A.C.I.T. 25(1), MUMBAI v. CITY LIFE DEVELOPERS, MUMBAI

ITA 2478/MUM/2012 | 2008-2009
Pronouncement Date: 31-07-2013 | Result: Dismissed

Appeal Details

RSA Number 247819914 RSA 2012
Assessee PAN AADFC1252B
Bench Mumbai
Appeal Number ITA 2478/MUM/2012
Duration Of Justice 1 year(s) 3 month(s) 17 day(s)
Appellant A.C.I.T. 25(1), MUMBAI
Respondent CITY LIFE DEVELOPERS, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 31-07-2013
Appeal Filed By Department
Order Result Dismissed
Bench Allotted C
Tribunal Order Date 31-07-2013
Assessment Year 2008-2009
Appeal Filed On 13-04-2012
Judgment Text
M/S CITY LIFE DEVEL OPERS . PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL 'C' BENCH MUMBAI BEFORE SHRI RAJENDRA SINGH ACCOUNTANT MEMBER AND SHRI SANJAY GARG JUDICIAL MEMBER ITA NO. 2478/MUM/2012 ASSESSMENT YEAR 2008-09 DATE OF HEARING: 25/7/2013 DATE OF PRONOUNCEMENT: 31 /7/2013 O R D E R PER RAJENDRA SINGH AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 23.1.2012 OF CIT (A) FOR THE ASSESSMENT YEAR 2008-09. THE ONL Y DISPUTE RAISED BY THE ASSESSEE IN THIS APPEAL RELATES TO ALLOWABILITY OF DEDUCTION U/S 80IB (10) OF THE INCOME TAX ACT. ASSISTANT COMMISSIONER OF INCOME TAX 25 (1) C-11 PRATYAKSHAKAR BHAVAN R. NO. 202 BANDRA KURLA COMPLEX BANDRA (E) MUMBAI 400 051 M/S CITY LIFE DEVELOPERS G-1 B-3 AKHIL TOWER RATAN NAGAR DAHISAR (EAST) MUMBAI 400 068. PAN:- AADFC1252B APPELLANT RESPONDENT DEPARTMENT BY. SHRI A.C. TAJPAL ASSESSEE BY: SHRI PANKAJ R. TOPRANI M/S CITY LIFE DEVEL OPERS . PAGE 2 OF 4 2. THE FACTS IN BRIEF ARE THAT THE AO DURING THE A SSESSMENT PROCEEDINGS NOTED THAT THE ASSESSEE HAD CLAIMED DEDUCTION U/S 8 0IB (10) IN RESPECT OF AGARWAL TRINITY TOWER AT ORLEM CHURCH KANCPADA MA LAD (W) MUMBAI. THE AO ALSO NOTED THAT THE CLAIM OF THE ASSESSEE IN ASSESS MENT YEAR 2004-05 TO 2007- 08 HAD BEEN DISALLOWED BY THE DEPARTMENT. HE REFERR ED TO THE ASSESSMENT ORDER FOR ASSESSMENT YEAR 2005-06 IN WHICH THE AO H AD NOTED THAT M/S DHRUV CONSTRUCTION HAD RECEIVED CONSOLIDATED APPROVAL FOR CONSTRUCTION OF A B & C WINGS. THE WINGS A & B HAD BEEN DEVELOPED B Y DHRUV CONSTRUCTION BUT IN RESPECT OF C WING THE ASSESSEE HAD ENTERED INTO A JOINT VENTURE AGREEMENT DATED 18.11.2003 AS PER WHICH IT BECAME A JOINT DEV ELOPER WITH M/S DHRUV CONSTRUCTION. THE AO THEREFORE CONCLUDED THAT THE JOINT VENTURE AGREEMENT HAD BEEN AN AFTER THOUGHT DEVICE SO AS TO SEGREGATE THE THREE WINGS INTO TWO FIRMS. THE AO ALSO NOTED THAT A & B WINGS HAD S HOPS WITH BUILT UP AREA OF 1773 .8 SQ. FT. THE AO IN THAT YEAR HAD ALSO OBSERV ED THAT SOME ADJACENT FLATS HAD BEEN ALLOTTED TO RELATIVES SO AS TO ENSURE THAT BUILT UP AREA IS WITHIN THE PERMITTED AREA OF 1000 SQ. FT. BUT IN FACT THE ADJ ACENT FLATS CONSTITUTED ONE FLAT CONTAINING AREA MORE THAN 1000 SQ. FT. THE AO OBSER VED THAT THOUGH IN ASSESSMENT YEARS 2004-05 TO 2006-07 CIT(A) HAD ALL OWED DEDUCTION BUT THE DEPARTMENT HAD FILED APPEAL BEFORE THE TRIBUNAL. AO THEREFORE DISALLOWED DEDUCTION IN THIS YEAR ALSO. 3. IN APPEAL CIT(A) NOTED THAT IN ASSESSMENT YEAR 2 005-06 CIT(A) HASD PASSED A DETAILED ORDER AFTER NECESSARY EXAMINATION AND AFTER OBTAINING REMAND REPORT OF AO. THE ORDER OF CIT(A) HAD BEEN U PHELD BY THE TRIBUNAL IN A CONSOLIDATED ORDER FOR ASSESSMENT YEAR 2004-05 AND 2005-06 IN ITA NO. 1688 AND 4205/MUM/2008 DATED 15.1.2010. THE TRIBUNAL HEL D THAT THE ASSESSEE WAS ENTITLED FOR DEDUCTION U/S 80IB (10) IN RESPECT OF AGARWAL TRINITY TOWER. CIT(A) M/S CITY LIFE DEVEL OPERS . PAGE 3 OF 4 THEREAFTER DIRECTED THE AO TO ALLOW THE CLAIM OF T HE ASSESSEE AGGRIEVED BY WHICH THE REVENUE IS IN APPEAL BEFORE TRIBUNAL. 4. BEFORE US THE LEARNED AR FOR THE ASSESSEE SUBMI TTED THAT THE ISSUE WAS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION O F TRIBUNAL IN ASSESSMENT YEARS 2004-05 AND 2005-06 IN ITA NO. 1688 & 4205 (S UPRA). IT WAS ALSO SUBMITTED THAT FOLLOWING THE SAID DECISIONS THE TRI BUNAL ALLOWED THE CLAIM OF THE ASSESSEE IN ASSESSMENT YEAR 2006-07 IN ORDER DA TED 4.6.2010 IN ITA 3358/MUM/2009. IT WAS THEREFORE URGED THAT THE CLA IM OF THE ASSESSEE SHOULD BE ALLOWED. THE LEARNED DR ON THE OTHER HAND PLACED RELIANCE ON THE FINDGINS GIVEN IN ASSESSMENT ORDER. 5. WE HAVE PERUSED THE RECORDS AND CONSIDERED THE M ATTER CAREFULLY. THE DISPUTE IS REGARDING ALLOWABILITY OF DEDUCTION U/S 80IB (10) IN RESPECT OF AGARWAL TRINITY TOWER. THE AO DISALLOWED THE CLAIM FOLLOWIN G THE DECISION TAKEN IN ASSESSMENT YEAR 2004-05 TO 2006-07. HOWEVER WE FIND THAT THE ISSUE REGARDING ALLOWABILITY OF CLAIM IN RESPECT OF AGARWAL TRINITY TOWER HAD BEEN EXAMINED IN DETAIL BY CIT(A) IN ASSESSMENT YEAR 2005-06 AFTER O BTAINING REMAND REPORT OF AO AND HAD BEEN ALLOWED BY CIT(A) TRIBUNAL IN THE CONSOLIDATED ORDER FOR ASSESSMENT YEAR 2004-05 AND 2005-06 IN ITA NO. 1688 & 4205 (SUPRA) ALLOWED THE CLAIM OF THE ASSESSEE. THE TRIBUNAL NOTED THAT THE ASSESSEE WAS A JOINT DEVELOPER WITH M/S DHRUV CONSTRUCTION AND EVEN THOU GH THE PROJECTS HAD BEEN COMMONLY APPROVED THEY HAD DIFFERENT NAMES AND COM MENCEMENT CERTIFICATES. THUS WING C WAS A SEPARATE PROJECT WHICH DID NOT EVEN HAVE ANY BUILT UP COMMERICIAL AREA. THE WING A & B WHICH HAD BEEN DEVELOPED BY M/S DHRUV CONSTRUCTION DID HAVE COMMERCIAL AREA AND DED UCTION U/S 80IB (10) IN RESPECT OF THOSE WINGS HAD ALREADY BEEN ALLOWED BY THE AO. THE TRIBUNAL THEREFORE ALLOWED THE CLAIM IN CASE OF THE ASSESSE E IN RESPECT OF C WING I.E. M/S CITY LIFE DEVEL OPERS . PAGE 4 OF 4 AGARWAL TRINITY TOWER. THE SAME VIEW WAS TAKEN BY T HE TRIBUNAL IN ASSESSMENT YEAR 2006-07 (SUPRA). THE AO HAS DISALLOWED THE CLA IM FOLLOWING THE DECISION TAKEN IN EARLIER YEARS WHICH HAD NOT BEEN UPHELD BY THE TRIBUNAL. THE FACTS THIS YEAR ARE IDENTICAL. THEREFORE RESPECTIVELY FOLLOWI NG THE ORDERS OF TRIBUNAL IN THE EARLIER YEARS IN THE ASSESSEES OWN CASE IN RE SPECT OF SAME PROJECT (SUPRA) WE CONFIRM THE ORDER OF CIT(A) ALLOWING THE CLAIM O F THE ASSESSEE. 6. IN THE RESULT APPEAL OF THE REVENUE IS DISMISSED .. ORDER PRONOUNCED ON 31 -7-2013 SD/- SD/- (SANJAY GARG) (RAJENDRA SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER SK SR. P.S MUMBAI DATED 31.7.2013 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR C BENCH ITAT MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES MUMBAI