YASH DEVELOPERS, MUMBAI V. ITO 24(2)-4, MUMBAI

ITA 4615/MUM/2010

• Counselvise Citation: 461519914 RSA 2010
• Duration Of Justice: 1 year(s) 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2005-2006
• Appeal Filed On: 03-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K NAYAK
• Assessee Lawyers: S C TIWARI
• Keywords: Tangible material; Difference of opinion; Revised return; Change of opinion
• Section: 139(5); 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH GMUMBAI BEFORE SHRI J.SUDHAKAR REDDY(AM) AND SMT. ASHA VIJAYARAGHAVAN (JM) ITA NOS.4615 & 4616/MUM/2010 ASSESSMENT YEARS 2005-2006 & 2006-2007 M/S.YASH DEVELOPERS 101/3, KEDIA CHAMBERS S.V.ROAD, MALAD (WEST) MUMBAI 400 064 PAN : AAAFY2928B. VS. THE INCOME TAX OFFICER WARD 24(2)-4 MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.C.TIWARI RESPONDENT BY : SHRI A.K.NAYAK O R D E R DATE OF HEARING : 12.7.2011 DATE OF PRONOUNCEMENT : 29 TH JULY, 2011 PER ASHA VIJAYARAGHAVAN (JM) THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER DATED 30.3.2010 PASSED BY THE LD. CIT(A)-34 FOR THE ASSESSMENT YEARS 2005- 06 & 2006-07. 2. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF DEVE LOPING REAL ESTATE. DURING THE RELEVANT PREVIOUS YEAR, THE APPELLANT WAS ENGAGED IN THE CONSTRUCTION AND SALE OF ITS HOUSING PROJECTS IN TH E NAME OF APNAGHAR COMPLEX AT GHODBUNDER VILLAGE. ACCORDING TO THE A SSESSEE, IT IS ELIGIBLE DURING THE YEAR 2005-06 AND 2006-07 FOR DEDUCTION U /S. 80IB(10) OF THE ACT IN RESPECT OF THE HOUSING PROJECT. SIMILAR CLAIM O F DEDUCTION U/S. 80-IB(10) HAD BEEN MADE BY THE ASSESSEE IN THE EARLIER ASSESS MENT YEARS 2003-04 AND 2005-05. THERE IS NO CHANGE IN THE FACTS OF THE BU SINESS OF THE ASSESSEE FROM IMMEDIATELY PRECEDING ASSESSMENT YEARS. ITA NOS 4615 & 16/M/10 2 DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR ASS ESSMENT YEAR 2005-06 THE APPELLANT SUBMITTED TO THE LEARNED ASSESSING OFFICER A NOTE IN SUPPORT OF ITS CLAIM OF DEDUCTION U/S.80- IB(10) AND FILED NECESSARY DETAILS IN SUPPORT OF THE CLAIM OF DEDUCT ION. IT WAS POINTED OUT THAT THE APPELLANT HAS CONSTRUCTED BY WAY OF AM ENITIES TO THE RESIDENTS OF THE APPELLANTS PROJECT CERTAIN SHOPS ALSO. SUCH SHOPS HAVE BEEN CONSTRUCTED IN ACCORDANCE WITH THE BUILDING PL AN APPROVED BY MIRA BHAYANDAR MUNICIPAL PARISHAD AS A HOUSING PROJ ECT ONLY. IN OTHER WORDS, THE APPELLANTS PROJECT IS PREDOMINANTLY A R ESIDENTIAL HOUSING PROJECT WHICH HAS REMAINED SO IN SPITE OF CONSTRUCT ION OF A FEW SHOPS IN THE RESIDENTIAL BUILDING PREMISES BY WAY OF AMEN ITIES TO THE RESIDENTS OF THE BUILDINGS. HOWEVER, IN THE IMPUGNED ASSESSMENT ORDER LEARNED A SSESSING OFFICER HAS REFERRED TO THE FACT THAT THE APPELLANT HAS CONSTRUCTED SHOPS WITH THE AGGREGATE BUILT-UP AREA OF 3382 SQ.F T. IN THE BUILDINGS OF YADHISHTRA, BHIM AND KRISHNA WITH APPROVAL FROM MIRA BHAYANDAR MUNICIPAL PARISHAD. ACCORDING TO HIM THE APPELLANT THUS VIOLATED THE CONDITION LAID DOWN AS PER CLAUSE (D) OF SUB-SECTIO N 10 OF SECTION 80-IB THAT THE AGGREGATE AREA IN THE HOUSING PROJECT SHOU LD NOT EXCEED 2000 SQ.FT. ACCORDING TO LEARNED ASSESSING OFFICER IN TH E IMPUGNED ORDER THE APPELLANT IS REQUIRED TO FULFILL ALL THE CONDITIONS OF SECTION 80-IB(10) SO AS TO AVAIL EXEMPTION FROM TAX. NON-FULFILLMENT OF A SINGLE CONDITION SHALL DISENTITLE THE ASSESSEE FROM ITS CLAIM OF EXE MPTION FROM TAX. THUS THE LEARNED ASSESSING OFFICER DOES NOT DISPUTE THAT THE APPELLANT FULFILLS ALL OTHER CONDITIONS REQUIRED FOR THE APPELLANT TO AVAIL DEDUCTION U/S.80- IB(10). HIS OBJECTION IS CONFINED TO THE PROVISIONS OF CLAUSE (D) OF SUB- SECTION (10) OF SECTION 80-IB. 3. AGGRIEVED BY THE ORDER OF THE AO, ASSESSEE PREFE RRED AND APPEAL BEFORE THE LD. CIT(A). BEFORE THE LD. CIT(A), THE ASSESSEE RAISED THE FOLLOWING GROUNDS: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW THE AO HAS ERRED IN HOLDING THAT THE CON DITION LAID DOWN BY CLAUSE (D) OF SUB-SECTION (10) OF SECT ION 80- IB IS APPLICABLE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE AO HAS ERRED IN HOLDING THAT THE CONDITIONS LAID DOWN BY CLAUSE (D) OF SUB-SECTION (10) OF SEC. 80-IB IS APPLICABLE IN THE CASE OF THE APPELLANT FOR A.Y. 20 05-06. ITA NOS 4615 & 16/M/10 3 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE AO HAS ERRED IN HOLDING THAT THE APPELLANT HAS FAILED TO SATISFY THE CONDITIONS LAID DOWN BY CLAU SE (D) OF SUB-SECTION (10) OF SEC. 80-IB IN RELATION TO THE EN TIRE HOUSING PROJECT. 4. THE AOS ORDER BEING CONTRARY TO LAW, EVIDENCE A ND FACTS OF THE CASE SHOULD BE SET ASIDE, AMENDED OR MODIFIE D IN THE LIGHT OF THE GROUNDS DEDUCED ABOVE. 4. FURTHER FOR THE A.Y. 2005-06, THE ASSESSEE CHALL ENGED RE-OPENING OF ASSESSMENT U/S. 147. THE FACTS ARE AS FOLLOWS: THE AUTHORIZED REPRESENTATIVE HAS STATED THAT COPY OF REASONS RECORDED WERE PROVIDED TO THE APPELLANT. AS PER THOSE REASONS, IT WAS NOTICED BY THE ASSESSING OFFICER IN ASSESSMENT YEAR 2004-05 THAT THE APPELLANT DOES NOT QUALIFY FO R DEDUCTION U/S.80IB(10) OF THE I.T. ACT BECAUSE APPELLANT DOES NOT FULFILL THE CONDITIONS LAID DOWN IN THAT SECTION. THEREFORE, TH E ASSESSMENT MADE U/S.143(1) WAS REOPENED. IT IS STATED THAT THI S REOPENING WAS NOT BONAFIDE BECAUSE THERE WAS NO MATERIAL ON R ECORD TO FORMULATE THE BELIEF THAT APPELLANT WAS NOT ENTITLE D FOR DEDUCTION U/S. 80IB(10) BECAUSE ENTIRE RELEVANT FAC TS WERE AVAILABLE ON RECORD AT THE TIME OF PROCESSING THE R ETURN U/S.143(1). ALL FACTS WERE MADE AVAILABLE TO THE AS SESSING OFFICER. IT IS FURTHER STATED THAT FOR REOPENING TH E ASSESSMENT, ASSESSING OFFICER SHOULD HAVE MATERIAL IN HIS POSSE SSION WHICH SHOULD HAVE ESCAPED ASSESSMENT. THE APPELLANT HAS RELIED ON VARIOUS CASE LAWS AND A RGUED THAT ISSUE OF NOTICE U/S.148 IS BAD-IN-LAW AND THE ASSESSMENT MADE MAY BE QUASHED. THE ASSESSING OFFICER HAS SUBM ITTED IN HIS REMAND REPORT THAT REOPENING WAS NEVER CHALLENG ED BY THE APPELLANT BEFORE THE ASSESSING OFFICER. THIS ADDITI ONAL GROUND HAS BEEN TAKEN UP IN APPEAL. HE HAS FURTHER STATED THAT THE ITA NOS 4615 & 16/M/10 4 CASE WAS REOPENED ON 11.06.2007 BECAUSE THE APPELLA NT HAD WRONGLY CLAIMED DEDUCTION U/S.80IB OF THE I.T. ACT. ACCORDING TO THE ASSESSING OFFICER REOPENING WAS NO T QUESTIONED BEFORE HIM. THEREFORE, CONTENTION TAKEN NOW CANNOT BE ACCEPTED. FURTHER HE HAS SUBMITTED THAT REOPENING W AS DONE ON A VALID GROUND BECAUSE THE APPELLANT DID NOT QUALIT Y FOR DEDUCTION U/S.80IB(10) OF THE I.T. ACT. AS SUCH THI S GROUND SHOULD BE REJECTED. 5. THE LD. CIT(A) DISMISSED THE GROUND HOLDING AT PARA 4 OF HIS ORDER THAT REOPENING OF THE ASSESSMENT HAS BEEN RIGHTLY D ONE BY THE AO. ON MERITS THE ASSESSEE CHALLENGED THE DISALLOWANCE U/S . 80IB(10) IN BOTH THE ASSESSMENT YEARS I.E. 2005-06 & 2006-07. 6. THE AO OBSERVED THAT THE ASSESSEE HAS NOT FULFIL LED ALL THE CONDITIONS OF SEC. 80IB(10). THEREFORE THE ASSESSEE IS NOT EN TITLED FOR DEDUCTION U/S. 80IB(10). THE AR OF THE ASSESSEE RELIED ON THE DEC ISION OF THE SPECIAL BENCH OF ITAT(PUNE) IN THE CASE OF BRAHMA ASSOCIATES AND ARGUED THAT THE ADDITIONAL GROUNDS OF APPEAL NAMELY ENHANCEMENT OF CLAIM FOR DEDUCTION U/S. 80(IB) IN RESPECT OF INCOME FROM HOUSING PROJEC T AT MIRA BHAYANDAR FROM RS. 51,35,933/- TO THE GROSS TOTAL INCOME OF RS. 55 ,32,793/- SHOULD BE ADMITTED AND DEDUCTION SHOULD BE ALLOWED. IT WAS AL SO POINTED OUT THAT THE SUPREME COURT DECISION IN THE CASE OF GOETZ (INDIA) LTD. VS CIT RELIED BY THE AO IS NOT APPLICABLE ON THE FACTS OF THIS CASE BECA USE THE CLAIM WAS MADE IN THE ORIGINAL RETURN ITSELF. THE COMMENTS OF THE AO WERE CALLED ON THIS ISSUE FOR DEDUCTION U/S. 80IB(10). THE AO HAS SUBMITTED IN ITS REMAND REPORT ON 30.3.2010 AS UNDER: THE ASSESSEE HAS FILED ITS RETURN OF INCOME CLAIMIN G DEDUCTION OF RS.51,35,933/- AND RS.8,93,018/- U/S.80IB(10) OF I.T .ACT FOR A.YRS. 2005-06 & 2006-07 RESPECTIVELY IN RESPECT OF ITS IN COME FROM RESIDENTIAL PORTION OF PROJECT AT MIRA BHAYANDER RO AD. THE ASSESSEE DID ITA NOS 4615 & 16/M/10 5 NOT CLAIM ANY DEDUCTION IN RESPECT OF INCOME FROM S HOP PORTION OF THE PROJECT. FOR A.Y. 2005-06 THE ASSESSEE HAS CHALLENGED THE RE OPENING OF ASSESSMENT AS ADDITIONAL GROUND OF APPEAL. THE CASE WAS REOPENED AFTER PROPERLY RECORDING THE REASONS FOR REOPENING ON 11/06/2007, AS THE ASSESSEE HAD WRONGLY CLAIMED DEDUCTION U/S.80IB OF THE I.T.ACT. ON VERIFICATION OF THE RECORDS, IT IS SEEN THAT THE ASSESSEE NEVER QUESTIONED THE VALIDITY OF REOPENING DURING THE REA SSESSMENT PROCEEDINGS. THEREFORE THE CONTENTION NOW THAT THE CASE SHOULD NOT HAVE BEEN REOPENED CANNOT BE ACCEPTED. EVEN OTHERWI SE THE REOPENING WAS DONE ON A VALID GROUND AND THE ASSESS EE DID NOT QUALIFY FOR DEDUCTION U/S.80IB(10) OF I.T.ACT. THEREFORE, TH E ASSESSEES PLEA CHALLENGING THE REOPENING MAY BE REJECTED. IN THE ADDITIONAL GROUND OF APPEAL FOR A.Y. 2006-07 THE ASSESSEE HAS CLAIMED DEDUCTION U/S.80IB(10) OF I.T.ACT OF RS.3 ,52,260 WITH RESPECT TO ITS INCOME FROM SHOPS CONSTRUCTED IN THE PROJECT IN VIEW OF DECISION OF SPECIAL BENCH IN THE CASE OF BRAHMA AS SOCIATES. AS PER RETURN OF INCOME FILED BY THE ASSESSEE FOR A .Y. 2006-07, THE GROSS TOTAL INCOME AS PER STATEMENT OF INCOME W AS RS.12,45,338/-. THE ASSESSEE CLAIMED DEDUCTION U/S. 80IB(10) OF I.T.ACT OF RS.8,93,018/-. THE CASE WAS SELECTED FOR SCRUTINY AND ORDER U/S.143(3) OF I.T.ACT WAS PASSED ON 29/12/2008. DURI NG THE ASSESSMENT PROCEEDINGS THE ASSESSEE OR ITS REPRESEN TATIVE NEVER REQUESTED FOR ANY ENHANCEMENT FOR CLAIM OF DEDUCTIO N U/S.80IB(10) OF I.T.ACT FROM RS.8,93,018/- TO RS.12,45,338/-. NEITHE R ANY REVISED RETURN WAS FILED BY THE ASSESSEE. AS PER SECTION 139(5) OF I.T.ACT, IF ANY PERSON, HAV ING FURNISHED A RETURN UNDER SECTION (1) OR IN PURSUANC E OF A NOTICE ISSUED UNDER SECTION (1) OF SECTION 142, DISCOVERS ANY OMI SSION OR ANY WRONG STATEMENT HEREIN, HE MAY FURNISH A REVISED RETURN A T ANY TIME BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF THE RELEVANT ASSESSMENT YEAR OR BEFORE THE COMPLETION OF THE ASSESSMENT, WHICHEVER IS EARLIER. IN THIS CASE, THE ASSESSEE HAS NOT FILED ANY REVISED RETURN BEFORE THE EXPIRY OF ONE YEAR FROM END OF THE RELEVANT ASS ESSMENT YEAR OR BEFORE THE COMPLETION OF ASSESSMENT. THEREFORE, THE CLAIM OF THE ASSESSEE FOR ENHANCED DEDUCTION U/S.80IB(10) OF THE I.T.ACT FOR RS.12,45,338/- FOR A.Y. 2006-07 MAY NOT BE ACCEPTED . IN ADDITION TO THIS, WHILE FORWARDING THE REMAND RE PORT, JCIT HAS RELIED ON THE DECISION OF SC IN THE CASE OF GOETZ ( INDIA) LTD. 284 ITR 323 (SC) ACCORDING TO WHICH APPELLANT CANNOT MAKE A CLAIM OTHERWISE THAN WHILE FILING THE RETURN. SINCE THE TIME FOR FI LING THE REVISED RETURN ITA NOS 4615 & 16/M/10 6 IN THIS CASE HAS ALREADY EXPIRED BEFORE APPELLANT H AS MADE THE CLAIM. THEREFORE THE SAME SHOULD NOT BE ALLOWED. 7. THE LD. CIT(A) HELD AS FOLLOWS: I HAVE CAREFULLY CONSIDERED THE FINDING OF THE ASSES SING OFFICER AND SUBMISSIONS OF THE APPELLANT. I HAVE ALSO GONE T HROUGH THE JUDGEMENT OF HONBLE SUPREME COURT FOR BOTH THE YEA RS. THE FACTS OF AFORESAID CASE ARE AS UNDER THE QUESTION RAISED IN THIS APPEAL RELATES TO WHET HER THE APPELLANT ASSESSEE COULD MAKE A CLAIM FOR DEDUCTION OTHER THAN BY FILING A REVISED RETURN. THE ASSESSMENT YEAR IN QUE STION WAS 1995-96. THE RETURN WAS FILED ON NOVEMBER 30, 1995, BY THE A PPELLANT FOR THE ASSESSMENT YEAR IN QUESTION. ON JANUARY 12, 1998, T HE APPELLANT SOUGHT TO CLAIM A DEDUCTION BY WAY OF A LETTER BEFO RE THE ASSESSING OFFICER. THE DEDUCTION WAS DISALLOWED BY THE ASSESS ING OFFICER ON THE GROUND THAT THERE WAS NO PROVISION UNDER THE I.T.AC T TO MAKE AMENDMENT IN THE RETURN OF INCOME BY MODIFYING AN A PPLICATION AT THE ASSESSMENT STAGE WITHOUT REVISING THE RETURN. THIS APPELLANTS APPEAL BEFORE THE COMMISSIONER OF INCOME-TAX (APPEALS) WAS ALLOWED. HOWEVER, THE ORDER OF THE FU RTHER APPEAL OF THE DEPARTMENT BEFORE THE ITAT WAS ALLOWED. THE APPELLA NT HAS APPROACHED THIS COURT AND HAS SUBMITTED THAT THE TR IBUNAL WAS WRONG IN UPHOLDING THE ASSESSING OFFICERS ORDER. HE HAS RELIED UPON THE DECISION OF THIS COURT IN NATIONAL THERMAL POWER CO MPANY LTD. VS. CIT (1998) 229 ITR 383, TO CONTEND THAT IT WAS OPEN TO THE ASSESSEE TO RAISE THE POINTS OF LAW EVEN BEFORE THE APPELLANT T RIBUNAL. THE DECISION IN QUESTION IS THAT THE POWER OF THE T RIBUNAL U/S.254 OF THE I.T.ACT, 1961, IS TO ENTERTAIN FOR T HE FIRST TIME APPOINT OF LAW PROVIDED THE FACT ON THE BASIS OF WHICH THE ISS UE OF LAW CAN BE RAISED BEFORE THE TRIBUNAL. THE DECISION DOES NOT I N ANY WAY RELATE TO THE POWER OF THE ASSESSING OFFICER TO ENTERTAIN A C LAIM FOR DEDUCTION OTHERWISE THAN BY FILING A REVISED RETURN. IN THE CI RCUMSTANCES OF THE CASE, WE DISMISS THE CIVIL APPEAL. HOWEVER, WE MAKE IT CLEAR THAT THE ISSUE IN THIS CASE IS LIMITED TO THE POWER OF THE A SSESSING AUTHORITY AND DOES NOT IMPINGE ON THE POWER OF THE INCOME-TAX APPE LLATE TRIBUNAL UNDER SECTION 254 OF THE I.T.ACT, 1961. THERE SHALL BE NO ORDER AS TO COSTS. IT IS VERY CLEAR FROM THE AFORESAID JUDGEMENT OF THE HONBLE SC THAT ASSESSING OFFICER CANNOT INCREASE THE CLAIM OF DEDUCTION OF THE APPELLANT EXCEPT IF THE SAME IS MADE BY FILING THE REVISED RETURN IN TIME. SINCE NO REVISED RETURN WAS FILED IN THE INST ANT CASE AND TIME FOR ITA NOS 4615 & 16/M/10 7 FILING THE REVISED RETURN HAS ALREADY EXPIRED, THE CLAIM CANNOT BE ENTERTAINED. NOT ONLY THIS BUT THE APPELLANT HAS MA DE IT A HABIT OF FILING ADDITIONAL GROUND IN EVERY HEARING AND ADDITIONAL G ROUND HAS BEEN FILED AFTER THE REMAND REPORT TODAY ONLY. SO RELYING ON T HE REMAND REPORT SUBMITTED BY THE ASSESSING OFFICER AND JCIT AND THE DECISION OF SC, THE ACTION OF THE ASSESSING OFFICER IS CONFIRMED. G ROUND OF APPEAL IS DISMISSED. 8. WITH RESPECT TO REOPENING FOR THE ASSESSMENT YEA R 2005-06, WE ARE OF THE OPINION THAT THE ENTIRE RELEVANT FACTS ARE AVA ILABLE ON RECORD AT THE TIME OF PROCESSING THE RETURN U/S. 143(1) AND ALL THE FA CTS WERE MADE AVAILABLE TO THE AO. FOR THE REOPENING OF THE ASSESSMENT AO HAS POWER TO REOPEN AN ASSESSMENT, PROVIDED THERE IS TANGIBLE MATERIAL T O COME TO THE CONCLUSION THAT THERE WAS ESCAPEMENT OF INCOME FROM ASSESSMEN T. REASON MUST HAVE A LINK WITH THE FORMATION OF THE BELIEF. THEREFORE A MERE CHANGE OF OPINION ON THE PART OF THE OFFICER TO REOPEN THE ASSESSMENT IS NOT JUSTIFIED AS HELD BY THE APEX COURTIN THE CASE OF CIT VS KELVINATOR OF INDIA LTD. 320 ITR 561. THEREFORE WE HOLD THAT THE REOPENING IS BAD IN LAW. 9. WITH RESPECT TO MERITS FOR THE A.Y. 2005-06 & 20 06-07, WE HEARD BOTH THE PARTIES. THE QUESTION FOR CONSIDERATION IS THE ASSESSEE CLAIMED DEDUCTION U/S. 80IB(10) ONLY ON THE RESIDENTIAL PORTION OF THE PROJECT. AFTER COMPLETION OF ASSESSMENT RELYING ON THE DECISION IN THE CASE O F BRAHMA ASSOCIATES, THE ASSESSEE CLAIMED 10% ON BOTH RESIDENTIAL AND COMMER CIAL PORTION OF THE PROJECT. THE AO HAD APPLIED ON THE DECISION OF THE SUPREME COURT IN THE CASE OF GOETZ (INDIA) LTD AND HELD THAT UNLESS THE REVISED RETURN IS FILED THE CLAIM FOR ENHANCED DEDUCTION CANNOT BE ALLOWED TO T HE ASSESSEE. NEVERTHELESS, BEFORE THE LD. CIT(A) THE ASSESSEE AS KED FOR DEDUCTION U/S. 80IB(10) NOT ONLY FOR THE RESIDENTIAL PORTION BUT FOR THE SHOPS ALSO. THE LD. CIT(A) HELD THAT THE ISSUE WAS NOT RAISED BEFORE TH E AO AND BY WAY OF ADDITIONAL GROUND, THE SAME HAS BEEN RAISED BEFORE HIM AND THEREFORE DISMISSED THE GROUND RELYING ON THE DECISION IN THE CASE OF GOETZ INDIA LTD. THE LD. CIT(A) FURTHER HELD AS FOLLOWS: ITA NOS 4615 & 16/M/10 8 THE AO WAS RIGHT IN NOT ENTERTAINING THE CLAIM AS NO REVISED RETURN WAS FILED BEFORE HIM AS THE TIME FOR FILING THE R EVISED RETURN WAS ALREADY EXPIRED. 10. THE LD. CIT(A) FURTHER OBJECTED TO THE RAISIN G OF THE ADDITIONAL GROUNDS BY THE ASSESSEE WHICH HAD BEEN FILED AFTER THE REMAND REPORT HAD BEEN OBTAINED FROM AO. 11. THE SHORT ISSUE BEFORE US IS THE UNDERSTANDING OF THE DECISION OF THE SUPREME COURT IN THE CASE OF GOETZ (INDIA) 284 ITR 3 23 THE SUPREME COURT DISMISSED THE APPEAL MAKING IT CLEAR THAT THE DECIS ION WAS RESTRICTED TO THE POWER OF THE ASSESSING AUTHORITY TO ENTERTAIN A CLA IM FOR DEDUCTION OTHERWISE THAN BY A REVISED RETURN AND IT DID NOT IMPINGE ON THE POWER OF THE APPELLATE AUTHORITY U/S. 254 OF THE I.T. ACT, 1961. THE LD. C IT(A) HAS THE POWER TO ADMIT THE ADDITIONAL GROUND AND ENTERTAIN THE CLAIM AS PER THE DECISION OF JUTE CORPORATION OF INDIA VS CIT 187 ITR 688 WHEREIN IT HAS BEEN HELD AS FOLLOWS: (II) AN APPELLATE AUTHORITY HAS ALL THE POWERS WHIC H THE ORIGINAL AUTHORITY MAY HAVE IN DECIDING THE QUESTION BEFORE IT SUBJECT TO THE RESTRICTIONS OR LIMITATIONS, IF ANY, PRESCRIBED BY THE STATUTORY PROVISIONS. IN THE ABSENCE OF ANY STATUTORY PROVISION, THE APPEL LATE AUTHORITY IS VESTED WITH ALL THE PLENARY POWERS WHICH THE SUBORD INATE AUTHORITY MAY HAVE IN THE MATTER. THERE IS NO GOOD REASON TO JUSTIFY CURTAILMENT OF THE POWER OF THE APPELLATE ASSISTANT COMMISSIONE R IN ENTERTAINING AN ADDITIONAL GROUND RAISED BY THE ASSESSEE IN SEEK ING MODIFICATION OF THE ORDER OF ASSESSMENT PASSED BY THE INCOME-TAX OFF ICER. (III) THE OBSERVATIONS IN THE CASE OF GURJARGRAVURE S P. LTD. [1978] 111 ITR 1 (SC) DO NOT RULE OUT A CASE FOR RAISING AN AD DITIONAL GROUND BEFORE THE APPELLATE ASSISTANT COMMISSIONER IF THE GROUND SO RAISED COULD NOT HAVE BEEN RAISED AT THE STAGE WHEN THE RE TURN WAS FILED OR WHEN THE ASSESSMENT ORDER WAS MADE OR IF THE GROUND BECAME AVAILABLE ON ACCOUNT OF CHANGE OF CIRCUMSTANCES OR LAW. THERE MAY BE SEVERAL FACTORS JUSTIFYING THE RAISING OF SUCH A NE W PLEA IN AN APPEAL, AND EACH CASE HAS TO BE CONSIDERED ON ITS OWN FACTS . IF THE APPELLATE ASSISTANT COMMISSIONER IS SATISFIED, HE WOULD BE AC TING WITHIN HIS JURISDICTION IN CONSIDERING THE QUESTION SO RAISED IN ALL ITS ASPECTS. HE MUST BE SATISFIED THAT THE GROUND RAISED WAS BONA F IDE AND THAT THE ITA NOS 4615 & 16/M/10 9 SAME COULD NOT HAVE BEEN RAISED EARLIER FOR GOOD RE ASONS. WHILE PERMITTING THE ASSESSEE TO RAISE AN ADDITIONAL GROU ND, THE APPELLATE ASSISTANT COMMISSIONER SHOULD EXERCISE HIS DISCRETI ON IN ACCORDANCE WITH LAW AND REASON AS ALL THE FACTS ON RECORD ARE SUPPORTED BY THE DEC ISION OF BRAHMA ASSOCIATES. THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S. 80IB(10). 12. THE SECOND ASPECT IS WITH RESPECT TO THE LIMIT OF 5% UNDER CLAUSE (D). IT HAS BEEN HELD IN THE CASE OF HIRANANDANI AKRUTI 39 SOT 498 (MUM) AS FOLLOWS: IT WAS ALREADY NOTICED THAT THE BUILT UP AREA OF T HE SHOPS AND COMMERCIAL ESTABLISHMENT INCLUDED IN THE HOUSING PR OJECT WAS MORE THAN 2,000 SQ. FT AND THEREFORE, IF THE LAW AS AMEN DED BY THE FINANCE ACT, 2005 W.E.F. 1 ST APRIL, 2005 IS APPLIED THEN THE ASSESSEE WOULD NOT BE ENTITLED TO DEDUCTION. ON THE OTHER HAND, IF TH E LAW AS IT EXISTED IN THE ASSESSMENT YEAR 2004-05 WHEN THE ASSESSEE SUBMI TTED ITS PROPOSAL FOR SLUM REHABILITATION AND THE PERMISSION FOR CARRYING OUT THE DEVELOPMENT WAS ACCORDED ON 17 TH NOV. 2003 AND WHEN THE ASSESSEE COMMENCED DEVELOPMENT IS APPLIED THEN THE ASSESSEE WOULD BE ENTITLED TO DEDUCTION BECAUSE THERE WAS NO RESTRICT ION REGARDING CONSTRUCTION OF COMMERCIAL AREA AND THE ONLY CONDIT ION WAS THAT THE UNDERTAKING SHOULD DEVELOP AND BUILD HOUSING PROJEC T APPROVED BY A LOCAL AUTHORITY. IN THIS APPEAL IF IT IS HELD THAT THE LAW AS IT EXISTED IN THE A.Y. 2004-05 WHEN THE ASSESSEE SUBMITTED ITS PR OPOSAL FOR SLUM REHABILITATION AND THE PERMISSION FOR CARRYING OUT THE DEVELOPMENT WAS ACCORDED ON 17 TH NOV. 2003 AND WHEN THE ASSESSEE COMMENCED DEVELOPMENT IS TO BE APPLIED EVEN THEN THE ASSESSEE TO CLAIM DEDUCTION U/S. 80IB(10) HAS TO PASS THE TEST LAID D OWN BY THE SPECIAL BENCH (INFRA). 13. THEREFORE WE ARE OF THE OPINION THAT THE LD. CI T(A) OUGHT TO FOLLOW THE ORDER DT. 2.6.2009 OF THE HONBLE ITAT IN ASSESSEE S OWN CASE IN ITA NO. 7297 FOR ASSESSMENT YEAR 2004-05 AND ALLOW THE CLAI M OF DEDUCTION U/S. 80IB(10). 14. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED. ITA NOS 4615 & 16/M/10 10 ORDER PRONOUNCED ON THIS 29 TH DAY OF JULY, 2011 SD/- SD/- (J. SUDHAKAR REDDY) (ASHA VIJAYA RAGHAVAN) ACCOUNTANT MEMBER JUDICIA L MEMBER MUMBAI, DATED 29 TH JULY, 2011 RJ COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR G BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI ITA NOS 4615 & 16/M/10 11 DATE INITIALS 1. DRAFT DICTATED ON: 25.7.2011 SR. PS/PS 2. DRAFT PLACED BEFORE AUTHOR: 26.07.2011 SR. PS/PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER: JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER: JM/AM 5. APPROVED DRAFT COMES TO THE SR. PS/PS: SR. PS/PS 6. ORDER PRONOUNCED ON: SR. PS/PS 7. FILE SENT TO THE BENCH CLERK: 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK: SR. PS/PS 9. DATE ON WHICH FILE GOES TO AR 10. DATE OF DISPATCH OF ORDER: