ASST CIT 17(2), MUMBAI V. MUDITH M GUPTA, MUMBAI

ITA 3259/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84053 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-11-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 03-11-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 10-05-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RUDOLPH N DSOUZA
• Section: 80IB

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BE NCH, MUMBAI . . , !' , # $ BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ./I .T.A. NO. 3259/MUM/2012 ( % % % % / ASSESSMENT YEAR : 2008-09 THE DY.CIT 17(2), MUMBAI / VS. SHRI MUDHIT MADANLAL GUPTA, PROP. M/S. EMGEE DEVELOPERS & CONSULTANTS, 17/17H, BAHUBALI BLDG., CAWASJI PATEL STREET, FORT, MUMBAI-400 001 & # ./ '( ./ PAN/GIR NO. : AACPG 3554F ( &) / APPELLANT ) .. ( *+&) / RESPONDENT ) &) , / APPELLANT BY: SHRI RUDOLPH N. DSOUZA *+&) - , / RESPONDENT BY: SHRI HARIOM TULSYAN - ./# / DATE OF HEARING :3.11.2014 01% - ./# / DATE OF PRONOUNCEMENT :3.11.2014 2 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE REVENUE IS PREFERRED AGAINST THE ORDER OF THE LD. CIT(A)-34, MUMBAI DT.29.2.2012 PERTAINING TO A.Y.20 08-09. 2. THE REVENUE HAS RAISED 4 SUBSTANTIVE GROUNDS OF APPEAL. THE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE REVENUE IS TH AT THE LD. CIT(A) ITA NO. 3259/M/2012 2 ERRED IN DELETING THE DISALLOWANCE OF RS. 81,30,522 /- MADE BY THE AO U/S.80IB(10) OF THE ACT. IT IS THE CLAIM OF THE RE VENUE THAT FACTS OF ASSESSMENT YEARS 2005-06, 2006-07 AND 2007-08 ARE D ISTINGUISHABLE FROM THE FACTS OF THE YEAR UNDER CONSIDERATION. 3. DURING THE COURSE OF THE SCRUTINY ASSESSMENT PRO CEEDINGS, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS CLA IMED DEDUCTION U/S. 80IB(10) OF THE ACT IN RESPECT OF A, B & C WINGS. THE AO WAS OF THE FIRM BELIEF THAT THE ASSESSEE HAS NOT COMPLIED WITH THE MANDATORY CONDITION LAID DOWN U/S. 80IB(10)(A) & U/S. 80IB(10 )(B) OF THE ACT. THE CLAIM WAS DENIED BY THE AO BY MAKING THE FOLLOWING OBSERVATION: THE SIMILAR DISALLOWANCE REGARDING DEDUCTION U/S. 80IB WAS MADE IN THE A.Y. 2005-06, 2006-07 & 2007-08 BY THE THEN A.OS FOR THE REASONS MENTIONED IN THE ASSESSME NT ORDER FOR THOSE YEARS AND THIS HAS BEEN CONFIRMED BY LD. CIT(A) FOR ALL THE THREE YEARS. THE ASSESSEE IS IN APPEAL BEFORE HONBLE ITAT B BENCH FOR A.Y. 2005-06, 2006-07 & 2007- 08 UNDER ITA NOS. 3220/M/10, 3445/M/10 & 3444/M/10 RESPECTIVELY. 4. AGGRIEVED BY THIS THE ASSESSEE CARRIED THE MATTE R BEFORE THE LD. CIT(A). THE LD. CIT(A) HAD THE BENEFIT OF THE ORDE R OF THE TRIBUNAL FOR A.YRS 2005-06, 2006-07 & 2007-08 IN ITA NOS. 3220, 3445 & 3444/M/2010. RESPECTFULLY FOLLOWING THE DECISION O F THE HONBLE MUMBAI TRIBUNAL, THE LD. CIT(A) DELETED THE DISALLO WANCES MADE BY THE AO. 5. AGGRIEVED BY THIS, REVENUE IS BEFORE US. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THE TRIBUNAL H AS DECIDED THE ISSUE IN HAND IN FAVOUR OF THE ASSESSEE VIDE ITS ORDER DT. 2 3.12.2010 IN ITA NOS. 3220, 3445 & 3444/M/2010. ITA NO. 3259/M/2012 3 6. THE LD. DEPARTMENTAL REPRESENTATIVE STATED THAT THE FACTS OF THE YEAR UNDER CONSIDERATION ARE DISTINGUISHABLE FROM T HE FACTS OF THE EARLIER YEARS. 7. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTH ORITIES BELOW AND THE DECISION OF THE TRIBUNAL (SUPRA) IN THE EARLIER YEARS. THE CLAIM RELATES TO THE CONSTRUCTION AND SALE OF WINGS A,B & C, THE ONLY DISTINGUISHING FACTS WHICH CAME TO OUR NOTICE DURING THE COURSE O F THE HEARING RELATES TO WING D. APPARENTLY, WING D IS NOT ELIGIBLE FOR DED UCTION U/S. 80IB(10) OF THE ACT. FROM THE RECORDS, IT IS NOT CLEAR WHE THER ANY PROFIT FROM WING D IS INCLUDED IN THE TOTAL CLAIM OF THE ASSES SEE U/S. 80IB(10) OF THE ACT. THEREFORE, FOR THIS LIMITED PURPOSE OF VERIFIC ATION, WE RESTORE THE ISSUE TO THE FILE OF THE AO. THE AO IS DIRECTED TO VERIFY WHETHER ANY PROFIT FROM WING D IS INCLUDED IN THE TOTAL PROFIT WHICH HAS BEEN CLAIMED AS DEDUCTION U/S. 80IB(10) OF THE ACT, AND IF SATI SFIED THAT NO PROFIT OF WING D IS INCLUDED, THEN ALLOW THE CLAIM OF DEDUC TION OF THE ASSESSEE FOLLOWING THE DECISION OF THE CO-ORDINATE BENCH FOR EARLIER ASSESSMENT YEARS AS MENTIONED ELSEWHERE. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 03.11.2014. SD/- SD/- (I.P. BANSAL ) (N.K. BILLAIYA) / JUDICIAL MEMBER # / ACCOUNTANT MEMBER MUMBAI; 3 DATED : 3 RD NOVEMBER, 2014 . . ./ RJ , SR. PS ITA NO. 3259/M/2012 4 2 2 2 2 - -- - *. *. *. *. 4%. 4%. 4%. 4%. / COPY OF THE ORDER FORWARDED TO : 1. &) / THE APPELLANT 2. *+&) / THE RESPONDENT. 3. 5 ( ) / THE CIT(A)- 4. 5 / CIT 5. 67 *. , , / DR, ITAT, MUMBAI 6. 78 9 / GUARD FILE. 2 2 2 2 / BY ORDER, +. *. //TRUE COPY// : :: : / ; ; ; ; ' ' ' ' (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI