ITO WD 15(2)(2), MUMBAI V. VINAMRA CONSTRUCTION, MUMBAI

ITA 5190/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92505 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-05-2015
• Appeal Filed By: Department
• Bench Allotted: F
• Assessment Year: 2008-2009
• Appeal Filed On: 19-07-2013
• Court: TRIBUNAL
• Keywords: Bad and doubtful debts
• Section: 143(3)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K ** ,Q U;K;IHB EQACBZ ESAA IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI JH TH + ,L + IUUW] YS[KK LNL; ,OA JH VFER KQDYK] U;KF;D LNL; DS LE{KA BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER VK;DJ VIHY LA[;K@ ITA NO 5190/MUM/2013 ( FU/KKZJ.K OKZ / ASSESSMENT YEAR: - 2008 - 09) I.T.O. 15(2)(2), ROOM NO. 110 MATRU MANDIR,01 ST FLOOR, TARDEO ROAD, MUMBAI 400007. VS.` M/S. VINAMRA CONSTRUCTION, GR. FLOOR, SHAILESH BLDG, (OUTHOUSE), LINKING ROAD, SANTACRUZ (W) MUMBAI - 400054. LFKK;H YS[KK LA[;K@TH VKB VKJ LA[;K@ PAN/GIR NO. AAACN 5895 K APPELLANT RESPONDENT ORDER PER G.S. PANNU, AM THE CAP TIONED APPEAL PREFERRED BY THE R EVENUE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (HEREINAFTER REFERRED TO AS THE CIT(A)) DATED 23.05.2013 WHICH IN TURN HAS ARISEN FROM AN ORDER PASSED BY THE A SSESSING O FFICER U/S 143(3) OF THE INCOME TAX ACT, 1961( HEREINAFTER REFERRED TO AS THE ACT) DATED 10.11.2010 PERTAINING TO A SSESSMENT Y EAR 2008 - 09. IN THIS APPEAL , THE R EVENUE HAS RAISED FOLLOWING G ROUNDS OF APPEAL : - JKTLO FD VKSJ LS @ REVENUE BY NILIMA NADKARNI FU/KZKFJFR FD VKSJ LS @ ASSESSEE BY HARI OM TULSIYAN LQUOKBZ FD RKJH[K @ DATE OF HEARING 30.4.2015 ?KKSK.KK FD RKJH[K@ DATE OF PRONOUNCEMENT 08 .5.2015 VK;DJ VIHY LA[;K@ ITA NO 5190/MUM/2013 ( FU/KKZJ.K OKZ / ASSESSMENT YEAR: - 2008 - 09) 1 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD. CIT(A) WAS RIGHT IN HOLDING THAT RESTRICTION ON COMMERCIAL ARE INTRODUCED VIDE CLAUSE (D) TO SEC. 80IB(10) OF THE I.T. ACT IS APPLICABLE TO ONLY HOUSING PROJECT APPROVED ON OR AFTER 01.04.2005. 2. ON THE FACT AND CIRCUMSTANCES OF THE CA SE AS WELL AS IN LAW, THE LD. CIT(A) ERRED IN LAW IN DELETING THE ADDITION OF BAD DEBTS IGNORING THE FACT THAT THE ASSESSEE HAS RECEIVED THE ENTIRE AMOUNTS FROM THE DEBTORS IN RESPECT OF WHOM BAD DEBTS WERE CLAIMED. 2. IN SO FAR AS THE FIRST G ROUND OF APPEAL IS CONCERNED, THE SAME RELATES TO ASSESSEES CLAIM FOR DEDUCTION U/S 80 - IB(10) OF THE ACT, AMOUNTING TO RS. 901379 WITH RESPECT TO THE PROFITS DERIVED FROM DEVELOPMENT AND CONSTRUCTION OF A HOUSING PROJECT. THE CLAIM RELATED TO A HOUSING P ROJECT NAMED SHUBHANGAN AT MIRA ROAD, THANE., UNDERTAKEN BY THE ASSESSEE. THE A SSESSING O FFICER DISALLOWED THE CLAIM OF THE ASSESSEE FOR THE REASON THAT THE COMMERCIAL AREA IN THE PROJECT EXCEEDED THE LIMIT LAID DOWN IN CLAUSE ( D ) OF SECTION 80 - IB(10) OF THE ACT. OSTENSIBLY , THE SAID OBJECTION WAS SIMILAR TO THE STAND OF THE A SSESSING O FFICER IN THE EARLIER YEARS WHEREIN ALSO ASSESSEES CLAIM FOR DEDUCTION U/S 80 - IB(10) OF THE ACT IN RELATION TO THE PR OFITS OF THE HOUSING PROJECT SHUBHANGAN W AS DENIE D. THE CIT(A) ALLOWED THE CLAIM OF THE ASSESSEE NOTICING THAT FOR A.Y. 2006 - 07 AND 2007 - 08, IN ASSESSEES OWN CASE, THE TRIBUNAL VIDE ITS ORDER IN ITA NO S . 2051/MUM/2010 AND6925/MUM/2010 DATED 30.09.2011 AND 10.08.2012 RESPECTIVELY ALLOWED THE CLAIM OF T HE AS SESSEE. AS A CONSEQUENCE, THE R EVENUE HAS FILED APPEAL BEFORE US. 3. BEFORE US, THE LD REPRESENTATIVE FOR THE RESPONDENT ASSESSEE ASSERTED THAT THE DISPUTE IS FULLY COVERED BY THE DECISION S OF THE TRIBUNAL DATED 30.09.2011(SUPRA) AND 10.08.2012(SUPRA ) IN ASSESSEES OWN CASE AND THE SAID ORDERS OF THE TRIBUNAL CONTINUE TO HOLD THE FIELD. THE AFORESAID FACTUAL MATRIX BROUGHT OUT BY THE RESPONDENT HAS NOT BEEN DISPUTED BY THE LD. DR BEFORE US. VK;DJ VIHY LA[;K@ ITA NO 5190/MUM/2013 ( FU/KKZJ.K OKZ / ASSESSMENT YEAR: - 2008 - 09) IN VIEW OF THE AFORESAID PRECEDENT, WE HEREBY AFFIRM THE O RDER OF CIT(A), WHEREIN THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 80 - IB(10) HAS BEEN ALLOWED. THUS IN SO FAR AS THE G ROUND OF THE APPEAL NO. 1 IS CONCERNED, THE STAND OF THE R EVENUE IS DISMISSED. 4. THE DISPUTE IN G ROUND OF APPEAL N O. 2 IS WITH RESPECT TO THE ACTION OF THE CIT(A) IN ALLOWING THE DEDUCTION FOR BAD DEBTS AMOUNTING TO RS. 22,500/ - . THE CIT(A) ALLOWED THE CLAIM OF THE ASSESSEE ON THE GROUND THAT THE BAD DEBTS HAVE BEEN ACTUALLY WRITTEN OFF IN THE BOOKS OF ACCOUNT. FURTHERMORE, THE CIT(A) NOTICE D THAT EVEN IF SUCH AN AMOUNT WAS TO BE DISALLOWED, THERE WOULD NOT BE ANY TAX IMPACT BECAUSE THE ENHANCED PROFIT RESULTING ON ACCOUNT OF SUCH DISALLOWANCE WOULD BE ELIGIBLE FOR DEDUCTION U/S 80 - IB(10) OF THE ACT. 5. O N BOTH THE AFORESAID ASPECTS, N O COGENT REASONING HAS BEEN ADVANCED BY THE LD. DR BEFORE US, WHICH WOULD REQUIRE US TO INTERFERE WITH THE CONCLUSION OF CIT(A). ACCORDINGLY, THE ORDER OF CIT(A) IS CONFIRMED . G ROUND N O. 2 OF THE REVENUES APPEAL ALSO FAILS. 6. RESULTANTLY , TH E APPEAL OF THE R EVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 8 TH DAY OF MAY 2015 SD/ - SD/ - (AMIT SHUKLA) (G.S. PANNU) (JUDICIAL MEMBER/ U;KF;D LNL; ) (ACCOUNTANT MEMBER/ YS[KK LNL; ) MUMBAI DATED 8 - 05 - 2015 SKS SR. P.S, VK;DJ VIHY LA[;K@ ITA NO 5190/MUM/2013 ( FU/KKZJ.K OKZ / ASSESSMENT YEAR: - 2008 - 09) COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR, B BENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI