Income TAX OFFICER WARD 2(4), KALYAN V. UNITY DEVELOPERS, MUMBAI

MA 142/MUM/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 7073 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-08-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 27-02-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJEEV GUBGOTRA
• Keywords: Rectification of order

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL SM C BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) M.A. NO. 142/MUM/2018 ARISING OUT OF I.T.A. NO. 255 /MUM/ 2017 (ASSESSMENT YEAR 20 12 - 13 ) ITO WARD 2(4) 2 ND FLOOR MOHAN PLAZA KHADAKPADA, WAYALE KALYAN V S . M/S. UNITY DEVELOPERS OFFICE NO. 1, MITTAL CHS NEAR CHINAR HOTEL KULGAON, BADL APUR EAST MAHARASHTRA - 421 503. PAN : AACFU2893H ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI KUMAR KALE DEPARTMENT BY SHRI RAJEEV GUBGOTRA DATE OF HEARING 31 . 8 . 201 8 DATE OF PRONOUNCEMENT 31 .8 . 201 8 O R D E R THE REVENUE HAS FILED THIS MISCELLANEOUS APPLICATION SEEKING RECTIFICATION OF MISTAKE APPARENT FROM RECORD IN THE ORDER DATED 23 - 08 - 2017 PASSED IN THE INCOME TAX APPEAL REFERRED ABOVE. 2. THE LD D.R SUBMITTED THAT THE ISSUE URGED BY THE REVENUE RELATES TO THE DEDUCTION ALLOWABLE U/S 80IB(10) OF THE ACT. SOME OF THE UNITS CONSTRUCTED BY THE ASSESSEE WERE NOT COMPLYING WITH THE CONDITIONS PRESCRIBED U/S 80IB(10) OF THE ACT. THE LD CIT(A) HAS ALLOWED PROPORTIONA TE DEDUCTION UNDER SECTION 80IB(10) IN RESPECT OF ELIGIBLE UNITS BY FOLLOWING THE DECISION RENDERED BY HONBLE MADRAS HIGH COURT IN THE CASE OF VISWAS PROMOTERS P LTD (ORDER DATED 2.1.2012). THE ASSESSEE HAD PLACED RELIANCE ON THE DECISION RENDERED BY HON BLE BOMBAY HIGH COURT IN THE CASE OF BRAHMA ASSOCIATES (333 ITR 289) ALSO, BUT LD CIT(A) HELD THAT THE SAID DECISION IS NOT APPLICABLE TO THE ISSUE UNDER CONSIDERATION. 2 3. HOWEVER, THE TRIBUNAL HAS OBSERVED IN PARAGRAPH 5 OF THE ORDER THAT THE LD CIT(A ) HAS FOLLOWED THE DECISION RENDERED IN THE CASE OF BRAHMA ASSOCIATES, WHICH IS NOT CORRECT AND THE SAME CONSTITUTES MISTAKE APPARENT FROM RECORD. ACCORDINGLY THE LD D.R SUBMITTED THAT THE RELEVANT OBSERVATION OF THE TRIBUNAL MAY BE OMITTED. 4. THE LD A.R DID NOT OBJECT TO THE PLEA PUT FORTH BY LD D.R. 5. I HEARD THE PARTIES AND PERUSED THE RECORD. I FIND MERIT IN THE SUBMISSIONS MADE BY LD D.R. ACCORDINGLY, PARAGRAPH 5 OF THE IMPUGNED ORDER IS SUBSTITUTED WITH THE FOLLOWING PARAGRAPH: - 5. I N OTICED THAT THE LD CIT(A) HAS FOLLOWED THE DECISION RENDERED BY HONBLE MADRAS HIGH COURT IN THE CASE OF VISWAS PROMOTERS PVT LTD VS. ACIT (ORDER DATED 2.1.2012) IN DECIDING THIS ISSUE. HENCE I DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER PASSED BY THE LEARNED CIT(A) ON THIS ISSUE. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE REVENUE IS ALLOWED. PRONOUNCED ACCORDINGLY ON 31.08.2018. SD/ - (B.R.BASKARAN) ACCOUNTANT MEMBER MUMBAI ; DATED : 31 / 8 / 20 1 8 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( SENIOR P RIVATE S ECRETARY ) PS ITAT, MUMBAI