SHREE DATTA DEVELOPERS, MUMBAI V. PR CIT 20, MUMBAI

ITA 3316/MUM/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4098 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-02-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: H
• Assessment Year: 2005-2006
• Appeal Filed On: 02-06-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R AHUL RAMAN
• Assessee Lawyers: VISHWAS V MEHENDALE
• Section: 143(3); 263

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN, AM AND PAWAN SINGH, JM ./ I.T.A. NO . 3316 / MUM/ 201 5 ( / ASSESSMENT YEA R : 2005 - 06 ) SH REE DATTA DEVELOPERS, 62/A, PRADHAN LODGE, PAREL, MUMBAI - 400012 / VS. PRINCIPAL COMMISSIONER OF INCOME TAX - 20, 4 TH FLOOR, PIRAMAL CHAMBERS, PAREL, MUMBAI - 400012 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN. : AAMFS8023P / APPELLANT BY SHRI VISHWAS V MEHENDALE / RESPONDENT BY SHRI RAHUL RAMAN / DATE OF HEARING : 21 .1 . 201 6 / DATE OF PRONOUNCEMENT: 3. 2. 2 01 6 / O R D E R P ER B R BASKARAN, AM : T HE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER 30.3.2015 PASSED BY THE LD. PRINCIPAL CIT - 2 0 , MUMBAI FOR THE ASSESSMENT YEAR 2005 - 06. THE ASSESSEE IS CHALLENGING THE VALIDITY OF REVI SION ORD ER PASSED BY THE LD. PRINCIPAL CIT . 2. THE LD. COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED THAT THE IMPUGNED ASSESSMENT WAS PASSED BY THE AO U/S 143(3) READ WITH SECTION 254 OF THE ACT , CONSEQUENT TO THE ORDER PASSED BY THE ITAT RESTORING THE MA TTER RELATING TO DEDUCTION U/S 80IB(10) OF THE ACT TO THE FILE OF THE AO. IN THE SET ASIDE PROCEEDINGS, T HE LD. AR SUBMITTED THAT THE AO HAS 3316 /MUM/201 5 2 CONSIDERED THE NOTIFICATION DATED 5.1.2011 ISSUED BY MINISTRY OF FINANCE AND ALSO CLAUSE (B) OF SECTION 80IB(10) O F THE ACT AND ACCORDINGLY ALLOWED THE CLAIM OF THE ASSESSEE. THE LD. AR FURTHER SUBMITTED THAT THE ASSESSEE HAS DEVELOPED HOUSING PROJECT UNDER SLUM REHABILITATION SCHEME HENCE THE CON DI TION RELATING TO MINIMUM AREA OF DEVELOPMENT SHALL NOT APPLY. ACCORDI NGLY T HE LD. AR SUBMITTED THAT THE AO HAS APPLIED HIS MIND ON THIS ISSUE AND HAS TAKEN A POSSIBLE VIEW. ACCORDINGLY HE SUBMITTED THAT THE LD. PRINCIPAL COMMISSIONER DOES NOT ACQUIRE JURISDICTION TO REVISE THE SAME U/S 263 OF THE ACT. THE LD. COUNSEL PLAC ED HIS RELIANCE ON THE DECI SION OF HONBLE SUPREME COURT O F INDIA RENDERED IN THE CASE OF CIT V/S MAX INDIA LTD.(2008) 166 TAXMAN 188 (SC) AND SUBMITTED THAT THE IMPUGNED REVISION ORDER IS LIABLE TO BE QUASHED. 3 . ON THE CONTRARY, THE LD DR SUBMITTED TH AT THE AO HAS ALLOWED THE CLAIM OF THE ASSESSEE WITHOUT EXAMINING AS TO WHETHER THE PROJECT DEVELOPED BY THE ASSESSEE FALL UNDER THE CATEGORY OF SLUM REHABILITATION SCHEME. FURTHER THE SLUM REHABILITATION SCHEME HAS TO BE APPROVED AFTER 1.4.2004 IN ORDER TO BECOME ELIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE ACT, WHEREAS THE PROJECT OF T HE ASSESSEE WAS APPROVED PRIOR TO 1.4.2004. ACCORDINGLY, THE LD D.R SUBMITTED THAT THE AO HAS A LLOWED THE CLAIM THE DEDUCTION U/S 80IB(10) OF THE ACT WITHOUT EXAMINING THIS VITAL FACTOR AND HENCE THE ASSESSMENT ORDER HAS BEEN RENDERED ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. 4 . WE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. WE FIND MERITS IN THE CONTENTION OF THE OF THE LD. DR , SINCE THE ASSESSMENT ORD ER DOES NOT DISCUSS ANYTHING ABOUT SLUM REHABILITATION SCHEME AND ITS APPLICABILITY TO THE PROJECT DEVELOPED BY THE ASSESSEE. FURTHER THE AO ALSO DID NOT EXAMINE ABOUT THE DETAILS RELATING TO T HE DATE OF APPROVAL OF THE 3316 /MUM/201 5 3 PROJECT AND FURTHER ABOUT THE APPLI CABILITY OF NOTIFICATION DATED 5.1.2011 TO THE SCHEME OF THE ASSESSEE . UNDER THESE SET OF FACTS, WE ARE OF THE VIE W THAT THE AO HAS FAILED TO EXAMINE VITAL DETAILS RELATING TO THE DEDUCTION U/S 80IB(10) OF THE ACT AND HENCE WE ARE OF THE VIEW THAT IMPUGNE D ASSESSMENT ORDER I S RENDERED ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE . IT IS WELL SETTLED PROPOSITION THAT THE LACK OF ENQUIRY ON THE PART OF THE AO MAKES THE ASSESSMENT ORDER ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE, AS HEL D BY THE HONBLE SUPREME COURT IN THE CASE OF MALABAR INDUSTRIAL COMPANY (243 ITR 83). ACCORDINGLY, WE DO NOT FIND ANY INFIRMITY IN ASSUMING THE JURISDICTION BY LD. PRINCIPAL CIT U/S 263 OF THE ACT . 5 . THE LD. AR SUBMITTED THAT THE PRINCIPAL CIT , IN PARA 19 OF THE IMPUGNED ORDER , HAS DIRECTED THE AO TO REJECT THE DEDUCTION U/S 80IB(10) OF THE ACT . THE LD. AR SUBMITTED THAT THE LD. PRINCIPAL CIT HAS CLOSED THE DOORS OF THE ASSESSEE AND ALSO DID NOT GIVE OPEN HAND TO THE AO TO EXAMINE THE POINTS RAISED BY HIM IN AN INDEPENDENT MANNER. THE LD. AR SUBMITTED THAT THE ASSESSEE SHOULD BE ALLOWED TO MAKE ITS SUBMISSIONS BEFORE THE AO AND ACCORDINGLY PRAYED THAT THE DIRECTION GIVE N BY THE PRINCIPAL CIT MAY KINDLY BE MODIFIED . WE FIND MERIT IN THE PRAYE R MADE BY T HE LD. AR. ACCORDINGLY , WE MODIFY PARA GRAPH 19 OF THE ORDER PASSED BY THE LD. PRINCIPAL CIT AND DIRECT THE AO TO EXAMINE THE ISSUE OF DEDUCTION ALLOWABLE UNDER SECTION 80IB(10) OF THE ACT TO THE ASSESSEE AFRESH, WITHOUT BEING INFLUENCED BY T HE OBSERVATIO NS MAD E BY L D. PRINCIPAL CIT AND ALSO DIRECT THE AO TO TAKE APPROPRIATE DECISION IN ACCORDANCE WITH LAW , AFTER A FF ORDING ADEQUATE OPPORTUNITY OF BEING TO THE ASSESSEE. 3316 /MUM/201 5 4 6 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. PRONO UNCED ACCORDINGLY ON 3RD FEB , 2 01 6 . 3RD FEB, 2 01 6 SD SD ( PAWAN SINGH ) ( B.R. BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 3 RD FEB , 2 01 6 . . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI