ITO 25(2)(4), MUMBAI V. RAVIRAJ CONSTRUCTION CO. (ROYAL), MUMBAI

ITA 1049/MUM/2011

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9180 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 1 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 18-03-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 04-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LOVE KUMAR
• Assessee Lawyers: S ATISH CHANDAK
• Keywords: Tax effect
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D, MUMBAI BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER ITA NO. 1049/MUM/2011 ASSESSMENT YEAR: 2007-08 ITO 25(2)(4) C-11 1 ST FLOOR, PRATYAKSHKAR BHAVAN BANDRA (E) MUMBAI 400 051 VS. M/S. RAVIRAJ CONSTRUCTION CO. (ROYAL) A/101, RADHARAMAN APRT, KANDARPADA, DAHISAR (W), MUMBAI 400 068 PAN:- AAAAR 3526 R (APPELLANT) (RESPON DENT) ASSESSEE BY : SHRI SATISH CHANDAK RE VENUE BY : SHRI LOVE KUMAR DATE OF HEARING : 18.03.2015 DATE OF ORDER : 25 . 03.2015 O R D E R PER AMIT SHUKLA, JM: THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST ORDER DATED 24.11.2010 PASSED BY LD. CIT-35 MUMBAI FOR THE QUAN TUM OF ASSESSMENT PASSED U/S 143(3) FOR THE A.Y. 2007-08, VIDE WHICH FOLLOWING GROUNDS HAVE BEEN RAISED:- I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) ERRED IN ALLOWING THE CLAIM OF DEDUC TION MADE BY THE ASSESSEE U/S 80IB(10) OF THE INCOME-TAX ACT, IN SPITE OF THE FACT THAT THE ASSESSEE HAS NOT FULFILLED THE CONDIT IONS LAID DOWN IN THE SAID SECTION. II) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS ERRED IN HOLDING THAT IF THE PRO JECT WAS APPROVED BEFORE 01.04.2005 THE AMENDED PROVISIONS O F SECTION ITA NO. 1049/MUM/2011 ASSESSMENT YEAR: 2007-08 2 80IB(10) OF THE INCOME TAX ACT, 1961 W.E.F. 01.04.2 005 ARE NOT APPLICABLE. III) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE DEDUCT ION UNDER SECTION 80IB(10) OF THE INCOME TAX ACT, 1961 WOULD BE AVAILABLE TO THE ASSESSEE SINCE THE COMMERCIAL AREA OF THE PR OJECT IS LESS THAN 10% OF THE TOTAL BUILT UP AREA. 2. AT THE OUTSET, LEARNED COUNSEL SUBMITTED THAT TH IS ISSUE HAD COME UP FOR CONSIDERATION BEFORE THE TRIBUNAL IN ASSESSE ES OWN CASE IN THE A.Y. 2006-07, WHEREIN THE TRIBUNAL HAS DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE. HE FURTHER SUBMITTED THAT OTHERWISE A LSO THE TAX EFFECT IS LESS THAN RS. 3 LAKHS AND THEREFORE, SUCH AN APPEAL FILED BY THE DEPARTMENT IS NOT MAINTAINABLE. LD. DR ACCEPTED THA T ISSUE INVOLVED IS COVERED BY THE DECISION OF THE TRIBUNAL IN ASSESSEE S OWN CASE. 3. AFTER CONSIDERING THE RELEVANT FINDING GIVEN BY THE LD. CIT(A) AND ALSO THE ORDER OF THE TRIBUNAL, WE FIND THAT THE IS SUE OF CLAIM OF DEDUCTION U/S 80IB(10) IS SQUARELY COVERED BY THE D ECISION OF THE TRIBUNAL IN FAVOUR OF THE ASSESSEE. THE AO HAD DISA LLOWED THE DEDUCTION U/S 80IB(10), ON THE GROUND THAT THE COMMERCIAL ARE A EXCEEDED 2000 SQ. FT. AND THEREBY ASSESSEE HAS VIOLATED THE CONDI TIONS LAID DOWN IN THE SAID SECTION. THE TRIBUNAL AFTER FOLLOWING THE DECI SION OF BRAHMA ASSOCIATES AND THE CO-ORDINATE BENCH DECISION IN TH E CASE OF M/S. SAROJ SALES ORGANIZATION 115 TTJ 485, DISMISSED THE REVEN UES APPEAL,VIDE ORDER DATED 30 TH SEPTEMBER 2010, PASSED IN ITA NO. 6356/M/2009. SINCE SIMILAR FACTS ARE PERMEATING IN THIS YEAR ALS O, THEREFORE, WE DO NOT FIND ANY REASON TO DEVIATE FROM THE EARLIER YEAR PR ECEDENCE, ACCORDINGLY, THE GROUND RAISED BY THE REVENUE IS DISMISSED. ITA NO. 1049/MUM/2011 ASSESSMENT YEAR: 2007-08 3 4. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 25 TH DAY OF MARCH, 2015. SD/- SD/- (B.R. BASKARAN) (AMIT SHUKLA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 25.03.2015 *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR D BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.