KRISH ENTERPRISES, MUMBAI V. DCIT 24(1), MUMBAI

ITA 6728/MUM/2013

• Counselvise Citation: 672819914 RSA 2013
• Duration Of Justice: 10 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 22-09-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 20-11-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PERMANAND J
• Assessee Lawyers: VIMAL PUNMIYA
• Keywords: Competent authority
• Section: 234B; 80IB; 133(6)

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI .., ! , ' , # BEFORE SHRI I.P.BANSAL, JM AND SHRI RAJENDRA, AM ITA NO.6728 /MUM/2013 (A.Y. 2009-10) M/S. KRISH ENTERPRISES, 2/12, VIJAY VILLA BLDG., NEAR JAIN TEMPLE, STATION ROAD, JOGESHWARI (W), MUMBAI 400 060 PAN:AAIFK 4450A THE DCIT 24(1), MUMBAI. ( $% / // / APPELLANT) ' ' ' ' / VS. ( ()$%/ RESPONDENT) $% * * * * + + + + /APPELLANT BY :SHRI VIMAL PUNMIYA ()$% * + * + * + * + /RESPONDENT BY : SHRI PERMANAND J. ' * ,-' / / / / DATE OF HEARING : 22.09.2014 ./0 * ,-' / DATE OF PRONOUNCEMENT : 22.09.2014 1 1 1 1 / / / / O R D E R PER I.P.BANSAL (JM) : THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS D IRECTED AGAINST ORDER PASSED BY LD. CIT(A)-34., MUMBAI DATED 09.10.2013 F OR ASSESSMENT YEAR 2009- 10. GROUNDS OF APPEAL READ AS UNDER: 1. THE LD. CIT(A) ERRED IN CONFIRMING DISALLOWANC E OF DEDUCTION U/S 801B(10) AMOUNT RS.58,65,900/-. 2. THE LD. CIT(A) FAILED TO APPRECIATE THAT CONDITI ON OF COMPLETION IS NOT APPLY IN PRESENT CASE AS PROJECT IS APPROVED ON 05.03.2004 B EFORE THE INSERTION OF COMPLETION CONDITION. I.E. W.E.F. 01.04.2005. 3. THE LD. CIT(A) FAILED TO APPRECIATE THAT- A) NO REQUIREMENT TO OBTAIN COMPLETION CERTIFICATE FROM SAME AUTHORITY WHO APPROVED THE PROJECT UNDER SECTION 801B( 10). B) GRAM PANCHAYAT IS COMPETENT AUTHORITY FOR ISSUIN G COMPLETION CERTIFICATE. C) ASSESSEE HAS APPLIED FOR COMPLETION CERTIFICATE VIDE LETTER DATED 3 1/03/2008, BUT NOT OBTAINED DUE TO THE REASON BEYOND THE CONTROL O F ASSESSEE, DEDUCTION U/S 801B(10) CANNOT BE DENIED. D) OBTAINING A COMPLETION CERTIFICATE IS A TECHNICA L FORMALITY AND THAT CANNOT BE A GROUND FOR DENYING DEDUCTION U/S 801B(10). E) BENEFICIAL PROVISION SHOULD BE INTERPRETED LIBER ALLY. 4. THE LD. CIT(A) FAILED TO CONSIDERED THAT PROJECT HAS NO COMMERCIAL AREA. ITA NO.6728 /MUM/2013 (A.Y. 2009-10) 2 5. THE LD. CIT(A) FAILED TO CONSIDERED THAT REVISED DEVELOPMENT PERMISSION WAS ISSUED FOR OTHER PART OF LAND BELONG TO OTHER PERSO N. 6. THE LD. CIT(A) ERRED IN CONFIRMING CHARGING INTE REST UNDER SECTION 234B AND 234C. 7. THE LD. CIT(A) IN CONFIRMING INVOCATION OF PROVI SION U/S 271(1)(C) 8. THE ASSESSEE CRAVE LEAVE TO ADD FURTHER GROUNDS OR TO AMEND OR ALTER THE EXISTING GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING . 2. THE ASSESSEE IS A FIRM ENGAGED IN THE BUSINESS O F BUILDER AND DEVELOPER IN THE VASAI-VIRAR REGION OF THANE DIST. SHRI PURUSHO TTAM A. KAWALI THE ORIGINAL OWNER OF THE LAND WAS AWARDED WITH COMMENCEMENT CER TIFICATE FROM CIDCO AS PER LETTER NO.CIDCO/VVSR/BP-1087/W/2500 DATED 5/3/2004 WITH REGARD TO VARIOUS SECTORS INTER-ALIA INCLUDING SECTOR-4, WHIC H IS DEVELOPED BY THE ASSESSEE AS PER ITS AGREEMENT WITH M/S.ADINATH DEVELOPERS. SEQUENCE OF EVENTS IS STATED IN THE FACT SHEET SUBMITTED BY LD. AR OF THE ASSES SEE AS UNDER. DATE EVENT REMARK PAGE NO. BEFORE 7.2.1997 PURUSHOTTAM A. KAWALI THE ORIGINAL OWNER OF AGRICULTURE LAND. 07/02/1997 OWNER CONVERTED AGRICULTURE LAND INTO NON-ARCULTURE LAND. VIDE ORDER BEARING NO.REV/DESK-1/T- 9/NAP/SR-3/96 OF OFFICE OF COLLECTOR, THANE. 05.03.2004 CIDCO APPROVED BLOCK PLAN AS RESIDENTIAL WITH SHOPLINE BUILDING VIDE NO.CIDCO/VVSR/BP- 1087/W/2500 FOR DVELOPMENT OF SECTOR.I,II,III, IV & V 0.2.07.2004 OWNER TRANSFER DEVELOPMENT RIGHT TO MR. KUNVERJI BACHHU SHAH FOR DEVELOPMENT OF SECTOR NO.I,II,III, IV & V 40-77 09.07.2004 MR. KUNVERJI BACHHU SHAH TRANSFER DEVELOPMENT RIGHT TO M/S. ADINATH DEVELOPERS FOR DEVELOPMENT OF SECTOR NO.I,II,III, IV & V 78-121 30.04.2007 M/S. ADINATH DEVELOPERS TRANSFER DEVELOPMENT RIGHT TO APPELLANT FOR BUILDING NO.1 WING C, BUILDING NO.2 WING A,B,C & BUILDING NO.3 WING A,B,C OF SECTOR NO.IV (100% RESIDENTIAL PROJECT) ADMEASURING AREA OF 5499.17 SQ.MTR. (I.E. MORE THAN 1 ACRE) 122-142 15.9.2005 M/S.ADINATH DEVELOPERS TRANSFER DEVELOPMENT RIGHT TO LEELA BUILDERS. FOR REMAINING BUILDING AND ALL COMMERCIAL AREA RIGHT 143-161 ..3.2008 PROJECT WAS COMPLETED 17.03.2008 HOUSE TAX LEVIED 168-170 27.03.2008 PAID WATER CONNECTION CHARGES TO VIRAR NAGARPALIKA 171-172 28.03.2008 ARCHITECT CERTIFIED THAT PROJECT IS COMPLETED 29.03.2008 BOLINJ GRAMPANCHAYAT ISSUED COMPLETION CERTIFICATE 177 31.03.2008 FIRM APPLIED TO CIDCO FOR GRANTING OCCUPATION CERTIFICATE 176 ITA NO.6728 /MUM/2013 (A.Y. 2009-10) 3 2.1 DURING THE YEAR UNDER CONSIDERATION THE ASSESSE E CLAIMED DEDUCTION UNDER SECTION 80IB(10) OF THE INCOME TAX ACT, 1961 (THE A CT), WHICH HAS BEEN DISALLOWED BY THE AO. THE REASONS GIVEN BY AO FOR DISALLOWA NCE OF THE CLAIM ARE AS UNDER: I. THE ASSESSEE COULD NOT PRODUCE COMPLETION CERTI FICATE OBTAINED FROM CIDCO WITHIN A PERIOD OF FOUR YEARS I.E. BEFORE 31/3/2008 . II. VASAI VIRAR MUNICIPAL CORPORATION IN RESPONS E TO QUERY RAISED BY AO VIDE NOTICE ISSUED UNDER SECTION 133(6) HAS STATED THAT IT DID NOT ISSUE COMPLETION CERTIFICATE TO THE ASSESSEE AND AS PER LETTER RECE IVED FROM VASAI-VIRAR MUNICIPAL CORPORATION PERMISSION OF REVISED DEVELOPMENT PLAN WAS ISSUED VIDE LETTER DATED 23/3/2010. THUS AO OBSERVED THAT ASSESSEE DID NOT COMPLETE THE BUILDING WITHIN THE MANDATORY TIME LINE I.E. 31/3/2008. III. ACCORDING TO DETAILS FILED BEFORE AO THE ASSE SSEE HAD BEEN INCURRING EXPENDITURE BEYOND 31/3/2008 IN THE SHAPE OF FIXIN G OF KITCHEN DOORS, SLIDING WINDOWS, ELECTRIC METER PURCHASE, LOFT TANK PURCHAS E, PLUMBING PIPES, ELECTRIC WIRING CABLES ETC. WHICH IS INDICATIVE OF THE FACT THAT PROJECT OF THE ASSESSEE WAS NOT COMPLETE. 2.2 FURTHER THE AO REJECTED THE CONTENTION OF THE ASSESSEE THAT COMPLETION CERTIFICATE ISSUED BY GRAM PANCHAYAT BOLINJ, VIRAR SHOULD BE CONSIDERED TO BE FULFILLMENT OF THE CONDITION OF COMPLETION OF PROJE CT. THE AO REJECTED SUCH CONTENTION ON THE BASIS THAT THE CERTIFICATE ISSUED BY GRAM PANCHAYAT WILL NOT SERVE THE PURPOSE OF THE ASSESSEE AND ONLY CIDCO C OULD ISSUE SUCH CERTIFICATE, THEREFORE, THE CERTIFICATE ISSUED BY GRAM PANCHAYAT CANNOT BE TAKEN AS FULFILLMENT OF THE CONDITION OF COMPLETION OF THE PROJECT BEFO RE 31/3/2008. 2.3 THE A.O ALSO OBSERVED THAT THE PROJECT WAS APPR OVED AS SINGLE PROJECT BY LOCAL AUTHORITY WHICH WAS CAPABLE OF BEING DIVIDED INTO VARIOUS PARCELS AND ALLOCATE TO DIFFERENT ENTITIES FOR DEVELOPMENT BY T HE DEVELOPMENT RIGHT OWNER THEN THE VERY ACTION OF THE OTHER PARTY WHICH INTER-ALIA INCLUDE M/S.ADINATH DEVELOPERS WILL ABSOLVE THE BUYERS FROM THE ELIGIBILITY TO CL AIM DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. THE DISALLOWANCE OF DEDUCTION WAS CHALLENGED IN AN APPEAL ITA NO.6728 /MUM/2013 (A.Y. 2009-10) 4 FILED BEFORE LD. CIT(A). IT WAS SUBMITTED THAT ASS ESSEE HAD APPLIED TO CIDCO FOR COMPLETION CERTIFICATE ON 31/3/2008. HOWEVER, CID CO DID NOT ISSUE COMPLETION CERTIFICATE. THE GRAM PANCHAYAT HAD ISSUED THE COM PLETION CERTIFICATE ON 29/3/2008 CERTIFYING THE FACT THAT THE PROJECT IS C OMPLETE AND IS HABITABLE AND IS ALSO READY TO BE OCCUPIED BY THE FLAT OWNERS. THE REFORE, THE CONDITION REGARDING COMPLETION OF PROJECT WAS COMPLIED WITH. IT WAS AL SO SUBMITTED THAT AS PER EXPLANATION TO SECTION 10(20) OF THE ACT GRAM PANCH AYAT ALSO FALLS UNDER LOCAL AUTHORITY AND REFERENCE WAS MADE TO THE DECISION OF PUNE BENCH OF THE TRIBUNAL IN THE CASE OF KRISHNA HARUBHAU LOHOKARE VS. ITO(IT A NO.937/PN/2010) , WHEREIN IT HAS BEEN HELD THAT FOR THE PURPOSE OF I SSUE OF COMPLETION CERTIFICATE UNDER SECTION 80 IB(10) GRAM PANCHAYAT IS A LOCAL AUTHORITY. 2.4 IT WAS FURTHER SUBMITTED THAT REQUIREMENT OF CO MPLETION CERTIFICATE DOES NOT APPLY TO A CASE WHERE PROJECT HAS BEEN APPROVED BEF ORE 31/3/2005. ALL THESE CONTENTIONS OF THE ASSESSEE ARE NOTED IN PARA -4 OF THE ORDER OF LD. CIT(A). LD. CIT(A) HAS SUMMARIZED THE CONTENTIONS OF THE ASSES SEE AS UNDER: I. THAT THE DEDUCTION UNDER SECTION 80 IB(10) SHO ULD NOT BE DISALLOWED SINCE THE ASSESSEE HAS COMPLETED THE PROJECT BEFORE 31.03.200 8 AND HAS ALSO OBTAINED THE COMPLETION CERTIFICATE FROM THE GRAM PANCHAYAT, BOL INJ. II. THAT GRAM PANCHAYAT , BOLINJ IS A COMPETENT LOC AL AUTHORITY AUTHORIZED TO ISSUE A COMPLETION CERTIFICATE AS PER THE INCOME TAX ACT A S WELL AS THE CONSTITUTION OF INDIA. III. THAT THE REQUIREMENT OF A COMPLETION CERTIFIC ATE IS A TECHNICAL FORMALITY FOR WHICH THE DEDUCTION SHOULD NOT BE DISALLOWED. IV) THAT THE ASSESSEE IS NOT REQUIRED TO OBTAIN THE COMPLETION CERTIFICATE BECAUSE THE PROJECT WAS APPROVED PRIOR TO 01.04.2005 WHEN THE A MENDED PROVISION DID NOT EVEN EXIST AND THE QUESTION OF PUTTING THEM INTO EFFECT DID NOT ARISE AT THAT TIME. THE OLD PROVISIONS NEVER REQUIRED THE COMPLETION CERTIFICA TE AND HENCE, THE ASSESSEE IS NOT REQUIRED TO OBTAIN THE SAME. HENCE, IN VIEW OF THE ABOVE, WE REQUEST YOUR HONOUR TO GRANT A SYMPATHETIC CONSIDERATION TOWARDS THE ASSESSEE AND ALLOW THE CL AIM OF DEDUCTION UNDER SECTION 80 IB(10) OF THE IT ACT, 1961. 2.5 AFTER CONSIDERING THE AFOREMENTIONED SUBMISSION S OF THE ASSESSEE LD. CIT(A) HAS COME TO THE CONCLUSION THAT PRIMA FACIE THE PR OJECT WAS NOT APPROVED BY LOCAL AUTHORITY I.E. CIDCO AS HOUSING PROJECT BUT A S RESIDENTIAL BUILDING IN SHOP LINE AS THERE WAS NO PROVISION FOR COMMERCIAL ARE A IN HOUSING PROJECT PRIOR TO 01/04/2004. THE COMPLETION CERTIFICATE WAS NOT ISS UED BY LOCAL AUTHORITY/COMPETENT AUTHORITY I.E. CIDCO TILL THE D ATE OF THE ASSESSMENT ORDER. ITA NO.6728 /MUM/2013 (A.Y. 2009-10) 5 THE PROJECT OF THE ASSESSEE COULD NOT BE CONSIDERE D TO BE COMPLETE IN VIEW OF THE FACTS MENTIONED BY THE AO IN THE ASSESSMENT ORDER. THE PERMISSION TO CONSTRUCT THE STRUCTURE WAS GIVEN BY THE LOCAL AUTHORITY I.E. CIDCO AND THE COMPLETION CERTIFICATE WAS ISSUED BY ANOTHER LOCAL AUTHORITY I .E. GRAM PANCHAYAT BOLINJ, VIRAR. THOUGH GRAM PANCHAYAT MAY BE A COMPETENT AU THORITY TO ISSUE SUCH CERTIFICATE BUT IN THE INSTANT CASE THE PERMISSION TO CONSTRUCT THE BUILDING WAS NOT ACCORDED BY THE GRAM PANCHAYAT BOLINJ, VIRAR. THE APPELLANT HAD APPLIED FOR COMPLETION CERTIFICATE FROM CIDCO AND COULD NOT OBT AIN IT FROM THE SAID COMPETENT AUTHORITY. IN THE CIRCUMSTANCES GETTING A CERTIFICATE FROM OTHER LOCAL AUTHORITY CANNOT HOLD ANY VALIDITY. THE QUESTION WHICH IS IMPORTANT TO BE DECIDED IS THAT WHETHER IT IS A COMPETENT AUTHOR ITY TO ISSUE THE CERTIFICATE OF COMPLETION TO THE ASSESSEE. THE EVIDENCE OF SUCH COMPETENCE OF THE AUTHORITY HAS NOT BEEN PROVIDED BY THE ASSESSEE EITHER BEFOR E THE AO OR BEFORE LD. CIT(A), THEREFORE, THE CASE LAW RELIED UPON BY THE ASSESSEE WILL NOT SUPPORT ITS CASE. IN THIS MANNER LD. CIT(A) HAS UPHELD THE DISALLOWANCE. THE CONCLUDING OBSERVATIONS OF LD. CIT(A) ARE AS UNDER: 5.1.. THE APPELLANT HAD FILED COPY OF APPLICATION LETTER DATED 31.3.2008, SUBMITTED TO THE CIDCO REGARDING THE COMPLETION OF THE PROJE CT AND ISSUANCE OF .COMPLETION CERTIFICATE, BEFORE THE ASSESSING OFFIC ER. BUT THE AID CERTIFICATE WAS NOT ISSUED BY THE CIDCO. IT WAS OBSERVED B THE ASSESSIN G OFFICER THAT IT WAS PENDING FOR MORE THAN A, YEAR. THE APPELLANT IN THE MEANWHILE O BTAINED COMPLETION CERTIFICATE FROM ANOTHER. LOCAL AUTHORITY VIZ. GRAM PANCHAYAT, BOLINJ, VIRAR AND CLAIMED THAT THE PROJECT WAS COMPLETED ARID IT HAD FULFILLED TH E CONDITIONS FOR CLAIMING DEDUCTION U/S.801B(10) OF THE INCOME TAX ACT. THE ASSESSING O FFICER HAD ALSO ISSUED SUMMONS U/SJ33(6) OF THE. INCOME TAX ACT TO VASAI - VIRAR MUNICIPAL CORPORATION OR EXAMINATION OF THE ISSUE; BY WHICH SHE CAME TO KN OW THAT THERE WAS A REVISED DEVELOPMENT PERMISSION ISSUED BY THE CIDCO IN RESPE CT OF THE SAID PROJECT BEARING REFERENCE NO. CIDCO/VVSR/RDP/BP-10871W/6048 DATED 2 3.3.20W, THE COPY OF THE SAME WAS ENCLOSED BY THE ASSESSING OFFICER FOR REFERENCE. AS PER THE ABOVE STATED LETTER, THE ASSESSING OFFICER HAD COME TO TH E CONCLUSION THAT THE PROJECT WAS NOT COMPLETED TILL THE MANDATORY TIME LINE I.E. 31. 3.2008 AND DENIED THE DEDUCTION U/S.8OLB(10) OF THE INCOME TAX ACT. 5.2. FROM THE FOREGOING PARAS, IT IS OBSERVED THAT THERE ARE CERTAIN IRREGULARITIES/DELAYS IN GETTING THE COMPLETION CER TIFICATE FROM CIDCO BY THE APPELLANT. IT IS VERY MUCH OBVIOUS THAT THE APPELLA NT APPROACHED ANOTHER LOCAL AUTHORITY TO CUT SHORT THE REGULAR PROCEEDINGS AND OBTAINED THE COMPLETION CERTIFICATE FROM ANOTHER LOCAL AUTHORITY. THE PERMISSION TO CON STRUCT THE STRUCTURE WAS GIVEN BY THE LOCAL AUTHORITY I.E. CIDCO AND THE COMPLETION C ERTIFICATE WAS ISSUED BY ANOTHER LOCAL AUTHORITY I.E. GRAM PANCHAYAT, BOLINJ, VIRAR. THE APPELLANT SUBMITTED THAT GRAM PANCHAYAT ALSO WAS A COMPETENT AUTHORITY TO IS SUE THE COMPLETION CERTIFICATE TO CLAIM THE BENEFIT OF DEDUCTION U/S.8OLB(10) OF THE INCOME TAX ACT. HOWEVER, I AM OF THE OPINION THAT GRAM PANCHAYAT MAY BE A COMPETENT AUTHORITY TO ISSUE SUCH A CERTIFICATE BUT IN THE INSTANT CASE, THE PERMISSION TO CONSTRUCT THE BUILDING WAS NOT ACCORDED BY THE GRAM PANCHAYAT, BOLINJ, VIRAR. THE APPELLANT HAD APPLIED FOR COMPLETION CERTIFICATE FROM CIDCO ONLY AND COULD NO T OBTAIN FROM THE SAID COMPETENT ITA NO.6728 /MUM/2013 (A.Y. 2009-10) 6 AUTHORITY. IN THE CIRCUMSTANCES GETTING A CERTIFIC ATE FROM ANOTHER LOCAL AUTHORITY CANNOT HOLD ANY VALIDITY. IT MAY BE A LOCAL AUTHORI TY AS DEFINED BY THE INCOME TAX ACT BUT THE QUESTION REMAINS IN THE INSTANT CASE WH ETHER IT IS A COMPETENT AUTHORITY TO ISSUE THE CERTIFICATE OF COMPLETION TO THE APPE LLANT. THE QUESTION OF COMPETENCE HAS NOT BEEN PROVED BY THE APPELLANT EITHER, BEFORE THE ASSESSING OFFICER OR BEFORE THE APPELLATE AUTHORITY. HENCE THE CASE LAWS RELIED ON BY THE APPELLANT DOES NOT SUPPORT ITS CASE. IN THE CIRCUMSTANCES, THE CLAIM O F DEDUCTION U/S.801B(1O) OF INCOME. TAX ACT CANNOT B ALLOWED AND THE ADDITION M ADE BY THE ASSESSING OFFICER IS SUSTAINED. THIS GROUND OF APPEAL IS DISMISSED. AGGRIEVED, ASSESSEE HAS FILED THE AFORE MENTIONED G ROUNDS OF APPEAL. 3. AFTER NARRATING THE FACTS IT WAS SUBMITTED BY L D. AR THAT THE DEVELOPMENT AGREEMENT OF THE ASSESSEE, COPY OF WHICH IS FILED A T PAGE 122 TO 142 OF THE PAPER BOOK WAS IN RESPECT OF SECTOR NO.4 FOR BUILDING NO.1,WING-C, BUILDING NO.2, WING-A,B & C AND BUILDING NO.3, WING A,B & C AND TH IS IS 100% RESIDENTIAL PROJECT ADMEASURING AN AREA OF 5499.17 SQ.MTS., WHI CH IS MORE THAN ONE ACRE. RELYING TO THE DEVELOPMENT AGREEMENT IT WAS SUBMITT ED THAT THE TOTAL DEVELOPMENT RIGHTS IN RESPECT OF TOTAL AREA WERE TO THE TUNE OF 409272 SQ.FTS., OUT OF WHICH APPROVED AREA WAS 274272 SQ.FTS. OUT OF THE TOTAL DEVELOPED AREA THE ASSESSEE GOT 5499.12 SQ.MTRS. I.E. 59193 SQ.FTS. IN SECTOR -4. IN THIS REGARD LD. AR REFERRED TO CLAUSE (V) & (Z-B) OF PAGES 6 & 7 OF THE DEVELOPME NT AGREEMENT, COPY PLACED AT PAGES 128 TO 129 OF THE PAPER BOOK. IT WAS SUBMITT ED THAT THIS PROJECT WAS 100% RESIDENTIAL PROJECT AND REST OF THE AREA WAS TRANSF ERRED BY M/S. ADINATH DEVELOPERS FOR DEVELOPMENT TO SAI LEELA BUILDERS A ND COPY OF THIS AGREEMENT IS ALSO FILED AT PAGES 143 TO 161 OF THE PAPER BOOK. HE SUBMITTED THAT M/S. SAI LEELA BUILDERS IS DIFFERENT PARTY UNRELATED TO TH E ASSESSEE. HE SUBMITTED THAT THE AREA OF DEVELOPMENT OF M/S. SAI LEELA BUILDERS WAS COMPRISING OF RESIDENTIAL AS WELL AS COMMERCIAL AREA. THUS IT WAS SUBMITTE D BY LD. AR THAT IN THE AREA DEVELOPED BY THE ASSESSEE NO COMMERCIAL BUILDING WA S INVOLVED. 3.1 LD. AR FURTHER SUBMITTED THAT REVISED BUILDING PLAN FOR WHICH INFORMATION WAS RECEIVED BY THE AO VIDE LETTER DATED 23/3/2 010 DID NOT BELONG TO ASSESSEE AS THE SAID PLAN WAS NOT REVISED IN RESPECT OF PRO JECT DEVELOPED BY THE ASSESSEE BUT WAS IN RESPECT OF PROJECT DEVELOPED BY OTHER DE VELOPER. THEREFORE, LD. AR PLEADED THAT THE SAID REVISED PLAN HAS NOTHING TO D O WITH THE PROJECT OF THE ASSESSEE. ITA NO.6728 /MUM/2013 (A.Y. 2009-10) 7 3.2 SO FAR AS IT RELATES TO CONTENTION REGARDING CO MPLETION CERTIFICATE IT WAS SUBMITTED BY LD. AR THAT PROJECT OF THE ASSESSEE WA S APPROVED BY CIDCO AS PER LETTER DTED 5/3/2004 ( THE COPY OF THE SAID LETTER WAS NOT ENCLOSED IN THE PAPER BOOK. HOWEVER, IT WAS SUBMITTED DURING THE COURSE OF HEARING AND COPY WAS ALSO GIVEN TO LD. DR) IT WAS SUBMITTED BY LD. AR THAT THE CONDITION REGARDING COMPLETION OF PROJECT IS NOT APPLICABLE ON THE PRO JECT WHICH ARE APPROVED BEFORE 31/3/2005. LD. AR HAS SUBMITTED A CHART SHOWING T HE ESSENTIAL CONDITIONS BEFORE 01/04/2005 AND AFTER 01/04/2005 AND THE SAID CHART READ AS UNDER: SN HEAD BEFORE 1.4.05 AFTER 1.4.05 REMARKS 1. CUT OF DATE PROJECTS APPROVED BEFORE 31.3.2005 PROJECTS APPROVED BEFORE 31.03.2007 DEDUCTION PERIOD INCREASED 2. COMMENCEMENT AFTER 1.10.1998 AFTER 1.10.1998 SAM E 3. COMPLETION NO PROVISION I) PROJECTS APPROVED BEF ORE 1.4.2004 ON OR BEFORE 31.03.2008 II.PROJECTS APPROVED AFTER 1.4.2004 WITHIN 4 YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH APPROVAL RECEIVED THESE PROVISIONS ADDED 4. AREA MINIMUM 1 ACRE PLOT SIZE. MINIMUM 1 ACRE PLOT SIZE SAME. 5. MAXIMUM BUILT UP AREA 1000 SQ.FT. OR 1500 SQ.FT. AS APPLICABLE ACCORDING TO CITIES 1000 SQ.FT. OR 1500 SQ.FT. AS APPLICABLE ACCORDING TO CITIES SAME 6. BUILT UP AREA NO DEFINITION BUILT-UP AREA DEFIN E DETAIL DEFINITION 7. PERMITTED COMMERCIAL AREA NO PROVISION NOT EXCEEDING 5% OR 2000 SQ.FT. BUILT UP AREA NO RESTRICTION IN COMMERCIAL USE OF LAND SUBJECT TO APPROVING UNDER HOUSING CATEGORY 8. COMPLETION CERTIFICATE NO PROVISION COMPLETION CERTIFICATE TO BE OBTAINED BY LOCAL AUTHORITY. THESE PROVISIONS ADDED. THUS, THERE IS NO CONDITION OF COMPLETION AND FURNI SHING COMPLETION CERTIFICATE. 3.3 FOR RAISING THE CONTENTION THAT COMPLETION OF T HE PROJECT WAS NOT A CONDITION PRECEDENT IN RESPECT OF PROJECT WHICH WERE APPROVE D BEFORE 31/3/2005, LD. AR RELIED UPON THE FOLLOWING DECISIONS: (1) CIT VS. CHD DEVELOPERS (2014) 43 TAXMAN.COM 24 3(DEL)- IN THIS CASE APPROVAL FOR THE PROJECT WAS GIVEN BY MATHURA VRIND AVAN DEVELOPMENT AUTHORITY ON 16/03/2005. THE AO APPLIED THE PROVISIONS OF S UB-SECTION (10) OF SECTION 80IB BEING SUBSTITUTED BY FINANCE (NO.2) ACT, 2004 , W.E.F. 1/4/2005 AND DISALLOW THE CLAIM OF DEDUCTION ON THE REASONING THAT THE CO MPLETION CERTIFICATE IN TERMS OF EXPLANATION (II) TO CLAUSE (A) OF SECTION 80IB(10) HAD NOT BEEN GRANTED TO THE ITA NO.6728 /MUM/2013 (A.Y. 2009-10) 8 ASSESSEE SO AS TO ENABLE IT TO AVAIL THE BENEFIT P ROVIDED BY SECTION 80 IB. IT WAS CONTENDED BEFORE AO THAT VIDE LETTER DATED 5/11/20 08 IT HAD APPLIED FOR COMPLETION CERTIFICATE BUT THE SAME WAS NOT ISSUED WHICH WAS BEYOND ITS CONTROL AND POWER. ORDER PASSED BY AO WAS UPHELD BY LD. CI T(A). THE TRIBUNAL HELD THAT IN A CASE WHERE APPROVAL OF THE PROJECT IS GRA NTED BY THE COMPETENT AUTHORITY BEFORE 1/4/2005 THE POSITION WILL BE GOVERNED BY T HE NON-AMENDED PROVISIONS AND IN NON-AMENDED PROVISIONS THERE WAS NO CONDITIO N LIKE PROJECT COMPLETION CERTIFICATE. THE ASSESSEE WAS NOT EXPECTED TO FU LFILL THE CONDITION WHICH WAS NOT ON THE STATUTE WHEN SUCH APPROVAL WAS GRANTED AND T RIBUNAL DIRECTED THE AO TO ALLOW THE DEDUCTION. HONBLE DELHI HIGH COURT HAS UPHELD THE ORDER PASSED BY THE TRIBUNAL. (2) ITO VS. SAI KRUPA DEVELOPERS, DECISION DATED 14/3/2012 IN ITA NO.3661/MUM/2011, COPY PLACED ON RECORD. THE AFOR EMENTIONED PROPOSITION WAS UPHELD AS PER FOLLOWING OBSERVATIONS: REGARDING THE NEXT OBJECTION OF THE AO, THAT THE P ROJECT WAS NOT COMPLETED BEFORE 31.3.2008, THE CONTENTION OF THE REPRESENTATIVE IS THAT AS THE PROJECT OF THE APPELLANT WAS APPROVED BEFORE 31.3.2005, THERE WAS NO REQUIRE MENT OF OBTAINING THE COMPLETION CERTIFICATE. THE ASSESSEE HAS FULFILLED ALL THE CONDITIONS. IN T HE CIRCUMSTANCES, I ACCEPT THE PLEA OF THE REPRESENTATIVE THAT DEDUCTION U/S. 80 IB(10) CANNOT BE DENIED MERELY BECAUSE THE APPELLANT DID NOT OBTAIN THE COMPLETION CERTIFI CATE ON OR BEFORE 31.3.2008. IN VIEW OF ABOVE, I FIND THAT THERE IS NO JUSTIFICATION FOR DENYING DEDUCTION U/S. 80IB(10). 10. AGGRIEVED BY THE STAND SO TAKEN BY THE CIT(A), THE REVENUE IS IN APPEAL BEFORE US. II. HAVING HEARD THE LEARNED DEPARTMENTAL REPRESEN TATIVE AND GOING TO THE FACTS OF THE CASE AND DETAILED REASONING GIVEN BY THE CIT(A) , WE ARE NOT INCLINED TO DISTURB THE WELL REASONED ORDER OF THE CIT(A), WHEREIN, HE HAS ALLOWED THE CLAIM FOR DEDUCTION U/S. 80 IB(10)) TO THE ASSESSEE FIRM. (3) CIT VS. JAIN HOUSING & CONSTRUCTION LTD. ( 201 3) 30 TAXAMAN.COM 131 (MAD) - IN THIS CASE IT WAS HELD BY HONBLE MADRAS HIGH COURT THAT IT IS DIFFICULT TO ACCEPT THE CASE OF REVENUE THAT THAT THE CLAIM FOR DEDUCTION HAS TO BE REJECTED ON THE GROUND THAT ASSESSEE DID NOT FURNISH THE COMPLE TION CERTIFICATE AS THERE WAS NO SUCH REQUIREMENT UNDER SECTION 80 IB(10), AS IT STOOD DURING THE RELEVANT ASSESSMENT YEAR 2004-05. 3.4 LD. AR FURTHER SUBMITTED THAT THE ASSESSEE HAD SUBMITTED VARIOUS EVIDENCES TO SHOW THAT THE PROJECT WAS COMPLETED ON 31/3/2008 AND REFERENCE WAS MADE TO THE FOLLOWING EVIDENCES: ITA NO.6728 /MUM/2013 (A.Y. 2009-10) 9 (I) COMPLETION CERTIFICATE FROM ARCHITECT. (II) COMPLETION CERTIFICATE FROM GRAM PANCHAYAT, BO LINJ, VIRAR (LOCAL AUTHORITY) DATE 29/03/2008. (PAGE NO.177) (III) NO DUE CERTIFICATE FROM GRAM PANCHAYAT DATED 17/03/2008. (REFER PAGE NO. 173-175). (IV) APPLIED TO CIDCO FOR GRANTING COMPLETION CERTI FICATE VIDE LETTER DATED 3 1/03/2008. (PAGE NO.176) (V) NOC FROM WATER DEPARTMENT AND ACCORDINGLY WATER CHARGES WERE PAID TO VIRAR NAGAR PALIKA ON 27/03/2008. (IT IS REQUIRE AFTER CO MPLETION OF PROJECT). (REFER PAGE NO.171-172) (VI) HOUSE TAX WAS PAID ON 17/03/2008 AS COMPLETED HOUSE. IN MAHARASHTRA HOUSE TAX ARE LEVIED ACCORDINGLY TO NATURE AND CONDITION OF PROPERTY. IN APPELLANT CASE PROJECT IS COMPLETED THEREFORE LOCAL BODY CHARGE HO USE TAX ON PROJECT AS COMPLETED HOUSE. (PAGE NO. 168-170). 3.5 FOR THE PROPOSITION THAT NO COMMERCIAL PROPERTY WAS INVOLVED IN THE PROJECT OF THE ASSESSEE AS THE PROJECT OF THE ASSESSEE HAS TO BE CONSIDERED A SEPARATE PROJECT, LD. AR RELIED UPON THE FOLLOWING DECISION. (I) KHYTI FINANCIAL SERVICES,ITA NO.3740/MUM/2008 A ND REFERENCE WAS MADE TO THE FOLLOWING FACTS AND FINDINGS RECORDED BY ITAT: FACTS (PARA 2) THE ASSESSEE IS A PARTNERSHIP FIRM CONSISTING OF TW O PARTNERS VIZ M/S KHYATI FINANCIAL SERVICES P.LTD & SHRI. PAR ESH MOHANLAL PAREKH. THE APPELLANT FIRM ENTERED INTO A DEVELOPMENT AGREEMENT ON 25.4.2003 WITH HICKSON & D ADAJEE P.LTD A COMPANY DULY INCORPORATED UNDER THE COMPANIES ACT, 1956 TO DEVELOP PROPERTY SITUATED AT VILLAGE PAHADI, GOREGAON (E) OWED BY M/S HICKSON & DADAJEE P.LTD IN PURSUANCE OF SAID DEVELOPMENT AGREEMENT, THE ASSESS EE FIRM UNDERTOOK TO CONSTRUCT RESIDENTIAL BUILDING VIZ., ACMEE ARMAY TO BE RESIDENTIAL AREA CONSTRUCTED AT 60,000 SQ.FT. APPROX. COMPRISING 200 FLATS IN 7 WINGS IN GROUND PLUS UPPE R FLOORS TO BE APPROVED. THE SAID RESIDENTIAL BUILDING HAS TO B E CONSTRUCTED ON A SHOPPING COMPLEX COMPRISING OF APP ROX. 10,566 SQ/FT/ BUILT UP AREA WHEREIN THE LIMITED DEV ELOPMENT RIGHT TO CONSTRUCT SHOPPING COMPLEX WAS ASSIGNED TO A DIFFERENT CONCERN VIZ LAKSHADEEP INVESTMENT & FINANCE P.LTD H EREINAFTER CALLED AS LIFPL, BEING A SISTER CONCERN OF THE APPELLANT THROUGH A S EPARATE DEVELOPMENT AGREEMENT DT 25.4.2003 ENTERED BETWEEN LIFPL & M/S HICKSON & DADAJEE PUT .LTD (OWNER OF THE PROPER TY) IN OTHER WORDS THE DEVELOPMENT RIGHT OF THE PROPERTY WAS DIVIDED BETWEEN THE ASSES SEE FOR CONSTRUCTING RESIDENTIAL FLATS AND SHOPPING COMPLEX AT GROUND FLOOR TO LIFPL. THE CONSIDERATIONS TO BE PAID BY TH E APPELLANT FINDING (PARA 15) HOUSING PROJECT OF THE ASSESSEE IS DIFFERENT AND DISTINCT FROM THE PROJECT FOR BUILDING COMMERCIAL AREA BY ANOTHER ENTITY. HOUSING PROJECT DOES NOT INCLUDE CONSTRUCTION OF COMMERCIAL ESTABLISHMENT CARRIED BUT BY ANOTHER ENTITY IN THAT AREA. THEREFORE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 801B(10) FOR THE HOUSING PROJECT CANNOT BE DENIED BECAUSE THE COMMERCIAL PROJECT WAS CARRIED OUT BY A SISTER CONCERN. ITA NO.6728 /MUM/2013 (A.Y. 2009-10) 10 AND LIFPL WERE FIXED AT RS.11.56 CRORE & 2 CRORE RE SPECTIVELY IN LIEU OF DEVELOPMENT RIGHTS RECEIVED BY THEM. 3.6 HE HAS ALSO RELIED UPON THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. VANDANA PROPERTIES, 353 ITR 36 (BO M) AND REFERENCE WAS MADE TO THE FOLLOWING OBSERVATIONS: THE EXPRESSION HOUSING PROJECTS IS NEITHER DEFIN ED UNDER SECTION 2 OF ACT NOR UNDER SECTION 801B(10) OF THE ACT. EVEN UNDER MUMBA I MUNICIPAL CORPORATION ACT, 1988 AS ALSO UNDER DEVELOPMENT CORPORATION REGULATI ONS FOR GREATER MUMBAI, 1991, THE EXPRESSION HOUSING PROJECT IS NOT DEFINED. TH EREFORE, THE EXPRESSION HOUSING PROJECT IN SECTION 801B(10) WOULD HAVE TO BE CONST RUED AS COMMONLY UNDERSTAND. AS RIGHTLY HAVE TO BE CONSTRUCTED AS COMMONLY UNDER STOOD. AS RIGHTLY CONTENDED BY MR. INAMDAR SENIOR ADVOCATE APPEARING ON BEHALF OF THE ASSESSEE AND MR. MISTRI, LEARNED SENIOR ADVOCATE AN D MR. JOSHI, LEARNED ADVOCATE APPEARING ON BEHALF OF THE INTERVENERS, THE EXPRESS ION HOUSING PROJECT IN COMMON PARLANCE WOULD MEAN CONSTRUCTING A BUILDING OR GROU P OF BUILDINGS CONSISTING OF SEVERAL RESIDENTIAL UNITS. IN FACT, THE EXPLANATION IN SECTION 801B(10) SUPPORTS THE CONTENTION OF THE ASSESSEE THAT THE APPROVAL GRANTE D TO A HOUSING PROJECT. THEREFORE, IT IS CLEAR THAT CONSTRUCTION OF EVEN ONE BUILDING WITH SEVERAL RESIDENTIAL UNITS OF THE SIZE NOT EXCEEDING 1000 SQ.FT. (E BUILDING IN THE PRESENT CASE) WOULD CONSTITUTE A HOUSING PROJECT UNDER SECTION 801B(10) OF THE AC T. THUS IT WAS SUBMITTED BY LD. AR THAT LD. CIT(A) HAS ERRED IN NOT ALLOWING THE RELIEF TO THE ASSESSEE AND ASSESSEE SHOULD BE GRANT ED WITH DEDUCTION UNDER SECTION 80 IB(10) OF THE ACT. 4. ON THE OTHER HAND, LD. DR RELYING UPON THE ASSES SMENT ORDER AS WELL AS ORDER PASSED BY LD. CIT(A), WHICH HAVE BEEN DISCUSS ED IN DETAIL IN THE ABOVE PART OF THIS ORDER SUBMITTED THAT LD. CIT(A) HAS RIGHTL Y HELD THAT ASSESSEE IS NOT ENTITLED TO CLAIM DEDUCTION UNDER SECTION 80 IB(10 ) OF THE ACT AS IT DID NOT FULFILL THE REQUIRED CONDITION AS MENTIONED BY AO AND LD. C IT(A). 5. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENT IONS HAVE CAREFULLY BEEN CONSIDERED. THE FIRST AND FOREMOST CASE OF THE REV ENUE IS THAT THE ASSESSEE DID NOT SUBMIT COMPLETION CERTIFICATE FROM COMPETENT AU THORITY WHICH ACCORDING TO THE OPINION OF AO AND LD. CIT(A) IS CIDCO. THE ASSESSEE HAD NOT ONLY SUBMITTED THE PROJECT COMPLETION CERTIFICATE ISS UE BY THE GRAM PANCHAYAT BUT ALSO VARIOUS EVIDENCES TO SHOW THAT THE PROJECT W AS COMPLETED BY 31/03/2008 ITA NO.6728 /MUM/2013 (A.Y. 2009-10) 11 AND THESE EVIDENCES HAVE ALSO BEEN DESCRIBED IN PAR A 3.4 OF THIS ORDER. IN OUR OPINION IT WILL NOT BE RELEVANT TO GO INTO MUCH DE TAIL FOR THIS ISSUE AS IT IS CLEAR FROM THE DECISIONS OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. CHD DEVELOPERS AND HONBLE MADRAS HIGH COURT IN THE CA SE OF CIT VS. JAIN HOUSING CONSTRUCTION (SUPRA) THAT SUCH CONDITION OF SUBMISS ION OF COMPLETION CERTIFICATE WAS NOT APPLICABLE TO THE PROJECTS WHICH HAVE BEEN APPROVED BY THE PUBLIC AUTHORITY BEFORE 31/3/2005. IN THE PRESENT CASE TH E PROJECT WAS APPROVED FOR COMMENCEMENT VIDE LETTER OF CIDCO DATED 05/03/2004. THUS, THE PROJECT WAS APPROVED FOR COMMENCEMENT BEFORE 31/3/2005 AND OLD LAW WILL APPLY WHEN IT WAS NOT A CONDITION PRECEDENT TO SUBMIT COMPLETION CERTIFICATE. IN VIEW OF THESE DECISIONS AND ALSO THE DECISIONS OF CO-ORDINATE BE NCHES RELIED UPON BY LD. AR WHICH HAVE BEEN DISCUSSED IN THE ABOVE PART OF THI S ORDER WE HOLD THAT DEDUCTION U/S. 80 IB (10) CANNOT BE DENIED TO T HE ASSESSEE FOR WANT OF COMPLETION CERTIFICATE FROM CIDCO. 5.1 THE OTHER OBJECTION BY THE AO IS REGARDING COMM ERCIAL ELEMENT WHICH ACCORDING TO THE SUBMISSIONS OF THE ASSESSEE IS N OT APPLICABLE TO THE CASE OF THE ASSESSEE AS THERE IS NO COMMERCIAL ELEMENT IN THE P ROJECT CONSTRUCTED BY THE ASSESSEE AND COMMERCIAL ELEMENT, IF ANY, FOR DEVELO PMENT WAS IN ANOTHER PROJECT WHICH IS NOT THE SUBJECT MATTER OF THIS APPEAL. 5.2 IT MAY ALSO BE MENTIONED HERE THAT THOUGH AO H AS GIVEN A PASSING REMARK FOR DISALLOWING THE CLAIM THAT WHEN A PROJECT IS AP PROVED AS A SINGLE PROJECT BY THE LOCAL AUTHORITY WHICH IS CAPABLE OF DIVIDING INTO VARIOUS PARCELS AND ALLOCATED TO DIFFERENT ENTITIES FOR DEVELOPMENT BY THE DEVELOPM ENT RIGHT OWNER THEN THE ACTION OF THE DEVELOPER OF SPLIT SELLING OF THE PROJECT T O THE ASSESSEE AND M/S. SAI LEELA DEVELOPERS WILL ABSOLVE THE BUYERS FROM ELIGIBILI TY TO CLAIM DEDUCTION UNDER SECTION 80 IB(10) OF THE ACT BUT AO HAS NOT SPELT OUT THAT HOW SUCH SPLITTING DONE BY M/S. ADINATH DEVELOPERS WILL DISENTITLE THE ASSE SSEE TO CLAIM DEDUCTION UNDER SECTION 80 IB(10) OF THE ACT. AS PER DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. VANDANA PROPERTIES (SUPRA) IT IS H ELD THAT THE EXPRESSION HOUSING PROJECT IS NEITHER DEFINED UNDER SECTION 2 OF THE ACT NOR UNDER SECTION 80IB(10) OF THE ACT. IT IS ALSO NOT DEFINED UNDER MUMBAI M UNICIPAL CORPORATION ACT, THEREFORE, THE SAME HAS TO BE CONSTRUED AS COMMONLY UNDERSTOOD. IN COMMON PARLANCE HOUSING PROJECT WOULD MEAN CONSTRUCTING THE BUILDING OR GROUP OF ITA NO.6728 /MUM/2013 (A.Y. 2009-10) 12 BUILDINGS CONSISTING OF SEVERAL RESIDENTIAL UNITS. IN FACT THE EXPLANATION IN SECTION 80 IB(10) SUPPORTS THE CONTENTION OF THE AS SESSEE THAT APPROVAL GRANTED TO HOUSING PROJECT. THEREFORE, IT IS CLEAR THAT CONST RUCTION OF EVEN ONE BUILDING WITH SEVERAL RESIDENTIAL UNITS OF SIZE NOT EXCEEDING 100 0 SQ.FTS. E BUILDING IN THAT CASE WOULD CONSTITUTE A HOUSING PROJECT UNDER SECTI ON 10 IB(10) OF THE ACT. IF FACTS OF THE PRESENT CASE ARE SEEN IN THE LIGHT OF THE AFOREMENTIONED DECISION OF HONBLE BOMBAY HIGH COURT THEN IT WILL BE CLEAR TH AT PROJECT CONSTRUCTED BY THE ASSESSEE WAS A SEPARATE PROJECT DIFFERENT FROM THE PROJECT CARRIED OUT BY M/S. SAI LEELA DEVELOPERS. THEREFORE, SUCH PASSING OBS ERVATIONS OF AO CANNOT BE HELD TO BE A GROUND FOR REJECTION OF ASSESSEES CLAIM FO R DEDUCTION UNDER SECTION 80 IB (10) OF THE ACT. 5.3 FOR THE AFOREMENTIONED REASONS WE SET ASIDE TH E ORDER PASSED BY LD. CIT(A) AND HOLD THAT ASSESSEE IS ENTITLED TO GET DEDUCTION UNDER SECTION 80 IB(10) AND ACCORDINGLY THE AO IS DIRECTED TO ALLOW THE DEDUCT ION TO THE ASSESSEE UNDER SECTION 80 IB(10). GROUND NO.1 TO 5 ARE ALLOWED I N THE MANNER AFORESAID. 6. GROUND NO.6 RELATES TO CHARGING OF INTEREST UNDE R SECTION 234B & 234C OF THE ACT WHICH WAS ADMITTED BY LD. AR AS CONSEQUEN TIAL. ACCORDINGLY, AO IS DIRECTED TO RECOMPUTE THE INTEREST UNDER SECTION 2 34B & 234C AFTER GIVING EFFECT TO OUR AFOREMENTIONED DIRECTIONS. 7. GROUND NO.7 RELATES TO INVOCATION OF PROVISIONS UNDER SECTION 271(1)(C) WHICH IS PREMATURE AND DISMISSED BEING PREMATURE. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 22.09. 2 014. 1 * ./0 2'3 22.09.2014 / * 9 SD/- SD/- ( ! /RAJENDRA) ( .. / I.P.BANSAL) ' ' ' ' / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; 2' DATED : 22 ND SEPT. 2014. VM. ITA NO.6728 /MUM/2013 (A.Y. 2009-10) 13 1 * (,: ; :0, 1 * (,: ; :0, 1 * (,: ; :0, 1 * (,: ; :0,/ COPY OF THE ORDER FORWARDED TO : 1. $% / THE APPELLANT 2. ()$% / THE RESPONDENT. 3. <() / THE CIT, MUMBAI. 4. < / CIT(A)-13, MUMBAI 5. :?9 (,' , , / DR, ITAT, MUMBAI 6. 9@ A / GUARD FILE. 1' 1' 1' 1' / BY ORDER, ):, (, //TRUE COPY// B BB B/ // /C C C C (DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI