PRATHMESH CONSTRUCITON COMPNAY, V. ITO WD 17(3)(3),

MA 426/MUM/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0607 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-06-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 27-06-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: O P MEENA
• Assessee Lawyers: H S NANDU
• Section: 80IB

Judgement Text

MA NO. 426/M/2012 M/S. PRATHAMESH CONSTRUCTION COMPANY. - 1 - IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI . , !'# $% $% $% $% &'( ), '* +, , ' # BEFORE SHRI D. MANMOHAN, VP, AND SHRI RAJENDRA SINGH, AM -%-% %'+ / MA NO. 426/MUM/2012 ARISING OT OF ITA 3708/MUM/2010 ( . / %0/ . / %0/ . / %0/ . / %0/ / / / / ASSESSMENT YEAR : (2006-07 ) M/S PRATHAMESH CONSTRUCTION COMPANY, A/203, K.K. TOWERS, G.D. AMBEDKAR ROAD, PAREL, MUMBAI 400012 / VS. THE INCOME TAX OFFICER WARD 17 (3)(3) MUMBAI 6THE FLOOR, ROOM NO. 613, PIRMAL CHAMBERS, LALBAUG, MUMBAI 400012. ( 23 / // / APPELLANT ) .. ( 4523 / RESPONDENT ) 23 6 7 ' / APPELLANT BY : SHRI H.S. NANDU 4523 6 7 ' / RESPONDENT BY : SHRI O.P. MEENA % 6 8* / // / DATE OF HEARING : 28-6-2013 90 6 8* / DATE OF PRONOUNCEMENT : 28-6-2013 +': / O R D E R PER RAJENDRA SINGH, AM THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY TH E ASSESSEE REQUESTING FOR RECALL/AMENDMENT OF THE ORDER DATED 10-8-2011 OF THE TRIBUNAL IN ITA NO. 3708/MUM/2010. THE ASSESSE IN T HE MISCELLANEIOUS APPLICATION HAS POINTED MISTAKE IN THE ORDER OF TRI BUNAL IN NOT ALLOWING DEDUCTION U/S 80-IB (10). MA NO. 426/M/2012 M/S. PRATHAMESH CONSTRUCTION COMPANY. - 2 - 2. THE FACTS IN BREIF ARE THAT THE ASSESEE FOR THE RELEVANT YEAR HAD CLAIMED DEDUCTION U/S 80-IB (10) IN RESPECT OF SLUM REHABIL ITATION PROJECT. THE PROVISO TO CLAUSE (B) OF SECTION 80-IB(10) REQUIRED THAT THE PROJECT SHOULD BE NOTIFIED BY CBDT FOR CLAIMING DEDUCTION U/S 80-IB ( 10). IN THIS CASE THE CBDT HAD ISSUED NOTIFICATION ON 3.8.2010 WITH EFFEC TIVE FROM THE DATE OF ITS PUBLICATION. THE AO HAD DISALLOWED THE CLAIM WHICH HAD BEEN UPHELD BY CIT(A). IN FURTHER APPEAL, THE TRIBUNAL NOTED THAT NOTIFICATION OF CBDT HAD NOT BEEN FILED BEFORE CIT (A). THE TRIBUNAL ALSO NO TED THAT THE SAID NOTIFICATION HAD EXCLUDED CERTAIN AREAS FROM ITS PURVIEW. TRIBUN AL FURTHER NOTED THAT CIT (A) HAD NOT GIVEN ANY FINDING WHETHER THE PROVISION S OF CLAUSE (A) OR CLAUSE (B) OF SECTION 80IB (10) WERE FULFILLED IN THIS CASE. T HEREFORE, THE TRIBUNAL OBSERVED THAT CIT(A) WAS NOT CORRECT IN STATING THA T THE DEDUCTION COULD BE GRANTED UNDER GENERAL PROVISION WITHOUT GIVING ANY FINDING ON THE APPLICABILITY OF RELEVANT CLAUSE. THE TRIBUNAL, THE REFORE, SET ASIDE THE ORDRE OF CIT(A) AND RESTORED THE MATTER BACK TO HIM FOR PASS ING A FRESH ORDER AFTER NECESSARY EXAMINATION INCLUDING APPLICABILITY OF N OTIFICATION FOR THE YEAR UNDER REFERENCE AND AFTER ALLOWING OPOORTUNITY OF HEARING TO THE ASSESSEE. 3. THE ASSESSEE IN THE MISCELLANEOUS APPLICATION HA S SUBMITTED THAT THE DELAY IN ISSUE OF NOTIFICATION WAS ATTRIBUTABLE TO THE GOVERNMENT AND, THEREFORE, THE ASSESSEE COULD NOT BE DENIED THE BEN EFIT OF DEDUCTION ON ACCOUNT OF DELAY IN ISSUE OF NOTIFICATION. IT HAS A LSO BEEN MENTIONED THAT THE PROVISIONS SHOULD BE INTERPRETED LIBERALLY AND THE NOTIFICATION HAS TO BE GIVEN EFFECT FROM THE RETROSPECTIVE DATE. THEREFORE, IT H AS BEEN POINTED OUT THAT THERE IS A MISTAKE IN THE ORDER OF TRIBUNAL WHICH S HOULD BE AMENDED. 4. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE RECO RDS AND CONSIDERED MATTER CAREFULLY. AS MENTIONED EARLIER, THE TRIBUNA L HAD RESTORED THE ISSUE TO THE FILE OF AO AS THE NOTIFICATION HAD BEEN FILED B EFORE THE TRIBUNAL FOR THE FIRST TIME AND WAS NOT AVAILABLE WITH CIT(A). FURTHER CIT (A) HAD ALSO NOT GIVEN ANY FINDING ON CERTAIN ASPECTS RELATING TO APPLICABILIT Y OF CLAUSE (A) AND (B) OF MA NO. 426/M/2012 M/S. PRATHAMESH CONSTRUCTION COMPANY. - 3 - SECTION 80IB (10). THE TRIBUNAL HAD NOT HELD THAT T HE NOTIFICTION WILL NOT APPLY IN CASE OF THE ASSESSEE. THE TRIBUNAL HAD ONLY REST ORED THE ISSUE FOR A FRESH EXAMINATION BEFORE CIT(A) WHERE THE ASSESSEE COULD ALWAYS MAKE ITS SUBMISSIONS ON THE ISSUE. WE DO NOT SEE ANY APPAREN T MISTAKE IN THE ORDER OF TRIBUNAL AND, THEREFORE, THE MISCELLANEOUS APPLICAT ION FILED BY THE ASSESSEE IS REJECTED. 5. IN THE RESULT MISCELLANEOUS APPLICATION OF THE ASSE SSEE STANDS REJECTED. ORDER PRONOUNCED TODAY I.E 28 -6-2013 SD/- SD/- ( D. MANMOHAN) (RAJENDRA SINGH) !'# / VICE PRESIDENT '* +, / ACCOUNTANT MEMBER S.K. SR. P.S. DATED 28-6-2013 +': 6 4.8)- K'-08 +': 6 4.8)- K'-08 +': 6 4.8)- K'-08 +': 6 4.8)- K'-08/ COPY OF THE ORDER FORWARDED TO : 1. 23 / THE APPELLANT 2. 4523 / THE RESPONDENT. 3. L () / THE CIT(A)- 4. L / CIT 5. -%OP 4.8. , , / DR, ITAT, MUMBAI 6. P/ Q / GUARD FILE. +': +': +': +': / BY ORDER, 5-8 4.8 //TRUE COPY// ! ! ! !/ // / & & & & ( DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI