M/s. Satadhar Enterprises, Vapi V. The Income tax Officer,Ward-3, Valsad

ITA 107/AHD/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 60207 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-04-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 16-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL KUMAR SRDR
• Assessee Lawyers: S N L AGARWAL

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, A BENCH . .. . . .. . , !'# !'# !'# !'#, , , , $ $ $ $ %&'( %&'( %&'( %&'(, , , , )* + ) )* + ) )* + ) )* + ) # # # # BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND ANIL CHATURVEDI, ACCOUNTANT MEMBER) ITA NO.107/AHD/2012 [ASSTT.YEAR : 2008-2009] SATADHAR ENTERPRISES CHANDRALOK HOUSING SOCIETY NR.CINE PARK MULTIPLEX VAPI 36 191. PAN : AAPFS 8442 R /VS. ITO, WARD-3 VAPI. ( (( (-. -. -. -. / APPELLANT) ( (( (/0-. /0-. /0-. /0-. / RESPONDENT) 1& 2 3 )/ ASSESSEE BY : SHRI S.N.L. AGARWAL + 2 3 )/ REVENUE BY : SHRI RAHUL KUMAR, SR.DR 5 2 &(*/ DATE OF HEARING : 14 TH MARCH, 2012 678 2 &(*/ DATE OF PRONOUNCEMENT : 04-04-2012 )9 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORDER OF THE COMMISSION ER OF INCOME TAX (APPEALS), VALSAD FOR THE ASSESSMENT YEAR 2008-2009 . 2. THE GROUND NOS.1, 2 AND 3 OF THE ASSESSEES APPE AL READ AS UNDER: ITA NO.107/AHD/2012 -2- 1. BECAUSE THE AO ERRED IN LAW AND ON FACTS IN UPH OLDING THE ACTION OF THE AO IN DISALLOWING CLAIM OF TAX EX EMPTION AS PROVIDED U/S.80IB(10) OF THE IT ACT. 2 . BECAUSE THE AO ERRED IN LAW AND ON FACTS IN OBSER VING THAT THE SUBSTANTIAL CONSTRUCTION IN THE PROJECT IS COMMERCIAL IN NATURE AND HENCE THE PROJECT IS PRIMARILY COMMERCIA L IN NATURE IGNORING THE FACT THAT COMMERCIAL CONSTRUCTION IS N OT EVEN HALF OF THE RESIDENTIAL CONSTRUCTION. 3. BECUASE IN ANY CASE, THE LOWER AUTHORITIES ERRE D IN LAW AND ON FACTS IN NOT FOLLOWING THE ORDER OF THE HON BLE ITAT IN APPELLANTS OWN CASE FOR THE EARLIER ASSESSMENT YEA R THEREBY VIOLATION THE PRINCIPLE OF JUDICIAL PRECEDENCE. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ISSUE IN THE GROUNDS OF APPEAL IS COVERED BY THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR EARLIER ASSESSMENT YEARS 20 05-2006, 2006- 2007 AND 2007-2008 IN ITA NOS.1399, 1400 AND 2849/A HD/2010 DATED 30-9-2011 WHEREIN THE ISSUE WAS SET ASIDE TO THE FILE OF THE AO WITH CERTAIN DIRECTIONS. THE LEARNED DR HAS RELIE D ON THE ORDERS OF THE AO AND THE CIT(A). 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND ALSO THE ORDER OF THE TRI BUNAL IN ASSESSEES OWN CASE FOR EARLIER ASSESSMENT YEARS 20 05-2006, 2006- 2007 AND 2007-2008 DATED 30-9-2011 (SUPRA). WE FIND THAT THE ISSUE OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IS C OVERED WITH THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE EARLIER ASSESSMENT YEARS 2005-2006, 2006-2007 AND 2007-2008 DATED 30-9- 2011 (SUPRA) WHEREIN THE ISSUE WAS RESTORED TO THE FILE OF THE AO FOR DE NOVO ADJUDICATION. WE, BEING IN AGREEMENT WITH THE DEC ISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.YS. 2005-2006 , 2006-2007 AND ITA NO.107/AHD/2012 -3- 2007-2008 DATED 30-9-2011 (SUPRA) RESTORE THIS ISSU E OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT TO THE FILE OF TH E AO FOR DE NOVO ADJUDICATION IN ACCORDANCE WITH GUIDELINES GIVEN BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. BRAHMA ASS OCIATES, 239 CTR 30 (BOM) AND IN THE LIGHT OF THE DIRECTIONS OF THE TRIBUNAL IN THE CASE OF THE ASSESSEE FOR EARLIER ASSESSMENT YEARS. WE DIRECT ACCORDINGLY. 5. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( %&'( %&'( %&'( %&'( / ANIL CHATURVEDI) )* + )* + )* + )* + /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !'# !'# !'# !'# /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD