Jaycee Homes Ltd, Mumbai vs Department Of Income Tax

ी डी. म मोहन, उपा य एवं ी संजय अरोड़ा, लेखा सद य के सम । BEFORE SHRI D. MANMOHAN, VP AND SHRI SANJAY ARORA, AM

आयकर अपील सं./I.T.A. No. 4961/Mum/2013 ( नधारण वष / Assessment Year: 2007-08) ITO-Ward 8(2)(1), Jaycee Homes Ltd.

2nd Floor, Room No. 216-A, Gr. Floor, Panch-Ratna Marg, बनाम/ Aayakhar Bhavan, M. K. Road, Off. Yari Road, Versova, Mumbai-400 020 Vs. Andheri (W), Mumbai-400 061

थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. AABCJ 0191 K (अपीलाथ /Appellant) : ( यथ / Respondent)

अपीलाथ क ओर से / Appellant by : Shri Vivek Perampurna

यथ क ओर से/Respondent by : None

सनु वाई क तार ख / : 22.10.2014 Date of Hearing घोषणा क तार ख / : 07.01.2015 Date of Pronouncement आदे श / O R D E R Per Sanjay Arora, A. M.:

This is an Appeal by the Revenue directed against the Order by the Commissioner of Income Tax (Appeals)-17, Mumbai ('CIT(A)' for short) dated 29.04.2013, partly allowing the assessee's appeal contesting its assessment u/s.143(3) of the Income Tax Act, 1961 ('the Act' hereinafter) for the assessment year (A.Y.) 2007-08 vide order dated 30.03.2012.

2. None appeared for and on behalf of the Assessee-respondent when the appeal was called out for hearing. This, despite due service of notice of hearing, proof of which is on 2 ITA No. 4961/Mum/2013 (A.Y. 2007-08) ITO vs. Jaycee Homes Ltd.

record. Under the circumstances, it was only considered fit and proper to proceed with the matter, deciding the appeal after hearing the party before us.

3. The only issue arising in this appeal is the validity in law, and in the facts and circumstances of the case, of the deletion of the disallowance of the assessee's claim under section 80-IB(10) in respect of realization of stilt parking space of a housing project.

4. We have heard the parties, and perused the material on record.

The impugned claim is qua two eligible housing projects, i.e., Shiv Shakti Towers and Kailash Towers, both at Powai, Mumbai, the profits of which are otherwise entitled to and have been allowed as deduction under section 80-IB. The Revenue's sole objection is that since the same does not represent sale of residential flats, but only car parking space, the said receipt would not form part of the profits derived from the said housing project/s or otherwise qualify for deduction under the said provision. The first appellate authority allowed the assessee's claim following the decision by the Tribunal in the Asstt. CIT vs. Vaman Estates (in ITA No. 7570/Mum/2011 dated 19.10.2012), holding that car parking is an integral part of the housing project approved by the local authority. Realisation in its respect could not therefore be excluded while determining the deduction under section 80-IB(10).

We find no infirmity in the impugned order. Not only was the ld. CIT(A), in the absence of any decision to the contrary by the tribunal or a higher appellate forum being brought to his notice or otherwise advanced by him, bound to follow the decision cited before him by the assessee, the principle on which the said decision is based has not been assailed by the Revenue in any manner. Stilt parking, which in the present case is for the parking of the cars, is only a part of the housing project, so that the receipt in its respect would form part of the receipt of, and thus the profit derived from, the eligible housing project/s. Car parking, though sold separately, is only for the residents of the flats housed in the relevant projects. In fact, the Revenue, in denying the assessee's claim, has excluded the entire receipt, rather than, if at all, the profit attributable to or embedded in 3 ITA No. 4961/Mum/2013 (A.Y. 2007-08) ITO vs. Jaycee Homes Ltd.

the said receipt in-as-much as the same would also have a corresponding cost to it. We, accordingly, have no hesitation in upholding the impugned order. We decide accordingly.

5. In the result, the Revenue's appeal is dismissed.

प रणामतः राज व क अपील खा रज क जाती है ।

Order pronounced in the open court on January 07, 2015

Sd/- Sd/-

(D. Manmohan) (Sanjay Arora) उपा य / Vice President लेखा सद य / Accountant Member मुंबई Mumbai; दनांक Dated : 07.01.2015 व. न.स./Roshani, Sr. PS

आदे श क त ल प अ े षत/Copy of the Order forwarded to :

1. अपीलाथ / The Appellant

2. यथ / The Respondent

3. आयकर आयु त(अपील) / The CIT(A)

4. आयकर आयु त / CIT - concerned

5. वभागीय त न ध, आयकर अपील य अ धकरण, मंब ु ई / DR, ITAT, Mumbai

6. गाड फाईल / Guard File आदे शानस ु ार/ BY ORDER,

उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, मुंबई / ITAT, Mumbai