M/s. Pratham Developers, Baroda V. The Dy.CIT., Circle-2(2), Baroda

CO 1/AHD/2010

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 7261 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 19 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 20-07-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 28-06-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 01-01-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: O P BEOTHEIA SRDR
• Keywords: Business income
• Section: 143(3); 142(1); 80IB; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B AHMEDABAD BEFORE SHRI, A.K.GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.2183/AHD/2010 & ITA NO.3300/AHD/2009 AND C.O.NO.01/AHD/2010 (A/O ITA NO.3300/AHD/2009) ASSESSMENT YEAR:2007-08 & 2006-07 DY. COMMISSIONER OF INCOME TAX, CIRCLE-2(2), 4 TH FLOOR, AYAKAR BHAVAN, RACE COURSE CIRCLE, BARODA M/S PRATHAM DEVELOPERS PRATHAM MAKARAND DESAI ROAD, NR. MOTHERS SCHOOL, BARODA PAN NO.AAHFP2699D V/S . V/S . M/S PRATHAMA DEVELOPERS, PRATHAM MAKRAND DESAI ROAD, NR. MOTHERS SCHOOL, BARODA DY. COMMISSIONER OF INCOME TAX, CIRCLE-2(2), 4 TH FLOOR, AAYAKAR BHAVAN, RACE COURSE CIRCLE, BARODA (APPELLANT) .. (RESPONDENT) /BY APPELLANT SHRI BHAVIN MARFATIA, AR /BY RESPONDENT SHRI O.P. BEOTHEIA, SR-DR /DATE OF HEARING 28-06-2012 /DATE OF PRONOUNCEMENT 20-07-2012 O R D E R PER KUL BHARAT, JUDICIAL MEMBER:- THESE TWO APPEALS OF THE REVENUE AND CROSS OBJECTI ON (CO) OF THE ASSESSEE ARE DIRECTED AGAINST THE DIFFERENT ORDERS OF LD. COMMISSIONER OF ITA NO.2183/A/10, 3300/A/09 & CO 1/A/10 A.YS. 07-08 & 06-07 DCIT CIR-2(2), BRD V. M/S. PRATHAM DEVELOPERS PAGE 2 INCOME-TAX (APPEALS)-II, BARODA OF DIFFERENT DATE I .E. 30-09-2009 AND 15-04- 2010 FOR THE ASSESSMENT YEARS 2006-07 AND 2007-08. FIRST WE TAKE UP ITA NO.3300/AHD/2009 A.Y. 06-07 OF THE REVENUE. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(APPEALS) ERRED IN ALLOWING THE DEDUCTION U/S. 8 0IB(10) TO THE ASSESSEE, WHO WAS NOT GRANTED APPROVAL BY THE LOCAL AUTHORITY TO CARRY O THE BUSINESS OF AN UNDERTAKING DEVELOPING AND BUI LDING HOUSING PROJECTS, IN CONTRAVENTION OF A PLAIN READING OF SE CTION 80IB(10), R.W.S. 80IB(1), EXPLANATION TO SECTION 80IB(10) AND RULE 1 8BBB. 2. THE LD. CIT(APPEALS) FAILED TO MAKE A COMBINED R EADING OF SECTION 80IB(1), WHICH IS THE SUBSTANTIVE PROVISION, AND SE CTION 80IB(10), WHICH IS A MACHINERY PROVISION, POSTULATING COMPLETE IDEN TITY BETWEEN THE ASSESSEE AS REFERRED TO IN SECTION 80IB(1), AND THE UNDERTAKING DEVELOPING AND BUILDING HOUSING PROJECTS APPROVED B Y THE LOCAL AUTHORITY AS REFERRED TO IN SECTION 80IB(10), NOT P ERMITTING SUCH SPLITTING BETWEEN THE ASSESSEE AND THE PERSON WHO IS GRANTED APPROVAL BY THE LOCAL AUTHORITY FOR DEVELOPING AND BUILDING HOUSING PROJECTS, AS PRESUMED BY THE CIT(APPEALS) . 3. THE LD CIT(APPEALS) FAILED TO ABIDE BY THE SCHEM E OF SECTION 80IB BASED ON COMPLETE IDENTITY BETWEEN THE ASSESSEE AS REFERRED TO IN SECTION 80IB(1), ON THE ONE HAND, AND THE ENTITY FU LFILLING THE CONDITIONS LAID DOWN IN SECTIONS 80IB(3), 80IB(9), 80IB(11) AN D 80IB(11AA), BESIDES SECTION 80IB(10), ON THE OTHER. 4. THE LD CIT(APPEALS) FAILED TO APPRECIATE THAT TH E LAND BEING INTEGRAL PART OF ANY HOUSING PROJECT, THE ASSESSEE, WITHOUT OWNING THE LAND COMPONENT, COULD NOT PAS ON FULL TITLE OVER DWELLIN G UNITS TO THE CUSTOMERS SO AS TO DERIVE PROFITS FROM DEVELOPING A ND BUILDING HOUSING PROJECTS AND THIS INTEGRATION IS FURTHER FORTIFIED BY THE REQUIREMENT OF APPROVAL BY THE LOCAL AUTHORITY AS WELL AS GRANT OF COMPLETION CERTIFICATE BY THE LOCAL AUTHORITY UNDER CLAUSE (II) OF THE EXP LANATION BELOW SECTION 80IB(10), BOTH OF WHICH ARE GRANTED TO THE LANDOWNE R, THUS TREATING HIM ALONE AS RUNNING THE UNDERTAKING FROM THE BEGINNING TO THE END. 5. THE LD. CIT(APPEAL) ERRED IN DISPENSING WITH TH E OWNERSHIP OF LAND INTRINSICALLY LIKED WITH THE APPROVAL BY THE LOCAL AUTHORITY, ALSO IN DISREGARD OF SECTION 80IB(10(B) PROVIDING FOR THE C ONDITION OF MINIMUM SIZE OF THE PLOT OF LAND, WHICH CAN BE FULFILLED ON LY BY THE LANDOWNER AND THE PERSON GETTING APPROVAL FROM THE LOCAL AUTHORIT Y. ITA NO.2183/A/10, 3300/A/09 & CO 1/A/10 A.YS. 07-08 & 06-07 DCIT CIR-2(2), BRD V. M/S. PRATHAM DEVELOPERS PAGE 3 6. THE LD CIT(APPEALS) ERRED IN MAKING ASSUMPTION R EGARDING PASSING NO OF THE BENEFIT OF SECTION 80IB(10) BY THE LANDOW NER GETTING APPROVAL FROM THE LOCAL AUTHORITY FOR DEVELOPING AND BUILDIN G OF HOUSING PROJECTS TO THE PERSON WITH WHOM HE ENTERS INTO AGREEMENT FO R EXECUTION OF SUCH PROJECTS, WITHOUT THERE BEING ANY PROVISION IN SECT ION 80IB FOR SUCH PASSING ON, AS CONTAINED IN SECTION 80HHC(1A). 7. WITHOUT PREJUDICE, THE LD CIT(APPEALS) ERRED IN ALLOWING DEDUCTION U/S. 80IB(10) IN RESPECT OF THE PROCEEDS ATTRIBUTAB LE TO THE SALE OF UNUTILIZED FSI AND NOT TO THE DWELLING UNITS IN THE HOUSING PROJE CTS, WHICH COULD NOT BE TERMED AS PROFITS DERIVED FROM DEVELOPING AND BUILDING HOUSING PROJECTS IN TERMS OF THIS PROVISIO N. 3. THE FACT STATED IN BRIEF ARE THAT ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF REAL ESTATE DEVELOPERS HAD CLAIM ED DEDUCTION U/S.80IB(10) BEING THE ASSESSMENT YEAR. THE SAID CLAIM WAS DISAL LOWED VIDE ORDER U/S. 143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REF ERRED TO AS THE ACT) DATED 20-12-2007 AFTER MAKING DETAILED DISCUSSION IN RESP ECT OF THE SAID CLAIM, FROM THE SCRUTINY OF THE RETURN OF INCOME AND DOCUMENTS, IT WAS FOUND THAT FOR THE A.Y. 2006-07 ALSO THE ASSESSEE HAD CLAIMED DEDUCTIO N U/S. 80IB(10) OF THE ACT. THE ASSESSEE HAD CONSTRUCTED HOUSING PROJECT A ND SHOWED NET PROFIT OF RS.2,87,14,538/- AS HAVING BEEN DERIVED FROM THE DE VELOPMENT AND BUILDING OF HOUSING PROJECTS AND CLAIMED DEDUCTION U/S. 80IB (10) OF THE ACT AMOUNTING TO RS.2,87,14,538/-. HOWEVER, IT WAS NOTICED FROM T HE RECORDS THAT THE LAND IS NOT OWNED BY THE ASSESSEE-FIRM. FURTHER, THE APPROV AL OF THE LOCAL AUTHORITY WAS ALSO NOT IN THE NAME OF ASSESSEE-FIRM. THE SAID CLAIM OF THE ASSESSEE WAS ALSO DISALLOWED IN A.Y. 2005-06. IN VIEW OF THE SAME, NOTICE U/S. 147 OF THE ACT WAS ISSUED AND SERVED UPON THE ASSESSEE ON 04-12-2008 DECLARING NIL INCOME BY CLAIMING DEDUCTION U/S. 80IB(10) OF THE A CT. THE REASONS FOR REOPENING OF THE CASE WAS GIVEN TO THE ASSESSEE ON 19-01-2009 AS THEREAFTER THE NOTICE U/S. 143(2) AND 142(1) WAS ISSUED AND SE RVED UPON THE ASSESSEE AND THE ASSESSMENT U/S.143(3) R.W.S. 147 WAS CONCLU DED VIDE ORDER DATED 30- 03-2009, WHEREBY THE ASSESSING OFFICER DISALLOWED T HE CLAIM OF THE ASSESSEE U/S. 80IB(10) OF THE ACT. AGAINST THIS ORDER, ASSES SEE FILED APPEAL BEFORE LD. CIT(A) WHO AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND RELYING ITA NO.2183/A/10, 3300/A/09 & CO 1/A/10 A.YS. 07-08 & 06-07 DCIT CIR-2(2), BRD V. M/S. PRATHAM DEVELOPERS PAGE 4 UPON THE DECISION OF HONBLE CO-ORDINATE BENCH IN T HE CASE OF ITO AND OTRS. V SHAKTI CORPORATION BARODA IN ITA NO.1503/AHD/2008 , ALLOWED THE APPEAL OF ASSESSEE. 4. NOW THE REVENUE FEELING AGGRIEVED BY THIS ORDER OF LD. CIT(A) FILED APPEAL BEFORE THE TRIBUNAL. 5. GROUND NO.1 TO 6 IS AGAINST THE DEDUCTION U/S.80 IB(10) ON THE BASIS THAT ASSESSEE WAS NOT THE OWNER OF THE LAND. LD. DEPARTM ENTAL REPRESENTATIVE OF THE REVENUE RELIED UPON THE ORDER OF ASSESSING OFFI CER WHEREAS THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SUPPORTED THE ORDER OF LD. CIT(A). HE SUBMITTED THAT THIS ISSUE IS SQUARELY COVERED IN FAVOUR OF ASSESSEE IN ASSESSEES OWN CASE IN ITA NO.2880/AHD/2011 DATED 3 1-05-2012 FOR A.Y. 2008-09. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT THE HONBLE CO-OR DINATE BENCH IN ASSESSEES OWN CASE IN ITA NO.2880/AHD/2011 (SUPRA) FOR A.Y. 2 008-09 HAS HELD AS UNDER:- 5. TAKING INTO CONSIDERATION THE SUBMISSION OF THE SE LD. CIT(A) ALLOWED THE APPEAL OF THE ASSESSEE DIRECTING THE AO TO ACCE PT THE CLAIM OF THE ASSESSEE U/S. 80IB(10) OF THE ACT BY OBSERVING AS U NDER:- I HAVE CONSIDERED THE SUBMISSION OF THE AUTHORIZED REPRESENTATIVE AND THE ORDER OF THE ASSESSING OFFIC ER. THE DECISION OF THE HONBLE ITAT IN THE CASE OF M/S. SHAKTI CORPORATION AND OTHERS AND THE GUIDELINES LAID DOWN HAS ALSO BEEN CONSIDERED. ACCORDINGLY, THE COMMENTS OF ASSES SING OFFICER WAS CALLED FOR AFTER CARRYING OUT DUE VERIFICATION OF FACTS. THE ASSESSING OFFICER VIDE HIS REPORT DATED 30.08.2011, HAS STATED AS UNDER:- DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS NOTICED THAT THE ASSESSEE HAS PURCHASED THE LAND IN RESPECT OF THE PRATHAN VATIKA & PRATHAM RESIDENCY AND THE CLAIM OF DEDUCTION U/S. 80IB(10) WAS FOUND TENABLE, AND THUS ALLOWED. HOWEVER, IN THE CASE OF PRATHAM AVENUE AND PRATHAM UPAVAN PROJECTS ASSESSEE HAS ACQUIRED THE LAND ITA NO.2183/A/10, 3300/A/09 & CO 1/A/10 A.YS. 07-08 & 06-07 DCIT CIR-2(2), BRD V. M/S. PRATHAM DEVELOPERS PAGE 5 DEVELOPMENTS RIGHTS AND NOT THE OWNER OF THE LAND. AS SUCH FOR THE DETAILED DISCUSSION GIVEN IN THE BO DY OF THE ASSESSMENT ORDER ( PAGE NOS. 2 TO 16 ), THE CLAIM OF THE ASSESSEE U/S. 80IB(1) WITH RESPECT TO THESE TWO PROJECTS WAS DISALLOWED. FURTHER, THOUGHT THE ASSESSEE IS RESPONSIBLE FOR THE RISK AND COSTS INVOLVED IN BOTH THESE PROJECTS AS ENVISAGED IN THE DEVELOPMENT RIGHTS/AGREEMENTS AND SINCE THE DEPARTMENT HAS NO ACCEPTED THE DECISION OF THE HONBLE ITAT IN THE CASE OF M/S RADHE DEVELOPERS AND M/S. SHAKTI CORPORATION AND THE MATTER IS SUBJUDICE BEFORE THE HIGH COURT OF GUJARAT, THE CONTENTION PUT FORTH BY THE ASSESSEE HAS NOT ACCEPTED AS CONCLUDED AT PARA 25 OF THE ASSESSMENT ORDER. SINCE THE ASSESSING OFFICER, AFTER DUE VERIFICATION , HAS STATED THAT THE ASSESSEE IS RESPONSIBLE FOR THE RISK AND COSTS INVOLVED IN BOTH THESE PROJECTS, THE CONDITIONS PRESCRIBED IN THE SH AKKTI CORPORATION CASE CITED ABOVE, HAVE BEEN MET. HENCE, AS HELD BY HONBLE AHMEDABAD ITAT IN THE CASE OF M/S SHAKTI CORPORATION AND OTHERS, THE ASSESSEE IS ENTITLED TO DEDUCTION U/S. 80IB(10 ). THE DEPARTMENT HAVING CHALLENGED THESE DECISIONS OF AHMEDABAD ITAT IN THE GUJARAT HIGH COURT, WILL NOT PRECLUDE THE APPELLANT FROM GETTING RELIEF AT THE LEVEL OF CIT(A ). THEREFORE, FOR THE YEAR UNDER CONSIDERATION, FOLLOWING THE ABOVE M ENTIONED JUDGMENTS OF HONBLE AHMEDABAD ITAT, THE CLAIM OF T HE APPELLANT FOR DEDUCTION U/S. 80IB(10) IS ALLOWED. SINCE THE LD. CIT(A) HAS GIVEN RELIEF TO THE ASSESS EE BY PLACING RELIANCE ON THE DECISIONS OF HONBLE ITAT AHMEDABAD IN THE C ASE OF ITO AND OTRS. VS. SHAKTI CORPORATION BARODA IN ITA NO.1503/AHD/2008 WHICH IN TURN WAS PASSED BY HONBLE ITAT FOLLOWING THE DECIS ION OF HONBLE APEX COURT IN THE CASE OF FAQUIR CHAND GULATI (SUPRA), WE FEEL NO NEED TO INTERFERE WITH THE ORDER PASSED BY LD. CIT(A) AND T HE SAME IS HEREBY UPHELD THIS GROUND OF THE REVENUE IS DISMISSED. IN THIS VIEW OF THE MATER, WE DO NOT FIND ANY MERIT INTO THIS GROUND OF REVENUES APPEAL AND SAME IS HEREBY DISMISSED. GROU NDS NO. 1 TO 6 OF THE REVENUES APPEAL IS DISMISSED. ITA NO.2183/A/10, 3300/A/09 & CO 1/A/10 A.YS. 07-08 & 06-07 DCIT CIR-2(2), BRD V. M/S. PRATHAM DEVELOPERS PAGE 6 7. NEXT GROUND IS WITH REGARD TO ALLOWANCE OF DEDUC TION U/S. 80IB(10) ON UNUTILIZED FSI. LD. DEPARTMENTAL REPRESENTATIVE OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER PASSED BY ASSESSING OFFICER WH EREAS LD. AR OF THE ASSESSEE SUBMITTED THAT THIS ISSUE IS SQUARELY COVE RED IN FAVOUR OF ASSESSEE BY THE DECISION OF HONBLE CO-ORDINATE BENCH IN THE CASE OF RADHE DEVELOPERS & ORS. V. ITO & ORS. (2008) 113 TTJ 300 (AHD). 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT HONBLE CO-ORDINA TE BENCH IN THE CASE OF RADHE DEVELOPERS & ORS. (SUPRA). RESPECTFULLY FOLLOWING THE DECISION OF HONBLE CO-ORDINATE BENCH IN THE CASE OF RADHE DEVELOPERS & ORS. (SUPRA) THIS GROUND OF REVENUES APPEAL IS DISMISSED. 9. IN THE RESULT, REVENUES APPEAL IS DISMISSED. NOW WE TAKE UP ITA NO.2183/AHD/2010 A.Y.07-08 BY TH E REVENUE. 10. LD. AR OF THE ASSESSEE SUBMITTED THAT THE FACTS ARE IDENTICAL WITH FACTS IN ITA NO.3300/AHD/2009 OF THE REVENUES APPEAL EXC EPT ASSESSMENT YEAR. HE SUBMITTED THAT THIS ISSUE IS ALSO SQUARELY COVER ED IN FAVOUR OF ASSESSEE BY THE DECISION OF HONBLE CO-ORDINATE BENCH IN ASSESS EES OWN CASE IN ITA NO.2880/AHD/2011 (SUPRA). LD. DR OF THE REVENUE SUP PORTED THE ORDER OF ASSESSING OFFICER. 11. SINCE THE FACTS ARE IDENTICAL AS IN REVENUES A PPEAL IN ITA NO.3300/AHD/2009 AND TAKING A CONSISTENT VIEW, THIS ISSUE OF REVENUES APPEAL IS DISMISSED. 12. IN THE RESULT, REVENUES APPEAL IS DISMISSED. COMING TO ASSESSEES CO NO.01/AHD/2010. 13. THE ASSESSEE HAS RAISED THE FOLLOWING GROUND OF THE CO:- ITA NO.2183/A/10, 3300/A/09 & CO 1/A/10 A.YS. 07-08 & 06-07 DCIT CIR-2(2), BRD V. M/S. PRATHAM DEVELOPERS PAGE 7 1. THE LEARNED CIT(A) ERRED IN FACT AND I LAW IN C ONFIRMING THE ACTION OF THE AO IN REOPENING THE ASSESSMENT BY INVOKING THE PROVISIONS OF SECTION 147 OF THE INCOME TAX ACT, 1961 AND COMPLET ING THE ASSESSMENT COMMENCED UNDER INVALID EXERCISE OF POWERS U/S. 147 OF THE ACT. 2. THE LEARNED CIT(A) ERRED IN FACTS AND IN LAW IN CONFIRMING THE ACTION F THE AO IN DISALLOWING DEDUCTION ON THE FOLLOWING AM OUNTS ON THE GROUND THAT THEY DO NOT CONSTITUTE BUSINESS INCOME AND NOT ELIGIBLE FOR DEDUCTION U/S. 80IB(10) OF THE ACT. I) SALE OF BRICKS RS.6,46,369/- II) SALE OF BITUMEN RS.1,31,291/- III) MISCELLANEOUS INCOME. RS. 33,263/- RS.8,10,923/- 2.1 THE LEARNED AO ERRED IN FACT AND IN LAW IN REDU CING THE GROSS INCOME INSTEAD OF NET INCOME WHILE COMPUTING DEDUCT ION U/S. 80IB(10) OF THE ACT. 14. FIRST GROUND IS AGAINST INVOKING THE PROVISIONS OF SECTION 147 OF THE ACT AND COMPLETING THE ASSESSMENT PROCEEDINGS. 15. AT THE OUTSET, LD. AR OF THE ASSESSEE HAS STATE D THAT HE IS INSTRUCTED BY ASSESSEE NOT TO PRESS THIS ISSUE. HENCE, THE SAME I S DISMISSED AS NOT PRESSED. 16. NEXT GROUND IS AGAINST THE CONFIRMATION OF ACTI ON OF ASSESSING OFFICER IN DISALLOWANCE THE DEDUCTION ON THE FOLLOWING:- A) SALE OF BRICKS B) SALE OF BITUMEN C) MISCELLANEOUS INCOME 17. LD. AR OF THE ASSESSEE SUBMITTED THAT SALE OF B RICK REPRESENTS SALE OF DAMAGED BRICK IN VIEW OF CONSTRUCTION ACTIVITY UNDE RTAKEN BY THE ASSESSEE AND THIS INCOME IS MAINLY IN THE FORM OF SALE OF SC RAP GENERATED DURING THE MANUFACTURING PROCESS AND THEREFORE ELIGIBLE FOR DE DUCTION U/S. 80IB(10) OF THE ACT. HE SUBMITTED THAT SALE OF BITUMEN WAS PURCHASE D FOR BUILDING ROAD WITHIN THE HOUSING PROJECT AND THIS INCOME REPRESENTS REIM BURSEMENT OF COST AND NOT ITA NO.2183/A/10, 3300/A/09 & CO 1/A/10 A.YS. 07-08 & 06-07 DCIT CIR-2(2), BRD V. M/S. PRATHAM DEVELOPERS PAGE 8 INCOME. HE NOT PRESSED THE INCOME OF MISCELLANEOUS INCOME. ON THE CONTRARY, LD. DR OF THE REVENUE RELIED UPON THE ORDERS OF AUT HORITIES BELOW. 18. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT IN ALTERNATIVE AR GUMENTS OF LD. AR CONTENDED THAT NET INCOME MAY BE DISALLOWED INSTEAD OF GROSS INCOME AS THE ASSESSEE HAD INCURRED EXPENDITURE ON PURCHASE OF BRICK USED FOR CONSTRUCTION OF HOUSING PROJECT AND BITUMEN FOR MAKING ROAD OF HOUS ING PROJECT ALSO. AFTER CONSIDERING ALL ASPECTS OF THE MATTER, THESE ISSUES OF SALE OF BRICK AND SALE OF BITUMEN ARE REMITTED BACK TO THE FILE OF ASSESSING OFFICER EXCEPT MISCELLANEOUS INCOME TO EXAMINE WHETHER SALE OF BRI CK AND SALE OF BITUMEN IS A TRADING ACTIVITY OR SALE OF SCRAP AFTER EXAMINING THESE ASPECTS, THE AO MAY DECIDE AFRESH AFTER GIVING REASONABLE OPPORTUNITY O F BEING HEARD TO ASSESSEE. 19. IN THE RESULT, ASSESSEES CO IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 20. IN COMBINED RESULT, REVENUES APPEALS ARE DISMISSED THAT OF ASSESSEES CO IS PARTLY ALLOWED FOR STATISTICAL PUR POSES. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- (A.K.GARODIA) (KUL BHARAT) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, *DKP - 20/07/2012 !'# $ % & & & & '(()*+ '(()*+ '(()*+ '(()*+ !,* !,* !,* !,* / COPY OF ORDER FORWARDED TO:- 1. !+.) /0 / APPELLANT 2. '12/0 / RESPONDENT 3. $(4 2 25 / CONCERNED CIT 4. 2 25- !+.) / CIT (A) 5. *8 9.2 '(((4, 2 !+.).2 !(4, !'# $ / DR, ITAT, AHMEDABAD 6. 9 <= > ?) / GUARD FILE. ITA NO.2183/A/10, 3300/A/09 & CO 1/A/10 A.YS. 07-08 & 06-07 DCIT CIR-2(2), BRD V. M/S. PRATHAM DEVELOPERS PAGE 9 BY ORDER/ & , /TRUE COPY/ @+/' 2 + . 2 !+.).2 !(4, !'# $ % STRENGTHEN PREPARATION & DELIVERY O F ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 18/07 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE NO 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 18/07 4) DATE OF CORRECTION 5) DATE OF FURTHER CORRECTION 6) DATE OF INITIAL SIGN BY MEMBERS 19/07 7) ORDER UPLOADED ON 20/07 8) ORIGINAL DICTATION PAD-PART HAS BEEN ENCLOSED IN THE FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 20/07