The ITO, Ward-9(1), Ahmedabad V. M/s. Sharda Corporation, Ahmedabad

ITA 1174/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1326 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 28-06-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 29-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ANIL BRAHMKSHATRIYA
• Keywords: Tax effect

Judgement Text

,, IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ I.T.A. NO.1174/AHD/2012 ( / ASSESSMENT YEAR : 2007-08) THE ITO WARD-9(1) AHMEDABAD / VS. M/S.SHARDA CORPORATION RAJ RATNA CO-OP. HOUSING SOCIETY, B/H. ASHIRWAD HOTEL JASODANAGAR CROSS ROAD AHMEDABAD ./ ./ PAN/GIR NO. : AAZFS 4404 R ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI KEYUR PATEL, SR.DR / RESPONDENT BY : SHRI ANIL BRAHMKSHATRIYA, AR / DATE OF HEARING 28/06/2016 !'# / DATE OF PRONOUNCEMENT 29/06/2016 / O R D E R PER SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-XV, AHMEDABAD DATED 29/03/2012 FOR THE ASSESSMENT YEAR 2007-08. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- ITA NO.1174/AHD /2012 ITO VS. M/S.SHARDA CORPORATION ASST.YEAR 2007-08 - 2 - 1. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV, AH MEDABAD HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE ASSESSING OFFICER TO ALLOW THE ASSESSEE'S CLAIM FOR DEDUCTION OF RS.14,49,708/- U/S.80IB(10) OF THE ACT. 2. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV, AH MEDABAD HAS ERRED IN HOLDING THAT THE ASSESSEE FULFILLS THE CONDITIONS L AID DOWN FOR CLAIMING DEDUCTION U/S.80IB(10) EVEN WHEN THE LAND WAS IN TH E NAME OF RAJRATNA CO- OP.HOUSING SOCIETY LTD., WHICH IS SEPARATE LEGAL EN TITY IN THE EYE OF LAW AND THE ASSESSEE ENTERED INTO THE PROJECT BY A DEVELOPM ENT AGREEMENT WITH THE SOCIETY. THE ENTIRE RESPONSIBILITY TO EXECUTE THE H OUSING PROJECT AND ABIDE BY THE TERMS AND CONDITIONS OF ITS APPROVAL RIGHT FROM THE INCEPTION OF THE PROJECT TILL ITS COMPLETION RESTS WITH THE SOCIETY. THE LOC AL AUTHORITY HAD GRANTED PERMISSION FOR DEVELOPMENT TO THE SOCIETY. ASSESSEE WAS JUST A CONTRACTOR OF THE LAND OWNERS CONSTRUCTING RESIDENTIAL UNITS AND NOT A DEVELOPER. 3. AT THE OUTSET, THE LD.AR SUBMITTED THAT THE APPEAL OF THE REVENUE IS NOT MAINTAINABLE ON ACCOUNT OF LOW TAX EFFECT AND, THEREFORE, BE DISMISSED THE LD. SR.D.R. FAIRLY ADMITTED THAT TH E TAX EFFECT ON THE IMPUGNED ADDITIONS IS LESS THAN THE LIMIT PRESCRIBE D BY THE CBDT CIRCULAR OF 10/12/2015 BEARING NO. 21 OF 2015. 4. WE HAVE HEARD THE PARTIES AND PERUSED THE MATERI ALS AVAILABLE ON RECORD. ON PERUSING THE GROUNDS OF APPEAL RAISED B Y THE REVENUE, WE FIND THAT REVENUE IS AGGRIEVED IN DIRECTING THE ASS ESSING OFFICER TO ALLOW THE ASSESSEES CLAIM FOR DEDUCTION OF RS.14,49,708/ -, THE TAX EFFECT OF WHICH IS BELOW RS.10 LACS. AS PER THE ANNOUNCEMENT OF CENTRAL BOARD OF DIRECT TAXES (CBDT) DATED 10/12/2015 (CIRCULAR NO. 21 OF 2015), NO DEPARTMENT APPEALS ARE TO BE FILED AGAINST RELIEF G IVEN BY LD. CIT(A) BEFORE THE INCOME TAX TRIBUNAL UNLESS THE TAX EFFEC T, EXCLUDING INTEREST EXCEEDS RS. 10 LACS AND IT FURTHER STATES THAT THE INSTRUCTIONS WILL APPLY ITA NO.1174/AHD /2012 ITO VS. M/S.SHARDA CORPORATION ASST.YEAR 2007-08 - 3 - RETROSPECTIVELY TO THE PENDING APPEALS. IN THE PRES ENT CASE, SINCE IT IS AN UNDISPUTED FACT THAT ON THE ADDITIONS WHICH ARE IN DISPUTE, THE TAX EFFECT IS LESS THAN RS. 10 LACS AND IN THE ABSENCE OF ANY MAT ERIAL ON RECORD BY THE REVENUE TO DEMONSTRATE THAT THE ISSUE IN THE PRESEN T APPEAL IS COVERED BY EXEMPTIONS SPECIFIED IN CLAUSE (8) OF THE AFORESAID CBDT CIRCULAR, WE ARE OF THE VIEW THAT THE MONETARY LIMIT PRESCRIBED BY THE INSTRUCTIONS OF THE AFORESAID CBDT CIRCULAR WOULD BE APPLICABLE TO THE PRESENT APPEAL OF THE DEPARTMENT AND THEREFORE THE PRESENT APPEAL IS NOT MAINTAINABLE ON ACCOUNT OF LOW TAX EFFECT. IN SUCH CIRCUMSTANCES, W E DISMISS THE APPEAL OF REVENUE WITHOUT EXPRESSING ANY OPINION ON MERITS OF THE CASE. HOWEVER, IN CASE THERE IS ANY ERROR IN THE COMPUTAT ION OF THE TAX EFFECT INVOLVED OR IF FOR ANY REASON, THE AFORESAID CBDT C IRCULAR IS NOT APPLICABLE, IT WOULD BE OPEN TO THE REVENUE TO SEEK REVIVAL OF THE APPEAL. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 29 /06/2016 SD/- SD/- ( KUL BHARAT ) ( ANIL CHATURVEDI ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 29/ 06 /2016 &.., .(../ T.C. NAIR, SR. PS ITA NO.1174/AHD /2012 ITO VS. M/S.SHARDA CORPORATION ASST.YEAR 2007-08 - 4 - !'#$#! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. )*+ , / CONCERNED CIT 4. , ( ) / THE CIT(A)-XV, AHMEDABAD 5. /01 ((*+ , *+# , ) / DR, ITAT, AHMEDABAD 6. 145 6 / GUARD FILE. / BY ORDER, / ( //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 28.6.16 (COVERED MATTER) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 28.6.16 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.29.6.16 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 29.6.16 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER