TMI Blog2014 (2) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 decision in Trustees Of Tulsidas Gopalji Charitable And Chaleshwar Temple Trust Versus Commissioner Of Income-Tax [1993 (9) TMI 75 - BOMBAY High Court] followed - Decided against Revenue. - I.T.A.No.809/Mum/2011, I.T.A.No.3644/Mum/2012 - - - Dated:- 31-1-2014 - Shri B. R. Mittal,(JM) And N. K. Billaiya (AM),JJ. For the Appellant : Shri B. P. K. Panda For the Respondent : Shri S. C. Tiwari and Ms. Natasha Mangat ORDER Per B.R.Mittal, JM. 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 :- I.T.A.No.809/Mum/2011 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), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 Trust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 da ..... X X X X Extracts X X X X X X X X Extracts X X X X
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