SATYAM CONSTRUCTIONS, MUMBAI v. ITO WD 12(1)(2), MUMBAI

ITA 1482/MUM/2009 | 2004-2005
Pronouncement Date: 29-01-2010 | Result: Allowed

Appeal Details

RSA Number 148219914 RSA 2009
Bench Mumbai
Appeal Number ITA 1482/MUM/2009
Duration Of Justice 10 month(s) 26 day(s)
Appellant SATYAM CONSTRUCTIONS, MUMBAI
Respondent ITO WD 12(1)(2), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 29-01-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted E
Tribunal Order Date 29-01-2010
Assessment Year 2004-2005
Appeal Filed On 04-03-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E MUMBAI BEFORE SHRI T.R.SOOD AM & SMT. P.MADHAVI DEVI JM I.T.A.NOS.1482 & 1483/MUM/2009 A.YRS. 2004-05 & 2005-06 M/S SATYAM CONSTRUCTIONS ROOM NO.11 MOHTA MARKET PHALTON ROAD MUMBAI 4000 001 PAN NO.AAVF8390L VS. INCOME TAX OFFICER 12 (1)(2) MUMBAI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI M. SUBRAMANIAN. REVENUE BY : SHRI NAVEEN GUPTA. O R D E R PER P.MADHAVI DEVI JM: THESE APPEALS OF THE ASSESSEE ARE DIRECTED AGAINST CIT(A)S SEPARATE ORDERS DATED 18/12/2008 FOR THE A.YRS. 200 4-05 AND 2005-06. 2. THE COMMON GROUNDS RAISED IN BOTH THE APPEALS AR E AS UNDER- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E & IN LAW THE LEARNED ITO WARD 12(1)(2) MUMBAI ERRED IN DISALLOW ING THE DEDUCTION U/S.80IB(10) OF THE INCOME TAX ACT 1961. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E & IN LAW THE LEARNED ITO WARD 12(1)(2) MUMBAI ERRED IN CALCULAT ING THE AREA OF THE FLATS AND NOT CONSIDERING THE AREA APPR OVED BY THE PUNE MUNICIPAL CORPORATION THE COMPETENT AUTHORITY . 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E & IN LAW THE LEARNED ITO WARD 12(1)(2) MUMBAI ERRED IN REJECTIN G THE PLEA OF THE APPELLANT THAT THE PROJECT IS HOUSING PROJE CT AS APPROVED BY PUNE MUNICIPAL CORPORATION. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E & IN LAW THE LEARNED ITO WARD 12(1)(2) MUMBAI ERRED IN DETERMIN ING THAT THE PROJECT IS IN VIOLATION OF CONDITIONS IMPOSED B Y LOCAL AUTHORITY AND NOT ACCORDING TO THE PLANS APPROVED B Y THE LOCAL AUTHORITY WITHOUT CONSIDERING THE ARCHITECTS CERT IFICATE. 2 3. AT THE TIME OF HEARING THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS ISSUE IS COVERED BY THE DECISIO N OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF BRAHMA ASSOCIA TES REPORTED IN 119 ITD 265 (S.B) (PUNE). THE LD. DR THOUGH FAIRLY ADMI TTED THAT THE ISSUE IS COVERED HE PLACED RELIANCE ON THE ORDERS OF THE AUTHORITIES BELOW. 4. HAVING HEARD BOTH THE PARTIES AND HAVING CONSIDE RED THEIR RIVAL CONTENTIONS WE ARE IN AGREEMENT WITH THE CONTENTIO NS OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE ISSUE IS COVERED BY THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF BR AHMA ASSOCIATES [CITED SUPRA] WHEREIN IT HAS BEEN HELD THAT HOUSING PROJECTS ENTITLED FOR DEDUCTION U/S.80IB(10) ARE HELD TO INCLUDE COMMERCI AL AREA. THE LD. COUNSEL HAD ALSO PLACED BEFORE US A COPY OF THE DEC ISION OF E BENCH OF THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR THE A.Y 2003-04 IN WHICH THE DECISION OF THE SPECIAL BENCH IN BRAHMA ASSOCIA TES CITED SUPRA HAS BEEN FOLLOWED. THEREFORE RESPECTFULLY FOLLOWING TH E DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF BRAHMA ASSOCIATES [CITED SUPRA ASSESSEES GROUNDS OF APPEALS ARE ALLOWED. 5. IN THE RESULT ASSESSEES APPEALS ARE ALLOWED. ORDER PRONOUNCED ON THIS 29 TH DAY OF JANUARY 2010. SD/- SD/- (T.R.SOOD) (P.MADHAVI DEVI) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI: 29 TH JANUARY 2010. 3 P/-* COPY TO- 1) APPELLANT 2) RESPONDENT 3) CITA MUMBAI. 4) CIT CITY MUMBAI 5) DR BENCH MUMBAI TRUE COPY BY ORDER DY /ASST.REGISTRAR ITAT MUMBAI. SR.NO. PARTICULARS DATE INITIALS 1 DRAFT DICTATED ON 28-1-10 P 2 DRAFT PLACED BEFORE AUTHOR 29-1-10 P 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 5 APPROVED DRAFT COMES TO SR.PS/PS 6 ORDER KEPT FOR PRONOUNCEMENT 7 FILE SENT TO BENCH CLERK 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER