MORAJ DEVERLOPERS P.LTD., NAVI MUMBAI V. ITO 10(3)(4), MUMBAI

ITA 2169/MUM/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48519 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 13-04-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 08-04-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R S SRIVASTAVA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES H, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI V.DURGA RAO, JM ITA NOS.2169 & 4664/MUM/2009 : ASST.YEARS 2004-2005 & 2002-2003 M/S.MORAJ DEVELOPERS PRIVATE LIMITED D/2 BIG SPLASH, SECTOR 17 VASHI, NAVI MUMBAI 400 703. PAN : AACCM6724E VS. THE INCOME TAX OFFICER WARD 10(3)(4) MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PRADIP KAPASI RESPONDENT BY : SHRI R.S.SRIVASTAVA O R D E R PER R.S.SYAL, AM : THESE TWO APPEALS BY THE ASSESSEE RELATE TO ASSESSM ENT YEARS 2002-2003 AND 2004-2005. SINCE THE MAIN ISSUE IN BOTH THE APPEALS , BEING NOT ALLOWING OF DEDUCTION U/S 80IB(10) IN ENTIRETY, IS IDENTICAL, WE ARE, THEREFORE, PROCEEDING TO DISPOSE THEM OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT TH E ASSESSEE CLAIMED DEDUCTION U/S.80-IB(10) FOR BOTH THE ASSESSMENT YEARS WHICH W AS ALLOWED PARTLY BY THE ASSESSING OFFICER. NO RELIEF WAS ALLOWED IN THE FIR ST APPEAL. 3. AT THE VERY OUTSET THE LEARNED COUNSEL FOR THE A SSESSEE CONTENDED THAT THE ASSESSING OFFICER ON PAGE 5 PARA 4.1 OF THE ORDER F OR THE ASSESSMENT YEAR 2004- 2005 HAS NOTED AREAS OF CERTAIN FLATS / SHOPS WITHO UT CONFRONTING IT TO THE ASSESSEE. IT WAS STATED THAT THE AREA OF FLATS MENTIONED BY T HE A.O. WAS SALEABLE AREA AND NOT THE BUILT-UP AREA. WHILE REFERRING TO PAGE 92 OF TH E PAPER, BOOK BEING SUBMISSIONS MADE BEFORE THE LEARNED CIT(A), IT WAS CONTENDED T HAT THIS ISSUE WAS SPECIFICALLY RAISED VIDE PARA 3, BUT THE LEARNED CIT(A) FAILED TO TAKE NOTE OF SUCH SUBMISSIONS AND DECIDED THE ISSUE AGAINST THE ASSESSEE WITHOUT ADJUDICATING ON IT. THE LEARNED A.R. STATED THAT IF THE PROPER BUILT UP AREAS ARE T AKEN INTO CONSIDERATION, THE FATE OF THE DEDUCTION WOULD BE DIFFERENT. HE ALSO RELIED ON THE RECENT JUDGEMENT OF THE ITA NOS.2169 & 4664/MUM/2009 M/S.MORAJ DEVELOPERS PVT.LTD. 2 HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. BRAHMA ASSOCIATES IN INCOME TAX APPEAL NO.1194 OF 2010. IT WAS, THEREFORE, PRAY ED THAT THE MATTER BE RESTORED TO THE FILE OF THE LEARNED CIT(A) FOR DISPOSAL OF T HIS SPECIFIC OBJECTION RAISED BEFORE HIM AND ALSO CONSIDERING THE EFFECT OF THE JUDGEMEN T OF THE HONBLE JURISDICTIONAL HIGH COURT IN BRAHMA ASSOCIATES (SUPRA) . NO SERIOUS OBJECTION WAS TAKEN BY THE LEARNED DEPARTMENTAL REPRESENTATIVE. 4. IN VIEW OF THE RIVAL BUT COMMON SUBMISSIONS AND WITHOUT GOING INTO THE MERITS OF THE CASE, WE ARE OF THE CONSIDERED OPINI ON THAT IT WOULD BE JUST AND FAIR IF THE IMPUGNED ORDER FOR BOTH THE YEARS ARE SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE LEARNED CIT(A) FOR CONSIDERING THE OBJE CTIONS RAISED BY THE ASSESSEE BEFORE HIM AND ALSO DECIDING THE ISSUE AFRESH IN TH E LIGHT OF SUCH OBJECTIONS AS WELL AS THE JUDGEMENT OF THE HONBLE BOMBAY HIGH COURT I N BRAHMA ASSOCIATES (SUPRA) . 5. IN THE RESULT, BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 20 TH DAY OF APRIL, 2011 . SD/- SD/- (V.DURGA RAO) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 20 TH APRIL, 2011. DEVDAS* COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) X, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. ITA NOS.2169 & 4664/MUM/2009 M/S.MORAJ DEVELOPERS PVT.LTD. 3 TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.