ITO- 9(1)-1, MUMBAI V. M/s. ABODE CONSTRUCTIONS LTD., MUMBAI

ITA 412/MUM/2007

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 59693 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 12-01-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAY MEHTA
• Assessee Lawyers: SHRI PAVAN VED
• Keywords: Difference of opinion

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A MUMBAI BEFORE SHRI B.R. MITTAL (JUDICIAL MEMBER) AND SHRI P.M. JAGTAP (ACCOUNTANT MEMBER) ITA NO.402/MUM/2007 ASSESSMENT YEAR-2004-05 M/S. ABODE CONSTRUCTIONS LTD., 114A, VEENA BEENA SHOPPING C ENTRE, GURUNANAK ROAD, BANDRA (W(), MUMBAI-400 050 PAN-AAACA 6715H VS. THE ITO-9(1)(1), MUMBAI (APPELLANT) (RESPONDENT) ITA NO.412/MUM/2007 ASSESSMENT YEAR-2004-05 THE ITO-9(1)(1), MUMBAI VS. M/S. ABODE CONSTRUCTIONS LTD., 114A, VEENA BEENA SHOPPING C ENTRE, GURUNANAK ROAD, BANDRA (W(), MUMBAI-400 050 PAN-AAACA 6715H (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI VIJAY MEHTA RESPONDENT BY: SHRI SHRI PAVAN VED DATE OF HEARING : 13.01.2012 DATE OF PRONOUNCEMENT: 13.01.2012 O R D E R PER B.R. MITTAL, JM : SINCE THERE WAS A DIFFERENCE OF OPINION BETWEEN TH E LD. MEMBERS CONSTITUTING THE DIVISION BENCH ITAT MUMBAI WITH RE GARD TO FOLLOWING THE QUESTIONS, THE MATTER WAS REFERRED TO THIRD MEMBER U/S. 255(4) OF I.T. ACT FOR HIS OPINION: ITA NOS.412 & 402/M/07 2 I) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E PROJECT BEING EXECUTED BY THE ASSESSEE CAN BE TAKEN AS COMP LETE DURING THE ASSESSMENT YEAR 2004-05 OR NOT? II) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE SUM OF RS. 13.31 CRORES RECEIVED BY THE ASSESSEE DU RING THE YEAR FROM MHADA CAN BE ASSESSED AS INCOME OF A.Y. 2 004-05? 2. THE HONBLE PRESIDENT, ITAT NOMINATED THE THEN S ENIOR VICE PRESIDENT, SHRI R.V. EASWAR AS THIRD MEMBER. THE HONBLE THIR D MEMBER VIDE HIS ORDER DT. 26 TH MAY, 2010 HAS GIVEN HIS FINDING AS UNDER: A) IN RESPECT OF QUESTION NO.1, THE HONBLE THIRD MEMB ER HAS AGREED WITH THE VIEW TAKEN BY LD. ACCOUNTANT MEMBER OF THE DIVISION BENCH. THE LD. ACCOUNTANT MEMBER HAS HELD THAT PROJECT HAS TO BE TAKEN AS COMPLETE AND CONCLUDED ON SIGNIN G OF THE CONSENT TERMS ON 5 TH AUGUST, 2003 I.E. DURING THE ASSESSMENT YEAR 2004-05. B) IN RESPECT OF QUESTION NO. 2, THE HONBLE THIRD MEM BER HAS AGREED WITH THE VIEW TAKEN BY LD. JUDICIAL MEMBER O F DIVISION BENCH. THE LD. JUDICIAL MEMBER HAS HELD THAT THE A MOUNT OF RS. 13.31 CRORES RECEIVED BY ASSESSEE DURING THE YEAR F ROM MHADA CANNOT BE ASSESSED AS ITS INCOME FOR ASSESSMENT YEA R 2004-05. 3. THEREFORE, IN ACCORDANCE WITH THE MAJORITY VIEW, APPEAL OF ASSESSEE AS WELL AS APPEAL OF DEPARTMENT, BOTH ARE DISMISSED. 4. THE ABOVE ORDER IS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF REPRESENTATIVES OF BOTH PARTIES ON 13.01.2012. ( P.M. JAGTAP) (B.R. MITTAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 13 TH JANUARY, 2012 RJ ITA NOS.412 & 402/M/07 3 COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR A BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI