ITO 15(1)(1), MUMBAI V. U.K. BUILDERS, MUMBAI

ITA 1126/MUM/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2774 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2010-2011
• Appeal Filed On: 20-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN (AM) AND SANJAY GARG, (JM) . . , , / I. T.A. NO . 344 / MUM/20 1 4 ( / ASSESSMENT YEAR : 20 10 - 11 ) M/S U K BUILDERS, 308, NEW MAJESTIC SHOPPING CENTRE, 144, JSS ROAD, MUMBAI - 400004. / VS. ASSTT.COMMISSIONER OF INCOME TAX, CIRCLE - 2, A WING, 6 TH FLOOR, ASHAR I T PARK, WAGALE INDUS TRIAL ESTATE, ROAD NO.16 - Z, THANE (W) - 400604 ( / APPELLANT ) .. ( / RESPONDENT ) / I.T.A. NO .1126 /MUM/20 14 ( / ASSESSMENT YEAR : 20 10 - 11 ) INCOME TAX OFFICER,15(1)(1), ROOM NO.119, MATRU MANDIR, 1 ST FLOOR, TARDEO ROAD, MUMBAI - 400007 / VS. M/S U K BUILDERS, 308, NEW MAJESTIC SHOPPING CENTRE, 144, JSS ROAD, MUMBAI - 400004 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN : AAB FU2463L / APP ELLAN T BY SHRI VIMAL PUNMIYA / RESPONDENT BY SHRI ABHINAY KUMBHAR / DATE OF HEARING : 29.10 .2015 / DATE OF PRONOUNCEMENT : 2 9 . 10 .2015 ITA NO. 344 /MUM/201 4 AND 1126/MUM/2014 2 / O R D E R PER BENCH: THESE CROSS APPEALS ARE DIRECTED AGAINST THE ORDER DATED 05.11.2013 PASSED BY LD CIT(A) - I, THANE AND IT RELATES TO THE ASSESSMENT YEAR 2010 - 11. THE ISSUED URGED BY BOTH THE PARTIES RELATE TO THE DEDUCTION CLAIMED BY THE ASSESSEE U/S 80IB(10) OF T HE ACT. 2. THE ASSESSEE IS A BUILDER AND DEVELOPER AND IT CLAIMED DEDUCTION U/S 80IB(10) OF THE ACT IN RESPECT OF A HOUSING PROJECT NAMED U.K. RESIDENTIAL. THE AO NOTICED THAT THE COMMERCIAL AREA OF THE PROJECT HAD EXCEEDED THE MAXIMUM LIMIT PRESCRI BED IN SEC. 80IB(10) OF THE ACT. THE AO ALSO TOOK THE VIEW THAT THE ASSESSEE DID NOT OBTAIN COMPLETION CERTIFICATE WITHIN THE PRESCRIBED PERIOD. ACCORDINGLY, THE AO HELD THAT THE ASSESSEE HAS VIOLATED THE CONDITIONS PRESCRIBED IN SEC. 80IB(10) OF THE ACT AND ACCORDINGLY REJECTED THE CLAIM MADE U/S 80IB(10) OF THE ACT. THE LD CIT(A) UPHELD THE REJECTION OF CLAIM BY CONCURRING WITH THE VIEW OF THE ASSESSING OFFICER THAT THE COMMERCIAL AREA OF THE PROJECT HAS EXCEEDED THE LIMIT PRESCRIBED IN SEC. 80IB(10) O F THE ACT. WITH REGARD TO THE COMPLETION CERTIFICATE, THE LD CIT(A) FOLLOWED HIS PREDECESSORS ORDER, WHEREIN THE FIRST APPELLATE AUTHORITY HAD HELD THAT (A) THE ASSESSEE HAD COMPLETED THE PROJECT BY THE PRESCRIBED DATE AND, IN FACT, APPLIED FOR COMPLETI ON CERTIFICATE WITHIN THAT DATE. (B) ALTERNATIVELY, THE LD CIT(A) HELD THAT THE TIME LIMIT PRESCRIBED FOR COMPLETION OF THE PROJECT SHALL NOT APPLY TO THE ASSESSEE, SINCE THE PROJECT OF THE ASSESSEE WAS APPROVED PRIOR TO THE INSERTION OF THE PROVISIONS PR ESCRIBING THE TIME LIMIT. ACCORDINGLY, THE LD CIT(A) HELD THAT THE ASSESSEE HAS COMPLIED WITH THE CONDITIONS PRESCRIBED FOR COMPLETION OF THE PROJECT. ITA NO. 344 /MUM/201 4 AND 1126/MUM/2014 3 3. THE ASSESSEE IS IN APPEAL CHALLENGING THE ORDER OF LD CIT(A) WITH REGARD TO THE REJECTION OF TH E CLAIM ON THE GROUND OF VIOLATION OF THE CONDITIONS PRESCRIBED FOR COMMERCIAL AREA. THE REVENUE IS AGGRIEVED BY THE DECISION OF LD CIT(A) IN HOLDING THAT THE TIME LIMIT PRESCRIBED FOR COMPLETION OF THE PROJECT IS NOT APPLICABLE TO THE ASSESSEE, SINCE THE PROJECT HAD BEEN APPROVED PRIOR TO THE INSERTION OF THAT CONDITION. 4. WE HEARD THE PARTIES AND PERUSED THE RECORD. WITH REGARD TO THE APPEAL FILED BY THE ASSESSEE, THE LD D.R FAIRLY ADMITTED THAT THE ISSUE URGED BY THE ASSESSEE HAS SINCE BEEN DECID ED IN FAVOUR OF THE ASSESSEE BY THE CO - ORDINATE BENCH OF THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR ASSESSMENT YEARS 2006 - 07 TO 2009 - 10 IN ITA NOS.3920 TO 3922/MUM/2012 AND ITA NO.6557/MUM/2012 DATED 20 - 02 - 2015, WHEREIN THE TRIBUNAL HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY FOLLOWING THE DECISION OF JURISDICTIONAL BOMBAY HIGH COURT RENDERED IN THE CASE OF CIT VS. BRAHMA ASSOCIATES (2011)(333 ITR 289). THE LD A.R FURTHER SUBMITTED THAT THE DECISION RENDERED IN THE CASE OF BRAHMA ASSOCIATES (SUPRA) HAS SINCE BEEN APPROVED BY THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. M/S SARKAR BUILDERS (CIVIL APPEAL NO.4476 OF 2015 DATED 15 - 05 - 2015). IN VIEW OF THE ABOVE, WE SET ASIDE THE ORDER PASSED BY LD CIT(A) ON THE ISSUE RELATING TO COMMERCIAL AREA, SI NCE THE PROJECT HAS BEEN APPROVED 0N 08 - 04 - 2003, I.E., PRIOR TO THE INSERTION OF THE LIMITS FOR COMMERCIAL AREA. 5. WITH REGARD TO THE APPEAL FILED BY THE REVENUE , WE NOTICE THAT THE LD CIT(A) HAS GIVEN A FINDING THAT THE PROJECT HAS BEEN COMPLETED BY THE ASSESSEE PRIOR TO THE PRESCRIBED DATE. FURTHER WE NOTICE THAT THE CO - ORDINATE BENCH OF THE TRIBUNAL HAS HELD IN THE ASSESSEES OWN CASE (REFERRED SUPRA) THAT THE COMPLETION CERTIFICATE IS NOT REQUIRED IN RESPECT OF PROJECTS APPROVED PRIOR TO 1.4.2005. WE NOTICE THAT THE CO - ORDINATE BENCH HAS FOLLOWED THE DECISION RENDERED BY HONBLE MADRAS HIGH COURT IN THE ITA NO. 344 /MUM/201 4 AND 1126/MUM/2014 4 CASE OF CIT VS. JAIN HOUSING & CONSTRUCTION LTD (2013)(30 TAXMANN.COM 131). HENCE, BY FOLLOWING THE DECISION OF THE CO - ORDINATE BENCH, WE DISMISS THE APPEAL OF THE REVENUE . 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED AND THE APPEAL OF THE REVENUE IS DISMISSED. P RONOUNCED ACCORDINGLY IN THE OPEN COURT ON 2 9 TH OCT , 2015 . 2 9 TH OCT , 2015 SD SD ( / SANJAY GARG ) ( . . / B.R. BASKARAN) / JUDICIAL MEMB ER / ACCOUNTANT MEMBER MUMBAI: 2 9 TH OCT, 2015 . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / TH E CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI