ITO 31(2)(2), MUMBAI V. KRISH ENTERPRISES, MUMBAI

ITA 3926/MUM/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3543 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-08-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 24-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K KARDA M
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH I , MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH , JUDICIAL MEMBER IT A NO. 3926 /MUM/20 15 : (A.Y : 20 08 - 09 ) ITO - 31(2)(2), MUMBAI ( APPELLANT ) VS. M/S. KRISH ENTERPRISES 2/12, VIJAY VILLA, HARDEVI SOCIETY, STATION ROAD, JOGESHWARI WEST, MUMBAI 400 060 (RESPONDENT) PAN : AAIFK4450A ASSESSEE BY : NONE REVENUE BY : SHRI A.K. KARDAM DATE OF HEARING : 20/07 /2016 DATE OF PRONOUNCEMENT : 17 /0 8 /2016 O R D E R PER G.S. PANNU , AM : THE CAPTIONED APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF CIT(A) - 41 , MUMBAI DATED 23 . 04 .20 15 , PERTAINING TO THE ASSESSMENT YEAR 200 8 - 09 , WHICH IN TURN HAS ARISEN FROM THE ORDER PASSED BY THE ASSESSING OFFICER DATED 31 . 01 .20 14 UNDE R SECTION 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. IN THIS APPEAL, REVENUE HAS RAISED THE FOLLOWING TWO GROUNDS OF APPEAL : 2 M/S. KRISH ENTERPRISES ITA NO. 3926/MUM/2015 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN HOLDING THAT THE PROJECT DID NOT REQUIRE TO BE COMPLETED AS PER THE PROVISIONS OF SECTION 80IB(10)(A). 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN NOT DECIDING ON WHETHER THE APPROVAL OF THE GRAM PANCHAYAT CAN BE REGARDED AS A COMPLETION CERTIFICATE IN THE LIGHT OF CIDCO HAVING APPROVED THE PROJECT. 3. AT THE TIME OF HEARING NONE APPEARED ON BEHALF OF THE ASSESSEE, THEREFORE, WE PROCEED TO DECIDE THE APPEAL EX PARTE QUA THE ASSESSEE AFTER HEARING THE LD. DR ON MERITS IN THE LIGHT OF THE PROVISIONS OF RULE 25 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963. 4 . ALTHOUGH REVENUE HAS RAISED TWO GROUNDS OF APPEAL, THE SOLITARY ISSUE RELATES TO THE CLAIM OF ASSESSEE FOR DEDUCTION U/S 80IB(10) OF THE ACT OF RS.1,65,77,646/ - WITH RESPECT TO PROFITS EARNED FROM THE DEVELOPMENT OF A HOUSING PROJECT. 5. BRIEFLY PUT, THE RELEVANT FACTS ARE THAT THE RESPONDENT - ASSESSEE IS A PARTNERSHIP FIRM WHICH IS ENGAGED IN THE BUSINESS OF DEVELOPERS AND BUILDERS. INITIALLY, IN THE COURSE OF ASSES SMENT PROCEEDINGS FOR ASSESSMENT YEAR 2009 - 10, THE ASSESSING OFFICER EXAMINED ASSESSEES CLAIM FOR DEDUCTION U/S 80IB(10) OF THE ACT IN RELATION TO THE HOUSING PROJECT UNDERTAKEN BY THE ASSESSEE IN VASAI - VIRAR REGION OF THANE DISTRICT. THE ASSESSING OFFIC ER DENIED THE CLAIM OF DEDUCTION IN THE ASSESSMENT PROCEEDINGS FINALIZED U/S 143(3) OF THE ACT. FOLLOWING HIS 3 M/S. KRISH ENTERPRISES ITA NO. 3926/MUM/2015 STAND IN ASSESSMENT YEAR 2009 - 10, THE ASSESSING OFFICER REOPENED THE ASSESSMENT FOR THE INSTANT ASSESSMENT YEAR OF 2008 - 09 WHEREIN ALSO ASSESSEE HAD CLAIMED DEDUCTION U/S 80IB(10) OF THE ACT ON THE SAME PROJECT. ACCORDINGLY, IN THE IMPUGNED ASSESSMENT, THE ASSESSING OFFICER DISALLOWED THE CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT FOLLOWING HIS STAND FOR ASSESSMENT YEAR 2009 - 10. 6. IN APPEAL BEFO RE THE CIT(A), IT WAS POINTED OUT THAT THE MATTER RELATING TO THE CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT FOR ASSESSMENT YEAR 2009 - 10 HAD TRAVELLED TO THE TRIBUNAL AND VIDE ITA NO. 6728/MUM/2013 DATED 22.9.2014 CLAIM OF THE ASSESSEE STOOD ALLOWED. THE CIT(A) ALSO TOOK NOTE OF THE FACT THAT EVEN FOR ASSESSMENT YEAR 2010 - 11 THE TRIBUNAL VIDE ITA NO. 5554/MUM/2014 DATED 5.1.2015 FOLLOWED ITS EARLIER DECISION FOR ASSESSMENT YEAR 2009 - 10 AND ALLOWED THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 80IB(10) OF THE ACT. ACCORDINGLY, ASSESSEES CLAIM FOR DEDUCTION U/S 80IB(10) OF THE ACT WAS ALLOWED. AGAINST SUCH A DECISION, REVENUE IS IN APPEAL BEFORE US. 7. AT THE TIME OF HEARING, THE LD. DR APPEARING FOR THE REVENUE QUITE FAIRLY STATED THAT THE ORDER OF THE CIT (A) IS BASED ON THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE RELATING TO A SIMILAR CLAIM U/S 80IB(10) OF THE ACT. THERE IS ALSO NO MATERIAL ON RECORD TO SUGGEST THAT ANY OF THE AFORESAID PRECEDENTS HAVE BEEN ALTERED BY ANY HIGHER AUTHORITY. THEREF ORE, UNDER THESE CIRCUMSTANCES WE FIND NO REASON TO INTERFERE WITH THE CONCLUSION DRAWN BY THE CIT(A) , WHICH IS BASED ON THE 4 M/S. KRISH ENTERPRISES ITA NO. 3926/MUM/2015 PRECEDENTS IN THE ASSESSEES OWN CASE. THEREFORE, THE ORDER OF THE CIT(A) IS AFFIRMED AND REVENUE FAILS IN ITS APPEAL. 8. RESULTANTLY, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 7 T H AUGUST, 2016. SD/ - SD/ - ( AMARJIT SINGH ) JUDICIAL MEMBER ( G.S. PANNU ) ACCOUNTANT MEMBER MUMBAI, DATE : 1 7 T H AUGUST , 2016 * SSL * COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, I BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI