ITO 24(3)(2), MUMBAI v. NEETA ENTERPARISES, MUMBAI

ITA 5205/MUM/2014 | 2007-2008
Pronouncement Date: 21-10-2016 | Result: Dismissed

Appeal Details

RSA Number 520519914 RSA 2014
Assessee PAN AACFN4947M
Bench Mumbai
Appeal Number ITA 5205/MUM/2014
Duration Of Justice 2 year(s) 2 month(s) 7 day(s)
Appellant ITO 24(3)(2), MUMBAI
Respondent NEETA ENTERPARISES, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 21-10-2016
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 21-10-2016
Assessment Year 2007-2008
Appeal Filed On 14-08-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B MUMBAI BEFORE SHRI G.S.PANNU ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH JUDICIAL MEMBER ITA NO.5205/MUM/2014(A.Y. 2007-08) ITA NO.5206/MUM/2014(A.Y. 2010-11) THE INCOME TAX OFFICER-24(3)(2) ROOM NO.704 C-11 PRATAYAKSHA KAR BHAVAN BANDRA KURLA COMPLEX BANDRA (E) MUMBAI 400051 ...... APPELLANT VS. M/S. NEETA ENTERPRISES 141 GUNDECHA HOUSE JAWAHAR NAGAR GOREGAON(W) MUMBAI 400 062 PAN:AACFN 4947M .... RESPONDE NT APPELLANT BY : SHRI N.P.SINGH RESPONDENT BY : SHRI VIMAL PUNIYA DATE OF HEARING : 18/10/2016 DATE OF PRONOUNCEMENT : 21/10/2016 ORDER PER G.S.PANNU A.M: THE CAPTIONED APPEALS FILED BY THE REVENUE RELAT ES TO THE SAME ASSESSEE FOR ASSESSMENT YEARS 2007-08 &2010-11. THE ISSUES INVOLVED IN THESE APPEALS ARE COMMON THEREFORE THEY HAVE BEEN CLUBB ED AND HEARD TOGETHER AND A CONSOLIDATED ORDER IS BEING PASSED FOR THE SA KE OF CONVENIENCE AND BREVITY. 2 ITA NO.5205/MUM/2014(A.Y. 2007-08) ITA NO.5206/MUM/2014(A.Y. 2010-11) 2. WE MAY REFER TO THE APPEAL FOR ASSESSMENT YEAR 2 007-08 AS THE LEAD CASE IN ORDER TO APPRECIATE THE CONTROVERSY. THIS APPEAL IS DIRECTED AGAINST AN ORDER PASSED BY CIT(A)-34 MUMBAI DATED 21/05/2014 WHICH IN TURN ARISES OUT OF AN ORDER PASSED BY THE ASSESSING OFFICER UN DER SECTION 143(3) R.W.S. 263 OF THE INCOME TAX ACT 1961 (IN SHORT THE ACT) D ATED 22/03/2013. THE GROUNDS OF APPEAL RAISED BY THE REVENUE IN THIS APP EAL READ AS UNDER:- 1) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW THE LD. CIT(A) ERRED IN ALLOWING DEDUCTION UNDER SECTION 80 IB(10) OF THE I.T. ACT IGNORING THE FACT THAT THE APPROVAL OF THE LOCAL AUTHORITY WAS O BTAINED ON 28/11/1992 I.E. MUCH BEFORE 01.10.1998 THE DATE ON OR AFTER WHICH THE P ROJECT APPROVED WERE ELIGIBLE FOR DEDUCTION UNDER SECTION. 80IB(10). 2) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD. CIT(A) ERRED IN ALLOWING DEDUCTION UNDER SECTION. 80IB(10) OF THE I.T. ACT IGNORING THE FACT THAT IT HAS NOT OBTAINED COMPLETION CERTIFICATE FRO M LOCAL AUTHORITY BEFORE 31.03.2008 WHICH IS MANDATORY AS PER EXPLANATION (II) TO SECTI ON 8L0IB(10) OF THE ACT. 3. BEFORE US IT WAS A COMMON GROUND BETWEEN THE PA RTIES THAT BOTH THE ISSUES RAISED IN THIS APPEAL HAVE BEEN DECIDED BY T HE TRIBUNAL IN ASSESSEES OWN CASE IN EARLIER YEARS IN FAVOUR OF THE ASSESSEE . IN THIS BACKGROUND IN ORDER TO IMPART COMPLETENESS TO THE ORDER WE PROCEED TO MAKE THE FOLLOWING DISCUSSION. 4. ASSESSEE BEFORE US IS A PARTNERSHIP FIRM WHICH IS ENGAGED IN THE BUSINESS OF BUILDERS AND DEVELOPERS. IN THE IMPUGN ED ASSESSMENT FINALIZED UNDER SECTION 143(3) R.W.S 263 OF THE ACT DATED 22/ 2/2013 THE ASSESSING OFFICER DISALLOWED THE CLAIM OF DEDUCTION OF RS.13 50 93 090/- MADE UNDER SECTION 80IB(10) OF THE ACT FOLLOWING THE STAND OF THE ASSESSING AUTHORITIES IN THE OTHER ASSESSMENT YEARS. BEFORE THE CIT(A) ASS ESSEE POINTED OUT THAT THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT HAS BEE N WRONGLY DENIED BY THE ASSESSING OFFICER BASED ON THE PAST HISTORY BECAUSE IN OTHER ASSESSMENT YEARS THE CIT(A) HAS ALREADY ALLOWED THE CLAIM OF THE ASS ESSEE. IN THIS VIEW OF THE 3 ITA NO.5205/MUM/2014(A.Y. 2007-08) ITA NO.5206/MUM/2014(A.Y. 2010-11) MATTER THE CIT(A) HAS SINCE ALLOWED THE CLAIM OF T HE ASSESSEE AGAINST WHICH REVENUE IS IN APPEAL BEFORE US. 5. IN SO FAR AS THE GROUND OF APPEAL NO.1 IS CONCE RNED THE DISPUTE RELATES TO THE DATE COMMENCEMENT OF THE HOUSING PROJECT FOR THE PURPOSES OF THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE AC T. THIS ASPECT OF THE CONTROVERSY STANDS COVERED BY THE DECISION OF THE T RIBUNAL DATED 04/06/2014 VIDE ITA NO.2898/MUM/2010( FOR ASSESSMENT YEAR 200 6-07) & OTHERS DATED 04/06/2014. THE CONCLUSION OF THE TRIBUNAL IN THIS REGARD IS AS UNDER:- 18. IN THE PRESENT CASE ALSO NO EXPENDITURE WHAT SOEVER HAS BEEN SHOWN TO BE INCURRED ON THE HOUSING PROJECT FOR WHICH APPROV AL WAS OBTAINED BY THE ASSESSEE AFTER ENTERING INTO DEVELOPMENT AGREEMENT I.E. ON 10TH JULY 2003. THE EXPENDITURE INCURRED BY M/S. GAS PROPERTY DEVEL OPERS WERE NOT ON THE HOUSING PROJECT APPROVED BY THE MUNICIPAL CORPORATI ON ON THE REVISED LAYOUT. 19. PLAN SUBMITTED BY THE ASSESSEE AFTER ENTERING INTO DEVELOPMENT AGREEMENT. THE EXPENDITURE INCURRED BY M/S. GAS PRO PERTY DEVELOPERS WAS ON REPAIR OF THE BOUNDARY WALL. THEREFORE ON THE B ASIS OF THE EARLIER APPROVAL OBTAINED BY M/S. GAS PROPERTY DEVELOPERS WHICH HAS ALREADY LAPSED AND THE EXPENSES WERE ON ACCOUNT OF REPAIR OF BOUNDARY WALL THE PROJECT CANNOT BE STATED TO HAVE BEEN COMMENCED BEF ORE 01.10.1998. THEREFORE WE FIND NO INFIRMITY IN THE FINDINGS REC ORDED BY THE LEARNED CIT(A) THAT THE AO WAS WRONG IN HOLDING THAT THE HOUSING P ROJECT OF THE ASSESSEE HAD COMMENCED BEFORE 01.10.1998. WE UPHOLD HIS OR DER. SINCE THE FACTS AND CIRCUMSTANCES IN ALL THE THREE CASES ARE IDENTI CAL ALL THE APPEALS FILED BY THE REVENUE ARE DISMISSED . 6. CONSIDERING THE AFORESAID FINDING OF THE TRIBUNA L WE FIND NO REASON TO INTERFERE WITH THE DECISION OF THE CIT(A) WHICH IS IN CONSONANCE WITH THE ORDER OF THE TRIBUNAL. THUS IN SO FAR AS GROUND OF APPE AL NO.1 IS CONCERNED THE REVENUE FAILS. 7. THE ISSUE RAISED IN GROUND OF APPEAL NO.2 RELATE S TO THE DATE OF COMPLETION OF THE PROJECT AND ON THIS ASPECT THE LD . REPRESENTATIVE FOR THE ASSESSEE EXPLAINED THAT THE ISSUE STANDS COVERED IN FAVOUR OF THE ASSESSEE BY 4 ITA NO.5205/MUM/2014(A.Y. 2007-08) ITA NO.5206/MUM/2014(A.Y. 2010-11) THE ORDER OF THE TRIBUNAL FOR ASSESSMENT YEAR 2009- 10 VIDE ITA NO. 1652/MUM/2013 DATED 9/10/2015. IT WAS ALSO BROUGH T OUT THAT IN ASSESSMENT YEAR 2011-12 ALSO THE TRIBUNAL VIDE ITA NO. 6002/M UM/2014 DATED 23/09/2016 HAS DECIDED THE ISSUE IN FAVOUR OF THE A SSESSEE. 8. IN THIS CONTEXT IT IS NOTICED THAT THE OBJECTIO N OF THE ASSESSING OFFICER WAS THAT SINCE THE PROJECT WAS NOT COMPLETED BEFORE 31/03/2008 THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT COULD N OT BE ALLOWED. AS PER THE CIT(A)S DECISION IN PARA 3.3 IT IS SEEN THAT ACCO RDING TO HER THE CONDITION REGARDING COMPLETION OF THE HOUSING PROJECT BEFORE 31/3/2008 WAS NOT APPLICABLE IN THIS CASE AS THE PROJECT WAS APPROVE D PRIOR TO THE AMENDMENT MADE IN THE STATUTE RELATING TO THE DUE DATE OF COM PLETION. FURTHER THE CIT(A) RECORDS A FINDING IN PARAS 3.4.4 AND 3.4.5 THAT IN ANY CASE; ASSESSEE HAS COMPLETED THE CONSTRUCTION WORK IN ALL RESPECTS BE FORE 31/8/2008 AND OBTAINED THE OCCUPANCY CERTIFICATE ALSO. EVEN BEFOR E US THE LD. REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT HOUSING PROJECT C ONSISTED OF SEVEN BUILDINGS AND IN RESPECT OF A B C D E F AND G WINGS OCCUPANCY CERTIFICATES WERE OBTAINED AND POSSESSION HANDED OVER TO FLAT PURCHASERS WHO STARTED RESIDING IN THE ALLOTTED FLATS. IT IS POINTED OUT THAT THE OCCUPAN CY CERTIFICATE ISSUED BY THE LOCAL AUTHORITIES CLEARLY PROVES THAT THE WORK IN R ESPECT OF THE HABITABLE AREA OF THE HOUSING PROJECT WAS COMPLETE IN ALL RESPECTS . ALL THESE FACTS HAVE NOT BEEN CONTROVERTED BEFORE US AND THE SAME HAVE BEEN DULY CONSIDERED AND ACCEPTED BY THE TRIBUNAL IN ITS ORDER DATED 23/9/20 16(SUPRA) FOR ASSESSMENT YEAR 2011-12. 9. IN VIEW OF THE PRECEDENT IN THE CASE OF ASSESSEE FOR ASSESSMENT YEAR 2009-10(SUPRA) AND ASSESSMENT YEAR 2011-12(SUPRA) WHEREIN IDENTICAL SITUATION IN RELATION TO THE VERY SAME PROJECT HAS BEEN CONSIDERED WE FIND NO 5 ITA NO.5205/MUM/2014(A.Y. 2007-08) ITA NO.5206/MUM/2014(A.Y. 2010-11) REASON TO INTERFERE WITH THE DECISION OF THE CIT(A) IN ALLOWING THE CLAIM OF THE ASSESSEE WHICH IS IN LINE WITH THE AFORESAID PRECE DENTS. AS A CONSEQUENCE ON THIS ASPECT ALSO THE ORDER OF THE CIT(A) IS AFFIRM ED AND REVENUE FAILS. 10 IN THE RESULT APPEAL OF THE REVENUE FOR ASSESSM ENT YEAR 2007-08 IS DISMISSED. 11. IT WAS A COMMON POINT BETWEEN THE PARTIES THAT THE FACTS AND CIRCUMSTANCES IN ITA NO. 5206/MUM/2014 FOR ASS ESSMENT YEAR 2010-11 ARE PARI-MATERIA TO THOSE CONSIDERED BY US IN ITA NO. 5205/MUM/2014 FOR ASSESSMENT YEAR 2007-08; THUS OUR DECISION THEREIN SHALL APPLY MUTATIS MUTANDIS IN THE APPEAL FOR ASSESSMENT YEAR 2010-11 ALSO. 12. IN THE RESULT APPEALS OF THE REVENUE FOR BOTH THE ASSESSMENT YEARS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21/10/2016 SD/- SD/- (AMARJIT SINGH) (G.S. PANNU) JUDICIAL MEMBER ACCOCUNTANT MEMBER MUMBAI DATED 21/10/2016 VM SR. PS 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. BY ORDER //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT MUMBAI