ITO 8(2)(1), MUMBAI V. JAYCEE HOMES LTD, MUMBAI

ITA 4961/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87920 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Assessment Year: 2007-2008
• Appeal Filed On: 01-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIVEK PERAMPURNA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUM BAI , BEFORE SHRI D. MANMOHAN, VP AND SHRI SANJAY ARORA, AM I.T.A. NO. 4961/MUM/2013 ( / ASSESSMENT YEAR: 2007-08) ITO-WARD 8(2)(1), 2 ND FLOOR, ROOM NO. 216-A, AAYAKHAR BHAVAN, M. K. ROAD, MUMBAI-400 020 VS. JAYCEE HOMES LTD. GR. FLOOR, PANCH-RATNA MARG, OFF. YARI ROAD, VERSOVA, ANDHERI (W), MUMBAI-400 061 ! ' ./PAN/GIR NO. AABCJ 0191 K ( !# /APPELLANT ) : ( $%!# / RESPONDENT ) !#&' / APPELLANT BY : SHRI VIVEK PERAMPURNA $%!#&' / RESPONDENT BY : NONE ( )*&+, / DATE OF HEARING : 22.10.2014 -./&+, / DATE OF PRONOUNCEMENT : 07.01.2015 0 O R D E R PER SANJAY ARORA, A. M.: THIS IS AN APPEAL BY THE REVENUE DIRECTED AGAINST T HE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-17, MUMBAI (CIT(A) FOR SH ORT) DATED 29.04.2013, PARTLY ALLOWING THE ASSESSEES APPEAL CONTESTING ITS ASSES SMENT U/S.143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMEN T YEAR (A.Y.) 2007-08 VIDE ORDER DATED 30.03.2012. 2. NONE APPEARED FOR AND ON BEHALF OF THE ASSESSEE- RESPONDENT WHEN THE APPEAL WAS CALLED OUT FOR HEARING. THIS, DESPITE DUE SERVICE O F NOTICE OF HEARING, PROOF OF WHICH IS ON 2 ITA NO. 4961/MUM/2013 (A.Y. 2007-08) ITO VS. JAYCEE HOMES LTD. RECORD. UNDER THE CIRCUMSTANCES, IT WAS ONLY CONSID ERED FIT AND PROPER TO PROCEED WITH THE MATTER, DECIDING THE APPEAL AFTER HEARING THE P ARTY BEFORE US. 3. THE ONLY ISSUE ARISING IN THIS APPEAL IS THE VAL IDITY IN LAW, AND IN THE FACTS AND CIRCUMSTANCES OF THE CASE, OF THE DELETION OF THE D ISALLOWANCE OF THE ASSESSEES CLAIM UNDER SECTION 80-IB(10) IN RESPECT OF REALIZATION O F STILT PARKING SPACE OF A HOUSING PROJECT. 4. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. THE IMPUGNED CLAIM IS QUA TWO ELIGIBLE HOUSING PROJECTS, I.E., SHIV SHAKTI T OWERS AND KAILASH TOWERS, BOTH AT POWAI, MUMBAI, THE PROF ITS OF WHICH ARE OTHERWISE ENTITLED TO AND HAVE BEEN ALLOWED AS DEDUCTION UNDER SECTION 80-IB. THE REVENUES SOLE OBJECTION IS THAT SINCE THE SAME DOES NOT REPRESENT SALE OF R ESIDENTIAL FLATS, BUT ONLY CAR PARKING SPACE, THE SAID RECEIPT WOULD NOT FORM PART OF THE PROFITS DERIVED FROM THE SAID HOUSING PROJECT/S OR OTHERWISE QUALIFY FOR DEDUCTION UNDER THE SAID PROVISION. THE FIRST APPELLATE AUTHORITY ALLOWED THE ASSESSEES CLAIM FOLLOWING TH E DECISION BY THE TRIBUNAL IN THE ASSTT. CIT VS. VAMAN ESTATES (IN ITA NO. 7570/MUM/2011 DATED 19.10.2012), HOLDI NG THAT CAR PARKING IS AN INTEGRAL PART OF THE HOUSING PROJECT APPROVED BY THE LOCAL AUTHORITY. REALISATION IN ITS RESPECT COULD NOT THEREFORE BE E XCLUDED WHILE DETERMINING THE DEDUCTION UNDER SECTION 80-IB(10). WE FIND NO INFIRMITY IN THE IMPUGNED ORDER. NOT ONL Y WAS THE LD. CIT(A), IN THE ABSENCE OF ANY DECISION TO THE CONTRARY BY THE TRIB UNAL OR A HIGHER APPELLATE FORUM BEING BROUGHT TO HIS NOTICE OR OTHERWISE ADVANCED BY HIM, BOUND TO FOLLOW THE DECISION CITED BEFORE HIM BY THE ASSESSEE, THE PRINCIPLE ON WHICH THE SAID DECISION IS BASED HAS NOT BEEN ASSAILED BY THE REVENUE IN ANY MANNER. STILT PARKIN G, WHICH IN THE PRESENT CASE IS FOR THE PARKING OF THE CARS, IS ONLY A PART OF THE HOUSING PROJECT, SO THAT THE RECEIPT IN ITS RESPECT WOULD FORM PART OF THE RECEIPT OF, AND THUS THE PRO FIT DERIVED FROM, THE ELIGIBLE HOUSING PROJECT/S. CAR PARKING, THOUGH SOLD SEPARATELY, IS ONLY FOR THE RESIDENTS OF THE FLATS HOUSED IN THE RELEVANT PROJECTS. IN FACT, THE REVENUE, IN DENYING THE ASSESSEES CLAIM, HAS EXCLUDED THE ENTIRE RECEIPT, RATHER THAN, IF AT ALL , THE PROFIT ATTRIBUTABLE TO OR EMBEDDED IN 3 ITA NO. 4961/MUM/2013 (A.Y. 2007-08) ITO VS. JAYCEE HOMES LTD. THE SAID RECEIPT IN-AS-MUCH AS THE SAME WOULD ALSO HAVE A CORRESPONDING COST TO IT. WE, ACCORDINGLY, HAVE NO HESITATION IN UPHOLDING THE IM PUGNED ORDER. WE DECIDE ACCORDINGLY. 5. IN THE RESULT, THE REVENUES APPEAL IS DISMISSED . 1/+2)& 1&+3 ORDER PRONOUNCED IN THE OPEN COURT ON JANUARY 07, 2 015 SD/- SD/- (D. MANMOHAN) (SANJAY ARORA) / VICE PRESIDENT / ACCOUNTANT MEMBER ( 4* MUMBAI; 5 DATED : 07.01.2015 )6 ROSHANI , SR. PS !' # $%&' ('% COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $ %!# / THE RESPONDENT 3. ( 7+ 8 9 / THE CIT(A) 4. ( 7+ / CIT - CONCERNED 5. :);<$6+6=> ,=>/ ( 4* / DR, ITAT, MUMBAI 6.