M/s H.A.Developers,, Pune v. Addl.CIT,Cir.-9,, Pune

ITA 608/PUN/2009 | 2002-2003
Pronouncement Date: 28-02-2011 | Result: Partly Allowed

Appeal Details

RSA Number 60824514 RSA 2009
Assessee PAN AACFH5498M
Bench Pune
Appeal Number ITA 608/PUN/2009
Duration Of Justice 1 year(s) 9 month(s) 10 day(s)
Appellant M/s H.A.Developers,, Pune
Respondent Addl.CIT,Cir.-9,, Pune
Appeal Type Income Tax Appeal
Pronouncement Date 28-02-2011
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted B
Tribunal Order Date 28-02-2011
Assessment Year 2002-2003
Appeal Filed On 18-05-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B PUNE BEFORE SHRI I.C. SUDHIR (JM) AND SHRI D. KARUNAKARA RAO (AM) ITA NO S . 608 609 & 610 /PN/200 9 ( ASSTT. YEAR S : 200 2 - 03 2003 - 04 & 2004 - 05 ) M/S. H.A. DEVELOPERS P.NO. 02 LALIT RAJ PARK TANAJI NAGAR CHINCHWAD PUNE 411 033 P AN : AAC FH5498M .. APPELLANT V. ADDL. CIT CIRCLE - 9 PUNE . RESPONDENT ITA NO S . 369 TO 372 /PN/200 9 (ASSTT. YEAR S : 2000 - 01 2001 - 02 2003 - 04 & 2004 - 05 ) ASSTT. CIT CIRCLE - 9 PUNE .. APPELLANT V. M/S. H.A. DEVELOPERS P.NO. 02 LALIT RAJ PARK TANAJI NAGAR CHINCHWAD PUNE 411 033 PAN : AACFH5498M . RESPONDENT A SSESSEE BY : SHRI NIKHIL PATHAK DEPARTMENT BY : SHRI H.C. LEUVA ORDER PER I.C. SU DHIR J M IN ITA NOS. 369 & 370/PN/2009 THE REVENUE HAS QUESTIONED FIRST APPELLATE ORDER ON THE GROUND THAT LD CIT(A) HAS ERRED IN HOLDING THE RE - ASSESSMENT PROCEEDINGS AS BAD IN LAW ON THE BASIS THAT THE ASSESSMENT HAS BEEN MADE BY THE A.O BEYOND 4 YE ARS FROM THE END OF THE RELEVANT A.Y. AND THERE WAS NO FAILURE ON THE PART OF THE ITA NO 608/PN/09 609 TO 610/PN/09 & 369 TO 372/ PN/0 9 H.A. DEVELOPERS LTD. . A.Y.2000 - 01 2001 - 02 ETC. . PAGE OF 11 2 ASSESSEE TO DISCLOSE ALL THE RELEVANT MATERIALS TRULY AND CORRECTLY BEFORE THE A.O. 2. WE HAVE HEARD AND CONSIDERED ARGUMENTS ADVANCED BY THE PARTIES IN VIEW OF ORDERS OF TH E LOWER AUTHORITIES MATERIAL AVAILABLE ON R ECORD AND DECISIONS RELIED UPON. 3. THE RELEVANT FACTS ARE THAT IN THE ASSESSMENT YEAR UNDER CONSIDERATION THE ASSESSMENT U/S. 143(3) WAS FRAMED ACCEPTING THE CLAIM OF DEDUCTION U/S. 80IB(10) IN RESPECT OF THE PROJECT RAJ PARK TOWNSHIP. NOTICE U/S. 148 WAS ISSUED AND ASSESSMENT WERE FRAMED U/S. 143(3) READ WITH SECTION 147 OF THE ACT. THE ASSESSEE QUESTIONED THE VALIDITY OF NOTICE ISSUED U/S. 148 OF THE ACT AFTER LAPSE OF 4 YEARS FROM THE END OF THE A.Y. IN QUESTION ESPECIALLY WHEN THERE WAS NO ALLEGATION OF ESCAPEMENT OF ASSESSMENT OF INCOME CHARGEABLE TO TAX DUE TO FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL THE MATERIAL FACTS NECESSARY FOR THE ASSESSMENTS. THE ASSESSEE COULD NOT SUCCEED BEFORE THE A.O. . THE LD CIT(A) HAS HOWEVER ACCEPTED THE ABOVE CONTENTION OF THE ASSESSEE AND FOLLOWING THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF IDEA CELLULAR V/S. DCIT 3 DTR 179 (BOM) AND OTHER HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. THE RELEVANT PARA NO. 22 OF THE FIRST APPELLATE ORDER IS BEING REPRODUCED HEREUNDER FOR A READY REFERENCE. 2.2 I HAVE CAREFULLY CONSIDERED THE CONTENTION OF THE APPELLANT IN THE LIGHT OF THE FACTS OF THE CASE AND I AM INCLINED TO ACCEPT IT. THE INITIATION OF REASSESSMENT PROCEEDINGS FOR AN ASSESSMENT YEAR U/S 147 IN A CASE WHERE FOUR YEARS HAVE EXPIRED FROM THE END OF THE RELEVANT ASSESSMENT YEAR ARE GOVERNED BY THE PROVISO TO SECTION 147 WHICH MANDATES THAT WHERE AN ASSESSMENT U /S 143(3) HAS BEEN MADE FOR THE RELEVANT ASSESSMENT YEAR NO ITA NO 608/PN/09 609 TO 610/PN/09 & 369 TO 372/ PN/0 9 H.A. DEVELOPERS LTD. . A.Y.2000 - 01 2001 - 02 ETC. . PAGE OF 11 3 ACTION SHALL BE TAKEN U/S 147 AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RE LEVANT ASSESSMENT YEAR UNLESS ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR SUCH ASSESSMENT YEAR BY R EASON OF THE FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT FOR THAT ASSESSMENT YEAR. THE FACTS OF THE PRESENT CASE CLEARLY SHOW THAT THE ACTION OF THE ASSESSING OFFICER IN REOPENING THE ASSE SSMENT IS DIRECTLY HIT BY THE PROVISO TO SECTION 147. THAT THE ASSESSEE HAS FAILED TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT FOR THE YEAR UNDER CONSIDERATION IS NEITHER MENTIONED IN THE REASONS RECORDED BY THE ASSESSING O FFICER BEFORE ISSUING NOTICE U/S 148 NOR THIS FACT HAS BEEN HIGHLIGHTED ANYWHERE IN THE ASSESSMENT ORDER. FURTHER THERE IS NO DENIAL OF THE FACT THAT NOTICE U/S 148 IN THIS CASE HAS BEEN ISSUED AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. THUS THE ACTION OF THE ASSESSING OFFICER IN INITIATING REASSESSMENT PROCEEDINGS AFTER THE EXPIRTY OF FOUR YEARS FROM THE END OF THE ASSESSMENT YEAR IN THE PRESENT CASE WHERE ASSESSMENT U/S 143(3) HAD ALREADY BEEN MADE AND WHERE THERE HAS BEEN NO FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR THE ASSESSMENT OF THESE YEARS IS IN VIOLATION OF PROVISIONS OF LAW AS CONTAINED IN THE PROVISO TO SECTION 147. I ALSO FIND THAT THE CONTENTION OF TH E APPELLANT IS SQUARELY COVERED BY THE JUDGEMENT OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF IDEA CELLULAR LTD. VS. DCIT 3 DTR 179 (BOM) AND OTHER JUDICIAL PRONOUNCEMENTS RELIED UPON. SINCE THERE IS NO ALLEGATION AGAINST THE ASSESSEE THAT T HERE WAS FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR THE ASSESSMENT OF THE INCOME WHICH AS PER THE A.O ESCAPED ASSESSMENT WE DO NOT FIND REASON TO INTERFERE WITH THE FIRST APPELLATE ORDER ON THE ISSUE W HICH IS WELL SUPPORTED BY THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF IDEA CELLULAR LTD. V/S. DCIT (SUPRA). THE GROUND IS ACCORDINGLY REJECTED. ITA NO 608/PN/09 609 TO 610/PN/09 & 369 TO 372/ PN/0 9 H.A. DEVELOPERS LTD. . A.Y.2000 - 01 2001 - 02 ETC. . PAGE OF 11 4 4. IN RESULT THE APPEALS ARE DISMISSED. ITA NO.608/PN/2009 5. IT IS RELATED TO THE A.Y. 2002 - 03. IN THIS APPEAL THE ASSESSEE HAS BASICALLY QUESTIONNED FIRST APPELLATE ORDER ON TWO GROUNDS. FIRSTLY THE VALIDITY OF INITIATION OF RE - OPENING PROCEEDINGS (GROUND NO.1) AND THE APPLICABILITY OF AMENDED PROVISIONS U/S. 80IB(10) DURING THE YEAR AND THEREBY DENIAL OF THE CLAIMED DEDUCTION U/S. 80IB(10) OF RS. 48 93 196/ - (GROUND NOS. 2 TO 5)(. 6. THE ASSESSEE HAS ALSO RAISED ADDITIONAL GROUND WITH PRAYER TO ALLOW THE SAME FOR ADJUDICATION OF THE BENCH SINCE IT DOES NOT NEED CONSIDERATION OF FRES H MATERIAL OUTSIDE THE RECORD. THE SAID ADDITIONAL GROUND READS AS UNDER : 1] THE ASSESSEE PRAYS FOR RELIEF U/S 80IB(10) IN RESPECT OF ENTIRE PROFITS FROM THE FOLLOWING PROJECTS INCLUDING THE PROFIT PERTAINING TO THE COMMERCIAL PORTION IN RESPECT OF WHIC H THE ASSESSEE HAD PAID THE TAX IN THE RETURN OF INCOME AND HAD NOT CLAIMED DEDUCTION U/S 80IB(10) - I. RAJ PARK TOWNSHIP PROJECT II. JAI RAJ RESIDENCY 1 ST PHASE III. SAI RAJ RESIDENCY THE ASSESSEE ADMITS THAT THE ABOVE CLAIM IN GROUND NO.1 WAS NOT MADE BEFORE A.O/CIT(A) BUT BEING A LEGAL ISSUE AND AS ALL THE FACTS ARE ON RECORD THE ASSESSEE REQUESTS FOR ADMISSION OF THE ABOVE GROUND. 7 . THE LD. D.R. OBJECTED THE APPLICATION FOR SEEKING PERMISSION TO RAISE THE ABOVE SAID ADDITIONAL GROUND WITH T HIS CONTENTION THAT IT WAS ITA NO 608/PN/09 609 TO 610/PN/09 & 369 TO 372/ PN/0 9 H.A. DEVELOPERS LTD. . A.Y.2000 - 01 2001 - 02 ETC. . PAGE OF 11 5 NOT RAISED BEFORE THE LD CIT(A). WE FIND THAT THE ISSUE RAISED IN ADDITIONAL GROUND IS LEGAL IN NATURE ADJUDICATION OF WHICH DOES NOT REQUIRE CONSIDERATION OF ANY FRESH MATERIAL OUTSIDE THE RECORD. IT ALSO GO TO THE ROOT OF T HE MATTER. WE ACCORDINGLY ALLOWED ADJUDICATION OF THE ADDITIONAL GROUND. GROUND NO.1 8. THE LD. A.R. FAIRLY POINTED OUT THAT DURING THE YEAR THERE WAS NO ASSESSMENT U/S. 143(3) OF THE ACT AND NOTICE U/S. 148 OF THE ACT HAS BEEN ISSUED BEFORE COMPLETION O F 4 YEARS FROM THE END OF THE MONTH OF PROCESSING. HE HOWEVER SUBMITTED THAT EVEN ON MERIT THE ASSESSEE HAS GOT GOOD CASE SINCE THE VERY BASIS ON WHICH RE - OPENING WAS INITIATED WAS NOT MAINTAINABLE SINCE AMENDMENT MADE IN SECTION 80IB W.E.F. 1.4.2005 R ESTRICTING THE AREA OF COMMERCIAL SHOPS/OFFICES IN THE HOUSING PROJECT WAS NOT APPLICABLE IN THE A.Y. 2002 - 03. HE SUBMITTED FURTHER THAT ISSUE HAS ALSO BEEN DEC IDED IN FAVOUR OF THE ASSESSEE BY SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF BRAHMA ASSOCIAT ES 119 ITD 255 (SB). THE LD. A.R. SUBMITTED THAT COMMERCIAL AREA CONSTRUCTED IN THE PROJECT WAS LESS THAN 10% OF THE AREA OF THE PROJECT. 9. THE LD. A.R. PLACED RELIANCE ON THE FOLLOWING DECISIONS ON THE ISSUE OF VALIDITY OF RE - OPENING : 1) M.J. P HA RMACEUITICALS LTD. V/S. DCIT 2 DTR 25 (BOM) 2) CIT V/S. EICHER LTD. 294 ITR 310 (DEL.) 10. THE LD. D.R. ON THE OTHER HAND SUBMITTED THAT THE DECISION TO INITIATE THE PROCEEDINGS IS NOT TO BE PROCEEDED BY ANY JUDICIAL OR QUASI JUDICIAL ENQUIRY. IT IS THE DUTY OF THE A.O TO RE - OPEN THE ASSESSMENT ITA NO 608/PN/09 609 TO 610/PN/09 & 369 TO 372/ PN/0 9 H.A. DEVELOPERS LTD. . A.Y.2000 - 01 2001 - 02 ETC. . PAGE OF 11 6 AND DEMAND THE AMOUNT LEGALLY OWING. HIS FORMATION OF BELIEF IS NOT A JUDICIAL DECISION BUT AN ADMINISTRATIVE DECISION. IT DOES NOT DETERMINE ANYTHING AT THIS INITIAL STAGE. THE REASONING OF THE A.O FOR RE - OPENING MAY BE THE RESULT OF OFFICIAL INFORMATION OR HIS OWN INVESTIGATION OR MAY COME FROM ANY SOURCE THAT HE CONSIDERS RELIABLE. HE PLACED RELIANCE ON THE FOLLOWING DECISIONS : 1) ITO V/S. JAGDISH PRASAD GUPTA 123 TTJ 813 ITAT NEW DELHI 2) ITO V/S. NEETEE CLOTHING 129 TTJ 342 ITAT NEW DELHI 3) VIKRAM TANNAN V/S ITO 128 TTJ 509 ITAT MUMBAI 4) ACIT V/S. CHANPDANY INDUSTRIES 97 TTJ 41 ITAT KOLKATTA 11. CONSIDERING THE ABOVE SUBMISSION WE FIND THAT A.O HAS INITIATED RE - OPENING PROCEE DINGS U/S. 147 OF THE ACT FORMING REASONS TO BELIEVE THAT ASSESSEES CLAIM OF DEDUCTION U/S. 80IB(10) HAS ESCAPED ASSESSMENT AS ASSESSEE HAS CONTRAVENED THE REQUIREMENT OF SECTION 80IB(10) FOR ALLOWING DEDUCTION THEREUNDER. UNDISPUTEDLY THERE WAS NO ASSE SSMENT U/S. 143(3) OF THE ACT ON EARLIER OCCASION BUT RETURN WAS PROCESSED U/S. 143(1) OF THE ACT. THUS IT CANNOT BE SAID THAT RE - OPENING WAS INITIATED BY THE A.O ON THE BASIS OF CHANGE OF OPINION. AS PER EXPLANATION 2(B) TO SECTION 147 AS AMEND ED W.E.F. 1.4.1989 WHERE A RETURN OF INCOME HAS BEEN FURNISHED BY THE ASSESSEE BUT NO ASSESSMENT HAS BEEN MADE AND IT IS NOTICED BY THE A.O THAT THE ASSESSEE HAS UNDER STATED INCOME OR HAS CLAIMED EXCESSIVE LOSS DEDUCTION ALLOWANCE OR RELIEF IN THE RETURN IT WILL BE DEEMED TO BE CASES WHERE INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT. AT THE STAGE OF INITIATION OF RE - OPENING PROCEEDINGS THE A.O IS REQUIRED TO FORM A PRIMA FACIE BELIEF THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT AS UN DER THAT SIUTATION ANY PRUDENT PERSON WOULD HAVE ITA NO 608/PN/09 609 TO 610/PN/09 & 369 TO 372/ PN/0 9 H.A. DEVELOPERS LTD. . A.Y.2000 - 01 2001 - 02 ETC. . PAGE OF 11 7 SAME REASONS TO BELIEVE. THERE WAS AMENDMENT IN SECTION 80IB (10) OF THE ACT W.E.F. 1.4.2005 WHEREBY CONSTRUCTION OF COMMERCIAL AREA IN A PROJECT ELIGIBLE FOR DEDUCTION THEREUNDER WAS RESTRICTED TO 2000 SQ . FT. OR 5% OF THE PROJECT WHICHEVER IS LESS. THE A.O. WAS THUS HAVING A PRIMA FACIE REASON TO BELIEVE THAT THE AMENDED PROVISION IS CLARIFICATORY IN NATURE AND THUS HAVING RETROSPECTIVE EFFECT. HE WAS THUS OF THE BELIEF THAT EXCESS DEDUCTION U/S. 80 IB (10) HAS BEEN ALLOWED TO THE ASSESSEE RESULTING IN ESCAPEMENT OF ASSESSMENT. UNDER THESE CIRCUMSTANCES WE ARE OF THE VIEW THAT THE A.O HAS RIGHTLY INITIATED RE - OPENING PROCEEDINGS IN THE PRESENT CASE AS PER THE PROVISION LAID DOWN U/S. 147 OF THE ACT. THE LD. CIT(A) HAS RIGHTLY UPHELD THE SAME. THE SAME IS AFFIRMED. THE GROUND NO. 1 IS ACCORDINGLY REJECTED. ADDITIONAL GROUND AND GROUND NOS. 2 TO 5 12. THE CONTENTION OF LD. A.R. IN SUPPORT OF THE ABOVE GROUNDS REMAINED THAT CLAIMED DEDUCTION U/S. 80 IB(10) OF RS. 48 93 196/ - IN RESPECT OF PROFITS EARNED BY THE ASSESSEE FROM THE HOUSING PROJECT RAJ PARK TOWNSHIP JAI RAJ RESIDENCY (1 ST PHASE) AND SAI RAJ RESIDENCY WAS DISALLOWED BY THE AUTHORITIES BELOW MAINLY ON THE BASIS THAT AMENDMENT INTRODUCED B Y THE LEGISLATURE W.E.F. 1.4.2005 IN SECTION 80 IB(10) RESTRICT THE AREA OF COMMERCIAL PREMISES IN THE HOUSING PROJECT WAS CLARIFICATORY IN NATURE AND THEREFORE WAS APPLICABLE EVEN TO THE PROJECTS STARTED PRIOR TO THE AMENDMENT. HIS FURTHER CONTENTION REM AINED THAT NOW THE ISSUE AS TO WHETHER AMENDED PROVISION IN SECTION 80 IB (10) W.E.F. 1.4.2005 IS ALSO APPLICABLE WITH RETROSPECTIVE EFFECT IN THE A.YS. EARLIER THAN A.Y. 2005 - 06 HAS BEEN DECIDED BY THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF BRA HMA A SSOCIATES . W E ITA NO 608/PN/09 609 TO 610/PN/09 & 369 TO 372/ PN/0 9 H.A. DEVELOPERS LTD. . A.Y.2000 - 01 2001 - 02 ETC. . PAGE OF 11 8 AGREE WITH THE CONTENTION OF THE LD. A.R. THAT THE ISSUES RAISED IN ADDITIONAL GROUND AND GROUND NOS. 2 TO 5 HAVE BEEN DECIDED IN FAVOUR OF THE ASSESSEE. WE ACCORDINGLY DIRECT THE A.O TO MAKE FRESH ASSESSMENT ON THE ISSUES RAISED IN THE AD DITIONAL GROUND AND GROUND NOS. 2 TO 5 AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN VIEW OF THE DECISION OF SPECIAL BENCH IN THE CASE OF BRAHMA ASSOCIATES V/S. JCIT (SUPRA). THESE GROUNDS ARE THUS ALLOWED FOR STATISTICAL PURPOSES. 13. IN RESULT APPEAL IS PARTLY ALLOWED. ITA NOS. 371/PN/2009 AND 609/PN/2009 14. THE ASSESSEE HAS QUESTIONED FIRST APPELLATE ORDER MAINLY ON TWO GROUNDS. FIRSTLY VALIDITY OF RE - ASSESSMENT U/S. 147 HAS BEEN QUESTIONED (GROUND NO.1) AND SECONDLY DISALLOWANC E OF DEDUCTION U/S. 80 IB(10) OF RS.1 17 53 016/ - IN RESPECT OF PROFITS EARNED FROM THE PROJECTS NAMELY RAJ PARK JAI RAJ RESIDENCY (1 ST PHASE) AND SAI RAJ RESIDENCY HAS BEEN QUESTIONNED (GROUND NOS. 2 TO 5). 15. BESIDES THE ASSESSEE HAS ALSO PRAYED F OR ADJUDICATION OF THE FOLLOWING ADDITIONAL GROUND : 1] THE ASSESSEE PRAYS FOR RELIEF U/S 80IB(10) IN RESPECT OF ENTIRE PROFITS FROM THE FOLLOWING PROJECTS INCLUDING THE PROFIT PERTAINING TO THE COMMERCIAL PORTION IN RESPECT OF WHICH THE ASSESSEE HAD PAID THE TAX IN THE RETURN OF INCOME AND HAD NOT CLAIMED DEDUCTION U/S 80IB(10) - I. RAJ PARK TOWNSHIP PROJECT II. JAI RAJ RESIDENCY 1 ST PHASE ITA NO 608/PN/09 609 TO 610/PN/09 & 369 TO 372/ PN/0 9 H.A. DEVELOPERS LTD. . A.Y.2000 - 01 2001 - 02 ETC. . PAGE OF 11 9 III. SAI RAJ RESIDENCY THE ASSESSEE ADMITS THAT THE ABOVE CLAIM IN GROUND NO.1 WAS NOT MADE BEFORE A.O/CIT(A) BUT BEING A LEGAL ISSUE AND AS ALL THE FACTS ARE ON RECORD THE ASSESSEE REQUESTS FOR ADMISSION OF THE ABOVE GROUND. 16. SIMILAR ARGUMENT A S IN A.Y. 2002 - 03 HAS BEEN ADVANCED BY THE PARTIES IN RELATION TO ALLOWABILITY OF ADJUDICATION OF ADDITIONAL GROUN D. FOLLOWING THE DECISION TAKEN THEREIN WE ALLOWED THE ADDITIONAL GROUND FOR OUR CONSIDERATION. 17. THE REVENUE ON THE OTHER HAND HAS QUESTIONNED FIRST APPELLATE ORDER ON THE GROUND THAT THE LD CIT(A) HAS ERRED IN DELETING THE CLAIM OF DEDUCTION U/S. 80 IB(10) OF THE ACT ON SO CALLED HOUSING PROJECT NAMELY MORYA GOSAVI RAJ PARK WHICH IS NOT AT ALL ELIGIBLE FOR DEDUCTION AS COMMERCIAL AREA IS INVOLVED IN SAID PROJECT. GROUND NO. 1 (ASSESSEE) 18. SIMILAR ARGUMENT HAS BEEN ADVANCED BY THE PARTIES ON TH E ISSUE RAISED IN THIS GROUND REGARDING THE VALIDITY OF INITIATION OF RE - OPENING PROCEEDING AND FRAMING OF RE - ASSESSMENT U/S. 147 OF THE ACT AS IN THE A.Y. 2002 - 03 . F OLLOWING THE DECISION TAKEN ON AN IDENTICAL ISSUE IN A.Y. 2002 - 03 UNDER SIMILAR FACTS AND CIRCUMSTANCES WE DO NOT FIND SUBSTANCE IN GROUND NO.1. THE GROUND NO. 1 (ASSESSEE) IS ACCORDINGLY REJECTED. ADDITIONAL GROUND AND GROUND NOS. 2 TO 5 (ASSESSEE) AND GROUND (REVENUE) 19. THE ISSUES RAISED IN THESE GROUNDS AND ADDITIONAL GROUND ARE FULL Y COVERED BY THE DECISION OF SPECIAL BENCH OF THE TRIBUNAL IN THE ITA NO 608/PN/09 609 TO 610/PN/09 & 369 TO 372/ PN/0 9 H.A. DEVELOPERS LTD. . A.Y.2000 - 01 2001 - 02 ETC. . PAGE OF 11 10 CASE OF BRAHMA ASSOCIATES V/S. JCIT (SUPRA) WHICH WAS NOT AVAILABLE WHEN THE ORDERS OF THE LOWER AUTHORITIES WERE PASSED. THE LD. A.R. HAS ALSO PLACED RELIANCE ON THE DECISION OF THE COOR DINATE BENCH IN THE CASE OF SUDHIR MANDKE FAMILY (HUF) VS. DCIT ITA NO. 1536/PN/2007 (A.Y. 2005 - 05) ORDER DATED 18.8.2009 WHEREIN SPECIAL BENCH DECISION HAS BEEN FOLLOWED. IN THE REVENUES APPEAL THE ONLY REASON FOR DECLINING THE CLAIMED DEDUCTION U/S. 80 IB(10) ON THE PROJECT REMAINED THAT A PART OF THE BUILT UP AREA WAS USED FOR COMMERCIAL PURPOSES. WE THUS IN THE INTEREST OF JUSTICE REMAND THE MATTER TO THE FILE OF THE A.O TO DECIDE THE ISSUES RAISED IN THESE GROUNDS AND ADDITIONAL GROUND AFRESH FO LLOWING THE DECISION TAKEN BY THE SPECIAL BENCH IN THE CASE OF BRAHMA ASSOCIATES V/S. JCIT (SUPRA) AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS DIRECTED IN A.Y. 2003 - 04 UNDER SIMILAR CIRCUMSTANCES. THESE GROUNDS AND ADDITIONAL GROUND ARE THUS ALLOWED FOR STATISTICAL PURPOSES. 20. IN RESULT ITA NO. 609/PN/2009 IS PARTLY ALLOWED AND ITA NO. 371/PN/2009 IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 372/PN/2009 21. THE REVENUE HAS QUESTIONNED FIRST APPELLATE ORDER ON THE GROUND THAT THE LD CIT(A) HAS ERRED IN DELETING THE CLAIM OF DEDUCTION U/ S . 80 IB(10) OF THE ACT ON SO - CALLED HOUSING PROJECT NAMED MOR YA GOSAVI RAJ PARK WHICH IS NOT AT ALL ELIGIBLE FOR DEDUCTION AS COMMERCIAL AREA IS INVOLVED IN THE SAID PROJECT. IT HAS ALSO BEEN CLAIM ED BY THE ASSESSEE THAT TOTAL COMMERCIAL BUILT UP AREA IS LESS THAN 10% OF TOTAL BUILT UP AREA . ITA NO 608/PN/09 609 TO 610/PN/09 & 369 TO 372/ PN/0 9 H.A. DEVELOPERS LTD. . A.Y.2000 - 01 2001 - 02 ETC. . PAGE OF 11 11 22. FOLLOWING THE DECISION TAKEN IN ITA NO. 371/PN/2009 HEREINABOVE THE GROUND IS ALLOWED FOR STATISTICAL PURPOSES. 2 3 . CONSEQUENTLY APPEALS PREFERRED B Y THE ASSESSEE ARE PARTLY ALLOWED THOSE PREFERRED BY THE REVENUE FOR THE A.YS. 2000 - 01 AND 2001 - 02 ARE DISMISSED AND REMAINING APPEALS OF THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 28TH FEBRUARY 2011. SD/ - SD/ - ( D.KARUNAKARA RAO ) ACCOUNTANT MEMBER ( I.C. SUDHIR ) JUDICIAL MEMBER PUNE DATED THE 28 TH FEBRUARY 20 1 1 US COPY OF THE ORDER IS FORWARDED TO : 1. THE A PPELLANT 2. THE RESPONDENT 3. THE CIT V PUNE 4 . THE CIT(A) - III PUNE 5. THE D.R. B BENCH PUNE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE