ASST CIT CEN CIR 2, THANE V. HARESH N SANGHAVI, THANE

ITA 7357/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92525 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-05-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2001-2002
• Appeal Filed On: 13-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3)

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL,MUMBAI - H BENCH , , BEFORE S/SH. I P BANSAL,JUDICIAL MEM BER & RAJENDRA,ACCOUNTANT MEMBER /. ITA NO. 7357 /MUM/2013, / ASSESSMENT YEAR - 200 1 - 0 2 ACIT - CENTRAL CIRCLE - 2 ROOM NO.13, 6TH FLOOR, ASHAR IT PARK,WAGLE ESTATE, THANE(W) VS SHRI HARESH N. SANGHVI NIKUNJ HOUSE, MANAV MANDIR, AMBADI RD. VASAI (W), DIST. THANE - 402, 202. PAN: AFCPS 7828 F ( / A PPELLANT ) ( / RESPONDENT ) /ASSESSEE BY :NONE / RE VENUE BY :SHRI SANJAY PUNGLIA - DR / DATE OF HEARING : 14 - 05 - 2015 / DATE OF PRONOUNCEMENT : 14 - 05 - 2015 , 1961 254 ( 1 ) ORDER U/S.254(1)OF THE INCOME - TAX ACT,1961(ACT) PER RAJENDRA, AM - CHALLENGING THE ORDER DATED 18 .0 9 .1 3 OF THE CIT(A) - II , THANE , THE ASSESSING OFFICER(AO) HAS RAISED FOLLOWING GROUNDS OF APPEAL: 01. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) WAS JUSTIFIED IN / DELETING THE ADDITION OF RS.40,02,600 / - MADE BY THE ASSESSING OFFICER ON ACCOUNT OF DISALLOWANCE OF DEDUCTION U/S. 801B(10) WITHOUT APPRECIATING THE FACT THAT 'THE AREA FOR SHOPS IS ADMEASURING TO 2550SQ. FT., THUS VIOLATING THE CONDITIONS OF 801B(10) OF THE 1. T. ACT, 1961. 02. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) WAS RIGHT IN HOLDING THAT THE ASSESSING OF FICER SHOULD HAVE DECIDED THE ISSUE OF DEDUCTION U/S. 801B(10) AS PER THE PRINCIPLES LAID DOWN BY THE HON'BLE ITAT IN THE CASE OF BRAHMA ASSOCIATES (SUPRA) AND NOT TO TRAVEL BEYOND THE LIMITS PRESCRIBED BY HONBLE ITAT IN THE CASE OF BRAHMA ASSOCIATE S, WITHOUT APPRECIATING THE FACT THAT THE APPEAL IN THE CASE OF BRAHMA ASSOCIATES IS PENDING BEFORE THE HON'BLE SUPREME COURT. 03. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) - II, THANE ON THE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. ASSESSEE ,AN INDIVIDUAL,IS A BUILDER AND DEVELOPER.HE FILED H IT RETURN OF INCOME ON 29. 1 0. 2001 , DECLARING TOTAL INCOME AT RS. 2 ,2 9 , 014 / - .HE CLAIMED DEDUCTION U/S.80IB OF THE ACT, AMOUNTING TO RS.80.64 LAKHS. THE (AO)COMPLETED THE ASSESSMENT U/S . 143(3) OF THE ACT RESTRICTING THE DEDUCTION TO RS.40.02 LAKHS.IN THE APPELLATE PROCEEDINGS,THE FIRST APPELLATE AUTHORITY(FAA) ALLOWED THE DEDUCTION OF PROPORTIONATE BASIS.THE ASSESSEE AS WELL AS THE AO CHALLENGED THE ORDER OF THE FAA BEFORE THE TRIBUNAL. VIDE ITS ORDER DATED 30.03.2010,THE TRIBUNAL DECIDED THE APPEALS. HOWEVER, THE ISSUE RELATING TO DEDUCTION U/S.80IB(10)OF THE ACT WAS RESTORED BACK TO THE FILE OF THE AO BY THE TRIBUNAL,WITH SPECIFIC DIRECTION AND FOR LIMITED PURPOSES.THE AO WAS DIRECTED TO ITA/ 7357 /MUM/2013,AY. 01 - 0 2 - HNS 2 DECIDE THE ISSUE IN VIEW OF THE DECISION OF THE TRIBUNAL DELIVERED IN THE CASE OF BRAHMA ASSOCIATES (119 ITD255) .IN THE ORDER PASSED,ON 16.12.2011, U/S.143(3) R.W.S.254(2)OF THE ACT,THE AO AGAIN MADE A DISALLOWANCE OF RS.40.02 LAKHS. 3. AGGRIEVED BY THE ORDE R OF THE AO,THE ASSESSEE PREFERRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY(FAA).BEFORE HIM IT WAS ARGUED THAT THE AO HAD TRAVELLED BEYOND THE DIRECTIONS GIVEN BY THE TRIBUNAL AND HENCE HIS ORDER WAS BAD IN LAW. AFTER CONSIDERING THE SUBMISSIONS OF TH E ASSESSEE AND THE ASSESSMENT ORDER,THE FAA REFERRED TO THE PARAGRAPHS 8 AND 8.1 OF THE ORDER OF THE TRIBUNAL DATED 30.03.2010.HE FURTHER OBSERVED THAT THE ISSUE RELATING TO DEDUCTION U/S.80IB WAS TO BE DECIDED AS PER THE PRINCIPLES LAID DOWN BY THE TRIBUN AL IN THE CASE OF BRAHMA ASSOCIATES ,THAT THE AO WAS NOT PERMITTED TO TRAVEL BEYOND THAT.REFERRING TO THE CASE OF BRAHMA ASSOCIATES (SUPRA), HE HELD THAT THE COMMERCIAL AREA BUILT BY THE ASSESSEE WAS 2.78% OF THE TOTAL BUILT UP AREA,THAT IT WAS LESS THAN 10% OF PRESCRIBED LIMIT MENTIONED IN THE ORDER OF THE TRIBUNAL, THAT THE ASSESSEE WAS ELIGIBLE TO CLAIM DEDUCTION U/S.80IB (10)OF THE ACT.FINALLY,HE ALLOWED THE APPEAL FILED BY THE ASSESSEE . 4. DURING THE COURSE OF HEARING B EFORE US, DEPARTMENTAL REPRESENTATIVE( DR) STATED THAT THE MATTER MAY BE DECIDED ON MERITS.NONE APPEARED ON BEHALF OF THE ASSESSEE ,AS STATED EARLIER. 5. WE HAVE PERUSED THE MATERIAL BEFORE US. WE FIND THAT THE FAA HAS FOLLOWED THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT AND HAS GIVEN A CATEG ORICAL FINDING OF FACT THAT THE COMMERCIAL AREA BUILT BY THE ASSESSEE WAS LESS PRESCRIBED LIMIT.CONSIDERING THE ABOVE FACTS,WE ARE OF THE OPINION THAT THE ORDER OF THE FAA DOES NOT SUFFER FROM ANY LEGAL INFIRMITY. SO, C ONFIRMING HIS ORDER,WE DECIDE EFFECT IVE GROUND AGAINST THE AO . AS A RESULT,APPEAL FILED BY THE AO STANDS DISMISSED. . ORDER PRONOU NCED IN THE OPEN COURT ON 1 4 TH ,MAY,2015. 1 4 , 2015 SD/ - S D/ - ( /I P BANSAL) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / MUMBAI, /DATE:1 4 .05.2015 . . . JV . SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR A BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ ITA/ 7357 /MUM/2013,AY. 01 - 0 2 - HNS 3 //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , / ITAT, MUMBAI.