ASST CIT CIR 3, THANE V. VIKRAM BUILDERS, THANE

ITA 2081/MUM/2012

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 3178 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 5 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 18-11-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 29-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R M MADHURIDR
• Keywords: Competent authority
• Section: 143(3)

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ITA NO.8607/MUM/2010 ASSESSMENT YEAR: 2005-06 ASST. COMMISSIONER OF INCOME-TAX, CIRCLE-3, VARDAANLOWER GROUND FLOOR, MIDC, WAGLE INDL. ESTATE, THANE, / VS. M/S VIKRAM BUILDERS MANISHA BUILDING, OPP. MARUTI MANDIR, KALWA, THANE ( / REVENUE) ( !' # /ASSESSEE) PAN. NO. AAA FV8941K ITA NO.2081/MUM/2012 ASSESSMENT YEAR: 2008-09 ASST. COMMISSIONER OF INCOME-TAX, CIRCLE-3, VARDAANLOWER GROUND FLOOR, MIDC, WAGLE INDL. ESTATE, THANE, / VS. M/S VIKRAM BUILDERS MANISHA BUILDING, OPP. MARUTI MANDIR, KALWA, THANE ( / REVENUE) ( !' # /ASSESSEE) PAN. NO.AAAFV8941K / REVENUE BY MS. R.M. MADHURI -DR !' # / ASSESSEE BY NONE $ % & # ' / DATE OF HEARING : 28/09/2015 & # ' / DATE OF ORDER: 28/10/2015 / O R D E R M/S VIKRAM BUILDERS ITA NO.8607/MUM/2010 & ITA NO.2081/MUM/2012 2 PER JOGINDER SINGH (JUDICIAL MEMBER) BOTH THESE APPEALS ARE BY THE REVENUE FOR ASSESSME NT YEAR 2005-06 AND 2008-09 OF THE SAME ASSESSEE ON TH E GROUND OF DEDUCTION U/S 80IB(10) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) AS THE FIRST APPROVAL OF THE HOUSING PROJECT WAS 06/10/2000 (BEFORE 01/04/2004). 2. DURING HEARING OF THIS APPEAL, THE LD. DR, MS. R. M. MADHURI, ADVANCED HER ARGUMENTS, WHICH ARE IDENTICA L TO THE GROUND RAISED BY SUBMITTING THAT THE ASSESSEE FURNI SHED AMENDED PLAN AND THE COMMENCEMENT CERTIFICATE WAS I SSUED ON 11/06/2008, THUS, THE BUILDING WAS NOT COMPLETED BEFORE 31/03/2008. NONE WAS PRESENT FOR THE ASSESSEE. IN SPITE OF THE FACT THAT THE ON EARLIER OCCASIONS, THE APPEALS WERE ADJOURNED AT THE REQUEST OF THE ASSESSEE, MORE SPEC IFICALLY, ON 13/03/2013, 09/04/2014, THUS, WE HAVE NO OPTION BUT TO PROCEED EX-PARTY QUA THE ASSESSEE AND TEND TO DISPO SE OFF THESE APPEALS ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 2.1. WE HAVE CONSIDERED THE SUBMISSIONS OF LD. DR AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE IS A BUILDER AND DEVELOPERS, DECLARED NIL INCOME IN ITS RETURN FILED ON 25/10/2005. THE A SSESSEE CLAIMED DEDUCTION U/S 80IB(10) OF THE ACT TO THE TU NE OF RS.33,34,871/- (A.Y. 2005-06). THE LD. ASSESSING OF FICER COMPLETED THE ASSESSMENT U/S 143(3) ALLOWING THE CL AIMED DEDUCTION. LATER ON, IT CAME TO THE NOTICE OF THE A SSESSING OFFICER THAT THE PROJECT WAS NOT COMPLETED BEFORE T HE M/S VIKRAM BUILDERS ITA NO.8607/MUM/2010 & ITA NO.2081/MUM/2012 3 STIPULATED TIME I.E. 31/03/2008, HENCE IN ORDER TO DENY THE CLAIM, THE ASSESSMENT WAS REOPENED U/S 147/148 OF T HE ACT AND THE CLAIMED DEDUCTION (WHICH WAS EARLIER ALLOWE D) WAS DENIED. THE ASSESSEE, FOR THE FIRST TIME, GOT THE P LAN APPROVED FROM THE COMPETENT AUTHORITY I.E. THANE MUNICIPAL CORPORATION ON 06/10/2000 TO CONSTRUCT TWO BUILDING S NAMELY VIRAT AND SANKAR PARK. THIS PLAN GOT FURTHE R AMENDED ON 13/09/2002. THE ASSESSING OFFICER WAS OF THE VIEW THAT SINCE THE BUILDINGS WERE NOT COMPLETED AS ON 31/03/2008, THEREFORE, THE REQUISITE CONDITIONS WER E NOT FULFILLED FOR CLAIMING THE DEDUCTION U/S 80IB(10)(A )(I) OF THE ACT. 2.2. ON APPEAL, BEFORE THE LD. COMMISSIONER OF INC OME TAX (APPEALS), THE FACTUAL POSITION ALONG WITH THE PROVISIONS OF THE ACT WERE CONSIDERED AND DULY EXAMINED THE AP PROVED PLANS AND FOUND THAT FOR THE THIRD TIME, THE PLAN G OT AMENDED ON 28/10/2004 TO INCLUDE BUILDING C AND PAR T COMPLETION CERTIFICATE IN RESPECT OF BUILDING A & B WERE OBTAINED ON 28/12/2005 AND 14/02/2007. THE DECISION IN SAROJ SALES ORGANISATION VS ITO (2008) 115 TTJ (MUM .) 485 AND BAJAJ TEMPO LTD. VS CIT 196 ITR 188 (SC), HOLDI NG THAT THE PROVISIONS IN THE TAXING STATUTE, GRANTING INC ENTIVES, FOR PROMOTING GROWTH AND DEVELOPMENT SHOULD BE CONSTRUE D LIBERALLY SO AS TO ADVANCE THE OBJECTIVE OF THE PRO VISION AND NOT TO FRUSTRATE IT WERE CONSIDERED AND FOUND THAT THE ORIGINAL PLAN WHICH WAS APPROVED ON 06/10/2000 WAS FOR CONSTRUCTION OF BUILDINGS A & B AND BUILDING C WAS NOT PART M/S VIKRAM BUILDERS ITA NO.8607/MUM/2010 & ITA NO.2081/MUM/2012 4 OF THIS PROJECT. BUILDINGS A & B WERE COMPLETED BE FORE 31/03/2008 AND FOR BUILDING C, THE COMMENCEMENT CERTIFICATE WAS ISSUED ON 11/06/2008 FOR WHICH NO D EDUCTION WAS CLAIMED, MEANING THEREBY, BUILDING C WAS A SEPA RATE BUILDING. IN VIEW OF THESE FACTUAL FINDINGS, WE FIN D NO INFIRMITY IN THE CONCLUSION DRAWN BY THE LD. COMMIS SIONER OF INCOME TAX (APPEALS). THE FACTUAL FINDING RECORDED BY THE LD. FIRST APPELLATE AUTHORITY WAS NOT CONTROVERTED BY T HE LD. DR WITH THE HELP OF ANY POSITIVE MATERIAL. BEING ON ID ENTICAL FACT, OUR VIEW WILL COVER, IDENTICAL ISSUE FOR A.Y. 2008- 09 ALSO, THUS, WE AFFIRM THE CONCLUSION DRAWN BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS), RESULTING INT O, DISMISSAL OF APPEALS OF THE REVENUE. FINALLY, THE APPEALS OF THE REVENUE ARE DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. DR AT THE CONCLUSION OF THE HEARING ON 28/09/2015. SD/ - (RAMIT KOCHAR) SD/ - (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER $ % MUMBAI; ) DATED : 28/10/2015 F{X~{T? P.S/. .. %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. +,-. / THE APPELLANT 2. /0-. / THE RESPONDENT. 3. 1 1 $ 2# ( +, ) / THE CIT, MUMBAI. 4. 1 1 $ 2# / CIT(A)- , MUMBAI 5. 45 /# , 1 +,' + 6 , $ % / DR, ITAT, MUMBAI M/S VIKRAM BUILDERS ITA NO.8607/MUM/2010 & ITA NO.2081/MUM/2012 5 6. 7! % / GUARD FILE. / BY ORDER, 04,# /# //TRUE COPY// / (DY./ASSTT. REGISTRAR) , $ % / ITAT, MUMBAI