ITO CEN THANE, THANE V. SALASAR DEVELOPERS, THANE

ITA 5637/MUM/2012

• Counselvise Citation: 563719914 RSA 2012
• Duration Of Justice: 1 year(s) 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 19-05-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 07-09-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: JIGNESH P SHAH

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI , , BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA , JUDICIAL MEM BER . / ITA NO. 5635 / MUM./201 2 ( / ASSESSMENT YEAR : 20 0 4 05 ) . / ITA NO. 5636/ MUM./201 2 ( / ASSESSMENT YEAR : 2005 06 ) . / ITA NO. 5637/ MUM./201 2 ( / ASSESSMENT YEAR : 2006 07 ) . / ITA NO. 5638/ MUM./201 2 ( / ASSESSMENT YEAR : 2007 08 ) ASSTT. COMMISSIONER OF INCOME TAX CIRCLE 2, THANE, QURESHI MANSION GOKHALE ROAD, NAUPADA THANE (WEST) 400 602 .. / APPELLANT V/S M/S. SALASAR DEVELOPERS GROUND FLOOR, VRINDAVAN SALASAR BRIJBHOMI TEMBA NAKA BHAYANDER (W) DISTRICT THANE .... / RESPONDENT ./ PERMANENT ACCOUNT NUMBER AAKFS6465R / REVENUE BY : MR. MAURYA PRATAP / ASSESSEE BY : MR. JIGNESH P. SHAH / DATE OF HEARING 22 .0 5 .201 4 / DATE OF ORDE R 22.05.2014 M/S. SALASAR DEVELOPERS 2 / ORDER , / PER AMIT SHUKLA , J.M. THE PRESENT APPEAL S HA VE BEEN PREFERRED BY THE REVENUE CHALLENGING THE IMPUGNED COMMON ORDERS OF EVEN DATE 14 TH JUNE 2012, PASSED BY HE LEARNED COMMISSIONER (APPEALS) I, THANE, FOR THE ASSESSMENT YEAR 2004 05, 2005 06, 2006 07 AND 2007 08, IN RELATION TO PENALTY PRO CEEDINGS. 2 . SINCE ALL T HESE APPEALS PERT AIN TO THE SAME ASSESSEE INVOLVING COMMON ISSUE , EXCEPT VARIATION IN FIGURES, ARISING OUT OF MATERIALLY SIMILAR SET FACTS & CIRCUMSTANCES , THEREFORE, AS A MATTER OF CONVENIENCE, THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY WAY OF THIS CONSOLIDATED ORDER. 3 . THE SOLE COMMON GRIEVANCE RAISED BY THE REVENUE FOR ALL THE YEARS UNDER APPEAL IS THAT THE LEARNED COMMISSIONER (APPEALS) HAS ERRED IN DIRECTING THE ASSESSING OFFICER TO DELETE THE PENALTY LEVIED BY HIM UNDE R SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT ) FOR ` 6,95,880 IN THE ASSESSMENT YEAR 2004 05. ` 64,88,051 IN THE ASSESSMENT YEAR 2005 06, ` 42,93,460 IN THE ASSESSMENT YEAR 2006 07 AND ` 36,65,112 IN THE ASSESSMENT YEAR 2007 08 ON A CCOUNT OF DISALLOWANCE OF CLAIM MADE UNDER SECTION 80IB(10) OF THE ACT. 2 . THE ASSESSING OFFICER, DURING THE COURSE OF ASSESSMENT PROCEEDINGS, DISALLOWED THE DEDUCTION UNDER SECTION 80IB(10), ON THE FOLLOWING GROUNDS: I ) THE PROJECT WAS APPROVED AS A COMMERCIA L CUM RESIDENTIAL PROJECT AND NOT AS A HOUSING PROJECT; M/S. SALASAR DEVELOPERS 3 II ) THE PROJECT WAS NOT COMPLETED AS ON THE SITE VISIT IT WAS FOUND THAT THE CONSTRUCTION WAS IN PROGRESS; III ) THAT THE BUILT UP AREA OF SOME OF THE FLATS EXCEEDS 1000 SQ.FT.; AND IV ) THE PROJECT CONTAINS COMM ERCIAL AREA AS SOME SHOPS HAVE BEEN CONSTRUCTED. 3 . DURING THE FIRST APPELLATE PROCEEDINGS, THE SAID DISALLOWANCE WAS CONFIRMED ON THE GROUND THAT THE PROJECT WAS NOT COMPLETED ON/OR BEFORE 31 ST MARCH 2008, BEING THE STIPULATED DATE.. THE LEARNED COMMISSIONE R (APPEALS), HOWEVER, HELD THAT THE ASSESSEE WAS ENTITLED FOR DEDUCTION ON PRORATA BASIS BY EXCLUDING THE PROFIT RELATABLE TO THE COMMERCIAL AREA AND THE FLATS WHICH WERE HAVING BUILT UP AREA EXCEEDING 1,000 SQ.FT. 4 . BEFORE US, THE LEARNED COUNSEL FILED A C OPY OF ORDER 17 TH APRIL 2013 PASSED BY THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2004 05, 2005 06, 2006 07 AND 2007 08 (CROSS APPEALS). HE SUBMITTED THAT IN THE QUANTUM PROCEEDINGS, THE TRIBUNAL HAS SET ASIDE TH E ASSESSMENTS TO THE FILE O F THE LEARNED COMMISSIONER (APPEALS) FOR FRESH ADJUDICATION. HE SUBMITTED THAT SINCE THE QUANTUM APPEALS HAVE BEEN SET ASIDE TO THE FILE OF THE LEARNED COMMISSIONER (APPEALS), THEN THE PRESENT APPEALS CAN ALSO BE SET ASIDE TO THE FILE OF THE LEARNED COMMIS SIONER (APPEALS). 5 . LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, SUBMITTED THAT SINCE THE LEARNED COUNSEL HIMSELF AGREED THAT THE PENALTY MATTER SHOULD ALSO BE SET ASIDE TO THE FILE OF THE LEARNED COMMISSIONER (APPEALS), THEN HE HAS NO OBJECTION IN RESTORING THE ISSUE RELATING TO PENALTY BACK TO THE FILE OF THE LEARNED COMMISSIONER (APPEALS). M/S. SALASAR DEVELOPERS 4 6 . AFTER HEARING BOTH THE PARTIES, WE FIND THAT THE LEARNED COMMISSIONER (APPEALS) HAS DELETED THE PENALTY AFTER DETAIL DISCUSSION ON MERITS. HOWEVER, THE LEAR NED COUNSEL BEFORE US SUBMITTED THAT IN THE QUANTUM PROCEEDINGS, THE TRIBUNAL HAS SET ASIDE THE MATTER TO THE FILE OF THE LEARNED COMMISSIONER (APPEALS) AND, THEREFORE, THE IMPUGNED ORDERS OF THE LEARNED COMMISSIONER (APPEALS) FOR ALL THE YEARS UNDER APPEA L SHOULD ALSO TO BE RESTORED. CONSEQUENTLY, WE SET ASIDE THE IMPUGNED ORDERS PASSED BY THE LEARNED COMMISSIONER (APPEALS) FOR THE ASSESSMENT YEAR 2004 05, 2005 06, 2006 07 AND 2007 08 AND RESTORE THE ISSUE BACK TO THE FILE OF THE LEARNED COMMISSIONER (APPE ALS) FOR DECIDING THE ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER DECIDING THE QUANTUM PROCEEDINGS. 7 . 2004 05, 2005 06, 2006 07 2007 08 7. IN THE RESULT, REVENUES APPEAL FOR THE ASSESSMENT YEAR 2004 05, 2005 06, 2006 07 AND 2007 08 ARE ALLOWED FOR STATISTICAL PURPOSES. 22 ND MAY 2014 ORDER PRONOUNCED IN THE OPEN COURT O N 22 ND MAY 2014 SD/ - S ANJAY ARORA ACCOUNTANT MEMBER SD/ - AMIT SHUKLA JUDICIAL MEMBER MUMBAI, DATED : 22 ND MAY 2014 M/S. SALASAR DEVELOPERS 5 / COPY OF THE ORDER FORWARDED TO : ( 1 ) / THE ASSESSEE ; ( 2 ) / THE R EVENUE; ( 3 ) ( ) / THE CIT(A ) ; ( 4 ) / THE CIT, MUMBAI CITY CONCERNED ; ( 5 ) , , / THE DR, ITAT, MUMBAI ; ( 6 ) / GUARD FILE . / TRUE COPY / BY ORDER . / PRADEEP J. CHOWDHURY / SR. PRIVATE SECRETARY / / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI / / 19997 98 2000 01 / / / / / / / / / /