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Income Tax Officer- Range 11(2)(3), Room No. 479, 4th floor, Aayakar Bhavan,MK Road, Mumbai 400 020. Vs. Dr. Firuza Rajesh Parikh, 121-122, 12th Floor, Jolly Maker No. 3,119, Cuffe Parade, Mumbai -400 005.
March, 27th 2015
                 MUMBAI BENCH "D", MUMBAI
                      ITA No. 1049/Mum/2011
                      Assessment Year: 2007-08

        ITO 25(2)(4)                     M/s. Raviraj
        C-11 1st Floor,                  Construction Co. (Royal)
        Pratyakshkar Bhavan              A/101, Radharaman
        Bandra (E)                   Vs. Aprt, Kandarpada,
        Mumbai 400 051                   Dahisar (W),
                                         Mumbai 400 068
                                         PAN:- AAAAR 3526 R
              (Appellant)                         (Respondent)

                      Assessee by : Shri Satish Chandak
                       Revenue by : Shri Love Kumar

                   Date of hearing     : 18.03.2015
                    Date of Order      : 25.03.2015


     This appeal has been filed by the Revenue against order dated
24.11.2010 passed by Ld. CIT-35 Mumbai for the quantum of
assessment passed u/s 143(3) for the A.Y. 2007-08, vide which
following grounds have been raised:-

     " i) On the facts and in the circumstances of the case and in law,
     the ld. CIT(A) erred in allowing the claim of deduction made by
     the assessee u/s 80IB(10) of the Income-tax Act, inspite of the
     fact that the assessee has not fulfilled the conditions laid down in
     the said section.

     ii) On the facts and in the circumstances of the case and in law,
     the ld. CIT(A) has erred in holding that if the project was
     approved before 01.04.2005 the amended provisions of section
                                                             ITA No. 1049/Mum/2011
                                     2                      Assessment Year: 2007-08

     80IB(10) of the Income tax Act, 1961 w.e.f. 01.04.2005 are not

     iii) On the facts and in the circumstances of the case and in law,
     the ld. CIT(A) has erred in holding that the deduction under
     section 80IB(10) of the Income Tax Act, 1961 would be available
     to the assessee since the commercial area of the project is less
     than 10% of the total built up area.

2.   At the outset, learned counsel submitted that this issue had come
up for consideration before the Tribunal in assessee's own case in the
A.Y. 2006-07, wherein the Tribunal has decided this issue in favour of
the assessee. He further submitted that otherwise also the tax effect is
less than Rs. 3 lakhs and therefore, such an appeal filed by the
department is not maintainable. Ld. DR accepted that issue involved is
covered by the decision of the Tribunal in assessee's own case.

3.   After considering the relevant finding given by the Ld. CIT(A) and
also the order of the Tribunal, we find that the issue of claim of
deduction u/s 80IB(10) is squarely covered by the decision of the
Tribunal in favour of the assessee. The AO had disallowed the deduction
u/s 80IB(10), on the ground that the commercial area exceeded 2000
sq. ft. and thereby assessee has violated the conditions laid down in the
said section. The Tribunal after following the decision of Brahma
Associates and the Co-ordinate Bench decision in the case of M/s. Saroj
Sales Organization 115 TTJ 485, dismissed the revenue's appeal,vide
order dated 30th September 2010, passed in ITA No. 6356/M/2009.
Since similar facts are permeating in this year also, therefore, we do not
find any reason to deviate from the earlier year precedence, accordingly,
the ground raised by the revenue is dismissed.
                                                                                ITA No. 1049/Mum/2011
                                                 3                             Assessment Year: 2007-08

4.     In the result, the appeal filed by the Revenue is dismissed.

Order pronounced in the open court on this 25th day of March, 2015.

                 Sd/-                                                            Sd/-
      (B.R. BASKARAN)                                                     (AMIT SHUKLA)
     ACCOUNTANT MEMBER                                                   JUDICIAL MEMBER

Mumbai, Dated: 25.03.2015
Copy to: The   Appellant
         The   Respondent
         The   CIT, Concerned, Mumbai
         The   CIT(A) Concerned, Mumbai
         The   DR "D" Bench

                                          //True Copy//

                                                              By Order

                                                Dy/Asstt. Registrar, ITAT, Mumbai.
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