ITO WD 2(3), THANE V. DREAM HOUSE REALTORS, THANE

ITA 138/MUM/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3522 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-08-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2004-2005
• Appeal Filed On: 08-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NAVEEN GUPTA
• Keywords: Competent authority

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI D.KARUNAKARA RAO, ACCOUNTANT MEMBER & SHRI AMARJIT SINGH, JUDICIAL MEMBER I.T.A. NO.138/MUM/2015 (ASSESSMENT YEAR : 2004-05) ITO WARD - 2(3) , 6 TH FLOOR, B WING, ROOM NO. 13, ASHAR I.T. PARK, ROAD NO. 16-Z, NR. AMBIKA NAGAR, WAGLE ESTATE, THANE-400604. VS. M/S DREAM HOUSE REALTORS, SHOP NO.7, NEEL AKAR GANGA, GROUND FLOOR, LAXMI PARK, NAYA NAGAR, MIRA ROAD (E), THANE. PAN: AADFD9736B (APPELLANT) .. ( RESPONDENT) REVENUE BY MR. NAVEEN GUPTA (DR) ASSESSEE BY NONE DATE OF HEARING : 17.08.2015 DATE OF PRONOUNCEMENT : 19.08.2016 O R D E R D.KARUNAKARA RAO, AM: 1. THIS IS THE APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A)- II, THANE DATED 31.10.2014. THE GROUND RAISED IN TH E APPEAL IS AS UNDER: WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, AND IN LAW, THE HONBLE CIT(A) WAS RIGHT IN DELETING THE ADDITION O F RS. 82,24,290/- ON ACCOUNT OF DISALLOWANCE OF CLAIM U/S 80IB(10) OF THE ACT DE SPITE THE FACT THAT THE 2 ITA NO.138/M/2 015 ASSESSEE HAD CONSTRUCTED COMMERCIAL AREA OF 1800 SQ .FT. AND HENCE VIOLATED THE CONDITIONS PRESCRIBED U/S 80IB(10). 2. AT THE OUTSET, THERE IS NONE TO REPRESENT FOR THE A SSESSEE. HOWEVER, CONSIDERING THE FACT THAT THE GROUND RAISE D IN THE APPEAL RELATES TO AN ISSUE WHICH IS ALREADY COVERED BY THE BINDING JUDGMENT OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF BRAHMA ASSOCIATES (333 ITR 289), WITH THE HELP OF THE LD. DR FOR THE REVENUE F OR THE REASON WE PROCEED TO ADJUDICATE THIS ISSUE IN FAVOUR OF THE AS SESSEE. THERE IS NO DISPUTE ON THE FACTS. ONLY LEGAL DISPUTE RAISED IN THE GROUND BY THE REVENUE RELATES TO THE APPLICABILITY OF THE AMENDED PROVISIONS OF SECTION 80IB(10) OF THE ACT TO THE PROJECT WHICH IS APPROVED PRIOR TO THE SAID AMENDMENTS. IN THIS REGARD, WE FIND THAT THE PROJECT IN QUESTION WAS APPROVED PRIOR TO 01.04.2005. THEREFORE, THE ASSESS EE HAS NOT VIOLATED THE REQUISITE CONDITIONS WITH REGARD TO THE EXTENT OF SQ.FT., SPECIFIED FOR THE COMMERCIAL AREA OF THE HOUSING PROJECT. 3. IN THIS REGARD, PARAGRAPH 4.2 OF THE ORDER OF CIT(A ) IS RELEVANT AND THE SAME IS EXTRACTED AS UNDER: 4.2 AS REGARDS COMMERCIAL AREA OF 1800 SQ.FT. CON TAINED IN THE HOUSING PROJECT, IT IS AN ESTABLISHED LEGAL POSITION THAT T HERE WAS NOT LIMIT FOR COMMERCIAL AREA IN THE HOUSING PROJECT APPROVED PRI OR TO 1.4.2005 AS HELD BY THE HONBLE JURISDICTIONAL HIGH COURT IN TH E CASE OF BRAHMA ASSOCIATES (SUPRA). THE HONBLE ITAT HAS ALSO EMPH ASIZED THIS ASPECT OF THE LEGAL POSITION IN ITS ORDER UNDER REFERENCE. AC CORDINGLY, THE COMMERCIAL AREA OF 1800 SQ.FT. IN THE HOUSING PROJE CT OF THE APPELLANT WHICH UNDISPUTEDLY APPROVED PRIOR TO 1.4.2005 WOULD NOT BE OF ANY CONSEQUENCE SO FAR AS THE DEDUCTION U/S. 80IB(10) I S CONCERNED. EVEN FOR THE SAKE OF ARGUMENTS, IT IS PRESUMED THAT THE AMENDED PROVISIONS 3 ITA NO.138/M/2 015 WOULD APPLY, THEN ALSO THE APPELLANT SATISFIED THE CONDITIONS BECAUSE THE COMMERCIAL AREA WAS LESS THAN 2000 SQ.FT. OR 5% OF THE TOTAL BUILT UP AREA WHICHEVER WAS HIGHER. THEREFORE, I HOLD THAT T HERE IS NO VIOLATION IN THE CASE OF APPELLANT SO FAR AS THE COMMERCIAL AREA CONTAINED IN THE HOUSING PROJECT IS CONCERNED WHICH HAS BEEN DULY AP PROVED BY THE COMPETENT AUTHORITY. 4. CONSIDERING THE ABOVE, WE ARE OF THE OPINION THAT T HE CIT(A) IS RIGHTLY DECIDED THE FOLLOWING BINDING JURISDICTIONAL HIGH COURT JUDGMENT IN THE CASE OF BRAHMA ASSOCIATES (SUPRA). THEREFORE, W E FIND THAT THE ORDER OF CIT(A) IS FAIR AND REASONABLE AND IT DOES NOT CA LL FOR ANY INTERFERENCE. ACCORDINGLY, GROUND RAISED BY THE REVENUE IS DISMIS SED. 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 19 TH DAY OF AUGUST, 2016. SD/- SD/- (AMARJIT SINGH) (D.KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 19.08.2016 SHARWAN P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR D BENCH BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.