DCIT CIT 15(3), V. ARCADE BHOOMI ENTERPRISES,

MA 133/MUM/2012

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1684 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-02-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 22-11-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 24-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

, ,, , , ,, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI , ! ' ' ' ' #' ' , ! $ $ $ $ BEFORE SHRI SANJAY ARORA, AM AND SHRI VIJAY PAL RAO , JM M .A. NO. 133/MUM/2012 ( % & % & % & % & ''& ''& ''& ''& / ASSESSMENT YEAR: 2006-07 ) (ARISING OUT OF ITA NO.366/MUM/2010) ASST. COMMISSIONER OF INCOME-TAX, 15(3), MUMBAI. % % % % / VS. M/S ARCADE BHOOMI ENTERPRISES, OPP. CHILDREN ACADEMY SCHOOL, ATMARAM SAWANT ROAD, ASHOK NAGAR, KANDIVLI (EAST), MUMBAI !( ./ PAN : AAAJA0533A ( () / ASSESSEE ) .. ( *+() / RESPONDENT ) () , - / ASSESSEE BY : SHRI RAVI PRAKASH *+() , - / RESPONDENT BY : SHRI VIJAY MEHTA %' , ./ / DATE OF HEARING : 07.02.2014 0' , ./ / DATE OF PRONOUNCEMENT : 07.02.2014 1 / O R D E R PER VIJAY PAL RAO, JM: THIS MISCELLANEOUS APPLICATION BY THE REVENUE IS D IRECTED AGAINST THE ORDER DATED 12.08.2012 BY THIS TRIBUNAL , WHEREBY THE APPEAL OF THE REVENUE INVOLVING ISSUE OF DEDUCTION 80IB(10) WAS DISMISSED. 2. WE HAVE HEARD THE LD. DR AS WELL AS LD. AR AND C AREFULLY PERUSED THE RELEVANT RECORD, THE LD. DR HAS SUBMITTED THAT THIS TRIBUNAL HAS 2 M.A. NO.133/MUM/2012 M/S. ARCADE BHOOMI ENTERPRISES DECIDED APPEAL BY FOLLOWING THE DECISION IN THE CAS E OF EMGEEN HOLDINGS PVT. LTD. REPORTED AS 47 SOT 98 MUMBAI, WH ERE AS THE FACT OF THE ASSESSEES CASE ARE DISTINGUISHABLE AND THEREFO RE THE SAID DECISION OF THE TRIBUNAL IS NOT APPLICABLE IN THE PRESENT CA SE. HE HAS FURTHER SUBMITTED THAT IN THE CASE OF ASSESSEE, A SURVEY WA S CONDUCTED AND DURING THE SURVEY THE PURCHASER OF THE FLATS IN HIS STATEMENT HAS MADE IT CLEAR THAT THE SMALLER UNITS WERE COMBINED BY AS SESSEE ITSELF AND THEREFORE THE AREA OF THE FLATS CONSTRUCTED BY THE ASSESSEE IS IN EXCESS OF THE STIPULATED LIMIT OF 1000 SQ. FTS. ON THE O THER HAND, THE LD. AR HAS SUBMITTED THAT THE FACTS IN THE CASE OF THE EMG EEN HOLDINGS PVT. LTD. ARE IDENTICAL TO THE FACTS OF THE ASSESSEE. H E HAS REFERRED THE ISSUES/GROUNDS RAISED AS WELL AS THE FACTS IN THE S AID CASE AND SUBMITTED THAT IN THE SAID CASE ALSO THERE WAS A SU RVEY CONDUCTED BY THE AO AND DURING THE SURVEY, IT WAS FOUND THAT THE ASSESSEE COMBINED SMALLER UNITS INTO ONE AND THEREBY THE AREA OF THE COMBINED UNIT EXCEEDS THE STIPULATED LIMITS OF 1000 SQ. FT. THE LD. AR HAS FURTHER SUBMITTED THAT IN THE SAID CASE THE TRIBUNAL HAS GI VEN THE FINDING THAT EVEN SELLING TWO UNITS TO ONE PURCHASER OR FAMILY M EMBERS OF THE PURCHASER WAS NOT BARRED IN THE EXISTING PROVISION OF SECTION 80IB(10) AND THEREFORE AMENDMENT PROVISION OF SECTION 80IB(1 0) ARE NOT APPLICABLE FOR THE ASSESSMENT YEAR UNDER CONSIDERAT ION. HE HAS SUPPORTED THE IMPUGNED ORDER OF THE TRIBUNAL. 3. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND THE RELEVANT RECORD, WE FIND THAT THE FACTS OF THE CASE ARE SIMILAR/IDEN TICAL TO THE FACTS OF EMGEEN HOLDINGS PVT. LTD. THE DECISION IN THE SAID CASE HAS BEEN FOLLOWED BY THIS TRIBUNAL IN THE CASE BEFORE US. W E FIND THAT THE TRIBUNAL HAS CONSIDERED THE AMENDMENT IN THE PROVIS ION OF SECTION 80IB(10) W.E.F 1 ST APRIL 2010 THEREBY A RESTRICTION HAS BEEN PLACED F OR ALLOTMENT OF MORE THAN ONE UNIT IN THE HOUSING PROJ ECT TO THE SAME PERSON OR THE FAMILY MEMBERS. THEREFORE, IT BECOME S IRRELEVANT WHETHER THE UNITS ARE CLUBBED BY THE PURCHASER SUBS EQUENT TO THE 3 M.A. NO.133/MUM/2012 M/S. ARCADE BHOOMI ENTERPRISES TRANSFER OR BY THE ASSESSEE ON BEHEST OF THE PURCHA SER. HENCE, WE DO NOT FIND ANY SUBSTANCE OR MERIT IN THE MISCELLANEOU S APPLICATION OF THE REVENUE. ACCORDINGLY, THE SAME IS DISMISSED. 4. IN THE RESULT, MISCELLANEOUS APPLICATION OF REVE NUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COU RT ON 07/02/2014 . 1 , 0' 2 % 07/02/2014 , , 3 SD/- ( SANJAY ARORA ) SD/- ( VIJAY PAL RAO) ! / ACCOUNTANT MEMBER ! / JUDICIAL MEMBER MUMBAI; 2 % /DATED : 07 /02/ 2014 F{X~{T? P.S. 1 , *.# 4#'. / COPY OF THE ORDER FORWARDED TO : (1) % &5. / THE ASSESSEE; (2) !' / THE REVENUE; (3) 6 ( ) / THE CIT(A); (4) 6 / THE CIT, MUMBAI CITY CONCERNED; (5) #'73 *.% , , / THE DR, ITAT, MUMBAI; (6) 38& 9 / GUARD FILE. +#. *. / TRUE COPY 1% / BY ORDER : / ; / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI