Income Tax Appellate Tribunal - Mumbai
Lakewood Construction Co. Pvt. Ltd., vs Ito 9(2)(2), on 4 August, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL "A", BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI MAHAVIR SINGH, JM MA No.115/Mum/2016 (Out of ITA No.8341/Mum/2010 (Assessment Year :2007-08) M/s. Lakewood Construction Co. Vs. ITO 9(2)(2), R.No.225, Pvt. Ltd., 361/363, Vedanand, Aayakar Bhavan, M.K. 21st Road, 3rd Floor, TPS Road, Road, Mumbai - 400 020 Bandra (W), Mumbai - 400 050 PAN/GIR No. AAACL1210G Appellant) .. Respondent) Assessee by Shri. N.M. Porwal Revenue by Shri B.S. Bist Date of Hearing 05/05/2017 Date of Pronouncement 04/08/2017 आदे श / O R D E R PER R.C.SHARMA (A.M):
This M.A arose out of the order passed by the Tribunal in ITA No.8341/Mum/2016 dated 15/05/2013.
2. It was submitted by learned AR that assessee is a developer. Profit on sale of flats was added by the AO by taking the sale consideration other than the amount actually received on its sales. The CIT(A) has deleted the addition by relying on the decision of Hon'ble Supreme Court in the case of K.P. Varghese 131 ITR 597. However, without giving the finding as to how the Hon'ble Supreme Court judgment in the case of K.P. Varghese was not applicable to the facts of the assessee's company case 2 M.A.No.115/Mum/2016 M/s. Lakewood Construction Co. Pvt. Ltd., and the order passed by the CIT(A) is incorrect, the Tribunal has restored the matter back to the file of the AO
3. It was also pleaded that provisions of Section 43CA of the Income Tax Act 1961 which is directly applicable to the facts of the assessee's case have not been considered which amounts to mistake apparent from record.
4. On the other hand, learned DR contended that there is no mistake much less an apparent mistake in the order of the Tribunal.
5. We have considered rival contentions and carefully gone through the order of the Tribunal and found that while restoring the matter in respect of three flats, Tribunal have not considered the decision of the Hon'ble Supreme Court in case of K.P. Varghese and also not considered the provisions of Section 43CA which was applicable only from A.Y. 2014-15, whereas assessment year under consideration is 2007-08, which amounts to mistake apparent from record. Accordingly, we recall the order passed by the Tribunal for deciding afresh after considering the decision of the Supreme Court as well as provisions of Section 43CA of the IT Act.
6. In the result, MA is allowed in terms indicated hereinabove.
Order pronounced in the open court on this 04/08/2017
Sd/- Sd/-
(MAHAVIR SINGH) (R.C.SHARMA)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Mumbai; Dated 04/08/2017
Karuna Sr.PS
3
M.A.No.115/Mum/2016
M/s. Lakewood Construction Co. Pvt. Ltd., Copy of the Order forwarded to :
1. The Appellant
2. The Respondent.
3. The CIT(A), Mumbai.
4. CIT DR, ITAT, Mumbai
5. BY ORDER,
6. Guard file.
सत्यापित प्रतत //True Copy// (Asstt. Registrar) ITAT, Mumbai