DCIT , CIRCLE- 3, THANE V. SADHANA BUILDERS PVT. LTD., THANE

ITA 2510/MUM/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 4476 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2008-2009
• Appeal Filed On: 23-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T S KHALSA L D
• Assessee Lawyers: AWADHESH KUMAR LD
• Section: 143(3)

Judgement Text

ITA NO.2510/MUM/2019 M/S. SADHANA BUILDERS PVT.LTD. ASSESSMENT YEAR: 2008-09 1 IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI , , BEFORE HONBLE SHRI MAHAVIR SINGH, VP AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM (HEARING THROUGH VIDEO CONFERENCING MODE) ./ I.T.A. NO.2510/MUM/2019 ( / ASSESSMENT YEAR: 2008-09) D CIT - CIRCLE - 3 ROOM NO.02, 6 TH FLOOR ASHAR IT PARK, B-WNG WAGLE INDUSTRIAL ESTATE, ROAD NO.16Z THANE(W), THANE-400 060 / VS. M/S. SADHANA BUILDERS PRIVATE LTD. DHAVAL CHHAYYA, RAM GANESH GADKARI PATH TALAOPALI,THANE(W) THANE-400 061 !' ./ ./PAN/GIR NO. AABCS-4673-D ( '$ /APPELLANT ) : ( %&'$ / RESPONDENT ) ASSESSEE BY : SHRI AWADHESH KUMAR- LD. AR REVENUE BY : SHRI T.S. KHALSA- LD. DR / DATE OF HEARING : 01/02/2021 / DATE OF PRONOUNCEMENT : 01/02/2021 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY REVENUE FOR ASSESSMENT YEAR [IN SHORT REFERRED TO AS AY] 2008-09 CONTEST THE ORDER OF L D. COMMISSIONER OF INCOME-TAX (APPEALS)-2, THANE, [IN SHORT REFERRE D TO AS CIT(A)], APPEAL NO.CIT(A)- 250/2014-15, DATED 05/02/2019 ON FOLLOWING GROUNDS OF APPEALS: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, AND IN LAW, THE LD.CIT(A) HAS ERRED IN HOLDING THAT THE PROJECT WAS COMPLETED ON OR BEFORE 31.03.2009 WHEN OCCUPATION CERTIFICATE WAS A CCORDED ONLY IN RESPECT OF 9206.30 SQ.MTR. AGAINST SANCTION OF 1196 0.15 SQ.MTR. ITA NO.2510/MUM/2019 M/S. SADHANA BUILDERS PVT.LTD. ASSESSMENT YEAR: 2008-09 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, AND IN LAW, THE LD.CIT(A) HAS ERRED IN CONFIRMING THE DECISION OF T HE LD.CIT(A) BASED ON IN CORRECT FACT THAT SANCTION WAS ACCORDED ON 26.10 .2004 IN RESPECT OF LAND OF NET SIZE OF FOR A PROJECT ADMEASURING 11960 .15 SQ.MTRS. SO WHEREAS FOR THE PURPOSE OF DATE OF LIMITATION I.E 3 1.03.2009 FOR COMPLETION OF PROJECT, THE DATE OF INITIAL SANCTION I.E 26.10. 2004 IS RELEVANT, THE PROJECT SHALL BE CONSIDERED COMPLETE ONLY WHEN OCCUPANCY/ COMPLETION CERTIFICATE IS GRANTED IN RESPECT OF THE ENTIRE ARE A OF 11960.15 SQ.MTRS. 2. UPON PERUSAL OF IMPUGNED ORDER, IT COULD BE OBSE RVED THAT LEARNED FIRST APPELLATE AUTHORITY HAS MERELY FOLLOW ED THE ORDER OF TRIBUNAL IN ASSESSEES OWN CASE FOR AY 2009-10, ITA NO.597/MUM/2013 ORDER DATED 01/01/2016 WHILE GRANTI NG RELIEF TO THE ASSESSEE. THE RELEVANT EXTRACT OF THE ORDER HAS ALREADY BEEN REPRODUCED IN THE IMPUGNED ORDER. IN FACT, THE CITE D ORDER OF TRIBUNAL HAS SUBSEQUENTLY BEEN FOLLOWED BY COORDINA TE BENCH WHILE ADJUDICATING REVENUES APPEAL FOR AY 2010-11, ITA NO.2099/MUM/2015 ORDER DATED 15/12/2016, A COPY OF WHICH HAS BEEN PLACED ON RECORD. THE AFORESAID POSITION HAS R EMAINED UNDISTURBED BEFORE US. NO CHANGE IN FACTS HAS BEEN DEMONSTRATED BEFORE US. THERE IS NOTHING ON RECORD TO INDICATE T HAT THE AFORESAID DECISIONS HAVE BEEN REVERSED OR NOT APPLICABLE, IN ANY MANNER. IN THE ABOVE BACKGROUND, OUR ADJUDICATION TO THE APPEA L WOULD BE AS GIVEN IN SUCCEEDING PARAGRAPHS. THE ASSESSEE IS STA TED TO BE ENGAGED AS BUILDERS AND DEVELOPERS. 3.1 THE ASSESSEE WAS ASSESSED FOR THE YEAR UNDER CO NSIDERATION U/S 143(3) R.W.S. 147 ON 29/03/2014 WHEREIN THE DED UCTION CLAIMED U/S 80IB(10) AMOUNTING TO RS.701.40 LACS WAS DISALL OWED AND ADDED TO THE INCOME OF THE ASSESSEE. IT TRANSPIRED THAT THE ASSESSEE HAD UNDERTAKEN TO CONSTRUCT A PROJECT IN T HE NAME OF ITA NO.2510/MUM/2019 M/S. SADHANA BUILDERS PVT.LTD. ASSESSMENT YEAR: 2008-09 3 DHAVAL HILLS ADMEASURING 11960.15 SQ.MTS. WHICH W AS APPROVED BY THE LOCAL AUTHORITY (TMC) ON 09/07/2004. FOR CON STRUCTION OF THE PROJECT, THE ASSESSEE HAD ENTERED INTO A DEVELOPMEN T AGREEMENT WITH ANOTHER ENTITY NAMELY M/S. GAYTRI ASSOCIATES O N 29/12/2005 WHEREIN AS PER CLAUSE NO. H OF THE SAID AGREEMENT , THE ASSESSEE HAD GIVEN CONTRACT FOR CONSTRUCTION OF BUILDINGS A AND B OF DHAVAL HILLS WITH MATERIAL TO M/S GAYTRI ASSOCIAT ES AS APPROVED BY TMC. THE PROFIT OF RS.701.40 LACS ARISING ON SALE O F FLATS IN THE AFORESAID BUILDINGS WAS CLAIMED EXEMPT U/S 80IB(10) OF THE ACT FOR AY 2008-08 AND IN SUBSEQUENT YEARS ALSO FOR THE SAM E PROJECT. 3.2 HOWEVER, LD. AO OBSERVED THAT DURING ASSESSMENT PROCEEDINGS FOR AY 2009-10, IT WAS NOTED THAT THE P ROJECT WAS APPROVED DURING F.Y.2005-06 AND THEREFORE, THE ASSE SSEE WAS REQUIRED TO COMPLETE THE CONSTRUCTION OF BUILT UP A REA OF 11960.15 SQ.MTS. BY 31/03/2009. HOWEVER, THE ASSESSEE FAILED TO DO AS IT HAD COMPLETED CONSTRUCTION OF BUILT-UP AREA OF 1159 2.43 SQ.MTS. ONLY MEANING THEREBY THAT THE AREA OF 367.72 SQ.MTS . REMAINED UNCONSTRUCTED. ACCORDINGLY, DEDUCTION CLAIMED U/S 8 0IB(10) FOR AY 2009-10 WAS DISALLOWED. 3.3 SINCE SIMILAR WERE THE FACTS IN AY 2008-09, THE CASE WAS REOPENED AS PER DUE PROCESS OF LAW. AS PER COMPLETI ON /OCCUPANCY CERTIFICATE DATED 09/12/2008 ISSUED BY TMC, THE ASS ESSEE HAD COMPLETED CONSTRUCTION OF BUILT UP AREA OF 11592.43 SQ. AS AGAINST APPROVED CONSTRUCTION OF BUILT UP AREA OF 11960.15 SQ.MTS. THEREFORE, AS PER LD. AO THE PROJECT WAS NOT FULLY COMPLETED AND THE ASSESSEE VIOLATED CONDITIONS FOR CLAIMING DEDUC TION U/S 80IB(10). THOUGH THE ASSESSEE DEFENDED ITS STAND OF CLAIMING ITA NO.2510/MUM/2019 M/S. SADHANA BUILDERS PVT.LTD. ASSESSMENT YEAR: 2008-09 4 DEDUCTION, LD. AO REJECTED THE SAME AND DISALLOW TH E DEDUCTION AS CLAIMED U/S 80IB(10). 4. THE LD. CIT(A), AT PARA 4.3 OF THE ORDER, RELYIN G UPON THE CITED ORDER OF TRIBUNAL IN ASSESSEES OWN CASE FOR AY 200 9-10, PRINCIPALLY ALLOWED THE CLAIM OF THE ASSESSEE AFTER DIRECTING LD. AO TO EXCLUDE INTEREST INCOME AND OTHER INCOME FROM RA TNAGIRI PROJECT WHICH WAS NOT ELIGIBLE FOR DEDUCTION. AGGRIEVED, TH E REVENUE IS IN FURTHER APPEAL BEFORE US. 5. IT IS EVIDENT THAT THE FACTS OF THE CASE ARE SQU ARELY COVERED BY THE DECISION OF THIS TRIBUNAL IN ASSESSEES OWN CAS E FOR AY 2009- 10 WHICH HAS BEEN FOLLOWED BY COORDINATE BENCH SUBS EQUENTLY IN AY 2010-11 ALSO AS DETAILED IN PRECEDING PARA-2. TH EREFORE, WE SEE NO REASON TO DEVIATE FROM THE SAME, FACTS AND C IRCUMSTANCES BEING REMAINING THE SAME. 6. THE APPEAL STAND DISMISSED IN TERMS OF OUR ABOVE ORDER. ORDER PRONOUNCED ON 01 ST FEBRUARY, 2021 SD/- SD/- (MAHAVIR SINGH) (MANOJ KUMAR AGGARWAL) / VICE PRESIDENT / ACCOUNTANT MEMBER MUMBAI; DATED : 01/02/2021 SR.PS, KASARLA THIRUMALESH / COPY OF THE ORDER FORWARDED TO : 1. '$ / THE APPELLANT 2. %&'$ / THE RESPONDENT 3. - ( ) / THE CIT(A) 4. - / CIT CONCERNED 5. ./% ( 0 , 0 , / DR, ITAT, MUMBAI 6. /123 / GUARD FILE ITA NO.2510/MUM/2019 M/S. SADHANA BUILDERS PVT.LTD. ASSESSMENT YEAR: 2008-09 5 / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.