ACIT 17(1), MUMBAI V. HERMES DEVELOPERS, MUMBAI

ITA 2182/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7986 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Next Hearing Date: 28-02-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 13-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AARJU GARODIA
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH J, MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI RAM LAL NEGI, JUDICIAL MEMBER ITA NO. 2182/MUM/2015 : A.Y : 2010 - 11 ACIT - 17(1), MUMBAI ( APPELLANT ) VS. M/S. HERMES DEVELOPERS DHIRAJ CHAMBERS, 9, HAZARIMAL SOMANI MARG, FORT, MUMBAI (RESPONDENT) PAN : AAAFH2179K ASSESSEE BY : NONE REVENUE BY : MS. AARJU GARODIA DATE OF HEARING : 28 /02/2017 DATE OF PRONOUNCEMENT : 28 /02/2017 O R D E R PER G.S.PANNU, A.M : THE CAPTIONED APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF CIT(A) - 28 , MUMBAI DATED 22.01.2015 , PERTAINING TO THE ASSESSMENT YEAR 2010 - 11 , WHICH IN TURN HAS ARISEN FROM THE ORDER PASSED BY THE ASSESSING OFFICER, MUMBAI DATED 15.03.2013 UNDER SECTI ON 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. IN THIS APPEAL, REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : 2 IT A NO. 2182 /MUM/201 5 M/S. HERMES DEVELOPERS 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) IS JUSTIFIED IN HOLDING THAT THE ASSESSEE IS ENTITLED TO THE DEDUCTION U/S 80IB(10), WHEN THE AREA OF PLOT, ON WHICH THE HOUSING PROJECT IS CONSTRUCTED IS LESS THAN ONE ACRE? 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) IS JUSTIFIED IN HOLDING T HAT ASSESSEE IS ENTITLED TO THE DEDUCTION U/S 80IB(10), WHEN THE AREA OF FLAT CONSTRUCTED IS MORE THAN 1500 SQ. FT.? 3. THE APPELLANT PRAYS THAT THE ORDER OF THE AO SHOULD BE RESTORED AND ORDER OF THE CIT(A) SHOULD BE SET ASIDE. 3. AS THE GROUNDS OF APP EAL REVEAL, THE ONLY ISSUE IN THIS APPEAL RELATES TO THE CLAIM OF ASSESSEE FOR DEDUCTION U/S 80IB(10) OF THE ACT WITH RESPECT TO THE PROFIT S DERIVED FROM HOUSING PROJECT HERMES HERITAGE LOCATED AT PUNE. THE ASSESSING OFFICER HAS DENIED THE CLAIM PRIMARI LY ON THE GROUND THAT A SIMILAR CLAIM FOR EARLIER ASSESSMENT YEARS OF 2003 - 04 TO 2006 - 07 WAS DENIED BY THE THEN ASSESSING AUTHORITY. THE CIT(A) HAS ALLOWED THE CLAIM NOTICING THAT IN THE ASSESSMENT YEARS 2003 - 04 TO 2006 - 07, THE CLAIM WAS ALLOWED BY THE TR IBUNAL , AND SUCH DECISION HAS SINCE BEEN UPHELD BY THE HON'BLE BOMBAY HIGH COURT ALSO. THE CIT(A) ALSO NOTED THAT IN ASSESSMENT YEAR 2008 - 09 , A SIMILAR ISSUE WAS DECIDED BY THE TRIBUNAL IN ASSESSEES FAVOUR FOLLOWING THE PRECEDENTS. ACCORDINGLY, THE CIT( A) HAS ALLOWED THE CLAIM OF ASSESSEE FOR DEDUCTION U/S 80IB(10) OF THE ACT. 4. AT THE TIME OF HEARING, THE LD. DR HAS NOT DISPUTED THAT THE PRECEDENTS FOLLOWED BY THE CIT(A) CONTINUE TO HOLD THE FIELD AND SAME HAVE NOT BEEN ALTERED BY ANY HIGHER AUTHORITY . UNDER THESE 3 IT A NO. 2182 /MUM/201 5 M/S. HERMES DEVELOPERS CIRCUMSTANCES, WE HEREBY AFFIRM THE ORDER OF CIT(A) AND ACCORDINGLY, REVENUE FAILS IN ITS APPEAL. 5. RESULTANTLY, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE CONCLUSION OF HEARING IN THE PRESENCE OF THE LD. DR ON 28 TH FEBRUARY, 2017. SD/ - SD/ - ( RAM LAL NEGI ) JUDICIAL MEMBER ( G.S. PANNU ) ACCOUNTANT MEMBER MUMBAI, DATE : 2 8 T H FEBRUARY , 201 7 * SSL * COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, J BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI