Smt. Sudha Simhal, Bhopal v. The ACIT, 1(1), Bhopal

ITA 515/IND/2010 | 2007-2008
Pronouncement Date: 10-01-2011 | Result: Allowed

Appeal Details

RSA Number 51522714 RSA 2010
Assessee PAN ACTPS8702N
Bench Indore
Appeal Number ITA 515/IND/2010
Duration Of Justice 5 month(s) 13 day(s)
Appellant Smt. Sudha Simhal, Bhopal
Respondent The ACIT, 1(1), Bhopal
Appeal Type Income Tax Appeal
Pronouncement Date 10-01-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 10-01-2011
Date Of Final Hearing 10-01-2011
Next Hearing Date 10-01-2011
Assessment Year 2007-2008
Appeal Filed On 27-07-2010
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER AND SHRI R.C. SHARMA ACCOUNTANT MEMBER ITA NO.514 & 515/IND/2010 A.YS.2006-07 AND 2007-08 SMT. SUDHA SIMHAL BHOPAL PAN ACTPS8702N APPELLANT VS ASSTT. COMMISSIONER OF INCOME TAX 1(1) BHOPAL RESPONDENT APPELLANT BY : SHRI M.C. MEHTA WITH SHRI HIT ESH CHIMNANI SHRI P.K. MITRA RESPONDENT BY : SHRI P.K. MITRA O R D E R PER JOGINDER SINGH JUDICIAL MEMBER THESE ARE THE APPEALS BY THE ASSESSEE AGAINST THE COMMON ORDER OF THE LEARNED CIT(A) DATED 10.5.2010 FOR THE ASSE SSMENT YEAR 2006-07 AND 2007-08 ON THE FOLLOWING COMMON GROUNDS :- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE THE LEARNED A.O. AND SO ALSO THE LEARNED CIT(A) ERR ED IN NOT CONSIDERING THE DETAILED SUBMISSIONS FILED BY H ER BEFORE THEM TO PROVE HER CASE THAT THE COMMERCIAL AREA (SH OPS) TO BE CONSTRUCTED BY HER SHALL BE WITHIN THE PERMISSI BLE LIMITS 2 PROVIDED U/S 80IB(10) OF THE ACT OUT OF THE TOTAL A REA OF HOUSING PROJECT TO BE CONSTRUCTED. THE ORDERS SO P ASSED UNDER FLAGRANT VIOLATION OF NATURAL JUSTICE BEING P ERVERSE REQUIRE TO BE QUASHED. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ER RED IN DENYING DEDUCTION U/S 80IB(10) OF THE IT ACT IN RES PECT OF PROFITS OF THE HOUSING PROJECT OF RS.6 12 670/- (FO R THE ASSESSMENT YEAR 2006-07) AND RS.18 87 227/- (FOR TH E ASSESSMENT YEAR 2007-08) INSPITE OF THE FACT THAT T HE PETITIONER HAD FULLY PROVED THAT THE COMMERCIAL POR TION (SHOPS) TO BE CONSTRUCTED BY HER SHALL BE WITHIN THE PERMISSIBLE LIMITS AS PRESCRIBED U/S 80IB(10). DURING HEARING OF THESE APPEALS WE HAVE HEARD SHRI M.C. MEHTA WITH SHRI HITESH CHIMNANI LD. COUNSEL FOR THE ASSESSEE AND SHRI P.K. MITRA LEARNED SENIOR DR. THE CRUX OF ARGUMENTS ON BEHALF OF THE ASSESSEE IS THAT THE ASSESSEE OWNED A PLOT OF LAND AT GANDHI NA GAR BHOPAL WHEREIN THE ASSESSEE CONSTRUCTED TWO MULTI-STOREYED BLOCKS OF SEPARATE BUILDING. AS PER THE ASSESSEE IN EACH OF THE BUILD INGS THE GROUND FLOOR WAS RESERVED FOR SHOPS AND THE UPPER FLOOR FOR RESI DENTIAL PURPOSES. THESE BLOCKS WERE CLAIMED TO BE INDEPENDENT AND SEP ARATE AND THE SHOPS ON THE GROUND FLOORS ARE HAVING DIRECT APPROA CH FROM ALL THE FOUR SIDES. IT WAS FURTHER CONTENDED THAT DURING THE AS SESSMENT YEAR 2006- 07 AND 2007-08 ONLY PILLARS WERE CONSTRUCTED ON THE GROUND FLOOR AND THE CONSTRUCTION OF THE SHOP IN BOTH THE FLOORS WAS NOT COMPLETE. THE FIRST APPROVAL OF THE BUILDING PLAN OF THE HOUSING PROJECT WAS CLAIMED TO BE GRANTED BY THE MUNICIPAL CORPORATION BHOPAL ON 1.4.2005 THEREFORE FOR PURPOSES OF CLAUSE (I) OF SECTION 870IB(10) THE LIMIT FOR COMPLETION OF 3 CONSTRUCTION OF THE HOUSING PROJECT WAS TO BE ON OR BEFORE 31.3.2011. IT WAS ALSO POINTED OUT THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FOR THE CLAIM OF DEDUCTION U/S 80-IB REFE RRED THE MATTER OF CALCULATION OF BUILT UP AREA TO THE ASSESSING OFFIC ER AND IN TURN THE ASSESSING OFFICER REFERRED THE MATTER TO THE DVO WH O VIDE HIS REPORT DATED 22.4.2010 CALCULATED THE AREA OF SHOP TO BE C ONSTRUCTED AT THE RATE OF 2033.29 SQ.FT. (PAGES 9 12 AND 18 OF THE P APER BOOK) WHICH WAS FOUND TO BE IN EXCESS OF PERMISSIBLE LIMIT OF COMME RCIAL AREA. THE CLAIM OF THE ASSESSEE IS THAT NO DISCREPANCY WAS FOUND OU T IN THE BUILT UP AREA OF RESIDENTIAL PORTION BY THE DVO. THE CLAIM OF TH E ASSESSEE IS THAT THE COMMERCIAL AREA TO BE CONSTRUCTED AS PER THE FINAL APPROVAL DATED 15.1.2010 (INCLUDING WALLS) COMES TO 1680 SQ.FT. WH ICH IS BELOW THE PRESCRIBED LIMIT AS PROVIDED U/S 80IB(10)(D) OF THE ACT BEFORE AMENDMENT. IT WAS ALSO CLAIMED THAT VIDE FINANCE A CT 2010 W.E.F. 2.4.2010 THE SAID LIMIT AS PROVIDED IN CLAUSE (D) O F SECTION 80IB(10) WAS ALSO REVISED. IT WAS ALSO CONTENDED THAT THE CONST RUCTION OF THE SHOPS WAS NOT COMPLETED BY 1.4.2010 THEREFORE THE BENEF IT OF ENHANCED LIMIT WILL BE AVAILABLE TO THE ASSESSEE. THE ASSESSEE HA S ALSO FILED PAPER BOOK ALONG WITH THE SITE PLAN. THE LEARNED SENIOR DR CONTENDED THAT IN THE INTEREST OF JUSTICE THE PAPER BOOK FILED BY TH E ASSESSEE MAY BE REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER TO VERIFY THE CLAIM OF THE ASSESSEE. 4 IN VIEW OF THE ABOVE WE REMAND THE ISSUES TO THE FILE OF THE LEARNED ASSESSING OFFICER WITH THE DIRECTION TO EXA MINE THE CLAIM OF THE ASSESSEE AFTER TAKING INTO ACCOUNT THE DOCUMENTS CO NTAINED IN THE PAPER BOOK FILED BEFORE US. NEEDLESS TO MENTION HERE THA T DUE OPPORTUNITY OF BEING HEARD BE PROVIDED TO THE ASSESSEE. THE ASSESS EE IS ALSO AT LIBERTY TO FURNISH EVIDENCE IF ANY TO SUBSTANTIATE ITS CL AIM. IN THE RESULT THE APPEALS OF THE ASSESSEE ARE ALL OWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN OPEN COURT IN THE PRESENCE OF LEARNED REPRESENTATIVES OF BOTH THE SIDES ON 10 TH JANUARY 2011. (R.C.SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 10 TH JANUARY 2011 COPY TO: APPELLANT RESPONDENT CIT CIT(A) DR G UARD FILE DN/-