SIDDHESHWAR SKYRISE VENTURES, THANE V. ACIT CIR 3, THANE

ITA 1631/MUM/2011

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9437 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 11 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 16-02-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 25-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAY KUMAR BORA
• Assessee Lawyers: V MOHAN
• Section: 80IB

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL H BE NCH, MUMBAI ! , ' #$ % && , #$ ' BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER ./I .T.A. NOS. 1631 & 1633/MUM/2011 ( ( ( ( ( / ASSESSMENT YEARS : 2005-06 & 2007-08 SIDDHESHWAR SKYRISE VENTURES, SIDDHESHWAR ARCADE, OPP. SURAJ WATER PARK, G.B. ROAD, THANE / VS. THE ACIT, CIRCLE-3, THANE $) ' ./ %* ./ PAN/GIR NO. : AAZFS 1863Q ( )+ / APPELLANT ) .. ( ,-)+ / RESPONDENT ) )+ . / APPELLANT BY: SHRI V. MOHAN ,-)+ / . / RESPONDENT BY: SHRI VIJAY KUMAR BORA / 01' / DATE OF HEARING :16.02.2015 23( / 01' / DATE OF PRONOUNCEMENT :16.02.2015 #4 / O R D E R PER N.K. BILLAIYA, AM: THESE TWO APPEALS BY THE ASSESSEE ARE AGAINST TWO S EPARATE ORDERS OF THE LD. CIT(A)-1, THANE DT. 29.9.2010 PERTAINING TO ASSESSMENT YEARS 2005-06 AND 2007-08. BOTH THESE APPEALS HAVE COMMO N GRIEVANCE, THEREFORE THEY WERE HEARD TOGETHER AND DISPOSE OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. ITA NOS. 1631 & 1633/M/2011 2 2. THE COMMON GRIEVANCE IS THAT THE LD. CIT(A) ERRE D IN CONFIRMING THE DISALLOWANCE OF BENEFIT OF DEDUCTION U/S. 80-IB CLAIMED IN THE ASSESSMENT. 3. FOR THE SAKE OF CONVENIENCE, WE ARE CONSIDERING THE FACT OF ASSESSMENT YEAR 2005-06. THE RETURN WAS FILED ON 2 9.10.2005. THE ASSESSEE IS A JOINT VENTURE BETWEEN TWO PARTNERSHIP FIRMS I.E. SIDDESHWAR CORPORATION AND M/S. SKYRISE VENTURES. THE ASSESSE E IS ENGAGED IN DEVELOPING HOUSING PROJECT. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS CLAIMED DEDUCTION U/S. 80IB(10) ON IT S PRJECT SITUATED AT DEWANCHAND HANSRAJ COMPOUND, NEAR DHOKALI NAKA, KOL SHET ROAD, THANE. THE ASSESSING OFFICER NOTICED THAT THE PROJ ECT OF THE ASSESSEE WAS APPROVED BY THE LOCAL AUTHORITY ON 29.3.2003. THE AO WAS OF THE OPINION THAT IN RESPECT OF PROJECT APPROVED BY THE LOCAL AU THORITY BEFORE 1.4.2004 AS PER THE PROVISIONS OF SEC. 80IB(10), IT SHOULD BE COMPLETED ON OR BEFORE 31.3.2008. THE AO FURTHER OBSERVED THAT THE DATE OF COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORITY HAS TO BE TREATED AS THE DATE OF COMPLETION OF THE PROJECT. ON FINDING NO CERTIFICAT E OF COMPLETION, THE AO CONCLUDED THAT THE PROJECT OF THE ASSESSEE WAS N OT COMPLETED ON OR BEFORE 31.3.2008. THE AO PROCEEDED BY DENYING CLAI M OF DEDUCTION U/S. 80IB OF THE ACT. 4. AGGRIEVED BY THIS, THE ASSESSEE CARRIED THE MATT ER BEFORE THE LD. CIT(A) BUT WITHOUT ANY SUCCESS. 5. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE STRO NGLY SUBMITTED THAT THE REVENUE AUTHORITIES HAVE PROCEEDED ON INCORRECT INTERPRETATION OF THE PROVISIONS OF SEC. 80IB(10) OF THE ACT. INITIALLY THE ONLY MANDATORY CONDITION FOR CLAIMING DEDUCTION U/S. 80IB(10) OF T HE ACT WERE (A) THE HOUSING PROJECT SHOULD BE COMMENCED ON OR AFTER 1 ST DAY OF OCTOBER, ITA NOS. 1631 & 1633/M/2011 3 1998 (B) THE SIZE OF THE PLOT OF LAND SHOULD HAVE M INIMUM AREA OF ONE ACRE AND (C) THE RESIDENTIAL UNIT MUST HAVE BUILT U P AREA OF NOT EXCEEDING 1000 SQ. FT WHERE SUCH RESIDENTIAL UNIT IS SITUATED WITHIN THE CITY OF DELHI OR MUMBAI OR WITHIN 25 KMS. FROM THE LIMIT OF MUNIC IPAL CITIES AND 1500 SQUARE FEET AT ANY OTHER PLACE. IT IS THE SAY OF THE LD. COUNSEL THAT THE PROJECT HAS BEEN APPROVED AND IT IS NOT IN DISP UTE ON 29.3.2003 WHEREAS THE AMENDMENT WAS BROUGHT U/S. 80IB(10) BY THE FINANCE ACT ( NO- 2) 2004, W.E.F. 1.4.2005. THE LD. COUNSEL POIN TED OUT THAT IN A SERIES OF DECISION, IT HAS BEEN HELD THAT PROJECT STARTED PRIOR TO 1.4.2005 WOULD NOT BE COVERED BY THE AMENDED PROVISIONS OF SEC. 80 (IB)10 OF THE ACT. THE LD. COUNSEL RELIED UPON THE DECISION OF THE HON BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS SAI KRUPA DEVELOPERS I N ITA NO. 1540 OF 2012 AND ON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS CHD DEVELOPERS IN ITA NO. 298/2013. 6. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE COULD NOT BRING ANY DISTINGUISHING DECISION IN FAVOUR OF THE REVENU E. 7. WE HAVE CONSIDERED THE ORDERS OF THE AUTHORITIES BELOW. IT IS NOT IN DISPUTE THAT THE PROJECT OF THE ASSESSEE WAS APPROV ED BY THE LOCAL AUTHORITY ON 29.3.2003 WHICH MEANS THAT THE PROJECT WAS APPROVED PRIOR TO 1.4.2005, THUS THE AMENDED PROVISION DID NOT APP LY ON THE FACTS OF THE CASE IN HAND. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF SAI KRUPA DEVELOPERS (SUPRA) HAS FOLLOWED ITS OWN DECISION GI VEN IN THE CASE OF CIT-16 VS HAPPY HOME ENTERPRISES IN INCOME TAX APPE AL NO. 201 OF 2012, WHEREIN THE HONBLE BOMBAY HIGH COURT HAS HEL D THAT AMENDMENTS BROUGHT TO THE PROVISIONS OF SEC. 80IB(1 0) BY THE FINANCE ACT. NO. 2 OF 2004 ARE PROSPECTIVE AND WOULD NOT AP PLY TO THE PROJECTS APPROVED PRIOR TO 1.4.2005. A SIMILAR VIEW HAS BEE N TAKEN BY THE HONBLE DELHI HIGH COURT IN THE CASE OF CHD DEVELO PERS (SUPRA). ITA NOS. 1631 & 1633/M/2011 4 RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND DIRECT THE AO TO ALLOW THE CLAIM OF DEDUCTION U/S. 80IB(10) OF THE A CT. 8. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASS ESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON 16 TH FEBRUARY, 2015 SD/- SD/ . (SANJAY GARG ) (N.K. BILLAIYA) #$ /JUDICIAL MEMBER ' #$ / ACCOUNTANT MEMBER MUMBAI; 5# DATED : 16 TH FEBRUARY, 2015 . . ./ RJ , SR. PS #4 #4 #4 #4 / // / ,0 ,0 ,0 ,0 6(0 6(0 6(0 6(0 / COPY OF THE ORDER FORWARDED TO : 1. )+ / THE APPELLANT 2. ,-)+ / THE RESPONDENT. 3. 7 ( ) / THE CIT(A)- 4. 7 / CIT 5. 8& ,0 , , / DR, ITAT, MUMBAI 6. &9 : / GUARD FILE. #4 #4 #4 #4 / BY ORDER, -0 ,0 //TRUE COPY// ; ;; ; / < < < < % % % % (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI