ACIT - 18 (3), MUMBAI V. RATTANCHAND RIKHABDAS JAIN CHEMICAL WORKS, MUMBAI

ITA 3826/MUM/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 9144 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-08-2020
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2014-2015
• Appeal Filed On: 31-05-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MANJUNATHA SWAMY
• Keywords: Additional evidence; Competent authority
• Section: 80IB; 201; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHR I G. MANJUNATH A , ACCOUNTANT MEMBER ITA NO. 3826 / MUM . /20 1 8 ( ASSESSMENT YEAR : 20 14 15 ) ASSTT. COMMISSIONER OF INCOME TAX CIRCLE 18(3), MUMBAI . APPELLANT V/S RATTANCHAND RIKHABDAS JAIN CHEMICALS WORKS 428, KALBAEVI ROAD 2 ND FLOOR, ABHAY HOUSE MUMBAI 400 052 PAN AAJFR7028L . RESPONDENT REVENUE BY : S HRI MANJUNATHA SWAMY ASSESSEE BY : SHRI NITESH JOSHI DATE OF HEARING 0 3 .0 8 .2020 DATE OF ORDER 10.08.2020 O R D E R PER SAKTIJIT DEY. J.M. INSTANT APPEAL HAS BEEN FILED BY THE REVENUE CHALLENGING THE ORDER DATED 27 TH MARCH 2018, PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 29, MUMBAI, PERTAINING TO THE ASSESSMENT YEAR 2014 15. 2. THE ONLY GROUND RAISE BY THE REVENUE READS AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, WHETHER TH E LEARNED CIT(A) WAS JUSTIFIED IN ALLOWING THE 2 RATTANCHANDRIKHABDAS JAINCHEMICALS WORKS ASSESSEE DEDUCTION UNDER SECTION 80IB OF THE ACT, WHEN THE PROJECT WAS NOT COMPLETED WITHIN TIME LIMIT. 2. BRIEF FACTS RELATING TO THE DISPUTED ISSUE ARE, THE ASSESSEE , A PARTNERSHIP FIRM , FILED ITS RETURN OF I NCOME FOR THE IMPUGNED ASSESSMENT YEAR ON 27 TH SEPTEMBER 2015, DECLARING TOTAL INCOME OF ` 65,05,630, AFTER CLAIMING DEDUCTION UNDER SECTION 80IB(10) OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ). THE AFORESAID DEDUCTION WAS CLAIMED FOR THE DEVELOPMENT OF A HOUSING PROJECT NAMED AS MAYURESH RESIDENCY, AT BHANDUP (WEST), MUMBAI. IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER WHILE EXAMINING ASSESSEES CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IN RESPECT OF THE SAID HOUSING PROJ ECT FOUND THAT SIMILAR DEDUCTION CLAIMED BY THE ASSESSEE IN THE ASSESSMENT YEAR S 2010 11, 2011 12, 2012 13 AND 2013 14 HAVE BEEN D ISALLOWED BY THE ASSESSING OFFICER ALLEGING VIOLATION OF CONDITIONS MENTIONED IN SECTION 80IB(10) OF THE ACT. IN CONSONANCE WITH THE VIEW TAKEN IN THE PRECEDING ASSESSMENT YEAR S , THE ASSESSING OFFICER DISALLOWED ASSESSEES CLAIM OF DEDUCTION IN THE IMPUGNED ASSESSM ENT YEAR AS WELL. BEING AGGRIEVED WITH THE DISALLOWANCE OF DEDUCTION CLAIMED UNDER SECTION 80IB(10) OF THE ACT, THE ASSESSEE PREFERRED APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. 3. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND ALSO TAKING NOTE OF THE FACT THAT THE TRIBUNAL WHILE DECIDING ASSESSEES APPEAL S FOR THE ASSESSMENT YEAR S 2010 11, 2011 12, 2012 13 AND 3 RATTANCHANDRIKHABDAS JAINCHEMICALS WORKS 2013 14 ALLOWED ASSESSEES CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IN RESPECT OF THE SUBJECT HOUSING PROJECT , FOLLOWED THE DECI SION S OF THE TRIBUNAL AND ALLOWED ASSESSEES CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT , T HEREBY , DELETING THE DISALLOWANCE MADE BY THE ASSESSING OFFICER. BEING AGGRIEVED WI TH THE AFORESAID DECISION OF LEARNED COMMISSIONER (APPEALS), THE REVENUE IS IN APPEAL BEFORE US. 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. AT THE VERY OUTSET, SHRI NITESH JOSHI, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION S OF THE TRIBUNAL IN ASSES SEES OWN CASE IN ASSESSMENT YEAR S 2010 11, 2011 12, 2012 13 AND 2013 14. HE SUBMITTED , THE DECISIONS OF THE TRIBUNAL IN ASSESSMENT YEAR S 2010 11 AND 2011 12 HAVE ALSO BEEN CONFIRMED BY THE HON'BLE JURISDICTIONAL HIGH COURT WHILE DISMISSING REVENUES APPEA L S . FURTHER, HE SUBMITTED , THE HOUSING PROJECT IN RESPECT OF WHICH THE ASSESSEE HAD CLAIMED DEDUCTION UNDER SECTION 80IB(10) OF THE ACT COMMENCED ON 10 TH SEPTEMBE R 2007, AND WAS COMPLETED ON 18 TH MARCH 2013. THUS, HE SUBMITTED , THE CONDITION OF SECTION 80I B(10)(A)(III) OF THE ACT STAN DS FULFILLED. THUS, HE SUBMITTED, THE DECISION OF LEARNED COMMISSIONER (APPEALS) SHOULD BE UPHELD. 4 RATTANCHANDRIKHABDAS JAINCHEMICALS WORKS 5. SHRI MANJUNATHA SWAMY, THE LEARNED DEPARTMENTAL REPRESENTATIVE , THOUGH , AGREED THAT THE ISSUE IN DISPUTE IS COVERED BY THE DECISION S OF THE TRIBUNAL AND HON'BLE JURISDICTIONAL HIGH COURT IN ASSESSEES OWN CASE, HOWEVER, HE RELIED UPON THE OBSERVATIONS OF THE ASSESSING OFFICER. 6. HAVING CONSIDERED RIVAL SUBM ISSIONS, WE FIND FRO M RECORD THAT THE ASSESSEE DEVELOPED A HOUSING PROJECT IN THE NAME AND STYLE OF MAYURESH RESIDENCY. ACCORDING TO THE ASSESSEE, THE CONSTRU CTION OF THE HOUSING PROJECT COMMENCED ON 10 TH SEPTEMBER 2007 AND COMPLETED ON 18 TH MARCH 2013, I.E., PRIOR TO 31 ST MARC H 2013, THE CUT OFF DATE AS PER SECTION 80IB(10)(A)(III) O F THE ACT. THEREFORE, ASSESSEE HAS CLAIM ED THAT IT IS ENTITLED TO AVAIL DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IN RESPECT OF THE SAID HOUSING PROJECT. IT IS APPARENT FROM A READING OF THE IMPUGNED ASSESSMENT ORDER, THE ASSESSING OFFICER HAS DENIED ASSESSEES CLAIM OF DEDUCTION SIMPLY ON THE REASONING THAT SIMILAR DEDUCTIO N CLAIMED BY THE ASSESSEE IN ASSESSMENT YEAR S 2010 11 TO 2013 14 HAS BEEN DENIED. ON FURTHER SCRUTINY, IT IS FOUND THAT T HE DENIAL OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IN THE PRECEDING ASSESSMENT YEAR S WAS PRIMARILY ON THE ALLEGATION THAT THE ASSESSEE FAILED TO SUBMIT THE COMPLETION CERTIFICATE ISSUED BY THE MUNICIPAL AUTHORITIES BEFORE THE ASSESSING OFFICER. IT IS FURTHER EVIDENT , AGAINST THE DISALLOWANCE OF DEDUCTION 5 RATTANCHANDRIKHABDAS JAINCHEMICALS WORKS CLAIM ED UNDER SE CTION 80IB(10) OF THE ACT IN ASSESSMENT YEAR 2010 11 AND 201 1 12, THE ASSESSEE HAD PREFERRED APPEAL S BEFORE THE TRIBUNAL. IN THE COURSE OF HEARING OF APPEAL BEFORE THE TRIBUNAL, THE AS SESSEE HAD FURNISHED COMPLETION CERTIFICATE ISSUED BY THE COMPETENT AUTHORITY AS ADDITIONAL EVIDENCES. THE TRIBUNAL HAVING FOUND THE COMPLETION CERTIFICATE TO BE IN ORDER AND BEING CONVINCED WITH THE FACT THAT THE CONDITIONS OF SECTION 80IB(10) OF THE ACT HAVE BEEN FULFILLED IN ALL RESPECT , ALLOWED ASSESSEES CLAIM OF DED UCTION UNDER THE SAID PROVISION WHILE DISPOSING OFF THE APPEALS BEING ITA NO.1531 1532/MUM./2014, VIDE ORDER DATED 3 RD NOVEMBER 2016. IT IS WORTH MENTIONING , THE AFORESAID DECISION OF THE T RIBUNAL WAS BROUGHT TO THE NOTICE OF THE ASSESSING OFFICER IN THE COURSE OF THE ASSESSMENT PROCEEDINGS FOR THE IMPUGNED ASSESSMENT YEA R. HOWEVER , THE ASSESSING OFFICER HAS DECLINED TO FOLLOW THE DECISION OF THE TRIBUNAL ON THE FLIMSY GROUND S THAT HE HAS NO T RECEIVED A COPY OF THE SAID ORDER OFFICIALLY AND FURTHER , THAT THE REVENUE R ESERVES ITS RIGHT TO CONTEST THE DECISION BEFORE THE HIGH COURT. IT IS WORTH MENTIONING, THE REVENUES APPEAL CHALLENGING THE DECISION OF THE TRIBUNAL IN ASSESSMENT YEAR S 2010 11 AND 2011 12, I N THE MEANWHILE , WERE DISMISSED BY THE HON'BLE JURISDICTIONAL HIGH COURT VIDE ORDER DATED 30 TH SEPTEMBER 2019, IN ITA NO.421/2017 AND ORDER DATED 3 RD MARCH 2020, IN ITA NO.1271/2017. IN FACT, WHILE DISMISSING THE REVENUES APPEAL IN ASSESSMENT YEAR 2011 12, REPORTED IN CIT V/S RATTANCHAND RIKHABDAS 6 RATTANCHANDRIKHABDAS JAINCHEMICALS WORKS JAIN CHEMICAL WORKS, [2020] 117 TAXMANN.COM 709 (BOM.), THE HON'BLE JURISDICTIONAL HIGH COURT TAKING NOTE OF THE FACTU AL FINDING OF THE TRIBUNAL THAT THE PROJECT WAS COMPLETED WITHI N THE STIPULATED TIME ON OR BEFORE 31 ST MARCH 2013, HAS UPHELD ASSESSEES CLAIM OF DEDUCTION 80IB(10) OF THE ACT. IN FACT, IDENTICAL VIEW WAS TAKEN BY THE TRIBUNAL WHILE DECIDING A SSESSEES APPEAL S FOR ASSESSMENT YEAR 2012 13 IN ITA NO.3251/MUM./2017, DATED 5 TH DECEMBER 2018, AND FOR THE ASSESSMENT YEAR 2013 14 IN ITA NO.3252/MUM./2017, DATED 24 TH OCTOBER 2018. THUS, ONCE THE TRIBUNAL , BEING THE LAST FACT FINDING AUTHORITY , HAS RECO RDED A FACTUAL FINDING THAT THE HOUSING PROJECT WAS COMPLETED WITHIN THE STIPULATED TIME FRAME AND SUCH FINDING OF FACT HAS ALSO BEEN UPHELD BY THE HON'BLE JURISDICTIONAL HIGH COURT IN ASSESSEES OWN CASE, THERE IS NO SCOPE FOR THE ASSESSING OFFICER TO DEN Y ASSESSEES CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. IN VIEW OF THE AFORESAID, WE DO NOT FIND ANY INFIRMITY IN THE DECISION OF LEARNED COMMISSIONER (APPEALS) IN ALLOWING ASSESSEES CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. GROUND RAISED IS DISMISSED. 7. IN THE RESULT, REVENUES APPEAL IS DISMISSED. 7 RATTANCHANDRIKHABDAS JAINCHEMICALS WORKS ORDER PRONOUNCED BY PLACING IN THE NOTICE BOARD UNDER RULE 34(4) OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963 , ON 10.08.2020 SD/ - G. MANJUNATHA ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 10.08.2020 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