OMPRAKASH ABROL HUF, MUMBAI V. ITO 19(2)(4), MUMBAI

CO 98/MUM/2012

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 7487 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 7 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 18-07-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 18-07-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 11-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL K HAKANI
• Assessee Lawyers: N SATHYA MOORTHY

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C' BENCH, M UMBAI . , !'# $ $ $ $ %&' ( , &) *+ & # BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI RAJENDRA SINGH, ACCOUNTANT MEMBER ./ ITA NO. 5965/MUM/2011 ( , , , , - - - - / ASSESSMENT YEAR : 2005-06 INCOME TAX OFFICER - 19(2)(4) OMPRAKASH ABROL HUF ROOM NO. 310, PIRAMAL CHAMBERS 11-A, STARWAYS CO.OP . HSG. SOCIETY LALBAUGH, PAREL / VS. ASHA COLONY, JUHU TARA ROAD MUMBAI 400012 SANTACRUZ (W), MUMBAI 400054 +. &) ./ PAN - AAAHO 3913 J ./ / APPELLANT 01./ / RESPONDENT 01#& ./ CO NO. 98/MUM/2012 ( , - , - , - , - / ASSESSMENT YEAR : 2005-06 OMPRAKASH ABROL HUF INCOME TAX OFFICER - 19(2)(4) 11-A, STARWAYS CO.OP. HSG. SOCIETY ROOM NO. 310, PIRAMAL CHAMBERS ASHA COLONY, JUHU TARA ROAD / VS. LALBAUGH, PAREL SANTACRUZ (W), MUMBAI 400054 MUMBAI 400012 +. &) ./ PAN - AAAHO 3913 J ./ / APPELLANT 01./ / RESPONDENT ./ 2 & / APPELLANT BY : SHRI N. SATHYA MOORTHY 01./ 3 2 & / RESPONDENT BY : SHRI RAHUL K. HAKANI 3 4) / DATE OF HEARING : 18.07.2012 5- 3 4) / DATE OF PRONOUNCEMENT : 18.07.2012 *&6 / O R D E R PER D. MANMOHAN, V.P. THESE CROSS APPEALS ARE DIRECTED AGAINST THE ORDER DATED 23.06.2011 PASSED BY THE CIT(A)-35, MUMBAI AND THEY PERTAIN TO A.Y. 2005-06. ITA 5965/MUM/2011 & CO 98/MUM/2012 OMPRAKASH ABROL HUF 2 2. ELIGIBILITY TO CLAIM DEDUCTION UNDER SECTION 80IB(1 0)OF THE INCOME TAX ACT IS THE SUBJECT MATTER OF DISPUTE BEFORE US IN T HE APPEAL FILED BY THE REVENUE AS WELL AS THE CROSS OBJECTION FILED BY THE ASSESSEE. 3. AT THE TIME OF HEARING THE LEARNED COUNSEL POINTED OUT THAT THE APPEALS FOR ASSESSMENT YEARS 2003-04, 2004-05 AND 2005-06 W ERE DISPOSED OF BY THE CIT(A) BY A COMBINED ORDER WHEREIN IT WAS OBSERVED THAT THE PROJECT OF THE APPELLANT WAS APPROVED BY CIDCO VIDE LETTER DATED 2 0.10.1999. SINCE THE PROJECT WAS APPROVED AS A RESIDENTIAL HOUSING PROJE CT, BEFORE 01.04.2005, THERE IS NO RESTRICTION REGARDING COMMERCIAL AREA A ND THE ONLY CONDITION IS THAT THE PROJECT HAS TO BE APPROVED AS HOUSING PROJ ECT. IN OTHER WORDS, EVEN IF THE ASSESSEE BUILDS COMMERCIAL AREA, SO LONG AS THE BUILT UP AREA OF COMMERCIAL ESTABLISHMENTS DOES NOT EXCEED 5% OF THE AGGREGATE BUILT UP AREA, ASSESSEE WOULD BE ENTITLED TO DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. WITH REGARD TO A.Y. 2005-06 ALSO THE LEARNED C IT(A) OBSERVED THAT THE PROJECT HAVING BEEN APPROVED AS RESIDENTIAL HOUSING PROJECT, EVEN AFTER THE AMENDMENT INSERTED BY CLAUSE (D) TO SECTION 80IB(10 ), W.E.F. 01.04.2005, THE SAME CANNOT BE APPLIED TO THE PROJECTS APPROVED BEF ORE 01.04.2005 IN THE LIGHT OF THE DECISION OF THE ITAT PUNE SPECIAL BENC H IN THE CASE OF BRAHMA ASSOCIATES. THE DECISION OF THE SPECIAL BENCH WAS A PPROVED BY THE HON'BLE BOMBAY HIGH COURT (REPORTED IN [2011] 333 ITR 289). 4. THE LEARNED COUNSEL SUBMITTED THAT IN RESPECT OF AS SESSMENT YEARS 2003-04 AND 2004-05 THE SMC BENCH MUMBAI ACCEPTED T HE VIEW TAKEN BY THE CIT(A), IN THE LIGHT OF THE DECISIONS OF SPECIA L BENCH AS WELL AS THE HON'BLE BOMBAY HIGH COURT (SUPRA). HE, THEREFORE, C ONTENDED THAT THE ISSUE BEFORE US STANDS COVERED BY THE AFORESAID DECISIONS . 5. THE LEARNED D.R. DID NOT FILE ANY MATERIAL TO CONTR ADICT THE CONTENTIONS RAISED BY THE LEARNED COUNSEL FOR THE A SSESSEE. 6. HAVING REGARD TO THE CIRCUMSTANCES OF THE CASE WE A RE OF THE VIEW THAT THE ORDER PASSED BY THE LEARNED CIT(A) DOES NOT CAL L FOR ANY INTERFERENCE AND THEREFORE WE UPHOLD THE ORDER OF THE LEARNED CIT(A) AND DISMISS THE APPEAL FILED BY THE REVENUE. SINCE THE CROSS OBJECTIONS AR E FILED ONLY TO SUPPORT THE ORDER OF THE CIT(A), THE SAME CAN BE TREATED AS ALL OWED FOR STATISTICAL ITA 5965/MUM/2011 & CO 98/MUM/2012 OMPRAKASH ABROL HUF 3 PURPOSES. AS PRONOUNCED IN THE OPEN COURT THE APPEA L FILED BY THE REVENUE IS DISMISSED AND THE CROSS OBJECTION FILED BY THE A SSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 18TH JULY 201 2. *&6 3 - )& 7 8*9 18.07.2012 3 : SD/- SD/- (RAJENDRA SINGH) (D. MANMOHAN) &) *+ / ACCOUNTANT MEMBER !'#/ VICE PRESIDENT MUMBAI ; 8* DATED : 18 TH JULY 2012 . , . ./ N.P., SR. PS *&6 *&6 *&6 *&6 3 33 3 0,4(< 0,4(< 0,4(< 0,4(< =& =& =& =&<-4 <-4<-4 <-4 / COPY OF THE ORDER FORWARDED TO : 1. ./ / THE APPELLANT 2. 01./ / THE RESPONDENT. 3. > ( ) / THE CIT(A)- 35, 4. > / CIT - 25, 5.