DCIT- 26 (1), MUMBAI V. GUNDECHA BUILDERS, MUMBAI

ITA 2553/MUM/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 1201 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-10-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 11-07-2022
• Assessment Year: 2008-2009
• Appeal Filed On: 30-12-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 147; 148; 143(3); 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “G” BENCH, MUMBAI BEFORE SHRI PRASHANT MAHARISHI, AM AND SHRI PAVAN KUMAR GADALE, JM ITA No. 2553/Mum/2021 (Assessment Year 2008-09) DCIT Room No.623, 6 th F loor, Kautil ya Bha van, BKC, Bandra (E ) Mum bai-400 051 Vs. Gundecha Builders 801, Hubtown solaris, N.S. Phadke Marg, Off Teli Gali, Andheri (E), Mumbai-400 069 (Appellant) (Respondent) PAN No. AAAFG 0848 E Assessee by : Shri Vimal Punmiya, AR Revenue by : Shri S. Anbuselvam, DR Date of hearing: 12.07.2022 Date of pronouncement: 11.10.2022 O R D E R PER PRASHANT MAHARISHI, AM: 01. This appeal is filed by the Dy. Commissioner of Income Tax-26(1), Mumbai against the order of National Faceless Appeal Centre [the learned CIT (A)] for A.Y. 2008-09 passed on 15 th September 2021 raising solitary grounds of appeal against allowing the claim under Section 80IB of the Income-tax Act, 1961 (the Act). 02. The brief fact of the case shows that the assessee is a company engaged in the business of builders and developers, it filed its return of income declaring total Page | 2 ITA No. 2553/Mum/2021 Gundecha Builders; A.Y. 08-09 income of ₹5,05,27,022/- on 29 th September 2018. Subsequently, the assessment under Section 143(3) of the Act,was passed on 30 th December 2010, determining total income ₹9,69,31,939/-. Subsequently, notice under Section 143 of the Act was issued on 26 th March 2014, wherein reason was recorded that assessee has claimed deduction under Section 80IB of the Act, of ₹2,11,00,915/- and in A.Y. 2006-07 also, similar claim was made. For A.Y. 2006-07, in the assessment proceedings the claim was disallowed. The disallowance was on account of that assessee has not fulfilled the certain conditions of the project. Accordingly, based on the earlier assessment order and findings containing therein, the case of the assessee was reopened for this year. In response to notice under Section 148 of the Act, assessee reiterated the original return filed. 03. Assessee was questioned about the claim of deduction under Section 80IB (10) of the Act in respect of Housing Project at Poisar. The learned Assessing Officer found that. i. Commencement certificate furnished, which was issued on 14 th January 2000 in the name of another person and not in the name of the assessee. ii. The acquisition of land though in the name of the assessee but as a person not in the name of the assessee, the real owner of the land is Page | 3 ITA No. 2553/Mum/2021 Gundecha Builders; A.Y. 08-09 somebody else and therefore, assessee is not eligible for deduction. 04. Assessee gave detail answers to all these queries, however, the learned Assessing Officer rejected the same and passed an order under Section 143(3) read with section 147 of the Act on 11 th March, 2016, determining the total income of the assessee at ₹7,05,38,937/-, wherein deduction under Section 80IB (10) of the Act was withdrawn of ₹2,11,00,915/-. 05. Assessee preferred the appeal before the learned CIT (A), challengingthe reopening of the assessment and also, on the merits of the case. The learned CIT (A) noted that this issue has already been decided by the co-ordinate Bench as per order dated 23 rd February 2017 in ITA No.6108/Mum/2014 for A.Y. 2006-07. He therefore held that as the very foundation for initiation of action under Section 147 of the Act for A.Y. 2008-09 was passed on facts and findings for A.Y. 2006-07 which after the decision of the co-ordinate Bench ceased to exist and therefore, the reopening was quashed. Revenue is aggrieved with that order and has preferred the appeal before us. 06. We have heard the rival contentions and perused the orders of the lower authorities. The ground of appeal raised by the learned Assessing Officer in the above appeal are as under: - Page | 4 ITA No. 2553/Mum/2021 Gundecha Builders; A.Y. 08-09 “1. Whether on the facts and in the circumstances of the case and law, the Hon'ble ITAR is correct in allowing the claim under Section 80IB of the Income Tax Act, 1961 despite the fact that the assessee was neither the owner of the land on which the scheme in respect of which deduction under Section 80IB is claimed nor the occupancy certificate of the scheme is issued in the name of the assessee by the local authority. 2. On the facts and in the circumstances of the case and in law, though the mandatory details required for deduction under Section 80IB was not provided in audit report in Form No.10CCB.” 07. The learned Assessing Officer has not challenged the order of the learned CIT (A), wherein reopening of the assessment proceedings is quashed. The learned Assessing Officer has challenged the order only on the merits of disallowance of deduction under Section 80IB of the Act. The learned CIT (A) has not decided the issue on merits of the case. He is merely quashed the reopening of the assessment because the original functional material for the reopening was the assessment order passed by the learned Assessing Officer for A.Y. 2006-07 that has already been decided for 2006-07 in favor of the assessee. Therefore, as the order of the learned Assessing Officer for A.Y. 2006-07 ceased to exist, naturally, reopening made on that basis cannot survive. Therefore, on this ground Page | 5 ITA No. 2553/Mum/2021 Gundecha Builders; A.Y. 08-09 itself, the appeal of the learned Assessing Officer deserves to be dismissed. 08. In the result, the appeal filed by the learned Assessing Officer is dismissed. Order pronounced in the open court on 11.10.2022. Sd/- Sd/- (PAVAN KUMAR GADALE) (PRASHANT MAHARISHI) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) Mumbai, Dated: 11.10.2022 Sudip Sarkar, Sr.PS Copy of the Order forwarded to: 1. The Appellant 2. The Respondent. 3. The CIT(A) 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. BY ORDER, True Copy// Sr. Private Secretary/ Asst. Registrar Income Tax Appellate Tribunal, Mumbai