The ITO, Ward-9(1), Ahmedabad V. M/s. Shrinand Corporation, Ahmedabad

ITA 1869/AHD/2011

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5758 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 year(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 02-08-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 27-07-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K DEV
• Assessee Lawyers: P M MEHTA
• Keywords: Set aside
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND MS. MADHUMITA ROY, JUDICIAL MEMBER ./ITA NO. 1869/AHD/2011 ( / ASSESSMENT YEAR : 2008-09) THE INCOME TAX OFFICER WARD-9(1) AHMEDABAD / VS. M/S.SHRINAND CORPORATION M.H. MILLS COMPOUND KHOKHRA GAM ROHIT MILL CIRCLE AHMEDABAD ./ ./ PAN/GIR NO. : ABAFS 8534 L ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI S.K. DEV, SR.DR / RESPONDENT BY : SHRI P.M. MEHTA, AR / DATE OF HEARING 26/07/2019 !'# / DATE OF PRONOUNCEMENT 08/08/2019 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TA X (APPEALS)I, AHMEDABAD [CIT(A) IN SHORT] VIDE APPEAL NO.CIT(A)- I/CC.1(3)/183/2010-11 DATED 12/05/2011 ARISING IN THE ASSESSMENT ORDER PASSED UNDER S.143(3) OF THE INCOME TAX ACT, 1961(HEREINAFTER REFERRED TO AS 'THE ACT') DATED 16-12-2010 RELEVANT TO ASSESSMENT YEAR (AY) 2008-09. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- ITA NO.1869/AHD/2011 ITO VS. M/S.SHRINAND CORPORATION ASST .YEAR - 2008-09 - 2 - 1. THE LD.COMMISSIONER OF INCOME-TAX (A)-I, AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE ASSESSING OFFICER TO ALLOW THE ASSESSEES CLAIM FOR DEDUCTION OF RS.4,44,55,470/- U/S.80IB(10 ) OF THE ACT. 2. THE LD. COMMISSIONER OF INCOME-TAX (A)-I, AHMEDABAD HAS ERRED IN HOLDING THAT THE ASSESSEE FULFILS THE CONDITIONS LA ID DOWN FOR CLAIMING DEDUCTION U/S.80IB(10) EVEN WHEN THE LAND WAS IN TH E NAME OF SOCIETY NAMELY NANDANVAN CO-OP. SOCIETY, WHICH ARE SEPARATE LEGAL ENTITY IN THE EYE OF LAW AND THE ASSESSEE ENTERED INTO THE PROJEC T BY A DEVELOPMENT AGREEMENT WITH THEM. THE ENTIRE RESPONSIBILITY TO EXECUTE THE HOUSING PROJECT(S) AND ABIDE BY THE TERMS AND CONDITIONS OF ITS APPROVAL RIGHT FROM THE INCEPTION OF THE PROJECT(S) TILL ITS COMPLETION RESTS WITH THE SOCIETY. ASSESSEE WAS JUST A CONTRACTOR OF THE LAND CONSTRUC TING HOUSING PROJECTS AND NOT A DEVELOPER. 2. THE ONLY ISSUE RAISED BY THE REVENUE IS THAT THE LEARNED CIT (A) ERRED IN DELETING THE ADDITION MADE BY THE AO FOR 4,44,55,470.00 BY ALLOWING THE DEDUCTION UNDER SECTION 80IB (10) OF T HE ACT. 3. AT THE OUTSET, THE LEARNED DR FOR THE REVENU E SUBMITTED THAT THE 1 ST YEAR FOR CLAIMING THE DEDUCTION UNDER SECTION 80IB( 10) OF THE ACT PERTAINS TO THE ASSESSMENT 2006-07 WHICH IS PENDING BEFORE THE LEARNED CIT (A) ALONG WITH THE AY 2007-08 BY VIRTUE OF THE DIRECTION OF THIS TRIBUNAL IN THE OWN CASE OF THE ASSESSEE BEARING IT A NOS. 111 AND 112/AHD/2010 VIDE ORDER DATED 07-06-2013. ACCORDING LY, THE LEARNED DR SUBMITTED BEFORE US TO RESTORE THE MATTER TO THE FILE OF THE LEARNED CIT(A) FOR FRESH ADJUDICATION. 4. ON THE OTHER HAND, THE LEARNED AR FOR THE ASSESSEE DID NOT RAISE ANY OBJECTION IF THE MATTER IS SET ASIDE TO THE LEA RNED CIT (A) FOR THE FRESH ADJUDICATION AS PER THE PROVISIONS OF LAW. ITA NO.1869/AHD/2011 ITO VS. M/S.SHRINAND CORPORATION ASST .YEAR - 2008-09 - 3 - 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOT H THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. AT THE OUTSET WE NOTE THAT THE IDENTICAL ISSUE IN THE OWN CASE OF THE ASSESSEE PERTAINING TO THE ASSESSMENT YEARS 2006-07 AND 2007-08 HAVE BEEN RESTORED TO THE FILE OF THE LEARNED CIT (A) FOR FRESH ADJUDICATION AS PER THE PROVISION S OF LAW. THE RELEVANT EXTRACT OF THE ORDER IS REPRODUCED AS UNDER: 19. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERU SED THE MATERIAL ON RECORD. WE FIND THAT THE ASSESSING OFFICER HAS HEL D THAT THE ASSESSEE IS NOT ENTITLED FOR DEDUCTION FOR 80IB(10) FOR THE REASONS LISTED IN THE ORDER. WE FURTHER FIND THAT LEARNED CIT(A) HAS NOT ADJUDICATE D THE ISSUE ON MERITS AND ACCORDING TO HIM THE ISSUE WAS REDUNDANT. IN VIEW OF THE AFORESAID FACTS, WE ARE OF THE VIEW THAT THE MATTER NEEDS TO BE EXAMINE D ON MERITS. WE THEREFORE SET ASIDE THIS GROUND TO THE FILE OF CIT(A) AND DIR ECT HIM TO EXAMINE THE ISSUE ON MERITS AND PASS A SPEAKING ORDER AFTER GIVING AD EQUATE OPPORTUNITY OF HEARING TO BOTH THE PARTIES RELIED ON THE ORDERS OF THE AUTHORITIES BELOW AS FAVOURABLE TO THEM. THUS THIS GROUND OF REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. THE FACTS OF THE CASE ON HAND ARE IDENTICAL TO THE FACTS OF THE CASE AS DISCUSSED ABOVE. MOREOVER, THE 1 ST YEAR FOR CLAIMING THE DEDUCTION UNDER SECTION 80 IB (10) OF THE ACT PERTAINS TO THE ASSES SMENT YEAR 2006-07 WHICH IS PENDING BEFORE THE LEARNED CIT (A) AS DISC USSED ABOVE. IN OUR VIEW, THE ISSUE RAISED IN THE ASSESSMENT YEAR 2006- 07 BEING THE 1 ST YEAR SHOULD BE DECIDED FIRST WHICH IS PENDING BEFORE THE LEARNED CIT (A). THEREFORE, WE ARE SETTING ASIDE THE IMPUGNED ISSUE TO THE FILE OF THE LEARNED CIT(A) FOR FRESH ADJUDICATION AS PER THE PR OVISIONS OF LAW. HENCE, THE GROUND OF APPEAL OF THE REVENUE IS ALLOW ED FOR THE STATISTICAL PURPOSES. ITA NO.1869/AHD/2011 ITO VS. M/S.SHRINAND CORPORATION ASST .YEAR - 2008-09 - 4 - 6. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 08/08/2019 SD/- SD/- (MS. MADHUMITA ROY) (WASEEM A HMED) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 08/08/2019 &.., .(.. / T.C. NAIR, SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. )*+ , / CONCERNED CIT 4. , ( ) / THE CIT(A)-I, AHMEDABAD 5. /01 ((*+ , *+# , ) / DR, ITAT, AHMEDABAD 6. 145 6 / GUARD FILE. / BY ORDER, / ( //TRUE COPY// / ( DY./ASSTT.REGISTRAR) $%, / ITAT, AHMEDABAD 1. DATE OF DICTATION 29.07.2019(WORD PROCESSED BY H ONBLE AM IN HIS COMPUTER BY DRAGON ) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 30.07.2019 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.8.8.2019 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8.8.2019 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER