SHRI. R.A. PRASAD I.T.O. 25(1)(1), MUMBAI V. M/S. KINJAL ASSOCIATES, MUMBAI

ITA 5656/MUM/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 49101 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-06-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 01-11-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 20-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALEXANDER CHANDY
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D : MUMBAI BEFORE SHRI D.MANMOHAN, VICE PRESIDENT AND SHRI T.R.SOOD, ACCOUNTANT MEMBER ITA. NO. 5656/MUM/2009 ASSESSMENT YEAR 2006-2007 I.T.O. 25 (1) (1) MUMBAI 400 051 VS. M/S. KINJAL ASSOCIATES MUMBAI 400 068 PAN AAGFK2498G (APPELLANT) (RESPONDENT) FOR APPELLANT : SHRI ALEXANDER CHANDY (SR. D.R.) FOR RESPONDENT : SHRI SHASHI TULSIYAN ORDER PER D. MANMOHAN, V.P. 1. THIS APPEAL IS FILED AT THE INSTANCE OF THE REV ENUE AND IT PERTAINS TO THE ASSESSMENT YEAR 2006-2007. 2. FACTS CONCERNING THE ONLY ISSUE IN DISPUTE ARE STATED IN BRIEF. THE ASSESSEE IS AN ASSOCIATION OF PERSONS EN GAGED IN THE BUSINESS OF CONSTRUCTION AND DEVELOPMENT OF BUILDIN G. FOR THE YEAR UNDER CONSIDERATION IT DECLARED TOTAL INCOME AT NIL , AFTER CLAIMING DEDUCTION UNDER SECTION 80IB (10) OF THE ACT. DURIN G THE COURSE OF SCRUTINY PROCEEDINGS THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE IS HAVING ONLY ONE RESIDENTIAL CUM COMMERCIAL PROJECT ON HAND KNOWN AS LA-VISTA, POONAM SAGAR COMPLEX AT MIRA ROAD, D ISTRICT THANE AND THE COMMENCEMENT OF THE SAID BUILDING COMMENCED DUR ING THE FINANCIAL YEAR 2003-2004 AND COMPLETED DURING THE F INANCIAL YEAR RELEVANT TO THE ASSESSMENT YEAR 2006-2007. ACCORDIN G TO THE ASSESSING OFFICER THE BUILT-UP AREA OF THE SHOPS IS MORE THAN 5% OF THE AGREED BUILT-UP AREA OF THE PROJECT AND HENCE, ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION UNDER SECTION 80IB (10) OF T HE ACT. THOUGH THE ASSESSEE HAS FURNISHED DETAILED REPLY THE ASSESSING OFFICER WAS NOT CONVINCED AND ACCORDINGLY REJECTED THE CLAIM OF THE ASSESSEE. ON AN 2 APPEAL FILED, LEARNED CIT(A) ACCEPTED THE PLEA OF T HE ASSESSEE FOR THE COMPREHENSIVE REASONS GIVEN BY HIM FROM PARA 6 ONWA RDS. SUFFICE IT TO SAY THAT THE DECISION OF THE LEARNED CIT(A) IS B ASED UPON SEVERAL PRECEDENTS WHEREIN UNDER IDENTICAL CIRCUMSTANCES DE DUCTION UNDER SECTION 80IB (10) WAS HELD TO BE ALLOWABLE. ASSESSE E HAS ALSO FURNISHED THE FOLLOWING ORDERS OF THE ITAT, MUMBAI BENCH IN SUPPORT OF HIS CONTENTION THAT THE ITAT, MUMBAI BENCH HAS B EEN CONSISTENTLY HOLDING, UNDER IDENTICAL CIRCUMSTANCES, THAT DEDUCT ION IS PERMISSIBLE UNDER SECTION 80IB (10) OF THE ACT. I. DCIT VS. M/S. PNK CORPORATION VIDE ITA.NO.5792/MUM/2008 DATED 29-4-2011. II. ITO VS. POONAM GRUH NIRMAN ITA.NO. 2003/MUM/2010 & ITA. NO. 2052/MUM/2010. III. HIRANANDANI AKRUTI JV VS. DCIT (2010) 39 SOT 498 (M UM.). IV. (2008) 115 TTJ (MUM.) 485 SAROJ SALES ORGANISATION VS. ITO. 3. LEARNED DR COULD NOT CONTRADICT THE FINDINGS OF THE LEARNED CIT(A) AND HAS NOT PLACED ANY DECISION WHER EIN A CONTRARY VIEW WAS TAKEN. 4. LEARNED COUNSEL, APPEARING ON BEHALF OF THE ASS ESSEE, ON THE OTHER HAND SUBMITTED THAT THE ISSUE STANDS SQUA RELY COVERED BY THE DECISIONS RELIED UPON BY THE LEARNED CIT(A) AS WELL AS THE DECISIONS OF ITAT, MUMBAI BENCHES, PLACED BEFORE TH IS BENCH. 5. HAVING REGARD TO THE CIRCUMSTANCES OF THE CASE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LEARNED CIT( A) AND ACCORDINGLY DISMISS THE APPEAL FILED BY THE REVENUE. ORDER PRONOUNCED IN THE OPEN COURT ON 02-6-2011. SD/- SD/- (T.R. SOOD) (D.MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATE 02 ND JUNE, 2011 VBP/- 3 COPY TO 1. I.T.O. 25 (1) (1), ROOM NO. 201, 2 ND FLOOR, C.-11, PRATYAKSHKAR BHAVAN, BANDRA-KURLA COMPLEX, BANDRA (E), MUMBAI 400 051 2. M/S. KINJAL ASSOCIATES, 503, GOKUL APARTMENT, C.S. ROAD, ANAND NAGAR, DAHISAR (E), MUMBAI 400 068 PAN AAGFK2 498G 3. COMMISSIONER OF INCOME TAX (APPEALS)-XXV, MUMBAI 4. CIT-XXV, MUMBAI 5. DR D BENCH 6. GUARD FILE. (TRUE COPY) BY ORDER ASST. REGISTRAR, ITAT, MUMBAI BENCHES MUMBAI.