INCOME TAX OFFICER WARD-4(2), KOLKATA vs. M/S MARTIN BURN LTD., KOLKATA

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ITA 2169/KOL/2013Status: DisposedITAT Kolkata11 January 2017AY 2006-074 pages

In favour of the assessee: the Revenue's appeal was dismissed. From the AI summary of this appeal.

AI SummaryDismissed

What did the Tribunal hold?

The Tribunal upheld the CIT(A)'s decision, following a coordinate bench's order in the assessee's own case for a prior assessment year. The deduction under Section 80IB(10) was allowed on projects with built-up areas below 1500 sq.ft. and on a pro-rata basis for commercial space.

What were the facts?

The assessee, a real estate company, claimed deduction under Section 80IB(10) for its residential project. The Assessing Officer disallowed the deduction, stating that the built-up area of shops and commercial establishments exceeded the permissible limit.

What were the issues?

Whether the deduction under Section 80IB(10) is allowable when the built-up area of shops and commercial establishments in a housing project exceeds the prescribed limit. Whether the decision of a coordinate bench in the assessee's own case is binding on the Tribunal.

Which sections of the Income-tax Act were involved?

Section 80IB(10)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “C” BENCH : KOLKATA

Before: Hon’ble Sri Aby T.Varkey, JM & Dr.Arjun Lal Saini, AM ]

Hearing: 21.12.2016

These are two appeals preferred by the Revenue against the order of CIT(A)-IV, Kolkata dated 14.03.2013 for AY 2006-07 and 2007-08.

2.

The sole issue that has been raised by the revenue is against the order of the ld. CIT(A)-IV, Kolkata allowing relief u/s 80IB(10) for both the assessment years. Since the issues raised by the revenue in both the assessment years are same, the facts in respect of A.Y.2006-07 is only discussed.

3.

The brief facts of the case is that the assessee is a public limited company engaged in the business of real estate and leasing and hire purchase. The assessee filed its return of income disclosing a total income of Rs.1,10,05,565/-. Later the case was selected for scrutiny. The AO notes that the assessee claimed deduction u/s 80IB at a sum of Rs.3,01,20,081/-. The AO acknowledged that the assessee has filed a copy of Form

2 M/s. Martin Burn Ltd.. A.Yr.2006-07 & 2007-08 No.10CCB and has claimed deduction in respect of Shreeram Nagar Residential Complex, VIP Road, Mouza-Teghoria, Kolkata-700052. The AO notes that in Form No.10CCB col.no.23A it is noted that the built up area of the shops and other commercial establishments situated in the project is 10,245 sq.ft. The AO notes that as per section 80IB(10) for the purpose of deduction under this section the total build up area of shops and other commercial establishment should not exceed five percent of the aggregate built up area of the housing project or 2000 sq.ft whichever is less. Since in this case the built up area of shop and other commercial establishments is only 10,245 sq.ft deduction is not allowable/s 80IB and so deduction u/s 80IB of Rs.3,01,20,081/- was disallowed. Aggrieved the assessee preferred an appeal before the ld. CIT(A), who allowed the deduction u/s 80IB claimed by the assessee by holding as under :- “4.2. I have read the assessment order as well as gone through the submissions made by the A.R. of the appellant. It is found that on same set of facts in the earlier assessment, year i.e. 2005-06, the Ld. Income Tax Appellate Tribunal, Kolkata Bench in the appellant's own order in I.T.A. No.1775/K/2011 for the assessment year 2005-06 by order dated 06.12.2012 has passed the order in favour of the appellant company and has allowed deduction u/s. 801B(10) on the project of Built-up area below 1500 sq.ft. as well a pro- rata basis shop and commercial space. Respectfully following the judgment of the Hon'ble ITAT, I hold that the appellant as entitled to deduction on flats which have built-up area below 1500 sq.ft. The appellant gets a relief of Rs.2,36,24,482/- on account of flats which have built-up area as below 1500 sq.ft.”

Aggrieved by the aforesaid order of the ld. CIT(A) the revenue is before us.

4.

We have heard both the parties and perused the records. We take note that the ld. CIT(A) has taken note of the Coordinate bench in assessee’s own case vide for A.Y.2005-06 vide order dated 06.12.2012 wherein the Tribunal allowed the deduction u/s 80IB(10) of the Act on projects where the built up area is below 1,500 sq.ft. as well as on pro rata basis of shop/commercial space. Since the ld. CIT(A) has allowed the claim by following the order of the Tribunal, we are also bound by the decision of the Co-ordinate bench in assessee’s own case on similar facts and law. The ld. DR could not point out any change in facts or law in both the assessment 2

3 M/s. Martin Burn Ltd.. A.Yr.2006-07 & 2007-08 years under consideration before us. Therefore respectfully following the order of the Co-ordinate bench for A.Y.2005-06, we confirm the order of the ld. CIT(A) and dismiss the appeals of the revenue.

5.

In the result the appeals of the revenue are dismissed.

Order pronounced in the Court on 11. 01.2017.

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