B.U. Bhandari Nandgude Patil Associates,, Pune v. ITO, Ward 3(1), Pune

ITA 542/PUN/2013 | 2009-2010
Pronouncement Date: 25-10-2013 | Result: Allowed

Appeal Details

RSA Number 54224514 RSA 2013
Assessee PAN AAGFB8429C
Bench Pune
Appeal Number ITA 542/PUN/2013
Duration Of Justice 8 month(s)
Appellant B.U. Bhandari Nandgude Patil Associates,, Pune
Respondent ITO, Ward 3(1), Pune
Appeal Type Income Tax Appeal
Pronouncement Date 25-10-2013
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 25-10-2013
Assessment Year 2009-2010
Appeal Filed On 25-02-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A PUNE BEFORE: SHRI G. S. PANNU ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR JUDICIAL MEMBER ITA NO. 542 /PN/2013 ASSESSMENT YEAR : 2009 - 10 B.U. BHANDARI NANDGUDE PATIL ASSOCI ATES 1182/1/3 F.C. ROAD SHIVAJINAGAR PUNE VS. INCOME TAX OFFICER WARD - 3(2) PUNE (APPELLANT) (RESPONDENT) PAN NO. AAGFB8429C APPELLANT BY: SHRI V.L. JAIN RESPONDENT BY: SMT. M.S. VERMA DATE OF HEARING : 22 - 10 - 2013 DATE OF PRONOUNCEMENT : 25 - 10 - 2013 ORDER P ER R.S. PADVEKAR JM : - THIS APPEAL IS FILED BY THE ASSESSEE CHALLENGING THE IMPUGNED ORDER OF THE LD. CIT(A) - II PUNE DATED 25 - 10 - 2012 FOR THE A.Y. 2009 - 10. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS: 1. THE LEARNED CIT (A) HAS ER RED ON FACTS AND IN LAW IN CONFIRMING A DISALLOWANCE OF THE CLAIM U/S. 80IB(10) OF RS.9 34 59 224/ - FOR THE REASON THAT TWO RESIDENTIAL UNITS HAVE AN AREA EXCEEDING 1500 SQ. FT. WHEN THE TERRACE OPEN TO SKY WAS INCLUDED IN BUILT UP AREA. 2. WITHOUT PREJUDICE TO THE ABOVE THE LEARNED CIT (A) HAS ERRED ON FACTS AND IN LAW IN NOT ALLOWING A PRO - RATA CLAIM U/S. 80IB(10) WITH REFERENCE TO THE ELIGIBLE PORTION OF THE HOUSING PROJECT. 2. THE BRIEFLY STATED FACTS ARE AS UNDER. THE ASSESSEE FIRM IS A BUILDERS/PROM OTERS AND DEVELOPERS. THE ASSESSEE FILED THE RETURN OF INCOME FOR THE A.Y. 2009 - 10 IN WHICH THE ASSESSEE HAS CLAIMED DEDUCTION U/S. 80IB(10) OF THE INCOME - TAX ACT TO THE EXTENT OF RS.9 34 59 224/ - IN RESPECT OF THE HOUSING PROJECT NAME D AS EDENN AT PUNE . THE ASSESSING OFFICER HAS NOTED THAT DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS FOR THE A.Y. 2006 - 07 VALUATION REPORT FROM THE 2 ITA NO. 542/PN/2013 B.U. B HANDARI NANDGUDE PATIL ASSOCIATES PUNE REGISTERED VALUER WAS OBTAINED IN WHICH THE MEASUREMENT OF CERTAIN FLATS WERE TAKEN. IT WAS NOTICED THAT SOME FLATS WER E HAVING AREA OF MORE THAN 1500 SQ. FT. AFTER CONSIDERING THE PROJECTED TERRACE . I N THE A.Y. 2006 - 07 IT WAS HELD BY THE ASSESSING OFFICER THAT THE RE IS VIOLATION OF ONE OF THE CONDITIONS U/S. 80IB(10) (C) OF THE ACT. 3. IN SUM AND SUBSTANCE AS PER TH E ASSESSING OFFICER SOME OF THE FLATS IN THE HOUSING PROJECT OF THE ASSESSEE WERE HAVING THE BUILT UP OF AREA MORE THAN 1500 SQ. FT. THE ASSESSING OFFICER THEREFORE FOLLOWING THE ASSESSMENT ORDERS FOR A.Y R S . 2006 - 07 2007 - 08 AND 2008 - 09 DISALLOWED THE ENTIRE CLAIM OF THE ASSESSEE MADE U/S. 80IB(10). THE ASSESSEE CARRIED THE ISSUE BEFORE THE LD. CIT(A) BUT WITHOUT SUCCESS. NOW THE ASSESSEE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD THE PARTIES. THE LEARNED COUNSEL SUBMITS THAT THE ISSUE STANDS COVERED I N FAVOUR OF THE ASSESSEE BY THE DECISION OF THIS TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y R S. 2006 - 07 2007 - 08 AND 2008 - 09. THE LD. CIT (DR) WAS FAIR ENOUGH TO SUBMIT THAT THE ISSUE ARISING IN THIS APPEAL STANDS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECI SION OF THIS TRIBUNAL IN THE PRECEDING YEAR S . THE LEARNED COUNSEL HAS FILED THE COPIES OF THE ORDERS OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE PRECEDING YEARS WHICH ARE PLACED ON RECORD. IN THE A.YS. 2005 - 06 2006 - 07 AND 2007 - 08 BEING ITA NOS. 1438 & 1439/PN/2009 AND ITA NO. 432/PN/2011 ORDER DATED 31 - 10 - 2012 T HE IDENTICAL ISSUE HAS BEEN CONSIDERED BY THE TRIBUNAL AND HAS HELD AS UNDER: 11. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS. IN THIS CONNECTION THE FIRST AND FOREMOST ISSUE IS WITH REGARD TO THE MEANING OF THE EXPRESSION 'BUILT - UP AREA' FOR THE PURPOSE OF CLAUSE (C) TO SEC. 80 IB(10) OF THE ACT. SEC. 80IB (14) (A) WAS INSERTED BY THE FINANCE (NO.2) ACT 2004 W.E.F. 1 - 4 - 2005 PRESCRIBING THE DEFINITION OF THE EXPRESSION 'BUILT - U P AREA'. IN TERMS OF THE SAID DEFINITION THE BUILT - UP AREA' INTER - ALIA INCLUDES THE AREA OF PROJECTIONS AND BALCONIES. THE MOOT POINT IS AS TO WHETHER THE SAID DEFINITION IS APPLICABLE IN RESPECT OF THE PROJECT IN QUESTION BEFORE US. ADMITTEDLY IT IS E MERGING FROM THE ORDERS OF THE AUTHORITIES BELOW THAT THE PROJECT OF THE ASSESSEE WAS APPROVED BY THE LOCAL AUTHORITY IN MAY 3 ITA NO. 542/PN/2013 B.U. B HANDARI NANDGUDE PATIL ASSOCIATES PUNE 2004 AND IT ALSO COMMENCED PRIOR TO THE 1 - 4 - 2005. THEREFORE REVENUE AUTHORITIES ARE NOT JUSTIFIED IN INCLUDIN G THE BALCONIES/OPEN TERRACES IN THE CALCULATION OF 'BUILT UP AREA' AND THE DEFINITION OF 'BUILT UP AREA' IN TERMS OF SEC. 80 IB (14) (A) OF THE ACT CANNOT BE APPLIED TO PROJECTS COMMENCED PRIOR TO 1 - 4 - 2005. THE AFORESAID PROPOSITION IS IN LINE WITH THE DE CISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF HAWARE CONSTRUCTIONS (SUPRA) AS ALSO THE DECISION OF THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF PRIME PROPERTIES (SUPRA). SINCE THE DEFINITION OF 'BUILT - UP AREA' CONTAINED IN SEC. 80 IB (14) (A) OF THE ACT IS NOT APPLICABLE IN PRESENT CASE BEING A PROJECT HAVING COMMENCED PRIOR TO 1 - 4 - 2005 IN OUR CONSIDERED OPINION FOR SUCH LIKE SITUATION IT WOULD BE IN FITNESS OF THE THINGS THAT THE EXPRESSION 'BUILT - UP AREA' IS UNDERSTOOD AS PER THE DEVELOPME NT CONTROL RULES OF THE LOCAL AUTHORITY WHICH HAS APPROVED SUCH A PROJECT. THE ABOVE DECISION HAS BEEN FOLLOWED SUBSEQUENTLY IN THE A.Y. 2008 - 09 IN ITA NO. 99/PN/2012 ORDER DATED 24 - 06 - 2013. WE THEREFORE FOLLOWING THE DECISIONS OF THIS TRIBUNAL IN TH E ASSESSEES OWN CASE IN THE A.Y R S. 2005 - 06 2006 - 07 2007 - 08 AND 2008 - 09 THE GROUNDS TAKEN BY THE ASSESSEE ARE ALLOW ED AND DIRECT THE ASSESSING OFFICER TO ALLOW THE DEDUCTION U/S. 80IB(10). 5. IN THE RESULT THE ASSESSEES APPEAL IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON 25 - 10 - 2013 SD/ - SD/ - ( G.S. PANNU ) ( R.S. PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER RK /PS PUNE DATED : 25 TH OCTOBER 20 1 3 COPY TO 1 ASSESSEE 2 DEPARTMENT 3 THE CIT(A) - II P UNE 4 THE CIT - II PUNE 5 THE DR ITAT A BENCH PUNE . 6 GUARD FILE. //TRUE COPY// BY ORDER PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE