DCIT, CENTRAL CIRCLE-2, MUMBAI V. PURAVANKARA PROJECTS LTD, MUMBAI

ITA 3484/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48543 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2003-2004
• Appeal Filed On: 03-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AJIT KUMAR SINHA
• Assessee Lawyers: RAJU WAGLAY
• Keywords: Search and seizure
• Section: 143(3); 80IB; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C, MUMBAI BEFORE SHRI D.K. AGARWAL (J.M.) AND SHRI T.R. SOOD ( A.M.) ITA NO. 3484/MUM /2010 ASSESSMENT YEAR 2003-04 DCIT, CENTRAL CIRCLE - 2, OLD CGO BLDG., ANNEXE, 9 TH FLOOR, M.K. ROAD, MUMBAI 400 020. VS. M/S PURAVANKARA PROJECTS LTD., 227, S.V. ROAD, BANDRA (W), MUMBAI. 400 050. PAN : AAACP 2550 R (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI AJIT KUMAR SINHA RESPONDENT BY : SHRI RAJU WAGLAY O R D E R PER D.K. AGARWAL, J.M. THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED A GAINST THE ORDER DATED 11.02.2010 PASSED BY THE LD. CIT (A) FOR THE A.Y. 2003-04 TAKING FOLLOWING GROUND OF APPEAL:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN HOLDING THAT THE ASSESSEE IS ELIGIB LE FOR CLAIMING DEDUCTION U/S 80IB BY ` 72,69,500/- ON ACCOUNT OF ESTIMATED PROFIT ON SALE OF CAR PARKING TO THE PURCHASES OF APARTMENTS IN THE RESID ENTIAL PROJECT. 2. AT THE TIME OF HEARING, THE LD. D.R. SUPPORTS TH E ORDER OF THE A.O. 3. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSES SEE SUBMITS THAT THIS ISSUE IS COVERED AGAINST THE REVENUE AND IN FA VOUR OF THE ASSESSEE BY THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE IN ITO VS. M/S PURVANKARA PROJECTS LTD. IN ITA NO. 2593, 2594 & 25 95/M/07 FOR A.YRS. ITA 3484/M/2010 M/S PURAVANKARA PROP JECTS LTD.A 2 2001-02 TO 2003-04 DATED 22.1.2009. HE ALSO PLACED ON RECORD A COPY OF THE SAID ORDER. 4. HAVING CAREFULLY HEARD THE SUBMISSIONS OF THE R IVAL PARTIES AND PERUSING THE MATERIAL AVAILABLE ON RECORD, WE FIND THAT THE ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS AS A BUILDER AND DEVELOPER. A SEARCH AND SEIZURE ACTION U/S 132(1) OF THE INCOME TAX ACT, 1961 (THE ACT) WAS CONDUCTED IN THE CASE OF THE ASSESSEE AND ITS GROUP CONCERNS, DIRECTORS AND RELATED PERSONS ON 15.11.07. IN RESP ONSE TO NOTICE ISSUED U/S 153A, THE ASSESSEE FILED RETURN DECLARING TOTAL INCOME OF ` 1,93,90,340/-. DURING THE COURSE OF ASSESSMENT, TH E A.O. OBSERVED THAT IN THE ORIGINAL ASSESSMENT COMPLETED U/S 143(3) ON 28.3.2006, AN ADDITION OF ` 72,69,500/- WAS MADE ON ACCOUNT OF DISALLOWANCE OF DEDUCTION U/S 80IB ON THE PROFITS ON SALE OF CAR PA RKING. THE A.O. AFTER TAKING NOTE OF THE ORDER OF THE TRIBUNAL IN ASSESSE ES OWN CASE FOR A.YRS. 2001-02 TO 2003-04 WHEREIN THE TRIBUNAL HAS ALLOWED RELIEF TO THE ASSESSEE ON THIS ACCOUNT HAS NOT ACCEPTED THE ORDER OF THE TRIBUNAL ON THE GROUND THAT THE DEPARTMENT HAS FILED APPEAL BEF ORE THE HONBLE JURISDICTIONAL HIGH COURT AND HENCE HE AGAIN DISALL OWED THE DEDUCTION U/S 80IB(10) TO THE EXTENT OF ` 72,69,500/- BEING PROFIT ON SALE OF CAR PARKING AND ADDED BACK TO THE INCOME OF THE ASSESSE E. ON APPEAL, THE LD. CIT(A) FOLLOWING THE ORDER OF THE TRIBUNAL, HOW EVER, DELETED THE DISALLOWANCE MADE BY THE A.O. IN THE ABSENCE OF AN Y CONTRARY MATERIAL PLACED ON RECORD BY THE REVENUE, WE RESPECTFULLY FO LLOWING THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE (SUPRA) WHEREIN ON THE IDENTICAL ISSUE THE TRIBUNAL WHILE AGREEING WITH THE LD. CIT( A) THAT THE CAR PARKING SPACE IS A PART AND PARCEL OF THE HOUSING PROJECT A ND IT CANNOT BE SEPARATED FROM THE HOUSING PROJECT FOR ALLOWING THE DEDUCTION U/S 80IB, UPHELD THE ORDER OF THE LD. CIT(A) AND KEEPING IN V IEW THE CONSISTENCY, HOLD THAT THE ASSESSEE IS ENTITLED TO DEDUCTION U/S 80IB(10) ON THE CAR ITA 3484/M/2010 M/S PURAVANKARA PROP JECTS LTD.A 3 PARKING SPACE WHICH IS PART AND PARCEL OF THE HOUSI NG PROJECT AND CANNOT BE SEPARATED FROM THE HOUSING PROJECT AND ACCORDING LY WE ARE INCLINED THE UPHOLD THE FINDINGS OF THE LD. CIT(A) IN DELETI NG THE DISALLOWANCE MADE BY THE A.O. THE GROUND TAKEN BY THE REVENUE I S, THEREFORE, REJECTED. 5. IN THE RESULT, REVENUES APPEAL STANDS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 29.04.2011 . SD/ - (T.R. SOOD) ACCOUNTANT MEMBER SD/ - (D.K. AGARWAL) JUDICIAL MEMBER MUMBAI, DATED 29.04.2011. RK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)- 36, MUMBA I 4. COMMISSIONER OF INCOME TAX, CENTRAL-1 MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH C, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI ITA 3484/M/2010 M/S PURAVANKARA PROP JECTS LTD.A 4 1 DRAFT DICTAT ED ON 2 1 .4.11 SR PS 2 DRAFT PLACED BEFORE AUTHOR ON 2 5 .4.11 SR PS 3 DRAFT PROPOSED & PLACE BEFORE THE 2 ND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY 2 ND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR PS SR.PS 6 KEPT FO R PRONOUNCEMENT ON SR PS 7 FILE SENT TO THE BENCH CLERK SR PS 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE ON WHICH FILE GOES TO THE AR 10 DATE OF DESPATCH SR PS