2015 (6) TMI 286 - AT - Income Tax

Pro-rata deduction u/s 80IB - whether there is no provision for allowing such partial deduction in terms of provisions of section 80IB(10)? - Held that - Following the ratio laid down in the case of Pharande Developers, Vs. The Income Tax Officer 2013 (6) TMI 690 - ITAT PUNE we hold that merely because the assessee had violated the provisions of section 80IB(10)(c) of the Act in respect of two units i.e. row houses D-3 and D-4, the deduction under section 80IB(10) could not be denied in entirety. The assessee is entitled to the said deduction under section 80IB(10) of the Act in respect of balance units which have been constructed as per the conditions laid down in section 80IB(10)(c) of the Act. Only in respect of two units i.e. D-3 and D-4, deduction under section 80IB(10) of the Act would be denied to the assessee. Accordingly, we uphold the order of CIT(A) in directing the Assessing Officer to re-compute the deduction under section 80IB(10) of the Act in relation to the said project by limiting the denial only in respect of row houses D-3 and D-4 and for the balance units the assessee would be entitled to the said deduction under section 80IB(10) of the Act. Thus, the grounds of appeal raised by the Revenue are dismissed. - Decided in favour of assessee

Issues Involved:
1. Allowability of deduction under section 80IB(10) of the Income Tax Act.
2. Pro-rata deduction under section 80IB(10) for compliant units.
3. Judicial propriety concerning the Commissioner of Income Tax (Appeals) authorizing an appeal against their own order.

Detailed Analysis:

1. Allowability of Deduction under Section 80IB(10):
The primary issue raised by the Revenue was the allowability of the deduction under section 80IB(10) of the Income Tax Act, 1961. The Revenue contended that the assessee violated the provisions of section 80IB(10)(c) by amalgamating two units (D-3 and D-4) into a single unit with a built-up area exceeding the permissible limit of 1500 sq. ft. Consequently, the Assessing Officer disallowed the entire deduction claimed under section 80IB(10).

The CIT(A) acknowledged the violation but relied on various precedents, including the decisions of the Tribunal in Mr. Johar Hassan Zojwall Vs. Addl. CIT, M/s. Saroj Sales Organisation, and Bengal Ambuja Housing Development Ltd. Vs. DCIT, which allowed pro-rata deductions for compliant units. The CIT(A) concluded that the violation concerning two units should not disqualify the entire project from the deduction.

2. Pro-rata Deduction under Section 80IB(10) for Compliant Units:
The assessee's alternate claim was for a pro-rata deduction under section 80IB(10) for the compliant units. The Tribunal referred to the precedent set by the Pune Bench in Pharande Developers Vs. The Income Tax Officer and the judgment of the Hon'ble Madras High Court in Viswas Promoters (P) Ltd., which upheld the pro-rata deduction for compliant units even if some units exceeded the permissible built-up area.

The Tribunal held that the assessee was entitled to a deduction under section 80IB(10) for the compliant units, and the denial of deduction should be limited to the non-compliant units (D-3 and D-4). The Tribunal directed the Assessing Officer to re-compute the deduction accordingly.

3. Judicial Propriety Concerning the Commissioner of Income Tax (Appeals) Authorizing an Appeal Against Their Own Order:
The assessee raised an objection on the grounds of judicial propriety, arguing that the CIT(A) who passed the appellate order also authorized the appeal against it as Commissioner of Income Tax Administration. The assessee contended that this was contrary to judicial propriety and cited the Hon'ble Allahabad High Court's decision in Mohd. Chand And Another Vs. State of U.P. and the Hon'ble Supreme Court's decision in Ashok Kumar Yadav And Others Vs. State of Haryana And Others.

The Tribunal found no merit in this objection. It clarified that the CIT(A) acted judicially in deciding the appeal and later, as Commissioner of Income Tax Administration, authorized the appeal to a higher forum (the Tribunal) for adjudication. The Tribunal distinguished this situation from the cases cited by the assessee, where the same individual was involved in both the original decision and the appeal against it.

Conclusion:
The Tribunal dismissed both the Revenue's appeal and the assessee's Cross Objection. It upheld the CIT(A)'s decision to allow pro-rata deductions under section 80IB(10) for compliant units and directed the Assessing Officer to re-compute the deduction accordingly. The Tribunal also dismissed the assessee's objection regarding judicial propriety, finding no merit in the claim.

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