M/s. S.D. Developers, SILVASSA V. The Income Tax Officer, Vapi Ward-3, Vapi

ITA 1073/AHD/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0783 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 3 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 05-07-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 28-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANTHONY PORIATH HEARING CONCLU
• Assessee Lawyers: K N BHATT
• Section: 143(3); 80IB

Judgement Text

I.T.A. NO.: 1073/AHD/2015 ASSESSMENT YEARS: 2011 - 12 PAGE 1 OF 2 IN THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD SMC BENCH, AHMEDABAD [CORAM : PRAMOD KUMAR AM ] I.T.A. NO. : 1073/AHD/2015 ASSESSMENT YEAR S: 2011 - 12 S D DEVELOPERS ............APPELLANT [ABJFS2463F ] VS INCOME TAX OFFICER WARD 3, VAPI ........... RESPONDENT APPEARANCES BY K N BHATT FOR THE APPELLANT ANTHONY PORIATH FOR THE RESPONDENT HEARING CONCLUDED ON: 05 /07/16 ORDER PRONOUNCED ON : 16 /08/16 O R D E R 1. THIS IS AN APPEAL FILED BY THE ASSESSEE AND IS DIRECTED AGAINST THE ORDER D ATED 15 TH MARCH 2013 PASSED BY THE CIT(A) IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961, FOR THE ASSESSMENT YEAR 2008 - 09. 2. GRIEVANCE OF THE ASSESSEE, AS SET OUT IN THE MEMOR ANDUM OF APPEAL, IS AS FOLLOWS: IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) OUGHT TO HAVE ALLOWED THE CLAIM OF APPELLANT OF RS 2,46,928 UNDER SECTION 80IB OF INCOME TAX ACT, AND YOUR APPELLANT PRAYS THAT THE SAME BE ALLOWED AS CLAIMED.. 3. THE ASSESSEE IS ENGAGED IN THE BUSINESS AS BUILDERS AND DEVELOPERS. THE CLAIM MADE BY THE ASSESSEE UNDER SECTION 80IB(10) WAS DECLINED BY THE ASSESSING OFFICER FOR THE REASONS THAT (A) THE ENTIRE PROJECT WAS NOT COMPLETED WELL WITHIN THE TIME LIMIT I.E. BY 31 ST MARCH 2012; (B) THAT THERE WAS A DEVI ATION IN PLAN INASMUCH AS THE PROJECT WAS APPROVED AS RESIDENTIAL CUM COMMERCIAL PROJECT BUT ONLY RESIDENTIAL UNITS WERE BUILT BY THE ASSESSEE; AND (C) THAT ADJOINING FLATS HAVE BEEN SOLD TO THE RELATED PERSONS, WHICH IS NOW FORBIDDEN UNDER I.T.A. NO.: 1073/AHD/2015 ASSESSMENT YEARS: 2011 - 12 PAGE 2 OF 2 THE STATUTE. TH E ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A) BUT WITHOUT ANY SUCCESS. NOT SATISFIED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE ME. 4. I HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN T HE LIGHT OF THE APPLICABLE LEGAL POSITION. 5. AS LEARNED COUNSEL FOR THE ASSESSEE RIGHTLY POINTS OUT, NONE OF THE OBJECTIONS, WHICH HAVE FOUND FAVOUR WITH THE AUTHORITIES BELOW, ARE SUSTAINABLE IN LAW , AND, IN THIS CONTEXT, LEARNED COUNSEL S RELIANCE ON H ON BLE BOMBAY HIGH COURT S JUDGMENT IN THE CASE OF CIT VS VANDANA PROPERTIES . AS LONG AS THE PROJECT AS COMPLETED [(2012) 19 TAXMANN.COM 316 (BOM)] AND HON'BLE MADRAS HIGH COURT S JUDGMENT IN THE CASE OF VISWAS PROMOTERS PVT LTD VS ACIT [(2013) 39 TAXMAN N.COM 19 (MAD) IS INDEED WELL PLACED. AS REGARDS PARTIAL COMPLETION OF THE PROJECT, AS LONG AS THE COMPLETED PROJECT MEETS THE ELIGIBILITY CRITERION ON STANDALONE BASIS , NO OBJECTION CAN BE TAKEN TO THE PARTIAL COMPLETION OF THE PROJECT. ACCORDINGLY, COMPL ETION OF ENTIRE PROJECT IS NOT EVEN A CONDITION PRECEDENT FOR GRANT OF DEDUCTION UNDER SECTION 80IB(10). AS REGARDS ALLOTMENT OF ADJOINING FLATS TO RELATED PERSONS, THERE IS NO FINDING BY THE AO, EXCEPT FOR COMMONALITY OF SURNAME, AND, IN ANY EVENT, THIS C ONDITION IS BROUGHT ON THE STATUTE W.E .F. 1 ST APRIL 2009 WHEREAS RELATED SALES, AND EVEN PAYMENTS, WERE COMPLETED ON 19 TH DECEMBER 2008. THE OBJECTIONS, THEREFORE, DONOT MEET OUR APPROVAL. 6. IN VIEW OF THE ABOVE DISCUSSIONS, I UPHOLD THE PLEA OF THE ASSE SSEE AND DIRECT THE ASSESSING OFFICER TO GRANT 80IB(10) DEDUCTION AMOUNTING TO RS 2,46,928. 7. THE APPEAL IS ALLOWED. PRONOUNCED IN THE OPEN COURT TODAY ON 16 TH DAY OF AUGUST, 2016. SD/ - PRAMOD KUMAR (ACCOUNTANT MEMBER) DATED: 16 TH DAY OF AUGUST ,2016 . COPIES TO : (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AH MEDABAD