VASUPUJYA CORPORATION, MUMBAI V. ACIT 17(2), MUMBAI

CO 194/MUM/2011

• Counselvise Citation: [2011] 122 COUNSELVISE.COM (IT) 6802 (ITAT-MUMBAI)
• Duration Of Justice: 18 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 23-12-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2002-2003
• Appeal Filed On: 05-12-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: SHANTARAM BOSE

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH: MUMBAI BEFORE SHRI R.S. PADVEKAR, JUDICIAL MEMBER AND SHRI RAJENDRA SINGH, ACCOUNTANT MEMBER ITA NO.6194/MUM/2010 (ASSESSMENT YEAR: 2002-03) ACIT 17(2), ROOM NO.217, PIRAMAL CHAMBERS, MUMBAI -400 012 ...... APPELLANT VS M/S. VASUPUJYA CORPORATION, 595/D, NARENDRA VILLA, DR. AMBEDKAR ROAD, MATUNGA, MUMBAI -400 019 ..... RESPONDENT PAN: AADFV 0331 Q APPELLANT BY: MR. SHANTARAM BOSE RESPONDENT BY: SHRI SAMEER DALAL C.O. 194/MUM/2011 ARISING FROM ITA NO.6194/MUM/2010, A.Y. 2002-03 M/S. VASUPUJYA CORPORATION, 595/D, NARENDRA VILLA, DR. AMBEDKAR ROAD, MATUNGA, MUMBAI -400 019 ...... APPELLANT-CROSS OBJECTOR VS ACIT 17(2), ROOM NO.217, PIRAMAL CHAMBERS, MUMBAI -400 012 ..... RESPONDENT APPELLANT-CROSS OBJECTOR BY: SHRI SAMEER DALAL RESPONDENT BY: MR. SHANTARAM BOSE DATE OF HEARING: 12.12.2011 DATE OF PRONOUNCEMENT: 23.12.2011 ITA 6194/MUM/2010 C.O. NO.194/MUM/2011 M/S. VASUPUJYA CORPORATION 2 O R D E R PER R.S. PADVEKAR, JM IN THIS APPEAL THE REVENUE HAS CHALLENGED THE IMPUG NED ORDER OF THE LD. CIT (A)-29 MUMBAI DATED 27.5.2010 FOR THE A .Y. 2002-03. THE ASSESSEE HAS FILED CROSS OBJECTION. THE REVENUE HA S TAKEN FOLLOWING GROUND:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT (A) ERRED IN DIRECTING THE ASSESSI NG OFFICER TO ALLOW THE ASSESSEES CLAIM OF DEDUCTION U/S.80IB (10) AMOUNTING TO ` 43,01,467/- WITHOUT APPRECIATING THE FACT THAT THE CONDITIONS LAID DOWN IN SEC.80IB(10) HAVE NOT BEEN FULFILLED. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT (A) HAS FAILED TO APPRECIATE THE F ACT THAT THE THREE BUILDINGS WHICH ASSESSEE CONSTRUCTED WERE SEP ARATE AND DISTINCT HAVING NO CONNECTION WITH EACH OTHER. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT (A) HAS FAILED TO APPRECIATE THE F ACT THAT THE PLAN SUBMITTED BEFORE THE PUNE MUNICIPAL CORPORATIO N SHOWS THE ENTIRE AREA OF THE PLOT OF LAND WHICH THE ASSESSEE HAS TREATED ONE PROJECT. 4. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT (A PPEALS) ON THE ABOVE GROUNDS BE REVERSED AND THAT OF THE ASSES SING OFFICER BE RESTORED. 2. WE HAVE HEARD THE PARTIES. THE ASSESSEE IS A BU ILDER AND DEVELOPER AND HAD CLAIMED DEDUCTION U/S.80IB(10). IN RESPECT OF THE ITA 6194/MUM/2010 C.O. NO.194/MUM/2011 M/S. VASUPUJYA CORPORATION 3 HOUSING PROJECT CONSISTING OF TULIP/DAISY, JASMINE AND LAVENDER AND ROW HOUSES. THOUGH INITIALLY THE ASSESSEES CLAIM WAS ALLOWED BY ACCEPTING THE RETURN U/S.143(1) BUT SUBSEQUENTLY A NOTICE U/S.148 WAS ISSUED AND DEDUCTION CLAIMED BY THE ASSESSEE U/ S.80IB(10) WAS DISALLOWED. THE A.O. MADE REFERENCE OF THE ASSESSM ENT ORDER FOR THE A.Y. 2001-02 AND DISALLOWED THE DEDUCTION CLAIM U/S .80IB(10). THE LD. COUNSEL SUBMITS THAT SO FAR AS A.Y. 2001-02 IS CONCERNED, IDENTICAL ISSUE HAD COME BEFORE THE TRIBUNAL AND BY THE COMMON ORDER FOR THE A.Y. 2000-01, 2001-02, 2003-04 AND 20 04-05. THE ISSUED WAS RESTORED TO THE FILE OF THE A.O. TO DECI DE THE ISSUE AFRESH AFTER CONSIDERING THE PRINCIPLES LAID DOWN BY THE T RIBUNAL IN THE CASE OF VANDANA PROPERTIES VS. ACIT (2009) 31 SOT 392. HE, THEREFORE, PLEADED THAT ON THE IDENTICAL DIRECTIONS ISSUE MAY BE RESTORED TO THE FILE OF THE A.O. AS HIS INFORMATION THE A.O. NOT GI VEN THE EFFECT TO THE TRIBUNAL ORDER IN RESPECT OF OTHER YEARS. WE HAVE ALSO HEARD THE LD. D.R. WHO HAS NO OBJECTION TO RESTORE THE ISSUE TO T HE FILE OF THE A.O. WE FIND THAT THE IN THE ASSESSEES OWN CASE FOR THE A.Y. 2000-01, 2001-02, 2003-04 AND 2004-05 BEING ITA NO.4626, 402 7/M/2007 AND 791, 792, 542/MUM/2004 ORDER DATED 26.8.2009 TH E IDENTICAL ISSUE WAS RESTORED TO THE FILE OF THE A.O. WITH THE DIRECTION TO DECIDE THE ISSUE IN THE LIGHT OF THE DECISIONS REFERRED IN THE SAID ORDERS. WE, THEREFORE, SET ASIDE THE ORDER OF THE LD. CIT (A) O N THE ISSUE ARISING FROM THE GROUNDS TAKEN BY THE REVENUE AND RESTORE T HE ISSUE TO THE FILE OF THE A.O. FOR FRESH ADJUDICATION FOLLOWING THE DI RECTIONS OF THE TRIBUNAL IN THE ASSESSEES OWN CASES FOR THE A.YS. 2000-01, 2001-02, 2003-04 & 2004-05. ACCORDINGLY, GROUNDS TAKEN BY T HE REVENUE ARE ALLOWED FOR THE STATISTICAL PURPOSE. 3. SO FAR AS CROSS OBJECTION IS CONCERNED, THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT AS PER THE INSTRUCTION OF THE ASSESSEE HE IS NOT PRESSING THE CROSS OBJECTION. AS CROSS OBJECTION I S NOT PRESSED, THE SAME IS DISMISSED AS NOT PRESSED. ITA 6194/MUM/2010 C.O. NO.194/MUM/2011 M/S. VASUPUJYA CORPORATION 4 4. IN THE RESULT, REVENUES APPEAL IS ALLOWED FOR T HE STATISTICAL PURPOSES AND ASSESSEES CROSS OBJECTION STANDS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 2 3RD DECEMBER, 2011. SD/- SD/- ( RAJENDRA SINGH ) ACCOUTANT MEMBER ( R.S. PADVEKAR ) JUDICIAL MEMBER MUMBAI, DATE : 23RD DECEMBER, 2011 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A)-29, MUMBAI. 4) THE CIT-17, MUMBAI. 5) THE D.R. F BENCH, MUMBAI. BY ORDER / / TRUE COPY / / ASSTT. REGISTRAR I.T.A.T., MUMBAI *CHAVAN ITA 6194/MUM/2010 C.O. NO.194/MUM/2011 M/S. VASUPUJYA CORPORATION 5 SR.N. EPISODE OF AN ORDER DATE INITIALS CONCERNED 1 DRAFT DICTATED ON 07.12.2011 SR.PS 2 DRAFT PLACED BEFORE AUTHOR 13.12.2011 SR.PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER