ACIT 26 (3), MUMBAI V. M/S SHREE LAXMI DEVELOPERS, MUMBAI

ITA 7481/MUM/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 1385 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 11-07-2022
• Assessment Year: 2008-2009
• Appeal Filed On: 04-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: BRAJENDRA KUMAR

Judgement Text

आयकर अपीलीय अधिकरण म ुंबई पीठ “ ई ” श्री विकास अिस्थी, न्याधयक सदस्य एिुं श्री एम .बालगणेश लेखा सदस्य के समक्ष IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “E” BENCH BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER & SHRI M BALAGANESH, ACCOUNTANT MEMBER आअसुं.7480/म ुं/2019(धि.ि. 2007-08) आअसुं.7481/म ुं/2019(धि.ि. 2008-09) ITA NO.7480/MUM/2019 (A.Y.2007-08) ITA NO.7481/MUM/2019 (A.Y.2008-09) Assistant Commissioner of Income Tax-26(3) ..... अपीलाथी /Appellant Room No. 332, 3 rd Floor, Kautilya Bhavan, Bandra Kurla Complex, Bandra East Mumbai 400 051 बिाम Vs. M/s. Shree Laxmi Developers ..... प्रधििादी/Respondent 407, Gateway Plaza, Hiranandani Garden Powai Mumbai 400 076 Pan No. ABEFS7370Q अपीलार्थी द्वारा/Appellant by : None प्रधििादी द्वारा/Respondent by : Shri Brajendra Kumar, Sr. AR स ििाई की धिधथ/ Date of hearing : 12/07/2022 घोषणा की धिधथ/ Date of pronouncement : 10/10/2022 आदेश/ ORDER PER VIKAS AWASTHY, JM: These two appeals by the Revenue are directed against the order of Commissioner of Income Tax (Appeals) 38-Mumbai [in short “the CIT(A)] dated 29/08/2019 common for the assessment years 2007-08 and 2008-09. 2 ITA NO.7480 /MUM/2019(A.Y.2007-08) ITA NO.7481 /MUM/2019(A.Y.2008-09) 2. Identical grounds have been raised by the Revenue in both these appeals assailing the findings of the CIT(A), therefore, these appeals are taken up together for adjudication and are decided vide this common order. 3. Shri Brajendra Kumar representing the department submitted that identical issues are involved in both these appeals. The learned Departmental Representative (DR) submitted that the CIT(A) has deleted the addition of Rs.4,25,73,600/- in assessment year 2007-08 (Rs.5,67,64,800/- for assessment year 2008-09) on account of suppressed sale of basement area during the relevant assessment year. The ld. DR submitted that the assesse is a building contractor and a developer. The assesssee had developed a project “Dream Plaza”, on a plot admeasuring 2864 sq. meters. The permissible built up area on the said plot was 105391 sq. ft. The assesse in its statement has shown saleable area as 73855 sq. ft. The assesse has shown 31536 sq. ft. area less, hence, the assesse has suppressed sale of aforesaid area. During the period, relevant to the assessment year under appeal, the assesse had sold 50% of the project area. The AO thus, divided the supressed area and made addition of Rs.4.57 crores in A.Y. 2007-08 and addition of Rs.5.67 crores in A.Y. 2008-09. The CIT(A) deleted the addition without appreciating the facts on record. The ld. DR prayed for reversing findings of the CIT(A) and confirming the addition made in the assessment orders for the respective assessment years. 4. We have heard the submissions made by ld. DR and have perused the orders of the authorities below. We find that this is second round of litigation. In the first round, the addition made by AO was deleted by the CIT(A) vide order dated 26/04/2010. The department filed appeal against the said order. The Tribunal vide order dated 19/08/2015 restored the issue to the file of AO with 3 ITA NO.7480 /MUM/2019(A.Y.2007-08) ITA NO.7481 /MUM/2019(A.Y.2008-09) specific directions. The AO on the directions of the Tribunal passed the order dated 29/10/2016. The CIT(A) in the impugned order has observed that the assessment order passed by the AO is not as per the directions of the Tribunal. The CIT(A) examined the issue in detail and thereafter sought remand report from the AO. After considering the remand report dated 16/11/2018, the CIT(A) concluded that the difference between the area disclosed by the appellant and computed by the AO is due to inclusion of basement area admeasuring 18934 sq. ft. by the AO on the pretext that the same has not been included in the saleable area of the project. The CIT(A) after seeking spot inspection report from the Ward Inspector held that the basement is used as parking area which is run on a commercial basis. Parking fee is charged from the vehicles. There is no documentary evidence that the basement area was sold. The CIT(A) deleted the addition after recording the above facts. The Revenue has not rebutted the findings of CIT(A). In the absence of any contrary material, we find no reason to interfere with the reasoned findings of the First Appellate Authority, hence, the same are upheld and the appeals of the Revenue for both the impugned assessment years are dismissed. Order pronounced in the open court on _________________the _______ day of October 2022. (M BALAGANESH) (VIKAS AWASTHY) लेखा सदस्य/ACCOUNTANT MEMBER न्याधयक सदस्य/JUDICIAL MEMBER म ुंबई/Mumbai, M.R. Sonavane 4 ITA NO.7480 /MUM/2019(A.Y.2007-08) ITA NO.7481 /MUM/2019(A.Y.2008-09) प्रधिधलवप अग्रेवषिCopy of the Order forwarded to : 1. अपीलाथी/The Appellant , 2. प्रधििादी/ The Respondent. 3. आयकर आय क्त(अ)/ The CIT(A)- 4. आयकर आय क्त CIT 5. विभागीय प्रधिधिधि, आय.अपी.अधि., म बुंई/DR, ITAT, Mumbai 6. गार्ड फाइल/Guard file. BY ORDER, //True Copy// (Dy./Asstt. Registrar)/ Sr.Private Secretary ITAT, Mumbai Details Date Initials Designation 1 Draft dictated/directly typed on computer Sr.PS/PS 2 Draft Placed before author Sr.PS/PS 3 Draft proposed & placed before the Second Member JM/AM 4 Draft discussed/approved by Second Member JM/AM 5. Approved Draft comes to the Sr.PS/PS Sr.PS/PS 6. Kept for pronouncement on Sr.PS/PS 7. File sent to the Bench Clerk Sr.PS/PS 8 Date on which the file goes to the Head clerk 9 Date of Dispatch of order