9911796707
TMI Blog2015 (4) TMI 1351X X X X Extracts X X X X X X X X Extracts X X X X ..... t, brought to our notice, which we consider as a serious failing, which gets in fact compounded in view of the earlier lapse in not clarifying to the tribunal the fact that the Revenue is also in appeal, so that the assessee s appeal stood heard by it in isolation despite it being a case of cross appeals, and on the same issue. So much so that we think that it was a proper case for recall of the assessee s appeal for being heard along with the instant appeal, which again has not been attempted by the Revenue. In fact, the relevant facts came to light only on perusing the file; the matter, as afore-stated, being closed as a squarely covered matter, which it indeed is, i.e., qua facts. The purview of an appellate authority, it needs to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For the Respondent : Shri B. N. Rao. ORDER Per Sanjay Arora, A.M. : This is an Appeal by the Revenue directed against the Order by the Commissioner of Income Tax (Appeals)-26, Mumbai ( CIT(A) for short) dated 29.04.2013, 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 08.03.2013. 2. At the very outset, it was submitted by the ld. Authorized Representative (AR), the assessee s counsel, that the subject matter of the Revenue s appeal, i.e., if the allowance of deduction u/s.80-IB(10) on its project Garden Estate was allowable on a proportionate basis or not, i.e., excluding the profit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e duplex flats, leading to cross appeals both by the assessee and the Revenue. The tribunal, for A.Y. 2009-10 (vide order dated 02.01.2015 in ITA No.4239/Mum/2013), after a factual examination of the case, found that there was in fact no violation of section 80-IB(10)(c) in-as-much as all the flats, including the 18 (1 BHK) flats under reference, did not violate the condition of the built-up area exceeding 1000 sq. ft., so that the housing project Garden Estate , which was spread over two wings, A B, with 96 and 95 flats respectively, was an eligible project, i.e., in its entirety. Deduction, accordingly, was to be allowed on the entire profits of the said project. The assessee s appeal for the current year, which perhaps came to be hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd explained at length by the tribunal in Asst. CIT vs. Ekta Sankalp Developers (in ITA Nos. 3316 3318/Mum/2012 dated 12.09.2014), to which in fact reference was also made during hearing. So however, in view of the decision by the tribunal in the assessee s own case for A.Y. 2009-10, there has been no violation of section 80-IB(10), and the assessee had sold 18 (1 BHK) flats (out of the total 24 (1 BHK) flats in the relevant project), and not 9 duplex flats; the conversion thereto being made at the instance of the buyers. The tribunal, in Ekta Sankalp Developers (supra), even as clarified by the bench during hearing, held that despite the applicability of the ratio of the decision in the case of Brahma Associates (supra), so that in its v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The same prescribe conditions qua the eligibility of the housing project w.r.t. to the allotment of the residential units in the housing project. That is, the manner of allotment of the residential units in an otherwise eligible project is also made a condition precedent for the eligibility of the project for the purpose of deductibility of its profits under the provision. This is apparently a legislative response to the tendency on the parts of the builder-developers to allot more than one residential unit in the project to persons, or even to their family members in case the allotees are individual, circumventing, in effect, the prescription of s. 80-IB(10)(c), stipulating the maximum area of a residential unit in a housing project. The s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is to ascertain the correct tax liability by enabling determination of the correct income chargeable to tax, and the parties are obliged to assist the court in arriving at the correct decision (refer: Ahmedabad Electricity Co. Ltd. v. CIT [1993] 199 ITR 351 (Bom)(FB)). The law, it is trite law, as in force on the first day of April of the relevant assessment year, is to apply (refer, inter alia, CIT vs. Isthmian Steamship Lines [1981] 20 ITR 572 (SC); Karimtharuvi Tea Estate Ltd. v. State of Kerala (1966) 60 ITR 262 (SC); and Reliance Jute Industries Ltd. v. CIT (1979) 120 ITR 921 (SC)). The consequence would be that profit of the project Garden Estate shall not be eligible for deduction u/s. 80-IB(10) for the current year; it being aga ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
