The ITO, Ward-9(2), Ahmedabad V. M/s. Aditya Corporation, Ahmedabad

ITA 1331/AHD/2011

• Counselvise Citation: 133120514 RSA 2011
• Duration Of Justice: 10 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-03-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 13-03-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 04-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: UMAIDSINH BHATI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD BEFORE SHRI, A.K.GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.1331/AHD/2011 ASSESSMENT YEAR:2008-09 INCOME TAX OFFICER, WARD-9(2), AHMEDABAD V/S . M/S. ADIDTYA CORPORATION MANSI TENAMENTS, SECTOR-1, OPP. VIVEKANAND NAGAR, HATHIJAN, AHMEDABAD PAN NO.AAMFA939J (APPELLANT) .. (RESPONDENT) /BY APPELLANT SHRI VINOD TANWANI, SR-DR /BY RESPONDENT SHRI UMAIDSINH BHATI, AR /DATE OF HEARING 13-03-2012 /DATE OF PRONOUNCEMENT 30-03-2012 O R D E R PER KUL BHARAT, JUDICIAL MEMBER:- THIS PRESENT APPEAL IS FILED BY THE REVENUE DIRECT ED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV, AHMEDA BAD DATED 04-03- 2011 FOR THE ASSESSMENT YEAR 2008-09. 2. THE FACTS IN THE PRESENT CASE ARE THAT THE ASSES SING OFFICER DISALLOWED THE CLAIM OF THE ASSESSEE U/S 80IB(10). THE ASSESSE E FEELING AGGRIEVED BY THE ORDER OF AO APPROACHED BEFORE LD. CIT(A) WHO RELYIN G UPON THE ORDER PASSED BY THE CO-ORDINATE BENCH OF AHMEDABAD IN ASSESSEES OWN CASE IN ITA NO.2738 & 2739/AHD/2010 FOR A.YS. 2006-07 AND 2007-08 ORDER DATED 17- ITA NO.1331/AHD/2011 A.Y. 2008-09 ITO WD.9(2) ABD V. M/S ADITYA CORPN. PAGE 2 06-2011 ALLOWED THE DEDUCTION. THE REVENUE FEELING AGGRIEVED BY THE ORDER OF LD. CIT(A) APPROACHED BEFORE THIS TRIBUNAL HAS R AISED THE FOLLOWING GROUND OF APPEAL FOR DETERMINATION:- 1) THE LD. COMMISSIONER OF INCOME-TAX (A)-XV, AHME DABAD HAS ERRED IN LAW AND ON FACTS IN ALLOWING THE DEDUCTION U/S. 80IB(10) OF THE ACT AMOUNTING TO RS.48,93,426/- WHICH WAS DISALLOWED BY THE ASSESSING OFFICER. 2) THE LD. COMMISSIONER OF INCOME-TAX (A)-XV, AHMED ABAD HAS ERRED IN HOLDING THAT THE ASSESSEE FULFILLS THE CONDITION S LAID DOWN FOR CLAIMING DEDUCTION U/S. 80IB(10) EVEN WHEN THE LAND WAS IN T HE NAME THE LAND OWNER I.E., SMT. VIJYABEN NANJIBHAI RANK, AN AGRICU LTURIST (WIFE OF PARTNER SHRI RAVJIBHAI P PATEL)WHICH IS A SEPARATE LEGAL ENTITY IN THE EYE OF LAW AND THE ASSESSEE ENTERED INTO THE PROJECT BY THE AGREEMENT FOR APPOINTMENT OF A BUILDER CUM DEVELOPER FIRM ENTERE D BY IT WITH THE LAND OWNER. THE ENTIRE RESPONSIBILITY TO EXECUTE THE HOU SING PROJECT AND ABIDE BY THE TERMS AND CONDITIONS OF ITS APPROVAL R IGHT FROM THE INCEPTION OF THE PROJECT TILL ITS COMPLETION RESTS WITH THE L AND OWNER. ACCORDING TO THE DEVELOPMENT AGREEMENT, SINCE THE LAND ASSESSEE WAS JUST A CONTRACTOR OF THE LAND OWNERS CONSTRUCTING THE HOUS ING PROJECT AND NOT A DEVELOPER. 3) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT[A] XV, AHMEDABAD OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 3. WE HAVE HEARD THE PARTIES AND PERUSED THE MATERI ALS AVAILABLE ON RECORD. LD. SR-DR HAS SUPPORTED THE ORDER PASSED BY ASSESSING OFFICER. ON THE CONTRARY, LD. AR OF THE ASSESSEE HAS SUPPORTED THE ORDER PASSED BY LD. CIT(A) AND HAS ALSO POINTED OUT THAT THE ORDER PASS ED BY CO-ORDINATE AHMEDABAD BENCH IN ASSESSEES OWN CASE FOR THE A.Y. 2006-07 AND 2007-08 IN ITA NO.2738 & 2739/AHD/2010 AND THE HONBLE TRIBUNAL HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE, AND THE APPEALS FI LED BY THE REVENUE HAVE BEEN DISMISSED. IT IS POINTED OUT BY THE LD. AR OF THE ASSESSEE THAT THE ISSUE INVOLVED IN THE PRESENT CASE HAS ALSO BEEN DECIDED BY THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. RADHE DEVELOPER (2012) 341 ITR 403 (GUJ). IN VIEW OF THE RATIO LAID BY THE HONBLE JURISDICTIONA L HIGH COURT IN THE CASE OF RADHI DEVELOPER (SUPRA) AND THE ORDER PASSED BY THE CO-ORDINATE BEN CH IN ITA NO.1331/AHD/2011 A.Y. 2008-09 ITO WD.9(2) ABD V. M/S ADITYA CORPN. PAGE 3 ASSESSEES OWN CASE IN ITA NO.2738 & 2739/AHD/2010 (SUPRA) WE FIND NO MERIT IN THE APPEAL FILED BY THE REVENUE AND HENCE SAME IS DISMISSED. 4. IN THE RESULT, APPEAL FILED BY REVENUE IS DISMISSED . ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTION ED HEREINABOVE AT CAPTION PAGE SD/- SD/- (A.K.GARODIA) (KUL BHARAT) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, *DKP - 30/03/2012 '() * +, +, +, +, --. --. --. --. /. /. /. /. / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. )-1 + +2 / CONCERNED CIT 4. + +2- / CIT (A) 5. .56 ---1, + -1 , '() / DR, ITAT, AHMEDABAD 6. 69: ;< / GUARD FILE. BY ORDER/ +, , /TRUE COPY/ =/ ' > + -1 , '() *