DCIT- CC -3(4) , CENTRAL RANGE-3, MUMBAI V. AHCL - PEL, MUMBAI

ITA 3763/MUM/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9428 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-07-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 29-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K CHATURVEDI
• Keywords: Search and seizure
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI G. MANJUNATHA , ACCOUNTANT MEMBER ITA NO. 3763 / MUM . /2018 ( ASSESSMENT YEAR : 20 13 14 ) DY . COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 3(4) , MUMBAI CENTRAL RANGE 3, MUMBAI . APPELLANT V/S AHCL PEL PATEL ESTATE, S.V. ROAD JOGESHWARI (W), MUMBAI 400 102 PAN AANFA5615N . RESPONDENT REVENUE BY : SHRI V.K. CHATURVEDI ASSESSEE BY : SHRI MAYUR KISNADWALA DATE OF HEARING 27.06.2019 DATE OF ORDER 05.07.2019 O R D E R PER SAKTIJIT DEY. J.M. A FORESAID APPEAL HAS BEEN FILED BY THE REVENUE CHALLENGING THE ORDER DATED 14 TH MARCH 2018, PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 51 , MUMBAI, PERTAINING TO THE ASSESSMENT YEAR 20 13 14 . 2 . THE REVENUE HAS FILED THE PRESENT APPEAL CHALLENGING THE DECISION OF THE LEARNED COMMISSIONER (APPEALS) IN ALLOWING ASSESSEES 2 AHCL PEL CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ). 3 . BRIEF FACTS ARE, THE ASSESSEE , A PARTNERSHIP FIRM , IS ENGAGED IN THE BUSINESS OF CONSTRUCTION OF RESIDENTIAL PROJECTS. FOR THE ASSESSMENT YEAR UNDER DISPUTE, THE ASSESSEE FILED ITS RETURN OF INCOME ON 30 TH SEPTEMBER 2013, DECLARING TOTA L INCOME AT ` 21,51,500, AFTER CLAIMING DEDUCTION UNDER SECTION 80IB(10) OF THE ACT FOR AN AMOUNT OF ` 4,49,31,186. IN COURSE OF ASSESSMENT PROCEEDINGS , THE ASSESSING OFFICER NOTICED THAT DEDUCTION UNDER SECTION 80IB OF THE ACT HAS BEEN CLAIMED BY THE ASS ESSEE IN RESPECT OF A RESIDENTIAL PROJECT IN THE NAME AND STYLE OF QUANTUM PARK . THE ASSESSING OFFICER, THEREFORE, CALLED UPON THE ASSESSEE TO FURNISH NECESSARY DETAILS AND ALSO TO JUSTIFY THE DEDUCTION CLAIMED. IN RESPONSE, IT WAS SUBMITTED BY THE ASSES SEE THAT SIMILAR DEDUCTION CLAIMED BY IT HAS BEEN ALLOWED EARLIER. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND OTHER MATERIALS ON RECORD, THE ASSESSING OFFICER OBSERVED THAT IN THE COURSE OF A SEARCH AND SEIZURE OPERATION CONDUCTED IN CASE OF ANOTHER ASSESSEE, CERTAIN PLANS WERE SEIZED WHICH REVEALED THAT AS PER ONE PLAN EACH FLOOR IN THE QUANTUM PARK PROJECT HAS TWO FLATS WITH BUILT UP AREA OF 2,000 SQ.FT. PER FLAT , WHEREAS , IN THE OTHER PLAN EACH FLOOR HAD FOUR FLATS HAV ING BUILT UP AREA OF LESS THAN 1,000 SQ.FT. PER FLAT. FURTHER, THE ASSESSING OFFICER NOTED THAT SIMILAR DEDUCTION CLAIMED BY THE ASSESSEE IN RESPECT 3 AHCL PEL OF QUANTUM PARK PROJECT IN ASSESSMENT YEAR S 2005 06 TO 2011 12 WERE DISALLOWED IN ASSESSMENT S COMPLETED UND ER SECTION 153C OF THE ACT. THUS, RELYING UPON THE SAID ASSESSMENT ORDERS AND THE ASSESSMENT ORDER PASSED FOR THE ASSESSMENT YEAR 2012 13, THE ASSESSING OFFICER DISALLOWED ASSESSEES CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT . BEING AGGRIEVED WIT H SUCH DISALLOWANCE, ASSESSEE PREFERRED APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. 4 . AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, LEARNED COMMISSIONER (APPEALS) FOUND THAT WHILE DECIDING APPEALS INVOLVING IDENTICAL DISALLOWANCE MADE BY THE ASSESSING OFFICER IN THE ASSESSMENT YEAR S 2005 06 TO 2011 12, LEARNED COMMISSIONER (APPEALS) HAS ALLOWED ASSESSEES CLAIM. FURTHER, HE FOUND THAT IN RESPECT OF JIVESH DEVELOPERS AND PROPERTIES PVT. LTD., WHO ALONG WITH THE ASSESSEE HAD DEVELOPED THE QUANTUM PARK PR OJECT, THE FIRST APPELLATE AUTHORITY HAS ALLOWED DEDUCTION CLAIMED UNDER SECTION 80IB(10) OF THE ACT. THEREFORE, FOLLOWING THE AFORESAID DECISION S , LEARNED COMMISSIONER (APPEALS) ALLOWED ASSESSEES CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. 5 . THE LEARNED DEPARTMENTAL REPRESENTATIVE RELYING UPON THE OBSERVATIONS OF THE ASSESSING OFFICER SUBMITTED, SINCE THE HOUSING PROJECT IN RESPECT OF WHICH THE ASSESSEE HAS CLAIMED THE DEDUCTION HAS 4 AHCL PEL NOT FULFILLED THE CON DITIONS OF SECTION 80IB(10) OF THE ACT, THE ASSESSING OFFICER WAS JUSTIFIED IN DISALLOWING THE DEDUCTION. 6 . THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR S 2005 06 TO 2011 12, UNDER IDENTICAL FACTS AND CIRCUMSTANCES, THE TRIBUNAL HAS ALLOWED ASSESSEE S CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. FURTHER, HE SUBMITTED , IN CASE OF ASSESSEES JOINT VENTURE PARTNER WITH WHOM THE ASSESSEE DEVELOPED QUANTUM PARK PROJECT, THE TRIBUNAL HAS ALLOWED DEDUCTION CLAIMED UNDER SECTION 80IB(10) OF THE ACT. IN THIS CONTEXT, HE DREW OUR ATTENTION TO THE RELEVANT OBSERVATIONS OF THE TRIBUNAL ON THE ISSUE. THUS, HE SUBMITTED , THE ISSUE RAISED BY THE DEPARTMENT IN THE PRESENT APPEAL IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION S OF THE TRIBUNAL. 7 . WE HAVE C ONSIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. AS COULD BE SEEN FROM THE FACTS ON RECORD, ASSESSEE ENTERED INTO A JOINT DEVELOPMENT AGREEMENT WITH JIVESH DEVELOPERS AND PROPERTIES PVT. LTD. FOR DEVELOPMENT OF A SLUM REHABILITATION PROJECT ( SRA ) AT BANDRA IN THE NAME AND STYLE OF QUANTUM PARK . IN RESPECT OF THE AFORESAID HOUSING PROJECT, BOTH, THE ASSESSEE AND JIVESH DEVELOPERS AND PROPERTIES PVT. LTD. CLAIMED DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. IT IS EVIDENT, ON THE BASIS OF MATE RIAL FOUND DURING THE SEARCH AND SEIZURE OPERATION CONDUCTED IN CASE OF ANOTHER 5 AHCL PEL ASSESSEE, IT WAS OBSERVED BY THE ASSESSING OFFICER THAT QUANTUM PARK PROJECT , IN RESPECT OF WHICH THE ASSESSEE HAD CLAIMED DEDUCTION UNDER SECTION 80IB(10) OF THE ACT , DOES NOT SATISFY THE C ONDITIONS OF THE SAID PROVISION . FURTHER, HE FOUND THAT ON THE AFORESAID PREMISE, THE ASSESSING OFFICER WHILE COMPLETING THE ASSESSMENT S UNDER SECTION 153 C OF THE ACT FOR THE ASSESSMENT YEAR S 2005 06 TO 2011 12 HAS DISALLOWED ASSESSEES CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. THOUGH , THE ASSESSING OFFICER HAS ACKNOWLEDGED THE FACT THAT WHILE DECIDING THE APPEALS FOR THE SAID ASSESSMENT YEARS, THE FIRST APPELLATE AUTHORITY HAS ALLOWED ASSESSEES CLAIM OF DEDUCTION, HOWEVER, TO KEE P THE ISSUE ALIVE, THE ASSESSING OFFICER PROCEEDED TO DISALLOW ASSESSEES CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT BY FOLLOWING THE ASSESSMENT ORDERS PASSED FOR THE PRECEDING ASSESSMENT YEARS. NOTABLY, AGAINST THE ORDERS PASSED B Y THE FIRST APP ELLATE AUTHORITY ALLOWING ASSESSEES CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IN THE ASSESSMENT YEAR S 2005 06 TO 2011 12, THE DEPARTMENT PREFERRED APPEAL BEFORE THE TRIBUNAL. HOWEVER, WHILE DECIDING THE AFORESAID APPEALS FILED BY THE DEPARTMENT , THE TRIBUNAL IN ITA NO.2845 TO 2851/MUM./2016, DATED 26 TH OCTOBER 2018, HAS ALLOWED ASSESSEES CLAIM OF DEDUCTION UNDE R SECTION 80IB(10) OF THE ACT. A FTER CONSIDERING ALL ASPECTS OF THE ISSUE T HE TRIBUNAL HAS CATEGORICALLY CO ME TO A FINDING THAT THE QUANTUM PARK PROJECT FULFILLS ALL THE CONDITIONS OF SECTION 80IB(10) OF THE ACT. WHILE DOING SO, THE 6 AHCL PEL TRIBUNAL HAS RELIED UPON ITS OWN DECISION RENDERED IN THE CASE OF JIVESH DEVELOPERS AND PROPERTIES PVT. LTD., IN ITA NO.5346/MUM./ 2015 AND OTHERS, DATED 28 TH MARCH 2018. ON A PERUSAL OF THE AFORESAID DECISION BY THE TRIBUNAL, IT IS NOTICED THAT AFTER GOING THROUGH ALL THE DETAILS, THE TRIBUNAL HAS RECORDED A FACTUAL FINDING THAT THE QUANTUM PARK PROJECT SATISFIES ALL THE CONDITIONS O F SECTION 80IB(10) OF THE ACT. UNDISPUTEDLY, THE REASONS ON THE BASIS OF WHICH ASSESSEES CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT WAS DISALLOWED IN THE PRECEDING ASSESSMENT YEAR S HAVE BEEN ADOPTED BY THE ASSESSING OFFICER WHILE DISALLOWING ASS ESSEES CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IN THE IMPUGNED ASSESSMENT YEAR. THAT BEING THE CASE, RESPECTFULLY FOLLOWING THE DECISION S OF THE TRIBUNAL AS REFERRED TO ABOVE, WE UPHOLD THE DECISION OF LEARNED COMMISSIONER (APPEALS) ON THE IS SUE. GROUNDS RAISED ARE DISMISSED. 8 . IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN C OURT ON 05.07.2019 SD/ - G. MANJUNATHA ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 05.07.2019 7 AHCL PEL COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI