ACIT, Central Circle 1(1), Pune v. Shri Ghansham J Sukhwani, Pune

ITA 982/PUN/2012 | 2004-2005
Pronouncement Date: 23-07-2013 | Result: Dismissed

Appeal Details

RSA Number 98224514 RSA 2012
Assessee PAN ACEPS8695R
Bench Pune
Appeal Number ITA 982/PUN/2012
Duration Of Justice 1 year(s) 2 month(s) 7 day(s)
Appellant ACIT, Central Circle 1(1), Pune
Respondent Shri Ghansham J Sukhwani, Pune
Appeal Type Income Tax Appeal
Pronouncement Date 23-07-2013
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 23-07-2013
Assessment Year 2004-2005
Appeal Filed On 16-05-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES B PUNE BEFORE SHRI G.S. PANNU ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR JUDICIAL MEMBER ITA NOS.981 TO 985/PN/2012 (ASSESSMENT YEARS : 2003-04 TO 2007-08) ASSTT. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 1 (1) PUNE . APPELLANT VS. SHRI GHANSHYAM J SUKHWANI C/O SUKHWANI CONSTRUCTIONS OFF. NO. 32 SUKHWANI CHEMBERS PIMPRI PUNE 411 018 PAN : ACEPS8695R . RESPONDENT ITA NO. 986 & 987/PN/2012 (ASSESSMENT YEAR : 2006-07 & 2007-08) ASSTT. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 1 (1) PUNE . APPELLANT VS. GHANSHYAM J SUKHWANI (HUF) PROP VIKRAM CONSTRUCTIONS 32 SUKHWANI CHEMBERS PIMPRI PUNE 411 018 PAN : AABHS9560G . RESPONDENT APPELLANT BY : MR. ADARSH KUMAR MODI RESPONDENT BY : MR. VIPIN GUJARATHI DATE OF HEARING : 18-07-2013 DATE OF PRONOUNCEMENT : 23-07-2013 ORDER PER G. S. PANNU AM THE CAPTIONED APPEALS BY THE DEPARTMENT RELATE TO TWO DIFFERENT ASSESSEES BELONGING TO THE SAME FAMILY AND INVOLVE CERTAIN COMMON ISSUES THEREFORE THEY HAVE BEEN CLUBBED AND HEARD TOGETHE R AND A CONSOLIDATED ORDER IS BEING PASSED FOR THE SAKE OF CONVENIENCE A ND BREVITY. ITA NOS.981 TO 987/PN/2012 A.Y S. 2003-04 TO 2007-08 2. FIRST WE SHALL TAKE-UP THE APPEALS IN THE CASE OF SHRI GHANSHYAM J. SUKHWANI BEARING ITA NOS. 981 TO 985/PN/2012 PERTAI NING TO THE ASSESSMENT YEARS 2003-04 TO 2007-08 RESPECTIVELY. THESE APPEAL S BY THE REVENUE ARE DIRECTED AGAINST A COMMON ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-I PUNE DATED 09.11.2011 PERTAINING TO TH E ASSESSMENT YEARS 2003-04 TO 2007-08 WHICH IN TURN HAS ARISEN FROM THE RESPECTIVE ASSESSMENT ORDERS PASSED BY THE ASSESSING OFFICER UNDER SECTIO N 143(3) READ WITH SECTION 153A OF THE INCOME TAX ACT 1961 (IN SHORT THE ACT) DATED 31.12.2008. 3. IN ALL THESE APPEALS THE COMMON DISPUTE RELATES TO THE CLAIM OF THE ASSESSEE FOR DEDUCTION UNDER SECTION 80-IB(10) OF T HE ACT IN RELATION TO THE PROFITS DERIVED FROM UNDERTAKING DEVELOPMENT AND BU ILDING OF A HOUSING PROJECT. IT WAS A COMMON POINT BETWEEN THE PARTIES THAT IN ALL THE ASSESSMENT YEARS THE CLAIM OF THE ASSESSEE FOR DEDUCTION UNDE R SECTION 80-IB(10) OF THE ACT RESTS ON THE SAME FOOTING AND THE DENIAL BY THE ASSESSING OFFICER OF SUCH CLAIM IS ALSO FOR A SINGULAR COMMON REASON. THEREFO RE IN ORDER TO APPRECIATE THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE DIS PUTE RELATING TO THE CLAIM OF DEDUCTION UNDER SECTION 80-IB(10) OF THE ACT APPEA L FOR THE ASSESSMENT YEAR 2003-04 IS TAKEN AS THE LEAD CASE. 4. THE ASSESSEE IS AN INDIVIDUAL ENGAGED IN THE BUS INESS OF PROMOTERS AND BUILDERS AND IN TERMS THEREOF HE UNDERTOOK THE DEVELOPMENT AND BUILDING OF A HOUSING PROJECT AT MORWADI PIMPRI. IN RELATIO N TO THE PROFITS DERIVED FROM SUCH PROJECT IN ASSESSMENT YEAR 2003-04 ASSESSEE C LAIMED DEDUCTION UNDER SECTION 80-IB(10) OF THE ACT AMOUNTING TO RS.1 46 9 1 380/- . 5. SECTION 80-IB(10) OF THE ACT PERMITS DEDUCTION I N THE CASE OF AN UNDERTAKING DEVELOPING AND BUILDING HOUSING PROJECT S WITH REGARD TO THE PROFITS DERIVED FROM SUCH PROJECT. THE DEDUCTION ALLOWABLE UNDER SECTION 80-IB(10) OF ITA NOS.981 TO 987/PN/2012 A.Y S. 2003-04 TO 2007-08 THE ACT IS SUBJECT TO THE FULFILLMENT OF CERTAIN CO NDITIONS PRESCRIBED THEREIN. IN THE PRESENT CASE THE ONLY OBJECTION RAISED BY THE ASSESSING OFFICER IS THAT THE PROJECT OF THE ASSESSEE DOES NOT MEET WITH THE COND ITION PRESCRIBED IN CLAUSE (D) OF SECTION 80-IB(10) OF THE ACT WHICH LIMITS T HE BUILT-UP AREA OF SHOPS AND OTHER COMMERCIAL ESTABLISHMENTS IN A HOUSING PROJEC T. THE PROJECT OF THE ASSESSEE HAS BEEN APPROVED BY THE LOCAL AUTHORITY I.E. PIMPRI CHINCHWAD MUNICIPAL CORPORATION (IN SHORT PCMC) AS A HOUSI NG PROJECT AND THE BUILDING PLAN APPROVAL IS DATED 03.08.1999. THE TOTAL BUILT- UP AREA OF THE PROJECT IS 4227.65 SQ.MTR. OUT OF WHICH THE BUILT-UP AREA OF SHOPS AND OTHER COMMERCIAL ESTABLISHMENTS IS 219.54 SQ.MTR. (I.E. 2364.2 SQ.FT .). AS PER THE REVENUE THE PROJECT OF ASSESSEE IS NOT A PURE HOUSING PROJECT AND SECONDLY THE BUILT-UP AREA OF THE SHOPS AND OTHER COMMERCIAL ESTABLISHMEN TS INCLUDED IN THE PROJECT OF 2364.2 SQ.FT. IS VIOLATIVE OF THE LIMIT PRESCRIB ED IN CLAUSE (D) OF SECTION 80-IB(10) OF THE ACT. CLAUSE (D) OF SECTION 80-IB(1 0) OF THE ACT PRESCRIBES THAT BUILT-UP AREA OF THE SHOPS AND OTHER COMMERCIAL EST ABLISHMENTS INCLUDED IN THE HOUSING PROJECT SHOULD NOT EXCEED 5% OF THE AGG REGATE BUILT-UP AREA OF THE HOUSING PROJECT OR 2000 SQ.FT. WHICHEVER IS LESS. ON THIS BASIS THE ASSESSING OFFICER HELD THAT THE PROJECT OF THE ASSESSEE VIOLA TED THE CONDITION PRESCRIBED IN CLAUSE (D) OF SECTION 80-IB(10) OF THE ACT AND ACCORDINGLY THE CLAIM FOR DEDUCTION AMOUNTING TO RS.1 46 91 380/- WAS DENIED IN AN ASSESSMENT MADE UNDER SECTION 143(3) READ WITH SECTION 153A OF THE ACT DATED 31.12.2008. 6. ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A). THE CIT(A) ALLOWED THE CLAIM OF ASSESSEE BY OBSERVING THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN APPLYING CLAUSE (D) OF SECTION 80-IB(1 0) OF THE ACT TO DENY THE ASSESSEES CLAIM FOR DEDUCTION BECAUSE THE SAID CLA USE WAS INSERTED BY THE FINANCE (NO.2) ACT 2004 W.E.F. 01.04.2005 AND THER EFORE THE SAME DID NOT APPLY TO THE PROJECT OF THE ASSESSEE WHICH WAS APPR OVED AND COMMENCED PRIOR TO 01.04.2004. IN THIS MANNER THE CLAIM OF TH E ASSESSEE HAS BEEN ALLOWED BY THE CIT(A) AND IN DOING SO THE CIT(A) R ELIED UPON THE JUDGEMENT OF ITA NOS.981 TO 987/PN/2012 A.Y S. 2003-04 TO 2007-08 THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS . BRAHMA ASSOCIATES (2011) 333 ITR 289 (BOM.) AND ALSO THE DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF HIRANANDANI AKRUTI JV VS. D CIT (2010) 39 SOT 498 (MUM.) AND THE DECISION OF THE PUNE BENCH OF THE TR IBUNAL IN THE CASE OF OPEL SHELTER PVT. LTD. VS. ACIT & OTHERS VIDE ITA NOS. 2 19 & 17/PN/2009 DATED 31.05.2011. AGAINST THE AFORESAID DECISION OF THE C IT(A) REVENUE IS IN APPEAL BEFORE US. 7. BEFORE US THE LEARNED CIT(DR) HAS PRIMARILY REF ERRED TO THE ASSESSMENT ORDER TO SUPPORT THE CASE OF THE REVENUE THAT THE PROJECT OF THE ASSESSEE WAS NOT ELIGIBLE FOR DEDUCTION UNDER SECTI ON 80-IB(10) OF THE ACT. FIRSTLY ACCORDING TO THE LEARNED CIT(DR) PRIOR TO INSERTION OF CLAUSE (D) TO SECTION 80-IB(10) OF THE ACT THE ASSESSING OFFICER HAS OBSERVED IN PARA 5.4 OF THE ASSESSMENT ORDER THAT THERE WAS NO SCOPE FOR A NY COMMERCIAL AREA IN AN ELIGIBLE PROJECT AND THEREFORE ANY PROJECT WITH A C OMMERCIAL AREA WAS INELIGIBLE. SINCE THE PROJECT OF THE ASSESSEE COMPR ISED OF COMMERCIAL AREA THEREFORE IT WOULD DISENTITLE THE ASSESSEE FROM DED UCTION UNDER SECTION 80-IB(10) OF THE ACT. IT WAS FURTHER POINTED OUT TH AT IN ANY CASE THE PROVISIONS OF CLAUSE (D) OF SECTION 80-IB(10) OF THE ACT ARE A PPLICABLE FROM 01.04.2005 AND THEREFORE FOR ASSESSMENT YEAR 2005-06 ONWARDS PROJECT OF THE ASSESSEE DID NOT MEET WITH THE COMMERCIAL AREA LIMITS LAID D OWN IN CLAUSE (D) OF SECTION 80-IB(10) OF THE ACT AND THE SAME WAS NOT ELIGIBLE FOR DEDUCTION UNDER SECTION 80-IB(10) OF THE ACT. 8. ON THE OTHER HAND THE LEARNED COUNSEL FOR THE A SSESSEE SUBMITTED THAT THE CIT(A) MADE NO MISTAKE IN ALLOWING THE CLAIM OF THE ASSESSEE FOR DEDUCTION UNDER SECTION 80-IB(10) OF THE ACT BECAU SE CLAUSE (D) OF SECTION 80-IB(10) OF THE ACT HAS BEEN INSERTED W.E.F. 01.04 .2005 BY THE FINANCE (NO.2) ACT 2004 AND WOULD NOT BE APPLICABLE TO PROJECTS W HICH HAVE BEEN APPROVED/COMMENCED PRIOR TO 01.04.2005. LEARNED COU NSEL SPECIFICALLY ITA NOS.981 TO 987/PN/2012 A.Y S. 2003-04 TO 2007-08 REFERRED TO THE JUDGEMENT OF THE HONBLE BOMBAY HIG H COURT IN THE CASE OF BRAHMA ASSOCIATES (SUPRA) POINTED OUT THAT THE AMEN DMENTS MADE BY THE FINANCE (NO.2) ACT 2004 W.E.F. 01.04.2005 HAVE BEE N UNDERSTOOD TO BE PROSPECTIVE IN NATURE. APART FROM THE AFORESAID TH E LEARNED COUNSEL HAS ALSO RELIED UPON THE JUDGEMENT OF THE HONBLE GUJARAT HI GH COURT IN THE CASE OF MANAN CORPORATION VS. ACIT (2013) 255 CTR 415 (GUJ .) WHILE DEFENDING THE ORDER OF THE CIT(A). 9. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. THE PRIMARY BONE OF CONTENTION BETWEEN THE ASSESSEE AND THE REVENUE IS WITH REGARD TO CLAUSE (D) OF SECTION 80-IB(10) OF THE ACT INSERTED BY FI NANCE (NO.2) ACT 2004 W.E.F. 01.04.2005 WHICH READS AS UNDER :- (D) THE BUILT-UP AREA OF THE SHOPS AND OTHER COM MERCIAL ESTABLISHMENTS INCLUDED IN THE HOUSING PROJECT DOES NOT EXCEED FIVE PER CENT OF THE AGGREGATE BUILT-UP AREA OF THE HOUSING PROJE CT OR TWO THOUSAND SQUARE FEET WHICHEVER IS LESS. 10. ON THE BASIS OF THE AFORESAID THE CASE SET-UP BY THE REVENUE IS THAT FOR ASSESSMENT YEAR PRIOR TO 2005-06 IT HAS TO BE UNDERSTOOD THAT SECTION 80-IB(10) OF THE ACT ENVISAGED THE MEANING OF EXPRE SSION HOUSING PROJECT AS ONLY A PURELY RESIDENTIAL PROJECT NOT INVOLVING A NY COMMERCIAL AREA. SECONDLY IT IS POINTED OUT THAT FOR ASSESSMENT YEA R 2005-06 ONWARDS THE CLAIM OF THE ASSESSEE IS NOT TENABLE BECAUSE COMMER CIAL AREA IN THE PROJECT OF THE ASSESSEE IS 2364.2 SQ.FT. WHICH IS MORE THAN T HE LIMIT PRESCRIBED IN CLAUSE (D) TO SECTION 80-IB(10) OF THE ACT. 11. ON THE AFORESAID ASPECT IN OUR CONSIDERED OPIN ION THE REVENUE HAS TO FAIL. THE RELIANCE PLACED BY THE REVENUE ON THE PRO VISIONS OF SECTION 80-IB(10)(D) OF THE ACT IN THE PRESENT CASE IS QUIT E MISPLACED INASMUCH AS THE SAID PROVISION HAS BEEN HELD TO BE PROSPECTIVE IN N ATURE AND NOT RETROSPECTIVE ITA NOS.981 TO 987/PN/2012 A.Y S. 2003-04 TO 2007-08 BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CAS E OF BRAHMA ASSOCIATES (SUPRA) AND THEREFORE IT FOLLOWS THAT THE SAID PR OVISIONS CANNOT BE APPLIED FOR THE PERIOD PRIOR TO 01.04.2005. THE PLEA OF THE REV ENUE THAT FOR PERIOD PRIOR TO 01.04.2005 ONLY A PURE HOUSING PROJECT IS ELIGIBL E FOR DEDUCTION IN OUR VIEW THE SAID PLEA IS QUITE FALLACIOUS. IN THIS CONTEXT WE MAY REFER TO THE JUDGEMENT OF THE HONBLE BOMBAY HIGH COURT WHICH NOTICED THAT THE EXPRESSION HOUSING PROJECT HAS NOT BEEN DEFINED UNDER THE ACT BUT THE HONBLE HIGH COURT EXPLAINED THAT IN VIEW OF THE PHRASEOLOGY OF SECTIO N 80-IB(10) OF THE ACT REFERRING TO HOUSING PROJECT AS APPROVED BY LOCAL AUTHORITY SO LONG AS A PROJECT IS APPROVED BY A LOCAL AUTHORITY TO BE A H OUSING PROJECT WITH OR WITHOUT COMMERCIAL USER IT MET WITH THE REQUIREMENTS OF SE CTION80-IB(10) OF THE ACT. NOTABLY THE PROJECT BEFORE THE HONBLE HIGH COURT CONSISTED OF FIFTEEN RESIDENTIAL BUILDINGS AND TWO COMMERCIAL BUILDINGS AND THE LOCAL AUTHORITY THEREIN HAD APPROVED THE PROJECT AS RESIDENTIAL CU M COMMERCIAL. THE ASSESSMENT YEAR BEFORE THE HONBLE HIGH COURT WAS P RIOR TO 01.04.2005 AND EVEN AFTER CONSIDERING CLAUSE (D) TO SECTION 80-IB( 10) OF THE ACT AS INSERTED BY THE FINANCE (NO.2) ACT 2004 THE HONBLE HIGH COUR T UPHELD THE CLAIM OF THE ASSESSEE AND HELD IT TO BE ELIGIBLE FOR DEDUCTION U NDER SECTION 80-IB(10) OF THE ACT. THEREFORE HAVING REGARD TO THE AFORESAID JUDG EMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CASE BEFORE US AS THE PR OJECT HAS BEEN APPROVED BY THE LOCAL AUTHORITY AS A HOUSING PROJECT THEN EVEN IF IT CONTAINS A COMMERCIAL AREA THE SAME QUALIFIES TO BE A HOUSIN G PROJECT FOR THE PURPOSES OF SECTION 80-IB(10) OF THE ACT IN THE SAME MANNER AS UNDERSTOOD BY THE HONBLE HIGH COURT IN THE CASE OF BRAHMA ASSOCIATES (SUPRA). IN SO FAR AS ASSESSMENT YEARS 2003-04 & 2004-05 ARE CONCERNED TH E FACTS IN THE PRESENT CASE ARE IDENTICAL TO THOSE CONSIDERED BY THE HONB LE BOMBAY HIGH COURT IN THE CASE OF BRAHMA ASSOCIATES (SUPRA) AND THEREFORE THE CIT(A) MADE NO MISTAKE IN ALLOWING THE CLAIM OF THE ASSESSEE FOR D EDUCTION UNDER SECTION 80-IB(10) OF THE ACT. ITA NOS.981 TO 987/PN/2012 A.Y S. 2003-04 TO 2007-08 12. NOW WE MAY MAKE A MENTION OF THE REVENUES AFO RESAID OBJECTION WITH REGARD TO THE ASSESSMENT YEAR 2005-06 ONWARDS. ON THIS ASPECT ALSO IT IS QUITE CLEAR THAT THE RESTRICTION OF COMMERCIAL AREA INSERTED IN THE STATUTE BY FINANCE (NO.2) ACT 2004 W.E.F. 01.04.2005 IS PROSP ECTIVE IN NATURE AND CANNOT BE APPLIED TO THE PROJECTS WHICH HAVE BEEN A PPROVED/COMMENCED PRIOR TO 01.04.2005. OSTENSIBLY IN THE CASE OF THE ASSES SEE THE PROJECT HAS BEEN APPROVED/COMMENCED PRIOR TO 01.04.2005. THE CIT(A) HAS RELIED UPON THE DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF HIRANANDANI AKRUTI JV (SUPRA) AND ALSO THE DECISION OF THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF OPEL SHELTER PVT. LTD. (SUPRA) IN COMING TO THE AFORESAID CONCLUSION. NO DECISION TO THE CONTRARY HAS BEEN REFERRED BEFORE U S. 13. THE HONBLE GUJARAT HIGH COURT IN THE CASE OF M ANAN CORPORATION (SUPRA) WAS DEALING WITH A CLAIM FOR DEDUCTION UNDE R SECTION 80-IB(10) OF THE ACT FOR ASSESSMENT YEAR 2006-07. T HE REVENUE HAD DENIED THE CLAIM ON THE GROUND THAT THE ASSESSEE DID NOT F ULFILL THE CONDITIONS CONTAINED IN SECTION 80-IB(10) OF THE ACT AS IT STO OD AMENDED BY THE FINANCE (NO.2) ACT 2004 W.E.F. 01.04.2005. FACTUALLY THE PROJECT OF THE ASSESSEE BEFORE THE HONBLE HIGH COURT WAS APPROVED/COMMENCE D PRIOR TO 01.04.2005. IN THIS BACKGROUND THE HONBLE HIGH COURT ALLOWED THE CLAIM OF THE ASSESSEE AND HELD THAT THE AMENDMENT MADE BY WAY OF INSERTIO N OF CLAUSE (D) TO SECTION 80-IB(10) OF THE ACT BY FINANCE (NO.2) ACT 2004 W.E.F. 01.04.2005 WAS APPLICABLE PROSPECTIVELY AND WOULD NOT BE APPLI CABLE TO PROJECTS APPROVED BEFORE 01.04.2005. THE AFORESAID JUDGEMENT OF THE H ONBLE GUJARAT HIGH COURT WHICH HAS REFERRED TO THE JUDGEMENT OF THE H ONBLE BOMBAY HIGH COURT IN THE CASE OF BRAHMA ASSOCIATES (SUPRA) WITH APPRO VAL CLEARLY COVERS THE CONTROVERSY BEFORE US IN FAVOUR OF THE ASSESSEE. TH EREFORE IN OUR VIEW THE CIT(A) MADE NO MISTAKE IN ALLOWING THE CLAIM OF THE ASSESSEE FOR DEDUCTION UNDER SECTION 80-IB(10) OF THE ACT FOR ALL THE CAPT IONED ASSESSMENT YEARS NAMELY 2003-04 TO 2007-08. ITA NOS.981 TO 987/PN/2012 A.Y S. 2003-04 TO 2007-08 14. IN THE RESULT THE APPEALS OF THE REVENUE IN IT A NOS. 981 TO 985/PN/2012 PERTAINING TO THE ASSESSMENT YEARS 2003 -04 TO 2007-08 IN THE CASE OF SHRI GHANSHYAM J. SUKHWANI ARE HEREBY DISMI SSED. 15. NOW WE MAY TAKE-UP THE APPEALS OF THE REVENUE IN ITA NO. 986 & 987/PN/2012 PERTAINING TO THE ASSESSMENT YEARS 2006 -07 & 2007-08 IN THE CASE OF GHANSHYAM J. SUKHWANI (HUF). IN BOTH THESE APPEALS A COMMON ISSUE RELATES TO ASSESSEES CLAIM FOR DEDUCTION UND ER SECTION 80-IB(10) OF THE ACT WITH RESPECT OF ITS PROJECT AT AKURDI. IT WAS A COMMON POINT BETWEEN THE PARTIES THAT THE CLAIM OF THE ASSESSEE HAS BEEN DEN IED BY THE ASSESSING OFFICER UNDER IDENTICAL CIRCUMSTANCES WHICH HAVE BE EN CONSIDERED IN THE CASE OF GHANSHYAM J. SUKHWANI (SUPRA) FOR ASSESSMENT YEA RS 2006-07 & 2007-08 IN THE EARLIER PARAGRAPHS. IT WAS ALSO A COMMON POI NT BETWEEN THE PARTIES THAT THE CIT(A) HAS ALLOWED THE CLAIM OF THE ASSESSEE FO R SIMILAR REASON AS ADVANCED BY HIM WHILE ALLOWING THE CLAIM OF THE ASS ESSEE IN SHRI GHANSHYAM J. SUKHWANI (SUPRA). IN THIS BACKGROUND OUR DECISI ON IN THE CASE OF SHRI GHANSHYAM J. SUKHWANI (SUPRA) PERTAINING TO THE ASS ESSMENT YEAR 2006-07 RENDERED IN THE EARLIER PARAGRAPHS SHALL APPLY MUTATIS-MUTANDIS IN THESE TWO APPEALS ALSO AND ACCORDINGLY REVENUE FAILS ON THIS ASPECT IN BOTH THE APPEALS. 16. THE ONLY OTHER ISSUE REMAINING IS IN ITA NO.986 /PN/2012 WHICH IS WITH REGARD TO AN ADDITION OF RS.7 76 000/- MADE BY THE ASSESSING OFFICER BY INVOKING SECTION 50C OF THE ACT WHICH HAS SINCE BE EN DELETED BY THE CIT(A); AND THE REVENUE IS IN APPEAL BEFORE US. 17. IN BRIEF THE FACTS ARE THAT DURING THE ASSESSM ENT YEAR 2006-07 ASSESSEE HAD SOLD A PROPERTY AT BANER FOR RS.70 00 000/- VIDE AGREEMENT DATED 30.10.2005 WHICH WAS PURCHASED EARLIER ON 11. 07.2005 FOR A ITA NOS.981 TO 987/PN/2012 A.Y S. 2003-04 TO 2007-08 CONSIDERATION RS.61 60 000/-. THE ASSESSING OFFICER NOTICED THAT AS ON 30.10.2005 THE VALUE FOR THE PURPOSES OF PAYMENT ON STAMP DUTY IN RESPECT OF THE PROPERTY WAS RS.77 76 000/- WHICH WAS MORE THAN THE STATED CONSIDERATION OF RS.70 00 000/-. ACCORDINGLY THE ASSESSING OFFIC ER ADOPTED RS.77 76 000/- AS THE SALE CONSIDERATION AGAINST THE DECLARED/STAT ED CONSIDERATION OF RS.70 00 000/- THEREBY MAKING AN ADDITION OF RS.7 76 000/- TO THE RETURN OF INCOME. 18. THE CIT(A) HAS DELETED THE ADDITION BY NOTICING THAT THE PROPERTY IN QUESTION (I.E. LAND) WAS A STOCK-IN-TRADE AND WAS O UTSIDE THE PURVIEW OF SECTION 50C OF THE ACT WHICH PERMITTED AN ASSESSING OFFICER TO SUBSTITUTE THE VALUE ADOPTED FOR STAMP DUTY PURPOSES AS FULL VALUE OF CONSIDERATION INSTEAD OF THE ACTUALLY DECLARED CONSIDERATION. IN SUM AND SUB STANCE AS PER THE CIT(A) SECTION 50C OF THE ACT WAS NOT APPLICABLE TO THE LA ND TRANSACTION IN QUESTION AND THEREFORE THE ADDITION HAS BEEN DELETED. 19. BEFORE US FACTUALLY THERE IS NO DISPUTE THAT T HE LAND TRANSACTION IN QUESTION RELATES TO STOCK-IN-TRADE. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF PROMOTER AND BUILDERS. THE PURCHASE AND SALE OF LAN D IN QUESTION IS A BUSINESS TRANSACTION AND IT IS ALSO APPARENT THAT S UCH TRANSACTION WAS DECLARED BY THE ASSESSEE AS FALLING UNDER THE HEAD BUSINESS. IN-FACT THE ASSESSING OFFICER ALSO DOES NOT DISAGREE WITH THE A FORESAID POSITION. IT IS QUITE CLEAR THAT THE PROVISIONS OF SECTION 50C OF THE ACT ARE NOT APPLICABLE IN THIS BACKGROUND AND THE ASSESSING OFFICER DOES NOT ENJOY THE POWER TO SUBSTITUTE THE VALUE ADOPTED FOR THE STAMP DUTY PURPOSES AS TH E FULL VALUE OF CONSIDERATION IN CONTRAST TO DECLARED/STATED CONSID ERATION. IN-FACT THE ASSESSING OFFICER DOES NOT DISAGREE WITH THE AFORES AID PROPOSITION HOWEVER ACCORDING TO HIM THE ESSENCE OF SECTION 50C OF THE ACT IS THAT WHEREVER THE STATED CONSIDERATION IS LESS THAN THE VALUE ADOPTED FOR THE PURPOSES OF STAMP DUTY THE VALUE FOR THE STAMP DUTY PURPOSES SHALL B E TAKEN AS THE SALE PRICE ITA NOS.981 TO 987/PN/2012 A.Y S. 2003-04 TO 2007-08 AND PROFIT CALCULATED ACCORDINGLY. IN OUR CONSIDERE D OPINION THE SAID APPROACH OF THE ASSESSING OFFICER IS MISCONCEIVED. IN ANY CA SE NEITHER THE PROVISIONS OF SECTION 50C ARE APPLICABLE AND NOR IS THERE ANY CHA RGE MADE BY THE ASSESSING OFFICER THAT IN-FACT ASSESSEE HAS RECEIVE D ANY CONSIDERATION OVER AND ABOVE THE STATED CONSIDERATION. THEREFORE CONS IDERING THE ENTIRETY OF THE FACTS AND CIRCUMSTANCES OF THE CASE IN OUR VIEW T HE CIT(A) MADE NO MISTAKE IN DELETING THE ADDITION OF RS.7 76 000/- MADE BY T HE ASSESSING OFFICER. 20. IN THE RESULT BOTH THE APPEALS OF THE REVENUE IN THE CASE OF GHANSHYAM J. SUKHWANI (HUF) FOR THE ASSESSMENT YEAR 2006-07 & 2007-08 ARE HEREBY DISMISSED. 21. RESULTANTLY ALL THE CAPTIONED APPEALS OF THE R EVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD JULY 2013. SD/- SD/- (R.S. PADVEKAR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE DATED: 23 RD JULY 2013 SUJEET 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