ITO WD 2(3), THANE V. D.V. REALTORS, THANE

ITA 2732/MUM/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7161 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 17-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D G
• Assessee Lawyers: ANUJ KISNAWALA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D, MUMBAI BEFORE SHRI RAJESH KUMAR, ACCOUNTANT MEMBER AND SHRI RAM LAL NEGI, JUDICIAL MEMBER ITA NO.2732/M/2017 ASSESSMENT YEAR: 2013-14 ITO WD-2(3), 6 TH FLOOR, B WING, ROOM NO.13, ASHAR I.T. PARK, ROAD NO.16Z, NR. AMBIKA NAGAR, WAGLE INDUSTRIAL ESTAE, THANE (W)-400 064 VS. M/S. D.V. REALTORS, SHREE SHASHWAT, OPP. SAI MANSAROVAR COMPLEX, NEAR PLEASANT PARK, MIRA ROAD (E), THANE 401 107 PAN: AAFFD 1308P (APPELLANT) (R ESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI ANUJ KISNAWALA, A.R. REVENUE BY : SHRI D.G. PANSARI, D.R. DATE OF HEARING : 19.02.2019 DATE OF PRONOUNCEMENT : 05.04.2019 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE REVEN UE AGAINST THE ORDER DATED 27.01.2017 OF THE COMMISSIO NER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS TH E CIT(A)] RELEVANT TO ASSESSMENT YEAR 2013-14. 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN RESTRICTING THE DIS ALLOWANCE OF DEDUCTION U/S 80IB(10) TO THE EXTENT OF RS. 1,36,369/-. 1.1 WHETHER ON THE FACTS AND IN THE CIRCUMSTANC ES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN GRANTING ABOVE RELIEF TO THE ASSESS EE FIRM EVEN WHEN THE PROJECT WAS NOT COMPLETED WITHIN SPECIFIED TIME LIMIT AS PRESCR IBED IN SECTION 80IB(10) OF THE ACT AS THE OC FOR THE PROJECT UNDER CONSIDERATION W AS ISSUED BY THE LOCAL AUTHORITY I.E. MBMC ON 28.08.2013. ITA NO.2732/M/2017 M/S. D.V. REALTORS, 2 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCE S OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN ALLOWING THE DEDUCTION CLAIMED U/S 80IB(10) ON PRO-RATA BASIS IN THE GROSS VIOLATION OF THE SECTION AS THE BASIC CONDITI ON AS LAID BY SECTION 80IB(10)(F) OF NOT ALLOWING MORE THAN ONE UNIT TO ANY INDIVIDUAL O R FAMILY MEMBERS IS NOT FULFILLED. 3. THE ORDER OF THE CIT(A) MAY BE VACATED AND THAT OF THE ASSESSING OFFICER MAY BE RESTORED. 4. THE ASSESSEE CRAVES LEAVE TO ADD, AMEND, AL TER OR DELETE ANY GROUND OF APPEAL. 3. THE ONLY ISSUE RAISED BY THE REVENUE IS AGAINST THE ORDER OF LD. CIT(A) DIRECTING THE AO TO ALLOW THE DEDUCTION UNDER SECTION 80IB(10) TO THE TUNE OF RS.1,31,32,822/-.THE LD COU NSEL OF THE ASSESSEE POINTED OUT THAT THE AMOUNT IS WRONGLY MEN TIONED IN THE GROUND NO.1 WHICH WAS PROMPTLY CONCEDED BY THE LD DR. 4. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUE RAISED BY THE REVENUE IN THE PRESENT APPEAL IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION O F THE COORDINATE BENCH IN ASSESSEES OWN CASE IN ITA NO.3992/M/2016 A.Y. 2012-13 VIDE ORDER DATED 11.12. 2018. THE LD. A.R. SUBMITTED THAT THE FIRST APPELLATE AUT HORITY HAS ALLOWED THE RELIEF TO THE ASSESSEE BY FOLLOWING THE SAID DECISION OF THE CO-ORDINATE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE AND THEREFORE, HE SUBMITTED THAT IN VIEW OF THE SA ID ORDER , THE APPEAL OF THE REVENUE MAY KINDLY BE DISMISSED. 5. THE LD. D.R., ON THE OTHER HAND, RELIED ON THE G ROUNDS OF APPEAL FILED BY THE REVENUE. 6. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD INCLUDING THE IMPUGNED ORDER AND THE DECISIO N OF THE CO- ORDINATE BENCH OF THE TRIBUNAL, WE FIND THAT THE IS SUE IS SQUARELY SETTLED IN FAVOUR OF THE ASSESSEE BY THE CO-ORDINAT E BENCH OF THE ITA NO.2732/M/2017 M/S. D.V. REALTORS, 3 TRIBUNAL IN ITA NO.3992/M/2016 A.Y. 2012-13 VIDE OR DER DATED 11.12.2018. THE OPERATIVE PART OF THE ORDER IS REP RODUCED AS UNDER: 8.WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD INCLUDING THE IMPUGNED ORDER AND THE DECISIONS CITED BY BOTH THE PARTIES. THE UNDISPUTED FACTS ARE THAT ASSESSEE HAS APPLIED FOR ISSUE OF COMPLETION CERTIFICATE TO THE MUNICIPALITY ON 22.03 .2012 WHICH WAS WITHIN THE CUT- OFF DATE OF 31.03.2012 IN TERMS OF THE PROVISIONS O F SECTION 80(IB)(10) OF THE ACT AND THE SAID CERTIFICATE WAS ISSUED BY COMMISSIONER OF MBMC ON 28.08.2013.BESIDES, WE OBSERVE FROM THE RECORDS BEFORE US AND ORDER OF THE LD. CIT(A) THAT ARCHITECT OF THE ASSESSEE I.E. M/S. NAKASHA ARCHITECT, INDEPENDE NT ARCHITECT M/S. P.R. CONSULTANTS ISSUED COMPLETION CERTIFICATES CERTIFYI NG THE COMPLETION OF CONSTRUCTION OF BUILDING IN THE MONTH OF MARCH. SIMILARLY, WE HA VE EXAMINED OTHER VARIOUS EVIDENCES SUCH AS SAMPLE COPY OF POSSESSION LETTER DATED 15.01.2012, COPY OF CERTIFICATE DATED 10.03.2012 ISSUED BY M/S. FIRE EX T. ENGINEERING FOR COMPLIANCE OF FIRE PREVENTION AND LIFE SAFETY MEASURES DATED 12.0 2.2012 AND APPLICATION FOR TRANSFER OF ELECTRIC METERS IN THE NAME OF THE PURC HASERS. WE ARE OF THE OPINION THAT ALL THESE EVIDENCES CORROBORATE THAT ASSESSEE HAS COMPLETED THE PROJECT WITHIN THE SPECIFIED TIME AS PRESCRIBED UNDER SECTION 80(I B)(10)OF THE ACT. THE OBSERVATIONS OF THE AO AS REGARDS NON COMPLETION OF THE PROJECT ON OR BEFORE 31.03.2012, PURCHASE OF THREE FLATS BY ONE FAMILY A ND AREA OF EACH FLAT EXCEEDING 1000 SQ. FT. ARE BASED UPON WRONG APPRECIATION OF F ACTS AND BASED UPON CONJECTURES AND SURMISES OF THE AO WHICH ARE RIGHTL Y NEGATED BY THE LD. CIT(A) BY PASSING A VERY REASONED AND SPEAKING ORDER DISCUSSI NG THE SATISFACTION OF EACH AND EVERY CONDITIONALITY AS PROVIDED IN SECTION 80(IB)( 10) OF THE ACT. MOREOVER, THE CASE OF THE ASSESSEE IS SQUARELY COVERED BY THE DEC ISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. HINDUSTAN SAMUH AWAS L TD. (SUPRA) WHICH HAS BEEN CONSIDERED BY THE LD. CIT(A) AND ALSO REPRODUCED TH E OPERATIVE PARA THEREOF IN THE APPELLATE ORDER IN WHICH IT HAS BEEN HELD THAT IT W OULD BE SUFFICE IF THE ASSESSEE HAS APPLIED FOR THE ISSUANCE OF COMPLETION CERTIFICATE BEFORE THE CUT OFF DATE OR SPECIFIED DATE UNDER THE PROVISIONS OF SECTION 80(I B)(10) OF THE ACT AND ARCHITECT HAS SPECIFIED THE COMPLETION OF THE PROJECT. THE HO NBLE HIGH COURT HAS HELD THAT THE ACTUAL ISSUANCE OF COMPLETION CERTIFICATE BY TH E MUNICIPAL AUTHORITIES IS NOT RELEVANT FOR THE PURPOSE OF CLAIMING DEDUCTION UNDE R SECTION 80(IB)(10)OF THE ACT. SIMILARLY, IN THE CASE OF OM SWAMI SMARAN DEVELOPER S (P.) LTD. (SUPRA) THE CO- ORDINATE BENCH OF THE TRIBUNAL HAS HELD THAT WHERE THE CONDITIONS OF CLAUSE (F) OF SECTION 80(IB)(10) OF THE ACT IS VIOLATED IN RESPEC T OF TWO FLATS THEN THE DISALLOWANCE HAS TO BE RESTRICTED ONLY FOR THE TWO FLATS AND NOT QUA THE REMAINING FLATS WHICH COMPLIED WITH THE CONDITION AS ENVISAGED UNDER CLAU SE (F) OF THE ACT. UNDER THESE FACTS AND CIRCUMSTANCES WE FIND NO REASONS TO DEVIA TE FROM THE FINDING OF THE FIRST APPELLATE AUTHORITY. WE, THEREFORE, RESPECTFULLY FO LLOWING THE DECISION OF THE HONBLE BOMBAY HIGH COURT UPHOLD THE ORDER OF LD. C IT(A) BY DISMISSING THE APPEAL OF THE REVENUE. 7. SINCE THE ISSUE RAISED BY THE REVENUE IN THE PRE SENT APPEAL IS MATERIALLY SAME AS HAS BEEN DECIDED BY THE CO-OR DINATE BENCH ITA NO.2732/M/2017 M/S. D.V. REALTORS, 4 OF THE TRIBUNAL (SUPRA), THEREFORE, WE RESPECTFULLY FOLLOWING THE DECISION OF THE CO-ORDINATE BENCH OF THE TRIBUNAL, DISMISS THE APPEAL OF THE REVENUE BY UPHOLDING THE ORDER OF LD. CIT(A). ORDER PRONOUNCED IN THE OPEN COURT ON 05.04.2019. SD/- SD/- ( RAM LAL NEGI) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 05.04.2019. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORDER DY/ASS TT. REGISTRAR, ITAT, MUMBAI.