DCIT 24(2), MUMBAI v. VIJAY ENTERPRISES, MUMBAI

ITA 4967/MUM/2010 | 2005-2006
Pronouncement Date: 15-07-2011 | Result: Dismissed

Appeal Details

RSA Number 496719914 RSA 2010
Assessee PAN AAAFV2622D
Bench Mumbai
Appeal Number ITA 4967/MUM/2010
Duration Of Justice 1 year(s) 1 month(s)
Appellant DCIT 24(2), MUMBAI
Respondent VIJAY ENTERPRISES, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 15-07-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted F
Tribunal Order Date 15-07-2011
Assessment Year 2005-2006
Appeal Filed On 15-06-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F MUMBAI BEFORE SHRI P.M.JAGTAP ACCOUNTANT MEMBER & SMT. ASHA VIJAYRAGHAVAN JUDICIAL MEMBER. I.T.A. NO.4967 & 4968/MUM/2010. ASSESS MENT YEARS : 2005-06 & 2007-08 DY. COMMISSIONER OF INCOME-TAX M/S VIJAY ENTERPRISES 24(2) MUMBAI. VS. ESHA KRIPA ROAD BRAHMAN SABHA HALL MALAD (W) MUMBAI 400064. PAN AAAFV2622D APPELLANT. RESPONDENT. APPELLANT BY : SHRI T.T. JACOB. RESPON DENT BY : SHRI REEPAL G.TRALSHANWALA. O R D E R. PER P.M. JAGTAP A.M. : THESE TWO APPEALS ARE PREFERRED BY THE REVENUE AGA INST THE COMMON ORDER OF LEARNED CIT(APPEALS)-34 MUMBAI DATED 19-03-2010 FOR ASSESSMENT YEARS 2005-06 AND 2007-08. 2. IN THE SOLITARY GROUND RAISED BY IT WHICH IS ID ENTICAL IN BOTH THESE APPEALS THE REVENUE HAS CHALLENGED THE ACTION OF THE LEARNE D CIT(APPEALS) IN ALLOWING THE DEDUCTION CLAIMED BY THE ASSESSEE U/S 80IB(10) ON T HE GROUND THAT WHILE DOING SO HE HAS IGNORED THE FACT THAT THE ASSESSEE HAD RECEI VED THE COMMENCEMENT CERTIFICATE FROM THE B.M.C. ON 02-01-1997 AND THE S AME WAS MERELY REENDORSED ON 27-01-1999. 2 ITA NOS.4967&4968/MUM/2010 ASSESSMENT YEARS:2005-06&2007-08 . 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS OBSERVED THAT A SIMILAR I SSUE WAS INVOLVED IN ASSESSEES OWN CASE IN THE EARLIER YEARS WHEREIN THE DEDUCTION CLAIMED BY THE ASSESSEE U/S 80IB(10) IN RESPECT OF THE SAME HOUSING PROJECT VIZ . NAZARENA APARTMENT WAS DISALLOWED BY THE AO INTER ALIA ON THE GROUND THAT THE SAID PROJECT HAD ACTUALLY COMMENCED ON 02-01-1997 AS PER THE COMMENCEMENT CER TIFICATE ISSUED BY B.M.C. AND NOT ON 11-01-1999 AS CLAIMED BY THE ASSESSEE ON THE BASIS OF FRESH COMMENCEMENT CERTIFICATE ISSUED BY B.M.C. 27-01-199 9. WHEN THIS ISSUE CAME UP FOR CONSIDERATION BEFORE THE LEARNED CIT(APPEALS) I N ASSESSMENT YEAR 2004-05 FOR THE FIRST TIME HE ALLOWED THE CLAIM OF THE ASSESSE E FOR DEDUCTION U/S 80IB(10) ACCEPTING ITS STAND THAT THE PROJECT HAD ACTUALLY C OMMENCED ON 11-01-1999 AS PER THE FRESH COMMENCEMENT CERTIFICATE ISSUED BY B.M.C. AND THE TRIBUNAL VIDE ITS ORDER DATED 2 ND JUNE 2009 PASSED IN ITA NO.6646/MUM/2006 UPHELD T HE SAID DECISION OF THE LEARNED CIT(APPEALS) FOR THE FOLLOW ING REASONS GIVEN IN PARAGRAPH NO.8 OF ITS ORDER : WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF T HE LEARNED D.R. AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND T HAT THE FACTS ARE NOT IN DISPUTE INASMUCH AS ON APPROVAL OF THE NEW PLAN DAT ED 11.01.1999 THE EARLIER PLAN APPROVED DATED 28.11.1998 WAS CANCELLE D BY THE BMC. WE FURTHER FIND THAT WHILE ISSUING THE COMMENCEMENT CE RTIFICATE DATED 27.01.1999 FOR THE NEW HOUSING PROJECT THE BMC RE-E NDORSED THE SAME ON THE ORIGINAL COMMENCEMENT CERTIFICATE DATED 28 TH NOVEMBER 1997. WE FURTHER FIND THAT IT HAS ALSO BEEN CLARIFIED BY THE BMC THAT ON APPROVAL OF THE NEW PLAN DATED 11.01.1999 EARLIER PLAN APPROVED DAT ED 28.11.1997 HAS BEEN CANCELLED. THE CANCELLATION STAMP STATING ABOVE HAS BEEN PUT ON PLANS APPROVED DATED 11.01.1999. SINCE THE ORIGINAL PLAN HAS BEEN CANCELLED BY THE BMC THE A.O. WAS NOT JUSTIFIED IN HOLDING THAT THE SAME DOES EXIST EVEN AFTER THE CANCELLATION AND THE DATE OF APPROVAL SHA LL REMAIN 02.01.1997 OR 28.11.1997. THIS BEING SO AND KEEPING IN VIEW THAT MERELY BECAUSE THE ASSESSEE HAD CONSTRUCTED BOUNDARY WALL AND CABINS F OR SECURITY GUARD FOR PROTECTION OF THE PROPERTY ETC. PRIOR TO THE COMME NCEMENT CERTIFICATE DATED 27.01.1999 IS NOT SUFFICIENT TO HOLD THAT THE ASSES SEE IS NOT ENTITLED TO 3 ITA NOS.4967&4968/MUM/2010 ASSESSMENT YEARS:2005-06&2007-08 . DEDUCTION UNDER SECTION 80IB(10) OF THE ACT AS IT I S NOT THE CASE OF THE REVENUE THAT THE ASSESSEE HAS NOT SATISFIED ALL THE CONDITIONS AS LAID DOWN UNDER SECTION 80IB(10) OF THE ACT. IN THIS VIEW OF THE MATTER AND KEEPING IN VIEW THE RECENT DECISION OF THE SPECIAL BENCH OF TH E PUNE TRIBUNAL IN BRAHMA ASSOCIATES & OTHERS VS. JCIT (OSD) AND ANOTH ER IN ITA NO. 1417/PN/06 AND OTHERS DATED 06.04.2009 WHEREIN THE TRIBUNAL AFTER CONSIDERING THE DECISION IN LAUKIK DEVELOPERS VS. D CIT REPORTED IN 105 ITD 657 (MUM) HAS OBSERVED AT THE END OF PARA 79 OF THE ORDER THAT '.. IT IS THUS NOT POSSIBLE FOR US TO FOLLOW NOR ARE WE I NCLINED TO DO SO ON MERITS EITHER THE APPROACH ADOPTED BY THE DIVISION BENCH IN THE CASE LAUKIK DEVELOPERS (SUPRA) HELD IN SUB-PARA (C) OF PARA 130 OF ITS ORDER THAT 'THE LIMIT ON COMMERCIAL USE OF BUILT UP AREA AS PRESCRI BED BY CLAUSE (D) OF SECTION 80IB(10) HAS NO RETROSPECTIVE APPLICATION AND IT APPLIES ONLY W.E.F. THE ASSESSMENT YEAR 2005-06' AND ALSO KEEPING IN VI EW THAT GROUND NO. 3 TAKEN BY THE REVENUE DOES NOT ARISE FROM THE ORDER OF THE LEARNED CIT(A) WE ARE INCLINED TO UPHOLD THE ORDER OF THE LEARNED CIT (A) IN DIRECTING THE A.O. TO ALLOW DEDUCTION UNDER SECTION 80IB(10) OF THE AC T AND ACCORDINGLY THE GROUNDS TAKEN BY THE REVENUE ARE REJECTED. 3. AGAINST THE AFORESAID ORDER OF THE TRIBUNAL DATE D 2 ND JUNE 2009 AN APPEAL WAS PREFERRED BY THE REVENUE BEFORE THE HONBLE BOM BAY HIGH COURT AND VIDE ITS JUDGMENT DELIVERED ON 2 ND NOV. 2010 IN I.T. APPEAL NO. 3836 OF 2009 THE HONBLE BOMBAY HIGH COURT DISMISSED THE SAID APPEAL HOLDING THAT THE TRIBUNAL AFTER VERIFYING FROM THE MUNICIPAL AUTHORITIES HAD COME TO THE CONCLUSION THAT THE INITIAL COMMENCEMENT GRANTED ON 02-01-1997 WAS CANC ELLED AND A FRESH CERTIFICATE WAS ISSUED ON 27-01-1999. IT WAS HELD BY THE HONBL E BOMBAY HIGH COURT THAT THE DEVELOPMENT AND CONSTRUCTION OF HOUSING PROJECT THU S WAS COMMENCED ON OR AFTER 01-10-1999 AS PER THE FINDING OF FACT RECORDED BY T HE TRIBUNAL AND THE ASSESSEE WAS ENTITLED TO DEDUCTION U/S 80IB. EVEN IN ASSESSM ENT YEAR 2006-07 THE COORDINATE BENCH OF THIS TRIBUNAL VIDE ITS ORDER DA TED 19-10-2010 PASSED IN ITA NO. 3969/MUM/2009 HAS UPHELD THE ORDER OF THE LEARN ED CIT(APPEALS) ALLOWING THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 80IB(10 ) ACCEPTING THE STAND OF THE 4 ITA NOS.4967&4968/MUM/2010 ASSESSMENT YEARS:2005-06&2007-08 . ASSESSEE THAT THE PROJECT HAD ACTUALLY COMMENCED ON 11-01-1999 AS PER THE FRESH COMMENCEMENT CERTIFICATE ISSUED BY B.M.C. 4. AS THE ISSUE INVOLVED IN THE YEARS UNDER CONSIDE RATION AS WELL AS ALL THE MATERIAL FACTS RELEVANT THERETO ARE SIMILAR TO ASSE SSMENT YEAR 2004-05 AND 2006-07 WE RESPECTFULLY FOLLOW THE DECISION OF THE TRIBUNAL IN ASSESSMENT YEAR 2004-05 AND 2006-07 AS WELL AS THE JUDGMENT OF HONBLE BOMBAY H IGH COURT IN ASSESSMENT YEAR 2004-05 AND UPHOLD THE IMPUGNED ORDER OF THE L EARNED CIT(APPEALS) ALLOWING THE CLAIM OF ASSESSEE FOR DEDUCTION U/S 80IB(10) HO LDING THAT THE PROJECT HAD COMMENCED ON 11-01-1999 AS PER THE FRESH COMMENCEME NT CERTIFICATE ISSUED BY THE B.M.C. 5. IN THE RESULT THE APPEALS OF THE REVENUE ARE DI SMISSED. . ORDER PRONOUNCED ON THIS 15 TH DAY OF JULY 2011. SD/- SD/- (ASHA VIJAYRAGHAVAN) (P.M. JA GTAP) JUDICIAL MEMBER ACCO UNTANT MEMBER MUMBAI DATED: 15 TH JULY 2011. COPY TO : 1. APPELLANT 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR F-BENCH. (TRUE COPY ) BY ORD ER ASSTT. R EGISTRAR ITAT MUMBAI BEN CHES WAKODE MUMBAI.