K.K. KRISHNAN CONSTRUCTION CO. P. LTD, MUMBAI V. ACIT 10(1), MUMBAI

ITA 3001/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 55004 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 15-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PKB MENEN
• Assessee Lawyers: SUBHASH SHETTY

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI BEFORE SHRI. PRAMOD KUMAR (A.M.) AND SHRI. VIJAY PA L RAO (J.M) ITA NO.3001/MUM/2009 ASSESSMENT YEAR : 2006-2007 ITA NO.3002/MUM/2010 ASSESSMENT YEAR : 2007-2008 K.K. KRISHNAN CONSTRUCTION CO. P. LTD. 1,2,3 SUJATA SHOPPING CENTRE, MANIPADA VILLAGE ROAD, KALINA, SANTACRUZ (E), MUMBAI 400 098. PAN : AAACK2885L VS. A.C.I.T. 10(1) AAYAKAR BHAVAN, M.K. ROAD, MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUBHASH SHETTY RESPONDENT BY : SHRI P.K.B. MENEN O R D E R PER VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE RESPECTIVE ORDERS FOR THE AY 2006-07 AND 2007-08 RESPECTIVELY. 2. THE ASSESSEE HAS RAISED COMMON GROUNDS IN THESE APPEALS EXCEPT THE AMOUNT OF CLAIM OF DEDUCTION. THE GROUNDS RAISED F OR THE AY-2006-07 ARE REPRODUCED AS UNDER: 1. THE LD CIT(A) ERRED IN AFFIRMING THE AOS ACTIO N OF REJECTING THE APPELLANTS CLAIM FOR DEDUCTION OF RS.3,58,88,768/- U/S.80IB(10) OF THE I.T. ACT, 1961 . 2. HE FAILED TO APPRECIATE THAT THE APPELLANT HAS COMPLIED WITH ALL THE CONDITIONS SPECIFIED IN THE S AID SECTION AS PER THE DETAILS FILED ON RECORD EXCEPTING THE CONDI TION THAT THE APPELLANT SCHEME WAS NOT NOTIFIED BY THE CBDT. 3. THE LD CIT(A) HAS ERRED IN NOT APPRECIATING THE FACT THAT APPELLANT HAS MADE NECESSARY APPLICATIONS TO T HE CBDT ALONG WITH AL THE DOCUMENTARY EVIDENCE TO NOTIFY TH E SCHEMES TO ENABLE THE APPELLANT TO CLAIM THE EXEMPTION. T HE APPELLANT AS DUTY BOUND HAS COMPLIED WITH ALL THE DUTIES AND ITA NO.3001/MUM/2009 ITA NO.3002/MUM/2010 2 RESPONSIBILITIES CAST UPON THEM BY THE STATUTE. IT IS BEYOND THE MEANS AND POWERS OF THE APPELLANT TO GET THE SCHEME NOTIFIED BY THE CBDT. THE APPELLANT IS NOT EXPECTED TO PERF ORM BEYOND WHAT HE IS CAPABLE OF. 3. THE ASSESSSEE IS ENGAGED IN THE BUSINESS OF RECO NSTRUCTION AND REDEVELOPMENT OF SLUMS DWELLINGS DECLARED TO BE SLU MS AS PER LOCAL REGULATIONS APPROVED BY THE SLUM REHABILITATION AUT HORITY. THE AO NOTED THAT THE CONDITION PRESCRIBED U/S.80IB(10) REGARDIN G THE MINIMUM AREA OF PLOT HAS NOT BEEN FULFILLED BY THE ASSESSEE SINCE T HE ASSESSEE DID NOT PRODUCE THE EVIDENCE THAT THE PROJECT/SCHEME UNDERT AKEN BY THE ASSESSEE WERE NOTIFIED BY THE C.B.D.T. FOR RECONSTRUCTION OR REDEVELOPMENT OF EXISTING BUILDINGS IN THE AREA DECLARED TO BE SLUM AREA AS P ER THE PROVISION OF SECTION 80IB. THE AO FURTHER STATED THAT THE ASSESSEE HAS ALSO NOT FURNISHED THE APPROVAL OF THE LOCAL AUTHORITIES IN RESPECT OF THE PROJECT. ACCORDINGLY THE AO DISALLOWED THE CLAIM OF THE ASSESSEE U/S.80IB. ON APPEAL THE LD CIT(A) HELD THAT THE ASSESSEE FAILED TO FULFIL CERTAIN CON DITIONS LAID DOWN IN SECTION 80IB. THE CIT(A) ALSO OBSERVED THAT THE ASSESSEE DID NOT FURNISH THE COPIES OF THE APPROVAL OF THE LOCAL AUTHORITIES. 4. NOW BEFORE US THE LD AR OF THE ASSESSEE HAS PROD UCED THE GAZETTE NOTIFICATION DATED 03.08.2010 ALONG WITH CORRIGENDU M DATED 05.01.2011 AND SUBMIT THAT C.B.D.T. ISSUED A NOTIFICATION WHEREBY THE SCHEME WAS NOTIFIED W.E.F. THE DATE OF ITS PUBLICATION THEREAFTER THE C .B.D.T. HAS ISSUED A CORRIGENDUM DATED 05.01.2011 WHEREBY THE NOTIFICATI ON SHALL BE DEEM TO APPLY TO THE PROJECT APPROVED BY THE LOCAL AUTHORIT IES UNDER THE AFORESAID SCHEME ON OR AFTER 1 ST DAY OF APRIL, 2004 AND BEFORE 31.03.2008. THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESEE HAS FILED AN APPLICATION/LETTER DATED 01.03.2011 TO THE C.B.D.T. ISSUING A FURTHER CORRIGENDUM BECAUSE SOME OF THE PROJECT OF THE ASSE SSEE WERE APPROVED BEFORE 01.04.2004 AND THEREFORE ARE NOT COVERED UND ER THE NOTIFICATION CORRIGENDUM DATED 05.01.2011. THE LD AR HAS FILED THE COPIES OF THE APPROVAL OF THIS SCHEME/PROJECT AS PER THE SLUM REH ABILITATION AUTHORITY. HE HAS ALSO FILED COPIES OF THE PLANS APPROVED BY T HE LOCAL AUTHORITIES IN ITA NO.3001/MUM/2009 ITA NO.3002/MUM/2010 3 RESPECT OF THE VARIOUS PROJECT. THUS THE LD AR SU BMITTED THAT THE SOME OF THE PROJECTS ARE COVERED BY THE CBDT NOTIFICATION H OWEVER THE PROJECTS WHICH ARE APPROVED BEFORE THE 1.04.2004, THE ASSESS EE IS PERUSING THE MATTER WITH THE C.B.D.T. FOR APPROPRIATE ACTION/COR RIGENDUM. 5. ON THE OTHER HAND THE LD DR SUBMITTED THAT WHEN THE ASSESSEE FAILED TO PROVE THAT PROJECTS ARE NOTIFIED BY C.B.D.T. AS PROVIDED UNDER PROVISION OF SECTION 80IB, THEN THE ASSESSEE IS NOT ENTITLED TO DEDUCTION U/S.80IB. HE HAS RELIED ON THE ORDER OF THE LOWER AUTHORITIES. 6. WE HAVE CONSIDERED THE RIVAL CONTENTION AND CARE FULLY PERUSED THE RELEVANT MATERIAL ON RECORD. THE AO AS WELL AS LD CIT(A) HAVE DECLINE THE CLAIM BECAUSE THE ASSESSEE FAILED TO PRODUCE THE RE CORD SHOWING THAT THE PROJECT/SCHEME OF THE ASSESSEE HAVE BEEN NOTIFIED B Y THE CBDT AS WELL AS ASSESSEE, FAILED TO PRODUCE APPROVAL OF THE LOCAL A UTHORITIES. THE ASSESSEE HAS PRODUCE BEFORE US NOTIFICATION/CORRIGENDUM AS W ELL AS APPLICATION MADE BY THE ASSESSEE TO THE C.B.D.T. FOR FURTHER ACTION/ CORRIGENDUM WHICH WERE NOT AVAILABLE BEFORE THE LOWER AUTHORITIES. THERE FORE IN VIEW OF THE FACT THAT THE SOME OF THE PROJECT ARE COVERED UNDER THE NOTIF ICATION AND CORRIGENDUM ISSUED BY THE C.B.D.T. AND THE ASSESSEE IS PERUSING THE MATTER WITH THE C.B.D.T. IN RESPECT OF THE PROJECT APPROVED BEFORE 01.04.2004, THE MATTER IS REQUIRED A FRESH CONSIDERATION AT THE LEVIED OF THE AO. FURTHER WE FIND THAT THE ASSESSEE HAS PRODUCED THE APPROVAL OF THE LOCAL AUTHORITIES WHEREBY THE PROJECTS OF THE ASSESSEE WERE APPROVE BY LOCAL AUTH ORITIES AS WELL AS S.R.A. WHICH WERE ALSO NOT CONSIDERED BY THE LOWER AUTHORI TIES. THEREFORE, IN THE TOTALITY OF THE CIRCUMSTANCES AND IN THE INTEREST O F JUSTICE WE SET ASIDE THE MATTER TO THE RECORD OF THE AO FOR DECIDING THE ISS UE AFRESH AS PER THE LAW AFTER CONSIDERING THE RELEVANT MATERIAL/EVIDENCES T O BE PRODUCED BY THE ASSESSEE. ITA NO.3001/MUM/2009 ITA NO.3002/MUM/2010 4 10. IN THE RESULT, BOTH THE APPEAL OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 24 TH DAY OF AUGUST, 2011. SD/- (PRAMOD KUMAR) (ACCOUNTANT MEMBER) SD/- (VIJAY PAL RAO) (JUDICIAL MEMBER) MUMBAI, DATED 24.08.2011 JANHAVI COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)- , MUM BAI 4. COMMISSIONER OF INCOME TAX, CITY- , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH , MUM BAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI