO. 442/PN/2009 AND 443/PN/2009 A.Y. 2004-05 & 2005-06 SHRI MOTI UDHARAM PANJABI ADJACENT PORTION OF LAND WHICH WAS NOT THE SUBJECT MATTER OF THE DEVELOPMENT AGREEMENT AND THAT WHICH WAS NOT CONSIDERED BY THE LAND DEVELOPMENT AUTHORITY FOR TH E PURPOSE OF WORKING OUT THE AMENITY SPACE AS WELL AS FOR GRA NTING THE FSI THEN IN SUCH A SITUATION WHETHER THAT EXCESSIVE LAND COULD BE TAKEN INTO CONSIDERATION TO DETERMINE THE 1 ACRE AREA AS PRESCRIBED UNDER THE RELEVANT PROVISIONS OF THE ACT . UNDISPUTEDLY THE APPELLANT HAD TO TAKE PERMISSION F ROM THE PUNE MUNICIPAL CORPORATION FOR THE DEVELOPMENT OF T HE DESIRED PROJECT. THE APPELLANT HAS PLACED IN THE COMPILATIO N SEVERAL SUCH CORRESPONDENCE AND THE MAPS WHICH WERE SUBMITT ED FOR THE SAID PURPOSE. IN ALL SUCH CORRESPONDENCE THE A REA OF LAND AS PER DEMARCATION WAS MENTIONED AS 5048.48 SQ MTS. BUT IMMEDIATELY THEREAFTER THE AUTHORITIES HAVE DULY RE FERRED THE AREA OF LAND AS PER 7/12 EXTRACT ADMEASURING 4600 S Q MTS. ADOPTING THE BASE FIGURE OF 4600 SQ. MTS. THE CALCU LATION FOR GRANTING OPEN SPACE AMENITY SPACE INTERNAL ROAD H AD STARTED. THEREFORE ONE THING IS EVIDENT AND ALSO UNDISPUTED THAT THE CONCERNED AUTHORITIES HAVE MADE ALL THE CALCULATION FOR REST OF THE PURPOSES STARTING WITH THE AREA OF 4600 SQ MTS. EVEN THIS IS ALSO NOT IN DISPUTE THAT WHILE CALCULATING THE 1 5% AMENITY SPACE THE CALCULATION WAS BASED UPON 4600 SQ MTS AN D NOT 5048.48 SQ MTS. THE OUTCOME OF THIS DISCUSSION IS T HAT WE HAVE TO GIVE DUE CREDENCE TO ALL SUCH EVIDENCES THR OUGH WHICH THE AREA IN QUESTION WAS EARMARKED AS 4600 SQ. MTS. 7.1 REVERTING BACK TO THE LEGAL ASPECT; PRESENTLY W E ARE DEALING WITH A SPECIFIC SECTION WHICH PRESCRIBES DE DUCTION TO AN UNDERTAKING ENGAGED IN DEVELOPING AND BUILDING O F HOUSING PAGE 20 OF 29 I.T.A. NO. 442/PN/2009 AND 443/PN/2009 A.Y. 2004-05 & 2005-06 SHRI MOTI UDHARAM PANJABI PROJECT. THE SECTION APPLICABLE TO RESOLVE THIS CON TROVERSY IS SEC. 80IB(10)(B) WHICH READS AS FOLLOWS:- (B) THE PROJECT IS ON THE SIZE OF A PLOT OF LAND W HICH HAS A MINIMUM AREA OF ONE ACRE: 7.2 THE LANGUAGE OF THE IMPUGNED SECTION IS SUCH TH AT THE PROJECT HAS TO BE ON THE SIZE OF A PLOT OF LAND WHI CH HAS A MINIMUM AREA OF 1 ACRE. THE BASIC CONDITION IS THAT THE PROJECT SHOULD BE DEVELOPED ON 1 ACRE AREA OF PLOT. IF WE SEE THE SERIES OF DOCUMENTS AND EVIDENCES AS WELL AS SE VERAL SANCTIONS GRANTED BY THE CONCERNED AUTHORITIES TH ROUGHOUT ALL HAVE UNANIMOUSLY RECOGNIZED THE AREA MENTIONED ON 7/12 EXTRACT I.E. 4600 SQ. MTS. ALL THE CALCULATIONS OR SPECIFICATIONS WERE BASED UPON THE SAID AREA THEREFORE THE AREA O F 4600 SQ. MTS. WAS ALWAYS THE START POINT FOR CALCULATION OF AMENITIES AS WELL AS GRANTING OF FSI TO THIS BUILDER. NOW THE QUESTION IS THAT WHETHER FOR THE PURPOSE OF SUCH EXEMPTION CAN WE GET THE AREA WHICH WAS DEMARCATED BY THE AUTHORITY. WE HERE BY EXPRESS OUR INABILITY TO ACCEPT SUCH A WIDE PROPOSI TION. WE HAVE CERTAIN REASONS FOR NOT ACCEPTING THIS PROPOSI TION I.E. THE PROJECT WAS NOT ON THAT EXCESSIVE LAND. THAT THE SA ID EXCESSIVE LAND WAS NEVER TREATED AS A PART OF THE PROJECT BY ANY OF THE SANCTIONING AUTHORITY. THAT THE ASSESSEE HAS NOT P AID THE CONSIDERATION IN RESPECT OF THE SAID EXCESSIVE LAND . THAT THE QUESTION OF OWNERSHIP MIGHT NOT BE THE CONDITION PR ECEDENT FOR CLAIM OF DEDUCTION U/S. 80IB(10)(B) AS ARGUED BY LD . AR BUT THE INTENTION EXPRESSED BY THE LEGISLATURE IS THAT THE BUILDING OF THE HOUSING PROJECT MUST BE ON THE SIZE OF THE P LOT WHICH HAS MINIMUM AREA OF 1 ACRE. IF WE ACCEPT THE ARGUME NT OF LD. PAGE 21 OF 29 I.T.A. NO. 442/PN/2009 AND 443/PN/2009 A.Y. 2004-05 & 2005-06 SHRI MOTI UDHARAM PANJABI AR AND ALSO THE VIDE PROPOSITION ARGUED THEN IT MAY RESULT INTO AN ANOMALY. THERE SHALL BE THUS AN ANOMALOUS S ITUATION THAT A LARGE CHUNK OF LAND ABOVE 1 ACRE WOULD BE P URCHASED BUT PROJECT BE MADE IN ONE CORNER HAVING AREA OF LE SS THAN 1 ACRE. THE ANSWER IS SIMPLE THAT IF THE PROJECT IS N OT TO BE MADE ON THE PRESCRIBED AREA OF 1 ACRE THEN ENTITLEMENT O F BENEFIT HAS TO BE DENIED. ONE HAS TO DEMONSTRATE THE EXISTENCE OF PROJECT VIS--VIS THE SIZE OF PLOT. MAY IN THIS CASE THE AP PELLANT HAD GOT POSSESSION OF SOME EXCESSIVE LAND BUT THAT LAND WA S NEVER BEEN PROPOSED AS A PART OF THE PROJECT AND ALL THE PROPOSALS WERE RATHER CONFINED TO THE AREA OF 4600 SQ MTS. 7.3 THE CONTEXT UNDER WHICH THE HONBLE COURTS HAVE HELD THAT THE BOUNDARIES MUST PREVAIL AS AGAINST THE MEASUREMENTS WERE ALL TOGETHER DIFFERENT. THOSE DEC ISIONS PERTAINED TO THE CONTROVERSY BETWEEN THE DIMENSIONS AND THE BOUNDARIES AND TO RESOLVE SUCH DISPUTES THE HONBLE COURTS HAVE PRONOUNCED THAT THE DESCRIPTION BY BOUNDARIES IS TO BE PREFERRED. NATURALLY THOSE CONTROVERSIES ARE CIVIL DISPUTES IN NATURE AND IN SUCH CIVIL CASES THE QUESTION OF EASE MENT RIGHTS OR THE RIGHT OF POSSESSION HAS TO BE DETERMINED ON THE BASIS OF THE BOUNDARIES OVER WHICH SUCH RIGHTS ARE GENERALLY EXERCISED AND IN THOSE DISPUTES THE DESCRIPTION / DIMENSIONS MAY OR MAY NOT MATCHES WITH THE BOUNDARIES. SUCH NATURE OF DISPUTES CAN ONLY BE RESOLVED ON THE BASIS OF THE A CTUAL EXISTENCE OF THE AVAILABILITY OF LAND AT THE SITE T HOUGH THE DIMENSIONS ON PAPER MIGHT DIFFER. TO RESOLVE THOSE TYPE OF DISPUTES AND THE CONFLICT THE COURTS HAVE THUS HEL D THAT THE BOUNDARIES AS EXISTED AT THE SITE MUST PREVAIL OVER THE PAGE 22 OF 29 I.T.A. NO. 442/PN/2009 AND 443/PN/2009 A.Y. 2004-05 & 2005-06 SHRI MOTI UDHARAM PANJABI DIMENSIONS. BE THAT AS IT WAS WE ARE NOT ON THOSE ISSUES AND THE CONTROVERSY FOR OUR ADJUDICATION IS ALTOGETHER DIFFERENT. FOR THE PURPOSE OF THE APPLICABILITY OF THE SEC.80IB(10 ) ONE HAS TO SIMPLY ASCERTAIN THE SIZE OF PLOT AVAILABLE FOR THE IMPUGNED HOUSING PROJECT. ANY OTHER APPROACH MAY LEAD TO AN INAPPROPRIATE SITUATION SO AS TO ALLOW THE ASSESSEE TO ENCROACH THE ADJACENT LAND AND THEREUPON SUCH AN ENCROACHMEN T BE CLAIMED TO BE TREATED AS PART OF THE PROJECT ON 1 A CRE LAND. OUR INTERPRETATION OF THE LANGUAGE OF THE PROVISIONS IS THAT THE STATUTE HAS NOT ONLY SPECIFIED THE MEASUREMENT BUT IN A WAY ALSO SPECIFIED THE BOUNDARIES HENCE THE BOUNDARIES AS ALSO THE MEASUREMENT BOTH SHOULD MATCH WITH THE MINIMUM REQUIREMENT OF 1 ACRE. WITH THESE OBSERVATIONS WE A RE NOT INCLINED TO ACCEPT THIS PROPOSITION OF LD. AR HEN CE THIS GROUND I.E. GROUND NO. 5 IS HEREBY DISMISSED. 8. GROUNDS LEFT FOR OUR DISPOSAL ARE GROUND NO. 1 TO 4 THROUGH WHICH THE COMMON GRIEVANCE WAS THAT WHILE ADMEASURING THE SIZE OF THE PLOT WHETHER THE 15% AM ENITY SPACE BE HELD AS PART OF THE TOTAL PROJECT DEVELOPM ENT ON 1 ACRE LAND. ON THE BASIS OF THE RECORDS AVAILABLE ON FILE WE HAVE GATHERED THAT A DEVELOPER HAS TO EARMARK 15% AREA O F THE PLOT OF LAND AS AMENITY SPACE. THUS DOCUMENTS HAVE ALREA DY DEMONSTRATED THAT THOUGH THE BUILDER SCARIFIES AMEN ITY SPACE BUT HE IS ULTIMATELY NOT IN DISADVANTAGEOUS POSITI ON; REASON BEING THE DEVELOPMENT AUTHORITIES SANCTION ADDITION AL FSI ON THE SPACE EARMARKED FOR AMENITY. IN THE PRESENT CAS E THE UNDISPUTED POSITION IS THAT THE APPELLANT WAS GRANT ED FSI ON THE AMENITY SPACE AND THE TOTAL AREA OF FLATS CONS TRUCTED BY PAGE 23 OF 29 I.T.A. NO. 442/PN/2009 AND 443/PN/2009 A.Y. 2004-05 & 2005-06 SHRI MOTI UDHARAM PANJABI THE APPELLANT WAS CLAIMED TO BE WORKED OUT AT 4139. 94 SQ MTS (FSI) WHICH CONSIST OF ABOUT 101 FLATS. BEFORE US I N THE COMPILATION ON PAGE 29 AND ON PAGE 32 SANCTION LAYO UT PLANS WERE PLACED. ON CAREFUL EXAMINATION OF THE FIGURES WE HAVE NOTICED THAT THE START POINT FOR CALCULATION OF OPE N SPACE AMENITY SPACE ETC WAS THE AREA AS PER 7/12 EXTRACT I.E. 4600 SQ MTS. AND 15% OF THE SAME WAS COMPUTED AS 690.70 SQ MTS. AFTER REDUCING OPEN SPACE AND AMENITY SPACE THE NET AREA AVAILABLE FOR BUILDING WAS MEASURED AS 3344.24 SQ MTS FOR REFERENCE THE SAID CALCULATION IS AS BELOW:- AREA OF LAND AS PER DEMARCATION= 5048.48 SQ. MTR AREA OF LAND AS PER 7/12 EXTRACT= 4600.00 SQ. MTR 1) MINIMUM AREA CONSIDER FOR LAY-OUT (AS PER 7/12 EXTRACT)= 4600.00SQ. MTR 2) ROAD WIDENING AREA= 105.00 SQ. MTR 3) NET AREA (1-2)= 4495.00SQ. MTR 4)OPEN SPACE (MIN. 10%=460.00)= 460.09 SQ. MTR 5) AMENITY SPACE (MIN. 15%=690.00)= 690.70SQ. MTR 6)AREA UNDER INTERNAL ROAD= 431.15 SQ. MTR 7) TRANSFORMER= 25.00 SQ. MTR 8) NET AREA 3-(4+5+6+7)= 2923.25 SQ. MTR 9) FLOOR SPACE AVAILABLE IN LIEU OF AREA UNDER INTERNAL ROAD & TRANSFORMER= 431.15 SQ. MTR 10)NET AREA AVAILABLE FOR BUILDING= 3344.21 SQ. MTR. PAGE 24 OF 29 I.T.A. NO. 442/PN/2009 AND 443/PN/2009 A.Y. 2004-05 & 2005-06 SHRI MOTI UDHARAM PANJABI 8.1AS PER THE REVENUE AUTHORITIES BOTH A.O AND LD . CIT(A) SINCE THE NET AREA AVAILABLE FOR THE PURPOSE OF CON STRUCTION WAS LESS THAN 1 ACRE THEREFORE THE ASSESSEE WAS NOT ENTITLED FOR CLAIM OF DEDUCTION U/S 80IB(10). HOWEVER WE ARE NOT IN AGREEMENT WITH SUCH AN APPROACH OF THE REVENUE AUTH ORITIES. TO GIVE STRENGTH TO OUR REASONS FOR SUCH DISAGREEME NT WE HEREBY REFER ONE OF THE POINT AS EXPLAINED IN THE CBDT CIRCULAR CITED IN 276 ITR 170 (STATUTE); WHEREIN TH E GUIDELINES ISSUED WERE AS FOLLOWS:- EXTENSION OF THE TIME-LIMIT FOR OBTAINING APPROVAL OF HOUSING PROJECTS FOR THE PURPOSE OF TAX HOLIDAY UND ER SECTION 80-IB AND ALLOWING DEDUCTION FOR RE-DEVELO PMENT OR RECONSTRUCTION OF EXISTING BUILDING IN SLUM AREA S THIS SECTION DOES NOT SPECIFICALLY PROVIDE AREA LIM IT FOR THE GARDEN THE DEVELOPMENT PLAN ROADS INTERNAL ME ANS OF ACCESS ETC. IN THE HOUSING PROJECT. THEREFORE THE SAME SHOULD CONFORM TO THE PROJECT PLAN APPROVED BY THE LOCAL AUTHORITY IN ACCORDANCE WITH THE REGULATIONS IN FORCE. ALSO THE AREA LIMIT OF THE PLOT HAS TO BE C ONSTRUED WITH REFERENCE TO THE AREA OF THE SITE ON WHICH THE HOUSING PROJECT IS CONSTRUCTED AND NOT WITH REFEREN CE TO THE DEMARCATION OF LAND DONE BY THE LAND DEVELOPMEN T AUTHORITY. 9. THIS CIRCULAR THUS GIVES A CLEAR INDICATION THAT THOUGH THE SECTION DO NOT SPECIFICALLY PROVIDE FOR THE DEVELOP MENT PLAN ROADS OR GRANT OF OTHER FACILITIES ETC. IN A HOUSIN G PROJECT BUT THE SAME SHOULD CONFORM TO THE PROJECT PLAN APPROVE D BY THE LOCAL AUTHORITY. OUR NEXT REASONING IS ON THE BASIS OF ABOVE DISCUSSION THAT THE LIMIT OF THE PLOT HAS TO BE CON STRUED WITH REFERENCE TO THE AREA AVAILABLE ON THE SITE ON WHIC H THE PAGE 25 OF 29 I.T.A. NO. 442/PN/2009 AND 443/PN/2009 A.Y. 2004-05 & 2005-06 SHRI MOTI UDHARAM PANJABI HOUSING PROJECT IS TO BE CONSTRUCTED AND NOT WITH R EFERENCE TO THE DEMARCATION OF LAND. MEANING THEREBY THE HOUSIN G PROJECT THUS CONSTITUTE DEVELOPMENT PLAN ROADS AND GRANT OF OTHER FACILITIES; THEREFORE THOSE AREAS SHOULD EXIST WITH IN THE PRESCRIBED LIMITS AND TO BE CONSIDERED AS PART AND PARCEL OF THE PROJECT. EVEN IN THE PRESENT CASE THE FACTS HAV E REVEALED THAT THE PLAN WOULD NOT HAVE BEEN APPROVED IF THE A SSESSEE WOULD NOT HAVE MADE 15% AMENITY SPACE AVAILABLE TO THE CORPORATION. THOUGH AMENITY SPACE WAS STATED TO BE SURRENDERED TO THE CORPORATION BUT SUCH SACRIFICE O F THE BUILDER WAS DULY RECOGNIZED AND COMPENSATED BY GRAN TING ADDITIONAL FSI FOR THE SAID PROJECT. IF WE ACCEPT T HE PROPOSITION OF THE REVENUE DEPARTMENT THAT THE AREA WHICH WAS D IRECTLY UNDER THE BUILDING CONSTRUCTION SHOULD ONLY BE HELD AS THE PROJECT FOR CONSTRUCTION THEN A BUILDER HAS TO ACQ UIRE A LAND MORE THAN 1 ACRE OF LAND. THEN ONLY AFTER THE SET-A PART OF THE AMENITY SPACE HE COULD BE LEFT WITH THE BALANCE 1 A CRE FOR PROJECT DEVELOPMENT. BUT SUCH A PROPOSITION WAS NO T INTENDED IN THE LEGISLATURE. THE LANGUAGE OF THE SECTION DID NOT PRESCRIBE SUCH HYPOTHECATION. THEREFORE AN ANOTHER REASONING OF OUR REJECTION OF SUCH A PROPOSITION OF THE REVEN UE DEPARTMENT IS THAT IT WOULD BE ILLOGICAL TO EXPECT FROM A BUILDER TO HAVE EXCESS LAND AREA THAN 1 ACRE; AT LE AST 15% EXCESSIVE AREA APPLICABLE FOR PUNE CORPORATION SO THAT AFTER SETTING APART 15% AREA THE BALANCE SHOULD REMAIN 1 ACRE FOR THE PURPOSE OF CONSTRUCTION. THIS SUGGESTION OR APP ROACH OF INTERPRETATION OF A STATUTE IS NOT IDEALISTIC BECAU SE WE CAN NOT READ BEYOND THE SCOPE OF THE STATUTE. NORMAL RULE OF INTERPRETATION OF STATUES IS THAT THE GENERAL WORD S MUST PAGE 26 OF 29 I.T.A. NO. 442/PN/2009 AND 443/PN/2009 A.Y. 2004-05 & 2005-06 SHRI MOTI UDHARAM PANJABI RECEIVE A GENERAL CONSTRUCTION UNLESS THERE IS SOME THING OTHERWISE EXPRESSLY PROVIDED IN THE STATUTE. GENERA L WORDS HAVE ORDINARILY A GENERAL MEANING THEN THE FIRST T ASK IN INTERPRETATION IS TO GIVE THE WORDS THEIR PLAIN AND ORDINARY MEANING. THIS IS WHAT WE HAVE GATHERED FROM THE BOO KS AVAILABLE ON THIS SUBJECT WITH AN ATTEMPT TO SUBSCR IBE A SIMPLE AND REALISTIC MEANING TO THE CLAUSE(B) TO SEC. 80IB (10) OF I.T. ACT. NOTHING MORE CAN BE ADDED HENCE WE HAVE TO RES TRICT THE INTERPRETATION THAT THE AREA OF 1 ACRE SHOULD BE AV AILABLE FOR THE HOUSING PROJECT INCLUSIVE OF AMENITIES REQUIRED TO BE SET APART AS PER THE NORMS OF A CORPORATION. THEREFORE A JUSTIFIABLE CONCLUSION IS THAT WHEN THERE IS NO DOUBT MORE SO IT IS NOT IN DISPUTE THAT A PORTION OF THE LAND IN THE PRESENT CASE IT IS 15% TO BE EARMARKED OR SET-APART OR RESERVED OR SE GREGATED OUT OF THE TOTAL LAND IN QUESTION MINIMUM 1 ACRE MEANT FOR THE PURPOSE OF PROJECT IN TERMS OF RULES / REGULATI ON OF A LOCAL BODY I.E. PUNE MUNICIPAL CORPORATION AND WITHOUT THAT SEGREGATION THE PROJECT COULD NOT BE SANCTIONED THE N THAT PORTION BEING MANDATORY FOR AMENITY PURPOSES HAS TO BE TAKEN AS A PART AND PARCEL OF THE LAND AVAILABLE FOR THE PROJECT. IN THE PRESENT CASE SINCE THE AREA AVAILABLE FOR THE HOUSI NG PROJECT WAS 4600 SQ. MTR. THAT IS MORE THAN 1 ACRE (4046 SQ . MTR.) THEREFORE THE APPELLANT IS ENTITLED FOR THE CLAIM O F DEDUCTION U/S. 80IB(10)(B) ON THIS PORTION OF LAND. WE HOLD A CCORDINGLY. 9. ACCORDING TO LEARNED AR ISSUE OF AREA IS COVERED IN FAVOUR OF ASSESSEE UNDER THE PROVISIONS OF SECTION 80-IB(10) OF THE ACT. NOTHING CONTRARY WAS BROUGHT TO OUR KNO WLEDGE WITH REGARDS TO RATIO OF BUNTY BUILDERS (SUPRA). IN VIEW OF PAGE 27 OF 29 I.T.A. NO. 442/PN/2009 AND 443/PN/2009 A.Y. 2004-05 & 2005-06 SHRI MOTI UDHARAM PANJABI ABOVE LEGAL DISCUSSION THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S 80-IB(10) OF THE ACT FOR THE AREA OF PLOT IN Q UESTION IS CONCERNED. 10. NEXT ISSUE WITH REGARD TO AUDIT REPORT. THE CIT(A) HAVING GONE THROUGH THE ASSESSMENT RECORD FOR A.Y. 2004- 05 AND 2005-06 FOUND THAT AUDIT REPORT IN FORM NO. 10CCB WHICH WAS MANDATORY CONDITION FOR THE CLAIM U/S. 80IB(10). IN ACCORDANCE WITH SECTION 80IB(10) R.WS .80IA(7) OF INCOME TAX ACT FROM THE AUDIT REPORTS CIT(A) OB SERVED AS UNDER IN PARA 7.14 OF HIS ORDER. 7.14 THERE IS ANOTHER IMPORTANT ISSUE RELATED TO D EDUCTION U/S 80IB(10) NOT LOOKED INTO BY THE ASSESSING OFFIC ER. THE ASSESSMENT RECORDS OF THE ASSESSEE FOR ASSESSMENT Y EAR 2004- 2005 AND 2005-2006 WERE CALLED FOR AND EXAMINED TO SEE THE AUDIT REPORT IN FORM NO.10CCB WHICH WAS A MANDATORY CONDITION FOR THE CLAIM UNDER SECTION 80IB(10) IN A CCORDANCE WITH SECTION 80IB(13) R.W.S. 80IA(7) OF THE INCOME TAX ACT. FROM THE AUDIT REPORTS DATED 01-11-2004 FOR ASSESSM ENT YEAR 2004-2005 AND DATED 28-10-2005 FOR ASSESSMENT YEAR 2005- 2006 IT IS NOTICED THAT THE AUDITOR HAS NOT FILLED UP THE MOST IMPORTANT COLUMNS PERTAINING TO THE CONDITIONS PRES CRIBED IN SECTION 80IB(10)(A) (B) AND (C) WHICH ARE AS UNDER : 18 (Q) DATE OF APPROVAL BY LOCAL AUTHORITY : (R) DATE OF COMPLETION OF THE HOUSING PR OJECT (S) SIZE OF PLOT OF LAND OF THE PROJEC T; (U) BUILT-UP AREA OF THE RESIDENTIAL U NIT OF THE PROJECT : PAGE 28 OF 29 I.T.A. NO. 442/PN/2009 AND 443/PN/2009 A.Y. 2004-05 & 2005-06 SHRI MOTI UDHARAM PANJABI APART FROM THE ABOVE .COLUMN 19 PERTAINING TO ''TO TAL SALE OF THE UNDERTAKING' WAS ALSO NOT FILLED UP. AS PER SEC TION 80IB9(B) READ WITH SECTION 80IA(7) THE FURNISHING OF AUDIT REPORT AS PER RULE 18BBB(2) IN FORM NO.10CCB WAS A MANDATORY CONDITION FOR ALLOWABILITY OF DEDUCTION U /S 80IB(10). THE FACT THAT THESE VITAL COLUMNS PERTAIN ING TO THE CONDITIONS AND THE SALES AMOUNT HAVE NOT BEEN FILED UP IN THIS AUDIT REPORT IT CANNOT BE TREATED AS A VALID AUDIT REPORT AT ALL. THE CONDITION U/S 80IB(13) R.W.S. 80IA(7) IS THUS VIOLATED. ON THIS COUNT ALSO DEDUCTION U/S 80IB(10) IS NOT ADMISSIBLE TO THE ASSESSEE. THE FACT THAT THE AUDITOR HAS REFRAIN ED FROM MENTIONING THE DATE OF APPROVAL BY THE LOCAL AUTHOR ITY DATE OF COMPLETION OF THE HOUSING PROJECT; AS WELL AS THE S IZE OF THE PLOT OF THE LAND OF THE PROJECT; FOR WHICH THERE AR E SPECIFIC CONDITIONS PRESCRIBED U/S 80IB(10)(A) AND (B); MAY BE A CONSCIOUS DECISION ON THE PART OF HIM NOT TO MENTIO N ANYTHING AGAINST COLUMNS 18(Q) (R) .(S) AND (U) OF THE FOR M NO.10CC8 AS ALL THE CONDITIONS WERE NOT FULFILLED. THIS DISC USSION REINFORCES THE CONCLUSION THAT DEDUCTION U/S 80IB(1 0) WAS NOT ADMISSIBLE TO THE ASSESSEE OBSERVED BY CIT(A). ACCORDING TO US THE BENEFICIAL PROVISION FOR DEDUC TION SHOULD NOT BE DENIED FOR TECHNICAL DEFICIENCY ONCE HE FULFILLED ALL ESSENTIAL CONDITIONS FOR THE SAME. WE HOLD SO. SIMILAR ISSUE AROSE IN A.Y. 2005-06. FACTS BEING SI MILAR FOLLOWING THE SAME REASONING ISSUE IN A.Y. 2005-06 IS ALSO DECIDED IN FAVOUR OF ASSESSEE. PAGE 29 OF 29 I.T.A. NO. 442/PN/2009 AND 443/PN/2009 A.Y. 2004-05 & 2005-06 SHRI MOTI UDHARAM PANJABI 11. AS A RESULT BOTH THE APPEAL OF ASSESSEE ARE AL LOWED. DECISION PRONOUNCED IN THE OPEN COURT ON 29 TH JULY 2011. SD/- SD/- (G.S. PANNU) ACCOUNTANT MEMBER (SHAILENDRA KUMAR YADAV) JUDICIAL MEMBER PUNE DATED THE 29 TH JULY 2011 ANKAM COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT (A) II PUNE 4. THE CIT CENTRAL PUNE 4. THE D.R A BENCH PUNE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE