Shri Priyavadhan Panachand Shah, Ahmedabad V. The Income tax Officer,Ward-9(1), Ahmedabad

CO 67/AHD/2009

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 7907 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 19 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 12-10-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 22-08-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 23-04-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K GUPTA
• Assessee Lawyers: S N DIVETIA
• Section: 143(3); 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD BEFORE SHRI, A.K.GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.2051/AHD/2010 & ITA NO.862/AHD/2009 AND C.O. NO.67/AHD/2009 (A/O ITA NO.862/AHD/2009) ASSESSMENT YEARS :2006-07 & 2005-06 INCOME TAX OFFICER WARD-9(1), AHMEDABAD PRIYAVADHAN PANACHAND SHAH PROP. PRIYAVADHAN HOUSING, 2 ND FLOOR BHAGWATI CHAMBERS, ASHRAM ROAD, AHMEDABAD [ PAN NO.ALNPS 5954K ] V/S . V/S . PRIYAVADHAN PANACHAND SHAH PROP. PRIYAVADHAN HOUSING, 2 ND FLOOR BHAGWATI CHAMBERS, ASHRAM ROAD, AHMEDABAD INCOME TAX OFFICER, WARD-9(1), AHMEDABAD . / APPELLANT .. / RESPONDENT) /BY ASSESSEE SHRI S.N. DIVETIA, AR /BY REVENUE SHRI S.K. GUPTA, DR /DATE OF HEARING 22-08-2012 ! /DATE OF PRONOUNCEMENT 12-10-2012 O R D E R PER KUL BHARAT, JUDICIAL MEMBER:- TWO APPEALS FILED BY THE REVENUE PERTAINING TO ASS ESSMENT YEARS (AY) 2006-07 & 2005-06 AND ASSESSEE FILED CROSS OBJECTIO N (CO) PERTAINS TO AY 2005-06 ARE DIRECTED AGAINST DIFFERENT ORDERS OF CO MMISSIONER OF INCOME- ITA NO.2051/AHD/10 & 862/AHD/09 & CO. 67/AHD/09 A. YS.06-07 & 05-06 ITO WD-9(1) ABD V. PRIYAVADAN P SHAH PAGE 2 TAX(APPEALS)-XV, AHMEDABAD (CIT(A) FOR SHORT) DAT ED 13-04-2012 AND 07- 01-2009. FIRST WE TAKE UP ITA NO.862/AHD/2009 A.Y.05-06. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUND OF A PPEAL:- 1.THE LD COMMISSIONER OF INCOME-TAX(A)- XV, AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DELE TING THE DISALLOWANCE AMOUNTING TO RS.1,37,48,745/- MADE BY THE A.O U/S. 80IB(10) OF THE ACT. 3. BRIEF FACTS ARE THAT ASSESSEE IS A ORGANIZER-CUM -PROJECT CONSULTANT AND CASE OF THE ASSESSEE WAS TAKEN UP FOR SCRUTINY ASSE SSMENT AND ASSESSMENT U/S 143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED WHEREBY THE ASSESSING OFFICER (AO) DISAL LOWED THE DEDUCTION CLAIMED U/S. 80IB(10) OF THE ACT. THE ASSESSEE FEEL ING AGGRIEVED BY THIS ORDER FILED APPEAL BEFORE LD. CIT(A), WHO AFTER CONSIDERI NG THE SUBMISSION OF THE ASSESSEE ALLOWED THE APPEAL. 4. NOW THE REVENUE IS IN APPEAL BEFORE US AGAINST T HE DELETION OF DISALLOWANCE U/S. 80IB(10) OF THE ACT. LD. DR SUBMI TTED THAT THE LD. CIT(A) FAILED TO ADDRESS THE OBJECTION OF THE ASSESSING OF FICER AND WRONGLY APPLIED THE DECISION OF HONBLE ITAT RENDERED IN ITA NO.1576/AHD/2005 . ON THE OTHER HAND, LD. AR OF THE ASSESSEE SUBMITTED THAT T HE ISSUE HAS BEEN DECIDED BY THE HONBLE ITAT IN FAVOUR OF ASSESSEE AND HE SU BMITTED THAT LD. CIT(A) HAS RIGHTLY FOLLOWED THE ORDER OF HIS PREDECESSOR P ASSED IN ASSESSEES OWN CASE. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT ASSESSING OFFICER HAS DECLI NED DEDUCTION ON THE BASIS THAT ASSESSEE IS A PROJECT CONSULTANT/ORGANIZATION AND NOT AN UNDERTAKING AS PER DEVELOPMENT AGREEMENT ENTERED BETWEEN THE ASSES SEE AND PRIYADARSHANA CO-OP HOUSING SOCIETY. ANOTHER OBJECT ION OF THE AO WAS THAT THE BLOCK-A WAS NOT COMPLETED BEFORE 31-3-2003 AND FORM 3CD REPORT SHOWS THAT AUDITORS EXPRESSED OPINION ON THE BASIS OF TH E CLAIM OF THE ASSESSEE. ITA NO.2051/AHD/10 & 862/AHD/09 & CO. 67/AHD/09 A. YS.06-07 & 05-06 ITO WD-9(1) ABD V. PRIYAVADAN P SHAH PAGE 3 THE ASSESSEE DID NOT COMPLETE THE CONSTRUCTION WORK . WE FIND THAT THIS OBJECTIONS OF THE AO HAS NOT BEEN ADDRESSED BY THE LD. CIT(A) AND LD. CIT(A) HAS SIMPLY OBSERVED AT PAGES 5 AND 6 OF HIS ORDER, WHICH REPRODUCED HEREINBELOW:- THE APPELLANT IS CLAIMING DEDUCTION SINCE A.Y. 200 1-02 HONBLE ITAT AHMEDABAD BENCH C HAS FOUND THE ASSESSEE ELIGIBLE FOR 80IB DEDUCTION IN A.Y. 2001-02 VIDE ORDER DATED 12-4-200 4, WHEREIN IT HAS TAKEN NOTE OF THE STATUS OF THE ASSESSEE, DEVELOPME NT AGREEMENT ENTERED BY HIM WITH THE HOUSING SOCIETY AND COMPLET ION OF BLOCK A OUT OF THE ENTIRE BHAGWATI NAGAR PROJECT. THE DEPARTMEN T IN SUBSEQUENT A.YS. 2002-03, 2003-04, 2004-05 HAS ALSO ALLOWED 80 IB(10) DEDUCTION, NOW IN A.Y. 2005-06 THE AO IS CONCLUDING THAT THE A SSESSEE IS NOT ELIGIBLE FOR 80IB(10) DEDUCTION. BLOCK A IS NOT IN PICTURE IN A.Y 2005-06, THE DEDUCTION HAS BEEN CLAIMED ON OTHER BLOCKS. FOR M 10CCB REPORT HAS BEEN FIELD ALONG WITH LETTER DATED 5-1-2009 IN THE APPELLATE PROCEEDINGS. IN MY VIEW ONCE IN A.Y. 2001-02 ITAT H AS HELD THE ASSESSEE TO BE ELIGIBLE FOR DEDUCTION THE ASSESSEE IS ENTITLED FOR THIS DEDUCTION IN A.Y. 2005-06 ALSO. THE REASONS GIVEN B Y THE AO DO NOT NEGATE THE DECISION OF HONBLE JURISDICTIONAL ITAT, THEREFORE, THE AO IS DIRECTED TO ALLOW THE DEDUCTION U/S. 80IB(10). IT IS NOT CLEAR WHETHER THESE OBJECTIONS WERE ALSO RAISED IN A.Y 2001-02. THE LD. CIT(A) HAS NOT GIVEN ANY FINDING TO THIS EFFECT , MOREOVER, HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. RADHE DEVELOPERS (2011) 341 ITR 403 (GUJ) HAS DECIDED THE ISSUE OF ELIGIBILITY OF DEDUCTION. SINCE THE JUDGMENT WAS NOT AVAILABLE AT THE TIME OF PASSING T HE IMPUGNED ORDER AND IN VIEW OF THIS IT WOULD BE IN THE INTEREST OF JUSTICE THAT MATTER IS RESTORED BACK TO THE FILE OF LD. CIT(A) TO DECIDE AFRESH AFTER EXAMI NING ALL OBJECTIONS OF THE ASSESSING OFFICER IN THE LIGHT OF THE JUDGMENT OF H ONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF RADHE DEVELOPERS & OTHERS (SUPRA) THIS GROUND OF THE REVENUES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE S. 6. IN THE RESULT, REVENUES APPEAL IS ALLOWED FOR S TATISTICAL PURPOSES. COMING TO REVENUES APPEAL ITA NO.2051/AHD/2010 (A. Y.06-07). ITA NO.2051/AHD/10 & 862/AHD/09 & CO. 67/AHD/09 A. YS.06-07 & 05-06 ITO WD-9(1) ABD V. PRIYAVADAN P SHAH PAGE 4 7. TAKING A CONSISTENT VIEW IN REVENUES APPEAL IN ITA NO.862/AHD/2009 OF THIS ORDER IN PARA-4 & 5 THE GROUND OF REVENUES APPEAL IS ALSO ALLOWED FOR STATISTICAL PURPOSED AS INDICATED ABOVE. 8. IN THE RESULT, REVENUES APPEAL IS ALLOWED FOR S TATISTICAL PURPOSES. COMING TO ASSESSEES CO NO.67/AHD/2009 (A.Y. 05-06) 9. THE ASSESSEE HAS RAISED THE GROUND OF THE CO. 1. THE LD. CIT(A) OUGHT TO HAVE ALLOWED THE DEDUCT ION U/S 80-I(10) TO THE EXTENT OF RS.1,39,95,590 INSTEAD OF RS.1,37,48, 745. 10. LD. COUNSEL FOR THE ASSESSEE UNDER THE INSTRUCT ION OF THE ASSESSEE SUBMITTED THAT HE DOES NOT WISH TO PRESS THE CO, HE NCE, SAME IS TREATED AS NOT PRESSED. 11. IN THE RESULT, ASSESSEES CO IS DISMISSED AS NO T PRESSED 12. I N COMBINED RESULT, BOTH THE APPEALS OF REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES AND THAT OF ASSESSEES CO IS D ISMISSED AS NOT PRESSED. 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 '#$- 12/10/2012 )*+ , - - - - ../ ../ ../ ../ 0/ 0/ 0/ 0/ / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. #+#.3 4 / CONCERNED CIT 4. 4- / CIT (A) ITA NO.2051/AHD/10 & 862/AHD/09 & CO. 67/AHD/09 A. YS.06-07 & 05-06 ITO WD-9(1) ABD V. PRIYAVADAN P SHAH PAGE 5 5. / 78 ...3, .3!, )*+ / DR, ITAT, AHMEDABAD 6. 8;< => / GUARD FILE. BY ORDER/ - , /TRUE COPY/ ?/) # .3!, )*+ , STRENGTHEN PREPARATION & DELIVERY O F ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 04/10 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE NO 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 05/10 4) DATE OF CORRECTION 09/10 5) DATE OF FURTHER CORRECTION 6) DATE OF INITIAL SIGN BY MEMBERS 10/10 7) ORDER UPLOADED ON 12/10 8) ORIGINAL DICTATION PAD-PART HAS BEEN ENCLOSED IN THE FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 12/10