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Income Tax Appellate Tribunal, “A” BENCH, PUNE
Before: SHRI D.KARUNAKARA RAO, AM & SHRI VIKAS AWASTHY, JM
आदेश / ORDER PER D. KARUNAKARA RAO, AM
There are 3 appeals filed by the Revenue under consideration involving A.Yrs. 2006-07, 2011-12 and 2012-13. They are filed against the separate orders of CIT(A)-1, Pune, commonly dated 24-08-2015. Revenue raised identical grounds in these appeals. For the sake of convenience, all these appeals were heard together and are being decided in this composite order.
2 ITA Nos1437 to 1439/PUN/2015 D.S. Kulkarni Developers Pvt. Ltd.,
There is none to represent the assessee despite service of notice.
Acknowledgement is placed on record. However, on going through the
facts and the issue raised in these appeals and keeping in view the
availability of assistance of Ld. DR for the Revenue, we proceed to
adjudicate the appeal in the succeeding paragraphs.
We shall take up appeal of the Revenue for A.Y. 2006-07 as a
standard one.
ITA Nos. 1437/PUN/2015 A.Y. 2006-07
Briefly stated relevant facts of the assessee include that the
assessee is a company and is engaged in the business of Builder and
Developer. Assessee filed the return of income declaring total income of
Rs.4,91,92,810/-. The scrutiny assessment has been completed
determining the total income at Rs.7,43,15,900/-. However, on finding
that the assessee claimed deduction of Rs.4,66,88,386/- u/s.80IB(10) of
the Act in respect of project “DSK Sundarban” at Hadapsar, Pune. The
AO allowed the deduction eventhough the assessee did not produce the
completion certificate on the assumption that the project will be
completed within 4 years from the date of commencement. At the end of
the assessment proceedings u/s.143(3) of the Act, the AO made addition
of Rs.4,66,88,386/-.
the First Appellate proceedings, the CIT(A) relying on the order of
Tribunal in the assessee’s own case vide ITA Nos. 723 to 725/PUN/2013,
for the A.Yrs. 2007-08 to 2009-10 allowed the deduction claimed by the
assessee u/s.80IB(10) of the Act.
3 ITA Nos1437 to 1439/PUN/2015 D.S. Kulkarni Developers Pvt. Ltd.,
Aggrieved with the order of CIT(A), the Revenue is in appeal before
the Tribunal with the following grounds :
“1. The order of the Ld. CIT(A) is contrary to law and to the facts and circumstances of the case.
The Ld. CIT(A) grossly erred in deleting the disallowance made by the Assessing Officer of the assessee’s claim of deduction of Rs.4,66,83,386/- in respect of housing project “DSK Sundarban” instead of confirming the said disallowance.
The Ld.CIT(A) grossly erred in interpreting section 80IB(10) in the context of applicability of clause (d) in a manner neither contemplated nor provided for under the Act.
The Ld.CIT(A) grossly erred in holding the assessee as eligible for deduction u/s.80IB(10) when the project had been approved as a residential and commercial project & not as a Housing Project and the built up area of commercial units exceeded 2000 sq.ft. violating the provisions of section 80IB(10)(d) of the Act.
The Ld.CIT(A) erred in holding that the amenity space I and II of the project DSK Sundarban were independent project and not part of the residential project constructed by the assessee company.
For these and such other grounds as may be urged at the time of hearing, the order of the Ld.CIT(A) may be vacated and that of the assessing officer be restored.
The appellant craves to add, amend, alter or delete any of the grounds of appeal during the course of appellate proceedings before the Hon’ble Tribunal.”
Before us, Ld. DR for the Revenue submitted that the issue raised
in the appeal relates to allowability of deduction u/s.80IB(10) of the Act.
The AO denied the benefit of deduction holding that the assessee
exceeded the construction of commercial space, the limits specified in
the Act. Non filing of completion certificate was also a reason for denial
of deduction. Ld. DR brought our attention to the order of CIT(A) and
submitted that the appeal is allowed on this issue of deduction
u/s.80IB(10) of the Act. Contents of Para No.6 of the order of CIT(A)
constitutes the operational para. Otherwise Para Nos. 4 to 6 deals with
this issue. CIT(A) narrated the relevant facts in the said paragraphs.
CIT(A) considered the written submissions of the assessee and granted
4 ITA Nos1437 to 1439/PUN/2015 D.S. Kulkarni Developers Pvt. Ltd.,
relief relying on the order of the Tribunal in assessee’s own case for the
A.Yrs. 2007-08 to 2009-10. However, Ld. DR fairly mentioned that the
Tribunal’s decision is applicable on merits to the facts of the present
case.
We heard the Ld. DR for the Revenue and perused the orders of
the AO/CIT(A) and the material available on record. We find the solitary
issue raised by the Revenue on the allowability of deduction
u/s.80IB(10) of the Act. It is undisputed fact that the AO originally
completed the assessment u/s.143(3) of the Act and the present
assessment is made u/s.148 of the Act holding that the assessee is not
entitled to claim deduction u/s.80IB(10) of the Act. However, vide the
contents of Para No.5 of the order of CIT(A), on similar facts, the
assessee was given relief by the Tribunal. In Para No.6 of the order of
CIT(A), the CIT(A) relied on the order of Tribunal in the assessee’s own
case for the A.Yrs. 2007-08 to 2009-10. We have seized up with the
similar issue in the A.Yrs. 2006-07, 2011-12 and 2012-13. Ld. DR fairly
submitted that there is no difference on facts. We find it is the decision
of the Tribunal that the AO is not justified in rejecting the claim of
deduction u/s.80IB(10) of the Act. We therefore proceed to extract the
relevant paragraphs from the order of CIT(A).
“4. Grounds No. 2 to 5 : Grounds No. 2 to 5 pertain to the appellant’s grievance in respect of disallowance of deduction u/s.80IB(10) of the I.T. Act, 1961 amounting to Rs.4,66,88,386/- in respect of project called “DSK Sundarban”. The disallowance was made by the Assessing Officer in the assessment order dated 11-3-2014 on the basis of findings made in A.Y. 2007-08. 5. ………………. ……………………….. 6. I have carefully considered the facts of the case as well as reply of the appellant. It is seen that the Hon. ITAT in its order dated 31/7/2014 in appellant’s own case in ITA Nos. 723 to 725/PN/2013 for AYrs 2007-
5 ITA Nos1437 to 1439/PUN/2015 D.S. Kulkarni Developers Pvt. Ltd.,
08 to 2009-10 has allowed deduction u/s.80IB(10) of the I.T. Act, 1961 in respect of DSK Sundarban for A.Y. 2007-08 to 2009-10 respectively. The relevant portion of the Tribunal’s order is reproduced as under :
2.5.5 In view of the above discussion, the facts of Shroff Developers (supra)are identical to the facts of the assessee's case and accordingly, amenity space 1 and 2 should be considered as separate and independent project. Regarding the objection of the Assessing Officer in the website of assessee company, the assessee itself has shown shops available in DSK Sundarban project. The issue is not relevant to decide whether the residential and amenity space are separate projects or one and the same. So long as the building plans are independently sanctioned, two projects are separately and accordingly, disallowance was not rightly rejected on this account. Accordingly, the Assessing Officer was not justified in rejecting claim of the assessee under the provisions of section 80IB(10) of the Act in respect of DSK Sundarban. The Assessing Officer is directed accordingly. Similar issue arose with regard to DSK Sundarban in assessee's appeals in ITA Nos.724 & 725/PN/2013 for A.Ys.2008-09 & 2009-10 respectively. Facts being similar, so following the same reasoning, the Assessing Officer is directed to allow the assessee's claim of deduction u/s.80IB(10) of the Act with regard to Project DSK Sundarban."
Since the facts being same, following the Tribunal’s order as above, the appellant’s claim of deduction u/s.80IB(10) of the I.T. Act, 1961 amounting to Rs.4,66,88,386/- is allowed. Thus, ground Nos. 2 to 5 are allowed.”
Thus, we find the Ld. DR has not made out a case that the said order of
the Tribunal is inapplicable to the facts of the present case. Therefore,
we are of the opinion that the order of CIT(A) is fair and reasonable and
it does not call for any interference. The grounds raised by the Revenue
are dismissed.
In the result, appeal of the Revenue is dismissed.
Since the facts, issues, decisions of AO/CIT(A) are same in the
remaining A.Yrs. 2011-12 and 2012-13 as that of A.Y. 2006-07, our
decision of allowing deduction u/s.80IB(10) to the assessee relying on
the order of Tribunal for the A.Yrs. 2007-08 to 2009-10 will apply to the
A.Yrs. 2011-12 and 2012-13 as well. Accordingly, the grounds raised by
the Revenue in these appeals are also dismissed.
6 ITA Nos1437 to 1439/PUN/2015 D.S. Kulkarni Developers Pvt. Ltd.,
To sum up, all the three appeals of the Revenue are dismissed.
Order pronounced in the open court on 26th September, 2018.
Sd/- Sd/-
(िवकास अव�थी /VIKAS AWASTHY) (डी. क�णाकरा राव/D. KARUNAKARA RAO) �ाियक सद�/JUDICIAL MEMBER लेखा सद�/ACCOUNTANT MEMBER पुणे / Pune; िदनांक / Dated : 26th September, 2018. Satish
आदेश की %ितिलिप अ'ेिषत / Copy of the Order forwarded to : अपीलाथ� / The Appellant. 1. ��थ� / The Respondent. 2. 3. The CIT (Appeals)-1, Pune 4. The Pr.CIT-1, Pune िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, “ए” ब�च, 5. पुणे / DR, ITAT, “A” Bench, Pune. गाड� फ़ाइल / Guard File. 6.
आदेशानुसार / BY ORDER,
// True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune