ACIT CEN CIR 2, THANE V. SHREE OSTWAL BUILDERS LTD, MUMBAI

ITA 2145/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54882 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 21-07-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 18-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUBACHAN RAM
• Keywords: Search and seizure; Competent authority
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI D.K. AGARWAL, JUDICIAL MEMBER AND SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER ITA NO.2145 AND 2146/MUM./2010 (A.YS : 2005-06 AND 2006-07 ) ASSTT. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-2, THANE PAWAR INDL. ESTATE, EDULJI ROAD, CHARAI THANE 400 601 .. APPELLANT V/S SHREE OSTWAL BUILDERS LTD. A-12, SHANTI GANGA APARTMENT OPP. RAILWAY STATION BHYANDER (E), DIST. THANE .... RESPONDENT REVENUE BY : MR. SUBACHAN RAM ASSESSEE BY : MR. VIMAL PUNMIYA DATE OF HEARING 21.7.2011 DATE OF ORDER 12.8.2011 O R D E R PER J. SUDHAKAR REDDY, A.M. THESE APPEALS PREFERRED BY THE REVENUE, ARE DIRECT ED AGAINST SEPARATE BUT IDENTICAL ORDER DATED 30 TH NOVEMBER 2009, PASSED BY THE COMMISSIONER (APPEALS)-I, THANE, FOR ASSESSMENT YEARS 2005-06 AN D 2006-07 RESPECTIVELY. 2. BRIEF FACTS OF THE CASE ARE THAT, THE ASSESSEE IS A BUILDER AND DEVELOPER. THERE WAS A SEARCH AND SEIZURE ACTION CO NDUCTED ON 21 ST FEBRUARY SHREE OSTWAL BUILDERS LD. ITA NO.2145/MUM./2010 ITA NO.2146/MUM./2010 2 2007. THE COMMON ISSUE THAT ARISES FOR OUR ADJUDICA TION IN BOTH THE APPEALS IS DEDUCTION CLAIMED UNDER SECTION 80IB(10) OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ). 3. BEFORE US, BOTH THE PARTIES AGREE THAT IDENTICAL IS SUE HAS COME UP BEFORE A CO-ORDINATE BENCH OF THIS TRIBUNAL IN ASSE SSEES OWN CASE IN ITA NO.2144/MUM./2010, FOR ASSESSMENT YEAR 2004-05 AND ITA NO.2153/MUM./ 2010, FOR ASSESSMENT YEAR 2003-04, VIDE ORDER DATED 20 TH FEBRUARY 2011, WHEREIN THE TRIBUNAL CONSIDERED THE VERY TWO PROJEC TS NAMELY OSWAL NAGARI AND ASHA NAGAR AND TOOK A VIEW THAT THE ASSESSEE IS ENTITLED TO CLAIM DEDUCTION UNDER SECTION 80IB(10) OF THE ACT, VIDE P AGE-11, PARAS-18 AND 19, WHICH ARE EXTRACTED BELOW:- 18. WE HAVE CONSIDERED THE SUBMISSION AND ALSO PERU SED THE RELEVANT MATERIAL ON RECORD. IT IS OBSERVED THAT DE DUCTION CLAIMED BY THE ASSESSEE UNDER SECTION 80IB(10) IN RESPECT OF A SHA NAGAR PROJECT WAS ALLOWED BY THE ASSESSING OFFICER IN THE ASSESSM ENT ORIGINALLY COMPLETED UNDER SECTION 143(3) AFTER HAVING SATISFI ED ON THE BASIS OF INSPECTORS REPORT THAT THE SAID PROJECT COMPLETED BY THE ASSESSEE WAS COMPRISING OF ONLY RESIDENTIAL UNITS. THIS ACTION O F THE ASSESSING OFFICER THUS IS SUFFICIENT TO SUPPORT AND SUBSTANTIATE THE STAND OF THE ASSESSEE THAT SOME OF THE RESIDENTIAL UNITS OF ASHA NAGAR PR OJECT WERE CONVERTED FOR COMMERCIAL USE BY THE PURCHASERS ONLY AFTER THE COMPLETION OF THE PROJECT. ADMITTEDLY, THE BUILDING PLAN OF ASHA NAGAR PROJECT WAS APPROVED BY THE COMPETENT AUTHORITY ENT IRELY FOR RESIDENTIAL AREA AND THERE IS NOTHING BROUGHT ON RE CORD BY THE ASSESSING OFFICER TO SHOW THAT THE SAID PLAN WAS SU BSEQUENTLY REVISED BY THE ASSESSEE. EVEN THE OBJECTION OF THE ASSESSIN G OFFICER REGARDING NON-OBTAINING OF COMPLETION CERTIFICATE BY THE ASSE SSEE IN RESPECT ASHA NAGAR PROJECT IS NOT SUSTAINABLE KEEPING IN VIEW TH AT THE SAID PROJECT WAS COMPLETED PRIOR TO 1.4.2005, WHEN THE CONDITION OF COMPLETING THE PROJECT PRIOR TO 31.3.2008 WAS NOT STIPULATED IN TH E STATUTE. MOREOVER, EVEN THE EXISTENCE OF THE COMMERCIAL AREA IN ASHA N AGAR PROJECT AS FOUND DURING THE COURSE OF SEARCH WAS TO THE EXTENT OF 5313.25 SQ.FT. WHICH WAS LESS THAN 10% OF THE TOTAL BUILT UP AREA OF THE SAID PROJECT AS SUBMITTED BY THE ASSESSEE BEFORE THE LEARNED CIT (A). AS SUCH, KEEPING IN VIEW ALL THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND OURSELVES IN AGREEMENT WITH THE LEARNED CIT(A) THAT THERE WAS NO JUSTIFIABLE REASON FOR THE ASSESSING OFFICER TO DEN Y THE BENEFIT OF DEDUCTION UNDER SECTION 80IB(10) TO THE ASSESSEE IN RESPECT OF ASHA NAGAR PROJECT AND UPHOLDING HIS IMPUGNED ORDER OF T HIS ISSUE, WE DISMISS GROUND NOS.4 & 5 OF THE REVENUES APPEAL. 19. IN ITS APPEAL FOR THE ASSESSMENT YEAR 2004-05 B EING ITA NO.2144/MUM./2010, THE ISSUE RAISED BY THE REVENUE IN GROUND NOS.1 SHREE OSTWAL BUILDERS LD. ITA NO.2145/MUM./2010 ITA NO.2146/MUM./2010 3 TO 3 RELATING TO ASSESSEES CLAIM FOR DEDUCTION UND ER SECTION 80IB(10) IN RESPECT OF OSTWAL NAGARI PROJECT AND THE ISSUE R AISED IN GROUN NOS.4 AND 5 RELATING TO ASSESSEES CLAIM FOR DEDUCTION UN DER SECTION 80IB(10) IN RESPECT OF ASHA NAGAR PROJECT ARE SIMIL AR TO THAT INVOLVED IN ITS APPEAL FOR THE ASSESSMENT YEAR 2003-04 WHICH HAS BEEN DISPOSED OF BY US IN THE FOREGOING PORTION OF THIS ORDER. SINCE ALL THE MATERIAL FACTS RELEVANT THERETO INVOLVED IN THE ASS ESSMENT YEAR 2004- 05 ARE SIMILAR TO ASSESSMENT YEAR 2003-04, WE FOLLO W OUR DECISION RENDERED IN THE ASSESSMENT YEAR 2003-04 AND UPHOLD THE IMPUGNED ORDER OF THE LEARNED CIT(A) FOR THE ASSESSMENT YEAR 2004-05 GIVING RELIEF TO THE ASSESSEE ON BOTH THE ISSUES. 4. RESPECTFULLY FOLLOWING THE AFORESAID DECISION OF TH E TRIBUNAL IN ASSESSEES OWN CASE, WE UPHOLD THE ORDER OF THE COM MISSIONER (APPEALS) AND DISMISS THE GROUND RAISED BY THE REVENUE. 5. IN THE RESULT, REVENUES APPEALS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 12.8.2011 SD/- D.K. AGARWAL JUDICIAL MEMBER SD/- J. SUDHAKAR REDDY ACCOUNTANT MEMBER MUMBAI, DATED: 12.8.2011 COPY TO : (1) THE ASSESSEE; (2) THE RESPONDENT; (3) THE CIT(A), MUMBAI, CONCERNED; (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, F BENCH, ITAT, MUMBAI. TRUE COPY BY ORDER PRADEEP J. CHOWDHURY ASSISTANT REGISTRAR SR. PRIVATE SECRETARY ITAT, MUMBAI BENCHES, MUMBAI