ITO 24(3)(2), MUMBAI V. NEETA ENTERPRISES, MUMBAI

ITA 6001/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8163 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 5 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 26-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: N P SINGH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NOS. 6000 & 6001/MUM/2014 ASSESSMENT YEARS: 2006-07 & 2008-09 ITO 24 (3) (2) R.NO.704 C-11 PRATYAKSHKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI, PIN 400051 / VS. NEETA ENTERPRISES 141 GUDNECHA HOUSE, JAWAHAR NAGAR, GOREGAON (W) MUMBAI, PIN 400062 ( APPELLANT ) (RESPONDENT ) P.A. NO. AACFN4947M APPELLANT BY N.P.SINGH (CITDR) REVENUE BY VIMAL PUNMIYA (AR) DATE OF HEARING: 8/3/2017 DATE OF ORDER: 16/03/2017 / O R D E R PER ASHWANI TANEJA, A.M: THESE APPEALS HAVE BEEN FILED BY THE ASSESSEE FOR T WO YEARS INVOLVING IDENTICAL ISSUES, THEREFORE, THESE WERE HEARD TOGETHER AND BEING DISPOSED OF BY THIS COMMON ORDER . 2. WE SHALL FIRST TAKE UP APPEAL FOR ASSESSMENT YEAR 2 006-07 FILED BY REVENUE AGAINST THE ORDER PASSED BY COMMISSIONER OF INCOME-TAX (APPEALS)-34 [HEREIN AFTER CALLED CIT(A)], DATED 17 .7.2014, U/S143(3) R.W.S.147 OF THE ACT FOR A.Y. 2006-07 ON THE FOLLOW ING GROUNDS:- WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE LD. CIT(A) ERRED IN ALLOWING DEDUCTION U/S . 80 IB(10) OF THE I. T. ACT IGNORING THE FACT THAT THE APPROVAL OF THE L OCAL AUTHORITY WAS OBTAINED ON 28.11.1992, I.E. MUCH BEFORE 01.10.1998 , THE DATE ON OR M/S. NEETA ENTERPRISES 2 AFTER WHICH THE PROJECT APPROVED WERE ELIGIBLE FOR DEDUCTION U/S. 80 IB(10). WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) ERRED IN ALLOWING DEDUCTION U/S. 80 IB (10) OF THE I. T. ACT IGNORING THE FACT THAT IT HAS NOT OBTAINED COMP LETION CERTIFICATE FROM LOCAL AUTHORITY BEFORE 31.03.2008 WHICH IS MAN DATORY AS PER EXPLANATION (II) TO SECTION 80 IB (10) OF THE ACT. THE APPELLANT CRAVES LEAVES TO AMEND OR ALTER ANY G ROUND OR ADD A NEW GROUND. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) BE SET ASIDE AND MATTER MAY BE DECIDED ACCORDING TO LAW. THE APPELLA NT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD NEW GROUND WHIC H MAY BE NECESSARY. 3. DURING THE COURSE OF HEARING, IT WAS STATED AT THE OUTSET BY THE LD. COUNSEL OF ASSESSEE THAT THE GROUNDS RAISED BY THE REVENUE ARE ALREADY COVERED IN FAVOUR OF THE ASSESSEE ON THE BASIS OF D ECISION OF THE TRIBUNAL RENDERED IN ASSESSEES OWN CASE FOR A.YS. 2007-08, 2009-10 & 2011-12. HE ALSO PLACED COPY OF THE JUDGMENT OF THE TRIBUNAL OF THESE YEARS BEFORE US. 4. PER CONTRA LD. DR DID NOT MAKE ANY DISTINCTION ON F ACTS OR ON LAW AND FAIRLY AGREED THAT THE ISSUES ARE INVOLVED IN FAVOU R OF THE ASSESSEE AS ON DATE. 5. WE HAVE GONE THROUGH THE ORDERS PASSED BY THE TRIBU NAL. IT IS NOTED THAT IDENTICAL ISSUES WERE RAISED IN ASSESSEES OWN CASE FOR A.YS. 2007-08, 2009-10, 2010-11 & 2011-12. IN THIS DECISION IT HAS BEEN HELD BY THE TRIBUNAL THAT APPROVAL OF THE HOUSING PROJECT WAS O BTAINED BY THE ASSESSEE AFTER ENTERING INTO THE DEVELOPMENT AGREEMENT ON 10 TH JANUARY 2003, THEREFORE, PROJECT CANNOT BE STATED TO BE COMMENCED BEFORE 1.10.1998. 6. SIMILARLY, WITH REGARD TO THE COMPLETION OF THE PRO JECT IT HAS BEEN HELD THAT ASSESSEE HAD COMPLETED THE CONSTRUCTION W ORK IN ALL RESPECTS BEFORE 31.3.2008 AND OBTAINED OCCUPATION CERTIFICAT E ALSO, THEREFORE M/S. NEETA ENTERPRISES 3 BENEFITS OF DEDUCTION U/S-80 IB (10) COULD NOT HAVE BEEN DENIED TO THE ASSESSEE. 7. THUS, BOTH THE OBJECTIONS RAISED IN GROUND NO. 2 B Y THE REVENUE HAVE BEEN TAKEN INTO ACCOUNT BY THE TRIBUNAL IN SUB SEQUENT YEARS AND IT WAS HELD THAT ASSESSEE WAS ELIGIBLE FOR BENEFIT OF DEDUCTION U/S 80 IB(10). NO DISTINCTION HAS BEEN MADE OUT BY LD. CIT DR BEFO RE US ON FACTS OR LEGAL POSITION. THEREFORE, RESPECTFULLY FOLLOWING THE ORD ERS OF THE TRIBUNAL FOR THESE YEARS, WE FIND THAT NO INTERFERENCE IS CALLED FOR IN ORDER OF CIT(A), THEREFORE, SAME IS UPHELD. AS A RESULT, GROUNDS RAI SED BY THE REVENUE ARE DISMISSED. 8 APPEAL FILED BY THE REVENUE IS DISMISSED. 9. IT WAS INFORMED THAT ISSUES INVOLVED IN APPEAL FILE D BY THE REVENUE FOR ASSESSMENT YEAR 2008-09 ARE IDENTICAL, THEREFOR E, RESPECTFULLY FOLLOWING OUR ORDER FOR A.Y. 2006-07, THIS APPEAL FILED BY TH E REVENUE IS ALSO DISMISSED. 10. AS A RESULT, BOTH APPEALS FILED BY THE REVENUE ARE DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE CONC LUSION OF HEARING. SD/- SD/- (MAHAVIR SINGH) (ASHWANI TANEJA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED : 16.03.2017 V. P. SINGH