EKTA SANKALP DEVELOPERS, V. ASST CIT 15(2),

MA 156/MUM/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 3868 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2010-2011
• Appeal Filed On: 15-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S C TIWARI
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI , , BEFORE SHRI JOGINDER SINGH , JM AND SHRI SANJAY ARORA, AM . / MA NO. 156/MUM/2015 (ARISING OUT OF ITA NO. 4901/MUM/2013 ) ( / ASSESSMENT YEAR: 2010 - 11 ) EKTA SANKALP DEVELOPERS 401, HALLMARK BUSINESS PLAZA, NEAR GURUNANAK HOSPITAL, KALANAGAR, BANDRA (E), MUMBAI - 400 051 / VS. ASST. CIT - 15(2), MATRU MAN DIR, ROOM NO. 113, GRANT ROAD (W), MUMBAI - 400 007 PAN/GIR NO. AAAAE 2019 E ( APPLICANT ) : ( RESPONDENT ) APPLICANT BY : SHRI S. C. TIWARI RESPONDENT BY : SHRI ABHINAY KUMBHAR / DATE OF HEARING : 30.1 1 .2015 / DATE OF PRONOUNCEMENT : 27 .01.2016 / O R D E R PER SANJAY ARORA, A. M.: THIS IS A MISCELLANEOUS PETITION BY THE ASSESSEE AGAINST THE ORDER U/S. 254(1) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) BY THE TRIBUNAL DATED 10.4.2015 DECIDING IT S APPEAL FOR ASSESSMENT YEAR (A.Y.) 2010 - 11 . 2. THE ASSESSEE - APPLICANT, PER ITS INSTANT APPLICATION, SEEKS A RECALL OF THE IMPUGNED ORDER FOR BEING DECIDED AFRESH AFTE R HEARING THE PARTIES. BESIDES AND, IN ANY CASE, IT STATES OF THERE BEING A CONTRADICTIO N BETWEEN THE FINDINGS AND THE DIRECTION GIVEN BY THE TRIBUNAL PER THE IMPUGNED ORDER . 2 MA NO. 156/MUM/2015 (A.Y. 2010 - 11 ) EKTA SANKALP DEVELOPERS VS. ASST. CIT 3. THE ISSUE ARISING BEFORE THE TRIBUNAL , AS DISCERNED, WAS THE ELIGIBILITY OF DEDUCTION U/S. 80 - IB(10) OF THE ASSESSEES HOUSING PROJECT EKTA MEDOWS. THE SAME WAS D ENIED BY THE REVENUE DUE TO VIOLATION OF THE CONDITION OF SECTION 80 - IB(10 )(C ) IN - AS - MUCH AS SOME OF THE RESIDENTIAL UNITS COMPR I SING THE SAID PROJECT ADMITTEDLY EX CEEDED THE THRESHOLD LIMIT AS TO THE BUILT - UP AREA STIPULATED THEREIN. THE CLAIM FOR DEDUCTI ON WAS, ACCORDINGLY, DENIED, EVEN AS THE ASSESSEE RESTRICTED THE SAME TO THE PROFIT ATTRIBUTABLE TO THE RESIDENTIAL UNITS SATISFYING THE CONDITION OF SECTION 80 - IB(10 )(C ). THE MAT T E R TRAVELLED UP TO THE TRIBUNAL FOR THE PRECEDING TWO YEARS AS WELL , I.E., F OR A.Y S . 2008 - 09 AND 2009 - 10 (IN ITA NOS. 3316 AND 3318/MUM/2012 DATED 12.9.2014). IT FOUND THAT THE RELIANCE ON THE ALLOWANCE OF PROPORTIONATE DEDUCTION U/S. 80 - IB(10), BY THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR A.Y. 2007 - 08 (IN ITA NO. 3276/MUM/2010 DATED 28.9.2012), FOLLOWING DECISIONS , AS IN THE CASE OF BENGAL AMBUJA HOUSING DEVELOPMENT LTD. (IN ITA NO. 1735/KOL/2015 DATED 24.03.2006) AND SR EEVA T S A REAL ESTATE S PVT. LTD. VS. ITO [2011] 9 ITR (TRIB) 808 (CHENNAI) (TM), AS NOT CORRECT. THIS IS AS NONE OF THE DECISIONS RELIED UPON , CONSIDER ED THE DECISION BY THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. BRAHMA ASSOCIATES [2011] 333 ITR 289 (BOM) BINDING ON IT . PER THE SAME, THE HONBLE COURT HAD CLEARLY HELD THAT IT IS THE ENTIRE PROJECT WHICH COULD BE, UPON SATISFACTION OF ALL THE CONDITIONS PRESCRIBED IN THE PROVISION, CONSIDERED AS AN ELIGIBLE PROJECT, ALSO QU OTING THERE - FROM (REFER PARAS 4.3 AND 5 OF THE SAID ORDER). SO, HOWEVER, IT WAS OF THE VIEW THAT THE CONDITION OF SECTION 80 - IB(1 0 )(C ) WAS NOT WITH RESPECT TO THE HOUSING PROJECT PER SE , BUT QUA THE RESIDENTIAL UNITS COMPRISING IT. AS SUCH, EVERY INDIVIDUAL RESIDENTIAL UNIT THAT SATISFIES THE CONDITION OF SECTION 80 - IB(10 )(C ) WOULD STAND TO BE REGARDED AS A PART OF THE ELIGIBLE PROJ ECT, I.E., ASSUMING THE SATISFACTION OF ALL THE OTHER CONDITIONS OF S. 80 - IB(10) BY IT , WHICH ARE WITH REGARD TO THE HOUSING PROJECT, AND THE PROFIT ATTRIBUTABLE THERETO, DEDUCTI BLE U/S. 80 - IB(10). ACCORDINGLY, IN EFFECT, THE ASSESSEES CLAIM FOR DEDUCTION U/S. 80 - IB(10) ON PROPORTIONATE BASIS, AS FOR A.Y. 2007 - 08, WAS ALLOWED. 3 MA NO. 156/MUM/2015 (A.Y. 2010 - 11 ) EKTA SANKALP DEVELOPERS VS. ASST. CIT IT IS THIS UNDER THIS BACK - GROUND AND FACTUAL MATRIX THAT THE TRIBUNAL HEARD THE REVENUES APPEAL FOR THE CURRENT YEAR, WITH THE PARTIES CONCEDING IT TO BE ING COVERED BY THE ORDERS B Y THE TRIBUNAL FOR THE EARLIER YEARS. HOWEVER, WHILE DECIDING THE APPEAL, THE TRIBUNAL FOUND THAT THERE WAS AN AMENDMENT IN LAW W.E.F THE CURRENT YEAR, I.E., BY WAY OF INS ER TION OF CLAUSE S (E) AND (F) TO SECTION 80 - IB(10) , SO THAT THE CONDITION S OF THESE C LAUSES WOULD ALSO HAVE TO BE CONSIDERED FOR THEIR SATISFACTION ; IT BEING TRITE, AS ALSO CLARIFIED BY THE HONBLE COURT IN BRAHMA ASSOCIATES (SUPRA), THAT IT IS THE CUMULATIVE SATISFACTION OF ALL THE CONDITIONS OF THE PROVISION THAT WOULD VALIDATE THE CLAIM FOR DEDUCTION . THE SAME, IT WAS FOUND BY THE TRIBUNAL , AS NOT TOWARD THE HOUSING PROJECT PER SE , BUT THE MANNER OF ALLOTMENT OF THE RESIDENTIAL UNITS COMPRISING IT, FURTHER OBSERVING THAT THIS WAS IN VIEW OF THE CONDITIONS OF THE PROJECT AS PRESCRIBED IN OTHER CLAUSES BEING SOUGHT TO BE CIRCUMVENTED THROUGH ALLOTMENT , THAT HAD NECESSITATED THE SAME . FURTHER, THE FACT OF MULTIPLE ALLOTMENT, IMPUGNED BY THE REVENUE ON ANOTHER COUNT, C A ME TO ITS NOTICE, AND WHICH WAS IN VIEW OF THE AMENDED LAW AS TO ALLOTMEN T , A RELEVANT FACT, IMP ING ING ON THE ELIGIBILITY OF THE HOUSING PROJECT FOR THE RELEVANT YEAR. THE SAID ISSUE, HOWEVER, HAVING BEEN NOT EXAMINED AT ANY STAGE, INCLUDING BEFORE IT, IT WAS CONSIDERED PROPER BY IT TO RESTORE THE MATTER FOR ADJUDICATION BY THE FIRST APPELLATE AUTHORITY. I T IS THIS THAT STANDS CHALLENGED FOR WANT OF COMPETENCE. 4. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. 4.1 THE ISSUE POINTED OUT BY THE TRIBUNAL IS , FIRSTLY , A LEGAL ISSUE, SO THAT IT COULD BE RAISED BEF ORE THE TRIBUNAL FOR THE FIRST TIME , I.E., THERE IS NO QUESTION OF ITS COMPETENCE IN DECIDING A LEGAL ISSUE, EVEN WHERE BEING SO FOR THE FIRST TIME . THERE IS AS SUCH NO MERIT IN THE PLEA THAT OF THE SAME HAVING NOT BEEN CONSIDERED AT ANY STAGE PRIOR TO THE TRIBUNAL. TRUE, THE MATTER WAS NOT ARGUED BEFORE THE TRIBUNAL AS WELL. BUT , THEN , THAT IS PRECISELY WHY IT DEEMED IT PROPER NOT TO ADJUDICATE THE SAME, AND RESTORE IT BACK TO THE FILE OF THE FIRST APPELLATE AUTHORITY. THERE HAS BEEN, THUS, NO VIOLATION OF ANY PRINCIPLE OF NATURAL JUSTICE, AS THE SAME SHALL STAND TO BE ADJUDICATED FOR THE FIRST TIME B Y THE 4 MA NO. 156/MUM/2015 (A.Y. 2010 - 11 ) EKTA SANKALP DEVELOPERS VS. ASST. CIT FIRST APPELLATE AUTHORITY ONLY AFTER HEARING THE PARTIES BEFORE HIM IN THE MATTER. THE TRIBUNAL IS, IN FACT, NOT BOUND BY THE CASE SET UP BY THE PARTIES BEFORE IT. IT IS THE CORRECT LEGAL POSITION THAT IS RELEVANT, AND NOT THE VIEW THAT THE PARTIES MAY TAKE OF THEIR RIGHTS IN THE MATTER (REFER : CIT V. C. PARAKH & CO. (INDIA ) LTD . [ 1956 ] 29 ITR 661 (SC); KEDARNATH JUTE MFG. CO. LTD. V. CIT [ 1971 ] 82 ITR 36 3 (SC ) ). IT IS WELL WITHIN THE COMPETENCE OF THE TRIBUNAL TO FRAME AN ISSUE WHICH IT CONSIDERS AS ARISING IN THE MATTERS BEFORE IT. REFERENCE IN THIS REGARD MAY BE MADE TO THE DECISIONS IN THE CASE OF HUKUMCHAND MILLS LTD. VS. CIT [1 967 ] 63 ITR 232 (SC) ; C IT VS. S. NELLIAPPAN [1967] 66 ITR 722 (SC); CIT VS. ASSAM TRAVELS SHIPPING SERVICE [1 993 ] 199 ITR 1 (SC) ; AND MARTIN BURN LTD. VS. CIT [ 1993 ] 199 ITR 606 (SC), TO NAME SOME. I N FACT, THE TRIBUNAL , IN THE IMPUGNED ORDER, ITSELF ADVERTS TO AND RELIES ON THE DECISION IN THE CASE OF AHMEDABAD ELECTRICITY CO. LTD. VS. CIT [1993] 199 ITR 351 (BOM) (FB) , ELUCIDATING ON THE SCOPE OF THE POWERS OF THE TRIBUNAL. THE SAID RELIANCE HAS NOT BEEN IMPUGNED PER THE INSTANT APPLICATION. WHY, THERE IS NO ESTOPPEL AGAINST LA W, WHICH IS BINDING ON ALL , AND WHICH IS WHAT THE TRIBUNAL ESSENTIALLY SEEKS TO UPHOLD WHEN IT REMANDS THE MAT T ER FOR EXAMINATION AND ADJUDICATION. THE ASSESSEES PLEA IS WITHOUT MERIT. 4.2 AS REGARDS THE CONTENTION OF A CONTRADICTION BETWEEN THE TRIBUNA L S FINDINGS AND CONCLUSION , WE , AGAIN , DO NOT CONSIDER IT AS AN APPROPRIATE STATEMENT . FIRSTLY, IT IS THE CONCLUSION THAT SHALL PREVAIL. WHAT IS STATED AS THE FINDING BY THE TRIBUNAL, IS THE BASIS ON WHICH IT CONSIDERS IT RELEVANT THAT THE MATTER BE CON SIDERED AFRESH IN LIGHT OF THE OBTAINING FACTS AND THE AMENDED LAW. WE MAY CLARIFY THAT THE TRIBUNAL CANNOT AND DOES NOT IN ANY MANNER FO REC LOSE THE ISSUE , BUT ONLY HIGHLIGHTS THE CONSEQUENTIALITY OF THE AMENDED LAW BEING APPLICABLE FOR THE RELEVANT YEAR. THE SAME, WE MAY ADD , MAY THUS NOT BE CONS TRUED AS DECIDING THE ISSUE ONE WAY OR THE OTHER. SUBJECT TO THIS CLARIFICATION, SO AS TO ENSURE THAT NO PREJUDICE IS CAUSE D TO EITHER SIDE, WE FIND LITTLE MERIT IN THE ASSESSEES SAID PLEA . 4.3 WE DECIDE ACCORDI NGLY. 5 MA NO. 156/MUM/2015 (A.Y. 2010 - 11 ) EKTA SANKALP DEVELOPERS VS. ASST. CIT 5. IN THE RESULT, THE ASSESSEES PETITION IS DISPOSED OF IN THE AFORE - SAID TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON JANUARY 27 TH , 201 6 SD/ - SD/ - ( JOGINDER SINGH ) (S ANJAY ARORA) / J UDICIAL MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 27 . 0 1 .201 6 . . ./ ROSHANI , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APP LIC ANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI