BHOOMI DEVELOPERS, MUMBAI V. ITO 32(1)(3), MUMBAI

ITA 2340/MUM/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1824 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-11-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 03-04-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K BEP A R A
• Assessee Lawyers: KETAN L VAJANI
• Keywords: Additional evidence; Reassessment proceedings
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, AM ITA NO. 2340/MUM/2017 ( ASSESSMENT YEAR: 2007 - 08 ) M/S. BHOOMI DEVELOPERS B - 204, DARSHAN APARTMENT, SHIMPOLI ROAD, OPP. SONIWADI, BORIVALI (W), MUMBAI - 400 092 VS. INC OME TAX OFFICER, WARD - 32(1)(3), MUMBAI PAN/GIR NO. AADFB 5005 F ( APPELLANT ) : ( RESPONDENT ) APPELLANT BY : SHRI KETAN L. VAJANI RESPONDENT BY : SHRI S. K. BEP A R A DATE OF HEARING : 20.08.2018 DATE OF PRONOUNCEMENT : 0 8.11 .2018 O R D E R PER SHAMIM YAHYA, A. M.: THIS A PPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE O RDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 44, MUMBAI (LD.CIT(A) FOR SHORT) DATED 31.01.2017 AND PERTAINS TO THE A SSESSMENT YEAR (A.Y.) 2007 - 08. 2. THE GROUNDS OF APPEAL READ AS UNDER: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN DENYING THE APPELLANT'S PLEA FOR ELIGIBILITY TO CLAIM DEDUCTION OF RS. 4,918,7707 - U/S 80IB(1D) OF THE INCOME TAX ACT, 1961 ON THE ALLEGED GROU ND THAT NEW PROJECT WAS COMMENCED BEFORE 1 ST OCTOBER, 1998 AND THEREFORE IT VIOLATES ONE OF THE PRIMARY CONDITION OF ELIGIBILITY U/S 80IB(10) OF THE ACT. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) FAILED TO APPRECIATE T HE SUBMISSION AND EXPLANATION OFFERED BY THE APPELLANT DURING THE COURSE OF APPELLATE PROCEEDINGS IN RESPECT OF ADDITIONAL EVIDENCES, FOR WHICH THE MATTER WAS RESTORED BACK TO THE FILE OF ASSESSING OFFICER. 2.01 THE LEARNED CIT(A) FAILED TO APPRECIATE THE FACT THAT THE ASSESSING OFFICER HAS EXERCISED THE POWER BEYOND THE SCOPE AS DIRECTED BY THE TRIBUNAL FOR DECIDING THE ISSUE ON THE BASIS OF THE ADDITIONAL EVIDENCE. 2 ITA NO. 2340/MUM/2017 M/S. BHOOMI DEVELOPERS 2.02 THE LEARNED CIT(A) FAILED TO APPRECIATE THE EXPLANATION PROVIDED ALONGWITH EVIDENCE BY THE APPELLANT IN RESPECT OF OPENING BALANCE AND CLOSING BALANCE OF WORK - IN - PROGRESS OF NEW PROJECT IN THE BALANCE SHEET AS ON YEAR ENDED 31.03.2000. 2.03 THE LEARNED CIT(A) FAILED TO APPRECIATE THE EXPLANATION OFFERED BY THE APPELLANT IN RESPECT OF RAJ ARAM MAHAPATI (NEW PROJECT) BALANCE OF RS. 441.568/ - IN THE BALANCE SHEET AS ON YEAR ENDED 31.03.2000 I.E. IT IS NOT THE CLOSING WORK - IN - PROGRESS BALANCE OF THE NEW PROJECT BUT AN ADVANCE GIVEN TO SUPPLIER AND THE SAME WAS INADVERTENTLY SHOWN AS CLOSING WO RK - IN - PROGRESS (NEW PROJECT). 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) FAILED TO CONSIDER THE FACT THAT A SEPARATE ACCOUNT HAS BEEN MAINTAINED FOR THE NEW PROJECT STARTED AFTER 01.04.1999 I.E. MUCH AFTER THE DATE AS R EQUIRED BY THE PROVISION OF SECTION 80IB(10) VIZ. 01.10.1998. 3.01 THE LEARNED CIT(A) FAILED TO CONSIDER THAT EXPENSES IN RESPECT OF NEW PROJECT INCURRED AFTER 01.04.1999 HAS BEEN DEBITED IN SEPARATE WORK - IN - PROGRESS (NEW PROJECT) ACCOUNT AND THE SAME ARE BEING AUDITED BY THE INDEPENDENT AUDITOR. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) FAILED TO APPRECIATE THE FACT THAT FOR CLAIMING DEDUCTION U/S 80IB(10) OF THE ACT, THE DATE WHICH IS RELEVANT IS THE DATE OF COMMENCE MENT OF THE PROJECT AND NOT THE DATE OF APPROVAL OF THE PROJECT. 4.01 THE LEARNED CIT(A) FAILED TO APPRECIATE THE FACT THAT AS PER THE EXPLANATION TO SECTION 8016(10) OF THE ACT, THE DATE OF FIRST APPROVAL FROM THE LOCAL AUTHORITY SHALL BE TAKEN TO HAVE B EEN APPROVED ON THAT DATE WHICH MEANS THAT FOR THE PURPOSE OF DETERMINING THE COMPLETION OF CONSTRUCTION, THIS CRITERIA HAS TO BE APPLIED AND THERE IS NO DEEMING PROVISION FOR DETERMINING THE COMMENCEMENT OF THE PROJECT. 3. BRIEF FACTS OF THE CASE ARE AS UNDER: THE ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF BUILDERS AND DEVELOPERS. THE ASSESSEE IN ITS RETURN OF INCOME FILED FOR THE RELEVANT ASSESSMENT YE AR HAS CLAIMED DEDUCTION OF RS. 49,18,761 U/S 80IB(10) OF THE ACT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER ASKED THE ASSESSEE TO EXPLAIN AS TO HOW THE ASSESSEE FULFILS ALL THE CONDITIONS LAID DOWN U/S . 80IB(10). FROM THE EXPLANATION SUBMITTED BY THE ASSESSEE THE ASSESSING OFFICER OBSERVED THAT FIRSTLY, IT IS NOT CLEAR AS TO WHETHER THE PROJECT HAS COMMENCED BEFORE 1ST OCTOBER 1998, OR AFTER, SECONDLY THE LAND WAS NOT 3 ITA NO. 2340/MUM/2017 M/S. BHOOMI DEVELOPERS OWNED BY THE ASSESSEE AS THE PROJECT WAS SANCTIONED BY THE CIDCO IN THE NAME OF RAJARAMMAHAPADI WHO IS THE POWER OF ATTORNEY HOLDER FROM THE LANDOWNER MR . NIPUN ISHWARDAS THAKKAR, AND LASTLY, THE ASSESSEE IS MERELY A SUB - DEVELOPER. ON THIS POINT THE AO SOUGHT FURTHER CLARIFICATION FROM THE ASSESSEE IN RESPONSE TO WHICH THE ASSESSEE SUBMITTED THAT FOR AVAILING THE BENEFIT U/S 80IB(10) THE CLAIMANT NEED NOT B E THE OWNER OF THE PLOT OF LAND. THE ASSESSING OFFICER THEREAFTER REJECTED THE CLAIM OF DEDUCTION U/S 80IB(10) ON BOTH COUNTS THAT IS, THE ASSESSEE HAS NOT COMMENCED THE DEVELOPMENT WORK ON OR AFTER FIRST 1ST OCTOBER 1998 AND ALSO THE ASSESSEE IS NOT A BUI LDER DEVELO PER BUT A MERE CONTRACTOR. 4. THE ASSESSEE FILED APPEAL BEFORE THE CIT APPEALS. THE COMMISSIONER APPEALS IN HIS ORDER DATED 27.4 2010 GAVE A FINDING THAT THE PROJECT WAS COMMENCED AFTER 1ST OCTOBER 1998. HE ALSO GAVE A FINDING THAT THE ASSESSI NG OFFICER IS NOT JUSTIFIED IN TREATING THE ASSESSEE AS A CONTRACTOR. AS A RESULT THE LD. COMMISSIONER OF APPEALS ALLOWED DEDUCTION U/S 80IB(10) TO THE APPELLANT. . 5. THE DEPARTMENT THEREAFTER FILED SECOND APPEAL BEFORE THE ITAT MUMBAI. THE ITAT B BENCH MUMBAI PASSED AN ORDER DATED 15.01 2014. IN ITS ORDER, ON THE ISSUE OF COMMENCEMENT OF PROJECT, THE ITAT GAVE A FINDING THAT THE CIT APPEALS HAS COME TO A CONCLUSION ON THE BASIS OF DOCUMENTS WHICH WERE FILED FOR THE FIRST TIME BEFORE HIM. THE ITAT ALSO GA VE A FINDING THAT THERE IS NO BIFURCATION OF THE WORK - I N - PROGRESS IN ABSENCE OF WHICH I T IS VERY DIFFICULT TO INFER ABOUT THE CONCLUSION DRAWN BY THE CIT APPEALS. THE ITAT FURTHER GAVE A FINDING THAT THE DOCUMENTS FILED FOR THE FIRST TIME BEFORE THE CIT 4 ITA NO. 2340/MUM/2017 M/S. BHOOMI DEVELOPERS APPEALS WILL HAVE TO BE EXAMINED BY THE ASSESSING OFFICER. THE ITAT ACCORDINGLY SET ASIDE THE ORDER PASSED BY THE CIT APPEALS AND RESTORED THIS MATTER BACK TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION THAT THE ASSESSING OFFICER WILL EXAMINE THE MATTER IN THE LIGHT OF ADDITIONAL EVIDENCE FILED BEFORE THE CIT APPEALS. ON THE SECOND ISSUE THAT IS, WHETHER THE ASSESSEE IS A DEVELOPER OR A CONTRACTOR THE ITAT GAVE A FINDING THAT THE ASSESSEE HAS TO BE TREATED AS A DEVELOPER. 6. THE ASSESSING OFFICER INITIATED ASSESSMENT PROCEEDINGS IN ACCORDANCE TO THE DIRECTION GIVEN BY THE ITAT AND PASSED AN ORDER DATED 30TH MARCH 2015 UNDER SECTION 143(3) RWS SECTION 254 OF THE ACT. DURING THE COURSE OF REASSESSMENT PROCEEDINGS, THE AO EXAMINED THE ISSUE OF COMMENC EMENT - OF THE PROJECT AND DISALLOWED THE CLAIM OF THE ASSESSEE U/S 80IB(10). ON THIS ISSUE THE AO MADE THE FOLLOWING COMMENTS:. AS PER THE COMMENCEMENT CERTIFICATE, THE ASSESSEE HAS COMMENCED PROJECT BEFORE 1.10. 199 8 AND IS T HEREFORE, NOT ELIGIBLE FOR DEDU CTION U/S 80IB(10). THE ASSESSEE HAS SUBMITTED COPY THE PROFIT AND LOSS ACCOUNT AND BALANCE SHEET FOR THE ASSESSMENT YEAR'S 1999 - 2000 AND 2000 - 2001 AND STATED THAT THE ASSESSEE HAS CLAIMED EXPENDITURE IN RESPECT OF THE PROJECT DURING THE FINANCIAL YEAR 199 9, WHICH, INTER ALIA MEANS THAT EXPENDITURE HAS BEEN INCURRED ONLY FROM 1.4.1999 ONWARDS. TO FURTHER VERIFY THE FACTUAL ASPECTS OF ASSESSEE'S SUBMISSION, THE ASSESSEE WAS GIVEN AN OPPORTUNITY TO PRODUCE DOCUMENTS AND EVIDENCES IN RESPECT OF THE EXPENSES IN CURRED. HOWEVER, APART FROM THE ABOVE WRITTEN SUBMISSION, THE ASSESSEE HAS NOT BROUGHT ON RECORD ANY MATERIAL EVIDENCES TO ASCERTAIN WHETHER THE EXPENSES APPEARING UNDER OPENING WORK - IN - PROGRESS AND CLOSING - WORK - IN PROGRESS RELATES TO THE NEW PROJECT O R OLD PROJECT. THE ASSESSEE HAS REITERATED THAT I T HAS SUBMITTED THE AUDITED BALANCE SHEET AND PROFIT AND L OSS ACCOUNT FOR THE ASSES SMENT YEARS 2000 - 01 AND 1999 - 2000. HOWEVER, THESE FINANCIAL STATEMENTS SUBMITTED BY THE ASSESSEE DOES NOT GIVE PROPER BI FURCATION OF WORK - IN - PROGRESS IN THE ASSESSMENT YEARS 1999 - 2000 AND 2000 - 01. THE ASSESSEE FAILED TO BRING ON RECORD DOCUMENTARY EVIDENCES IN SUPPORT OF THE OPENING WORK - IN - PROGRESS OF OLD PROJECT AND WORK - IN - PROGRESS OF NEW PROJECT. IN VIEW OF THE A BOVE DISCUSSION, SINCE THE ASSESSEE DOES NOT FULFILL ONE OF THE CONDITIONS LAID DOWN U/S 80IB(10), THE ASSESSEE IS NOT ELIGIBL E FOR DEDUCTION U/S 80IB(10). 5 ITA NO. 2340/MUM/2017 M/S. BHOOMI DEVELOPERS 7. BEFORE THE LD. CIT(A), THE ASSESSEE MADE INTERALIA FOLLOWING SUBMISSIONS: A) AT THIS JUNCTURE , WE WOULD LIKE TO REPRODUCED HEREWITH THE PARA OF HON'BLE ITAT SETTING ASIDE THE IMPUGNED ORDER PASSED BY THE CIT(A) AND DIRECTING THE ASSESSING OFFICER; '........ THE LEARNED COMMISSIONER (APPEALS), ON PERUSAL OF THE AUDITED BALANCE SHEET AND PROFIT LOS S ACCOUNT FOR THE ASSESSMENT YEAR 2000 - 01, HAS GIVEN A FINDING THAT THE PROJECT HAD STARTED AFTER 1 ST APRIL 1999 I.E., MUCH AFTER 1 ST OCTOBER 1998, THEREFORE, BENEFIT OF SECTION 8013(10) CANNOT BE DENIED. ON A PERUSAL OF THESE AUDITED BALANCE SHEET FOR T HE ASSESSMENT YEARS 1999 - 2000 AND 2000 - 01, WHICH WERE FILED FOR THE FIRST TIME BEFORE THE TEAMED COMMISSIONER (APPEALS), IT IS SEEN THAT PRIMA - FACIE IT CANNOT BE INFERRED THAT THERE WAS NO OPENING WORK - IN - PROGRESS WITH REGARD TO THESE PARTICULAR PROJECT AS APPARENTLY THERE IS NO CLEAR CUT DEMARCATION OF WORK - IN - PROGRESS OF OLD AND NEW PROJECTS. FROM THE COLUMN OF 'WORK - IN - PROGRESS' GIVEN IN THE ASSET SIDE OF THE BALANCE SHEET AS ON 31 ST MARCH 2000, THERE IS DOSING BALANCE OF RS. 72,72,403 / - AND R S. 4,41,565 / - UNDER THE HEAD 'WORK - IN - PROGRESS - NEW PROJECT'. PROFIT & LOSS ACCOUNT SHOWS THAT THERE IS AN OPENING WORK - IN - PROGRESS OF RS.2,43,50, 382/ - . WITHOUT ANY BIFURCATION, IT IS VERY DIFFICULT TO INFER ABOUT THE CONCLUSION DRAWN BY THE LEARNED COMMISSIONER (APPEA LS), THEREFORE, THIS MATTER REQUIRES EXAMINATION AND VERIFICATION OF THE RECORDS WHICH HAS BEEN SUBMITTED BY THE ASSESSEE BEFORE THE LEARNED COMMISSIONER (APPEALS). THUS, IT DOES CONSTITUTE ADDITIONAL EVIDENCE WHICH REQUIRES OPPORTUNITY FOR VERIFICATION AN D EXAMINATION BY THE ASSESSING OFFICER. THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT INSOFAR AS THE LEARNED COMMISSIONER (APPEALS) FINDING THAT THE PROJECT HAD COMMENCED AFTER 1 ST OCTOBER 1998 REQUIRES TO BE EXAMINED BASED ON THE ADDITIONAL EVIDENCES F ILED BEFORE THE LEARNED COMMISSIONER (APPEALS) BY THE ASSESSING OFFICER. ACCORDINGLY, WE SET ASIDE THE IMPUGNED ORDER PASSED BY THE LEARNED COMMISSIONER (APPEALS) AND RESTORE THIS MATTER BACK TO THE FILE OF THE ASSESSING OFFICER AND DIRECT HIM TO EXAMINE T HE SAME IN THE LIGHT OF THE ADDITIONAL EVIDENCE FILED BEFORE THE LEARNED COMMISSIONER (APPEALS).' HOWEVER, THE LEARNED A.O. FAILED TO APPRECIATE THE FACT THAT MATTER RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER BY TRIBUNAL SHOULD BE EXAMINED ONLY AS PER THE DIRECTION GIVEN BY THE TRIBUNAL AND THEREFORE THE POWER OF THE LEARNED A.O. IN THE INSTANT CASE WAS RESTRICTED ONLY TO THE EXAMINATION AND VERIFICATION OF THE ADDITIONAL EVIDENCES FILED AND DECIDED THE ISSUE. HOWEVER, THE LEARNED A.O. HAS EXERCISED HIS POWER BEYOND THE SCOPE DIRECTED BY THE TRIBUNAL. THEREFORE, THE LEARNED A.O. FAILED TO PERFORM THE LEGAL DUTY IMPOSED ON HIM AND SUCH FAILURE WAS AGAINST THE PRINCIPLE OF JUSTICE. 6 ITA NO. 2340/MUM/2017 M/S. BHOOMI DEVELOPERS 8. HOWEVER, THE LD. CIT(A) WAS NOT CONVINCED. HE CONFIRMED THE ORDER O F THE A.O. BY OBSERVING AS UNDER: 3.6 I HAVE CAREFULLY GONE THROUGH THE ASSESSMENT ORDER, THE ORDER OF THE CIT APPEALS AND THE ORDER OF THE HON'BLE ITAT MUMBAI. I HAVE ALSO CAREFULLY GONE THROUGH THE WRITTEN SUBMISSION OF THE ASSESSEE AS WELL AS DETAILS F ILED BY IT. FROM THE FACTS OF THE CASE IT CAN BE SEEN THAT THE CIT APPEALS HAD GIVEN A FINDING THAT THE PROJECT OF THE APPELLANT HAD CO MMENCED AFTER 1.4.1999 AND THEREFORE THE PROJECT WAS ENTITLED FOR DEDUCTION U/S 80IB(10). BUT, ON FURTHER APPEAL BY THE DEPARTMENT THE ITAT MUMBAI DID NOT CONFIRM THE ORDER OF THE CIT APPEALS. IN ITS ORDER THE ITAT GAVE A CATEGORICAL FINDING IN THESE WORDS:' WE ARE OF THE CONSIDERED OPINION THAT IN SO FAR AS THE ID. COMMISSIONER (APPEALS)'S FINDING THAT THE PROJ ECT HAD COMMENCED AFTER 1ST OCTOBER 1998 REQUIRES T O BE EXAMINED BASED ON THE ADDITIONAL EVIDENCES FILED BEFORE THE LEARNED COMMISSIONER (APPEALS) BY THE ASSESSING OFFICER'. THUS, THE HIGHEST FACT FINDING AUTHORITY DID NOT ACCORD OUTRIGHT APPROVAL OF THE S TAND TAKEN BY THE CIT APPEALS; RATHER IT SET ASIDE THE MATTER TO THE FILE OF THE ASSESSING FOR FRESH EXAMINATION OF THE ISSUE. 3.7 IN THE REASSESSMENT PROCEEDING WHICH WAS IN PURSUANCE TO THE ORDER OF THE HON'BLE ITAT, ASSESSING OFFICER GAVE AMPLE OPPORT UNITY TO THE APPELLANT TO DEMONSTRATE AS TO HOW THE PROJECT HAS COMMENCED AFTER 1 ST OCTOBER 1998. THE AO HAS GIVEN A CATEGORICAL FINDING IN PARA 4,5 OF HIS ORDER (QUOTED ABOVE AT PARA3.4) THAT ON THE TJASIS OF THE DOCUMENTS WHICH WERE SUBMITTED BEFORE THE THEN CIT APPEALS IT CANNOT BE MADE OUT THAT THE PROJECT HAS STARTED AFTER 1ST OCTOBER 1998. FIT IS IMPORTANT TO NOTE HERE THAT THE CONCLUSION DRAWN BY THE ASSESSING OFFICER ALSO DRAWS SUPPORT FROM SIMILAR OBSERVATIONS MADE BY THE ITAT ON THIS ISSUE] AFTER CAREFUL EXAMINATION OF THE DOCUMENTS I HAVE ALSO COME TO A CONCLUSION THAT ON THE BASIS OF DOCUMENTS SUBMITTED BEFORE THE ASSESSING OFFICER IT CANNOT BE INFERRED THAT THE PROJECT OF THE APPELLANT HAS COMMENCED AFTER 1ST OCTOBER 1998. IN THIS SITUATION THE PROJECT WILL NOT BE ENTITLED FOR DEDUCTION U/S 80IB(10) AS IT VIOLATES ONE OF THE PRIMARY CONDITION OF ELIGIBILITY U/S80IB(10). AFTER CONSIDERING THE TOTALITY OF FACTS, I HAVE COME TO A CONCLUSION THAT THE ASSESSING OFFICER HAS RIGHTLY DISALLOWED THE BENEF IT OF DEDUCTION U/S.80IB(10). THE SAME IS UPHELD. THE GROUNDS OF APPEAL NUMBERS 1 TO 5 ARE ACCORDINGLY, DISMISSED. 9. AGAINST THE ABOVE ORDER, THE ASSESSEE IS IN APPEAL BEFORE THE ITAT. 10. I HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. I FIND T HAT ORIGINALLY THERE WERE TWO ISSUES IN THIS APPEAL. FIRSTLY, WHETHER THE PROJECT WAS COMMENCED AFTER 01.10.1998 TO ENTITLE FOR DEDUCTION U/S.80IB(10) AND, SECONDLY, WHETHER THE ASSESSEE WAS 7 ITA NO. 2340/MUM/2017 M/S. BHOOMI DEVELOPERS A DEVELOPER. IN THE PREVIOUS ROUND , THE ITAT HAS GIVEN A FINDING THAT THE ASSESSEE WAS A DEVELOPER. AS REGARDS THE COMMENCEMENT OF THE PROJECT AFTER 01.10.1998, THE A.O. HAD GIVEN A FINDING THAT IT WAS NOT CLEA R AS TO WHETHER THE PROJECT HAS COMMENCED BEFORE 01.10.1998. OR AFTER.H ENCE HE HAD DENIED THE BENEFIT TO THE ASSESSEE. 11. UPON THE ASSESSEES APPEAL, THE LD. CIT(A) HAD GIVEN A FINDING THAT THE PROJECT WAS COMMENCED AFTER 01.10.1998. 12. UPON THE DEPARTMENTS APPEAL, THE ITAT HAD GIVEN A FINDING THAT T HE LEARNED COMMISSIONER (APPEALS), ON PERUSAL OF THE AUDITE D BALANCE SHEET AND PROFIT LOSS ACCOUNT FOR THE ASSESSMENT YEAR 2000 - 01, HAS GIVEN A FINDING THAT THE PROJECT HAD STARTED AFTER 1 ST APRIL 1999 I.E., MUCH AFTER 1 ST OCTOBER 1998, THE REFORE, BENEFIT OF SECTION 801B (10) CANNOT BE DENIED. THAT ON A PERUSAL OF THESE AUDITED BALANCE SHEET FOR THE ASSESSMENT YEARS 1999 - 2000 AND 2000 - 01, WHICH WERE FILED FOR THE FIRST TIME BEFORE THE L D COMMISSIONER (APPEALS), IT IS SEEN THAT PRIMA - FACIE IT CANNOT BE INFERRED THAT THERE WAS NO OPENING WORK - IN - PROGRESS WITH REGARD TO THESE PARTICULAR PROJECT AS APPARENTLY THERE IS NO CLEAR CUT DEMARCATION OF WORK - IN - PROGRESS OF OLD AND NEW PROJECTS. THAT F ROM THE COLUMN OF 'WORK - IN - PROGRESS' GIVEN IN THE ASSET SIDE OF THE BALANCE SHEET AS ON 31 ST MARCH 2000, THERE IS DOSING BALANCE OF RS. 72,72,403 / - AND R S. 4,41,565 / - UNDER THE HEAD 'WORK - IN - PROGRESS - NEW PROJECT'. PROFIT & LOSS ACCOUNT SHOWS THAT THERE IS AN OPENING WORK - IN - PROGRESS OF RS.2,43,50, 382/ - . THAT W ITHOUT ANY BIFURCATION, IT IS VERY DIFFICULT TO INFER ABOUT THE CONCLUSION DRAWN BY THE LEARNED COMMISSIONER (APPEALS), THEREFORE, THIS MATTER REQUIRES EXAMINATION AND VERIFICATION OF THE RECORDS WHICH HAS BEEN SUBMITTED BY 8 ITA NO. 2340/MUM/2017 M/S. BHOOMI DEVELOPERS THE ASSESSEE BEFORE THE LEARNED COMMISSIONER (APPEALS). TH AT TH US, IT DOES CONSTITUTE ADDITIONAL EVIDENCE W HICH REQUIRES OPPORTUNITY FOR VERIFICATION AND EXAMINATION BY THE ASSESSING OFFICER. TH AT TH EREFORE, WE ARE OF THE CONSIDERED OPINION THAT INSOFAR AS THE LEARNED COMMISSIONER (APPEALS) FINDING THAT THE PROJECT HAD COMMENCED AFTER 1 ST OCTOBER 1998 REQUIRES TO BE EXAMINED BASED ON THE ADDITIONAL EVIDENCES FILED BEFORE THE LEARNED COMMISSIONER (APPEALS) BY THE AS SESSING OFFICER. ACCORDINGLY, THE ITAT SET ASIDE THE IMPUGNED ORDER PASSED BY THE LEARNED COMMISSIONER (APPEALS) AND RESTORE D THIS MATTER BACK TO THE FILE OF THE ASSESSING OFFICER AND DIRECT ED HIM TO EXAMINE THE SAME IN THE LIGHT OF THE ADDITIONAL EVIDENCE FILED BEFORE THE LEARNED COMMISSIONER (APPEALS). 13. FROM THE ABOVE, IT IS EVIDENT THAT THE SAID MATTER WAS SET ASIDE TO THE FILE OF THE A.O. TO GI VE A FINDING AFRESH AS TO WHETHER THE PROJECT CAN BE SAID TO HAVE COMMENCED AFTER 01.10.1998. IN THE SUBSEQUENT ASSESSMENT PROCEEDINGS, THE A.O. ASKED THE ASSESSEE TO PRODUCE THE NECESSARY EVIDENCE. THE ASSESSEE ONLY REITERATED THAT IT HAD ALREADY SUBMITTE D BALANCE SHEET AND PROFIT AND LOSS ACCOUNT FOR THE A.YS. 1999 - 2000 AND 2000 - 01. THE ASSESSEE DID NOT PRODUCE ANY FURTHER EVIDENCE. HENCE, THE A.O. OBSERVED THAT THE ASSESSEE HAS FAILED TO BRING ANY DOCUMENTARY EVIDENCE IN SUPPORT OF COMMENCEMENT OF THE P ROJECT AFTER 01.10.1998. IN THIS CONNECTION, WE NOTE THAT THESE BALANCE SHEETS AND FINANCIAL STATEMENTS WERE ALREADY BEFORE THE ITAT AND SEEING THOSE DOCUMENTS THE ITAT HAD HELD THAT PRIMA FACIE IT CANNOT BE INFERRED FROM THESE DOCUMENTS THAT THE PROJECT C OMMENCED AFTER 01.10.199 8 AND IN THIS BACKGROUND, THE MATTER WAS REMITTED TO THE A.O. 9 ITA NO. 2340/MUM/2017 M/S. BHOOMI DEVELOPERS TO EXAMINE IN LIGHT OF THE ADDITIONAL EVIDENCE. THE ASSESSEES CONTENTION IS THAT THE ITAT HAD ONLY ASKED THE A.O. TO EXAMINE ONLY THE ADDITIONAL EVIDENCE. I FIND THAT TH IS IS TOTALLY AN ERRONEOUS ASSUMPTION AS NOTED EARLIER THE ITAT HAS ITSELF FOUND THAT THOSE FI NANCIAL STATEMENTS DID NOT GIVE THE NECESSARY BIFURCATION OF THE WORK - IN - PROGRESS ,WHICH IN THE OPINION OF ITAT DIDN T GIVE COGENT EVIDENCE THAT THE PROJECT COMME NCED AFTER 1.10.98 . HENCE, ITAT HAS HELD THAT IT COULD NOT BE INFERRED THAT THE PROJECT WAS COMMENCED AFTER 01.10.1998. HENCE, I FIND THAT CONSEQUENT ON THE AFORESAID REMAND BY ITAT , THE A.O. HAS RIGHTLY ASKED FOR NECESSARY EVIDENCES WHICH THE ASSESSEE FAILED TO PROVIDE. IN THIS CONNECTION, I ALSO NOTE THAT THE ASSESSEE HAS SUBMITTED CERTIFICATE FROM THE CHARTERED ACCOUNTANT VIDE LETTER DATED 22.01.2018 CLAIMING THAT THE ITAT BENCH HAD DIRECTED TO SUPPLY THE SAME. IN THIS CONNECTION, IT IS NOTED THAT THE RE IS NO SUCH DIRECTION OF THE BENCH NOTED IN THE ORDER SHEET. FURTHER, THE LD. DR HAS POINTED THAT THIS CERTIFICATE IS FROM ANOTHER AUDITOR. IN THIS CONNECTION, I FIND THAT IN THE ITAT ORDER PURSUANT TO WHICH THE MATTER WAS REMANDED TO THE A.O., THE DIREC TION WAS TO EXAMINE AND GIVE A FINDING REGARDING THE COMMENCEMENT OF WORK AFTER 01.10.1998. IN MY CONSIDERED OPINION, THIS CA CERTIFICATE CANNOT BE CONSIDERED TO BE A COMPLIANCE OF THE ITAT DIRECTION AS ABOVE. FURTHERMORE IT IS NOTED THAT IN SUBSEQUENT ASS ESSMENT YEARS ASSESSEE DID NOT CLAIME THIS DEDUCTION. FURTHERMORE, I NOTE THAT THE CONSTITUTIONAL BENCH (S.C) DECISION IN THE CASE OF COMMISSIONER OF CUSTOMS VS DILIP KUMAR , ORDER DATED 20.07.2018 HAS HELD THAT IT IS WELL S ETTLED THAT IF TWO VIEWS ARE PO SSIBLE IN RELATION TO EXEMPTION PROVISION , ONE IN FAVOUR OF THE REVENUE SHOULD BE ADOPTED. ACCORDINGLY I HOLD THAT SUBSEQUENT TO THE REMAND BY 10 ITA NO. 2340/MUM/2017 M/S. BHOOMI DEVELOPERS ITAT THE ASSESSEE HAS NOT BEEN ABLE TO COGENTLY DEMONSTRATE COMMENCEMENT OF PROJECT AFTER THE SPECIFIED DATE TO BE THE ELIGIBLE FOR DEDUCTION U/S. 80IB(10). ACCORDINGLY, IN THE BACKGROUND OF AFORESAID DISCUSSION AND PRECEDENT I DO NOT FIND ANY INFIRMITY IN THE ORDERS OF THE AUTHORITIES BELOW. IN THE RESULT, THE ASSESSEES APPEAL IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 8/11/2018 SD/ - (S HAMIM YAHYA) A CCOUNTANT MEMBER MUMBAI ; DATED : 8/11/2018 ROSHANI , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT - CONCERNED 5. DR, ITA T, MUMBAI 6. GUARD F ILE BY ORDER, (DY./ASSTT. REGISTRAR) ITAT, MUMBAI