M/s. Narayan Estate Developers, Ahmedabad V. The Income tax Officer,Ward-9(1), Ahmedabad

ITA 1686/AHD/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 72858 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-01-2014
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 06-01-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 19-05-2010
• Court: TRIBUNAL
• Department Lawyers: O P BATHEJA
• Assessee Lawyers: K C THAKKAR
• Section: 143(3)

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.1686/AHD/2010 A.Y. 2006-07 M/S NARAYAN ESTATE DEVELOPERS, AHMEDABAD. PAN: AAFFFN1582P VS ITO, WARD-9(1) AHMEDABAD (APPELLANT) (RESPONDENT) REVENUE BY : SH. O.P. BATHEJA, SR.D.R. ASSESSEE(S) BY : SH. K.C. THAKKAR, AR / // / DATE OF HEARING : 06/01/2014 !'# / DATE OF PRONOUNCEMENT : 10/01/2014 $%/ O R D E R PER SHRI N.S. SAINI, ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A)- XV, AHMEDABAD DATED 22.03.2010. 2. THE ONLY ISSUE INVOLVED IN THIS APPEAL IS THAT T HE LD. CIT(A) ERRED IN LAW AND ON FACTS IN UPHOLDING THE DISALLOWANCE MADE U/S 80IB(10) OF THE ACT IN RESPECT OF THE RESIDENTIAL UNITS. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSI NG OFFICER OBSERVED THAT THE ASSESSEE HAS CLAIMED DEDUCTION U/S 80IB(10) ON RESIDENTIAL UNITS CONSTRUCTED ON TWO DIFFERENT PLOTS OF LAND BEARING SURVEY NOS. 829 AND 830. HE FURTHER OBSERVED THAT THE SIZE OF THE PLOT OF SURVEY NO. 830 WAS LESS THAN ONE ACRE AS THE ASSESSEE HAD SOLD 700 SQ. METRES OUT OF THIS ITA NO.1686/AHD/2010 M/S NARAYAN ESTATE DEVELOPERS. VS. ITO, WARD-9(1), AHD FOR A.Y. 2006-07 - 2 - LAND MAKING THE SIZE OF THE LAND 3724 SQ. METRES AN D ON THIS PLOT OF LAND, 32 UNITS WERE CONSTRUCTED INSTEAD OF 33 PERMI TTED BY THE AUDA. THEREFORE, ACCORDING TO THE ASSESSING OFFICER, THE ASSESSEE FIRM VIOLATED THE CONDITION OF THE PROVISIONS OF SECTION 80IB(10) SINCE IT HAS NOT DEVELOPED MORE THAN ONE ACRE AREA AND THE AREA BEIN G DEVELOPED BY ITSELF WAS 3724.59 SQ. METRES DURING THE YEAR UNDER CONSIDERATION WHICH IS LESS THAN ONE ACRE, AND THEREFORE, HE DISALLOWED THE CLAIM FOR DEDUCTION TO THE ASSESSEE OF RS 73,13,696/-. 4. ON APPEAL, THE CIT(A) CONFIRMED THE ACTION OF TH E ASSESSING OFFICER ON THE GROUND THAT IN THE IMMEDIATELY PRECEDING AY 200 5-06, HE HAS DECIDED THE ISSUE AGAINST THE ASSESSEE VIDE ORDER D ATED 19.12.2008. 5. THE LD. DR SUBMITTED THAT IN THE AY 2005-06, THE TRIBUNAL VIDE ORDER DATED 11.11.2011 PASSED IN ITA NO. 209/AHD/2009 HAD RESTORED THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER FOR A CLEAR FINDING WITH RESPECT TO BUILDING PLAN APPROVED FROM THE PRESCRIB ED AUTHORITIES AND THEREAFTER READJUDICATE THE ISSUE AFRESH. HE FURTH ER SUBMITTED THAT IN THE YEAR UNDER APPEAL, AS THE FACTS AND ISSUE ARE SAME, THE MATTER MAY BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER TO READJUDICATE THE ISSUE AFRESH IN THE LINE OF THE DECISION TAKEN IN T HE ASSESSMENT YEAR 2005-06 IN THE SET ASIDE PROCEEDINGS. 6. THE LD. AR OF THE ASSESSEE FILED COPY OF THE ASS ESSMENT ORDER FOR AY 2005-06 DATED 28.03.2013 PASSED BY THE ASSESSING OF FICER IN THE SET ASIDE PROCEEDINGS U/S 143(3) READ WITH SECTION 254 OF THE INCOME TAX ACT. HE SUBMITTED THAT THE ASSESSING OFFICER IN TH IS ORDER HAS ALLOWED THE CLAIM FOR DEDUCTION U/S 80IB(10) OF THE ACT TO THE ASSESSEE. HE, THEREFORE, PRAYED THAT THE ASSESSING OFFICER MAY BE DIRECTED TO ALLOW THE CLAIM FOR DEDUCTION TO THE ASSESSEE IN THE YEAR UNDER APPEAL ALSO. ITA NO.1686/AHD/2010 M/S NARAYAN ESTATE DEVELOPERS. VS. ITO, WARD-9(1), AHD FOR A.Y. 2006-07 - 3 - 7. IN THE REJOINDER, THE LD. DR FAIRLY CONCEDED THA T IN VIEW OF THE ORDER OF THE ASSESSING OFFICER DATED 28.03.2013 PASSED U/S 1 43(3) READ WITH SECTION 254 OF THE ACT, THE CLAIM FOR DEDUCTION U/S 80IB(10) SHOULD BE ALLOWED. 8. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL PLACED ON RECORD, WE FIND THAT THE ASSESSING OFFICER HAS DISA LLOWED THE CLAIM FOR THE DEDUCTION U/S 80IB(10) TO THE ASSESSEE OF RS 73 ,13,696/- WHICH WAS CLAIMED BY THE ASSESSEE IN RESPECT OF THE PLOT NO. 830 PROJECT. THE ASSESSING OFFICER OBSERVED THAT THIS PROJECT WAS ST ARTED IN THE IMMEDIATELY PRECEDING ASSESSMENT YEAR AND IN THE AS SESSMENT OF THAT ASSESSMENT YEAR I.E. AY 2005-06, A SIMILAR CLAIM OF DEDUCTION U/S 80IB(10) WAS DISALLOWED IN ASSESSMENT ON THE GROUND THAT THE LAND OF THE PROJECT WAS LESS THAN ONE ACRE. THE ASSESSING OFFICER FOLLOWING HIS ORDER OF THE AY 2005-06 FOR THE VERY SAME REASONS D ISALLOWED THE CLAIM FOR DEDUCTION U/S 80IB(10) IN THE PRESENT YEAR ALSO . ON APPEAL, THE LD. CIT(A) UPHELD THE ACTION OF THE ASSESSING OFFICER O N THE BASIS OF HIS ORDER PASSED IN THE CASE OF THE ASSESSEE FOR AY 200 5-06. WE FIND THAT IN AY 2005-06, ON APPEAL BY THE ASSESSEE AGAINST TH E ORDER OF THE LD. CIT(A), THE TRIBUNAL FOUND THAT THE MEASUREMENT OF THE LAND WAS NOT TAKEN PROPERLY BY LOWER AUTHORITIES AND, THEREFORE, REMANDED THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER FOR ADJUD ICATION AFRESH AFTER PROPER VERIFICATION. IN PURSUANCE OF THE ABOVE REM AND, THE ASSESSING OFFICER PASSED ASSESSMENT ORDER AFRESH ON 28.03.201 3 FOR AY 2005-06. IN THE FRESH ORDER OF ASSESSMENT PASSED FOR AY 2005 -06, THE ASSESSING OFFICER FOUND THAT THE CLAIM OF DEDUCTION U/S 80IB( 10) IN RESPECT OF THE PROJECT IN QUESTION IS ALLOWABLE TO THE ASSESSEE AN D THE REQUIREMENT OF MINIMUM AREA OF LAND STANDS SATISFIED IN THE INSTAN T CASE. THUS, WE FIND THAT THE VERY BASIS ON WHICH DISALLOWANCE OF DEDUCT ION OF CLAIM U/S 80IB(10) HAD BEEN MADE IN THE INSTANT CASE IS NO MO RE IN EXISTENCE. ITA NO.1686/AHD/2010 M/S NARAYAN ESTATE DEVELOPERS. VS. ITO, WARD-9(1), AHD FOR A.Y. 2006-07 - 4 - THE REVENUE COULD NOT PUT FORWARD BEFORE US ANY GOO D REASONS AS TO WHY DEDUCTION U/S 80IB(10) SHOULD NOT BE ALLOWED TO THE ASSESSEE IN RESPECT OF THE VERY SAME PROJECT FOR WHICH DEDUCTIO N WAS ALLOWED TO THE ASSESSEE BY THE ASSESSING OFFICER HIMSELF IN HIS SU BSEQUENT ORDER PASSED IN PURSUANCE OF THE REMAND MADE BY THE TRIBU NAL. IN THE ABOVE CIRCUMSTANCES, WE ALLOW THE CLAIM OF DEDUCTION U/S 80IB(10) MADE BY THE ASSESSEE IN THE INSTANT YEAR IN RESPECT OF THE VERY SAME PROJECT FOR WHICH CLAIM WAS ALLOWED BY THE ASSESSING OFFICER IN THE ASSESSMENT OF THE IMMEDIATELY PRECEDING YEAR. WE ACCORDINGLY SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES ON THIS ISSUE AND ALLOW THE G ROUND OF APPEAL OF THE ASSESSEE. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE COURT ON FRIDAY, THE 10TH O F JANUARY, 2014 AT AHMEDABAD. SD/- SD/- (KUL BHARAT) JUDICIAL MEMBER ( N.S. SAINI) ACCOUNTANT MEMBER AHMEDABAD; DATED 10/01/2014 GHA GHA GHA GHANSHYAM MAURYA NSHYAM MAURYA NSHYAM MAURYA NSHYAM MAURYA, SR. P , SR. P , SR. P , SR. P. .. .S SS S. .. . TRUE COPY $% &' ($'# $% &' ($'# $% &' ($'# $% &' ($'#/ COPY OF THE ORDER FORWARDED TO : 1. )* / THE APPELLANT 2. &+)* / THE RESPONDENT. 3. ,, - / CONCERNED CIT 4. -() / THE CIT(A)-III, AHMEDABAD 5. '01 & , , / DR, ITAT, AHMEDABAD 6. 123 4 / GUARD FILE. $% $% $% $% / BY ORDER, 5 55 5/ // / ,6 ,6 ,6 ,6 ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD