UMIYA ENTERPRISES, MUMBAI V. ITO WD 3(3), MUMBAI

ITA 983/MUM/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70793 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 07-08-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 13-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: HARI S RAHEJA
• Keywords: Opportunity of being heard; Reassessment proceedings
• Section: 80IB

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F, MUMBAI . .. . . . . . ! ! ! !, ,, , ' #$ ' #$ ' #$ ' #$ , , ,, , . .. . . . . . $ $ $ $ , % #$ % #$ % #$ % #$ & & & & BEFORE SHRI R.K.GUPTA JM AND SHRI R.S.SYAL, AM ITA NO. 8533 /MUM/2010 A.Y. 2006-07 ITA NO. 8534 /MUM/2010 A.Y. 2007-08 ITA NO. 983 /MUM/2012 A.Y. 2008-09 M/S. UMIYA ENTERPRISES, 112, VASUDEV LAXMI BLDG., BEHIND TILAK TALKIES, ABOVE SATKAR HOTEL, DOMBIVLI(E) MUMBAI-421301 PAN-AABFU0185B ' ' ' ' / VS. INCOME-TAX OFFICER, WARD -3(3), RANI MANSION, MURBAD ROAD, KALYAN-421301 ( )* / // / ASSESSEE) ( +,)* / RESPONDENT) )* - -- - . . . . / ASSESSEE BY : SHRI HARI S. RAHEJA +,)* - . - . - . - . / REVENUE BY : SHRI ANURAG SHRIVASTAVA ' - /% / / / / DATE OF HEARING :07.08.2013 012 - /% / DATE OF PRONOUNCEMENT : 14.08.2013 #3 #3 #3 #3 / / / / O R D E R PER R.S.SYAL ( AM) : THESE THREE APPEALS BY THE ASSESSEE RELATE TO THE ASSESSMENT YEARS 2006-07, 2007-08 AND 2008-09. SIN CE SOME OF THE ISSUES RAISED IN THIS BATCH OF APPEALS ARE C OMMON, WE ARE ITA NO. 8533,8534/MUM/2010 & ITA NO. 983/MUM/12 M/S. UMIYA ENTERPRISES . 2 THEREFORE, PROCEEDING TO DISPOSE THEM TOGETHER BY T HIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. A.Y.-2006-07 2. FIRST GROUND OF THE APPEAL IS AGAINST THE DENIAL OF DEDUCTION U/S 80IB (10) AMOUNTING TO RS.14,04,487/- 3. BRIEFLY STATED THE FACTS OF THIS GROUND ARE THAT THE ASSESSEE CLAIMED DEDUCTION U/S 80IB (10). THE ASSESSING OFF ICER DID NOT ALLOW THE DEDUCTION AS IN HIS OPINION THE PHASE-I A ND PHASE-II OF THE PROJECT CONSTITUTED A SINGLE PROJECT AND AS SUC H THE NECESSARY CONDITION WAS NOT SATISFIED. THE LD. CIT(A) AFFIRM ED THE AOS VIEW BY RELYING ON THE ORDER PASSED BY HIS PREDECES SOR FOR THE ASSESSMENT YEAR 2004-05. 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD, WE FIND THAT THE CASE FOR THE ASSESSMENT YEAR 2004-05 CAME UP FOR CONSIDERATION B EFORE THE TRIBUNAL. VIDE ITS ORDER DATED 08.02.2010 IN ITA NO.2750/MUM/2009, THE TRIBUNAL HAS HELD THAT PHASE- I AND PHASE-II SHOULD BE CONSIDERED AS SEPARATE PROJECTS. RESULTANTLY, THE CLAIM OF DEDUCTION U/S 80IB (10) WAS ALLOWED. IT IS FURTHER NOTICED THAT SIMILAR VIEW HAS BEEN TAKEN BY THE TRI BUNAL IN ITS ORDER FOR THE A.Y. 2005-06. IN VIEW OF THE DECISIO N TAKEN BY THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2004-05, W HICH ITA NO. 8533,8534/MUM/2010 & ITA NO. 983/MUM/12 M/S. UMIYA ENTERPRISES . 3 CONSTITUTES THE FOUNDATION FOR THE IMPUGNED ORDER, WE HOLD THAT BOTH THE PHASES ARE TO BE CONSIDERED AS SEPARATE PR OJECTS AND ACCORDINGLY THE CLAIM FOR DEDUCTION U/S 80IB (10) B ECOMES ADMISSIBLE. IT IS NOT DISPUTED BY THE LD. DR THAT T HE CLAIM FOR DEDUCTION IS INADMISSIBLE FOR ANY OTHER REASON AS W ELL. RESPECTFULLY FOLLOWING THE PRECEDENT, WE OVERTURN T HE IMPUGNED ORDER ON THIS ISSUE AND ACCEPT THE ASSESSEES CLAIM . THIS GROUND IS, THEREFORE, ALLOWED. 5. SECOND GROUND ABOUT THE CHARGING OF INTEREST U/S 234-B IS CONSEQUENTIAL AND HENCE ALLOWED. 6. IN THE RESULT, THE APPEAL IS ALLOWED. A.Y.-2007-08 7. NO ARGUMENT WAS ADVANCED BY THE LD. AR AGAINST T HE INITIATION OF REASSESSMENT PROCEEDINGS WHICH FORMS THE SUBJECT MATTER OF GROUND NO. 1. THE SAME IS, THEREFORE, DIS MISSED. 8. GROUND NO.2 OF THE APPEAL IS AGAINST THE DENIAL OF DEDUCTION U/S 80IB (10). BOTH THE SIDES IN AGREEME NT THAT THE FACTS AND CIRCUMSTANCES OF THE INSTANT GROUND ARE MUTATIS MUTANDIS SIMILAR TO THOSE OF THE GROUND TAKEN FOR THE A.Y. 2006- 07. IN VIEW OF OUR DECISION ON SUCH ISSUE TAKEN HER EINABOVE IN RELATION TO THE A.Y. 2006-07, WE OVERTURN THE IMPUG NED ORDER ITA NO. 8533,8534/MUM/2010 & ITA NO. 983/MUM/12 M/S. UMIYA ENTERPRISES . 4 ON THIS ISSUE AND ORDER FOR THE GRANT OF DEDUCTION U/S 80IB (10). THIS GROUND IS ALLOWED. 9. IN THE RESULT, APPEAL IS PARTLY ALLOWED. A.Y.-2008-09 10. THE ONLY ISSUE IS ABOUT THE DENIAL OF DEDUCTION U/S 80IB (10) IN RESPECT OF PROFIT EARNED FROM THE BUILDING PROJECTS OF A- 3, A-4 AND B-2 OF PHASE-I OF UMIYA COMPLEX. 11. AT THE VERY OUTSET, THE LD. COUNSEL FOR THE AS SESSEE CONTENDED THAT THE HONBLE BOMBAY HIGH COURT IN CIT VS. M/S VANDANA PROPERTIES HAS HELD VIDE ITS JUDGMENT DATED 28.03.2012 IN (ITA NO. 3633/2009) THAT THERE CAN BE A NUMBER OF HOUSING PROJECTS AND SO LONG AS THOSE HOUSING PR OJECTS ARE APPROVED BY THE LOCAL AUTHORITY AND FULFILL THE CON DITIONS SET OUT U/S 80IB (10), THE DEDUCTION THERE UNDER CANNOT BE DENIED TO ALL THOSE HOUSING PROJECTS. IN VIEW OF THE FACT THAT T HIS JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT HAS BEEN REND ERED AFTER THE PASSING OF THE IMPUGNED ORDER AND THE FACTS OF THE CASE NEED TO BE TESTED ON ITS TOUCHSTONE, WE SET-ASIDE THE IM PUGNED ORDER AND REMIT THE MATTER TO THE FILE OF THE A.O . FOR DECIDING THIS ISSUE FOR AFRESH AS PER LAW IN CONFORMITY WITH THE JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT AFTER ALLOWIN G A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. ITA NO. 8533,8534/MUM/2010 & ITA NO. 983/MUM/12 M/S. UMIYA ENTERPRISES . 5 12. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIS TICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH AUGUST 2013 #3 - 012 % 4 5#'6 14 TH AUGUST .2013 1 - SD/- SD/- (R.K.GUPTA) (R.S.SYAL) ' #$ ' #$ ' #$ ' #$ / JUDICIAL MEMBER % #$ % #$ % #$ % #$ / ACCOUNTANT MEMBER / MUMBAI ; 5#' / DATED : 14 TH AUGUST , 2013 . SHEKHAR. P.S. #3 - +'/7 #3 - +'/7 #3 - +'/7 #3 - +'/78 982/ 8 982/ 8 982/ 8 982// COPY OF THE ORDER FORWARDED TO : 1. )* / THE APPELLANT 2. +,)* / THE RESPONDENT. 3. : ( ) / THE CIT , MUMBAI. 4. : / CIT(A)- , MUMBAI 5. 8= +'/'' , , / DR, ITAT, MUMBAI 6. > / GUARD FILE. #3' #3' #3' #3' / BY ORDER, ,8/ +'/ //TRUE COPY// ? ?? ?/ // /@ A @ A @ A @ A ( DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI