ITO 21(3)(3), MUMBAI V. SHRI SAI CONSTRUCTION, MUMBAI

ITA 3376/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0478 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 01-03-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 03-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGLA
• Keywords: Additional evidence
• Section: 80IB; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES G , MUMBAI BEFORE S HRI G.S. PANNU (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 3376 /MUM/20 1 5 ASSESSMENT YEAR: 2005 - 06 THE INCOME TAX OFFICER - 21(3)(3), ROOM NO. 211, 2 ND FLOOR, PIRAMAL CHAMBERS, LALBAUG, M UMBAI VS. M/S SHRI SAI CONSTRUCTION, 13/870, SUKH SHANTI, GOKHLE ROAD NO. 2, DADAR (WEST), MUMBAI - 400028 PAN: AADFS1597F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ANUPAMA SINGLA (DR) RESPONDENT BY : SHRI AJAY SINGH (AR) DATE OF HEARING: 01/03 /201 7 DATE OF PRONOUNCEMENT: 31 / 0 5 /201 7 O R D E R PER RAM LAL NEGI, JM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST ORDER DATED 05/03/2015 PASSED BY THE CIT (APPEALS) - 33 , MUMBAI , FOR THE A S S ESSMENT YEAR 2005 - 06 , WHEREBY THE LD. CIT (A ) HAS ALLOWED THE APPEAL FILED BY THE ASSESSEE AGAINST ASSESSMENT ORDER PASSED U/S 143 (3) READ WITH SECTION 147 OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT) . 2. BRIEF FACTS LEADING TO THE PRES ENT APPEAL ARE THAT THE ASSESSEE FIRM FILED ITS RETURN OF INCOME FOR THE RELEVANT ASSESSMENT YEAR DECLARING THE TOTAL INCOME AS NIL. THE RETURNED WAS PROCESSED AND ASSESSMENT ORDER U/S 143 (3) OF THE ACT WAS PASSED. SUBSEQUENTLY, IT WAS NOTICED THAT THE AS SESSEE HAD FAILED TO FULFILL THE CONDITION UNDER CLAUSE (A) AND (A)(II) READ WITH PROVISO BELOW CLAUSE (A) & (B) 2 ITA NO. 3376/MUM/2015 ASSESSMENT YEAR: 2005 - 06 OF SECTION 80IB (10) OF THE ACT. ACCORDINGLY, NOTICE U/S 143 (2) WAS ISSUED. IN RESPONSE THEREOF THE ASSESSEE FILED DETAILED WRITTEN SUBMISSION . HOWEVER, THE AO REJECTING THE CONTENTION OF THE ASSESSEE ASSESSED THE INCOME OF THE ASSESSEE AT RS. 2,64,18,705/ - AFTER WITHDRAWING THE CLAIM OF ASSESSEE FOR DEDUCTION U/S 80IB (10) OF THE ACT. THE ASSESSMENT ORDER WAS CHALLENGED BY THE ASSESSEE IN FIRST APPEAL. LD. CIT(A) AFTER HEARING THE ASSESSEE ALLOWED THE APPEAL FILED BY THE ASSESSEE. 3 . AGGRIEVED BY THE ORDER OF LD. CIT (APPEAL S ), THE REVENUE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING GROUNDS: - 1. WHETHER ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) ERRED IN HOLDING THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S 80IB(10) UNDER CLAUSE (A) AND (A)(II) OF THE I.T. ACT, 1961. 2. WHETHER ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. C IT (A) ERRED IN DECIDING THE ISSUE ON THE BASIS OF A RECTIFICATION DEED WHICH WAS MADE ON 22.12.2014 WHICH DATE FALLS EVEN AFTER THE APPEAL WAS FILED BEFORE THE CIT (A) ON 09.04.2013. 3. WHETHER ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) ERRED IN ACCEPTING ADDITIONAL EVIDENCES AGAINST THE PRINCIPLE LAID DOWN IN RULE 46A. 4. FOR THIS AND OTHER REASONS IT IS SUBMITTED THAT THE ORDER OF THE CIT (A) MAY BE SET ASIDE AND THAT OF THE A.O. IS RESTORED. 4. THE LD. DEPARTMENTAL REPRES ENTATIVE (DR) RELYING ON THE ASSESSMENT ORDER SUBMITTED THAT THE LD. CIT (A) HAS WRONGLY HELD THE ASSESSEE ELIGIBLE FOR DEDUCTION U/S 80IB (10) UNDER CLAUSE (A) & (A) (II) OF THE ACT ON THE BASIS OF A RECTIFICATION DEED. FURTHER, THE LD. CIT (A) HAS 3 ITA NO. 3376/MUM/2015 ASSESSMENT YEAR: 2005 - 06 ERRED IN ACCEPTING ADDITIONAL EVIDENCE CONTRARY TO RULE 46A OF THE INCOME TAX RULES . 5. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE S CASE IS COVERED BY THE DECISION OF THE ITAT, MUMBAI PASSED IN ASSESSEES OWN CASE ITA N O. 3375/MUM/2015 FOR THE A.Y. 2006 - 07 AND THE TRIBUNAL HAS DECIDED THE IDENTICAL ISSUE IN FAVOUR OF THE ASSESSEE. THEREFORE, THERE IS NO MERIT IN THE APPEAL OF THE REVENUE. THE LD. CIT (A) HAS RIGHTLY ALLOWED THE APPEAL FILED AGAINST THE ASSESSMENT ORDER P ASSED BY THE AO. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO PERUSED THE MATERIAL PLACED ON RECORD. THE FIRST ISSUE TO BE ADJUDICATED BY THE TRIBUNAL IS THAT WHETHER UNDER THE GIVEN CIRCUMSTANCES THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S 80IB (10) O F THE ACT. WE NOTICE THAT T HE LD. CIT (A) HAS DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE IN ASSESSEES OWN CASE REFERRED ABOVE, BY FOLLOWING THE ORDER OF THE CO - ORDINATE BENCH PASSED IN THE CASE OF SAROJ SALES ORGANIZATION V S. ITO (2008) 115 TTJ (MUMBAI) 485. WE FURTHER NOTICE THAT THE CO - ORDINATE BENCH HAS DECIDED THE IDENTICAL ISSUE IN FAVOUR OF THE ASSESSEE IN ASSESSEES OWN CASE ITA NO. 3375/MUM/2015 FOR THE A.Y. 2006 - 07 BY FOLLOWING THE DECISION OF THE CO - ORDINATE BENCH RENDERED IN SAROJ SALES ORGAN IZATION (SUPRA). THE FINDINGS OF THE CO - ORDINATE BENCH READS AS UNDER: - THE CASE OF THE ASSESSEE IS FURTHER CLARIFIED BY THE SLUM REHABILITATION AUTHORITY (SRA) RECTIFICATION DEED DATED 22/12/2014, CLARIFYING THAT THE PROJECT PLOT Y COMMENCED IN MARCH 20 03 AND WAS COMPLETED IN THE YEAR 2007, WHICH IS WITHIN THE TIME ALLOWED U/S 80IB(10) OF THE ACT. THE PROJECT OF THE ASSESSEE IS ON AREA 5767.38 SQ. MTS. WHICH IS MORE THAN ONE ACRE AND THE RESIDENTIAL UNIT HAVE MAXIMUM AREA OF 270 SQ. FT. AS AGAINST 1,000 SQ. FT. ALLOWED UNDER 4 ITA NO. 3376/MUM/2015 ASSESSMENT YEAR: 2005 - 06 THE PROVISIONS OF THE ACT. THERE IS UNCONTROVERTED FINDING IN THE IMPUGNED ORDER THAT NO COMMERCIAL ARE IS THERE IN THE PROJECT ON PLOT Y, THUS, THE CONDITIONS PROVIDED U/S 80IB (10) ARE FULFILLED, CONSEQUENTLY, THE ASSESSEE IS ELIGIB LE FOR DEDUCTION, THEREFORE, WE FIND NO INFIRMITY IN THE CONCLUSION OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS), HIS ORDER IS AFFIRMED. FINALLY, THE APPEAL OF THE REVENUE IS DISMISSED. 7. THE FACTS AND THE ISSUE S INVOLVED IN THE PRESENT APPEAL INCL U DING THE ISSUE REGARDING ADDITIONAL EVIDENCE ARE IDENTICAL TO THE FACTS AND ISSUE INVOLVED IN THE ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2006 - 07 AND SINCE THE IDENTICAL ISSUE S HA VE ALREADY BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THE CO - ORDINATE BEN CH IN ASSESSEES OWN CASE, WE RESPECTFULLY FOLLOW ING THE SAME UPHOLD THE ORDER PASSED BY THE LD. CIT (A) AND ACCORDINGLY DISMISS ALL THE THREE EFFECTIVE GROUNDS OF THE APPEAL FILED BY THE REVENUE. IN THE RESULT, APPEAL FILED BY THE REVENUE FOR A SSESSMENT YEAR 2005 - 2006 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST MAY , 2017 . SD/ - SD/ - ( G.S. PANNU ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL ME MBER MUMBAI ; DATED: 31 / 0 5 / 2017 ALINDRA, PS 5 ITA NO. 3376/MUM/2015 ASSESSMENT YEAR: 2005 - 06 / 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