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TMI Blog2019 (12) TMI 1670X X X X Extracts X X X X X X X X Extracts X X X X ..... 59/-. 2. "Whether on the facts and circumstances of the case and in law the Ld. CIT(A) failed to appreciate the fact that the assesses had transferred FSI to the associate concern for Rs.13,672/- as against the ready reckoner rate of Rs.11,520/-. 3. "Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) Ignored that the provisions of section 80IB(13) r.w.s. 80IA(10) were clearly applicable against the assessee 4. "Whether on the fact And circumstances of the case and in law the Ld. CIT(A) failed to appreciate the fact that the decision relied upon by him in the case of Aarti Project has been contested before the Hon'ble High Court and the appeal is still pending. 3. The brief facts of the case are that the assessee is engaged in the business of development of immovable properties, including projects under Slum Rehabilitation Scheme of the Government of Maharashtra, in accordance with DCR 33(10). The assessee has filed its return of income for A.Y. 2013-14 on 30-11-2013, declaring total income of Rs. 63,72,61,220/- and which was revised on 31-03- 2015, declaring total income of Rs. 54,81,07,960/-. The case was selected for scrutiny and the assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for the previous year relevant to the year under consideration, the assessee had claimed deduction u/s,80IB(10) of the Act, for an amount of Rs.34,91,35,308/- being the sale consideration of FSI of 29,050 sq.feet generated from its Mayanagar project, for which approval was granted on 26.11.1998 and completed as per DCR 33(10). In response to the query raised as to the tenability of the claim, the assessee submitted an exhaustive reply vide its letter dated 17.12.2015 which has been extracted on pages 2 to 11 of the assessment order. The Assessing Officer, however, was not inclined to accede to the pleadings made by the assessee mainly for the following reasons: (a) since the claim for deduction u/s 80IB(10) of the Act on deemed sale made in A.Y. 2003-04 was already rejected and It was not contested in appeal, there was no justification for seeking relief under this very provision in the year under consideration; (b) the benefit of the notifications dated 03.08.2010 and 05.01.2011 could be availed of in respect of housing projects approved by SRA on or after 01.04.2004 and before 31.03.2008, and since the requisite approval was granted to the assessee on 26.11.1998, the afores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifically mentioned that the same extends only to the projects approved from 01.04.2004 to 31.03.2008. D. Attention is also invited that the assessee is further claiming deduction of Rs, 34,91,35,308/- on the transfer of TDR of Rs. 39,71,71,600/- and not on actual receipt of consideration in cash or Cheque or equivalent means. Deduction u/s. 80-IB(10) is allowable on the actual consideration received. In this case, the actual consideration is not cash, cheques or Its equivalent but is in terms of right to construct in the form of FSI/TDR, It may be mentioned here that though the above has been part of litigation between the department and the assessee, there has been no finality on the issue by the judicial authorities which would show the correct path to be adopted. The issue of claim of deduction u/s. 80-IB(10) of the Act on the transfer TDR is not accepted by the department The decision of the Hon 'ble Bombay High Court in CIT v/s. Sonasha Enterprises ITA appeal no. 1391 of 2012 has not been accepted by the department and SLP vide D. No. 11467/2015 is pending before the Hon'ble Apex Court as per the official website of the Hon'ble Supreme Court F. Without prejudice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owance in his exhaustive order. It is against this order that the revenue is in appeal on the grounds mentioned hereinabove. 8. The Ld. DR submitted that the Ld.CIT(A) was erred in allowing deduction u/s 80IB (10) of the I.T. Act, 1961 for Rs. 34,91,35,308/-, without appreciating the fact that the assessee had transferred FSI to the associated concerns for Rs. 13,672/- as against ready reckoner rate of Rs. 11,520/-, ignoring detailed reasons brought out by the Ld.AO to deny the benefit. The Ld. DR, further submitted that the Ld.CIT(A) was erred in allowing the benefit, ignoring the fact that the provisions of section 80IB(13) r.w.s. 80IA(10) were clearly applicable against the assessee. He, further, submitted that the Ld.CIT(A) has also failed to appreciate the fact that the decisions relied upon by Ld.CIT(A), in the case of Arthi Project and constructions vs DCIT in ITA No. 4190/Mum/2016, dated 05/01/2017 was not accepted by the department and appeal their against was filed before the Hon'ble Bombay High court. The Ld. DR, further submitted that this issue has been considered by the AO for AY 2004-05, where the assessee has accepted the findings of the AO and not preferred any ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elow along with case laws cited by both the parties. The main dispute between the assessee and the Assessing Officer is with regard to availability of the benefit of deduction u/s 80IB(10) of the Act, in light of proviso to section and also more particularly in light of clause (a) and (b) of said proviso. As per the said proviso, clause (a) and (b) regarding date of commencement and date completion of project has no application, if such project is approved by central or state Government under any laws. It is an admitted fact that the project on which the benefit of deduction was claimed u/s 80IB(10) of the Act, was approved by the state Govt. of Maharashtra, under SRA scheme. In this factual background, if you examine the claim of the assessee, we find that the Government does not compensate the developers the cost of construction of the tenements in slum development projects but only grants FSI, which could be utilized by them either for construction of saleable area in other projects, or sold in open market as per their choice. Since, the assessee did not utilize the FSI of 29,050 sq. feet granted by the government in lieu of the cost suffered in undertaking the Mayanagar project ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... housing project on or after the 1st day of October, 1998 and completes such construction.- (i) in a case where a housing project has been approved by the local authority before the r! day of April 2004, on or before the 31st day of March, 2008; (ii) in a case where 3 housing project has been, or, is approved by the focal authority on or after the 1st day of April, 2004 but not later than the 31st day of March, 2005, within four years from the end of the financial year in which the housing project is approved by the local authority; (iii) in a case where a housing project has been approved by the focal authority on or after the 1st day of April, 2005, within five years from the end of the financial year in which the housing project is approved by the local authority. Explanation.- For the purposes of this clause,- (i) in a case where the approval in respect of the housing project is obtained more than once, such housing project shall be deemed to have been approved on the date on which the building plan of such housing project is first approved by the local authority; (ii) the date of completion of construction of the housing project shall be taken to be the date o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom repetition thereof. 15. The other objection of the Assessing Officer is that since the consideration for construction of the rehabilitation building was received in kind and not in cash/cheque, the benefit of S. 80-IB(10) of the Act would not available to the assessee. It is noted that this inference drawn by the Assessing Officer is also untenable as held in various decisions, cited before and considered by the CIT (A) in paragraph 4.19 of his order holding to the contrary. In the premises, we are of the considered view that the CIT (A) was justified in rejecting the argument of the Assessing Officer that since the consideration was received in kind and not in cash/cheque, the assessee was not entitled to the deduction in paragraph 4.19 of his order The order of the CIT (A), therefore, does not call for any interference on this count too. 16. Most importantly, in A.Y. 2015-16 also, a similar claim for deduction u/s. 80-IB(10) of the Act was preferred in respect of the FSI granted and sold in identical fact-situation. We find that after taking note of the entire scheme, statutory provisions and notifications cited hereinabove, the Assessing Officer himself had granted the ded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re might be innumerable reasons for demanding higher price. In any case, the transaction under consideration is supported by a valuation report submitted to A.O. in which the rate of FSI was supported with the help of three comparable instances. Further, the inference drawn by the Assessing Officer is based upon his own theory, and neither supported by any independent verification nor after discrediting the valuation submitted by the assessee for valid reasons. We, therefore, are of the considered view that the CIT(A) was justified in refuting the aforesaid stand taken by the Assessing officer. 19. The other objection raised by the Assessing Officer vide ground No. 4, is that since the order of the Tribunal in the case of Aarti Projects and Constructions v. DCIT [ITA No. 4190/Mum/2016 dated 05.01.2017] was not accepted by the Department and appeal there against was filed before the Hon'ble Bombay High Court and the CIT (A) ought not have relied upon the same. In this regard, it is noted that until and unless the order of the jurisdictional Tribunal is set aside or reversed by the Hon'ble High Court, it holds the field and the authorities functioning within their jurisdiction are b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is dismissed. CO.No. 163/Mum/2019-ASST YEAR 2013-14 23. The assessee has raised the following grounds of cross objection: - "1. The learned CIT (A) ought to have directed the Assessing Officer to delete the disallowance of Rs. 5,91,97,243/- made by the Assessing Officer u/s. 14A r.w.r. 8D(2)(ii) of the Act on account of proportionate interest expenditure. 2. The learned CIT (A) ought to have directed the Assessing Officer to delete the disallowance of Rs. 273,97,518/- made by the Assessing Officer u/s. 14A r.w.r. 8D(2)(iii) of the Act in respect of other expenditure. 3. The learned CIT (A) ought to have directed the Assessing Officer to delete the disallowance made u/s. 14A of the Act while calculating the book pro fit u/s, 115JB of the Act" 24. At the outset, the Ld. AR for the assessee submitted that the cross objection filed by the assessee is delayed by 77 days, for which necessary petition along with affidavit for condonation of delay has been filed explaining the reasons for delay in filing cross objection. The Ld. AR, further submitted that the assessee did not file further appeal against order of the Ld.CIT(A) in confirming additions made by the AO towards di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay is not deliberate or for the reasons beyond the control of the assessee. Therefore, in order to condone the delay in filing appeal or cross objection, it is for the assessee to explain the reasons, which prevented the assessee to file appeal within prescribed time allowed under the Act. Further, the Hon'ble Supreme court, in the case of Collector of land acquisition vs Mst. Katiji (supra) had considered condonation of delay in filing appeal and held that when, technicalities and merits are pitted against each other, the substantial justice should prevail over technical consideration. The Hon'ble Court also explained that every day delay must be explained. In the light of above legal proposition, if we examine the case of the assessee, we find that the reasons given for not filing appeal or cross objection within time allowed under the Act, comes under the purview of reasonable cause as provided under the Act. We further noted that although, the assessee has not pressed the ground before the Ld.CIT(A), but the Ld.CIT(A) has decided the issue on merits. Further, the issue involved in cross objection filed by the assessee is with regard to disallowances of expenditure incurred i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceived from other counsel was considered by the Coordinate Bench in the case of DBS Bank Ltd. (supra) and the delay was condoned with the following observations:.....,...............,................ 12. Accordingly, following the above said order of the Tribunal and also in order to render substantial justice to the assesses, we condone the delay and admit the cross objection. 28. The assessee is relied upon the decision of ITAT, Mumbai, in the case of Galaxy Medical devices Pvt.Ltd. vs ITO in ITA No. 3218/Mum/2010 dated 30/09/2011. In this case also exactly an identical situation arose and it was resolved by observing as under:- "4. We have heard the arguments of both sides and also perused the relevant material available on record The learned D.R. has submitted that the disallowance on account of travelling expenses was made by the A.O. on agreed basis as the A.R. of the assesses had agreed for the said disallowance during the course of assessment proceedings. However, as held by the co-ordinate Bench of the Tribunal in the case of R. T. Balasuhramaniam vs. ITO reported in 50 ITD 513 (Mad) cited by the learned counsel for the assesse, it cannot be said that the assessee i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii), in respect of interest expenditure, ignoring the fact that the assessee has own funds amounting to Rs 1,658.28 crores, which exceeds the value of the investment of Rs. 594.29 crores. In this regard, he relied upon the decision of Hon'ble jurisdictional High Court of Bombay in the case of CIT vs. Reliance Utilities Power Ltd 313 ITR 340 (bom) and CIT vs HDFC Bank Ltd. (366 ITR 505(bom). The assessee has also relied upon the decision of Hon'ble Supreme Court, in the case of CIT vs Reliance Industries Limited 410 ITR 466 (SC). The Ld. AR, further submitted that in respect of disallowances of expenditure under Rule 8D(2)(iii), the disallowances may be restricted to the extent of exempt income earned and only those investments, which have yielded such income be taken into account for arriving at the average value of investments, He, further submitted that if any suomoto disallowances made by the assessee exceeds the exempt income, it may be restricted to the extent of the exempt income. In this regard, he relied upon the decision of Hon'ble Delhi High Court in the case of ACB vs ACIT (374 ITR 108) and CIT vs Interglobe Enterprises Ltd. In ITA No. 456/2016, dated 19/08/2016. The ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made in shares and securities, which yield exempt income then no disallowances can be made towards interest expenditure under Rule 8D(2)(ii). The assessee further contended that insofar as, disallowances of other expenditure under Rule 8D(2)(iii), the said disallowances cannot shallow entire exempt income earned by the assessee for the year under consideration. In other words, it was argued that disallowances of expenditure should be restricted to the extent of exempt income earned for the year under consideration. 35. Having heard both the sides, we find merit in the arguments of the Ld. AR for the assessee for the reasons that the Hon'ble Supreme Court, in the case of CIT vs Reliance Industries Limited(supra) had considered an identical issue and held that no interest disallowances can be made u/s 14A of the Act, if own funds are sufficient to coverup the value of the investments. The Hon'ble jurisdictional High Court of Bombay, in the case of CIT vs Reliance Utility and Power Limited(supra) held that when, mixed funds including own funds are more than the value of the investments, then a general presumption goes in favor of the assessee that investments made in shares is out o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts of the Ld. DR that if disallowances u/s.14A is restricted to the extent of exempt income, then the assessed income may go below the return income, which is not permissible under the law. We find that the co-ordinate bench of ITAT, Mumbai 'E' bench in the case of M/s Sundaram Multipap vs DCIT in ITA No. 5327/Mum/2015 and cross objection no. 272Mum/2017 had considered an identical issue and by following another decision of co-ordinate bench in the case of TATA Industries Limited (supra) held the issue in favor of the assessee and accordingly, we reject the contention of the Ld. DR. 37. Coming to ground No.3 of cross objection which assail, the disallowance made u/s 14A, while calculating the book profit u/s 115JB of the Act. We find that this issue has been squarely covered in favor of the assessee by the decision of ITAT, Mumbai bench in the case of Mrinalini Trading Company Ltd. Vs DCIT ITA No. 1211/Mum/ 2014, where the Tribunal by following the order of Tribunal Special Bench, in the case of ACIT vs Vireet Investments Pvt. Ltd(supra) held that computation of book profit in terms of clause (f) of Explanation (1) to Section 115JB (2) is to be made without resorting to computati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear has not been accepted by the department and appeal is pending before the Hon'ble High Court?." 2. a) "Whether on the facts and circumstances of the case and in law, the CIT(A) erred in allowing deduction u/s 801A(4) for Rs.12,6273967/--,?." b) "Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) failed to appreciate that the assessee's scheme was approved on 05.06.2006 and the provisions of section 80IA(4)(iii) required approval under the Industrial Park Scheme 2008,?" 41. The brief facts of the case are that for the previous year relevant to the year under appeal, the assessee filed its return of income on 30.11.2014 declaring 'nil' income and a revised return was e-filed thereafter on 31.03.2016 repeating the same income. The return filed on 31.03.2016 was initially processed u/s. 143(1) of the Act, but later on selected for scrutiny under CASS. In response to the statutory notices, the assessee made due compliance. In the computation of book profits for the year under consideration, the assessee had not made any adjustment with respect to a sum of 30 crore, which represented the Debenture Redemption Reserve (hereinafter referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is covered under Explanation -l(b) to section 115JB, as discussed above. (iv) The amount involved was mentioned by the assessee itself as reserve and, therefore, is required to be adjusted and added back to the book profit in view of Explanation l(b) to section 115JB. In the present case the terminology as well as the nature of the reserve set aside is in the nature of a reserve other than the specified reserve. It is therefore squarely covered within the ambit of disallowances for the purpose of calculation tax u/s. 115JB of the Act. The said addition has also been made in earlier assessment years. The assessee has stated that the CIT(A) has decided the issue m its favour. It is pertinent to state that the decision was not accepted by the Department and further appeal was preferred to the Hon'ble ITA T. The Hon'ble ITA T vide order dated 4.5.2016 has dismissed the appeal in limine due to low tax effect without adjudicating upon merits. Considering the same and the fact that the addition of debenture redemption reserve has been added back to the book profit u/s. 115JB in A.Y. 2011-12 and 2012-13, to maintain the principle of consistency, the amount of debenture redemptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... National Rayon Corporation Limited (227 ITR 754), submitted that the Hon'ble Supreme Court has clearly held that provision for Debenture Redemption Reserve (DRR) would be includible in book profit computed u/s 115JB of the Act, 1961. The Ld.CIT(A) without appreciating these facts has directed the AO to excluded DRR from book profit computed u/s 115JB of the I.T. Act, 1961. 45. The Ld. AR for the assessee, on the other hand strongly supporting order of the Ld.CIT(A) submitted that this issue is squarely covered in favor of the assessee by the decision of ITAT, Mumbai in assessee's own case for AY 2012-13, in ITA No. 1962/Mum/2017, where under identical set of facts , the Tribunal by following the decision of Hon'ble Bombay High court in the case of CIT vs Raymond Ltd (2012) 21 taxmann.com 60 held that adjustment to the amount of DRR made, while computing the book profits u/s 115 JB of the Act is permissible and is within the purview of the law. The Ld. AR, further submitted that this issue has been considered by the Tribunal in various cases and after considering the arguments of the revenue, in light of the decision of SREI Infrastructure and Finance Limited vs CIT (supra) held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reserve in terms of clause (b) of Explanation to Sec 115JB of the Act whereas according to the assessee, the said amount was not a reserve, but in the nature of an ascertained liability. The CIT(A) has since upheld the stand of the assessee by relying on the judgment of the Hon'ble Bombay High Court in the case of Raymond Ltd,, [2012] 209 Taxman 65 (Bom) as well as the judgment of the Hon'ble Supreme Court in the case of National Rayon Ltd., 227ITR 764 (SC). Accordingly, the CIT(A) directed the Assessing Officer to re-compute the book profits for the purposes of Sec. 115JB of the Act after excluding the amount of Rs. 74,75,00,000/- set aside by the assessee as Debenture Redemption Reserve. Against such a decision, Revenue is in appeal before us. 4. Before us, the Id CIT-DR has reiterated the stand of the Assessing Officer, which is primarily to the effect that the impugned amount was merely a Reserve and, therefore, was not deductible while determining the book profits u/s. 115JB of the Act. 5. On the other hand, the learned representative for the assessee pointed out that the CIT(A) made no mistake in allowing the claim of the assessee, which is also in consonance wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 submitting that during the year under consideration the company issued debentures of Rs. 245 crore and therefore while finalizing the accounts for the year ended 31.03.2012 company has appropriated Rs. 30 crores towards debentures redemption reserve out of the profits of the years. The ld. A.R. submitted that the assesse company has credited debentures redemption reserve to the extent of Rs. 30 crores under the provisions of section 117C of the Companies Act, 1956. While filing the return of income for A. Y. 2012-13 the said appropriation towards redemption reserve has been reduce from book profit as per explanation 1 to section 115JB of the Act. The reply of the assessee did not find favour with the AO and the AO came to the conclusion that the reserve set aside is in the nature of reserve which is not covered in the definition of specified reserve and therefore squarely covered within the ambit of disallowance for the purpose of calculation of book profit under section 115JB of the Act and added hack to the Income of the assessee by observing that in A. Y 2010-11 and 2011-12 also similar setting apart was added back to the profit of the assessee. 5. The id. CIT(A) allowed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. , (4) Where a company fails to redeem the debentures on the date of maturity, the Tribunal may, on the application of any or all the holders of debentures shall, after hearing the parties concerned, direct, by order, the company to redeem the debentures forthwith by the payment of principal and interest due thereon. (5) If default is made in complying with the order of the Tribunal under sub-section (4), every officer of the company who is in default, shall be punishable with imprisonment which may extend to three years and shall also be liable to a fine of not less than five hundred rupees for every day during which such default continues.," 50. We, further, noted that the Tribunal has decided this very issue in favour of the assessee earlier in the case of Rachana Finance & Investment P, Ltd. and Repute Properties P. Ltd. for A.V, 2012-13 [ITA Nos. 5817 & 5816/Mum/2015 dated 31.05.2017] too. The Tribunal after considering the facts of the case and the binding judgment of the Hon'ble Bombay High Court in the case of CIT vs. Raymonds Ltd. (2012) 21 taxmann.com 60, the issue was decided in favour of the assesses by observing as under: "7. In the similar case ITAT Ah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on him also. On the contrary, the claim made by the assessee was well as allowed by the gets support from the decision rendered by the jurisdictional! High Court, meaning thereby, the AO has followed binding decision of the jurisdictional High Court, which cannot be found fault with." 52. In view of the above, and considering facts and circumstance of this case, we are of the considered view that the amount of Rs.30 crores set apart was undoubtedly an ascertained liability and not a 'reserve' covered by clause (b) of Explanation (1) to S. 115JB of the Act, as inferred by the Assessing Officer and hence, the AO was, therefore, unjustified in holding such amount as covered within the ambit of disallowance provided in clause (b) of Explanation (1) to S, 115JB of the Act. The CIT (A), in our considered view, was perfectly in order in deleting such disallowance and his order, on this count, does not call for any interference for all the aforesaid reasons. 53. During the course of the hearing, in support of his attack to the order of the CIT (A), the D.R. placed reliance on the judgment of the Hon'ble Delhi High Court in the case of SREI Infrastructure Finance Ltd.v. Addl. CIT (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of Housing Development and Infrastructure Ltd. v. Pr. CIT for A.Ys. 2009-10 and 2010-11 in ITA Nos. 3530-3531/Mum/2013 dated 10.01.2019 also, the coordinate Bench of this Tribunal, even after considering the aforesaid judgment of the Hon'ble Delhi High Court had decided the issue in favour of the assessee. In the premises, the ratio laid down in the aforesaid judgment of the Hon'ble Delhi High Court would not be applicable to the case of the assessee. 55. In this view of the matter and consistent with view taken by the coordinate bench, we direct the AO to delete additions made towards provisions for DRR to book profit computed u/s 115JB of the I.T. Act, 1961. 56 The next issue that came up for our consideration from ground No.2 of revenue appeal is rejection of deduction u/s 80IA(4) of the I.T. Act, 1961 amounting to Rs. 12,62,73,967/-. The Ld. AO has rejected deduction claimed towards notified industrial park u/s 80IA(4), on the ground that the benefit of the Industrial Park scheme, 2008 was not available to the assessee, since it was received the requisite approval 05/06/2006. The Ld. AO, further observed that the completed assessment for AY 2008-09 and 2009- 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce Act 1997 extended the benefits of tax holiday to industrial parks set up as per the Scheme of the Central government and notified in this regard The Industrial parks had to start operations between 1.4.1997 to 31.3.2002. This was subsequently amended to Industrial Parks to be set up by 31.3.2006. Now it is noted that the Industrial Parks developed by the appellant are under the Scheme of 2002 and are operative prior to 1.4.2006. The approvals by the Ministry of Commerce and the CBDT notifications clearly state so. Once the conditions stipulated are satisfied, the benefit is available for 10 consecutive years in a block of 15 years. The first year of claim was 2005-06. The claim for A. Y. 2005-06 and A. Y. 2006-07 has been upheld all the way up to the Hon'ble Bombay High Court. The assessment year before me is AY 2014-15 which is the last year of the claim. Earlier the objection raised was that the CBDT notification was received in Previous Year relevant to AY 2007- 08 and hence deduction was not allowed in A Y 2005-06 and 2006-07. The claim was allowed in AY 2007-08. It was allowed in AY 2008-09 and AY 2009-10 also though subsequently notice u/s. 148 to deny the claim was i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter No. 5/09/02-IP &D dated 31/03/2004 vide letter No. 15/43/05 IP &D dated 09/2/2005 under Industrial Park Scheme, 2002. Further, the CBDT had also notified the said Industrial Park vide notification No. 129/2006 and 176/2006 dated 05/06/2006 and 12/06/2006 respectively. Since, the industrial parks of the assessee were duly approved by the DIPP and also, notified by the CBDT, the inference drawn by the AO to the contrary was unjustified and unwarranted. The Ld. AR further submitted that if you go through clause 4.1 and clause 5.6 of the Industrial Park, Scheme, 2008, it is not understood as to how the Ld.AO had inferred that the industrial parks of the assessee for which approvals were granted under 2002 Scheme were covered by the 2008 scheme. The Ld. AR, further submitted that a similar claim was made in AY 2005-06 and AO was not accepted the claim of the assessee. The ld. CIT(A) has reversed the findings of the Ld.AO for both the years and the revenue carried the mater unsuccessfully in further appeals to the Tribunal and Tribunal had accepted the fact that the assessee's industrial parks are covered under Industrial Park Scheme, 2002 and also notified by the CBDT and hence, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions:- ............................................................................................. 6. An industrial park approved under Industrial Park Scheme, 2002 will continue to be governed by the provisions of that Scheme to the extent it is not in contravention with the provisions of Act, as amended from time to time." 61. In view of the unambiguous language of clause 4.1 and clause 5.6 of the Industrial Park Scheme, 2008 extracted hereinabove, it is not understood as to how the Assessing Officer had inferred that the industrial parks of the assessee, for which approvals were granted under 2002 Scheme were covered by the 2008 Scheme. Therefore, we are of the considered view that the rejection of the claim of the assesses which was in accordance with the statutory provisions and supported by requisite approvals and notifications was rightly reversed by the CIT (A). Further, a similar claim was made in A,Y, 2005-06 for a sum of Rs. 10,59,66,901/-. During the course of scrutiny, the Assessing Officer observed that in respect of the same properties the assessee had offered rental income as 'income from house property' in A.Ys 2001-02 to 2004-05 in the returns f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich is placed at paper book pages 15 to 17. We find the assessee company has fulfilled all the requisite conditions for claiming deduction u/s. 80IA(4)(iii) of the Act. The requisite number of units located in Industrial Park were completed and the completion certificates were also obtained by 24h December 2003, a finding given by the Id CIT(A) and not controverted by the Id. D.R. Under these circumstances, we do not find any infirmity in the order of the CIT(A) allowing the claim of deduction u/s 80IA(4)(iii). The ground No. 1 raised by the Revenue is accordingly dismissed." 62. It would not be out of place to mention here that the aforesaid order of the Tribunal was carried in proceedings u/s. 260A of the Act by the revenue but in vain. The Hon'ble High Court vide their judgment dated 22.02.2013 rendered in ITA Nos. 71 and 72 of 2012, had dismissed such appeals. Further, in the subsequent year, i,e. A.Y. 2007-08, similar claim preferred was granted after due verification vide assessment order dated 30,12.2008. In A.Y. 2008- 09 also, claim u/s. 80-IA4(iii) of the Act made by the assessee was allowed in the order passed u/s. 143(3) of the Act dated 24.12.2010 and in respect of wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven by the assessee for this assessment year are also identical to the facts and reasons considered by us for Asst. Year 2013-14. The reasons given by us in preceding paragraphs No. 28 to 31 of CO.No. 163/Mum/2019 shall mutatis mutandis apply to this cross objection as well. Therefore, for detailed reasons recorded in preceding paragraph, we condone delay in filing cross objection and admit the issue for adjudication on merits. 68. The facts and issue involved in this cross objection filed by the assessee is identical to the facts and issue which we had considered in preceding paragraph in CO. 163/Mum/2019 for Asst. Year 2013- 14. The reasons given by us in preceding paragraph No. 35 to 39 shall mutatis mutandis apply to this cross objection as well. We, therefore, for detailed reasons recorded in preceding paragraph in CO.163/Mum/2019, direct the AO to follow the findings of the Tribunal for Asst. Year 2013-14 and restrict disallowances of expenditure u/s 14A of the Act, to the extent of exempt income earned for the year. We, further direct the AO to delete adjustment made to book profit computed u/s 115JB of the Act, towards disallowance u/s 14A of the Income tax Act, 1961. 69 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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