DCIT 24(3), MUMBAI V. GUNDECHA BUILDERS, MUMBAI

ITA 5207/MUM/2010

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 7305 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-10-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 27-09-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 24-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K NAYAK
• Keywords: Competent authority

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G BEFORE SHRI R.V. EASWAR (PRESIDENT ) & J SUDHAKAR R EDDY (AM) I.T.A.NO. 5207/MUM/2010 (ASSESSMENT YEAR : 2007-08) DCIT 24(3) ROOM NO. 701 C-11, 7 TH FLOOR BANDRA KURLA COMPLEX BANDRA EAST MUMBAI-400 051. VS. M/S. GUNDECHA BUILDERS 141, GUNDECHA HOUSE JAWAHAR NAGAR GOREGAON WEST MUMBAI-400 062. PAN/GIR NO. : AAAFG0848E ASSESSEE BY : SHRI VIMAL PUNMIYA DEPARTMENT BY : SHRI A.K. NAYAK DATE OF HEARING : 27.9.2011 DATE OF PRONOUNCEMENT : ORDER PER J. SUDHAKAR REDDY, (AM) :- THIS IS AN APPEAL FILED BY THE REVENUE AGAINST T HE ORDER OF LEARNED CIT(A)-34, MUMBAI DATED 30.3.2010 FOR A.Y. 2007-200 8 ON THE FOLLOWING GROUNDS :- 1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, LEARNED CIT(A) ERRED IN DIRECTING THE ASSESSING OFF ICER TO ALLOW DEDUCTION U/S. 80IB(10) ON THE SALE PROCEEDS OF THE STILT PARKING. 2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, LEARNED CIT(A) ERRED IN DELETING THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF RE-ALLOCATION OF EX PENSES, AS IN GENERAL P&L ACCOUNT, THE ASSESSEE HAS DEBITED EX PENSES AGAINST THE INCOME OF SAKI NAKA PROJECT ONLY, WHICH IS FULLY TAXABLE. 2. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF DEVEL OPMENT OF REAL ESTATE. IT HAS ONGOING PROJECTS AT POISAR AND SAKI NAKA, ANDHERI. ON THE POISAR PROJECT THE ASSESSEE CLAIMED DEDUCTION U/S. 80IB(10). THE ISSUES BEFORE US PERTAIN TO THIS EXEMPTION U/S. 80IB(10). 3. WE HAVE HEARD SHRI A.K. NAYAK, LEARNED DEPARTMEN TAL REPRESENTATIVE AND SHRI VIMAL PUNMIYA, LEARNED COUN SEL FOR THE M/S. GUNDECHA BUILDERS 2 ASSESSEE. BOTH PARTIES SUBMITTED THAT SIMILAR ISSUE HAS COME UP BEFORE G BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE IN EARLIER ASSESSMENT YEAR 2006-07 AND THE TRIBUNAL IN ITA NO. 2087/MUM/2 010 DATED 21.1.2011 UPHELD THE CONTENTIONS OF THE ASSESSEE AN D DISMISS THE REVENUES APPEAL. 4. WE HAVE PERUSED THE TRIBUNAL ORDER IN THE CASE O F THE ASSESSEE FOR EARLIER ASSESSMENT YEAR. ON GROUND NO. 1 AT PARAGRA PH 5 PAGE 3, THE TRIBUNAL HELD AS FOLLOWS :- 5. WE HAVE HEARD BOTH THE PARTIES. THE ISSUE INVO LVED IS WHETHER THE ASSESSEE IS ELIGIBLE FOR THE DEDUCTION ON SALE PROC EEDS OF THE STILT PARKING OUTSIDE THE PURVIEW OF SECTION 80IB(10). AD MITTEDLY, IT IS NOT THE CASE OF THE REVENUE THAT THE ASSESSEE IS NO T ELIGIBLE OR DEDUCTION U/S.80IB(10) OF THE ACT. THE PLAIN READIN G OF SECTION 80IB(10) HAD CLEARLY INDICATED THAT THE AMOUNT OF D EDUCTION IN THE CASE OF AN UNDERTAKING DEVELOPING AND BUILDING HOUS ING PROJECTS APPROVED BEFORE THE 31ST DAY OF MARCH, 2007 BY A LO CAL AUTHORITY AND FULFILLMENT OF OTHER CONDITIONS. IN THE PRESENT CASE, STILT PARKING IS PART AND PARCEL OF THE HOUSING PROJECT, WHICH WA S APPROVED BY THE COMPETENT AUTHORITY STILT PARKING WAS SOLD TO T HE RESIDENTS FOR HOUSING PROJECTS TO WHOM THE FLATS WERE ALREADY SOL D AND THEREFORE, THERE IS NO CASE FOR DENYING THE CLAIM O F THE ASSESSEE. EVEN IN THE ASSESSEES OWN CASE, IN ITA NO. 7223/MU M/2008 FOR THE ASSESSMENT YEAR 2005-06, THE TRIBUNAL ALLOWED T HE CLAIM OF THE ASSESSEE IN ISSUE OF STILT PARKING. WE, THEREFO RE, IN VIEW OF THE ABOVE FINDINGS OF THE TRIBUNAL, FIND NO INFIRMITY I N THE ORDER OF THE CIT(A). 5. RESPECTFULLY FOLLOWING THE SAME, WE DISMISS GROU ND NO. 1 OF THE REVENUE. 6. COMING TO GROUND NO. 2, THE TRIBUNAL AT PARAGRAP H 11 HELD AS FOLLOWS :- 11. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PE RUSED THE RECORDS LACED BEFORE US. IT IS SUBMITTED BY THE LEARNED COU NSEL FOR THE ASSESSEE THAT THE ASSESSEE HAD MAINTAINED TWO SEPAR ATE ACCOUNTS FOR POISER AS WELL AS SAKI NAKA PROJECTS A ND THE CIT(A) GAVE A FINDING THAT THE ASSESSEE HAD MAINTAINED TWO SEPARATE ACCOUNTS. THE LEARNED CIT(A) HAS GIVEN A FURTHER FI NDING THAT THE A.O. PRESUMED THAT THE ASSESSEE MIGHT HAVE DEBITED THE EXPENDITURE RELATING TO POISER PROJECT TO SAKI NAKA PROJECT TO GET THE BENEFIT U/S.80IB(10) BECAUSE THE PROJECT IS FUL LY ELIGIBLE FOR DEDUCTION. IT IS A FACT THAT THE ASSESSEE HAS ALREA DY DEBITED EXPENSES FOR POISER PROJECT OF RS.1,05,11,664/- AND THE A.O. HAS M/S. GUNDECHA BUILDERS 3 NOT POINTED OUT ANY DEFECT IN THE BOOKS OF ACCOUNT SUBMITTED BY THE ASSESSEE. IN VIEW OF THE ABOVE, WE FIND ANY INF IRMITY IN THE ORDER OF THE CIT(A) AND UPHOLD THE SAME. 7. LEARNED CIT(A) VIDE DECIDING THE APPEAL FOR A.Y. 2006-07 HAS GIVEN A FINDING OF FACT THAT THE ASSESSEE HAS MAINTAINED SEPARATE BOOKS OF ACCOUNT AND BANK ACCOUNT FOR POISAR PROJECT AND THA T NO DISCREPANCY WAS POINTED OUT BY THE ASSESSING OFFICER. RESPECTFU LLY FOLLOWING THE DECISION OF THE COORDINATE BENCH ON THE VERY SAME I SSUE IN THE CASE OF THIS ASSESSEE, WE UPHOLD THE ORDER OF LEARNED CIT(A ) AND DISMISS THIS GROUND OF THE REVENUE. 8 IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED . ORDER HAS BEEN PRONOUNCED ON 7 TH DAY OF OCTOBER, 2011. SD/- (R.V. EASWAR) PRESIDENT SD/- (J.SUDHAKAR REDDY) ACCOUNTANT MEMBER DATED : 7 TH OCTOBER, 2011. COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A)-CONCERNED. 4. THE CIT, CONCERNED. 5. THE DR CONCERNED, MUMBAI 6. GUARD FILE BY ORDER TRUE COPY ASSTT. REGISTRAR, ITAT, MUMBAI PS