I.T.O. 17(2)(4), MUMBAI V. SURAKSHA REALTORS (ANIK), MUMBAI

ITA 6760/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8929 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-09-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2008-2009
• Appeal Filed On: 07-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B JAYA KUMAR
• Assessee Lawyers: SUBHASH JALAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E MUMBAI BEFORE SHRI D.K. AGARWAL, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ITA NO.6760/MUM/2011 ASSESSMENT YEAR- 2008-09 THE ITO 17(2)(4), PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI VS. M/S. SURAKSHA REALTORS (ANIK), 31/68, MANEK BHAVAN, 1 ST HINDU COLONY, DADAR(E), MUMBAI-400 014 PAN-AACAS 3692P (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI B. JAYAKUMAR RESPONDENT BY: SHRI SUBHASH JALAN DATE OF HEARING :6.09.2012 DATE OF PRONOUNCEMENT: 12.9.2012 O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE REVENUE HAS CHALLENGED THE CORR ECTNESS OF THE ORDER OF LD. CIT(A)-29, MUMBAI DT.19.7.2011 PERTAIN ING TO ASSESSMENT YEAR 2008-09. 2. THE SOLE GRIEVANCE OF THE REVENUE IS THAT THE LD . CIT(A) HAS ERRED IN DIRECTING TO ALLOW DEDUCTION U/S. 80IB(10) OF THE AC T AT RS. 4,85,36,946/-. 3. FACTS OF THE CASE ARE THAT THE ASSESSEE CONSTRUC TED A HOUSING PROJECT AT VILLAGE ANIK AT CHEMBUR UNDER THE SRA SCHEME OF MAHARASHTRA GOVT. THE ASSESSEE GOT TDRS FROM THE GOVT. UNDER THE SRA SCHE ME. THE ASSESSEE SUBSEQUENTLY SOLD TDR RECEIVED ON ACCOUNT OF THE SR A PROJECT AND HAS CLAIMED DEDUCTION U/S. 80IB(10) AMOUNTING TO RS. 4, 85,36,946/-. THE ITA NO. 6760/M/2011 2 ASSESSEE HAS CLAIMED A SIMILAR DEDUCTION ON SIMILAR FACTS IN A.Y. 2007-08 AMOUNTING TO RS. 24,98,25,645/-. IN THE SAID A.Y. 2 007-08 ALSO THE CLAIM OF THE ASSESSEE WAS DISALLOWED BY THE AO. THE FACTS OF THE CASE IN THE YEAR UNDER CONSIDERATION BEING THE SAME AS THOSE INVOLV ED IN THE A.Y. 2007-08. THE AO FOLLOWED THE FINDINGS OF HIS PREDECESSOR AND DISALLOWED THE DEDUCTION CLAIMED U/S. 80IB(10) AT RS. 4,85,36,946/-. 4. THE MATTER WAS AGITATED BEFORE THE LD. CIT(A). AFTER CONSIDERING THE FACTS AND SUBMISSIONS, THE LD. CIT(A) THUS HELD AS FOLLOWS: I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE, ARGUMENTS OF THE AO AND THE WRITTEN SUBMISSIONS OF THE AUTHORISE D REPRESENTATIVE OF THE APPELLANT. THE EXACT ISSUE W AS CONSIDERED IN THE CASE OF THE APPELLANT IN THE EARL IER YEAR I.E. 2007-08 BY THIS OFFICE IN APPEAL NO. CIT(A)-29/RG-1 7/IT-90/09- 10 DT. 24.3.2010. IN THIS ORDER IT HAS BEEN CLEARLY HELD THAT THE INCOME DERIVED BY THE APPELLANT IS ELIGIBLE FOR DED UCTION U/S. 80IB(10) AS THE RECEIPT OF TDR IS ONLY ANOTHER FORM OF RECEIVING THE CONSIDERATION IN CASH. ACCORDINGLY, FOLLOWING THE ORDER OF HIS PREDECESSOR , THE LD. CIT(A) ALLOWED THE APPEAL. 5. REVENUE IS AGGRIEVED BY THIS FINDING OF LD. CIT( A). THE LD. DEPARTMENTAL REPRESENTATIVE RELIED UPON THE FINDING S OF THE AO. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE FINDING S OF THE LD. CIT(A) IN A.Y. 2007-08 HAVE BEEN CONFIRMED BY THE TRIBUNAL IN ITA NO. 4223/UM/2010. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE ORDERS OF THE LOWER AUTHORITIES AND ALSO THE ORDER OF THE TRI BUNAL IN ITA NO. 4223/M/2010 (SUPRA). WE FIND THAT THE FACTS FOR TH E YEAR UNDER CONSIDERATION ARE IDENTICAL WITH THE FACTS OF A.Y. 2007-08. THAT BEING SO, WE FIND THAT THE TRIBUNAL IN ITA NO. 4223/M/10 HAS CONFIRMED THE FIN DINGS OF THE LD. CIT(A) AND DISMISSED THE REVENUES APPEAL IN A.Y. 2007-08 BY HOLDING AS UNDER: ITA NO. 6760/M/2011 3 THUS WE AGREE WITH THE DECISION OF THE CIT(A) THAT (A) ASSESSEE IS ENTITLED TO RELIEF U/S. 80IB(10)(A)(B): (B) THE ASSESSEE IS ENTITLED TO RELIEF U/S. 80IB(10) NOTWITHSTANDING TH E FACT THAT THEY CONVEYED THE LAND TO SRA PRIOR TO CONVEYING THE TEN EMENTS DEVELOPED BY THEM: (C) ON THE FACTS OF THE CASE THE ASSESSEE IS A DEVELOPER AND CANNOT BE CONSIDERED AS A CONTRACTOR AND THE EXPLAN ATION INTRODUCED IN THE FINANCE BILL, 2009 TO THE SECTION 80IB(10) SHAL L NOT BE APPLICABLE IN THE CASE OF THE ASSESSEE: AND (D) THE MARKET VALUE OF THE TDRS ALLOTTED TO THE ASSESSEE WOULD CONSTITUTE THE SALE CONSIDERATION FOR DEVELOPMENT OF THE TENEMENTS AND SHOULD BE INCLUDED FOR THE PURPOSE DETERMINATION OF RELIEF U/S. 80IB(10). THEREFORE T HE ASSESSEE IS ENTITLED TO DEDUCTION U/S. 80IB(10) IN RESPECT OF TE NEMENTS DEVELOPED BY THEM FOR SRA AND THE SALE PRICE OF TDR ALLOTTED TO THE ASSESSEE SHOULD BE CONSIDERED AS SALE CONSIDERATION RECEIVED FOR DEVELOPMENT OF THE TENEMENTS AND SHOULD BE TAKEN INTO ACCOUNT IN C OMPUTING RELIEF U/S. 80IB(10). 7. AS NO NEW FACTS HAVE BEEN BROUGHT ON RECORD BY T HE REVENUE, RESPECTFULLY FOLLOWING THE DECISION OF THE TRIBUNAL IN ITA NO. 4223/M/10 (SUPRA), WE DO NOT FIND ANY REASON IN TINKERING WIT H THE FINDINGS OF LD. CIT(A). ACCORDINGLY, THE APPEAL FILED BY THE REVEN UE IS DISMISSED. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON THIS 12 TH DAY OF SEPTEMBER, 2012 SD/- SD/- (D.K. AGARWAL) (N.K. BILLAIYA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED 12 TH SEPTEMBER, 2012 RJ COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR E BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI