BHAVYA CONSTRUCITON CO., MUMBAI V. ACIT 21(3), MUMBAI

ITA 3090/MUM/2010

• Counselvise Citation: 309019914 RSA 2010
• Duration Of Justice: 1 year(s) 5 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 29-09-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 20-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: L G K NAIR
• Assessee Lawyers: SANJIV M SHAH
• Keywords: Revised return
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F, MUMBAI BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI N.V. VASUDEVAN, JUDICIAL MEMBER I.T.A. NO. 3090/MUM/2010 ASSTT. YEAR : 2006-07. M/S BHAVYA CONSTRUCTION CO., ASSTT. COMMISSIONER OF 4, BHIDE BUNGALOW, 37-A, VS. INCOME-TAX, M.G. ROAD, VILE PARLE (E), CIRCLE-21(3), MUMBAI 400 057. MUMBAI. PAN : AAAFB 1375K APPELLANT. RESPONDENT. APPELLANT BY : SHRI SANJIV M. SHAH. RESPONDENT BY: SHRI L.G.K. NAIR. DATE OF HEARING : 29.09.2011. DATE OF PRONOUNC EMENT : 14-10-2011. O R D E R. PER P.M. JAGTAP, A.M. : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LEARNED CIT(APPEALS)-32, MUMBAI DATED 22-01-2010 AND THE SO LITARY ISSUE ARISING OUT OF THE SAME RELATES TO THE DISALLOWANCE OF ASSESSEES CLAIM FOR DEDUCTION U/S 80IB(10) MADE BY THE AO AND CONFIRMED BY THE LEARNED CIT(APP EALS). 2. THE ASSESSEE IN THE PRESENT CASE IS A PARTNERSHI P FIRM WHICH IS ENGAGED IN THE BUSINESS OF PROMOTERS, BUILDERS AND CONTRACTORS. TH E RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS ORIGINALLY FILED BY IT ON 3 1-10-2006 DECLARING TOTAL INCOME OF RS.28,69,487/-. LATER ON A REVISED RETURN WAS FI LED BY THE ASSESSEE ON 22-10- 2 ITA NO.3090/MUM/2010 ASSESSMENT YEAR : 2006-07. 2007 DECLARING TOTAL INCOME AT NIL AFTER CLAIMING D EDUCTION U/S 80IB(10) IN RESPECT OF ENTIRE PROFIT DERIVED DURING THE YEAR UNDER CONS IDERATION FROM THE HOUSING PROJECT. DURING THE COURSE OF ASSESSMENT PROCEEDING S, THE CLAIM OF THE ASSESSEE FOR THE SAID DEDUCTION WAS EXAMINED BY THE AO AND ON SU CH EXAMINATION, HE FOUND THAT THE SCHEME/PROJECT IN RESPECT OF WHICH DEDUCTI ON U/S 80IB(10) WAS CLAIMED BY THE ASSESSEE HAD NOT BEEN NOTIFIED BY THE CBDT. IN THE ABSENCE OF THE SAID NOTIFICATION, THE CLAIM OF THE ASSESSEE FOR DEDUCTI ON U/S 80IB(10) WAS DISALLOWED BY THE AO IN THE ASSESSMENT COMPLETED U/S 143(3) VI DE AN ORDER DATED 30-10-2008. ON APPEAL, THE LEARNED CIT(APPEALS) CONFIRMED THE S AID DISALLOWANCE MADE BY THE AO AS THE ASSESSEE COULD NOT PRODUCE ANY NOTIFICATI ON ISSUED BY THE CBDT IN RESPECT OF ITS PROJECT/SCHEME. AGGRIEVED BY THE ORD ER OF THE LEARNED CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE T RIBUNAL. 3. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. THE LEARNED COUNSEL FOR THE ASS ESSEE HAS SUBMITTED THAT THE SCHEME OF THE ASSESSEE HAS NOW BEEN NOTIFIED BY THE CBDT AS PER NOTIFICATION NO. S4 1896(E) ISSUED ON 3 RD AUGUST, 2010. HE HAS SUBMITTED THAT SINCE THE SAID NOTIFICATION HAS BEEN ISSUED BY THE CBDT ONLY AFTER THE PASSING OF IMPUGNED ORDER BY THE LEARNED CIT(APPEALS) ON 22-01-2010, THE ASSE SSEE COULD NOT PRODUCE THE SAME EITHER BEFORE THE AO OR BEFORE THE LEARNED CIT (APPEALS). HE HAS URGED THAT IN VIEW OF THE SAID NOTIFICATION ISSUED SUBSEQUENTL Y BY THE CBDT, ONE MORE OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE TO SUPPORT AND SUBSTANTIATE ITS CLAIM FOR DEDUCTION U/S 80IB(10) BEFORE THE AO. SINCE THE LEA RNED DR HAS ALSO NOT RAISED ANY OBJECTION IN THIS REGARD AND THE ASSESSEE, IN O UR OPINION, DESERVES ONE MORE OPPORTUNITY TO JUSTIFY ITS CLAIM FOR DEDUCTION U/S 80IB(10) IN VIEW OF THE NOTIFICATION ISSUED SUBSEQUENTLY BY THE CBDT ON 3 RD AUGUST, 2010, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW ON THIS ISSUE A ND RESTORE THE MATTER TO THE FILE OF 3 ITA NO.3090/MUM/2010 ASSESSMENT YEAR : 2006-07. THE AO FOR DECIDING THE ISSUE RELATING TO THE ASSES SEES CLAIM FOR DEDUCTION U/S 80IB(10) AFRESH IN THE LIGHT OF THE SAID NOTIFICATI ON AND AFTER GIVING OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH OCT., 2011. SD/- SD/- (N.V. VASUDEVAN) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED : 14 TH OCT., 2011. WAKODE COPY TO : 1. APPELLANT 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR, F-BENCH. 6. GUARD FILE. (TRUE COPY ) BY ORDER ASSTT. REGISTRAR, ITAT, M UMBAI.