ACIT 15(2), MUMBAI V. KRISH DEVELOPERS, MUMBAI

ITA 4975/MUM/2011

• Counselvise Citation: 497519914 RSA 2011
• Duration Of Justice: 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-05-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 23-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS USHA NAIR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI A BENCH BEFORE SHRI R.S. SYAL (AM) & SHRI S.S.GODARA (JM) ITA NO.4975/M/2011 ASSESSMENT YEAR: 2007-08 ACIT 15(2), MATRU MANDIR, R.NO. 113, TARDEO, MUMBAI 400 0108. APPELLANT VS. M/S. KRISH DEVELOPERS, AGARWAL GOLDEN CHAMBERS, PLOT NO. 13A, FUN REPUBLIC ROAD, BEHIND BALAJI TELE FILMS, NEW LINK ROAD, ANDHERI (W), MUMBAI 400 053. PAN: AAHFK O744J . RESPONDENT APPELLANT BY: MRS. USHA NAIR RESPONDENT BY: NONE DATE OF HEARING: 3.5.2012 DATE OF ORDER:16.5 .2012 ORDER PER S.S. GODARA, JM: THE REVENUE HAS FILED THE INSTANT APPEAL AGAINST TH E ORDER OF LD CIT(A), DATED 28/4/2011. 2. IN THE INSTANT APPEAL, REVENUES ALL GROUNDS AR E INTERCONNECTED. THEREFORE, THEY ARE BEING DECIDED TOGETHER. 3. THE FACTS OF THE CASE ARE THAT THE ASSESSEE WHO WAS INVOLVED IN THE BUSINESS OF CONSTRUCTION FILED RETURN ON 15.09.1008. CLAIMED DE DUCTION OF RS. 8,00,49,541/- U/S 80 2 ITA NO.4975/M/2011 IB(10) OF THE INCOME TAX ACT, 1961. AFTER DEDUCTING THE SAID AMOUNT, IT REFLECTED ITS INCOME AS RS NIL. 4. THE ASSESSING OFFICER DID NOT ACCEPT THE CLAIM OF DEDUCTION. ASSESSEE ALSO FILED ALL DETAILS. VIDE ASSESSMENT ORDER DATED 16/12/2010, TH E ASSESSING OFFICER HELD THAT SINCE THE HOUSING PROJECT IN QUESTION COMPRISED OF COMMER CIAL BUILT UP AREA IN EXCESS OF 2000 SQ. FT., THE SAME WAS NOT ELIGIBLE FOR DEDUCTION IN QUESTION. THEREFORE, MADE DISALLOWANCE TO THE TUNE OF ABOVE AMOUNT CLAIMED. 5. THE ASSESSEE FILED APPEAL BEFORE THE CIT (A). R ELYING ON THE ORDER OF SPECIAL BENCH PUNE ITAT IN THE CASE OF M/S. BRAHMA ASSOCIATES ITA NO 1417/PN/2006 DECIDED ON 6TH APRIL 2009, THE LD. CIT (A) HAS ACCEPTED THE APPEAL . RETURNED A FINDING WOULD THAT COMMERCIAL AREA IN THE ASSESSEE'S CASE IS LESS THAN 10% OF THE HOUSING PROJECT OR RESIDENTIAL AREA. IT HAS ALSO BEEN OBSERVED THAT SU BJECT TO FULFILLING OTHER CONDITIONS, THE ASSESSEE'S CLAIM FOR DEDUCTION IN HAND IS ACCEPTABL E UNDER SECTION 80 IB( 10). WHILE DECIDING THE APPEAL AGAINST THE REVENUE, IT HAS ALS O BEEN TAKEN NOTE THAT THE HONBLE JURISDICTIONAL HIGH COURT HAS ALSO UPHELD THE SPECI AL BENCH DECISION (SUPRA). HENCE, THE REVENUE HAS A GRIEVANCE. 6. THE ONLY ISSUE AS IT CAN BE CULLED FROM THE GRO UNDS IS THAT THE REVENUE HAS FILED A SPECIAL LEAVE PETITION BEFORE THE HONBLE APEX COUR T AGAINST THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT UPHOLDING THE SPECIAL BEN CH DECISION (SUPRA). THEREFORE, THE REVENUE HAS FILED THE INSTANT APPEAL ON THE SOLE IS SUE. 7. IN THE COURSE OF HEARING, THE LD DR HAS RELIED ON ASSESSING OFFICERS ORDER DISALLOWING THE DEDUCTION IN HAND UNDER SECTION 80- IB(10). PRAYED FOR ACCEPTANCE OF THE APPEAL. 3 ITA NO.4975/M/2011 8. ON THE OTHER HAND, LD AR HAS RELIED ON IMPUGNED ORDER. FURTHER SUBMITTED THAT THE SPECIAL BENCH DECISION IN THE CASE OF M/S. BRAHMA A SSOCIATES HAS BEEN UPHELD BY THE JURISDICTIONAL HIGH COURT. HENCE, THE SOLE ISSUE DO ES NOT SURVIVE. PRAYED FOR REJECTION OF THE APPEAL. 9. WE HAVE HEARD BOTH THE LEARNED REPRESENTATIVES. FACTS ARE NOT IN DISPUTE. THE ONLY ISSUE IS THAT THE REVENUE WAS PREFERRED SPECIAL LEA VE PETITION BEFORE THE HONBLE APEX COURT AGAINST THIS SPECIAL BENCH DECISION IN THE CA SE OF M/S. BRAHMA ASSOCIATES WHICH HAS BEEN UPHELD BY THE HONBLE JURISDICTIONAL HIGH COURT. BE THAT AS IT MAY, WE ARE OF THE OPINION THAT SINCE THE HONBLE JURISDICTIONAL HIGH COURT HAS DISMISSED THE REVENUES APPEAL, THE INSTANT APPEAL HAS ALSO TO FOLLOW SUIT. 10. THEREFORE, THE PRESENT APPEAL BEING DEVOID OF M ERIT ALSO STANDS REJECTED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 16 TH DAY OF MAY, 2012. SD/- SD/- (R.S. SYAL) (S.S. GODARA) ACCOUNTANT MEMBER JUDICIAL ME MBER DATE :16.5.2012 AT :MUMBAI OKK COPY TO : THE APPELLANT THE RESPONDENT THE CIT(A), MUMBAI CONCERNED THE CIT, MUMBAI CONCERNED THE DR A BENCH, ITAT, MUMBAI // TRUE COPY// 4 ITA NO.4975/M/2011 BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI