SALIM A. LALANI, MUMBAI v. CIT-19, MUMBAI

ITA 3331/MUM/2008 | 2003-2004
Pronouncement Date: 29-10-2010 | Result: Allowed

Appeal Details

RSA Number 333119914 RSA 2008
Assessee PAN AAAPL3250B
Bench Mumbai
Appeal Number ITA 3331/MUM/2008
Duration Of Justice 2 year(s) 5 month(s) 17 day(s)
Appellant SALIM A. LALANI, MUMBAI
Respondent CIT-19, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 29-10-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted J
Tribunal Order Date 29-10-2010
Date Of Final Hearing 02-06-2010
Next Hearing Date 02-06-2010
Assessment Year 2003-2004
Appeal Filed On 12-05-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH J BEFORE SHRI R.S. SYAL ACCOUNTANT MEMBER AND SHRI V. DURGA RAO JUDICIAL MEMBER ITA NO.3331/MUM/08 (ASSESSMENT YEAR : 2003-04) SHRI SALIM A LALANI DHEERAJ PLAZA 6 TH FLOOR OPP. BANDRA POLICE STATION MUMBAI-400050 PAN AAAPL3250B VS. INCOME TAX OFFICER WARD 19(1)(3) MUMBAI. APPELLANT. RESPONDENT. APPELLANT BY : SHRI R.I. CHOKSEY. RESPONDENT BY : MRS. KUSUM INGLE CIT-DR O R D E R PER SHRI V. DURGA RAO : THIS APPEAL IS FILED BY THE ASSESSEE . THE RELEVANT ASSESSMENT YEAR IS 2003-04. THE ASSESSEE IS A BUILDER AND DEVELOPER F ILED ITS RETURN OF INCOME DECLARING A TOTAL INCOME OF ` 2 91 277 AFTER DECLARING DEDUCTION U/S. 80IB(10) AMOUNTING TO ` 106 07 427 AND THE SAME WAS DISALLOWED BY THE ASSE SSING OFFICER. AS AGAINST THE ORDER OF THE ASSESSING OFF ICER THE CIT(A) BY EXERCISING THE POWERS U/S. 263 A SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSEE AND SUBSEQUENTLY BY ORDER DT.28.3.2008 THE ASSESSM ENT ORDER WAS SET ASIDE AND DIRECTED THE ASSESSING OFFICER TO PASS A FRESH ASSE SSMENT ORDER. AS AGAINST THE ITA NO.3331(BNG)/08 - 2 - ORDER OF THE COMMISSIONER DT.28.3.2008 PASSED U/S. 263 OF THE INCOME TAX ACT THE PRESENT APPEAL IS FILED BEFORE THE TRIBUNAL. 2. AT THE TIME OF HEARING THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THE A.Y. 2004-05 THE ASSESSEE HAS CLAIMED DEDUCT ION U/S.80IB(10) AND ASSESSING OFFICER HAS DENIED THE SAME. THE ASSESS EE CARRIED THE MATTER BEFORE THE CIT(A). THE CIT(A) ALLOWED THE ASSESSEES CLA IM UNDER SECTION 80IB(10). AS AGAINST THE ORDER OF THE CIT(A) FOR A.Y. 2004-05 THE REVENUE CARRIED THE MATTER BEFORE THE TRIBUNAL. THE TRIBUNAL IN ITA NO.1398/MUM/08 VIDE ORDER DT.24.8.2009 DISMISSED THE REVENUES APPEAL. THE BASIS ON WHIC H SECTION 263 ORDER PASSED BY THE COMMISSIONER WHILE EXERCISING T HE POWER UNDER SECTION 263 WAS ALREADY CONSIDERED BY THE TRIBUNAL AND DISM ISSED THE APPEAL OF REVENUE. THEREFORE THE ORDER PASSED BY THE COMMISS IONER UNDER SECTION 263 CANNOT BE SUSTAINED. 3. THE LEARNED DEPARTMENTAL REPRESENTATIVE FULLY SU PPORTED THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX. 4. WE HAVE HEARD BOTH THE SIDES PERUSED THE RECORD S AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE COMMISSIONER OF INCOME TAX HAS INVOKED THE JURISDICTION ON TWO COUNTS. ONE IS TO GET THE BENEFIT OF 80IB(10) THAT THE PROJECT SHOULD HAVE BEEN COMMENCED ON OR AFTER 1.10 .1998. THE SECOND ITA NO.3331(BNG)/08 - 3 - CONDITION IS THAT THE ASSESSEE HAS VIOLATED CONDITI ON RELATING TO BUILT UP AREA AND SET ASIDE THE ASSESSMENT ORDER AND DIRECTED THE ASS ESSING OFFICER TO DO REASSESSMENT. THE TRIBUNAL IN THE ASSESSEES OWN C ASE AND THE SAME PROJECT IN ITA NO.1398/MUM/08 (SUPRA) HAS HELD THAT THE PROJECT WORK COMMENCED ONLY AFTER 1.10.1998 AND THE LIMIT OF 2000 SQ. FT. AS SP ECIFIED IN CLAUSE (D) SUB-CLAUSE 10 OF 80IB APPLIED IN THE A.Y. 2005-06 AND SUBSEQUE NT YEARS NOT FOR THE A.Y. 2004-05 IN EARLIER YEAR. THE TRIBUNAL HAS ALREADY CONSIDERED THE ISSUES ON WHICH THE COMMISSIONER OF INCOME TAX INITIATED 263 PROCEEDINGS AND SET ASIDE THE ORDER OF THE ASSESSING OFFICER AND DIRECTED THE ASSESSING OFFICER TO DO A FRESH ASSESSMENT WAS ALREADY CONSIDERED BY THE TRIB UNAL. WE THEREFORE OF THE CONSIDERED OPINION THAT THE ORDER PASSED BY THE COM MISSIONER OF INCOME TAX UNDER SECTION 263 CANNOT SURVIVE. WE THEREFORE THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. IN THE RESULT THE APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH OCTOBER 2010. SD/- SD/- (R.S. SYAL) (V. DURGA RAO) ACCOUNTANT MEMBER JUDICIAL M EMBER MUMBAI DT. 29 TH OCT. 2010. ITA NO.3331(BNG)/08 - 4 - TRUE COPY COPY TO : 1. THE ASSESSEE. 2. THE ASSESSING OFFICER. 3. CIT(APPEALS) 4. CIT 5. DEPARTMENTAL REPRESENTATIVE ITAT MUMBAI. BY ORDER DY./ASST.REGISTRAR ITAT MUMBAI * GPR