DCIT CEN CIR 10, MUMBAI v. AJMERA HOUSING CORPORATION, MUMBAI

ITA 2000/MUM/2011 | 2005-2006
Pronouncement Date: 03-04-2014 | Result: Dismissed

Appeal Details

RSA Number 200019914 RSA 2011
Assessee PAN AAAFA3654J
Bench Mumbai
Appeal Number ITA 2000/MUM/2011
Duration Of Justice 3 year(s) 23 day(s)
Appellant DCIT CEN CIR 10, MUMBAI
Respondent AJMERA HOUSING CORPORATION, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 03-04-2014
Appeal Filed By Department
Order Result Dismissed
Bench Allotted J
Tribunal Order Date 03-04-2014
Assessment Year 2005-2006
Appeal Filed On 10-03-2011
Judgment Text
J IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH MUMBAI BEFORE SHRI D. KARUNAKARA RAO AM AND SHRI SANJAY GARG JM ./I.T.A. NO.2000/M/2011 (AY: 2005 - 2006 ) ./I.T.A. NO.2001/M/2011 (AY: 2006 - 2007 ) DCIT CENTRAL CIRCLE - 10 MUMBAI. / VS. M/S. AJMERA HOUSING CORPORATION REHMAN BUILDING 2 ND FLOOR 24 - VEER NARIMAN ROAD FORT MUMBAI 400 001. ./ PAN : AAAFA 3654 J ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI S.D. SRIVASTAVA DR / RESPONDENT BY : SHRI PRAKASH JOTWANI / DATE OF HEARING : 03.04.2014 / DATE OF PRONOUNCEMENT : 03.04.2014 / O R D E R PER D. KARUNAKARA RAO AM: THERE ARE TWO APPEALS UNDER CONSIDERATION. THESE TWO APPEALS ARE FILED BY THE REVENUE AGAINST SEPARATE ORDERS OF THE CIT (A) - 37 MUMBAI COMMONLY DATED 11.1.2011 FOR THE ASSESSM ENT YEARS 2005 - 06 AND 2006 - 07. SINCE THE ISSUES RAISED IN BOTH THE APPEALS ARE IDENTICAL THEREFORE FOR THE SAKE OF CONVENIENCE THEY ARE CLUBBED HEARD COMBINEDLY AND DISPOSED OF IN THIS CONSOLIDATED ORDER. APPEAL WISE ADJUDICATION IS GIVEN IN THE FOL LOWING PARAGRAPHS OF THIS ORDER. 2. FIRSTLY WE SHALL TAKE UP APPEAL ITA NO.2000/M/2011 (AY 2005 - 06) WHICH IS FILED BY THE REVENUE ON 10.3.2011 IS AGAINST THE SAID ORDER OF THE CIT (A) FOR THE ASSESSMENT YEAR 2005 - 06. 3. IN THIS APPEAL REVENUE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD CIT (A) ERRED IN DELETING THE ADDITION OF RS. 72 41 360/ - REPRESENTING DEDUCTION CLAIMED U/S 80 IB (10) IGNORING THE FACT THAT THE ASSESSEES PROJECT 2 COMPRISED OF COMMERCIAL UNITS WHICH WERE NOT PERMITTED IN A HOUSING PROJECT FOR THE PURPOSES OF SECTION 80IB(10) PRIOR TO 1.4.2005. 2. ON THE FACTS AND IN THE CIRC UMSTANCES OF THE CASE AND IN LAW THE LD CIT (A) ERRED IN DELETING THE ADDITION OF RS. 72 41 360/ - REPRESENTING DEDUCTION CLAIMED U/S 80IB(10) IGNORING THE FACT THAT RELIED ON DECISION OF M/S. BRAHMA ASSOCIATES VS. JCIT (122 TTJ 433) (SB) (PUNE) AND M/S. AN IK DEVELOPMENT CORPORATION (AY 2004 - 05 AND 2005 - 06) VIDE ITA NO.3175 & 3176/MUMBAI/2009 DATED 30.9.2010 (G - BENCH) IS NOT ACCEPTED BY THE DEPARTMENT AND FURTHER APPEALS HAVE BEEN FILED. 4 . DURING PROCEEDINGS BEFORE US AT THE OUTSET IT IS SUBMITTED THAT T HE IMPUGNED ASSESSMENT ORDER WAS FRAMED U/S 143(3) R.W.S 153A & 263 OF THE ACT. IN THIS REGARD SHRI PRAKASH JOTWANI LD COUNSEL FOR THE ASSESSEE MENTIONED THAT THE REVIEW OF THE ORDER BY THE CIT U/S 263 OF THE ACT WAS THE SUBJECT MATTER OF THE APPEAL BEF ORE THE TRIBUNAL AND THE TRIBUNAL QUASHED THE ORDER OF THE CIT VIDE ITA NO.3172 & 3173/M/2009 FOR THE AYS 2004 - 05 & 2005 - 06 ORDER DATED 9 TH FEBRUARY 2011 AND THE APPEAL OF THE ASSESSEE WAS ACCORDINGLY ALLOWED. THE SAID ORDER OF THE TRIBUNAL (SUPRA) WAS AGITATED BY THE REVENUE BEFORE THE HONBLE HIGH COURT VIDE INCOME TAX APPEAL (L) NO.816 AND 817 OF 2011 WHEREIN THE ORDER OF THE TRIBUNAL WAS UPHELD IN VIEW OF THE JURISDICTIONAL HIGH COURT JUDGMENT IN THE CASE OF CIT VS. BRAHMA ASSOCIATES [2011] 333 ITR 289 (BOM ) DATED 18 TH AUGUST 2011. THUS THE REVIEW ORDER HAS BECOME FINAL AND IN FAVOUR OF THE ASSESSEE. CONSEQUENTLY THE FRESH ASSESSMENT ORDER DATED 30.10.2009 WHICH IS THE SUBJECT MATTER OF THE APPEAL BEFORE THE TRIBUNAL DOES NOT STAND. ON THIS TECHNICAL REASONING THE APPEAL FILED BY THE REVENUE DOES NOT SURVIVE. IN VIEW OF THE ABOVE WITHOUT GOING INTO THE MERITS OF THE ISSUES RAISED BY THE REVENUE BEFORE US THE APPEAL OF THE REVENUE IS DISMISSED . 5 . IN THE RESULT APPEAL OF THE REVENUE IS DI SMISSED . ./I.T.A. NO.2001/M/2011 (AY: 2006 - 2007) 6. THIS APPEAL FILED BY THE REVENUE ON 10.3.2011 IS AGAINST THE SAID ORDER OF THE CIT (A) - 37 MUMBAI FOR THE ASSESSMENT YEAR 2006 - 07. 7 . IN THIS APPEAL REVENUE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD CIT (A) ERRED IN DELETING THE ADDITION OF RS.61 46 301/ - REPRESENTING DEDUCTION CLAIMED U/S 80 IB (10) IGNORING THE FACT THAT THE ASSESSEES PROJECT 3 COMPRISED OF COMMERCIAL UNITS WHICH WERE NOT PERMITTED IN A HOUSING PROJECT FOR THE PURPOSES OF SECTION 80IB(10) PRIOR TO 1.4.2005. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD CIT (A) ERRED IN DELETING THE ADDITION OF RS.61 46 301/ - REPRESENT ING DEDUCTION CLAIMED U/S 80IB(10) IGNORING THE FACT THAT RELIED ON DECISION OF M/S. BRAHMA ASSOCIATES VS. JCIT (122 TTJ 433) (SB) (PUNE) AND M/S. ANIK DEVELOPMENT CORPORATION (AY 2004 - 05 AND 2005 - 06) VIDE ITA NO.3175 & 3176/MUMBAI/2009 DATED 30.9.2010 (G - BENCH) IS NOT ACCEPTED BY THE DEPARTMENT AND FURTHER APPEALS HAVE BEEN FILED. 8. BEFORE US AT THE OUTSET SHRI PRAKASH JOTWANI LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE IMPUGNED ASSESSMENT ORDER WAS FRAMED U/S 143(3) OF THE ACT. HE FURTHER MENTION ED TH A T THE ISSUE INVOLVED IN THE INSTANT APPEAL IS COVERED BY THE JUDGMENT OF THE HONBLE JU RISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. BRAHMA ASSOCIATES [2011] 333 ITR 289 (BOM ) DATED 18 TH AUGUST 2011 . IN THIS REGARD LD COUNSEL HEAVILY RELIED ON THE ORDER OF THE CIT (A) AND ARGUED THAT THE SAME NEED NOT BE DISTURBED. 9. ON THE OTHER HAND LD DR RELIED ON THE ORDER OF THE AO DUTIFULLY. 10. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REV ENUE AUTHORITIES AS WELL AS THE RELEVANT MATERIAL PLACED BEFORE US. ON PERUSAL OF THE SAID ORDER OF THE CIT (A) IN GENERAL AND PARAS 2.3.1 TO 2.3.3 IN PARTICULAR WE FIND THE CIT (A) WAS RIGHTLY ADJUDICATED THE ISSUE BY RESPECTFULLY FOLLOWING THE DECISIO NS OF HIS PREDECESSORS FOR THE EARLIER ASSESSMENT YEARS AND ALSO FOLLOWING THE PRINCIPLE OF CONSISTENCY AS WELL AS THE PRECEDENTS OF THE HIGHER JUDICIARY. THEREFORE WE FIND NO INFIRMITY IN THE ORDER OF THE CIT (A) AND IT DOES NOT CALL FOR ANY INTERFERENC E. ACCORDINGLY GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 11 . IN THE RESULT BOTH THE APPEALS OF THE REVENUE ARE DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD APRIL 2014 IMMEDIATELY AFTER COMPLETION OF HEARING. SD/ - SD/ - (SANJAY GARG) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 3 .4.2014 . . ./ OKK SR. PS 4 / 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 . //TRUE COPY// / BY ORDER / (DY./ASSTT. REGISTRAR) / ITAT MUMBA