MORAJ DEVELOPERS P. LTD, NAVI MUMBAI v. ITO 10(3)(4), MUMBAI

ITA 2428/MUM/2012 | 2003-2004
Pronouncement Date: 19-11-2014 | Result: Dismissed

Appeal Details

RSA Number 242819914 RSA 2012
Assessee PAN AACCM6724E
Bench Mumbai
Appeal Number ITA 2428/MUM/2012
Duration Of Justice 2 year(s) 7 month(s) 7 day(s)
Appellant MORAJ DEVELOPERS P. LTD, NAVI MUMBAI
Respondent ITO 10(3)(4), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 19-11-2014
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 19-11-2014
Date Of Final Hearing 09-09-2014
Next Hearing Date 09-09-2014
Assessment Year 2003-2004
Appeal Filed On 12-04-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH MUMBAI BEFORE SHRI R.C.SHARMA A M & AMIT SHUKLA J M ITA NO S . 24 28 / MUM/20 1 2 ( ASSESSMENT YEAR : 2003 - 20 04 ) MORAJ DEVELOPERS PVT. LTD. D - 5 BIG SPLASH SECTOR - 17 VASHI NAVI MUMBAI - 400703 VS. ITO - 10(3)(4) MUMBAI - 20 PAN/GIR NO. : A ACCM 6724 E ( APPELLANT ) .. ( RESPONDENT ) AND ITA NO S . 242 9 & 2430/ MUM/20 12 ( ASSESSMENT YEARS : 2003 - 04 & 2004 - 05 ) MORAJ CONSTRUCTION PVT. LTD. 162 CENTRAL FACILITY BUILDING APMC MARKET TURBHE VASHI NAVI MUMBAI - 400 705 VS. ITO - 1 0(3)(4) MUMBAI - 20 PAN/GIR NO. : A ACCM 6664 M ( APPELLANT ) .. ( RESPONDENT ) /ASSESSEE BY : SHRI PRADIP KAPASI /REVENUE BY : SHRI PREMANAND J DA TE OF HEARING : 9 TH SEPTEMBER 201 4 DATE OF PRONOUNCEMENT 19 TH NOV. 201 4 O R D E R PER BENCH : THESE ARE THE APPEALS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) FOR A.Y S. 2003 - 04 & 2004 - 05 IN THE MATTER OF O RDER PASSED U/S.143(3) R.W.S. 147 OF THE IT ACT . ITA NO S . 2 428 TO 2430 /1 2 2 2. COMMON GROUNDS HAVE BEEN TAKEN IN ALL THE APPEALS THEREFORE FOR THE SAKE OF BREVITY ALL THE APPEALS ARE DISPOSED OF BY THIS CONSOLIDATED ORDER. 3 . THE ASSESSEE IS AGGRIEVED BY THE REOPENING OF ASSESS MENT AND ALSO FOR DENIAL OF CLAIM OF DEDUCTION U/S.80IB(10) IN RESPECT OF PROFITS AND GAINS DERIVED FROM SALE OF COMMERCIAL AREA. 4 . RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. IN THE RETURN OF INCOME ASSESSEE HAS CLAIMED DEDUCTION U/S. 80IB(10) . IN THE FIRST ASSESSMENT ORDER ASSESSEES ELIGIBILITY FOR CLAIM OF DEDUCTION U/S.80IB (10) WAS CONFIRMED BY THE AO SUBJECT TO DISALLOWANCE OF PROFIT DERIVED FROM COMMERCIAL PREMISE. THE REOPENING WAS ON THE GROUND OF ASSESSEES INELIGIBILITY OF DEDUCTION U /S.80IB(10) . IN THE REASSESSMENT PROCEEDINGS T HE CIT(A) HAS CONFIRMED THE DISALLOW ANCE OF CLAIM FOR BALANCE PROFIT DERIVED FROM SALE OF COMMERCIAL PREMISE BY RELYING ON THE DECISION OF ASSESSEES ASSOCIATE CONCERN M/S BHUMIRAJ HOMES LTD. ITA NO.2170/MUM/ 2009 . FROM THE RECORD WE FOUND THAT THE CLAIM WAS ORIGINALLY MADE U/S 80IB(10) IN THE RETURN OF INCOME FILED BY THE ASSESSEE. THE ELIGIBILITY OF THE CLAIM WAS RESTRICTED IN RESPECT OF PROFITS DERIVED FROM RESIDENTIAL BUILDING IN THE FIRST ASSESSMENT ORDER AFTER DETAILED DISCUSSION WHEREIN A PART OF CLAIM PERTAINING TO COMMERCIAL BUILDING WAS DISALLOWED. THE CLAIM WAS AGAIN EXAMINED IN REASSESSMENT WHEREIN THE CIT(A) UPHELD ASSESSEES CLAIM OF ELIGIBILITY FOR RESIDENTIAL PREMISES WHEREAS CLAIM IN RESPECT O F COMMERCIAL PREMISES WAS DECLINED. 5 . WITH RESPECT TO THE DECISION OF HON BLE SUPREME COURT IN THE CASE OF SUN ENGINEERING WORKS (P) LD. 198 ITR 297 (SC) AS RELIED BY ITA NO S . 2 428 TO 2430 /1 2 3 CIT(A) LEARNED AR STATED THAT FACTS OF THE INSTANT CASE ARE NOT EFFECTED BY THIS D ECISION ON THE PLEA THAT THE ENTIRE CLAIM WAS IN RESPECT OF ONE AND SAME HOUSING PROJECT AND IS NOT A SEPARATE NEW CLAIM AND THAT ELIGIBILITY TO THE CLAIM WAS CONFIRMED IN THE FIRST ASSESSMENT AFTER DISCUSSION. AS PER LEARNED AR NO NEW RELIEF WAS CLAIMED I N THE REASSESSMENT AND ENTIRE CLAIM PERTAINS TO THE SAME DEDUCTION WHICH IS THE SUBJECT MATTER OF REASSESSMENT. 6 . THE ASSESSEE HAS ALSO CONTESTED THE REOPENING ON THE PLEA THAT ALL MATERIAL FACTS WERE DISCLOSED IN THE ORIGINAL RETURN AND THE AO H AS ALSO A LLOWED THE SAME. AS PER LEARNED AR THERE WAS CHANGE OF OPINION WHICH CANNOT FORM BASIS FOR REOPENING. 7 . WE FOUND THAT REOPENING WAS MADE ON THE BASIS OF DECISION OF THE TRIBUNAL IN THE CASE OF SISTER CONCERN M/S BHUMIRAJ HOMES LTD. ITA NO. 2170/MUM/2009 WHEREIN ASSESSEES CLAIM U/S.80IB(10) WAS DECLINED . AFTER GOING THROUGH THE REASONS RECORDED FOR REOPENING WE DO NOT FIND ANY INFIRMITY IN THE ACTION OF THE AO FOR REOPENING THE ASSESSMENT . ACCORDINGLY WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF CIT(A) CONFIRMING THE ACTION OF AO FOR REOPENING THE ASSESSMENT. 8 . BY THE IMPUGNED ORDER THE CIT(A) ALLOWED DEDUCTION IN RESPECT OF RESIDENTIAL UNITS. HOWEVER IN THE ASSESSMENT YEAR 2003 - 04 HE HAS DISALLOWED BALANCE CLAIM OF RS. 82 84 060/ - IN RESPE CT OF COMMERCIAL AREA. RELEVANT OBSERVATION OF THE CIT(A) WAS AS UNDER : - R E GARDING THE BALANCE AMOUNT OF RS.82 84 060 / - IT IS NOTED THAT IN TH E ORIGINAL ASSESSMENT ORDER THIS DISALLOWANCE WAS MADE WHICH WAS ACCEPTED BY THE APPELLANT SINCE NO FIRST APPEAL WAS FILED BY THE APPELLANT AGAINST T HE ASSESSMENT ORDER DATED 27.03. 2 0 06. THE ASSESSEE CHOSE NOT TO FILE APPEAL. BY ACCEPTING DISALLOWANCE. MADE U/S. 80IB( 10) IN RESPECT OF COMMERCIAL AREA. THUS EFFECTIVELY ITA NO S . 2 428 TO 2430 /1 2 4 IN THE RE - ASSESSMENT PROCEEDINGS THE A.O. HAS ONLY DISALLOWED THE ADDITIONS ON RESIDENTIAL PART OF THE BUILDING. BEFORE ME IT WAS SUBMITTED THAT THE ADDITIONAL GROUNDS MAY BE ACCEPTED ON THIS ISSUE. HOWEVER ON PERUSAL OF THE ORIGINAL GROUNDS OF APPEAL IT IS NOTED THAT THIS AMOUNT IS ALREADY INCLUDED IN THE QUANTUM SPECIFIED THEREIN. HENCE IN MY OPINION THERE IS NO RELEVANCE OF FILING ADDITIONAL GROUNDS OF APPEAL. THE APPELLANT HAS RELIED ON SEVERAL DECISIONS. HOWEVER ON PERUSAL OF THE SAME IT IS NOTED THAT THE DECISION IN CASE OF JUTE CORPORATION O F INDIA RELATES TO THE' ADMISSION OF ADDITIONAL GROUNDS WHICH IS NOT THE CASE HERE. THE DECISION IN CASE OF NTPC RELATES TO THE POWER OF IT A T AND NOT C1T(A). HENCE NOT RELEVANT. THE JUDGEMENT IN NIECE LTD. WAS DELIVERED BY HON'BLE AHMEDABAD ITA T SINC E IN THAT CASE THE ASSESSEE HAS MADE A CLAIM BY PUTTING A NOTE IN THE RETURN OF INCOME ITSELF TO 'CLAIM DEDUCTION U/S. 80LB LATER. THUS THE FACT OF NONE OF THE CASES RELIED UPON BY THE APPELLANT ARE IDENTICAL TO THE FACTS OF THE APPELLANT'S CASE. THUS S INCE THE DISALLOWANCE OF RS.82 84 060 / - U/S. 80IB(10) HAD ADMITTEDLY BECOME FINAL AT THE STAGE OF ORIGINAL ASSESSMENT ITSELF IN MY OPINION THE SAME IS NOT ALLOWABLE DURING RE - ASSESSMENT PROCEEDINGS. THIS VIEW OF MINE IS SUPPORTED BY THE JUDGEMENT OF HONB LE ITAT MUMBAI IN THE CASE OF MIS. BHUMIRAJ HOMES LTD. A.Y. 2004 - 2005 WHEREIN VIDE ORDER DATED 25.03.2011 HON'BLE IT AT ON IDENTICAL' FACTS HAVE OBSERVED AS UNDER: '9 SINCE THE PRESENT PROCEEDINGS ARE EMERGING FROM NOTICE U/S. 148 AND THE ASSESSMENT HAS BEEN FRAMED U/S. 143(3) R.W.S. 147 THE ASSESSEE CAN BE ALLOWED DEDUCTION U/S. 801B (10 ) ONLY TO THE EXTENT IT WAS DISALLOWED IN THE PRESENT PROCEEDINGS WHICH AMOUNTS TO RS. 2 23 85 571/ - . IN SO FAR AS THE DISALLOWANCE OF DEDUCTION TO THE TUNE OF RS. 3 1 70 650 IS CONCERNED THE SAME CANNOT BE CONFERRED ON THE ASSESSEE FOR THE REASON THAT IT WAS DISALLOWED IN THE ORIGINAL ASSESSMENT ORDER PASSED U/S. 143(3) AND NO MATERIAL HAS BEEN BROUGHT TO OUR NOTICE TO INDICATE THAT SUCH ORDER HAS BEEN MODIFIED IN AN Y MANNER. AS THE REASSESSMENT PROCEEDINGS ARE AIMED' AT TAXING THE INCOME WHICH HAS ESCAPED ASSESSMENT THESE CANNOT BE TAKEN AS A TOOL FOR PUTTING THE ASSESSEE IN BETTER POSITION THAN IN WHICH IT WAS BEFORE SUCH PROCEEDINGS. WE THEREFORE DIRECT TO ALLO W DEDUCTION U/S. 80IB(1) FOR RS. 2.23 CRORES AND ODD WHICH HAS BEEN DISALLOWED IN THE PRESENT PROCEEDINGS. CONSEQUENTLY DISALLOWANCE OF RS. 82 84 060/ - MADE BY THE AO IS UPHELD. FROM THE RECORD WE FOUND THAT EVEN IN THE ORIGINAL ASSESSMENT ASSESSEES C LAIM FOR COMMERCIAL AREA AMOUNTING TO RS. 82 84 060/ - WAS DECLINED. THE ASSESSEE HAS ALSO NOT FILED ANY APPEAL AGAINST THIS DISALLOWANCE. IN THE RE - ASSESSMENT PROCEEDINGS THE AO HAS ONLY DISALLOWED CLAIM OF ADDITIONS ON COMMERCIAL PART OF BUILDING. THE ITA NO S . 2 428 TO 2430 /1 2 5 AS SESSEE HAS NOW AGAIN CLAIMED IN THE RE - ASSESSMENT PROCEEDINGS THAT THE CLAIM IN RESPECT OF COMMERCIAL BUILDING SHOULD ALSO BE ALLOWED. AS PER OUR CONSIDERED VIEW SUCH CLAIM CANNOT BE ALLOWED IN REASSESSMENT PROCEEDINGS U/S.147 WHICH HAS NOT BEEN ORIGINAL LY ALLOWED IN THE ORIGINAL ASSESSMENT PROCEEDINGS. AS PER THE VERDICT OF THE HONBLE SUPREME COURT IN THE CASE OF SUN ENGINEERING WORKS (P) LTD. 198 ITR 297 THE REASSESSMENT PROCEEDINGS IS NOT FOR THE BENEFIT OF THE ASSESSEE. THEREFORE WHAT HAS NOT BEEN ALLOWED IN THE ORIGINAL ASSESSMENT PROCEEDINGS CANNOT BE ALLOWED IN THE RE - ASSESSMENT PROCEEDINGS U/S. 147 OF THE I.T. ACT . AFTER CONSIDERING VARIOUS JUDICIAL PRONOUNCEMENTS AS CITED BY LEARNED AR THE CIT(A) HAS CONFIRMED DISALLOWANCE IN RESPECT OF COMME RCIAL AREA IN THE REASSESSMENT PROCEEDINGS U/S.147 . THE DETAILED FINDING RECORDED BY THE CIT(A) AT PAGE 52 AS REPRODUCED ABOVE HAVE NOT BEEN CONTROVERTED BY BRINGING ANY MATERIAL ON RECORD. ACCORDINGLY WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A) FOR UPHOLDING THIS DISALLOWANCE. 9 . SINCE THE FACTS OF THE ASSESSMENT YEAR 2004 - 05 ARE SAME THEREFORE FOLLOWING THE REASONING GIVEN ABOVE IN RESPECT OF A.Y.2003 - 04 WE UPHOLD THE REASSESSMENT PROCEEDINGS AND CONFIRM THE ACTION OF THE CIT(A) FOR DISALLOW ING THE CLAIM IN RESPECT OF COMMERCIAL AREA WHICH WAS ALSO DISALLOWED DURING ORIGINAL ASSESSMENT PROCEEDINGS AND AGAINST WHICH ASSESSEE WAS NOT IN APPEAL. THUS IN CASE OF M/S MORAJ CONSTRUCTION PVT. LTD. A DISALLOWANCE OF RS.1 76 35.247 FOR A.Y. 2004 - 05 AND IN THE ASSESSMENT YEAR 2003 - 04 RS. 85 38 087/ - ARE CONFIRMED. ITA NO S . 2 428 TO 2430 /1 2 6 10 . IN THE RESULT ALL APPEAL S OF THE ASSESSEE ARE DISMISSED IN TERMS INDICATED HEREINABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 19 /11/ 201 4 . 19 /11/ 2014 SD/ - SD/ - ( ) ( AMIT SHUKLA ) ( ) ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCOUNTA NT MEMBER MUMBAI ; DATED 19 / 11 /2014 /PKM PS COPY OF THE ORDER FORWARDED TO : / BY ORDER ( ASSTT. REGISTRAR) / ITAT MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A) MUMBAI. 4. / CIT 5. / DR ITAT MUMBAI 6. GUARD FILE. //TRUE COPY//