Paras Bhomraj Oswal v. ACIT, Circle-1, Kolhapur
[Citation -2016-LL-0923-16]

Citation 2016-LL-0923-16
Appellant Name Paras Bhomraj Oswal
Respondent Name ACIT, Circle-1, Kolhapur
Court ITAT-Pune
Relevant Act Income-tax
Date of Order 23/09/2016
Assessment Year 2003-04
Judgment View Judgment
Keyword Tags computation of income • levy of interest • prescribed limit • special bench • pooja
Bot Summary: 09.2016 ORDER PER R.K.PANDA, AM : The above 2 appeals filed by the assessee are directed against the order dated 23-02-2015 of the CIT(A)-1 2, Kolhapur relating to Assessment Years 2003-04 2004-05 respectively. On the facts and circumstances of the case and in law the CIT(A) was not justified in disallowing the claim of deduction under S. 80IB(10) of the Act and the Ld. CIT(A) confirming his order which order of the A.O. is contrary to the provisions of law and therefore, is illegal and without jurisdiction. The assessee preferred an appeal before the CIT(A) who vide order dated 28-11-2006 deleted the addition made by the AO and allowed the appeal filed by the assessee. On further appeal by the Revenue the Tribunal vide order dated 30-06-2009 restored the matter back to the file of the AO to decide the issue denovo following the decision of the Special Bench of the Tribunal in the case of Brahma Associate and Others vide order dated 06-04-2009. Computation of income of the assessee for the A.Y. 2003-04 is to remain the same as in the order giving effect to order of CIT(A). The Ld.CIT vide order dated 26-03-2013 passed u s.263 held that the order passed by the AO u s.143(3) dated 31-12-2010 was erroneous in so far as it is prejudicial to the interest of the revenue. Referring to the order of the Tribunal in assessee s own case for A.Y. 2011-12 vide ITA No.1300 PN 2014 order dated 12-08-2016 he submitted that the Tribunal in the said order has also restored the issue relating to deduction u s.80IB(10) to the file of the AO for deciding the issue.


IN INCOME TAX APPELLATE TRIBUNAL SMC BENCH, PUNE, BEFORE SHRI R.K. PANDA, AM . ITA Nos.559 & 560 PN 2015 Assessment Years : 2003-04 & 2004-05 Shri Paras Bhomraj Oswal, . Prop. M s. Pooja Builders & Appellant Developers, Bhakti Pooja Nagar, Mangalwar Peth, Kolhapur PAN : AABPO1487C v s ACIT, Circle-1, Kolhapur . Respondent Appellant by : Shri M.K. Kulkarni Respondent by : Smt. Sumitra Banerji Date of Hearing :21.09.2016 Date of Pronouncement:23.09.2016 ORDER PER R.K.PANDA, AM : above 2 appeals filed by assessee are directed against order dated 23-02-2015 of CIT(A)-1 & 2, Kolhapur relating to Assessment Years 2003-04 & 2004-05 respectively. For sake of convenience these appeals were heard together and are being disposed of by this common order. 2. Identical grounds have been raised by assessee for both years. grounds of appeal for A.Y. 2003-04 are being reproduced as lead case : Without prejudice to each other 1. facts and circumstances of case and in law Ld. CIT(A) was not justified in' delivering his appeal order without applying his mind to facts of case in detailed written submissions submitted 2 ITA Nos.559 and 560 PN 2015 before him before hearing of appeal. It was expected of him to go through entire submissions before deciding appeal. order of Ld. CIT(A) be set aside. 2. On facts and circumstances of case and in law A. O. was not justified and CIT(A) confirming order of A. O. u s 144 when complete information was submitted on record in response to notices and communications. assessment therefore, be annulled by setting aside order of CIT(A). 3. On facts and circumstances of case and in law assessment completed after it was set aside by CIT-Kolhapur under S. 263 of Act should have been completed within limitation laid down in S. 153(2A) of Act. assessment completed vide order dt. 18-3-2014 is bad in law and same be quashed. Ld. CIT(A) failed to appreciate this legal issue though written submissions were made to that effect. appeal order suffers from non-application of mind. same be set aside. 4. On facts and circumstances of case and in law and since Hon'ble Bombay High Court has held Cl. (d) inserted in S. 80-IB(10) w.e.f. 1-4-2005 is prospective and not retrospective, said clause (d) was not applicable to facts of case involved in A. Y. 2003-04 which is prior to 01-4-2005. order passed by CIT(A) without considering jurisdictional High Court judgment is bad in law and without jurisdiction. It be quashed and set aside. 5. On facts and circumstances of case and in law CIT(A) was not justified in disallowing claim of deduction under S. 80IB(10) of Act and Ld. CIT(A) confirming his order which order of A.O. is contrary to provisions of law and therefore, is illegal and without jurisdiction. disallowance be deleted. 6. On facts and circumstances of case and in law levy of interest u s 234A, 2348 and 234C is not justified. 7. appellant craves leave to add, amend or alter any of above grounds of appeal. 3. Facts of case, in brief, are that assessee had filed his return of income on 31-03-2004 declaring taxable income of Rs.2,19,760 -. AO passed order u s.143(3) dated 29-12-2005 determining total income at Rs.39,77,805 -. In said order AO had disallowed claim of deduction u s.80IB(10) amounting to Rs.37,58,016 -. 3 ITA Nos.559 and 560 PN 2015 4. assessee preferred appeal before CIT(A) who vide order dated 28-11-2006 deleted addition made by AO and allowed appeal filed by assessee. On further appeal by Revenue Tribunal vide order dated 30-06-2009 restored matter back to file of AO to decide issue denovo following decision of Special Bench of Tribunal in case of Brahma Associate and Others vide order dated 06-04-2009. Against this order, assessee filed Miscellaneous Application for non disposal of other issues in appeal filed by assessee. Since MA was not decided by Tribunal AO passed order u s.143(3) on 31-12- 2010 stating as under : As above issues were not decided by Hon ble ITAT, Miscellaneous Application dated 24-12-2010 has been filed by Department, decision of Hon ble ITAT is still awaited. 7. Further, against decision of Hon ble ITAT, Special Bench, Pune in case of Brahma Associate & Others, Revenue has preferred appeal before Hon ble High Court of Mumbai, decision of which is still awaited. 8. In view of foregoing paras, final decision on allowability of deduction u s.80IB to assessee s project Bhakti Pooja Nagar will be taken as and when decision of Hon ble ITAT on Miscelleneous Application filed by revenue in assessee s own case. 9. As such, computation of income of assessee for A.Y. 2003-04 is to remain same as in order giving effect to order of CIT(A). 10. Assessed u s.143(3) of I.T. Act, 1961. No demand. 5. Ld.CIT vide order dated 26-03-2013 passed u s.263 held that order passed by AO u s.143(3) dated 31-12-2010 was erroneous in so far as it is prejudicial to interest of revenue. He accordingly set aside matter to file of AO for determination of issues involved in terms of direction given by Tribunal vide its order dated 30-06-2009. It may be pertinent to mention here that Tribunal vide order dated 22-02-2013 dismissed 4 ITA Nos.559 and 560 PN 2015 Miscellaneous Application filed by revenue. AO, thereafter, proceeded to complete assessment subsequent to order passed u s.263 by issuing statutory notices u s.143(2) and 142(1). Rejecting various explanations given by assessee and considering fact that built up area in some of residential units exceeded 1500 sq.ft. and non-fulfilment of various other conditions AO disallowed claim of deduction u s.80IB(10) at Rs.37,58,044 - in order passed u s.144 r.w.s. 263 of I.T. Act. 6. Similarly for A.Y. 2004-05 AO disallowed claim u s.80IB(10) at Rs.39,22,272 -. 7. In appeal Ld.CIT(A) upheld action of AO. Aggrieved with such order of CIT(A) assessee is in appeal before Tribunal. 8. Ld. Counsel for assessee at outset referring to order of Tribunal in assessee s own case for A.Yrs. 2005-06 to 2009-10 vide ITA Nos. 561 to 565 PN 2013 and CO No.14 PN 2013 order dated 29-11-2013 submitted that Tribunal has restored issue relating to deduction u s.80IB(10) to file of AO with certain directions. Referring to order of Tribunal in assessee s own case for A.Y. 2011-12 vide ITA No.1300 PN 2014 order dated 12-08-2016 he submitted that Tribunal in said order has also restored issue relating to deduction u s.80IB(10) to file of AO for deciding issue. He accordingly submitted that these two appeals also should be restored to file of AO for deciding issue of deduction u s.80IB(10) in light of direction of Tribunal for subsequent years. 5 ITA Nos.559 and 560 PN 2015 9. Ld. Departmental Representative while supporting order of CIT(A) fairly submitted that she has no objection if matter is restored to file of AO for adjudication of issue in light of direction of Tribunal in assessee s own case for subsequent years. 10. I have considered rival arguments made by both sides, perused orders of AO and CIT(A) and paper book filed on behalf of assessee. I have also considered various decisions cited before me. I find AO in order passed u s.144 r.w.s. 263 has disallowed claim of deduction u s.80IB(10) amounting to Rs.37,58,044 - for A.Y. 2003-04 and Rs.39,22,272 - for A.Y. 2004-05 on ground that assessee has violated conditions prescribed u s.80IB(10) since built up area of some of residential units exceeded prescribed limit of 1500 sq.ft. I find Ld.CIT(A) upheld action of AO. 11. It is submission of Ld. Counsel for assessee that under identical facts Tribunal in assessee s own case for A.Yrs. 2005-06 to 2009-10 vide ITA Nos. 561 to 565 PN 2013 order dated 29-11-2013 has restored issue to file of AO with certain directions. Further, following above decision Tribunal in assessee s own case for A.Y. 2011-12 vide ITA No.1300 PN 2014 order dated 12-08-2016 has also restored issue to file of AO with certain directions. In view of above, I find merit in submission of Ld. Counsel for assessee that above two appeals also should be restored to file of AO for deciding issue afresh in light of direction of Tribunal. I accordingly set aside orders of CIT(A) for both years and restore matter for both years to file of AO for deciding issue afresh 6 ITA Nos.559 and 560 PN 2015 in light of direction of Tribunal for A.Yrs. 2005-06 to 2009- 10 and 2010-11. Grounds raised by assessee are accordingly allowed for statistical purposes. 12. In result, both appeals filed by assessee are allowed for statistical purposes. Order pronounced in open court on 23-09-2016. Sd - (R.K. PANDA) ACCOUNTANT MEMBER Pune; Dated :23rd September, 2016.Copy of Order forwarded to : 1. Appellant 2. Respondent 3. CIT(A)-1 & 2, Kolhapur 4. CIT-1 & 2, Kolhapur 5. , SMC Bench DR, ITAT, SMC Bench Pune; 6. 2 Guard file. BY ORDER, True Copy True Copy & Sr. Private Secretary, ITAT, Pune Paras Bhomraj Oswal v. ACIT, Circle-1, Kolhapur
Report Error