MAULI HOLIDAY RESORTS & DEVELOPERS P. LTD, MUMBAI V. ITO 9(2)(3), MUMBAI

ITA 6899/MUM/2010

• Counselvise Citation: 689919914 RSA 2010
• Duration Of Justice: 1 year(s) 9 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-07-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 04-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K NAYAK
• Assessee Lawyers: BHUPENDRA SHAH
• Keywords: Corroborative evidences

Judgement Text

MAULI HOLIDAY RESORTS & DEVELOPERS P. LTD. I.T.A. NO. 6899/MUM/2010 PAGE 1 O F 3 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B, MUMBAI BEFORE SHRI R.S. SYAL, ACCOUNTANT MEMBER & SHRI VIVEK VARMA, JUDICIAL MEMBER I.T.A. NO. 6899/MUM/2010 ASSESSMENT YEAR : 2006-07 MAULI HOLIDAY RESORTS & DEVELOPERS PVT. LTD., 4, SNEH DEEP, NEAR PAHADI SCHOOL, ROAD NO. 2, AAREY ROAD, GOREGAON (EAST), MUMBAI 400 021. PAN: AADCM 6818 J VS. THE INCOME TAX OFFICER 9(2)(3), MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI BHUPENDRA SHAH. RESPONDENT BY : SHRI A. K. NAYAK. DATE OF HEARING: 13-06-2012. DATE OF PRONOUNCEMENT: 04-07-2012. O R D E R PER VIVEK VARMA, JM: THE APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORD ER OF CIT(A) 20, MUMBAI, DATED 04-08-2010, WHEREIN THE CIT(A) HA S SUSTAINED THE DISALLOWANCE OF DEDUCTION CLAIMED U/S 80IB(10). 2. THE SOLITARY GROUND TAKEN IS THAT THE REVENUE A UTHORITIES HAVE DENIED THE DEDUCTION CLAIMED U/S 80IB(10). THE FACTS RELATING TO THE ISSUE ARE THAT THE ASSESSEE COMPLETED HOUSING P ROJECTS AT KURAR VILLAGE MALAD (EAST), MUMBAI, UNDER THE SRA SCHEME. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO NOTICED TH AT THE ASSESSEE DID NOT FULFILL THE CONDITIONS PRESCRIBED FOR THE C LAIM OF THE DEDUCTION. MAULI HOLIDAY RESORTS & DEVELOPERS P. LTD. I.T.A. NO. 6899/MUM/2010 PAGE 2 O F 3 ACCORDING TO THE AO, THE BUILT UP AREA OF THE COMME RCIAL/SHOPPING AREA EXCEEDED THE PRESCRIBED LIMIT OF 5% OF THE AGG REGATE BUILT UP AREA AND THE CONCERNED PROJECT WAS NOT NOTIFIED BY THE BOARD. THE CIT(A) ALSO SUBSCRIBED WITH THE OBSERVATIONS OF THE AO AND SUSTAINED THE DISALLOWANCE. 3. THE ASSESSEE IS NOW BEFORE THE ITAT. 4. BEFORE US, THE AUTHORISED REPRESENTATIVE SUBMITT ED THAT IT IS A FACT THAT TILL THE DISPOSAL OF APPEAL BEFORE THE CI T(A), THE APPROVAL AS APPLIED FOR, HAD NOT BEEN RECEIVED. BUT VIDE GAZETT E NOTIFICATION DATED 3 RD AUGUST, 2010, WHEREBY CBDT NOTIFIED AS UNDER: S.O. 1898(E) IN EXERCISE OF THE POWERS CONFERRED B Y THE PROVISO TO CLAUSE (A) AND (B) OF SUB-SECTION (10) OF SECTION 8 0LB OF THE INCOME- TAX ACT 1961 (43 OF 1961), THE BOARD HEREBY NOTIFIE S THE SCHEME CONTAINED IN REGULATION 33(10) OF DEVELOPMENT CONTR OL REGULATION FOR GREATER MUMBAI 1991 READ WITH THE PROVISIONS OF NOT IFICATION NO. TPB-4391/14080(A)/UD-11 (RDP) DATED 3RD JUNE, 1992, AS A SCHEME FOR THE PURPOSES OF THE SAID SECTION SUBJECT TO THE FOLLOWING CONDITIONS, (I) SLUM DEVELOPMENT FALLING IN CATEGORY MENTIONED IN NOTIFICATION NO. TPB-4391/ 4080(A)/UD-11 (RDP) DATED 3 RD JUNE, 1992 SHALL BE EXCLUDED FROM THE SCHEME (II) SLUM DEVELOPMENT FALLING WITHIN CLAUSE 7.7 OF THE APPENDIX IV OF REGULATION 33(10) WHICH PROVIDES FOR JOINT DEVELOPM ENT OF SLUM AND NON-SLUM AREAS SHALL BE EXCLUDED FROM THE SCHEME; (III) ANY AMENDMENT IN THE SCHEME HEREBY NOTIFIED SHALL BE REQUIRED TO BE RE-NOTIFIED BY THE BOARD. 2. THIS NOTIFICATION SHALL COME INTO FORCE WITH EFF ECT FROM THE DATE OF ITS PUBLICATION. [ F.NO. 178/37F2006-ITA-I] ACCORDING TO THE A.R., WITH THIS NOTIFICATION, THE REQUIREMENT OF PLOT SIZE OF MINIMUM OF ONE ACRE IS NOT MANDATORY. HE, T HEREFORE, PRAYED THAT THE DEDUCTION AS CLAIMED SHOULD BE ALLOWED. MAULI HOLIDAY RESORTS & DEVELOPERS P. LTD. I.T.A. NO. 6899/MUM/2010 PAGE 3 O F 3 5. THE DR RELIED ON THE ORDERS OF THE REVENUE AUTHO RITIES AND PRESSED THE POINT THAT THE APPROVAL DATED 25-05-200 4 AND THE CERTIFICATE DATED 07-11-2008 GIVEN BY THE ARCHITECT WERE AT VARIANCE AND IN ANY CASE THE NOTIFICATION DATED 3 RD AUGUST, 2010, SUBMITTED IS OF A LATER DATE. 6. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ON PERUSAL OF THE GAZETTE NOTIFICATION DATED 3 RD AUGUST, 2010, WHICH THE A.R. HAS SO HEAVILY RELIED UPON, WAS NOT BEFORE EITHER OF TH E REVENUE AUTHORITIES. AS THIS GAZETTE NOTIFICATION WILL HAVE A MAJOR BEARING OVER THE OUTCOME OF THE INSTANT CASE, WE DEEM IT FIT TO RESTORE THE ISSUE TO THE FILE OF THE AO TO EXAMINE THE BEARING OF THE GA ZETTE NOTIFICATION ALONG WITH SUPPORTING EVIDENCE ON THE CASE OF THE A SSESSEE AND WORK OUT THE DISALLOWANCE AS PER LAW. 7. WE, THEREFORE, SET ASIDE THE ORDER OF THE CIT(A) ON THE ISSUE OF CLAIM OF DEDUCTION U/S 80IB(10) AND RESTORE THE IS SUE TO THE FILE OF THE AO, WHO SHALL TAKE INTO ACCOUNT THE GAZETTE NOTIFIC ATION AND ALL OTHER SUPPORTING DOCUMENTS AND DECIDE THE ISSUE ON MERITS , AS PER LAW, AFTER AFFORDING ADEQUATE OPPORTUNITY TO THE ASSESSEE. 8. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 04/07/2012. SD/- SD/- (R.S.SYAL) ( VIVEK VARMA ) ACCOUNTNAT MEMBER JUDI CIAL MEMBER MUMBAI: 04/07/2012.