DCIT 15(2), MUMBAI V. DHARTI ENTERPRISES, MUMBAI

ITA 3687/MUM/2014

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7963 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-12-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 23-03-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 23-05-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PURUSHOTTAM KUMAR AGGARWAL LD
• Assessee Lawyers: SANJAY N KAPADIA LD
• Keywords: Additional evidence; Reassessment proceedings
• Section: 143(3); 147

Judgement Text

ITA NO.3687/MUM/2014 DHARTI ENTERPRISES ASSESSMENT YEAR 2007-08 IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI . , , BEFORE SHRI C.N. PRASAD, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO.3687/MUM/2014 ( / ASSESSMENT YEAR: 2007-08) DEPUTY COMMISSIONER O F INCOME TAX 15(2) MATRU MANDIR, ROOM NO.113 GRANT ROAD (WEST) MUMBAI-400 007 / VS. DHARTI ENTERPRISES 1/101, PRITHVI CLASSIC MODY PARK, IRANI WADI ROAD NO. 03, KANDIVALI (W) MUMBAI -400 067 !' ./ ./ PAN/GIR NO.AAEFD-2791-F ( '$ /APPELLANT ) : ( %'$ / RESPONDENT ) REVENUE BY : PURUSHOTTAM KUMAR AGGARWAL, LD. DR ASSESSEE BY : SANJAY N.KAPADIA, LD.AR / DATE OF HEARING : 21/11/2017 / DATE OF PRONOUNCEMENT : 08/12 /2017 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THE CAPTIONED APPEAL BY REVENUE FOR ASSESSMENT Y EAR [AY] 2007-08 ASSAILS THE ORDER OF THE LD. COMMISSIONER OF INCOME -TAX (APPEALS)-26 2 ITA NO.3687/MUM/2014 DHARTI ENTERPRISES ASSESSMENT YEAR 2007-08 CIT(A)], MUMBAI, APPEAL NO. CIT(A)-26/IT-67/ACIT.15(2)/12-13 DATED 21/03/2014. THE ASSESSMENT FOR IMPUGNED AY WAS FRAMED BY LD. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-15(2), MUMBAI [A O] U/S 143(3) READ WITH SECTION 147 OF THE INCOME TAX ACT 1961 ON 27/02/2013. THE SOLE SUBJECT MATTER OF THE APPEAL IS ASSESSEES CLAIM OF DEDUCTION U/S 80IB(10). 2. FACTS LEADING TO THE SAME ARE THAT THE ASSESSEE BEING RESIDENT FIRM ENGAGED AS BUILDERS & DEVELOPERS WAS GRANTED DEDUCTION U/S 80IB(10) BY THE FIRST APPELLATE AUTHORITY. SUBSEQUENTLY, THE CA SE OF THE ASSESSEE WAS SUBJECTED TO REASSESSMENT PROCEEDINGS SINCE IT WAS NOTED THAT THE ASSESSEE FAILED TO OBTAIN OCCUPATION CERTIFICATE [OC] BY STIPULATED DATE OF 31/03/2009 AND HENCE, THE ASSESSEE WAS NOT ELIGIBLE TO CLAIM THE SAME. THE ASSESSEE CONTENDED THAT THE PROJECT WAS COMPLET ED IN ALL RESPECT BY 15/03/2008 AND THE AUTHORITIES [BOMBAY MUNICIPAL CORPORATION] DELAYED THE ISSUE OF OCCUPATION CERTIFICATE. HOWEVER, NOT CONVINCED, LD. AO AFTER PERUSING THE STATUTORY PROVISIONS DENIED THE DEDUCT ION TO THE ASSESSEE. 3. AGGRIEVED THE ASSESSEE CONTESTED THE SAME WITH S UCCESS BEFORE LD. CIT(A) VIDE IMPUGNED ORDER DATED 21/03/2014 WHERE T HE LD. CIT(A) FOLLOWING THE ORDER OF ITS PREDECESSOR IN ASSESSEE S OWN CASE FOR 2006-07 DECIDED THE ISSUE IN ASSESSEES FAVOR. AGGRIEVED, T HE REVENUE IS IN FURTHER APPEAL BEFORE US. 4. THE LD. DEPARTMENTAL REPRESENTATIVE [DR], AT THE OUTSET, VIDE LETTER DATED 11/08/2016, PLEADED FOR SUBMISSIONS OF ADDITI ONAL EVIDENCES SUBSEQUENTLY RECEIVED BY THE REVENUE IN THE FORM OF LETTER DATED 15/12/2015 3 ITA NO.3687/MUM/2014 DHARTI ENTERPRISES ASSESSMENT YEAR 2007-08 FROM BOMBAY MUNICIPAL CORPORATION [BMC] . OUR ATTENTION IS DRAWN TO THE CONTENTS OF THE LETTER DATED 15/12/2015 RECEIVED FR OM BMC TO SUBMIT THAT DELAY IN GRANT OF OCCUPATION CERTIFICATE WAS ATTRIBUTABLE TO THE CONDUCT OF THE ASSESSEE. PER CONTRA, LD. COUNSEL FOR ASSESSEE [AR] CONTENDED THAT THE ISSUE STOOD COVERED IN ASSESSEES FAVOR FOR AY 2006 -07 BY THE ORDER OF THIS TRIBUNAL VIDE ITA NO. 6023/MUM/2012 DATED 18/05/201 5. HOWEVER, LD. AR FAIRLY SUBMITTED THAT ADDITIONAL EVIDENCES, IF ADMI TTED, REQUIRE RE- APPRECIATION BY LOWER AUTHORITIES. 5. AFTER HEARING RIVAL CONTENTIONS AND PERUSAL OF R ELEVANT MATERIAL, WE FIND THAT THE REVENUE IS IN RECEIPT OF ADDITIONAL E VIDENCE IN THE FORM OF LETTER FROM BMC , WHICH IS PLACED ON RECORD. THIS IS NEW MATERIAL W HICH HAS COME INTO REVENUES POSSESSION WAS NOT AVAILABLE BEFORE THE TRIBUNAL WHILE DECIDING THE APPEAL FOR AY 2006-07. HENCE, WITHOUT DELVING MUCH DEEPER INTO THE MATTER, WE REMIT THE MATTER BACK TO THE FI LE OF LD. CIT(A) FOR RE- APPRECIATION OF ADDITIONAL EVIDENCES BEING SUBMITTE D BY THE REVENUE AND DECIDE AS PER LAW. NEEDLESS TO SAY THAT ADEQUATE OP PORTUNITY OF BEING HEARD SHALL BE PROVIDED TO THE ASSESSEE. 6. RESULTANTLY, THE REVENUES APPEAL STANDS ALLOWED FOR STATISTICAL PURPOSES IN TERMS OF OUR ABOVE ORDER. ORDER PRONOUNCED IN THE OPEN COURT ON 08 TH DECEMBER, 2017. SD/- SD/- (C. N. PRASAD) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 08.12.2017 SR.PS:- THIRUMALESH 4 ITA NO.3687/MUM/2014 DHARTI ENTERPRISES ASSESSMENT YEAR 2007-08 / COPY OF THE ORDER FORWARDED TO : 1. '$ / THE APPELLANT 2. %'$ / THE RESPONDENT 3. , ( ) / THE CIT(A) 4. , / CIT CONCERNED 5. '. , . , / DR, ITAT, MUMBAI 6. / / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI