आयकर अप ल य अ धकरण, म बई य यप ठ ज म बई IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI

आयकर अप ल य अ धकरण, म बई य यप ठ ज म बई IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE S/SHRI B.R.MITTAL,(JM) AND N.K.BILLAIYA (AM) सव ब.आर. म तल, य यक सद य एव एन. क. बल य, ल ख सद य क सम आयकर अप ल स./ ( नध रण वष / Assessment Year: 2007-08) And आयकर अप ल स./ ( नध रण वष / Assessment Year: 2008-09) Income Tax Officer-24(2)(4), Room No.605,C-13, 6 th floor, Pratyakshakar Bhavan, Bandra-Kurla Complex, Bandra (E), Mumbai-400051. बन म/ Vs. M/s Yash Developers, 101/3, Kedia Chambers, S.V.Road, Malad (W), Mumbai-400064 थ य ल ख स./ज आइआर स./PAN/GIR No. : AAAFY2928B (अप ल थ /Appellant).. ( यथ / Respondent) अप ल थ ओर स / Appellant by : Shri B.P.K.Panda यथ क ओर स /Respondent by : Shri S.C.Tiwari and Ms.Natasha Mangat स नव ई क त र ख / Date of Hearing : 23.1.2014 घ षण क त र ख /Date of Pronouncement : 31.1.2014 Per B.R.Mittal, JM आद श / O R D E R The department has filed these two appeals for assessment years 2007-08 and 2008-09 against orders of ld. CIT(A) dated 22.11.2010 and dated 16.3.2012 respectively on the following grounds : Grounds of appeal taken by department in this appeal are as under : 1. on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in allowing the deduction under section 80lB to the assessee, without appreciating the fact that the total commercial space of the assessee s project is 6.12% of the built up area whereas as per clause (d) of the section 80IB(10), inserted w.e.f. 1.4.2005, the maximum commercial space in a project is allowed up to 5% of the built up areas only;

2 2. on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in allowing the deduction under section 80lB to the assessee relying on the judgment of special bench in the case of Brahma & Associates reported in 119 ITD 255, ignoring that the facts of the said case will not be applicable here as fact of that case relates to AY 2003-04 i.e. prior to insertion of clause (d) of section 80IB(10); The appellant prays that the order of the ld. CIT(A) on the ground be set aside and matter may be decided according to law. The appellant craves leave to amend or alter any ground or add a new ground which may be necessary Grounds of appeal taken by department in this appeal are as under : I. on the facts and in the circumstances of the case and in law, whether the Ld. CIT(A) was right in allowing the deduction u/s 80IB(10) though the assessee has not complied with all the conditions of section 80IB(10), as amended upto date; II. on the facts and in the circumstances of the case and in law, whether the Ld. CIT(A) was right in allowing assessee s claim of deduction u/s 80IB(10) when the commercial area of the housing project exceeded 5% of total built up area in violation of section 80IB (10)(d). III. on the facts and in the circumstances of the case and in law, whether the Ld. CIT(A) was right in allowing assessee s claim of deduction u/s 80IB(10) when the assessee has not filed return of income within the time limit u/s 139(1) and when section 80AC specifically provides that no deduction shall be allowed unless return is furnished within time limit of section 139(1). IV. on the facts and in the circumstances of the case and in law, whether the Ld. CIT(A) was right in accepting the revised computation of income of the assessee without filing revised return of income in ignoring the decision of the Hon ble Supreme Court in Goetz (India) Ltd V/s CIT (2006) 284 ITR 323 (SC) and accepting the revised computation filed by assessee. The appellant prays that the order of the ld. CIT(A) on the grounds be set aside and matter may be decided according to law. The appellant craves leave to amend or alter any ground or add a new ground or to submit additional new ground which may be necessary 2. At the time of hearing, it was pointed out that grounds in the appeal for assessment year 2007-08 are similar to that of ground Nos. 1 and 2 of the appeal for the assessment year 2008-09 and it relates to the same project on similar issue. In view of above, it was agreed that both the appeals be heard together and be dispose off by a common order. Therefore, we have heard these appeals together and dispose off them by this common order for the sake of convenience.

3 3. Grounds of appeal for the assessment year 2007-08 and Grounds of appeal for assessment year 2008-09, relates to eligibility of the assessee to claim deduction u/s 80IB of the Income Tax Act, 1961 (the Act). 4. The assessee is a partnership firm engaged in the business of developing and construction. The assessee filed return of income for assessment year 2007-08 declaring total income of Rs.Nil after claiming deduction u/s 80IB(10) of Rs.74,684/-. For the assessment year 2008-09, the assessee filed return of income on 30.9.2009 by declaring total income at Rs.Nil after claiming deduction/s 80IB of Rs.24,85,233/-. AO denied the deduction u/s 80IB of the Act for the assessment year 2007-08 on the ground that the assessee has constructed shops with the aggregate built up area of 3382 sq.ft which constitutes commercial area of 6.12% of the total built up area which should not exceed 5% of the aggregate built up area of the housing project or more than 2000 sq.ft whichever is less. Therefore, the assessee has not fulfilled one of the conditions as per clause (d) of section 80IB(10) of the Act which has been inserted with effect from 1.4.2005 by the Finance (No.2) Act,2004. It is relevant to state that in respect of assessment year 2008-09, the AO has also stated that the assessee did not file the return of income within the stipulated time prescribed u/s 139(1) of the Act and the provisions of Section 80AC are applicable. Accordingly the deduction claimed by assessee u/s 80IB of the Act of Rs.24,85,233/- is to be disallowed on that ground as well. Being aggrieved, assessee filed appeals for both the assessment years under consideration. 5. In respect of assessment year 2007-08, the ld. CIT(A) stated that the issue of claiming of deduction u/s 80IB on account of built up area of shops and commercial establishment was considered by ITAT in assessee s own case in ITA No.7297/Mum/2007 for assessment year 2004-05 vide order dated 2.6.2009 wherein the assessment order was set aside and following it, he has directed AO to examine the claim of the assessee as per directions of ITAT and give effect on the basis of the same in the assessment year 2007-08 as well. 5.1 However, in respect of assessment year 2008-09 the ld. CIT(A) has stated that ITAT in assessee s own case for Assessment years 2005-06 and 2006-07 decided the issue in favour of assessee by following the decision of the Hon ble Bombay High Court in the case of CIT V/s Brahma Associates (2011) 333 ITR 289 (Bom) and accordingly vide para 14 held that if the approval is prior to assessment year 2005-06, the area restriction will not be applied. In the assessee s case, the project was approved and the same has commenced prior to 1.4.2005 and as per the Hon ble High Court, the commercial use is permissible up to 10% of the total project area and whereas in the

4 assessee s case the commercial area is only 6.12%. Hence, the AO s contention of 5% area restriction is not applicable to the facts of the assessee s case. The project of the assessee is predominantly a housing project and deduction u/s 80IB(10) cannot be denied and the same has to be allowed. 6. It is also relevant to state that in respect of delay in filing the return of income on the basis of which the AO also denied deduction u/s 80IB(10) of the Act in respect of assessment year 2008-09, which are Ground Nos.3 and 4 of the appeal taken by department, the ld. CIT(A) has stated that the assessee filed return within extended time prescribed u/s 139(4) of the Act and the said return be treated as the one filed within the time limit prescribed u/s 139(1) of the Act and referred the decision of the Hon ble Apex Court in the case of Kulu Valley Transport Co. P. Ltd. V/s CIT [1970] 77 ITR 518. Ld. CIT(A) has stated that similar issue in the context of section 54F also came before the Hon ble Punjab and Haryana High Court in the case of CIT V/s Jagruti Agarwal (339 ITR 610) (P&H) and it was held that sub-section (4) of section 139 has to be read along with sub-section (1) of section 139 and therefore due date for furnishing the return of income according to section 139 was subject to extended period provided u/s 139(4) of the Act. Ld. CIT(A) stated that similar issue was also considered by the Hon ble Jurisdictional High Court in the case of Trustees of Tulsidas Gopalji Charitable & Chaleshwar Temple Trust V/s CIT [1994] 207 ITR 368 (BOM.) and the jurisdictional High Court held that sub-section (1) and (4) of section 139 have to be read together and in such a reading the return made within the specified time under sub-section (4) has to be considered as having been made within the time prescribed u/s 139(1) or (2) of the Act. The ld. CIT(A) also relied on the decisions of other High Courts, which we do not propose to refer to, particularly when the decision of the Hon ble Bombay High Court has been considered hereinabove. However, it is relevant to state that the ITAT, Ahmedabad Bench also considered similar issue in the case of Parmeshwar Cold Storage P Ltd V/s ACIT (08 ITR (Trib) 172(Ahmd)) in the context of claim of deduction u/s 80IB wherein also the return was not filed within the time prescribed u/s 80AC of the Act but the Tribunal held that the claim of deduction/s 80IB of the Act should be adjudicated on merits and the matter was restored to CIT(A). The dl. CIT(A) has in para 9 also considered the decision of ITAT, Mumbai Bench in the case of Emerson Network Power India Pvt Ltd V/s ACIT reported in 122 TTJ 67(Mum) wherein it was held that the AO was obliged to give due relief to assessee or entertain its claims if admissible as per law even though the assessee had not filed revised return. Following the said decision, the ld. CIT(A) directed the AO to allow claim of the assessee made u/s 80IB(10) of the Act on merits even though the return of income was

5 not filed within the time prescribed as per section 139(1) of the Act. In view of above, the department is in further appeals before the Tribunal. 7. At the time of hearing, ld. DR supported the orders of AO in denying the deduction u/s 80IB (10) of the Act in view of the amendment made by insertion of clause (d) of section 80IB (10) with effect from 1.4.2005 on the ground that aggregate area of shops and commercial area of the assessee is 3382 Sq.ft which is 6.12%. The ld. DR submitted that in view of amendment, the benefit is not available to the assessee in the assessment year falling after the amendment and also placed reliance on the decision of ITAT, Mumbai Bench in the case of ITO V/s M/s Everest Home Construction (India)Pvt. Ltd in ITA No.7021/Mum/2008(AY-2006-07) dated 12.9.2012. On the other hand, ld. AR submitted that the case of the assessee is covered in assessee s own case for the same project for assessment years 2005-06 and 2006-07 by a common order of Tribunal dated 29.7.2011 in ITA No.4615 and 4616/Mum/2010. The ld. AR also placed a copy of the said order of Tribunal to substantiate his submissions. The ld. AR submitted that during the assessment years under consideration there is no change in the facts and of business of the assessee from immediately preceding assessment years and the assessee continued to be engaged in the same housing project for which the Mira Bhyander Municipal Parishad had granted approval as a housing project to the assessee and the assessee also commenced the construction on 1.2.2001 as per approval granted to it. The ld. DR did not controvert the above contention of the assessee but reiterated that in view of the amendment made with effect from 1.4.2005 the assessee is not entitled to deduction u/s 80IB(10) of the Act as it does not fulfill one of the requirements of clause (d) of said section. 8. We have carefully considered the submissions of the ld. Representatives of the parties and orders of authorities below. We have also considered the earlier orders of Tribunal dated 12.9.2012 (supra) as well as the order of Tribunal dated 29.7.2011(supra). We observe that on similar facts in the assessee s own case for the same project, the Tribunal by its order dated 29.7.2011 relating to assessment years 2005-06 and 2006-07, the assessment years which also falls after the amendment made by insertion of Clause (d) to section 80IB(10) of the Act, applicable from 1.4.2005 has held that the assessee is eligible for deduction u/s 80IB(10) of the Act in respect of the housing project. As there is no change in facts and circumstances in the assessment years under consideration viz assessment years 2007-08 and 2008-09, the above decision of ITAT squarely apply to these assessment years as well. Not only this, the similar issue had also come before the Hon ble Gujarat High Court in the case of

6 Manan Corporation V/s ACIT reported in 214 Taxmann 373 (Guj) while considering the appeal for assessment year 2006-07 wherein it was held by Their Lordships that the condition of limiting commercial establishment/shops to 2000 sq.ft, which has come into force w.e.f. 1.4.2005 would be applicable for the project approved on or after 1.4.2005 and where the approval of the project was prior to 31.3.2005, the amended provision would have no application for those projects. We observe that the Hon ble Gujarat High Court also placed heavily reliance on the decision of the Hon ble Bombay High Court in the case of Brahma & Associates (supra). In view of above, the issue is covered not only in the assessee s own case for the assessment years 2005-06 and 2006-07 but also by the decision of the Hon ble Gujarat High Court in the case of Manan Corporation (supra). Hence, we uphold the orders of ld. CIT(A) that the assessee is entitled for deduction u/s 80IB(10) of the Act for both the assessment years under consideration. Accordingly, the grounds of appeal taken by department for the assessment year 2007-08 and Grounds No.1 and 2 of the appeal for assessment year 2008-09 are rejected. 9. In respect of grounds No.3 and 4, the relevant facts which we have already discussed hereinabove, we observe that the said issue is covered in favour of assessee by the decision of Hon ble Bombay High Court in the case of Trustees of Tulsidas Gopalji Charitable & Chaleshwar Temple Trust (supra) which has been considered by the ld. CIT(A) while deciding the same in favour of assessee and respectfully following the same, we hold that there is no reason to interfere with the order of ld. CIT(A). Therefore, the Grounds No.3 and 4 of the appeal taken by department for assessment year 2008-09 are also rejected by confirming the order of ld. CIT(A). 10. In the result, both the appeals filed by the department for assessment years 2007-08 and 2008-09 are dismissed. Order pronounced in the open court on 31st day of January, 2014 आद श क घ षण ख ल य य लय म दन क 31st day of January, 2014 क क गई Sd (एन. क. बल य /N.K.BILLAIYA) ल ख सद य / ACCOUNTANT MEMBER sd (ब.आर. म तल/B.R.MITTAL) य यक सद य / JUDICIAL MEMBER म बई Mumbai on this 31 st day of January, 2014 व. न.स./ SRL, Sr. PS

7 आद श क त ल प अ षत/Copy of the Order forwarded to : 1. अप ल थ / The Appellant 2. यथ / The Respondent. 3. आयकर आय त(अप ल) / The CIT(A)- 4. आयकर आय त / CIT 5. वभ ग य त न ध, आयकर अप ल य अ धकरण, म बई / DR, ITAT, Mumbai 6. ग ड फ ईल / Guard file. आद श न स र/ BY ORDER, True copy सह यक प ज क र (Asstt. Registrar) आयकर अप ल य अ धकरण, म बई /ITAT, Mumbai