HARISH M AGGARWAL, THANE V. ASST CIT CIR 1, THANE

ITA 4446/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0388 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-06-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 11-05-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 27-07-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: M C OMI NINGSHAN
• Assessee Lawyers: D D ANJARIA
• Section: 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH , JM AND SHRI RAJESH KUMAR, AM ITA NO. 4446 / MUM/ 20 1 5 ( / ASSESSMENT YEAR: 20 11 - 12 ) SHRI HARISH M AGGARWAL, AGG ARWAL ESTATE, CHITALSAR MANPADA, S V ROAD, THANE - 400610 / VS. THE ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE - 1, THANE ( / APPELLANT) : ( / RESPONDENT ) ./ PAN : AAOPA2367G ( / APPELLANT) : ( / RE SPONDENT ) / A SSESSEE BY : SHRI D D ANJARIA /R EVENUE BY : SHRI M C OMI NINGSHAN / DATE OF HEARING : 11 .5. 2017 / DATE OF PRONOUNCEMENT : 7. 6 . 201 7 / O R D E R PER RAJESH KUMA R, A. M: BY WAY OF THIS APPEAL THE ASSESSEE IS CHALLENGING THE ORDER OF LD.CIT(A) - 1, THANE DATED 30.4.2015 FOR THE ASSESSMENT YEAR 201 1 - 12 . 2. GROUNDS OF APPEAL TAKEN BY THE ASSESSEE ARE AS UNDER : (1) THE LD.CIT(A) HAS ERRED IN FACT AND IN LAW IN NOT ALLOWING T HE DE D U C TION U/S 80IB(10) AS PER JUDICIAL HIERARCHY, THE ORDER OF THE HONBLE ITAT. (2) THE ASSESSEE CRAVE LEAVE TO ADD, ALTER OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL. 2 ITA NO 4446 /MUM/201 5 3. THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSI NESS OF CONSTRUCTION AND DEVELOPMENT OF PROPERTIES. DURING THE YEAR THE ASSESSEE FILED RETURN OF INCOME ON 28.9.2011 DECLARING TOTAL INCOME AT RS.69,74,150/ - . THE ASSESSEE CLAIMED DEDUCTION U/S 80IB(10) OF THE INCOME TAX ACT, 1961 TO THE TUNE OF RS.57,95, 367/ - . THE AO REJECTED THE CLAIM OF THE ASSESSEE AND ADDED RS.57,95,367/ - TO THE TOTAL INCOME BY FRAMING ASSESSMENT U/S 143(3) OF THE ACT VIDE ORDER DATED 7.3.2014 FOR THE REASON THAT PROJECT HAS BEEN APPROVED PRIOR TO 1.10.1998. 4. THE AGGRIEVED ASSESS EE FILED APPEAL BEFORE CIT(A) WHO ALLOWED THE APPEAL OF THE ASSESSEE BY FOLLOWING THE ORDER OF ITAT IN EARLIER YEAR. THE OPERATIVE PART OF CIT(A) IS ENCLOSED BELOW: 5.1 IN THE PRESENT APPEAL, IT IS CLAIMED THAT THE IDENTICAL ISSUE IS INVOLVED AND THE IN COME FROM SALE OF FLATS ALSO, RELATE TO THE PROJECT I.E. F1. F2 AND G, WHICH HAVE BEEN APPROVED AND QUALIFIED FOR DEDUCTION U/S 80IB(10) OF THE ACT, IN VIEW OF THE DECISION OF THE HONBLE ITAT AS ABOVE. THE CONTENTION OF THE APPELLANT HAS BEEN EXAMINED AND FOUND TO BE IN ORDER. THE HONBLE ITAT HAW DEALT THE ISSUE IN DETAIL AND ALSO QUOTED THE DETAILED FINDING OF THE THEN CIT(A), FOR BOTH THE YEARS I.E. 2005 - 06 & 2009 - 10, IN ITS ORDER, WHILE GRANTING RELIEF TO THE APPELLANT. AS PER JUDICIAL HIERARCHY, T HE ORDER OF THE HONBLE ITAI IS BINDING ON ME. THE AO IS THEREFORE, DIRECTED TO ALLOW THE CLAIM OF THE APPELLANT, ACCORDINGLY, AFTER VERIFYING TILE FACTS THAT THE INCOME HAS BEEN GENERATED FROM THE SALE OF FLATS FROM THE PROJECT WHICH QUALIFY AND SATISFY T HE CONDITIONS. SUCH AS SIZE OF FLAT SOLD ETC, AS LAID DOWN, FOR CLAIMING DEDUCTION U/S 80IB(10) OF THE ACT. THIS GROUND OF APPEAL, IS THEREFORE DECIDED, ACCORDINGLY 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL PLACED BEFORE US INCLUDING THE IMPUGNED ORDERS . WE FIND THAT THE DEDUCTION U/S 80IB(10) ON IDENTICAL FACTS HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY 3 ITA NO 4446 /MUM/201 5 THE TRIBUNAL IN EARLIER YEARS IN THE APPEAL OF THE ASSESSEE. W E FIND THAT THE LD.CIT(A) HAS ALREADY ALLOWED THE APPEAL OF THE AS SESSEE BY FOLLOWING THE DECISION OF TRIBUNAL IN ASSESSEES OWN CASE IN EARLIER YEAR. WE DO NOT FIND MERIT IN THE ARGUMENT OF THE LD.AR THAT THE LD.CIT(A) HAS GIVEN VERY LIMITED DIRECTION TO THE AO TO VERI F Y THE FACTS THAT THE INCOME OF THE ASSESSEE IS GENERATED FROM SALE OF FLATS WHICH SATISFIED NECESSARY CONDITIONS AS LAID DOWN IN SECTION 80IB(10) OF THE ACT. THE ORDER OF FAA WHICH IS MADE AFTER FOLLOWING THE TRIBUNAL DECISION IN ASSESSEES OWN CASE NEEDS NO INTERFERENCE. ACCORDINGLY, WE UPHOLD THE O RDER OF LD.CIT(A). RESULTANTLY THE APPEAL OF THE ASSESSEE STANDS DISMISSED. 6 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 7TH JUNE , 2017. SD SD ( MAHAVIR SINGH ) (RAJESH KUMAR) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 7TH JUNE, 2017 SRL,SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / TH E APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, TRUE COPY / (DY./ASSTT. REGISTRAR ) , / ITAT, MUMBAI