ITO 15(3)(2), MUMBAI V. CHHEDA CONSTRUCTION CO. (JOINT VENTURE), MUMBAI

ITA 2764/MUM/2009

• Counselvise Citation: 276419914 RSA 2009
• Duration Of Justice: 1 year(s) 11 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 12-04-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 29-04-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AJIT KUMAR SINHA
• Assessee Lawyers: K SHIVARAM
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C, MUMBAI BEFORE SHRI R.S. PADVEKAR, J.M. AND SHRI RAJENDRA SINGH, A.M. I.T.A. NO.: 2764/MUM/2009 ASSESSMENT YEAR : 2005-06 ITO-15(3)(2), MATRU MANDIR, 1 ST FLR., TARDEO ROAD, MUMBAI-400 007 VS. M/S. CHHEDA CONSTRUCTION CO. (JOINT VENTURE) 101, GOYAL SHOPPING CENTRE, S.V. ROAD, BORIVALI(W), MUMBAI-400 092 PAN NO: AAAAC2560Q (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI AJIT KUMAR SINHA RESPONDENT BY : SHRI K. SHIVARAM ORDER PER R. S. PADVEKAR (J.M.) : THIS APPEAL IS FILED BY THE REVENUE CHALLENGING T HE IMPUGNED ORDER OF THE LD. CIT(A)-XV, MUMBAI DATED 16.02.2009 FOR T HE A.Y. 2005-06. THE REVENUE HAS TAKEN THE FOLLOWING GROUND :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS IN LAW, THE LD. CIT(A) FAILED TO APPRECI ATE THE FACT THAT RESIDENTIAL PROJECT HAVE SHOPS/COMMERCIAL ESTABLISHMENTS (WHICH IS NOT IN THE NATURE OF CONVE NIENT SHOPPING) WITH BUILT UP AREA EXCEEDING 5% OF THE AGGREGATE BUILT-UP AREA OR 2000 SQ.FT. WHICHEVER IS LESS, WHICH CONTRAVENES THE STIPULATION OF SEC.80IB(10) F OR INSTANT ASSESSMENT DISENTITLING THE ASSESSEE FROM T HE CLAIM OF DEDUCTION U/S.80IB(10). 2. WE HAVE HEARD THE PARTIES. THE ASSESSEE IS A BU ILDER AND LAND DEVELOPER. THE ASSESSEE ENTERED INTO AN AGREEMENT T O DEVELOP AND CONSTRUCT A BUILDING PROJECT ON LAND BEARING NEW SURVEY NO.34 , VILLAGE PENKARPADA, MIRA TALUKA, DIST. THANE. THE ASSESSEE FILED THE RE TURN OF INCOME FOR A.Y. 2005-06, IN WHICH DEDUCTION U/S.80IB(10) WAS CLAIME D TO THE EXTENT OF 2 `. 2,20,46,215/-. THE AO DENIED THE DEDUCTION TO THE A SSESSEE ON THE REASON THAT IN THE HOUSING PROJECT WHICH CONSISTING OF 942 55 SQ. FEET, THERE WAS A SHOPPING AREA TO THE EXTENT OF 7935 SQ. FEET. THE A O WAS OF THE OPINION THAT IN VIEW OF THE AMENDMENT TO SECTION 80IB(10) WITH E FFECT FROM 01.04.2005, THE ASSESSEE WAS NOT ENTITLED FOR THE DEDUCTION U/S .80IB(10) OF THE ACT. THE ASSESSEE CHALLENGED THE ORDER OF THE AO BEFORE THE LD.CIT(A), AND THE LD.CIT(A) ALLOWED THE CLAIM OF THE ASSESSEE. THE RE VENUE IS IN APPEAL BEFORE US. THE LD. COUNSEL SUBMITTED THAT THIS ISSUE STAND S FULLY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE HON'BLE JURI SDICTIONAL HIGH COURT IN THE CASE OF CIT VS. BRAHMA ASSOCIATES 239 CTR (BOM )30. 3. WE HAVE ALSO HEARD THE LD. DR IN THIS CASE. IT I S NOT IN DISPUTE THAT THE ASSESSEES PROJECT WAS COMMENCED PRIOR TO 01.04 .2005. IN THE CASE OF BRAHMA ASSOCIATES (SUPRA), THE HON'BLE HIGH COURT H AS HELD THAT THE AMENDMENT INTRODUCED TO SECTION 80IB IS IN PROSPECT IVE IN OPERATION. IN THE PRESENT CASE, ADMITTEDLY THE PROJECT OF THE ASSESSE ES IS COMMENCED IN DECEMBER, 2003. HENCE IN OUR OPINION, THE AMENDMENT INTRODUCED TO SECTION 80IB(10) IN SPITE OF THE 5% RESTRICTION ON THE COMMERCIAL AREA IS NOT APPLICABLE. WE FIND NO REASON TO INTERFERE WITH THE ORDER OF THE LD. CIT(A). 4. IN THE RESULT, THE REVENUES APPEAL IS DISMISSED . ORDER PRONOUNCED ON THIS 27 TH DAY OF APRIL, 2011. SD/- SD/- ( RAJENDRA SINGH ) (R.S. PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DT: 27 TH APRIL, 2011 3 COPY FORWARDED TO : 1. THE APPELLANT, 2. THE RESPONDENT, 3. THE C.I.T. 4. CIT (A) 5. THE DR, C - BENCH, ITAT, MUMBAI //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI ROSHANI