ITO WD 1(3), KALYAN V. RAI RESIDENCY P.LTD, KALYAN

ITA 6245/MUM/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71973 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 11-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SUNIL M GAYAKWAD

Judgement Text

D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI VIVEK VARMA, JUDICIAL MEMBER ./I.T.A. NO.6245/M/2012 (AY: 2009 - 2010) ITO - WARD - 1(3), 1 ST FLOOR, MOHAN PLAZA, WAYALE NAGAR, KHADAKPADA, KALYAN. / VS. M/S. RAI RESIDENCY P. LTD., SANTOSH NAGAR, POONA LINK ROAD, TISGAON, KALYAN. ./ PAN : AABCR 7454 F ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI RITESH MISHRA / RESPONDENT BY : SHRI SUNIL M. GAYAKWAD / DATE OF HEARING : 11.12.2013 / DATE OF PRONOUNCEMENT : 18 .12.2013 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE REVENUE ON 11.10.2012 IS AGAINST THE ORDER OF THE CIT (A) - 1, THANE DATED 25.7.2012 FOR THE ASSESSMENT YEAR 2009 - 2010. 2. IN THIS APPEAL, REVENUE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) WAS JUSTIFIED IN HOLDING THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE ACT EVEN THOUGH THE ASSESSEE HAS NOT SATISFIED THE CONDITION OF ELIGIBILITY. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) HAS ERRED IN APPRECIATING THE FACT THAT THE TOTAL AREA OF THE PLOT APPROVED BY THE LOCAL AUTHORITY INCLUDES THE ARE OF LAND D.P. ROAD AND RESERVATION FOR RECREATION GROUND ETC. 3. THE AS SESSEE PRAYS THAT THE ORDER O F THE CIT (A) MAY BE V ACATED AND THAT OF THE AO BE RESTORED. 3. IN THIS REVENUES APPEAL, THE DECISION OF THE CIT (A) IN GRANTING THE DEDUCTION U/S 80IB(10) OF THE ACT WAS QUESTIONED ON THE GROUND THAT THE EXTENT ARE OF LAND O F D . P . ROAD IF REDUCED FROM THE PLOT WHERE THE PROJECT IS CONSTRUCTED, THE AREA COMES BELOW THE SPECIFIED AREA OF ONE ACRE OF LAND. IN THIS REGARD, LD COUNSEL DEMONSTRATED THAT THE ISSUE STANDS COVERED IN FAVOUR OF THE ASSESSEE BY VARIOUS 2 DECISIONS WHICH ARE CONSIDERED BY THE CIT (A) AND ALLOWED THE CLAIM OF THE ASSESSEE AS PER THE DISCUSSION GIVEN IN PARA 6 OF THE IMPUGNED ORDER. 4. ON THE OTHER HAND, LD DR RELIED ON THE ORDER OF THE AO. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVE NUE AUTHORITIES ON THIS LIMITED ISSUE AND FIND THAT THE CONTENTS OF PARA 6 OF THE CIT (A)S ORDER WHERE THE ISSUE WAS DISCUSSED AT LENGTH. IT IS AN UNDISPUTED FACT THAT THE LOCAL AUTHORITIES HAVE APPROVED THE PROJECT BY HOLDING THAT THE PLOT HAS MORE THAN ONE ACRE OF LAND. THE ISSUE OF WHETHER THE AREA OF D . P . ROAD , RECREATION GARDEN ETC SHOULD BE EXCLUDED FOR THE PURPOSE OF ADMEASURING THE ONE ACRE OF LAND WAS CONSIDERED BY VARIOUS DECISIONS AND THE SAME WAS DECIDED IN FAVOUR OF THE ASSESSEE. THE RELEVA NT DECISIONS IN THIS REGARD ARE AS UNDER: 1. M/S. VIDHI BUILDERS, ITA NO.2554/MUM/2011 (AY 2007 - 08) DATED 31.1.2012. 2. JOHAR HASSAN ZOJWALLA VS. ADDL. CIT, ITA NO.5404/MUM/2008 (AY 2005 - 06) DATED 12.1.2011. 3. ACIT VS. MRS. ANJANA S. CHAVAN, ITA NO. 1080/MUM/2010 (AY 2006 - 07) DATED 20.4.2011. 4. M/S. B.K. PATE ENTERPRISES VS. ACIT, ITA NO.736/PN/2010 (AY 2005 - 06) DATED 8.7.2011. 6. WE HAVE ALSO PERUSED THE OPERATIONAL PARA 4 FROM THE ORDER OF THE CIT (A) AND SAME READS AS UNDER: 4.............. ON THE PERUSAL OF APPROVAL LETTERS ISSUED BY KDMC DATED 7.11.2006 AND 30.3.2007, IT IS NOTI CED THAT THE HOUSING PROJECT (H ARI COMPLEX) HAS BEEN APPROVED ON A PLOT AREA OF 4200.19 SQ. MTS., AND HOUSING PROJECT (DWARKA NAGARI) HAS BEEN APPROVED ON AN AREA OF 4219.37 SQ. MTRS . UNDER THESE CIRCUMSTANCES, AS ALSO IN VIEW OF THE DECISION OF HONBLE ITAT, MUMBAI AS DISCUSSED ABOVE, WHICH ARE BINDING ON ME, I AM OF THE CONSIDERED VIEW THAT THE ARE A OF ROAD AND RESERVATION FOR RECREATION GROUND, ETC., WHICH IS AS PER THE HOUSING PR OJECT APPROVED BY THE LOCAL AUTHORITY COULD NOT BE EXCLUDED FROM THE TOTAL ARE OF THE PLOT FROM THE PURPOSE OF CLAIM OF DEDUCTION U/S 80IB(10) . UNDISPUTEDLY, WITHOUT EXCLUDING THE ARE A OF ROAD AND RESERVATION FOR RECREATION GROUND, THE AREA OF PLOT IN BOT H THE PROJECTS EXCEEDED ONE ACRE. THEREFORE, I HOLD THAT THE APPELLANT HAS SATISFIED THE CONDITION IN THIS REGARD AND HENCE IS ELIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE ACT IN RESPECT OF BOTH THE HOUSING PROJECTS. THE AO IS DIRECTED TO GRANT RELIEF ACCO RDINGLY AND APPELLANT SUCCEEDS ON GROUND NO.2. 7. CONSIDERING THE ABOVE, WE FIND THAT THE REVENUE HAS NOT BROUGHT ANY CONTRARY DECISIONS CITED IN PARA 4 OF THE CIT (A)S ORDER. CONSIDERING THE ABOVE SETTLED NATURE OF THE ISSUE, WE ARE OF THE OPINION THAT THE ORDER OF THE CIT (A) DOES 3 NOT CALL FOR ANY INTERFERENCE. ACCORDINGLY, GROUNDS RAISED BY THE REVENUE ARE DISMISSED . 8. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED . ORDER PRON OUNCED IN THE OPEN COURT ON 18 TH DECEMBER, 2013. SD/ - SD/ - (VIVEK VARMA) (D. KARUNAKARA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 18 .12.2013 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI