The ITO, Ward-2(1), Baroda V. M/s. Meet Developers, Baroda

ITA 1687/AHD/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1181 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-07-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 11-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANTONY PARIATH
• Keywords: Audit objection; Tax effect

Judgement Text

SMC-ITA NO. 1687/AHD/2013 ITO VS. M/S MEET DEVELOPER ASSESSMENT YEAR: 2009-10 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD [ BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER ] ITA NO.1687/AHD/2013 ASSESSMENT YEAR: 2009-10 INCOME-TAX OFFICER ...............APPELLAN T WARD- 2(1), BARODA VS. M/S. MEET DEVELOPER ........................... .RESPONDENT PATEL FALIA, TARSALI BARODA PAN : AAFFM 8304 A APPEARANCES BY: ANTONY PARIATH, FOR THE APPELLANT URVASHI SHODHAN, FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : JULY 5TH, 2016 DATE OF PRONOUNCING THE ORDER : JULY 7 TH , 2016 O R D E R THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-II, BARODA DATED 22.03.2013 PA SSED FOR ASSESSMENT YEAR 2009-10. 2. THE EFFECTIVE GROUNDS RAISED BY THE REVENUE IN I TS APPEAL READ AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(APPEALS) ERRED IN ALLOWING DEDUCTION OF RS.27,91,350/- U/S 8 0IB(10) OF THE INCOME-TAX ACT WITHOUT APPRECIATING THAT THE NATURE OF AGREEMENT BE TWEEN THE ASSESSEE AND THE UNIT PURCHASERS SHOWS THAT IT WAS ONLY A WORKS CONTRACT I N SO FAR AS THE AGREEMENT ENTERED INTO BEFORE THE CONSTRUCTIONS WAS COMPLETE AND NOT A FTER THE FLAT OR UNIT WAS CONSTRUCTED. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(APPEALS) ERRED IN ALLOWING DEDUCTION OF RS.18,24,526/- U/S 8 0IB(10) R.W.S. 80IB(1)TO THE ASSESSEE ON THE PROFIT DERIVED FROM SALE OF UNUTILIZED FSI NO T BEING THE ELEMENT OF PROFITS DERIVED FROM THE BUSINESS ACTIVITY OF DEVELOPMENT AND CONSTR UCTION OF THE HOUSING PROJECT RELATING TO THE SALE OF TENEMENTS. 3. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSES SEE CONTENDED THAT AS PER THE RECENT CENTRAL BOARD OF DIRECT TAXES CIRCULAR NO. 21/2015 IN F.NO.279/MISC. 142/2007-ITJ (PT) DATED 10TH DECEMBER 2015, THE REVISED LIMIT FOR PRE FERRING REVENUE'S APPEALS BEFORE ITAT SMC-ITA NO. 1687/AHD/2013 ITO VS. M/S MEET DEVELOPER ASSESSMENT YEAR: 2009-10 PAGE 2 OF 3 IS RS.10,00,000/-. SHE POINTED OUT THAT THE TAX EF FECT IN THE PRESENT REVENUE'S APPEAL IS BELOW THE PRESCRIBED LIMIT OF RS.10,00,000/-; THER EFORE, THE REVENUE'S APPEAL MAY BE DISMISSED AS THE TAX EFFECT BEING BELOW THE PRESCRI BED LIMIT. 4. THE LD. DEPARTMENTAL REPRESENTATIVE COULD NOT CO NTROVERT THE AFORESAID SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE. 5. I HAVE HEARD BOTH THE SIDES AND PERUSED THE MATE RIAL PLACED BEFORE ME. I FIND THAT PRIMA-FACIE THIS APPEAL OF THE REVENUE IS NOT MAINT AINABLE IN VIEW OF CBDT CIRCULAR NO. 21/2015 IN F.NO.279/MISC. 142/2007-ITJ (PT) DATED 1 0TH DECEMBER 2015, VIDE WHICH IT HAS BEEN PROVIDED THAT IF THE TAX EFFECT BY VIRTUE OF T HE COMMISSIONER OF INCOME-TAX (APPEALS)S ORDER IS BELOW RS.10,00,000/-, THEN THAT ORDER WOUL D NOT BE CHALLENGED BEFORE THE TRIBUNAL IN FURTHER APPEAL. THE BOARD HAS PROVIDED EXEMPTIO NS AT CLAUSE (8) OF THE INSTRUCTIONS WHEREIN IT HAS BEEN PROVIDED THAT THESE INSTRUCTION S WILL NOT BE APPLICABLE, IF VIRES OF ANY PROVISIONS HAS BEEN QUASHED BY IMPUGNED ORDER OR AD DITION WAS MADE ON SOME AUDIT OBJECTIONS OR THE ADDITION RELATES TO UNDISCLOSED F OREIGN ASSETS/BANK ACCOUNTS, ETC. I FIND THAT THE PRESENT CASE DOES NOT FALL WITHIN THE EXEM PTION CLAUSE AND THE TAX IS LESS THAN RS.10,00,000/-. THEREFORE, THE PRESENT APPEAL IS NOT MAINTAINABLE AND HENCE DISMISSED. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED IN LIMINE . PRONOUNCED IN THE OPEN COURT TODAY ON 7 TH JULY, 2016 SD/- PRAMOD KUMAR (ACCOUNTAN T MEMBER) AHMEDABAD, THE 7 TH DAY OF JULY, 2016 BT* COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD