MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION, MUMBAI V. ASSISTANT COMMISSIONER INCOME TAX (EXEMPTIONS)-2(1), MUMBAI

ITA 4328/MUM/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4049 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 12-06-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AWANGSHI GIMSON
• Keywords: Charitable institution; Cost of acquisition
• Section: 12A; 12

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE HONBLE SHRI S HAMIM YAHYA, A M & HONBLE SHRI SANDEEP GOSAIN, JM ./ I.T.A. NO .4328 & 4330/MUM/2017 ( / ASSESSMENT YEAR: 20 09 - 10 & 2010 - 11 ) MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION, UDYOG SARATHI, MAHAKALI CAVES ROAD, ANDHERI (EAST), MUMBAI - 400 093 . / VS. ACIT (EXMP) - 2(1), PIRAMAL CHAMBERS, LALBAUG, MUMBAI - 400 012 ./ ./ PAN/GIR NO. A AACM3560C ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : NONE / RESPONDENTBY : SHRI AWANGSHI GIMSON, D R / DATE OF HEARING : 11/12 /201 8 / DATE OF PRONOUNCEMENT : 06.02.2019 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE P RESENT TWO A PPEAL S HAVE BEEN FILED BY THE ASSESSEE ARE AGAINST THE ORDER OF COMMISS I ONER OF INCOME TAX (APPEALS) - 2 I.T.A. NO. 4328 & 4330/MUM/2017 MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION 1, MUMBAI DATED 03.04.17 FOR AY 2009 - 10 & 2010 - 11 RESPECTIVELY. 2. SINCE, THE FACTS RAISED IN BOTH THE APPEAL S FILED THE ASSESSEE ARE IDENTICAL, THEREFORE FOR THE SAKE OF CONVENIENCE; THEY ARE CLUBBED, HEARD AND DISPOSED OF BY THIS CONSOLIDATED ORDER. 3. AT THE VERY OUTSET, IT IS NOTICED THAT NONE HAS APPEARED ON BEHALF OF ASSESSEE IN SPITE OF CALLS AND EVEN NO APPLICATION FOR ADJOURNMENT WAS MOVED. FROM THE ORDERSHEET, WE NOTICED THAT ON THE LAST DATE OF HEARING, ADJOURNMENT WAS SOUGHT BY THE ASSESSEE VIDE LETTER DATED 05.11.18. TODAY, NOBODY HAS APPEARED, NOR ANY REQUEST FOR ADJOURNMENT HAS BEEN FILED. ON TH E OTHER HAND L D. DR IS PRESENT IN THE COURT AND IS READY WITH ARGUMENTS. THEREFORE WE HAVE DECIDED TO PROCEED WITH THE HEARING OF THE CASE EX - PARTE WITH THE ASSISTANCE OF THE L D. DR AND THE MATERIAL PLACED ON RECORD. 4. FIRST OF ALL WE TAKE UP APPEAL IN IT A NO. 4328 /MUM /201 7 FILED BY ASSESSEE FOR AY 2009 - 10 ON THE GROUNDS MENTIONED HEREIN BELOW: - 3 I.T.A. NO. 4328 & 4330/MUM/2017 MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION GROUND NO. 1: 1.1 THE CIT(A) HAS ERRED ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW BY DENYING THE BENEFIT PROVIDED UNDER SECTIONS 11 TO 13 OF THE ACT IN VIEW OF THE AMENDMENT TO SECTION 2(15) OF THE ACT, WITH EFFECT FROM 01.04.2009. THE CIT(A) FAILED TO C ONSIDER THE SUBMISSIONS MADE BY THE APPELLANT DURING THE COURSE OF PROCEEDINGS AND HAS MERELY REITERATED THE OBSERVATIONS OF THE LEARNED ASSESSING OFFICER WITHOUT EVEN CONSIDERING THE MERITS OF THE GROUNDS RAISED BY THE APPELLANT BEFORE IT. THE CIT(A) OUGH T TO HAVE CONSIDERED THE NATURE OF THE ACTIVITIES PERFORMED BY THE APPELLANT AND THE GOVERNMENT RESOLUTIONS PASSED IN THIS RELATION. 1.2 THE APPELLANT STATES THAT, THE LEARNED CIT(A) FAILED TO CONSIDER THE FACT THAT THE LEARNED ASSESSING OFFICER WENT BEYOND HIS JURISDICTION AND RE - EXAMINED THE ENTITLEMENT TO BENEFITS OF A VALID SECTION 12A REGISTRATION, WHICH IS IN COMPLETE DEROGATION TO THE ACT. IN THE PRESENT CASE, THE LEARNED ASSESSING OFFICER HAS NOWHERE INDICATED THAT THE ACTIVITIES OF THE APPELLA NT ARE NOT GENUINE AND IT IS NEITHER HIS CASE THAT ANY OF THE PROVISIONS OF SECTION 13 ARE VIOLATED. IN SUCH A SITUATION THE LEARNED ASSESSING OFFICER CANNOT BE LEGALLY ENTITLED TO DISREGARD THE VALIDLY ISSUED CERTIFICATE U/S 12 A ISSUED BY THE COMMISSIONE R. 4 I.T.A. NO. 4328 & 4330/MUM/2017 MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION 1.3 THE LEARNED CIT(A) FAILED TO CONSIDER THAT THE ASSESSING OFFICER ERRED IN HOLDING THAT THE APPELLANT IS NOT A VALID TRUST WHILE RELYING ON EARLIER ASSESSMENT YEARS. HOWEVER, IN APPEAL THE HON'BLE CIT(A) AS WELL AS THIS HON'BLE TRIBUNAL HAVE UPH ELD THE STANCE OF THE APPELLANT AND REJECTED THE REASONING OF THE ASSESSING OFFICER AND THERE IS NO ADDITIONAL REASONING PROVIDED UNDER THE PRESENT ORDER AS WELL. MOREOVER, THE APPELLANTS STATE THAT, THE RESTRICTED DEFINITION U/S 10(20A) OF THE ACT CANNOT AUTOMATICALLY MEAN THAT THE ENTITLEMENT TO BENEFIT IS ALSO TAKEN AWAY. THE LEARNED CIT(A) HAS FAILED TO APPRECIATE THAT, THE PROVISIONS OF EXPLANATION 1 TO SECTION 13, WHICH CLARIFIES THAT FOR THE PURPOSES OF SECTIONS 11 TO 13, 'TRUST INCLUDES ANY OTHER LE GAL OBLIGATION', THEREFORE WHAT IS ESSENTIAL IS NOT THAT THERE MUST BE A DECLARATION BUT THAT THE TRUST/INSTITUTION MUST BE UNDER A LEGAL OBLIGATION TO APPLY THE INCOME FOR CHARITABLE PURPOSES. THE APPELLANT SUBMITS THAT IN THE PRESENT SITUATION, LEGAL OBL IGATION CLEARLY ARISES BY VIRTUE OF SECTION 19 OF THE MID ACT, WHERE THERE IS AN OBLIGATION ON THE APPELLANT TO HOLD AND APPLY ALL ITS PROPERTY, INCOME AND ASSETS FOR THE PURPOSES OF THE ACT I.E. GENERAL PUBLIC UTILITY. 1.4 THE LEARNED CIT(A) HAS FAILED TO APPRECIATE THAT, THE ASSESSING OFFICER ERRED IN RELYING ON THE AMENDMENT, AS THE AMENDMENT DOES NOT AFFECT THE 5 I.T.A. NO. 4328 & 4330/MUM/2017 MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION APPELLANT'S CLAIM UNDER SECTION 11, SINCE THE APPELLANT'S OBJECT NOWHERE INVOLVES PROFITEERING ACTIVITIES. IT IS SUBMITTED THAT THE INDUSTRIAL P LOTS ARE BEING ALLOTTED BY THE APPELLANT AT A PRICE MUCH LESSER THAT THE ACQUISITION COST AND ARE DONE IN BACKWARD AREAS TO PROMOTE THE OBJECT OF THE MID ACT AND INDUSTRIAL DEVELOPMENT IN THE STATE. THE LEARNED CIT(A) FAILED TO CONSIDER THE APPELLANT'S CON TENTION THAT EVEN AFTER THE AMENDMENT TO SECTION 2(15) OF THE ACT, THE DOMINANT OBJECT OF THE APPELLANT IS TO BE SEEN, WHICH IS TO CARRY ON ACTIVITIES WITHOUT ANY PROFIT MOTIVE. IT IS SUBMITTED THAT THE CIT(A) HAS, WITHOUT APPLICATION OF MIND, CONFIRMED TH E ERRONEOUS FINDINGS OF THE AO THAT THE APPELLANT IS RUN AS A BUSINESS ON COMMERCIAL LINES. ACCORDINGLY, THE LEARNED CIT(A) HAS ERRED IN INTERPRETING THE PROVISO TO SECTION 2(15) OF THE ACT AND HAS FAILED TO APPRECIATE THE SCOPE AND PURPORT OF THE SAME. TH US, IT IS SUBMITTED THAT THE OBSERVATION MADE BY THE CIT(A) IN THE IMPUGNED ORDER IS BAD IN LAW AND IS THEREFORE LIABLE TO BE SET ASIDE ON THIS GROUND ALONE. GROUND NO. 2; 2.1 THE CIT (A) HAS ERRED ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW BY D ENYING THE CARRY FORWARD OF DEFICIT TO BE SET OFF AGAINST THE FUTURE SURPLUS ON THE GROUND THAT THE APPELLANTS INCOME HAS 6 I.T.A. NO. 4328 & 4330/MUM/2017 MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION TO BE COMPUTED IN COMMERCIAL MANNER. THE CIT(A) HAS HELD THAT THE INCOME OF THE APPELLANT CANNOT BE GIVEN THE BENEFIT PROVIDED UNDER S ECTION 11 OF THE ACT AND HAS MERELY REITERATED THE OBSERVATIONS OF THE LEARNED ASSESSING OFFICER WITHOUT EVEN CONSIDERING THE MERITS OF THE GROUNDS RAISED BY THE APPELLANT BEFORE IT. THUS, IT IS SUBMITTED THAT THE OBSERVATION MADE BY THE CIT(A) IN THE IMPU GNED ORDER IS BAD IN LAW AND IS THEREFORE LIABLE TO BE SET ASIDE ON THIS GROUND ALONE. GROUND NO. 3; 3.1 THE APPELLANTS STATE THAT ABOVE GROUNDS ARE TAKEN WITHOUT PREJUDICE TO EACH OTHER. THE APPELLANTS CRAVE LEAVE TO ADD, ALTER OR/AND AMEND THE GROUNDS AS AND WHEN REQUIRED, WITH THE PERMISSION OF THIS HON'BLE TRIBUNAL. GROUND NO. 1 (1.1 TO 1.4) 5 . TH ESE GROUND RAISED BY THE ASSESSEE ARE INTER CONNECTED AND INTER RELATED AND RELATES TO CHALLENGING THE ORDER OF LD. CIT(A) IN DENYING THE BENEFITS PROVIDED U/S 11 TO 13 OF THE ACT IN VIEW OF THE AMENDMENT TO SECTION 2(15) OF THE ACT, W.E.F. 01.04.2009, THEREFORE WE THOUGHT IT FIT TO DISPOSE OF THE SAME BY THIS COMMON ORDER. 7 I.T.A. NO. 4328 & 4330/MUM/2017 MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION 6 . LD. DR APPEARING ON BEHALF OF THE DEPARTMENT SUBMITTED BEFORE US THAT THIS GROUND IS COVERED BY THE ORDER OF HONBLE ITAT IN ITA NO. 6552/MUM/17 FOR AY 2011 - 12 IN ASSESSEES OWN CASE, WHEREIN THE IDENTICAL GROUND RAISED IN THE PRESENT APPEAL HAS ALREADY BEEN DECIDED ON MERITS. 7 . WE HAVE HEARD LD. DR AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS THE ORDERS PASSED BY REVENUE AUTHORITIES. WE FIND THAT THE IDENTICAL GROUND HAS ALREADY BEEN DECIDED BY THE COORDINATE BENCH OF HONBLE ITAT IN 6552/MUM/17 FOR AY 2011 - 12 IN ASSESSEES OWN CASE , WHICH IS C ONTAINED IN PARA NO. 8 TO 29 OF THE ORDER OF TRIBUNAL. THE OPERATIVE PORTION OF THE ORDER OF ITAT IS CONTAINED IN PARA NO. 26 TO 29, WHICH IS REPRODUCED BELOW: - 26. NOW, LET US DISCUSS ABOUT THE FACTS PREVAILING IN THE CASE UNDER CONSIDERATION. WHEN THE ASSESSEE CORPORATION WAS ORIGINALLY INCORPORATED, THE ACTIVITY OF PROMOTION OF INDUSTRIALIZATION ALL OVER THE STATE OF MAHARASHTRA SHOULD HAVE BEEN THE AVOWED OBJECTIVE OF THE STATE GOVERNMENT. HITHERTO, THE RELEVANT ACTIVITIES 8 I.T.A. NO. 4328 & 4330/MUM/2017 MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION WERE CARRIED OUT THROUGH A B OARD AND SUBSEQUENTLY, IT SHOULD HAVE BEEN DECIDED TO FORM A SEPARATE AUTONOMOUS BODY OR STATUTORY CORPORATION TO CARRY OUT OR ACCELERATE THE PROCESS OF INDUSTRIALIZATION BY DEVELOPING INDUSTRIAL ESTATES. ACCORDINGLY, MID ACT WAS ENACTED AND THE ASSESSEE C ORPORATION WAS INCORPORATED UNDER THAT ACT. AT THAT POINT OF TIME, THE ASSESSEE CORPORATION WAS ENJOYING MONOPOLY, I.E., IT WAS THE ONLY ORGANISATION INVOLVED IN ORDERLY DEVELOPMENT OF INDUSTRIAL ESTATES. AS OBSERVED EARLIER, THE PROFIT MOTIVE SHOULD HAVE BEEN ABSENT AT THAT POINT OF TIME. SINCE, THE INDUSTRIALIZATION BROUGHT IN MANY ECONOMIC BENEFITS, LIKE, DEVELOPMENT OF UNDEVELOPED AREAS, ECONOMIC ACTIVITY, EMPLOYMENT, GENERATION OF FRESH TAXES ETC., IT WAS CONSIDERED TO BE USEFUL TO THE PUBLIC AT LARGE AND HENCE THE ACTIVITIES OF THE ASSESSEE WAS CONSIDERED TO BE AN OBJECT OF GENERAL PUBLIC UTILITY FALLING WITHIN THE DEFINITION OF CHARITABLE PURPOSE AS DEFINED U/S 2(15) OF THE ACT. 27. HOWEVER, WE NOTICE FROM THE CONTENTIONS OF LD D.R, THERE APPEARS TO B E DRASTIC CHANGE IN THE APPROACH OF THE ASSESSEE. IN THE PRESENT DAYS, THE ASSESSEE APPEARS TO BE ADOPTING THE SYSTEM OF OFFERING PLOTS/SPACE BY WAY OF AUCTIONING, OBVIOUSLY THE OBJECT IS TO CORNER MAXIMUM POSSIBLE PRICE ON SALE OF PLOT/SPACE. WE ALSO UN DERSTAND THAT THE GOVERNMENT OF 9 I.T.A. NO. 4328 & 4330/MUM/2017 MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION MAHARASHTRA HAS FRAMED THE MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION (DISPOSAL OF LAND) REGULATIONS, 1975 IN ORDER TO GIVE EFFECT TO THE PROVISIONS OF MID ACT. WE CAME TO UNDERSTAND THAT THE REGULATION PROVIDES FOR DISP OSAL OF LAND COVERED BY THE LAY OUT PREPARED BY THE CORPORATION BY PUBLIC AUCTION OR BY ENTERTAINING INDIVIDUAL APPLICATIONS. THE LD. DR BROUGHT TO OUR NOTICE THE FOLLOWING PAPER REPORT WHICH SUPPORTS THE VIEW THAT THE ASSESSEE HAD ADOPTED THE PRACTICE TO DISPOSE OF LAND BY PUBLIC AUCTION. TWO FLOT AUCTIONS PROMPT MIDC TO MULL CHANGE IN IT PARK POLICY TUSHAR PAWAR, TNN / NOV 5, 2014, 04.08 AM IST NASHIK: TWICE BITTEN, NEVER SHY. THE MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION (MIDC) LOOKS DETERMINED TO MAKE THE IT PARK PROJECT IN ITS AMBAD INDUSTRIAL ESTATE A SUCCESS. AFTER TWO FAILED AUCTION ATTEMPTS, THE MIDC IS PLANNING TO CHANGE THE RESERVATION OF THE IT PARK FOLLOWING POOR RESPONSE FROM THE INDUSTRY. AROUND A DECADE AGO, THE STATE GOVERNMENT HAD SE T UP SEVERAL STATE - OF - THE - ART IT PARKS IN SOME SELECT CITIES ACROSS MAHARASHTRA, INCLUDING THE ONE IN NASHIK. THE IT PARK BUILDING, WHICH WAS BUILT BY MIDC AT RS.2.23 CRORE, WAS INAUGURATED 10 I.T.A. NO. 4328 & 4330/MUM/2017 MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION IN 2002. BUT SINCE THEN, IT HAS BEEN LYING IDLE BECAUSE OF POOR RE SPONSE FROM INDUSTRY. THE MIDC TRIED TO AUCTION THE IT PARK TWICE IN THE PAST ONE - AND - A - HALF YEARS, BUT FAILED MISERABLY AS NOT A SINGLE INDUSTRY FILED ANY BID ON BOTH THE OCCASIONS. SPEAKING TO TOI, A SENIOR MIDC OFFICIAL SAID, THERE IS NO RESPONSE FROM THE INDUSTRY TO THE IT PARK IN THE AMBAD MIDC AREAS. IN MARCH LAST YEAR, WE HAD INVITED BIDS FROM INDUSTRIAL HOUSES FOR THE AUCTION OF SHOPS AT THE IT PARK. BUT WE DID NOT RECEIVE A SINGLE BID. OUR SECOND ATTEMPT WAS IN AUGUST THIS YEAR. THIS TIME, WE HAD REDUCED THE MINIMUM BID RATE BY 10% FROM RS.24,530 PER SQ. M TO RS.22,300 PER SQ. MT KEEPING IN MINDS DEMANDS FROM THE INDUSTRY. NEVERTHELESS, WE DID NOT RECEIVE ANY RESPONSE FROM THE INDUSTRIES. WE ARE NOW PLANNING TO CHANGE THE RESERVATION OF THE IT PAR K AND ALLOT THE SHOPS TO INDUSTRIAL HOUSES FROM OTHER SECTORS. WE ARE PREPARING THE PROPOSAL FOR THE CHANGE OF IT RESERVATION OF THE PARK, WHICH WILL BE SENT SHORTLY TO OUR HEAD OFFICE IN MUMBAI FOR APPROVAL. THIS NEWS PAPER REPORT WOULD SHOW THAT THE PO LICY OF NO PROFIT NO LOSS HAS BEEN GIVEN A GO - BY BY THE ASSESSEE. FURTHER, AS SUBMITTED BY LD D.R, THE ASSESSEE 11 I.T.A. NO. 4328 & 4330/MUM/2017 MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION HAS ALSO LOST IS MONOPOLY IN THIS FIELD AND THE PRIVATE ENTREPRENEURS ARE ALSO NOWADAYS ALLOWED TO DEVELOP INDUSTRIAL ESTATES. THE PRESENT DAY SCENARIO WOULD SHOW THAT THE PRIVATE ENTREPRENEURS ARE DEVELOPING MANY SPECIAL ECONOMIC ZONES ALL OVER THE COUNTRY. HENCE, IN THE PRESENT DAY SCENARIO, THE ACTIVITIES OF THE ASSESSEE AND THE PRIVATE ENTREPRENEURS STAND ON SAME FOOTING. THERE CANNOT BE ANY DISPUTE THAT THE ACTIVITY OF SETTING UP/DEVELOPING INDUSTRIAL ESTATES AND MAINTAINING THE INFRASTRUCTURE FACILITIES BY THE PRIVATE ENTREPRENEURS IS CONSIDERED AS BUSINESS ACTIVITY. SINCE THE ACTIVITY CARRIED ON BY THE ASSESSEE IS NO DIFFERENT FROM THAT ONE CARRIED ON BY THE PRIVATE ENTREPRENEURS, IN OUR VIEW, THE ACTIVITY CARRIED ON BY THE ASSESSEE SHOULD ALSO BE CONSIDERED TO BE BUSINESS ACTIVITY ONLY. HENCE, THE ACTIVITY CARRIED ON BY THE ASSESSEE, IN OUR VIEW, WOULD BE HIT BY THE PROVISO TO SEC. 2(1 5) OF THE ACT. 28. THE LD A.R INVITED OUR ATTENTION TO THE VARIOUS PROVISIONS OF MID ACT TO CONTEND THAT THE ASSESSEE IS CARRYING ON ITS OPERATIONS IN ACCORDANCE WITH THE DIRECTIONS ISSUED BY THE STATE GOVERNMENT. HE FURTHER SUBMITTED THAT THE LANDS VESTED WITH THE ASSESSEE CAN ALSO BE TAKEN BACK BY THE STATE GOVERNMENT. ACCORDINGLY HE CONTENDED THAT THE ACTIVITIES OF THE ASSESSEE CANNOT BE CONSIDERED TO BE A BUSINESS ACTIVITY, 12 I.T.A. NO. 4328 & 4330/MUM/2017 MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION SINCE IT IS ACTING IN ACCORDANCE WITH THE DIRECTIONS ISSUED BY THE STATE GOVERN MENT. IN OUR VIEW, THE CONTROL OR DIRECTIONS ISSUED BY THE STATE GOVERNMENT WOULD NOT CHANGE THE CHARACTER OF BUSINESS ACTIVITY. WE ARE OF THE VIEW THAT THE ACTIVITY CARRIED ON BY THE ASSESSEE SHOULD BE EXAMINED INDEPENDENTLY AND THE FACT THAT THE ASSESS EE IS BEING REGULATED BY THE STATE GOVERNMENT WOULD NOT MAKE ANY DIFFERENCE. IN OUR VIEW OWNERSHIP OF THE CORPORATION AND ACTIVITIES OF THE CORPORATION ARE TWO DIFFERENT ASPECTS AND THE OWNERSHIP CANNOT BE CONSIDERED OR TAKEN INTO ACCOUNT TO DETERMINE THE CHARACTER OR NATURE OF THE ACTIVITIES CARRIED ON BY THE CORPORATION. 29. IN VIEW OF THE FOREGOING DISCUSSIONS, WE AGREE WITH THE LD CIT(A) IN HOLDING THAT THE ACTIVITIES OF THE ASSESSEE ARE COMMERCIAL IN NATURE AND HENCE WOULD BE HIT BY THE PROVISO TO SEC. 2(15) OF THE ACT. T HEREFORE , RESPECTFULLY FOLLOWING THE DECISION OF THE COORDINATE BENCH OF HONBLE ITAT AND IN ORDER TO MAINTAIN JUDICIAL CONSISTENCY , WE APPLY THE SAME FINDINGS IN THE PRESENT 13 I.T.A. NO. 4328 & 4330/MUM/2017 MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION CASE WHICH ARE APPLICABLE MUTATIS MUTANDIS . RESULTANTLY THIS GROUND RAISED BY THE ASSESSEE STANDS DISMISSED. GROUND NO. 2 8. THIS GROUND RAISED BY THE ASSESSEE RELATES TO CHALLENGING THE ORDER OF LD. CIT(A) IN DENYING OF CARRY FORWARD OF DEFICIT TO BE SET OFF AGAINST THE FUTURE SURPLUS ON THE GROUND THAT THE ASSESSEES INCOME HAS TO BE COMPUTED IN COMMERCIAL MANNER. 9. LD. DR APPEARING ON BEHALF OF THE DEPARTMENT SUBMITTED BEFORE US THAT THIS GROUND IS COVERE D BY THE ORDER OF HONBLE ITAT IN ITA NO. 6552/MUM/17 FOR AY 2011 - 12 IN ASSESSEES OWN CASE, WHEREIN THE IDENTICAL GROUND RAISED IN THE PRESENT APPEAL HAS ALREADY BEEN DECIDED ON MERITS. 10 . WE HAVE HEARD LD. DR AND WE HAVE ALSO PERUSED THE MATERIAL PLAC ED ON RECORD AS WELL AS THE ORDERS PASSED BY REVENUE AUTHORITIES. WE FIND THAT THE IDENTICAL GROUND HAS ALREADY BEEN DECIDED BY THE COORDINATE BENCH OF HONBLE ITAT IN 6552/MUM/17 FOR AY 2011 - 12 IN ASSESSEES OWN CASE , WHICH IS 14 I.T.A. NO. 4328 & 4330/MUM/2017 MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION CONTAINED IN PARA NO. 34 OF THE ORDER OF TRIBUNAL AND THE SAME IS REPRODUCED BELOW: - 34. THE NEXT ISSUE RELATES TO THE CLAIM FOR DEDUCTION OF BROUGHT FORWARD DEFICIT COMPUTED U/S 11 OF THE ACT. THE LD CIT(A) HELD THAT THE SAME IS NOT ALLOWABLE AS DEDUCTION, SINCE THE ASSESSEES INCO ME IS COMPUTED IN COMMERCIAL MANNER, SINCE THE PROVISIONS OF THE ACT DO NOT ALLOW SUCH KIND OF DEDUCTION. THOUGH THE LD A.R PLACED RELIANCE ON CERTAIN CASE LAW IN THIS REGARD, YET WE NOTICE THAT THEY WERE RENDERED IN THE CONTEXT OF THE COMPUTATION OF INC OME U/S 11 OF THE ACT. SINCE THE INCOME OF THE ASSESSEE IS REQUIRED TO BE COMPUTED UNDER NORMAL PROVISIONS OF THE ACT FOR THE YEAR UNDER CONSIDERATION, SINCE IT IS COVERED BY THE PROVISO TO SEC. 2(15) OF THE ACT, WE ARE IN AGREEMENT WITH THE VIEW EXPRESSED BY LD CIT(A) ON THIS ISSUE. T HEREFORE , RESPECTFULLY FOLLOWING THE DECISION OF THE COORDINATE BENCH OF HONBLE ITAT AND IN ORDER TO MAINTAIN JUDICIAL CONSISTENCY , WE APPLY THE SAME FINDINGS IN THE PRESENT CASE WHICH ARE APPLICABLE MUTATIS MUTANDIS . RESULTANTLY THIS GROUND RAISED BY THE ASSESSEE STANDS DISMISSED . 15 I.T.A. NO. 4328 & 4330/MUM/2017 MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION GROUND NO. 3. 11. THIS GROUND RAISED BY THE ASSESSEE IS GENERAL IN NATURE, THUS REQUIRES NO SPECIFIC ADJUDICATION. N OW WE TAKE UP ITA NO. 4330/MUM/2017 FILED BY ASSESSEE . 12 . SINCE WE HAVE ALREADY DE CIDED THE APPEAL FIL ED BY ASSESSEE IN ITA NO. 4328/MUM/2017 AND DISMISSED THE SAME ON MERITS . THEREFORE FOLLOWING OUR OWN DECISION IN ITA NO. 4328/MUM/2017 , WE APPLY THE SAME FINDINGS IN ORDER TO MAINTAIN JUDICIAL CONSISTENCY WHICH IS APPLICABLE MUTATIS M UTANDIS IN THE PRESENT APPEAL OF THE ASSESSEE . 13 . IN THE NET RESULT , BOTH THE APPEAL S FILED BY THE ASSESSEE STANDS DISMISSED WITH NO ORDER AS TO COST . ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH FEB , 20 1 9 SD/ - SD/ - ( SHAMIM YAHYA ) (SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 06 .02 .201 9 SR.PS . DHANANJAY 16 I.T.A. NO. 4328 & 4330/MUM/2017 MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION / 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 I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI