9911796707
TMI Blog2018 (3) TMI 1201X X X X Extracts X X X X X X X X Extracts X X X X ..... uilding H3 were made separate residential units by the assessee. Thus appeal filled by revenue dismissed. - ITA No.1252/PUN/2015 - - - Dated:- 21-3-2018 - SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM For The Assessee : Shri Nikhil Pathak For The Revenue : Shri Ajay Modi ORDER PER VIKAS AWASTHY, JM : This appeal by the Revenue is directed against the order of Commissioner of Income Tax (Appeals)-3, Pune dated 27-05-2015 for the assessment year 2011-12. 2. The brief facts of the case as emanating from records are: The assessee is a partnership firm. The assessee is a promoter and builder and is also engaged in the business of executing construction schemes for residential/commercial purpose. The assessee filed its return of income for the impugned assessment year on 28-09-2011 declaring total income of ₹ 5,98,540/- after claiming deduction of ₹ 1,10,74,026/- u/s. 80IB(10) of the Income Tax Act, 1961 (hereinafter referred to as the Act ). The case of the assessee was selected for scrutiny, accordingly, statutory notice u/s. 143(2) was issued to the assessee on 28-09-2012. The assessee firm developed a housing project Harsh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -vis the housing project. 4. On the facts and circumstances of the case in law, the Ld. CIT(A) erred in holding that once the issue of contravention of Sec. 80IB(10)(a)(i) is decided by the Tribunal in favour of the assessee, the contravention u/s. 801B(10)(d) brought out by the Assessing Officer cannot form basis for disallowance of deduction, when such contravention was based on factual verification carried out during the year. 5. The appellant prays that the order of the Ld. CIT(A) be held to be bad in law and quashed and that of the Assessing Officer be restored. 6. The appellant craves leave to add, alter, amend or omit any of the above grounds of appeal during the course of the appellate proceedings. 4. Shri Nikhil Pathak appearing on behalf of the assessee submitted at the outset that the ground Nos. 1 and 2 raised in appeal by Revenue are squarely covered by the order of Tribunal in assessee‟s own case in ITA No. 1624/PN/2011 for assessment year 2008-09 decided on 22-03-2013. In the subsequent assessment years i.e. assessment years 2009-10 and 2010-11 similar disallowance of deduction claimed u/s. 80IB(10) was made by Assessing Officer. The m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PN/2013 for assessment year 2008-09 decided on 23-09-2015. ii. DCIT Vs. M/s. Amit Enterprises, ITA No. 2210/PN/2013 for assessment year 2008-09 decided on 23-09-2015. 5. On the other hand Shri Ajay Modi representing the Department vehemently defended the order of Assessing Officer in denying the benefit of deduction u/s. 80IB(10) of the Act. However, the ld. DR fairly admitted that the issue raised by the Department in ground Nos. 1 and 2 have been adjudicated by the Tribunal in earlier assessment years in assessee‟s own case. 6. We have heard the submissions made by the representatives of rival sides and have perused the orders of authorities below. We have also considered various decisions on which the ld. AR of assessee has placed reliance to support his contentions. The Revenue in appeal has primarily assailed the action of Commissioner of Income Tax (Appeals) in holding assessee eligible for deduction u/s. 80IB(10) of the Act. In ground Nos. 1 and 2 of appeal the Revenue has assailed the order of Commissioner of Income Tax (Appeals) in allowing assessee‟s claim of deduction u/s. 80IB(10) of the Act, despite the fact the project was not complete before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s.80IB(10). floors of H-4 building. As the project was sanctioned before 01.04.2004, the due date of completion of the project was 31.03.2008. It is undisputed that the assessee has received the completion certificate in respect of H-1, H-2, H- 3 G building on 19.03.2008 and 06.03.2007. However, in respect of the building H-4, the assessee submitted that the TDR could not be purchased and, therefore, the building H-4 could not be completed and hence the completion certificate was not issued by the PMC for the H-4 building having four flats. So the question before us is whether assessee is entitled for claim of deduction in respect of the profits from buildings H-1, H-2, H-3 and G-1 completed through completion certificate dated 06.03.2007 and 19.03.2008 as stated above. According to the Assessing Officer, the housing project was not completed within the stipulated time period i.e., 31.03.2008 and rejected the claim of the assessee which was confirmed by the CIT(A). The undisputed facts remain that assessee has completed the buildings H-1, H-2, H-3 G on area of plot measuring 6722.12 sq.mtrs. as detailed above. So irrespective of non-construction of building H-4, assessee is e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 80IB(10) of the Act suggests about only completion of construction and no adjective should be used alongwith word completion‟. This strict interpretation should be given in normal circumstances. However, in the case before us undisputedly assessee has completed the construction of buildings H-1, H-2, H-3 and G as stated above and assessee could not complete the construction of building H- 4 for the reasons discussed above the assessee should not suffer for the same with regard to the completed portions of the project. The taxing statute granting incentives for promotion of growth and development be construed liberally and the provisions for promoting economic growth has to be interpreted liberally. At the same time restriction thereon has to be construed strictly so as to advance the object of provision and not to frustrate the same. The provisions of taxing statute should be construed harmoniously with the object of statute to effectuate legislative intention. This view is fortified by decision of Pune Tribunal in the case of Ramsukh Properties (supra), Rahul Construction Co. (supra), Satish Bohra Associates (supra). Accordingly we hold that assessee is entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ( ii) Whether on the facts and in the circumstances of the case and in law, the Tribunal was correct in holding that even two adjoining flats joined to constitute a single residential unit cannot be treated as one unit if adjoining flats were approved by local authority as separate unit? 10. The Hon‟ble High Court answered the question as under : 3. So far as question (ii) is concerned, in the impugned order the Tribunal has recorded a finding of fact that two adjoining flats were approved by the local authority as separate units and completion certificate issued on that basis. Therefore, on the above finding of fact, the Tribunal held that the two flats cannot be treated as one unit to compute the built up area for the purposes of Section 80IB(10) of the Income Tax Act, 1961. The decision of the Tribunal being based on finding of fact, we see no reason to entertain question (ii). 11. Similar issue had come up before the Co-ordinate Bench of Tribunal in the case of DCIT Vs. M/s. Amit Enterprises (supra). The Tribunal following the decision of Hon‟ble Jurisdictional High Court upheld the findings of Commissioner of Income Tax (Appeals) in allowing the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
