Income Tax Appellate Tribunal - Mumbai
Vastusankalp Developers, Thane vs Department Of Income Tax on 4 December, 2013
आयकर अपील य अ धकरण,
धकरण, मब
ंु ई यायपीठ 'एफ' मब
ंु ई
IN THE INCOME TAX APPELLATE TRIBUNAL"F" BENCH, MUMBAI
ी पी.
पी.एम.
एम. जगताप,
जगताप, लेखा सद य,
य एवं ी अ मत शु ला,
ला, या यक सद य के सम
BEFORE SHRI P.M. JAGTAP, AM AND SHRI AMIT SHUKLA, JM
ITA No. 6074/Mum/2012
Assessment Year-2006-07
ACIT बनाम/
बनाम M/S VASTUSANKALP
CIR -3 DE VELOPE R S, 108,
Vs.
2 n d FLOOR , RANI MANSION, MADHAV BAUG, GAUSHALA
MURBAD RO AD, R OAD, SHIVAJI PATH,
KALYAN(W)-421301, K ALYAN (W )
DIST-TH ANE
थायी ले खा सं . /PAN :AADFV5372R
(अपीलाथ /Appellant) .. ( यथ / Respondent)
C.O.No. 252/Mum/2013
Assessment Year-2006-07
M/S VASTUSANKALP बनाम/
बनाम ACIT
DE VE LO PER S, 108, MAD HAV CIR-3
Vs.
BAUG , G AUSHALA RO AD, 2 n d FLOOR, RANI MANSION,
SHIVAJI PATH , K ALYAN (W ) MURBAD ROAD,
KALYAN(W)-421301,
DIST- THANE
थायी ले खा सं . /PAN :AADFV5372R
(अपीलाथ /Appellant) .. ( यथ / Respondent)
ITA No. 6075/Mum/2012
Assessment Year-2009-10
ACIT बनाम/
बनाम M/S VASTUSANKALP
CIR-3 Vs. DE VELOPE R S, 108,
2 n d FLOOR, RANI MANSION, MADHAV BAUG, GAUSHALA
MURBAD ROAD, R OAD, SHIVAJI PATH,
KALYAN(W)-421301, K ALYAN (W )
DIST- THANE
थायी ले खा सं . /PAN :AADFV5372R
(अपीलाथ /Appellant) .. ( यथ / Respondent)
C.O.No. 253/Mum/2013
Assessment Year-2009-10
M/S VASTUSANKALP बनाम/
बनाम ACI T
DE VE LO PER S, 108, MAD HAV CIR-3
Vs.
BAUG , G AUSHALA RO AD, 2 n d FLOOR, RANI MANSION ,
SHIVAJI PATH , K ALYAN (W ) MURBAD ROAD,
KALYAN(W)-421301,
DIST- THANE
थायी ले खा सं . /PAN :AAD FV5372R
(अपीलाथ /Appellant) .. ( यथ / Respondent)
2 ITA NO.6074 & 6075/Mum/2012,
C.O.252 & 253/Mum/2013.
M/s Vastusankalp Developers.
राज व क ओर से/ Revenue by: Shri Surendra Kumar
क ओर से / Assessee by : Shri K.Shivram
सन
ु वाई क तार ख /Date of Hea ring : 04/12/2013
घोषणा क तार ख /Date of Pron ouncement : 13/12/2013
आदे श / ORDER
PER P.M.JAGTAP, AM :-
पी.
पी.एम.
एम. जगताप, जगताप, लेखा सद य These two appeals preferred by the Revenue against separate orders passed by the ld. CIT(A)-1, Thane, dated 11/07/2012 and 19/07/2012 for A.Y. 2006-07 and 2009-10 involve a common issue and the same therefore have been heard together and are being disposed of by this single consolidated order alongwith cross objections filed by the assessee being C.O. No.252 & 253/Mum/2013.
2. The solitary issue involved in the appeals of the Revenue relates to the deletion by the ld. CIT(A) of the addition made by the AO on account of disallowance of assessee's claim for the deduction u/s 80IB(10) of the Income-tax Act, 1961.
3. The assessee in the present case is partnership which is engaged in the business of Builder and Developer. In the return of income filed for the years under consideration, deduction u/s 80IB(10) of the Act was claimed by the assessee amounting to Rs.1,05,97,493/- and Rs.59,48,132/- for A.Y.2006-07 and 2009-10 respectively. In the assessment originally computed u/s 143(3) vide order dated 28.12.2007, the assessee's claim for deduction u/s 80IB(10) was allowed by the AO subject to the condition that the relevant project of the assessee would be completed by 31.03.2009 which was the maximum time allowed to the assessee in order to the entitled for deduction u/s 80IB(10). During the course of assessment proceeding for A.Y. 2007-08, it was noticed by the AO that the assessee could not complete the said project by 31st March 2009. The stand taken by the assessee in this regard before the AO during the course of assessment proceedings was that the total area of project was 3 ITA NO.6074 & 6075/Mum/2012, C.O.252 & 253/Mum/2013.
M/s Vastusankalp Developers.
22,267 sq. mtr. on which further TDR of 12,166 sq. mtr. was loaded vide revised approval dated 30.03.2007. It was contended that the total work completed on the project up to 31.03.2007 itself covered the area of more than 1 acre and therefore the assessee should be entitled to get the deduction u/s u/s 80IB(10). This stand of the assessee was not found acceptable by the AO. According to him, the part completion of the project was not recognized under the Act which referred to the project as a whole. He therefore, held that the benefit of deduction u/s 80IB(10) cannot be extended to the half completed project even though the area occupied by such half completed project was more than one acre. Accordingly, he therefore, disallowed the claim of the assessee for deduction u/s 80IB(10) in the assessment completed for A.Y. 2007-08 and also reopened the assessment for A.Y. 2006-07 and disallowed the claim of the assessee for deduction u/s 80IB(10) amounting to Rs.1,05,97,493/ relying on his order for A.Y. 2007-08. In the assessment completed for Ay. 2009-10 u/s 143(3), he also followed his order for AY. 2007-08 and disallowed the claim of the assessee for deduction u/s 80IB(10) amounting to Rs. 59,48,132/-.
4. Against the reassessment order passed by the AO u/s 143(3) r.w.s. 147 for A.Y. 2006-07, appeal was preferred by the assessee before the ld. CIT(A) challenging the validity of the said assessment as well as disputing made on the addition account of disallowance of deduction u/s 80IB(10). After considering the submission of the assessee as well as material available on record, the ld. CIT(A) upheld the validity of the assessment made by the AO u/s 143(3) r.w.s. 147 holding that the same did not suffer from any infirmity or defect. He however, deleted the disallowance made by the AO on account of assessee's claim for deduction u/s 80IB(10) relying on the order of his predecessors in assessee's own case for A.Y. 2007-08 which was upheld by the Tribunal vide its order dated 31st March 2012 passed in ITA No. 6758/Mum/2010. The CIT(A) also allowed the claim of the assessee for deduction u/s 80IB(10) while disposing of the appeal of the assessee following the order of the Tribunal in assessee own case for A.Y. 2007-08 (supra) giving relief to the assessee on the similar issue.
4 ITA NO.6074 & 6075/Mum/2012,C.O.252 & 253/Mum/2013.
M/s Vastusankalp Developers.
5. We have heard the arguments of both the sides and perused the material available on record. As agreed by ld. Representatives of both the sides, the solitary common issue involved in these appeals of the Revenue is squarely covered in favour of the assessee by the decision of the Tribunal in assessee's own case for A.Y. 2007-08 rendered by its order dated 31st March 2012 (supra) wherein the similar claim of the assessee for deduction u/s 80IB(10) in respect of same project was allowed by the Tribunal vide para no. 6 of its order which reads as under:-
"We have heard the rival submissions of the parties and perused the records. We find that first plan of the assessee's project was approved on 14.12.2004 vide C.C. of the same date (page No.37 of the compilation and copy of the plan is placed at page no.57 of the compilation). On examining the approved plan, the total area of the plot was shown at 22,267 sq.mtrs. and after making required adjustment in the form of deductions like road, set-back area, proposed roads, recreation ground are etc., the total eligible area for the construction has been shown at 19,328.47 sq.mtrs. as the permissible built up area but as per the total proposed area, it was shown at 18,659.52 sq.mtrs. and consumption of the FSI is shown at 97%. Subsequently, the assessee obtained the TDR and filed the plan for the approval. Approving the TDR the assessee was allowed to commence the construction in the second phase given by the assessee which, is approved on 30.03.2007. It is true that in the second plan the buildings shown in the first plant are appearing but in original plan said buildings are not appearing. The argument of the Ld. Counsel is that the as the plot is common, hence, the assessee has shown the buildings appearing in the first plant also. Admittedly, when the first plan was approved by the local authority, at that time, the assessee has consumed 97% of the FSI and there was no balance FSI, which the assessee could commercially exploit. Subsequently, the assessee obtained the TDR and utilised 5 ITA NO.6074 & 6075/Mum/2012, C.O.252 & 253/Mum/2013.
M/s Vastusankalp Developers.
portion of the land on which otherwise as per the existing regulations it was not permissible to have any construction and it was in the form of the open space only. Only due to obtaining the TDR the assessee could go with the second phase of the project. The term 'Project' has not been defined for the purpose of sec.80I(10). In the different judicial pronouncement the term 'Project' has been interpreted keeping 'the liberal' approach. In our opinion, the first phase itself is a separate "project" and admittedly, the assessee completed the building shown in the first phase within four years from the financial year in which the commencement certificate was issued i.e. in F.Y. 2004-05. The Ld. D.R. referred to the trading in the Completion certificate where it is stated that the project is partly completed. In our opinion, as the plot of land is common for both the phases, hence, as per their regulations the Municipal authorities have issued part completion certificate. After giving our anxious consideration to the entirety of the facts and considering the provisions of the law, we are of the opinion that the Ld. CIT (A) rightly held that two phases are of two different projects and so far as Phase-1 is concerned, the assessee has completed the project within time prescribed. It is pertinent to note here in the entire controversy that the A.O. has no reservation or objection in respect of other criteria provided in the Act. Moreover, so far as second Phase is concerned, which has been commenced, which is totally based on the TDR, the assessee has not claimed any deduction u/s.80IB(10) as per the statement made by the Ld. Counsel. We are, therefore, of the opinion that there is no merit in the appeal filed by the revenue. We, accordingly, confirm the order of the Ld. CIT (A)."
6. As the issue involved in the years under consideration as well as all the material facts relevant thereto are similar to that of A.Y. 2007-08, we respectfully follow the order of the coordinate bench of this Tribunal for A.Y. 2007-08 (supra) and uphold the impugned order of the ld. CIT(A) deleting the additions made by the AO on account of disallowance of 6 ITA NO.6074 & 6075/Mum/2012, C.O.252 & 253/Mum/2013.
M/s Vastusankalp Developers.
assessee's claim for deduction u/s 80IB(10). Both the appeals of the Revenue are accordingly dismissed.
7. As regards the cross objection filed by the assessee for 2006-07 being C.O. no. 252/Mum/2013, it is observed that the solitary issue involved therein is relating to the validity of the assessment made by the AO u/s 143(3) r.w.s. 147. As agreed by the ld. Representatives of both the sides, this issue has been become academic or infructuous as a result of our decision rendered above deleting the entire addition made by the AO in the said assessment on account of disallowance of assessee's claim for deduction u/s 80IB(10). We therefore do not consider it necessary or expedient to adjudicate upon this issue and dismiss this cross objection of the assessee as infructuous.
8. As regards the assessee's cross objection for A.Y. 2009-10 being ITA No.253/Mum/2013, it is observed that in the grounds raised therein, the assessee has merely supported the impugned order of the ld. CIT(A) allowing the claim of the assessee of deduction u/s 80IB(10). As we have already upheld the order of the ld. CIT(A) for A.Y. 2009-10 allowing the claim of the assessee for deduction u/s 80IB(10), the cross objection filed by the assessee has become infructuous and the same is accordingly dismissed.
9. In the result, appeals of the revenue as well as cross objections of the assessee are dismissed.
Order pronounced in the open court on 13th December 2013.
Sd/- Sd/-
AMIT SHUKLA P.M.JAGTAP
(JUDICIAL MEMBER) (ACCOUNTANT MEMBER)
मंुबई MUMBAI, दनांक DATED: 13.12.2013
f{x~{tÜ? P.S.
7 ITA NO.6074 & 6075/Mum/2012,
C.O.252 & 253/Mum/2013.
M/s Vastusankalp Developers.
आदे श क त ल प अ े षत / Copy of the order forwarded to:
(1) नधा रती / The Assessee;
(2) राज व / The Revenue;
(3) आयकर आयु (अपील) / The CIT(A);
(4) आयकर आयु / The CIT, Mumbai City concerned;
(5) वभागीय त न ध, आयकर अपील य अ धकरण, मब
ंु ई / The DR, ITAT, Mumbai;
(6) गाड फाईल / Guard file.
स या पत त / True Copy
आदे शानस
ु ार / By Order
उप / सहायक पंजीकार / (Dy./Asstt. Registrar)
आयकर अपील य अ धकरण, मुंबई / ITAT, Mumbai