ITO 3(2)(4), MUMBAI V. OMEGA INVESTMENT & PROPERTIES LTD., MUMBAI

ITA 869/MUM/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6897 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-06-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 22-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJAT MITTAL
• Keywords: Reopening of assessment; Tangible material; Wrong claim; Difference of opinion; Change of opinion
• Section: 143(3); 142(1); 80IB; 148

Judgement Text

1 ITA 869 & 870/MUM/2016 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C, MUMBAI BEFORE SHRI AMARJIT SINGH(JUDICIAL MEMBER) AND SHRI G MANJUNATHA (ACCOUNTANT MEMBER) I.T.A NOS.869 & 870/MUM/2016 (ASSESSMENT YEARS: 2008-09 & 2011-12) ITO, 3(2)(4), MUMBAI VS M/S OMEGA INVESTMENT & PROPERTIES LTD, 34-B, JOLLY MAKER CHAMBERS NO.2, NARIMAN POINT MUMBAI-400 021 PAN : AAACO0978L APPELLANT RESPONDENT APPELLANT BY SHRI RAJAT MITTAL RESPONDENT BY SHRI RAKESH JOSHI DATE OF HEARING 17-04-2018 DATE OF PRONOUNCEMENT 20-06-2018 O R D E R PER G MANJUNATHA, AM : THESE TWO APPEALS FILED BY THE REVENUE ARE DIRECT ED AGAINST SEPARATE BUT IDENTICAL ORDERS OF THE CIT(A)-8, MUMB AI DATED 30-11-2015 AND THEY PERTAIN TO AYS 2008-09 AND 2011-12. SINCE BOTH THE APPEALS PERTAIN TO SAME ASSESSEE, FOR THE SAKE OF CONVENIEN CE, THESE APPEALS WERE HEARD TOGETHER AND ARE DISPOSED OF BY THIS COM MON ORDER. ITA NO.869/MUM/2016 2. IN THIS APPEAL, THE REVENUE HAS RAISED THE FOLLO WING GROUNDS OF APPEAL:- 2 ITA 869 & 870/MUM/2016 1. 'WHETHER ON THE FACTS OF THE CASE AND IN LAW, THE LD. CIT (A) WAS RIGHT IN QUASHING THE ORDER PASSED U/S 143(3) R.W.S 147 OF I .T. ACT HOLDING THAT THE REOPENING OF THE ASSESSMENT U/S 147 WAS BAD IN LAW AS IT WAS A CLEAR CASE OF CHANGE OF OPINION.' 2. 'ON THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LD.CIT (A) ERRED IN IGNORING THE FACT THAT THERE WAS NO CHANGE OF OPINI ON AS THE CASE WAS NOT SELECTED FOR SCRUTINY U/S 143(3) OF I.T. ACT BUT ON LY PROCESSED U/S 143(1) OF I.T, ACT AND HENCE THERE WAS NO SCOPE FOR ASSESSING OFFICER TO FORM AN OPINION ON THE ISSUE OF ALLOWABILITY OF DEDUCTION U/S 80IB (10) OF I.T. ACT.' 3. 'WHETHER ON THE FACTS OF THE CASE AND IN LAW T HE LD. CIT (A) WAS RIGHT IN ALLOWING THE CLAIM OF THE ASSESSEE OF DEDUCTION U/S 80IB(10) OF RS.2,04,47,748/- IN RESPECT OF SLUM REHABILITATION PROJECT (SRA) IGNORING THE FACT THAT PROJECT WAS APPROVED PRIOR TO 1.04.2004 A ND WAS NOT ELIGIBLE FOR DEDUCTION U/S 80IB(10) AS PER THE NOTIFICATION OF C BDT NO.67 DATED 03.08.2010 READ WITH CORRIGENDUM VIDE NOTIFICATION NO.2 OF 2011. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS A DOMESTIC COMPANY ENGAGED IN THE BUSINESS OF BUILDING AND DEV ELOPMENT OF HOUSING PROJECTS AND ALSO TRADING IN SHARES AND SEC URITIES, FILED ITS RETURN OF INCOME FOR AY 2008-09 ON 29-08-2008 DECLARING TO TAL INCOME AT RS.9,40,521 AND BOOK PROFIT OF RS.1,31,75,718 U/S 1 15JB OF THE INCOME- TAX ACT, 1961. THE RETURN WAS PROCESSED U/S 143(1) OF THE INCOME-TAX ACT, 1961. SUBSEQUENTLY, THE CASE WAS REOPENED U/S 147 OF THE ACT, ON THE GROUND THAT INCOME CHARGEABLE TO TAX HAD BEEN E SCAPED ASSESSMENT ON ACCOUNT OF WRONG CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT, IN RESPECT OF PROFIT DERIVED FROM DEVELOPMENT OF RESID ENTIAL HOUSING PROJECT AT PAREL, MUMBAI. THE AO OBSERVED THAT THE ASSESSE E HAS DEVELOPED A HOUSING PROJECT APPROVED BY THE SLUM REHABILITATION AUTHORITY OF MAHARASHTRA STATE(SRA). THE AO FURTHER OBSERVED TH AT THE ASSESSEE 3 ITA 869 & 870/MUM/2016 HAS NOT SATISFIED CONDITIONS LAID DOWN IN CLAUSE ( A) TO SECTION 80IB(10) OF I.T. ACT, 1961, I.E. COMPLETION OF PROJECT WITHIN T HE PRESCRIBED TIME LIMIT, HENCE, THE CLAIM OF DEDUCTION MADE U/S 80IB WAS WIT HDRAWN FOR AY 2009-10. SINCE THE ASSESSEE HAS MADE A SIMILAR CLA IM FOR AY 2008-09, THE AO FORMED A BELIEF THAT INCOME CHARGEABLE TO T AX HAD ESCAPED ASSESSMENT IN VIEW OF WRONG CLAIM OF DEDUCTION U/S 80IB(10) AND ACCORDINGLY ISSUED NOTICE U/S 148 DATED 24-10-2012. IN RESPONSE TO NOTICE, THE ASSESSEE, VIDE LETTER DATED 25-10-2013 STATED THAT RETURN FILED U/S 139(1) ON 29-09-2008 MAY BE TREATED AS RETURN F ILED IN RESPONSE TO NOTICE U/S 148 OF THE ACT. THE ASSESSEE ALSO FILED OBJECTIONS FOR REOPENING OF ASSESSMENT. THE OBJECTION FILED BY TH E ASSESSEE HAS BEEN DISPOSED OFF. SUBSEQUENTLY, THE CASE HAS BEEN SELE CTED FOR SCRUTINY AND NOTICES U/S 143(2) AND 142(1) OF THE ACT WERE ISSUE D. IN RESPONSE TO NOTICES, THE AUTHORIZED REPRESENTATIVE OF THE ASSES SEE APPEARED FROM TIME TO TIME AND FURNISHED VARIOUS DETAILS, AS CALL ED FOR. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO OBSERVED THAT THE ASSESSEE HAD UNDERTAKEN A HOUSING PROJECT AT PA REL, MUMBAI WHICH WAS APPROVED BY SRA AUTHORITY. THE ASSESSEE HAS CL AIMED DEDUCTION U/S 80IB(10) OF THE INCOME-TAX ACT, 1961 TOWARDS PR OFIT DERIVED FROM DEVELOPMENT OF HOUSING PROJECT. THE AO OBSERVED TH AT THE ASSESSEE HAS NOT FULFILLED THE CONDITIONS LAID DOWN IN CLAUS E (A) TO SECTION 80IB(10), 4 ITA 869 & 870/MUM/2016 THEREFORE, NOT ELIGIBLE FOR DEDUCTION TOWARDS PROFI T DERIVED FROM SUCH HOUSING PROJECT. ACCORDING TO THE AO, THE ASSESSEE S PROJECT HAS BEEN APPROVED BY THE SRA ON 7-10-2002, I.E. BEFORE 01-04 -2004 WHEREAS AS PER THE NOTIFICATION ISSUED BY THE CBDT WHICH RELAX ED THE CONDITIONS IMPOSED UNDER CLAUSES (A) AND (B) TO SECTION 80IB( 10) WHICH IS APPLICABLE TO THE PROJECTS WHICH ARE APPROVED ON OR BEFORE 01-04-2004 AND BEFORE 31-03-2008. SINCE THE ASSESSEES PROJEC T HAS BEEN APPROVED BEFORE 01-04-2004 AND AS PER THE NOTIFICAT ION, THE RELAXATION OF CONDITIONS SPECIFIED IN CLAUSES (A) AND (B) IS APPL ICABLE TO THE HOUSING PROJECT WHICH HAS BEEN APPROVED ON OR BEFORE 01-04- 2004 AND ACCORDINGLY, THE CLAIM OF THE ASSESSEE IS NOT IN AC CORDANCE WITH SECTION 80IB(10) AND THEREFORE, CALLED UPON THE ASSESSEE TO EXPLAIN AS TO WHY DEDUCTION U/S 80IB(10) SHALL NOT BE DISALLOWED. IN RESPONSE TO NOTICE, THE ASSESSEE SUBMITTED THAT IF ANY HOUSING PROJECT IS DECLARED WITHIN THE SCHEME FRAMED BY THE CENTRAL GOVERNMENT OR THE STAT E GOVERNMENT FOR SRA, THEN RIGOURS OF CLAUSES (A) & (B) WILL NOT BE APPLICABLE TO SUCH PROJECT. THE ASSESSEE FURTHER SUBMITTED THAT THE S RA HAS ISSUED A LETTER OF INTENT ON 07-10-2002 APPROVING THE PROJECT OF DE VELOPMENT OF HOUSING AND THE MODIFIED PLAN HAS BEEN FINALLY APPROVED ON 04-06-2004 WHICH IS WELL WITHIN THE TIME LIMIT PRESCRIBED IN THE NOTIFI CATION ISSUED BY CBDT. THEREFORE, ITS CLAIM OF DEDUCTION U/S 80IB(10) IS I N ACCORDANCE WITH LAW 5 ITA 869 & 870/MUM/2016 AND IT IS GUIDED BY THE SAID NOTIFICATION. THE AO, AFTER CONSIDERING RELEVANT SUBMISSIONS OF THE ASSESSEE AND ALSO RELYI NG UPON THE NOTIFICATION ISSUED BY THE CBDT OBSERVED THAT AS PE R EXPLANATION TO CLAUSE (A) OF SECTION 80IB(10), WHERE THE APPROVAL IN RESPECT OF HOUSING PROJECT WAS OBTAINED MORE THAN ONCE, SUCH PROJECT S HALL BE DEEMED TO HAVE BEEN APPROVED ON THE DATE ON WHICH THE BUILDIN G PLAN OF SUCH HOUSING PROJECT IS FIRST APPROVED BY THE LOCAL AUTH ORITY. AS STATED ABOVE, THE PROJECT WAS APPROVED ON 7-10-2002 AND THE COMME NCEMENT CERTIFICATED WAS ISSUED ON 31-03-2003 AND THUS, THE PROJECT OF THE ASSESSEE COMPANY DOES NOT FALL WITHIN THE PERIOD OF APPROVAL DATE MENTIONED IN THE NOTIFICATION DATED 03-08-2010 READ WITH CORRIGENDUM VIDE NOTIFICATION NO.2 OF 2011 OF THE BOARD. THE C ONTENTION OF THE ASSESSEE THAT CLAUSES (A) AND (B) OF THE SECTION AR E NOT APPLICABLE IN ITS CASE IS FOUND TO BE FACTUALLY INCORRECT AND ACCORDI NGLY, REJECTED DEDUCTION CLAIMED U/S 80IB(10) OF THE ACT. 5. AGGRIEVED BY THE ASSESSMENT ORDER, ASSESSEE PREF ERRED APPEAL BEFORE THE CIT(A). BEFORE THE CIT(A), THE ASSESSEE HAS CHALLENGED REOPENING OF THE ASSESSMENT ON THE GROUND THAT THE AO HAS REOPENED THE ASSESSMENT ON MERE CHANGE OF OPINION WITHOUT TH ERE BEING ANY NEW TANGIBLE MATERIAL WHICH IS EVIDENT FROM THE REASONS RECORDED BY THE AO WHEREIN THE AO REFERS TO THE ASSESSMENT ORDER PASSE D FOR THE 6 ITA 869 & 870/MUM/2016 ASSESSMENT YEAR 2009-10 DENYING DEDUCTION CLAIMED U /S 80IB(10). THE ASSESSEE HAS FILED ELABORATE WRITTEN SUBMISSIONS BE FORE THE LD.CIT(A) WHICH HAS BEEN REPRODUCED AT PARA 4.1.1 TO 4.1.4 ON PAGES 3-14 OF CIT(A)S ORDER. THE ASSESSEE ALSO FILED ELABORATE WRITTEN SUBMISSIONS ON THE ISSUE OF DEDUCTION CLAIMED U/S 80IB(10) WHIC H HAS BEEN REPRODUCED BY THE LD.CIT(A) AT PARAS 4.2 ON PAGES 14 TO 19 OF APPELLATE ORDER. AS REGARDS DEDUCTION CLAIMED U/S 80IB(10), ASSESSEE HAS REITERATED ITS SUBMISSIONS MADE BEFORE THE AO TO AR GUE THAT ITS CLAIM IS IN ACCORDANCE WITH PROVISIONS OF SECTION 80IB(10) F OR THE REASON THAT IF ANY HOUSING PROJECT IS APPROVED BY THE CENTRAL GOVE RNMENT OR THE STATE GOVERNMENT OR ANY LOCAL AUTHORITY, THEN CLAUSE (A) AND (B) TO SECTION 80IB(10) HAS NO APPLICATION, THAT MEANS, THE DATE O F COMMENCEMENT AND DATE OF COMPLETION OF PROJECT HAS NO RELEVANCE TO C LAIM DEDUCTION. SINCE ITS PROJECT HAS BEEN FINALLY APPROVED BY THE SRA ON 04-06-2004, THE APPROVAL GIVEN IS WELL WITHIN TIME LIMIT PRESCRIBED BY THE CBDT VIDE NOTIFICATION NO.67 DATED 03-08-2010 AND CORRIGENDUM TO NOTIFICATION OF 2011. 6. THE LD.CIT(A), AFTER CONSIDERING RELEVANT SUBMIS SIONS OF THE ASSESSEE AND ALSO RELYING UPON PLETHORA OF JUDGEMEN TS INCLUDING THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CI T VS KELVINATOR OF INDIA LTD REPORTED IN 320 ITR 561 (SC) OBSERVED THA T THE AO HAS 7 ITA 869 & 870/MUM/2016 REOPENED THE ASSESSMENT ON CHANGE OF OPINION WITHOU T THERE BEING ANY TANGIBLE MATERIAL ON RECORD. THEREFORE, HE QUASHED THE RE-ASSESSMENT ORDER PASSED BY THE AO. AS REGARDS DEDUCTION U/S 8 0IB(10), THE CIT(A) DELETED ADDITION MADE BY THE AO BY FOLLOWING HIS PR EDECESSORS APPELLATE ORDER FOR AY 2009-10 BY HOLDING THAT PROV ISIONS OF CLAUSES (A) AND (B) OF SECTION 80IB(10) REGARDING DATE OF COMME NCEMENT AND COMPLETION OF PROJECT ARE NOT APPLICABLE TO THE CAS E OF THE ASSESSEE IN VIEW OF THE PROVISO TO SECTION 80IB(10) WHEREIN IT WAS CLARIFIED THAT NOTHING CONTAINED IN CLAUSES (A) OR (B) SHALL APPLY TO A HOUSING PROJECT CARRIED OUT IN ACCORDANCE WITH A SCHEME FRAMED BY T HE CENTRAL GOVERNMENT OR STATE GOVERNMENT FOR RECONSTRUCTION O R RE-DEVELOPMENT OF EXISTING BUILDINGS OR IN AREAS DECLARED TO BE SL UM AREAS UNDER ANY LAW FOR THE TIME BEING IN FORCE AND SUCH SCHEME IS NOTI FIED BY THE BOARD IN THIS BEHALF. AGGRIEVED BY THE CIT(A)S ORDER, THE REVENUE IS IN APPEAL BEFORE US. 7. THE FIRST ISSUE THAT CAME UP FOR OUR CONSIDERATI ON IS DEDUCTION CLAIMED U/S 80IB(10) OF THE ACT. THE LD.DR SUBMITT ED THAT THE LD.CIT(A) WAS ERRED IN ALLOWING DEDUCTION U/S 80IB(10) IN RES PECT OF PROFIT DERIVED FROM HOUSING PROJECT APPROVED BY SRA WITHOUT APPREC IATING THE FACT THAT THE ASSESSEES PROJECT WAS APPROVED PRIOR TO 01-04- 2004 AND AS PER NOTIFICATION OF CBDT NO.67 DATED 03-08-2010, THE AS SESSEE IS NOT 8 ITA 869 & 870/MUM/2016 ELIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE INCOME-T AX ACT, 1961. THE LD.DR IN THIS REGARD RELIED UPON THE DECISION OF IT AT, MUMBAI IN THE CASE OF BHAVYA CONSTRUCTION VS ACIT (2017) 162 ITD 362 AND ALSO ITAT, MUMBAI C BENCH IN ASSESSEES OWN CASE FOR AY 2007 -08 IN ITA NO.686/MUM/2016. 8. ON THE OTHER HAND, THE LD.AR FOR THE ASSESSEE ST RONGLY SUPPORTING THE ORDER OF THE CIT(A) SUBMITTED THAT THE LD.CIT(A ) RIGHTLY APPRECIATED THE FACTS IN THE LIGHT OF PROVISIONS OF SECTION 80I B(10) CLAUSES (A) AND (B) AND PROVISO TO COME TO THE CONCLUSION THAT THE ASSE SSEE IS ELIGIBLE FOR DEDUCTION U/S 80IB(10). THE LD.AR FURTHER SUBMITTE D THAT IF A HOUSING PROJECT IS APPROVED AND IS CARRIED OUT IN ACCORDANC E WITH THE SCHEME FRAMED BY THE CENTRAL GOVERNMENT OR A STATE GOVERNM ENT FOR RECONSTRUCTION OR REDEVELOPMENT OF EXISTING BUILDIN G IN AREAS DECLARED TO BE SLUM, THEN CLAUSE (A) OR CLAUSE (B) TO SECTION 8 0IB(10) HAS NO APPLICATION. EVEN OTHERWISE, THE ASSESSEES PROJEC T HAS BEEN APPROVED ON 04-06-2004 AND WHICH FACT HAS BEEN CAPTURED BY T HE ITAT FOR AY 2009-10 WHILE DECIDING THE ISSUE OF DEDUCTION CLAIM ED U/S 80IB(10) OF THE ACT. THE ITAT FOR AY 2009-10 HAS DECIDED THE I SSUE IN FAVOUR OF THE ASSESSEE BY OBSERVING THAT THE ASSESSEES PROJECT H AS BEEN APPROVED ON 04-06-2004 AND HENCE, THE DEDUCTION CLAIMED BY T HE ASSESSEE IS IN ACCORDANCE WITH PROVISIONS OF SECTION 80IB(10). TH E LD.AR FURTHER 9 ITA 869 & 870/MUM/2016 SUBMITTED THAT THE DEPARTMENT HAS PREFERRED FURTHER APPEAL BEFORE THE HONBLE BOMBAY HIGH COURT AGAINST THE ORDER OF THE ITAT CHALLENGING DELETION OF ADDITION MADE TOWARDS DISALLOWANCE OF D EDUCTION CLAIMED U/S 80IB(10) AND THE HONBLE JURISDICTIONAL HIGH COURT IN INCOME-TAX APPEAL NO.159 OF 2015 DATED 25-07-2017 HAS DISMISSED THE A PPEAL FILED BY THE REVENUE BY OBSERVING THAT THE PROJECT WAS APPROVED BY THE SRA ON 04- 06-2004. SINCE THE ISSUE HAS BEEN CONSIDERED BY TH E HONBLE JURISDICTIONAL HIGH COURT IN THE LIGHT OF FACTS REC ORDED BY THE ITAT, THE CIT(A) HAS RIGHTLY DELETED ADDITION MADE BY THE AO AND HIS ORDER SHOULD BE UPHELD. 9. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATE RIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES B ELOW. THERE IS NO DISPUTE WITH REGARD TO THE FULFILMENT OF CONDITIONS SPECIFIED U/S 80IB(10) EXCEPT DATE OF APPROVAL. THE PROJECT WAS PART OF S LUM REDEVELOPMENT AND THE SAME WAS APPROVED BY THE SRA. AS PER THE P ROVISIONS OF SECTION 80IB(10) EXPLANATION 1, IF A HOUSING PROJEC T IS APPROVED FOR MORE THAN ONCE, THEN SUCH HOUSING PROJECT SHALL BE DEEME D TO HAVE BEEN APPROVED ON THE DATE ON WHICH THE BUILDING PLAN FOR SUCH HOUSING PROJECT HAS BEEN FIRST APPROVED BY THE LOCAL AUTHORITY. TH E PROVISO TO SECTION 80IB(10) CLARIFIES THAT NOTHING CONTAINED IN CLAUSE (A) OR CLAUSE (B) SHALL APPLY TO A HOUSING PROJECT CARRIED ON IN ACCORDANCE WITH SCHEME FRAMED 10 ITA 869 & 870/MUM/2016 BY THE CENTRAL GOVERNMENT OR STATE GOVERNMENT FOR R ECONSTRUCTION OR REDEVELOPMENT OF EXISTING BUILDING IN AREAS DECLARE D TO BE SLUM AREAS UNDER ANY LAW FOR THE TIME BEING IN FORCE AND SUCH SCHEME IS NOTIFIED BY THE BOARD IN THIS BELIEF. CLAUSE (A) OF SECTION 80 IB(10) SPEAKS ABOUT DATE OF COMMENCEMENT AND DATE OF COMPLETION OF HOUS ING PROJECT. AS PER PROVISO PROVIDED TO SECTION 80IB(10), IF A HOUS ING PROJECT IS APPROVED BY SRA, THEN CLAUSE (A) AND CLAUSE (B) SHALL NOT AP PLY TO SUCH HOUSING PROJECT. THE CBDT HAD ISSUED A NOTIFICATION NO.67 DATED 03-08-2010, AS PER WHICH THE BOARD NOTIFIES THE SCHEME CONTAINED I N REGULATIONS 33(10) OF DEVELOPMENT CONTROL REGULATION FOR GREATER BOMBA Y 1991 READ WITH THE PROVISIONS OF NOTIFICATION NO.TPB-4391/4080(A)/ UD-11 (RDP) DATED 03-06-1992 AS A CLAIM FOR THE PURPOSE OF SECTION 80 IB(10) OF THE ACT. THE CBDT FURTHER ISSUED A NOTIFICATION NO.2 OF 2011 DATED 05-01-2011 EXPLAINING THE DATE OF APPLICATION OF THE SAID NOTI FICATION AS PER WHICH THE SAID NOTIFICATION IS APPLICABLE FOR A HOUSING PROJE CT APPROVED ON OR AFTER 01-04-2004 AND BEFORE 31-03-2008. IN THIS LEGAL BA CKGROUND, IF WE SEE THE FACTS OF THE ASSESSEES CASE, THE TRIBUNAL FOR THE ASSESSMENT YEAR 2009-10 HAS RECORDED CATEGORICAL FINDING THAT THE A SSEASSEES PROJECT HAS BEEN APPROVED BY THE SRA ON 04-06-2004, THEREFO RE, THE PROJECT IS ELIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE ACT. TH E HONBLE BOMBAY HIGH COURT IN INCOME-TAX APPEAL NO.159 OF 2015 DATED 25- 07-2017 FOR THE 11 ITA 869 & 870/MUM/2016 ASSESSMENT YEAR 2009-10 HAS APPROVED THE FINDINGS O F THE ITAT BY OBSERVING THAT THE ASSESSEE HAS SUBMITTED THE PROJ ECT AND THE PLAN DATED 28-04-2004 AND THE SAME WAS APPROVED BY SRA O N 04-06-2004. SINCE THE ISSUE HAS ALREADY BEEN DECIDED BY THE JUR ISDICTIONAL HIGH COURT IN THE LIGHT OF PROVISIONS OF SECTION 80IB(10) AND NOTIFICATION ISSUED BY THE CBDT, WE ARE OF THE CONSIDERED VIEW THAT THE ASSESS EE IS ELIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE ACT. 10. COMING TO THE DECISION OF ITAT IN ASSESSEES OW N CASE FOR AY 2007-08. THE ITAT, C-BENCH, MUMBAI IN ASSESSEES O WN CASE FOR AY 2007-08 HAS CONSIDERED THE ISSUE OF DEDUCTION CLAIM ED U/S 80IB(10) AND AFTER CONSIDERING VARIOUS CASE LAWS INCLUDING THE I TATS DECISION FOR AY 2009-10 OBSERVED THAT THE ASSESSEE IS NOT ENTITLED FOR DEDUCTION U/S 80IB(10) OF THE ACT WITH REFERENCE TO ITS RESIDENTI AL PROJECT AT PAREL, MUMBAI. THE ITAT HAS COME TO THE CONCLUSION ON THE BASIS OF DATE OF APPROVAL OF THE PROJECT FOR THE FIRST TIME BY THE S RA ON 7-10-2002. THE ITAT FURTHER OBSERVED THAT SINCE THE PROJECT WAS FI RST TIME APPROVED ON 7- 10-2002, AS PER THE NOTIFICATION OF CBDT, VIDE NOTI FICATION NO.67 OF 31- 08-2010 TO GET THE BENEFIT OF DEDUCTION U/S 80IB(10 ), THE HOUSING PROJECT SHALL BE APPROVED ON OR AFTER 01-04-2004 AND BEFORE 31-03-2008. WE HAVE GONE THROUGH THE ORDER OF CO-ORDINATE BENCH OF ITAT FOR AY 2007- 08 IN THE LIGHT OF PROVISIONS OF SECTION 80IB(10) C LAUSE (A) AND (B) AND 12 ITA 869 & 870/MUM/2016 ALSO PROVISO PROVIDED TO SECTION 80IB(10) AND FIND THAT THE ITAT HAS GIVEN AN INCORRECT FINDING OF FACTS AS WELL AS LAW WHICH IS CONTRARY TO THE FINDING OF FACT RECORDED BY THE ITAT AND ALSO THE H ONBLE JURISDICTIONAL HIGH COURT FOR AY 2009-10. THE ITAT HAS TAKEN A CO NTRARY VIEW ON THE BASIS OF LETTER OF INTENT ISSUED BY SRA DATED 07-10 -2002 IGNORING THE FACT THAT THE MODIFIED PLAN HAS BEEN APPROVED ON OR AFTE R 01-04-2004. FURTHER, AS PER THE AMENDED PROVISIONS OF SECTION 8 0IB(10) CLAUSE (A) AND (B) HAS NO APPLICATION, IF SUCH HOUSING PROJECT IS CARRIED OUT IN ACCORDANCE WITH THE SCHEME FRAMED BY THE CENTRAL GO VERNMENT OR STATE GOVERNMENT FOR RECONSTRUCTION OR REDEVELOPMENT OF E XISTING BUILDINGS IN AREAS DECLARED TO BE SLUM AREA UNDER ANY LAW FOR TH E TIME BEING IN FORCE AND SUCH SCHEME IS NOTIFIED BY THE BOARD IN THIS BE LIEF. FURTHER, IF WE GO THROUGH THE NOTIFICATION ISSUED BY THE CBDT, THE SA ID NOTIFICATION NOWHERE STATES THE FIRST DATE OF APPROVAL. THE NOT IFICATION ONLY STATES ABOUT THE HOUSING PROJECT WHICH ARE APPROVED ON OR AFTER 01-04-2004 AND BEFORE 31-03-2008. THE ISSUE OF FIRST APPROVAL AND SECOND APPROVAL HAS NO RELEVANCE IN VIEW OF CATEGORICAL EXCLUSION O F CLAUSE (A) OR CLAUSE (B) BY WAY OF PROVISO TO SECTION 80IB(10) FOR HOUSI NG PROJECT WHICH IS APPROVED BY THE SRA. SINCE THE CO-ORDINATE BENCH H AS TAKEN A CONTRARY VIEW AGAINST THE PRINCIPLE LAID DOWN BY THE HONBLE JURISDICTIONAL HIGH COURT IN ASSESSEES OWN CASE FOR EARLIER YEAR, WE A RE OF THE CONSIDERED 13 ITA 869 & 870/MUM/2016 VIEW THAT THE JUDGEMENT RENDERED BY THE CO-ORDINATE BENCH FOR AY 2007- 08 IS NOT CORRECT AND AGAINST SETTLED POSITION OF L AW. 10. IN THIS VIEW OF THE MATTER AND RESPECTFULLY FOL LOWING THE DECISION OF JURISDICTIONAL HIGH COURT IN ASSESSES OWN CASE FOR AY 2009-10 IN ITA NO.159/MUM/2015 DATED 25-07-2017, WE ARE OF THE CON SIDERED VIEW THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S 80I B(10) OF THE ACT. THE LD.CIT(A), AFTER CONSIDERING RELEVANT FACTS HAS RIG HTLY DELETED ADDITION MADE BY THE AO. HENCE, WE ARE INCLINED TO UPHOLD T HE FINDINGS OF THE CIT(A) AND REJECT GROUND RAISED BY THE REVENUE. 11. THE NEXT ISSUE THAT CAME UP FOR OUR CONSIDERATI ON IS VALIDITY OF REOPENING OF ASSESSMENT U/S 147 OF THE ACT. THE RE VENUE HAS CHALLENGED THE ORDER OF LD.CIT(A) QUASHING RE-ASSES SMENT ORDER PASSED BY THE AO. SINCE WE HAVE DECIDED THE ISSUE INVOLVE D IN THIS APPEAL ON MERITS, THE LEGAL ISSUE CHALLENGED BY THE REVENUE O N THE ISSUE OF REOPENING OF ASSESSMENT BECOMES ACADEMIC IN NATURE, HENCE, THE SAME IS DISMISSED AS INFRUCTUOUS. 12. IN THE RESULT, APPEAL FILED BY THE REVENUE IN I TA NO.869/MUM/2016 IS DISMISSED. ITA NO.870/MUM/2016 14 ITA 869 & 870/MUM/2016 13. THE FACTS AND ISSUE INVOLVED IN THIS APPEAL IS IDENTICAL TO THE ISSUE INVOLVED IN ITA NO.869/MUM/2016. WE HAVE ALREADY D ECIDED THE ISSUE OF DEDUCTION CLAIMED U/S 80IB(10) IN THE LIGHT OF P ROVISIONS OF SECTION 80IB(10) AND HELD THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S 80IB(10) IN RESPECT OF HOUSING PROJECT DEVELOPED AT PAREL, MUMBAI. THE FINDING GIVEN BY US IN ITA NO.869/UM/2016 SHALL MUT ATIS MUTANDIS APPLY TO THIS APPEAL ALSO. THEREFORE, FOR THE REASONS RE CORDED IN THE PRECEDING PARAGRAPHS, WE ARE OF THE CONSIDERED VIEW THAT THE LD.CIT(A) WAS RIGHT IN DELETING ADDITION MADE BY THE AO TOWARDS DEDUCTI ON CLAIMED BY THE ASSESSEE U/S 80IB(10) OF THE ACT. HENCE, WE UPHOLD THE ORDER OF THE CIT(A). 13. IN THE RESULT APPEAL FILED BY THE REVENUE IN IT AT NO.870/MUM/2016 ISDISMISSED. 14. AS A RESULT, BOTH THE APPEALS FILED BY THE REVE NUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH JUNE, 2018. SD/- SD/- (AMARJIT SINGH) (G MANJUNATHA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT : 20 TH JUNE, 2018 PK/- COPY TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR /TRUE COPY/ BY ORDER SR.PS, ITAT, MUMBAI