ACIT CC 22 & 30, MUMBAI V. MANJU GUPTA, MUMBAI

ITA 6805/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0789 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-05-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 10-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS JYOTILAKSHMI NAYAK
• Section: 143(3); 80IB; 28

Judgement Text

P AGE | 1 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI B.R BASKARAN , AM AND SHRI RAVISH SOOD,JM ./ I.T.A. NO. 6 805 / MUM/ 2014 ( / ASSESSMENT YEAR: 2009 - 10 ) ACIT, CC - 22 & 30 CENTRAL RANGE - 5, ROOM NO. 404, 4 TH FLOOR, AAYKAR BHAWAN, MUMBAI 400 020. / VS. MANJU GUPTA, RAJBAHADUR BUILDING, 1 ST FLOOR, 28 BOMBAY SAMACHAR MARG, FORT, MUMBAI 400 0 23 . ./ ./ PAN/GIR NO. AASPG 0264 C ( / APPELLANT ) : ( / RESPONDENT / A PPELLANT BY : MRS. JYOTILAKSHMI NAYAK / RE SPONDENT BY : SH. J.P BAIRAGRA / DATE OF HEARING : 23/03/2017 / DATE OF PRONOUNCEMENT : 19 /05/2017 / O R D E R PER RAVISH SOOD, J UDICIAL MEMBER: THAT THE PRESENT APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A), DATED 01 /08/2014, WHICH IN ITSELF ARISES FROM THE ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME TAX ACT, 1961 (FOR SHORT ACT), DATED 31 / 12 /201 3 FOR A.Y.20 11 - 1 2, THEREIN RAISING THE FOLLOWING GROUNDS OF APPEAL: - 1. WHETHER ON THE FACTS AND CIRC UMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN ALLOWING THE DEDUCTION OF A SUM OF RS. 33,24,061/ - MADE BY THE AO U/S 80IB(10) IN RESPECT OF PROFIT DERIVED FROM NG ESTATE, MIRA ROAD. P AGE | 2 2. WHETHER ON THE FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN NOT ALLOWING THE LEASE RENT RECEIVED FOR AMENITIES AS INCOME FROM OTHER SOURCES AND DELETING THE TAXATION OF RS. 3,97,110/ - MADE BY THE A.O. 3. THE APPELLANT CRA VES LEAVE, TO ADD, TO AMEND AND/OR TO ALTER ANY OF THE GROUNDS OF APPEAL, IF NEED BE. 4. THE APPELLANT, THEREFORE, PRAYS THAT ON THE GROUNDS STATED ABOVE, THE ORDER OF THE CIT(A) - 39, MUMBAI MAY BE SET ASIDE AND THAT OF THE ASSESSING OFFICER RESTORED . 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE WHO IS ENGAGED IN THE BUSINESS OF CONSTRUCTION AND DEVELOPMENT OF BUILDINGS AND INVESTMENT IN SHARES AND UNITS HAD FILED HER RETURN OF INCOME FOR A.Y. 2011 - 12 ON 30.09.2011, DECLARING INCOME OF RS. 2,46,70,110 / - AFTER CLAIMING DEDUCTION U/S 80IB. THE CASE OF THE ASSESSEE WAS THEREAFTER TAKEN UP FOR SCRUTINY PROCEEDINGS U/S 143(2). 3. THAT DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS THE A.O OBSERVED THAT THE ASSESSEE WHO WAS FOLLOWING PROJECT COMPLETION METHOD FOR REALIZATION OF PROFIT FROM DEVELOPMENT ACTIVITY , HAD CLAIMED DEDUCTION UNDER SEC.80IB(10) IN RESPECT OF CERTAIN PROJECTS. THE ASSESSEE ON BEING CALLED UPON BY THE A.O TO EXPLAIN AS TO WHY HER CLAIM OF DEDUCTION OF RS. 33,24,06 1/ - U/S 80IB IN RESPECT OF THE PROJECT AT N.G ESTATE, MIRA ROAD, MAY NOT BE DISALLOWED , THEREIN SUBMITTED THAT SAID ISSUE WAS COVERED BY THE ORDER PASSED BY THE TRIBUNAL IN HER OWN CASE FOR THE PRECEDING YEAR S, VIZ. A.YS. 2003 - 04 TO 200 8 - 09 . THE A.O THOUGH OBSERVED THAT THE MATTER WAS COVERED IN FAVOR OF THE ASSESSEE BY THE AFORESAID ORDER OF THE TRIBUNAL, HOWEVER DID NOT FOLLOW THE SAME FOR THE REASON THAT THE REVENUE HAD CARRIED THE P AGE | 3 MATTER IN APPEAL BEFORE THE HONBLE HIGH COURT. THE A.O THUS ON THE BASIS OF HIS AFORESAID CONVICTION DISALLOWED THE DEDUCTION OF RS. 33,24,061/ - CLAIMED BY THE ASSESSEE U/S 80IB(10). 4. THE A.O FURTHER DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS WHILE SCRUTINIZING THE INCOME OF RS. 12,03,105/ - REFLECTED BY THE ASSESSEE UNDER THE HEAD INCOME FROM HOUSE PROPERTY, THEREIN OBSERVED THAT THE ASSESSEE HAD LEASED HER PROPERTY TO UCO BANK , VIDE TWO LEASE A GREEMENTS, VIZ. ONE FOR LEASE RENT OF RS. 67,862.50 PER MONTH, WHILE FOR THE ANOTHER ONE FOR LEASE RENT FOR AMENITIES OF RS. 33,092.50 PER MONTH . THE A.O BEING OF THE VIEW THAT THE INCOME EARNED FROM LEASE OF AMENITIES COULD NOT BE ASSESSED UNDER THE HEAD INCOME FROM HOUSE PROPERTY, BUT WAS LIABLE TO BE BROUGHT TO TAX UNDER THE HEAD INCOME FROM OTHER SOURCES , THUS WORKED OUT THE INCOME FROM HOUSE PROPERTY AT RS. 12,38,513/ - , WHILE FOR ASSESSED THE LEASE OF AMENITIES (AS PER THE LEASE AGREEMENT) AT RS. 3,91,110/ - SEPARATELY UNDER THE HEAD INCOME FROM OTHER SOURCES. THE A.O THEREAFTER DELIBERATING ON CERTAIN OTHER ISSUES ASSESSED THE INCOME OF THE ASSESSEE AT RS. 2,84,26,690/ - . 5. THE ASSESSEE BEING AGGRIEVED WITH THE ORDER OF THE A.O CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A), WHO AFTER DELIBERATING ON THE FACTS OF THE CASE , THEREIN HELD AS UNDER: - (A). DEDUCTION U/S 80IB : THE CIT(A) HELD THAT AS THE ISSUE AS REGARDS ENTITLEMENT OF THE ASSESSEE TOWARDS CLAIM OF DEDUCTION U/S 80IB, INVOLVING THE SAME FACTS HAD BEEN DECIDED BY HIM IN FAVOR OF THE ASSESSEE IN A.Y. 2010 - 11, VIDE HIS ORDER NO. CIT(A)/ - 39/AC.CC.30/IT - 68/2012 - 13; DATED. 11.03.2013, BY FOLLOWI NG THE ORDER OF THE TRIBUNAL PASSED IN THE ASSESSES OWN CASE FOR A.YS 2002 - 03 TO 2007 - 08 (ITA NOS. 4332 TO 4336/MUM/2010; DATED. P AGE | 4 12.08.2011), HE THEREFORE IN THE BACKDROP OF THE SAID FACTUAL POSITION ALLOWED THE APPEAL OF THE ASSESSEE. (B). INCOME FROM H OUSE PROPERTY : THE CIT(A) HELD THAT AS THE IDENTICAL ISSUE HAD BEEN ADJUDICATED BY HIM IN THE CASE OF THE ASSESSEE FOR A.Y. 2010 - 11, HE THEREFORE TAKING THE SAME VIEW ALLOWED THE APPEAL OF THE ASSESSEE ON THE SAID ISSUE AND HELD THAT AS THE ASSESSEE, AS TH E OWNER OF THE PROPERTY WAS EXPLOITING IT BY LETTING OUT AND REALIZING INCOME FROM THE SAME BY WAY OF RENT, THEREFORE THE INCOME WAS LIABLE TO BE ASSESSED, AS CLAIMED BY THE ASSESSEE IN HER RETURN OF INCOME, UNDER THE HEAD INCOME FROM HOUSE PROPERTY, WHI CH WAS ALSO IN TANDEM WITH THE TDS CERTIFICATES ISSUED BY THE BANK. 6. THE REVENUE BEING AGGRIEVED WITH THE ORDER OF THE CIT(A) HAD THEREIN CARRIED THE MATTER IN APPEAL BEFORE US. THE LD. AUTHORIZED REPRESENTATIVE (FOR SHORT A.R) RELIED ON THE ORDER OF THE CIT(A). THE LD. A.R FURTHER PLACED ON RECORD THE ORDER OF THE ITAT, MUMBAI BENCHES I, MUMBAI, PASSED IN THE CASE OF THE ASSESSEE FOR A.Y. 2010 - 11 , MARKED AS : ACIT, CC - 22 & 30 , MUMBAI VS. SMT. MANJU GUPTA (ITA NO. 4432/MUM/2013; DATED. 26/03/2015) , AND THEREIN SUBMITTED THAT BOTH THE ISSUES INVOLVED IN THE PRESENT APPEAL BEFORE US WERE SQUARELY COVERED IN FAVOR OF THE ASSESSEE BY THE SAID ORDER OF THE TRIBUNAL. PER CONTRA, T HE LD. D.R DID NOT DISPUTE THE FACT THAT THE ISSUES BEFORE US WERE COVERED BY THE AFORESAID ORDER OF THE TRIBUNAL PASSED IN THE CASE OF THE ASSESSEE FOR A.Y. 2010 - 11. 7. WE HAVE HEARD THE AUTHORIZED REPRESENTATIVES, PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIAL PRODUCED BEFORE US. WE HAVE GONE THROUGH THE ORDER OF THE TRIBUNAL PASSED IN THE CASE OF THE ASSESSEE FOR A .Y. 2010 - 11 AND ARE PERSUADED TO BE IN P AGE | 5 AGR EEMENT WITH THE CONTENTION OF THE LD. A.R THAT BOTH THE ISSUES INVOLVED IN THE PRESENT APPEAL, VIZ. ENTITLEMENT OF THE ASSESSEE TOWARDS CLAIM OF DEDUCTION U/S 80IB AND ASSESSING OF THE LEASE OF AMENITIES UNDER THE HEAD INCOME FROM HOUSE PROPERTY ARE SQUARE LY COVERED IN FAVOR OF THE ASSESSEE. WE ARE OF THE CONSIDERED VIEW THAT IN THE BACKDROP OF THE VIEW ARRIVED AT BY THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF THE ASSESSEE FOR A.Y. 2010 - 11 INVOLVING IDENTICAL ISSUES ON THE SAME FACTS , THERE IS N O RE ASON FOR US TO TAKE A DIFFERENT VIEW. WE THUS IN LIGHT OF OUR AFORESAID OBSERVATIONS UPHOLD THE ORDER OF THE CIT(A), WHEREIN THE LATTER HAD RELIED ON HIS EARLIER ORDER FOR A.Y. 2010 - 11, WHICH AS OBSERVED BY US HEREINABOVE HAD BEEN AFFIRMED BY THE TRIBUNAL. 8. THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOU NCED IN THE OPEN COURT AS ON 19 /0 5 /2017. SD/ - SD/ - (B.R BASKARAN) (RAVISH SOOD) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 19 .05.2017 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD FI LE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI.