The ITO, Ward-2(5), Baroda V. M/s. Shakti Developers, Baroda

ITA 1229/AHD/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9159 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 10 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 18-02-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 26-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Keywords: Tax effect

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI SHAILENDRA K. YADAV, JUDICIAL MEMBER AN D SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER ./ ITA NO. 1229/AHD/2011 / ASSESSMENT YEAR: 2007-08 THE INCOME TAX OFFICER, WARD-2(5) BARODA .. APPELLANT VS M/S. SHAKTI DEVELOPERS, SAUJANYA SOCIETY, VADSAR ROAD, BARODA .. RESPONDENT PAN : AAQFS 3259 K REVENUE BY : SMT. SONIA KUMAR, SR DR ASSESSEE(S) BY NONE / DATE OF HEARING 18/02/2016 /DATE OF PRONOUNCEMENT 22/03/2016 / O R D E R PER SHAILENDRA K. YADAV, JUDICIAL MEMBER: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-II, BARODA, DA TED 24.01.2011 FOR ASSESSMENT YEAR 2007-08, ON THE FOLLOWING GROUNDS:- 1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE CIT(APPEALS) ERRED IN DIRECTING THE ASSESSING OFFIC ER TO ALLOW THE DEDUCTION OF RS.15,02,964/- U/S 80IB(10) R.W.S. 80IB(1) OF THE INCOME-TAX ACT TO THE ASSESSEE IN VIEW OF THE DECIS ION OF THE HONBLE ITAT IN THE CASE OF M/S RADHE DEVELOPERS IN ITA NO.2482/AHD/2006, WITHOUT APPRECIATING THAT THE APP ROVAL BY THE LOCAL AUTHORITY AS WELL AS COMPLETION CERTIFICA TE WAS NOT GRANTED TO THE ASSESSEE BUT TO THE LANDOWNER AND TH E RIGHTS AND THE OBLIGATIONS UNDER THE SAID APPROVAL WERE NOT TR ANSFERABLE, ITA NO. 1229/AHD/2011 ITO VS. SHAKTI DEVELOPERS AY : 2007-08 2 AND THAT TRANSFER OF DWELLING UNITS IN FAVOUR OF TH E END-USERS WAS MADE BY THE LANDOWNER AND NOT BY THE ASSESSEE. 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(APPEALS) ERRED IN ALLOWING THE ALTERNATIVE GROUND AND IN DIRECTING THE ASSESSING OFFICER TO ALLOW PROPORT IONATE DEDUCTION U/S 80IB(10) ON THE AREA OF HOUSING PROJE CT WITHOUT APPRECIATING THAT THE ASSESSEE HAS CLEARLY VIOLATED THE CONDITIONS PRESCRIBED IN CLAUSE (D) OF SECTION 80IB(10) SINCE THE PROJECT INCLUDED CONSTRUCTION OF COMMERCIAL COMPLEX IS IN E XCESS OF 2000 SQ. FT. 3) WITH PREJUDICE, THE LD. CIT(APPEALS) ERRED IN ALLOW ING DEDUCTION U/S 80IB(10) IN RESPECT OF THE PROCEEDS A TTRIBUTABLE TO THE SALE OF UNUTILIZED FSI AND NOT TO THE DWELLING UNITS IN THE HOUSING PROJECTS, WHICH COULD NOT BE TERMED AS PROF ITS DERIVED FROM DEVELOPING AND BUILDING HOUSING PROJECTS, WHIC H COULD NOT BE TERMED AS PROFITS DERIVED FROM DEVELOPING AND BUILDING HOUSING PROJECTS IN TERMS OF THIS PROVISION. 4) THE APPELLANT CRAVES LEAVE TO ADD TO AMEND OR ALTER THE ABOVE GROUNDS AS MAY BE DEEMED NECESSARY. 2. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIV E AND PERUSED THE MATERIAL ON RECORD. ON PERUSING THE GROUNDS OF APPEAL RAISED BY THE REVENUE, WE FIND THAT REVENUE IS AGGRIEVED BY THE O RDER OF CIT(A) IN ALLOWING THE DEDUCTION OF RS.15,02,964/- U/S. 80IB( 10) OF THE ACT AND THE TAX EFFECT OF WHICH IS BELOW RS.10 LACS. AS PER TH E ANNOUNCEMENT OF CENTRAL BOARD OF DIRECT TAXES (CBDT) DATED 10.12.20 15 (CIRCULAR NO.21 OF 2015), NO DEPARTMENT APPEALS ARE TO BE FILED AGAINS T RELIEF GIVEN BY LD. CIT(A) BEFORE THE INCOME TAX APPELLATE TRIBUNAL UNL ESS THE TAX EFFECT, EXCLUDING INTEREST EXCEEDS RS.10 LACS AND IT FURTHE R STATES THAT THE INSTRUCTIONS WILL APPLY RETROSPECTIVELY TO THE PEND ING APPEALS. IN THE PRESENT CASE, SINCE IT IS AN UNDISPUTED FACT THAT T HE TAX EFFECT IS LESS THAN ITA NO. 1229/AHD/2011 ITO VS. SHAKTI DEVELOPERS AY : 2007-08 3 RS.10 LACS, WE ARE OF THE VIEW THAT THE MONETARY LI MIT PRESCRIBED BY THE INSTRUCTIONS OF THE AFORESAID CBDT CIRCULAR WOULD B E 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, WE DISMISS THIS APPEAL OF REVENUE WITHOUT EXPRESSING A NY OPINION ON MERITS OF THE CASE. 3. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED IN LIMINE. ORDER PRONOUNCED IN THE COURT ON 22 ND MARCH, 2016 AT AHMEDABAD. SD/- SD/- ANIL CHATURVEDI SHAILEND RA K. YADAV (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD; DATED 22/03/2016 BIJU T., PS !' #'$ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! ' ' # / CONCERNED CIT 4. ' ' # ( ) / THE CIT(A) 5. &'( ! , ' ! , / D R, ITAT, AHMEDABAD 6. (- . / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD