Commissioner Of Income Tax v. Kim Enterprises

(-1-) MGN IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.52 of 2009 Commissioner of Income Tax. ..Appellant Vs. KIM Enterprises ...Respondent Mr.R.Asokan, for the Appellant. None for respondent. CORAM: F.I. REBELLO & R.S.MOHITE, JJ. DATED: 26TH MARCH, 2009 CORAM: F.I. R.S.MOHITE, JJ. DATED: 26TH MARCH, 2009 P.C.: P.C.: . Revenue is in Appeal on the following question:- "(a) The substantial question of law arises in the present appeal is regarding the true scope and correct interpretation of various provisions of the Income Tax Act, 1961 and other provisions and whether on the facts and circumstances of the case and in law the Hon’ble Tribunal is right in directing the A.O. to determine the income of the assessee as Percentage Computation Method though the project was completed and the Occupancy Certificate was issued by the Thane Municipal Corporation and 81 out of the total 84 Nos. of flats were sold during (-2-) the year under assessment." The assessee aggrieved by the order of A.O. and C.I.T. (A) preferred an appeal before the ITAT. It was the submission on behalf of the assessee that in respect of the project for the earlier years they offered the income based on Percentage Computation Method for the assessment year 2001-2002. The A.O. proceeded on the basis that out of 84 flats 81 flats had been sold and applied the Project Computation Method. 2. The learned Tribunal after considering the contentions advanced on behalf of the appellant assessee noted that the Department had accepted the Project Completion Method for the earlier assessment years. The Tribunal also noted that the income was recomputed for the completed year without reopening the assessment which was not the correct procedure. There is also a finding that certain other common facilities were not completed in the year of consideration. In the light of the said findings the appeal preferred by the assessee herein was allowed. 3. After considering the findings recorded by the Tribunal, in our opinion, we find no perversity in the same. Once the A.O. for the previous (-3-) assessment year had accepted the Percentage Computation Method which the assessee was following the A.O. summarily could not have changed the same to Project Completion Method. Even otherwise we are in agreement with the view taken by the Tribunal.For the aforesaid reasons there is no merit in this Appeal which is accordingly dismissed. (R.S.MOHITE, J.) (F.I.REBELLO,J.) (R.S.MOHITE, J.) (F.I.REBELLO,J.) (R.S.MOHITE, J.) (F.I.REBELLO,J.)