The Income Tax Officer Ward- 6(1), Kanpur V. M/s Dolphin Developers Ltd., Kanpur

ITA 139/LKW/2013

• Counselvise Citation: 13923714 RSA 2013
• Duration Of Justice: 1 year(s) 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-05-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 05-03-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 14-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K DEY

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.139/LKW/2013 ASSESSMENT YEAR:2007 - 08 INCOME TAX OFFICER, WARD - 6(1), KANPUR. VS. M/S DOLPHIN DEVELOPERS LTD., 7/71 - A, TILAK NAGAR, KANPUR. PAN:AABCD8079J (APPELLANT) (RESPONDENT) APPELLANT BY SHRI P. K. DEY, D.R. RESPONDENT BY SHRI RAKESH GARG, ADVOCATE DATE OF HEARING 05/03/2014 DATE OF PRONOUNCEMENT 0 8 /05/2014 O R D E R PER A. K. GARODIA, A.M. THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT (A) - II, KANPUR DATED 13/12/2012 FOR ASSESSMENT YEAR 2007 - 2008. 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1. THAT THE CIT(A) - II, KANPUR HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE FACT THAT THE ASSESSEE HAS SHOWN ADVANCES ON FLAT BOOKINGS AS INCOME IN PROFIT & LOSS A/C WITH AN INTENTION TO INFLATE THE REVENUE AND THEREBY CLAIM HIGHER DEDUCTION U/S80IB AND THE CONDITIONS FOR CLAIM OF DEDUCTION U/S 80 - IB ARE NOT FULFILLED. 2. THAT THE CIT(A) - II, KANPUR HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE FACT THAT NO CONSTRUCTION ACTIVITY WAS UNDERTAKEN EVEN AFTER THE RELEVANT PREVIOUS YEAR, YET THE ASSESSEE HAD CLAIMED DEDUCTION U/S 80 - IB ON THE INFLATED PROFITS. 2 3. THAT THE CIT(A) - II, KANPUR HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE FACT THAT THE ASSESSEE HERE HAS BY INFLATING THE REVENUE SOLELY FOR CLAIMING HIGHER DEDUCTION 80 - IB AND IN IGNORING THE FACT THAT THE ASSES SEE CANNOT INFLATE THE PROFIT FOR CLAIMING OF HIGHER DEDUCTION AS HELD BY THE APEX COURT IN THE CASE OF SANJEEV WOLLEN V/S CIT 279 ITR 434 (SC). 4. THAT THE LD. CIT(A) - II, KANPUR HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE FACT THAT THE PROVISIO NS OF INSTRUCTIONS NO. 4 OF 2009 DATED 30.06.2009 AR E NOT APPLICABLE IN THIS CASE AS THE CONDITION OTHER THAN THE COMPLETION OF PROJECTS ARE ALSO NOT FULFILLED AND THE BOOKS OF ACCOUNT ARE NOT RELIABLE. 5. THE APPELLANT CRAVES LEAVE TO AMEND ANYONE OR MOR E OF THE GROUNDS OF APPEAL DURING PENDENCY OF APPEAL. 3. LEARNED D.R. OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER WHEREAS IT IS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT THE GROUNDS RAISED BY THE REVENUE DO NOT EMERGE FROM THE IMPUGNED ORDER PASSED BY LEARNED CIT(A). 4. WE HAVE CONSIDERED THE RIVAL SUB MISSIONS. WE FIND THAT IT IS NOTED BY LEARNED CIT(A) IN THE IMPUGNED ORDER THAT AN APPEAL ORDER DATED 28/03/2011 WAS PASSED BY HIM AGAINST THE ASSESSMENT ORDER DATED 11/12/2009. THEREAFTER, HE HAS NOTED THAT S OME DIRECTION WAS GIVEN BY HIM TO THE ASSESSI NG OFFICER IN THAT ORDER. THEREAFTER , HE HAS NOTED THAT THE REVENUE PREFERRED APPEAL AGAINST THAT ORDER OF CIT(A) BEFORE THE TRIBUNAL AND SUCH APPEAL OF THE REVENUE HAS BEEN DISPOSED OF BY THE TRIBUNAL ON 28/02/2012 IN WHICH THE DIRECTION GIVEN BY THE TRI BUNAL WAS THAT THE CIT(A) SHOULD COMPUTE THE INCOME HIMSELF IN A MANNER PRESCRIBED BY HIM IN HIS ORDER WITHOUT INTERFERING WITH THE FINDINGS ON MERIT. THEREAFTER, HE HAS FURTHER NOTED IN THE IMPUGNED ORDER THAT HE HAS DISCUSSED THE MATTER WITH A.R. AND H E SUBMIT TED THE COPY OF DEMAND NOTICE DATED 28/07/2011 ISSUED BY THE ASSESSING OFFICER AFTER GIVING EFFECT TO THE CIT(A) S ORDER DATED 28/03/2011 AND THEREAFTER , HE HAS HELD THAT THE RECOMPUTATION OF INCOME AS PER DIRECTION OF HIS PREDECESSOR 3 IS ATTACHED WITH THE IMPUGNED ORDER, WHICH HAS ALREADY BEEN CONSIDERED BY THE ASSESSING OFFICER. HENCE, WE FIND FORCE IN THE SUBMISSION OF LEARNED A.R. OF THE ASSESSEE THAT THE ISSUES RAISED BY THE REVENUE IN THE GROUNDS OF APPEAL DO NOT ARISE OUT OF THE IMPUGNED ORD ER PASSED BY LEARNED CIT(A). WE, THEREFORE, DECLINE TO INTERFERE IN THE ORDER OF CIT(A). 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 0 8 /05/2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR