ITO WD 4(2), MUMBAI v. HOMAGE REALTORS P. LTD, THANE

ITA 6544/MUM/2010 | 2005-2006
Pronouncement Date: 16-11-2011 | Result: Dismissed

Appeal Details

RSA Number 654419914 RSA 2010
Assessee PAN AABCH2480H
Bench Mumbai
Appeal Number ITA 6544/MUM/2010
Duration Of Justice 1 year(s) 2 month(s) 9 day(s)
Appellant ITO WD 4(2), MUMBAI
Respondent HOMAGE REALTORS P. LTD, THANE
Appeal Type Income Tax Appeal
Pronouncement Date 16-11-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted H
Tribunal Order Date 16-11-2011
Assessment Year 2005-2006
Appeal Filed On 06-09-2010
Judgment Text
1 HOMAGE REALTORS P LTD IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI H BENCH MUMBAI BENCHES MUMBAI BEFORE SHRI PRAMOD KUMAR AM & SHRI VIJAY PAL RA O JM ITA NO. 6544/MUM/2010 (ASST YEAR 2005-06) THE INCOME TAX OFFICER WARD 4(2) MUMBAI VS HOMAGE REALTORS P LTD A3 GWEN QUEEN APTS BISHOP HOUSE BHABHOLA VASI (W) THANE (APPELLANT) (RESPONDENT) PAN NO. AABCH2480H ASSESSEE BY SH SUBODH L RATNAPARKHI REVENUE BY SH P K SINGH DT.OF HEARING 19 TH OCT 2011 DT OF PRONOUNCEMENT 16 TH NOV 2011 PER VIJAY PAL RAO JM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDER DATED 10.5.2010 OF THE CIT(A) FOR THE AY 2005-06. 2 THE REVENUE HAS RAISED VARIOUS GROUND IN THIS APP EAL; HOWEVER THE ONLY ISSUE ARISES FOR OUR CONSIDERATION AND ADJUDICATION IS W HETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD CIT(A) ERRED IN ALLOWING THE DEDUCTION U/S 80IB(10) SINCE THE ASSESSEE COMPANY HAD CONSTRU CTED RESIDENTIAL-CUM- COMMERCIAL COMPLEX THUS VIOLATING ONE OF THE PRECON DITION LAID DOWN U/S 80IB(10)(D) OF THE I T ACT. 3 WE HAVE HEARD THE LD DR AS WELL AS THE LD AR OF T HE ASSESSEE AND CAREFULLY PERUSED THE RELEVANT MATERIAL ON RECORD. WE NOTE THAT THE SOLE ISSUE INVOLVED IN THIS APPEAL IS RELEVANT TO THE APPLICABILITY OF THE AMEN DMENT OF PROVISIONS OF SEC. 2 HOMAGE REALTORS P LTD 80IB(10) IS RETROSPECTIVE OR PROSPECTIVE. THIS ISS UE HAS BEEN ADJUDICATED BY THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF BRAHMA ASSOCIATES VS JCIT (OSD) REPORTED IN 119 ITD 255 (PUNE)(SB). SUBSEQUENTLY T HE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME-TAX V. BRAHMA ASSOCIATES REPORTED IN 333 ITR 289(BOM). 3.1 ACCORDINGLY IN VIEW OF THE DECISION OF THE JU RISDICTIONAL HIGH IN THE CASE OF BRAHMA ASSOCIATES (SUPRA) THERE IS NO BAR OF COMM ERCIAL ESTABLISHMENT IN THE HOUSING PROJECT FOR AVAILING DEDUCTION U/S 80IB(10 ) PRIOR TO THE INSERTION OF CLAUSE (D) W.E.F 1.4.2005. THE HONBLE HIGH COURT IN PARA 33 HAS OBSERVED AS UNDER: IN THE ABSENCE OF ANY PROVISIONS UNDER THE INCOME-TA X ACT THE TRIBUNAL WAS NOT JUSTIFIED IN HOLDING THAT UP TO MARCH 31 2005 DEDUCTION UNDER SECTION 80- IB(10) WOULD BE ALLOWABLE TO PROJECTS APPROVED BY TH E LOCAL AUTHORITY HAVING RESIDENTIAL BUILDING WITH COMMERCIAL USER UP TO 10 P ER CENT. OF THE TOTAL BUILT- UP AREA OF THE PLOT. 3.2 AFTER CONSIDERING THE RELEVANT DETAILS WE FIND THAT EVEN AFTER EXCLUDING THE PROPORTIONATE AREA RELATES TO COMMERCIAL ESTABLISHM ENT IN THE PROJECT THE SIZE OF THE PLOT STILL REMAINS MORE THAN ONE ACRE. THEREFOR E WHEN THE PROJECT WAS APPROVED PRIOR TO 1.4.2005 THEN THERE IS NO BAR FOR ALLOWIN G DEDUCTION U/S 80IB ONCE THE RESIDENTIAL PROJECT HAVING COMMERCIAL ESTABLISHMENT HAS BEEN APPROVED BY THE LOCAL AUTHORITIES. IN THIS VIEW OF THE MATTER WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE FINDINGS OF THE LD CIT(A) QUA THIS ISSUE. 4 IN THE RESULT THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON THE 16 TH DAY OF NOV 2011. SD/ SD/ ( PRAMOD KUMAR ) ACCOUNTANT MEMBER ( VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 16 NOV 2011 3 HOMAGE REALTORS P LTD RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR ITAT MUMBAI