CIT v. Sarkar Builders

Mavani & Sons, Mumbai vs. ITO 27(2)(2)

In the result, appeal of the assessee is allowed

Bench: Shri B.R. Baskaran & Shri Pawan Singhita No.1373/Mum/2017 (Assessment Year- 2008-09) Mavani & Sons Ito-27(2)(2) B-2, Gurudatt Building, 2Nd Floor, Vashi Income Tax Office, Vs. Navi Mumbai. Patel Chowk, Ghatkopar (East), Mumbai-400077 Pan: Aaafm7710R (Appellant) (Respondent) Assessee By : Shri Ajay R. Singh (Ar) Revenue By : Shri V. Justin (Dr) Date Of Hearing : 07.03.2018 Date Of Pronouncement : 16.03.2018 Order Under Section 254(1) Of Income Tax Act Per Pawan Singh: 1. These Two Appeal By Assessee Under Section 253 Of Income Tax Act Are Directed Against The Common Order Of Ld. Commissioner Of Income-Tax

…IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH “I”, MUMBAI BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA No.1373/Mum/2017 (Assessment Year- 2008-09) Mavani & Sons ITO-27(2)(2) B-2, Gurudatt Building, 2nd Floor, Vashi Income Tax Office, Vs. Navi Mumbai. Patel Chowk, Ghatkopar (East), Mumbai-400077 PAN: AAAFM7710R (Appellant) (Respondent) Assessee by : Shri Ajay R. Singh (AR) Revenue by : Shri V. Justin (DR) Date of hearing : 07.03.2018 Date of Pronouncement : 16.03.2018 Order Under Section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. These two appeal b…

ITO 33(1)(3), Mumbai vs. E.B.R. Enterprises, Mumbai

In the result, the department’s appeal is dismissed

Bench: Shri Saktijit Dey, Jm & Shri Manoj Kumar Aggarwal, Am Assessment Year : 2010-11 The Ito 33(1)(3) M/S. E B R Enterprises 1St Floor, Rock Avenue, Mumbai Opp Joy Ice-Cream, Hindustan Naka, Kandivali (W), Mumbai- 400 067

…IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES “E”, MUMBAI Before Shri Saktijit Dey, JM & Shri Manoj Kumar Aggarwal, AM Assessment Year : 2010-11 The ITO 33(1)(3) M/s. E B R Enterprises 1st Floor, Rock Avenue, Mumbai Opp Joy Ice-cream, Hindustan Naka, Kandivali (W), Mumbai- 400 067 PAN AAAAE2057J (Appellant) (Respondent) Appellant By : Dr A K Nayak Respondent By : Shri Prateek Jain Date of Hearing :27.04.2017 Date of Pronouncement : 09.05.2017 O R D E R Per Saktijit Dey, Judicial Member: This appeal by the department is directed against order dated 14.11.2014, of learned CIT(A)-26 Mumbai, for the ass…

Akash Enterprise, Thane vs. I.T.O. Ward-4(1), Thane

The appeal of the Revenue is dismissed

Bench: Shri Joginder Singh & Shri Rajendraassessment Year-2007-08 M/S Akash Enterprises, Income Tax Officer, Shop No.27/A, Bldg. No.1, Ward-4(1), बनाम/ Akashganga Apts. 02Nd Floor Vs. Shriprastha Complex, Qureshi Mansion, Nallasopara (W), Tal Vasai, Gokhale Road, Dist-Thane-401203 Thane Pan No.Aalfa4071C ("नधा"रती /Assessee) (राज"व /Revenue) Assessment Year-2007-08 Income Tax Officer, M/S Akash Enterprises, Ward-4(1), Shop No.27/A, Bldg. बनाम/ 02Nd Floor, No.1, Akashganga Apts. Vs. Qureshi Mansion, Shriprastha Complex, Gokhale Road, Nallasopara (W), Tal Thane Vasai, Dist-Thane- 401203 Pan No.Aalfa4071C (राज"व /Revenue) ("नधा"रती /Assessee) M/S Akash Enterprises.

…the paper book. Reliance was placed upon the decision from Hon'ble jurisdictional High Court in the case of CIT vs Hindustan Samuh Awas Ltd. (2015) 62 taxman.com 175 (Bom.); 377 ITR 150 (Bom.), CIT vs Sarkar Builders (2015) 57 taxman.com 313 (Supreme Court); 375 ITR 392(Supreme Court). 2.1. On the other hand, Shri Rajesh Kumar Yadav, ld. DR defended the addition made by the Ld. Assessing Officer by placing reliance upon the decision in ITA No.4929/Mum/2012. 2.2. We have considered the rival submissions and perused the material available on record. The facts, in brief, are that the assessee is in the business as…

Aarti Projects and Constructions, Mumbai vs. DCIT 5(1), Mumbai

In the result, appeal of assessee is allowed

Bench: Shri R.C.Sharma, Am & Shri Ravish Sood, Jm M/S. Aarti Projects & Vs. Dcit – 5(1), Mumbai Constructions, Ackruti Trade Centre, Road No.7, Marol Midc, Andheri(E), Mumbai- 400021 Pan/Gir No. Aaefa5526F Appellant) .. Respondent)

…and on which the tenements are constructed would not be applicable. Since the project was approved on 16.09.2004, i.e. prior to 01.04.2005 the case of the assessee was covered by the judgment of the Hon'ble Supreme Court in the case of CIT v. Sarkar Builders (375 ITR 392). 24. Now coming to the objection of the AO to the effect that FSI sold to each of the person was in excess of 1000 sq.ft which was in violation of Section 80IB(10)(iii)(c) of the Act, we found that this objection of the AO was misconceived. The stipulation of limitation of the area of the constructed tenements prescribed in clause (c) of Section…

Addl CIT RG 15(1), Mumbai vs. Bhumiraj Constructions, Navi Mumbai

The appeal of the Revenue is dismissed and the cross objection of the assessee is allowed

Bench: Shri Joginder Singh & Shri Ashwani Tanejaassessment Year: 2006-07 Jcit(Osd), M/S Bhumiraj Constructions Circle-15(1), D/5-6, Big Splash, बनाम/ Room No.104, Matru Mandir, Sector-17, Vs. 1St Floor, Tardeo Road, Navi Mumbai-400703 Mumbai-400007 (राज"व /Revenue) ("नधा"रती /Assessee) Pan. No.Aaffb3546H Assessment Year: 2006-07 M/S Bhumiraj Constructions Jcit(Osd), D/5-6, Big Splash, Circle-15(1), बनाम/ Sector-17, Room No.104, Matru Mandir, Vs. Navi Mumbai-400703 1St Floor, Tardeo Road, Mumbai-400007 ("नधा"रती /Assessee) (राज"व /Revenue) Pan. No.Aaffb3546H

…other hand, Shri Pradip Kapasi, ld. counsel for the assessee defended the impugned order by claiming that, identically, in the case of sister concern, the claim of the assessee was allowed and placed reliance upon the decision in the case of Sarkar Builders (375 ITR 392)(SC). This factual assertion of the assessee was not controverted by the Revenue. 4 ITA Nos 8803, 8750-2011, ITA No 1445-2012 & CO-60-2013 M/s Bhumiraj Construction 2.2. We have considered the rival submissions and perused the material available on record. The facts, in brief, are that the assessee is engaged in the business of construction. Du…

ITO WD 2(4), Thane vs. Shiv Om Universal, Badlapur

In the result, the Revenue’s appeal is dismissed

…of the qualifying conditions, resulting in its profits being either deductible or not so in terms of the relevant provision. In fact, Brahma Associates (supra) stands since upheld by the Hon’ble Apex Court (reported at CIT vs. Sarkar Builders & Others [2015] 375 ITR 392 (SC)). Further, the other decisions relied upon are in different contexts. The factual matrix of a case cannot but be kept in view to fully appreciate the ratio of the decision. In Vandana Properties (supra), the Hon’ble High Court was considering the eligibility of a building which came up much later on the site of an existing housing project, c…

ACIT 17(1), Mumbai vs. Fortaleza Developers, Mumbai

Appeal is allowed, then ground 2 of Revenue’s appeal wiil become infructuous

Bench: Shri Amit Shukla () & Shri Ashwani Taneja ()

…e the Hon’ble Bombay High Court which was decided in favour of the Revenue by the Hon’ble High Court. The Revenue carried the matter before the Hon’ble Apex Court where it was decided as part of batch of appeals and is reported as CIT vs Sarkar Builders & Ors 375 ITR 392 (SC) wherein it has been inter alia held that where housing project was sanctioned before the amendment but has been completed after April 1, 2005, when the amended provisions came into operation, the assessee would be entitled to deduction u/s 80IB (10) and conditions mentioned in clause (d) would not apply. It has been stated that assessee’s pr…

ACIT 17(1), Mumbai vs. Fortaleza Developers, Mumbai

Appeal is allowed, then ground 2 of Revenue’s appeal wiil become infructuous

Bench: Shri Amit Shukla () & Shri Ashwani Taneja ()

…e the Hon’ble Bombay High Court which was decided in favour of the Revenue by the Hon’ble High Court. The Revenue carried the matter before the Hon’ble Apex Court where it was decided as part of batch of appeals and is reported as CIT vs Sarkar Builders & Ors 375 ITR 392 (SC) wherein it has been inter alia held that where housing project was sanctioned before the amendment but has been completed after April 1, 2005, when the amended provisions came into operation, the assessee would be entitled to deduction u/s 80IB (10) and conditions mentioned in clause (d) would not apply. It has been stated that assessee’s pr…

Fortaleza Developers, Mumbai vs. Addl CIT RG 15(1), Mumbai

Appeal is allowed, then ground 2 of Revenue’s appeal wiil become infructuous

Bench: Shri Amit Shukla () & Shri Ashwani Taneja ()

…e the Hon’ble Bombay High Court which was decided in favour of the Revenue by the Hon’ble High Court. The Revenue carried the matter before the Hon’ble Apex Court where it was decided as part of batch of appeals and is reported as CIT vs Sarkar Builders & Ors 375 ITR 392 (SC) wherein it has been inter alia held that where housing project was sanctioned before the amendment but has been completed after April 1, 2005, when the amended provisions came into operation, the assessee would be entitled to deduction u/s 80IB (10) and conditions mentioned in clause (d) would not apply. It has been stated that assessee’s pr…

Fortaleza Developers, Mumbai vs. ITO 15(1)(3), Mumbai

Appeal is allowed, then ground 2 of Revenue’s appeal wiil become infructuous

Bench: Shri Amit Shukla () & Shri Ashwani Taneja ()

…e the Hon’ble Bombay High Court which was decided in favour of the Revenue by the Hon’ble High Court. The Revenue carried the matter before the Hon’ble Apex Court where it was decided as part of batch of appeals and is reported as CIT vs Sarkar Builders & Ors 375 ITR 392 (SC) wherein it has been inter alia held that where housing project was sanctioned before the amendment but has been completed after April 1, 2005, when the amended provisions came into operation, the assessee would be entitled to deduction u/s 80IB (10) and conditions mentioned in clause (d) would not apply. It has been stated that assessee’s pr…

ACIT Cen Cir 2, Thane vs. Salasar Developers, Thane

In the result, the questions raised in the appeal are answered thus:—

Bench: Shri Sanjay Arora, Am & Shri Pawan Singh, Jm आयकर अपील सं./I.T.A. No. 2271/Mum/2013 ("नधा"रण वष" / Assessment Year: 2009-10) Salasar Developers, Asst. Cit-11, बनाम/ Gr. Flr., Vrindavan, Salasar Thane Brijbhoomi, Temba Hospital Road, Vs. Bhayander (W), Thane-401 101 "थायी लेखा सं./जीआइआर सं./Pan/Gir No. Aakfs 6465 R (Assessee) (Revenue) : आयकर अपील सं./I.T.A. No. 2939/Mum/2013 ("नधा"रण वष" / Assessment Year: 2009-10) बनाम/ Asst. Cit-11, Salasar Developers, Thane Thane-401 101 Vs. (Revenue) (Assessee) : : Shri Virag H. Shah Assessee By Revenue By : Shri Mohammed Rizwan सुनवाई क" तार"ख / : 17.5.2016 Date Of Hearing घोषणा क" तार"ख / : 12.8.2016 Date Of Pronouncement आदेश / O R D E R Per Sanjay Arora, A. M.: These Are Cross Appeals, I.E., By The Assessee & The Revenue, Directed Against The Order By The Commissioner Of Income Tax (Appeals)-Ii, Thane (‘Cit(A)’ For Short) Dated 26.12.2012, Partly Allowing The Assessee’S Appeal Contesting Its Assessment U/S.143(3) Of The Income Tax Act, 1961 (‘The Act’ Hereinafter) For The Assessment Year (A.Y.) 2009-10 Vide Order Dated 09.12.2011. 2

…ng Officer (A.O.) had worked out the built-up area in terms of section 80-IB(14)(a), defining built-up area, inserted by Finance (No.2) Act, 2004 w.e.f. 01.4.2005. The same has been held by the Hon’ble Apex Court in CIT vs. Sarkar Builders (reported at [2015] 375 ITR 392 (SC)) as only prospective, so that it shall apply on or after the date on which the said amendment comes into force, i.e., A.Y. 2005-06 onwards. The relevant project being admittedly approved on 28.5.2003 (PB pg. 37), i.e., prior to the commencement of the relevant previous year, being financial year 2004-05, on and from which the amendment comes…