Income Tax Appellate Tribunal - Indore
Sudha Simhal, Bhopal vs Assessee
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IN THE INCOME TAX APPELLATE TRIBUNAL,
INDORE BENCH, INDORE
BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER
AND
SHRI R.C. SHARMA, ACCOUNTANT MEMBER
ITA No.514 & 515/Ind/2010
A.Ys.2006-07 and 2007-08
Smt. Sudha Simhal
Bhopal
PAN - ACTPS8702N Appellant
Vs
Asstt. Commissioner of Income Tax
1(1), Bhopal Respondent
Appellant by : Shri M.C. Mehta with Shri Hitesh
Chimnani Shri P.K. Mitra
Respondent by : Shri P.K. Mitra
O R D E R
PER JOGINDER SINGH, Judicial Member
These are the appeals by the assessee against the common order of the learned CIT(A) dated 10.5.2010 for the assessment year 2006-07 and 2007-08 on the following common grounds :-
"1. That on the facts and in the circumstances of the case, the learned A.O. and so also the learned CIT(A) erred in not considering the detailed submissions filed by her before them to prove her case that the commercial area (shops) to be constructed by her shall be within the permissible limits 2 provided u/s 80IB(10) of the Act out of the total area of housing project to be constructed. The orders so passed under flagrant violation of natural justice being perverse require to be quashed.
2. That on the facts and in the circumstances of the case, the learned Commissioner of Income-tax (Appeals) erred in denying deduction u/s 80IB(10) of the IT Act in respect of profits of the housing project of Rs.6,12,670/- (for the assessment year 2006-07) and Rs.18,87,227/- (for the assessment year 2007-08) inspite of the fact that the petitioner had fully proved that the commercial portion (shops) to be constructed by her shall be within the permissible limits as prescribed u/s 80IB(10)."
During hearing of these appeals, we have heard Shri M.C. Mehta with Shri Hitesh Chimnani, ld. Counsel for the assessee and Shri P.K. Mitra, learned Senior DR. The crux of arguments on behalf of the assessee is that the assessee owned a plot of land at Gandhi Nagar, Bhopal, wherein the assessee constructed two multi-storeyed blocks of separate building. As per the assessee, in each of the buildings, the ground floor was reserved for shops and the upper floor for residential purposes. These blocks were claimed to be independent and separate and the shops on the ground floors are having direct approach from all the four sides. It was further contended that during the assessment year 2006- 07 and 2007-08 only pillars were constructed on the ground floor and the construction of the shop in both the floors was not complete. The first approval of the building plan of the housing project was claimed to be granted by the Municipal Corporation, Bhopal, on 1.4.2005, therefore, for purposes of clause (i) of section 870IB(10) the limit for completion of 3 construction of the housing project was to be on or before 31.3.2011. It was also pointed out that the learned Commissioner of Income Tax (Appeals) for the claim of deduction u/s 80-IB referred the matter of calculation of built up area to the Assessing Officer and in turn the Assessing Officer referred the matter to the DVO who vide his report dated 22.4.2010 calculated the area of shop to be constructed at the rate of 2033.29 sq.ft. (pages 9, 12 and 18 of the paper book) which was found to be in excess of permissible limit of commercial area. The claim of the assessee is that no discrepancy was found out in the built up area of residential portion by the DVO. The claim of the assessee is that the commercial area to be constructed as per the final approval dated 15.1.2010 (including walls) comes to 1680 sq.ft. which is below the prescribed limit as provided u/s 80IB(10)(d) of the Act, before amendment. It was also claimed that vide Finance Act, 2010 w.e.f. 2.4.2010 the said limit as provided in clause (d) of section 80IB(10) was also revised. It was also contended that the construction of the shops was not completed by 1.4.2010, therefore, the benefit of enhanced limit will be available to the assessee. The assessee has also filed paper book along with the site plan. The learned Senior DR contended that in the interest of justice, the paper book filed by the assessee may be remanded back to the file of the Assessing Officer to verify the claim of the assessee.
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In view of the above, we remand the issues to the file of the learned Assessing Officer with the direction to examine the claim of the assessee after taking into account the documents contained in the paper book filed before us. Needless to mention here that due opportunity of being heard be provided to the assessee. The assessee is also at liberty to furnish evidence, if any, to substantiate its claim.
In the result, the appeals of the assessee are allowed for statistical purposes only.
Order pronounced in open Court in the presence of learned representatives of both the sides on 10th January, 2011.
(R.C.SHARMA) (JOGINDER SINGH)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated: 10th January, 2011
Copy to: Appellant, Respondent, CIT, CIT(A), DR, Guard File Dn/-