DCIT CEN CIR 10, MUMBAI V. AJMERA HOUSING CORPORATION, MUMBAI

ITA 1999/MUM/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78650 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-04-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Assessment Year: 2004-2005
• Appeal Filed On: 10-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S D SRIVASTAVA
• Section: 143(3); 153A; 80IB

Judgement Text

J IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI SANJAY GARG, JM ./I.T.A. NO.1999/M/2011 ( / ASSESSMENT YEAR: 2004 - 2005 ) DCIT, CENTRAL CIRCLE - 10, MUMBAI. / VS. M/S. AJMERA HOUSING CORPORATION, REHMAN BUILDING, 2 ND FLOOR, 24 - VEER NARIMAN ROAD, FORT, MUMBAI 400 001. ./ PAN : AAAFA 3654 J ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI S.D. SRIVASTAVA, DR / RESPONDENT BY : SHRI PRAKASH JOTWANI / DATE OF HEARING : 01.04.2014 / DATE OF PRONOUNCEMENT : 01.04.2014 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE REVENUE ON 10.3.2011 IS AGAINST THE ORDER OF THE CIT (A) - 37, MUMBAI DATED 11.1.2011 FOR THE ASSESSMENT YEAR 2004 - 05. 2. IN THIS APPEAL, REVENUE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) ERRED IN DELETING THE ADDITION OF RS. 31,71,13,021/ - REPRESENTING DEDUCTION CLAIMED U/S 80 IB (10) IGNORING THE FACT THAT THE ASSESSEES PROJECT COMPRISED OF COMMERCIAL UNITS WHICH WERE NOT PERMITTED IN A HOUSING PROJECT FOR THE PURPOSES OF SECTION 80IB(10) PRIOR TO 1.4.2005. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) ERRED IN DELETING THE ADDITION OF RS. 31,71,13,021/ - REPRESENTING DEDUCTION CLAIMED U /S 80IB (10) IGNORING THE FACT THAT RELIED ON DECISION OF M/S. BRAHMA ASSOCIATES VS. JCIT (122 TTJ 433) (SB) (PUNE) AND M/S. ANIK DEVELOPMENT CORPORATION (AY 2004 - 05 AND 2005 - 06) VIDE ITA NO.3175 & 3176/MUMBAI/2009 DATED 30.9.2010 (G - BENCH) IS NOT ACCEPTED BY THE DEPARTMENT AND FURTHER APPEALS HAVE BEEN FILED. 3. DURING PROCEEDINGS BEFORE US, AT THE OUTSET, IT IS SUBMITTED THAT THE IMPUGNED ASSESSMENT ORDER WAS FRAMED U/S 143(3) R.W.S 153A & 263 OF THE ACT. IN THIS 2 REGARD, SHRI PRAKASH JOTWANI, LD COUNSEL FOR THE ASSESSEE MENTIONED THAT THE REVIEW OF THE ORDER BY THE CIT U/S 263 OF THE ACT WAS THE SUBJECT MATTER OF THE APPEAL BEFORE THE TRIBUNAL AND THE TRIBUNAL QUASHED THE ORDER OF THE CIT VIDE ITA NO. 3172 & 3173/M/2009 FOR THE AYS 2004 - 05 & 2005 - 06, ORDE R DATED 9 TH FEBRUARY, 2011 AND THE APPEAL OF THE ASSESSEE WAS ACCORDINGLY ALLOWED. THE SAID ORDER OF THE TRIBUNAL (SUPRA) WAS AGITATED BY THE REVENUE BEFORE THE HONBLE HIGH COURT VIDE INCOME TAX APPEAL (L) NO.816 AND 817 OF 2011, WHEREIN THE ORDER OF THE TRIBUNAL WAS UPHELD IN VIEW OF THE JURISDICTIONAL HIGH COURT JUDGMENT IN THE CASE OF CIT VS. BRAHMA ASSOCIATES [2011] 333 ITR 289 (BOM, DATED 18 TH AUGUST, 2011. THUS, THE REVIEW ORDER HAS BECOME FINAL AND IN FAVOUR OF THE ASSESSEE. CONSEQUENTLY, THE FRES H ASSESSMENT ORDER DATED 30.10.2009, WHICH IS THE SUBJECT MATTER OF THE APPEAL BEFORE THE TRIBUNAL, DOES NOT STAND. ON THIS TECHNICAL REASONING, THE APPEAL FILED BY THE REVENUE DOES NOT SURVIVE. IN VIEW OF THE ABOVE, WITHOUT GOING INTO THE MERITS OF THE ISSUES RAISED BY THE REVENUE BEFORE US, THE APPEAL OF THE REVENUE IS DISMISSED . 4. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 1 ST APRIL, 2014. SD/ - SD/ - (SANJAY GARG) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 1.4.2014 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . 3 //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBA