HUSSEIN ISMAIL DAWOODANI (LATE), MUMBAI V. DCIT 23(1), MUMBAI

ITA 194/MUM/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0424 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: H
• Assessment Year: 2011-2012
• Appeal Filed On: 09-01-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Business income; Competent authority
• Section: 80C; 80IB; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ' H ' BENCH, MUMBAI BEFORE SHRI SANDEEP GOSAIN, JUDICIAL MEMBER AND SHRI N.K. PRADHAN , ACCOUNTANT MEMBER ITA NO. 194 /MUM/ 2017 (ASSESSMENT YEAR: 2011 - 12 ) LATE HUSSEIN ISMAIL DAWOODANI REPRESENTED BY L/H MRS. SAKKER KHANU HUSSEIN DAWO ODANI NO. 161, BARA IMAM ROAD NULL BAZAR, MUMBAI 400003 VS. DCIT, CIRCLE - 23(1) AAYAKAR BHAVAN, M.K. ROAD MUMBAI 400020 PAN AAHPD7242E APPELLANT RESPONDENT CO NO. 298 /MUM/ 201 8 (ASSESSMENT YEAR: 2011 - 12 ) DCIT, CIRCLE - 23(1) AAYAKAR BHAVAN, M.K. ROAD MUMBAI 400020 VS. LATE HUSSEIN ISMAIL DAWOODANI REPRESENTED BY L/H MRS. SAKKER KHANU HUSSEIN DAWO ODANI NO. 161, BARA IMAM ROAD NULL BAZAR, MUMBAI 400003 PAN AAHPD7242E CROSS OBJECTOR APPELLANT IN APPEAL ASSESSEE BY: SHRI AYED ASHFAQ AHMED NADEEM AHMED LASANI REVENUE BY: SHRI CHAITANYA ANJARIA DATE OF HEARING: 02 .11.2018 DATE OF PRONOUNCEMENT: 27 . 11.2018 O R D E R PER SANDEEP GOSAIN, JM THIS APPEAL FILED BY ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT(A) - 28 , MUMBAI DATED 07 . 10 .201 7 AND IT RELATES TO A.Y. 2011 - 12 . THE REVENUE HAS ALSO FILED A CROSS OBJECTION WITH A PRAYER FOR RESTORATION OF THE ORDER OF THE ASSESSING OFFICER. 2 . AT THE TIME OF HEARING THE LEARNED A.R. FOR THE AS SESSEE SUBMITTED THAT HE IS NOT PRESSING GROUND NO. 1 REGARDING THE FAILURE OF THE CIT(A) IN ITA NO. 194 /M / 2017 & CO 298/M/2018 LATE HUSSEIN ISMAIL DAWOODANI 2 PROVIDING REASONABLE OPPORTUNITY TO PRESENT THE CASE AND DEMONSTRATE AND ESTABLISH THE WRITTEN SUBMISSIONS MADE BY THE ASSESSEE. ACCORDINGLY THIS GROUND IS DISMISS ED AS NOT PRESSED. 3 . GROUND NOS. 2 & 3 ARE INTERRELATED AND INTERCONNECTED AND RELATES TO CHALLENGING THE ORDER OF THE CIT(A) IN UPHOLDING THE ORDER OF THE AO IN DISALLOWING THE DEDUCTION OF ` 2,79,01.503/ - CLAIMED UNDER SECTION 80IB(10) OF THE INCOME TAX ACT, 1961 (HEREINAFTER 'THE ACT'). THEREFORE WE THOUGHT IT FIT TO DECIDE THE SAME THROUGH THE PRESENT CONSOLIDATED ORDER. 4 . BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HAD CLAIMED DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. HOWEVER, THE AO DISALLOWED THE SAID DEDUCTION BY HOLDING THAT THE ASSESSEE IS MERELY AN OWNER AND NOT A DEVELOPER AND THEREFORE NOT QUALIFIED FOR SEEKING DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. THE ASSESSEE SUBMITTED THAT AS PER SECTION 80IB(10) OF THE ACT IT IS PROVIDED THAT ASSESSEE, WHO IS THE ENGAGED IN DEVELOPING AND BUILDING HOUSING PROJECT SHALL BE ENTITLED TO CLAIM 100% DEDUCTION OF THE PROFIT DERIVED IN THE PREVIOUS FOR SUCH HOUSING PROJECT. IT WAS SUBMITTED THAT THE ASSESSEE WAS THE ABSOLUTE OWNER OF THE IMMOVABLE PROPERTY COMPRISING OF LAND ADMEASURING 13000 SQUARE METERS BEARING SURVEY NO. 199/4 AND SITUATED AT VILLAGE KAVESAR WITHIN THE PANCHAYAT SAMITI OF THANE DISTRICT, AND ZILLA PARISHAD OF THANE. FROM AND OUT OF THIS 13000 SQUARE METERS OF L AND THE ASSESSEE HANDED OVER 1550.10 SQUARE METERS OF LAND TO THE GOVERNMENT THROUGH THANE MUNICIPAL CORPORATION. THE REMAINING LAND OF 11449.90 SQUARE METERS WAS RETAINED BY THE ASSESSEE FOR DEVELOPING A HOUSING PROJECT, 'HOUSING FOR WEAKER SECTION'. IT W AS ALSO SUBMITTED THAT THE ASSESSEE ENTERED INTO A DEVELOPMENT AGREEMENT WITH M/S. LALANI DEVELOPERS ON 14 TH NOVEMBER 2006 ON SUCH TERMS AND CONDITIONS AS RECITED IN THE SAID DEVELOPMENT AGREEMENT. ONE OF THE CONDITIONS WAS THAT THE ASSESSEE WOULD BE ENTIT LED TO A BUILT - UP AREA OF 35% OF THE ENTIRE PROJECT WHICH COMPRISED OF 72 FLATS. THE A SSESSEE HAS SOLD THESE FLATS AND THE PROFIT EARNED ON THESE FLATS IS CLAIMED AS DEDUCTION UNDER SECTION 80IB (10) OF ACT . D URING THE YEAR IN QUESTION THE ASSESSEE ITA NO. 194 /M / 2017 & CO 298/M/2018 LATE HUSSEIN ISMAIL DAWOODANI 3 HAS SOLD SEVEN RESIDENTIAL FLATS FOR A TOTAL CONSIDERATION OF ` 2,85,55,365/ - AND THE NET INCOME FROM BUSINESS AFTER DEDUCTING EXPENSES IS ARRIVED AT ` 2,79,01,503/ - . THIS AMOUNT OF ` 2,79,01,503/ IS CLAIMED AS DEDUCTION UNDER SECTION 80IB(10) OF THE ACT . THE AO HAS RECITED VARIOUS CONDITIONS OF THE DEVELOPMENT AGREEMENT EXECUTED BETWEEN THE ASSESSEE AND THE DEVELOPER IN THE ASSESSMENT ORDER AND HAS DRAWN AN INFERENCE THAT THE ASSESSEE IS NOT INTO THE BUSINESS OF CONSTRUCTION OR DEVELOPMENT OF LANDS TO CLAIM A DEDUCTION UNDER SECTION 80IB(10) OF THE ACT AND THIS IS AS PER PARA NO. 5 .4 OF THE SAID ASSESSMENT ORDER WHICH IS EXTRACT ED AS UNDER: - 'FROM THE ABOVE SUBMISSION OF THE ASSESSES IT IS CLEAR THAT THE ASSESSEE IS NOT INTO BUSINESS OF CONSTRUCTION OR DEVELOPMENT OF LANDS TO CLAIM THE DEDUCTION UNDER SECTION 80IB AND THE LAND HAS BEEN GIVEN ON DEVELOPMENT TO M/S. LALANI DEVELOPERS WITH CERTAIN TERMS AND CONDITIONS AND IN TURN HE HAS T O RECEIVE 38457.50 SQUARE FEET CARPET AREA FLATS. CAPITAL GAIN WAS WORKED OUT ON THE SURRENDER OF LAND IN THIS DEVELOPMENT AGREEMENT WITH LALANI DEVELOPERS IN THE AY. 2007 - 2008 ITSELF. NOW THE CONSIDERATION ON SALE OF FLATS/UNITS/CAR PARKING HAS TO BE TA XED AS BUSINESS PROFIT/GAIN IN THE HANDS OF THE ASSESSEE AS THE INCOME IS GENERATED OUT OF AN ADVENTURE IN THE FORM OF DEVELOPMENT AGREEMENT WITH LALANI DEVELOPERS. THEREFORE THE RECEIPTS ARE TREATED AS BUSINESS RECEIPTS AND TAXED ACCORDINGLY.' THE AO HAS ALSO TAKEN THE ASSISTANCE OF A SUPREME COURT DECISION IN THE CASE OF LIBERTY INDIA VS. CIT TO SUBSTANTIATE HIS CASE. PARAGRAPH NO.5.7 OF THE SAID ASSESSMENT ORDER DATED 04 .30. 2013 IS RECITED AS UNDER: ' ...... AS HONORABLE SUPREME COURT HAS SAID SECTION 80IB(10) OF THE INCOME TAX ACT, 1961 ALLOWS A DEDUCTION WHICH IS PROFIT LINKED INCENTIVE. IN THIS CASE THE ASSESSEE HAS NOT DERIVED A PROFIT FROM THE ELIGIBLE BUSINESS. THE ASSESSEE WAS OWNER OF THE LAND ON WHICH THE ELIGIBLE PROJECT WAS CONSTRUCTED. THE A SSESSEE SOLD ITS DEVELOPMENT RIGHTS AND EARNED CAPITAL GAIN ON IT WHICH CANNOT BE CLAIMED AS OPERATIONAL PROFIT FROM ELIGIBLE BUSINESS. COINCIDENTLY THE EXAMPLE GIVEN BY THE SUPREME COURT HAS SAID IN EXAMPLE THAT IT IS OPERATIONAL PROFIT FROM SHIP BUSINESS WHICH GETS DEDUCTION UNDER THE PROVISIONS OF SECTION 80IB OF THE INCOME TAX ACT, 1961. THE OWNER OF SHIP WILL NOT GET DEDUCTION UNDER 80IB. SIMILARLY IN THIS CASE OWNER OF LAND (ASSESSEE) IS NOT ELIGIBLE FOR DEDUCTION U/S. 80IB(10) OF THE INCOME TAX ACT, 1961. THEREFORE DEDUCTION UNDER SECTION 801B(10) OF THE I. T. ACT, 1961 IS NOT ALLOWED ON THIS BUSINESS RECEIPTS.' ITA NO. 194 /M / 2017 & CO 298/M/2018 LATE HUSSEIN ISMAIL DAWOODANI 4 THE ASSESSEE PRAYED THAT THE ORDER OF ASSESSMENT FOR A.Y. 2011 - 12 IS BAD IN LAW AND ON FACTS. 5 . ON THE OTHER HAND, THE LEARNED D.R. RELIED UPO N THE ORDERS PASSED BY THE REVENUE AUTHORITIES. 6 . WE HAVE HEARD BOTH THE PARTIES, PERUSED THE RECORD AND ORDERS OF THE REVENUE AUTHORITIES. FROM THE RECORD WE FOUND THE 'DEVELOPMENT OF A HOUSING PROJECT' COMMENCES WITH THE ACQUISITION OF LAND, CONVERSION OF LAND, APPROVALS FROM VARIOUS APPROPRIATE AUTHORITIES, PLAN SANCTIONS, COMMENCEMENT OF CIVIL CONSTRUCTION SUPPORTED BY COMMENCEMENT CERTIFICATE, COMPLETION OF THE CIVIL CONSTRUCTION AND FINALLY IT HAS TO END WITH THE OBTAINING OF OCCUPANCY CERTIFICATE FROM THE APPROPRIATE AUTHORITIES. AS PER THE ASSESSEE THE CONCEPT OF CONSTRUCTING TENEMENTS FOR WEAKER SECTION WAS CONCEIVED BY HIM WAY BACK IN 2002. BEING AN ABSOLUTE OWNER OF A PARCEL OF CONVERTED - LAND, THE ASSESSEE MOVED AN APPLICATION IN THE PRESCRIBED FORM FOR CONSTRUCTION OF DWELLING UNITS FOR WEAKER SECTION AND LOW GROUP OF THE SOCIETY, AS PER THE GUIDELINES ISSUED BY THE GOVERNMENT OF MAHARASHTRA UNDER GOVERNMENT RESOLUTION NO. 1086/2340/XIII DATED 22 ND AUGUST 1996. THIS APPLICATION WAS MOVED TO THE SECR ETARY TO THE GOVERNMENT OF MAHARASHTRA, HOUSING AND SPECIAL ASSISTANCE DEPARTMENT, MANTRALAYA, MUMBAI 400032, ON 07.11.2002 THROUGH THE COMPETENT AUTHORITY (ULC), URBAN AGGLOMERATION. A COPY OF THE SAID LETTER DATED 07.11.2002 IS PLACED ON RECORD. S UBSEQUE NT TO THE AFORESAID APPLICATION MOVED BEFORE THE COMPETENT AUTHORITIES, THE ADDITIONAL COLLECTOR AND COMPETENT AUTHORITY (URBAN LAND CEILING) THANE URBAN AGGLOMERATION HAS ISSUED AN ORDER UNDER SECTION 20(L)(A) OF THE URBAN LAND (CEILING & REGULATION) ACT, 1976 DATED 14.01. 2003 BEARING REFERENCE NO. ULC/TA/W.S.H.S.20/1287, SPECIAL DISPENSATION SCHEME/SR , COPY PLACED ON RECORD. PURSUANT TO THE AFORESAID ORDER OF THE ADDITIONAL COLLECTOR THE ASSESSEE HANDED OVER 1550.10 SQUARE METERS OF LAND TO THE GOVERNMENT THROUGH THANE MUNICIPAL CORPORATION. THE SAME IS RECEIVED BY THE CONCERNED OFFICER VIDE HIS MEMO DATED 19.03. 2003 , COPY PLACED ON RECORD. THE THAHSILDAR, THANE VIDE HIS ORDERS/LETTER DATED ITA NO. 194 /M / 2017 & CO 298/M/2018 LATE HUSSEIN ISMAIL DAWOODANI 5 09.03. 2003 HAS ACKNOWLEDGED THE SURRENDER OF LAND TO THE EXTENT O F 1550.10 SQUARE METERS BY THE ASSESSEE . A COPY OF THE SAID LETTER IS A PART OF THE ANNEXURES). THE THANE MUNICIPAL CORPORATION VIDE THEIR SANCTION LETTER DATED 11.08. 2005 BEARING V. P. 2003/133, TMC/TDD 1957 HAS ISSUED 'SANCTION OF DEVELOPMENT PERMISSIO N/CERTIFICATE' TO THE ASSESSEE . A COPY OF THIS SANCTIONED LETTER IS PLACED ON RECORD. SUBSEQUENT TO THESE DEVELOPMENTS, THE ASSESSEE , IN ORDER TO TAKE THIS PROJECT FORWARD, HAVE ENTERED INTO DEVELOPMENT AGREEMENT WITH M/S. LALANI BUILDERS ON 14.11. 2006. ACCORDING TO THE ASSESSEE THE ENTIRE PROJECT WAS DEVELOPED BY HIM. THE ASSESSEE HAS ONLY GIVEN THE DEVELOPMENT RIGHTS TO THE DEVELOPER; TO PUT UP A CIVIL CONSTRUCTION AT HIS OWN COST, AN ENTIRE COST TILL THE COMPLETION OF THE ENTIRE PROJECT FOR WHICH HE I S PARTED WITH 65% OF THE BUILT - UP AREA AS HIS REMUNERATION OR RE - IMBURSEMENT OF COST. THE ASSESSEE HAS RETAINED THE REMAINING 35% OF THE SAID BUILT - UP AREA FOR HIMSELF. CLAUSE - G RECITED AT PAGE NO.4 OF THE DEVELOPMENT AGREEMENT CATEGORICALLY SPECIFIES TH AT THE DEVELOPER HAS APPROACHED THE ASSESSEE (OWNER) FOR THE GRANT OF DEVELOPMENT RIGHTS FOR CONSIDERATION. THE SAID CLAUSE IS REPRODUCED BELOW: - 'THE DEVELOPER BEING DESIROUS OF DEVELOPING THE SAID PROPERTY, HAVE REQUESTED THE OWNER TO GRANT THEM DEVELOP MENT RIGHTS AT OR FOR THE CONSIDERATION SET OUT HEREIN IN RESPECT OF THE SAID PROPERTY AND IN THIS BEHALF THE DEVELOPERS HAVE MADE CERTAIN REPRESENTATIONS AND GIVEN CERTAIN ASSURANCES TO THE OWNER.' FROM THE RECORD WE NOTICED THAT THE PROPERTY WAS NEVER PA RTED TO THE DEVELOPER DIRECTLY OR INDIRECTLY. THE ASSESSEE CONTINUED TO HAVE THE CONTROL OVER THE ENTIRE PROPERTY IN QUESTION AND THIS IS EVIDENT FROM C LAUSE NO. 28 RECITED AT PAGES 28 AND 29 WHICH IS REPRODUCED AS UNDER : - 'IT IS EXPRESS INTENTION OF THE PARTIES THAT BY EXECUTION THESE PRESENTS THE OWNER IS NOT TRANSFERRING OR INTENDING TO TRANSFER TO THE DEVELOPERS THE OWNERSHIP OR POSSESSION OF THE SAID PROPERTY OR ANY PART THEREOF TO THE DEVELOPERS. THIS AGREEMENT IS ALSO NOT A LEASE NOR AN AGREEMENT TO SELL THE SAID PROPERTY NOR IT IS INTENDED TO GIVE THE POSSESSION OF THE SAID PROPERTY TO THE DEVELOPERS UNDER THE SECTION 53 - A OF THE TRANSFER OF PROPERTY ACT, 1882. IT IS AGREED AND EXPRESSLY CLARIFIED THAT BARE PERMISSION AND LICENCE WILL BE GIVEN TO TH E DEVELOPERS TO ENTER UPON THE SAID PROPERTY FOR THE CONSTRUCTION OF THE ITA NO. 194 /M / 2017 & CO 298/M/2018 LATE HUSSEIN ISMAIL DAWOODANI 6 SAID BUILDING AND SELL ALL FLATS, OFFICES, GARAGES, SHOPS, CAR PARKING SPACES UNDER THE STILT/COVERED/OPEN IN THE SAID NEW BUILDING/S UPON THE TERMS, CONDITIONS AND PROVISIONS HEREIN CONTAINED.' THE ASSESSEE ALSO RECEIVED AN INTEREST FREE REFUNDABLE SECURITY DEPOSIT OF ` 50,00,000/ - (RUPEES FIFTY LAKHS ONLY) FROM THE DEVELOPER FOR ALLOWING TO ENTER UPON THE SAID PROPERTY FOR THE CONSTRUCTION OF THE PROPOSED BUILDINGS. THIS IS RECITED IN THE SAID DEVELOPMENT AGREEMENT AS PER CLAUSE - 3 (E) AT PAGE NO. 10. 7 . FROM THE CUMULATIVE FACTS AS NARRATED ABOVE AND FROM THE RECORD WE NOTICED THAT THE ASSESSEE IS THE ABSOLUTE OWNER OF THE IMMOVABLE PROPERTY COMPRISING OF A CONVERTED LAND MEASURING ABOUT 11449.90 SQUARE METERS BEARING SURVEY NO. 199/4 SITUATED AT KAVESAR VILLAGE, THANE DISTRICT. THE ASSESSEE MOVED AN APPLICATION THE ON 07.11. 2002 BEFORE THE APPROPRIATE AUTHORITY FOR CONSTRUCTION OF DWELLING UNITS FOR WEAKER SECTION AND LOW GROUP OF SOCIETY AS PER THE GUIDELINES ISSUED BY THE GOVERNMENT OF MAHARASHTRA UNDER GOVERNMENT RESOLUTION NO. 10 86/2340/XIII DATED 22.08. 1996. THE ASSESSEE HAD TO SURRENDER A PORTION OF LAND MEASURING 1550.10 SQUARE METERS IN PROCESS TO THE GOVERNMENT OF MAHARASHTRA. THE ASSESSEE RECEIVED A SANCTION OF DEVELOPMENT PERMISSION/CERTIFICATE FROM THE THANE MUNICIPAL CORP ORATION VIDE THEIR SANCTION LETTER DATED 11.08. 2005. CONSEQUENT TO THAT THE ASSESSEE ENTERED INTO A DEVELOPMENT AGREEMENT WITH THE DEVELOPER M/S. LALANI DEVELOPERS ON 14.11. 2006. AS PER THE AFORESAID DEVELOPMENT AGREEMENT THE ASSESSEE GRANTED RIGHTS TO THE DEVELOPER TO PUT UP A CIVIL CONSTRUCTION AND SHARE THE BUILT - UP AREA IN THE RATIO OF 65%: 35% WHEREIN THE DEVELOPER IS GIVEN 65% OF THE BUILT - UP AREA TOWARDS THE DEVELOPMENT OF THE PROPOSED BUILDINGS AT HIS OWN COST; AND THE REMAINING IS RETAINED BY THE A SSESSEE . THE ASSESSEE HAS ALSO RECEIVED AN INTEREST FREE REFUNDABLE SECURITY DEPOSIT OF ` 50,00,000/ - FROM THE DEVELOPER WHICH IS TO BE REFUNDED AFTER THE COMPLETION OF THE PROJECT AND ON PROCUREMENT OF OCCUPATION CERTIFICATE FROM THE APPROPRIATE AUTHORITIES. THE ASSESSEE HAS NOT SURRENDERED THE PROPERTY TO THE ITA NO. 194 /M / 2017 & CO 298/M/2018 LATE HUSSEIN ISMAIL DAWOODANI 7 DEVELOPERS AND HAS ONLY GIVEN BARE PERMISSIO N AND LICENCE TO THE DEVELOPER TO ENTER UPON THE SAID PROPERTY FOR THE CONSTRUCTION OF THE PROPOSED BUILDINGS. THE ASSESSEE HAS SOLD HIS SHARE OF RESIDENTIAL FLATS AND HAS CLAIMED THE INCOME ON SALE OF SUCH FLATS AS DEDUCTION UNDER SECTION 80IB(10) OF THE ACT . THE ASSESSEE HAS PROVED BEYOND DOUBT THAT THE CONCEPT OF CONSTRUCTING DWELLING UNITS FOR THE WEAKER SECTIONS WAS CONCEIVED BY HIM IN THE YEAR 2002 AND THE PROCESS OF GETTING APPROPRIATE SANCTIONS WAS COMMENCED ACCORDINGLY. THE APPROVAL AND INITIAL SAN CTIONS WERE RECEIVED IN AUGUST 2005. IT WAS ONLY WHEN THE QUESTION OF REQUIREMENT OF EXPERTISE IN CONSTRUCTION ACTIVITY AND WANT OF FUNDS TO ENABLE THE PROJECT AROSE, THAT M/S. LALANI DEVELOPERS WERE SHORT - LISTED AND GRANTED DEVELOPMENT RIGHTS. IT IS THE S UBMISSION OF THE ASSESSEE THAT HIS NOMENCLATURE CONTINUED TO BE THAT OF A DEVELOPER IN - SPITE OF EXECUTING A DEVELOPMENT AGREEMENT IN FAVOR OF M/S. LALANI DEVELOPERS. THE ASSESSEE IS THEREFORE ELIGIBLE FOR A CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT . THE ASSESSEE HAS GIVEN PERMISSION TO THE DEVELOPER TO ENTER UPON THE SAID PROPERTY FOR CONSTRUCTION OF THE PROPOSED BUILDING IN ACCORDANCE WITH THE SANCTIONED PLANS ITSELF GOES TO SHOW THAT OBTAINING SANCTION AND PUTTING UP PROPOSAL FOR CONSTRUCTION O N THE SAID LAND IS A PART OF DEVELOPMENT ACTIVITY . THUS IN THIS WAY ALSO THE INCOME EARNED FROM THIS DEVELOPMENT ACTIVITY IS ALLOWABLE UNDER SECTION 80IB(10) OF THE ACT. IN THIS REGARD WE DRAW STRENGTH FROM THE JUDGEMENT OF THE HON'BLE KARNATAKA HIGH COU RT IN THE CASE OF CIT VS. SHARVANEE CONSTRUCTIONS (2012) 209 TAXMAN 6 (KAR) IN WHICH IT WAS HELD AS UNDER: - 'IT IS NOT MERELY BUILDING HOUSING PROJECT, WHICH ATTRACTS THE PROVISION OF SECTION 80IB (10). IT IS DEVELOPING AND BUILDING HOUSING PROJECT, WHICH ATTRACTS THE PROVISION. IN THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS), THE DEVELOPMENT AND CONSTRUCTION ACTIVITIES UNDERTAKEN BY THE ASSESSEE ARE LISTED. IN TERMS OF THE AGREEMENT, THE ASSESSEE NOT ONLY UNDERTOOK THE AFORESAID DEVELOPMENT ACTIVITIES ON THE LAND IN QUESTION, BUT IN FACT, HE ENTERED INTO AN AGREEMENT OF SALE WITH THE OWNERS OF TH E LAND, PAID THE ENTIRE CONSIDERATION BUT HE DID NOT TAKE A REGISTERED SALE DEED IN HIS NAME. ON THE CONTRARY, THE PROCEDURE ADOPTED IS HE IN TURN ENTERED INTO A JOINT DEVELOPMENT AGREEMENT WITH THE BUILDER AND THE OWNER OF THE LAND WAS MADE A PARTY TO THE SAID PROCEEDINGS. THUS, THE ASSESSEE CONTRIBUTED THE LAND, UNDERTOOK THE AFORESAID DEVELOPMENTAL ACTIVITIES IN THE SAID ITA NO. 194 /M / 2017 & CO 298/M/2018 LATE HUSSEIN ISMAIL DAWOODANI 8 LAND AND THUS, COMPLIED WITH ALL OTHER CONDITIONS, WHICH HAVE TO BE FULFILLED BEFORE CLAIMING BENEFIT UNDER SECTION 80IB (10) OF THE AC T. THE BUILDER HAS INVESTED THE MONEY IN THE CONSTRUCTION. IT IS AFTER COMPLETION OF THE BUILDING IN TERMS OF THE AGREEMENT; THE ASSESSEE WAS GIVEN 22% SHARE OF THE BUILDING AREA. IT IS AFTER SALE OF THE BUILT AREA, IN TERMS OF SECTION 80IB (10), THE ASSES SEE IS CLAIMING DEDUCTION. AS IS CLEAR FROM THE JOINT DEVELOPMENT AGREEMENT, THE UNDERTAKING OF DEVELOPING AND BUILDING HOUSING PROJECT WAS JOINTLY UNDERTAKEN BY THE ASSESSEE AND THE BUILDER. THEREFORE, IN RESPECT OF THE RESIDENTIAL UNITS NUMBERING 211 IN ALL, THE PERSONS WHO UNDERTOOK THIS UNDERTAKING ARE ENTITLED TO THE BENEFIT OF SECTION 80IB (10) OF THE ACT IN PROPORTION TO THE SHARE TO WHICH THEY ARE ENTITLED TO IN THE BUILT UP AREA. IN THAT VIEW OF THE MATTER, THE CONTENTION OF THE REVENUE THAT THE AS SESSEE DID NOT UNDERTAKE ANY DEVELOPMENTAL OR BUILDING ACTIVITY AND THEREFORE, HE CANNOT INDIVIDUALLY CLAIM THE BENEFIT HAS NO SUBSTANCE. THAT IS NOT THE REQUIREMENT OF LAW. KEEPING IN MIND, THE OBJECT WITH WHICH THIS PROVISION IS INTRODUCED WHEN ALL PERSONS WHO HAVE MADE INVESTMENTS IN THIS HOUSING PROJECT WHICH IS FOR THE BENEFIT OF MIDDLE AND LOWER CLASS PEOPLE AND WHEN THEY HAVE COMPLIED WITH ALL THE CONDITIONS PRESCRIBED UNDER THE AFORESAID PROVISION, BOTH OF THEM ARE ENTITLED TO HUNDRED PERCENT B ENEFIT OF TAX DEDUCTION AS PROVIDED UNDER THE SAID PROVISION. IN THAT VIEW OF THE MATTER, THERE WAS NO MERIT IN THESE APPEALS. CONCLUSION IT IS NOT MERELY BUILDING HOUSING PROJECT, WHICH ATTRACTS THE PROVISION OF SECTION 80IB (10) BUT THE DEVELOPING AND BU ILDING HOUSING PROJECT, WHICH ATTRACTS THE PROVISION.' 8 . WE ALSO GET SUPPORT BY THE ORDER OF THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF ABDUL KHADER VS. ACIT (2012) 137 ITD 188 (BANG.) WHEREIN IT WAS HELD AS UNDER: - 'ON JOINT READING OF S. 80IB(10 ) AND EXPLANATION THERETO IT IS CLEAR THAT DEDUCTION AS IS ALLOWABLE TO AN UNDERTAKING DEVELOPING AND BUILDING HOUSING PROJECT APPROVED, IT IS NOWHERE MENTIONED THAT FOR CLAIMING THIS DEDUCTION, CONSTRUCTION HAS TO BE CARRIED OUT BY UNDERTAKER, MOREOVER EX PLANATION CLARIFIED, ANY UNDERTAKING WHICH EXECUTED HOUSING PROJECT AS WORKS CONTRACT AWARDED BY ANY PERSON IS NOT ELIGIBLE FOR CLAIMING SAID DEDUCTION WHICH CLEARLY SHOWS EVEN IF ANY UNDERTAKING IS CONSTRUCTING HOUSING PROJECT UNDER A WORKS CONTRACT ENTER ED BY PERSON IS NOT ELIGIBLE FOR DEDUCTION. ONLY REASON FOR DENYING THE DEDUCTION U/S 80IB(10) TO ASSESSEE WAS ASSESSEE HAD NOT CARRIED OUT ANY CONSTRUCTION ACTIVITY. ASSESSEE MADE CONTRIBUTION OF HIS CAPITAL IN SHAPE OF LAND AND INCURRED INITIAL EXPENSES FOR DEVELOPMENT AND BUILDING OF HOUSING PROJECT LIKE SANCTION OF PLAN, GETTING THE ELECTRICITY AND WATER CONNECTION BY MAKING PAYMENTS TO BWSSB AND KEB ETC. THEREFORE, MERELY ON BASIS ITA NO. 194 /M / 2017 & CO 298/M/2018 LATE HUSSEIN ISMAIL DAWOODANI 9 THAT ASSESSEE DID NOT CONSTRUCT HIMSELF WAS NOT A GROUND TO DENY DEDUCTI ON U/S 80IB(10), PARTICULARLY WHEN ASSESSEE HAD UNDERTAKEN OTHER WORK LIKE MAKING LAND USEFUL BY GETTING IT CONVERTED INTO NON - AGRICULTURAL PURPOSE AND GETTING PLAN SANCTIONED. ASSESSEE CONTRIBUTED LAND, UNDERTOOK DEVELOPMENT ACTIVITIES IN SAID LAND AND TH US COMPLIED WITH ALL OTHER CONDITIONS WHICH HAVE TO BE FULFILLED BEFORE CLAIMING BENEFIT U/S. 80IB(10). THEREFORE, ASSESSEE WAS ENTITLED FOR BENEFIT OF DEDUCTION U/S 80IB(10). FOLLOWING RATIO LAID DOWN IN CASE OF M/S. SHRAVANEE CO NSTRUCTION, ORDER PASSED BY CIT (A) IS SET ASIDE AND AO IS DIRECTED TO ALLOW DEDUCTION U/S. 8018(10).' WE FURTHER FOUND THAT THE DECISION OF THE HONBLE RAJASTHAN HIGH COURT IN THE CASE OF PR .CIT VS. PREM KURNAR SANGHI IN ITA NO. 120/ JP/ 2016 DATED 04.07.2017 IS SQUARELY APPLICABLE TO THE CASE OF THE ASSESSEE AND THIS IS FOLLOWED IN THE CASE OF PREM KUMAR SANGHI (THE SAME ASSESSE) BY THE ITAT, JAIPUR BENCHES IN ITA NO. 791/JP/2017, ORDER DATED 22.03. 2018. 9 . MOREOVER, THE ASSESSEE HAS ALSO SUBMITTED THE DETAILS OF DATES AND EVENTS OF T HE PROPERTY REGARDING WHICH THE DEVELOPMENT WAS CARRIED OUT BY THE ASSESSEE AND THE SAME ARE REPRODUCED BELOW: - DATE EVENT 05.01.1967 PURCHASED LAND BEARING SURVEY NO. 199, H NO. 4, SURVEY NO. 194, H. NO. 3 AND SURVEY NO. 195, H. NO. 2, VILLAGE KAVESAR, DISTRICT THANE, ADMEASURING AREA ABOUT 3 - 4 - 0 (A - G - A) ALONG WITH BY MR. HASAN KASAM ABBA AS PER SALE DEED DATED - 05.01.1967 DULY REGISTERED BEFORE THE OFFICE OF THE SUB - REGISTRAR OF ASSURANCES, THANE AS PER DOCUMENT BEARING NO. 23 OF BOOK - 1. 24.04.1967 & 27.12.1967 MOVED AN APPLICATION FOR THE CONVERSION OF THE SAID LAND FROM AGRICULTURE TO NON - AGRICULTURE USE. 10.04.1968 RECEIVED PERMISSION FROM THE ADDITIONAL COLLECTOR, THANE FOR CONVERTING THE SAID LAND TO NON - AGRICULTURE VIDE ORDER NO. RB.TV.NAP.SR.4 4/WS - 938 DATED 10 TH APRIL 1968. 26.02.1970 ENTERED INTO AN INDENTURE OF PARTITION WHERE THE CONJOINT OWNER MR. HASAN KASAM ABBA HAS RELEASED/RELINQUISHED ALL HIS UNDIVIDED SHARE, RIGHT, TITLE AND INTEREST IN THE PROPERTY. THIS PARTITION DEED IS DULY REGISTERED BEFORE THE OFFICE OF THE SUB - REGISTRAR OF ASSURANCE, MUMBAI UNDER SR. NO. BOM/1776/1/8/1970. BY VIRTUE OF THIS DEED, THE SAID MR. HUSSEIN ISMAIL DAWOODANI IS S EIZED & POSSESSED OF THE ENTIRE P R OPERTY. 22.07.2002 APPOINTED M/S. JOSHI DESHWARE & ASSOCIATES FOR OBTAINING NOG (NO OBJECTION CERTIFICATE) FROM URBAN LAND ITA NO. 194 /M / 2017 & CO 298/M/2018 LATE HUSSEIN ISMAIL DAWOODANI 10 CEILING DEPARTMENT FOR THE PROPOSED DEVELOPMENT ON THE LAND IN QUESTION. 04.10.2002 RECEIVED ORDER U/S. 8(4) OF ULC ACT FOR THE LAND BEARING NO. 194/3 (3870 SQUARE METERS), 195/2 (320 SQUARE METERS), 199/4 (13000 SQUARE METERS) THE TOTAL AREA OF THE 3 PLOTS WERE 17190. OUT OF THE SAID AREA 11973 SQUARE METERS IS DECLA RED AS SURPLUS AREA. 07.11.2002 APPLICATION FILED BEFORE THE SECRETARY, HOUSING AND SPECIAL ASSISTANCE DEPARTMENT, GOVERNMENT OF MAHARASHTRA, MANTRALAYA, MUMBAI (THROUGH THE COMPETENT AUTHORITY (ULC) URBAN AGGLOMERATION) FOR CONSTRUCTION OF TENEMENTS FOR WEAKER SECTION OF SOCIETY UNDER SECTION 20 OF THE URBAN LAND (CEILING & REGULATION) ACT 1976 AS PER GUIDELINES ISSUE D ON 22.08.1986. 16.11.2002 D ECLARATION AND INDEMNITY BY MR. HUSSEIN ISMAIL DAWOODANI FILED BEFORE APPROPRIATE AUTHORITIES AS A PART OF APPLICATION FOR CONSTRUCTION OF TENEMENTS FOR WEAKER SECTION OF SOCIETY UNDER SECTION 20 OF THE URBAN LAND (CEILING & R EGULATION) ACT 1976 . 14.01.2003 RECEIVED ORDER UNDER SECTION 20(1) (A) FROM THE OFFICE OF THE ADDITIONAL COLLECTOR AND COMPETENT AUTHORITY, THANE URBAN AGGLOMERATION COLLECTORATE, THANE EXEMPTING THE SAID VACANT LAND UNDER SECTION 20(1) (A) AS PER ORDERS D ATED 14 TH JANUARY 2003 BEARING NO. ULC/TA/W.S.H.S. 20/ 287. 19.03.2003 TABA PAUTI - HANDED OVER 1550.10 SQUARE METERS OF THE LAND IN QUESTION TO M AHARASHT RA SHASHAN (APPROPRIATE AUTHORITY, GOVERNMENT OF MAHARASHTRA) AS PER TABA PAUTI DATED 19 TH MARCH 2003. 10.04.2003 RECEIVED REVISED ORDER U/S. 20(1) OF ULC ACT, FOR HOUSING SCHEME FOR WEAKER SECTION BY ULC, THANE. THE SIZE OF EACH TENEMENT IS RESTRICTED TO 80 SQUARE METERS. 09.05.2003 OR DER DATED 9 TH MAY 2003 PASSED BY THE TAHASILDAR, THANE, CONFIRMING THE RECEIPT OF 1550.10 SQUARE METERS OF THE AREA SURRENDERED FROM PLOT BEARING NO. 199/4. 08.08.2005 PAID PLAN SANCTION FEE OF ` 3,22,245/ - BY DEMAND DRAFT BEARING NO. 326542 ISSUED BY DCB BANK, MUMBAI. 11.08.2005 RECEIVED SANCTION OF DEVELOPMENT PERMISSION /CERTIFICATE (SANCTION OF BUILDING PLAN) FROM THE OFFICE OF THE MUNICIPAL CORPORATION, THANE VIDE LETTER DATED 11 TH AUGUST 2005 BEARING CERTIFICATE NO. 2469. 4.11.2006 ENTERED INTO DEVELOPMENT AGREEMENT WITH M/S. LALANI DEVELOPERS TO DEVELOP THE PROPERTY AS PER SANCTIONED PLAN. 26.03.2007 RECEIVED REVISED SANCTION OF DEVELOPMENT PERMISSION/ CERTIFICATE (AMENDMENT PERMISSION] AND COMMENCEMENT CERTIFICATE AS PER CERTIFICATE NO. 3271 FROM THA NE MUNICIPAL CORPORATION. ITA NO. 194 /M / 2017 & CO 298/M/2018 LATE HUSSEIN ISMAIL DAWOODANI 11 30.01.2008 AFFIDAVIT OF HUSSEIN ISMAIL DAWOODANI FOR SURRENDERING 3283 SQUARE FEET OF BUILT - UP AREA COMPRISING OF FIVE FLATS OF WHICH THREE FLATS ARE SURRENDERED BY THE DEVELOPER AND TWO FLATS ARE SURRENDERED BY THE OWNER OF THE LAND. 07.10.2009 OCCUPANCY CERTIFICATE DATED 7 TH OCTOBER 2009 FOR B WING, C WING AND D WING ISSUED BY THANE MUNICIPAL CORPORATION. 31.03.2012 OCCUPANCY' CERTIFICATE DATED 7 TH OCTOBER 2009 FOR A WING ISSUED BY THANE MUNICIPAL CORPORATION. 10 . AFTER CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE WE ARE OF THE VIEW THAT SECTION 80 IB(10) OF THE ACT CLEARLY SPEAKS ABOUT THE DEDUCTION IN THE CASE OF AN UNDERTAKING DEVELOPING AND BUILDING HOUSING PROJECT AND SUCH A DEVELOPMENT OF HOUSING PRO JECT IS NOT POSSIBLE WITHOUT CONTRIBUTION OF LAND AND SPECIFIED PRE - APPROVED SANCTION. IN THE PRESENT CASE THE PROCESS OF ACQUISITION OF LAND BY THE ASSESSEE, CONVERSION FROM AGRICULTURAL TO NON - AGRICULTURAL, SEEKING STATUTORY APPROVALS BY THE ASSESSEE FOR THE PURPOSE OF CONSTRUCTION OF DWELLING UNITS/HOUSES FOR WEAKER SECTIONS FROM THE GOVERNMENT OF MAHARASTHRA, APPROPRIATE PLAN SANCTIONS, AND FINALLY THE GRANT OF BARE PERMISSION AND LICENCE TO THE DEVELOPER TO ENTER UPON THE PROPERTY FOR CONSTRUCTION OF T HE SAID BUILDING WAS ALSO FALLS WITHIN THE AMBIT OF UNDERTAKING OF DEVELOPMENT AND BUILDING HOUSING PROJECTS. THEREFORE, IN THIS WAY WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE IS ENTITLED FOR SEEKING DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. THER EFORE, IN VIEW OF THE ABOVE DISCUSSION WE SET ASIDE THE ORDER OF THE CIT(A) HOLDING THAT THE ASSESSEE IS NOT ENTITLED FOR DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. 11 . GROUND NO. 4: SINCE THE LEARNED A.R. HAS NOT RAISED ANY ARGUMENT ON THIS GROUND, THEREFOR E WE FIND NO MERIT IN THIS GROUND AND ACCORDINGLY DISMISS THE SAME . 12 . IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 13 . IN THE CROSS OBJECTION THE SOLITARY GROUND RAISED BY THE REVENUE READS AS UNDER: - ITA NO. 194 /M / 2017 & CO 298/M/2018 LATE HUSSEIN ISMAIL DAWOODANI 12 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ASSESSEE IS NOT ENTITLED TO DEDUCTION U/S. 80IB OF THE INCOME - TAX ACT, 1961, IN VIEW, INTER ALIA OF THE PROVISIONS OF SECTION 80AC WHEREIN IT IS PROVIDED THAT THE ASSESSEE IS REQUIRED TO FILE RETURN OF INCOME ON OR BEFORE THE DATE SPECIFIED IN SECTION 139(1) OF THE ACT. 14 . WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. IT WAS SUBMITTED BY THE LEARNED D.R. THAT THE ASSESSEE IS NOT ENTITLED TO DEDUCTION UNDER SECTION 80IB OF THE ACT IN VIEW OF THE PROVISIONS OF SECTION 80AC OF T HE ACT WHEREIN IT IS PROVIDED THAT THE ASSESSEE IS REQUIRED TO FILE RETURN OF INCOME ON OR BEFORE THE DATE SPECIFIED IN SECTION 139(1) OF THE ACT. ON THE CONTRARY, THE LEARNED A.R. APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED BEFORE US THAT THE AO HAS NOT DISCUSSED AND HAS NOT RAISED ANY SUCH OBJECTION AT THE TIME OF ADJUDICATING THE GROUND SEEKING DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. THEREFORE, IT WOULD BE PRESUMED THAT THIS GROUND WAS DECIDED AGAINST THE REVENUE. IN THIS RESPECT THE LEARNED A.R. RELIED UPON THE JUDGEMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF ITO VS. TECH SPAN INDIA PVT. LTD. IN CIVIL APPEAL NO. 2732 OF 2007. APART FROM THAT THE LEARNED A.R. FURTHER SUBMITTED THAT IDENTICAL GROUND HAS ALREADY BEEN DECIDED BY THE COORDINATE BE NCH OF THE TRIBUNAL IN THE CASE OF ITO VS. UMA DEVELOPERS IN ITA NO. 7718/MUM/2014 FOR A.Y. 2012 - 13 WHEREIN THE JUDICIAL MEMBER WAS ALSO PARTY TO THE SAID ORDER. OUR ATTENTION WAS DRAWN TO PARA 3.4.2 OF THE ORDER WHEREIN IT WAS HELD AS UNDER: - 3.4.2 ON A N APPRECIATION OF THE FINDINGS RENDERED BY THE LEARNED CIT(A) WHILE ALLOWING THE ASSESSEES APPEAL (SUPRA), WE OBSERVE THAT THE LEARNED CIT(A) HAS CONSIDERED AT LENGTH THE ISSUE OF WHETHER THE AOS DISALLOWANCE OF THE ASSESSEES CLAIM FOR DEDUCTION UNDER S ECTION 80IB(10) OF THE ACT, FOR THE REASON THAT THE RETURN OF INCOME FOR A.Y. 2012 - 13 WAS FILED BEYOND THE DUE DATE STIPULATED UNDER SECTION 139(1) OF THE ACT (BUT WAS FILED WITHIN THE TIME ALLOWED UNDER SECTION 139(4) OF THE ACT), IN VIEW OF THE PROVISION S OF SECTION 80AC OF THE ACT IS BEYOND THE SCOPE OF THE PROVISIONS OF SECTION 143(1) OF THE ACT. WE CONCUR WITH THE VIEW OF THE LEARNED CIT(A) THAT AS PER THE RATIO OF THE DECISIONS OF THE HON'BLE BOMBAY HIGH COURT IN TRUSTEES OF TULSIDAS GOPALJI CHARITABL E & CHALESHWAR TEMPLE TRUST (SUPRA) AND OF THE COORDINATE BENCH N THE YASH DEVELOPERS (SUPRA), EVEN IN CASES WHERE THE RETURN OF INCOME IS FILED BEYOND THE DUE DATE STIPULATED UNDER SECTION 139(1) OF THE ACT, THE DEDUCTION SHOULD NOT BE DISALLOWED UNDER SE CTION 143(1) OF THE ACT MERELY IN VIEW OF THE PROVISIONS OF SECTION 80C OF THE ACT. WE ALSO FIND ON A PERUSAL OF THE PROVISIONS OF ITA NO. 194 /M / 2017 & CO 298/M/2018 LATE HUSSEIN ISMAIL DAWOODANI 13 SECTION 143(1) OF THE ACT, THAT THE AOS ACTION IN DISALLOWING THE ASSESSEES CLAIM FOR DEDUCTION UNDER SECTION 80IB(10) OF T HE ACT, SINCE THE RETURN OF INCOME WAS FILED BEYOND THE PERIOD STIPULATED UNDER SECTION 139(1) OF THE ACT IN VIEW OF THE PROVISIONS OF SECTION 80AC, IS BEYOND THE SCOPE OF SECTION 143(1) SINCE THERE IS NEITHER AN ARITHMETICAL ERROR NOR AN INCORRECT CLAIM A PPARENT FROM THE RECORD. IN THIS VIEW OF THE MATTER, WE UPHOLD THE FINDING OF THE LEARNED CIT(A) THAT THE AO WAS NOT JUSTIFIED IN DISALLOWING THE ASSESSEES CLAIM FOR DEDUCTION UNDER SECTION 80IB(10) OF THE ACT AND HIS DIRECTION TO THE AO TO DELETE THE DIS ALLOWANCE THEREOF, MADE UNDER SECTION 143(1)(A)/143(1) OF THE ACT. CONSEQUENTLY, REVENUES GROUNDS OF APPEAL ARE DISMISSED. 15 . THE LEARNED D.R. ALSO RELIED UPON THE LATEST ORDER OF THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF SUKHKARTA DEVELOPERS AND B UILDERS IN ITA NOS. 596 & 597/NAG/2016 WHEREIN AT PARA 12 IT WAS HELD AS UNDER: - 12. FROM THE ABOVE EXPOSITION FROM THE HON'BLE JURISDICTIONAL HIGH COURT WHICH DULY HAS THE MANDATE FROM THE HON'BLE APEX COURT, IT TRANSPIRES THAT THE SUBMISSION OF RETURN WITHIN TIME AS SPECIFIED UNDER SUB SECTION (4) OF SECTION 139 HAS TO BE TAKEN AS SUFFICIENT COMPLIANCE FOR THE PROVISION OF THE INCOME TAX ACT, 1961, AS IT WAS EXPOUNDED THAT THE SUB SECTION (1) AND SUB SECTION (4) OF SECTION 139 HAVE TO BE READ TOGETHER A ND, HENCE, IT IS THE INEVITABLE CONCLUSION THAT A RETURN MADE WITHIN THE TIME SPECIFIED IN SUB SECTION (4) HAS TO BE CONSIDERED AS HAVING BEEN MADE WITHIN THE TIME PRESCRIBED IN SUB SECTION (1) OF THE ACT. 16 . AFTER HAVING GONE THROUGH THE FACTS OF PRESENT CASE AND AFTER PERUSING THE SUBMISSIONS OF BOTH THE PARTIES WE FOUND THAT IDENTICAL ISSUE HAS ALREADY BEEN DECIDED BY THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF UMA DEVELOPERS (SUPRA) WHEREIN IT WAS CATEGORICALLY HELD THAT THE CLAIM OF THE ASSESSE E CANNOT BE DISALLOWED UNDER SECTION 80IB(10) OF THE ACT ONLY ON THE GROUND THAT THE RETURN OF INCOME WAS FILED BEYOND THE PERIOD STIPULATED UNDER SECTION 139(1) OF THE ACT IN VIEW OF THE PROVISIONS OF SECTION 80AC OF THE ACT AS THE SAME IS BEYOND THE SCO PE OF SECTION 139(1) OF THE ACT THE SUBMISSION OF RETURN WITHIN TIME AS SPECIFIED UNDER SUB SECTION (4) OF SECTION 139 HAS TO BE TAKEN AS SUFFICIENT COMPLIANCE FOR THE PROVISION OF THE INCOME TAX ACT, 1961, AS IT WAS EXPOUNDED THAT THE SUB SECTION (1) AND SUB SECTION (4) OF SECTION 139 HAVE TO BE READ TOGETHER . HENCE, IT IS THE INEVITABLE CONCLUSION THAT THE RETURN OF INCOME FILED WITHIN THE TIME SPECIFIED IN SUB - SECTION (4) HAS TO BE CONSIDERED AS HAVING BEEN ITA NO. 194 /M / 2017 & CO 298/M/2018 LATE HUSSEIN ISMAIL DAWOODANI 14 FILED WITHIN THE TIME PRESCRIBED IN SUB SECTION (1) OF SECTION 139 OF THE ACT. WE FURTHER FOUND THAT THE ORDERS PASSED BY THE COORDINATE BENCH OF THE TRI ARE BASED ON THE JUDGEMENT OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF TULSIDAS GOPALJI CHARITABLE & CHALESHWAR TEMPLE TRUST (207 ITR 368 ). THEREFORE BY FOLLOWING THE SAID DECISION WE DISMISS THE CROSS OBJECTION FILED BY THE REVENUE. 17 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED AND THE CROSS OBJECTION FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH NOVEMBER, 2018 . SD/ - SD/ - ( N.K. PRADHAN ) ( SANDEEP GOSAIN ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 27 TH NOVEMBER, 2018 COPY TO: 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) - 28 , MUMBAI 4 . THE PR. CIT - 17 , MUMBAI 5 . THE DR, H BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.