ITO WD 21(1)(1), MUMBAI V. AKASH NIDHI BUILDERS & DEVELOPERS, MUMBAI

ITA 5968/MUM/2010

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1751 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 26-12-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 30-07-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: DR K SHIVARAM

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI . , ! ! ! ! , ' ' ' ' #$ %& #$ %& #$ %& #$ %& , ,, , ' ! ' ! ' ! ' ! ( ( ( ( BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER . / ITA NO. 5968/MUM./2010 ( '* + ',+ / ASSESSMENT YEAR : 200708 ) INCOME TAX OFFICER WARD21(1)1 PRATYAKSHAKAR BHAVAN BANDRAKURLA COMPLEX BANDRA, MUMBAI .. -. / APPELLANT * V/S M/S. AKASH NIDHI BUILDERS & DEVELOPERS AKASH NIDHI ITALIAN MARBLE HOUSE SANTACRUZ AIRPORT SIDE MARBLE MARKET WESTERN EXPRESS HIGHWAY VILE PARLE (E), MUMBAI 400 099 .... /0-. / RESPONDENT !- . / PERMANENT ACCOUNT NUMBER AALFA7373H . / ITA NO. 5816/MUM./2010 ( '* + ',+ / ASSESSMENT YEAR : 200708 ) M/S. AKASH NIDHI BUILDERS & DEVELOPERS AKASH NIDHI ITALIAN MARBLE HOUSE SANTACRUZ AIRPORT SIDE MARBLE MARKET WESTERN EXPRESS HIGHWAY VILE PARLE (E), MUMBAI 400 099 .. -. / APPELLANT * V/S INCOME TAX OFFICER WARD21(1)1 PRATYAKSHAKAR BHAVAN BANDRAKURLA COMPLEX BANDRA (W), MUMBAI .... /0-. / RESPONDENT !- . / PERMANENT ACCOUNT NUMBER AALFA7373H M/S. AKASH NIDHI BUILDERS & DEVELOPERS 2 2!' 3 4 / REVENUE BY : MR. K.C.P. PATNAYAK '* +5$ 3 4 / ASSESSEE BY : DR. K. SHIVARAM *' 3 $ / DATE OF HEARING 06.02.2013 % 6, 3 $ / DATE OF ORDER 22.02.2013 % % % % / ORDER #$ #$ #$ #$ %& %& %& %& , ,, , ' ! ' ! ' ! ' ! 7 7 7 7 / PER AMIT SHUKLA, J.M. THESE CROSS APPEALS ARE AGAINST THE IMPUGNED ORDER DATED 3 RD MAY 2010, PASSED BY THE LEARNED COMMISSIONER (APPEALS) XXXII, MUMBAI, FOR THE QUANTUM OF ASSESSMENT PASSED UNDER SECTION 143( 3) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT ), FOR THE ASSESSMENT YEAR 200708. SINCE THE ISSUE INVOLVED IN THESE CROSS APPEALS ARE COMMON WH ICH RELATES TO DEDUCTION UNDER SECTION 80IB(10) OF THE ACT, AS A MATTER OF C ONVENIENCE, THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF SIMU LTANEOUSLY BY WAY OF THIS CONSOLIDATED ORDER. 2. FACTS IN BRIEF: THE ASSESSEE IS A PARTNERSHIP FIRM , WHICH IS ENGAGED IN THE BUSINESS AS BUILDERS AND DEVELOPERS. THE ASSESS EE HAS UNDERTAKEN CONSTRUCTION OF HOUSING PROJECT NAMELY AKASH NIDHI AT MEERA ROAD (EAST), DISTRICT THANE. THE ASSESSEE IS FOLLOWING PERCENTAG E COMPLETION METHOD OF ACCOUNTING. THE ASSESSEE HAS OFFERED INCOME FROM TH E SAID HOUSING PROJECT AT ` 4,49,62,880, AND THE SAME WAS CLAIMED AS DEDUCTION AT 100%. IN RESPONSE TO THE SHOW CAUSE NOTICE AS TO WHETHER ALL THE CONDITIONS LAID DOWN UNDER SECTION 80IB(10) IS FULFILLED, THE ASSESSEE S UBMITTED THAT IT HAS UNDERTAKEN CONSIDERATION OF ONE HOUSING PROJECT WHI CH COMPRISES OF SEVEN WINGS I.E., A WING TO G WING. COMMENCEMENT CERT IFICATE WAS OBTAINED ON 2 ND MAY 2000, FROM MEERABHAYANDER MUNICIPAL CORPORATI ON (MBMC) WHEREBY APPROVAL FOR A WING TO F WING (SIX WING S) ON A PLOT OF LAND BEARING SERIAL NO.378/5 AND 379/4 WAS GRANTED. THER EAFTER, REVISED A M/S. AKASH NIDHI BUILDERS & DEVELOPERS 3 COMMENCEMENT CERTIFICATE WAS ISSUED ON 27 TH JANUARY 2006, BY THE SAME AUTHORITY, PERMITTING COMMENCEMENT OF SEVEN BUILDIN GS I.E., FROM A WING TO G WING. THE PLOT NUMBERS REMAINED THE SAME IN BOTH THE CERTIFICATES. IT WAS, THUS, SUBMITTED THAT COMMENCEMENT OF THE PROJE CT FOR ALL THE SEVEN WINGS (A TO G WING) SHOULD BE TAKEN FROM 27 TH JANUARY 2006. THE ASSESSING OFFICER, HOWEVER, OBSERVED THAT THE ASSES SEE HAS COMMENCED ITS CONSTRUCTION ACTIVITIES FROM 2 ND MAY 2000 AND AS PER THE PROVISIONS OF SECTION 80IB(10), THE ASSESSEE HAD TO COMPLETE ITS PROJECT ON/OR BEFORE 31 ST MARCH 2008, WHICH WAS NOT DONE AS G WING WAS NOT COMPLE TED BY THIS DATE. AS PER THE DETAILS FURNISHED BY THE ASSESSEE, IT WAS N OTED BY THE ASSESSING OFFICER THAT ALL THE SIX WINGS FROM A TO F WERE COMPLETED IN THE FOLLOWING MANNER: BUILDING / WING DATE OF COMPLETION A WING 21 ST JUNE 2007 B WING 21 ST JUNE 2007 C WING 31 ST MARCH 2008 D WING 31 ST MARCH 2008 E WING 31 ST MARCH 2008 F WING 31 ST MARCH 2008 3. THE ASSESSEE ALSO SUBMITTED THAT THE ENTIRE HOUSIN G PROJECT IS CONSTRUCTED ON A PLOT OF LAND ADMEASURING 4,835 SQ. MTR., WHICH IS MORE THAN ONE ACRE AND THE PROJECT HAS BEEN APPROVED IN ACCOR DANCE WITH THE PERMISSION GRANTED BY MBMC, VIDE COMMENCEMENT CERTI FICATE DATED 27 TH JANUARY 2006, WHICH WAS DULY REVALIDATED ON 3 RD AUGUST 2006. THUS, THE ASSESSEE WAS REQUIRED TO COMPLETE THE PROJECT WITHI N FOUR YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH COMMENCEMENT CER TIFICATE IS RECEIVED ON 27 TH JANUARY 2006, AND THE OUTER TIME LIMIT FOR COMPLET ION OF ALL THE SEVEN WINGS WAS UP TO 31 ST MARCH 2010. THE ASSESSING OFFICER, HOWEVER, TOOK N OTE OF THE FACT THAT THE APPROVAL FOR COMMENCEMENT CERT IFICATE FROM MBMC WAS GIVEN ON 2 ND MAY 2000 WHEREIN IT HAS BEEN CLEARLY MENTIONED THA T THE APPROVAL FOR THE CONSTRUCTION WAS SANCTIONED TO THE SAID PLOT. THEREFORE, AS M/S. AKASH NIDHI BUILDERS & DEVELOPERS 4 PER SECTION 80IB(10), THE ASSESSEE WAS REQUIRED TO COMPLETE ITS PROJECT AS PER THE TIME LIMIT GIVEN IN SECTION 80IB(10), WHICH WAS UPTO 31 ST MARCH 2008. 4. BEFORE THE ASSESSING OFFICER, THE ASSESSEE FILED DE TAIL REASONS AND EXPLANATION WITH REGARD TO THE NATURE OF APPROVAL G IVEN BY MBMC ON 2 ND MAY 2000 AND 27 TH JANUARY 2006. THIS FACT HAS BEEN INCORPORATED BY T HE ASSESSING OFFICER AT PARA13 FROM PAGES6 TO 8 OF T HE ASSESSMENT ORDER. THE ASSESSING OFFICER HELD THAT THE LATER APPROVAL OF 2 7 TH JANUARY 2006, IS ACTUALLY A REVALIDATION CONSTRUCTION CERTIFICATE W HEREAS THE ORIGINAL CERTIFICATE OF APPROVAL IS 2 ND MAY 2000, BY WHICH THE ASSESSEE WAS GRANTED APPROVAL FOR CONSTRUCTION OF THE PROJECT. WITH REGA RD TO THE ASSESSEES EXPLANATION THAT NO WORK HAD COMMENCED AS THE MOU W AS ENTERED BY THE ASSESSEE ONLY ON 5 TH JUNE 2005, IS NOT TENABLE AS THAT WAS THE INTERNAL MATTER OF THE ASSESSEE AND INSOFAR AS THE COMMENCEM ENT IS CONCERNED, THE SAME WAS GIVEN IN THE YEAR 2000 ITSELF. THUS, HE NO TED THAT THOUGH THE ASSESSEE HAD OBTAINED NO OBJECTION CERTIFICATE FOR THE WINGS A TO F, THE COMPLETION CERTIFICATE OF G WING, WHICH IS ALSO A PART OF THE PROJECT, HAS NOT BEEN OBTAINED BY THE ASSESSEE AS ON 31 ST MARCH 2008. THE ASSESSING OFFICER HAS ALSO DEALT WITH THE SUBMISSIONS OF THE ASSESSEE IN THIS REGARD IN PARAS 16 AND 18 AND, THEREAFTER, HELD THAT THE ASSESSEE H AD NOT COMPLETED ITS SAID HOUSING PROJECT BEFORE 31 ST MARCH 2008 AND, THEREFORE, HE DISALLOWED THE ENTIRE CLAIM OF DEDUCTION UNDER SECTION 80IB(10), A FTER OBSERVING AND HOLDING AS UNDER: 20. FROM THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, THE ASSESSEE HAS OBTAINED FIRST APPROVAL FOR COMMENCEMENT OF CON STRUCTION ACTIVITIES ON THE SAID PLOT ON 02-05-2000 AND THERE AFTER, THE ASSESSEE HAS CONSTRUCTED 7 BUILDINGS IN THE SAID PLOT OF LAN D NAMED AS WINGS A TO Q. HOWEVER, THE ASSESSEE AS ON 31-03- 2008 HAS C OMPLETED ONLY WINGS A TO F AND OBTAINED COMPLETION CERTIFICATE FR OM THE SAID CORPORATION, HOWEVER THE WING G IS STILL UNDER CONS TRUCTION AND HAS NOT OBTAINED COMPLETION CERTIFICATE. AS PER THE PRO VISIONS OF SECTION 801B(L0)(A)(II), THE ASSESSEE HAS TO COMPLETE THE S AID PROJECT WITHIN 4 YEARS FROM THE DATE OF RECEIVING THE COMMENCEMENT C ERTIFICATE FROM LOCAL AUTHORITY AND IN THIS CASE THE SAID COMMENCEM ENT CERTIFICATE HAS BEEN OBTAINED ON 02-05-2000 AND THE SAID PROJECT HA S TO BE COMPLETED ON OR BEFORE 31-03-2008. AS STATED ABOVE, THE M/S. AKASH NIDHI BUILDERS & DEVELOPERS 5 COMMENCEMENT CERTIFICATE IS ONLY OBTAINED FOR WINGS A TO F THAT MEANS THE ASSESSEE HAS NOT COMPLETED THE ENTIRE PRO JECT AS STIPULATES IN THE SAID PROVISIONS OF INCOME TAX ACT AND THEREB Y IS NOT ELIGIBLE FOR CLAIMING DEDUCTION U/S.801B(10) AS HE HAS NOT SATIS FIED THE CONDITIONS STIPULATED AS PER THE PROVISIONS OF SECTION 801B(10 )(A)(II) OF THE I T ACT, THEREFORE, THE ENTIRE CLAIM OF DEDUCTION U/S. 801B (10) IS NOT ALLOWED TO THE ASSESSEE. 5. THE COMMISSIONER (APPEALS), AFTER CONSIDERING THE E NTIRE FACTS AND DETAIL SUBMISSIONS OF THE ASSESSEE, WHICH HAS BEEN DISCUSSED FROM PAGES2 TO 9 OF THE APPELLATE ORDER, NOTED THE FOLLOWING IM PORTANT FACTS: I) THE ORIGINAL OWNER OF THE PLOT SWEET LAND DEVELOPER S APPLIED FOR THE COMMENCEMENT CERTIFICATE ON 17 TH APRIL 2000, AND OBTAINED SUCH CERTIFICATE ON 5 TH MAY 2000. THEY RECEIVED APPROVAL ONLY IN RESPECT OF SIX WINGS FROM A TO F. A PART OF THE PLOT OF AGRICULTURAL LAND AND, THEREFORE, A MUN ICIPAL AUTHORITY COULD NOT HAVE GIVEN THE COMMENCEMENT CERTIFICATE F OR THE SEVENTH WING I.E., G WING; AND II) THE ORIGINAL COMMENCEMENT CERTIFICATE DATED 2 ND MAY 2000 WAS ALSO ACCOMPANIED BY THE ORIGINAL OWNER OF THE P LOT M/S. SWEET LAND DEVELOPERS APPLIED FOR THE COMMENCEMENT CERTIFICATE ON 17 TH APRIL 2000 AND OBTAINED THE SIX WINGS A TO F. PART OF THE PLOT WAS AGRICULTURAL LAND AND, TH EREFORE, THE MUNICIPAL AUTHORITIES COULD NOT HAVE GIVEN THE COMM ENCEMENT CERTIFICATE FOR THE SEVENTH WING. THE ORIGINAL COMM ENCEMENT CERTIFICATE DATED 2 ND MAY 2000 WAS ALSO ACCOMPANIED BY AN APPROVAL OF BLOCK PLAN COMPRISING OF SIX BUILDINGS ONLY (A TO F WING) DULY CONFIRMED BY SUBSEQUENT PLINTH COMPLETIO N CERTIFICATE DATED 13 TH OCTOBER 2000 BY THE SAME MIRA BHAYANDER MUICIPAL CORPORATION. THE ASSESSEE HAS COME INTO THE PROJECT BY VIRTUE OF SUBSEQUENT MOU DATED 5 TH JUNE 2005 SIGNED BETWEEN THEM AND M/S. SWEET LAND DEVELOPERS. TILL THIS DATE ALSO, TH E ORIGINAL LAND OWNERS COULD NOT GET THE REMAINING PORTION OF THE P LOT CONVERTED M/S. AKASH NIDHI BUILDERS & DEVELOPERS 6 INTO NONAGRICULTURAL USE. SUCH APPROVAL FOR NONAG RICULTURAL USE IN RESPECT OF THE REMAINING PART OF THE PLOT WAS RE CEIVED ON 23 RD NOVEMBER 2005. 6. ON THESE FACTS, HE OBSERVED THAT THE BASIC ISSUE WA S WHETHER THE PROJECT WHICH STARTED WITH THE PERMISSION TO COMPLE TE ONLY SIX WINGS IN THE YEAR 2000 AND SEVENTH WING GOT ATTACHED AFTER A LAP SE OF FIVE YEARS AFTER THE CONVERSION OF THE PLOT INTO NONAGRICULTURAL USE CA NNOT BE CONSIDERED PART OF THE ORIGINAL PROJECT. HE HELD THAT SEVENTH BUILDING , WHICH CAME UP AFTER THE CONVERSION OF CONTIGUOUS PLOT OF LAND INTO NONAGRI CULTURAL USE, CANNOT BE CONSIDERED TO BE FORMING PART OF THE ORIGINAL LAND. IF THIS IS TO BE PERMITTED, THEN ANY NUMBER OF CONTIGUOUS WING CAN BE ADDED TO THE ORIGINAL PROJECT AND CLAIMED TO BE FORMING A SINGLE PROJECT. THEREFORE, HE HELD THAT ONLY WINGS A TO F FORMS PART OF THE PROJECT AND G WING W HICH GOT SUBSEQUENTLY APPENDED, HAS TO BE CONSIDERED AS SEPARATE PROJECT ALLTOGETHER. THEREFORE, THE DEDUCTION UNDER SECTION 80IB(10) FOR ALL THE SE VEN WINGS OF A SINGLE PROJECT CANNOT BE APPROVED. HOWEVER, HE NOTED THAT THE ASSESSING OFFICER REQUIRE THE ASSESSEE TO SUBMIT WORKING OF PROFIT OF G WING, WHICH WAS ALSO TAKEN INTO CONSIDERATION BY HIM. FROM THIS, HE HELD THAT IF THE WINGS A TO F ARE CONSIDERED TO BE FORMING PART OF A SINGLE P ROJECT, THE SAME HAVE BEEN COMMENCED ON 2 ND MAY 2000, AND GOT COMPLETED PRIOR TO 31 ST MARCH 2008, AS PER THE COMPLETION CERTIFICATE. THEREFORE, THE DEDUCTION SHOULD BE ALLOWED UNDER SECTION 80IB(10) IN RELATION TO THE P ROFITS DERIVED ON CONSTRUCTION AND SALE OF HOUSING PROJECT CONSISTING OF WINGS A TO F. ACCORDINGLY, THE DEDUCTION WAS RESTRICTED TO SIX WI NGS ONLY. THEREAFTER, HE FURTHER HELD THAT EVEN IF THE WINGS A TO G ARE CONSIDERED AS ONE PROJECT, THE COMPLETION CERTIFICATE OBTAINED FOR THE WINGS A TO F, THE DEDUCTION HAS TO BE ALLOWED IN VIEW OF THE VARIOUS DECISIONS OF THE TRIBUNAL, AS REFERRED TO IN PARA3.5 OF THE APPELLATE ORDER. ACCORDINGLY, HE DIRECTED THE ASSESSING OFFICER TO VERIFY THE WORKING OF THE PROFIT GIVEN I N RESPECT OF THE WINGS A TO F AND ALLOW DEDUCTION UNDER SECTION 80IB(10) ONLY TO SUCH EXTENT. M/S. AKASH NIDHI BUILDERS & DEVELOPERS 7 7. AGAINST THIS, THE ASSESSEE AS WELL AS THE DEPARTMEN T ARE IN APPEAL BEFORE US. THE STAND OF THE DEPARTMENT IS THAT, THE ENTIRE DEDUCTION SHOULD BE DISALLOWED ON THE GROUND THAT THE WINGS A TO G ARE ONE PROJECT AND SINCE IT HAS BEEN COMPLETED ON/OR BEFORE 31 ST MARCH 2008, THEREFORE, THE ENTIRE DEDUCTION HAS TO BE DISALLOWED. WHEREAS, THE STAND OF THE ASSESSEE IS THAT THE G WING IS THE INTEGRAL PART OF THE HOUSI NG PROJECT AND THE CONSOLIDATED COMMENCEMENT CERTIFICATE WAS OBTAINED ON 27 TH JANUARY 2006, THEREFORE, THE TIME LIMIT FOR COMPLETING G WING O F THE BUILDING WAS 31 ST MARCH 2010 AND, THEREFORE, THE ENTIRE DEDUCTION CLA IMED SHOULD BE ALLOWED. 8. BOTH THE PARTIES WERE HEARD AT LENGTH. THE MAIN CON TENTION OF THE LEARNED COUNSEL WAS THAT AFTER THE MOU WAS SIGNED B Y THE ASSESSEE WITH M/S. SWEET LAND DEVELOPER ON 5 TH JUNE 2005, AND AFTER THE CONVERSION OF PORTION OF THE PLOT INTO NONAGRICULTURAL USE, THE COMMENCEMENT CERTIFICATE WAS ISSUED ON 27 TH JANUARY 2006 FOR THE ENTIRE PROJECT CONSISTING OF 7 WINGS AND, THEREFORE, THE TIME LIMIT FOR COMPLETION WAS A VAILABLE UPTO 31 ST MARCH 2010 WHICH, IN FACT, THE ASSESSEE DID COMPLETE THE ENTIRE PROJECT BY THIS DATE AS THE G WING WAS COMPLETED BEFORE 31 ST MARCH 2010. HE POINTED OUT THE RELEVANT MOU, COMMENCEMENT CERTIFICATE, REVISED APP ROVAL AND COMPLETION CERTIFICATE AS GIVEN IN THE PAPER BOOK. HE HAS ALSO RELIED UPON VARIOUS DECISIONS OF THE TRIBUNAL IN SUPPORT OF THE PROPOSI TION THAT EVEN IF SOME OF THE WINGS HAVE BEEN COMPLETED, THEN ALSO DEDUCTION HAS TO BE ALLOWED ON THE PROFITS FROM SUCH COMPLETED WINGS. THE MAIN REL IANCE WAS PLACED ON THE JUDGMENT OF HON'BLE JURISDICTIONAL HIGH COURT IN CI T V/S VANDANA PROPERTIES, [2012] 206 TAXMAN 584 (BOM.) AND CATENA OF OTHER TR IBUNAL DECISIONS. 9. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPRESE NTATIVE STRONGLY RELIED UPON THE REASONING GIVEN BY THE ASSESSING OF FICER AND SUBMITTED THAT EVEN ACCORDING TO THE ASSESSEE, THE PROJECT CONSIST ED OF SEVEN WINGS AND EVEN IF ONE OF THE WINGS IS INCOMPLETE, THEN THE FU LL DEDUCTION UNDER SECTION 80IB(10) CANNOT BE GIVEN. M/S. AKASH NIDHI BUILDERS & DEVELOPERS 8 10. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND HAVE PERUSED THE RELEVANT FINDINGS OF THE ASSESSING OFFICER AND THE LEARNED COMMISSIONER (APPEALS) AS WELL AS THE MATERIAL AVAILABLE ON RECO RD. IN THIS CASE, THE APPROVAL FOR COMMENCEMENT CERTIFICATE FOR THE CONST RUCTION OF HOUSING PROJECT WAS GIVEN ON 2 ND MAY 2000, WHICH COMPRISED OF SIX BUILDINGS NAMELY A WING TO F WING. THIS COMMENCEMENT CERTIFICATE WAS GIVEN TO M/S. SWEET LAND DEVELOPERS. LATER ON, A MEMORANDUM OF UN DERSTANDING DATED 5 TH JUNE 2005, WAS SIGNED BETWEEN THE ASSESSEE AND M/S. SWEET LAND DEVELOPERS, WHEREBY THE ASSESSEE CAME INTO THE PROJ ECT. AFTER GETTING NECESSARY APPROVALS FOR REMAINING PART OF THE PLOT, FOR NONAGRICULTURAL USE, A REVISED COMMENCEMENT CERTIFICATE WAS RECEIVED ON 27 TH JANUARY 2006. UNDER THIS APPROVAL, THE ASSESSEE WAS ALLOWED TO CO NSTRUCT ADDITIONAL WING I.E., G WING. IT IS, HOWEVER, VERY RELEVANT TO ME NTION HERE THAT THE INITIAL APPROVAL FOR SIX WINGS FROM A TO F WAS FOR AN A REA OF MORE THAN ONE ACRE. THE CONSTRUCTION OF THESE SIX BUILDINGS HAD ALREADY STARTED AND TWO OF THE WINGS ACTUALLY GOT COMPLETED ON 21 ST JUNE 2007. ALL THE SIX WINGS FROM A TO F ADMITTEDLY HAVE BEEN COMPLETED PRIOR TO 31 ST MARCH 2008. THE CLAIM OF THE ASSESSEE IS THAT G WING SHOULD ALSO BE TAKEN PART OF THE SAME PROJECT BY VIRTUE OF COMMENCEMENT CERTIFICATE DATED 27 TH JANUARY 2006. SUCH A CLAIM OF THE ASSESSEE CANNOT BE HELD TO BE TENABLE FOR THE REASON THAT ALREADY COMMENCEMENT CERTIFICATE WAS OBTAINED FOR C ONSTRUCTION OF THE ENTIRE HOUSING PROJECT WHICH ORIGINALLY CONTAINED A TO F WING. EVEN THOUGH, THE ASSESSEE HAD ENTERED INTO THE PROJECT B Y VIRTUE OF MOU DATED 5 TH JUNE 2005, THEN ALSO, IT WILL NOT ALTER THE DATE OF COMMENCEMENT OF THE PROJECT. THE SECOND COMMENCEMENT CERTIFICATE GIVES ONLY THE APPROVAL FOR FURTHER EXTENSION OF ONE MORE WING AND REVALIDATING THE EARLIER SIX WINGS, THEREFORE, IT CANNOT BE HELD THAT THE ENTIRE COMMEN CEMENT OF THE PROJECT SHOULD BE RECKONED FROM THE DATE 27 TH JANUARY 2006. THE FINDINGS AND THE REASONS GIVEN BY THE LEARNED COMMISSIONER (APPEALS) WHICH IS ALSO SUPPORTED BY THE DECISION OF THE TRIBUNAL IN SAROJ SALES ORGANISATION V/S ITO, 115 TTJ 485 AND THE JUDGMENT OF HON'BLE JURISD ICTIONAL HIGH COURT IN VANDANA PROPERTIES (SUPRA) IS ABSOLUTELY CORRECT AN D WE DO NOT FIND ANY M/S. AKASH NIDHI BUILDERS & DEVELOPERS 9 REASON TO DEVIATE FROM SUCH A FINDING. CONSEQUENTLY , THE CONCLUSION DRAWN BY THE LEARNED COMMISSIONER (APPEALS) RIGHT FROM PA RA3.4 TO PARA3.5.1 ARE THUS, UPHELD. THUS, GROUNDS RAISED BY THE REVEN UE AND THE ASSESSEE ARE TREATED AS DISMISSED. 11. 5 $8 2!' ' '* +5$ 3 9 52 * 2$ :;< 12. IN THE RESULT, REVENUES APPEAL AS WELL AS ASSESSEE S APPEAL ARE TREATED AS DISMISSED. % 3 , 9 = *8 22 ND FEBRUARY 2013 3 >< ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND FEBRUARY 2013 SD/- . .. . ! ! ! ! B. RAMAKOTAIAH ACCOUNTANT MEMBER SD/- #$ #$ #$ #$ %& %& %& %& ' ! ' ! ' ! ' ! AMIT SHUKLA JUDICIAL MEMBER MUMBAI, = * = * = * = * DATED: 22 ND FEBRUARY 2013 % 3 /'$#? @?,$ / COPY OF THE ORDER FORWARDED TO : (1) '* +5$ / THE ASSESSEE; (2) 2!' / THE REVENUE; (3) A () / THE CIT(A); (4) A / THE CIT, MUMBAI CITY CONCERNED; (5) ?'D> /'$'* , , / THE DR, ITAT, MUMBAI; (6) >E+ F / GUARD FILE. 0?$ /'$ / TRUE COPY %* / BY ORDER / 2. G / PRADEEP J. CHOWDHURY '5H '*2 ' / SR. PRIVATE SECRETARY I / : 2 / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI