ITO 32(2)(5), MUMBAI V. PRATHMESH REALTORS, MUMBAI

ITA 6864/MUM/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7316 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-05-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 23-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJAT MITTAL
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI RAMIT KOCHAR , HON'BLE ACCOUNTANT MEMBER ITA.NO. 6864 /MUM/2016 (A.Y. 2009 - 10 ) INCOME TAX OFFICER 32(2)(5) ROOM N O . 307, 3 RD FLOOR, C - 11, PRATAKSHYAKAR BHAVAN, BKC, BANDRA, MUMBAI 400 051 V . M/S. PRATHMESH REALTORS A - 101, SWETA PARK, DAULAT NAGAR, ROAD NO. 2, BORIVALI (E), MUMBAI 400 066 PAN NO: AAIFP 8580 C (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI RAJAT MITTAL DATE OF HEARING : 01.05 .2018 DATE OF PRONOUNCEMENT : 11 .05 .2018 O R D E R PER C. N. PRASAD (JM) 1. THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORDER OF THE LD. C OMMISSIONER OF INCOME - TAX (APPEALS) 44 MUMBAI DATED 14.09.2016 FOR THE ASSESSMENT YEAR 2009 - 10. 2. THE ONLY ISSUE IN THE APPEAL OF THE REVENUE IS IN RESPECT OF RESTRICTING T HE DISALLOWANCE U/S. 80IB (10) OF THE ACT ON PROPORTION ATE BASIS . 2 ITA.NO.6864/MUM/2016 (A.Y.2009 - 10) M/S. PRATHMESH REALTORS 3. THIS APPEAL WHEN POSTED FOR HEARING ON 22.03.18, ASSESSEE FILED LETTER REQUESTING FOR TIME AND THE MATTER WAS ADJOURNED TO 01.05.2018. ON 01.05.2018 WHEN THE MATTER WAS CALLED NOBODY APPEARED NOR ANY ADJOURNMENT PETITION WAS MOVED. 4. ON A PERUSAL OF THE GROUNDS OF APPEAL FILED BY THE REVENUE AND THE ORDER OF THE LD.CIT(A) , WE FIND THAT THE ISSUE IN APPEAL IS ALREADY DECIDED BY THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2010 - 11 ALLOWING THE CLAIM FOR DEDUCTION U/S. 80 IB ( 10) OF THE AC T ON PROPORTIONATE BASIS . I N THIS VIEW OF THE MATTER , WE DISPOSE OF F TH IS APPEAL ON HEARING THE LD.DR. 5. THE LD. DR FAIRLY SUBMITTED THAT THE ISSUE IN APPEAL IS DECIDED BY THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2010 - 11 ALLOWING THE CLAIM FOR DEDUCTION U/S. 80 IB ( 10) OF THE ACT ON PROPORTION ATE BASIS. 6. WE HAVE HEARD THE LD. D EPARTMENTAL REPRESENTATIVE AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW. ON A PERUSAL OF THE ASSESSMENT ORDER , WE FIND THAT THE ASSESSING OFFICER HAS SIMPLY FOLLOWED THE ASSESSMENT ORDER PASSED FOR THE ASSESSMENT YEAR 2010 - 11 WHERE THE CLAIM FOR DEDUCTION U/S. 80 IB ( 10) WAS DENIED F OR THE REASONS STATED THEREON . THE ASSESSING OFFICER FOR THIS ASSESSMENT YEAR ALSO DENIED THE 3 ITA.NO.6864/MUM/2016 (A.Y.2009 - 10) M/S. PRATHMESH REALTORS CLAIM FOR DEDUCTION U/S. 80 IB ( 10) OF THE ACT. LD.CIT(A) FOLLOWING THE ORDER OF THE TRIBUNAL FOR THE ASSESSMENT YEAR 2010 - 11 RESTRICTED THE DISALLOWANCE ON PROP ORTION ATE BASIS OBSERVING AS UNDER: 3.3. DURING THE COURSE OF APPEAL PROCEEDINGS, THE APPELLANT FILED WRITTEN SUBMISSION WHEREIN IT WAS MENTIONED THAT THE APPEAL FILED AGAINST ASSESSMENT ORDER OF AY 2010 - 11 WAS PARTLY ALLOWED BY THE THEN CIT(A) VIDE HIS ORDER DATED 14.02.2014. IN THE SAID ORDER THE ID. CIT(A) TOOK A VIEW THAT PRO RATA DEDUCTION VIS - A - VIS THOSE FOUR FLATS IN WHICH THE BUILT UP AREA IS 1000 SQ. FT. WILL NOT BE ALLOWABLE AND REST OF THE PROJECT WILL BE ELIGIBLE FOR DEDUCTION. THE ID. CIT(A) THEREFORE ALLOWED PRO RATA DEDUCTION U/S 80LB (10). IT WAS FURTHER POINTED OUT BY THE AR THAT THE ORDER OF THE CIT(A) WAS CON TESTED BEFORE THE HON'BLE ITAT MUMBAI AND THE HON'BLE ITAT MUMBAI IN ITS ORDER DATED 10.06.2016 DISMISSED THE APPEAL OF REVENUE FILED AGAINST THE ORDER OF THE CIT(A) DATED 14.02.2014. IT WAS THER EFORE STATED BY THE APPELLANT THAT THE PRORATA DEDUCTION IN RESPECT OF THE ELIGIBLE FLATS AMOUNTING TO RS 61,19,185/ - SHOULD BE ALLOWED. 3.4 I HAVE CAREFULLY STUDIED THE ASSESSMENT ORDER AS WELL AS THE ORDER OF THE CIT(A) AND ITAT OF THE AY 2010 - 11. FROM A PERUSAL OF THE ASSESSMENT ORDER OF AY 2009 - 10 IT IS ABSOLUTELY CLEAR THAT THIS ORDER IS COMPLETELY BASED ON THE ASSESSMENT ORDER OF AY 2010 - 11. IT IS ALSO CLEAR THAT THE HON'BLE ITAT IN ITS ORDER DATED 10.06.2016 HAS UPHELD THE ORDER OF THE CIT(A) FOR AY 2010 - 11. IN ITS ORDER THE ITAT HAS OBSERVED THAT THE ASSESSEE WOULD QUALIFY FOR DEDUCTION ON A PROPORTIONATE BASIS. SINCE THE HIGHEST FACT FINDING AUTHORITY HAS GIVEN A CATEGORICAL FINDING THAT PROPORTIONATE DEDUCTION U/S 80 IB ( 10) SHOULD BE ALLOWED IN T HE CASE OF THE APPELLANT THE CLAIM OF 80 IB ( 10) FROM THE ELIGIBLE FLATS WHICH IS AMOUNTING TO RS.61,19,185/ - IS ALLOWED. THUS, THE ADDITION OF RS.64,99,081/ - IS REDUCED TO RS.3,79,896/ - (6499081 - 6119185). THE GROUNDS OF APPEAL NOS. 1,2 & 3 ARE PARTLY A LLOWED. 7. RESPECTFULLY FOLLOWING THE SAID DECISION OF THE TRIBUNAL FOR THE ASSESSMENT YEAR 2010 - 11 WE HOLD THAT THE ASSESSEE IS ENTITLED FOR DEDUCTION U/S. 80 IB ( 10 ) OF THE ACT ON PROPORTION ATE BASIS AND THE LD.CIT(A) HAS RIGHTLY RESTRICTED THE CLAIM BASED ON THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE. IN THE CIRCUMSTANCES , WE DO NOT FIND 4 ITA.NO.6864/MUM/2016 (A.Y.2009 - 10) M/S. PRATHMESH REALTORS ANY INFIRMITY IN THE ORDER PASSED BY THE LD.CIT(A) IN ALLOWING THE CLAIM ON PROPORTION ATE BASIS. HENCE WE SUSTAIN THE ORDER O F THE LD.CIT(A). 8. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 11 TH MAY , 2018 . SD/ - SD/ - ( RAMIT KOCHAR ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 11 / 05 / 2018 GIRIDHAR , S R. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER, (ASSTT. REGISTRAR) ITAT, MUM