DEPUTY COMMISSIONER OF INCOME-TAX vs. SHRI SUDHIR K. BOTHARA, PUNE

आदेश आदेश / ORDER आदेश आदेश

PER D. KARUNAKARA RAO, AM :

This appeal is filed by the Revenue against the order of CIT(A)-2, Pune, dated 12-02-2016 for the Assessment Year 2012-13.

and is engaged in the business of Promoters and Builders. Assessee

filed the return of income on 21-09-2012 declaring total income of

Rs.46,79,003/-. Assessee undertook a residential house project named

“Swagat Enclave, situated at S.No.8/2/1 located at Ambegaon Khurd,

Jambhulwadi, Pune - 46 and claimed deduction of Rs.5,31,73,220/-

u/s.80IB(10) of the Act for the year under consideration. In the

assessment proceedings u/s.143(3) of the Act, dated 28-02-2015, AO

relying on the earlier assessment orders for the A.Yrs. 2009-10 to 2011-

12 (Para Nos. 3.1 to 3.3 of the assessment order) rejected the assessee’s

claim and made addition of Rs.5,31,73,220/-. Eventually, AO

determined the income at Rs.5,78,57,220/-. AO held that the assessee

failed to qualify the condition relating to ‘one acre’ of the plot of land.

AO excluded certain areas meant for common amenities.

claim of the assessee relying on the order of his predecessor in

assessee’s own case for the A.Y. 2009-10. Aggrieved with the order of

CIT(A), Revenue is in appeal before us with the grounds mentioned

above.

various orders of Pune Bench of the Tribunal and submitted that the

issue now stands covered in favour of the assessee by virtue of the said

decisions of the Tribunal. Narrating the facts, he submitted that these

decisions are relevant for the proposition that the common areas,

amenities, common roads, area meant for transformer etc., are required

to be included within the scope of ‘one acre’ for claiming of deduction

u/s.80IB(10) of the Act. In the instant case, AO excluded certain areas,

such as common road, area of transformer, amenity space etc. and

denied the benefit of deduction u/s.80IB(10) of the Act. If these

excluded areas are considered, the condition relating to area of one acre

stands met. In this regard, Ld. Counsel submitted that assessee has

been claiming the area of the plot of land as one acre including such

excluded areas and the Revenue has been consistently allowing the

claim of the assessee in the past. Further, Ld. Counsel brought our

attention to Para No.5 of the order of CIT(A) and submitted that the

same constitutes a speaking order and therefore need not be disturbed.

In support of his case, Ld. Counsel relied on the following decisions :

order of the AO.

this issue. It is undisputed fact that the solitary reason for denial of

claim of deduction u/s.80IB(10) of the Act by the AO is with regard to

fulfilment of the conditions relating to area of plot of one acre. AO

excluded certain areas as mentioned above for bringing down to the

area below one acre and thereby denied the claim of the assessee. For

the sake of completeness, we proceed to extract Para Nos.5 & 5.1 of the

order of CIT(A) as follows :

“5.1 I have gone through the grounds of appeal, statement of facts and submission filed by the assessee as well as contents of the assessment order. The various case laws relied upon by the Ld. Counsel have been

perused. In the aforesaid cases, the Hon’ble ITAT has held that open space, transformer and amenity space should be considered for the purpose of computation of size of the plot on which the housing project is construction u/s.80IB(10) of the Act. Further, it is pertinent to note that the appellant claimed deduction u/s.80IB(10) for the first time in the Asst. Yr. 2009-10 and the same was disallowed by the A.O. Aggrieved against the same, he preferred appeal before CIT(A)-4, Pune. The appeal has been decided in the favour of the appellant vide appellate order No.PN/CIT(A)-4/ACIT/DCIT, Circle-11(2)/147/2011-12/298, dated 30-12-2015 following the aforesaid decisions of Hon’ble Jurisdictional Tribunal by making following observations :

5.1 In the light of the above and respectfully following the decisions of the Hon’ble ITAT, Pune in the abovementioned cases, I am in agreement with the stand taken by CIT(A)-4 in A.Y. 2009-10 in the assessee’s own case. The AO is accordingly directed to delete the disallowance of Rs.5,31,73,220/- claimed u/s.80IB(10) of the Act.”

From the above, it is evident that the CIT(A) relied heavily on the

decisions of Coordinate Bench of the Tribunal including that of Bunty

Builders (supra). We find the decision of the Tribunal in the case of

Bunty Builders (supra) is relevant for the proposition that area of

amenity space is compulsorily required to be handed over the Municipal

authorities by the assessee and therefore, the same constitutes an

integral part of the housing project. The area of common roads, area of

transformer etc. obviously fall within the meaning of amenity space

compulsorily required for the housing project.

Further, we also do not appreciate the fact that the revenue

officers are selectively denying the claim of deduction u/s.80IB(10) of

the Act in a particular assessment year when similar claim is allowed in

the housing projects of the assessee.

Further, we find in the case of ITO Vs. Satyanarayan Ramswaroop

Agarwal, 50 taxmann.com 111 the Tribunal held that area of one acre

as prescribed in clause (b) of section 80IB means area of one acre

available for housing project inclusive of amenities as per norms of

concerned municipal corporation or local body.

Therefore, on facts, the total area of the plot of land is 4500

sq.mtrs which includes the area meant for open space of 445.16

sq.mtrs and area for transformer of 36. sq.mtr, area for amenity space

of 667.74 sq.mtrs and area for DP road widening of 48.40 sq,mtrs. This

issue of inclusion of areas for the purpose of ‘one acre’ is already settled

by the decision of this Bench of the Tribunal (supra). Therefore, in view

of the above discussion on this solitary issue, we are of the opinion that

the order of CIT(A) is fair and reasonable and it does not call for any

interference.

Order pronounced in the open court on this 11th day of April, 2018.

Sd/- Sd/- (VIKAS AWASTHY) (D. KARUNAKARA RAO) �याियक �याियक सद�य �याियक �याियक सद�य सद�य /JUDICIAL MEMBER लेखा सद�य लेखा लेखा सद�य लेखा सद�य सद�य / ACCOUNTANT MEMBER सद�य

पुणे Pune; �दनांक Dated : 11th April, 2018 सतीश आदेश आदेश क� आदेश आदेश क� क� �ितिलिप क� �ितिलिप �ितिलिप अ�ेिषत �ितिलिप अ�ेिषत अ�ेिषत/Copy of the Order forwarded to : अ�ेिषत

अपीलाथ� / The Appellant 1. ��यथ� / The Respondent 2. 3. The CIT(A)-2, Pune 4. CIT-2, Pune िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, “B Bench” Pune; 5. गाड� फाईल / Guard file. 6.

आदेशानुसार आदेशानुसार आदेशानुसार/ BY ORDER,स आदेशानुसार

स�यािपत �ित //True Copy// //True Copy// Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune