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

ITA 1777/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9548 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 05-01-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 09-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH SR D R
• Assessee Lawyers: K C THAKER
• Keywords: Tax effect

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI SHAILENDRA K. YADAV, JUDICIAL MEMBER AN D SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER ./ ITA NO. 1777/AHD/2012 / ASSESSMENT YEAR: 2008-09 INCOME TAX OFFICER, WARD -9(1) AHMEDABAD .. APPELLANT VS M/S. NARAYAN ESTATE DEVELOPER, 1-MUNICIPAL OFFICE SHOP, B/H. KADIAWAD, SARASPUR, AHMEDABAD .. RESPONDENT PAN : AAFFN 1582 P REVENUE BY : SHRI DINESH SINGH, SR-DR ASSESSEE(S) BY : SHRI K.C. THAKER, AR / DATE OF HEARING 05/01/2016 /DATE OF PRONOUNCEMENT 12/02/2016 / O R D E R PER SHAILENDRA K. YADAV, JUDICIAL MEMBER: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-XV, AH MEDABAD DATED 25.05.2012 FOR ASSESSMENT YEAR 2008-09, ON THE FOLL OWING GROUNDS:- 1A) THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV , AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DIRECTIN G THE ASSESSING OFFICER TO ALLOW THE ASSESSEES CLAIM FOR DEDUCTION OF RS.25,13,634/- U/S 80IB(10) OF THE I.T. ACT. 1B) THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-X V, AHMEDABAD HAS ERRED IN HOLDING THAT THE ASSESSEE FU LFILLS THE CONDITIONS LAID DOWN FOR CLAIMING DEDUCTION U/S 80I B(10) ITA NO. 1777/AHD/2012 ITO VS. NARAYAN ESTATE DEVELOPER AY : 2008-09 2 EVEN WHEN THE LAND WAS IN THE NAME OF SAHNAZ NASIM AHMEDI & OTHERS WHICH IS A SEPARATE LEGAL ENTITY IN THE EY E OF LAW AND THE ASSESSEE ENTERED INTO THE PROJECT BY A DEVELOPM ENT AGREEMENT WITH THE SOCIETY. THE ENTIRE RESPONSIBIL ITY TO EXECUTE THE HOUSING PROJECT AND ABIDE BY THE TERMS AND CONDITIONS OF ITS APPROVAL RIGHT FROM THE INCEPTION OF THE PROJECT TILL ITS COMPLETION RESTS WITH THE SOCIETY. THE LOCAL AUTHORITY HAD GRANTED PERMISSION FOR DEVELOPMENT AN D CONSTRUCTION OF THE PROJECT TO THE SOCIETY. ASSESSE E WAS JUST A CONTRACTOR OF THE LAND OWNERS CONSTRUCTING RESIDENT IAL UNITS AND NOT A DEVELOPER. 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV, AHMEDABAD OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFF ICER. 3) IT IS THEREFORE, PRAYED THAT THE ORDER OF THE L D. COMMISSIONER OF INCOME-TAX (APPEALS)-XV, AHMEDABAD MAY BE SET AS IDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 2. BEFORE US, AT THE OUTSET, LD. AUTHORIZED REPRESE NTATIVE SUBMITTED THAT THE PRESENT APPEAL OF THE REVENUE NEEDS TO BE DISMISSED ON ACCOUNT OF LOW TAX EFFECT IN VIEW OF THE CBDT CIRCULAR NO.2 1 OF 2015 DATED 10.12.2015. THE LD. DEPARTMENTAL REPRESENTATIVE FA IRLY ADMITTED THAT THE TAX EFFECT IS LESS THAN THE LIMIT PRESCRIBED BY THE AFORESAID CBDT CIRCULAR. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. ON PERUSING THE GROUNDS OF APPEAL RAISED B Y THE REVENUE, WE FIND THAT REVENUE IS AGGRIEVED BY THE ORDER OF CIT( A) IN DIRECTING THE ASSESSING OFFICER TO ALLOW THE ASSESSEES CLAIM FOR DEDUCTION U/S 80IB(10) OF RS.25,13,634/- AND THE TAX EFFECT OF THIS APPEAL IS BELOW RS.10 LACS. AS PER THE ANNOUNCEMENT OF CENTRAL BOARD OF DIRECT TAX ES (CBDT) DATED 10.12.2015 (CIRCULAR NO.21 OF 2015), NO DEPARTMENT APPEALS ARE TO BE FILED AGAINST RELIEF GIVEN BY LD. CIT(A) BEFORE THE INCOM E TAX APPELLATE TRIBUNAL UNLESS THE TAX EFFECT, EXCLUDING INTEREST EXCEEDS RS.10 LACS AND IT ITA NO. 1777/AHD/2012 ITO VS. NARAYAN ESTATE DEVELOPER AY : 2008-09 3 FURTHER STATES THAT THE INSTRUCTIONS WILL APPLY RET ROSPECTIVELY TO THE PENDING APPEALS. IN THE PRESENT CASE, SINCE IT IS AN UNDISPUTED FACT THAT THE TAX EFFECT IS LESS THAN RS.10 LACS, WE ARE OF T HE VIEW THAT THE MONETARY LIMIT PRESCRIBED BY THE INSTRUCTIONS OF THE AFORESA ID CBDT CIRCULAR WOULD BE APPLICABLE TO THE PRESENT APPEALS OF THE D EPARTMENT AND THEREFORE THE PRESENT APPEAL IS NOT MAINTAINABLE ON ACCOUNT OF LOW TAX EFFECT. IN SUCH CIRCUMSTANCES, WE DISMISS THIS APP EAL OF REVENUE WITHOUT EXPRESSING ANY OPINION ON MERITS OF THE CASE. 4. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED IN LIMINE. ORDER PRONOUNCED IN THE COURT ON 12TH FEBRUARY, 201 6 AT AHMEDABAD. SD/- SD/- ANIL CHATURVEDI SHAILEND RA K. YADAV (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD; DATED 12/02/2016 BIJU T., PS !' #'$ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! ' ' # / CONCERNED CIT 4. ' ' # ( ) / THE CIT(A) 5. &'( ! , ' ! , / D R, ITAT, AHMEDABAD 6. (- . / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD