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The Dy.CIT 17(2), Mumbai Vs. Shri Mudhit Madanlal Gupta, Prop. M/s. Emgee Developers & Consultants, 17/17H, Bahubali Bldg., Cawasji Patel Street, Fort,Mumbai-400 001
November, 11th 2014
                  ,  Û `'  

     IN THE INCOME TAX APPELLATE TRIBUNAL "B" BENCH, MUMBAI

 [^ ..  Û   ,  Û]   ãá,    ¢

             BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND

              SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER

               ./I.T.A. No. 3259/Mum/2012
           ( [ [ / Assessment Year : 2008-09
The Dy.CIT 17(2),      / Shri Mudhit Madanlal
Mumbai                        Gupta,
                         Vs.
                              Prop. M/s. Emgee
                              Developers & Consultants,
                              17/17H, Bahubali Bldg.,
                              Cawasji Patel "Street, Fort,
                              Mumbai-400 001
    . /   . / PAN/GIR No. : AACPG 3554F
    ( /Appellant)       ..        (× / Respondent)
        / Appellant by:                    Shri Rudolph N. D'Souza
      ×   /Respondent by:                     Shri Hariom Tulsyan


               / Date of Hearing                            :3.11.2014
               /Date of Pronouncement :3.11.2014

                               / O R D E R

PER N.K. BILLAIYA, AM:


        This appeal by the Revenue is preferred against the order of the Ld.
CIT(A)-34, Mumbai dt.29.2.2012 pertaining to A.Y.2008-09.

2.      The Revenue has raised 4 substantive grounds of appeal. The sum
and substance of the grievance of the Revenue is that the Ld. CIT(A)
                                     2                   ITA No. 3259/M/2012


erred in deleting the disallowance of Rs. 81,30,522/- made by the AO
u/s.80IB(10) of the Act. It is the claim of the Revenue that facts of
assessment years 2005-06, 2006-07 and 2007-08 are distinguishable from
the facts of the year under consideration.




3.    During the course of the scrutiny assessment proceedings, the
Assessing Officer noticed that the assessee has claimed deduction u/s.
80IB(10) of the Act in respect of A, B & C Wings. The AO was of the
firm belief that the assessee has not complied with the mandatory
condition laid down u/s. 80IB(10)(a) & u/s. 80IB(10)(b) of the Act. The
claim was denied by the AO by making the following observation:


             "The similar disallowance regarding deduction u/s. 80IB
             was made in the A.Y. 2005-06, 2006-07 & 2007-08 by the
             then A.Os for the reasons mentioned in the assessment order
             for those years and this has been confirmed by Ld. CIT(A)
             for all the three years. The assessee is in appeal before
             Hon'ble ITAT `B' Bench for A.Y. 2005-06, 2006-07 & 2007-
             08 under ITA Nos. 3220/M/10, 3445/M/10 & 3444/M/10
             respectively."

4.    Aggrieved by this the assessee carried the matter before the Ld.
CIT(A). The Ld. CIT(A) had the benefit of the order of the Tribunal for
A.Yrs 2005-06, 2006-07 & 2007-08 in ITA Nos. 3220, 3445 &
3444/M/2010.     Respectfully following the decision of the Hon'ble
Mumbai Tribunal, the Ld. CIT(A) deleted the disallowances made by the
AO.

5.    Aggrieved by this, Revenue is before us. At the outset, the Ld.
Counsel for the assessee stated that the Tribunal has decided the issue in
hand in favour of the assessee vide its order dt. 23.12.2010 in ITA Nos.
3220, 3445 & 3444/M/2010.
                                       3                    ITA No. 3259/M/2012



6.       The Ld. Departmental Representative stated that the facts of the
year under consideration are distinguishable from the facts of the earlier
years.




7.       We have carefully perused the orders of the authorities below and
the decision of the Tribunal (supra) in the earlier years. The claim relates
to the construction and sale of wings A,B & C, the only distinguishing
facts which came to our notice during the course of the hearing relates to
Wing `D. Apparently, Wing D is not eligible for deduction u/s. 80IB(10)
of the Act. From the records, it is not clear whether any profit from
Wing D is included in the total claim of the assessee u/s. 80IB(10) of the
Act. Therefore, for this limited purpose of verification, we restore the
issue to the file of the AO. The AO is directed to verify whether any
profit from Wing D is included in the total profit which has been claimed
as deduction u/s. 80IB(10) of the Act, and if satisfied that no profit of
Wing `D' is included, then allow the claim of deduction of the assessee
following the decision of the Co-ordinate Bench for earlier assessment
years as mentioned elsewhere.

8.       In the result, the appeal filed by the Revenue is treated as allowed
for statistical purpose.

         Order pronounced in the open court on 03.11.2014.

                Sd/-                              Sd/-
         (I.P. BANSAL )                     (N.K. BILLAIYA)
Û  / JUDICIAL MEMBER                     / ACCOUNTANT MEMBER
 Mumbai;  Dated : 3 November, 2014rd


.../ RJ , Sr. PS
                           4       ITA No. 3259/M/2012


    /Copy of the Order forwarded to :
1.  / The Appellant
2.   × / The Respondent.
3.    () / The CIT(A)-
4.     / CIT
5.    ,   , 
     / DR, ITAT, Mumbai
6.   [  / Guard file.
                                / BY ORDER,
          ×  //True Copy//
                       / 
                    (Dy./Asstt. Registrar)
                    ,  / ITAT, Mumbai

 
 
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