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ITO 25(2)(4) C-11 1st Floor, Pratyakshkar Bhavan Bandra (E) Mumbai 400 051 Vs. M/s. Raviraj Construction Co. A/101, Radharaman Aprt, Kandarpada, Dahisar (W), Mumbai 400 068
March, 26th 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 applicable. 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 *Srivastava 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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