BHAVYA CONSTRUCITON CO., MUMBAI V. ACIT 21(1), MUMBAI

ITA 6141/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 56127 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 10-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R S RAWAL
• Keywords: Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH, MUMBAI. BEFORE SHRI N.V.VASUDEVAN, JUDICIAL MEMBER AND PRAMOD KUMAR, ACCOUNTANT MEMBER I.T.A NO. 6141/ MUM/2010 ASSESSMENT YEAR: 2007-08 BHAVYA CONSTRUCTION CO. .. APPELLANT 4, BHIDE BUNGLOW, 37-A, M.G.ROAD, VILE PARLE(E), MUMBAI-57 PA NO.AAAFB 1375 K VS ACIT, 21 (1) .. RESPONDENT PRATYAKHAKAR BHAVAN, BANDRA KURLA COMPLEX, MUMBAI-51 APPEARANCES: VISHWAS V MEHENDALE , FOR THE APPELLANT R.S.RAWAL , FOR THE RESPONDENT DATE OF HEARING : 29.12.2011 DATE OF PRONOUNCEMENT : 29 -12-2011 O R D E R PER PRAMOD KUMAR: 1. BY WAY OF THIS APPEAL, THE ASSESSEE-APPELLANT HA S CHALLENGED CORRECTNESS OF CIT(A)S ORDER DATED 9 TH APRIL, 2010, IN THE MATTER OF ASSESSMENT UNDER SEC TION 143(3) OF THE INCOME TAX ACT, 1961, FOR THE ASSESS MENT YEAR 2007-08. 2. THE ONLY ISSUE RAISED BY THE ASSESSEE IS AGAINST THE CONFIRMATION OF I.T.A NO. 6141/ MUM/2010 ASSESSMENT YEAR: 2007-08 2 DISALLOWANCE OF DEDUCTION OF RS.98,73,174 U/S.80IB (10) OF THE INCOME TAX ACT, 1961. 3. THE RELEVANT MATERIAL FACTS ARE LIKE THIS. THE ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF PROMOTERS, BUILDERS AND CONTRACTORS. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NO TICED THAT THE ASSESSEE HAS CLAIMED DEDUCTION OF RS.98,73,174 UNDER SECTION 80I B(10) FROM THE GROSS TOTAL INCOME. THE AO ALSO NOTICED THAT IN THE PREVIOUS Y EAR RELEVANT TO THE ASSESSMENT YEAR 2006-07, SIMILAR CLAIM OF THE ASSESSEE WAS NOT ALLOWED. THEREFORE, THE ASSESSEE WAS ASKED TO EXPLAIN WHY THE CLAIM OF THE ASSESSEE SHOULD NOT BE DISALLOWED. IN RESPONSE TO ASSESSING OFFICERS QUE RY, IT WAS SUBMITTED BY THE ASSESSEE THAT SINCE THE CONDITIONS LAID DOWN IN SEC TION 80IB(10) ARE FULFILLED, THE CLAIM WAS MADE. THE ASSESSING OFFICER NOTICED THAT THE PLOT OF LAND IS LESS THAN ONE ACRE AND, THEREFORE, THE CONDITIONS LAID DOWN U/S.8 0IB(10) ARE NOT FULFILLED. IT WAS IN THIS BACKDROP THAT THE ASSESSING OFFICER DISALLOWED THE CLAIM OF THE ASSESSEE U/S.80IB(10) OF THE ACT. AGGRIEVED, ASSESSEE CARRI ED THE MATTER IN APPEAL BEFORE THE CIT(A) BUT WITHOUT ANY SUCCESS. THE ASSESSEE IS NO T SATISFIED AND IS IN FURTHER APPEAL BEFORE US. 4. LEARNED COUNSEL FOR THE ASSESSEE PRODUCED A COPY OF DECISION DATED 14 TH OCTOBER, 2011 IN ASSESSEES OWN CASE FOR THE ASSESS MENT YEAR 2006-07 IN ITA NO.3090/M/2010 AND CONTENDED THAT ON SIMILAR FACTS IN THE PREVIOUS YEAR, THE DEDUCTION UNDER SECTION 80-IB(10) WAS DISALLOWED BY THE AO AND CONFIRMED BY THE CIT(A). ON APPEAL, THE TRIBUNAL HAS RESTORED THE M ATTER TO THE FILE OF THE AO IN THE LIGHT OF THE NOTIFICATION NO. S41896(E) OF CBDT ISS UED ON 3.8.2010. HE CONTENDED THAT THE CIT(A) HAS PASSED THE IMPUGNED ORDER ON 9. 4.2010 AND THE CBDT NOTIFICATION IS DATED 3.8.2010. THEREFORE, THE CBD T NOTIFICATION IS ISSUED ONLY AFTER THE DECISION OF THE CIT(A). HE URGED US TO ALLOW T HE CLAIM OF THE ASSESSEE AS THE SCHEME HAS BEEN NOTIFIED BY THE CBDT. LEARNED DEPA RTMENTAL REPRESENTATIVE DID NOT OBJECT TO THE SUBMISSIONS OF THE ASSESSEE. I.T.A NO. 6141/ MUM/2010 ASSESSMENT YEAR: 2007-08 3 5. HAVING HEARD BOTH THE SIDES AND HAVING PERUSED T HE MATERIAL ON RECORD, WE FIND THAT WHEN THE CIT(A) PASSED THE IMPUGNED ORDER , CBDT NOTIFICATION HAD NOT COME INTO FORCE. THE ASSESSEE WAS NOT ABLE TO PRO DUCE THE CBDT NOTIFICATION BEFORE ANY OF THE AUTHORITIES BELOW TO SUBSTANTIATE ITS CL AIM FOR DEDUCTION U/S. 80IB(10) OF THE I.T.ACT. WE ALSO FIND THAT ON SIMILAR FACTS, F OR THE ASSESSMENT YEAR 2006-07, THE TRIBUNAL HAS RESTORED THE ISSUE TO THE FILE OF THE AO FOR DECIDING THE CLAIM OF DEDUCTION U/S.80IB(10) AFRESH IN THE LIGHT OF THE C BDT NOTIFICATION AND AFTER GIVING OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. IN VIE W OF THIS AND ALSO FOLLOWING THE DECISION OF THE COORDINATE BENCH IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2006-07(SUPRA), WE ALSO SET ASIDE THE ORDER OF THE CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF THE AO TO DECIDE THE CLAIM OF THE A SSESSEE IN THE LIGHT OF CBDT NOTIFICATION AFTER GIVING OPPORTUNITY OF BEING HEAR D TO THE ASSESSEE. 6. IN THE RESULT, APPEAL IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 29 TH DECEMBER, 2011 SD/- (N.V.VASUDEVAN) JUDICIAL MEMBER SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER MUMBAI, DATED 29 TH DECEMBER 2011 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A)-32 4. COMMISSIONER OF INCOME TAX, CITY-21 , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH B MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI