DCIT 8(1), MUMBAI V. BENHOOR REGENCY ESTATES P. LTD, MUMBAI

ITA 3337/MUM/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3249 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 09-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revision of order
• Section: 143(3); 260A; 115JB; 80IB; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI BEFORE SHRI B.R.BASKARAN (AM) AND SHRI RAM LAL NEGI (JM) ITA NO 3337/MUM/2014 ASSESSMENT YEAR: 2006-07 THE DCIT - 8(1), ROOM NO. 260A, 2 ND FLOOR, AAYAKAR BHAVAN, M.K.ROAD, MUMBAI- 400 020. VS. M/S. BENHOOR REGENCY ESTATES PVT. LTD., C-5, RAJ NAGAR CO-OP. HSG. SOC. LTD., S.V.ROAD, JOGESHWARI (W), MUMBAI- 400 102. PAN:- AABCB8406H (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI. SANJEEV JAIN. RESPONDENT BY : SHRI. VIMAL PUNMIYA. DATE OF HEARING: 0 6 /0 6 /2016 DATE OF PRONOUNCEMENT: 08/06/20 16 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAI NST ORDER DATED 27/02/2014 PASSED BY THE LD. CIT(APPEALS)-16 MUMBAI FOR THE AS ST. YEAR 2006-07. 2. THE REVENUE HAS CHALLENGED THE IMPUGNED ORDER O N THE FOLLOWING EFFECTIVE GROUNDS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) ERRED IN RENDERING AS INFRUCTUOUS, THE A .OS ORDER DATED 24/02/2010 GIVING EFFECT TO THE ORDER DATED. 18/02/ 2010 PASSED U/S 263 BY CIT-8, MUMBAI, ON THE BASIS OF ORDER DAT ED 21/02/2014 OF THE HONBLE ITAT, MUMBAI, IN ITA NO. 2186/MUM/20 10 IN 2 ITA NO 3337/MUM/2014 ASSESSMENT YEAR: 2006-07 ASSESSEES CASE, SETTINGASIDE THE ORDER U/S 263 DA TED 21/02/2014 OF CIT-8, MUMBAI, WITHOUT APPRECIATING T HAT THE ORDER OF THE HONBLE ITAT IS BEING CHALLENGED BEFORE THE HONBLE HIGH COURT OF BOMBAY. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) ERRED IN RENDERING AS INFRUCTUOUS, THE A .OS ORDER DATED 24/02/2010 GIVING EFFECT TO THE ORDER DATED. 18/02/ 2010 PASSED U/S 263 BY CIT-8, MUMBAI, ON THE BASIS OF ORDER DAT ED 21/02/2014 OF THE HONBLE ITAT, MUMBAI, WITHOUT APPRECIATING T HE FACT THAT DEPARTMENT IS FILLING APPEAL U/S. 260A BEFORE THE HONBLE HIGH COURT, AGAINST THE ORDER DATED 21/02/2014 OF THE HO NBLE ITAT, MUMBAI, IN ITA NO. 2186/MUM/2010 IN ASSESSEES CASE , SETTING- ASIDE THE ORDER U/S 263 DATED 21/02/2014 OF CIT-8, MUMBAI. 3. IN THE PRESENT CASE THE ASSESSEE FILED ITS RETU RN OF INCOME DECLARING THE TOTAL INCOME OF RS. 2,76,521/- AFTER CLAIMING DEDUC TION U/S 80IB(10) OF THE INCOME TAX ACT, 1961(IN SHORT THE ACT.) AMOUNTING T O RS. 3,75,74,742/-. THE RETURN WAS PROCESSED AND TAX LIABILITY WAS COMPUTED U/S 115JB OF THE ACT. THE LD. CIT ISSUE SHOW-CAUSE NOTICE U/S. 263 OF THE ACT , ON THE GROUND THAT SINCE THE LAND WAS NOT REGISTERED IN THE NAME OF THE ASS ESSEE, THE ASSESSEE IS NOT ENTITLED FOR DEDUCTION U/S 80IB(10) OF THE ACT. ACC ORDINGLY, THE LD. CIT DIRECTED TO THE A.O WITHDRAW THE DEDUCTION U/S 80IB (10). IN COMPLIANCE THEREOF, THE A.O DISALLOWED THE DEDUCTION AN RE-ASSESSED THE TOT AL INCOME OF THE ASSESSEE AT RS. 3,78,51,260/-. THE REVISION ORDER WAS CHALLENGE D BY THE ASSESSEE BEFORE THE TRIBUNAL. THE TRIBUNAL AFTER HEARING THE PARTIE S SET ASIDE THE ORDER OF THE CIT PASSED U/S 263 OF THE ACT, AND DISMISSED THE DE PARTMENTS APPEAL. THE PRESENT APPEAL HAS BEEN FILED BY THE REVENUE AGAINS T THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) IN APPEAL FILED BY THE ASS ESSEE CHALLENGING THE 3 ITA NO 3337/MUM/2014 ASSESSMENT YEAR: 2006-07 ASSESSMENT ORDER PASSED BY THE AO UNDER SECTION 143 (3) READ WITH SECTION 263 OF THE ACT. 4. AT THE OUTSET, THE LD. AUTHORISED REPRESENTATIV E (AR) SUBMITTED THAT IN THIS CASE, SINCE THE ITAT HAS SET ASIDE THE ORDER O F THE CIT PASSED U/S 263 OF THE ACT, THE ORDER OF A.O GIVING THE EFFECT OF ORDE R U/S 263 OF THE ACT, DOES NOT SURVIVE. THE LD. DEPARTMENTAL REPRESENTATIVE DID NO T DISPUTE THE FACTS. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL PLACED BEFORE US. WE NOTICE THAT THE CO-ORDINATE BENCH HAS ALLOWED THE APPEAL OF ASSESSEE, ITA NO. 2186/M/2010 FILED AGAINST ORDER D ATED 18/02/2010 PASSED BY THE LD. CIT U/S 263 OF THE ACT FOR THE A.Y. 2006 -07 HOLDING THAT THE POWER OF REVISION EXERCISED BY THE CIT IS NOT IN ACCORDAN CE WITH LAW. HENCE, THE ORDER PASSED BY THE LD. CIT(A) AGAINST THE ASSESSMENT ORD ER PASSED UNDER SECTION 143(3) READ WITH SECTION 263 OF THE ACT DOES NOT HA VE LEGS TO STAND ON ITS OWN. ACCORDINGLY, WE UPHOLD THE ORDER PASSED BY THE LD. CIT(A) AND DISMISS THE GROUNDS OF REVENUES APPEAL. 6 IN THE RESULT APPEAL FILED BY THE REVENUE FOR A. Y. 2006-07 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH JUNE, 2016 SD/- SD/- ( B.R.BASKARAN ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED: 08/06/2016 4 ITA NO 3337/MUM/2014 ASSESSMENT YEAR: 2006-07 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. !' , $ !'% , / DR, ITAT, MUMBAI 6. &' ( / GUARD FILE. / BY ORDER, ) //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI PRAMILA