ADDL CIT RG 15(3), MUMBAI V. SHAH BUILDERS & DEVELOPERS, NAVI MUMBAI

ITA 1983/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83900 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 14-10-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 26-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S ATISH CHANDAK
• Assessee Lawyers: PERMANAND J

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH E, MUMBAI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO. 1983/MUM/2012 ASSESSMENT YEAR: 2008-09 ADDL. CIT RG-15(3) R. NO. 122 MATRU MANDIR, 1 ST FLOOR TARDEO MUMBAI VS. M/S. SHAH BUILDERS & DEVELOPERS 323 TO 329, ARNEJA CORNER, PLOT NO. 71, SECTOR-17, VASHI (WEST), NAVI MUMBAI 400 705 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI PERMANAND J. REVENUE BY : SHRI SATISH CHANDAK DATE OF HEARING : 14.10.2014 DATE OF PRONOUNCEMENT : 14.10.2014 O R D E R PER I.P. BANSAL, JM: THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER THE PASSED BY THE LD.CIT(A)-26, MUMBAI DATED 13.01.2012 OF A.Y. 2 008-09. 2. GROUNDS OF APPEAL ARE READ AS UNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND LAW, THE LD.CIT(A) HAS ERRED IN ALLOWING THE ASSESSEES CLAI M OF DEDUCTION UNDER SECTION 80IB(10) IN RESPECT OF ITS PROJECT NAMED SH AH ARCADE WITHOUT CONSIDERING THE FACT THAT THE ASSESSEE HAS NOT FULF ILLED ALL THE CONDITIONS LAID DOWN IN SECTION 80IB(10) AND IN IGNORING THE FACT T HAT CLAUSE (D) IS APPLICABLE WITH EFFECT FROM 01.04.2005 IRRESPECTIVE OF THE ATE OF APPROVAL OF THE PROJECT; ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND LAW, THE LD.CIT(A) HAS ERRED IN ALLOWING THE ASSESSEES CLAIM OF ADDITIONA L DEDUCTION UNDER SECTION 80IB(10) IN RESPECT OF ITS PROJECT NAMES SHAH ARCAD E AMOUNTING TO RS.35,53,417/- (INCLUDED IN THE REVISED CLAIM OF RS .3,54,23,579/- WITHOUT APPRECIATING THE FACT THAT THE SAME HAD NOT BEEN CL AIMED IN THE RETURN OF INCOME AND IS, THEREFORE, NOT ADMISSIBLE IN VIEW OF THE PROVISIONS OF SECTION 80A(5), WHICH HAVE BEEN AMENDED RETROSPECTIVELY. ITA NO. 1983/MUM/2012 M/S. SHAH BUILDERS & DEVELOPERS ASSESSMENT YEAR: 2008-09 2 3. THE ASSESSEE IS IN THE BUSINESS OF BUILDING AND CONSTRUCTION ACTIVITIES ON WHICH DEDUCTION U/S 80IB(10) WAS CLAIMED FOR AN AMO UNT OF RS.3,18,70,162/- WHICH HAS BEEN DISALLOWED BY THE AO. THE DISALLOWANCE WAS AGITATED IN THE APPEAL FILED BEFORE THE LD.CIT(A) BEFORE WHOM REVISED AMOUNT OF RUPEES U/S 80IB(10) WAS CLAIMED AT RS.3,54,23,579/-. LD.CIT(A) HAS ALLOWE D SUCH CLAIM OF THE ASSESSEE FOLLOWING THE ORDER OF THE ITAT IN ASSESSEES OWN C ASE FOR A.Y. 2007-08 AND 2006-07 RELEVANT OBSERVATIONS OF THE LD.CIT(A) ARE AS UNDER :- GROUND NO.1 IS AGAINST THE CLAIM OF DEDUCTION U/S. 80-IB. IN THE ORIGINAL RETURN, THE ASSESSEE CLAIMED DEDUCTION U/S . 80-IB OF RS. 3,18,70,160/-, WHICH WAS NOT ALLOWED BY THE AO ON T HE GROUND THAT SIMILAR CLAIM OF DEDUCTION U/S. 80-IB(10) HAS BEEN DENIED T O THE ASSESSEE IN INITIAL ASSESSMENT YEAR 2005-06. THE AD HAS STATED IN THE A SSESSMENT ORDER THAT THE CIT(A) HAS ALLOWED DEDUCTION IN A.Y. 2007-08, B UT REVENUE HAS NOT ACCEPTED THE SAID ORDER OF THE CIT(A) AND IS IN APP EAL BEFORE THE ITAT. THE AO HAS FURTHER OBSERVED THAT LIKE IN A.Y. 2007-08, FACTS ARE THE SAME DURING THE CURRENT YEAR ALSO AND THERE IS VIOLATION OF CLA USE (E) OF SECTION 80-IB(10) AS THE COMMERCIAL BUILT UP AREA HAS MORE THAN THE S PECIFIED LIMIT. THEREFORE, FOLLOWING THE ORDER OF EARLIER YEARS, THE AO HAS DE NIED THE CLAIM OF DEDUCTION THIS YEAR ALSO. I HAVE CAREFULLY CONSIDERED THE FINDINGS OF THE AO AS WELL AS THE SUBMISSIONS OF THE APPELLANT. IT IS NOTED THAT THE AO HAS NOT M ADE ANY OBSERVATION AT ALL ON THE SUBMISSION OF THE APPELLANT IN THIS REGARD. I DO AGREE WITH THE APPELLANT THAT IT IS AN ESTABLISHED PRINCIPLE OF LA W THAT THE SAME INCOME CANNOT BE ASSESSED IN THE HANDS OF THE SAME PERSON IN TWO ASSESSMENT YEARS. THEREFORE THAT PART OF PROFIT ON COST OF LAN D, WHICH HAS ALREADY BEEN ASSESSED BY THE AO IN A.Y. 2006-07 AND 07-08 AMOUNT ING TO RS. 14,87,987/- IN RESPECT OF 'SHAH CORNER' PROJECT AND RS. 32,08,2 30/- IN RESPECT OF ' SHAH HEIGHTS' PROJECT CANNOT BE AGAIN TAXED IN THE CURRE NT YEAR 2008-09 SIMPLY BECAUSE, THE APPELLANT DISCLOSED THIS INCOME DURING THIS YEAR. IT IS A FACT ON RECORD THAT THE AO HAS TAXED THESE TWO AMOUNTS IN E ARLIER YEARS I.E. A.YS. 2006-07 & 07-08 AND THE APPELLANT HAS NOT FILED ANY APPEAL MEANING THEREBY IT HAS ACCEPTED OCCURRENCE OF THIS INCOME IN A.Y. 2 006-07 AND 07-08, THEN IT DESERVES A APPROPRIATE RELIEF DURING THE CURRENT YE AR I.E. A.Y. 2008-09. ACCORDINGLY, THE AO IS DIRECTED TO RE-COMPUTE THE I NCOME AND ALLOW RELIEF IN RESPECT OF THESE TWO AMOUNTS ALREADY ASSESSED IN EA RLIER YEARS. 4. THE DEPARTMENT IS AGGRIEVED HENCE HAS FILED AFOR EMENTIONED GROUNDS OF APPEAL. 5. AT THE OUTSET IT WAS SUBMITTED BY LD. AR THAT LD .CIT(A) HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE FOLLOWING THE ITATS ORDE R IN CASE OF ASSESSEE IN RESPECT ASSESSMENT YEAR 2005-06, 2006-07 AND 2007-08, REFER ENCE WAS MADE TO THE FOLLOWING TWO ORDERS:- ITA NO. 1983/MUM/2012 M/S. SHAH BUILDERS & DEVELOPERS ASSESSMENT YEAR: 2008-09 3 (I) ORDER DATED 06.05.2011 IN ITA NO. 3195, 3196/MU M/2010 A.Y. 2005-06, 2006-07 (II) ORDER DATED 30.11.2011 IN ITA NO. 6250/MUM/201 0 A.Y. 2007-08. 6. COPY OF BOTH THESE ORDERS WERE PLACED ON RECORD AND WERE ALSO GIVEN TO LD.DR. 7. THE MATTER WAS KEPT BACK AND LD. DR WAS REQUIRED TO STATE THAT WHETHER THE ISSUE RAISED BY THE REVENUE IN THE PRESENT APPEAL I S COVERED BY AFOREMENTIONED DECISIONS OF ITAT. LD. DR AFTER GOING THROUGH THE AFOREMENTIONED ORDERS OF THE TRIBUNAL SUBMITTED THAT THE ISSUE IS COVERED BY THE AFOREMENTIONED DECISIONS. 8. IN THIS VIEW OF THE SITUATION, AFTER HEARING BOT H THE PARTIES, AS THE ISSUES HAVE BEEN DECIDED BY LD.CIT(A) IN ACCORDANCE WITH THE AF OREMENTIONED DECISION OF TRIBUNAL IN ASSESSEES OWN CASE, WE DECLINE TO INT ERFERE IN THE RELIEF GRANTED BY LD.CIT(A) TO THE ASSESSEE. THE RELEVANT OBSERVATION S OF LD.CIT(A) HAVE ALREADY BEEN REPRODUCED FOR THE COMPLETENESS OF THE MATTER. ACC ORDINGLY DEPARTMENTAL APPEAL IS DISMISSED. 9. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. 0 ORDER PRONOUNCED IN THE OPEN COURT ON THIS 14 TH DAY OF OCTOBER, 2014. SD/- SD/- (R. C. SHARMA) (I. P. BANSAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 14.10.2014 *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR E BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.