Income-tax Officer, v. M/s. Tushar Developers, Pune

MA 106/PUN/2011 | 2004-2005
Pronouncement Date: 14-11-2011 | Result: Allowed

Appeal Details

RSA Number 10624524 RSA 2011
Assessee PAN STMAY2011O
Bench Pune
Appeal Number MA 106/PUN/2011
Duration Of Justice 3 month(s) 13 day(s)
Appellant Income-tax Officer,
Respondent M/s. Tushar Developers, Pune
Appeal Type Miscellaneous Application
Pronouncement Date 14-11-2011
Appeal Filed By Department
Order Result Allowed
Bench Allotted B
Tribunal Order Date 14-11-2011
Date Of Final Hearing 23-09-2011
Next Hearing Date 23-09-2011
Assessment Year 2004-2005
Appeal Filed On 01-08-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B PUNE BEFORE SHRI I.C. SUDHIR JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO ACCOUNTANT MEMBER M.A. NO. 106/PN/2011 (ARISING OUT OF ITA NO. 94/PN/2008) (ASSTT. YEAR : 2004-05) INCOME TAX OFFICER ... APP LICA NT WARD-5(3) PUNE V. M/S. TUSHAR DEVELOPERS RESPONDENT 129 BHAWANI PETH NEAR PALKHI CHOWK PUNE- 411042 PAN : NOT AVAILABLE APPLICANT BY : SHRI PRAYAG JHA RESPONDENT BY : SHRI V.L. JAIN DATE OF HEARING : 23.09.2011 DATE OF PRONOUNCEMENT : .11.2011 ORDER PER I.C. SUDHIR JM THE REVENUE HAS PREFERRED THE PRESENT APPLICATION POINTING OUT SOME MISTAKES IN THE ORDER DATED 31 ST MAY 2011 OF THE TRIBUNAL WHICH AS PER THE REVENUE ARE MISTAKES APPARENT FROM RECORD IN THE O RDER WHICH NEED RECTIFICATION UNDER THE PROVISIONS OF SECTION 254(2) OF THE ACT. THE GRIEVANCE OF THE REVENUE IS THAT THE TRIBUNAL HAS DECIDED THE ISSUE RAISED IN GROUND NO. 2 OF THE APPEAL FOLLOWING THE DECISION OF NAGPUR BENCH OF THE TRIBU NAL IN THE CASE OF ITO V/S. AIR DEVELOPERS (2009) 123 TTJ (NAG) 359 THAT THOSE RES IDENTIAL UNITS WHEREIN AREA IS NOT EXCEEDING THE PRESCRIBED LIMIT PROVIDED IN SECT ION 80IB(10) THE CLAIMED DEDUCTION CAN BE ALLOWED WHEREAS AS PER THE DECI SION OF HONBLE JURISDICTIONAL BOMBAY HIGH COURT IN THE CASE OF CIT VS. M/S. BRAH MA ASSOCIATES ITA NO. 1194 OF 2010 JUDGEMENT DATED 22 ND FEBRUARY 2011 SECTION 80IB(10) ALLOWS DEDUCTION TO THE ENTIRE PROJECT APPROVED BY THE LOCAL AUTHORITY AND NOT TO A PART OF THE PROJECT. IN OTHER WORDS THE GRIEVANCE OF THE REVENUE IS TH AT DEDUCTION IS ALLOWABLE/OR NOT MA . NO 106/PN/2011 M/S. TUSHAR DEVELOPERS A.Y.2004-05 PAGE OF 4 2 ALLOWABLE ON THE ENTIRE PROJECT APPROVED BY THE LO CAL AUTHORITY AND THERE IS NO QUESTION OF RESTRICTING THE ALLOWANCE OR DISALLOWAN CE OF DEDUCTION TO A PART OF THE PROJECT ON STAND ALONE OR PRORATE BASIS. THUS THE REVENUE HAS POINTED OUT THAT NON-REFERENCE OF THE SAID JUDGEMENT OF THE HONBLE JURISDICTIONAL BOMBAY HIGH COURT ON THE ISSUE RAISED IN GROUND NO. 2 OF THE APPEAL B Y THE TRIBUNAL HAS RESULTED IN MISTAKE APPARENT FROM RECORD IN THE ORDER DATED 31 ST MAY 2011 OF THE TRIBUNAL WHICH NEEDS RECTIFICATION U/S. 254(2) OF THE ACT. 2. CONTENTION OF THE LD. DR IS THAT WHILE DECIDING THE ISSUE RAISED IN ALTERNATIVE GROUND I.E. GROUND NO. 2 THE TRIBUNAL HAS FAILED T O APPRECIATE THAT THE ISSUE IS FULLY COVERED BY THE DECISION OF HONBLE JURISDICTIONAL B OMBAY HIGH COURT IN THE CASE OF CIT VS. M/S. BRAHMA ASSOCIATES ITA NO. 1194 OF 201 0 JUDGEMENT DATED 22.2.2011. THUS THERE IS MISTAKE APPARENT FROM RECORD IN THE O RDER DATED 31.5.2011 OF THE TRIBUNAL WHICH NEEDS RECTIFICATION U/S. 254(2) OF T HE ACT. 3. THE LD. DR REFERRED CONTENTS OF PARA NOS. 28 AND 30(D) OF THE JUJDGEMENT OF THE HONBLE HIGH COURT IN THE CASE OF BRAHMA ASSOCI ATES (SUPRA) WITH THIS SUBMISSION THAT THE HONBLE HIGH COURT HAS CLEARLY HELD THAT SECTION 80IB(10) ALLOWS DEDUCTION U/S. 80IB(10) TO THE ENTIRE PROJECT APPRO VED BY THE LOCAL AUTHORITY AND THERE IS NO QUESTION OF ALLOWING DEDUCTION TO A PAR T OF THE PROJECT. THE LD. DR CONTENTED THAT NON-APPLICATION OF THIS RATIO LAID D OWN BY THE HONBLE JURISDICTIONAL HIGH COURT BY THE TRIBUNAL WHILE DIRECTING THE A.O TO ALLOW THE CLAIMED DEDUCTION U/S. 80IB(10) ON SUCH RESIDENTIAL FLAT/ROW HOUSES ( OF THE PROJECT) WHEREIN PRESCRIBED AREA LIMIT I.E. 1500 SQ.FT. HAS BEEN PROPERLY COMPL IED WITH IS A MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL MORE SPEC IFICALLY IN PARA NO. 18 OF THE ORDER. 4. THE LD. A.R. ON THE OTHER HAND SUBMITTED THAT THERE IS NO MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL AS NO SUC H RATIO AS CONTENDED BY THE LD. D.R HAS BEEN LAID DOWN BY THE HONBLE JURISDICTION AL HIGH COURT IN THE CASE OF MA . NO 106/PN/2011 M/S. TUSHAR DEVELOPERS A.Y.2004-05 PAGE OF 4 3 BRAHMA ASSOCIATES (SUPRA). THE LD. AR SUBMITTED THA T THE HONBLE HIGH COURT HAS HELD THE ABOVE STATED ORDER OF THE TRIBUNAL IN REST RICTING SECTION 80 IB(10) DEDUCTION ONLY TO A PART OF THE PROJECT AS UNJUSTI FIED SINCE UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE BEFORE IT THE HONBLE HI GH COURT WAS OF THE VIEW THAT THE ASSESSEE WAS ENTITLED FOR CLAIMING DEDUCTION ON THE INCOME EARNED ON SELLING OUT THE ENTIRE HOUSING PROJECT COMPRISING OF RESIDENTIA L AND COMMERCIAL AREA OCCUPYING MORE THAN 10% OF THE BUILT UP AREA. THE LD. AR ARG UED THAT UNDER THESE CIRCUMSTANCES IT WOULD BE INCORRECT TO PICK UP A S ENTENCE OR SET OF WORDS OR OBSERVATION FROM THE SAID JUDGEMENT OF THE HIGH COU RT TO CONCLUDE THAT THE HIGH COURT HAS NEGATED PROPORTIONATE DEDUCTION. THE LD. AR PLACED RELIANCE ON THE FOLLOWING DECISIONS : 1) NODI EXPORTS VS. ACIT (12 DTR 1) (ITAT DELHI) 2) CIT VS. SUN ENGINEERING PVT. LTD. (107 CTR 209) (SC) 3) MADHAV RAO JIWAJI RAO SCINDIA BAHADUR & ORS VS. UNION OF INDIA (1971) 3 SCR 9 4) LACHMAN DASS BHATIA HINGWALA PVT. LTD. VS. ACIT (330 ITR 243) (DELHI) 5) BLUE STAR LTD. VS. CIT (217 ITR 514) (BOM) 6) CIT VS. RAMESH ELEC. & TDG. CO. 203 ITR 497 (BOM B.) WE FIND THAT THE ISSUE RELATING TO PRORATA CLAIM U /S. 80IB(10) WITH REFERENCE TO THE RESIDENTIAL PORTION OF THE HOUSING PROJECT RAISED IN GROUND NO. 2 OF THE APPEAL HAS BEEN ADJUDICATED UPON BY THE TRIBUNAL SIMPLY FOLLOW ING THE DECISION OF NAGPUR BENCH OF THE TRIBUNAL IN THE CASE OF ITO VS. AIR DE VELOPERS (2009) 123 TTJ (NAGPUR) 359. THUS UNDISPUTEDLY THE DECISION OF THE HONBLE JURISDICTIONAL BOMBAY HIGH COURT IN THE CASE OF CIT VS. M.S BRAHMA ASSOC IATES & ORS. (SUPRA) TO WHICH THIS BENCH OF THE TRIBUNAL IS BOUND WITH HAS REMAIN ED TO BE DISCUSSED FOR ITS APPLICABILITY ON THE ISSUE WHICH IN OUR VIEW HAS RESULTED INTO A MISTAKE APPARENT FROM RECORD IN THE ORDER DATED 31 ST MAY 2011 OF THE TRIBUNAL. WE THUS ARE OF THE OPINION THAT PARA NOS. 17 & 18 OF THE ORDER OF THE TRIBUNAL DEALING WITH GROUND NO. MA . NO 106/PN/2011 M/S. TUSHAR DEVELOPERS A.Y.2004-05 PAGE OF 4 4 2 NEEDS RECTIFICATION UNDER THE PROVISIONS OF SECTI ON 254(2) OF THE ACT. WE THUS RECALL THE ORDER OF THE TRIBUNAL ON GROUND NO. 2 I. E. PARA NO. 7 & 18 OF THE ORDER WITH DIRECTION TO THE REGISTRY TO FIX THE APPEAL FO R HEARING ON GROUND NO. 2 ON AN EARLIER POSSIBLE DATE WITH ADVANCE NOTICES TO THE PARTIES. 5. THE APPLICATION IS ACCORDINGLY ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 14TH NOVEMBER 2011. SD/- SD/- ( D. KARUNAKARA RAO ) ACCOUNTANT MEMBER ( I.C. SUDHIR ) JUDICIAL MEMBER PUNE DATED THE 14TH NOVEMBER 2011 US COPY OF THE ORDER IS FORWARDED TO : 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT-II PUNE 4. THE CIT(A)- II PUNE 5. THE D.R. ITAT B BENCH PUNE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE