M/S. HIMALI VIJAY BUILDERS & DEVELOPERS , MUMBAI V. ACIT, CENTRAL CIR-2, THANE

MA 355/MUM/2023

AI Insights

M/s. Himali Vijay Builders & Developers filed miscellaneous applications challenging the Tribunal's earlier order which upheld the disallowance of a deduction claimed under section 80IB(10) of the Income Tax Act. The disallowance was based on the finding that the assessee did not exclusively carry out the housing project 'Mangeshi Srushti II', as required by the section. The Tribunal had previously found that the project was not carried out by the assessee but by Shri Mangesh D. Gaikar, as per the development agreement. The assessee argued that their claim had been consistently allowed in previous years and cited several judicial precedents. However, the Tribunal dismissed these applications, stating that the assessee failed to provide evidence that the facts in the current year were identical to those in previous years.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 299521 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-11-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 17-08-2023
• Assessment Year: 2017-2018
• Appeal Filed On: 09-05-2023
• Other Referred Cases: Asst. CIT vs. Saurashtra Kutch Stock Exchange Ltd. [2008] 173 Taxman 322 (SC), CIT vs. Paul Brothers [1995] 216 ITR 548 (Bom), Simple Food Products (P.) Ltd. vs. CIT, Nagpur [2017] 84 taxmann.com 239 (Bom), CIT vs. Western Outdoor Interactive (P.) Ltd. [2012] 25 taxmann.com 340 (Bom.), Sony Pictures Networks India (P) Ltd. vs. ITAT & Ors. [2019] 411 ITR 447 (Bom), CIT vs. Bharat Bijlee Limited 2006 (198) ELT 489 (SC), Rasiklal Manichchand Dhariwal & Anr. Vs. M/s. M. S.S. Food Products (Civil Appeal No. 10112 of 2011 vide order dated 25.11.2011)
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PRAKASH KISHINCHANDANI
• Keywords: Search and seizure; Rule of consistency
• Section: 132; 153A; 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “H” BENCH, MUMBAI BEFORE SHRI OM PRAKASH KANT, AM AND MS. KAVITHA RAJAGOPAL, JM M A N o s . 3 55 & 3 5 6/ M u m/ 20 2 3 (A ri s i n g ou t o f IT A N os. 17 55 & 1 7 5 6/ M u m/ 20 22 ) ( A s s e ss me nt Y ea rs : 2017 -1 8 & 20 1 8 -1 9 ) M/s. Himali Vijay Builders & Developers Himali Vijay Builders And A 5 Ground Floor, Opp. Chatri Bunglow, Mangeshi Sahara, Chikanaghar, Kalyan-421 301 V s. ACIT, Central Circle-2 6 th Floor, A Wing, Asher I T Park, Road No.16Z, Wagle Indl. Estate, Thane-400 604 P A N / G I R N o. AA G F H 1062 B (Appellant) : (Respondent) Assessee by : Shri Dharan Gandhi & Shri Kiran Kapadia Revenue by : Shri Prakash Kishinchandani D a te o f H e a r i n g : 18.08.2023 D ate of P ro n ou n ce me n t : 06.11.2023 O R D E R Per Kavitha Rajagopal, J M: These Miscellaneous Applications are filed by the assessee/applicant, challenging the order of the Tribunal dated 12.12.2022. 2. The assessee/applicant had filed the present Miscellaneous Applications on the ground that there is mistake apparent from the record in the order of the Tribunal on various grounds. 2 M A N o s . 3 5 5 & 3 5 6 / M u m / 2 0 2 3 ( A . Y s . 2 0 1 7 - 1 8 & 2 0 1 8 - 1 9 ) M/s. Himali Vijay Builders & Developers vs. ACIT 3. The brief facts are that the assessee claims to be a partnership firm and has developed project by name “Mangeshi Srushti II” for which the assessee had claimed deduction u/s. 80IB(10) of the Act on the profits earned out of the said project. The assessee filed its return of income dated 31.10.2017, declaring total income of Rs.Nil. Pursuant to a search and seizure operation u/s. 132 of the Act carried out at the business premises as well as the residential premises of Shri Mangesh D. Gaikar and Shri Umesh D. Tanna group of cases including the assessee company along with the other individual/business associates dated 25.10.2017, certain incriminating documents were found and seized. The A.O. vide order dated 30.12.2019 passed the assessment order u/s. 143(3) r.w.s. 153A of the Act, declaring total income of Rs.40,91,454/- by making disallowance of deduction claimed u/s. 80IB(10) of the Act and the said addition/disallowance was upheld by the ld. CIT(A). 4. In an appeal preferred by the assessee, the Tribunal vide order dated 12.12.2022 upheld the addition made by the lower authorities on various grounds. The assessee/applicant has filed the present MA to recall the said order of the Tribunal. 5. The learned Authorised Representative ('ld. AR' for short) contended that the Tribunal has not considered the submissions made by the assessee to substantiate its claim of section 80IB(10). The ld. AR further stated that since the said claim was allowed in the earlier years, the tribunal failed to considered the principle of consistency. Further, the ld. AR stated that the Tribunal has not considered the fact that the profit of the said projects was taxed in the hands of the assessee company and that the A.O. in the earlier 3 M A N o s . 3 5 5 & 3 5 6 / M u m / 2 0 2 3 ( A . Y s . 2 0 1 7 - 1 8 & 2 0 1 8 - 1 9 ) M/s. Himali Vijay Builders & Developers vs. ACIT years has considered the assessee to be a builder and developer as opposed to the view taken by the A.O. in the year under consideration as merely a ‘contractor’. The ld. AR relied on the following decisions: 1. Asst. CIT vs. Saurashtra Kutch Stock Exchange Ltd. [2008] 173 Taxman 322 (SC) 2. CIT vs. Paul Brothers [1995] 216 ITR 548 (Bom) 3. Simple Food Products (P.) Ltd. vs. CIT, Nagpur [2017] 84 taxmann.com 239 (Bom) 4. CIT vs. Western Outdoor Interactive (P.) Ltd. [2012] 25 taxmann.com 340 (Bom.) 5. Sony Pictures Networks India (P) Ltd. vs. ITAT & Ors. [2019] 411 ITR 447 (Bom) 6. CIT vs. Bharat Bijlee Limited 2006 (198) ELT 489 (SC) 7. Rasiklal Manichchand Dhariwal & Anr. Vs. M/s. M. S.S. Food Products (Civil Appeal No. 10112 of 2011 vide order dated 25.11.2011) 6. The ld. DR, on the other hand, controverted the said facts and stated that there was no mistake apparent on record in the order of the Tribunal and prayed that the MA be dismissed. 7. We have heard the rival submissions and perused the materials available on record. It is observed that the Tribunal has disallowed the claim of the assessee u/s. 80IB(10) of the Act for the reason that the assessee has failed to substantiate by documentary evidence that it had carried out the housing project exclusively and not by Shri Mangesh D. Gaikar who according to the development agreement dated 05.03.2011 was Developer No. 2. The Tribunal has also perused the documents furnished by the assessee and had come to a conclusion that the said project was not carried out by the assessee but by Shri Mangesh D. Gaikar as per the recitals of the joint venture agreement. The ld. AR had relied upon various decision to emphasize the proposition that if the claim of the assessee was allowed in the earlier years, the same has to be followed in the 4 M A N o s . 3 5 5 & 3 5 6 / M u m / 2 0 2 3 ( A . Y s . 2 0 1 7 - 1 8 & 2 0 1 8 - 1 9 ) M/s. Himali Vijay Builders & Developers vs. ACIT subsequent years as a matter of consistency when there are no change in facts and circumstances. In the present case in hand, the assessee has not furnished any evidence to show that the facts of the earlier years are identical to the year under consideration also and further we are not in agreement with the contention of the ld. AR that following the earlier orders, the claim of the assessee should be allowed in the impugned year also. In this case, the assessee has failed to prove by documentary evidence that it had carried out the said project and that the risk and reward was upon the assessee as developer. The Tribunal has considered all the submissions made by the assessee in the appellate proceeding and had given a detailed finding as to why the said claim was not allowed to the assessee in this year. The decisions relied upon by the ld. AR are distinguishable on facts and are not applicable in the present case in hand. We, therefore, find no merit in the submission of the assessee/applicant as there is no mistake apparent in the order of the Tribunal. 8. In the result, the miscellaneous applications filed by the assessee are dismissed. Order pronounced in the open court on 06.11.2023. Sd/- Sd/- (O. P. Kant) (Kavitha Rajagopal) Accountant Member Judicial Member Mumbai; Dated : 06.11.2023 Roshani , Sr. PS 5 M A N o s . 3 5 5 & 3 5 6 / M u m / 2 0 2 3 ( A . Y s . 2 0 1 7 - 1 8 & 2 0 1 8 - 1 9 ) M/s. Himali Vijay Builders & Developers vs. ACIT Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. CIT - concerned 4. DR, ITAT, Mumbai 5. Guard File BY ORDER, (Dy./Asstt. Registrar) ITAT, Mumbai