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Income Tax Appellate Tribunal, “D” BENCH, MUMBAI
Before: SHRI N.K. BILLAIYA & SHRI AMARJIT SINGH
O R D E R
PER N.K. BILLAIYA, AM:
This appeal by the assessee is preferred against the order of the Ld. CIT(A)-28, Mumbai dated 16.12.2014 pertaining to Assessment year 2011-12.
The assessee has raised two substantive grounds of appeal. At the very outset, the Ld. Counsel for the assessee stated that he is not pressing ground No.1, the same is dismissed as not pressed.
3. Ground No. 2 relates to the disallowance of claim u/s. 80IA(4)(iii) of Rs. 4,53,09,687/-.
3.1. The assessee is a builder and developer. While scrutinizing the return of income, the Assessing Officer noticed that the assessee has claimed deduction u/s. 80IA(4)(iii) of the Act. While verifying the claim of the assessee, the AO found that the said project has not received approval from the CBDT and not notified by the Central Government. The AO finally concluded by observing that since assessee’s application was still pending with CBDT and the necessary notification is not yet been granted. Hence, the assessee is ineligible to claim deduction u/s. 80IA(4)(iii) of the Act.
The assessee carried the matter before the Ld. CIT(A) but without any success. At para-4.5 of his order, the Ld. CIT(A) observed that the assessee has not received the notification from CBDT, therefore, not eligible for the deduction.
Aggrieved by this, the assessee is before us.
The Ld. Counsel for the assessee filed the copy of the notification issued by the Government of India, Ministry of Finance. The said notification is dated 20th May, 2015 and the impugned assessment order is dated 28.3.2013 and the order of the First Appellate Authority is dated 16.12.2014. Obviously this notification could not be made available to the lower authorities.
Since the only reason for denying the claim of deduction was that the project is not notified by the Government and since now the notification has been received, the assessee is eligible for the claim of deduction. However, in the interest of justice and fair play, we restore this issue to the file of the AO. The assessee is directed to furnish the copy of the notification before the AO and the AO is directed to verify the same, if found correct should allow the claim of deduction.
In the result, the appeal filed by the assessee is allowed for statistical purpose.
Order pronounced in the open court at the time of hearing on 15th October, 2015