SATYAM CONSTRUCTIONS, MUMBAI V. ITO WD 12(1)(2), MUMBAI

ITA 1482/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 9331 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2004-2005
• Appeal Filed On: 04-03-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NAVEEN GUPTA
• Assessee Lawyers: M SUBRAMANIAN
• Keywords: Competent authority

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E MUMBAI BEFORE SHRI T.R.SOOD, AM & SMT. P.MADHAVI DEVI, JM I.T.A.NOS.1482 & 1483/MUM/2009 A.YRS. 2004-05 & 2005-06 M/S SATYAM CONSTRUCTIONS, ROOM NO.11, MOHTA MARKET, PHALTON ROAD, MUMBAI 4000 001 PAN NO.AAVF8390L VS. INCOME TAX OFFICER 12 (1)(2), MUMBAI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI M. SUBRAMANIAN. REVENUE BY : SHRI NAVEEN GUPTA. O R D E R PER P.MADHAVI DEVI, JM: THESE APPEALS OF THE ASSESSEE ARE DIRECTED AGAINST CIT(A)S SEPARATE ORDERS DATED 18/12/2008 FOR THE A.YRS. 200 4-05 AND 2005-06. 2. THE COMMON GROUNDS RAISED IN BOTH THE APPEALS AR E AS UNDER- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E & IN LAW, THE LEARNED ITO WARD 12(1)(2), MUMBAI ERRED IN DISALLOW ING THE DEDUCTION U/S.80IB(10) OF THE INCOME TAX ACT, 1961. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E & IN LAW, THE LEARNED ITO WARD 12(1)(2), MUMBAI ERRED IN CALCULAT ING THE AREA OF THE FLATS AND NOT CONSIDERING THE AREA APPR OVED BY THE PUNE MUNICIPAL CORPORATION, THE COMPETENT AUTHORITY . 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E & IN LAW, THE LEARNED ITO WARD 12(1)(2), MUMBAI ERRED IN REJECTIN G THE PLEA OF THE APPELLANT THAT THE PROJECT IS HOUSING PROJE CT AS APPROVED BY PUNE MUNICIPAL CORPORATION. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E & IN LAW, THE LEARNED ITO WARD 12(1)(2), MUMBAI ERRED IN DETERMIN ING THAT THE PROJECT IS IN VIOLATION OF CONDITIONS IMPOSED B Y LOCAL AUTHORITY AND NOT ACCORDING TO THE PLANS APPROVED B Y THE LOCAL AUTHORITY, WITHOUT CONSIDERING THE ARCHITECTS CERT IFICATE. 2 3. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS ISSUE IS COVERED BY THE DECISIO N OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF BRAHMA ASSOCIA TES REPORTED IN 119 ITD 265 (S.B) (PUNE). THE LD. DR THOUGH FAIRLY ADMI TTED THAT THE ISSUE IS COVERED, HE PLACED RELIANCE ON THE ORDERS OF THE AUTHORITIES BELOW. 4. HAVING HEARD BOTH THE PARTIES AND HAVING CONSIDE RED THEIR RIVAL CONTENTIONS, WE ARE IN AGREEMENT WITH THE CONTENTIO NS OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE ISSUE IS COVERED BY THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF BR AHMA ASSOCIATES [CITED SUPRA] WHEREIN IT HAS BEEN HELD THAT HOUSING PROJECTS ENTITLED FOR DEDUCTION U/S.80IB(10) ARE HELD TO INCLUDE COMMERCI AL AREA. THE LD. COUNSEL HAD ALSO PLACED BEFORE US A COPY OF THE DEC ISION OF E BENCH OF THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR THE A.Y 2003-04 IN WHICH THE DECISION OF THE SPECIAL BENCH IN BRAHMA ASSOCIA TES CITED SUPRA, HAS BEEN FOLLOWED. THEREFORE, RESPECTFULLY FOLLOWING TH E DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF BRAHMA ASSOCIATES [CITED SUPRA, ASSESSEES GROUNDS OF APPEALS ARE ALLOWED. 5. IN THE RESULT, ASSESSEES APPEALS ARE ALLOWED. ORDER PRONOUNCED ON THIS 29 TH DAY OF JANUARY, 2010. SD/- SD/- (T.R.SOOD) (P.MADHAVI DEVI) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI: 29 TH JANUARY, 2010. 3 P/-* COPY TO- 1) APPELLANT 2) RESPONDENT 3) CITA MUMBAI. 4) CIT CITY MUMBAI 5) DR BENCH MUMBAI TRUE COPY BY ORDER DY /ASST.REGISTRAR,ITAT MUMBAI. SR.NO. PARTICULARS DATE INITIALS 1 DRAFT DICTATED ON 28-1-10 P 2 DRAFT PLACED BEFORE AUTHOR 29-1-10 P 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 5 APPROVED DRAFT COMES TO SR.PS/PS 6 ORDER KEPT FOR PRONOUNCEMENT 7 FILE SENT TO BENCH CLERK 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER