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Income Tax Appellate Tribunal, “B” BENCH, PUNE
Before: SHRI R.S.SYAL, VP & SHRI PARTHA SARATHI CHAUDHURY, JM
आदेश / ORDER
PER PARTHA SARATHI CHAUDHURY, JM :
This appeal preferred by the Revenue emanates from the order of Ld. CIT(Appeals)-1, Pune dated 28.07.2016 for the assessment year 2010-11 as per grounds of appeal on record.
The brief facts in this case are that the assessee-firm is engaged in real estate development activity and it had filed return of income for assessment
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year 2010-11 on 21.09.2010 declaring total income of Rs.2,31,25,690/-. The
return of income was revised on 27.04.2011 showing taxable income of
Rs.1,03,562/- after claiming deduction u/s.80IB(10) of the Income Tax Act,
1961 (hereinafter referred to as ‘the Act’) amounting to Rs.2,27,49,856/-.
Thereafter, the case was selected for scrutiny and assessment was completed
u/s.143(3) of the Act and assessed total income of the assessee being at
Rs.2,28,53,420/- in which deduction claimed u/s.80IB(10) was disallowed.
With regard to this background, the facts on record reveals that the
assessee had undertaken a project of redevelopment of slum in Bhavani Peth
(S. No.527, Kasewadi), Pune. The said development project was approved
by the "Slum Re-development Authority"(SRA), an agency which was the
nodal agency for such re-development project. SRA and PMC had floated
the tender for re-development of the Bhavani Peth area slum mandating
construction of building consisting of 448 residential units which was to
be handed over to the existing slum dwellers without any consideration
from them. The consideration for such development activity was in the
form of Transferable Development Rights (TDR) to be issued by the PMC
on achieving the pre-defined stages of completion of the building by the
assessee. The assessee had not claimed deduction u/s. 80IB(10) in the
original return of income as at that time SRA Scheme of Maharashtra
Govt. was not notified by the CBDT for eligibility of deduction u/s.
80IB(l0) of the I.T. Act, 1961. However, in the month of January vide
notification No.0l/2011 dated 5/1/2011 CBDT notified the scheme for
Slum Re-development prepared by Maharashtra Regional Town Planning
Act 1961, eligible for deduction u/s.80IB(10) of the I.T. Act, 1961.
Considering the above position the assessee filed revised return of income
in which deduction u/s. 80IB(10) amounting to Rs.2,27,49,856/- was
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claimed. The AO during the course of assessment proceedings examined
the documents furnished by the assessee and came to the conclusion
that the assessee was merely a contractor and not a developer and
therefore, not eligible for deduction u/s.80IB(10) of the I.T. Act, 1961.
Accordingly, he disallowed the claim u/s.80IB(10) amounting to
Rs.2,27,49,856/- and added back to the total income of the assessee.
At the First Appellate stage, the Ld. AR of the assessee filed written
submission stating that the assessee was allowed deduction u/s.80IB(10)
of the Act by the Ld. CIT(A) in assessment year 2009-10 which has been
subsequently upheld by the Pune Bench of the Tribunal also. On these
facts and circumstances, the Ld. CIT(A) held as follows:
“6. I have carefully considered the facts of the case as well as reply of the appellant. In this case, it is seen that relief was allowed by the CIT(A)-II, Pune in appellant’s own case in A.Y.2009-10 in his order dated 28.02.2013. Subsequently, Hon'ble Pune ITAT has upheld the decision of the Ld. CIT(A) in ITA No.1474/PN/2013 for A.Y.2009-10 dated 29.01.2016. This being so, relying upon the decision of Hon'ble Pune Tribunal (supra.), it is held that the appellant is a developer and not contractor as held by the AO. Accordingly, the AO is directed to allow deduction u/s.80IB(10) amounting to Rs.2,27,49,856/-. Thus, the ground is allowed.”
We have perused the case records and considered the facts and
circumstances in this case and also given considerable thought on the
submissions of the parties herein. The Ld. CIT(A) has provided relief to
the assessee since in assessee’s own case for assessment year 2009-10,
the Ld. CIT(A) on the same facts and circumstances, on the same issue
had provided relief to the assessee which was upheld by the Pune Bench
of the Tribunal in ITA No.1474/PN/2013 for the assessment year 2009-
10 dated 29.01.2016.
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That, in the Income Tax Proceedings, ‘Rule of consistency’ has to be maintained and ruling of the Co-ordinate Bench of the Tribunal has to be followed.
Respectfully, following the decision in ITA No.1474/PN/2013 (supra.), we uphold the findings of the Ld. CIT(Appeals) and relief provided to the assessee is thereby sustained. Hence, grounds raised by the Revenue in appeal are dismissed.
In the result, appeal of the Revenue is dismissed.
Order pronounced on 01st day of February, 2019. Sd/- Sd/- R.S.SYAL PARTHA SARATHI CHAUDHURY VICE PRESIDENT JUDICIAL MEMBER
पुणे / Pune; �दनांक / Dated : 01st February, 2019. SB आदेश क� ��त�ल�प अ�े�षत / Copy of the Order forwarded to :
अपीलाथ� / The Appellant. 1. ��यथ� / The Respondent. 2. 3. The CIT(Appeals)-1, Pune. 4. The Pr. CIT-2, Pune. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, “बी” ब�च, 5. पुणे / DR, ITAT, “B” Bench, Pune. गाड� फ़ाइल / Guard File. 6.
// True Copy// आदेशानुसार / BY ORDER,
�नजी स�चव / Private Secretary आयकर अपील�य अ�धकरण, पुणे / ITAT, Pune.
5 ITA No. 2299/PUN/2016 A.Y.2010-11
Date 1 Draft dictated on 31.01.2019 Sr.PS/PS 2 Draft placed before author 01.02.2019 Sr.PS/PS 3 Draft proposed and placed JM/AM before the second Member 4 Draft discussed/approved by AM/JM second Member 5 Approved draft comes to the Sr.PS/PS Sr. PS/PS 6 Kept for pronouncement on Sr.PS/PS 7 Date of uploading of order Sr.PS/PS 8 File sent to Bench Clerk Sr.PS/PS 9 Date on which the file goes to the Head Clerk 10 Date on which file goes to the A.R 11 Date of dispatch of order