M/S. AAKASH LAND DEVELOPERS, THANE V. THE DCIT CIR-4,

ITA 226/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1494 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-06-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 19-05-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 12-01-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIRENDRA OJHA
• Assessee Lawyers: AJAY R SINGH
• Keywords: Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI VIJAY PAL RAO, JM ITA NO.5643/MUM/2006 : ASST.YEAR 2003-2004 ITA NO.7352/MUM/2008 : ASST.YEAR 2005-2006 THE DY.COMMISSIONER OF INCOME-TAX CIRCLE 4 THANE. VS. M/S.AKASH LAND DEVELOPERS SUMATI SADAN, PURANDARE WADI NEAR SARASWAT CO-OP. BANK, BAZAR WARD VIRAR (EAST), DIST. THANE 401 305. PA NO.AACFA2289B. (APPELLANT) (RESPONDENT) ITA NO.5698/MUM/2006 : ASST.YEAR 2003-2004 ITA NO.226/MUM/2009 : ASST.YEAR 2005-2006 M/S.AKASH LAND DEVELOPERS SUMATI SADAN, PURANDARE WADI NEAR SARASWAT CO-OP. BANK, BAZAR WARD VIRAR (EAST), DIST. THANE 401 305. VS. THE DY.COMMISSIONER OF INCOME-TAX CIRCLE 4 THANE. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI VIRENDRA OJHA ASSESSEE BY : SHRI AJAY R.SINGH O R D E R PER BENCH : THIS BATCH OF FOUR CROSS APPEALS, VIZ., TWO BY TH E ASSESSEE AND EQUAL NUMBER BY THE REVENUE RELATE TO THE ASSESSMENT YEARS 2003- 2004 AND 2005-2006. ITA NO.5698/MUM/2006 FILED BY THE ASSESSEE IS A RECALLE D MATTER INASMUCH AS THE EARLIER EX PARTE ORDER PASSED BY THE BENCH WAS SUBSEQUENTLY RECALLE D VIDE ITS LATER ORDER DATED 18 TH SEPTEMBER, 2009. SINCE COMMON ISSUES ARE RAISED IN THESE APPEALS, WE ARE , THEREFORE, PROCEEDING TO DISPOSE THEM OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. ITA NO.5643/MUM/2006 & ORS. M/S.AKASH LAND DEVELOPERS. 2 ASSESSMENT YEAR 2003-2004 2. THE ONLY ISSUE RAISED BY THE ASSESSEE AS WELL AS REVENUE IN THEIR RESPECTIVE APPEALS IS AGAINST THE COMPUTATION OF DEDUCTION U/S .80-IB(10). BRIEFLY STATED THE FACTS OF THE CASE ARE THAT THE ASSESSEE WAS ENGAGED IN BUILDING CONSTRUCTION ACTIVITY. IT CLAIMED DEDUCTION U/S.80-IB(10). ON BEING CALLED UPON TO EXPLAIN AS TO WHY THE DEDUCTION BE NOT DENIED, THE ASSESSEE FURNISHED REP LY WHICH HAS BEEN REPRODUCED IN THE ASSESSMENT ORDER. NOT CONVINCED, THE ASSESSING OFFICER HELD THAT THE ASSESSEE WAS NOT ENTITLED TO SUCH DEDUCTION. THE LD. FIRST A PPELLATE AUTHORITY DIRECTED THE ASSESSING OFFICER TO ALLOW DEDUCTION AMOUNTING TO R S.6,32,645 U/S.80-IB(10) ON THE BASIS OF SHOPPING AREA AS A PERCENTAGE OF THE T OTAL AREA AND THE REMAINING AMOUNT OF THE DEDUCTION WAS NOT ALLOWED. BOTH THE S IDES ARE IN APPEAL BEFORE US AGAINST THEIR RESPECTIVE STANDS. 3. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD IT IS NOTICED THAT THE APPEALS FILED BY THE ASSESSEE AS WELL AS REVENUE FOR ASSESSMENT YEAR 2004-2005 CAME UP FOR CONSIDERATION BEFORE THE MUMBAI BENCH OF THE TRIBUNAL IN ITA NO.5395/MUM/2007 AND ITA NO.478 0/MUM/2007. VIDE ORDER DATED 22.10.2009, THE TRIBUNAL IN ASSESSEES OWN CA SE HAS REMITTED THE MATTER BACK TO THE FILE OF A.O. FOR DECIDING THE MATTER AFRESH IN THE LIGHT OF THE DECISION OF THE SPECIAL BENCH IN THE CASE OF BRAHMA ASSOCIATES VS. JCIT [(2009) 119 ITD 255 (PUNE) (SB)]. IN THE ABSENCE OF ANY DISTINGUISHING FEATURE IN TH E FACTS OF THE INSTANT YEAR VIS--VIS THE PRECEDING YEAR HAVING BEEN BROUG HT TO OUR NOTICE, WE SET ASIDE THE IMPUGNED ORDER AND RESTORE THE MATTER TO THE FI LE OF A.O. FOR A FRESH DECISION IN ACCORDANCE WITH THE DIRECTION CONTAINED IN THE AFOR E NOTED TRIBUNAL ORDER FOR ASSESSMENT YEAR 2004-2005. 4. IN THE RESULT, THESE APPEALS ARE ALLOWED FOR STA TISTICAL PURPOSES. ITA NO.5643/MUM/2006 & ORS. M/S.AKASH LAND DEVELOPERS. 3 ASSESSMENT YEAR 2005-2006 5. THE FACTS OF THIS YEAR ARE THAT THE ASSESSEE CLA IMED DEDUCTION U/S.80-IB(10) IN RESPECT OF TWO PROJECTS, VIZ., GAGAN VIHAR PROJ ECT AND GAGAN SARITA PROJECT. THE A.O. GOT SATISFIED WITH THE CLAIM OF DEDUCTION AMOU NTING TO RS.16,29,482 IN RESPECT OF GAGAN SARITA PROJECT. HOWEVER AS REGARDS GAGAN V IHAR PROJECT, THE ASSESSING OFFICER DID NOT ALLOW THE DEDUCTION AMOUNTING TO RS .63,08,704. THE LEARNED CIT(A) ORDERED FOR GRANTING PROPORTIONATE DEDUCTION IN RESPECT OF RESIDENTIAL UNITS ONLY. IN HIS OPINION DEDUCTION WAS NOT AVAILABLE IN RESPECT OF COMMERCIAL UNITS. BOTH SIDES ARE IN APPEAL BEFORE US AGAINST THEIR RE SPECTIVE STANDS. 6. A COMMON SUBMISSION WAS MADE THAT THE FACTS AND CIRCUMSTANCES OF ASSESSMENT YEAR 2005-2006 ARE MUTATIS MUTANDIS SIMILAR TO ASSESSMENT YEAR 2003- 2004 AND HENCE THE SIMILAR VIEW BE TAKEN HERE ALSO . WE FIND THAT THE LAW HAS UNDERGONE CHANGE WITH EFFECT FROM ASSESSMENT YEAR 2 005-2006 INASMUCH AS SUB- SECTION (10) OF SECTION 80-IB HAS BEEN SUBSTITUTED WITH A NEW SUB-SECTION. AS PER CLAUSE (D) IN THE NEW PROVISION THE BUILT UP AREA O F THE SHOPS AND OTHER COMMERCIAL ESTABLISHMENTS INCLUDED IN THE HOUSING PROJECT SHOU LD NOT EXCEED FIVE PER CENT OF THE AGGREGATE BUILT-UP AREA OF THE HOUSING PROJECT OR TWO THOUSAND SQUARE FEET, WHICHEVER IS LESS. SINCE BOTH THE SIDES HAVE RELIED ON THE ORDERS PASSED FOR A.YS 2004-2005 AND 2003-04, WE FIND THAT THE RATIO OF SUCH ORDERS CANNOT PER SE BE APPLIED TO ASSESSMENT YEAR 2005-2006. IN THE ABSENC E OF ANY ARGUMENT IN THE LIGHT OF THE AMENDMENT TO SECTION 80-IB(10) FROM ASSESSME NT YEAR 2005-2006, WE CANNOT UPHOLD THIS CONTENTION. IN OUR CONSIDERED OP INION IT WILL BE FAIR AND JUST IF THE IMPUGNED ORDER ON THIS ISSUE IS SET ASIDE AND T HE MATTER IS REMITTED TO THE FILE OF A.O. FOR TAKING A FRESH DECISION AFTER HEARING THE ASSESSEE ON THE QUESTION OF ALLOWABILITY OF DEDUCTION UNDER THIS PROVISION IN A CCORDANCE WITH THE MANDATE OF THE PROVISION AS APPLICABLE FOR THE YEAR IN QUESTIO N. ITA NO.5643/MUM/2006 & ORS. M/S.AKASH LAND DEVELOPERS. 4 7. IN THE RESULT, THESE APPEALS ARE ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 18 TH DAY OF JUNE, 2010 . SD/- SD/- (VIJAY PAL RAO) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 18 TH JUNE, 2010 . DEVDAS* COPY TO : 1. THE APPELLANT. 2. THE RESPONDENTS. 3. THE CIT CONCERNED 4. THE CIT(A)-II, THANE. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.