DCIT 22(1), MUMBAI V. ASSOCIATED CONSTUCTION CO., MUMBAI

ITA 3472/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7287 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-03-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2002-2003
• Appeal Filed On: 28-05-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SUBODH RATNAPARIKH
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, G BENCH, MUMBAI. BEFORE S/SHRI S.V.MEHROTRA, AM & V.DURGA RAO,JM I.T.A. NO.3472/MUM/2009 ASSESSMENT YEAR: 2002-03 THE DCIT 22(1), V. ASSOCIATED CONSTRUCTION CO. 4 TH FLOOR, TOWER NO.6, VASHI RLY STATION 333, KAILASH PLAZA, VALLABH BAUG COMPLEX, VASHI, NAVI MUMBAI. LANE, GHATKOPAR (E), MUMBAI. PA NO. AAAFA 2067 M (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI MOHD USMAN RESPONDENT BY : SHRI SUBODH RATNAPARIKH O R D E R PER S.V.MEHROTRA, AM THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAI NST THE ORDER DATED 20.2.2009 OF LD CIT (A)-XXII, MUMBAI DELETING THE BUSINESS INCO ME DETERMINED BY THE AO FROM THE SALE OF UNIT OF LAND MARK PROJECT AT RS.2,44,52,263 /- FOR THE ASSESSMENT YEAR 2002-03. 2. IN THIS CASE, THE ASSESSING OFFICER HAS PASSED T HE ASSESSMENT ORDER U/S.143(3) IN CONSEQUENCE TO THE PROCEEDINGS U/S.263 OF LD CIT. 3. AT THE TIME OF HEARING, LD COUNSEL FOR THE ASSES SEE FILED BEFORE US A COPY OF ITAT ORDER DATED 17 TH APRIL, 2009 IN ITA NO.4100/MUM/2007 FOR THE ASSES SMENT YEAR 2002- 03, WHEREIN, THE TRIBUNAL IN ASSESSEES OWN CASE CA NCELLED THE PROCEEDINGS U/S.263 OBSERVING IN PARA 7 AS UNDER:- 7. AFTER HEARING BOTH THE PARTIES, WE FIND THAT IN RES PECT O TWO ISSUES, PARTICULARLY, THE TREATMENT OF SERVICE CHARGES AND COMPUTATION OF PROFIT ON THE SALE OF UNITS IN THE PROJECT LANDMARK, BOTH THE ISS UES HAVE ALREADY BEEN ADJUDICATED IN FAVOUR OF THE ASSESSEE IN A.Y. 2004- 05 AS RIGHTLY SUBMITTED BY LD 2 COUNSEL FOR THE ASSESSEE. AS FAR AS ISSUE RELATING TO BROKERAGE IS CONCERNED, ONCE IT IS HELD THAT THE SERVICE CHARGES ARE TO BE ASSES SED AS BUSINESS INCOME, THEN, THE SAME ARE TO BE ALLOWED. WE ARE SURPRISED TO SEE TH AT INSPITE OF THE ORDER OF THE TRIBUNAL FOR A.Y. 2004-05, THE CIT REFUSED TO FOLLO W THE ORDER BY GIVING A REASON THAT M.A. WAS PENDING. IN FACT, IT IS WELL SETTLED PRINCIPLE THAT THE ORDER OF THE TRIBUNAL IS BINDING ON THE LOWER TAX AUTHORITIES. NOTHING HAS BEEN BROUGHT TO OUR NOTICE THAT THE ORDER OF THE TRIBUNAL FOR A.Y. 2004 -05HAS BEEN REVERSED BY HIGHER APPELLATE FORUM. IN OUR OPINION, THE ASSESSEE DESE RVES TO SUCCEED. WE, THEREFORE, CANCEL THE ORDER OF CIT PASSED U/S.263 OF THE ACT. 4. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE REC ORD OF THE CASE. SINCE THE ORDER OF THE LD CIT U/S.263 OF THE I.T.ACT, IS CANCELLED BY THE TRIBUNAL, THEREFORE, THE APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 20.2.2 009 OF LD CIT (A) HAS BECOME INFRUCTUOUS. WE, ACCORDINGLY, DISMISS THE SAME. 5. IN THE RESULT, APPEAL FILED BY THE REVENUE STAND S DISMISSED. PRONOUNCED ON 29 TH MARCH, 2010 SD/- (V. DURGA RAO) (JUDICIAL MEMBER) SD/- (S.V. MEHROTRA) (ACCOUNTANTMEMBER) MUMBAI, DATED 29 TH MARCH , 2010 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)-, MUMBAI 4. COMMISSIONER OF INCOME TAX, CITY-, MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH G, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI 3 DATE INITIALS 1. DRAFT DICTATED ON 29.3.2010 PS 2. DRAFT PLACED BEFORE AUTHOR 29..3.2010 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER AM/JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/J M 5. APPROVED DRAFT COMES TO THE SR. PS PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER 4