ASST CIT CIR 1, KALYAN V. GAURI VINAYAK BUILDERS & DEVELOPERS P.LTD, KALYAN

ITA 4051/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0774 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-05-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 29-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H N MOTIWALA
• Section: 142(1); 80IB

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL BENCH D MUMBAI BEFORE SHRI D.T.GARASIA , JM AND SHRI RAJESH KUMAR, AM I.T.A. NO. 4051 /MUM/20 1 5 ( / ASSESSMENT YEAR : 20 10 - 11 ) ASSTT.COMMISSIONER OF INCOM E TAX CIRCLE - 1, 1 ST FLOOR, MOHAN PLAZA, WAYALE NAGAR, KHADAKPADA, KALYAN (W) - 421301 / VS. M/S GAURI VINAYAK BUILDERS AND DEVELOPERS PVT.LTD, 3, SUNITA COLONY, GAULI NAGAR, TISGAON., KALYAN (E) - 421306 ./ PAN : AABCG3721C ( / APPELLANT) : ( / RESPONDENT ) / APPELLANT BY : SHRI H N MOTIWALA / RESPONDENT BY : SHRI PURUSHOTTAM KUMAR / DATE OF HEARING : 26.4.2017 / DATE OF PRONOUNCEMENT : 8. 5 . 201 7 / O R D E R PER RAJESH KUMAR, A. M: THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 19.3.2015 PASSED BY THE LD.CIT(A) - 2, THANE , FOR THE ASSESSMENT YEAR 20 10 - 11 WHEREIN THE REVENUE HAS CHALLENGED THE LD.CIT(A)S ORDER IN ALL OWING THE CLAIM OF THE ASSESSEE MADE UNDER SECTION 80IB(10) OF THE INCOME TAX ACT. 2. FACTS IN BRIEF ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME ON 30.9.2010 DECLARING TO T AL IN COME OF RS.31,51,680/ - . THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTI NY AND THE STATUTORY NOTICES U/S 143(2) AND 142(1) WERE 2 ITA NO. 4051 /M/201 4 ISSUED AND SERVED ON THE ASSESSEE. THE ASSESSEE IS A BUILDER AND UNDERT OOK VARIOUS PROJECTS DURING THE YEAR AND ALSO CLAIMED DEDUCTION U /S 80IB(10) OF THE ACT TO THE TUNE OF RS.1,28,34,603/ - . AT THE OUTSET, THE LD. AR RIGHTLY POINTED OUT THAT THE LD.CIT (A) BY FOLLOWING THE DECISION OF ITS PREDECESSOR IN THE ASSESSMENT YEAR 2008 - 09 ALLOWED THE CLAIM OF THE ASSESSEE AND THE REVENUE HAS NOT CHALLENGED THE SAID DECISION BEFORE THE HIGHER FORUM AND HENCE IT HAS ATTAINED FINALITY, WHEREAS IN THE CURRENT YEAR THE DEPARTMENT HAS FILED APPEAL AGAINST THE ORDER OF LD.CIT(A) . THE AR, THEREFORE, SUBMITTED THAT THE APPEAL OF THE DEPARTMENT SHOULD BE DISMISSED AS IT HAS NO LOCUS STANDI TO FILE THE APPEAL IN THE CU RRENT YEAR, IN VIEW OF THE FACTS THAT THE ISSUE HAS ATTAINED FINALITY IN THE ASSESSMENT YEAR 2008 - 09. 3 . THE LD. DR FAIRLY CONCEDED THAT THE ARGUMENT RAISED BY THE LD.AR AS TRUE AND CORRECT AND ALSO BROUGHT THE FACTS TO THE NOTICE OF THE BENCH THAT AT T HE TIME OF MAKING ASSESSMENT, THE DECISION OF THE FAA WAS NOT AVAILABLE BEFORE THE AO AND THE AO HAS SPECIFICALLY STATED AT PAGE 5 OF THE ASSESSMENT ORDER THAT IN THE EVENT THE ISSUE IS DECIDED BY THE LD.CIT(A) IN FAVOUR OF THE ASSESSEE AND ALLOWED D EDUCTION U/S 80IB(10) OF THE ACT, THE DECISION OF THE LD.CIT(A) WILL BE APPLICABLE TO THE PRESENT YEAR ALSO. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL PLACED BEFORE US INCLUDING THE ORDERS OF AUTHORITIES BELOW . WE FIND THAT AN IDENTICAL ISSUE HAS BEEN DECIDED BY THE LD. CIT(A) IN FAVOUR OF THE ASSESSEE WHICH ATTAINED FINALITY 3 ITA NO. 4051 /M/201 4 DUE TO NON - FILING OF THE APPEAL BY THE REVENUE BEFORE THE HIGHER FORUM AND IN THE CURRENT YEAR THE ISSUE HAS BEEN DECIDED BY THE LD. CIT(A) IN FAVOUR OF THE ASSESSEE BY FOLLOWING THE ORDER OF HIS PREDECESSOR, WHICH IS EXTRACTED BELOW : 5.1 AFTER CONSIDERING THE ISSUE AT GREAT LENGTH, I AM OF THE CONSIDERED VIEW THAT THE PROJECT OF THE ASSESSEE HAS COMMENCED ON 21.4.2005, AND HENCE, THE TERMS OF THE PROVISI ON S OF CLAU SE (A) OF SECTION 80IB(10) THE PROJECT COULD HAVE BEEN COMPLETED WITHIN FOUR YEARS FROM THE END OF THE FINANCIAL YEAR 2005 - 06. AS THE PROJECT IS COMPLETED ON 17 TH OCTO BER , 2009 AS HELD BY MY PREDECESSOR TH AT THE PROJECT WAS COMPLETED WITHIN THE PRESCRIB ED TIME LIMIT AS PER CLAUSE (A) OF SECTION 80IB (10). ALSO, THE AREA OF SHOPS WAS LESS THAN 5000 SQ.FT. THEREFORE, DEDUCTION U/S 80IB(10) IS ALLOWED. 5.2 IN VIEW OF ALL THESE FACTS, THE DEDUCTION U/S 80IB COULD NOT HAVE BEEN DISALLOWED. THE AO IS DIRECT ED TO GRANT THE DEDUCTION U/S 80IB (10) TO THE A SSESSEE IN THIS YEAR AS WELL. THEREFORE, THE APPEAL OF THE APPELLANT ON THIS GROUND IS ALLOWED . 5. THE FACTS OF THE INSTANT CASE BEING THE IDENTICAL TO THAT OF ASSESSMENT YEAR 2008 - 09 AND THEREFORE, FOLLOW ING THE PRECEDENT IN THE EARLIER YEAR WE ARE INCLINED TO DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 8TH MAY , 2017 . S D SD ( D.T.GARASIA ) ( RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 8. 5 .2017 SR.PS:SRL: 4 ITA NO. 4051 /M/201 4 / 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 F ILE / BY ORDER, T RUE COPY / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI