Income Tax Appellate Tribunal - Mumbai
Salasar Developers , Thane vs Assessee on 17 April, 2013
आयकर अपीलीय अिधकरण, अिधकरण मुंबई IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES 'F' MUMBAI सव[ौी आय.पी. बंसल, Ûयाियक सदःय /एवं एवं ौी राजेÛि, लेखा सदःय BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER /AND SHRI RAJENDRA, ACCOUNTANT MEMBER आयकर अपील सं. / ITA No. 2431/Mum/2010 िनधा[रण वष[ /Assessment Year 2007-08 आयकर अपील सं. / ITA No. 2432/Mum/2010 िनधा[रण वष[ /Assessment Year 2004-05 आयकर अपील सं. / ITA No. 2433/Mum/2010 िनधा[रण वष[ /Assessment Year 2005-06 आयकर अपील सं. / ITA No. 2434/Mum/2010 िनधा[रण वष[ /Assessment Year 2006-07 M/s. Salasar Developers, The Income Tax Gr. Floor, Vrindavan, Officer (Central), Salasar Brij Bhoomi, Vs. THANE.
Temba Hospital Road, Bhayender (W).
PAN: AAKFS 6465 R
(अपीलाथȸ /Appellant) (ू×यथȸ / Respondent)
आयकर अपील सं. / ITA No. 2159/Mum/2010
िनधा[रण वष[ /Assessment Year 2004-05
आयकर अपील सं. / ITA No. 2160/Mum/2010
िनधा[रण वष[ /Assessment Year 2005-06
आयकर अपील सं. / ITA No. 2161/Mum/2010
िनधा[रण वष[ /Assessment Year 2006-07
आयकर अपील सं. / ITA No. 2162/Mum/2010
िनधा[रण वष[ /Assessment Year 2007-08
The Income Tax Officer M/s. Salasar Developers,
(Central), Gr. Floor, Vrindavan,
THANE. Vs. Salasar Brij Bhoomi,
Temba Hospital Road,
Bhayender (W).
PAN: AAKFS 6465 R
(अपीलाथȸ /Appellant) (ू×यथȸ / Respondent)
Revenue by : Shri A.P. Singh Assessee by : Shri K. Shivaram
Date of Hearing : 10-04-2013 Date of Pronouncement :17-04-2013
2 M/s. Salasar Developers
आदे श / O R D E R
PER BENCH,
Cross-appeals have been filed by the Assessing officer (AO) and the assessee- firm for four Assessment Years (AYs.) against the orders of the CIT(A)-I, Thane raising following Grounds of Appeal. As the issues involved in all the appeals are more or less same, therefore we will be passing a common order.
Grounds of appeal filed by the AO read as under:
ITA No. 2159/Mum/2010-AY.2004-05"1.On facts and circumstance of case and in law the Ld. CIT(A) has erred in holding that the assessee cannot be denied the benefit of deduction u/s 80IB(10) for the reason that the project is approved as commercial-cum residential project, which is definitely in contravention to the provisions of Section 80IB(10) of the Act.
2.On facts and circumstances of the case and in law the Ld. CIT(A) has erred in holding that ratio of decision of Bramha Associates v/s Joint Commissioner of Income Tax (2009) (122 TTJ(Pune) (SB) 433) is applicable to present facts of the case, as said decision is not in accordance with the provisions of Section 801B(10).
3.On facts and circumstance of case and in law the Ld. CIT(A) has erred in holding that the assessee is entitled for pro rata deduction under Section 80IB(10) relatable to the residential units not exceeding 1000 sq fts constructed area.
4.The appellant craves leave to add, alter, amend, and modify any of the above grounds of appeal.ITA No. 2160/Mum/2010-A.Y.2005-06
1.On facts and circumstances of the case and in law the Ld. CIT(A) has erred in allowing the deduction u/s. 8018(10) even though A. the project is approved as commercial cum residential project, B. the assessee has a commercial units in project and build up area of some of residential units exceeds 1000 Sq.Ft
2.On facts and circumstance of case and in law the Ld. CIT(A) has erred in applying the decision of Hon'ble Sp. Bench ITAT, Pune in the case of Bramha Associates v/s Joint Commissioner of Income Tax (2009) (122 TTJ(Pune) (SB) 433) which is applicable only for A.Y. 2004-05 and earlier year and not for A.Y. 2005-06 or subsequent year. However the Ld. CIT (A) based on this decision allowed relief in assessee' favour for A.Y. 2005-06
3.On facts and circumstances of case and in law the Ld. CIT(A) has erred in holding that the assessee is entitled for proportionate amount of deduction u/s. 80IB(10) relatable to residential units not exceeding 1000 sq fts constructed area.
4.On facts and circumstances of case and in law the Ld. CIT(A) has erred in law in deciding the issue in favour of assessee by not taking into consideration the decisions of Hon'able Supreme Court of India in the cases of CIT V/s Isthmian Steamship Lines (20 ITR 572)(SC) and Karimtharuvi Tea Estate Ltd (60 ITR 262)(SC) wherein it is held that the law to be applied is that which is in force in relevant assessment year unless otherwise provided expressly or by necessary implication.ITA No. 2161/Mum/2010-AY.2006-07
On facts and circumstances of the case and in law the Ld. CIT(A) has erred in allowing the deduction u/s. 801B(l0) even though A.the project is approved as commercial cum residential project, B.the assessee has a commercial units in project and build up area of some of 3 M/s. Salasar Developers residential units exceeds 1000 Sq.Ft
2.On facts and circumstance of case and in law the Ld. CIT(A) has erred in applying the decision of Hon'ble Sp. Bench ITAT, Pune in the case of Bramha Associates v/s Joint Commissioner of Income Tax (2009) (122 TTJ(Pune) (SB) 433 ) which is applicable only for A.Y. 2004-05 and earlier year and not for A.Y. 2005-06 or subsequent year. However the Ld. CIT (A) based on this decision allowed relief in assessee' favour for A.Y. 2005-06.
3.On facts and circumstances of case and in law the Ld. CIT(A) has erred in holding that the assessee is entitled for proportionate amount of deduction u/s. 80IB(10) relatable to residential units not exceeding 1000 sq fts constructed area.
4.On facts and circumstances of case and in law the Ld. CIT(A) has erred in law in deciding the issue in favour of assessee by not taking into consideration the decisions of Hon'ble Supreme Court of India in the cases of CIT V/s Isthmian Steamship Lines (20ITR 572)(SC) and Karimtharuvi Tea Estate Ltd (60 ITR 262)(SC) wherein it is held that the law to be applied is that which is in force in relevant assessment year unless otherwise provided expressly or by necessary implication.
5. The appellant craves leave to add, alter, amend, and modify any of the above grounds of appeal.
ITA No. 2162/Mum/2010-A.Y.2007-081.On facts and circumstances of the case and in law the Ld. CIT(A) has erred in allowing the deduction u/s. 801B(l0) even though A.the project is approved as commercial cum residential project, B.the assessee has a commercial units in project and build up area of some of residential units exceeds 1000 Sq.Ft
2.On facts and circumstance of case and in law the Ld. CIT(A) has erred in applying the decision of Hon'ble Sp. Bench ITAT, Pune in the case of Bramha Associates v/s Joint Commissioner of Income Tax (2009) (122 TTJ(Pune) (SB) 433 ) which is applicable only for A.Y. 2004-05 and earlier year and not for A.Y.2005-06 or subsequent year. However the Ld.CIT (A)based on this decision allowed relief in assesee's favour for A.Y. 2005-06
3.On facts and circumstances of case and in law the Ld.CIT(A) has erred in holding that the assessee is entitled for proportionate amount of deduction u/s. 80IB(10) relatable to residential units not exceeding 1000 sq fts constructed area,
4.On facts and circumstances of case and in law the Ld.CIT(A) has erred in law in deciding the issue in favour of assessee by not taking into consideration the decisions of Hon'able Supreme Court of India in the cases of CIT V/s Isthmian Steamship Lines (20 ITR 572)(SC) and Karimtharuvi Tea Estate Ltd (60 ITR 262)(SC) wherein it is held that the law to be applied is that which is in force in relevant assessment year unless otherwise provided expressly or by necessary implication.
5.The appellant craves leave to add, alter, amend, and modify any of the above grounds of appeal"
Following are the grounds of appeal filed by the assessee-firm:ITA No. 2431/Mum/2010-AY.2007-08
The learned CIT(A)-1,Thane has erred in confirming disallowance of well deserved and rightful claim of Rs.1,17,17,040/- being deduction u/s. 80IB(10) on the grounds that the appellant firm has not fulfilled the prescribed conditions specified therein disregarding the fact that;
(i)The size of the land in which such housing project constructed is more than one acre.
(ii)The construction of the entire housing project is commenced on or after 28.05.2003 and that fulfills the conditions that the commencement of the housing project should be on or after 01.10.1998. Since the said approval is obtained prior to 31.03.2005 as specified 4 M/s. Salasar Developers in pre-amended provisions of sec.80IB (10), the newly inserted condition of obtaining occupation certificate within specified time limit is not applicable in the instant case as the said amendment are prospective and not retrospective.
(iii)The maximum size of the residential units in all the buildings is mostly less than 1000 sq. ft. (Built-up Area).
(iv)Under the Development Control Regulations of Mira Bhayander Municipal Corporation (MBMC), the provision of convenience shopping in the residential project is part and parcel of the Housing Project in the absence of any definition of housing project under the Act. This fact is further substantiated by the notification issued by CBDT to Maharashtra Chamber of Housing Industry (MCHI) that if the housing project with the provision of convenience shopping is approved as such by the Local Authority then it is a sufficient compliance for the purpose of 80IB (10) of the Income Tax Act, 1961.
(v)In reply to specific query raised by the appellant to the local authority that whether abovementioned housing project "Salasar Brijbhoomi" with the provision of convenient shopping etc., is a housing project or not, it was opined by the said corporation that the project under review is a housing project.
2.The learned CIT (A) failed to appreciate the factual detailed submission made by the appellant and formed an opinion based on the presumption that the appellant is not entitled for deduction u/s 801B (10) by virtue of not obtaining building completion certificate in respect of one of the buildings 'Govardhan' out of six buildings constructed by them disregarding the submission of the appellant firm that.
a.An application seeking building completion certificate in respect of the said building has already been made on 03.03.2008 to MBMC which was well within the lime limit of obtaining completing certificate on or before 31.03.2008. b.In respect of the said Govardhan building, neither any sales have taken place nor any profit is derived during the period under review. Accordingly, no deduction u/s.80IB(10) has been claimed and therefore non-obtaining of completion certificate should not vitiate the deduction u/s.80IB (10)claimed in respect of other housing projects which fulfills all the requisite conditions.
c.The condition of obtaining completion certificate has been introduced by Finance (No.2) Amendment Act, 2004 w. e. f. 01.04.2005 and therefore the project commenced prior to 01.04. 2005 are not covered by such condition of obtaining completion certificate on or before 31.03. 2008.Our this view is fully supported by three judgments of jurisdictional ITAT Mumbai in the case of M/s.Saroj Sales Corporation vs. DCIT Mumbai,M/s.Poonam Gruh Nirman vs. ACIT Mumbai and ACIT, Mumbai vs.M/s.Sheth Developers Pvt. Ltd.
3.Without prejudice to the above, in the instant case the search and seizure action took place in the residential premises of the partners of the appellant firm and there no findings of any books, records and other materials of the appellant firm were found. Since the execution of warrant of authorization is not served on the official premises of the appellant firm, the provisions of section 153A r. w. s. 132 are not applicable hence the entire action of initiating assessment proceeding u/s 153A (b) r. w. s. 143 (3) are void-ab- initio. Hence the said order is liable to be quashed.
Your appellant craves to add or alter any ground of appeal.
ITA No. 2432/Mum/2010-AY.2004-051 The learned CIT (A) - I, Thane has erred in confirming disallowance of well deserved and rightful claim of Rs. 22,28,956/- being deduction u/s. 80IB (10) on the grounds that the appellant firm has not fulfilled the prescribed conditions specified therein disregarding the fact that;
(i)The size of the land in which such housing project constructed is more than one acre.
(ii)The construction of the entire housing project is commenced on or after 28.05.2003 and that fulfills the conditions that the commencement of the housing project should be on or after 5 M/s. Salasar Developers 01.10.1998. Since the said approval is obtained prior to 31.03.2005 as specified in pre- amended provisions of sec. 8018 (10), the newly inserted condition of obtaining occupation certificate within specified time limit is not applicable in the instant case as the said amendment are prospective and not retrospective.
(iii) The maximum size of the residential units in all the buildings is mostly less than 1000 sq. ft. (Built-up Area).
(iv) Under the Development Control Regulations of Mira Bhayander Municipal Corporation (MBMC), the provision of convenience shopping in the residential project is part and parcel of the Housing Project in the absence of any definition of housing project under the Act. This fact is further substantiated by the notification issued by CBDT to Maharashtra Chamber of Housing Industry (MCHI) that if the housing project with the provision of convenience shopping is approved as such by the Local Authority then it is a sufficient compliance for the purpose of 80IB (10) of the Income Tax Act, 1961.
(v)In reply to specific query raised by the appellant to the local authority that whether abovementioned housing project "Salasar Brijbhoomi" with the provision of convenient shopping etc., is a housing project or not, it was opined by the said corporation that the project under review is a housing project.
2.The learned CIT (A) failed to appreciate the factual detailed submission made by the appellant and formed an opinion based on the presumption that the appellant is not entitled for deduction u/s 8013 (10) by virtue of not obtaining building completion certificate in respect of one of the buildings 'Govardhan' out of six buildings constructed by them disregarding the submission of the appellant firm that a.An application seeking building completion certificate in respect of the said building has already been made on 03.03.2008 to MBMC which was well within the time limit of obtaining completing certificate on or before 31.03.2008. b.In respect of the said Govardhan building, neither any sales have taken place nor any profit is derived during the period under review. Accordingly, no deduction u/s.80IB(10)has been claimed and therefore non-obtaining of completion certificate should not vitiate the deduction u/s. 80IB(10) claimed in respect of other housing projects which fulfills all the requisite conditions.
c. The condition of obtaining completion certificate has been introduced by Finance (No. 2) Amendment Act, 2004 w.e.f.01.04.2005 and therefore the project commenced prior to 01.04.2005 are not covered by such condition of obtaining completion certificate on or before 31.03.2008. Our this view is fully supported by three judgments of jurisdictional ITAT Mumbai in the case of M/s.Saroj Sales Corporation vs. DCIT Mumbai, M/s. Poonam Gruh Nirman vs. ACIT Mumbai and ACIT, Mumbai vs. M/s. Sheth Developers Pvt. Ltd.
3.Without prejudice to the above, in the instant case the search and seizure action took place in the residential premises of the partners of the appellant firm and there no findings of any books, records and other materials of the appellant firm were found. Since the execution of warrant of authorization is not served on the official premises of the appellant firm, the provisions of section 153A r. w. s. 132 are not applicable hence the entire action of initiating assessment proceeding u/s 153A (b) r. w. s. 143 (3) are void-ab-initio. Hence the said order is liable to be quashed.
4.Without prejudice to the above, in the case of appellant firm, while passing the original assessment u/s 143 (3) the A.O. has rejected the deduction claimed by the appellant u/s. 80IB (10) against which appeal was preferred before Hon'ble CIT(A)-II,Thane who in turn has granted substantial relief by his appellate order dated 25.10.2007, there after the Revenue has preferred an appeal in Hon'ble ITAT, Mumbai which is pending for their final disposal. Under the proviso to sec. 153A even if the search action is taking place only the pending assessments gets abated and not the matters which are pending before higher authorities like ITAT. That means, the matter which is pending before ITAT for final disposal cannot be subject matter of re-assessment or revival by the assessing officer. Hence, such action on the part of the assessing officer as well as its subsequent confirmation by Hon'ble CIT (A) is totally unjust illegal and therefore liable to be quashed.
6 M/s. Salasar Developers Your appellant craves to add or alter any ground of appeal.
ITA No. 2433/Mum/2010-AY.2005-061.The learned CIT (A) - I,Thane has erred in confirming disallowance of well deserved and rightful claim of Rs.2, 07,81,715/- being deduction u/s. 80IB (10) on the grounds that the appellant firm has not fulfilled the prescribed conditions specified therein disregarding the fact that;
(i)The size of the land in which such housing project constructed is more than one acre.
(ii)The construction of the entire housing project is commenced on or after 28.05.2003 and that fulfills the conditions that the commencement of the housing project should be on or after 01.10.1998. Since the said approval is obtained prior to 31.03.2005 as specified in pre-amended provisions of sec. 8018 (10), the newly inserted condition of obtaining occupation certificate within specified time limit is not applicable in the instant case as the said amendment are prospective and not retrospective.
(iii) The maximum size of the residential units in all the buildings is mostly less than 1000 sq. ft. (Built-up Area).
(iv)Under the Development Control Regulations of Mira Bhayander Municipal Corporation (MBMC), the provision of convenience shopping in the residential project is part and parcel of the Housing Project in the absence of any definition of housing project under the Act. This fact is further substantiated by the notification issued by CBDT to Maharashtra Chamber of Housing Industry (MCHI) that if the housing project with the provision of convenience shopping is approved as such by the Local Authority then it is a sufficient compliance for the purpose of 80IB (10) of the Income Tax Act, 1961.
(v)In reply to specific query raised by the appellant to the local authority that whether abovementioned housing project "Salasar Brijbhoomi" with the provision of convenient shopping etc., is a housing project or not, it was opined by the said corporation that the project under review is a housing project.
2. The learned CIT (A) failed to appreciate the factual detailed submissionmade by the appellant and formed an opinion based on the presumption that the appellant is not entitled for deduction u/s 80IB(10) by virtue of not obtaining building completion certificate in respect of one of the buildings 'Govardhan' out of six buiLd.lirigs constructed by them disregarding the submission of the appellant firm that a.An application seeking building completion certificate in respect of the said building has already been made on 03.03.2008 to MBMC which was well within the time limit of obtaining completing certificate on or before 31.03.2008. b.In respect of the said Govardhan building, neither any sales have taken place nor any profit is derived during the period under review. Accordingly, no deduction u/s. 8013 (10) has been claimed and therefore non-obtaining of completion certificate should not vitiate the deduction u/s. 8018 (10) claimed in respect of other housing projects which fulfills all the requisite conditions.
c. The condition of obtaining completion certificate has been introduced by Finance (No. 2) Amendment Act, 2004 w.e.f.01.04.2005 and therefore the project commenced prior to 01.04.2005 are not covered by such condition of obtaining completion certificate on or before 31.03.2008. Our this view is fully supported by three judgments of jurisdictional ITAT Mumbai in the case of M/s.Saroj Sales Corporation vs. DCIT Mumbai, M/s. Poonam Gruh Nirman vs. ACIT Mumbai and ACIT, Mumbai vs. M/s. Sheth Developers Pvt. Ltd.
3.Without prejudice to the above, in the instant case the search and seizure action took place in the residential premises of the partners of the appellant firm and there no findings of any books, records and other materials of the appellant firm were found. Since the execution of warrant of authorization is not served on the official 7 M/s. Salasar Developers premises of the appellant firm, the provisions of section 153A r.w. s.132 are not applicable hence the entire action of initiating assessment proceeding u/s 153A (b) r. w. s.143 (3) are void-ab-initio. Hence the said order is liable to be quashed.
4.Without prejudice to the above, in the case of appellant firm, while passing the original assessment u/s 143 (3) the A.O. has rejected the deduction claimed by the appellant u/s. 80IB (10) against which appeal was preferred before Hon'ble CIT(A)- II, Thane who in turn has granted substantial relief by his appellate order dated 25.10.2007, there after the Revenue has preferred an appeal in Hon'ble ITAT, Mumbai which is pending for their final disposal. Under the proviso to sec. 153A even if the search action is taking place only the pending assessments gets abated and not the matters which are pending before higher authorities like ITAT. That means, the matter which is pending before ITAT for final disposal cannot be subject matter of re-assessment or revival by the assessing officer. Hence, such action on the part of the assessing officer as well as its subsequent confirmation by Hon'ble CIT (A) is totally unjust illegal and therefore liable to be quashed.
Your appellant craves to add or alter any ground of appeal.
ITA No. 2434/Mum/2010-AY.2006-071.The learned CIT (A) - I,Thane has erred in confirming disallowance of well deserved and rightful claim of Rs. 1,43,11,533/- being deduction u/s. 80IB (10) on the grounds that the appellant firm has not fulfilled the prescribed conditions specified therein disregarding the fact that;
(i)The size of the land in which such housing project constructed is more than one acre.
(ii)The construction of the entire housing project is commenced on or after 28.05.2003 and that fulfills the conditions that the commencement of the housing project should be on or after 01.10.1998. Since the said approval is obtained prior to 31.03.2005 as specified in pre-amended provisions of sec. 8018 (10), the newly inserted condition of obtaining occupation certificate within specified time limits not applicable in the instant case as the said amendment are prospective and not retrospective.
(iii) The maximum size of the residential units in all the buildings is mostly less than 1000 sq. ft. (Built-up Area).
(iv) Under the Development Control Regulations of Mira Bhayander Municipal Corporation (MBMC), the provision of convenience shopping in the residential project is part and parcel of the Housing Project in the absence of any definition of housing project under the Act. This fact is further substantiated by the notification issued by CBDT to Maharashtra Chamber of Housing Industry (MCHI) that if the housing project with the provision of convenience shopping is approved as such by the Local Authority then it is a sufficient compliance for the purpose of 80IB (10) of the Income Tax Act, 1961.
(v)In reply to specific query raised by the appellant to the local authority that whether abovementioned housing project "Salasar Brijbhoomi" with the provision of convenient shopping etc., is a housing project or not, it was opined by the said corporation that the project under review is a housing project.
2. The learned CIT (A) failed to appreciate the factual detailed submission made by the appellant and formed an opinion based on the presumption that the appellant is not entitled for deduction u/s 80IB (10) by virtue of not obtaining building completion certificate in respect of one of the buildings 'Govardhan' out of six buildings constructed by them disregarding the submission of the appellant firm that a.An application seeking building completion certificate in respect of the said building has already been made on 03.03.2008 to MBMC which was well within the time limit of obtaining completing certificate on or before 31.03.2008.
8 M/s. Salasar Developers b.In respect of the said Govardhan building, neither any sales have taken place nor any profit is derived during the period under review. Accordingly, no deduction u/s. 8013 (10) has been claimed and therefore non-obtaining of completion certificate should not vitiate the deduction u/s. 8018 (10) claimed in respect of other housing projects which fulfills all the requisite conditions.
c. The condition of obtaining completion certificate has been introduced by Finance (No. 2) Amendment Act, 2004 w.e.f.01.04.2005 and therefore the project commenced prior to 01.04.2005 are not covered by such condition of obtaining completion certificate on or before 31.03.2008. Our this view is fully supported by three judgments of jurisdictional ITAT Mumbai in the case of M/s.Saroj Sales Corporation vs. DCIT Mumbai, M/s. Poonam Gruh Nirman vs. ACIT Mumbai and ACIT, Mumbai vs. M/s. Sheth Developers Pvt. Ltd.
3.Without prejudice to the above, in the instant case the search and seizure action took place in the residential premises of the partners of the appellant firm and there no findings of any books, records and other materials of the appellant firm were found. Since the execution of warrant of authorization is not served on the official premises of the appellant firm,the provisions of section 153A r.w.s.132 are not appli - cable hence the entire action of initiating assessment proceeding u/s 153A
(b)r.w.s.143 (3) are void-ab-initio.Hence the said order is liable to be quashed."
Additional Grounds of appeal filed by the assessee ; as per the provisions of Rule 11 of the ITAT, Rules 1963 for all the four AY; read as under :
"Issue: Additional Gr. No.1 Notice u/s. 153A bad in law.Warrant of authorization not in the name of firm nor served on the official premises of the assessee. As no warrant on name of firm nor search at assessee's business premises. Notice u/s. 153A bad in law.
Gr. Nos. Additional 2 & 3: No incriminatory document found therefore no denovo assessment where subject matter already adjudicated by A.O. & CIT(A) in earlier proceeding."
We find that additional grounds are legal in nature and arise out of the order of the First Appellate Authority (FAA). From the applications filed it transpires that except for the AY.2007 -08 assessee-firm had raised specific issue about applicability of section 153A of the Act before the FAA. Before us, it was submitted that issue is vital and needs proper adjudication. After considering the submissions of the assessee-firm we admit the additional ground filed by it.
Facts of the case:
2. Assessee-firm is engaged the business of construction and developers. Details of dates of returns of income filed, income disclosed by the assessee, dates of assessment orders, assessed incomes, dates of orders of CIT(A) can be summarised as under :
AY ROI Income Date of Income Dt. of order
u/s.153A Disclosed Assessment Assessed(Rs.) of CIT(A)
filed on (Rs.)
2004-05 05.09.2008 10,26,430/- 31.12.2008 32,55,386/- 15.11.2009
2005-06 05.09.2008 3,04,570/- 31.12.2008 2,10,86,289/- 15.11.2009
2006-07 05.09.2008 9,65,290/- 31.12.2008 1,52,76,826/- 15.11.2009
2007-08 05.09.2008 5,53,710/- 31.12.2008 1,22,70,750/- 15.11.2009
9 M/s. Salasar Developers
2.1. Assessee had commenced construction of a Housing Complex and had claimed deduction u/s.80IB(10) of the Act. AO, while passing orders u/s.143(3) of the Act for the AYs.2004-05 and 2005-06,that the assessee was not entitled to the said claim. In the appellate proceedings FAA gave substantial relief to the assessee. AO challenged the order of the FAA before the ITAT and issue of availability of deduction u/s.80IBwas decided by the Tribunal in favour of the assesseee vide order dtd.11.06.2010 (ITA Nos. 255 & 256/Mum/2008) for both the AYs.
2.2. Meanwhile Search action u/s.132(1) of the Act was carried out at the residential premises of the partners of the firm on 21.02.2007. Business premises of the assessee was also surveyed u/s.133A of the Act on the same day. Assessee claimed deduction u/s.80IB (10) of the Act in the returns filed u/s.153(A)(a) of the Act in the returns filed, as mentioned in the above chart. As per the AO Returns were filed under protest for AYs. 2004-05 to 2006-07. Vide its letters to the AO, dtd.10.09.2008 and 24.12.2008, assessee submitted that during search and seizure proceedings only residential premises of the partners were covered where incriminating documents pertaining to the assessee were not found, that business premises of the assessee was not searched. AO finalised the assessments for various AYs. as per the above chart and denied the assessee benefit of section 80 IB(10) of the Act. In the appellate proceedings FAA held that the assessee could not be denied the benefit of deduction u/s 80IB(10) for the reason that the project was approved as commercial -cum residential project, that the assessee was entitled for pro rata deduction under Section 80IB(10) relatable to the residential units not exceeding 1000 sq fts. constructed area. FAA relied upon the cases of Bramha Associates [122TTJ(Pune)(SB)433]. Against the relief granted to the assessee AO as filed the appeal, whereas assessee-firm has raised the issue of partial disallowance of the deduction. Assessee has also raised the issue of validity of issue of notice u/s.153A of the Act for all the AYs.
3. Before us, Authorised Representative (AR) submitted that issue of applicability of provisions of section 153A of the Act has not been decided, that same should have been adjudicated upon as it was raised specifically for three AYs., that decision on this issue was very important as it would determine the correct tax liability of the assessee, that warrant of authorisation was not served on the official premises of the appellant-firm, that no incriminating documents were seized from the business premises of the assessee, that the provisions of section 153A r.w.s.132 were not applicable in the case under consideration, that entire action of initiating assessment proceeding u/s. 153 A(b) r.w.s.143(3) of the Act were void-ab-initio, that matter should be restored back to the file of the departmental authority. He relied upon the order of the special bench of the Tribunal delivered in the case of All Cargo Global Logistics Ltd.(137 ITD 26). Departmental Representative (DR) submitted that if matter is restored to the file of the FAA, department had no objection.
3.1. After considering the rival submissions and the material on record we are of the opinion that, in the interest of justice, matter should be restored to the file of the FAA for fresh adjudication. We find that the issue of the applicability or otherwise of Section 153A as mentioned above is an important legal issue to determine the liability of the assessee-firm. FAA is directed to afford reasonable opportunity of hearing to the assessee while hearing the matter afresh.
10 M/s. Salasar Developers As a result appeals filed by the assessee-firm and the AO stand allowed for statistical purposes.
Order pronounced in the open court on 17th April, 2013 आदे श कȧ घोषणा खुले Ûयायालय मɅ Ǒदनांक 17 अूैल,2013 को कȧ गई ।
Sd/- Sd/-
(आय.पी. बंसल / I.P. BANSAL) (राजेÛि / RAJENDRA)
Ûयाियक सदःय / JUDICIAL MEMBER लेखा सदःय / ACCOUNTANT MEMBER
मुंबई/Mumbai,
Ǒदनांक/Date: 17th April, 2013
TNMM
आदे श कȧ ूितिलǒप अमेǒषत/
षत Copy of the Order forwarded to :
1. Appellant
2. Respondent
3. The concerned CIT (A)
4. The concerned CIT
5. DR "F" Bench, ITAT, Mumbai
6. Guard File
स×याǒपत ूित //True Copy//
/ BY ORDER,
आदे शानुसार
उप सहायक पंजीकार Dy./Asst.
उप/सहायक Registrar
अिधकरण मुंबई / ITAT, Mumbai
आयकर अपीलीय अिधकरण,