DCIT 6(3)(1), MUMBAI V. INDORIGIN ELECTRIC LTD, MUMBAI

ITA 4677/MUM/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7146 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 08-07-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJAT MITTAL
• Keywords: Tax effect
• Section: 142(1); 115JB; 80IB

Judgement Text

1 INDORIGIN ELECTRIC LTD IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C, MUMBAI BEFORE SHRI MAHAVIR SINGH(JUDICIAL MEMBER) AND SHRI G MANJUNATHA (ACCOUNTANT MEMBER) I.T.A NO.4677/MUM/2016 (ASSESSMENT YEAR: 2012-13) DCIT, CIR.6(3)(1), MUMBAI VS M/S INDORIGIN ELECTRIC LTD RECTIFIER HOUSE, 270, NAIGAUM CROSS ROAD, WADALA, MUMBAI-31 PAN : AAACI1040B APPELLANT RESPONDENT C.O. NO.12/MUM/2018 (ARISING OUT OF I.T.A NO.4677/MUM/2016) (ASSESSMENT YEAR: 2012-13) M/S INDORIGIN ELECTRIC LTD RECTIFIER HOUSE, 270, NAIGAUM CROSS ROAD, WADALA, MUMBAI-31 VS DCIT, CIR.6(3)(1), MUMBAI APPELLANT RESPONDENT REVENUE BY SHRI RAJAT MITTAL ASSESSEE BY SHRI MIHIR NANIWALEKAR / SHRI KALPESH TURALKAR DATE OF HEARING 22-05-2018 DATE OF PRONOUNCEMENT 31-05-2018 O R D E R PER G MANJUNATHA, AM : THIS APPEAL FILED BY THE REVENUE AND CROSS OBJECT ION FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF THE CIT( A)-12, MUMBAI DATED 18-04-2017 AND IT PERTAINS TO AY 2012-13. SINCE FA CTS ARE IDENTICAL AND 2 INDORIGIN ELECTRIC LTD ISSUES ARE COMMON, THE APPEAL AS WELL AS THE CROSS OBJECTION WERE HEARD TOGETHER AND ARE DISPOSED OF BY THIS COMMON O RDER, FOR THE SAKE OF CONVENIENCE. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- '1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD CIT(A) ERRED IN RELYING ON THE ORDER OF THE HON' BLE BOMBAY HIGH COURT IN THE CASE OF VANDANA PROPERTIES NO. ITA NO. 3633 OF 2009 AND THE ITAT KOLKATA IN THE CASE OF M/S BENGAL AMBUJA HOUSING DE VELOPMENT LTD. IN DIRECTING THAT FOR THE PURPOSE OF CLAIMING DEDUCTIO N U/S 80IB(10) OF THE I.T .ACT, THE PROJECT CAN BE TREATED AS INDEPENDENT OF EACH OTHER BASED ON DIFFERENT COMMENCEMENT CERTIFICATES, DISREGARDING T HE FACT THAT THE CONDITION OF MINIMUM PLOT AREA APPLIES INDEPENDENTL Y AND NOT COLLECTIVELY AND THAT THE PROJECT AS A WHOLE WAS NOT COMPLETED W ITHIN 4 YEARS, WITHOUT APPRECIATING THE FACT THAT THESE DECISIONS OF THE H IGH COURTS WERE NOT ACCEPTED BY THE DEPARTMENT AND SLP HAS BEEN FILED. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD CIT(A) ERRED IN RELYING ON THE ORDER OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF VANDANA PROPERTIES NO. ITA NO. 3633 OF 2009 AND THE ITAT KOLKATA IN THE CASE OF M/S BENGAL AMBUJA HOUSING DEVELOPMENT L TD. IN HOLDING THAT DEDUCTION U/S 80IB(10) OF THE I.T .ACT IS ALLOWABLE WITH REFERENCE TO ONE TOWER INDEPENDENTLY, DISREGARDING THE FACT THAT THE CONDI TIONS ARE NOT SATISFIED WITH REFERENCE TO THE WHOLE PROJECT, WITHOUT APPRECIATIN G THE FACT THAT THESE DECISION, S OF THE HIGH COURTS WERE NOT ACCEPTED BY THE DEPARTMENT AND SLP HAS BEEN FILED. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD CIT(A) ERRED IN RELYING ON THE ORDER OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF VANDANA PROPERTIES NO. ITA NO. 3633 OF 2009 AND THE ITAT KOLKATA IN THE CASE OF M/S BENGAL AMBUJA HOUSING DE VELOPMENT LTD. IN HOLDING THAT PRO-RATA ALLOWANCE U/S 80IB(10) OF THE I. T .ACT IS PERMITTED, WHERE T5 AND T6 OF THE FLATS EXCEED THE STIPULATED AREA RESTRICTION OF 1500 SQ.FT., WITHOUT APPRECIATING THE FACT THAT THESE DE CISION'S OF THE HIGH COURTS WERE NOT ACCEPTED BY THE DEPARTMENT AND SLP HAS BEE N FILED. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD CIT(A) ERRED IN ACCEPTING THAT THE DISALLOWANCE OF DEDUCTION U/S 80IB(10) OF THE I T ACT AS REVENUE NEUTRAL FOR THE REASON TH AT THE INCOME WAS ASSESSABLE U/S 115JB OF THE I T ACT, DISREGARDING T HE FACT THAT THE ASSESSEE IS ELIGIBLE TO AVAIL MA T CREDIT IN SUBSEQ UENT YEARS. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E COMPANY IS ENGAGED IN THE BUSINESS OF DEVELOPMENT OF HOUSING P ROJECTS, FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2012-13 ON 30-09-2012 3 INDORIGIN ELECTRIC LTD DECLARING TOTAL INCOME OF RS.2,56,48,330. THE CASE HAS BEEN SELECTED FOR SCRUTINY AND ACCORDINGLY NOTICES U/S 143(2) AND 142(1) OF THE ACT WERE ISSUED. IN RESPONSE TO NOTICES, THE AUTHORIZE D REPRESENTATIVE OF THE ASSESSEE APPEARED FROM TIME TO TIME AND FILED V ARIOUS DETAILS, AS CALLED FOR. DURING THE COURSE OF ASSESSMENT PROCEE DINGS, THE AO NOTICED THAT THE ASSESSEE HAS CLAIMED DEDUCTION U/S 80IB AMOUNTING TO RS.4,93,66,415, THEREFORE, CALLED UPON THE ASSESSEE TO EXPLAIN AND ALSO FURNISH NECESSARY DETAILS IN RESPECT OF DEDUCTION C LAIMED U/S 80IB(10) OF THE ACT. IN RESPONSE TO SHOW CAUSE NOTICE, THE ASS ESSEE, VIDE LETTER DATED 15-01-2015 HAS SUBMITTED THE WORKING OF DEDU CTION CLAIMED U/S 80IB(10) OF THE INCOME-TAX ACT, 1961 FOR AY 2010-1 1 AND AY 2012-13. THE ASSESSEE ALSO FURNISHED A COPY OF AN ASSESSMENT ORDER PASSED FOR AY 2010-11, WHEREIN DEDUCTION CLAIMED U/S 80IB(10) WAS DENIED. THE AO, AFTER CONSIDERING RELEVANT SUBMISSIONS OF THE A SSESSEE AND ALSO CONSIDERING THE ORDER PASSED BY THE AO FOR THE ASSE SSMENT YEAR 2010- 11 OBSERVED THAT THE ASSESSEE HAS NOT FULFILLED ALL CONDITIONS PRESCRIBED U/S 80IB(10) SO AS TO CLAIM DEDUCTION U/S 80IB(10) WHICH IS EVIDENT FROM THE FACT THAT THE FLATS CONSTRUCTED IN TOWERS T5 & T6 ARE MORE THAN 1500 SQ.FT AND ALSO THE ASSESSEE HAS NOT FILED ANY AGREE MENT COPY FOR VERIFICATION OF AREA CONSTRUCTED INSPITE OF REPEATE D DIRECTIONS. SINCE THE ASSESSEE HAS FILED TO PROVIDE THE REQUIRED DETAILS TO DETERMINE AND VERIFY THE EXACT AREA OF FLATS CONSTRUCTED, IT WAS CONCLUD ED THAT THE ASSESSEE IS 4 INDORIGIN ELECTRIC LTD NOT ELIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE INCO ME-TAX ACT, 1961. 3. AGGRIEVED BY THE ASSESSMENT ORDER, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A). BEFORE THE CIT(A), THE ASSESSEE HAS FILED VARIOUS DETAILS TO JUSTIFY DEDUCTION CLAIMED U/S 80IB(10). ASSESSEE ALSO FILED COPY OF ORDER OF ITAT FOR AY 2010-11 AND ARGUED THA T THE ITAT HAS ALLOWED THE CLAIM OF ASSESSEE IN RESPECT OF SUPER B UILT UP AREA / CARPET AREA OF FLATS CONSTRUCTED WAS LESS THAN 1500 SQ.FT. THE SUM AND SUBSTANCE OF THE ARGUMENTS OF THE ASSESSEE BEFORE T HE LD.CIT(A) ARE THAT IN VIEW OF THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS VANDANA PROPERTIES (2013) 353 ITR 36 (BOM), THE ASSESSEE IS ELIGIBLE FOR PROPORTIONATE DEDUCTION TOWARDS PROFIT OF ELIGIBLE HOUSING PROJECT WHERE THE FLAT SIZE IS LESS THAN 1500 SQ.FT . THE CIT(A), AFTER CONSIDERING RELEVANT SUBMISSIONS OF THE ASSESSEE AN D ALSO RELYING UPON THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CA SE OF CIT VS VANDANA PROPERTIES (SUPRA) AND ALSO THE DECISION OF HONBLE CALCUTTA HIGH COURT IN CASE OF BENGAL AMBUJA HOUSING DEVELOP MENT LTD IN ITA NO.453 OF 2006 VIDE ORDER DATED 02-01-2007 HELD THA T THE ASSESSEE IS ELIGIBLE FOR PROPORTIONATE DEDUCTION TOWARDS ELIGIB LE PROFIT WHERE THE FLAT SIZE IS LESS THAN 1500 SQ.FT. HOWEVER, THE CIT(A) FAILED TO GIVE ANY FINDINGS IN RESPECT OF PROPORTIONATE DEDUCTIONS CLA IMED BY THE ASSESSEE TOWARDS TOWERS T5 & T6 OF KAPIL MALHAR INTELLIGENT HOMES BY HOLDING THAT THE DEDUCTION CLAIMED U/S 80IB(10) WILL BE REV ENUE NEUTRAL AS 5 INDORIGIN ELECTRIC LTD REGULAR TAX LIABILITY IS LESS THAN TAX PAID ON THE BOOK PROFIT. THE RELEVANT PORTION OF THE ORDER OF CIT(A) IS EXTRACTED BELOW:- DURING THE COURSE OF HEARING, ATTENTION VAST INVITE D TO PREDECESSOR CIT(A)-14 ORDER DATED 24.6.2014 VIDE AP PEAL RY. CIT(A)-U/DCIT 6(1)/IT-42/201344 FOR THE A.Y. 2010-1 1 WHEREIN THETTTJK) HAD ALLOWED CLAIM FOR SECTION 80I B OF THE LT. ACT, 1961 ON THE BASIS OF HON. BOMBAY HIGH COUR T DECISION IN THE CASE OF M/S. VANDANA PROPERTIES IN APPEAL NO. ITA NO. 3633 OF 2009 AND OF M/S. BENGAL AMBUJA HOUS ING DEVELOPMENT LTD. WHEREIN THE HON. IT AT, WEST BENGA L HAD DECIDED THAT SMALLER FLATS SHOULD NOT BE DENIED DED UCTION U/S. 80IB AND THE SAME VIEW HAD BEEN CONFIRMED BY HON. H IGH COURT OF CALCUTTA IN ITA NO. 453 OF 2206 VIDE ORDER DATED 2.1.2007. IT IS SEEN THAT THE APPELLANT'S CONTENTIO N IS CORRECT. IT IS ALSO STATED THAT THERE IS NO SUCH CLAIM BY THE A PPELLANT FOR THE A.Y. 2011-12. THUS, RESPECTFULLY, FOLLOWING T HE ORDER OF PREDECESSOR CIT(A) FOR THE A.Y. 2010- 11, SINCE THE CASE HERE IS IDENTICAL FOR THE A.Y. 2012-13, THE GROUND OF APPEAL IS ALLOWED. IT IS DIRECTED THAT THE A.O. IS TO GRANT DEDUCTION U/S.80IB(10) ON THE BASIS OF THE CALCULATION BELOW FOR TOWER 4 ONLY. ASST. YEAR 2010-11 ASST.YEAR 2012-13 TOWER ELIGIBLE FLATS ALLOWED BY CIT(A) TOWER ELIGIBLE FLATS AREA (SQ. METRES) T1 36 36 T4 36 2889.48 T2 24 NIL T5 24 3076.03 T3 24 NIL T6 24 3308.07 84 84 9273.58 IT IS SEEN THAT SECTION 80IB RELIEF CLAIMED FOR A.Y . 201243 IN THE RETURN OF INCOME WAS RS. 4,93,66,4157- FOR 84 FLATS . HOWEVER, SINCE RELIEF IS GRANTED ONLY FOR FLATS OF T4 I.E. 3 6 FLATS, AS PER EARLIER ORDER OF PREDECESSOR CIT(A) FOR A.Y. 2010-11, THE DEDUCTION WILL BE AS F OLLOWS : 36 FLATS : I 84 FLATS X 4,93,66,415 = RS. 2,11,57,034 . 6 INDORIGIN ELECTRIC LTD IT IS ALSO SEEN THAT THE CLAIM FOR TOWER T5 AND T6 (RS. 2,82,09,3817-) OF KAPIL MALHAR INTELLIGENT HOMES WI LL BE REVENUE NEUTRAL AS REGULAR TAX LIABILITY IS LESS TH AN TAX PAID ON THE BOOK PROFIT. HENCE, THE ELIGIBLE DEDUCTION WOUL D BE TAX NEUTRAL AND THE ADJUDICATION OF BALANCE AMOUNT BECO MES MERELY ACADEMIC IN NATURE. THUS, THE A.O. IS DIRECTED TO ALLOW DEDUCTION U/S. 80IB OF THE I.T. ACT, 1961 OF RS. 2,11,57,034/- TOWARDS TOWER T 4 FOR A.Y. 2012-13. IN THE LIGHT OF THE DISCUSSION ABOVE, GROUND NO, 2 IS ALLOWED. 4. THE LD.DR SUBMITTED THAT THE LD.CIT(A) ERRED IN ALLOWING PROPORTIONATE DEDUCTION TOWARDS TOWER T4 BY RELYING UPON THE DECISION OF HONBLE BOMBAY HIGH COURT, IN THE CASE OF CIT VS VANDANA PROPERTIES (SUPRA) DISREGARDING THE FACT THAT THE C ONDITIONS LAID DOWN U/S 80IB(10) ARE NOT SATISFIED WITH REGARD TO WHOLE PR OJECT AND ALSO WITHOUT APPRECIATING THE FACT THAT THIS DECISION OF HONBLE BOMBAY HIGH COURT WAS NOT ACCEPTED BY THE DEPARTMENT AND SPECIAL LEAV E PETITION HAS BEEN FILED BEFORE THE HONBLE SUPREME COURT. THE L D.DR FURTHER SUBMITTED THAT THE LD.CIT(A) WAS ERRED IN HOLDING T HAT EACH PROJECT CAN BE TREATED AS INDEPENDENT OF EACH OTHER BASED ON DI FFERENT COMMENCEMENT CERTIFICATE DISREGARDING THE FACT THAT THE CONDITION OF MINIMUM FLAT AREA APPLIES INDEPENDENTLY AND NOT COL LECTIVELY AND ALSO THE WHOLE PROJECT NEEDS TO BE COMPLETED WITHIN 4 YE ARS AS PER THE PROVISIONS OF SECTION 80IB(10) OF THE ACT. THE AO HAS BROUGHT OUT CLEAR FACTS TO THE EFFECT THAT AS PER THE ASSESSEES ADMI SSION ITSELF, THE FLAT AREA IN T5 &T6 IS MORE THAN 1500 SQ.FT. AND HENCE, THE ASSESSEE FAILED 7 INDORIGIN ELECTRIC LTD TO FULFIL THE CONDITION SPECIFIED U/S 80IB(10) AND HENCE NOT ELIGIBLE FOR DEDUCTION. 5. ON THE OTHER HAND, THE LD.AR FOR THE ASSESSEE ST RONGLY SUPPORTING THE ORDER OF THE CIT(A) IN RESPECT OF GROUNDS 1 TO 3 SUBMITTED THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE D ECISION OF ITAT, MUMBAI BENCH I IN ASSESSEES OWN CASE FOR AY 2010 -11 IN ITA NO.5436/MUM/2014 WHEREIN THE CO-ORDINATE BENCH BY F OLLOWING THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE O F CIT VS VANDANA PROPERTIES (SUPRA) HELD THAT THE ASSESSEE IS ELIGIB LE FOR PROPORTIONATE DEDUCTION FOR THE UNITS SATISFYING THE EXTENT OF BU ILT UP AREA. THE CIT(A), AFTER CAREFULLY CONSIDERED THE FACTS AND ALSO BY FO LLOWING THE DECISION OF HONBLE BOMBAY HIGH COURT RIGHTLY DIRECTED THE AO T O ALLOW PROPORTIONATE DEDUCTION TOWARDS ELIGIBLE PROFIT FRO M TOWER T4. THEREFORE, THE ORDER OF THE CIT(A) SHOULD BE UPHELD . 6. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATE RIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES B ELOW. THE AO DISALLOWED DEDUCTION CLAIMED U/S 80IB(10) OF THE AC T, ON THE GROUND THAT THE ASSESSEE HAS FAILED TO FULFIL CONDITIONS SPECIF IED U/S 80IB(10) AS THE FLAT SIZE OF TOWER T5 & T6 IS MORE THAN 1500 SQ.FT. AND HENCE, THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION U/S 80IB(10) IN RESPECT OF WHOLE PROJECT. THE AO NEVER DISPUTED THE FACT THAT THE A SSESSEE IS ELIGIBLE FOR PROPORTIONATE DEDUCTIONS WHEREVER THE PROJECT FULFI LS THE CONDITIONS OF 8 INDORIGIN ELECTRIC LTD SUPER BUILT UP AREA OF EACH FLAT; HOWEVER, DENIED T HE BENEFIT FOR THE SOLE REASON THAT ALTHOUGH THE ISSUE IS COVERED BY THE DE CISION OF HONBLE BOMBAY HIGH COURT IN CIT VS VANDANA PROPERTIES (SUP RA), THE DEPARTMENT HAS NOT ACCEPTED THE DECISION OF HONBLE BOMBAY HIGH COURT BY FILING A SPECIAL LEAVE PETITION BEFORE THE HONBLE SUPREME COURT. IT IS THE CONTENTION OF THE ASSESSEE THAT I N RESPECT OF TOWER T4, THE ASSESSEE HAS FULFILLED ALL CONDITIONS INCLUDING SIZE OF EACH FLAT WHICH IS LESS THAN 1500 SQ.FT. IN RESPECT OF TOWERS T5 & T6, ASSESSEE HAS CLAIMED PROPORTIONATE DEDUCTION WHEREVER THE FLAT S IZE IS LESS THAN 1500 SQ.FT. ON THE BASIS OF DETAILS SUBMITTED BEFORE THE AO. THE ASSESSEE FURTHER CONTENDED THAT A SIMILAR DISALLOWANCE HAS B EEN MADE FOR AY 2010-11 BY THE AO. HOWEVER, ON APPEAL BEFORE THE I TAT, THE ITAT HAS ALLOWED PROPORTIONATE DEDUCTION TOWARDS THE PROJECT WHEREVER THE FLAT SIZE IS LESS THAN 1500 BY RELYING UPON THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS VANDANA PROPERTIES (SUPRA). 7. HAVING HEARD BOTH THE SIDES AND CONSIDERED MATER IAL ON RECORD, WE FIND MERIT IN THE ARGUMENTS OF THE ASSESSEE FOR THE REASON THAT THE PRINCIPLE IS NOW WELL SETTLED WITH THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS VANDANA PROPERTIES (SUP RA), WHEREIN THE HONBLE COURT HAS MADE IT CLEAR THAT THE ASSESSEE I S ELIGIBLE FOR PROPORTIONATE DEDUCTION FROM ELIGIBLE PROFIT IN A H OUSING PROJECT IN RESPECT OF FLAT WHICH IS HAVING SUPER BUILT UP AREA OF LESS THAN 1500 SQ.FT. 9 INDORIGIN ELECTRIC LTD THIS VIEW IS FURTHER SUPPORTED BY THE DECISION OF ITAT, KOLKATTA IN THE CASE OF BENGAL AMBUJA HOUSING DEVELOPMENT LTD AND THIS DECISION HAS BEEN AFFIRMED BY THE HONBLE CALCUTTA HIGH COURT IN ITA NO.453/2006. THE CIT(A), AFTER CONSIDERING RELEVANT FACTS HAS RI GHTLY DIRECTED THE AO TO ALLOW PROPORTIONATE DEDUCTIONS IN RESPECT OF TOW ER T4 OUT OF TOTAL DEDUCTIONS CLAIMED BY THE ASSESSEE INCLUDING TOWERS T5 & T6. IN THIS VIEW OF THE MATTER AND CONSISTENT WITH THE VIEW TAK EN BY THE CO-ORDINATE BENCH IN ASSESSEES OWN CASE IN LINE WITH THE DECIS ION OF HONBLE BOMBY HIGH COURT IN THE CASE OF CIT VS VANDANA PROP ERTIES (SUPRA), WE ARE OF THE VIEW THAT THE ASSESSEE IS ELIGIBLE FOR P ROPORTIONATE DEDUCTION OF ELIGIBLE PROFIT WHEREVER THE FLAT SIZE IS LESS T HAN 1500 SQ.FT. SUBJECT TO FULFILLMENT OF OTHER CONDITIONS SPECIFIED IN SECTIO N 80IB(10) OF THE ACT. ACCORDINGLY, WE AFFIRM THE FINDINGS OF THE LD.CIT(A ) AND REJECT THESE GROUNDS RAISED BY THE REVENUE. 8. THE NEXT ISSUE THAT CAME UP FOR OUR CONSIDERATIO N FROM REVENUES GROUND NO.4 AND ASSESSEES CROSS OBJECTION IS NOT A DJUDICATING THE ISSUE OF DEDUCTION CLAIMED TOWARDS TOWERS T5 & T6 ON THE GROUND THAT THE DEDUCTION CLAIMED U/S 80IB(10) IN RESPECT OF TOWERS T5 & T6 IS REVENUE NEUTRAL AS REGULAR TAX LIABILITY IS LESS THAN TAX C OMPUTED ON THE BOOK PROFIT. BEFORE ADVERTING TO THE FACTS OF THE ISSUE , FIRST WE SHALL DECIDE THE DELAY IN FILING CROSS OBJECTION FILED BY THE ASSESS EE. 9. THE LD.AR FOR THE ASSESSEE AT THE TIME OF HEARIN G SUBMITTED THAT 10 INDORIGIN ELECTRIC LTD THERE IS A DELAY OF 10 DAYS IN FILING CROSS OBJECTI ON FOR WHICH THE ASSESSEE HAS FILED PETITION FOR CONDONATION OF DELA Y ALONGWITH AFFIDAVIT. THE LD.AR FURTHER SUBMITTED THAT THE DIRECTOR OF TH E COMPANY, WHO WAS LOOKING AFTER THE TAX MATTER WAS UNWELL AND FACING HEALTH PROBLEMS BECAUSE OF HIS OLD AGE. DUE TO THIS, HE COULD NOT ATTEND THE TAX MATTERS BEFORE THE COUNSEL; HENCE, THERE IS A DELAY OF 10 D AYS IN FILING THE CROSS OBJECTION WHICH MAY BE CONDONED AND THE ISSUE MAY B E DECIDED ON MERITS. ON THE OTHER HAND, THE LD.DR FAIRLY ACCEPT ED THAT THE DELAY IN FILING CROSS OBJECTION MAY BE CONDONED. 10. HAVING HEARD BOTH THE SIDES, WE FIND THAT THE R EASONS GIVEN BY THE ASSESSEE FOR DELAY IN FILING CROSS OBJECTION APPEAR S TO BE GENUINE AND REASONABLE AND HENCE, WE CONDONE THE DELAY IN FILIN G CROSS OBJECTION AND PROCEED TO DECIDE THE ISSUE ON MERITS. 11. THE LD.AR FOR THE ASSESSEE SUBMITTED THAT THE L D.CIT(A) FAILED TO ADJUDICATE THE SPECIFIC GROUND TAKEN BY THE ASSESSE E IN RESPECT OF DENIAL OF DEDUCTION CLAIMED U/S 80IB(10) FOR TOWER T5 & T6 ON THE SOLE GROUND THAT THE DEDUCTION CLAIMED U/S 80IB(10) WILL BE REV ENUE NEUTRAL AS REGULAR TAX LIABILITY IS LESS THAN TAX EFFECT ON TH E BOOK PROFIT DISREGARDING THE FACT THAT THE ASSESSEE IS ELIGIBLE TO AVAIL MAT CREDIT IN SUBSEQUENT YEARS. THE LD.AR FURTHER SUBMITTED THAT THE ISSUE OF DEDUCTION CLAIMED U/S 80IB(10) HAS TO BE EXAMINED IN THE LIGHT OF PRO VISIONS OF SECTION 80IB(10); HOWEVER, THE CIT(A) FAILED TO GIVE FINDIN GS ON THE ALLOWABILITY 11 INDORIGIN ELECTRIC LTD OF SUCH DEDUCTION, HENCE, THE MATTER MAY BE SET ASI DE TO THE FILE OF THE LD. CIT(A) OR THE AO TO BE DECIDED ON MERITS. THE LD.DR, ON THE OTHER HAND, SUBMITTED THAT THE LD.CIT(A) WAS ERRED IN ACC EPTING THAT THE DISALLOWANCE OF DEDUCTION U/S 80IB(10) OF THE ACT, WAS REVENUE NEUTRAL FOR THE REASON THAT THE INCOME WAS ASSESSABLE U/S 1 15JB OF THE ACT IS MORE THAN THE NORMAL PROFIT COMPUTED DISREGARDING T HE FACT THAT THE ASSESSEE IS ELIGIBLE TO AVAIL MAT CREDIT FOR SUBSEQ UENT YEARS AND ALSO THE ISSUE TO BE DECIDED IN THE LIGHT OF PROVISIONS OF SECTION 80IB(10), BUT NOT ON THE BASIS OF SECTION 115JB OF THE ACT. 12. HAVING HEARD BOTH THE SIDES AND CONSIDERED MATE RIAL ON RECORD, WE FIND MERITS IN THE ARGUMENTS OF THE ASSESSEE AS WEL L AS THE LD.DR FOR THE REASON THAT THE LD.CIT(A) HAS NOT DECIDED THE ISSUE OF DEDUCTIBILITY OF ELIGIBLE PROFIT FROM TOWER T5 & T6 IN THE LIGHT OF PROVISIONS OF SECTION 80IB(10) OF THE INCOME-TAX ACT, 1961. THE DEDUCTIO N CLAIMED U/S 80IB(10) NEEDS TO BE EXAMINED IN THE LIGHT OF SAID PROVISIONS TO ASCERTAIN WHETHER THE ASSESSEE IS ELIGIBLE FOR DEDU CTION OR NOT IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE. THE ISS UE OF REVENUE NEUTRALITY IN THE LIGHT OF BOOK PROFIT COMPUTED U/ S 115JB DOES NOT IN ANY WAY HAMPER THE ALLOWABILITY OF DEDUCTION CLAIMED U/ S 80IB(10) AS THE ASSESSEE COULD ALWAYS CLAIM TAX CREDIT ON TAXES PAI D ON BOOK PROFIT IN SUBSEQUENT YEARS. THEREFORE, WE ARE OF THE VIEW TH AT THE ISSUE NEEDS TO BE RE-EXAMINED BY THE LD.CIT(A) IN THE LIGHT OF FAC TS OF ASSESSEES CASE 12 INDORIGIN ELECTRIC LTD AND PROVISIONS OF SECTION 80IB(10) OF THE INCOME-TA X ACT, 1961 IN RESPECT OF TOWER T5 & T6. HENCE, WE SET ASIDE GROU ND 4 RAISED BY THE REVENUE IN THEIR APPEAL AND CROSS OBJECTION FILED B Y THE ASSESSEE TO THE FILE OF THE CIT(A) AND DIRECT HIM TO DECIDE THE ISS UE. 13. IN THE RESULT, APPEAL FILED BY THE REVENUE IN I TA NO.4677/MUM/2016 IS PARTLY ALLOWED FOR STATISTICAL PURPOSE AND CROSS OBJECTION FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST MAY, 2018. SD/- SD/- (MAHAVIR SINGH) (G MANJUNATHA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT : 31 ST MAY, 2018 PK/- COPY TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR /TRUE COPY/ BY ORDER SR.PS, ITAT, MUMBAI