ITO 24(2)(1), MUMBAI vs. KAMALA BROTHERS, MUMBAI

आयकर अपीऱीय अधिकरण, म ुंबई न्यायपीठ “ए” म ुंबई IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, MUMBAI BEFORE HON’BLE S/SHRI JOGINDER SINGH (JM), AND RAJESH KUMAR,(AM) आमकय अऩीर सं./I.T.A. No.108/Mum/2013 (ननधधायण वषा / Assessment Year : 2009-10) बनाम/ Kamala Brothers, Income Tax Officer-24(2)(1), C-13, R.No.606, 6th fl., Kuber Chambers, CTS 141-A, Vs. Next to COD, Pratyakshakar Bhavan, Dutt Mandir road, Bandra-Kurla Complex, Malad (E), Bandra (E), Mumbai-400097.. Mumbai-400051. (अऩीरधथी /Appellant) (प्रत्मथी / Respondent) ..

आमकय अऩीर सं./I.T.A. No.5424/Mum/2013 (ननधधायण वषा / Assessment Year : 2009-10) बनाम/ Income Tax Officer-24(2)(1), Kamala Brothers, Mumbai-400051. Mumbai-400097.. Vs. (अऩीरधथी /Appellant) (प्रत्मथी / Respondent) .. आमकय अऩीर सं./I.T.A. No.925/Mum/2013 (ननधधायण वषा / Assessment Year : 2009-10) बनाम/ Income Tax Officer-24(2)(1), Kamala Brothers, Mumbai-400051. Mumbai-400097. Vs. (अऩीरधथी /Appellant) (प्रत्मथी / Respondent) .. Cross-Objection No.56/Mum/2014 arising out of I.T.A. No.925/Mum/2013 (ननधधायण वषा / Assessment Year : 2009-10) बनाम/ Kamala Brothers, Income Tax Officer-24(2)(1), Mumbai-400097 Mumbai-400051. Vs. (अऩीरधथी /Appellant) (प्रत्मथी / Respondent) ..

स्थधमी रेखध सं./जीआइआय सं./PAN/GIR No. :AAAFK4011D

2 ITA No. 108 /M /13, 5424 /M /20 1 3, 925/M /20 13 and C O 56/ M/ 20 14 अऩीरधथी ओय से / Revenue by: Shri H M Wanare प्रत्मथी की ओय से/Assessee by S/Shri K Shivram and Devang K Shah सुनवधई की तधयीख / Date of Hearing : 19.7.2016 घोषणध की तधयीख /Date of Pronouncement : 25. 7.2016 आदेश / O R D E R Per RAJESH KUMAR, Accountant Member: The cross-appeals are filed by the respective parties against the order passed by the ld.CIT(A)-34, Mumbai dated 7.11.2012 for the assessment year 2009-2010. The revenue has also filed appeal bearing No.925/Mum/2013 against the order of CIT(A)-34, Mumbai, dated 7.11.2012 and the assessee filed cross-objection thereto. Since these appeals pertain to the same assessee, these appeals are being decided by this common order for the sake of convenience. 2. Now first we shall take up the appeal bearing ITA No.108/M/13.

3 ITA No. 108 /M /13, 5424 /M /20 1 3, 925/M /20 13 and C O 56/ M/ 20 14 assessee firm and lease rent were much lower than market rental value. The similar issue also arose in the earlier assessment year and the addition made by the AO in the said assessment year taking the market value of the rent was confirmed by the ld.CIT(A) in that year. Following the earlier year’s (AY-2006-07), the AO made addition of Rs.34,99,927/- for two properties as follows: a) for 3985.100 sq. mtrs let out to school building and b) for 434.000 sq.mts. let out to Kuber Chambers by taking 8% of the market value of the property as fair rent in the market and thus framed assessment u/s 143(3) at an amount of Rs.24,49,949/- after allowing deduction u/s 24 @ 30%. Aggrieved by the decision of the AO, the assessee preferred an appeal before the ld. CIT(A) who partly allowed the relief by relying upon the order of CIT(A) predecessor during the assessment year 2007-08 in which the Annual Letting Value of the said property was worked out and calculated at Rs.13,74,353/- and thus partly allowed the appeal. Still Aggrieved by the decision of the ld. CIT (A), the assessee preferred and appeal before us. 5. The ld. AR vehemently submitted before us that similar issue has been decided by the Co-ordinate Bench of the Tribunal in assessee’s own case in ITA No.1139/Mum/2011 (AY-2003-04) dated 8.1.2016 and the addition made by the AO and confirmed by the ld.CIT(A) was deleted. The ld. AR prayed that following the decision of the Co-ordinate Bench of the Tribunal the addition made by the AO and confirmed by the ld.CIT(A) be

4 ITA No. 108 /M /13, 5424 /M /20 1 3, 925/M /20 13 and C O 56/ M/ 20 14 deleted by allowing the appeal of the assessee. On the contrary, the ld. DR relied heavily on the orders of authorities below. 6. We have perused the record and heard the rival contentions. We find that the issue before us stands decided in favour of the assessee in ITA No.1139/Mum/2011 (supra) on identical facts. The Tribunal vide para 4.9 has decided the issue, the relevant para is reproduced before for the sake of ready reference : “4.9. Thus, taking into account all the facts and circumstances of the case and the judgments in the case of Lake Palace Hotels & Motels Ltd. (supra) and also keeping in view the decision of Ld. CIT(A) in determining the full value of consideration of the asset at Rs.3,22,334/-, we find that action of the Ld. AO in estimating the lease rent at Rs.13,74,353/- was self contradictory and unjustified, and therefore the same is reversed. Ground No.2 of assessee’s appeal is allowed.” We respectfully following the decision of the Co-ordinate Bench of the Tribunal, allow the appeal of the assessee and AO is directed accordingly. 7. ITA No.5424/Mum/2013 Since we have decided the appeal of the assessee bearing ITA No.108/Mum/2013 in favour of the assessee and therefore in view of our findings in the above ITA No.108/M/2013, the appeal of the department becomes infructuous and hence dismissed. 8. I.T.A. No.925/Mum/2013 9. The issue raised in ground No.1 is against allowing claim of the assessee u/s 80IB(10) of the Act by the ld. CIT(A) by disregarding the facts that requirement of land of one acre for the purpose of allowing

5 ITA No. 108 /M /13, 5424 /M /20 1 3, 925/M /20 13 and C O 56/ M/ 20 14 deduction u/s 80IB was not fulfilled as leased area should not be included in the said land. 10. Facts in brief are that the AO during the course of assessment proceedings found that the assessee has leased out two pieces of land to a trust which was controlled by the partners of the assessee firm and it was also revealed during the survey action on 28.2.2006 that the assessee was diverting its sale proceeds to Trust in the garb of donations received from the buyers of flats in the projects of the assessee. The assessee was given show cause notice as to why the deduction u/s 80IB(10) should not be disallowed for non fulfilling the basic conditions which was replied by the assessee vide letter dared 13.10.2011 which is incorporated in the para 4.2 of the assessment order. The assessee submitted before the AO that the project was approved and commenced on or before 31.3.2007 as the commencement certificate bearing No.CHE/7008/BP(WS)AP dated 15.3.2002 granted by BMC and the size of the plot of land on which the project was proposed admeasured about 4193.30 sq.mtr which was more than one acre and also the built up area of the flat was not exceeding 1000 Sq.ft. The project was completed on 28.12.2006 which fell before 31.3.2008 and accordingly the assessee rightly claimed deduction under section 80IB in respect of the profit earned from the sale of flats of the housing project. The assessee also submitted that in the assessment year 2007-08. The ld.CIT(A) allowed the deduction u/s 80IB(10) of the Act under the identical facts of the case. The AO rejected the claim of the

6 ITA No. 108 /M /13, 5424 /M /20 1 3, 925/M /20 13 and C O 56/ M/ 20 14 assessee for various reasons as stated in para 4.6 of the assessment order on the ground that the assessee did not fulfill the eligibility criteria and conditions specified under section 80IB(10) of the Act while framing the assessment at Rs.1,23,31,990/- vide order dated 22.11.2011 passed under section 143(3) of the Act. Aggrieved by the order of AO, the assessee preferred an appeal before the ld.CIT(A) and the ld.CIT(A) after considering the submissions allowed the deduction u/s 80IB(10) of the Act by observing and holding as under : “5.2 I have considered the above submissions. The various conditions laid down in clause (a) to (f) of section 80IB(10) does not put any restriction regarding the change in the constitution of the firm. The appellant had relied on the decision of the Jurisdictional Tribunal in the case of M/s.Parth Corporation vs. ITO 23 SOT 368 and Harsh Construction vs. ITO in ITA NO.22716/Mum/2010. I have gone through the above decisions. The Hon.ITAT in the case of M/s.Parth Corporation has held that Section SOIB(10) is independent of provisions of section 8O-IB(2) and, therefore, condition of assessee being an 'Industrial undertaking' manufacturing or producing any article or thing is not applicable for claiming deduction u/s.80-IB(10) in case of an undertaking, developing and building housing projects, subject to fulfill the conditions laid down in section 80IB(10). The relevant portion of the finding is in para 8 of the order which is reproduced as under:- " The other mistake pointed out by the CIT in his order under s. 263 is that the assessee not being an "industrial undertaking", does not qualify for deduction under s. 80- IB(10) of the Act as the conditions of s. 80-IB(2) of the Act are not satisfied in this case. This plea of the CIT is not sustainable. We find that the provision of s. 80-IB(2) of the Act has no application for claiming deduction under s. 80- IB(10) by an assessee and therefore, the condition of the assessee being an "industrial undertaking" is not applicable for claiming a deduction under s. 80-IB(10) of the Act. The plain language of s. 80-IB(2) makes it clear that it relates to "industrial undertaking" which "manufactures or produces any

7 ITA No. 108 /M /13, 5424 /M /20 1 3, 925/M /20 13 and C O 56/ M/ 20 14 article or thing". The provision of s. 80-IB(10) relates to deduction in the case of "undertaking" developing and building housing projects, if the other conditions laid down under s. 80-IB(10) are satisfied in the case. In case the interpretation as convessed by the CIT in his order under s. 263 that the assessee shall be an "industrial undertaking" in order to claim deduction under s. 80-IB(10) is assumed as correct, it shall result in rendering the provision of s. 80- IB(10) as redundant and not workable. The s. 80-IB(2) relates to "industrial undertaking" which manufactures or produces any article or thing. The decision of Hon'bIe Supreme Court in the case of Budharaja & Co. (supra), lays down that the building of roads etc. is not a manufacture or production of article or thing. The Circular of the C8DT No. 772, dt. 23rd Dec., 1998 on the old provisions of s. 80-A(4F)[corresponding to the provision of s. 80-IB8(10)] makes it clear that with a view to promote investments in housing, a new sub-s (4F) has been inserted in s. 80-IA of the I T Act and further has laid down three conditions for deduction under this section namely, that the project was approved by the local authority, the size of the plot of the land should be minimum of one acre and the residential unit has built-up area not exceeding 1,000 sq. ft. and that the undertaking commences development and construction of the housing project and completes the same within the specified period mentioned therein. This circular further laid down that subject to the satisfaction to these conditions, 100 per cent of profit from such business shall be deductible. There is no whisper of the assessee being an "industrial undertaking" as a pre-requisite to claim the benefit of deduction in the old provision of s. 80-IA(4F) of the Act. In accordance with the scheme of the provision of s. 80-IB of the Act, we hold that the nature of deduction under s. 80-IB(10) of the Act is independent of the provision of s. 80-IB(2) of the Act and the condition of the assessee being an 'industrial undertaking' manufacturing or producing any article or thing, is not applicable for claiming deduction under s.80-IB(10) in the case of an 'undertaking' developing and building housing projects subject to the fulfillment of other conditions provided in s. 80-IB(10) of the Act. " My predecessor CIT(A) had adjudicated the same issue for A.Y.2007-08 and had given a clear finding to this effect which is in para 2.3.2 of the order. The relevant portion of the finding is as under:-

8 ITA No. 108 /M /13, 5424 /M /20 1 3, 925/M /20 13 and C O 56/ M/ 20 14 "I also agree with the Ld. Counsel that changes in the constitution of the firm from time to time would not affect the stats of "undertaking" within the meaning of the section 80-IB and also that the business of the firm had never been split to create an undertaking to involve itself into housing project." Since there is no change in the facts and circumstances and following the order of my predecessor and following the ITAT decision in the case of Mls Parth corporation (supra) I am of the view that, the change in the constitution of the firm does not amount to violation of any conditions laid down in section 80-IB(10) and hence the finding of the Assessing Officer that there is violation of conditions laid down 80-IB(10) cannot be accepted. This part of ground of appeal is also allowed. “ 11. The ld.DR submitted before us that the assessee did not fulfil the conditions as envisaged under section 80IB(10) and therefore the claim of the assessee was rightly rejected by the AO for various reasons such as non completion of project before 31.3.2008 as stated in section 80IB(10) of the Act and therefore the order of the ld. CIT(A) deserved to be quashed for this reason. Per contra, the ld.AR strongly supported the order of ld.CIT(A) on the ground that the issue has been decided in the assessee’s own case by the Tribunal in ITA No. 1336/Mum/2011(AY-2007- 08) and prayed before us that by following the said decision of the Co- ordinate Bench of the Tribunal, the appeal of the revenue be dismissed.

9 ITA No. 108 /M /13, 5424 /M /20 1 3, 925/M /20 13 and C O 56/ M/ 20 14

The relevant para (16.5) is reproduced below for the sake of ready reference: “16.5. It is further noted by us that Ld. CIT(A) has observed that it was wrongly presumed by the AO that construction and development activity was carried out on a plot which was less than one acre. It has also been held by him that housing project was consolidated project that was approved through single approval for the whole plot consisting of portion such as 141A, 141B, 141C & 141D. We find that findings given by the Ld. CIT(A), are legally correct. Our view finds support from the decision of the Tribunal in the case of Sigma Construction vs. ITO 59 SOT 83( Hyd) wherein it has been held that where a portion of plot area was earmarked for laying Roads, same should be considered as part of housing project in order to determine the prescribed limit u/s 80IB. Similar view has been taken in the case of Bunty Builders vs ITO 127 ITD 286 (Pune) and Haware Engineers & Builders P. Ltd. v. ACIT 46 SOT 27 (Mum)(URO). Thus, keeping in view the facts, the documentary evidences brought before us, un-assailed factual findings of Ld. CIT(A) and aforesaid judgments placed before us, we find 23 Kamala Brothers that no interference is called for in the order of Ld. CIT(A) and therefore same is upheld, and therefore ground no. 1 of Revenue's appeals is dismissed.” We, therefore, respectfully following the decision of the Co-ordinate Bench of the Tribunal dismiss the appeal of the Revenue.

13 CO. No.56/Mum/2014 At the time of hearing, ld.AR did not press cross-objection, therefore, dismissed as not pressed. 14. In sum and substance, the appeal of assessee bearing ITA No.108/M/2013 is allowed. The appeal of revenue bearing ITA

10 ITA No. 108 /M /13, 5424 /M /20 1 3, 925/M /20 13 and C O 56/ M/ 20 14 No.5424/Mum/2013 is dismissed. Appeal bearing ITA No.925/Mum/2013 of the revenue stands dismissed. The above order was pronounced in the open court on 25th July, 2016. घोषणध खुरे न्मधमधरम भें ददनधंकः 25th July, 2016 को की गई । Sd sd (JOGINDER SINGH) ( RAJESH KUMAR) Judicial Member Accountant Member भुंफई Mumbai: 25th July, 2016. व.नन.स./ SRL , Sr. PS आदेश की प्रतिलऱपप अग्रेपिि/Copy of the Order forwarded to : अऩीरधथी / The Appellant 1. प्रत्मथी / The Respondent. 2. आमकय आमुक्त(अऩीर) / The CIT(A)- concerned 3. आमकय आमुक्त / CIT concerned 4. ववबधगीम प्रनतननधध, आमकय अऩीरीम अधधकयण, भुंफई / 5. DR, ITAT, Mumbai concerned 6. गधर्ा पधईर / Guard file. आदेशधनुसधय/ BY ORDER, True copy सहधमक ऩंजीकधय (Asstt. Registrar) आमकय अऩीरीम अधधकयण, भुंफई /ITAT, Mumbai