DOSTI CORPORATON (PINNACLE), MUMBAI V. ASST CIT RG 12(1), MUMBAI

ITA 1405/MUM/2015

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 3033 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 09-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANILKUMAR DHONDIAL
• Assessee Lawyers: N JAYENDRA

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI N.K . BILLAIYA, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH , JUDICIAL MEMBER / I .T.A. NO . 1405/MUM/2015 ( / ASSESSMENT YEAR : 2011 - 12 DOSTI CORPORATION (PINNACLE), NATVARLAL VEPARI & CO., CHARTERED ACCOUNTANTS, ORICON HOUSE, 4 TH FLOOR, 12, K. DUBASH MARG, FORT, MUMBAI - 400 023 / VS. THE ACIT, CIRCLE 12(1), 1 ST FLOOR, AAYAKAR BHAVAN, MUMBAI - 400 020 ./ ./ PAN/GIR NO. : AAGFD 2142J ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY: SHRI N. JAYENDRA / RESPONDENT BY: SHRI ANILKUMAR DHONDIAL / DATE OF HEARING : 15 .10. 2015 / DATE OF PRONOUNCEMENT : 15 .10 .2015 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST THE ORDER OF THE LD. CIT(A) - 28 , MUMBAI D ATED 1 6 .1 2 .201 4 PERTAINING TO ASSESSMENT YEAR 20 11 - 12 . 2. THE ASSESSEE HAS RAISED TWO SUBSTANTIVE GROUND S OF APPEAL. AT THE VERY OUTSET, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT HE IS NOT PRESSING GROUND NO.1, THE SAME IS DISMISSE D AS NOT PRESSED. ITA. NO. 1405/M/2015 2 3. GROUND NO. 2 RELATES TO THE DISALLOWANCE OF CLAIM U/S. 80IA(4)(III) OF RS. 4,53,09,687/ - . 3.1. THE ASSESSEE IS A BUILDER AND DEVELOPER. WHILE SCRUTINIZING THE RETURN OF INCOME, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS CLA IMED DEDUCTION U/S. 80IA(4)(III) OF THE ACT. WHILE VERIFYING THE CLAIM OF THE ASSESSEE, THE AO FOUND THAT THE SAID PROJECT HAS NOT RECEIVED APPROVAL FROM THE CBDT AND NOT NOTIFIED BY THE CENTRAL GOVERNMENT. THE AO FINALLY CONCLUDED BY OBSERVING THAT SIN CE ASSESSEES APPLICATION WAS STILL PENDING WITH CBDT AND THE NECESSARY NOTIFICATION IS NOT YET BEEN GRANTED. HENCE, THE ASSESSEE IS INELIGIBLE TO CLAIM DEDUCTION U/S. 80IA(4)(III) OF THE ACT. 4. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) BUT WITHOUT ANY SUCCESS. AT PARA - 4.5 OF HIS ORDER, THE LD. CIT(A) OBSERVED THAT THE ASSESSEE HAS NOT RECEIVED THE NOTIFICATION FROM CBDT, THEREFORE, NOT ELIGIBLE FOR THE DEDUCTION. 5. AGGRIEVED BY THIS, THE ASSESSEE IS BEFORE US. 6. THE LD. COUNSEL FOR TH E ASSESSEE FILED THE COPY OF THE NOTIFICATION ISSUED BY THE GOVERNMENT OF INDIA, MINISTRY OF FINANCE. THE SAID NOTIFICATION IS DATED 20 TH MAY, 2015 AND THE IMPUGNED ASSESSMENT ORDER IS DATED 28.3.2013 AND THE ORDER OF THE FIRST APPELLATE AUTHORITY IS DATE D 16.12.2014. OBVIOUSLY THIS NOTIFICATION COULD NOT BE MADE AVAILABLE TO THE LOWER AUTHORITIES. 7. SINCE THE ONLY REASON FOR DENYING THE CLAIM OF DEDUCTION WAS THAT THE PROJECT IS NOT NOTIFIED BY THE GOVERNMENT AND SINCE NOW THE ITA. NO. 1405/M/2015 3 NOTIFICATION HA S BEEN RE CEIVED, THE ASSESSEE IS ELIGIBLE FOR THE CLAIM OF DEDUCTION. HOWEVER, IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE RESTORE THIS ISSUE TO THE FILE OF THE AO. THE ASSESSEE IS DIRECTED TO FURNISH THE COPY OF THE NOTIFICATION BEFORE THE AO AND THE AO IS DIRE CTED TO VERIFY THE SAME, IF FOUND CORRECT SHOULD ALLOW THE CLAIM OF DEDUCTION. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON 15 TH OCTOBER , 2015 SD/ - SD/ - ( AMARJIT SINGH ) (N.K. BILLAIYA) /JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 15 TH OCTOBER , 2015 . . ./ RJ , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI