Income-tax Officer, Ward 1(3), Kalyan v. M/s. Rai Residency Pvt. Ltd
[Citation -2016-LL-1021-152]

Citation 2016-LL-1021-152
Appellant Name Income-tax Officer, Ward 1(3), Kalyan
Respondent Name M/s. Rai Residency Pvt. Ltd.
Court ITAT-Mumbai
Relevant Act Income-tax
Date of Order 21/10/2016
Judgment View Judgment
Keyword Tags housing project • admissibility of deduction
Bot Summary: On the facts and circumstances of the case and in law, the Ld. CIT has erred in allowing the deduction u/s 80IB(1) of the I.T. Act, 1961 claimed by the assessee. On the facts and circumstances of the case and in law, the Ld. CIT has erred in following its own decision in assessee's case for AY 2009-10 on similar issue for which department is in appeal before Hon'ble High Court. On the facts and circumstances of the case and in law, the Ld. CIT has erred in relying on the decision of the ITAT in the case of M/s Vidhi Builders and M/s Umiya Enterprises which is yet to attain its finality in Mumbai High Court. On the facts and circumstances of the case and in law, the Ld. CIT has 2 ITA No.1139/M/2015 M/s. Rai Residency Pvt. Ltd. erred in not appreciating the fact that the Architect's Certificate submitted during assessment proceedings clearly stated that the area of land on which the project is constructed is less than one acre. At the outset, the Ld. A.R. of the assessee has stated that the issue is squarely covered in favour of the assessee in the own case of the assessee for A.Y. 2009-10 vide order dated 18.12.13 passed in ITA No.6245/M/2012. The issue of whether the area of D.P. Road, recreation garden etc should be excluded for the purpose of admeasuring the one acre of land was considered by various decisions and the same was decided in favour of the assessee. Undisputedly, without excluding the area of road and reservation for recreation ground, the area of plot in both the projects exceeded one acre.


IN INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D , MUMBAI BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA No.1139/M/2015 Assessment Year: 2010-11 Income Tax Officer, M/s. Rai Residency Pvt. Ltd., Ward 1(3), Kalyan, 1 Sai Ganesh Sankul, 1st Floor, Vs. Near Church, Mohan Plaza, Vijay Nagar, Wayale Nagar, Kalyan (East) - 421306 Khadakpada, Kalyan PAN: AABCR 7454F (Appellant) (Respondent) Present for: Assessee by : None Revenue by : Shri B.S. Bist, D.R. Date of Hearing : 13.10.2016 Date of Pronouncement : 21.10.2016 ORDER Per Sanjay Garg, Judicial Member: present appeal has been preferred by Revenue against order dated 17.12.2014 of Commissioner of Income Tax (Appeals) [hereinafter referred to as CIT(A)] relevant to assessment year 2010-11. 2. Revenue has taken following grounds of appeal: 1. On facts and circumstances of case and in law, Ld. CIT (A) has erred in allowing deduction u/s 80IB(1) of I.T. Act, 1961 claimed by assessee. 2. On facts and circumstances of case and in law, Ld. CIT (A) has erred in following its own decision in assessee's case for AY 2009-10 on similar issue for which department is in appeal before Hon'ble High Court. 3. On facts and circumstances of case and in law, Ld. CIT (A) has erred in relying on decision of ITAT in case of M/s Vidhi Builders and M/s Umiya Enterprises which is yet to attain its finality in Mumbai High Court. 4. On facts and circumstances of case and in law, Ld. CIT (A) has 2 ITA No.1139/M/2015 M/s. Rai Residency Pvt. Ltd. erred in not appreciating fact that Architect's Certificate submitted during assessment proceedings clearly stated that area of land on which project is constructed is less than one acre. 5. On facts and circumstances of case and in law, Ld. CIT (A) has erred in interpreting CBDT's Circular No. 5 of 2005. 3. In this case, Revenue is aggrieved by decision of Ld. CIT(A) in granting deduction under section 80IB(10) of Income Tax Act pleading that area of project is less than specified area of one acre of land. dispute involved is as to whether area of DP Road, Recreation Garden etc. should be excluded for purpose of admeasuring one acre of land. At outset, Ld. A.R. of assessee has stated that issue is squarely covered in favour of assessee in own case of assessee for A.Y. 2009-10 vide order dated 18.12.13 passed in ITA No.6245/M/2012. relevant part of said decision of Tribunal is reproduced as under: 5. We have heard both parties and perused orders of Revenue Authorities on this limited issue and find that contents of para 6 of CIT (A) s order where issue was discussed at length. It is undisputed fact that local authorities have approved project by holding that plot has more than one acre of land. issue of whether area of D.P. Road, recreation garden etc should be excluded for purpose of admeasuring one acre of land was considered by various decisions and same was decided in favour of assessee. relevant decisions in this regard are as under: 1. M/s. Vidhi Builders, ITA No.2554/Mum/2011 (AY 2007-08) dated 31.1.2012. 2. Johar Hassan Zojwalla vs. Addl. CIT, ITA No.5404/Mum/2008 (AY 2005-06) dated 12.1.2011. 3. ACIT vs. Mrs. Anjana S. Chavan, ITA No. 1080/Mum/2010 (AY 2006- 07) dated 20.4.2011. 4. M/s. B.K. Pate Enterprises vs. ACIT, ITA No.736/PN/2010 (AY 2005- 06) dated 8.7.2011. 6. We have also perused operational para 4 from order of CIT (A) and same reads as under: 4..............On perusal of approval letters issued by KDMC dated 7.11.2006 and 30.3.2007, it is noticed that housing project (Hari Complex) has been approved on plot area of 4200.19 sq. Mts., and housing project (Dwarka Nagari) has been approved on area of 4219.37 sq. Mtrs. Under these circumstances, as also in view of decision of Hon ble ITAT, Mumbai as discussed above, which are binding on me, I am of considered view that area of road and reservation for recreation ground, etc., which is as per housing project approved by Local 3 ITA No.1139/M/2015 M/s. Rai Residency Pvt. Ltd. Authority could not be excluded from total are of plot from purpose of claim of deduction u/s 80IB(10). Undisputedly, without excluding area of road and reservation for recreation ground, area of plot in both projects exceeded one acre. Therefore, I hold that appellant has satisfied condition in this regard and hence is eligible for deduction u/s 80IB(10) of Act in respect of both housing projects. AO is directed to grant relief accordingly and appellant succeeds on ground no.2. 7. Considering above, we find that Revenue has not brought any contrary decisions cited in para 4 of CIT (A) s order. Considering above settled nature of issue, we are of opinion that order of CIT (A) does not call for any interference. Accordingly, grounds raised by Revenue are dismissed. 8. In result, appeal of Revenue is dismissed. 4. Ld. D.R. has fairly agreed that issue involved in this year is exactly identical and is covered by above decision of Tribunal in own case of assessee for earlier assessment year. Respectively following same, we do not find any merit in appeal of Revenue and same is accordingly dismissed. Order pronounced in open court on 21.10.2016. Sd/- Sd/- (Ashwani Taneja) (Sanjay Garg) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Dated: 21.10.2016. * Kishore, Sr. P.S. Copy to: Appellant Respondent CIT, Concerned, Mumbai CIT (A) Concerned, Mumbai DR Concerned Bench //True Copy// [ By Order Dy/Asstt. Registrar, ITAT, Mumbai. Income-tax Officer, Ward 1(3), Kalyan v. M/s. Rai Residency Pvt. Ltd
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