Income Tax Appellate Tribunal - Pune
Deputy Commissioner Of Income-Tax, ... vs Sudhir Kantilal Bothara,, Pune on 30 July, 2018
आयकर अपीऱीय अधिकरण पण
ु े न्यायपीठ "ए" पण
ु े में
IN THE INCOME TAX APPELLATE TRIBUNAL
PUNE BENCH "A", PUNE
सुश्री सुषमा चावऱा, न्याययक सदस्य एवं श्री अयिऱ चतुवेदी, ऱेखा सदस्य के समक्ष
BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM
आयकर अपीऱ सं. / ITA No.1777/PUN/2017
यििाारण वषा / Assessment Year : 2013-14
The Dy. Commissioner of Income Tax,
Circle-5, Pune .... अऩीऱाथी/Appellant
Vs.
Shri Sudhir Kantilal Bothara,
Landmark Centre,
Pune-Satara Road,
Parvati, Pune - 411009 .... प्रत्यथी / Respondent
PAN: ABCPB6444J
अऩीऱाथी की ओर से / Appellant by : Shri Ajay Modi
प्रत्यथी की ओर से / Respondent by : Shri Rajiv Thakkar
सन
ु वाई की तारीख / घोषणा की तारीख /
Date of Hearing : 26.07.2018 Date of Pronouncement: 30.07.2018
आदे श / ORDER
PER SUSHMA CHOWLA, JM:
The appeal filed by Revenue is against order of CIT(A)-4, Pune, dated 28.02.2017 relating to assessment year 2013-14 against order passed under section 143(3) of the Income-tax Act, 1961 (in short 'the Act').
2. The Revenue has raised the following grounds of appeal:-
1. On the facts and in the circumstances of the case and in law, the Ld. Commissioner of Income-tax (Appeals) has erred in directing the ITA No.1777/PUN/2017 2 Shri Sudhir K. Bothara Assessing Officer to delete the addition of Rs.65,73,910/- on account of deduction u/s 80IB(10) of the Act, as size of the plot area was less than one acre which is one of the requirement for allowing the claim of deduction u/s 80IB(10).
2. For this and such other reasons as may be urged at the time of hearing, the order of the CIT(A) may be vacated and that of the Assessing Officer be restored.
3. The learned Authorized Representative for the assessee at the outset pointed out that the issue raised in the present appeal is squarely covered by the order of Tribunal in assessee's own case in ITA No.1317/PUN/2016, relating to assessment year 2012-13, order dated 11.04.2018.
4. The learned Departmental Representative for the Revenue placed reliance on the order of Assessing Officer.
5. We have heard the rival contentions and perused the record. The assessee was engaged in the business of Promoters & Builders. The assessee had filed the return of income declaring total income of ₹ 30,19,440/-.
During the year under consideration, the assessee had carried out residential housing project namely Swagat Enclave, at Ambegaon Khurd, Jambhulwadi, Pune and claimed deduction under section 80IB(10) of the Act. The Assessing Officer relying on earlier assessment years had rejected the claim of assessee on the ground that the size of the plot area is less than one acre, which was the requirement for allowing the deduction under section 80IB(10) of the Act.
6. The CIT(A) allowed the claim of assessee relying on the order of his predecessor in assessee's own case relating to assessment year 2009-10.
7. The Revenue is in appeal against the order of CIT(A).
ITA No.1777/PUN/20173 Shri Sudhir K. Bothara
8. We find that the Pune Bench of Tribunal in assessee's own case vide order dated (supra) has upheld the order of CIT(A). The relevant findings of the Tribunal are as under:-
"7. We heard both the parties, perused the orders of the Revenue on 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.
ITA No.1777/PUN/20174 Shri Sudhir K. Bothara 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."
9. The issue arising in the present appeal is identical to the issue before the Tribunal in assessee's own case (supra) and following the same parity of reasoning, we dismiss the grounds of appeal raised by the Revenue.
10. In the result, the appeal of Revenue is dismissed.
Order pronounced on this 30th day of July, 2018.
Sd/- Sd/-
(ANIL CHATURVEDI) (SUSHMA CHOWLA)
ऱेखा सदस्य / ACCOUNTANT MEMBER न्याययक सदस्य / JUDICIAL MEMBER
ऩुणे / Pune; ददनाांक Dated : 30th July, 2018.
GCVSR
आदे श की प्रयतलऱपप अग्रेपषत/Copy of the Order is forwarded to :
1. अऩीऱाथी / The Appellant;
2. प्रत्यथी / The Respondent;
3. आयकर आयक् ु त(अऩीऱ) / The CIT(A)-4, Pune;
4. The Pr.CIT-3, Pune;
5. ववभागीय प्रतततनधध, आयकर अऩीऱीय अधधकरण, ऩुणे "ए" / DR 'A', ITAT, Pune;
6. गार्ड पाईऱ / Guard file.
ु ार/ BY ORDER, आदे शािस सत्यावऩत प्रतत //True Copy// वररष्ठ तनजी सधिव / Sr. Private Secretary आयकर अऩीऱीय अधधकरण ,ऩुणे / ITAT, Pune