Sugam Park, Kolkata V. CIT, Kol - XI, Kolkata, Kolkata

ITA 1452/KOL/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74949 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 2 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-01-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 27-10-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SABOORUL HASAN USMANI SRDR
• Assessee Lawyers: SHANTI SWARAP GUPTA
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI ABRAHAM P GEORGE, ACCOUNTANT MEMBER ITA NO. 1452 / KOL / 2011 ASSESSMENT YEAR :2007-08 SUGM PARK 2/5, SARAT BOSE ROAD, SUKH SAGAR (1S FLOOR) KOLKATA 700 020 [ PAN NO.AABAS 3336 H ] V/S . COMMISSIONER OF INCOME TAX, KOLKATA-XI, 10B, MIDDLETON ROW, 3 RD FLOOR, KOLKATA 700 071 / APPELLANT .. / RESPONDENT) /BY APPELLANT SHRI SHANTI SWARAP GUPTA, AR /BY RESPONDENT SHRI SABOORUL HASAN USMANI, SR-DR /DATE OF HEARING 19-12-2013 /DATE OF PRONOUNCEMENT 10-01-2014 / // / O R D E R PER MAHAVIR SINGH, JUDICIAL MEMBER:- THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF COMMISSIONER OF INCOME-TAX-XI, KOLKATA IN MEMO NO.CIT/KOL-XI/263/SU GAM/11-12/2278-2280 DATED 01-09-2011. ASSESSMENT FRAMED BY ACIT, RANGE- 31, KOLKATA U/S. 143(3) OF THE INCOME TAX ACT, 1961(HEREINAFTER REFE RRED TO AS THE ACT) VIDE HIS ORDER DATED 21-12-2009 FOR ASSESSMENT YEAR 2007 -08. 2. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AGA INST THE REVISION ORDER PASSED BY CIT-XI KOLKATA U/S. 263 OF THE ACT. FOR T HIS, ASSESSEE HAS RAISED FOLLOWING GROUNDS NO. 1 TO 10:- ITA NO.1452/KOL/2011 A.Y. 2007-08 SUGAM PARK V. CIT KOL-XI PAGE 2 1. THAT THE LD. CIT ERRED IN LAW A WELL AS IN FACT S IN PASSING THE ORDER U/S 263 OF THE INCOME TAX ACT, 1961. 2. THAT THE LD. CIT ERRED IN HOLDING THAT THE ASSES SMENT ORDER AS PASSED BY THE LD. AO IS ERRONEOUS AND PREJUDICIAL T O THE INTERESTS OF THE REVENUE IN AS MUCH AS IN VIEW OF THE FACTS AND CIRC UMSTANCES OF THE CASE NO SUCH ORDER WAS AT ALL CALLED FOR. 3. THAT THE SHOW CAUSE NOTICE ISSUED U/S. 263 OF TH E INCOME TAX ACT, 1961 IS BAD IN LAW AND AB INITIO VOID IN AS MUCH AS IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ASSESSMENT ORDER PASSED BY THE LD. AO IS NOT ERRONEOUS AND PREJUDICIAL TO THE INTEREST S OF THE REVENUE. 4. THAT THE LD. CIT ERRED IN LAW AS IN FACTS IN OBS ERVING IN THE NOTICE ISSUED U/S. 263 OF THE INCOME TAX ACT, 1961 AND THE ORDER PASSED U/S. 263 THAT THE DEDUCTION U/S 80IB(10) OF THE INCOME T AX ACT, 1961 HAS BEEN WRONGLY ALLOWED IN AS MUCH AS IN VIEW OF THE F ACTS AND CIRCUMSTANCES OF THE CASE NO SUCH OBSERVATIONS WERE AT ALL CALLED FOR. 5. THAT THE LD. CIT ERRED IN LAW AS WELL AS IN FACT S IN OBSERVING IN THE NOTICE ISSUED U/S. 263 OF THE INCOME TAX ACT, 1961 AND THE ORDER PASSED U/S. 263 THAT THE BUILT UP AREA OF DUPLEX RO W HOUSES IS MUCH HIGHER THAN THE LIMIT OF 1500 SQ. FT. AS STIPULATED U/S. 80IB(10) OF THE INCOME TAX ACT, 1961 IN AS MUCH AS IN VIEW OF THE F ACTS AND CIRCUMSTANCES OF THE CASE NO SUCH OBSERVATIONS WERE AT ALL CALLED FOR. 6. THAT THE LD. CIT ERRED IN LAW AS WELL AS IN FACT S IN OBSERVING THAT THE AO ALLOWED DEDUCTION U/S. 80IB(10) WITHOUT EXAMININ G THE COMPUTATION OF BUILT UP AREA IN AS MUCH AS IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE NO SUCH OBSERVATIONS WERE AT ALL CALLED FO R. 7. THAT THE LD. CIT ERRED IN LAW AS WELL AS IN FACT S IN OBSERVING IN THE NOTICE ISSUED U/S. 263 OF THE INCOME TAX ACT, 1961 THAT THE PROFIT DERIVED FROM THE HOUSING PROJECT IS NOT ELIGIBLE FO R DEDUCTION U/S.80IB(10) OF THE INCOME TAX ACT, 1961 IN AS MUCH AS IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE NO SUCH OBSERVA TIONS WERE AT ALL CALLED FOR. 8. WITHOUT PREJUDICE TO OUR GROUNDS NO.1 TO 6, THE LD. CIT ERRED IN LAW WELL AS IN FACTS IS NOT ALLOWING DEDUCTION U/S. 80I B(10) OF THE INCOME TAX ACT, 1961 ON THE FLATS/UNITS WHERE THEE WAS NO DISPUTE REGARDING BUILT UP AREA. 9. THAT THE LD. CIT ERRED IN LAW AS WELL AS IN FACT S IN MENTIONING THE STATUS OF THE APPELLANT AS FIRM INSTEAD OF AOP IN AS MUCH AS IN VIEW ITA NO.1452/KOL/2011 A.Y. 2007-08 SUGAM PARK V. CIT KOL-XI PAGE 3 OF THE FACTS AND CIRCUMSTANCES OF THE CASE NO SUCH CHANGE IN STATUS WAS AT ALL CALLED FOR. 10. THAT THE LD. CIT ERRED IN LAW AS WELL AS IN FAC TS IN PASSING THE ORDER U/S. 263 OF THE INCOME TAX ACT, 1961 WHICH IS ARBIT RARY, ILLEGAL AND CONTRARY TO THE FATS AND MATERIAL ON RECORD AND IS LIABLE TO BE SET ASIDE. 3. WE HAVE HEARD RIVAL CONTENTION AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT ORIGINAL AS SESSMENT ORDER COMPLETED BY ACIT U/S. 143(3) OF THE ACT FOR THE RELEVANT AY 2007-08 VIDE HIS ORDER DATED 21-12-2009. SUBSEQUENTLY REVISION ORDER PASSE D U/S 263 OF THE ACT BY CIT AND ASSESSING OFFICER WAS ASKED TO REVISE THE A SSESSMENT. ACCORDINGLY, THE AO FRAMED ASSESSMENT IN PURSUANCE TO REVISION O RDER PASSED BY CIT U/S. 263 OF THE ACT AND THEREBY PASSED ORDER U/S. 143(3) R.W.S. 263 OF THE ACT VIDE ORDER DATED 19-03-2013. LD. COUNSEL FOR THE ASSESSE E FAIRLY STATED THAT THE AO HAS ACCEPTED THE CONTENTION OF THE ASSESSEE AFTER E LABORATE DISCUSSION ON THE DOCUMENT AND EVIDENCE. HE IS NOT INTERESTED IN PROS ECUTING THIS APPEAL, HENCE HE MAY BE PERMITTED TO WITHDRAW THIS APPEAL. ACCORD INGLY, WE ENQUIRE FROM THE LD. SR-DR WHETHER HE HAS NO OBJECTION TO WITHDRAW T HIS APPEAL. ON THIS, LD. SR-DR CATEGORICALLY STATED THAT HE HAS NO OBJECTION AND WITHDRAW CAN BE PERMITTED. ONCE THIS IS THE POSITION, WE PERMIT THE WITHDRAWAL OF THE APPEAL AND DISMISS THE APPEAL OF ASSESSEE AS WITHDRAWN. 4. IN THE RESULT, APPEAL OF ASSESSEE IS DISMISSED AS W ITHDRAWN. ORDER PRONOUNCED IN THE OPEN COURT 10 /01/2014 SD/- SD/- (ABRAHAM P GORGE) ( MAHAVIR SINGH) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP !- 10/01/2014 ITA NO.1452/KOL/2011 A.Y. 2007-08 SUGAM PARK V. CIT KOL-XI PAGE 4 + + + + ,+ ,+ ,+ ,+ / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. 1 / CONCERNED CIT 4. 1- / CIT (A) 5. + , , / DR, ITAT, KOLKATA 6. 8 / GUARD FILE. BY ORDER/ , /TRUE COPY/ / ,