The ITO, Ward-2(5), Baroda V. Shree Ambika Niketan Enterprises, Baroda

ITA 1785/AHD/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0945 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-08-2016
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 28-07-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 18-06-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: K C THAKER
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH BEFORE: SHR I S. S. GODARA , JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER THE ITO, WARD - 2(5), AAYAKAR BHAVAN, RACE COURSE CIRCLE, BARODA (APPELLANT) VS M/S. SHREE AMBIKA NIKETAN ENTERPRISES, OPP. PAVITRA T. SHIP MANEJA ROAD, BARODA - 390013 PAN: ABBFS6303G (RESPONDENT) REVENUE BY : S H RI PRASOON KABRA , SR. D . R. ASSESSEE BY: S H RI K.C. THAKER , A.R. DATE OF HEARING : 28 - 07 - 2 016 DATE OF PRONOUNCEMENT : 19 - 08 - 2 016 / ORDER P ER : S. S. GODARA , JUDICIAL MEMBER : - THESE TWO REVENUE S APPEAL S FOR A.Y S. 2008 - 09 AND 2009 - 10 , AR ISE FROM DIFFERENT ORDER S OF THE CIT(A) - II, BARODA DATED 25 - 07 - 2011 AND 26 - 03 - 2013, PASSED IN APPEAL NO S . CAB/II - 276/10 - 11 AND CAB/II - 275/11, DEL ETING SECTION 80IB(10) DISALLOWANCE OF RS. I T A NO S . 2395 / A HD/20 11 & 1785/ AHD/2011 A SSESSMENT YEAR 200 8 - 09 & 2009 - 10 I.T.A NO S. 2395 & 1785 /AHD/20 11 A.Y. 2008 - 09 & 2009 - 10 PAGE NO ITO VS. M/S. SHREE AMBIKA NIKETAN ENTERPRISES 2 68,22,676/ - AND RS. 56,73,777/ - ; RESPECTIVELY; IN PROCEEDINGS UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2. WE COME TO REVENUE S PLEADINGS FIRST. IT RAISES TWO SUBSTANTIVE GROUNDS IN SEEKING TO REVERSE THE CIT(A) S FINDINGS HOLDING THE ASSESSEE ENTITLED FOR SECTION 80IB(10) DEDUCTION AS AGAINST THE ASSESSING OFFICER S ACTION DISALLOWING THE SAME AFTER CONCLUDING THAT THE ASSESSEE WAS NOT THE OWNER/DEVELOPER OF THE HOUSING PROJECT IN QU ESTION AND ALSO THAT THE IMPUGNED DEDUCTION IS NOT ALLOWABLE IN RESPEC T OF THE PROCEEDS ATTRIBUTABLE TO THE SALE OF UN - UTILIZED FSI AND NOT THE DWELLING UNITS IN THE PROJECT CONCERNED. 3. BOTH THE PARTIES EXPRESS AGREEMENT QUA THE REVENUE S FIRST GRO UND HEREINABOVE THAT A CO - ORDINATE BENCH OF THIS TRIBUNAL IN ASSESSEE S CASE ITA 2748/AHD/2010 DECIDED ON 07 - 01 - 2011 HAS REMITTED THE ISSUE BACK TO THE ASSESSING OFFICER FOR DECISION AFRESH KEEPING IN MIND THE RELEVANT PROJECT DOCUMENT S /AGREEMENTS TO THE E FFECT THAT THE ASSESSEE IS THE DEVELOPER THEREOF. SHRI K.C. THAKER AT THIS STAGE SUBMITS THAT THE ASSESSING AUTHORITY IS YET TO PASS ITS FINAL ORDER AND ITS NET RESULT IS THAT THE IMPUGNED DEDUCTION CLAIM IS DEEMED TO HAVE BEEN ACCEPTED. LEARNED DEPARTME NTAL REPRESENTATIVE DOES NOT PLACE ON RECORD ANY CONSEQUENTIAL ORDER PASSED IN FURTHERANCE T O TRIBUNAL S DIRECTIONS. NOR THERE IS ANY MATERIAL BEFORE US TO CONCLUDE THIS FORMER GROUND EITHER WAY. WE FOLLOW LEARNED CO - ORDINATE BENCH DIRECTION IN THESE PECULIAR FACTS AND REMIT THIS FIRST SUBSTANTIVE GROUND IDENTICAL IN BOTH APPEALS BACK TO THE I.T.A NO S. 2395 & 1785 /AHD/20 11 A.Y. 2008 - 09 & 2009 - 10 PAGE NO ITO VS. M/S. SHREE AMBIKA NIKETAN ENTERPRISES 3 ASSESSING OFFICER FOR A FRESH DECISION IN TUNE WITH THAT TAKEN IN ASSESSMENT YEAR 2007 - 08 . THIS FIRST SUBSTANTIVE GROUND IDENTICAL IN BOTH APPEALS IS ACCEPTED FO R STATISTICAL PURPOSES. 4. WE COME TO THE REVENUE S LATTER GROUND IDENTICAL IN BOTH ASSESSMENT YEARS CHALLENGING SECTION 80IB(10) DEDUCTION GRANTED QUA UN - UTILIZED FSI IN THE TWO ASSESSMENT YEARS. WE FIND THAT ITS UTILIZED FSI RATIO VIS - - VIS THE UN - UT ILIZED IS 6337.32:23829.68 IN THE FORMER ASSESSMENT YEAR. WE NOTICE THAT THE ASSESSEE UTILIZED FSI OF 15,552.11/ - OUT OF THE TOTAL FSI OF 37,859.20 SQUARE METER IN THE LATTER ASSESSMENT YEAR. THE ASSESSING OFFICER DISALLOWED ITS DEDUCTION CLAIM BY HOLDIN G THAT THE SAME IS NOT ALLOWABLE IN RELATION TO THE ABOVE STATED UN - UTILIZED FSI. THE CIT(A) DOES NOT APPEAR TO HAVE BEEN DEALT WITH THIS ISSUE WITH AN ELABORATE DISCUSSION. 5. WE NOTICE THAT HON BLE JURISDICTIONAL HIGH COURT IN A (2014) 367 ITR 621 (GUJ) C IT VS. MOON STAR DEVELOPERS AGREES WITH A SIMILAR REVENUE S CONTENTION SUPPORTING ASSESSING OFFICER S OPINION. THEIR LORDSHIPS LATTER DECISION (2014) 44 TAXMANN.COM 461 (GUJ) CIT VS. SHREENATH INFRASTRUCTURE ALSO DEALS WITH AN IDENTICAL ISSUE WHEREIN THE SAID ASSESSEE HAD UTILIZED 9595.654 SQ. MT. OF BUILDABLE AREA AGAINST THE MAXIMUM PERMISSIBLE AREAS OF 13000 SQ. MT. THE SAID CASE INVOLVED UN - UTILIZED FSI OF 25% TO 30%. HON BLE JURISDICTIONAL HIGH COURT HAS TREATED THE SAME AS A MARGINAL ONE NOT TO BE HIT BY DEDUCTION DISALLOWANCE. WE DRAW SUPPORT THEREFROM TO ACCEPT REVENUE S ARGUMENTS IN PRINCIPLE QU A LATTER GROUND. WE ACCO RDI NGLY I.T.A NO S. 2395 & 1785 /AHD/20 11 A.Y. 2008 - 09 & 2009 - 10 PAGE NO ITO VS. M/S. SHREE AMBIKA NIKETAN ENTERPRISES 4 DIRECT THE ASSESSING OFFICER TO TREAT UP TO 30% OF THE PROJECT S UN - UTILIZED FSI AS A MARGINAL ONE AND DISALLOW THE REMAINING FIGURE IN ASSESSEE S HANDS. THE REVENUE S ARGUMENTS ARE ACCO RDI NGLY ACCEPTED IN PART SO FAR AS QUANTUM OF THE IMPUGNED DISALLOWANCE IS CONCERNED. THE ASSESSING OFFICER SHALL FRAME FINAL COMPUTATION. 6. THESE TWO REVENUE S APPEALS ARE PART LY ACCEPTED IN ABOVE TERMS. ORDER PR ONOUNCED IN THE OPEN C OURT ON 19 - 08 - 201 6 SD/ - SD/ - ( MANISH BORAD ) ( S. S. GODARA ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 19 /08 /2016 AK / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,