DCIT, Central Circle 1(1), Pune v. M/s. Sukhwani Buildcon, Pune

ITA 677/PUN/2013 | 2008-2009
Pronouncement Date: 21-04-2014 | Result: Dismissed

Appeal Details

RSA Number 67724514 RSA 2013
Assessee PAN AAEFS7989L
Bench Pune
Appeal Number ITA 677/PUN/2013
Duration Of Justice 1 year(s) 1 month(s) 6 day(s)
Appellant DCIT, Central Circle 1(1), Pune
Respondent M/s. Sukhwani Buildcon, Pune
Appeal Type Income Tax Appeal
Pronouncement Date 21-04-2014
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 21-04-2014
Assessment Year 2008-2009
Appeal Filed On 15-03-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHE B PUNE BEFORE SHRI G.S. PANNU ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR JUDICIAL MEMBER ITA NO.677/PN/2013 (ASSESSMENT YEAR : 2008-09) DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 1(1) PUNE. . APPELLANT VS. M/S SUKHWANI BUILDCON 208/2A NEAR SWAMINATHAN CLINIC STATION ROAD PIMPRI PUNE 411 018. PAN : AAEFS7989L . RESPONDENT DEPARTMENT BY : SHRI S. P. WALIMBE ASSESSEE BY : SHRI VIPIN GUJARATHI DATE OF HEARING : 02-04-2014 DATE OF PRONOUNCEMENT : 21-04-2014 ORDER PER G. S. PANNU AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST AN O RDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-I PUNE DATED 14.01.2013 WHICH IN TURN HAS ARISEN FROM AN ORDER DATED 31.12.2010 PAS SED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME-TAX ACT 1961 (IN SHORT THE ACT) PERTAINING TO THE ASSESSMENT YEAR 2008-09. 2. IN THIS APPEAL REVENUE HAS ASSAILED THE ORDER O F THE CIT(A) IN ALLOWING THE DEDUCTION CLAIMED BY THE ASSESSEE U/S 80IB(10 ) OF THE ACT IN RELATION TO THE PROFITS DERIVED FROM ITS HOUSING PROJECT TULIP . 3. IN BRIEF THE FACTS ARE THAT ASSESSEE IS A PARTN ERSHIP FIRM ENGAGED IN THE BUSINESS OF REAL ESTATE DEVELOPMENT AND FOR THE YEA R UNDER CONSIDERATION IT CLAIMED DEDUCTION U/S 80IB(10) OF THE ACT IN RELATI ON TO THE PROFITS DERIVED FROM A HOUSING PROJECT STYLED AS TULIP. THE ASSESSING OFFICER DENIED THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 80IB(10) OF THE ACT AMOUNTING TO ITA NO.677/PN/2013 A.Y. : 2008-09 RS.26 00 000/-. THE ASSESSING OFFICER HAS NOTICED THAT THE DEDUCTION U/S 80IB(10) OF THE ACT IN RELATION TO TULIP PROJECT WAS ALSO DENIED TO THE ASSESSEE IN THE PRECEDING ASSESSMENT YEAR 2007-08. THE REASONS ADVANCED WERE TWO FOLD NAMELY THAT THE PROJECT INCLUDED CO NSTRUCTION OF COMMERCIAL AREA WHICH WAS VIOLATIVE OF CLAUSE (D) TO SECTION 8 0IB(10) OF THE ACT AND SECONDLY BUILT-UP AREA OF CERTAIN UNITS WAS IN EXC ESS OF 1500 SQ.FT. WHICH WAS VIOLATIVE OF CLAUSE (C) TO SECTION 80IB(10) OF THE ACT. FOR THE AFORESAID TWO REASONS THE CLAIM WAS DENIED IN THE CASE OF THE AS SESSEE FOR ASSESSMENT YEAR 2007-08 AND FOR SIMILAR REASONS IN THE INSTANT YEAR ALSO THE ASSESSING OFFICER DENIED THE CLAIM OF THE ASSESSEE FOR DEDUCT ION U/S 80IB(10) OF THE ACT. 4. THE CIT(A) ALLOWED THE CLAIM OF THE ASSESSEE BY NOTICING THAT IN THE CASE OF THE ASSESSEE FOR ASSESSMENT YEAR 2007-08 TH E CLAIM WAS ALLOWED BY HIS PREDECESSOR CIT(A) VIDE ORDER DATED 07.06.2012. ACCORDINGLY THE REVENUE IS IN APPEAL BEFORE US. 5. BEFORE US IT WAS A COMMON POINT BETWEEN THE PAR TIES THAT THE ORDER OF THE CIT(A) FOR ASSESSMENT YEAR 2007-08 DATED 07.06. 2012 WHICH HAS BEEN FOLLOWED BY THE CIT(A) IN THIS YEAR TO ALLOW THE CL AIM OF THE ASSESSEE WAS A SUBJECT-MATTER OF CONSIDERATION BY THE TRIBUNAL VID E ITA NOS.2077 & 2078/PN/2012 DATED 28.10.2013 WHEREBY THE ACTION O F THE CIT(A) IN ALLOWING ASSESSEES CLAIM FOR DEDUCTION U/S 80IB(10) OF THE ACT HAS BEEN AFFIRMED. IN THE COURSE OF HEARING THE LEARNED COUNSEL FOR THE ASSESSEE FURNISHED A COPY OF THE SAID ORDER AND IT IS CONTENDED THAT THE SAME CONTINUES TO HOLD THE FIELD AS IT HAS NOT BEEN ALTERED BY ANY HIGHER AUTHORITY. 6. IN THE ABOVE BACKGROUND WE HAVE CONSIDERED THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE PRECEDENT IN THE A SSESSEES OWN CASE BY WAY OF ORDER OF THE TRIBUNAL DATED 28.10.2013 (SUPRA). THE TRIBUNAL CONSIDERED THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 80IB(10 ) OF THE ACT IN RESPECT OF THE PROFITS DERIVED FROM A HOUSING PROJECT TULIP FOR ASSESSMENT YEARS 2006-07 ITA NO.677/PN/2013 A.Y. : 2008-09 AND 2007-08 (SUPRA). THE TRIBUNAL NOTED THAT THE P ROJECT OF THE ASSESSEE WAS APPROVED PRIOR TO 01.04.2005 AND THEREFORE FOLLOWIN G THE JUDGEMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF BRAMHA ASS OCIATES 333 ITR 289 (BOM.) IT HAS BEEN HELD THAT THE RESTRICTION ON THE EXTENT OF COMMERCIAL AREA PRESCRIBED IN CLAUSE (D) OF SECTION 80IB(10) OF THE ACT WAS NOT APPLICABLE. SIMILARLY WITH REGARD TO THE BUILT-UP AREA OF CERT AIN UNITS BEING IN EXCESS OF 1500 SQ.FT. PRESCRIBED IN CLAUSE (C) OF SECTION 80I B(10) OF THE ACT THE TRIBUNAL NOTED THAT THE SAID UNITS WERE INDEED SOLD AS THREE SEPARATE FLATS AND IT WAS THE CUSTOMER WHO HAD COMBINED THE FLATS WHICH RESUL TED IN THE BUILT-UP AREA OF THE COMBINED FLAT BEING IN EXCESS OF THE LIMIT PRES CRIBED IN CLAUSE (C) OF SECTION 80IB(10) OF THE ACT. IN VIEW OF THE AFORESAID FACT UAL ASPECT THE TRIBUNAL HELD THAT IT DOES NOT REFLECT ANY VIOLATION OF CLAUSE (C ) OF SECTION 80IB(10) OF THE ACT ON THE PART OF THE ASSESSEE. THEREFORE AFTER SETT ING-ASIDE BOTH THE OBJECTIONS RAISED BY THE REVENUE THE TRIBUNAL UPHELD THE CLAI M OF THE ASSESSEE FOR DEDUCTION U/S 80IB(10) OF THE ACT IN RESPECT OF PRO FITS RELATING TO THE TULIP PROJECT. 7. IN THE YEAR UNDER CONSIDERATION THE FACTS AND C IRCUMSTANCES ARE IDENTICAL TO THOSE CONSIDERED BY THE TRIBUNAL IN TH E ASSESSEES OWN CASE FOR ASSESSMENT YEARS 2006-07 AND 2007-08 (SUPRA) AND TH EREFORE FOLLOWING THE PRECEDENT BY WAY OF THE ORDER OF THE TRIBUNAL DATED 28.10.2013 (SUPRA) THE IMPUGNED ORDER OF THE CIT(A) IS HEREBY AFFIRMED AND ASSESSEES CLAIM FOR DEDUCTION U/S 80IB(10) OF THE ACT IS UPHELD. 8. IN THE RESULT THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST APRIL 2014. SD/- SD/- (R.S. PADVEKAR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE DATED: 21 ST APRIL 2014. SUJEET ITA NO.677/PN/2013 A.Y. : 2008-09 COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-I PUNE; 4) THE CIT-I PUNE; 5) THE DR B BENCH I.T.A.T. PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY I.T.A.T. PUNE