ITO WD 3(3), KALYAN V. UMIYA ENTERPRISES, MUMBAI

ITA 544/MUM/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8021 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2003-2004
• Appeal Filed On: 20-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATBIR SINGHDR PER R K
• Assessee Lawyers: HARI S RAHEJA
• Section: 80IB

Judgement Text

1 ITA NO.544/MUM/2011 IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI MUMBAI MUMBAI MUMBAI SMC SMC SMC SMC BENCH BENCH BENCH BENCH MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI BEFORE SHRI R K PANDA, AM BEFORE SHRI R K PANDA, AM BEFORE SHRI R K PANDA, AM BEFORE SHRI R K PANDA, AM ITA NO. ITA NO. ITA NO. ITA NO.544/MUM/2011 544/MUM/2011 544/MUM/2011 544/MUM/2011 (ASST YEAR (ASST YEAR (ASST YEAR (ASST YEAR 2003 2003 2003 2003- -- -04 0404 04 ) )) ) THE INCOME TAX OFFICER WARD 3(3), KALYAN VS UMIYA ENTERPRISES 112 VASDEV LAXMI BLDG B/H TILAK TALKIES ABOVE SATKAR HOTEL] DOMBIVILI(E) ( (( (APPELLANT APPELLANT APPELLANT APPELLANT) )) ) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) PAN NO. PAN NO. PAN NO. PAN NO.AABFU0185B AABFU0185B AABFU0185B AABFU0185B A SSESSEE BY SHRI HARI S RAHEJA REVENUE BY SHRI SATBIR SI NGH-DR PER R K PANDA, AM PER R K PANDA, AM PER R K PANDA, AM PER R K PANDA, AM THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAIN ST THE ORDER DATED 15.10.2010 OF THE CIT(A), I, THANE RELATING TO ASSE SSMENT YEAR 2003-04. 2 THE ONLY GROUND RAISED BY THE REVENUE READS AS UN DER: ON THE FACTS OF THE CASE AND IN LAW, WHETHER THE L D CIT(A) WAS RIGHT IN ALLOWING THE ASSESSEES CLAIM OF DEDUCTION U/S 80IB (10) OF THE I T ACT, 1961 WITHOUT APPRECIATING THE FACT THAT THE PROJECT CONT AINING 1825 SQ.FT OF COMMERCIAL AREA WAS APPROVED BY THE COMPETENT AUTHO RITY PRIOR TO 1.4.2005, THEREBY VIOLATING ONE OF THE CONDITIONS P RESCRIBED Y THE CLAUSE (D) OF SEC 80IB(10) OF THE I T ACT. 3 THE LD COUNSEL FOR THE ASSESSEE, AT THE OUTSET, D REW THE ATTENTION OF THE BENCH TO PARAS 5.3 & 5.4 OF THE ORDER OF THE CIT(A ) WHICH READ AS UNDER: 5.3 THE SUBMISSION AND THE DECISIONS ARE CONSIDERE D. AS REGARDS THE ISSUE OF THE PROJECT HAVING COMMERCIAL AREA OF 1825 SQ.FT THE HON ITAT FOR THE AY 04-05 (ITA NO.2750/MUM/09) IN THE CASE OF TH E INSTANT APPELLANT HAS HELD THAT, THE DEDUCTION COULD NOT BE DENIED ON THIS GROUND. THE OBSERVATION OF THE ITAT IS AS UNDER: 2 ITA NO.544/MUM/2011 THE ASSESSEE IS IN FURTHER APPEAL BEFORE THE TRIBU NAL. AS REGARDS THE POINT RAISED BY THE ASSESSING OFFICER NAMELY TH AT THE HOUSING PROJECT WAS NOT ENTIRELY RESIDENTIAL BUT WAS PARTIA LLY COMMERCIAL, THE SAME IS GOVERNED BY THE ORDER OF THE SPECIAL BE NCH (PUNE) OF THE TRIBUNAL IN THE CASE OF BRAHMA ASSOCIATES VS JC IT(2009) 119 ITD 255(SB). IN THIS CASE, IT HAS BEEN HELD THAT THE MA RGIN OF 10% CAN BE GIVEN FOR COMMERCIAL AREA AND SO LONG AS THE COM MERCIAL SPACE IN THE BUILT UP AREA IS LESS THAN 10% OF THE TOTAL BUILT UP AREA, THE CLAIM FOR DEDUCTION U/S 80IB(10) CANNOT BE DENIED. THIS ORDER SUPPORTS THE ASSESSEES CLAIM THAT THE COMMERCIAL A REA OF UMIYA COMPLEX BEING ONLY 1.36% OF THE TOTAL BUILT UP ARE A, THE DEDUCTION CANNOT BE REFUSED. ACCORDINGLY, WE HOLD THAT, THE A SSESSEES CLAIM CANNOT BE REFUSED ON THIS GROUND NAMELY THE GROUND THAT THE ASSESSEE DID NOT SATISFY THE CONDITION PRESCRIBED B Y CLAUSE (C ) OF SEC. 80IB(10). 5.4 THE ABOVE DECISION IS BINDING ON ME IN VIEW OF DECISIONS REPORTED IN 175 CTR (BOM) 663 & 177 CTR (MP) 15 AND, THEREFORE, I TAKE THE VIEW THAT DISALLOWANCE OF CLAIM OF DEDUCTION CANNOT BE MADE B ECAUSE THE PROJECT CONTAINS 1825 SQ.FT OF COMMERCIAL AREA. ACCORDINGLY , I DECIDE THE ISSUE IN FAVOUR OF THE APPELLANT. REFERRING TO THE SAME, HE SUBMITTED THAT THE CIT(A) HAS FOLLOWED THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE VIDE ITA NO.2750/MU M/2009 ORDER DATED 8.2.2010 FOR THE ASSESSMENT YEAR 2004-05. THEREFOR E, THIS BEING COVERED IN FAVOUR OF THE ASSESSEE, THE GROUND RAISED BY THE RE VENUE SHOULD BE DISMISSED. 3.1 THE LD DR, ON THE OTHER HAND, FAIRLY CONCEDED T HAT THE ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE IN VIEW OF THE DECISION O F THE TRIBUNAL IN ASSESSEES OWN CASE. 4 AFTER HEARING BOTH THE PARTIES, I DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD CIT(A). ADMITTEDLY, THE LD CIT(A) WHILE ALLO WING THE CLAIM U/S 80IB(10) MADE BY THE ASSESSEE, FOLLOWED THE ORDER OF THE TRI BUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2004-05 AND THE DECISIONS REPORTED IN 175 CTR 663 3 ITA NO.544/MUM/2011 (BOM) AND 177 CTR 15 (MP). THE LD DR COULD NOT BRIN G ANY CONTRARY MATERIAL TO CONTROVERT THE FINDINGS OF THE LD CIT(A), WHO HAS F OLLOWED THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE. IN THIS VIEW OF THE MATER, THE GROUND RAISED BY THE REVENUE STANDS DISMISSED. 5 IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON THE 23 RD ,DAY OF MAR 2011. SD/- ( R K PANDA ) ( R K PANDA ) ( R K PANDA ) ( R K PANDA ) ACCOUNTANT MEMBER PLACE: MUMBAI : DATED: 23 MAR 2011 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI