Appeal Details
Counselvise Citation
[2017] 130 COUNSELVISE.COM (IT) 9410 (ITAT-AHMEDABAD)
Assessee PAN
Bench
Appeal Number
CRN Number
Duration Of Justice
4 year(s) 7 month(s) 9 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
16-01-2017
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
SMC
Next Hearing Date
16-01-2017
Assessment Year
2007-2008
Appeal Filed On
06-06-2012
Judgement Text
, B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE S/SHRI S.S. GODARA, JM, AND MANISH BORAD, AM ./ITA.NO.1228/AHD/2012 ( / ASSTT YEAR :2007-08) ACIT(OSD), CIRCLE-3, AHMEDABAD VS. M/S.SUVAS INFRASTRUCTURE PVT. LTD. 4, CHITRAKOOT BUNGALOW, B/H. RAJPATH CLUB, BODAKDEV, AHMEDABAD PAN : AAICS5229E (APPELLANT) (RESPONDENT) / APPELLANT BY: SHRI NARENDRA SINGH, D.R / RESPONDENT BY: SHRI ANKIT TALSANIA, C.A / DATE OF HEARING 16-01-2017 /DATE OF PRONOUNCEMENT 16-01-2017 / O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER THE APPEAL OF REVENUE IS DIRECTED AGAINST THE ORD ER OF LD.COMMISSIONER INCOME-TAX (APPEALS)-XIV, AHMEDABAD DATED 21.03.2012 PASSED AGAINST THE ORDER U/S. 143(3) OF THE I.T. ACT, 1961(IN SHORT THE ACT) 22/12/2009 FRAMED BY DCIT(OSD), CIR CLE-8, AHMEDABAD 2. GRIEVANCES OF THE REVENUE, IN THIS APPEAL ARE AS UNDER:- ITA.NO.1228/AHD/2012 ASSESSMENT YEAR 2007-08 - 2 1. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XLV, AH MEDABAD HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE ASSESSING OFFICER TO A LLOW THE ASSESSEE'S CLAIM FOR DEDUCTION OF RS.39,60,437/- U/S. 80IB(10) OF THE I.T. ACT AND IN FURTHER DIRECTING THE ASSESSING OFFICER TO ALLOW PRO RATA DEDUCTION U/S.80LB(10) OF THE ACT ON THE UNITS WHOSE AREA IS BE LOW 1500 SQ.FT. 2. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XLV, AHMED ABAD HAS ERRED IN HOLDING THAT THE ASSESSEE FULFILLS THE CONDITIONS LAID DOWN FOR CLAIMING DEDUCTION U/S.80LB(10) EVEN WHEN THE LAND WAS IN THE N AME OF SATELLITE PUSHPAVADAN CO.-OPERATIVE HOUSING SOCIETY LTD., WHICH IS A SEPERATE LEGAL ENTITY IN THE EYE OF LAW AND THE ASSESSEE ENTERED INTO THE PROJECT BY A DEVELOPMENT AGREEMENT WITH THE SOCIETY. THE ENTIRE R ESPONSIBILITY TO EXECUTE THE HOUSING PROJECT AND ABIDE BY THE TERMS AND CONDITIO NS OF ITS APPROVAL RIGHT FROM THE INCEPTION OF THE PROJECT TILL ITS COMPLE TION RESTS WITH THE SOCIETY. THE LOCAL AUTHORITY HAD GRANTED PERMISSION FOR DEVELOP MENT TO THE . SOCIETY. ASSESSEE WAS JUST A CONTRACTOR OF THE LAND OWNERS CONSTRUCTING 78 RESIDENTIAL UNITS AND INDIVIDUAL BUNGLOW SIZE IN A TYPE 12 UNITS A ND IN B,B2 & B-3 TYPE 66 UNITS AND NOT A DEVELOPER. 3. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XIV, AHMED ABAD HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE ASSESSING OFFICER TO A LLOW THE DEPRECIATION ON CAR AMOUNTING TO RS.40,605/- 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XIV, AHMEDABAD OUGHT TO HAVE UPH ELD THE ORDER OF THE ASSESSING OFFICER. 5. IT IS THEREFORE, PRAYED THAT THE ORDER OF THE LD. CO MMISSIONER OF INCOME-TAX (APPEALS)-XIV, AHMEDABAD MAY BE SET-ASIDE AND THAT OF THE ORDER OF THE ASSESSING OFFICER BE RESTORED. 3. THIS APPEAL WAS PRESENTED ON 16/01/2017. ON 10.12.2015 THE CBDT HAS ISSUED INSTRUCTIONS BEARING NO. 21/2015 PR OHIBITING ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL T O THE TRIBUNAL AGAINST THE ORDER OF THE CIT(A) WHERE THE TAX EFFECT BY VIR TUE OF THE RELIEF GIVEN BY THE CIT(A) IS LESS THAN RS.10 LAKHS. THE INSTRUC TIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT, MEANING THERE BY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEAL ALSO. THE TAX EFFE CT ON DELETION OF THE TOTAL ADDITION IN THIS APPEAL IS RS.5,28,373/- WHIC H IS LESS THAN RS.10 LAKHS. THE PRESENT APPEAL DESERVES TO BE DISMISSED BEING TREATED TO BE FILED IN VIOLATION OF CBDT INSTRUCTIONS. THE CASE D OES NOT FALL WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE INSTRUCTIONS. I T IS FURTHER OBSERVED THAT SINCE, WHILE HEARING THE APPEAL, SUCH FACTORS WERE NOT CONSIDERED, THEREFORE, IN CASE, ON RE-VERIFICATION AT THE END O F THE AO, IT CAME TO THE NOTICE THAT THE TAX EFFECT IS MORE OR THEY FALL WIT HIN THE AMBIT OF ITA.NO.1228/AHD/2012 ASSESSMENT YEAR 2007-08 - 3 EXCEPTION PROVIDED IN THE INSTRUCTION, THEN THE DEP ARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICATION SHOULD BE FILED WITHIN LIMITATION PROVIDED IN LAW. IN VIEW OF THE ABOVE, THE APPEAL OF THE REVENUE IS DISMISSED. 4. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE COURT ON 16 TH JANUARY, 2017 AT AHMEDABAD. SD/- SD/- (S.S. GODARA) TRUE COPY JUDICIAL MEMBER (MANISH BOARD) ACCOUNTANT MEMBER AHMEDABAD; DATED, 16/01/2017 ! '!/ COPY OF THE ORDER FORWARDED TO : 1. $% / THE APPELLANT 2. &$% / THE RESPONDENT. 3. '(( ) * / CONCERNED CIT 4. ) * ( ) / THE CIT(A)- 5. !-. , ,012 /DR,ITAT, AHMEDABAD. 6. .3 45 / GUARD FILE. ) ' / BY ORDER, ' (0 (ASSTT.REGISTRAR) ITAT, AHMEDABAD
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