ITO WD 4(1), THANE V. AKASH CONSTRUCTION, THANE

ITA 4930/MUM/2012

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0071 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 30-03-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 31-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAURABH DESHPANDE
• Section: 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE HONBLE S/SHRI JOGINDER SINGH (JM), AND RAJESH KUMAR, ( AM ) ./ I.T.A. NO . 4930 / MUM/20 1 2 ( / ASSESSMENT YEAR : 2 007 - 0 8 ) INCOME TAX OFFICER, WARD 4(1), 2ND FLOOR, QUORESHI MANSION, GOKHALE ROAD, NAUPADA, THANE(W),400602 / VS. M/S AKASH ENTERPRISES, BUILDING NO.1, AKASHGANGA APPT, SHRI PRASTHA COMPLEX, NALLASOPARA (W), VASAI, THANE - 401203 ( / APPELLAN T ) .. ( / RESPONDENT ) ./PAN NO. : AAALF6549B / APPELLANT BY: SHRI SAURABH DESHPANDE / RESPONDENT BY SHRI BHUPENDRA SHAH / DATE OF HEARING : 31.8. 201 7 / DATE OF PRONOUNCEMENT : 31. 8. 201 7 / O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER : THIS IS AN APPEAL FILED BY THE REVENUE AND IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (A) - II, THANE, D A T ED 7.5.2012 PERTAINING TO A. Y. 20 07 - 08 . 2 . THE ONLY ISSUE RAISED BY THE REVENUE IN THE GROUNDS OF APPEAL IS AGAINST THE UPHOLDING THAT THE ASSESSEE WAS ENTITLED FOR DEDUCTION U/S 80IB(10)(B) OF THE INCOME TAX ACT, 1961 BY RELYING ON THE DECISION OF THE MUMBAI BENCH OF THE TRIBUN AL IN THE CASE OF M/S UMIYA ENTERPRISES V/S ITO WARD 3(3), KALYAN IN ITA NO.2750/MUM/2009 DATED 8.2.2010. ITA NO . 4930 / M/1 2 2 3 . FACTS IN BRIEF ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDING THE AO REJECTED THE CLAIM OF THE ASSESSEE MADE U/S 80IB(10)(B) OF THE ACT AMOUN TING TO RS.65,04,304/ - ON THE GROUND THAT THE PROJECT UNDERTAKEN BY THE ASSESSEE WAS NOT COMPLETED ON OR BEFORE 31.3.2008 AS THE COMMENCEMENT OF THE PROJECT WAS BEFORE 1.4.2004 AND THE AREA OF THE LAND WAS BELOW ONE ACRE BY FRAMING ASSESSMENT VIDE ORDER DATED 24.12.2010 PASSED U/SS U/S 143(3) R.W.S.147 . 4 . IN THE APPELLATE PROCEEDINGS, THE LD.CIT(A) UPHELD THE DISALLOWANCE OF DEDUCTION AFTER CONSIDERING THE VARIOUS CONTENTIONS AND ARGUMENTS RAISED BY THE A SESSEE BY HOLDING AS UNDER : 4.1. HAVE PERUSED THE ORDER OF THE AD AND ALSO GONE THROUGH THE WRITTEN SUBMISSIONS MADE BY THE APPELLANT CAREFULLY. THE AD HAS CONCLUDED IN THE ORDER THAT THE ASSESSEE DOES NOT FULFILL I THE CONDITIONS LAID DOWN AS PER SECTION 80IB(10)(A)(I) OF THE LT. ACT, 1961 WHEREIN IT HAS BEEN PROVIDED THAT THE HOSING PROJECT SHOULD BE COMPLETED ON OR PRIOR TO THE 31ST DAY OF MARCH, 2008. IN THE INSTANT CASE, IT IS AN UNDISPUTED FACT THAT THE APPELLANT HAS NOT OBTAINED THE OCCUPATION / COMPLETION CERTIFICATE ON OR PRIOR TO THE 31ST DA Y OF MARCH, 2008 OR EVEN TILL THE COMPLETION PROCEEDINGS I.E.31.12.2010. 4.2. AS PER SECTION 8018(10)(A)(I), IN A CASE WHERE A HOUSING PROJECT HAS BEEN APPROVED BY THE LOCAL AUTHORITY BEFORE 1ST DAY OF APRIL, 2004; THEN, IN ORDER TO CLAIM ELIGIBILITY FOR DEDUCTION, THE PROJECT SHOULD BE COMPLETED ON OR PRIOR TO THE 31ST DAY OF MARCH, 2008. FURTHER, AS PER EXPLANATION (II) TO THE SAID SECTION, THE DATE OF COMPLETION OF CONSTRUCTION OF THE HOUSING PROJECT SHALL BE TAKEN TO BE SUCH DATE ON WHICH COMPLETION O R OCCUPANCY CERTIFICATE IS ISSUED BY THE LOCAL AUTHORITY. 4.3. THE LETTER OF THE CIDCO DATED: 23.10.2008 HAS CONFIRMED TO AO THE FACT OF NON GRANT OF COMPLETION CERTIFICATE TO THE APPELLANT. ON THE BASIS OF THIS LETTER OF THE LOCAL AUTHORITY CIDCO, AO CO NCLUDED THAT THE NON FULFILLMENT OF THE COMPLETION CRITERIA AS PER THE PROVISIONS OF SECTION 8018(10)(A)(I) MAKES THE ASSESSEE INELIGIBLE FOR ANY CLAIM OF ITA NO . 4930 / M/1 2 3 DEDUCTION U/S. 8018(10). THE APPELLANT HAS NOT CONTROVERTED THIS FACT OF NON GRANT OF COMPLETION CERT IFICATE BEFORE 31.03.2008 AND EVEN TILL THE COMPLETION OF ASSESSMENT PROCEEDINGS. 4.4. FROM THE FACTS MENTIONED ABOVE, IN MY OPINION, THE AO'S REFUSAL OF ALLOWING THE DEDUCTION U/S. 8018(10) TO THE PROJECT OF THE APPELLANT IS IN ORDER. IN ORDER TO AVAIL THE TAX BENEFITS U/S. 8018(10) WITH REGARD TO A HOUSING PROJECT, THE APPELLANT HAS TO FULFILL ALL THE CONDITIONS LAID DOWN UNDER THE BENEFICIAL PROVISIONS OF SECTION 8018(10). THE HOUSING PROJECT SHOULD BE FIRST ELIGIBLE IN ORDER TO CLAIM DEDUCTION UNDER S ECTION 8018(10) BY FULFILLING THE CONDITIONS PRECEDENT FOR ITS APPLICATION AND THE NON FULFILLMENT OF SINGLE PRE - CONDITION SHALL DISENTITLE THE ASSESSEE FROM CLAIMING ANY BENEFICIAL DEDUCTION FROM ANY PART OF ITS INCOME. THIS ISSUE HAD COME UP FOR CONSIDER ATION IN THE CASE OF THE APPELLANT ITSELF FOR THE A.Y. 2006 - 07 AND THE ISSUE WAS DECIDED AGAINST THE APPELLANT VIDE MY ORDER DATED 06.10.2010 FOR THE A.Y. 2006 - 07 WHEREIN IT WAS HELD THAT - THE PROJECT OF THE ASSESSEE HAS NOT BEEN APPROVED BY THE LOCAL A UTHORITY BEFORE 31.3.2008. THE PROJECT CANNOT BE SAID TO BE COMPLETE AND BENEFIT OF DEDUCTION CANNOT BE ALLOWED TILL THE OCCUPATION CERTIFICATE IN RESPECT OF ALL THE BUILDINGS HAVE BEEN OBTAINED BY THE ASSESSEE, WHICH IN THE INSTANT CASE HAS BEEN RECEIVED TILL THE COMPLETION OF THE ASSESSMENT EVEN ON 24.11.2008. THEREFORE THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION U / S 80/8(10) ON ITS HOUSING PROJECT AND DENIAL THE SAID DEDUCTION TO THE L.EE FOR THE YEAR UNDER CONSIDERATION BY THE AO HAS BEEN RIGHTLY DONE. THE GROUNDS OF APPEAL ARE ACCORDINGLY REJECTED. ' 4.5. IN VIEW OF MY ABOVE DECISION REGARDING THE COMPLETION OF THE HOUSING PROJECT AND NON - OBTAINING OF THE COMPLETION CERTIFICATE BEFORE 31/03/2008, THE ISSUE HAS ALREADY STANDS DECIDED AGAINST THE APPEL LANT. CONSISTENT WITH THE VIEW TAKEN IN ITS OWN CASE FOR THE A.Y. 2006 - 07 BY THE UNDERSIGNED AND THE FACTS BEING IDENTICAL DURING THE YEAR UNDER CONSIDERATION, THIS ISSUE IS DECIDED AGAINST THE APPELLANT FOR THE YEAR UNDER CONSIDERATION ALSO. THE APPELLANT WOULD NOT BE ENTITLED FOR THE DEDUCTION U/S. 8018(10) FOR THE A.Y. 2007 - 08 DUE TO THE REASONS SPECIFIED IN MY APPELLATE ORDER FOR THE AY 2006 - 07. 4.6. IN VIEW OF THE FACTS AND CIRCUMSTANCES EXPLAINED ABOVE, IN MY OPINION THERE IS NO INFIRMITY IN TH E ORDER OF THE AO AND THE ACTION OF DISALLOWANCE OF DEDUCTION U/S. 80 IB(10) TO THE EXTENT OF RS. 65,04,300 / - IS IN ORDER AND JUSTIFIED . THE ADDITION MADE IS CONFIRMED. ITA NO . 4930 / M/1 2 4 5. THE LD. AR AT THE OUTSET, POINTED OUT THAT THE ISSUE RAISED BY THE REVENUE IS COVERED BY THE DECISION OF THE CO - ORDINATE BENCH OF THE TRIBUNAL IN FAVOUR OF THE ASSESSEE IN THE CASE OF ASSESSEE ITSELF IN ITA NO.4490/MUM/2012 (AY - 2007 - 08) DATED 5.2.2014. THEREFORE, THE LD.AR PRAYED THAT THE APPEAL FILED BY THE REVENUE ON THIS ISSUE B E DISMISSED AS BEING INRUCTUOUS. 6. THE LD.DR VERY FAIRLY AGREED TO THE CONTENTIONS OF THE ASSESSEE THAT THE ISSUE STANDS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE ASSESSEES OWN CASES (SUPRA). 7 . W E FIND T HAT THE ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE . THE OPERATIVE PART OF THE ORDER IS REPRODUCED BELOW : 8. WE HAVE PERUSED THE ORDERS OF THE REVENUE AUTHORITY AND THE FACTS EMERGING THERE FROM INDICATE THAT HER ASSESSEE HAD BEEN CARRYING ON THE PROJE C T SINCE 2005, AND THE INSTANT CLAIM PERTAINS TO THE SAME PROJECT, A COMING FROM THE EARLIER YEAR. THIS FACT AS NEITHER BEEN DISPUTED BY THE REVENUE AUTHORITY NOR BY THE DR. THIS CLAIM OF DEDU CTION U/S 80IB(10) HAS BEEN ALLOWED BY THE CO - ORDIN A T E BENCH IN THE PRECEDING YEAR, WE THEREFORE, RESPECTFULLY FOLLOWING T HE DECISION IN ITA NO.5108/MUM/2011, ALLOW THE CLAIM IN THE CURRENT YEAR AS WELL. SINCE THE IS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE IN ITS OWN DECISION OF THE CO - ORDINATE BENCH. THEREFORE, IN VIEW OF THE ABOVE DISCUSSION, THE APPEAL OF THE REVENUE BECOMES INFRUCTUOUS. ACCORDINGLY DISMISSED AS INFRUCTUOUS. ITA NO . 4930 / M/1 2 5 8 . IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 31 ST AU G, 2017 . 31 ST AUG , 2017 SD SD (JOGINDER SINGH ) ( RAJESH KUMAR ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 31. 8. 2017 . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE AP PELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. 6. , , / DR, ITAT, MUMBAI CONCERNED / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /I TAT, MUMBAI