DCIT CIR 15(1), MUMBAI V. BHUMIRAJ CONSTRUCTIONS, NAVI MUMBAI

ITA 3685/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93348 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 12-03-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 24-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income
• Section: 143(3); 80IB

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER ITA NO.3379/MUM/2012 ASSESSMENT YEAR:2007-08 M/S BHUMIRAJ CONSTRUCTIONS D/5-6, BIG SPLASH, SECTOR-17 NAVI MUMBAI-400703 / VS. JOINT COMMISSIONER OF INCOME TAX (OSD), CIRCLE-15(1), ROOM NO.104,MATRU MANDIR, 1 ST FLOOR, TARDEO ROAD, MUMBAI-400007 ( !' # /ASSESSEE) ( $ / REVENUE) P.A. NO.AAFFB3546H ITA NO.3685/MUM/2012 ASSESSMENT YEAR:2007-08 JOINT COMMISSIONER OF INCOME TAX (OSD), CIRCLE-15(1), ROOM NO.104,MATRU MANDIR, 1 ST FLOOR, TARDEO ROAD, MUMBAI-400007 / VS. M/S BHUMIRAJ CONSTRUCTIONS D/5-6, BIG SPLASH, SECTOR-17 NAVI MUMBAI-400703 ( $ / REVENUE) ( !' # /ASSESSEE) P.A. NO. AAFFB3546H $ / REVENUE BY SHRI N.P.SINGH-CIT-DR, !' # / ASSESSEE BY SHRI PRADIP KAPASI % $& ' # ( / DATE OF HEARING 29/07/2015 ' # ( / DATE OF ORDER: 23/09/2015 ITA NO.3379 & 3685/MUM/2012 , M/S BHUMIRAJ CONSTRUCTIONS 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE AS WELL AS THE REVENUE HAS PREFERRED CROSS APPEAL AGAINST THE IMPUGNED ORDER DATED 19/03/2012, FOR ASSESSMENT YEAR 2007-08, OF THE LD. FIRST APPELLATE AUTHORITY, MUMBAI. 2. FIRST, WE SHALL TAKE UP APPEAL OF THE REVENUE, WHEREIN, FIRST GROUND PERTAINS TO NOT FOLLOWING THE OWN DECISION BY THE LD. COMMISSIONER OF INCOME TAX (APP EALS) FOR A.Y. 2006-07 WITHOUT APPRECIATING THE AMENDED PROVI SION OF SECTION 80IB(10) WITH EFFECT FROM 01/04/2005, WHICH ARE APPLICABLE TO A HOUSING PROJECT APPROVED BEFORE 01/ 04/2004, AS PER SUB-CLAUSE(I) TO CLAUSE (A) TO SECTION 80IB( 10) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT). 2.1. DURING HEARING OF THIS APPEAL, THE LD. CIT-DR , SHRI N.P. SINGH, ADVANCED HIS ARGUMENTS, WHICH IS IDENTI CAL TO THE GROUND RAISED BY SUBMITTING THAT THE LD. COMMISSION ER OF INCOME TAX (APPEALS) OVERLOOKED THE DECISION TAKEN FOR A.Y. 2006-07 AND ALSO THE EFFECT OF AMENDMENT W.E.F 01/0 4/2005. ON THE OTHER HAND, SHRI PRADIP KAPASI, LD. COUNSEL FOR THE ASSESSEE, DEFENDED THE CONCLUSION ARRIVED AT IN THE IMPUGNED ORDER. 2.2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. BEFORE C OMING TO ANY CONCLUSION, WE ARE REPRODUCING HEREUNDER THE RE LEVANT ITA NO.3379 & 3685/MUM/2012 , M/S BHUMIRAJ CONSTRUCTIONS 3 PORTION FROM THE ORDER OF THE LD. COMMISSIONER OF I NCOME TAX (APPEALS) FOR READY REFERENCE AND ANALYSIS:- 5.2. I HAVE CAREFULLY CONSIDERED THE FINDINGS OF T HE AO AS WELL AS THE SUBMISSIONS OF THE APPELLANT. THIS ISSU E HAS ALSO OCCURRED IN THE IMMEDIATELY PRECEDING ASSESSMENT YE AR I.E. A.Y. 2006-07, WHEREIN VIDE APPEAL ORDER DATED 07.10 .2011 AFTER CONSIDERING THE FACTS OF THE CASE AS. WELL AS VARIOUS JUDICIAL PRONOUNCEMENTS OF THE JURISDICTIONAL 1TAT, MUMBAI AND BOMBAY HIGH COURT, I HAVE ALLOWED THE DEDUCTION CLAIMED BY THE APPELLANT ON IT'S RESIDENT IAL COMPLEX ONLY. FOLLOWING THE PRINCIPLE OF CONSISTENC Y, IT IS HELD THAT THE APPELLANT IS ENTITLED FOR DEDUCTION U /S. 80-IB ON IT'S RESIDENTIAL COMPLEX ONLY. IT IS HOWEVER, NO TED THAT DURING THE YEAR UNDER CONSIDERATION, THE AO HAS ALS O RAISED AN ADDITIONAL GROUND FOR DENIAL OF DEDUCTION CLAIMED BY THE APPELLANT U/S. 80- IB AS ON THE BASI S OF ITI'S REPORT, IT WAS NOTICED THAT THE COMBINED AREA OF AD JACENT FLATS IN SOME OF THE CASES EXCEEDED 1,000 SQ.FT., W HICH IS IN VIOLATION OF THE. PROVISIONS OF SECTION 80- IB( 10) . THE APPELLANT IS OF THE VIEW THAT ONCE THE SALE OF TWO ADJACENT FLATS AS INDEPENDENT UNIT IS COMPLETE, THEN, THE BU YERS WHICH MAY BE RELATED PERSON MAY MAKE SOME MODIFICATIONS/ADJUSTMENTS, WHICH DOES NOT HAVE ANY BEARING ON THE DEDUCTION U/S. 80-1B IN THE CASE OF BUILDERS. ON THE OTHER HAND, THE AO HAS SUSPECTED SUCH DEALS, WHICH IN HIS OPINION WERE MADE WITH THE CONNIVANCE OF THE BUILDER, WHICH ARE VIOLATION OF SECTION 80- IB. THI S ISSUE HAS ONCE AGAIN BEEN EXAMINED IN THE REMAND REPORT OF TH E AO, WHEREIN THE WARD INSPECTOR AFTER PHYSICAL VERIFICAT ION OF SUCH ADJACENT FLATS HAS REPORTED THAT THE ADJACENT FLATS ARE HELD BY FAMILY MEMBERS, BUT THE FLATS ARE NOT JOINT PHYSICALLY. THEREFORE, UNDER THESE CIRCUMSTANCES, I T CANNOT BE HELD THAT THE AREA OF INDEPENDENT FLATS HAS EXCE EDED THE PERMISSIBLE LIMIT OF 1,000 SQ.FT. ACCORDINGLY, ON T HIS GROUND ALSO, THE DENIAL OF DEDUCTION U/S. 80-IB IS NOT JUS TIFIED. THE AO IS ACCORDINGLY, DIRECTED TO ALLOW THE SAME. 2.3. WE NOTE THAT THE ASSESSEE IS A PARTNERSHIP FI RM ENGAGED IN THE BUSINESS OF DEVELOPMENT AND CONSTRUC TION OF HOUSING PROJECTS. THE ASSESSEE OFFERED FOR TAX ITS BUSINESS INCOME FROM ITS BUSINESS, SUBJECT TO DEDUCTION U/S 80IB(10) ITA NO.3379 & 3685/MUM/2012 , M/S BHUMIRAJ CONSTRUCTIONS 4 OF THE ACT, IN RESPECT OF PROFIT FROM HOUSING PROJE CTS BEING BHUMIRAJ WOODS & BHUMIRAJ MEADOWS. THE ASSESSEE IS MAINTAINING REGULAR BOOKS OF ACCOUNTS INCLUDING CAS H BOOK, LEDGER AND SALES AND PURCHASE REGISTERS AND THE ACC OUNTS ARE AUDITED. THE ASSESSEE DECLARED TOTAL INCOME OF RS.92,94,335/-, AFTER CLAIMING DEDUCTION OF RS.15,98,75,054/-, U/S 80IB(10) OF THE ACT. THE RET URN WAS ACCOMPANIED BY TAX AUDIT REPORT U/S 44AB OF THE ACT ALONGWITH RELEVANT ANNEXURE/SCHEDULES. THE LD. ASS ESSING OFFICER FRAMED ASSESSMENT ORDER U/S 143(3) ON 29/12 /2009, ASSESSING THE TOTAL INCOME AT RS.31,06,77,740/- DIS ALLOWING THE ENTIRE CLAIMED DEDUCTION AMOUNTING TO RS.15,98,75,054/-, U/S 80IB(10), MAKING ADDITION OF RS.14,15,08,335/- TOWARDS SUPPRESSION OF SALES AND INFLATION OF COST OF CONSTRUCTION. 2.4. ON APPEAL, BEFORE THE LD. COMMISSIONER OF INC OME TAX (APPEALS), THE CONTENTION OF THE ASSESSEE WAS C ONSIDERED AND THE ISSUE IN HAND WAS DECIDED IN FAVOUR OF THE ASSESSEE. THE RELEVANT PORTION OF THE SAME HAD ALREADY BEEN REPRODUCED IN EARLIER PARA (2.2) OF THIS ORDER. THE REVENUE IS AGGRIEVED AND IS IN APPEAL BEFORE THIS TRIBUNAL. 2.5. IF THE OBSERVATION MADE IN THE ASSESSMENT OR DER, LEADING TO ADDITION MADE TO THE TOTAL INCOME, CONCL USION DRAWN IN THE IMPUGNED ORDER, MATERIAL AVAILABLE ON RECORD, ASSERTIONS MADE BY THE LD. RESPECTIVE COUNSEL, ARE KEPT IN JUXTAPOSITION AND ANALYZED, WE FIND THAT THE REVENU E IS AGGRIEVED IN GRANTING THE CLAIMED DEDUCTION U/S 80I B(10) OF ITA NO.3379 & 3685/MUM/2012 , M/S BHUMIRAJ CONSTRUCTIONS 5 THE ACT. THE STAND OF THE REVENUE IS THAT THE ASSE SSEE VIOLATED THE PROVISION OF SECTION 80IB(10) ON THE G ROUND THAT FOR AVAILING SUCH DEDUCTION, THE COMMERCIAL AREA CO NSTRUCTED BY THE ASSESSEE SHOULD NOT EXCEED THE LIMIT OF 5% A ND FURTHER THE COMMERCIAL AREA IS 5.48 % OF THE TOTAL PROJECT, THEREFORE, THE CLAIMED DEDUCTION WAS RIGHTLY DISALLOWED, BECAU SE, THE CONDITION LAID DOWN U/S 80IB(10)(B) OF THE ACT WAS NOT FULFILLED BY THE ASSESSEE. RIGHT FROM ASSESSMENT ST AGE, THE STAND OF THE ASSESSEE IS THAT SINCE THE PROJECT WAS APPROVED BEFORE 01/04/2004, WHEREAS, THE LIMIT OF 5% WAS INT RODUCED BY AN AMENDMENT W.E.F 01/04/2005, WHICH IS PROSPEC TIVE IN NATURE, THEREFORE, NOT APPLICABLE TO THE PROJECTS A PPROVED BEFORE 01/04/2005. THE LD. ASSESSING OFFICER HELD THAT THE PROJECTS NAMELY WOODS AND MEADOWS, OF THE FIRM , DOES NOT QUALIFY FOR CLAIMED DEDUCTION U/S 80IB(10) AND THUS, HE DISALLOWED THE RESPECTIVE CLAIM ON THE GROUND (A) T HE PROJECT WOODS WAS A RESIDENTIAL CUM COMMERCIAL PROJECT (B) THE COMMERCIAL AREA OF THE SHOPS IN WOODS PROJECT WAS 5 .48% OF THE TOTAL SALEABLE AREA, OF THE SAID PROJECT, AGAIN ST THE PERMISSIBLE LIMIT OF 5% OF THE AGGREGATE BUILT UP A REA. THE ASSESSING OFFICER ALSO OBSERVED THAT THE COMBINED A GGREGATE AREA OF SOME OF THE FLATS WAS EXCEEDING 1,000 SQ. F T., LEADING TO VIOLATION OF THE PROVISION OF SECTION 80IB(10) O F THE ACT. WE, GAINFULLY, REPRODUCING HEREUNDER THE PROVISION OF T HE ACT. 4. SOON AFTER THE FINANCE (NO.2) ACT OF 2004; THIS WAS BROUGHT INTO FORCE W. E. F. 01.04.2005. THE EFFECT OF THIS AMENDED PROVISION READ AS FOLLOWS: - 'SECTION 80IB(10) IN THE POST-AMENDMENT PERIOD: - ITA NO.3379 & 3685/MUM/2012 , M/S BHUMIRAJ CONSTRUCTIONS 6 '(10) THE AMOUNT OF DEDUCTION IN THE CASE OF AN UND ERTAKING DEVELOPING AND BUILDING HOUSING PROJECTS APPROVED B EFORE THE 31ST DAY OF MARCH, 2008 BY A LOCAL AUTHORITY SH ALL BE HUNDRED PER CENT. OF THE PROFITS DERIVED IN THE PRE VIOUS YEAR RELEVANT TO ANY ASSESSMENT YEAR FROM SUCH HOUSING P ROJECT IF, - (A) SUCH UNDERTAKING HAS COMMENCED OR COMMENCES DEVELOPMENT AND CONSTRUCTION OF THE HOUSING PROJECT ON OR AFTER THE 1ST DAY OF OCTOBER, 1998 AND COMPLETES SUC H CONSTRUCTION - (I) IN A CASE WHERE A HOUSING PROJECT HAS BEEN APPR OVED BY THE LOCAL AUTHORITY BEFORE THE 1ST DAY OF APRIL, 20 04, ON OR BEFORE THE 31ST 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 1 S T DAY OF APRIL, 2004 BUT NOT LATER THAN THE 31 ST DAY OF MAR CH, 2005, WITHIN FOUR YEARS FROM THE END OF THE FINANCIAL YEA R IN WHICH THE HOUSING PROJECT IS APPROVED BY THE LOCAL AUTHOR ITY. (III) IN A CASE WHERE A HOUSING PROJECT HAS BEEN AP PROVED BY THE LOCAL AUTHORITY ON OR AFTER THE 1 ST DAY OF APR IL, 2005, WITHIN FIVE YEARS FROM THE END OF THE FINANCIAL YEA R IN WHICH THE HOUSING PROJECT IS APPROVED BY THE LOCAL AUTHOR ITY. EXPLANATION- FOR THE PURPOSES 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 O N WHICH THE BUILDING PLAN OF SUCH HOUSING PROJECT IS FIRST APPROVED 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 COMPLETION CERTIFICATE IN RESPECT OF SUCH HOUSING PROJECT IS I SSUED BY THE LOCAL AUTHORITY; (B) THE PROJECT IS ON THE SIZE OF A PLOT OF LAND WH ICH HAS A MINIMUM AREA OF ONE ACRE: PROVIDED THAT NOTHING CONTAINED IN CLAUSE (A) OR CLA USE (B) SHALL APPLY TO A HOUSING PROJECT CARRIED OUT IN ACC ORDANCE WITH A SCHEME FRAMED BY THE CENTRAL GOVERNMENT OR A STATE ITA NO.3379 & 3685/MUM/2012 , M/S BHUMIRAJ CONSTRUCTIONS 7 GOVERNMENT FOR RECONSTRUCTION OR REDEVELOPMENT OF E XISTING BUILDINGS IN AREAS DECLARED TO BE SLUM AREAS UNDER ANY LAW FOR THE TIME BEING IN FORCE AND SUCH SCHEME IS NOTI FIED BY THE BOARD IN THIS BEHALF; (C) THE RESIDENTIAL UNIT HAS A MAXIMUM BUILT-UP ARE A OF ONE THOUSAND SQUARE FEET WHERE SUCH RESIDENTIAL UNIT IS SITUATED WITHIN THE CITIES OF DELHI OR MUMBAI OR WITHIN TWEN TY-FIVE KILOMETRES FROM THE MUNICIPAL LIMITS OF THESE CITIE S AND ONE THOUSAND AND FIVE HUNDRED SQUARE FEET AT ANY OTHER PLACE; (D) THE BUILT-UP AREA OF THE SHOPS AND OTHER COMMER CIAL ESTABLISHMENTS INCLUDED IN THE HOUSING PROJECT DOES NOT EXCEED THREE PER CENT. OF THE AGGREGATE BUILT-UP AR EA OF THE HOUSING PROJECT OF FIVE THOUSAND SQUARE FEET, WHICH EVER IS HIGHER.' 2.6. WE NOTE THAT BEFORE THE LD. COMMISSIONER OF I NCOME TAX (APPEALS), THE ASSESSEE CLAIMED THAT THE ASSESS MENT ORDER FOR 2006-07 WAS SUFFERING FROM FACTUAL ERRORS AND THE SAME WAS MADE WITHOUT VERIFICATION OF THE FACTS BY FURTHER CONTENDING THAT THE ACTUAL PERCENTAGE OF BUILT UP A REA OF SHOPS OF THE TOTAL PROJECT WAS 4.8% I.E. LESS THAN 5%. THE ASSESSEE ALSO PLACED RELIANCE UPON THE DECISION IN THE CASE OF BRAHMA ASSOCIATES (122 TTJ 433)(SB)(PUNE) BY CONTEN DING THAT THE PROJECT IN QUESTION COMMENCED BEFORE 31/03 /2005, THEREFORE, THE CLAIM OF THE ASSESSEE IS GOVERNED BY THE PROVISION, PREVAILING AT THE RELEVANT TIME AND NOT AFFECTED BY THE AMENDMENT MADE ON 01/04/2005. IT IS ALSO NOTED THAT HONBLE JURISDICTIONAL HIGH COURT HAD ALREADY APPRO VED THE DECISION TAKEN IN BRAHMA ASSOCIATES. WE NOTE THAT SECTION 80IB HAD BEEN ON STATUTE BOOK FOR QUITE SOME TIME. HOWEVER, IN SO FAR AS, SUB-SECTION (10) IS CONCERNE D, WITH WHICH WE ARE DIRECTLY CONCERNED, THERE HAD BEEN AME NDMENTS ITA NO.3379 & 3685/MUM/2012 , M/S BHUMIRAJ CONSTRUCTIONS 8 IN THE PROVISION FROM TIME TO TIME. IN THE PRESENT APPEAL, WE ARE CONCERNED WITH THE AMENDMENT MADE TO SUB-SECTIO N BY THE FINANCE NO.2 ACT , 2004 W.E.F 1/4/2005 .UNDISPUTEDLY, THE PROJECTS OF THE ASSESSEE WERE SANCTIONED ON 3/7/2003 AND 13/05/2004 I.E, MUCH BEFORE THE AMENDMENT, WHICH IS EFFECTIVE FROM 1/4/2005 . THERE IS ALSO NO DISPUTE THAT THE AMENDMENT IS PROSPECTIVE IN NATURE. IT IS ALSO ADMI TTED FACT THAT THE HOUSING PROJECT WAS APPROVED BY THE COMPET ENT AUTHORITY AND THE CONDITIONS PREVAILING AT THE RELE VANT TIME WERE MET BY THE ASSESSEE. THE CONDITION OF CLAUSE ( D) WAS LAID DOWN FOR THE FIRST TIME BY THE AMENDMENT WHICH WAS MADE EFFECTIVE FROM 1/4/2005 WAS NOT FULFILLED. NOW, THE QUESTION ARISES, WHETHER THE ASSESSEE, HAS TO FULFILL THE CO NDITION INSERTED IN CLAUSE (D) BY THE AMENDMENT. SUB-SECTION(10 ) SPEAKS ABOUT FULFILLMENT OF CERTAIN CONDITIONS, WHI CH ARE TO BE SATISFIED BY THE ASSESSEE, FOR AVAILING THE BENEFIT OF THE SAID PROVISION. CLAUSE (D) WAS INSERTED BY THE AMENDMENT WHICH WAS MADE EFFECTIVE FROM 01/4/2005 , THEREFORE, IN OUR VIEW, THE ASSESSEE IS NOT EXPECTED TO DEMOLISH THE CONSTR UCTION WHICH WAS ALREADY IN EXISTENCE AND FULFILLS THE CON DITION, WHICH WERE INSERTED AT THE LATER DATE AND ARE PROSP ECTIVE IN NATURE. THE ASSESSEE IS EXPECTED TO COMPLETE THE PR OJECT FOR WHICH SANCTION HAD ALREADY BEEN GRANTED BEFORE INTR ODUCTION OF THE AMENDMENT. IT IS SETTLED PRINCIPLE OF LAW BY HONBLE COURTS AT VARIOUS LEVEL THAT SINCE THE AMENDMENT IS PROSPECTIVE IN NATURE, WHICH CAME INTO EFFECT FROM 1/4/2005 , THUS, WILL NOT BE APPLICABLE TO THE PROJECTS WHICH HAD ALREADY BEEN SANCTIONED/STARTED EARLIER AND EVEN IF THEY AR E ITA NO.3379 & 3685/MUM/2012 , M/S BHUMIRAJ CONSTRUCTIONS 9 FINISHED/COMPLETED AFTER 01/04/2005. THE RATIO LAI D DOWN IN CHD DEVELOPERS BY THE DELHI BENCH OF THE TRIBUNAL ( WHEREIN, ONE OF US I.E. JUDICIAL MEMBER IS SIGNATORY TO THE ORDER), WHICH WAS AFFIRMED BY HONBLE DELHI HIGH COURT, SUP PORTS OUR VIEW. EVEN OTHERWISE, THE HONBLE JURISDICTION AL HIGH COURT IN BRAHMA ASSOCIATES (SUPRA) HAD ALREADY CONS IDERED THE ARGUMENT OF THE REVENUE AND APPLICABILITY OF CL AUSE (D), INSERTED W.E.F 01/04/2005, REPELLING THE ARGUMENT O F THE LD. COUNSEL FOR THE REVENUE, BY DECIDING THE CASE IN FA VOUR OF THE ASSESSEE. THE RELEVANT DISCUSSION MADE IN THE ORDER OF THE HONBLE HIGH COURT IS REPRODUCED HEREUNDER FOR READ Y REFERENCE:- '21. THUS, ON THE DATE ON WHICH THE LEGISLATURE INT RODUCED 100% DEDUCTION UNDER THE INCOME TAX ACT, 1961 ON TH E PROFITS DERIVED FROM HOUSING PROJECTS APPROVED BY A LOCAL AUTHORITY. IT WAS KNOWN THAT THE LOCAL AUTHORITIES COULD APPROVE THE PROJECTS AS HOUSING PROJECTS WITH COMME RCIAL USER TO THE EXTENT PERMITTED UNDER THE DC RULES FRA MED BY THE RESPECTIVE LOCAL AUTHORITY. IN OTHER WORDS, IT WAS KNOWN THAT THE LOCAL AUTHORITIES COULD APPROVE A HOUSING PROJECT WITHOUT OR WITH COMMERCIAL USER TO THE EXTENT PERMI TTED UNDER THE DEVELOPMENT CONTROL RULES. IF THE LEGISLA TURE INTENDED TO RESTRICT THE BENEFIT OF DEDUCTION ONLY TO THE PROJECTS APPROVED EXCLUSIVELY FOR RESIDENTIAL PURPO SES, THEN IT WOULD HAVE STATED SO. HOWEVER, THE LEGISLATURE HAS PROVIDED THAT SECTION 8018(10) DEDUCTION IS AVAILABLE TO ALL THE HOUSING PROJECTS APPROVED BY A LOCAL AUTHORITY. SIN CE THE LOCAL AUTHORITIES COULD APPROVE A PROJECT TO BE A H OUSING PROJECT WITH OR WITHOUT THE COMMERCIAL USER, IT IS EVIDENT THAT THE LEGISLATURE INTENDED TO ALLOW SECTION 8018(10) DEDUCTION TO ALL THE HOUSING PROJECTS APPROVED BY A LOCAL AUT HORITY WITHOUT OR WITH COMMERCIAL USER TO THE EXTENT PERMI TTED UNDER THE DC RULES. 22. IT IS NOT IN DISPUTE THAT WHERE A PROJECT IS AP PROVED AS A HOUSING PROJECT WITHOUT OR WITH COMMERCIAL USER TO THE EXTENT PERMITTED UNDER THE RULES/REGULATIONS, THEN, ITA NO.3379 & 3685/MUM/2012 , M/S BHUMIRAJ CONSTRUCTIONS 10 DEDUCTION UNDER SECTION 80IB(10) WOULD BE ALLOWABLE . IN OTHER WORDS, IF A PROJECT COULD BE APPROVED AS A HO USING PROJECT HAVING RESIDENTIAL UNITS WITH PERMISSIBLE C OMMERCIAL USER, THEN IT IS NOT OPEN TO THE INCOME TAX AUTHORI TIES TO CONTEND THAT THE EXPRESSION 'HOUSING PROJECT' IN SE CTION 80IB(10) IS APPLICABLE TO PROJECTS HAVING ONLY RESI DENTIAL UNITS. 23. ONCE IT IS HELD THAT THE LOCAL AUTHORITIES COUL D APPROVE A PROJECT TO BE HOUSING PROJECT WITHOUT OR WITH THE C OMMERCIAL USER TO THE EXTENT PERMITTED UNDER THE DC RULES, TH EN THE PROJECT APPROVED WITH THE PERMISSIBLE COMMERCIAL US ER WOULD BE ELIGIBLE FOR SECTION 80IB(10) DEDUCTION IRRESPEC TIVE OF THE FACT THAT THE PROJECT IS APPROVED AS 'HOUSING PROJE CT' OR APPROVED AS 'RESIDENTIAL PLUS COMMERCIAL'. IN OTHER WORDS, WHERE A PROJECT FULFILS THE CRITERIA FOR BEING APPR OVED AS A HOUSING PROJECT, THEN DEDUCTION CANNOT BE DENIED UN DER SECTION 80IB(10) MERELY BECAUSE THE PROJECT IS APPR OVED AS 'RESIDENTIAL PLUS COMMERCIAL'. 24. THE FACT THAT THE DEDUCTION UNDER SECTION 80IB( 10) PRIOR TO 1.4.2005 WAS ALLOWABLE ON THE PROFITS DERIVED FR OM THE HOUSING PROJECTS CONSTRUCTED DURING THE SPECIFIED P ERIOD, ON A SPECIFIED SIZE OF THE PLOT WITH RESIDENTIAL UNITS O F THE SPECIFIED SIZE, IT CANNOT BE INFERRED THAT THE DEDUCTION UNDE R SECTION 80IB(10) WAS ALLOWABLE TO HOUSING PROJECTS HAVING RESIDENTIAL UNITS ONLY, BECAUSE, RESTRICTION ON THE SIZE OF THE RESIDENTIAL UNIT IS WITH A VIEW TO MAKE AVAILABLE L ARGE NUMBER OF AFFORDABLE HOUSES TO THE COMMON MAN AND N OT WITH A VIEW TO DENY COMMERCIAL USER IN RESIDENTIAL BUILDINGS. IN OTHER WORDS, THE RESTRICTION UNDER SECTION 80IB( 10) REGARDING THE SIZE OF THE RESIDENTIAL UNIT WOULD IN NO WAY CURTAIL THE POWERS OF THE LOCAL AUTHORITY TO APPROV E A PROJECT WITH COMMERCIAL USER TO THE EXTENT PERMITTED UNDER THE DC RULES/REGULATIONS. THEREFORE, THE ARGUMENT OF THE R EVENUE THAT THE RESTRICTION ON THE SIZE OF THE RESIDENTIAL UNIT IN SECTION 8018(10) AS IT STOOD PRIOR TO 1.4.2005 IS S UGGESTIVE OF THE FACT THAT THE DEDUCTION IS RESTRICTED TO HOUSIN G PROJECTS APPROVED FOR RESIDENTIAL UNITS ONLY CANNOT BE ACCEP TED. 25. THE ABOVE CONCLUSION IS FURTHER FORTIFIED BY CL AUSE (D) TO SECTION 8018(10) INSERTED WITH EFFECT FROM 1.4.2005 . CLAUSE (D) TO SECTION 8018(10) INSERTED W.E.F. 1.4.2005 PR OVIDES THAT EVEN THOUGH SHOPS AND COMMERCIAL ESTABLISHMENTS ARE INCLUDED IN THE HOUSING PROJECT, DEDUCTION UNDER SE CTION 80IB (10) WITH EFFECT FROM 1.4.2005 WOULD BE AVAILABLE W HERE SUCH ITA NO.3379 & 3685/MUM/2012 , M/S BHUMIRAJ CONSTRUCTIONS 11 COMMERCIAL USER DOES NOT EXCEED FIVE PER CENT OF TH E AGGREGATE BUILT-UP AREA OF THE HOUSING PROJECT OR T WO THOUSAND SQUARE FEET WHICHEVER IS LOWER. 8Y FINANCE ACT, 2010, CLAUSE (D) IS AMENDED TO THE EFFECT THAT THE COMMERCIAL USER SHOULD NOT EXCEED THREE PERCENT OF THE AGGREGA TE BUILT- UP AREA OF THE HOUSING PROJECT OR FIVE THOUSAND SQU ARE FEET WHICHEVER IS HIGHER. THE EXPRESSION 'INCLUDED' IN C LAUSE (D) MAKES IT AMPLY CLEAR THAT COMMERCIAL USER IS AN INT EGRAL PART OF HOUSING PROJECT. THUS, BY INSERTING CLAUSE (D) T O SECTION 80IB(10) THE LEGISLATURE HAS MADE IT CLEAR THAT THO UGH THE HOUSING PROJECTS APPROVED BY THE LOCAL AUTHORITIES WITH COMMERCIAL USER TO THE EXTENT PERMISSIBLE UNDER THE DC RULES/REGULATION WERE ENTITLED TO SECTION 80IB(10) DEDUCTION, WITH EFFECT FROM 1.4.2005 SUCH DEDUCTION WOULD BE SUBJECT TO THE RESTRICTION SET OUT IN CLAUSE (D) OF SECTION 80IB(10). THEREFORE, THE ARGUMENT OF THE REVENUE TH AT WITH EFFECT FROM 1.4.2005 THE LEGISLATURE FOR THE FIRST TIME ALLOWED SECTION 80IB(10) DEDUCTION TO HOUSING PROJECTS HAVI NG COMMERCIAL USER CANNOT BE ACCEPTED. XX XXX XX 29. LASTLY, THE ARGUMENT OF THE REVENUE THAT SECTIO N 80IB(10) AS AMENDED BY INSERTING CLAUSE (D) WITH EFFECT FROM 1.4.2005 SHOULD BE APPLIED RETROSPECTIVELY IS ALSO WITHOUT A NY MERIT, BECAUSE, FIRSTLY, CLAUSE (D) SPECIFICALLY INSERTED WITH EFFECT FROM 1.4.2005, AND THEREFORE, THAT CLAUSE CANNOT BE APPLIED FOR THE PERIOD PRIOR TO 1.4.2005. SECONDLY, CLAUSE (D) SEEKS TO DENY SECTION 80IB(10) DEDUCTION TO PROJECTS HAVING COMMERCIAL USER BEYOND THE LIMIT PRESCRIBED UNDER C LAUSE (D), EVEN THOUGH SUCH COMMERCIAL USER IS APPROVED B Y THE LOCAL AUTHORITY. THEREFORE, THE RESTRICTION IMPOSED UNDER THE ACT FOR THE FIRST TIME WITH EFFECT FROM 1.4.2005 CA NNOT BE APPLIED RETROSPECTIVELY. THIRDLY, IT IS NOT OPEN TO THE REVENUE TO CONTEND ON THE ONE HAND THAT SECTION 80IB(10) AS STOOD PRIOR TO 1.4.2005 DID NOT PERMIT COMMERCIAL USER IN HOUSING PROJECTS AND ON THE OTHER HAND CONTEND THAT THE RES TRICTION ON COMMERCIAL USER INTRODUCED WITH EFFECT FROM 1.4. 2005 SHOULD BE APPLIED RETROSPECTIVELY. THE ARGUMENT OF THE REVENUE IS MUTUALLY CONTRADICTORY AND HENCE LIABLE TO BE REJECTED. THUS, IN OUR OPINION, THE TRIBUNAL WAS JU STIFIED IN HOLDING THAT CLAUSE (D) INSERTED TO SECTION 80IB(10 ) WITH EFFECT FROM 1.4.2005 IS PROSPECTIVE AND NOT RETROSP ECTIVE AND HENCE CANNOT BE APPLIED TO THE PERIOD PRIOR TO 1.4. 2005. ITA NO.3379 & 3685/MUM/2012 , M/S BHUMIRAJ CONSTRUCTIONS 12 2.7. THE HONBLE HIGH COURT IN PARA 29 HAS ALREADY HELD THAT CLAUSE (D) HAS PROSPECTIVE OPERATION I.E. W.E. F 01/04/2005, THUS, THE DEVELOPERS/ASSESSEES WHO HAD GOT THEIR PROJECT SANCTIONED FROM THE LOCAL AUTHORITIES AS HOUSING PROJECT, EVEN WITH COMMERCIAL USER, THOUGH LIMITED TO THE EXTENT PERMITTED UNDER THE RULES, WOULD GET BENEFIT OF 100% OF DEDUCTION OF THEIR INCOME FOR SUCH PROJECTS U/S 80I B OF THE ACT. IN RELIANCE JUTE & INDUSTRIES LTD. VS. CIT, T HE HONBLE COURT POINTED OUT THE CARDINAL PRINCIPLE OF TAX LAW THAT THE LAW TO BE APPLIED HAS TO BE THE LAW IN FORCE IN THE REL EVANT ASSESSMENT YEAR. HOWEVER, THIS IS QUALIFIED BY THE EXCEPTION WHEN IT IS PROVIDED EXPRESSLY OR BY NECESSARY IMPLI CATION. IT IS REQUIRED TO BE NOTED THAT W.E.F. 01/04/2001, SECTIO N 80IB(10) STIPULATES THAT ANY HOUSING PROJECT APPROVED BY THE LOCAL AUTHORITY BEFORE 31/03/2001 WAS ENTITLED TO DEDUCTI ON OF 100% OF THE PROFIT DERIVED IN ANY PREVIOUS YEAR REL EVANT TO ANY ASSESSMENT YEAR FROM SUCH HOUSING PROJECT PROVIDED (A) THE CONSTRUCTION/ DEVELOPMENT OF THE SAID HOUSING PROJE CT COMMENCED ON OR AFTER 01/10/1998 AND WAS COMPLETED BEFORE 31/03/2003, (B) THE HOUSING PROJECT WAS ON A SIZE O F PLOT OF LAND WHICH HAD A MINIMUM AREA OF ONE ACRE AND (C) E ACH INDIVIDUAL RESIDENTIAL UNIT HAD A MAXIMUM BUILT UP AREA OF 1,000 SQ. FT., WHERE SUCH HOUSING PROJECT WAS SITUA TED WITHIN THE CITY OF DELHI OR MUMBAI OR WITHIN 25 KMS. FROM THE MUNICIPAL LIMIT OF THESE CITIES AND A MAXIMUM ARE O F 1500 SQ. FT AT ANY OTHER PLACE. THEREFORE, FOR THE FIRST T IME, A STIPULATION WAS ADDED WITH REFERENCE TO THE DATE OF APPROVAL, I.E., THAT APPROVAL HAD TO BE ACCORDED TO THE HOUSI NG PROJECT BY ITA NO.3379 & 3685/MUM/2012 , M/S BHUMIRAJ CONSTRUCTIONS 13 THE LOCAL AUTHORITY BEFORE 31/03/2001. BEFORE THIS AMENDMENT NO DATE WAS PRESCRIBED FOR APPROVAL BEING GRANTED B Y THE LOCAL AUTHORITY TO THE HOUSING PROJECT. PRIOR TO THIS AM ENDMENT, AS LONG AS THE DEVELOPMENT/CONSTRUCTION COMMENCED ON O R AFTER 01/10/1998 AND WAS COMPLETED BEFORE 31/03/2001, THE ASSESSEE WAS ENTITLED TO DEDUCTION. ALSO BY THIS AM ENDMENT, THE DATE OF COMPLETION WAS CHANGED FROM 31/03/2001 TO 31/03/2003. EVERYTHING REMAINED UNTOUCHED. THEREAFT ER, THE FINANCE ACT, 2003, FURTHER AMENDMENTS WERE MADE TO SECTION 80IB(10) OF THE ACT. THE LEGISLATURE IN ITS WISDOM MADE SUBSTANTIAL CHANGES IN SUB-SECTION (10) BY THE FINA NCE (NO. 2) ACT, 2004, W.E.F. 01/04/2005, INCORPORATING CERTAIN CONDITIONS FOR THE FIRST TIME INCLUDING THE CONDITIONS MENTION ED IN CLAUSE (D). THIS CONDITION/RESTRICTION WAS NOT ON THE STA TUTE BOOK EARLIER WHEN ALL THE PROJECTS WERE SANCTIONED. SUB- SECTION 14 TO SECTION 80IB WAS ALSO INCORPORATED WITH RESPECT TO DEFINITION OF BUILT UP AREA CLARIFYING BUILT UP AREA MEANS INN ER MEASUREMENTS OF THE RESIDENTIAL UNITS AT THE FLOOR LEVEL INCLUDING THE PROJECTIONS AND BALCONIES BUT BY EXCL UDING THE COMMON AREA SHARED WITH OTHER RESIDENTIAL UNITS. 2.8. IN THE CASE OF CIT VS. TARNETAR CORPORATION ( TAX APPEAL NO. 1241 OF 2011), THE HON BLE GUJARAT HIGH COURT VIDE JUDGMENT DATED 12-9-2012, OBSERVED THAT THE CONFIRM ATION ISSUED BY MUNICIPAL AUTHORITIES WAS FILED ON 15-2-2 006 AND WAS REJECTED ON 1-7-2006. THE ASSESSEE ALSO PAID PE NALTY FOR REGULARIZATION OF THE UNITS. SINCE THE CONSTRUCTION WAS COMPLETED WELL BEFORE 31 MARCH 2008, THE OUTER LIMI T FOR SUCH ITA NO.3379 & 3685/MUM/2012 , M/S BHUMIRAJ CONSTRUCTIONS 14 CONSTRUCTION AND THE PERMISSION WAS NOT GRANTED BY THE MUNICIPAL AUTHORITY, IT WAS HELD THAT FULFILLING OF EVERY CONDITION IS NOT MANDATORY AND IF THERE IS A SUBSTA NTIAL COMPLIANCE, THE MINOR DEVIATION THEREOF WOULD NOT V ITIATE THE VERY PURPOSE OF DEDUCTION. 2.9. BROADLY, WE NOTE THAT THE BASIC OBJECTIVE OF THE LEGISLATURE BEHIND SECTION 80IB(10) IS TO ENCOURAGE DEVELOPERS TO UNDERTAKE HOUSING PROJECTS FOR VARIOUS SECTIONS OF THE SOCIETY INCLUDING WEAKER SECTION. IT IS CARDINAL PR INCIPLE OF INTERPRETATION THAT CONSTRUCTION RESULTING IN UNREA SONABLY HARSH AND ABSURD RESULTS MUST BE AVOIDED. IN THE Y EAR, 2010, THE LEGISLATURE FURTHER AMENDED THE PROVISION BY PR OVIDING THAT THE COMMERCIAL AREA SHOULD NOT EXCEED 3% OF TH E AGGREGATE BUILT UP AREA OF THE HOUSING PROJECT OR 5 ,000 SQ. FT. WHICHEVER IS HIGHER. THIS SIGNIFICANT MODIFICATION WAS MADE WHICH IS COMPLETE DEPARTURE FROM THE EARLIER YARDST ICK. IN VIEW OF THIS DISCUSSION, ON THE ISSUE IN HAND, WE A FFIRM THE STAND OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL S). 3. THE NEXT GROUND PERTAINS TO DIRECTING TO DELETE THE ADDITION MADE TOWARDS SUPPRESSION OF SALE PRICE AND INFLATION OF COST OF PURCHASE AMOUNTING TO RS.14,15,08,355/- AND CONSEQUENT G.P. ADDITION OF 14%. THE CRUX OF ARGUM ENTS ADVANCED BY LD. DR IS THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) GRANTED RELIEF TO THE ASSESSEE WITHOU T APPRECIATING THAT SUPPRESSION OF SALE AND INFLATION OF COST OF CONSTRUCTION WAS AFFIRMED BY HIM. ON THE OTHER HAND , THE LD. COUNSEL FOR THE ASSESSEE, DEFENDED THE CONCLUSION A RRIVED AT IN THE IMPUGNED ORDER. ITA NO.3379 & 3685/MUM/2012 , M/S BHUMIRAJ CONSTRUCTIONS 15 3.1. WE NOTE THAT WHILE FRAMING THE ASSESSMENT, TH E LD. ASSESSING OFFICER REJECTED THE BOOKS OF ACCOUNT AND MADE TWO ADDITIONS. FIRST ADDITION WAS MADE OF RS.9,95,08,3 55/- ON ACCOUNT OF INFLATION OF COST OF CONSTRUCTION IN HER MITAGE PROJECT, WHERE THE ASSESSEE CLAIMED RS.39,85,65,115 /- AS TOTAL COST AND RS.4,20,00,000/- WITH RESPECT TO SUPPRESSI ON OF SALES. THE ASSESSING OFFICER DISALLOWED THE CLAIMED EXPENDITURE ON THE PLEA THAT IT WAS HIGHLY INFLATED AS COMPARE TO OTHER CASES AND FOR DISALLOWANCE OF RS.25 LAKH E ACH, IT WAS ON AD-HOC BASIS, BY CONTENDING THAT SUCH EXPENDITUR E IS EXCESSIVE. ON APPEAL, BEFORE THE LD .CIT(A), THERE IS A FACTUAL FINDING, RECORDED IN THE ORDER, THAT THE ASSESSEE, DURING ASSESSMENT PROCEEDINGS, FURNISHED THE DETAILS OF BI FURCATION OF COST OF CONSTRUCTION VIDE LETTER DATED 16/12/2009 F OR REACHING TO THE TOTAL COST OF CONSTRUCTION AND ALSO CONSTRUC TION PER SQ. FT. WHICH WAS RS.1578.14 FOR HERMITAGE AND RS.697.8 1 FOR MEADOWS AND RS.697.38 FOR WOODS. THE ASSESSEE ALSO EXPLAINED WITH RESPECT TO PURCHASES AND CONSUMPTION OF MATERIAL. IN THE REMAND REPORT, DATED 15/03/2011, WHICH WAS BASED UPON ENQUIRIES, THE ASSESSING OFFICER HAS OBSERVED THAT IN MAJORITY OF CASES, THE SALE PRICE DISCLOSED BY THE ASSESSEE IS HIGHER THAN THE PREVALENT MARKET RATE/S TAMP AUTHORITY VALUATION. WE ARE IN AGREEMENT WITH THE OBSERVATION CONTAINED IN THE IMPUGNED ORDER THAT IN ANY BUSINES S, THERE MAY BE SEVERAL CONSIDERATION LIKE BULK SALE, BARGAI NING, LOCATION OF THE PROPERTY, LIKE ROADFACE, SEAFACE AN D BLINDFACE, ETC. NO CONCRETE EVIDENCE HAS BROUGHT ON RECORD BY THE ASSESSING OFFICER THAT THERE WAS EXTRA CONSIDERATIO N OVER AND ITA NO.3379 & 3685/MUM/2012 , M/S BHUMIRAJ CONSTRUCTIONS 16 ABOVE THE AGREED SALE PRICE. LIKEWISE, THERE WAS N O PROOF OF SUPPRESSED SALES. UNDER THE FACTS, AVAILABLE ON RE CORD, WE ARE IN AGREEMENT WITH THE FINDING OF THE LD. COMMISSION ER OF INCOME TAX (APPEALS) THAT THE ONLY ALTERNATIVE WAS TO ESTIMATE THE PROFIT MORE SPECIFICALLY WHEN THE ASSESSING OFF ICER HAS NOT MENTIONED COMPARABLE CASES. IN VIEW OF THIS FACT, T HE ASSESSING OFFICER WAS JUSTIFIABLY DIRECTED TO ENHAN CE THE GROSS PROFIT BY 14% AND GRANTING PART RELIEF TO THE ASSES SEE, WHILE COMING TO THIS CONCLUSION, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS CONSIDERED THE PROFIT RATE OF HERMITA GE PROJECT IN WOODS AND MIDDOS AT 47 & 49 % RESPECTIVELY AS AGAIN ST THE 34% DISCLOSED BY THE ASSESSEE, SO ON THIS GROUND AL SO, WE FIND NO INFIRMITY IN THE CONCLUSION DRAWN BY THE LD. COM MISSIONER OF INCOME TAX (APPEALS). RESULTANTLY, THE APPEAL O F THE REVENUE IS HAVING NO MERIT, THEREFORE, DISMISSED. 4. NOW, WE SHALL TAKE UP APPEAL OF THE ASSESSEE (I TA NO.3379/MUM/2012), WHEREIN, THE ONLY GROUND RAISED BY THE ASSESSEE PERTAINS TO UPHOLDING THE REJECTION OF BOO KS OF ACCOUNTS OF THE ASSESSEE ON THE GROUND THAT THE GRO SS PROFIT OF 34% FOR THE PROJECT HERMITAGE WAS CONSIDERABLY LO WER THAN THAT OF OTHER PROJECTS AND FURTHER DIRECTING THE AS SESSING OFFICER TO COMPUTE THE GROSS PROFIT AT 48% AND CONS EQUENT ENHANCING THE INCOME WITHOUT FOLLOWING THE DUE PROC ESS OF LAW. THE CRUX OF ARGUMENT ADVANCED ON BEHALF OF THE ASSESSEE IS IDENTICAL TO THE GROUND RAISED. ON THE OTHER HA ND, THE LD. DR DEFENDED THE CONCLUSION ARRIVED AT IN THE IMPUGN ED ORDER, BY SUPPORTING THE ASSESSMENT ORDER. ITA NO.3379 & 3685/MUM/2012 , M/S BHUMIRAJ CONSTRUCTIONS 17 4.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. BROADLY, WE HAVE DELIBERATED UPON THE ISSUE, WHILE DELIBERATING UPON THE APPEAL OF THE REVENUE. THE GROUND OF THE ASSESSEE IS OOZIN G OUT FROM THE SAME FACTS, THEREFORE, WITHOUT GOING INTO MUCH DELIBERATION, SINCE WE HAVE UPHELD THE STAND OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS), THEREFORE, TH IS GROUND OF THE ASSESSEE HAS REMAINED FOR ACADEMIC INTEREST ONLY. AT THE SAME TIME, THE ASSESSEE HAS NOT EXPLAINED WITH COGENT MATERIAL AS TO HOW THE CONCLUSION DRAWN BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS PERVERSE. A T THE SAME TIME, WHILE ARGUING THE APPEAL OF THE REVENUE, THE ASSESSEE HAS DEFENDED THE CONCLUSION DRAWN IN THE I MPUGNED ORDER ON THE SAME FACTS. THUS, WE FIND NO MERIT IN THE ARGUMENT OF THE ASSESSEE, THEREFORE, THE APPEAL OF THE ASSESSEE IS DISMISSED. FINALLY, THE APPEAL OF THE REVENUE AS WELL AS OF TH E ASSESSEE ARE DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT I N THE PRESENCE OF LD. REPRESENTATIVE OF BOTH SIDES, AT TH E CONCLUSION OF HEARING ON 29/07/2015 . SD/- SD/- ( SANJAY ARORA ) (JOGINDER SINGH) ' # / ACCOUNTANT MEMBER $ # / JUDICIAL MEMBER MUMBAI; ) DATED : 23/09/2015 F{X~{T? P.S/. .. !%$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. +,- / THE APPELLANT ITA NO.3379 & 3685/MUM/2012 , M/S BHUMIRAJ CONSTRUCTIONS 18 2. ./,- / THE RESPONDENT. 3. 0 0 1# ( + ) / THE CIT, MUMBAI. 4. 0 0 1# / CIT(A)- , MUMBAI 5. 3$4.# , 0 +( 5 , / DR, ITAT, MUMBAI 6. 6!7 / GUARD FILE. ! / BY ORDER, /3+#.# //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI