The Dy. Commissioner of Income Tax, Circle-5(2), Ahmedabad V. M/s. Shree Ami Estate Developers, Ahmedabad

ITA 1656/AHD/2019

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 4803 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 05-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: DEELIPKUMAR
• Keywords: Competent authority; Assessment record; Set aside
• Section: 263; 143(3); 80IB

Judgement Text

आयकर अपीलीय अिधकरण, अहमदाबाद ᭠यायपीठ IN THE INCOME TAX APPELLATE TRIBUNAL, ‘’A’’ BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER And Ms. MADHUMITA ROY, JUDICIAL MEMBER आयकर अपील सं./ITA No.1656/AHD/2019 िनधाᭅरण वषᭅ/Asstt. Year: 2013-2014 D.C.I.T., Circle-5(2), Ahmedabad. Vs. M/s. Shree Ami Estate Developers, 5 th Floor, Ravish Complex, Beside Jalaram Chhas, Navrangpura, Ahmedabad. PAN: ABRFS0385G (Applicant) (Respondent) Revenue by : Shri Rushin Patel, A.R Assessee by : Shri Deelip Kumar, Sr. D.R सुनवाई कᳱ तारीख/Date of Hearing : 15/06/2022 घोषणा कᳱ तारीख /Date of Pronouncement: 22/06/2022 आदेश/O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeal has been filed at the instance of the Revenue against the order of the Learned Commissioner of Income Tax (Appeals)-5, Ahmedabad, dated 21/08/2019 arising in the matter of assessment order passed under s. 143(3) of the Income Tax Act, 1961 (here-in-after referred to as "the Act") relevant to the Assessment Year 2013-2014. ITA no.1656/AHD/2019 A.Y. 2013-14 2 2. The Revenue has raised the following grounds of appeal: (1) "Whether the Ld. CIT (A) is right in law and on facts in deciding the admissibility of deduction u/s 80IB(l0) of the act, relying upon the decision of Hon'ble ITAT in assessee's own case in AY:2012-13, wherein it was held that the facts on record show that the project was first approved on 11/01/2008, without appreciating the fact that the plan presented by the assessee firm and approved by the local authority on 11.01.2008 was totally for different purpose and same was not a 'housing project' that developed and build by assessee in accordance to the deduction claimed u/s Section 80IB[I0) of the Act." (2) "Whether the CIT(A) is right in law and in facts in allowance of deduction u/s 80IB(IO] of the Act without appreciating the facts that the lay out plan approved by local authority on 11/01/2008 (i.e. before stipulated date of 31/03/2008) and dated 30.06.2008 which was finally approved on 27.11.2008 (i.e. after 31.03.2008 as per Section 80IB(10)) are totally different and not in accordance with the conditions laid down under this Section." (3) "Whether the CIT(A) is right in law and in facts of the case in not upholding the order of AO though the original[first) plan of the project approved on 11.01,2008 did not fulfilled the condition laid down in section 80IB(10) of the Act. (4) The Ld.CIT (A) has erred In law and on facts in allowing the disallowance of Rs. 2,22,38,230/- made u/s 80IB[10] of the I. T. Act. (5) On the facts and circumstances, the Id. CIT(A) ought to have upheld the order of the AO. (6) It is therefore prayed that the order of the Ld. CIT(A) may be set aside and that of the order of the Assessing Officer be restored to the above extent. 3. The only issue raised by the Revenue is that the Ld. CIT(A), erred in granting deduction claimed by the assessee u/s 80IB(10) of the Act, amounting to Rs.2,22,38,230/- only which was disallowed by the AO. 4. The facts in brief are that the assessee in the present case is a partnership firm and engaged in the business of Developing of Building and Housing Project. The AO during the assessment proceedings found that for claiming the deduction u/s 80IB(10) of the Act, it was one of the pre-condition that the Housing Project, by the competent authority, should have been approved on or before 31/03/2008 whereas the approval was granted to the assessee as on 11/06/2008. Thus, according to the AO the condition specified u/s 80IB(10) of the Act for claiming deduction has not been satisfied. Therefore, the assessee is not eligible for ITA no.1656/AHD/2019 A.Y. 2013-14 3 deduction 80IB (10) of the Act, and therefore the same was disallowed and added to the total income of the assessee. 5. Aggrieved assessee preferred an appeal before the Ld. CIT(A), who has directed the AO to allow the deduction u/s 80IB(10) of the Act to the assessee by observing as under: 4.2 I have considered the facts of the case, assessment order and submission made by the appellant. The AO has made the disallowance by holding that for claiming deduction u/s.80IB(10), the housing project should have been approved before 31/03/2008 but the approval was obtained by the appellant l 11/06/2008 and hence not allowable. 4.3 The Hon’ble ITAT in ITA No.1193/A/2017 dated 27/10/2017 for AY 2012-13 in the case of the appellant has held as under: “A thoughtful consideration of the facts on record show that the project was first approved on 11.01.2008. Thereafter, the assessee has applied for revised plan which was finally approved on 27.11.2008. These facts have nowhere being "disputed anywhere. On these facts, let us now consider the provisions of Section 80IB(10) read with the explanation -Section 80IIB(10)-The amount of deduction in the case of an undertaking developing and building housing projects approved before the 31 st day of March, [2008] by a local authority shall be hundred per cent of the profits derived in the previous year relevant to any assessment year from such housing project if,— (a) such undertaking has commenced or commences development and construction of the housing project on or after the 1st day of October, 1998 and completes such construction,— (i) in a case where a housing project has been approved by the local authority before the 1st day of April, 2004, on or before the 3lst day of March, 2008; (ii) In a case where a housing project has been, or, is approved by the local authority on or after the ht day of April, 2004 [but not later than the 3Jst day of March, 2005], within four years from the end of the financial year in which the housing project is approved by the local authority; (iii) in a case where a housing project has been approved by the local authority on or after the 1st day of April, 2005, within five years from the end of the financial year in which the housing project is approved by the local authority.] Explanation. —For the purposes of this clause,— (i) in a Case where the approval in respect of the housing project is obtained more than once, such housing project shall be deemed to have been approved on the date on which the building plan of such housing project is first approved by the local authority; (ii) the date of completion of construction of the housing project shall be taken to be the date on which the completion certificate in respect of such housing project is issued by the local authority; 13. A perusal of the aforementioned provision would show that the Assessee is very much eligible for the claim of deduction u/s. 80IB(10) of the Act which has been rightly allowed by the A.O. The Ld. Principal Commissioner has not appreciated the ITA no.1656/AHD/2019 A.Y. 2013-14 4 facts of the case in true perspective in the tight of the aforementioned explanation appended to Section 80IB(10) of the Act, A perusal of the notice issued by the Id. Commissioner u/s. 263 of the Act which is exhibited elsewhere clearly shows that all the revised plans were very much available on the assessment records which have been considered by the Ld. Principal Commissioner while issuing the show cause notice u/s. 263 of the Act. By not appreciating the law on the facts of the case in hand, the Id. Principal Commissioner has made his order erroneous." 4.4 Since the issue in hand is similar to AY 2012-13, and since the Hon'ble ITAT in the case of the appellant has held that appellant is eligible for claim of deduction u/s 80IB(10) of the Act, I find no reason to differ from the decision taken by the Hon'ble ITAT for AY 2012-13 on similar facts. Therefore, the AO is hereby directed to allow the claim of the appellant of Rs.2,22,38,228/- u/s.80IB(10) of the Act. The ground nos1 to 3 of appeal are allowed. 6. Being aggrieved by the order of the Ld. CIT(A), the Revenue is in appeal before us. 7. Both the Ld. DR and the Ld. AR before us vehemently supported the order of the authorities below as favourable to them. 8. We have heard the rival contentions of both the parties and perused the materials available on record. It is the second year that the assessee claimed the deduction u/s 80IB(10) of the Act. The ITAT in the own cases of the assessee pertaining to the AY 2012-13, being the first year, in ITA No. 1193/Ahd/17 vide order dated 27/10/2017 has given clear findings in paragraph No. 12 of its order that the project was first approved on 11/01/2008 and thereafter revised plan was approved on 27/11/2008. Accordingly, there remains no scope of confusion that the plan was first approved on 11/01/2008, much before the date specified under section 80IB(10) of the Act. The relevant finding of the ITAT order has been reproduced in the order of the CIT-A. We also note that similar contention was also raised by the assessee during the Assessment Proceedings that the project was first approved dated 11/01/2008 which was not rejected based on the cogent reasons. In view of the above and after taking into considerations of the findings of the ITAT in the own case of the assessee, we hold that there is no violation committed by the assessee u/s 80IB(10) of the Act. Thus, we hold that assessee is eligible for ITA no.1656/AHD/2019 A.Y. 2013-14 5 deduction u/s 80IB(10) of the Act. Hence, we do not find any reason to interfere in the findings of the Ld. CIT(A). Thus, the ground of appeal of the Revenue is hereby dismissed. 9. In the result, the appeal filed by the Revenue is dismissed. Order pronounced in the Court on 22/06/2022 at Ahmedabad. Sd/- Sd/- (MADHUMITA ROY) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER (True Copy) Ahmedabad; Dated 22/06/2022 Manish