SHRIPAL BUILDERS, MUMBAI V. PR CIT 17, MUMBAI

ITA 3732/MUM/2017

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5304 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2007-2008
• Appeal Filed On: 22-05-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MANJUNATHA SWAMY
• Assessee Lawyers: SUBODH RATNAPARKHI
• Keywords: Opportunity of being heard; Set aside
• Section: 143(3); 80IB; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI SANDEEP GOSAIN , JM ITA NO. 3732/ MUM/20 17 ( ASSESSMENT YEAR : 2007 - 08 ) M/S. SHRIPAL BUILDERS 18, SAHEB BUILDING, 195, D.N.ROAD FORT, MUMBAI 400001 VS. PR. CO MMISSIONER OF INCOME TAX - 17 ROOM NO.121, AAYAKAR BHAVAN, M.K.ROAD MUMBAI 400 020 PAN/GIR NO. AATFS9508E APPELLANT ) .. RESPONDENT ) ASSESSEE BY SHRI SUBODH RATNAPARKHI REVENUE BY SHRI MANJU N ATHA SWAMY DATE OF HEARING 26 / 07 /201 8 DATE OF PRONOUNCEMENT 18 / 10 /201 8 / O R D E R PER R.C.SHARMA (A.M) : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF PR. CIT - 17, MUMBAI DATED 24/03/2017 FOR A.Y.2007 - 08. 2. FOLLOWING GROUNDS HAVE BEEN TAKEN BY THE ASSESSEE: - 1. THE LEARNED PR. CIT ERRED IN HOLDING THE ORDER FRAMED BY THE ASSESSING OFFICER U/S 143(3) OF THE I.T ACT 1961 ON 17.11.2009 TO BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE AND ACCORDINGLY THE ASSUMPTION OF JURISDICTION BY THE P R. CIT U/S 263 OF THE I.T ACT 1961 WAS NOT VALID AND JUSTIFIED. 2. THE LEARNED PR. CIT ERRED IN SETTING ASIDE U/S 263 OF THE I.T ACT 1961, THE ASSESSMENT FRAMED U/S 143(3) ON 17.11.2009, ON GROUNDS WHICH WERE TOTALLY DIFFERENT FROM THOSE RAISED IN THE SHOW CAUSE NOTICE DT. 31.01.2012, THEREBY DENYING THE APPELLANT OPPORTUNITY OF BEING HEARD, RESULTING IN THE ORDER PASSED U/S 263 BEING NOT SUSTAINABLE BY LAW. ITA NO. 3732/MUM/2017 M/S. SHRIPAL BUILDERS 2 3. THE LEARNED PR. CIT ERRED IN HOLDING THAT APPELLANT WAS NOT ENTITLED FOR DEDUCTION U/S 80IB(10) OF RS.1,28,65,649/ - , IN RESPECT OF THE PROFITS ARISING FROM THE HOUSING PROJECT DEVELOPED AT VILLAGE BOLINJ, TALUKA VASAI, DIST. THANE FOR THE REASONS THAT (I) THE APPELLANT HAD ACQUIRED ONLY DEVELOPMENT RIGHTS IN RESPECT OF THE HOUSING PROJECT AND N OT OWNERSHIP RIGHTS (II) THE APPELLANT HAD NOT PAID ANY SERVICE TAX AND (III) THE APPELLANT HAD NOT OBTAINED COMPLETION CERTIFICATE FROM THE LOCAL AUTHORITY ALL OF WHICH BEING NOT APPROPRIATE FOR DENYING THE CLAIM U/S 80IB(10), THE ORDER PASSED U /S 263 BE QUASHED. 4. THE ID. PR. CIT WAS NOT JUSTIFIED IN HOLDING THAT APPELLANT WAS NOT ENTITLED FOR DEDUCTION U/S 80IB(10) AND SETTING ASIDE THE COMPLETED ASSESSMENT TO THE FILE OF THE ID. AO FOR PASSING DENOVO ASSESSMENT AND THEREFORE THE ORDER U/S 26 3 BE QUASHED. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND AND/OR VARY ANY OF THE GROUNDS AT ANY TIME BEFORE THE DECISION OF THE APPEAL. 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. 4. IN THE ORDER PASSED U/S.263, CIT OBSERVED THAT ASSESS EE WAS NOT ENTITLED FOR DEDUCTION U/S.80IB OF THE IT ACT. THE ASSESSEE FAILED TO FULFILL T HE CONDITIONS LAID DOWN AS PER T HE PROVISIONS OF THE ACT IN RESPECT OF ITS CLAIM OF DEDUCTION U/S. 80IB OF THE ACT , THE ASSESSMENT ORDER WAS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVENUE. THE ASSESSMENT ORDER WAS ACCORDINGLY, SET ASIDE WITH DIRECTIONS TO THE AO TO REFRAM E THE ASSESSMENT ORDER AF T ER EXAMINING THE ASSESSEE'S CLAIM OF DEDUC TI ON IN LIGHT OF THE FINDINGS GIVEN IN THE ORDER. IN ITS ORDER U/S.263 THE CIT OBSERVED THAT THE ASSESSEE IN THIS CASE HAD ENTERED INTO A DEVELOPMENT AGREEMENT DATED 04.06.2003 WITH M /S. UNITE CH LIMITED, WHEREBY IT HAD ACQUIRED DEVELOPMENT RIGHTS FOR A HOUSING SCHEME AT PHASE IV OF LAND BEARING S.NO. 316B. BOLINJ, THANE DISTRICT . THE APPROVAL FOR THE HOUSING ITA NO. 3732/MUM/2017 M/S. SHRIPAL BUILDERS 3 SCHEME ADMEASURING 78.228 SQ. MTRS. WAS SANCTIONED IN FAVOUR OF M/S. UNITECH LIMITED FOR THE ENTIRE LAND BY CIDCO, THE PLANNING AUTHORITY ON 19.09.1990. THE OWNER OF THE UNDERTAKING, I.E., M/S. UNITECH LIMITED HAD CO NSUMED APPROVED F.S.I, OF 33,440.65 SQ. MTRS. FOR ITS OWN CONSTRUCTION AND HAD ASSIGNED DEVELOPMENT RIGHTS IN RESPECT OF THE BALANCE AREA OF THE LAND TO VARIOUS DEVELOPERS/BUILDERS, THE ASSESSES BEING ONE OF THEM. THE SUBSEQUENT AMALGAM ATION AND AMENDED PLAN APPROVALS AND THE OCCUPANCY CERTIFICATE WERE ALSO GRANTED IN FAVOUR OF M/S. UNITECH LIMITED BY THE PLANNING AUTHORITY. THE CIT OBSERVED THAT ALL THE SANCTIONS/APPROVAL LETTERS BY CIDCO WERE IN FAVOUR OF M/S. UNITECH LIMITED, THE OWNE R OF THE UNDERTAKING AND NO SUCH LETTERS WERE GRANTED IN FAVOUR OF THE ASSESSEE, MAKING IT ABUNDANTLY CLEAR THAT M/S. UNITECH LIMITED IS THE SOLE DRAMATIS PE RSONAE IN THE ENTIRE EPISODE, AND THE ASSESSEE HAD NO ROLE OR OPPORTUNITY OF EVER INTERACTING WIT H THE PLANNING AUTHORITY. SINCE THE ASSESSES WAS NOT THE OWNER OF THE UNDERTAKING, IT WAS NOT ENTITLED FOR THE DEDUCTION U/ S. 80 IB OF THE ACT AND THEREFORE, T HE ASSESSMENT ORDER U/S.80IB OF THE ACT DATED 17.11.2009 GRANTING DEDUCTION OF RS.1,28,65,649/ - U /S. 80IB OF THE ACT WAS ERRONEOUS AND PREJUDICIAL - TO INTERESTS OF REVENUE TO THAT EXTERN, LEADING TO THE INVOCATION OF REVISIONARY PROCEEDINGS. THE ASSESSEE ACCORDINGLY, WAS AFFORDED AN OPPORTUNITY OF HEARING TO SUBSTANTIATE ITS CLAIM IN THIS REGARD. T HE ASSESSEE HAS SUBMITTED THAT IT HAS COMPLIED WITH ALL THE PROVISIONS OF SECTION 801B OF THE ACT AND INTER ALIA, HAS RELIED UPON THE DECISIONS OF THE ITA NO. 3732/MUM/2017 M/S. SHRIPAL BUILDERS 4 HON'BLE BOMBAY HIGH COURT IN THE CASE OF CLT VS. ASHRAY PREMISES, 34 TAXXMANN.COM 165 AND THE PUNE ITAT I N THE CASE OF ITO VS. A.V. BHAT DEVELOPERS, 145 ITD 305, IN SUPPORT OF DEDUCTION U/S.80IB OF THE ACT. HOWEVER, THE CIT DID NOT AGREE WITH THE ASSESSEES CONTENTION AND HELD THAT IN THE INSTANT CASE, THE ASSESSEE HAS NEVER ACQUIRED THE OWNERSHIP RIGHTS IN T HE PROPERTY, BUT BY VIRTUE OF TH E DEVELOPMENT AGREEMENT DATED (14 .06.2003, ONLY DEVELOPMENT RIGHTS CAME TO BE ASSIGNED TO THE ASSESSEE BY THE OWNER OF TH E UNDERTAKING M/S. UNITECH LIMITED. THE ENTIRE CORRESPONDENCE WITH THE PLANNING AUTHORIT Y IS WITH M/S. UNITECH LIMITED, ESTABLISHING BEYOND ANY SHRED OF DOUBT THAT THE OWNER OF THE UNDERTAKING IS M/S . UNITECH LIMITED, AND BY VIRTUE OF SUCH FACT IS SOLELY ENTITLED FOR THE DEDUCTION U/S. 80IB OF THE ACT. IT IS ALSO SEEN FROM THE AUDIT REPORT IN FORM NO.10CCB THAT AGAINST COLUMN NO.4(A) SEEKING DETAILS OF OWNERSHIP OF THE PROJECT UNDERTAKING, THE ASSESSEE HAS CLAIMED THE PROJECT TO BE FULLY OWNED BY IT, WHEREAS THE ACTUAL FACT IS THAT IT HAS NO OWNERSHIP RIGHTS IN THE PROJECT. 5. IT WAS ARGUED BY LEARNED AR TH AT ORDER U/S.263 CANNOT BE BASED ON THE GROUNDS WHICH ARE TOTALLY DIFFERENT FROM GROUNDS RAISED IN THE SHOW - CAUSE NOTICE. FOR THIS PURPOSE RELIANCE WAS PLACED ON THE JUDICIAL PRONOUNCEMENTS PLACED ON RECORD. IT WAS FURTHER ARGUED IN SUPPORT OF THE PROPOSIT ION THAT FOR DEDUCTION U/S.80IB DEVELOPER NEED NOT TO BE THE OWNER OF THE LAND AND RELIANCE WAS PLACED ON THE VARIOUS JUDICIAL PRONOUNCEMENTS PLACED ON RECORD. AS PER LEARNED AR , HOUSING PROJECT ITA NO. 3732/MUM/2017 M/S. SHRIPAL BUILDERS 5 DEVELOPED BY THE A SSESSEE HAS BEEN APPROVED ON 25.05.2004 I. E. BEFORE 01.04.2005. ACCORDINGLY, THE CONDITIONS OF SECTION 80IB(10) AS THEY STOOD BEFORE AMENDMENT BY FINANCE (NO. 2) ACT, 2004, APPLICABLE W.E.F. 01.04.2005. WOULD APPLY TO THE HOUSING PROJECT. ACCORDINGLY, IT WAS SUBMITTED THAT THE ASSESSEE COMPLIES W ITH ALL THE CONDITIONS OF SECTION 80IB(10) AS THEY STOOD PRIOR LO AMENDMENT BY FINANCE (NO. 2) ACT, 2004. THE HON. SUPREME COURT IN THE CASE OF CIT - VS - SARKAR BUILDERS, 57 TAXMANN.COM 313 (SC) (COPY SUBMITTED ON RECORD ON 26.07.2018) HAS HELD THAT AMENDMENT S INTRODUCED BY FINANCE (NO. 2) ACT, 2004, WOULD BE APPLICABLE TO PROJECTS APPROVED AFTER 01.04.2005. AS PER LEARNED AR, EVEN OTHERWISE, THE ASSESSEE ALSO COMPLIED WITH ALL THE CONDITIONS OF SECTION 80IB(10) AS STAND AMENDED BY FINANCE (NO.2) ACT, 2004 AND PRIOR TO INTRODUCTION OF SUB - CLAUSE (E) & (F) BY FINANCE (NO.2) ACT, 2009. IT WAS FURTHER CONTENDED BY LEARNED AR THAT SUB - SECTION (E) & (F) TO SECTION 80IB (10) WERE INTRODUCED BY FINANCE (NO.2) ACT, 2009 W.E.F. 01.04.2010 AND THEREFORE ARE NOT APPLICABL E IN THE PRESENT CASE, AS THE RELEVANT ASSESSMENT YEAR IN THE CASE OF THE ASSESSEE IS A.Y.2007 - 08. 6. ON THE OTHER HAND, CIT DR CONTENDED THAT NO ENQUIRY HAS BEEN MADE BY THE AO WITH REGARD TO ASSESSEES ELIGIBILITY FOR DEDUCTION U/S.80IB, THEREFORE, CIT H AS CORRECTLY INVOKED HIS POWER U/S.263 SETTING ASIDE THE MATTER TO FILE OF THE AO FOR DECIDING AFRESH BY MAKING DETAILED ENQUIRY. ITA NO. 3732/MUM/2017 M/S. SHRIPAL BUILDERS 6 7. WE HAVE CONSIDERED RIVAL CONTENTIONS AND CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE HAD ALSO DELIBERATE D ON THE JUDICIAL PRONOUNCEMENTS REFERRED BY LOWER AUTHORITIES IN THEIR RESPECTIVE ORDERS AS WELL AS CITED BY LEARNED AR AND DR DURING THE COURSE OF HEARING BEFORE US IN THE CONTEXT OF FACTUAL MATRIX OF THE CASE. FROM THE RECORD, WE FOUND THAT DURING THE Y EAR UNDER CONSIDERATION, ASSESSEE HAS CLAIMED DEDUCTION U/S.80IB. THE AO FOUND THAT GROSS TOTAL INCOME FROM THE PROJECT WAS 1,46,14,869/ - ,OUT OF THIS PROFIT PERTAINING TO A.Y.2005 - 06 WAS RS.8,25,160/ - AND FOR A.Y. 2006 - 07 RS.9,24,606/ - . ACCORDINGLY, AFTER REDUCING THESE TWO AMOUNTS WHICH PERTAINS TO EARLIER YEAR, AO ALLOWED ASSESSEES CLAIM OF 80IB AMOUNTING TO RS.1,28 ,65,649/ - . WHILE ALLOWING ASSESSEES CLAIM, AO HAS NOWHERE MENTIONED AS TO THE FULFILLMENT OF ELIGIBILITY CONDITION FOR GRANT OF DEDUCTION U/ S.80IB. NOWHERE AO HAS MENTIONED AS TO WHEN THE PROJECT WAS APPROVED AND WHEN THE PROJECT WAS COMPLETED. THE CIT ORIGINALLY PASSED THE ORDER U/S.263 INVOKING SECTION 263 DATED 01/03/2012. IN THIS ORDER CIT HAS MENTIONED VARIOUS DATES WHEN THE OPPORTUNITY W AS GIVEN TO ASSESSEE TO PRESENT HIS CASE WITH REGARD TO ELIGIBILITY U/S.80IB, HOWEVER, NO ONE APPEARED ON BEHALF OF THE ASSESSEE, ACCORDINGLY, CIT PASSED THE ORDER WHEREIN HE OBSERVED THAT THE HOUSING PROJECT HAD BEEN FIRST APPROVED BY THE LOCAL AUTHORITY IN THE YEAR 1990 IN THE NAME OF M/S UNITECH LIMITED. FURTHER, FROM THE CERTIFICATE ISSUED BY THE LOCAL AUTHORITY, WHICH IS ON THE SUBJECT OF AMALGAMATION AND AMENDED APPROVED PLAN OF THE HOUSING PROJECT,. ITA NO. 3732/MUM/2017 M/S. SHRIPAL BUILDERS 7 REFERRING TO VARIOUS COMMENCEMENT CERTIFICATES AND AMENDED PLAN WITH THE EARLIEST DATE BACK TO 19.11.1998. IF THE PROJECT WAS APPROVED IN THE YEAR 1990, HERE IS NO QUESTION OF DEDUCTION 80 IB(10 ) AND IF THE PROJECT WAS UNDER TAKEN IN THE YEAR 199 8 WHETHER THE SAID PROJECT HAD B EEN COMPLETED WITHIN THE STI PULATED FOUR YEARS PERIOD. FROM THE FACTS GATHERED IT WA S OBSERVED THAT THE CONSTRUCTION OF THE PROJECT WAS NOT COMPLETED WITHIN FOUR YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE HOUSING PROJECT WAS FIRST APPROVED. IN VIEW OF THE SAID FACTS, IT WA S OBSERVED THAT THE ASSESSEE WAS NOT ELIGIBLE TO CLAIM DEDUCTOR U/S 80IB(10). THE DEDUCTION U/S 80IB(10) IS TO BE ALLOWED IF THE ASSESSEE FULFILLS AT THE CONDITIONS AS LAID DOWN IN THE PROVISIONS OF THE INCOME TAX ACT. IN THE SAID CASE THE ASSESSEE HAD FAILED TO FULFILL THE CONDITIONS REQUIRED TO CLAIM DEDUCTION U/S 80IB{10). HOWEVER, THE ASSESSING OFFICER HAD NOT EXAMINED THE SAID ISSUE AND ALLOWED THE CLAIM OF THE SAID DEDUCTION THEREBY RENDERING THE ASSESSMENT ORDER TO BE ERRONEOUS & PREJUDICIAL TO TH E INTEREST OF REVENUE. 8. ASSESSEE APPROACHED TO THE TRIBUNAL, AGAINST ABOVE ORDER OF CIT , AFTER OBSERVING THAT ASSESSEE HAS NOT BEEN GIVEN OPPORTUNITY, THE MATTER WAS SET ASIDE BY TRIBUNAL TO THE CIT. THE CIT IN HIS ORDER DATED 24/03/2017, ALSO OBSERVED THAT ASSESSEE FAILED TO FULFILL THE CONDITIONS LAID DOWN AS PER PROVISIONS OF THE ACT IN RESPECT OF ITS CLAIM OF DEDUCTION U/S.80IB. IT WAS ALSO OBSERVED THAT PROJECT WAS APPROVED IN THE NAME OF M/S. UNITECH LIMITED, HOWEVER M/S. UNITECH LTD., GIVEN DEVEL OPMENTAL ITA NO. 3732/MUM/2017 M/S. SHRIPAL BUILDERS 8 RIGHTS AT PHASE IV OF LAND BEARING S. NO. 316B, BOLINJ, THANE DISTRICT. THE APPROVAL, FOR THE HOUSING SCHEME ADMEASURING 78.228 SQ. MTRS. WAS SANCTIONED IN FAVOUR OF M/S. UNITECH L IMITED FOR ENTIRE LAND BY CIDCO, THE PLANNING AUTHORITY ON 19.09.19 90. THE OWNER O F THE UNDERTAKING, I.E., 'M/S. UNITECH LIMITED HAD CONSUMED APPROVED F.S.I. OF 33,440.65 SQ. MFRS. FOR ITS OWN CONSTRUCTION AND HAD ASSIGNED DEVELOPMENT RIGHTS IN RESPECT OF THE BALANCE AREA OF THE LAND TO VARIOUS DEVELOPERS / BUILDERS, THE ASSESSEE BEING ONE OF THEM. THE SUBSEQUENT AMALGAMATION AND A M ENDED PLAN APPROVALS AND THE OCCUPANCY CERTIFICATE WERE ALSO GRANTED IN FAVOUR OF M/S. UNITECH LIMITED BY THE PLANNING AUTHORITY. IT IS VERY PERTINENT TO MENTION THAT ALL THE SANCTIONS/APPROVAL LETTERS BY CIDCO WERE IN FAVOUR OF M/S. UNITECH LIMITED, THE OWNER OF THE UNDERTAKING AND NO SUCH LETTERS WERE GRANTED IN FAVOUR OF THE ASSESSEE, MAKING IT ABUNDANTLY CLEAR THA T M/S. UNITECH LIMITED IS THE SOLE DRAMATIS PERSONAE IN THE ENTIRE EPISODE, AND THE ASSESSEE HAD NO ROLE OR OPPORTUNITY OF EVER, INTERACTING WITH THE PLANNING AUTHORITY . 9. SO FAR AS ASSESSEES CONTENTION WITH REGARD TO ELIGIBILITY U/S.80IB(10) TO DEVELOPER WITHOUT OWNING THE LAND IS CONCERNED, WE ARE IN AGREEMENT TO THE LD. AR TO THE EFFECT THAT EVEN IF ASSESSEE IS NOT A OWNER OF THE LAND BUT HAS GOT THE PROJECT APPROVED AND HAD UNDERTAKEN ALL THE ACTIVITIES IN TERMS OF SECTION 80IB (10), THEN IT WILL BE ELIGIBLE FOR DEDUCTION NOT WITHSTANDING THE FACT THAT THE PLOT HAS NOT OWNED BY HIM. HOWEVER, IN THE INSTANT CASE, NEITHER THE PROJECT WAS APPROVED BY THE ITA NO. 3732/MUM/2017 M/S. SHRIPAL BUILDERS 9 ASSESSEE NOR ANY ENQUIRY HAS BEEN MADE BY THE AO AS TO HOW THE ELIGIBILITY CONDITION U/S.80IB(10) HAS BEEN COMPLIED WITH BY THE ASSESSEE WHO HAS BEEN GIVEN DEVELOPMENT RIGHTS IN RESPECT OF CERTAIN PORTION OF THE PROJECT APPROVED IN THE NAME OF M/S. UNITECH LIMITED. WE FOUND THAT OUT OF THE DEDUCTION CLAIMED, THE AO HAS REDUCED THE AMOUNT PERTAINING TO THE PROFIT EARNED ON THIS PROJECT IN THE EARLIER TWO YEARS, BUT NO ENQUIRY HAS B EEN MADE BY THE AO AS TO WHY IN RESPECT OF THE VERY SAME PROJECT , PROFIT OF EARLIER YEARS WAS TO BE REDUCED FROM THE PROFIT OF ELIGIBLE PROJECT. WE ALSO OBSERVE THAT AUDIT REPORT IN FORM NO.10CCB FILED BY THE ASSESSEE AT COLUMN 4(A), THE ASSESSEE HAS CLAIM ED THE PROJECT TO BE FULLY OWNED BY IT, WHEREAS THE ACTUAL FACT IS THAT ASSESSEE HAS NO OWNERSHIP RIGHTS IN THE PROJECT. THUS, IT IS CLEAR THAT NO ENQUIRY HAS BEEN MA DE BY THE AO SO AS TO ASCERTAIN CORRECTNESS OF THE ASSESSEES CLAIM WHEN THE PROJECT ITSEL F WAS NOT APPROVED IN THE NAME OF ASSESSEE AND HE HAS ONLY GOT DEVELOPMENTAL RIGHT IN RESPECT OF PART OF THE PROJECT. IT IS ALSO NOT CLEAR AS TO WHAT IS THE SIZE OF THE PLOT OF LAND ON WHICH PROJECT HAS BEEN APPROVED. IT IS ALSO NOT CLEAR WHETHER APPROVAL WAS PRIOR TO 01/04/2004 OR SUBSEQUENT TO IT. ACCORDINGLY, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT FOR INVOKING PROVISIONS OF SECTION 263 HOLDING THE ORDER PASSED BY AO WAS ERRONEOUS IN SO FAR AS PREJUDICIAL TO THE INTEREST OF REVENUE, ON THE PLEA THAT NO ENQUIRY HAVING BEEN MADE BY THE AO REGARDING ASSESSEES ELIGIBILITY TO CLAIM DEDUCTION U/S.80IB(10) . WE ALSO OBSERVE THAT CIT HAS PASSED ORDER ALSO CONSIDERING THE ISSUE RAISED IN THE SHOW - ITA NO. 3732/MUM/2017 M/S. SHRIPAL BUILDERS 10 CAUSE NOTICE DATED 31/01/2012. ACCORDINGLY, WE UPHELD THE O RDER PASSED BY CIT PASSED U/S.263 AND MATTER IS RESTORED BACK TO THE FILE OF AO FOR MAKING ENQUIRY WITH REGARD TO FULFILLMENT CONDITION U/S.80IB. 11. IN THE RESULT, APPEAL FILED BY ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 18 / 10 /201 8 SD/ - ( SANDEEP GOSAIN ) SD/ - (R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 18 / 10 /201 8 KARUNA SR. PS COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPE LLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//