ACIT 27(2), NAVI MUMBAI V. MEGH DEVELOPERS, MUMBAI

ITA 5800/MUM/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4276 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 12-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D G PANSARI
• Section: 143(3); 80IB; 143(1); 139(1); 148

Judgement Text

D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI B.R BASKARAN, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER ./ I.T.A. NO.5800 & 5801/ MUM/2017 ( / ASSESSMENT YEAR: 2009 - 10 & 2012 - 13) ACIT 27(2), ROOM NO. 420, 4 TH FLOOR, TOWER NO. 6, VASHI RLY. STATION COMPLEX, VASHI, NAVI MUMBAI, 400703 / V S . M/S. MEGH DEVELOPERS , 1 ST FLOOR, NAVDURGA APPARTMENTS, OGADBHAI LANE, M G ROAD, GHATKOPAR (E), MUMBAI 400077 ./ PAN : AANFM5539M REVENUE BY: SHRI. D.G PANSARI (DR) ASSESSEE BY : MS. NEHA PARANJPE / DATE OF HEARING : 07.03 .201 9 / DATE OF PRONOUNCEMENT : 13 .03.2019 / O R D E R PER RAVISH SOOD, JUDICIAL MEMBER: THE PRESENT APPEALS FILED BY THE REVENUE FOR A.YS 2009 - 10 AND 2012 - 13 ARE DIRECTED AGAINST THE CONSOLIDATED ORDER OF THE CIT(A) - 28, MUMBAI, DATED 07.06.2017, WHICH IN TURN ARISES FROM THE RESPECTIVE ORDERS PASSED BY THE A . O U/S. 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 ( FOR SHORT IT ACT ), DATED 12.02.2015 FOR A . Y 2009 - 10 AND ORDER U/S. 143(3) DATED 17.03.2015 FOR A . Y 2012 - 13. AS A COMMON ISSUE IS INVOLVED IN THE AFOREMENTIONED APPEALS, THEREFORE, THE SAME ARE BEING TAKEN UP AND DISPOSED OFF TOGETHER BY WAY OF A COMMON ORDER. THE REVENUE ASSAILING THE ORDER OF THE CIT(A ) HAS RAISED BEFORE US THE FOLLOWING GROUND S OF APPEALS : 1. ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN ALLOWING DEDUCTION U/S 80IB(10) OF M/S. MEGH DE V ELOPERS I.T.A. NO.5800 & 58 01/MUM/2017 2 THE I T ACT, WITHOUT APPRECIATING THE FACT THAT THE PROJECT IS NOT ELIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE ACT. 2. ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) FAILED TO APPRECIATE THE PROVISIONS OF SECTION 80IB(10) OF THE ACT WHICH ARE VERY CATEFORICAL THAT IT IS THE DATE OF APPROVAL OF THE HOUSING P ROJECT AND NOT COMMENCEMENT. 3. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUNDS OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 4. THE APPELLANT PRAYS THAT THE ORDER OF CIT(A) ON THE ABOVE GROUNDS BE REVERSED AND THAT OF THE ASSESSING OFFICER BE RES TORED. 2. BRIEFLY STATE D, THE ASSESSEE FIRM WHICH IS ENGAGED IN THE BUSINESS OF DEVELOPING OF RESIDENTIAL PROJECT S HAD FILED ITS RETURN OF INCOME FOR A . Y 2009 - 10 ON 26.09.2009, DECLARING TOTAL INCOME AT RS. NIL. THE RETURN OF INCOME FILED BY THE ASSESSEE WAS PROCESSED AS SUCH U/S. 143(1) OF THE IT ACT. THEREAFTER, ASSESSMENT WAS FRAMED IN THE HAND S OF THE ASSESSEE U/S. 143(3), VIDE ORDER DATED 28.12.2011. SUBSEQUENTLY , THE CASE OF THE ASSESSEE WAS REOPENED U/S. 147 OF THE I.T ACT. IN COMPLIANCE, IT WAS SUB MITTED BY THE ASSESSEE THAT ITS O RIGINAL RETURN OF INCOME FILED U/S. 139(1) ON 26.09.2009 MAY BE CONSIDERED AS THE RETURN FILED IN RESPONSE TO NOTICE ISSUE D U/S. 148 OF THE I.T ACT. 3. DURING THE COURSE OF THE ASSESSMENT PROCEEDING S IT WAS OBSERVED BY T HE A . O THAT THE ASSESSEE WHICH WAS ENGAGED IN THE BUSINESS OF DEVELOPMENT OF A HOUSING PROJECT VIZ. PLATINUM LAWNS AT THANE, WHICH WAS APPROVED BY THE MUNICIPAL CORPORATION, THANE ON 28.03.2006, HAD CLAIMED DEDUCTION U/S. 80IB AMOUNTING TO RS. 59,44,084 / - IN ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION. IT WAS NOTICE D BY THE A . O THAT MUNICIPAL CORPORATION , THANE HAD APPROVED THE AFORESAID HOUSING PROJECT ON 28.03.2006 AND THE FINAL OCCUPATION CERTIFICATE WAS ISSUED BY THE SAID MUNICIPAL CORPORAT ION ONLY ON 31.03.2012. ON THE BASIS OF THE AFORESAID FACTS, IT WAS OBSERVED BY THE A . O THAT AS PER THE PROVISION S OF S ECTION M/S. MEGH DE V ELOPERS I.T.A. NO.5800 & 58 01/MUM/2017 3 80IB(10)(A)(III), IN A CASE WHERE THE HOUSING PROJECT WAS APPROVED BY THE LOCAL AUTHORITY ON OR AFTER 1 ST APRIL, 2005, THE PROJECT SHOULD BE COMPLETED WITHIN FIVE YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE HOUSING PROJECT HAD BEEN APPROVED BY THE LOCAL AUTHORITY. IN THE BACKDROP OF THE AFORESAID FACTS, IT WAS NOTICED BY THE A . O THAT IN THE CASE OF THE ASSESSEE THOUGH THE P ROJECT HAD BEEN APPROVED BY THE MUNICIPAL CORPORATION, THANE ON 28.03.2006 , H OWEVER THE SAME WAS COMPLETED ONLY ON 30.03.2012 I.E. AFTER FIVE YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE SAID PROJECT WAS SO APPROVED. THE A . O BEING OF THE VIEW THAT THE ASSESSEE HAD FAIL ED TO COMPLY WITH THE CONDITION OF COMPLETING THE PROJECT WITHIN THE STIPULATED TIME PERIOD OF FIVE YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE HOUSING PROJECT WAS APPROVED BY THE LOCAL AUTHORITY, THEREFORE, CONCLUDED THAT I T WAS NOT ENTITLED FOR CLAIM OF DEDUCTION U/S. 80IB(10) . O N THE BASIS OF HIS AFORESAID CONVICTION THE A . O CALLED UPON THE ASSESSEE TO JUSTIFY ITS CLAIM OF DEDUCTION OF RS. 59,44,084/ - RAISED U/S. 80IB IN ITS RETURN OF INCOME. IN REPLY, IT WAS SUBMITTED BY THE ASSESSEE THAT THOUGH THE PERMISSION WAS GRANTED BY THE MUNICIPAL CORPORATION, THANE, ON 28.03.2006, HOWEVER NO CONSTRUCTION ACTIVITY COULD BE CARRIED OUT WITHOUT OBTAINING THE COMMENCEMENT CERTIFICATE WHICH WAS RECEIVED ONLY AS ON 0 5 .10.2006. IN SUM A ND SUBSTANCE, IT WAS THE CLAIM OF THE ASSESSEE THAT FOR DECIDING ITS ELIGIBILITY FOR CLAIM OF DEDUCTION U/S. 80IB(10)(III) OF THE I.T ACT, THE DATE OF ISSUE OF COMMENCEMENT CERTIFICATE I.E. 05.10.2006 BY THE MUNICIPAL CORPORATION, THANE WAS TO BE TAKEN AS THE STARTING POINT FOR CALCULATING THE STIPULATED PERIOD OF FIVE YEARS IN WHICH THE HOUSING PROJECT WAS TO BE COMPLETED. HOWEVER, THE AFORESAID CONTENTION OF THE ASSESSEE DID NOT FIND FAVOUR WITH THE A . O , WHO BY TAKING SUPPORT OF THE E XPLANATION TO SECTION 80IB(10)(III) , OBSERVED THAT IN A CASE WHERE THE APPROVAL IN RESPECT OF THE HOUSING PROJECT WAS OBTAINED MORE THAN ONCE, SUCH HOUSING PROJECT SHALL BE DEEMED TO HAVE BEEN APPROVED ON THE DATE ON WHICH THE BUILDING PLAN OF THE SAI D HOU SING PROJECT WAS FIRST APPROVED BY THE LOCAL AUTHORITY. IT WAS THUS CONCLUDED BY THE AO M/S. MEGH DE V ELOPERS I.T.A. NO.5800 & 58 01/MUM/2017 4 THAT AS THE BUILDING PLAN SUBMITTED BY THE ASSESSEE WAS FIRST APPROVED BY THE MUNICIPAL CORPORATION, THANE, ON 28.03.2006 , T HEREFORE , THE ENTIRE PROJECT WAS TO BE COMPL ETED BY THE ASSESSEE BY NOT LATER THAN 31.03.2011. ON THE BASIS OF THE AFORESAID DELIBERATIONS THE A . O OBSERVED THAT AS THE HOUSING PROJECT IN THE CASE OF THE ASSESSEE WAS COMPLETED ONLY ON 30.03.2012 I.E. BEYOND THE STIPULATED TIME PERIOD OF FIVE YEARS FR OM THE END OF THE FINANCIAL YEAR IN WHICH THE HOUSING PROJECT WAS APPROVED BY THE LOCAL AUTHORITY, THEREFORE, THE ASSESSEE HAD FAILED TO FULFIL THE CONDITION ENVISAGED IN SE C. 80IB(10((III) , AND THUS WAS NOT ENTITLED FOR CLAIM OF DEDUCTION U/S. 80IB OF RS. 59,44,084/ - AS WAS RAISED IN ITS RETURN OF INCOME. 4. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A). THE CIT(A) OBSERVING THAT THE CLAIM OF THE ASSESSEE U/S. 80IB (10) WHICH WAS REJECTED BY THE A . O IN RESPECT OF THE SAID HOUSIN G PROJECT VIZ. PLATINUM LAWNS AT THANE IN AY 2010 - 11 ON THE SAME REASONING , WAS HOWEVER ON APPEAL RESTORED BY THE CIT(A), VIDE HIS ORDER DATED 26.02.2015 , OBSERVING AS UNDER: '3.6. I HAVE GONE THROUGH THE ORDER OF AO AS WELL AS THE SUBMISSION MADE BY TH E APPELLANT, THE APPELLANT HAS BEEN DENIED THE DEDUCTION UNDER SECTION 801B(10) ON THE GROUND THAT ACCORDING TO AO THE ASSESSEE HAD ACQUIRED SANCTION OF DEVELOPMENT PERMISSION VIDE VP NO. 2005/146 TMC/TDD/20S DATED 28'' MARCH 2006, WHEREAS ACCORDING TO ASS ESSEE THE PLAN WAS GOT APPROVED ONLY WHEN THE ASSESSEE HAD RECEIVED SANCTION DEVELOPMENT COMMENCEMENT CERTIFICATE AS PER VP NO. 2005/146 TMC/TDD/208 DATED 5TH OCTOBER, 2006. ACCORDING TO AO, THE DATE OF APPROVAL IS THE DATE WHEN SANCTION OF DEVELOPMENT PER MISSION WAS RECEIVED AS PER APPROVAL DATED 28.03.2006 AS STATED ABOVE IN THIS REGARD, IT IS SUBMITTED BY ASSESSES THAT THE AFORESAID PERMISSION SPECIFIES THE VARIOUS CONDITIONS TO BE FULFILLED AND ONLY AFTER THAT THE ASSESSEE COULD CARRY ON SUCH CONSTRUCTI ON AFTER OBTAINING THE SANCTION FOR DEVELOPMENT CERTIFICATE. THE ASSESSEE HAS PRODUCED A LETTER DATED 23.06.2011 FROM EXECUTIVE ENGINEER, TOWN PLANNING DEPARTMENT, - THANE MUNICIPAL CORPORATION, THANE(TMC) WHICH CLARIFIES THAT THE PLANS SUBMITTED BY THE DEV ELOPER CAN BE SAID TO BE APPROVED ONLY WHEN THE DEVELOPER RECEIVES THE DEVELOPMENT PERMISSION AS WELL AS COMMENCEMENT CERTIFICATE. IT IS ALSO CLARIFIED THAT AS PER REGULATION 3 PART II OF DEVELOPMENT CONTRACT REGULATION, 1994, UNLESS DEVELOPMENT PERMISSION AND COMMENCEMENT CERTIFICATE FROM THE MUNICIPAL COMMISSIONER ARE OBTAINED, THE DEVELOPMENT PERMISSION IS ONLY A FIRST STEP IN THE PROCESS O] APPROVAL, AND IT CANNOT BE SAID THAT ON GETTING THE DEVELOPMENT PERMISSION PROJECT/PLAN CAN BE SAID TO HAVE BEEN A PPROVED. THE TMC IN THE INSTANT CASE HAS IN ITS CONCLUDING PARA HAS CATEGORICALLY STATED THAT THE AFORESAID PROJECT WAS SAID TO BE APPROVED ON 05.10.2006 I.E. THE M/S. MEGH DE V ELOPERS I.T.A. NO.5800 & 58 01/MUM/2017 5 DATE ON WHICH THE COMMENCEMENT CERTIFICATE WAS GRANTED.' IN THE INSTANT CASE SINCE DEVELOPMEN T PERMISSION HAS BEEN GRANTED SUBJECT TO FULFILMENT OF VARIOUS BASIC CONDITIONS LIKE PERMISSION FOR USE OF SAID PLOT FOR NON - AGRICULTURAL USE AND FULFILLING THE CONDITIONS SPECIFIED IN DEVELOPMENT PERMISSION DEVELOPED IS NOT ALLOWED TO CARRY ANY DEVELOPMEN T ACTIVITIES. HENCE DATE OF OBTAINING COMMENCEMENT CERTIFICATE I.E. 05.10.2006 IS THE DATE ON WHICH PLANS ARE SAID TO BE APPROVED FOR COMMENCE OF WORK.' IN VIEW OF THIS STATEMENT OF THE APPROVING AUTHORITY, I FIND FORCE IN THE ARGUMENT OF THE ASSESSEE THAT THE PLANS WERE APPROVED ON 05.10.2006 AS AGAINST 28.03.2006 TAKEN BY THE AO. 3.7 THE ASSESSEE HAS ALSO RELIED ON THE DECISION HON'BLE ITAT, MUMBAI IN THE CASE OF ASLIA KASHIPRASAD RINGSHIA PANDURANG SADAN ITA NO.2901( MUM) OF 2011 WHICH SUPPORTS THE CLAIM OF ASSESSEE THAT PLAN IS SAID TO BE APPROVED WHEN COMMENCEMENT CERTIFICATE IS RECEIVED. IT IS ALSO RELEVANT TO NOTE THAT IN ASSESSEE'S OWN CASE FOR ASSESSMENT YEAR 2009 - 10 I.E. IN THE IMMEDIATELY PRECEDING PREVIOUS YEA R, THE ASSESSEE WAS GRANTED BENEFIT OF DEDUCTION U/S 80IB(10) AFTER SCRUTINY. IN VIEW OF THE AFORESAID FACTS, AND RELYING ON THE DECISION OF HON'BLE ITAT, MUMBAI, I AM OF THE CONSIDERED OPINION THAT ASSESSES PROJECT WAS APPROVED ON 05.10.2006. ACCORDINGLY, THE ASSESSEE IS ELIGIBLE FOR DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. ASSESSING OFFICER IS THEREFORE, DIRECTED TO ALLOW DEDUCTION U/S 80IB(10) OF THE ACT OF RS.67,00,857/ - .' 5. IT WAS FURTHER OBSERVED BY THE CIT(A) THAT THE APPEAL FILED BY THE REVENU E BEFORE THE TRIBUNAL WAS ALSO DISMISSED , VIDE THE LATTERS ORDER PASSED IN ITA NO. 2886/MUM/2015, DATED 06.02.2017 AND THE ORDER OF THE CIT(A), DATED 26.02.2015 WAS UPHELD BY THE T RIBUNAL , OBSERVING AS UNDER: '7. AS PER AO, THE DATE OF APPROVAL BY THE LOC AL AUTHORITY IS 28 - 03 - 2006 WHEREAS AS PER ASSESSEE THE ACTUAL DATE OF APPROVAL IS 05 - 10 - 2006, WHEN ASSESSEE OBTAINED COMMENCEMENT CERTIFICATE AFTER FULFILLING ALL THE CONDITIONS. ACCORDING TO ASSESSEE, THIS IS ACTUAL APPROVAL FOR STARTING CONSTRUCTION OF T HE PROJECT. BEFORE THE COMMENCEMENT CERTIFICATE WAS ISSUED, VARIOUS OTHER LEGAL FORMALITIES WERE YET TO BE EXECUTED ON THE PART OF THE ASSESSEE AND ALL THE APPROVALS GIVEN BY THE RESPECTIVE AUTHORITIES WERE INTERIM AND TENTATIVE/PROVISIONAL APPROVALS AND T HESE WERE SUBJECT TO VARIOUS 'IFS AND BUTS'. ASSESSEE WAS NOT ENTITLED TO COMMENCE CONSTRUCTION OF THE PROJECT BEFORE OBTAINING THE COMMENCEMENT CERTIFICATE FOR CONSTRUCTION OF THE PROJECT. THE ASSESSEE HAS ALSO FILED ALL THE APPROVAL LETTERS ISSUED BY VAR IOUS AUTHORITIES FROM TIME TO TIME. WE HAVE GONE THROUGH ALL THE DOCUMENTARY EVIDENCES BROUGHT BEFORE US. IT IS NOTED THAT THANE MUNICIPAL CORPORATION ISSUED PERMISSION LETTER DATED 28 - 03 - 2006 GRANTING DEVELOPMENT PERMISSION TO THE ASSESSEE SUBJECT TO VARI OUS CONDITIONS AND APPROACHED OTHER AUTHORITIES FROM WHOM APPLICABLE PERMISSION/ APPROVAL WAS REQUIRED. AFTER CARRYING OUT ALL THE REQUISITE CONDITIONS AND AFTER OBTAINING REQUISITE M/S. MEGH DE V ELOPERS I.T.A. NO.5800 & 58 01/MUM/2017 6 APPROVALS/ PERMISSIONS FROM OTHER CONCERNED AUTHORITIES, ASSESSEE AGAIN AP PROACHED THANE MUNICIPAL CORPORATION FOR ALLOWING THE ASSESSEE TO COMMENCE THE CONSTRUCTION OF THE PROJECT. THEREAFTER, AFTER EXAMINING THE SATISFACTORY COMPLIANCE OF ALL THE CONDITIONS AND APPROVAL LETTERS GRANTED BY OTHER CONCERNED AUTHORITIES, FINALLY T HANE MUNICIPAL CORPORATION GRANTED COMMENCEMENT CERTIFICATE DATED 05 - 10 - 2006 GIVING PERMISSION TO THE ASSESSEE TO START THE CONSTRUCTION OF THE PROJECT. IT IS NOTED BY US THAT IT WAS CLARIFIED BY THANE MUNICIPAL CORPORATION VIDE ITS LETTER DATED 23 - 06 - 2011 THAT AS PER SECTION 3 OF DEVELOPMENT CONTROL REGULATIONS, 1994, NO DEVELOPMENT CAN BE CARRIED OUT BY THE ASSESSEE UNLESS DEVELOPMENT PERMISSION AS WELL AS COMMENCEMENT CERTIFICATE ARE OBTAINED BY THE DEVELOPER. IT WAS ALSO CLARIFIED THAT BOTH THE APPROVAL S ARE REQUIRED BEFORE ASSESSEE COULD START CONSTRUCTION OF THE PROJECT. AFTER GOING THROUGH ALL THE FACTS AND CIRCUMSTANCES OF THE CASE, WE CONCUR WITH THE VIEW TAKEN BY LD. CIT(A) THAT ASSESSEE WAS AUTHORISED TO START CONSTRUCTION OF THE PROJECT ONLY ON I SSUANCE OF COMMENCEMENT CERTIFICATE BY THE LOCAL AUTHORITY, I.E. ON 5 - 10 - 2006. THEREFORE, IT IS ACTUAL APPROVAL LETTER, AS IS ENVISAGED U/S 80IB(10)((A)(III ) OF THE ACT. WE FIND THAT THE FINDINGS RECORDED BY LD. CIT(A) ARE WELL REASONED AND IN ACCORDANCE W ITH LAW AND FACTS IN THIS CASE. IT IS FURTHER NOTED BY US THAT THIS ISSUE IS ALSO COVERED IN FAVOUR OF THE ASSESSEE BY THE JUDGMENTS OF THE TRIBUNAL AS HAVE BEEN REFERRED TO BY LD. CIT(A) AND ALSO RELIED UPON BY THE LD. COUNSEL BEFORE US, WHEREIN IT HAS BE EN HELD THAT DATE OF APPROVAL AS ENVISAGED IN SECTION 80IB( 10 )((A)(III)) WOULD BE THE DATE WHEN ASSESSEE WOULD BE ENTITLED TO COMMENCE THE CONSTRUCTION OF THE PROJECT AS PER LOCAL LAW APPLICABLE. THUS, IN VIEW OF THE AFORESAID DISCUSSION AND FACTS OF THE CASE, THE DECISION TAKEN BY THE LD. CIT(A) IS HEREBY UPHELD. 6. ON THE BASIS OF THE AFORESAID FACTS THE CIT(A) FOLLOW ING THE VIEW TAKEN BY THE T RIBUNAL IN THE ASSESSEE S OWN CASE FOR A.Y 2010 - 11, WHEREIN IT WAS HELD THAT THE ASSESSEE WAS ELIGIBLE FO R DEDUCTION U/S. 80IB (10), ALLOWED THE APPEAL OF THE ASSESSEE AND DIRECTED THE A . O TO ALLOW THE DEDUCTION CLAIM ED BY THE ASSESSEE U/S. 80IB(10) FOR THE YEAR UNDER CONSIDERATION. 7. THE REVENUE BEING AGGRIEVED WITH THE ORDER OF THE CIT(A) HAS CARRIED THE MATTER IN APPEAL BEFORE US. THE LD. AUTHORISED REPRESENTATIVE ( FOR SHORT A . R ) FOR THE ASSESSEE AT THE VERY OUTSET OF THE HEARING OF THE APPEAL SUBMITTED THAT THE ISSUE WAS SQUARELY COVERED BY THE ORDER OF THE ITAT, MUMBAI B BENCH IN THE A SSESSE S M/S. MEGH DE V ELOPERS I.T.A. NO.5800 & 58 01/MUM/2017 7 O WN CASE FOR A . Y 2010 - 11, I.E. ITO 26(2)(3) - MUMBAI VS. MEGA DEVELOPERS (I TA NO. 2886/MUM/2015; DATED 06.02.2017). 8. PER CONTRA, THE LD. DEPARTMENT REPRESENTATIVE (D . R) DID NOT CONTROVERT THE AFORESAID FACTUAL POSITION AS WAS CANVASSED BY THE C OUNSEL FOR THE ASSESSEE. HOWEVER, IT WAS SUBMITTED BY THE LD. D. R THAT THE LOWER AUTH ORITIES HAD RIGHTLY DECLINE D THE CLAIM OF DEDUCTION U/S. 80IB TO THE ASSESSEE. 9. WE HAVE HEARD THE A UTHORISED REPRESENTATIVE FOR BOTH THE PARTIES, PERUSED THE ORDER S OF THE LOWER AUTHORITIES AND THE MATERIAL AVAILABLE ON RECORD. THE ISSUED INVOLVED IN THE PRESENT APPEAL LIES IN A NARROW COMPASS I.E AS TO WHETHER THE ASSESSEE HAD RIGHTLY CLAIMED DEDUCTION U/S. 80IB(10) OF THE I.T ACT., OR NOT. THE BONE OF CONTENTION LEADING TO THE AFORESAID CONTROVERS Y REVOLVES AROUND T HE ASPECT AS WHETHER THE PERIOD OF FIVE YEARS WITHIN WHICH A HOUSING PROJECT HAS TO BE COMPLETED AS ENVISAGED IN SECTION 80IB(10)(III) IS TO BE CONSTRUED FROM THE DATE ON WHICH THE BUILDING PLAN WAS APPROVED BY THE MUNICIPAL CORPORATION, THANE I.E. ON 28.0 3.2006, AS CLAIMED BY THE REVENUE , OR THE SAME WAS TO BE TAKEN FROM THE DATE ON WHICH THE COMMENCEMENT CERTIFICATE WAS ISSUED BY THE SAID M UNICIPAL C ORPORATION I.E. ON 05.10.2006, AS CLAIMED BY THE ASSESSEE. WE FIND THAT AS OBSERVE D BY US HEREINABOVE, THE ISSUE INVOLVED IN THE PRESENT APPEAL IS SQUARELY COVERED BY THE ORDER OF THE COORDINATE BENCH OF THE T RIBUNAL I.E. ITAT B BENCH, MUMBAI , IN THE CASE OF ITO, WARD 27(2)(3), MUMBAI VS. M/S. MEGA DEVELOPERS (ITA NO. 2886/MUM/2015; DATED 06.02.2017). WE THUS FINDING OURSELVES TO BE I N AGREEMENT WITH THE VIEW THE REIN TAKEN BY THE T RIBUNAL IN THE CASE OF THE ASSESSEE FOR THE AFOREMENTIONED YEAR I.E A.Y 2010 - 11 , RESPECTFULLY FOLLOW THE SAME A ND UPHOLD THE ORDER OF THE CIT(A) WHO HAS ALLOWED THE CLAIM OF THE DEDUCTION RAISED BY THE ASSESSEE U/S. 80IB OF THE I.T ACT. 10. THE APPEAL FILED BY THE REVENUE IS DISMISSED. M/S. MEGH DE V ELOPERS I.T.A. NO.5800 & 58 01/MUM/2017 8 ITA NO. 5801/MUM/2017 A . Y 2012 - 13 11. BRIEFLY STATED, THE ASSESSEE HAD FILED ITS RETURN OF INCOME FOR A . Y 2012 - 13 ON 30.09.2012, DECLAR ING TOTAL INCOME OF RS. 27,24,060/ - . SUBSEQUENTLY, THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT U/S. 143(2 ) OF THE I.T ACT. 12. THE A . O WHILE FRAMING THE ASSESSMENT WAS OF THE VIEW THAT AS THE ASSESSEE WHICH W AS CARR YING OUT THE CONSTRUCTION OF A HOUSING PROJECT VI Z . PLATINUM LAWNS AT THANE, HAD F A ILED TO COMPLETE THE SAID PROJECT WITHIN THE STIPULATED TIME PERIOD OF FIVE YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE SAME WAS APPROVED BY THE MUNICIPAL CORPORATION, THANE I.E ON 28.03.2006, THUS DISALLOWED THE CLAIM OF DEDUCTION U/S. 80IB AMOUNTING TO RS. 5,35,04,714/ - THAT WAS RAISED BY THE ASSESSEE IN ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION I.E A.Y 2012 - 13 . THE CONTENTION ADVANCED BY THE ASSESSEE THAT THE PERIOD OF FIVE YEARS FROM THE END OF THE FINANCIAL YEAR WAS TO BE CONSTRUED FROM THE DATE ON WHICH THE COMMENCEMENT CERTIFI CATE WAS ISSUED TO THE ASSESSEE I.E. ON 05.10.2006 BY THE MUNICIPAL CORPORATION, THANE , DID NOT FIND FAVOUR WITH TH E A . O. ON THE BASIS OF HIS AFORESAID DELIBERATIONS THE A . O DISALLOWED THE CLAIM OF DEDUCTION U/S. 80IB OF RS. 5,35,04,714/ - RAISED BY THE ASSESSEE. 13. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A). THE CIT(A) AFTER DELIBERATING O N THE FACTS OF THE CASE OBSERVED THAT THE ISSUE WAS SQUARELY COVERED BY THE ORDER OF THE T RIBUNAL IN THE ASSESSES OWN CASE FOR AY 2010 - 11 I.E. ITO 26(2)(3) - MUMBAI VS. MEGA DEVELOPERS (ITA NO. 2886/MUM/2015; DATED 06.02.2017). IT WAS OBSERVED BY THE CIT(A) THAT THE T RIBUNAL IN THE AFOREMENTIONED CASE OF THE ASSESSEE FOR A.Y. 2010 - 11, INVOLVING THE SAME FACTS AND THE ISSUE AS WAS THERE BEFORE THEM IN THE AFOREMENTIONED APPEAL , HAD AFTER NECESSARY DELIBERATIONS ALLOWED THE CLAIM OF DEDUCTION RAISED BY THE M/S. MEGH DE V ELOPERS I.T.A. NO.5800 & 58 01/MUM/2017 9 ASSE SSEE U/S. 80IB(10) IN RESPECT OF THE SAME PROJECT. ON THE BASIS OF THE AFORESAID OBSERVATIONS THE CIT(A) ALLOWED THE APPEAL OF THE ASSESSEE. 14. THE REVENUE BEING AGGRIEVED WITH THE ORDER OF THE CIT(A) HAS CARRIED THE MATTER IN APPEAL BEFORE US. WE FIND T HAT AS THE FACTS AND THE ISSUE INVOLVED IN THE PRESENT APPEAL REMAINS THE SAME AS WERE THERE BEFORE US IN THE CASE OF THE ASSESSEE FOR THE A . Y 2009 - 10, THEREFORE , OUR ORDER THEREIN PASSED IN CONTEXT OF THE ISSUE UNDER CONSIDERATION SHALL APPLY MUTATIS MUTA NDIS FOR THE DISPOSAL OF THE PRESENT APPEAL. THE APPEAL OF THE REVENUE IS THUS DISMISSED IN THE SAME TERMS . 15. THE APPEAL FILED BY THE REVENUE IS DISMISSED. 16. THAT THE APPEAL S OF THE REVENUE FOR A . Y 2009 - 10 I.E. ITA NO. 5800/MUM/2017 AND FOR A . Y 2012 - 1 3 I.E. 5801/MUM/2017 ARE DISMISSED. ORDER PR ONOUNCED IN THE OPEN COURT ON 13 .03.2019. 13 .03.2019 SD/ - SD/ - ( B.R BASKARAN ) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 13 .03.2019 NISHANT VERMA SR. PRIVATE SECRETARY M/S. MEGH DE V ELOPERS I.T.A. NO.5800 & 58 01/MUM/2017 10 COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) CONCERNED, MUMBAI 4. THE CIT - CONCERNED, MUMBAI 5. THE DR BENCH, 6. MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI