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Asstt. Commissioner of Income Tax Circle2, Thane, Naupada Thane (West) 400 602 Vs. M/s. Salasar Developers Ground Floor, Vrindavan Salasar Brijbhomi
May, 27th 2014
                 ,   `' 

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

       ,      ,    

         BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND
                   SHRI AMIT SHUKLA, JUDICIAL MEMBER


                      . / ITA no. 5635/Mum./2012
                    (  / Assessment Year : 2004­05)

                      . / ITA no. 5636/Mum./2012
                    (  / Assessment Year : 2005­06)

                      . / ITA no. 5637/Mum./2012
                    (  / Assessment Year : 2006­07)

                      . / ITA no. 5638/Mum./2012
                    (  / Assessment Year : 2007­08)

Asstt. Commissioner of Income Tax
Circle­2, Thane, Qureshi Mansion                            .................  /
Gokhale Road, Naupada                                                       Appellant
Thane (West) ­ 400 602

                                     v/s

M/s. Salasar Developers
Ground Floor, Vrindavan
                                                            ...................  /
Salasar Brijbhomi
Temba Naka Bhayander (W)                                                Respondent
District Thane
  ./ Permanent Account Number ­ AAKFS6465R


                  / Revenue by             : Mr. Maurya Pratap
                  / Assessee by : Mr. Jignesh P. Shah



     /                                                /
Date of Hearing ­ 22.05.2014                     Date of Order ­ 22.05.2014
                                                             M/s. Salasar Developers

                                                                                  2


                                        / ORDER

 ,     /
PER AMIT SHUKLA, J.M.


     The present appeals have been preferred by the Revenue
challenging the impugned common orders of even date 14th June 2012,
passed by he learned Commissioner (Appeals)­I, Thane, for the
assessment year 2004­05, 2005­06, 2006­07 and 2007­08, in relation
to penalty proceedings.

2.   Since all these appeals pertain to the same assessee involving
common issue, except variation in figures, arising out of materially
similar   set   facts   &    circumstances,     therefore,   as    a   matter    of
convenience, these were heard together and are being disposed off by
way of this consolidated order.

3.   The sole common grievance raised by the Revenue for all the
years under appeal is that the learned Commissioner (Appeals) has
erred in directing the Assessing Officer to delete the penalty levied by
him under section 271(1)(c) of the Income Tax Act, 1961 (for short
"the Act") for ` 6,95,880 in the assessment year 2004­05. ` 64,88,051
in the assessment year 2005­06, ` 42,93,460 in the assessment year
2006­07 and ` 36,65,112 in the assessment year 2007­08 on account
of disallowance of claim made under section 80IB(10) of the Act.

2.   The    Assessing       Officer,   during   the   course      of   assessment
proceedings, disallowed the deduction under section 80IB(10), on the
following grounds:­




     i)     The project was approved as a commercial cum residential
            project and not as a housing project;
                                                         M/s. Salasar Developers

                                                                              3


     ii)     The project was not completed as on the site visit it was
             found that the construction was in progress;

     iii)    That the built up area of some of the flats exceeds 1000
             sq.ft.; and

     iv)     The project contains commercial area as some shops have
             been constructed.


3.   During the first appellate proceedings, the said disallowance was
confirmed on the ground that the project was not completed on/or
before 31st March 2008, being the stipulated date.. The learned
Commissioner (Appeals), however, held that the assessee was entitled
for deduction on prorata basis by excluding the profit relatable to the
commercial area and the flats which were having built ­up area
exceeding 1,000 sq.ft.


4.   Before us, the learned Counsel filed a copy of order 17th April
2013 passed by the Tribunal in assessee's own case for the assessment
year 2004­05, 2005­06, 2006­07 and 2007­08 (cross appeals). He
submitted that in the quantum proceedings, the Tribunal has set aside
the assessments to the file of the learned Commissioner (Appeals) for
fresh adjudication. He submitted that since the quantum appeals have
been set aside to the file of the learned Commissioner (Appeals), then
the present appeals can also be set aside to the file of the learned
Commissioner (Appeals).


5.   Learned     Departmental     Representative,   on   the   other     hand,
submitted that since the learned Counsel himself agreed that the
penalty matter should also be set aside to the file of the learned
Commissioner (Appeals), then he has no objection in restoring the
issue relating to penalty back to the file of the learned Commissioner
(Appeals).
                                                     M/s. Salasar Developers

                                                                          4







6.     After hearing both the parties,    we find that      the learned
Commissioner (Appeals) has deleted the penalty after detail discussion
on merits. However, the learned Counsel before us submitted that in
the quantum proceedings, the Tribunal has set aside the matter to the
file of the learned Commissioner (Appeals) and, therefore, the
impugned orders of the learned Commissioner (Appeals) for all the
years under appeal should also to be restored. Consequently, we set
aside the impugned orders passed by the learned Commissioner
(Appeals) for the assessment year 2004­05, 2005­06, 2006­07 and
2007­08 and restore the issue back to the file of the learned
Commissioner (Appeals) for deciding the issue afresh in accordance
with law after deciding the quantum proceedings.


7.          2004­05, 2005­06, 2006­07  2007­
08           

7.     In the result, Revenue's appeal for the assessment year 2004­05,
2005­06, 2006­07 and 2007­08 are allowed for statistical purposes.

               22nd May 2014   
       Order pronounced in the open Court on 22nd May 2014


             Sd/-                                           Sd/-
                                                         
                                                        
        SANJAY ARORA                                  AMIT SHUKLA
     ACCOUNTANT MEMBER                              JUDICIAL MEMBER




 MUMBAI,  DATED: 22ND MAY 2014
                                            M/s. Salasar Developers

                                                                 5




     / Copy of the order forwarded to:

(1)    / The Assessee;
(2)    / The Revenue;
(3)    () / The CIT(A);
(4)     / The CIT, Mumbai City concerned;
(5)    ,   ,  / The DR, ITAT, Mumbai;
(6)     / Guard file.
                                   / True Copy
                                    / By Order
 .  / Pradeep J. Chowdhury
   / Sr. Private Secretary
                           /   / (Dy./Asstt. Registrar)
                           ,  / ITAT, Mumbai



   /   /   19997­98  2000­01 /  /
 /  /   /   /   /  / 
 /      /         

 
 
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