IN THE INCOME TAX APPELLATE TRIBUNAL,
MUMBAI BENCH "D", MUMBAI
BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND
SHRI AMIT SHUKLA, JUDICIAL MEMBER
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
ORDER
PER AMIT SHUKLA, JM:
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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