ACIT, Circle-6(1), Hyd, Hyderabad V. Annapurna Builders, Hyd, Hyderabad

ITA 1268/HYD/2015

• Counselvise Citation: 126822514 RSA 2015
• Duration Of Justice: 1 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 04-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KONDA RAMESH
• Section: 143(3); 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A : HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER ITA.NO.1268/HYD/2015 ASSESSMENT YEAR 2012-2013 THE ACIT, CIRCLE 6(1), HYDERABAD. VS. M/S. ANNAPURNA BUILDERS, HYDERABAD. PAN AAEFA9477F (APPELLANT) (RESPONDENT) FOR REVENUE : MR. KONDA RAMESH FOR ASSESSEE : MR. K.C. DEVDAS DATE OF HEARING : 17.12.2015 DATE OF PRONOUNCEMENT : 23.12.2015 ORDER PER SMT. P. MADHAVI DEVI, J.M. THIS IS REVENUES APPEAL FOR THE A.Y. 2012-2013. I N THIS APPEAL, THE REVENUE IS AGGRIEVED BY THE ORDER OF THE LD. CIT(A) IN ALLOWING THE CLAIM OF DEDUCTION UNDER SECTION 80IA(4)(III) OF THE I.T. ACT, 1961. THE REV ENUE HAS RAISED THE FOLLOWING GROUNDS IN SUPPORT OF ITS CONT ENTION. 1. THE LEARNED CIT(APPEALS) ERRED BOTH IN LAW AND ON FACTS OF THE CASE. 2. THE LD. CIT(A) DECISION THAT THE APPELLANT CANNOT BE DENIED CLAIM OF DEDUCTION U/S 80IA(4)(III), UNTI L THE APPROVAL IS WITHDRAWN BY THE CENTRAL GOVT./CBDT, IS ERRONEOUS. 2 ITA.NO.1268/HYD/2015 M/S. ANNAPURNA BUILDERS, HYDERABAD. 3. THE LD. CIT(A) FAILED TO APPRECIATE THE FACT THAT T HE SAID APPROVAL IS SUBJECT TO SATISFACTION OF CONDITIONS LAID DOWN IN STATUTE AND VIOLATION OF CONDITIONS WOULD COMPEL THE A.O. TO DENY THE CLAIM. 4. THE LD. CIT(A) FAILED TO APPRECIATE THE FACT THAT I T IS BOTH THE PREROGATIVE AND RESPONSIBILITY OF THE A.O. TO EXAMINE WHETHER THE CONDITIONS SPECIFIED THEREIN ARE VIOLATED OR NOT AND TO DISALLOW THE CLAIM IF FOUND TO BE INELIGIBLE. 5. ANY OTHER GROUND(S) THAT MAY BE URGED AT THE TIME OF HEARING. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FIRM FURNISHED ITS RETURN OF INCOME FOR THE A.Y. 20 12-2013 ON 29.09.2013 DECLARING TOTAL INCOME OF RS.1,33,66, 660 AFTER CLAIMING DEDUCTION OF RS.7,95,59,911 UNDER SE CTION 80IA(4)(III) OF THE I.T. ACT. DURING THE ASSESSMENT PROCEEDINGS UNDER SECTION 143(3) OF THE I.T. ACT, T HE A.O. OBSERVED THAT THE ASSESSEE FIRM HAS CONSTRUCTED A BUILDING CALLED WHITE HOUSE AT BEGUMPET, HYDERABA D AFTER OBTAINING PERMISSION FROM THE MUNICIPAL CORPORATION OF HYDERABAD. HE OBSERVED THAT THE TWO BLOCKS THEREIN ARE COMMERCIAL IN NATURE AND THE ASS ESSEE FIRM HAS SOLD SOME OF THE UNITS WHILE SOME OF THE U NITS ARE LET OUT. THE A.O. OBSERVED THAT IN THE MONTH OF JUNE, 2004, THE ASSESSEE FIRM APPLIED FOR PERMISSION TO T HE MUNICIPAL CORPORATION FOR CONSTRUCTION OF BLOCK-3 O F WHITE HOUSE BUILDING FOR WHICH, THE MUNICIPAL CORPORATION OF HYDERABAD ACCORDED PERMISSION. HE OBSERVED THAT IN RESPECT OF BLOCK-3 OF THE WHITE HO USE, 3 ITA.NO.1268/HYD/2015 M/S. ANNAPURNA BUILDERS, HYDERABAD. THE ASSESSEE FIRM HAS FILED AN APPLICATION TO THE M INISTRY OF COMMERCE AND INDUSTRY SEEKING APPROVAL FOR SETTI NG UP OF NEW INDUSTRIAL PARK IN TERMS OF THE INDUSTRIAL P ARK SCHEME, 2002. FROM THE SAID DETAILS, THE A.O. OBSER VED THAT THE ASSESSEE GOT THE PERMISSION TO CONSTRUCT A N AREA OF 21,530.56 SQ. METRES WHEREAS, IN THE APPLICATION FILED BEFORE MINISTRY OF COMMERCE AND INDUSTRY, THE ASSES SEE HAS MENTIONED THE TOTAL AREA OF INDUSTRIAL PARK AS 26,130.99 SQ. METRES WHICH IS INCORRECT. HE FURTHER OBSERVED THAT THE MINISTRY OF COMMERCE AND FINANCE AFTER CONSIDERING THE APPLICATION AND PROPOSALS SUBMITTED BY THE ASSESSEE, VIDE ITS LETTER DATED 25.09.2006 ACCO RDED PERMISSION FOR SETTING-UP OF INDUSTRIAL PARK AND CONSEQUENT THERETO, THE ASSESSEE HAS APPLIED TO CBD T FOR ITS APPROVAL. HE OBSERVED THAT AFTER CONSIDERING APPLICATION FILED BY THE ASSESSEE, THE CBDT VIDE NOTIFICATION DATED 22.12.2006 APPROVED THE DEVELOPM ENT OF THE NEW PARK. HE OBSERVED THAT IN ACCORDANCE WIT H THE APPROVAL GRANTED BY THE MINISTRY OF COMMERCE AND INDUSTRY AND THE CBDT, THE ASSESSEE CLAIMED DEDUCTI ON UNDER SECTION 80IA OF THE ACT. HE OBSERVED THAT THE RE WAS A SURVEY OPERATION UNDER SECTION 133A OF THE ACT IN THE BUSINESS PREMISES OF THE ASSESSEE ON 11.08.2011 DUR ING THE COURSE OF WHICH, THE CLAIM MADE BY THE ASSESSEE UNDER SECTION 80IA FOR VARIOUS ASSESSMENT YEARS WAS VERIFIED AT THE PREMISES AND DETAILED EXAMINATION W AS ALSO CARRIED OUT AS TO WHETHER THE CONDITIONS STIPULATED BY THE MINISTRY OF COMMERCE AND INDUSTRIES HAVE BEEN ADHER ED TO BY THE ASSESSEE AND IT WAS NOTICED THAT THE ASSE SSEE 4 ITA.NO.1268/HYD/2015 M/S. ANNAPURNA BUILDERS, HYDERABAD. HAS VIOLATED THE CONDITIONS LAID DOWN BY THE MINIST RY OF COMMERCE AND INDUSTRIES AND ALSO DEVIATED FROM THE PROPOSALS SUBMITTED AND APPROVED BY THE MINISTRY. I N VIEW OF THE SAME, THE A.O. CAME TO THE CONCLUSION T HAT THE ASSESSEE IS NOT ELIGIBLE FOR THE CLAIM OF DEDUCTION UNDER SECTION 80IA(4)(III) OF THE I.T. ACT, 1961. AGGRIEV ED BY THE ORDER OF THE A.O., THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WHO GRANTED RELIEF TO THE ASSESSEE B Y FOLLOWING THE DECISION OF THIS TRIBUNAL IN THE ASSE SSEES OWN CASE FOR THE A.YS. 2007-08 AND 2011-12. AGGRIEV ED BY THE RELIEF GRANTED BY THE LD. CIT(A), THE REVENU E IS IN APPEAL BEFORE US. 3. AT THE TIME OF HEARING, THE LD. D.R. SUPPORTED THE ORDERS OF THE A.O. WHILE THE LD. COUNSEL FOR TH E ASSESSEE, SUPPORTED THE ORDERS OF THE LD. CIT(A) AN D HAS ALSO FILED A COPY OF THE ORDER OF B BENCH OF THIS TRIBUNAL DATED 22.10.2014 IN ITA.NO.1055/HYD/2014 IN ASSESSE ES OWN CASE FOR THE A.Y. 2011-12 WHEREIN THE ISSUE WAS DISCUSSED AT LENGTH AND AT PARA-7 OF ITS ORDER, THE TRIBUNAL HAS HELD AS UNDER : 7. WE HEARD BOTH SIDES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AND OTHER MATERIALS ON RECORD. WE FIND THAT THE IMPUGNED ORDER OF THE CIT( A) ACCEPTING THE CLAIM OF THE ASSESSEE FOR RELIEF UNDE R S.80IA(4)(III) IS BASED ON THE DECISION OF THE TRIB UNAL IN ASSESSEE'S OWN CASE IN ITA NO 1177/HYD/2011 DATED 30.11.2011 FOR' ASSESSMENT YEAR 2007-08 AND IN ITA NO. 1316/HYD/2013, DATED 05/02/2014 FOR AY 2010-11 MERE COMMUNICATION OF THE FINDINGS OF THE SURVEY ACTION TO THE CBDT DOES NOT HAVE ANY BEARING ON THE ADMISSIBILITY OF ASSESSEES CLAIM IN 5 ITA.NO.1268/HYD/2015 M/S. ANNAPURNA BUILDERS, HYDERABAD. THE YEAR UNDER APPEAL, INASMUCH AS THE CBDT HAS NEITHER WITHDRAWN THE ALLOWANCE UNDER S.80IA(4)(III ) ALREADY GIVEN FOR EARLIER YEARS, NOR WITHDRAWN THE APPROVALS AND NOTIFICATIONS ISSUED IN THAT BEHALF. BE THAT AS IT MAY, THE IMPUGNED ORDER OF THE CIT(A) BE ING ON THE BASIS OF THE ORDER OF THE TRIBUNAL IN ASSESS EE'S OWN CASE FOR ASSESSMENT YEAR 2007 -08 AND 2010-11 AND FACTS AND CIRCUMSTANCES OF THE CASE FOR THE YEA R UNDER APPEAL BEING SIMILAR, WE FIND NO INFIRMITY I N THE ACTION OF THE CIT(A) WE ACCORDINGLY UPHOLD THE SAME, REJECTING THE GROUNDS OF THE REVENUE IN THIS APPEAL. 3.1. WE FIND THAT THE FACTS AND CIRCUMSTANCES IN THE CASE BEFORE US ARE SIMILAR AND THE LD. CIT(A) H AS GIVEN RELIEF ONLY BY FOLLOWING THE DECISION OF THE TRIBUN AL IN ASSESSEES OWN CASE FOR THE A.YS. 2007-08 AND 2011- 12. IN VIEW OF THE SAME, WE SEE NO REASON TO INTERFERE WITH THE ORDER OF THE LD. CIT(A) AND THE REVENUES APPEAL IS ACCORDINGLY DISMISSED. 4. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 23.12.2015. SD/- SD/- (S. RIFAUR RAHMAN) (SMT. P. MADHAVI DEVI) ACOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATED 23 RD DECEMBER, 2015 VBP/- 6 ITA.NO.1268/HYD/2015 M/S. ANNAPURNA BUILDERS, HYDERABAD. COPY TO 1. THE ACIT, CIRCLE 6(1), 7 TH FLOOR, D BLOCK, I.T. TOWERS, MASAB TANK, HYDERABAD. 2. M/S. ANNAPURNA BUILDERS, 6-3-1192, KUNDANBAGH, BEGUMPET, HYDERABAD. 3. CIT(A) - VI, HYDERABAD 4. PR. CIT - VI, HYDERABAD. 5. THE CCIT, HYDERABAD 6. D.R. I.T.A.T. A BENCH, HYDERABAD. 7. GUARD FILE