ACIT, CHENNAI V. ETA Karnataka Estates Ltd., CHENNAI

ITA 1231/CHNY/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 4328 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-06-2017
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 01-05-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 05-05-2016
• Court: TRIBUNAL
• Department Lawyers: SUPRIYO PAL
• Assessee Lawyers: G BASKAR
• Keywords: Competent authority

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : CHENNAI , ! ' ! # . $% & '( BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY , JUDICIAL MEMBER ./ I.T.A.NOS.1231 & 1232/MDS./2016 / ASSESSMENT YEARS : 2009-10 & 2012-13 THE ACIT, COMPANY CIRCLE 2(1), CHENNAI. VS. M/S.ETA KARNATAKA ESTATES LTD ., CHENNAI CITI CENTRE, 4 TH FLOOR, 10/11, RADHAKRISHNAN SALAI, MYLAPORE, CHENNAI 600 004. [PAN AACCB 0947 J] ( )* / APPELLANT) ( +,)* /RESPONDENT) / APPELLANT BY : MR.SUPRIYO PAL, JCIT, DR /RESPONDENT BY : MR.G.BASKAR, ADVOCATE / DATE OF HEARING : 09 - 05 - 2017 / DATE OF PRONOUNCEMENT : 02.06 - 2017 - / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THESE TWO APPEALS OF THE REVENUE ARE DIRECTED AG AINST THE COMMON ORDER OF THE COMMISSIONER OF INCOME-TAX (AP PEALS)-6, CHENNAI DATED 29.02.2016 PERTAINING TO ASSESSMEN T YEARS 2009-10 & 2012-13. ITA NOS.1231 & 1232/MDS./16 :- 2 -: 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS IN BOTH THE APPEALS. 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS CONTRARY TO THE LAW AND FACTS OF THE CASE. 2.1. THE CIT(A) OUGHT TO HAVE SUSTAINED THE DISALLO WANCE MADE U/S 80 IB(10) AS THE ASSESSEE HAD NOT PRODUCED THE COMPLE TION CERTIFICATE FROM THE COMPETENT AUTHORITY AS LAID DOWN IN SECTIO N 801B(10). 2.2. THE CIT(A) OUGHT TO HAVE APPRECIATED THAT THE ASSESSEE, FOR THE FIRST TIME THE ASSESSEE HAD PRODUCED THE DETAILS OF THE EXPENDITURE INCURRED DURING VARIOUS YEARS FROM 2005-06 TO 2009- 10 WHICH WERE NOT PRODUCED BEFORE THE AC AT THE TIME OF ASSESSMEN T. THE CIT(A) OUGHT TO HAVE INVOKED THE PROVISIONS OF RULE 46A BE FORE ADMITTING THE FRESH EVIDENCES. 2.3. THE RELIED UPON DECISIONS IN THE CASE OF SHRAV ANEE CONSTRUCTIONS, (ITA NO.421 & 422/2009) HAS NOT REACHED FINALITY AN D SLP IS PENDING BEFORE THE HONBLE SUPREME COURT TN SLP(CIVIL) NO.2 2450 OF 2011 ALONG WITH OTHER CASES. THE RELIED UPON DECISION IN THE CASE OF LAVANYAA PROPERTY DEVELOPERS ALSO HAS NOT BEEN ACCE PTED BY THE DEPARTMENT AND FURTHER APPEAL BEFORE THE HONBLE HI GH COURT IS PENDING IN TCA NO.222 OF 2014. 3. FOR THESE AND OTHER GROUNDS THAT MAY BE ADDUCED AT THE TIME OF HEARING, IT IS PRAYED THAT THE ORDER OF THE COMMISS IONER OF INCOME TAX (APPEALS) BE SET ASIDE AND THAT OF THE ASSESSIN G OFFICER BE RESTORED. ITA NOS.1231 & 1232/MDS./16 :- 3 -: 3. AT THE TIME OF HEARING, LD.D.R SUBMITTED THAT T HE ASSESSEE HAS FURNISHED THE YEAR-WISE DETAILED BREAK-UP OF THE DE VELOPMENT EXPENDITURE BEFORE THE LD.CIT(A). THE BROAD HEADS U NDER WHICH DEVELOPMENT WORK IS REPORTED TO INCLUDE SITE DEVELO PMENT (CONSTRUCTION), SITE DEVELOPMENT (LABOUR CHARGES), ROAD WIDENING WORK, SITE DEVELOPMENT (ELECTRICITY) TECHNICAL AND PROFESSIONAL CONSULTANCY CHARGES, KHATA AND ENCUMBERANCE CERTIFI CATE FEES, BUILDING PERMIT FEES, ETC. THESE DETAILS ARE NOT M ADE AVAILABLE TO THE LD. ASSESSING OFFICER. BEING SO, THERE IS A VIOLATI ON OF RULE-46A OF THE INCOME TAX RULES, 1962. HENCE, LD.D.R PRAYED THAT T HIS ISSUE MAY BE REMITTED BACK TO THE FILE OF LD. ASSESSING OFFICER FOR FRESH CONSIDERATION. 3.1 FURTHER, LD.D.R RELIED ON THE DECISION OF CO- ORDINATE BENCH OF TRIBUNAL, HYDERABAD IN THE CASE OF SAINATH ESTATES (P.) LTD. VS. DCIT IN [2013] 142 ITD 370 (ITAT[HYD]) WHEREIN HELD THAT THE ASSESSEE HAVING FAILED TO SUBMIT THE COMPLETION CERTIFICATE, DEDUCTION U/S 80IB(10) CANNOT BE ALLOWED. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. WE ACCEDE THE REQUEST OF THE LD.D.R. ACCO RDINGLY, THE ENTIRE ISSUE IS REMITTED TO THE FILE OF LD. ASSESSING OFFI CER FOR FRESH ITA NOS.1231 & 1232/MDS./16 :- 4 -: CONSIDERATION WITHOUT COMMENTING ANYTHING ON THE ME RIT OF THE ISSUE RAISED BY THE REVENUE. 5. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES ORDER PRONOUNCED ON 02 ND JUNE, 2017, AT CHENNAI. SD/ - SD/ - ! ' # . $ %& ' ( DUVVURU RL REDDY ) ) & / JUDICIAL MEMBER ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER () / CHENNAI *+ / DATED: 02 ND JUNE, 2017. K S SUNDARAM +,-- ./-0/ / COPY TO: - 1 . / APPELLANT 3. - 1-!' / CIT(A) 5. /23- 4 / DR 2. / RESPONDENT 4. - 1 / CIT 6. 3&-5 / GF