ITO 25(2)(3), MUMBAI V. SWASTIK DEVELOPERS, MUMBAI

ITA 3659/MUM/2011

• Counselvise Citation: 365919914 RSA 2011
• Duration Of Justice: 2 year(s) 3 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 21-08-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 06-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: JIGNESH P SHAH
• Keywords: Reopening of assessment; Difference of opinion; Change of opinion
• Section: 143(3); 80IB; 147

Judgement Text

E IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI .. , !'# $ $ $ $ %&. !.'.. $( ) !'# !* BEFORE SHRI P.M. JAGTAP, AM AND DR. S.T.M. PAVALAN, JM !./ I.T.A. NO. 3628 /MUM/2011 ( )( , $-, )( , $-, )( , $-, )( , $-, / / / / ASSESSMENT YEAR : 2003-04) !./ I.T.A. NO. 3659 /MUM/2011 ( )( , $-, )( , $-, )( , $-, )( , $-, / / / / ASSESSMENT YEAR : 2004-05) INCOME TAX OFFICER 25(2)(3), R.NO. 105, IST FLOOR, C-11, PRATYAKSHKAR BHAVAN, BANDRA-KURLA COMPLEX, BANDRA (E), MUMBAI 400 051. ( ( ( ( / VS. M/S SWASTIK DEVELOPERS, B-61 & 63, SHANTIVAN, NEAR CLUB AQUIRA, DEVIDAS LANE, BORIVALI (W), MUMBAI 400 092 #. !./ PAN : AANFS1662H ( ./ / // / APPELLANT ) .. ( 01./ / RESPONDENT ) ./ 2 3 ! / APPELLANT BY : SHRI SHISHIR SRIVASTAVA 01./ 2 3 ! / RESPONDENT BY : SHRI JIGNESH P. SHAH !($ 2 / // / DATE OF HEARING : 21-08-2013 45- 2 / DATE OF PRONOUNCEMENT : 28-08-2013 '6 / O R D E R PER P.M. JAGTAP, A.M. : .. , !'# THESE TWO APPEALS PREFERRED BY THE REVENUE AGAINST TWO SEPARATE ORDERS DATED 28-2-2011 AND 21-3-2011 PASSED BY THE LD. CIT(A) -35, MUMBAI FOR ASSESSMENT YEARS 2003-04 AND 2007-08 INVOLVE A COMMON ISSUE RELATING TO THE ASSESSEES CLAIM FOR DEDUCTION U/S 80IB(10) OF THE INCOME TAX ACT, ITA 3628 & 3659/M/11 2 1961 (THE ACT) AND THE SAME THEREFORE HAVE BEEN HEA RD TOGETHER AND ARE BEING DISPOSED OF BY THIS SINGLE CONSOLIDATED ORDER FOR T HE SAKE OF CONVENIENCE. 2. THE ASSESSEE IN THE PRESENT CASE IS A PARTNERSHI P FIRM WHICH IS ENGAGED IN THE BUSINESS AS BUILDERS AND DEVELOPERS OF THE H OUSING PROJECTS. THE RETURN OF INCOME FOR THE A.Y. 2007-08 WAS FILED BY THE ASS ESSEE ON 31-10-2007 DECLARING TOTAL INCOME AT RS. NIL AFTER CLAIMING DEDUCTION U/S 80IB(10) OF THE ACT AMOUNTING TO RS. 29,95,703/-. THE SAID DEDUCTIO N WAS CLAIMED BY THE ASSESSEE IN RESPECT OF SUNDER SAGAR PROJECT UNDER TAKEN BY IT COMPRISING OF SEVEN BUILDINGS CONSTRUCTED ON PLOT OF LAND SITUATE D AT VILLAGE NAVGARH, REVENUE VILLAGE, BHAYANDER. DURING THE COURSE OF A SSESSMENT PROCEEDINGS, IT WAS NOTED BY THE A.O. THAT THE COMMENCEMENT CERTIFI CATE IN RESPECT OF THE SAID PROJECT WAS INITIALLY ISSUED BY THE LOCAL AUTH ORITY ON 24-4-1998 AND THE SAME WAS REVISED ON 12-10-2001. ACCORDING TO HIM, T HE PROJECT OF THE ASSESSEE THUS WAS APPROVED BY THE LOCAL AUTHORITY P RIOR TO 1-10-1998 AND AS PER EXPLANATION (I) TO SECTION 80IB(10) OF THE ACT, DEDUCTION U/S 80IB(10) WAS NOT ALLOWABLE TO THE ASSESSEE IN RESPECT OF THE SAI D PROJECT. THE A.O. ALSO HELD THAT THE ASSESSEE EVEN OTHERWISE WAS NOT ELIGIBLE F OR DEDUCTION U/S 80IB(10) OF THE ACT IN RESPECT OF SUNDER SAGAR PROJECT AS THE SAID PROJECT WAS NOT COMPLETED BY THE ASSESSEE ON OR BEFORE 31-3-2008. A CCORDINGLY THE DEDUCTION OF RS. 29,95,703/- CLAIMED BY THE ASSESSEE U/S 80IB (10) OF THE ACT IN RESPECT OF SUNDER SAGAR PROJECT WAS DISALLOWED AND BY TH E A.O. IN THE ASSESSMENT COMPLETED U/S 143(3) OF THE ACT FOR A.Y. 2007-08 VI DE AN ORDER DATED 31-12- 2009. 3. ON THE BASIS OF ASSESSMENT MADE FOR A.Y. 2007-08 , THE A.O. REOPENED THE ASSESSMENT MADE IN THE CASE OF THE ASSESSEE FOR A.Y. 2003-04 U/S 143(3) OF THE ACT WHEREIN A SIMILAR CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 80IB(10) OF THE ACT AMOUNTING TO RS. 21,78,168/- IN RESPECT OF SUNDER SAGAR PROJECT WAS ALLOWED AND IN THE ASSESSMENT COMPLETED U/S 147 R.W.S. 143(3) VIDE AN ORDER DATED 30-12-2010, THE DEDUCTION CLAIMED BY TH E ASSESSEE U/S 80IB(10) ITA 3628 & 3659/M/11 3 IN RESPECT OF PROFITS FROM SUNDER SAGAR PROJECT A MOUNTING TO RS. 21,78,168/- WAS DISALLOWED BY THE A.O. IN A.Y. 2003 -04. 4. AGAINST THE ORDER PASSED BY THE A.O. U/S 143(3) FOR A.Y. 2007-08, APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) AND AFTER CONSIDERING THE SUBMISSIONS MADE ON BEHALF OF THE A SSESSEE, THE RELEVANT PROVISIONS OF THE LAW AND THE JUDICIAL PRONOUNCEMEN TS RELEVANT TO THE ISSUE, THE LD. CIT(A) DIRECTED THE A.O. TO ALLOW THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 80IB(10) OF THE ACT FOR THE FOLLOWING REASONS GIVEN IN PARA 3.3 AND 3.4 OF HIS IMPUGNED ORDER:- I HAVE CONSIDERED THE SUBMISSIONS OF THE REPRESENT ATIVE AND THE STAND TAKEN BY THE A.O. THE FIRST OBJECTION OF THE A.O. I S THAT THE PROJECT OF THE APPELLANT WAS COMMENCED BEFORE 01.10.98 AS THE ORIGINAL COMMENCEMENT CERTIFICATE WAS DT. 24.4.98 WHICH IS P RIOR TO 01-10-98 AND THEREBY THE APPELLANT DID NOT FULFILL THE CONDI TION OF COMMENCEMENT AND DEVELOPMENT OF WORK ON OR AFTER 01.10.98. FOR T HIS PURPOSE, THE A.O. RELIED ON EXPLANATION BELOW SECTION 80IB(1O) W HICH READS AS UNDER: EXPLANATION FOR THE PURPOSE OF THIS CLAUSE:- (I) IN A CASE WHERE THE APPROVAL IN RESPECT OF THE HOUSING PROJECT IS OBTAINED MORE THAN ONCE, SUCH HOUSING PR OJECT SHALL BE DEEMED TO HAVE BEEN APPROVED ON THE DATE ON WHIC H THE BUILDING PLAN OF SUCH HOUSING PROJECT IS FIRST APPR OVED BY THE LOCAL AUTHORITY; (II) THE DATE OF COMPLETION OF CONSTRUCTION OF THE HOUSING PROJECT SHALL BE TAKEN TO BE THE DATE ON WHICH THE COMPLETI ON CERTIFICATE IN RESPECT OF SUCH HOUSING PROJECT IS ISSUED BY THE LOCAL AUTHORITY. THE ISSUE INVOLVED IN THIS APPEAL IS THE DATE OF CO MMENCEMENT OF HOUSING PROJECT. THE A.0. HELD THAT THE APPELLANT O BTAINED THE ORIGINAL COMMENCEMENT CERTIFICATE DATED 24.4.9S WHICH FALLS BEFORE 01.10.1998 AND, THEREFORE, NOT ENTITLED TO DEDUCTION U/S.80IB( 10) AS ONE OF THE CONDITIONS LAID DOWN IN SECTION 80IB(10) IS THAT TH E HOUSING PROJECT SHOULD HAVE BEEN COMMENCED ON OR AFTER 01. 10. 1998 . FOR THE SAKE OF CLARITY, THE RELEVANT PORTION OF SECTION 80IB(10) W .E.F. 01-4-2005 IS REPRODUCED BELOW: ITA 3628 & 3659/M/11 4 (10) THE AMOUNT OF DEDUCTION IN THE CASE OF AN UN DERTAKING DEVELOPING AND BUILDING HOUSING PROJECTS APPROVED B EFORE THE 31ST DAY OF MARCH, 2007 BY A LOCAL AUTHORITY SHALL BE HUNDRE D PER CENT OF THE PROFITS DERIVED IN THE PREVIOUS YEAR RELEVANT TO AN Y ASSESSMENT YEAR FROM SUCH HOUSING PROJECT IF,.. (A) SUCH UNDERTAKING HAS COMMENCED OR COMMENCES DEV ELOPMENT AND CONSTRUCTION OF THE HOUSING PROJECT ON AFTER THE 1S T DAY OF OCTOBER, 1998 AND COMPLETES SUCH CONSTRUCTION, -- (I) IN A CASE WHERE A HOUSING PROJECT HAS BEEN APPR OVED BY THE LOCAL AUTHORITY BEFORE THE IST DAY OF APRIL, 2004 ON OR B EFORE THE 31 ST DAY OF MARCH, 2008; (II) IN A CASE WHERE A HOUSING PROJECT HAS BEEN, OR , IS APPROVED BY THE LOCAL AUTHORITY ON OR AFTER THE IST DAY OF APRI L 2004, WITHIN FOUR YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH T HE HOUSING PROJECT IS APPROVED BY THE LOCAL AUTHORITY. EXPLANATION------ FOR THE PURPOSE OF THIS CLAUSE, (I) IN A CASE WHERE THE APPROVAL IN RESPECT OF TH E HOUSING PROJECT IS OBTAINED MORE THAN ONCE, SUCH HOUSING PR OJECT SHALL BE DEEMED TO HAVE BEEN APPROVED ON THE DATE ON WHIC H THE BUILDING PLAN OF SUCH HOUSING PROJECT IS FIRS APPRO VED BY THE LOCAL AUTHORITY: (II) THE DATE OF COMPLETION OF CONSTRUCTION OF THE HOUSING PROJECT SHALL BE TAKEN TO BE THE DATE ON WHICH THE COMPLETI ON CERTIFICATE IN RESPECT OF SUCH HOUSING PROJECT IS ISSUED BY THE LO CAL AUTHORITY; FROM THE ABOVE, IT CAN BE SEEN THAT AN UNDERTAKING SHOULD HAVE BEEN COMMENCED OR COMMENCES DEVELOPMENT AND CONSTRUCTION OF HOUSING PROJECT ON OR AFTER 01.10.1998 AND COMPLETED SUCH C ONSTRUCTION BEFORE 31.03.2008 IN A CASE WHERE THE HOUSING PROJECT HAS BEEN APPROVED BY THE LOCAL AUTHORITY BEFORE 01.04.2004. AS PER THE E XPLANATION, THE DATE OF FIRST APPROVAL BY THE LOCAL AUTHORITY SHALL BE T AKEN TO HAVE BEEN APPROVED ON THAT DATE WHICH MEANS THAT FOR THE PURP OSE OF DETERMINING COMPLETION OF CONSTRUCTION, THIS CRITERIA HAS TO BE APPLIED. THERE IS NO DEEMING PROVISION FOR DETERMINING THE COMMENCEMENT OF DEVELOPMENT AND CONSTRUCTION. THE SECTION NOWHERE MENTIONS THAT THE DATE OF FIRST APPROVAL SHALL BE TAKEN AS THE COMMENCEMENT OF THE PROJECT. THE EXPLANATION HAS TO BE READ WITH CLAUSE A(I) WHICH P RESCRIBES THE TIME LIMIT FOR COMPLETION OF THE PROJECT. IN THE CASE OF THE APPELLANT, EVEN THOUGH THE ORIGINAL APPROVAL WAS DATED 24.4.98, THE APPELLANT SUBSEQUENTLY OBTAINED REVALIDATION BY ORDER DATED 1 2.10.2001 WHICH ESTABLISHES THE FACT THAT THE RELEVANT HOUSING PROJ ECT WAS NOT ITA 3628 & 3659/M/11 5 COMMENCED TILL 12.10.2001. THE CONDITION LAID CLOWN IN THE SECTION IS THAT THE PROJECT SHOULD BE COMMENCED ON OR AFTER 01 .10.1998 AND THERE IS LOT OF DIFFERENCE BETWEEN THE DATE OF APPROVAL O F THE HOUSING PROJECT AND THE DATE OF COMMENCEMENT OF THE PROJECT AND THE A.O. MISTOOK THE DATE OF APPROVAL OF THE HOUSING PROJECT AS THE DATE OF COMMENCEMENT WHICH IS NOT CORRECT. THE ABOVE VIEW IS SUPPORTED B Y THE DECISION OF THE HONBLE MUMBAI TRIBUNAL IN THE CASE OF ARPANA DEVEL OPMENT CORPORATION (35 SOT 135). IN ANY CASE THE PROJECT OF THE APPELLANT WAS APPROVED BEFORE 01.04.2005 AND THEREBY THE AMENDMEN T INCLUDING THE EXPLANATION RELIED ON BY THE A.O. IS NOT APPLICABLE TO THE CASE OF THE APPELLANT. IN VIEW OF THE ABOVE, I HOLD THAT THERE IS NO JUSTIFICATION FOR DENYING DEDUCTION U/S.80IB(10) ON THE GROUND THAT T HE APPELLANT COMMENCED THE HOUSING PROJECT BEFORE 01.10.98. 3.4 THE OTHER OBJECTION RAISED BY THE A.O. IS THAT THE APPELLANT DID NOT OBTAIN THE COMPLETION CERTIFICATE ON R BEFORE 3 1.3.2008. ACTUALLY IN THIS CASE A REMAND ORDER DT. 22.9.2010 WAS ISSUED D IRECTING THE A.O. TO VERIFY AS TO WHETHER THE APPELLANT HAS APPLIED FOR COMPLETION CERTIFICATE WITH LOCAL AUTHORITY. THE A.O. SUBMITTED REMAND RE PORT DT. 14-2-2011 STATING THAT AS PER RECORDS OF BRIHANMUMBAI MUNICIP AL CORPORATION OF GREATER MUMBAI, THE APPELLANT DID NOT APPLY FOR COM PLETION CERTIFICATE. THUS ON FACTS IT IS CONFIRMED THAT THE APPELLANT DI D NOT OBTAIN THE COMPLETION CERTIFICATE ON OR BEFORE 31.3.2008. HOW EVER, THE CONTENTIONS OF THE REPRESENTATIVE IS THAT AS THE PR OJECT OF THE APPELLANT WAS APPROVED BEFORE 31.3.2005, THERE WAS NO REQUIRE MENT OF OBTAINING THE COMPLETION CERTIFICATE AS CONTENDED BEFORE THE A.O. BY LETTER DT. 24.12.2009. IN THE ABOVE LETTER, THE APPELLANT HAS REPRODUCED SECTION 80IB(10) AS IT EXISTED PRIOR TO 01.4.2005 AND POINT ED OUT THAT IN RESPECT OF THE PROJECTS APPROVED BEFORE 31.3.2005 BY A LOCA L AUTHORITY, THERE WAS NO REQUIREMENT OF OBTAINING COMPLETION CERTIFIC ATE. THE A.O. HOWEVER RELIED ON THE AMENDED SECTION AND HELD THAT THE APPELLANT OUGHT TO HAVE OBTAINED THE COMPLETION CERTIFICATE. AS CONTENDED BY THE REPRESENTATIVE, THE HONBLE MUMBAI TRIBUNAL IN THE CASE OF M/S SAROJ SALES ORGANISATION (CITED ABOVE) FOR A.Y.20O5-06 HE LD THAT IN RESPECT OF PROJECT APPROVED BEFORE 1.4.2005 THE RESTRICTION RE GARDING COMMERCIAL AREA WHICH WAS LAID DOWN BY AMENDMENT BY FINANCE AC T 2004 W.E.F. 01.4.2005 WAS NOT APPLICABLE. THE HONBLE TRIBUNAL WAS CONCERNED WITH A.Y. 2005-06 IN THE CASE OF M/S SAROJ SALES OR GANIZATION AND HELD THAT THE AMENDMENT W.E.F. 01.4.2005 WAS NOT APPLICA BLE EVEN FOR A.Y.2005-06 ON THE GROUND THAT THE AMENDMENT IS APP LICABLE ONLY FOR THE PROJECT APPROVED AFTER 01.4.2005. IF THE SAME R EASONING IS ADOPTED IT IS SEEN THAT FOR THE PROJECT APPROVED BEFORE 31. 3.2005 THERE IS NO REQUIREMENT OF OBTAINING THE COMPLETION CERTIFICATE . THE ABOVE VIEW IS FURTHER STRENGTHENED BY THE HONBLE MUMBAI TRIBUNAL IN THE CASE OF HIRANANDANI AKRUTI JV VS. DCIT (39 SOT 498) IN WHIC H A.Y. 2006- 07 WAS SUBJECT MATTER OF APPEAL. IN VIEW OF THE ABOVE, THE APPELLANT HAS TO ONLY FULFILL THE FOLLOWING CONDITIONS. ITA 3628 & 3659/M/11 6 I) THE DEVELOPMENT AND CONSTRUCTION OF THE HOUSING PROJECT HAS BEEN COMMENCED ON OR AFTER IST OCTOBER; 1998 AND HA S BEEN APPROVED BEFORE 31 DAY OF MARCH, 2005 BY LOCAL AUTHORITY. (II) THE PROJECT IS ON THE SIZE OF THE PLOT OF LAND WHIC H HAS A MINIMUM AREA OF ONE ACRE AND (III) THE RESIDENTIAL UNITS HAVE A MAXIMUM BUILT-UP AREA OF 1000 SQ.FT. THERE IS NO DISPUTE THAT THE APPELLANT HAS NOT FULF ILLED ALL THE CONDITIONS. IN THE CIRCUMSTANCES, I ACCEPT THE PLEA OF THE REPRESENTATIVE THAT DEDUCTION U/S 80IB(10) CANNOT BE DENIED MERELY BECAUSE THE APPELLANT DID NOT OBTAIN THE COMPLETION CERTIFICATE ON OR BEFORE 31.3.2008. FURTHER IT IS SEEN THAT IN THIS CASE, TH E A.O. COMPLETED THE ASSESSMENT U/S. 143(3) FOR AX. 2005- 06 ON 21.9.200 7 IN WHICH HE HAS REPRODUCED SECTION 80IB(10) AS IT STOOD BEFORE 3 1. 3.2005 AND HELD THAT THE APPELLANT FULFILLED ALL THE CONDITIONS. IF THE A.O. WAS OF THE OPINION THAT THE AMENDED PROVISIONS W.E.F. 01.4.2005 WERE A PPLICABLE, HE OUGHT TO HAVE RECORDED A NOTE THAT IF THE APPELLANT DID N OT COMPLETE THE PROJECT BEFORE 31.3.2008, THE DEDUCTION GRANTED U/S .80IB(10) WOULD BE WITHDRAWN. A PERUSAL OF THE ASSESSMENT ORDER SHOWS THAT NO SUCH OBSERVATION WAS MADE AND IT IS FURTHER SEEN THAT TH E A.O. APPLIED THE PROVISIONS OF SECTION 80IB(10) AS IT STOOD PRIOR TO 31.3.2005 EVEN FOR A.Y. 2005-06. IN VIEW OF THE ABOVE, I FIND THAT THE RE IS NO JUSTIFICATION FOR DENYING DEDUCTION 80IB(10) AND THE A.O. IS DIRE CTED TO ALLOW THE SAME. 5. THE APPEAL FILED BY THE ASSESSEE CHALLENGING THE DISALLOWANCE MADE BY THE A.O. U/S 80IB(10) OF THE ACT IN A.Y. 2003-04 WA S ALSO DISPOSED OF BY THE LD. CIT(A) VIDE APPELLATE ORDER DATED 28-2-2011 WHE REIN HE DIRECTED THE A.O. TO ALLOW THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/ S 80IB(10) OF THE ACT FOR THE FOLLOWING REASONS GIVEN IN PARA 7 OF HIS IMPUGNED O RDER: 7. ON MERITS IT IS SEEN THAT WHAT THE SECTION REQU IRES IS COMMENCEMENT OF THE PROJECT AFTER 01.10.98 AND NOT THE APPROVAL OF THE PROJECT AFTER 01.10.98 AND THIS POINT WAS DULY EXAMINED AT THE TIME OF ORIGINAL ASSESSMENT PROCEEDINGS WHEREAS THE A.O. BASED ON EXPLANATION (I) TO SECTION 80IB(10) WHICH WAS INSER TED BY FINANCE ACT, 2004 W.E.F. 01.4.2005 HELD THAT THE PROJECT IS DEEM ED TO HAVE BEEN APPROVED ON THE DATE ON WHICH THE BUILDING PLAN WAS FIRST APPROVED BY THE LOCAL AUTHORITY. FURTHER, THIS EXPLANATION WAS RELEVANT ONLY TO DETERMINE THE PERIOD OF COMPLETION OF THE PROJECT A ND NOT FOR DETERMINING THE COMMENCEMENT OF THE PROJECT. THE A. O. MISDIRECTED HIMSELF IN APPLYING THIS EXPLANATION FOR COMMENCEME NT OF THE PROJECT IGNORING THE FACT THAT THE CONDITION IN SECTION 80I B(10) IS THAT THE PROJECT SHOULD BE COMMENCED ON OR AFTER 01.10.98. T HUS THE FIRST ITA 3628 & 3659/M/11 7 REASONING GIVEN BY THE A.O IS NOT CORRECT. REGARDIN G COMPLETION OF THE PROJECT BEFORE 31.3.2008, I FIND THAT THE A.O HELD THAT THE AMENDMENT IN SECTION 80IB(10) WAS CLARIFICATORY IN NATURE. HO WEVER, THE STAND OF THE A.O. CANNOT BE ACCEPTED AS THE AMENDMENT IS ALW AYS PROSPECTIVE IN NATURE UNLESS IT IS SPECIFICALLY PROVIDED THAT THE SAME IS RETROSPECTIVE IN NATURE. RECENTLY THE HONBLE MUMBAI HIGH COURT HELD IN THE CASE OF BRAHMA ASSOCIATES BY JUDGMENT DT. 22.2.2011 THAT CL AUSE (D) INSERTED TO SECTION 80IB(10) W.E.F. 01.4.2005 IS PROSPECTIVE AND NOT RETROSPECTIVE AND HENCE IT CANNOT BE APPLIED FOR THE PERIOD PRIOR 01.4.2005. FOLLOWING THE SAME RATIO, 1 FIND THAT THE AMENDMENT BY FINANC E ACT, 2004 W.E.F. 01.4.2005 CANNOT BE APPLIED FOR ASSESSMENT YEARS UP TO A.Y.2004-05. ACCORDINGLY, THE A.O. WAS NOT JUSTIFIED IN DENYING DEDUCTION U/S. 80IB(10) AND HE IS DIRECTED TO ALLOW THE SAME AS CL AIMED BY THE APPELLANT. 6. IN ITS APPEAL FOR A.Y. 2003-04, THE VALIDITY OF REOPENING OF ASSESSMENT WAS ALSO CHALLENGED BY THE ASSESSEE AND THIS PRELIM INARY ISSUE WAS ALSO DECIDED BY THE LD. CIT(A) IN FAVOUR OF THE ASSESSEE HOLDING THAT THE REOPENING MADE PURELY ON THE BASIS OF CHANGE OF OPINION WITHO UT THERE BEING ANY FAILURE OF THE ASSESSEE TO DISCLOSE THE MATERIAL FACTS TRUL Y AND FULLY WAS INVALID AND THE REASSESSMENT MADE IN PURSUANCE OF SUCH REOPENIN G WAS LIABLE TO BE CANCELLED BEING BAD IN LAW. AGGRIEVED BY THE ORDER S OF THE LD. CIT(A) FOR ASSESSMENT YEARS 2003-04 AND 2007-08, THE REVENUE H AS PREFERRED THESE APPEALS BEFORE THE TRIBUNAL. 5. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS REGARDS T HE COMMON ISSUE INVOLVED IN THESE APPEALS OF THE REVENUE RELATING TO ASSESSE ES CLAIM FOR DEDUCTION U/S 80IB(10) OF THE ACT, THE LD. REPRESENTATIVES OF BOT H THE SIDES HAVE AGREED THAT THIS ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASS ESSEE BY THE VARIOUS DECISIONS OF THE TRIBUNAL AS WELL AS THAT OF THE HO NBLE BOMBAY HIGH COURT. IN ONE OF SUCH DECISIONS RENDERED IN THE CASE OF CI T VS. VANDANA PROPERTIES (INCOME TAX APPEAL NOS. 3633 OF 2009 & 4361 OF 2010 DATED MARCH, 28, 2012), THE INITIAL APPROVAL TAKEN PRIOR TO 1-10-199 8 WAS REVISED/EXTENDED AFTER 1-10-1998 AND IT WAS HELD BY THE HONBLE BOMB AY HIGH COURT THAT DEDUCTION U/S 80IB(10) SHOULD NOT BE DISALLOWED ON THE GROUND THAT THE ITA 3628 & 3659/M/11 8 PROJECT HAD COMMENCED PRIOR TO 1-10-1998 AND THE SU BSEQUENT APPROVAL WAS ONLY THE EXTENSION OF THE EARLIER PROJECT. IN THE C ASE OF CIT VS. BRAHMA ASSOCIATES, (2011) 333 ITR 289, IT WAS HELD BY THE HONBLE BOMBAY HIGH COURT THAT THE RESTRICTION IMPOSED UNDER THE ACT FO R THE FIRST TIME WITH EFFECT FROM APRIL 1, 2005, CANNOT BE APPLIED RETROSPECTIVE LY. RESPECTFULLY FOLLOWING THE RATIO LAID DOWN BY THE HONBLE JURISDICTIONAL H IGH COURT IN THESE CASES ON A SIMILAR ISSUE, WE UPHOLD THE IMPUGNED ORDERS OF T HE LD. CIT(A) DIRECTING THE A.O. TO ALLOW THE DEDUCTION CLAIMED BY THE ASSESSEE U/S 80IB(10) OF THE ACT IN RESPECT OF SUNDER SAGAR PROJECT FOR ASSESSMENT YE ARS 2003-04 AND 2007-08. 6. KEEPING IN VIEW OUR DECISION RENDERED ABOVE UPHO LDING THE IMPUGNED ORDER OF THE LD. CIT(A) FOR A.Y. 2003-04 DIRECTING THE A.O. TO ALLOW THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 80IB(10) OF THE ACT, THE OTHER ISSUE RAISED IN THE APPEAL OF THE REVENUE FOR A.Y. 2003-04 RELATING TO VALIDITY OF REASSESSMENT HAS BECOME INFRUCTUOUS AND WE DO NOT C ONSIDER IT NECESSARY OR EXPEDIENT TO ADJUDICATE UPON THE SAME. 7. IN THE RESULT, APPEALS OF THE REVENUE ARE DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH AUG. 2013. . '6 2 45- 7'(8 28-8-2013 5 2 SD/- SD/- (DR. S.T.M. PAVALAN) (P.M. JAGTAP ) ) !'# JUDICIAL MEMBER !'# / ACCOUNTANT MEMBER MUMBAI ; 7'( DATED 28-8-2013 $.)(.!./ RK , SR. PS ITA 3628 & 3659/M/11 9 '6 2 0)9: ;:- '6 2 0)9: ;:- '6 2 0)9: ;:- '6 2 0)9: ;:-/ COPY OF THE ORDER FORWARDED TO : 1. ./ / THE APPELLANT 2. 01./ / THE RESPONDENT. 3. < () / THE CIT(A)- 35, MUMBAI 4. < / CIT 25, MUMBAI 5. :$? 0))( , , / DR, ITAT, MUMBAI E BENCH 6. %, @ / GUARD FILE. '6(! '6(! '6(! '6(! / BY ORDER, !1: 0) //TRUE COPY// A A A A/ // /!B !B !B !B ( DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI