Income Tax Appellate Tribunal - Mumbai
Haware Engineers & Builders P.Ltd, Navi ... vs Assessee on 13 March, 2015
आयकर अपील य अ धकरण "एच" यायपीठ मुंबई म ।
IN THE INCOME TAX APPELLATE TRIBUNAL "H" BENCH, MUMBAI ी जो ग दर संह, या यक सद य एवं ी संजय अरोड़ा, लेखा सद य के सम ।
BEFORE SHRI JOGINDER SINGH, J.M. AND SHRI SANJAY ARORA, A.M. आयकर अपील सं./I.T.A. No. 4588/Mum/2013 ( नधा रण वष / Assessment Year: 2010-11) Haware Engineers & Builders Pvt. Ltd. Asst. CIT-29, 413/416 Vardhaman Market, बनाम/ Aayakar Bhavan, Sector-17, DBC, Vashi, Vs. M. K. Road, Mumbai-400 020 Navi Mumbai-400 705 थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. AAACH 2577 C (Assessee) : (Revenue) & आयकर अपील सं./I.T.A. No. 5032/Mum/2013 ( नधा रण वष / Assessment Year: 2010-11) Asst. CIT-29, Haware Engineers & Builders Pvt.
Aayakar Bhavan, Ltd.
बनाम/
M. K. Road, Mumbai-400 020 413/416 Vardhaman Market,
Vs. Sector-17, DBC, Vashi,
Navi Mumbai-400 705
थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. AAACH 2577 C (Revenue) : (Assessee) Assessee by : Shri S. K. Mutsaddi & Shri Ruturaj Harivijay Gurjar Revenue by : Shri Jeetendra Kumar सनु वाई क& तार(ख / : 09.03.2015 Date of Hearing Date of Pronouncement : 13.03.2015 आदे श / O R D E R Per Sanjay Arora, A. M.:
These are cross Appeals, i.e., by the Assessee and the Revenue, agitating the Order by the Commissioner of Income Tax (Appeals)-40, Mumbai ('CIT(A)' for short) dated 17.04.2013, 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.) 2010-11 vide order dated 22.02.2013.2 ITA No. 4588/Mum/2013 (A.Y. 2010-11)
Haware Engineers & Builders Pvt. Ltd. vs. Asst. CIT
2. At the very outset, it was submitted by the ld. Authorized Representative (AR), the assessee's counsel, that the assessee wishes to withdraw its' appeal, whereby it had challenged the disallowance of deduction u/s.80-IB(10) of the Act on some of the projects; the assessee being a builder and developer of real estate, at a higher amount than that claimed per the return of income, i.e., at Rs.369.26 lacs. On being enquired for the reason for a higher, subsequent claim, i.e., at Rs.423.64 lacs, made during the course of assessment proceedings, and which was denied by the Revenue for the reason of it being not made either per the return of income or the revised return of income following the decision by the apex court in Goetze (India) Ltd. vs. CIT [2006] 284 ITR 323 (SC), it was explained by him that the assessee had per the return claimed deduction by set off of losses from the other eligible or non-eligible projects. To this, it was observed by the Bench that the same is well settled in-as-much as the deduction u/s.80-IB(10) or any other income based incentive provision falling under Chapter VI-A of the Act, is, in view of section 80-A and 80-AB, only on the amount of the eligible income as included in the gross total income. That, in fact, is also the mandate of the section. The matter is in fact no longer res intgra, having been decided by the apex court per its decision as in the case of Synco Industries Ltd. vs. Assessing Officer [2002] 254 ITR 608 (Bom), since approved by the apex court at [2008] 299 ITR 444 (SC), being only in line with a series of decisions by the apex court, as in the case of CIT vs. Kotagiri Industrial Co-operative Tea Factory Ltd. [1997] 224 ITR 604 (SC), which position was in fact conceded to by the ld. AR. As such, even as the assessee itself seeks to withdraw its' appeal, we find no merit in its case; the deduction claimed per its return being in conformity with the settled law. We decide accordingly, dismissing the assessee's sole ground of appeal.
3. Coming to the Revenue's appeal, the sole basis of its' challenge is that the (combined) order dated 04.05.2012 by the tribunal for A.Ys. 2005-06 (in ITA No. 393 of 2009) and 2006-07 (in ITA No. 685 of 2010), confirming the deduction u/s.80-IB(10) in respect of projects comprising Balaji Towers, Silicon Towers, Kaveri, Panchavati, Vrindavan & Tulsi, has not been accepted by the Revenue and stands appealed against 3 ITA No. 4588/Mum/2013 (A.Y. 2010-11) Haware Engineers & Builders Pvt. Ltd. vs. Asst. CIT before the hon'ble jurisdictional high court u/s.260A of the Act. The ground assumed by the Revenue is misconceived in-as-much as the same could not by itself constitute a ground for challenge. If the tribunal's order, which is binding on the Revenue, is reversed or modified, to whatever extent, the assessment would stand to be revised accordingly. In fact, the ld. AR would during hearing, furnish the copies of the orders by the hon'ble high court, being in ITA No. 164 of 2013 dated 09.01.2015 (for A.Y. 2005-06) and in ITA No. 1668 of 2012 dated 04.12.2014 (for A.Y. 2006-07), dismissing the Revenue's appeal as not raising any substantial question of law. We have perused the said orders. We do not find all the projects as stated by the assessee vide its paper-book ('Particulars' section) in the orders by the hon'ble high court, which refer only to Tulsi and Vrindavan projects; rather, stating the former to be an extension of the latter. Further, the assessee itself has excluded in its narration (to PB pgs. 132-135) the projects Kamothe Phase I, Phase II and Phase III from the list of the eligible projects, even as the income from the Kamothe Phase I and III projects is included in the list of the projects for which deduction u/s.80- IB(10) stands claimed for the current year (refer para 3 and para 4.2 of the assessment and the impugned order respectively). We have, however, clarified that independent of the orders by the hon'ble high court, the Revenue's contention is not maintainable in-as- much as it is bound by the order by the tribunal, unless of-course it stands modified, which is in fact not the case. So however, the tribunal's order supra for A.Ys. 2005-06 and 2006-07 also does not mention the projects Kamothe Phase I, II and III. No doubt, the tribunal for the subsequent years has allowed deduction for the said projects as well. We have perused the said orders, being for A.Ys. 2008-09 and 2009-10 (PB pgs. 1-5) and for A.Y. 2007-08 (PB pgs. 6-8). The same do not issue any project-wise finding, and are in fact rendered only following the order by the tribunal for A.Ys. 2005-06 and 2006-07. No argument qua the said projects was also raised before us by either party.
Under the circumstances, we only consider it fit and proper to, while upholding the assessee's claim for deduction u/s.80-IB(10) for all other projects, restore the matter back to the file of the A.O. for deciding the eligibility of the assessee's claim for the said deduction on the Kamothe Phase I, II and III projects, i.e., in line and in conformity with 4 ITA No. 4588/Mum/2013 (A.Y. 2010-11) Haware Engineers & Builders Pvt. Ltd. vs. Asst. CIT the decision by the tribunal in the assessee's own case for A.Ys. 2005-06 and 2006-07, which has since attained finality. We decide accordingly.
4. In the result, the assessee's appeal is dismissed and the Revenue's appeal is disposed of on the aforesaid terms.
Order pronounced in the open court on March 13, 2015 Sd/- Sd/-
(Joginder Singh) (Sanjay Arora)
या यक सद य / Judicial Member लेखा सद य / Accountant Member
मुंबई Mumbai; +दनांक Dated : 13.03.2015
व. न.स./Roshani, Sr. PS
आदे श क# $ त&ल'प अ(े'षत/Copy of the Order forwarded to :
1. अपीलाथ, / The Appellant
2. -.यथ, / The Respondent
3. आयकर आयु/त(अपील) / The CIT(A)
4. आयकर आयु/त / CIT - concerned
5. 2वभागीय - त न ध, आयकर अपील(य अ धकरण, मुंबई / DR, ITAT, Mumbai
6. गाड8 फाईल / Guard File आदे शानस ु ार/ BY ORDER, उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, मुंबई / ITAT, Mumbai