ITO WD 1(3), KALYAN V. RAI RESIDENCY P.LTD, KALYAN

ITA 1139/MUM/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2482 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 26-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B S BIST

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D, MUMBAI BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO.1139/M/2015 ASSESSMENT YEAR: 2010-11 INCOME TAX OFFICER, WARD 1(3), KALYAN, 1 ST FLOOR, MOHAN PLAZA, WAYALE NAGAR, KHADAKPADA, KALYAN VS. M/S. RAI RESIDENCY PVT. LTD., 1 SAI GANESH SANKUL, NEAR CHURCH, VIJAY NAGAR, KALYAN (EAST) - 421306 PAN: AABCR 7454F (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : NONE REVENUE BY : SHRI B.S. BIST, D.R. DATE OF HEARING : 13.10.2016 DATE OF PRONOUNCEMENT : 21.10.2016 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE REVEN UE AGAINST THE ORDER DATED 17.12.2014 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO ASSESSMENT Y EAR 2010-11. 2. THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS OF A PPEAL: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) HAS ERRED IN ALLOWING THE DEDUCTION U/S 80IB(1) OF THE I.T. ACT, 1961 CLAIMED BY THE ASSESSEE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT (A) HAS ERRED IN FOLLOWING ITS OWN DECISION IN ASSESSEE 'S CASE FOR AY 2009-10 ON SIMILAR ISSUE FOR WHICH DEPARTMENT IS IN APPEAL BEF ORE HON'BLE HIGH COURT. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT (A) HAS ERRED IN RELYING ON THE DECISION OF THE ITAT IN THE CASE OF M/S VIDHI BUILDERS AND M/S UMIYA ENTERPRISES WHICH IS YET TO ATTAIN ITS FI NALITY IN MUMBAI HIGH COURT. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT (A) HAS ITA NO.1139/M/2015 M/S. RAI RESIDENCY PVT. LTD. 2 ERRED IN NOT APPRECIATING THE FACT THAT THE ARCHITE CT'S CERTIFICATE SUBMITTED DURING ASSESSMENT PROCEEDINGS CLEARLY STATED THAT T HE AREA OF LAND ON WHICH THE PROJECT IS CONSTRUCTED IS LESS THAN ONE ACRE. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT (A) HAS ERRED IN INTERPRETING CBDT'S CIRCULAR NO. 5 OF 2005. 3. IN THIS CASE, THE REVENUE IS AGGRIEVED BY THE DE CISION OF THE LD. CIT(A) IN GRANTING THE DEDUCTION UNDER SECTION 80IB(10) OF THE INCOME TAX ACT PLEADING THAT THE AREA OF PROJECT IS LESS THAN THE SPECIFIED AREA OF ONE ACRE OF LAND. THE DISPUTE INVOLVED IS AS TO WHETHER THE AR EA OF DP ROAD, RECREATION GARDEN ETC. SHOULD BE EXCLUDED FOR THE PURPOSE OF A DMEASURING THE ONE ACRE OF LAND. AT THE OUTSET, THE LD. A.R. OF THE ASSESSEE HAS STATED THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE IN THE O WN CASE OF THE ASSESSEE FOR A.Y. 2009-10 VIDE ORDER DATED 18.12.13 PASSED IN IT A NO.6245/M/2012. THE RELEVANT PART OF THE SAID DECISION OF THE TRIBUNAL IS REPRODUCED AS UNDER: 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES ON THIS LIMITED ISSUE AND FIND THAT THE CONTENTS OF PARA 6 OF THE CIT (A)S ORDER WHERE THE ISSUE WAS DISCUSSED AT LENGTH. IT I S AN UNDISPUTED FACT THAT THE LOCAL AUTHORITIES HAVE APPROVED THE PROJECT BY HOLDING TH AT THE PLOT HAS MORE THAN ONE ACRE OF LAND. THE ISSUE OF WHETHER THE AREA OF D.P. ROAD, RECREATION GARDEN ETC SHOULD BE EXCLUDED FOR THE PURPOSE OF ADMEASURING T HE ONE ACRE OF LAND WAS CONSIDERED BY VARIOUS DECISIONS AND THE SAME WAS DE CIDED IN FAVOUR OF THE ASSESSEE. THE RELEVANT DECISIONS IN THIS REGARD ARE AS UNDER: 1. M/S. VIDHI BUILDERS, ITA NO.2554/MUM/2011 (AY 20 07-08) DATED 31.1.2012. 2. JOHAR HASSAN ZOJWALLA VS. ADDL. CIT, ITA NO.5404 /MUM/2008 (AY 2005-06) DATED 12.1.2011. 3. ACIT VS. MRS. ANJANA S. CHAVAN, ITA NO. 1080/MUM /2010 (AY 2006- 07) DATED 20.4.2011. 4. M/S. B.K. PATE ENTERPRISES VS. ACIT, ITA NO.736/ PN/2010 (AY 2005- 06) DATED 8.7.2011. 6. WE HAVE ALSO PERUSED THE OPERATIONAL PARA 4 FROM THE ORDER OF THE CIT (A) AND SAME READS AS UNDER: 4..............ON THE PERUSAL OF APPROVAL LETTERS ISSUED BY KDMC DATED 7.11.2006 AND 30.3.2007, IT IS NOTICED THAT THE HOU SING PROJECT (HARI COMPLEX) HAS BEEN APPROVED ON A PLOT AREA OF 4200.1 9 SQ. MTS., AND HOUSING PROJECT (DWARKA NAGARI) HAS BEEN APPROVED O N AN AREA OF 4219.37 SQ. MTRS. UNDER THESE CIRCUMSTANCES, AS ALSO IN VIE W OF THE DECISION OF HONBLE ITAT, MUMBAI AS DISCUSSED ABOVE, WHICH ARE BINDING ON ME, I AM OF THE CONSIDERED VIEW THAT THE AREA OF ROAD AND RESER VATION FOR RECREATION GROUND, ETC., WHICH IS AS PER THE HOUSING PROJECT A PPROVED BY THE LOCAL ITA NO.1139/M/2015 M/S. RAI RESIDENCY PVT. LTD. 3 AUTHORITY COULD NOT BE EXCLUDED FROM THE TOTAL ARE OF THE PLOT FROM THE PURPOSE OF CLAIM OF DEDUCTION U/S 80IB(10). UNDISPU TEDLY, WITHOUT EXCLUDING THE AREA OF ROAD AND RESERVATION FOR RECREATION GRO UND, THE AREA OF PLOT IN BOTH THE PROJECTS EXCEEDED ONE ACRE. THEREFORE, I H OLD THAT THE APPELLANT HAS SATISFIED THE CONDITION IN THIS REGARD AND HENC E IS ELIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE ACT IN RESPECT OF BOTH THE HOUS ING PROJECTS. THE AO IS DIRECTED TO GRANT RELIEF ACCORDINGLY AND APPELLANT SUCCEEDS ON GROUND NO.2. 7. CONSIDERING THE ABOVE, WE FIND THAT THE REVENUE HAS NOT BROUGHT ANY CONTRARY DECISIONS CITED IN PARA 4 OF THE CIT (A)S ORDER. CONSIDERING THE ABOVE SETTLED NATURE OF THE ISSUE, WE ARE OF THE OPINION THAT THE ORDER OF THE CIT (A) DOES NOT CALL FOR ANY INTERFERENCE. ACCORDINGLY, GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 8. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED . 4. THE LD. D.R. HAS FAIRLY AGREED THAT THE ISSUE IN VOLVED IN THIS YEAR IS EXACTLY IDENTICAL AND IS COVERED BY THE ABOVE DECIS ION OF THE TRIBUNAL IN THE OWN CASE OF THE ASSESSEE FOR EARLIER ASSESSMENT YEA R. RESPECTIVELY FOLLOWING THE SAME, WE DO NOT FIND ANY MERIT IN THE APPEAL OF THE REVENUE AND THE SAME IS ACCORDINGLY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21.10.2016. SD/- SD/- (ASHWANI TANEJA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 21.10.2016. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.