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Income Tax Appellate Tribunal, “H” Bench, Mumbai
Before: Shri G.Manjunatha & Shri Ravish Sood
O R D E R
PER RAVISH SOOD, JM
The present appeals filed by the assessee are directed against the respective orders passed by the CIT(A)-II, Thane, dated 26.09.2011, which in turn arises from the respective assessment orders passed under Sec. 143(3) for A.Y. 2007-08 and A.Y. 2008-09. As a common issue is involved in the aforementioned appeals, therefore, the same are being taken up and disposed off by way of a consolidated order. We shall first advert to the appeal filed by the assessee for A.Y. 2007-08. The assessee has assailed the order of the CIT(A) before us on the following grounds of appeal :
P a g e | 2 & 8484/Mum/2011 AYs.2007-08& 2008-09 M/s Harmony Enterprises Vs. Income Tax Officer, Ward 2(1) 1. The learned Commissioner of Income Tax (Appeals) erred in upholding the disallowance of deduction claimed by the appellant U/s 80IB(10) of the Income Tax Act, 1961 amounting to Rs.10,68,465/-. 2. The appellant prays that deduction U/s. 80IB(10) of Rs.10,68,465/- be allowed. 3. The appellant craves leave to add to, amend or alter, delete, and/or modify the above grounds of appeal
.”
2. Briefly stated, the assessee firm which is engaged in the business of civil construction had e-filed its return of income for A.Y. 2007-08 on 31.10.2008, declaring total income of Rs.1,67,317/-. Subsequently, the case of the assessee was selected for scrutiny assessment under Sec. 143(2).
3. During the course of the assessment proceedings, it was observed by the A.O that the assessee had undertaken construction of two housing projects viz. (i) “Guru Chhaya” A to M Wing, which was claimed to be covered by the provisions of Sec. 80IB(10) ; and (ii) “Guru Chayya” N Wing, which was not covered by the provisions of Sec.80IB(10). The A.O while verifying the entitlement of the assessee towards claim of deduction under Sec. 80IB(10) in respect of the aforementioned housing project viz. “Guru chayya” A to M Wing, at Badalpur, Thane, observed, that the said project was approved by the Local authority, Badalpur Municipal Council. As the project of the assessee was on fragmented pieces of lands, therefore, the A.O held a conviction that the same was not constructed on a plot of land having an area of minimum one acre. The claim of the assessee that if the housing project is developed on total land area of more than one acre, even if more than one plots are clubbed together and approval is granted by the lower authorities treating it as one scheme, it satisfied the condition of one acre as stipulated in clause (b) of Sec. 80IB(10), however, did not find favour with the A.O. According to the A.O, the plain reading of the clause (b) of Sec. 80IB(10) clearly envisaged that the project should be on a minimum area of a plot of one acre at the P a g e | 3 & 8484/Mum/2011 AYs.2007-08& 2008-09 M/s Harmony Enterprises Vs. Income Tax Officer, Ward 2(1) time of approval by the local authority. In the backdrop of the aforesaid facts, it was observed by the A.O, that the first and the subsequent approval granted by the local authority for the aforesaid project of the assessee was for an area of less than one acre. Further, the A.O observed that even if the plots on which the housing project was constructed were bunched, the same did not result to one cohesive plot of one acre as the entire area was in a fragmented form. On the basis of his aforesaid observations, it was observed by the A.O, that the assessee had failed to fulfil the condition prescribed in clause (b) of Sec. 80IB(10), which was one of the basic condition for availing the benefit of deduction under the said section. Accordingly, in the backdrop of his aforesaid deliberations the A.O disallowed the assesses claim of deduction under Sec. 80IB(10) amounting to Rs.10,68,465/-. ` 4. Aggrieved, the assessee carried the matter in appeal before the CIT(A). The CIT(A) observed that the facts and the issue involved in the case of the assessee were identical to those which were involved in its own case for the immediately preceding year i.e A.Y. 2006-07. It was observed by the CIT(A), that the disallowance of the assesses claim of deduction under Sec. 80IB(10), for the reason, that it had failed to satisfy the condition envisaged under clause (b) of Sec. 80IB(10), was upheld by him while disposing off the appeal of the assessee for the aforesaid preceding year viz. A.Y.2006-07. Accordingly, the CIT(A) following his earlier view, therein concluded, that as the housing project was constructed on a plot of land which was less than 1 acre, therefore, the assessee was not eligible for claim of deduction under Sec. 80IB(10), 5. The assessee being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. The ld. Authorized P a g e | 4 & 8484/Mum/2011 AYs.2007-08& 2008-09 M/s Harmony Enterprises Vs. Income Tax Officer, Ward 2(1) Representative (for short „A.R‟) for the assessee took us through the facts of the case. It was submitted by the ld. A.R that the issue involved in the present appeal was squarely covered by the order of the Tribunal in the assesses own case for the immediately preceding year i.e A.Y. 2006-07 (copy placed on record). The ld. A.R taking us through the order of the Tribunal i.e ITAT, Mumbai Bench “H” Bench, Mumbai viz. M/s Harmony Enterprises Vs. DCIT, Circle-2, Kalyan (ITA No. 1516/Mum/2011, dated 16.01.2015) submitted, that a similar disallowance of the assesses entitlement towards claim of deduction under Sec. 80IB(10) was vacated by the Tribunal while disposing off the appeal of the assessee for the aforesaid preceding year.
Per contra, the ld. Departmental Representative (for short „D.R‟) relied on the orders of the lower authorities.
We have heard the authorized representatives for both the parties, perused the orders of the lower authorities and the material available on record. The issue involved in the present appeal lies in a narrow compass i.e as to whether the assesses entitlement towards claim of deduction under Sec.80IB(10) in respect of its housing project viz. “Guru Chayya” A to M Wing at Badalpur, Thane, was rightly declined by the lower authorities. On a perusal of the orders of the lower authorities, we find, that the assessee was held to be ineligible for claim of deduction under the aforesaid statutory provision, for the reason, that as the said housing project of the assessee was on a plot of land of less than one acre, therefore, the statutory condition envisaged in clause (b) of Sec.80IB (10) had not been satisfied. We have deliberated on the issue under consideration and find, that the same is squarely covered by the order of the ITAT, Mumbai “H” Bench, Mumbai, in the assesses own case for the immediately preceding year P a g e | 5 ITA Nos. 8483 & 8484/Mum/2011 AYs.2007-08& 2008-09 M/s Harmony Enterprises Vs. Income Tax Officer, Ward 2(1) i.e A.Y. 2006-07 viz. M/s Harmony Enterprises Vs. DCIT, Circle-2, Kalyan (ITA No. 1516/Mum/2011, dated 16.01.2015). We find that the Tribunal in its aforesaid order, had while deliberating on the entitlement of the assessee towards claim of deduction under Sec.80IB(10) in respect of the housing project under consideration i.e “Guru Chayya” A to M Wing, at Badalpur, Thane, had concluded that the assessee satisfied the requisite statutory conditions therein envisaged, by observing as under :
“18. We have heard the arguments and have pursued the material on record and the supposed additional evidence, evidencing that the project was undertaken on plot size of 1 acre or more.
These documents being produced now, are not being considered by us. This is because, the project being developed on plot size exceeding one acre is apparent and evident and accepted by the AO in his order, when he describes phase I and II on page 2. We find that in phase I the area as per revised plan aggregated to 4,088.50 sq. nits. and phase II aggregated to 2,791.90 sq. nits. Both phases aggregate to 6,880.40 sq. mts., which is definitely in excess of 1 acre, (1 acre is 4,000 sq. mts.), which has been brought in simplified way and as per certificate of the Architect, as additional evidence. Since the AO has accepted the area as 6,880.90 sq. nits. in the assessment order itself, we do find any need for admitting or pursuing the additional evidence.
The other issue raised by the DR is that the amenities should be excluded to compute 1 acre. We have gone through the plan and seen that the plot seems to be fragmented because of roads and recreational areas. These Issues have been consistently decided in favour of the assessee by the CIT(A) as well as by the ITAT that DP roads and recreational areas have to be included while considering the claim of deduction u/s 801B(10). In any case, the relevant provision says “the project is on the size of a plot of land which has a minimum area of one acre”. Nowhere does it say that each building, but it talks about the project. The project was Guru Chhaya having A to M wings, which was on 6,880.90 sq. mt. land which, as per development plan consisted of roads and recreational areas.
Nowhere in the orders of the revenue authorities there has been even a whisper that the project though fragmented land were different projects, because phases I & II had received approval on 12.04.200 1 (AO page 2). This clearly shows that the sanction was allowed by the local authorities, for the project having area of plots, which aggregated to 6,880.90 sq.mts.
In these circumstances, we are of the opinion that the revenue authorities erred in denying the deduction u/s 801B(10) as claimed. The denial, according to us is against the precedents, because in the immediate preceding year, the deduction has been allowed by the AO u/s 143(3) on the project which is coming from assessment year 2002-03, continuing in the current year and going into the next year.
We, therefore, set aside the orders of the revenue authorities and direct the AO to allow the deduction as claimed.
P a g e | 6 & 8484/Mum/2011 AYs.2007-08& 2008-09 M/s Harmony Enterprises Vs. Income Tax Officer, Ward 2(1) 24. Appeal is therefore allowed.” We have perused the aforesaid order of the Tribunal, and find ourselves to be in agreement with the claim of the ld. A.R that the issue involved in the appeal before us is squarely covered by the order of the Tribunal in the assesses own case for A.Y 2006-07. Accordingly, respectfully following the aforesaid order of the Tribunal, we herein conclude, that the claim of deduction raised by the assessee under Sec. 80IB(10) amounting to Rs.10,68,465/- was well in order. We thus in terms of our aforesaid observations set aside the order of the CIT(A) and, vacate the disallowance of deduction under Sec.80IB(10) of Rs.10,68,465/- made by the A.O.
The appeal of the assessee is allowed in terms of our aforesaid observations.
We shall now advert to the appeal of the assessee for A.Y 2008- 09. The assessee has assailed the order of the CIT(A) for A.Y 2008-09 before us on the following grounds of appeal :
1. The learned Commissioner of Income-tax (Appeals) erred in upholding the disallowance of deduction claimed by the appellant U/s. 80IB(10) of the Income Tax Act, 1961 amounting to Rs.4,47,32,694/-. 2. The appellant prays that deduction U/s. 80IB(10) of Rs.4,47,32,694/- be allowed. 3. The appellant crave leave to add to, amend or alter, delete, and/or modify that above grounds of appeal.
Briefly stated, the assessee had e-filed its return of income for A.Y. 2008-09 on 06.10.2008, declaring income of Rs.4,81,510/-. Subsequently, the assessee filed a revised return of income on 30.07.2009 declaring its total income at Rs.4,81,170/-. Thereafter, the case of the assessee was selected for scrutiny assessment under Sec. 143(2).
P a g e | 7 & 8484/Mum/2011 AYs.2007-08& 2008-09 M/s Harmony Enterprises Vs. Income Tax Officer, Ward 2(1)
During the course of the assessment proceedings, it was observed by the A.O, that the assessee had claimed deduction under Sec. 80IB(10) of Rs. 4,47,32,694/- in respect of its housing project viz. “Guru Chayya” A to M Wing, at Badalpur, Thane. The A.O after deliberating on the facts of the case observed, that as the housing project of the assessee did not comply with the basic condition of the project being on a plot having minimum area of one acre, therefore, it had failed to satisfy the statutory requirement envisaged in clause (b) of Sec. 80IB(10). Accordingly, rejecting the contentions advanced by the assessee, the A.O disallowed its claim of deduction of Rs. 4,47,32,694/- raised under Sec. 80IB(10) and, added back the said amount to the income of the assessee for the year under consideration.
Aggrieved, the assessee carried the matter in appeal before the CIT(A). However, the CIT(A) observed, that the disallowance of the assesses entitlement towards claim of deduction under Sec. 80IB(10) by the A.O was under identical facts upheld by him, while disposing off the appeal in the assesses own case for A.Y. 2006-07. Accordingly, the CIT(A) following the view taken by him in A.Y. 2006-07 dismissed the appeal.
The assessee being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. We find that as the issue and the facts involved in the present appeal remains the same, as were there before us in the appeal of the assessee for the immediately preceding year i.e A.Y. 2007-08 in therefore, our order passed while disposing off the said appeal shall apply mutatis mutandis for disposing off the present appeal of the assessee for A.Y. 2008-09 in ITA No. 8484/Mum/2011. Accordingly, P a g e | 8 ITA Nos. 8483 & 8484/Mum/2011 AYs.2007-08& 2008-09 M/s Harmony Enterprises Vs. Income Tax Officer, Ward 2(1) the disallowance of assesses claim of deduction u/s 80IB(10) is vacated and, the appeal of the assessee for A.Y. 2008-09 in ITA No. 8484/Mum/2011 is allowed in the same terms.
The appeal of the assessee is allowed. 15. The appeals of the assessee for A.Y 2007-08 viz. A.Y. 2008-09 viz. ITA No. 8484/Mum/2011 are allowed. Order pronounced in the open court on 19.06.2019 Sd/- Sd/- (G.Manjunatha) (Ravish Sood) ACCOUNTANT MEMBER JUDICIAL MEMBER भ ुंफई Mumbai; ददन ुंक 19.06.2019 Ps. Rohit आदेश की प्रतिलऱपि अग्रेपिि/Copy of the Order forwarded to : अऩीर थी / The Appellant 1. प्रत्मथी / The Respondent. 2. आमकय आम क्त(अऩीर) / The CIT(A)- 3. आमकय आम क्त / CIT 4. 5. विब गीम प्रतततनधध, आमकय अऩीरीम अधधकयण, भ ुंफई / DR, ITAT, Mumbai ग र्ड प ईर / Guard file. 6. सत्म वऩत प्रतत //True Copy// आदेशानुसार/ BY ORDER, उि/सहायक िंजीकार (Dy./Asstt. Registrar) आयकर अिीऱीय अधिकरण, भ ुंफई / ITAT, Mumbai.
P a g e | 9 & 8484/Mum/2011 AYs.2007-08& 2008-09 M/s Harmony Enterprises Vs. Income Tax Officer, Ward 2(1)