The Income Tax Officer, Ward-2, Margao., Margao V. M/s Chaitanya Homes & Properties Pvt. Ltd., Margao

ITA 270/PAN/2015

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 2233 (ITAT-PANAJI)
• Duration Of Justice: 2 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 17-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAMESH S MUTAGAR LD
• Assessee Lawyers: D E ROBINSON
• Section: 115JB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI N.S. SAINI, HON'BLE ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, HONBLE JUDICIAL MEMBER ITA NO. 270/PNJ/2015 : (A.Y 2011 - 12) INCOME TAX OFFICER, WARD - 2, MARGAO (APPELLANT) VS. M/S. CHAITANYA HOMES & PROPERTIES PVT. LTD., S - 14, SECOND FLOOR, KAMAT BUILDING, NR. HARI MANDIR, MARGAO, GOA (RESPONDENT) PAN : AADCC0526F ASSESSEE BY : D.E. ROBINSON, ADV. REVENUE BY : RAMESH S. MUTAGAR, LD. DR DATE OF HEARING : 07/09/2015 DATE OF PRONOUNCEMENT : 07/09/2015 O R D E R PER GEORGE MATHAN : 1. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A), PANAJI - 1 IN ITA NO. 142/MRG/2014 - 15 DT. 11.3.2015 FOR A.Y 2011 - 12. SHRI RAMESH S. MUTAGAR , LD. DR REPRESENTED ON BEHALF OF THE REVENUE AND SHRI D.E. ROBINSON, ADVOCATE REPRESENTED ON BEHALF OF THE ASSESSEE. 2. IT WAS SUBMITTED BY THE LD. DR THAT THE ASSESSEE IS IN REAL ESTATE BUSINESS. IT WAS THE SUBMISSION THAT THE AO HAD ESTIMATED THE INCO ME OF THE ASSESSEE FOR THE PURPOSE OF COMPUTING THE BOOK PROFIT U/S 115JB. IT WAS THE SUBMISSION THAT THE LD. CIT(A) HELD THAT ESTIMATION OF INCOME WAS NOT PERMISSIBLE FOR THE PURPOSE OF COMPUTING THE BOOK PROFITS U/S 115JB OF THE 2 ITA NO. 270/PNJ/2015 (A.Y : 2011 - 12) ACT. THE LD. DR VEHEME NTLY SUPPORTED THE ORDER OF THE AO. IT WAS THE SUBMISSION THAT THE ORDER OF THE LD. CIT(A) WAS LIABLE TO BE REVERSED. 3. IN REPLY, THE LD. AR SUBMITTED THAT THE ASSESSEE IS A PRIVATE LIMITED COMPANY WHICH IS EXECUTING HOUSING PROJECTS ELIGIBLE FOR DEDUCT ION U/S 80IB(10) OF THE ACT. IT WAS THE SUBMISSION THAT THE SAID BUSINESS OF THE ASSESSEE COMPANY WAS TAKEN OVER BY A PARTNERSHIP FIRM ON 5.1.2011. IT WAS THE SUBMISSION THAT THE BUSINESS WAS TAKEN OVER BY THE PARTNERSHIP FIRM AND THE PROJECT WAS COMPLET ED. IT WAS THE SUBMISSION THAT THE PROFIT & LOSS ACCOUNT OF THE ASSESSEE COMPANY FOR THE PERIOD 1.4.2010 TO 4.1.2011 WAS PREPARED AS PER THE COMPANIES ACT AS PROVIDED U/S 115JB WHEREIN THE INCOME OF THE BUSINESS OF HOUSING PROJECT WAS INCLUDED AND ASSESSE E HAD ALSO CLAIMED DEDUCTION U/S 80IB(10) OF THE ACT IN RESPECT OF SUCH PROJECT. IT WAS THE SUBMISSION THAT IN THE COURSE OF THE ASSESSMENT, THE AO HAD ESTIMATED THE INCOME OF THE HOUSING PROJECT IN THE HANDS OF THE ASSESSEE COMPANY FOR THE PURPOSE OF COM PUTING THE BOOK PROFITS U/S 115JB. IT WAS THE SUBMISSION THAT U/S 115JB OF THE ACT, THERE IS NO PROVISION FOR ESTIMATION OF THE ASSESSEES INCOME. FOR THIS PROPOSITION, HE PLACED RELIANCE UPON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF MALA YALA MANORAMA CO. LTD. REPORTED IN 300 ITR 251 (SC) WHEREIN THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF APOLLO TYRES LTD. REPORTED IN 255 ITR 273 (SC) HAS BEEN REITERATED. IT WAS THE SUBMISSION THAT THE LD. CIT(A) HAS ALSO FOLLOWED THE DECISI ON OF THE HON'BLE SUPREME COURT IN THE CASE OF APOLLO TYRES LTD. AND MALAYALA MANORAMA CO. LTD. REFERRED TO SUPRA . IT WAS THE SUBMISSION THAT THE ORDER OF THE LD. CIT(A) WAS LIABLE TO BE CONFIRMED. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AS IT IS N OTICED THAT THE LD. CIT(A) HAS ONLY FOLLOWED THE DECISION OF THE HON'BLE SUPREME COURT IN THE 3 ITA NO. 270/PNJ/2015 (A.Y : 2011 - 12) CASE OF APOLLO TYRES LTD. AND MALAYALA MANORAMA CO. LTD. TO HOLD THAT THE AO WAS NOT JUSTIFIED IN MAKING THE ADDITION ON THE BASIS OF ESTIMATION OF INCOME TO THE PROFITS FOR THE PURPOSE OF MAT, WE ARE OF THE VIEW THAT THE FINDING OF THE LD. CIT(A) IS ON A RIGHT FOOTING AND DOES NOT CALL FOR ANY INTERFERENCE. 5. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 07/09 /2015. S D / - (N.S. SAINI) ACCOUNTANT MEMBER S D / - ( GEORGE MATHAN ) JUDICIAL MEMBER PLACE : PANAJI / GOA DATED : 07/09/ 201 5 *SSL* COPY TO : (1) APPELLANT (2) RESPONDENT (3) CIT(A) CONCERNED (4) CIT CONCERNED (5) D.R (6) GUARD FILE TRUE COPY, BY ORDER , 4 ITA NO. 270/PNJ/2015 (A.Y : 2011 - 12) DATE INITIAL ORIGINAL DICTATION PAD & DRAFT ORDER ARE ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 07/09/2015 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 0 7 /09/2015 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 0 8 /09/2015 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 0 8 /09/2015 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 0 8 /09/2015 SR.PS 6. DATE OF PRONOUNCEMENT 07/09/2015 SR.PS 7. FILE SENT TO THE BENCH CLERK 0 8 /09/2015 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER