ITO 25(1)(1), MUMBAI V. CITY LIFE DEVELOPERS, MUMBAI

ITA 3358/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1543 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-06-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 26-05-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 21-05-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K MAHAJAN
• Assessee Lawyers: M SUBRAMANIAN
• Keywords: Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C : MUMBAI BEFORE SHRI D.K. AGARWAL, (JM) AND SHRI PRAMOD KUM AR ,(AM) ITA NO.3358/MUM/2009 ASSESSMENT YEAR : 2006-07 INCOME TAX OFFICER-25(1)(1) ROOM NO.201, 2 ND FLOOR C-11, PRATYAKSHAKAR BHAVAN BANDRA KURLA COMPLEX, BANDRA(E) MUMBAI-400 051. ..( APPELLANT ) VS. M/S. CITY LIFE DEVELOPERS AKHIL TOWER, B/3, RATAN NAGAR ST. XAVIERS HIGH SCHOOL BORIVALI (E) MUMBAI-400 068. ..( RESPONDENT ) P.A. NO. (AADFC 1252 B) APPELLANT BY : SHRI K.K. MAHAJAN RESPONDENT BY : SHRI M. SUBRAMANIAN O R D E R PER D.K. AGARWAL (JM). THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED AGAIN ST THE ORDER DATED 24.3.2009 PASSED BY THE LD. CIT(A) FOR TH E ASSESSMENT YEAR 2006-07. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSESSEE FIRM IS ENGAGED IN CONSTRUCTION AND DEVELOPMENT OF PROPERTIES. THE RETURN WAS FILED DECLARING TOTAL INCOME OF RS.9,44,560/- AFTE R CLAIMING DEDUCTION U/S.80IB(10) OF THE INCOME TAX ACT, 1961(TH E ACT) ITA NO.3358/M/09 A.Y:06-07 2 AMOUNTING TO RS.6,13,949/-. SUBSEQUENTLY THE CLAIM O F DEDUCTION U/S.80IB(10) WAS REVISED AT RS.7,36,978/- BY FILING REV ISED COMPUTATION OF TOTAL INCOME ALONG WITH LETTER DATED 1 7.11.2008. DURING THE COURSE OF ASSESSMENT IT WAS INTERALIA OBSERVED BY THE ASSESSING OFFICER THAT AS THE CLAIM OF DEDUCTION U/S.80IB( 10) WAS DISALLOWED IN ASSESSMENT YEARS 2004-05 AND 2005-06, THE ASSESSEE WAS ASKED TO EXPLAIN AS TO WHY DEDUCTION U/S.80IB(10) I N RESPECT OF AGARWAL TRINITY TOWER SHOULD NOT BE DISALLOWED. IN R ESPONSE, IT WAS SUBMITTED BY THE ASSESSEE THAT THE ASSESSEE HAS COMPLIED WIT H ALL THE CONDITIONS LAID DOWN FOR QUALIFICATION OF DEDUCTION U/S .80IB(10) AND THE MATTER IS ALREADY DECIDED IN ASSESSEE'S FAVOUR BY THE LD. CIT(A) FOR THE ASSESSMENT YEARS 2004-05 AND 2005-06, THEREFORE THE SAME BE ALLOWED. HOWEVER, THE ASSESSING OFFICER FOR THE REASON S AS DISCUSSED IN THE ASSESSMENT ORDER FOR ASSESSMENT YEAR 2005-06 PASSED UNDER SECTION 143(3) DATED 31.12.2007 AND KEEPIN G IN VIEW THAT THE DEPARTMENT HAS NOT ACCEPTED THE ORDER OF THE LD. CIT(A) FOR THE ASSESSMENT YEARS 2004-05 AND 2005-06 AND THE SAME I S BEING CONTESTED IN APPEAL BEFORE THE ITAT, MUMBAI, DISALLOWE D THE CLAIM OF DEDUCTION OF RS.7,36,978/- U/S.80IB(10). THE ASSESSING OF FICER AFTER MAKING SOME OTHER DISALLOWANCES COMPLETED THE ASSESSMENT AT AN INCOME OF RS.19,19,890/- VIDE ORDER DATED 26.12.2008 PASSED U/S.143(3) OF THE ACT. ON APPEAL, THE LD. CIT(A), FO LLOWING THE ITA NO.3358/M/09 A.Y:06-07 3 APPELLATE ORDER FOR THE ASSESSMENT YEARS 2004-05 AND 200 5-06 IN THE ASSESSEE'S OWN CASE DELETED THE DISALLOWANCE OF DEDUCTION U/S.80IB(10) AND ACCORDINGLY ALLOWED THE APPEAL. 3. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A) T HE REVENUE IS IN APPEAL BEFORE US TAKING THE FOLLOWING GROUNDS OF APPE AL :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN ALLOWING T HE DEDUCTION UNDER SECTION 80-IB OF THE I.T. ACT, 1961 WITHOUT APPRECIATING THE FACTS THAT THE ASSESSEE DI D NOT FULFILL THE CONDITIONS STIPULATED FOR ELIGIBILITY O F DEDUCTION U/S.80IB OF THE I.T. ACT AS OBSERVED AND BROUGHT ON RECORD BY THE ASSESSING OFFICER. 2. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A ) ON THE ABOVE GROUNDS TO BE SET ASIDE AND THAT OF TH E ASSESSING OFFICER BE RESTORED. 4. AT THE TIME OF HEARING BOTH PARTIES HAVE AGREED T HAT THE ISSUE STANDS COVERED AGAINST THE REVENUE AND IN FAVOUR OF TH E ASSESSEE BY THE ORDER OF THE TRIBUNAL IN ASSESSEE'S OWN CASE IN ACIT VS. CITY LIFE DEVELOPERS IN ITA NOS.1688 & 4205/MUM/2008 FOR ASSESSMENT YEARS 2004-05 & 2005-06 ORDER DATED 15.1.2010. THE LD. C OUNSEL FOR THE ASSESSEE HAS ALSO PLACED ON RECORD COPY OF THE SAID ORDER OF THE TRIBUNAL. 5. HAVING CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSING THE MATERIAL AVAILABLE ON RECORD WE FIND THAT THERE IS NO DISPUTE THAT THE FACTS OF THE PRESENT CASE ARE SIMILAR TO THE FACTS OF THE ITA NO.3358/M/09 A.Y:06-07 4 CASE OF THE ASSESSMENT YEARS 2004-05 AND 2005-06 WHEREIN T HE TRIBUNAL IN ACIT VS. CITY LIFE DEVELOPERS (SUPRA) VIDE PARA-6 OF ITS ORDER DATED 15.1.2010 HAS UPHELD THE ORDER OF THE LD . CIT(A) IN ALLOWING THE CLAIM OF DEDUCTION U/S.80IB(10) OF THE ACT . IN THE ABSENCE OF ANY DISTINGUISHING FEATURE BROUGHT ON RECORD BY THE REVENUE, WE RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL AND THE CONSISTENT STAND TAKEN BY THE TRIBUNAL IN THE EARLIER YEARS HOLD THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S. 80IB(10) OF TH E ACT AND ACCORDINGLY THE GROUNDS TAKEN BY THE REVENUE ARE REJECT ED. 6. IN THE RESULT, THE REVENUES APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 4.6.2010. SD/- SD/- (PRAMOD KUMAR) ( D.K. AGARWAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 4.6.2010. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI. ITA NO.3358/M/09 A.Y:06-07 5 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 26.5.10 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 28.5.10 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 4.6.10 SR.PS/PS 7. FILE SENT TO THE BENCH CLERK 7.6.10 SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER