ITO 24(2)(2), MUMBAI V. SUMMAIYA ENTERPRISES, MUMBAI

ITA 8324/MUM/2010

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 5043 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 10-09-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 01-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S SRINIVAS REDDY
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH E, MUMBAI BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER ITA NO. 8324/MUM/2010 ASSESSMENT YEAR : 2006-07 THE DCIT - 24(2) ROOM NO.601, 6 TH FLOOR PRATYAKSHAKAR BHAVAN BANDRA-KURLA COMPLEX BANDRA (E) MUMBAI-400 0051. VS. M/S. SUMMAIYA ENTERPRISES HUMARA PARK, SURVEY NO.273 PATHANWADI, MALAD(E) MUMBAI-400 097. PAN NO.AAGFS 8814 E (APPELLANT) (RESPONDENT) ASSESS EE BY : NONE REVENUE BY : SHRI S. SRINIVAS REDDY DATE OF HEARING : 10/09/2013 DATE OF PRONOUNCEMENT : 13 / 0 9 /2013 O R D E R PER B. RAMAKOTAIAH, AM: THIS REVENUE APPEAL IS AGAINST THE ORDER OF CIT(A) -34, MUMBAI DATED 03/09/2010 ON THE ISSUE OF ALLOWING CLAIM UND ER SECTION 80IB(10). 2. BRIEFLY STATED, THE AO REJECTED THE CLAIM UNDER SECTION 80IB(10), AS IN HIS OPINION, THE LAW HAS BEEN CHANGED UNDER SECT ION 80IB AFTER AMENDMENT W.E.F. 01/04/2005. AS THE ASSESSEE PROJEC T HAS A CUMULATIVE SHOPPING AREA AS A PERCENTAGE TO TOTAL BUILT UP ARE A AT 5.5% AND ACCORDING TO AO, THE PROJECT SHOULD HAVE LESS THAT 5% OF THE TOTAL BUILT UP AREA, HE DENIED THE DEDUCTION U/S 80IB(10). ITA NO.8324/M/10 A.Y.06-07 2 3. RELYING ON THE SPECIAL BENCH DECISION IN THE CASE OF BRAHMA ASSOCIATES 22 DTR 1 AND CO-ORDINATE BENCH DECISION IN THE CASE OF SAROJ SALES ORGANISATION 115 TTJ 485 AND HIRANANDANI AKRUTI JV VS. DCIT IN ITA NO.5416/MUM/09 DATED 30.03.2010 , LD. CIT(A) ALLOWED THE DEDUCTION AS THE PROJECT WAS APPROVED PRIOR TO ASSESSMENT YEA R 2004-05. REVENUE IS AGGRIEVED. 4. AFTER HEARING THE LD. DR AND PERUSING THE WRITTE N SUBMISSION FILED BY THE ASSESSEE, WE DO NOT SEE ANY REASON TO INTERF ERE WITH THE ORDER OF THE LD. CIT(A). HAVING REGARD TO THE DECISION OF HO N'BLE BOMBAY HIGH COURT IN THE CASE OF BRAHMA ASSOCIATES WHICH NOT ON LY APPROVED THE DECISION OF THE SPECIAL BENCH(SUPRA) BUT ALSO REMOV EDED THE RESTRICTION PLACED BY THE SPECIAL BENCH OF 10% COMMERCIAL AREA, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A). FURTHER, THE CO-ORDINATE BENCH IN ASSESSEES OWN CASE HAS CONFIRMED THE ORDER OF CIT( A) ON THE SAME ISSUE IN EARLIER YEARS VIDE ORDER IN ITA NO.1986/MUM/2010 DATED 21.04.2011 FOR ASSESSMENT YEAR 2001-02 AND 2003-04 AND IN ITA NO.4966/MUM/2010 DATED 30.08.2011 FOR THE ASSESSMEN T YEAR 2002-03 WHEREIN ALSO THE DEDUCTION WAS DISALLOWED BY THE AO ON THE SAME PRINCIPLE. THERE IS NO MERIT IN REVENUE APPEAL. 5. IN THE RESULT, REVENUE APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH SEPTEMBER, 2013. SD/- SD/- (SANJAY GARG ) JUDICIAL MEMBER (B. RAMAKOTAIAH ) ACCOUNTANT MEMBER MUMBAI, DATED: 13/09/2013. JV. ITA NO.8324/M/10 A.Y.06-07 3 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.