The ITO, Ward-1(1), RAJKOT-GUJARAT V. M/s. Gunjan Sthapatya, RAJKOT-GUJARAT

ITA 186/RJT/2014

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1095 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 2 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 25-05-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 12-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Assessee Lawyers: KEYUR N PARMAR
• Keywords: Reopening of assessment
• Section: 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI N.S. SAINI, ACCOUNTANT MEMBER ./ ITA NO.186 AND 257/RJT/2014 / ASSTT. YEAR: 2009-10 AND 2010-11 ITO, WARD-1(1) RAJKOT. VS M/S.GUNJAN STHAPATYA C/O. SANDEEP ENTERPRISE SANDEEP ESTASTE, PLOT NO.4 LOHANAGAR, RAJKOT. / (APPELLANT) / (RESPONDENT) REVENUE BY : SHRI AVINASH KUMAR, AR ASSESSEE BY : SHRI KEYUR N. PARMAR, CA / DATE OF HEARING : 28/05/2015 / DATE OF PRONOUNCEMENT: 29/05/2015 / O R D E R PER N.S. SAINI, ACCOUNTANT MEMBER: THESE APPEALS ARE FILED BY THE REVENUE AGAINST THE ORDER OF THE C IT(A)-I, RAJKOT DATED 27.12.2013 FOR THE ASSTT.YEAR 2009-10 AND ORD ER OF THE CIT(A), JAMNAGAR DATED 24.1.2014 FOR THE ASSTT.YEAR 2010-11. 2. THE COMMON GROUND OF APPEAL TAKEN IN BOTH THE AP PEALS BY THE REVENUE IS THAT THE CIT(A) ERRED IN DELETING TH E DISALLOWANCE OF RS.19,48,810/- FOR THE ASSTT.YEAR 2009-10 AND RS .53,66,108/- FOR THE ASSTT.YEAR 2010-11 UNDER SECTION 80IB(10) OF THE ACT. 3. BRIEF FACTS OF THE CASE ARE THAT THE AO DISALLOWE D DEDUCTION CLAIMED BY THE ASSESSEE UNDER SECTION 80IB(10) OF RS .19,48,810/- FOR THE ASSTT.YEAR 2009-10 AND RS.53,66,108/- FOR T HE ASSTT.YEAR 2010-11 ON THE GROUND THAT THE PURCHASE OF LAND ON 11.5.2004 ITA NO.257/RJT/2014 (2) 2 WAS CONVERTED INTO NA ON 20.6.2005. THEREAFTER, A LAY OUT PLAN OF SUB-PLOTTING CONSISTING 55 PLOTS WAS SUBMITTED FOR APPROVAL AND WAS ALSO APPROVED. THIS SHOWS THAT PRIMARILY THE P URCHASER OF THE LAND HAD INTENTION TO SELL THE SUBPLOTS IN INDIVIDU AL CAPACITY AND THERE WAS NO INTENTION WHATSOEVER FOR MATERIALIZING A HOUSING PROJECT. FURTHER, THE ASSESSEE HAD OBTAINED 11 D IFFERENT APPROVALS AND IN NONE OF THE APPROVAL, IT WAS MENTI ONED THAT THE PROJECT WAS NAMED AND STYLED AS GUNJAN VIHAR. T HEREFORE, IT WAS BEYOND THE STRETCH OF IMAGINATION THAT THE ASSE SSEE CAN CLAIM THAT IT HAD UNDERTAKEN PROJECT IN THE NAME AND STYL E OF GUNJAN VIHAR. FURTHER, NONE OF 11 PROJECTS, FULFILLED T HE CONDITIONS FOR ENJOYING DEDUCTION UNDER SECTION 80IB(10) WHICH CAN BE SEEN FROM THE DETAILS GIVEN THAT IN ALL CASES THE LAND W AS LESS THAN ONE ACRE. THE APPROVAL HAS NOT BEEN OBTAINED IN THE NA ME OF FIRM, AND IN MOST OF THE CASES PLAN WAS APPLIED FOR APPRO VAL EVEN BEFORE THE EXISTENCE OF THE ASSESSEE FIRM AND EVEN IN SOME OF THE CASES THE COMMERCIAL AREA EXCEEDS 5%. 4. THE AO FURTHER OBSERVED THAT FOR THE SAME REASON IN THE ASSTT.YEAR 2008-09, THE DEDUCTION CLAIMED BY THE AS SESSEE WAS DISALLOWED. THEREFORE, THE AO DISALLOWED CLAIM FOR DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. 5. ON APPEAL, THE CIT(A) ALLOWED THE CLAIM FOR DEDU CTION UNDER SECTION 80IB(10) OF THE ACT TO THE ASSESSEE ON THE G ROUND THAT HIS PREDECESSOR IN THE ASSTT.YEAR 2008-09 IN APPEAL NO. CIT(A)- I/0179/10-11 DTD.29/6/2011 HELD AS UNDER: ITA NO.257/RJT/2014 (2) 3 3.2 I HAVE CAREFULLY CONSIDERED THE FINDINGS GIVEN BY THE ASSESSING OFFICER AND THE SUBMISSION OF THE AR OF T HE APPELLANT. IT IS FOUND THAT THE ASSESSING OFFICER IN PARA-3 OF THE ASSESSMENT ORDER MENTIONED THAT THE APPELLANT F IRM IS ENGAGED IN THE BUSINESS OF BUILDER AND DEVELOPER. T HE ASSESSING OFFICER VIDE PARAS-4 AND 5 OF THE ASSESSM ENT ORDER OBSERVED THAT THE APPELLANT HAD DEVELOPED AND CONST RUCTED 11 DIFFERENT PROJECTS WHICH ARE NOT FULFILLED THE C ONDITIONS LAID DOWN U/S. 80IB(10) OF THE ACT SINCE IT WAS OBTAINED DIFFERENT APPROVALS ON DIFFERENT DATES FROM LOCAL AUTHORITY C ONNOTES DIFFERENT PROJECTS. THE FACTS OF THE CASE ARE THAT THE APPELLANT IS A PARTNERSHIP FIRM DULY CONSISTED ON 0 5.08.2005 CONSISTING 8 PARTNERS. AS THE AGRICULTURAL LAND COU LD NOT BE PURCHASED IN NAME OF PARTNERSHIP FIRM, BEFORE ENTER ING INTO LEGAL WRITTEN PARTNERSHIP DEED, THE ABOVE PARTNERS ORALLY DECIDED TO PURCHASE SUCH LAND IN THEIR JOINT NAMES, FOR THE PURPOSE OF CARRYING OUT THE BUSINESS OF DEVELOPING AND CONSTRUCTION HOUSING PROJECTS. THEY HAVE PURCHASED 2 ACRES AGRICULTURAL LAND ADMEASURING 6052. 18 Q. MTR AT SU RVEY NO. 55 OF RAIYA VILLAGE, TALUKA RAJKOT, DIST. RAJKOT ON 11.05.2004 SPECIFYING THEIR SHARES. SUBSEQUENTLY. T HE SAID AGRICULTURAL LAND 11'AS CONVERTED INTO NON AGRICULT URAL LAND FOR RESIDENTIAL PURPOSE VIDE RAJKOT COLLECTOR'S ORD ER NO. NAJLRCL/B5 CASE NO. 355/04-05, DATED 02.07.2005 AND LAYOUT PLAN OF 55 PLOTS HAVE BEEN APPROVED. THEREAF TER, APPLICATION WAS MADE TO LOCAL AUTHORITY FOR APPROVA L OF THE PROJECT ON 11.07.2005 FOR DEVELOPMENT AND CONSTRUCT ION OF HOUSING PROJECT ON DIFFERENT PLOTS HAVING DIFFEREN T SQ. MTRS IN THE NAME OF SHRI SANJEEV CHANIYARA AND OTHERS. A ND SUBSEQUENTLY, THE ABOVE PARTNERS OF THE FIRM WERE E NTERED INTO PARTNERSHIP FIRM ON 05.08.2005 IN THE NAME AND STYLE 'GUNJAN STHAPTYA ' TO PUT THEIR ORAL PARTNERSHIP IN TO WRITTEN DOCUMENTS BY CLEARLY INDICATING THAT SUCH DEED WAS DRAFTED IN ORDER TO PUT THEIR ORAL UNDERSTANDING REGARDING, BUSINESS OF DEVELOPING AND BUILDING HOUSING PROJECTS INTO LE GAL TERMINOLOGY, AND THAT ALL PARTNERS WOULD HE BRINGIN G LAND AS THEIR CAPITAL CONTRIBUTION. FURTHER, FROM THE DETAI LS SUBMITTED. IT IS CLEAR THAT A HOUSING PROJECT IS ON THE SIZE OF A PLOT OF LAND WHICH HAS 1.1278 ACRE AREA OF LAND. TH US, THE APPELLANT'S UNDERTAKING MEET THE REQUIREMENT OF SEC TION 80- IB(10)(B) OF THE ACT AS TO REQUIREMENT OF MINIMUM 1 ACRE LAND, AND THE PROJECT WAS COMPLETED WITHIN THE LIME STIPULATED UNDER SECTION 8-IB(10)(A)(III) OF THE ACT . FURTHER, IT IS FOUND THAT ALL! UNITS CONSTRUCTED AS PER APPR OVED LAYOUT PLANT. MERELY, BECAUSE FOR ONE SUCH HOUSING PROJEC T, THE APPROVAL WAS FROM LOCAL AUTHORITY MORE THAN ONCE IT COULD NOT BE SAID THAT THE APPELLANT AHS DEVELOPED AND CO NSTRUCTED ITA NO.257/RJT/2014 (2) 4 11 DIFFERENT HOUSING PROJECTS. THE APPELLANT HAS CO NSTRUCTED, DEVELOPED AND BUILD ONLY ONE HOUSING, PROJECT ON TH E SITE OF A PLOT OF / LAND WHICH HAS UREA OF' 2 ACRES. IT IS ALSO FOUND THAT THE APPELLANT FIRM IS FILING ITS RETURNS OF IN COME FROM THE ASSESSMENT YEAR 2007-08 ONWARDS. SECTION 80(IB)(10) OF THE ACT PROVIDES I00% TAX BENEFIT TO 'HOUSING PROJE CTS'. FURTHER, CLAUSE (H) OF SECTION 80-1B(10) REQUIRES TH AT 'THE PROJECT IS ON THE SITE OF A PLOT OF LAND WHICH HAS A MINIMUM AREA OF ONE ACRE '. HOWEVER, THERE IS NO PROVISION THAT TWO OR MORE PLOTS OF LAND SHOULD NOT BE JOINED FOR DEVELOP ING HOUSING PROJECTS. THE SECTION NOWHERE REQUIRES THAT PROJECT HAS /0 HE ON A SINGLE PLOT OF LAND HAVING PRESCRIBE D AREA MORE THAN ONE ACRE. THE HON'BLE SUPREME COURT IN TH E CASE OF BAJAJ TEMPO LTD VS. C'IT 196 ITR 188, HELD THAT 'A PROVISION IN A TAXING STATUTE GRANTING INCENTIVES F OR PROMOTING GROWTH AND DEVELOPMENT SHOULD BE CONSTRUE D LIBERALLY, AND SINCE A PROVISION FOR PROMOTING ECON OMIC GROWTH HAS TO BE INTERPRETED LIBERALLY, THE RESTRIC TION ON IT LOO HAS TO BE CONSTRUED SO AS 10 ADVANCE THE OBJECTIVE OF THE PROVISION AND. NOT TO FRUSTRATE IT, ' SECTION 80-1B (10) IS AIMED TO PROMOTE CONSTRUCTION HOUSING PROJECTS. FU RTHER IN VIEW OF THE DECISION OF BRABMA ASSOCIATES VS. JCIT (ITAT PUNE SPECIAL BENCH) 122 TTJ (PUNE)(SB) 433 ALSO THE DEDUCTION U/S.801B IS AVAILABLE TO THE APPELLANT. TH EREFORE, THE DEDUCTION U/S.80IB(10) OF THE ACT IS AVAILABLE T O AN UNDERTAKING AND FIRM IS AN UNDERTAKING, HENCE ELIGI BLE FOR DEDUCTION. THEREFORE, AS HELD BY THE HONBLE ITAT C HENNAI 'A' BENCH IN THE CASE ACIT VS. SMT. C RAJINI (2011) 9 ITR (TRIB) 487 (CHENNAI), THE APPELLANT FIRM IS ENTITLE 10 CLAIM DEDUCTION ULS.8(JIB OF THE IT. ACT, 1961, AND THEREF ORE, THE DISALLOWANCE OF RS.24505240/- MADE BY THE ASSESSING OFFICER ULS.80IB OF THE IT ACT 1961 IS HEREBY ORDERE D TO BE DELETED. THIS GROUND OF APPEAL IS ALLOWED.' 6. THE CIT(A)BY OBSERVING THAT THE FACTS OF THE APP EAL ARE IDENTICAL AS IN ASSTT.YEAR 2008-09, DELETED THE ADD ITION. 7. SIMILARLY IN ASSTT.YEAR 2009-10 ALSO THE AO HAD MADE DISALLOWANCE UNDER SECTION 80IB(10) FOR THE REASONS AS GIVEN IN THE ASSTT.YEAR 2008-09 AND THE CIT(A) ALLOWED THE C LAIM BY FOLLOWING HIS ORDER FOR THE ASSTT.YEAR 2008-09 AND 2009-10. ITA NO.257/RJT/2014 (2) 5 8. THE AR OF THE ASSESSEE SUBMITTED THAT THE REVENU E FILED APPEAL BEFORE THE TRIBUNAL IN THE ASSTT.YEAR 2008-0 9 AGAINST THE ORDER OF THE CIT(A) AND THE TRIBUNAL IN ITA NO.351/ RJT/2011 ORDER DATED 18.2.2015 CONFIRMED THE ORDER OF THE CI T(A) AND DISMISSED THE APPEAL OF THE REVENUE. THEREFORE, HE SUBMITTED THAT THE APPEAL OF THE REVENUE SHOULD BE DISMISSED FOR BOTH THE YEARS UNDER APPEALS. 9. THE DR VERY FAIRLY CONCEDED THAT THE ISSUE WAS C OVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THE TRIBUNAL IN THE ASSTT.YEAR 2008-09. 10. WE FIND THAT IN THE ABOVE ORDER, THE TRIBUNAL F OR THE ASSTT.YEAR 2008-09 HAS HELD AS UNDER: 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED TH E MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE JUDGEMENT RELIED UPON BY THE L D.COUNSEL FOR THE ASSESSEE. WE FIND THAT THE LD.CIT(A) HAS DELETED THE ADDITION BY GIVING A FINDING ON FACT AS UNDER:- 3.2. I HAVE CAREFULLY CONSIDERED THE FINDING GIVEN BY THE ASSESSING OFFICER AND THE SUBMISSION OF THE AR OF T HE APPELLANT. IT IS FOUND THAT THE ASSESSING OFFICER IN PARA-3 OF THE ASSESSMENT ORDER HAS MENTIONED THAT THE APPELLANT FIRM IS ENGA GED IN THE BUSINESS OF BUILDER AND DEVELOPER. THE ASSESSING O FFICER VIDE PARAS-4 AND 5 OF THE ASSESSMENT ORDER OBSERVED THAT THE APPELLANT HAD DEVELOPED AND CONSTRUCTED 11 DIFFEREN T PROJECTS WHICH ARE NOT FULFILLED CONDITIONS LAID DOWN U/S.80 IB(10) OF THE ACT SINCE IT HAS OBTAINED DIFFERENT APPROVALS ON DI FFERENT DATES FROM LOCAL AUTHORITY CONNOTES DIFFERENT PROJECTS. THE FACTS OF THE CASE ARE THAT THE APPELLANT IS A PARTNERSHIP FIRM D ULY CONSTITUTED ON 05-08-2005, CONSISTING THE 8 PARTNERS. AS THE A GRICULTURAL LAND COULD NOT BE PURCHASED IN NAME OF PARTNERSHIP FIRM, BEFORE ENTERING INTO LEGAL WRITTEN PARTNERSHIP DEED, THE A BOVE PARTNERS ORALLY DECIDED TO PURCHASE SUCH LAND IN THEIR JOINT NAMES, FOR THE PURPOSE OF CARRYING OUT THE BUSINESS OF DEVELOPING AND ITA NO.257/RJT/2014 (2) 6 CONSTRUCTION HOUSING PROJECTS. THEY HAVE PURCHASED 2 ACRES AGRICULTURAL LAND ADMEASURING 6052.18 SQ.MTR AT SUR VEY NO.55 OF RAIYA VILLAGE, TALUKA RAJKOT, DIST.RAJKOT ON 11. 05.2004 SPECIFYING THEIR SHARES. SUBSEQUENTLY, THE SAID AG RICULTURAL LAND WAS CONVERTED INTO NON AGRICULTURAL LAND, FOR RESID ENTIAL PURPOSE VIDE RAJKOT COLLECTORS ORDER NO.NA/LRCL/B5 CASE NO .355/04- 05, DATED 02.07.2005 AND LAYOUT PLAN OF 55 PLOTS HA VE BEEN APPROVED. THEREAFTER, APPLICATION WAS MADE TO LOCA L AUTHORITY FOR APPROVAL OF THE PROJECT ON 11.07.2005, FOR DEVE LOPMENT AND CONSTRUCTION OF HOUSING PROJECT ON DIFFERENT PLOTS HAVING DIFFERENT SQ.MTRS IN THE NAME OF SHRI SANJEEV CHANIYARA AND O THERS, AND SUBSEQUENTLY, THE ABOVE PARTNERS OF THE FIRM WERE E NTERED INTO PARTNERSHIP FIRM ON 5.08.2005 IN THE NAME AND STYLE GUNJAN STHAPTYATO PUT THEIR ORAL PARTNERSHIP INTO WRITTEN DOCUMENTS BY CLEARLY INDICATING THAT SUCH DEED WAS DRAFTED IN OR DER TO PUT THEIR ORAL UNDERSTANDING REGARDING BUSINESS OF DEVE LOPING AND BUILDING HOUSING PROJECTS INTO LEGAL TERMINOLOGY, A ND THAT ALL PARTNERS WOULD BE BRINGING LAND AS THEIR CAPITAL CO NTRIBUTION. FURTHER, FROM THE DETAILS SUBMITTED, IT IS CLEAR TH AT A HOUSING PROJECT IS ON THE SIZE OF A PLOT OF LAND, WHICH HAS 1.1278 ACRE AREA OF LAND. THUS, THE APPELLANTS UNDERTAKING ME ET THE REQUIREMENT OF SECTION 80-IB(10)(B) OF THE ACT AS T O REQUIREMENT OF MINIMUM 1 ACRE LAND, AND THE PROJECT WAS COMPLET ED WITHIN THE TIME STIPULATED UNDER SECTION 80-IB(10)(A)(III) OF THE ACT. FURTHER, IT IS FOUND THAT ALL UNITS CONSTRUCTED AS PER APPROVED LAYOUT PLAN. MERELY BECAUSE FOR ONE SUCH HOUSING P ROJECT, APPROVAL WAS TAKEN FROM LOCAL AUTHORITY MORE THAN O NCE, IT COULD NOT BE SAID THAT THE APPELLANT HAS DEVELOPED AND CO NSTRUCTED 11 DIFFERENT HOUSING PROJECTS. THE APPELLANT HAS CONS TRUCTED, DEVELOPED AND BUILD ONLY ONE HOUSING PROJECT ON THE SIZE OF A PLOT OF LAND WHICH HAS AREA OF 2 ACRES. IT IS ALSO FOUND THAT THE APPELLANT FIRM IS FILING ITS RETURNS OF INCOME FROM THE ASSESSMENT YEAR 2007-08 ONWARDS. SECTION 80-IB(10) OF THE ACT PROVIDES 100% TAX BENEFIT TO HOUSING PROJECTS. FURTHER, CL AUSE (B) OF SECTION 80-IB(10) REQUIRES THAT THE PROJECT IS ON THE SIZE OF A PLOT OF LAND WHICH HAS A MINIMUM AREA OF ONE ACRE. HOWEVER, THERE IS NO PROVISION THAT TWO OR MORE PLOTS OF LAN D SHOULD NOT BE JOINED FOR DEVELOPING HOUSING PROJECTS. THE SECTIO N NOWHERE REQUIRES THAT PROJECT HAS TO BE ON A SINGLE PLOT OF LAND HAVING PRESCRIBED AREA MORE THAN ONE ACRE. THE HONBLE SU PREME COURT IN THE CASE OF BAJAJ TEMPO LTD. VS. CIT 196 I TR 188, HELD ITA NO.257/RJT/2014 (2) 7 THAT PROVISION IN A TAXING STATUE GRANTING INCENT IVES FOR PROMOTING GROWTH AND DEVELOPMENT SHOULD BE CONSTRUE D LIBERALLY, AND SINCE A PROVISION FOR PROMOTING ECON OMIC GROWTH HAS TO BE INTERPRETED LIBERALLY, THE RESTRICTION ON IT TOO HAS TO BE CONSTRUED SO AS TO ADVANCE THE OBJECTIVE OF THE PRO VISION AND, NOT TO FRUSTRATE IT. SECTION 80-IB(10) IS AIMED TO PRO MOTE CONSTRUCTION HOUSING PROJECTS. FURTHER IN VIEW OF THE DECISION OF BRAHMA ASSOCIATES VS. JCIT (ITAT PUNE SPECIAL BENCH ) 122 TTJ (PUNE) (SB) 433 ALSO THE DEDUCTION U/S.80IB IS AVAI LABLE TO THE APPELLANT. THEREFORE, THE DEDUCTION U/S.80IB(10) O F THE ACT IS AVAILABLE TO AN UNDERTAKING AND FIRM IS AN UNDERTAK ING, HENCE ELIGIBLE FOR DEDUCTION. THEREFORE, AS HELD BY THE HONBLE ITAT CHENNAI ABENCH IN THE CASE OF JCIT VS. SMT. C. RA JINI (2011) 9 ITR (TRIB) 487 (CHENNAI), THE APPELLANT FIRM IS E NTITLE TO CLAIM DEDUCTION U/S.80IB OF THE I.T.ACT, 1961, AND THEREF ORE, THE DISALLOWANCE OF RS.24505240/- MADE BY THE ASSESSING OFFICER U/S.80IB OF THE I.T.ACT, 1961 IS HEREBY ORDERED TO BE DELETED. THIS GROUND OF APPEAL IS ALLOWED. 5.1. THE ABOVE FINDING OF THE LD.CIT(A) IS NOT CONT ROVERTED BY THE LD.SR.DR BY PLACING ANY CONTRARY MATERIAL ON RECORD . MOREOVER, THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE J UDGEMENT OF HONBLE JURISDICTIONAL HIGH COURT RENDERED IN THE CASE OF R AMKRISHNA STHAPATYA VS. ITO(SUPRA), WHEREIN THE JURISDICTIONA L HIGH COURT HAS HELD AS UNDER:- 5. HAVING THUS HEARD LEARNED COUNSEL FOR THE PART IES, WE MAY NOTICE AT THE OUTSET THAT FOR ASSESSMENT YEAR 2005- 02006, WHICH WAS THE FIRST YEAR OF DEDUCTION CLAIMED BY THE ASSE SSEE UNDER SECTION 80IB(10) OF THE ACT, THE ASSESSING OFFICER AFTER SCRUTINY AND EXAMINATION OF RECORDS HAD GRANTED THE RELIEF. SUCH ASSESSMENT IS SOUGHT TO BE REOPENED BEYOND THE PERI OD OF FOUR YEARS FROM THE END OF RELEVANT ASSESSMENT YEAR. FR OM THE RECORD, WE DO NOT EVEN FIND THAT THERE IS ANY ALLEG ATION THAT THE ASSESSING OFFICER BELIEVED THAT INCOME CHARGEABLE T O TAX HAD ESCAPED ASSESSMENT FOR THE REASON OF ASSESSEE FAILI NG TO DISCLOSE TRULY AND FULLY ALL MATERIAL FACTS NECESSARY FOR AS SESSMENT. ON THIS SHORT GROUND ALONE, WE WOULD BE JUSTIFIED IN Q UASHING REOPENING OF ASSESSMENT YEAR 2005-2006. HOWEVER, T HERE ARE ADDITIONAL REASONS WHY WE WOULD BE PROMPTED TO DO S O. FIRSTLY THE ENTIRE ASSESSMENT WAS TAKEN FOR SCRUTINY. CLAI M OF THE ITA NO.257/RJT/2014 (2) 8 ASSESSEE WAS EXAMINED BY THE ASSESSING OFFICER DURI NG THE ORIGINAL ASSESSMENT. FURTHER, REASONS RECORDED TO OUR MIND ARE NOT GERMANE. THE DEVELOPMENT PERMISSION AS WELL A S PERMISSION TO COMMENCE CONSTRUCTION GRANTED BY THE LOCAL AUTHORITY OF-COURSE ARE IN THE NAME M/S.SURESH KUMA R AND OTHERS. FROM THE MAPS ATTACHED TO SUCH PERMISSIONS , WHICH WERE ALSO CERTIFIED BY THE LOCAL AUTHORITY, IT CLEARLY E MERGES THAT OTHERS INCLUDED TWO REMAINING PARTNERS OF THE FIRM. ASSESSEE HAD THROUGH OBJECTIONS POINTED OUT THAT LAND WAS IN ITIALLY PURCHASED BY THE PARTNERS INDIVIDUALLY AND THE PART NERSHIP WAS THEREAFTER, FORMED AFTER CONVERTING THE LAND N TO N ON-AGRICULTURAL USE. LAND WAS ALSO BROUGHT WITHIN THE FOLD OF PART NERSHIP PROPERTY AND PARTNERSHIP FIRM HAD STARTED THE BUSIN ESS OF DEVELOPING HOUSING PROJECT IN THE SAID LAND. MEREL Y BECAUSE THE NAME OF PARTNERS ARE INDICATED IN DEVELOPMENT PERMI SSION GRANTED BY THE LOCAL AUTHORITY, ONE CANNOT JUMP TO THE CONCLUSION THAT PARTNERSHIP FIRM WAS NOT ENGAGED IN BUSINESS O F DEVELOPING HOUSING PROJECT. SUCH A VIEW, IN OUR OPINION, WOUL D BE TOO RIGID AND TECHNICAL, PARTICULARLY, WHEN THE DEVELOPMENT P ERMISSION IS GRANTED IN THE NAME OF ALL THREE PARTNERS OF FIRM A ND THERE ARE NO OTHER PARTNERS OTHER THAN THOSE IN WHOSE FAVOUR SUC H PERMISSION WAS GRANTED. MERELY BECAUSE DEVELOPMENT PERMISSION RECORDED NAME OF PARTNERS AND NOT FIRM, WOULD HARDLY BE AN I SSUE ON WHICH DEDUCTION UNDER SECTION 80IB(10) OF THE ACT C OULD BE DENIED PARTICULARLY, IF THE FIRM WAS FOUND TO HAVE DEVELOPED THE HOUSING PROJECT AND FULFILLED ALL OTHER CONDITIONS FOR CLAIMING SUCH DEDUCTION. MERELY BECAUSE PERMISSION IS ISSUE D IN THE NAME OF ALL PARTNERS OF THE FIRM WOULD NOT BE CONCL USIVE EVIDENCE TO SHOW THAT PARTNERSHIP HAD NOT ENGAGED ITSELF IN THE BUSINESS OF DEVELOPING HOUSING PROJECTS. 6.2. RESPECTFULLY FOLLOWING THE JUDGMENT OF HONBLE GUJARAT HIGH COURT IN THE CASE OF RAMKRISHNA STHAPATYA VS. ITO(S URPA), WE DO NOT SEE ANY REASON TO INTERFERE WITH THE ORDER OF THE L D.CIT(A), SAME IS HEREBY UPHELD. THUS, GROUND RAISED IN THE APPEAL O F THE REVENUE IS DISMISSED. ITA NO.257/RJT/2014 (2) 9 11. THEREFORE, RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL IN THE ASSTT.YEAR 2008-09 (SUPRA), WE CONFIRM THE ORDE RS OF THE CIT(A) AND DISMISS THE APPEALS OF THE REVENUE. 12. IN THE RESULT, THE APPEALS OF THE REVENUE ARE D ISMISSED. ORDER PRONOUNCED IN THE COURT ON FRIDAY THE 29 TH MAY, 2015 AT RAJKOT. SD/- SD/- ( SHAILENDRA KUMAR YADAV ) JUDICIAL MEMBER ( N.S. SAINI) ACCOUNTANT MEMBER AHMEDABAD; DATED 29/5/2015