M/S. BSF INIDA LTD, MUMBAI V. THE ACIT 9(1), MUMBAI

ITA 2537/MUM/2008

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75207 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 8 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: K
• Next Hearing Date: 09-01-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 10-04-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S J SINGH
• Keywords: Search and seizure; Retrospective amendment; Non compliance; Assessment record
• Section: 143(3); 153A; 80IB

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI . . , !'#$ , % & BEFORE SHRI B.R. MITTAL, JM AND SHRI N.K. BILLAIYA, AM ./ I.T.A. NOS. 4149 TO 4153/MUM/2012 ( ' ' ' ' / ASSESSMENT YEARS : 2004-05 TO 2008-09 THE ACIT,CENTRAL CIRCLE-9, OLD CGO ANNEXE BLDG., MUMBAI-400 020 / VS. M/S. ACME COMBINES, ACEME GHAR, 19, K.D. ROAD, VILE PARLE (W), MUMBAI-400 058 ( % ./ )* ./ PAN/GIR NO. : AABFA 3511F ( (+ / APPELLANT ) .. ( ,-(+ / RESPONDENT ) (+ . / APPELLANT BY: SHRI S.J. SINGH ,-(+ / . / RESPONDENT BY: SHRI VIJAY MEHTA / 01% / DATE OF HEARING :02 01.2014 23' / 01% / DATE OF PRONOUNCEMENT :02. 01.2014 4 / O R D E R PER N.K. BILLAIYA, AM: IN ALL THESE APPEALS BY THE REVENUE ARE DIRECTED AG AINST THE ORDER OF THE LD. CIT(A)-37 DT. 26.3.2012 PERTAINING TO ASSES SMENT YEARS 2004-05 TO 2008-09. AS COMMON ISSUES ARE INVOLVED IN ALL T HESE APPEALS, THEY WERE HEARD TOGETHER AND DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. ITA NOS 4149 TO 4153/M/12 2 2. IN ALL THESE APPEALS REVENUE HAS RAISED COMMON G ROUNDS WHICH READ AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN ALLOWING RELIEF TO THE ASSESSEE TO THE EXTENT IMPUGNED ON THE GROUND ENUMERATED BELOW: (I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(A) WAS NOT JUSTIFIED IN ALLOWING THE DE DUCTION U/S. 80IB EVEN IF EACH BUILDING BEING A SEPARATE PR OJECT IS BUILT UP ON A PLOT OF LAND HAVING AN AREA OF LESS T HAN ONE ACRE CONTRAVENES THE PROVISIONS OF SECTION 80IB(10( B) OF THE INCOME-TAX ACT, 1961. (II) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(A) WAS NOT JUSTIFIED IN ALLOWING DEDUCT ION U/S. 80IB AS SOME OF THE RESIDENTIAL UNITS ARE HAVING A BUILT UP AREA EXCEEDING 1000 SQ. FT. CONTRAVENING THE PROVIS IONS OF SEC. 80IB(10(C) OF THE I.T. ACT, 1961. 3. THE GRIEVANCE RAISED VIDE GROUND NO. 1 RELATES TO THE SIZE OF THE PLOT OF LAND. ACCORDING TO THE REVENUE THE AREA BE ING LESS THAN ONE ACRE IS IN CONTRAVENTION OF THE PROVISIONS OF SEC. 80IB( 10)(B) OF THE ACT. AT THE VERY OUTSET, THE LD. COUNSEL FOR THE ASSESSEE S UBMITTED THAT THIS ISSUE IS SETTLED IN FAVOUR OF THE ASSESSEE BY THE DECISIO N OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF THE ASSESS EE IN REGULAR ASSESSMENT FRAMED U/S. 143(3) OF THE ACT. 4. THE LD. DEPARTMENTAL REPRESENTATIVE COULD NOT CO NTROVERT THIS BY BRINGING ANY DISTINGUISHING FACT ON RECORD. 5. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE LOW ER AUTHORITIES AND THE ASSESSMENT ORDER U/S. 143(3) WHICH TRAVELLED U PTO THE HIGH COURT. THE ASSESSMENT UNDER CONSIDERATION ARE FRAMED U/S. 153A OF THE ACT AFTER ITA NOS 4149 TO 4153/M/12 3 SEARCH AND SEIZURE OPERATION. WE FIND THAT IDENTIC AL ISSUES WERE ALSO THERE IN THE REGULAR ASSESSMENT FRAMED U/S. 143(3) OF THE ACT. NO NEW FACTS OR FINDINGS WHICH HAVE EMERGED DURING THE SE ARCH PROCEEDINGS IN REGARD TO ISSUE OF SIZE OF PLOT. HOWEVER, WHILE CO MPLETING THE ASSESSMENT U/S. 153A, THE AO HAS NOT ACCEPTED THE ORDER OF THE TRIBUNAL BY STATING THAT NEW FACTS EMERGED WHICH WERE NOT AVAILABLE AT THE TIME OF EARLIER PROCEEDINGS U/S. 143(3) OF THE ACT. DURING THE APP ELLATE PROCEEDINGS, THE LD. CIT(A) REQUESTED THE AO TO FURNISH WHAT ARE THO SE NEW FACTS WHICH HAVE EMERGED AFTER THE DATE OF THE ORDER OF THE TRI BUNAL . THE AO FILED A REMAND REPORT DT. 27.2.2012. THE RELEVANT PORTION OF THE REMAND REPORT IS REPRODUCED HEREUNDER: THE ASSESSEE HAS CONTENDED THAT NO NEW FACTS HAVE BEEN MENTIONED IN THE IMPUGNED ASSESSMENT ORDER OTHER TH AN THE ONES ENUMERATED IN THE ORIGINAL ORDER THAT HAS BEE N SET ASIDE BY THE HONBLE ITAT ON THE ISSUE OF PLOT OF LAND BEING LESS THAN ONE ACRE. IN THIS REGARD, I HAVE VERIFIED THE REGULAR ASSESSM ENT RECORDS OF THE ASSESSEE FIRM FOR THE A.YRS 2004-05 & 2005-0 6 AND ALSO THE ASSESSMENT RECORDS FOR THE A.YRS 2004-05 T O 2008- 09 AND THE RESPECTIVE ORDERS PASSED U/S. 143(3) R.W .S. 153A OF THE I.T. ACT, 1961. ON PERUSAL OF THE DETAILS F ILED AND VERIFIED FROM THE RECORDS, IT IS OBSERVED THAT IN B OTH THE ASSESSMENT ORDERS THE RESPECTIVE A.OS HAVE POINTED OUT ALMOST SAME SET OF FACTS AS FAR AS NON COMPLIANCE O F CONDITIONS LAID DOWN U/S. 80IB(10(B) OF THE I.T. AC T IS CONCERNED. IT IS ALSO A MATTER OF FACT THAT THE ASS ESSEE FIRM HAS GOT RELIEF ON THIS COUNT FROM THE CIT(A) AND HO NBLE ITAT MUMBAI HAS FURTHER UPHELD THE DECISION OF THE CIT(A) BY DISMISSING THE APPEAL FILED BY THE REVENUE FOR A .Y. 2004- 05 AND 2005-06 WITH RESPECT TO ORIGINAL ASSESSMENT ORDERS PASSED U/S. 143(3) OF THE ACT. LATER, THE REVENUE HAS ALSO LOST ITS CASE BEFORE HONBLE HIGH COURT OF BOMBAY. HOWEVER, THE REVENUE HAS NOT ACCEPTED THE JUDICIAL DECISION IN THIS REGARD AND PREFERRED AN SLP BEFORE HONBLE SUPREME COURT OF INDIA WHICH IS PENDING AS OF NOW. ITA NOS 4149 TO 4153/M/12 4 6. A PERUSAL OF THE AFORESTATED REMAND REPORT SHOW THAT THE AO CONFIRMED THAT THE FACTS MENTIONED IN THE ORIGINAL ASSESSMENT ORDER AS WELL AS IN THE IMPUGNED ASSESSMENT ORDER U/S. 153A ARE THE SAME. THIS BEING THE FACT OF THE MATTER, IT CANNOT BE SAID THA T NEW SET OF FACTS HAVE EMERGED DURING THE COURSE OF ASSESSMENT U/S. 153A. NOW THAT THIS ISSUE HAS ALREADY ATTAINED ITS FINALITY IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE TRIBUNAL IN ITA NOS. 4060 & 4061/M/08 WHICH HAS BEEN CONFIRMED BY THE HONBLE JURISDICTIONAL HIGH COURT IN I.T.X.A.L. 1452 WITH 1453/2010. RESPECTFULLY FOLLOWING THE ORDER O F THE TRIBUNAL AS CONFIRMED BY THE HONBLE JURISDICTIONAL HIGH COURT, GROUND NO. 1 IS ACCORDINGLY DISMISSED. 7. THE ISSUE RAISED IN GROUND NO. 2 RELATES TO THE GRIEVANCE THAT SOME OF THE RESIDENTIAL UNITS ARE HAVING A BUILT UP AREA EXCEEDING 1000 SQ. FT. IS IN CONTRAVENTION OF THE PROVISIONS OF SEC. 80IB(10 )(C) OF THE ACT. IT WAS THE CONTENTION OF THE ASSESSEE THAT THE EXPRESSION RESIDENTIAL UNITS MUST HAVE A CONNOTATION AS ASSIGNED TO IT BY LOCAL AUTHO RITIES GRANTING APPROVAL TO THE PROJECT AND IF A LOCAL AUTHORITY H AS APPROVED BUILDINGS PLAN WITH RESIDENTIAL UNIT OF LESS THAN 1000 SQ FT AND GRANTED COMPLETION CERTIFICATE AS SUCH DEDUCTION U/S. 80IB(10) HAS TO BE ALLOWED. THE ASSESSEE FURTHER CONTENDED THAT PURCHASE OF TWO ADJ OINING FLATS BY THE SAME BUYERS OR WITHIN ONE FAMILY BY ITSELF WAS NOT RESTRICTED AND NO ADVERSE CONCLUSIONS COULD BE DRAWN FROM THEM. IT W AS FURTHER SUBMITTED THAT EVEN IF THE ALLEGATION OF THE LD. AO THAT THE TWO FLATS WERE SOLD AS ONE COMBINED UNIT WAS CORRECT, FACTS ON RECORD WOU LD REVEAL THAT THE TOTAL COMBINED AREA IN NO CASE EXCEEDS 1000 SQ. FT. WE FIND FORCE IN THE SUBMISSIONS OF THE ASSESSEE. THE PROHIBITION AGAIN ST SALE OF MORE THAN ONE FLAT IN A HOUSING PROJECT TO MEMBERS OF SAME FA MILY HAS BEEN ITA NOS 4149 TO 4153/M/12 5 INSERTED SPECIFICALLY WITH EFFECT FROM 1.4.2010 AND THE SAME CANNOT BE TREATED WITH RETROSPECTIVE EFFECT. 8. A PERUSAL OF THE PROVISIONS OF SEC. 80IB(10) WOU LD SHOW THAT IT PROVIDES DEDUCTION FOR HOUSING PROJECTS WHICH ARE A PPROVED ON OR AFTER 1.10.1998 AND UPTO 31.3.2008. IT ALSO DIFFERENTIAT ES THE PROJECTS APPROVED BETWEEN 1.10.1998 TO 31.3.2004, 1.4.2004 T O 31.5.2005 AND 1.4.2005 TO 31.3.2008. IF THE SECTION IS FURTHER A NALYSED, IT IS BASED UPON THE APPROVAL OF THE PROJECT. IF THE PROJECT IS ALR EADY APPROVED PRIOR TO 1.4.2005, ANY SUBSEQUENT RESTRICTION BROUGHT IN SEC . 80IB WOULD HAVE TO BE GIVEN PERCEPTIVE EFFECT. SIMILAR VIEW HAS TAKEN BY THE TRIBUNAL IN THE CASE OF GLOBAL REALITY VS ITO 134 ITD 407, HAWARE CONSTRUCTIONS (P) LTD. 64 DTR 51 (BOM), ITO VS AIR DEVELOPERS 25 DTR 287 AND ALSO BY THE HONBLE BOMBAY HIGH COURT IN 35 TAXMAAN .CO M 09. 9. AFTER GIVING A THOUGHTFUL CONSIDERATION TO THE FACTS OF THE CASE IN THE LIGHT OF THE JUDICIAL DECISIONS CITED HEREINABO VE, WE DO NOT FIND ANY MERIT IN THIS GRIEVANCE OF THE REVENUE WHICH IS AC CORDINGLY DISMISSED. 10. IN THE RESULT, THE APPEALS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 02.01.2014 . 4 / 3' % 5 67 02.01.2014 3 / 8 SD/- SD/- (B.R. MITTAL ) (N.K. BILLAIYA) /JUDICIAL MEMBER % / ACCOUNTANT MEMBER MUMBAI; 6 DATED 02.01.2014 . . ./ RJ , SR. PS ITA NOS 4149 TO 4153/M/12 6 4 4 4 4 / // / ,0! ,0! ,0! ,0! 9!'0 9!'0 9!'0 9!'0 / COPY OF THE ORDER FORWARDED TO : 1. (+ / THE APPELLANT 2. ,-(+ / THE RESPONDENT. 3. : ( ) / THE CIT(A)- 4. : / CIT 5. !;8 ,0 , , / DR, ITAT, MUMBAI 6. 8< = / GUARD FILE. 4 4 4 4 / BY ORDER, -!0 ,0 //TRUE COPY// > >> > / ? ? ? ? ) ) ) ) (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI