HAWARE ENGINEERS & BUILDERS P.LTD, NAVI MUMBAI V. ACIT 29, MUMBAI

ITA 4588/MUM/2013

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9336 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 09-03-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 11-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: JEETENDRA KUMAR
• Assessee Lawyers: S K MUTSADDI; RUTURAJ HARIVIJAY GURJAR
• Keywords: Question of law

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUM BAI , , BEFORE SHRI JOGINDER SINGH, J.M. AND SHRI SANJAY A RORA, A.M. ./ I.T.A. NO. 4588/MUM/2013 ( / ASSESSMENT YEAR: 2010-11) HAWARE ENGINEERS & BUILDERS PVT. LTD. 413/416 VARDHAMAN MARKET, SECTOR-17, DBC, VASHI, NAVI MUMBAI-400 705 / VS. ASST. CIT-29, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI-400 020 ./! ./PAN/GIR NO. AAACH 2577 C (ASSESSEE) : (REVENUE) & ./ I.T.A. NO. 5032/MUM/2013 ( / ASSESSMENT YEAR: 2010-11) ASST. CIT-29, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI-400 020 / VS. HAWARE ENGINEERS & BUILDERS PVT. LTD. 413/416 VARDHAMAN MARKET, SECTOR-17, DBC, VASHI, NAVI MUMBAI-400 705 ./! ./PAN/GIR NO. AAACH 2577 C (REVENUE) : (ASSESSEE) ASSESSEE BY : SHRI S. K. MUTSADDI & SHRI RUTURAJ HARIVIJAY GURJAR REVENUE BY : SHRI JEETENDRA KUMAR ' #$% & '( / DATE OF HEARING : 09.03.2015 DATE OF PRONOUNCEMENT : 13.03.2015 ) / O R D E R PER SANJAY ARORA, A. M.: THESE ARE CROSS APPEALS, I.E., BY THE ASSESSEE AND THE REVENUE, AGITATING THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-40, MUM BAI (CIT(A) FOR SHORT) DATED 17.04.2013, PARTLY ALLOWING THE ASSESSEES APPEAL C ONTESTING ITS ASSESSMENT U/S.143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FO R THE ASSESSMENT YEAR (A.Y.) 2010-11 VIDE ORDER DATED 22.02.2013. 2 ITA NO. 4588/MUM/2013 (A.Y. 2010-11) HAWARE ENGINEERS & BUILDERS PVT. LTD. VS. ASST. CIT 2. AT THE VERY OUTSET, IT WAS SUBMITTED BY THE LD. AUTHORIZED REPRESENTATIVE (AR), THE ASSESSEES COUNSEL, THAT THE ASSESSEE WISHES TO WIT HDRAW ITS APPEAL, WHEREBY IT HAD CHALLENGED THE DISALLOWANCE OF DEDUCTION U/S.80-IB( 10) OF THE ACT ON SOME OF THE PROJECTS; THE ASSESSEE BEING A BUILDER AND DEVELOPE R OF REAL ESTATE, AT A HIGHER AMOUNT THAN THAT CLAIMED PER THE RETURN OF INCOME, I.E., AT RS. 369.26 LACS. ON BEING ENQUIRED FOR THE REASON FOR A HIGHER, SUBSEQUENT CLAIM, I.E., AT RS. 423.64 LACS, MADE DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AND WHICH WAS DENIED BY THE REVENUE FOR THE REASON OF IT BEING NOT MADE EITHER PER THE RETURN OF INCOME OR THE REV ISED RETURN OF INCOME FOLLOWING THE DECISION BY THE APEX COURT IN GOETZE (INDIA) LTD. VS. CIT [2006] 284 ITR 323 (SC), IT WAS EXPLAINED BY HIM THAT THE ASSESSEE HAD PER THE RETU RN CLAIMED DEDUCTION BY SET OFF OF LOSSES FROM THE OTHER ELIGIBLE OR NON-ELIGIBLE PROJ ECTS. TO THIS, IT WAS OBSERVED BY THE BENCH THAT THE SAME IS WELL SETTLED IN-AS-MUCH AS T HE DEDUCTION U/S.80-IB(10) OR ANY OTHER INCOME BASED INCENTIVE PROVISION FALLING UNDE R CHAPTER VI-A OF THE ACT, IS, IN VIEW OF SECTION 80-A AND 80-AB, ONLY ON THE AMOUNT OF TH E ELIGIBLE INCOME AS INCLUDED IN THE GROSS TOTAL INCOME. THAT, IN FACT, IS ALSO THE MAND ATE OF THE SECTION. THE MATTER IS IN FACT NO LONGER RES INTGRA , HAVING BEEN DECIDED BY THE APEX COURT PER ITS DEC ISION AS IN THE CASE OF SYNCO INDUSTRIES LTD. VS. ASSESSING OFFICER [2002] 254 ITR 608 (BOM), SINCE APPROVED BY THE APEX COURT AT [2008] 299 ITR 444 (SC), BEING ONLY IN LINE WITH A SERIES OF DECISIONS BY THE APEX COURT, AS IN THE CASE OF CIT VS. KOTAGIRI INDUSTRIAL CO-OPERATIVE TEA FACTORY LTD. [1997] 224 ITR 604 (SC), WHICH POSITION WAS IN FACT CONCEDED TO BY THE LD. AR. AS SUCH, EVEN AS THE ASSESSEE ITSELF SEEKS TO WITHDRAW ITS APPEAL, WE FIND NO MERIT IN ITS CASE; THE DEDUCTION CLAIMED PER ITS RE TURN BEING IN CONFORMITY WITH THE SETTLED LAW. WE DECIDE ACCORDINGLY, DISMISSING THE ASSESSEE S SOLE GROUND OF APPEAL. 3. COMING TO THE REVENUES APPEAL, THE SOLE BASIS O F ITS CHALLENGE IS THAT THE (COMBINED) ORDER DATED 04.05.2012 BY THE TRIBUNAL F OR A.YS. 2005-06 (IN ITA NO. 393 OF 2009) AND 2006-07 (IN ITA NO. 685 OF 2010), CONFIRM ING THE DEDUCTION U/S.80-IB(10) IN RESPECT OF PROJECTS COMPRISING BALAJI TOWERS, SILIC ON TOWERS, KAVERI, PANCHAVATI, VRINDAVAN & TULSI, HAS NOT BEEN ACCEPTED BY THE REV ENUE AND STANDS APPEALED AGAINST 3 ITA NO. 4588/MUM/2013 (A.Y. 2010-11) HAWARE ENGINEERS & BUILDERS PVT. LTD. VS. ASST. CIT BEFORE THE HONBLE JURISDICTIONAL HIGH COURT U/S.26 0A OF THE ACT. THE GROUND ASSUMED BY THE REVENUE IS MISCONCEIVED IN-AS-MUCH AS THE SAME COULD NOT BY ITSELF CONSTITUTE A GROUND FOR CHALLENGE. IF THE TRIBUNALS ORDER, WHIC H IS BINDING ON THE REVENUE, IS REVERSED OR MODIFIED, TO WHATEVER EXTENT, THE ASSESSMENT WOU LD STAND TO BE REVISED ACCORDINGLY. IN FACT, THE LD. AR WOULD DURING HEARING, FURNISH THE COPIES OF THE ORDERS BY THE HONBLE HIGH COURT, BEING IN ITA NO. 164 OF 2013 DATED 09.01.201 5 (FOR A.Y. 2005-06) AND IN ITA NO. 1668 OF 2012 DATED 04.12.2014 (FOR A.Y. 2006-07), D ISMISSING THE REVENUES APPEAL AS NOT RAISING ANY SUBSTANTIAL QUESTION OF LAW. WE HAV E PERUSED THE SAID ORDERS. WE DO NOT FIND ALL THE PROJECTS AS STATED BY THE ASSESSEE VID E ITS PAPER-BOOK (PARTICULARS SECTION) IN THE ORDERS BY THE HONBLE HIGH COURT, WHICH REFER O NLY TO TULSI AND VRINDAVAN PROJECTS; RATHER, STATING THE FORMER TO BE AN EXTENSION OF TH E LATTER. FURTHER, THE ASSESSEE ITSELF HAS EXCLUDED IN ITS NARRATION (TO PB PGS. 132-135) THE PROJECTS KAMOTHE PHASE I, PHASE II AND PHASE III FROM THE LIST OF THE ELIGIBLE PROJECTS, E VEN AS THE INCOME FROM THE KAMOTHE PHASE I AND III PROJECTS IS INCLUDED IN THE LIST OF THE PROJECTS FOR WHICH DEDUCTION U/S.80- IB(10) STANDS CLAIMED FOR THE CURRENT YEAR (REFER P ARA 3 AND PARA 4.2 OF THE ASSESSMENT AND THE IMPUGNED ORDER RESPECTIVELY). WE HAVE, HOWE VER, CLARIFIED THAT INDEPENDENT OF THE ORDERS BY THE HONBLE HIGH COURT, THE REVENUES CONTENTION IS NOT MAINTAINABLE IN-AS- MUCH AS IT IS BOUND BY THE ORDER BY THE TRIBUNAL, U NLESS OF-COURSE IT STANDS MODIFIED, WHICH IS IN FACT NOT THE CASE. SO HOWEVER, THE TRIB UNALS ORDER SUPRA FOR A.YS. 2005-06 AND 2006-07 ALSO DOES NOT MENTION THE PROJECTS KAMO THE PHASE I, II AND III. NO DOUBT, THE TRIBUNAL FOR THE SUBSEQUENT YEARS HAS ALLOWED D EDUCTION FOR THE SAID PROJECTS AS WELL. WE HAVE PERUSED THE SAID ORDERS, BEING FOR A.YS. 20 08-09 AND 2009-10 (PB PGS. 1-5) AND FOR A.Y. 2007-08 (PB PGS. 6-8). THE SAME DO NOT ISS UE ANY PROJECT-WISE FINDING, AND ARE IN FACT RENDERED ONLY FOLLOWING THE ORDER BY THE TR IBUNAL FOR A.YS. 2005-06 AND 2006-07. NO ARGUMENT QUA THE SAID PROJECTS WAS ALSO RAISED BEFORE US BY EIT HER PARTY. UNDER THE CIRCUMSTANCES, WE ONLY CONSIDER IT FIT AN D PROPER TO, WHILE UPHOLDING THE ASSESSEES CLAIM FOR DEDUCTION U/S.80-IB(10) FO R ALL OTHER PROJECTS, RESTORE THE MATTER BACK TO THE FILE OF THE A.O. FOR DECIDING THE ELIGI BILITY OF THE ASSESSEES CLAIM FOR THE SAID DEDUCTION ON THE KAMOTHE PHASE I, II AND III PROJEC TS, I.E., IN LINE AND IN CONFORMITY WITH 4 ITA NO. 4588/MUM/2013 (A.Y. 2010-11) HAWARE ENGINEERS & BUILDERS PVT. LTD. VS. ASST. CIT THE DECISION BY THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR A.YS. 2005-06 AND 2006-07, WHICH HAS SINCE ATTAINED FINALITY. WE DECIDE ACCORD INGLY. 4. IN THE RESULT, THE ASSESSEES APPEAL IS DISMISSE D AND THE REVENUES APPEAL IS DISPOSED OF ON THE AFORESAID TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON MARCH 13, 201 5 SD/- SD/- (JOGINDER SINGH) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER ' *% MUMBAI; +# DATED : 13.03.2015 $.#. ./ ROSHANI , SR. PS !' # $%&' (!'% / COPY OF THE ORDER FORWARDED TO : 1. , / THE APPELLANT 2. -. , / THE RESPONDENT 3. ' /' ( ) / THE CIT(A) 4. ' /' / CIT - CONCERNED 5. 2$3 -'#4 , ( 46 , ' *% / DR, ITAT, MUMBAI 6. 78 9% / GUARD FILE !' ) / BY ORDER, */)+ , (DY./ASSTT. REGISTRAR) , ' *% / ITAT, MUMBAI