Haresh N Sanghavi, Thane vs Department Of Income Tax

आयकर अपील य अ धकरण, एच खंडपीठ मंब ु ई INCOME TAX APPELLATE TRIBUNAL,MUMBAI - H BENCH सव ी आई पी बंसल , या यक सद य एवं राजे , लेखा सद य Before S/Sh. I P Bansal,Judicial Member & Rajendra,Accountant Member आयकर अपील सं/.ITA No.7357/Mum/2013, नधारण वष/Assessment Year-2001-02 ACIT- Central Circle-2 Shri Haresh N. Sanghvi Room No.13, 6th Floor, Nikunj House, Ashar IT Park,Wagle Estate, Vs Manav Mandir, Ambadi Rd.

Thane(W) Vasai (W), Dist. Thane-402, 202.

PAN: AFCPS 7828 F (अपीलाथ /Appellant) ( यथ / Respondent) नधा रती ओर से/Assessee by :None राज व क ओर से/ Revenue by :Shri Sanjay Punglia-DR

सन ु वाई क तार ख/ Date of Hearing :14-05-2015 घोषणा क तार ख / Date of Pronouncement : 14-05-2015 आयकर अ ध नयम,1961 क धारा 254(1)के अ तगत आदे श Order u/s.254(1)of the Inco me-tax Act,1961(Act) लेखा सद य राजे के अनुसार PER RAJENDRA, AM-

Challenging the order dated 18.09.13 of the CIT(A)-II,Thane,the Assessing Officer(AO) has raised following Grounds of Appeal:

"01. Whether on the facts and in the circumstances of the case, the CIT(A) was justified in / deleting the addition of Rs.40,02,600 / - made by the Assessing Officer on account of disallowance of deduction u/s. 801B(10) without appreciating the fact that "the area for shops is admeasuring to 2550sq. ft., thus violating the conditions of 801B(10) of the 1. T. Act, 1961.

02. Whether on the facts and in the circumstances of the case, the CIT(A) was right in holding that the Assessing Officer should have decided the issue of deduction u/s. 801B(10) as per the principles laid down by the Hon'ble ITAT in the case of Brahma Associates (Supra) and not to travel beyond the limits prescribed by Hon'ble ITAT in the case of Brahma Associates, without appreciating the fact that "the appeal in the case of Brahma associates is pending before the Hon'ble Supreme Court.

03. The appellant prays that the order of the CIT(A)-II, Thane on the grounds be set aside and that of the Assessing Officer be restored."

Assessee,an individual,is a builder and developer.He filed hit return of income on 29.10.2001, declaring total income at Rs.2,29,014/-.He claimed deduction u/s.80IB of the Act, amounting to Rs.80.64 lakhs.The(AO)completed the assessment u/s. 143(3) of the Act restricting the deduction to Rs.40.02 lakhs.In the appellate proceedings,the First Appellate Authority(FAA) allowed the deduction of proportionate basis.The assessee as well as the AO challenged the order of the FAA before the Tribunal.Vide its order dated 30.03.2010,the Tribunal decided the appeals. However,the issue relating to deduction u/s.80IB(10)of the Act was restored back to the file of the AO by the Tribunal,with specific direction and for limited purposes.The AO was directed to ITA/7357/Mum/2013,AY.01-02-HNS

decide the issue in view of the decision of the Tribunal delivered in the case of Brahma Associates (119 ITD255).In the order passed,on 16.12.2011,u/s.143(3)r.w.s.254(2)of the Act,the AO again made a disallowance of Rs.40.02 lakhs.

3.Aggrieved by the order of the AO,the assessee preferred an appeal before the First Appellate Authority(FAA).Before him it was argued that the AO had travelled beyond the directions given by the Tribunal and hence his order was bad in law.After considering the submissions of the assessee and the assessment order,the FAA referred to the paragraphs 8 and 8.1 of the order of the Tribunal dated 30.03.2010.He further observed that the issue relating to deduction u/s.80IB was to be decided as per the principles laid down by the Tribunal in the case of Brahma Associates,that the AO was not permitted to travel beyond that.Referring to the case of Brahma Associates(supra),he held that the commercial area built by the assessee was 2.78% of the total built up area,that it was less than 10% of prescribed limit mentioned in the order of the Tribunal, that the assessee was eligible to claim deduction u/s.80IB (10)of the Act.Finally,he allowed the appeal filed by the assessee.

4.During the course of hearing before us,Departmental Representative(DR)stated that the matter may be decided on merits.None appeared on behalf of the assessee,as stated earlier.

5.We have perused the material before us.We find that the FAA has followed the judgment of Hon'ble jurisdictional High Court and has given a categorical finding of fact that the commercial area built by the assessee was less prescribed limit.Considering the above facts,we are of the opinion that the order of the FAA does not suffer from any legal infirmity. So, confirming his order,we decide effective ground against the AO.

As a result,appeal filed by the AO stands dismissed.

फलतः नधा रती अ धकार वारा दा खल क गई अपील मंजरू क जाती है .

Order pronounced in the open court on 14th,May,2015.

आदे श क घोषणा खल ु े यायालय म दनांक 14 मई,2015 को क गई ।

Sd/- Sd/- (आई पी बंसल/I P Bansal) (राजे / RAJENDRA) या यक सद य / JUDICIAL MEMBER लेखा सद य / ACCOUNTANT MEMBER मुंबई/Mumbai, दनांक/Date:14.05.2015 व. न.स.Jv.Sr.PS. आदे श क त ल प अ े षत/Copy of the Order forwarded to : 1.Appellant /अपीलाथ 2. Respondent / यथ

3.The concerned CIT(A)/संब ध अपील य आयकर आयु त, 4.The concerned CIT /संब ध आयकर आयु त

5.DR A Bench, ITAT, Mumbai / वभागीय त न ध, ए खंडपीठ,आ.अ. याया.मुंबई

6.Guard File/गाड फाईल

2 ITA/7357/Mum/2013,AY.01-02-HNS

स या पत त //True Copy// आदे शानस ु ार/ BY ORDER, उप/सहायक पंजीकार Dy./Asst. Registrar आयकर अपील य अ धकरण, मुंबई /ITAT, Mumbai.

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