ACIT 24(2), MUMBAI V. SUMMAIYA ENTERPRISES, MUMBAI

ITA 1986/MUM/2010

• Counselvise Citation: 198619914 RSA 2010
• Duration Of Justice: 1 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-04-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2001-2002
• Appeal Filed On: 11-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M P MAKHIJA
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D: MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER I.T.A. NO. 1986/MUM/2010 - ASSESSMENT YEAR 2001-200 2 I.T.A. NO. 1987/MUM/2010 - ASSESSMENT YEAR 2003-200 4 DCIT 24 (2) MUMBAI-400 051. VS. M/S. SUMMAIYA ENTERPRISES MUMBAI 400 097 PAN AAGFS8814E (APPELLANT) (RESPONDENT) FOR APPELLANT : SHRI SENTHIL KUMAR (CIT/DR) SHRI JITENDRA YADAV (CIT/DR) FOR RESPONDENT : SHRI M.P. MAKHIJA ORDER PER D. MANMOHAN, V.P. 1. THESE TWO APPEALS ARE FILED AT THE INSTANCE OF THE REVENUE. COMMON GROUND URGED IN BOTH THE APPEALS READS AS UN DER : ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LEARNED CIT(A) ERRED IN DIRECTING THE A.O. TO ALLOW DEDUCTION U/S. 80IB (10) TO THE ASSESSEE, AS THE ASSESSEES PROJECT WAS RESIDENTIAL AND NOT COMMERCI AL AND THE AMENDMENT OF FINANCE ACT ON THIS ISSUE CAME INTO EFFECT FROM 01-04-2005 ONLY. 2. FACTS NECESSARY FOR THE DISPOSAL OF THE APPEAL ARE AS FOLLOWS. THE ASSESSEE-FIRM WAS ENGAGED IN THE BUSINESS OF CO NSTRUCTION AND DEVELOPMENT OF PROPERTY. IN HIS CAPACITY AS A DEVEL OPER ASSESSEE CLAIMED DEDUCTION UNDER SECTION 80IB (10) OF THE ACT ON THE GROUND THAT THE PROJECT CONSISTS OF RESIDENTIAL UNITS ON WHICH IT IS ENTITL ED TO CLAIM EXEMPTION. THE CASE OF THE REVENUE IS THAT THE PROJECT CONSISTS OF RESIDENTIAL AND COMMERCIAL UNITS AND THEREFORE, ASSESSEE IS NOT ENTITLED TO EX EMPTION UNDER SECTION 80IB OF THE ACT. 3. ON AN APPEAL FILED BY THE ASSESSEE, LEARNED CIT (A) FOLLOWED THE DECISION OF THE ITAT, PUNE, SPECIAL BENCH IN THE CA SE OF BRAHMA ASSOCIATES TO HOLD THAT THE SHOPPING AREA OF THE PROJECT BEING LESS THAN 10%, ASSESSEE- FIRM IS ELIGIBLE TO CLAIM EXEMPTION UNDER SECTION 8 0IB (10) OF THE ACT. 4. AGGRIEVED, REVENUE IS IN APPEAL BEFORE US. LEAR NED COUNSEL PLACED BEFORE US A COPY OF THE JUDGMENT OF THE HO NBLE BOMBAY HIGH COURT 2 IN THE CASE OF CIT VS. BRAHMA ASSOCIATES 51-DTR-298 TO SUBMIT THAT UNDER IDENTICAL CIRCUMSTANCES THE HONBLE HIGH COURT UPHE LD THE PLEA OF THE ASSESSEE THAT DEDUCTION UNDER SECTION 80IB IS PERMI SSIBLE IN RESPECT OF RESIDENTIAL UNITS, EVEN IF A PORTION OF THE TOTAL C OMPLEX CONSISTS OF UNITS MEANT FOR COMMERCIAL USE. LEARNED COUNSEL, THEREFOR E, SUBMITTED THAT THE ORDER OF THE ITAT, SPECIAL BENCH (SUPRA) HAVING BEE N AFFIRMED BY THE HONBLE BOMBAY HIGH COURT, LEARNED CIT(A) ORDER CALLS FOR N O INTERFERENCE. 5. LEARNED DR ON THE OTHER HAND MERELY RELIED UPON THE ORDERS PASSED BY THE ASSESSING OFFICER. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RECORD. HAVING REGARD TO THE DECISION OF THE HONBLE BOMBAY HIGH COURT (SUPRA), WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LEARN ED CIT(A) AND THEREFORE, WE UPHOLD THE ORDER OF THE LEARNED CIT(A) AND DISMISS THE APPEALS FILED BY THE REVENUE. PRONOUNCED ACCORDINGLY IN THE OPEN COURT ON 21-4- 2011. SD/- SD/- (B.RAMAKOTAIAH) (D.MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATE 21 ST APRIL, 2011 VBP/- COPY TO 1. DCIT 24 (2), MUMBAI-400 051. 2. M/S. SUMMAIYA ENTERPRISES, HUMARA PARK, SURVEY N O. 273, PATHANWADI, MALAD (E), MUMBAI 400 097 PAN AAGFS8814E 3. CIT(A)-34, C.-10, R.NO.709, PRATYAKSHA KAR BHAVA N, BANDRA KURLA COMPLEX, BANDRA EAST, MUMBAI-400 051. 4. CIT-24, MUMBAI 5. DR E BENCH 6. GUARD FILE. (TRUE COPY) BY ORDER ASST. REGISTRAR, ITAT, MUMBAI BENCHES MUMBAI.