SIDDHIVINAYAK HOMES, v. ITO 12(1)(1),

MA 659/MUM/2012 | 2008-2009
Pronouncement Date: 10-07-2013 | Result: Dismissed

Appeal Details

RSA Number 65919924 RSA 2012
Assessee PAN AAVFS8880K
Bench Mumbai
Appeal Number MA 659/MUM/2012
Duration Of Justice 8 month(s) 11 day(s)
Appellant SIDDHIVINAYAK HOMES,
Respondent ITO 12(1)(1),
Appeal Type Miscellaneous Application
Pronouncement Date 10-07-2013
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted E
Tribunal Order Date 10-07-2013
Date Of Final Hearing 05-07-2013
Next Hearing Date 05-07-2013
Assessment Year 2008-2009
Appeal Filed On 29-10-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH MUMBAI BEFORE S/SHRI B.R.MITTAL (JM) AND B. RAMAKOTAIAH AM . . . M.A NO.658 AND 659/M/2012 (ARISING OUT OF ITA NO.7306/MUM/2010 AND 5378/MUM/2 011) ASSESSMENT YEARS : 2007-08 AND 2008-09 SIDDHIVINAYAK HOMES GR. FLOOR 220 TARA MANSION 11 TH KHETWADI MAIN ROAD MUMBAI / VS. ITO 12(1)(1) AAYAKAR BHAVAN M.K. ROAD MUMBAI. ./ ./PAN/GIR NO. : AAVFS 8880K ( % / APPLICANT ) .. ( & % / RESPONDENT) % / APPLICANT BY : SHRI REEPAL G.TRALSHAWALA & % ( /RESPONDENT BY : MS.NEERJA PRADHAN ( + / DATE OF HEARING : 5.7.2013 ( + /DATE OF PRONOUNCEMENT : 10.7.2013 / O R D E R PER B.R.MITTAL JM: BY THESE TWO MISCELLANEOUS APPLICATIONS FILED U/ S 254(2) OF THE INCOME TAX ACT 1961 THE ASSESSEE HAS STATED THAT THERE IS AN APPA RENT MISTAKE IN THE ORDER PASSED BY THE TRIBUNAL DATED 26.09.2012 FOR ASSESSMENT YEARS 2007-08 AND 2008-09 IN THE APPEALS FILED BY THE ASSESSEE BEING ITA NO.7306/MUM /2010 AND 5378/MUM/2011 RESPECTIVELY. HE HAS STATED THAT THE SAID ORDER OF THE TRIBUNAL DATED 26.9.2012 BE RECALLED AND THE APPEALS BE DECIDED AFRESH IN CONSO NANCE WITH THE PROVISIONS OF SECTION 254 OF THE ACT. 2. IN THE APPLICATIONS THE ASSESSEE HAS STATED THA T THE ISSUE IN THE APPEALS FILED BY THE ASSESSEE RELATES TO CLAIM OF DEDUCTION U/S 80IB (10) OF THE ACT WITH REGARD TO THE PROFITS DERIVED FROM CONSTRUCTION AND DEVELOPMENT O F HOUSING PROJECT. THE SAID APPEALS WERE HEARD TOGETHER ALONG WITH THE CROSS-AP PEALS FILED BY THE DEPARTMENT FOR BOTH THE ASSESSMENT YEARS UNDER CONSIDERATION (BEIN G ITA NO.8726/MUM/2010 FOR AY- 2007-08 AND 5986/MUM/2011 FOR AY-2008-09). THE ASS ESSEE HAS STATED IN THE M.A NO.658 AND 659/M/2012 2 APPLICATIONS THAT IT WAS INDICATED AT THE TIME OF HEARING THAT THE ISSUE INVOLVED IN THE APPEALS ARE COVERED IN FAVOUR OF THE ASSESSEE WHEN THE DEPARTMENT ASKED FOR THE ADJOURNMENT. IT IS STATED IN THE APPLICATION THAT ON THE DATE FIXED FOR HEARING I.E. 9.8.2012 THE ASSESSEE FILED A SYNOPSIS OF THE CA SE WHICH IS ALSO REFERRED IN THE ORDER OF THE TRIBUNAL IN PARAGRAPH 14 AT PAGE 13 THEREOF. IT IS STATED THAT THE ASSESSEE FILED A PAPER BOOK NO.II GIVING THE FIRST THREE CASES AND STATED THAT THE ISSUE STOOD COVERED IN FAVOUR OF THE ASSESSEE. IT IS STATED THAT THE BENCH WAS FURTHER OF THE VIEW THAT THE SALES HAVE TAKEN PLACE BEFORE THE AMENDMENT MADE B Y FINANCE (NO.2) ACT 2009 W.E.F. 1.4.2010 THE AMENDMENT WAS NOT APPLICABLE TO THE P RESENT CASE OF THE ASSESSEE. THAT THE SAID AMENDMENT WAS PROSPECTIVE AND NOT RETROSP ECTIVE. IT IS FURTHER STATED IN THE APPLICATION THAT THE TRIBUNAL WHILE DECIDING THE I SSUE HAS CONSIDERED THE DECISION IN PARAGRAPHS 18 AND 19 VIZ THISTLE PROPERTIES (P)LT D V/S ACIT REPORTED IN 134 ITD 6(MUM) AND HAVE PLACED RELIANCE ON THE SAID DECISIO N. THE LD. AR HAS STATED THAT THE SAID DECISION WAS NOT CITED DURING THE COURSE OF HE ARING BY EITHER OF THE PARTIES. IT IS FURTHER STATED IN PARA (IV)(B) OF THE APPLICATION THAT THE FACTS OF THE SAID DECISION ARE DISTINGUISHABLE AND ARE NOT APPLICABLE TO THE FACT S OF THE CASE OF THE ASSESSEE. THE ASSESSEE IN THE APPLICATION HAS FURTHER STATED THAT THE TRIBUNAL OUGHT TO HAVE FOLLOWED THE EARLIER DECISION INSTEAD OF FOLLOWING THE SAID DECISION AND HAS DISCUSSED THE SAME IN PARA C AND D OF THE APPLICATIONS. THE ASSESS EE HAS ALSO FURTHER SUBSTANTIATED THE ABOVE STAND BY CITING THE NUMBER OF CASES IN THE SU BSEQUENT FOUR PAGES OF THE APPLICATIONS FOR THE SAKE OF BREVITY WE DO NOT CON SIDER IT NECESSARY TO MENTION THOSE DECISIONS WHILE CONSIDERING THESE APPLICATIONS OF T HE ASSESSEE. 3. AT THE TIME OF HEARING THE LD. AR BESIDES PLACI NG RELIANCE AND REFERRING THE CONTENTS OF THE APPLICATIONS ALSO SUBMITTED THAT TH E CASES CITED BY THE ASSESSEE AND REFERRED IN PAPER BOOK NO.II HAVE NOT BEEN DISCUSS ED SPECIFICALLY IN THE IMPUGNED ORDER OF THE TRIBUNAL. THE LD. AR FURTHER SUBMITTED THAT THE PLACING OF RELIANCE ON THE DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF THISTLE PROPERTIES (P)LTD(SUPRA) WITHOUT GIVING AN OPPORTUNITY OF HEARING TO THE ASS ESSEE IS IN VIOLATION OF PRINCIPLE OF NATURAL JUSTICE AND THEREFORE THE ORDER OF THE TRI BUNAL IS LIABLE TO BE RECALLED AS IT IS AN APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL. TO SUBSTANTIATE HIS SUBMISSIONS THE LD. AR REFERRED THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF INVENTURE GROWTH AND SECURITIES LTD V/S INCOME TAX APPELLAT E TRIBUNAL AND ORS.(2010) 324 ITR 319(BOM). M.A NO.658 AND 659/M/2012 3 4. ON THE OTHER HAND THE LD. DR SUBMITTED THAT THE TRIBUNAL IN PARAGRAPH 17 OF THE IMPUGNED ORDER HAS CATEGORICALLY STATED THAT TH E TRIBUNAL HAS CONSIDERED THE SUBMISSIONS OF THE REPRESENTATIVES OF THE PARTIES A ND HAVE ALSO GONE THROUGH THE CASES FILED BY THE ASSESSEE IN PAPER BOOK NO.II AND HAVE ALSO CONSIDERED THE RELEVANT PAGES OF PAPER BOOK NO.I. THE LD. DR SUBMITTED THAT THE TRIBUNAL HAS MENTIONED THE CASE OF THISTLE PROPERTIES (P)LTD(SUPRA) IN PARAGRAPH 19 T O SUBSTANTIATE THE REASONS GIVEN IN THE PRECEDING PARAGRAPHS OF ITS ORDER AND THE VIEW TAKEN BY THE LD. CIT(A). THE LD. DR SUBMITTED THAT THE PLACING OF RELIANCE ON THE SAID DECISION BY THE TRIBUNAL IN PARAGRAPH 19 DOES NOT AFFECT THE MERITS OF THE CASE AS THE TRIBUNAL HAS DEICED THE ISSUE AFTER CONSIDERING THE FACTS AND THE REASONING CITED BY TH E LD. CIT(A). THE LD. DR SUBMITTED THAT THERE IS NO APPARENT MISTAKE IN THE ORDER OF T HE TRIBUNAL AND THE ASSESSEE BY THESE APPLICATIONS WANTS REVIEW OF THE ORDER OF THE TRIB UNAL WHICH IS OUTSIDE THE PURVIEW OF THE SECTION 254(2) OF THE ACT. 5. DURING THE CORUSE OF HEARING THE LD. AR SUBMITT ED THAT THE ASSESSEE HAS ALSO FILED APPEALS U/S 260A OF THE ACT BEFORE THE HONBL E BOMBAY HIGH COURT AGAINST THE IMPUGNED ORDER OF THE TRIBUNAL BEING INCOME TAX AP PEAL NO.228 AND 229 OF 2013 AND THE HONBLE HIGH COURT BY ITS TWO ORDERS BOTH D ATED 18.3.2013 HAVE ADMITTED THE SUBSTANTIAL QUESTION OF LAW. THE LD. AR FILED A CO PY OF THE SAID ORDER OF THE HONBLE BOMBAY HIGH COURT BEFORE US AND THE QUESTION WHICH HAVE BEEN ADMITTED BY THE HONBLE HIGH COURT IN BOTH THE APPEALS ARE AS UNDER : A) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCE S OF THE CASE THE TRIBUNAL WAS JUSTIFIED IN LAW AND ON FACTS IN DENYING THE DE DUCTION TO THE APPELLANT UNDER SECTION 80IB(1) OF THE INCOME TAX ACT AS CLAIMED WI THOUT APPRECIATING THE FACTS OF THE CASE THAT THE APPELLANT HAD COMPLIED WITH AL L THE CONDITIONS OF SECTION 80IB(10) OF THE ACT? B) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE THE TRIBUNAL WAS RIGHT IN LAW IN NOT APPRECIATING THAT EVEN IF THE CONDITION OF BUILT UP AREA INTRODUCED BY FINANCE (NO.2) ACT 2004 WAS ONLY WITH EFFECT FROM 1 ST APRIL 2005 THE SAME COULD NOT BE MADE APPLICABLE TO THE PRESENT CASE IN ASMUCH AS THAT EVEN IF THE AREA OF THE COMBINED FLATS WAS TO BE TAKEN INTO CON SIDERATION THE SAME WOULD NOT BE MORE THAN 1000 SQ.FT. AS ELEVATIO NS/PROJECTIONS AND BALCONIES COULD NOT BE INCLUDED IN THE DEFINITI ON OF 'BUILT UP AREA'? IN VIEW OF THE ABOVE IT IS EVIDENT THAT THE ASSESS EE HAS FILED THE APPEALS AGAINST THE IMPUGNED ORDER OF THE TRIBUNAL DATED 26.9.20123 BEF ORE THE HONBLE BOMBAY HIGH COURT AND THE HONBLE BOMBAY COURT HAS ADMITTED THE QUESTION OF LAW. SINCE THE QUESTION OF LAW HAS ALREADY BEEN ADMITTED BY THE H ONBLE HIGH COURT WE ARE OF THE CONSIDERED VIEW THAT THE QUESTION OF CONSIDERING THE IMPUGNED ORDER OF THE TRIBUNAL M.A NO.658 AND 659/M/2012 4 U/S 254(2) OF THE ACT DOES NOT ARISE. IT IS RELEV ANT TO STATE THAT THE HONBLE KOLKATA HIGH COURT IN THE IT APPEAL NO.24 OF 2010 IN THE C ASE PANKAJ RATHI V/S CIT VIDE ORDER DATED 18.8.2010 HELD THAT THE WHEN THE APPEALS HAV E BEEN FILED THE MISCELLANEOUS APPLICATIONS BEFORE THE INCOME TAX APPELLATE TRIB UNAL ITSELF NEEDLESS TO MENTION PARALLEL PROCEEDINGS FOR ACHIEVING THE SAME PURPO SE CANNOT BE ALLOWED TO BE DONE IN A SELF SAME MATTER WHICH HAS EXACTLY BEEN DONE IN T HIS CASE. IN VIEW OF THE ABOVE WE ARE OF THE CONSIDERED VIEW THAT THESE MISCELLANEOU S APPLICATIONS FILED BY THE ASSESSEE TO RECALL THE ORDER OF THE TRIBUNAL DATED 26.9.2012 DO NOT SURVIVE PARTICULARLY WHEN THE HONBLE HIGH COURT IS SEIZED OF THE MATTER BY ADMI TTING THE QUESTION OF LAW IN THE APPEALS FILED BY THE ASSESSEE. A SIMILAR VIEW HAS ALSO BEEN TAKEN BY CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF M/S LUPIN LIMITED ( FORMERLY KNOWN AS LUPIN LABORATORIES LTD V/S ACIT IN MA NOS.311 AND 312 /MUM/2012 ARISIN G OUT OF ITA NO.2060 & 2061/MUM/2005 (AY-1998-99 AND 1999-2000) DATED 15.3 .2013 TO WHICH ONE OF US (AM) IS ALSO A PARTY. IN ABOVE CASE THE MISCELLAN EOUS APPLICATIONS FILED BY THE ASSESSEE WERE DISMISSED STATING THAT QUESTION OF LA W WAS ALREADY ADMITTED BY THE HONBLE HIGH COURT QUESTION OF REVIEWING THE ORDE R UNDER SECTION 254(2) OF THE ACT DOES NOT ARISE. 6. IN VIEW OF THE ABOVE AND WITHOUT GOING INTO TH E MERITS OF THE CONTENTS OF THE APPLICATIONS FILED BY THE ASSESSEE AND THE SUBMISSI ONS MADE BEFORE US BY LD. REPRESENTATIVES OF BOTH THE PARTIES WE HOLD THAT THE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE ARE LIABLE TO BE DISMISSED AS THE ASSE SSEE HAS FILED APPEALS BEFORE THE HONBLE BOMBAY HIGH COURT AND HONBLE HIGH COURT H AS ADMITTED THE QUESTION OF LAW BY ITS ORDER DATED 18.3.2013. HENCE BOTH THE APPLI CATIONS OF THE ASSESSEE ARE DISMISSED. 7. ORDER PRONOUNCED IN THE OPEN COURT ON 10TH JULY 2013 ( 0 1 10TH JULY 2013 ( SD/- SD/- ( . /B. RAMAKOTAIAH ) ( . . /B.R.MITTAL) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; 1 DATED 10TH JULY 2013 . . ./ SRL SR. PS M.A NO.658 AND 659/M/2012 5 ! / COPY OF THE ORDER FORWARDED TO : 1. % / THE APPELLANT 2. & % / THE RESPONDENT. 3. 6 ( ) / THE CIT(A)- 4. 6 / CIT 5. 7 &9 + 9 / DR ITAT MUMBAI 6. / GUARD FILE. / BY ORDER (ASSTT. REGISTRAR) + 9 /ITAT MUMBAI