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Income Tax Appellate Tribunal, DELHI BENCH: ‘I’ NEW DELHI
Before: SHRI SAKTIJIT DEY & DR. B.R.R. KUMAR
Appellant by Sh. R.S. Singhvi, CA Sh. Satyajeet Goel, CA Respondent by Sh. Mahesh Shah, CIT(DR) Date of hearing 21.07.2022 Date of pronouncement 29.07.2022 ORDER PER SAKTIJIT DEY, JM:
Captioned appeal by the Revenue arises out of order dated 27.06.2017 of learned Commissioner of Income Tax (Appeals)-3, Delhi, pertaining to assessment year 2013-14.
Before we proceed to deal with the issue arising in the appeal, it is necessary to provide brief factual backdrop. The aforesaid appeal was disposed off by the Tribunal earlier vide order dated 10.09.2021. However, while disposing of the appeal, the Tribunal, inadvertently, did not decide ground no. 1.
While considering a miscellaneous application filed by the assessee for rectification of mistake, the Tribunal vide order dated 13.07.2022 in M.A. No. 202/Del/2021, recalled the order for the limited purpose of adjudicating ground no. 1. This is how the present appeal came up for hearing before us.
Ground no. 1 reads as under:
“1. Ld. Commissioner of Income Tax (appeals) erred in law and on the facts of the case in deleting the addition of Rs.1,48,27,50,299/- made by the AO on account of deduction claimed u/s 80IAB.”
We have heard Sh. R.S. Singhvi, learned counsel appearing for the assessee and Sh. Mahesh Shah, learned Departmental Representative.
As could be seen from the ground raised, the issue relates to deduction claimed by the assessee under section 80IAB of the Act.
The assessee is a resident corporate entity engaged in the business of real estate development. It is also engaged in leasing of constructed property and wind power generation. In the return filed for the impugned assessment year, the assessee claimed deduction of Rs.148,27,50,299/- under section 80IAB of the Act on the profits earned from the Special Economic Zone (SEZ) operation.
The Assessing Officer discarding assessee’s claim disallowed the deduction under section 80IAB of the Act on the reasoning that the sale of bare shell and cold shell to the co-developer was not permitted as per SEZ Act. Therefore, consideration received from such sale is not an income entitled for deduction under section 80IAB of the Act. Additionally, the Assessing Officer held, if the deduction under section 80IAB is allowed at a later stage, an amount of Rs.6,57,66,000/- has to be reduced from the deduction claimed, as, the assessee has not allocated the establishment and other expenses to the SEZ activity. Against the aforesaid decision of the Assessing Officer, the assessee preferred an appeal before learned Commissioner (Appeals).
Being convinced with the submission of the assessee and relying upon the order passed by his predecessor in assessee’s own case in assessment year 2009-10, learned Commissioner (Appeals) allowed the deduction claimed by the assessee fully.
Before us, it is a common point between parties that the issue stands squarely covered in favour of the assessee by the decision of the Tribunal in assessee’s own case in assessment years 2008- 09 and 2011-12.
Having gone through the materials placed before us, we find that identical issue has been decided in favour of the assessee by the Tribunal in assessment year 2008-09 vide order dated 27.05.2019 passed in & 2749/Del/2013. The aforesaid decision of the Coordinate Bench has been subsequently followed by the Bench while deciding assessee’s appeal in assessmet year 2011-12 vide order dated 29.09.2020 in ITA No.4159 & 4794/Del/2015.
Thus, respectfully following the consistent view of the Tribunal expressed in assessee’s own case, in the orders referred to above, we uphold the decision of learned Commissioner (Appeals) on the issue. Ground raised is dismissed.
In the result, the appeal is dismissed.
Order pronounced in the open court on 29th July, 2022