Income Tax Appellate Tribunal - Hyderabad
M/S. Nagarjuna Homes,, Hyderabad vs Department Of Income Tax on 30 November, 2010
IN THE INCOME TAX APPELLATE TRIBUNAL
HYDERABAD BENCH 'A', HYDERABAD
BEFORE SHRI D.KARUNAKARA RAO, ACCOUNTANT MEMBER
AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER
ITA No.566/Hyd/2011 : Assessment year 2007-08
Income Tax officer, Ward-11(1), V/s M/s. Nagarjuna Homes,
Hyderabad Hyderabad
( PAN - AACFN 5803 C )
(Appellant) (Respondent)
Appellant by : Smt. Nivedita Biswas
Respondent by : Shri K.C.Devadas
Date of Hearing 3.5.2012
Date of Pronouncement 8.6.2012
ORDER
Per D.Karunakara Rao, Accountant Member:
This is an appeal filed by the Revenue against the order of the Commissioner of Income-tax(Appeals) VI, Hyderabad dated 30.11.2010 for the assessment year 2007-08.
2. Grounds raised by the Revenue read as under-
"1 The order of the Ld. CIT(A) is erroneous both on facts and law.
2. The CIT(A) direction that the deduction u/s. 80-IB(10) be allowed on the project where the dwelling units comprising of more than 1500 sft., which is nothing but deviation on the housing project and against the principles laid down in clause (c) of Sec.80IB (10) of the I..T. Act.
3. The CIT(A) would have appreciated the fact that the date of first approval should be taken as the date of approval of the local authority and because it is before 014.01.2004, the construction would have been completed by 31.03.2008. But the same was not completed in respect of all the 8 blocks in the previous relevant to the Asst. Year 2007-08.
4. The CIT(A) erred in directing to allow the deduction u/s. 80-B(10) on proportionate basis to such residential units which are below 1500 Sft. ignoring the fact that the deduction cannot be allowed even if single residential unit is above 1500 Sft."2 ITA No.566/Hyd/2011
M/s. Nagarjuna Homes, Hyderabad
3. We heard both sides and perused the material available on record. Ground No.1 of the Revenue's appeal is general and needs no separate adjudication. It is accordingly dismissed. Grounds No.2 and 4 relate to eligibility of the assessee for deduction proportionately under S.80-IB of the Act, in respect of flats which are less than 1500 sq. ft. We find that the issue involved in these two grounds, viz. Grounds 2 and 4, is squarely covered by the decision of the Tribunal in assessee's own case for assessment year 2005-06, in ITA No.722/Hyd/2009 of the assessee and ITA No.822/Hyd/2009 of the Revenue. In that order for the assessment year 2005-06 dated 30.9.2010, the Tribunal, vide para-6 on pages 5-6 thereof, has rejected the grounds of the Revenue, by holding as follows-
"6. ....Even if the assessee constructed any of the units which exceeded 1500 sq. ft. in our considered opinion, the assessee is eligible for deduction in respect of all the units of the residential block, which are less than 1500 sq. ft. each excluding the unit which exceeded 1500 sq. ft. Therefore, we do not find any infirmity in the order of the CIT(A) on this aspect. Accordingly, the same is confirmed and this ground of the Revenue is rejected."
Since the CIT(A) while concluding this issue in favour of the assessee, has followed the aforesaid decision of the Tribunal in assessee's own case, we find no infirmity in the said order of the CIT(A). It is accordingly confirmed and the Revenue's grounds No.2 and 4 in this appeal are accordingly dismissed.
4. As for ground No.3 of the Revenue, extracted above, we find that the CIT(A) has discussed the facts relating to the issue involved in the said ground, in para 6.1.4 of the impugned order, in the following manner-
"6.1.4 The first approval in this case was obtained on 07.05.2001 and the second approval was obtained on 19.12-2005. Therefore, the AO concluded that as per the provisions of Explanation (i) to 3 ITA No.566/Hyd/2011 M/s. Nagarjuna Homes, Hyderabad clause (a) of section 80IB(10), the date of approval of the housing project should be deemed to have been obtained on the date of first approval, i.e. 07.05.2001. When the housing project deemed to have been approved by the local authority before the 1st day of April, 2004, the housing project must be completed on or before the 31st day of March, 2008, for being eligible for deduction u/s. 80IB (10). Since the appellant failed to complete the entire project on per before 31-03-2008, as set out in sub-clause (i) to clause (a) of section 80IB(10), the AO rejected the deduction claim of the appellant."
As seen from the impugned order, the CIT(A) extracted the facts on the issue from assessing officer's order. As evident from the operative portion of his order dated 31.10.2011, viz. para 7 of the impugned order from pages 10 to 14 thereof, the CIT(A) has not revealed is mind by passing a speaking order on the issue raised in ground No.3 of the appeal. In this view of the mater, we set aside the impugned order of the CIT(A) on this issue and restore the matter to the file of the CIT(A), for fresh adjudication of the matter. The CIT(A) shall accordingly pass a speaking order in accordance with law after giving reasonable opportunity of hearing to the assessee.
5. In the result, Revenue's appeal is partly allowed for statistical purposes.
Order pronounced in the Court on 08/06/2012
Sd/- Sd/-
(Saktijit Dey) (D.Karunakara Rao)
Judicial Member. Accountant Member.
Dt/- 08 June, 2012
Copy forwarded to:
1. M/s. Nagarjuna Homes, Flat No.503 & 505 Daffodiles Block, Nagarjuna Dream Land, Kompally, Hyderabad
2. Income Tax Officer, Ward 11(1), Hyderabad 3 Commissioner of Income-tax(Appeals) VI, Hyderabad 4 ITA No.566/Hyd/2011 M/s. Nagarjuna Homes, Hyderabad
4. Commissioner of Income-tax V, Hyderabad
5. Departmental Representative, ITAT, Hyderabad B.V.S.