HARISH M AGGARWAL,THANE vs. ASST CIT CIR 1, THANE

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ITA 4446/MUM/2015Status: DisposedITAT Mumbai07 June 2017AY 2011-123 pages

In favour of the Revenue: the assessee's appeal was dismissed. From the AI summary of this appeal.

AI SummaryDismissed

What did the Tribunal hold?

The Tribunal upheld the CIT(A)'s order, agreeing that the deduction under Section 80IB(10) had been decided in favor of the assessee in earlier years on identical facts. The CIT(A)'s decision to allow the appeal was found to be in line with judicial hierarchy.

What were the facts?

The assessee, engaged in construction, claimed deduction under Section 80IB(10) for a project approved prior to October 1, 1998. The Assessing Officer rejected the claim, and the CIT(A) allowed it by following the ITAT's order in an earlier year.

What were the issues?

Whether the assessee is eligible for deduction under Section 80IB(10) when the project was approved prior to the stipulated date, and whether the CIT(A) correctly followed the ITAT's previous decision.

Which sections of the Income-tax Act were involved?

Section 80IB(10),Section 143(3)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “H” BENCH, MUMBAI

Before: SHRI MAHAVIR SINGH, JM & SHRI RAJESH KUMAR, AM Shri Harish M Aggarwal,

For Respondent: Shri M C Omi Ningshan
Hearing: 11.5.2017Pronounced: 7.6.2017

सुनवधई की तधयीख /Date of Hearing : 11.5.2017 घोषणध की तधयीख /Date of Pronouncement : 7.6.2017 आदेश / O R D E R PER RAJESH KUMAR, A. M: By way of this appeal the assessee is challenging the order of ld.CIT(A)-1, Thane dated 30.4.2015 for the assessment year 2011-12.

2.

Grounds of appeal taken by the assessee are as under : “(1) the ld.CIT(A) has erred in fact and in law in not allowing the deduction u/s 80IB(10) as per judicial hierarchy, the Order of the Hon’ble ITAT. (2) The assessee crave leave to add, alter or delete any of the above grounds of appeal”.

2 3. The facts of the case are that the assessee is engaged in the business of construction and development of properties. During the year the assessee filed return of income on 28.9.2011 declaring total income at Rs.69,74,150/-. The assessee claimed deduction u/s 80IB(10) of the Income Tax Act, 1961 to the tune of Rs.57,95,367/-. The AO rejected the claim of the assessee and added Rs.57,95,367/- to the total income by framing assessment u/s 143(3) of the Act vide order dated 7.3.2014 for the reason that project has been approved prior to 1.10.1998.

4.

The aggrieved assessee filed appeal before CIT(A) who allowed the appeal of the assessee by following the order of ITAT in earlier year. The operative part of CIT(A) is enclosed below: “5.1 In the present appeal, it is claimed that the identical issue is involved and the income from sale of flats also, relate to the project i.e. F1. F2 and G, which have been approved and qualified for deduction u/s 80IB(10) of the Act, in view of the decision of the Hon’ble ITAT as above. The contention of the appellant has been examined and found to be in order. The Hon’ble ITAT haw dealt the issue in detail and also quoted the detailed finding of the then CIT(A), for both the years i.e. 2005-06 & 2009-10, in its order, while granting relief to the appellant. As per judicial hierarchy, the order of the Honble ITAI is binding on me. The AO is therefore, directed to allow the claim of the appellant, accordingly, after verifying tile facts that the income has been generated from the sale of flats from the project which qualify and satisfy the conditions. such as size of flat sold etc, as laid down, for claiming deduction u/s 80IB(10) of the Act. This ground of appeal, is therefore decided, accordingly”

5.

We have heard both the parties and perused the material placed before us including the impugned orders. We find that the deduction u/s 80IB(10) on identical facts has been decided in favour of the assessee by 3 the Tribunal in earlier years in the appeal of the assessee. We find that the ld.CIT(A) has already allowed the appeal of the assessee by following the decision of Tribunal in assessee’s own case in earlier year. We do not find merit in the argument of the ld.AR that the ld.CIT(A) has given very limited direction to the AO to verify the facts that the income of the assessee is generated from sale of flats which satisfied necessary conditions as laid down in section 80IB(10) of the Act. The order of FAA which is made after following the Tribunal decision in assessee’s own case needs no interference. Accordingly, we uphold the order of ld.CIT(A). Resultantly the appeal of the assessee stands dismissed.

6.

In the result, the appeal of the assessee is dismissed.

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