The ITO, Ward-9(1), Ahmedabad V. M/s. Simandhar Corporation, Ahmedabad

ITA 1378/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9770 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 21-01-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 25-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRADEEP MAJMUDAR
• Assessee Lawyers: M J SHAH
• Keywords: Retrospective amendment; Tax effect
• Section: 2

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE S/SHRI RAJPAL YADAV, JM, AND MANISH BORAD, AM ./ITA.NO.1378/AHD/2012 ( / ASSTT YEAR :2007-08) ITO, WD-9(1), AHMEDABAD VS. M/S SIMANDHAR CORPORATION, SIMANDHAR AVENUE, B/H H. K. HOUSE, ASHRAM ROAD, AHMEDABAD PAN : AARFS 3295E (APPELLANT) (RESPONDENT) / APPELLANT BY: SHRI PRADEEP MAJMUDAR, SR.DR / RESPONDENT BY: SHRI M. J. SHAH, AR / DATE OF HEARING 21.01.2016 /DATE OF PRONOUNCEMENT 21-01-2016 / O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER THE REVENUE IS IN APPEAL BEFORE US AGAINST THE OR DER OF LD. COMMISSIONER INCOME-TAX (APPEALS)-XV, AHMEDABAD DAT ED 30.04.2012 PASSED FOR THE ASSTT. YEAR 2007-08. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEA L :- 1) THE LD. CIT(A)-XV, AHMEDABAD HAS ERRED IN LAW AN D ON FACTS IN DIRECTING THE ASSESSING OFFICER TO ALLOW THE ASSESS EES CLAIM FOR DEDUCTION OF RS.12,42,318/- U/S 80IB(10) OF THE IT ACT. 2) THE LD. CIT(A)-XV, AHMEDABAD HAS ERRED IN HOLDIN G THAT THE ASSESSEE FULFILLS THE CONDITIONS LAID DOWN FOR CLA IMING DEDUCTION ITA.NO.1378/AHD/2012 - 2 U/S 80IB(10) EVEN WHEN THE LAND WAS IN THE NAME OF SOMNATH CO- OP. HOUSING SOCIETY LTD., WHICH IS A SEPARATE LEGAL ENTITY IN THE EYE OF LAW AND THE ASSESSEE ENTERED INTO THE PROJEC T BY A DEVELOPMENT AGREEMENT WITH THE SOCIETY. THE ENTIRE RESPONSIBILITY TO EXECUTE THE HOUSING PROJECT AND ABIDE BY THE TER MS AND CONDITIONS OF ITS APPROVAL RIGHT FROM THE INCEPTION OF THE PROJECT TILL ITS COMPLETION RESTS WITH THE SOCIETY. THE LOCAL AU THORITY HAD GRANTED PERMISSION FOR DEVELOPMENT AND CONSTRUCTION OF THE PROJECT TO THE SOCIETY. ASSESSEE WAS JUST A CONTRACTOR OF T HE LAND OWNER CONSTRUCTING RESIDENTIAL UNITS 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. 4) IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE L D. CIT(A)-XV, AHMEDABAD MAY BE SET ASIDE AND THAT OF THE ASSESSIN G OFFICER BE RESTORED. 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND GOING THROUGH THE FACTS OF THE CASE, WE FIND THAT THIS APPEAL WAS PRE SENTED ON 25/06/2012. ON 10.12.2015 THE CBDT HAS ISSUED INSTRUCTIONS BEAR ING NO. 21/2015 PROHIBITING ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL TO THE TRIBUNAL AGAINST THE ORDER OF THE CIT(A) WHERE THE TAX EFFECT BY VIRTUE OF THE RELIEF GIVEN BY THE CIT(A) IS LESS THAN RS.10 L AKHS. THE INSTRUCTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT , MEANING THEREBY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEAL S ALSO. THE TAX EFFECT ON DELETION OF TOTAL ADDITION WOULD BE LESS THAN RS .10 LAKHS. THE PRESENT APPEAL DESERVES TO BE DISMISSED BEING TREATED TO BE FILED IN VIOLATION OF CBDT INSTRUCTIONS. THE CASE DOES NOT FALL WITHIN T HE AMBIT OF EXCEPTIONS PROVIDED IN THE INSTRUCTIONS. IT IS FURTHER OBSERV ED THAT SINCE, WHILE HEARING THE APPEAL, SUCH FACTORS WERE NOT CONSIDERE D, THEREFORE, IN CASE, ITA.NO.1378/AHD/2012 - 3 ON RE-VERIFICATION AT THE END OF THE AO, IT CAME TO THE NOTICE THAT THE TAX EFFECT IS MORE OR IT FALLS WITHIN THE AMBIT OF EXCE PTIONS PROVIDED IN THE INSTRUCTION, THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICATIO N SHOULD BE FILED WITHIN FOUR YEARS OF THIS ORDER. IN VIEW OF THE ABOVE, TH E APPEAL OF THE REVENUE IS DISMISSED. 4. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE COURT ON 21 JANUARY, 2016 A T AHMEDABAD. SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER AHMEDABAD; DATED, 21/01/2016 ! '!/ COPY OF THE ORDER FORWARDED TO : 1. $% / THE APPELLANT 2. &$% / THE RESPONDENT. 3. '(( ) * / CONCERNED CIT 4. ) * ( ) / THE CIT(A)- 5. !-. , ,012 /DR,ITAT, RAJKOT 6. .3 45 / GUARD FILE. ) ' / BY ORDER, ' (0 (ASSTT.REGISTRAR) ITAT, AHMEDABAD ITA.NO.1378/AHD/2012 - 4 1. DATE OF DICTATION .. : 21/01/2016 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER : 21/01/2016 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P.S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 22/1/16 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER