Namrata Construction Co., Pune v. I.T.O. Ward 8(3) Pune, Pune

ITA 644/PUN/2009 | 2004-2005
Pronouncement Date: 08-10-2010 | Result: Allowed

Appeal Details

RSA Number 64424514 RSA 2009
Assessee PAN AABFN1736B
Bench Pune
Appeal Number ITA 644/PUN/2009
Duration Of Justice 1 year(s) 4 month(s) 11 day(s)
Appellant Namrata Construction Co., Pune
Respondent I.T.O. Ward 8(3) Pune, Pune
Appeal Type Income Tax Appeal
Pronouncement Date 08-10-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 08-10-2010
Assessment Year 2004-2005
Appeal Filed On 28-05-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV JM AND SHRI D. KARUNAKARA RAO AM I.T.A. NO. 644/PN/2009 : A.Y. 2004-05 NAMRATA CONSTRUCTION CO. 592 RAVIWAR PETH TALEGAON DABHADE TALUKA MAVAL DIST. PUNE PAN AABFN 1736 B APPELLANT VS. I.T.O. WARD 8(3) PUNE RESPONDENT APPELLANT BY : SHRI NITIN KHARE RESPONDENT BY: SHRI HARESHWAR SHARMA ORDER PER SHAILENDRA KUMAR YADAV JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF CIT V PUNE PASSED U/S 263(1) OF THE ACT FOR A .Y. 2004-05 ON THE POINT THAT THE CIT ERRED IN CONCLUDING THAT THE ASSESSEE IS NOT ELIGIBLE FOR THE DEDUCTION U/S 80-IB(10) OF THE ACT STATING THAT THE NET BUILTABLE AREA OF THE PLOT WAS LESS T HAN ONE ACRE. 2. THE ASSESSEE A REGISTERED PARTNERSHIP FIRM IS EN GAGED IN THE BUSINESS OF BUILDERS AND DEVELOPERS. THE ASSES SEE FILED ITS RETURN OF INCOME DECLARING TOTAL INCOME AT RS. NIL. THE A.O HAS FINALIZED THE ASSESSMENT U/S 143(3) ON ASSESSED INCOME OF RS. NIL. ITA NO. 644/PN/2009 NAMRATA CONSTRUCTION A.Y. 2004-05 2 3. ON AN EXAMINATION OF RECORD IT WAS OBSERVED BY THE CIT THAT THE ASSESSEE HAS CLAIMED DEDUCTION U/S 80-IB(1 0) OF RS. 75 32 840/- IN RESPECT OF THE HOUSING PROJECT SHRINIVAS SANKUL AND THE A.O HAS ALLOWED THE SAME WITHOUT VE RIFYING THE DOCUMENTS SUCH AS ASSESSEES PLAN/BROCHURE AND TOTAL AREA OF PLOT AVAILABLE ON RECORD AND WITHOUT EXAMIN ING THE ELIGIBILITY FOR DEDUCTION U/S 80-IB(10) OF THE ACT. IT WAS ALSO OBSERVED FROM THE BUILDING PLAN APPROVED BY THE TAL EGAON DABHADE MUNICIPAL COUNCIL THAT THE AREA OF THE PLOT WAS 4154.63 SQ. MTRS AND AFTER DEDUCTING THE ROAD ACQUI SITION AREA OF 940.59 SQ. MTRS. THE NET BUILTABLE AREA OF THE P LOT WAS ONLY 3214.04 SQ. MTRS. ACCORDING TO THE CIT THE NET PL OT SIZE IN WHICH THE HOUSING PROJECT WAS BEING BUILT FELL BELO W ONE ACRE THE ENTIRE PROJECT BECAME ELIGIBLE FOR DEDUCTION U/ S 80-IB(10) OF THE ACT AND THE DEDUCTION ALLOWED AMOUNTED TO RS 75 32 840/- WAS INCORRECT AND RESULTED IN UNDER ASS ESSMENT TO THAT EXTENT. 4. IN THIS BACKGROUND THE CIT FOUND THAT THE ASSES SMENT ORDER PASSED ON 28-12-2006 WAS ERRONEOUS IN SO FAR AS IT WAS PREJUDICIAL TO THE INTEREST OF REVENUE. THE RELEVAN T OBSERVATIONS OF THE CIT ARE REPRODUCED AS BELOW: I HAVE GONE THROUGH THE ABOVE REFERRED JUDICIAL DE CISIONS AS RELIED UPON BY THE AUTHORIZED REPRESENTATIVE AND COME TO THE CONCLUSION THAT THE RATIO APPLIED IN SUCH CA SES DO NOT APPLY TO THE ISSUE INVOLVED IN THE CASE OF THE ASSESSEE FIRM AS THE FACTS STATED DIFFER FROM THE FACTS OF H E CASE ITA NO. 644/PN/2009 NAMRATA CONSTRUCTION A.Y. 2004-05 3 UNDER CONSIDERATION BEFORE ME. HOWEVER THE ITAT P UNE BENCH PUNES DECISION IN THE CASE OF M/S. OM ENGIN EERS AND BUILDERS VS. ITO REPORTED IN 104 TTJ 604 SQUARE LY APPLIES IN THE CASE UNDER CONSIDERATION. IN THIS C ASE THE AREA EARMARKED FOR ACQUISITION FOR DEVELOPMENT PLAN ROAD OR OPEN SPACE SHOULD NOT BE CONSIDERED FOR RECKONIN G THE MINIMUM AREA OF THE PLOT. HOWEVER THE A.O HAS NOT CONSIDERED THIS ASPECT WHILE ALLOWING THE DEDUCTION U/S 80-IB(10) OF THE ACT. THUS THE A.OS ACTION OF ALL OWING DEDUCTION U/S 80-IB(10) OF RS.75 32 840/- IS ERRONE OUS AND THEREBY PREJUDICIAL TO THE INTEREST OF REVENUE 5. THIS ORDER HAS BEEN OPPOSED BEFORE US AND VARIOU S CONTENTIONS WERE RAISED TO DEMOLISH THIS ORDER. ON THE OTHER HAND THE LEARNED DR SUPPORTED THE ORDER OF CIT. 6. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND PERU SING THE MATERIAL ON RECORD WE FIND THAT UNDISPUTEDLY T HE SIZE OF PLOT IS 4154.63 SQ. MTRS. THE ROADS ARE INTERNAL R OADS OF THE HOUSING COMPLEX AND THE ASSESSEE HAS ALL THE CHOICE S AND OPTIONS OF DESIGNING THE INTERNAL ROADS AS ALSO DEC IDING UPON THE LOCATION OF THE INTERNAL ROADS. FURTHER THE FS I PERTAINING TO THE LAND COVERED UNDER THE INTERNAL ROADS WAS AV AILABLE TO THE ASSESSEE AND THE AREA COVERED BY THE ROADS WAS THE PROPERTY OF THE ASSESSEE. AS PER THE PROVISIONS OF SECTION 80-IB(10) THE CONDITION OF ELIGIBILITY IS NOT PRESC RIBED AS BUILT UP AREA OF ONE ACRE OR AREA UNDER CONSTRUCTION AS O NE ACRE. THEREFORE THE ASSESSEE FULFILED THE CONDITION OF C LAUSE (B) I.E. THE SIZE OF THE PLOT WHICH WAS MORE THAN ONE ACRE. THE A.O WHILE EXAMINING THE ISSUE OF ELIGIBILITY U/S 80-IB( 10) HAS ITA NO. 644/PN/2009 NAMRATA CONSTRUCTION A.Y. 2004-05 4 VERIFIED THE RELEVANT DOCUMENTS ON RECORD. THE ASS ESSMENT ORDER IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE I NTEREST OF REVENUE. FURTHER THE ISSUE RAISED BY THE ASSESSEE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF CO-ORD INATE BENCH OF THIS TRIBUNAL IN THE CASE OF M/S. BUNTY BUILDERS VS. ITO IN ITA NO. 1808/PN/2005 FOR A.Y. 2003-04 DECIDED ON 16 TH FEBRUARY 2010. IN THIS VIEW OF THE MATTER WE ARE OF THE OPINION THAT THE CIT WAS NOT JUSTIFIED IN INVOKING THE PROVISIONS OF SECTION 263 OF THE ACT AND SETTING AS IDE THE ASSESSMENT ORDER PASSED BY THE A.O ON THE GROUND TH AT THE SAME IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST O F REVENUE. WE THEREFORE SET ASIDE THE ORDER PASSED BY THE CIT . 7. IN THE RESULT THE APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH OCTOBER 2010. SD/- SD/- (D. KARUNAKARA RAO) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE DATED THE 8 TH OCTOBER 2010 ANKAM COPY OF ORDER IS FORWARDED TO 1. ASSESSEE 2. DEPARTMENT 3. CIT-V PUNE 4. D.R. A BENCH BY ORDER ASSTT. REGISTRAR I.T.A.T. PUNE BENCH