ASST CIT CIR 1, KALYAN vs. GAURI VINAYAK BUILDERS & DEVELOPERS P.LTD, KALYAN

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ITA 4051/MUM/2015Status: DisposedITAT Mumbai08 May 2017AY 2010-114 pages

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

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that an identical issue for assessment year 2008-09 had attained finality in favour of the assessee as the revenue did not appeal further. Following this precedent, the deduction under Section 80IB(10) was allowed.

What were the facts?

The assessee, a builder, claimed deduction under Section 80IB(10) for assessment year 2010-11. The revenue appealed against the CIT(A)'s order allowing this claim.

What were the issues?

Whether the deduction under Section 80IB(10) is allowable when the issue has attained finality in a previous assessment year due to the revenue's non-appeal.

Which sections of the Income-tax Act were involved?

Section 80IB(10)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, BENCH “D” MUMBAI

Before: SHRI D.T.GARASIA, JM & SHRI RAJESH KUMAR, AM

For Appellant: Shri H N Motiwala
For Respondent: Shri Purushottam Kumar
Hearing: 26.4.2017Pronounced: 8.5.2017

सुनवाई की तारीख /Date of Hearing : 26.4.2017 घोषणा की तारीख /Date of Pronouncement : 8.5.2017 आदेश / O R D E R PER RAJESH KUMAR, A. M: This is an appeal filed by the revenue against the order dated 19.3.2015 passed by the ld.CIT(A)-2, Thane, for the assessment year 2010-11 wherein the revenue has challenged the ld.CIT(A)’s order in allowing the claim of the assessee made under section 80IB(10) of the Income Tax Act.

2.

Facts in brief are that the assessee filed its return of income on 30.9.2010 declaring total income of Rs.31,51,680/-. The case of the assessee was selected for scrutiny and the statutory notices u/s 143(2) and 142(1) were 2 issued and served on the assessee. The assessee is a builder and undertook various projects during the year and also claimed deduction u/s 80IB(10) of the Act to the tune of Rs.1,28,34,603/-. At the outset, the ld. AR rightly pointed out that the ld.CIT(A) by following the decision of its predecessor in the assessment year 2008-09 allowed the claim of the assessee and the revenue has not challenged the said decision before the higher forum and hence it has attained finality, whereas in the current year the department has filed appeal against the order of ld.CIT(A). The AR, therefore, submitted that the appeal of the department should be dismissed as it has no locus standi to file the appeal in the current year, in view of the facts that the issue has attained finality in the assessment year 2008-09.

3.

The ld. DR fairly conceded that the argument raised by the ld.AR as true and correct and also brought the facts to the notice of the Bench that at the time of making assessment, the decision of the FAA was not available before the AO and the AO has specifically stated at page 5 of the assessment order that in the event the issue is decided by the ld.CIT(A) in favour of the assessee and allowed deduction u/s 80IB(10) of the Act, the decision of the ld.CIT(A) will be applicable to the present year also. 4. We have heard both the parties and perused the material placed before us including the orders of authorities below. We find that an identical issue has been decided by the ld. CIT(A) in favour of the assessee which attained finality 3 due to non-filing of the appeal by the revenue before the higher forum and in the current year the issue has been decided by the ld. CIT(A) in favour of the assessee by following the order of his predecessor, which is extracted below : “5.1 After considering the issue at great length, I am of the considered view that the project of the assessee has commenced on 21.4.2005, and hence, the terms of the provisions of clause (a) of section 80IB(10) the project could have been completed within four years from the end of the financial year 2005-06. As the project is completed on 17th October, 2009 as held by my predecessor that the project was completed within the prescribed time limit as per clause (a) of section 80IB (10). Also, the area of shops was less than 5000 sq.ft. Therefore, deduction u/s 80IB(10) is allowed.

5.2 In view of all these facts, the deduction u/s 80IB could not have been disallowed. The AO is directed to grant the deduction u/s 80IB (10) to the assessee in this year as well. Therefore, the appeal of the appellant on this ground is allowed.

5.

The facts of the instant case being the identical to that of assessment year 2008-09 and therefore, following the precedent in the earlier year we are inclined to decide the issue in favour of the assessee and against the revenue.

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