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

ITA 1873/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 85703 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 13-02-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 27-07-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH SR D R
• Assessee Lawyers: S N DIVATIA
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH AHMEDABAD , , , , , ,, , BEFORE SHRI MUKUL KUMAR SHRAWAT , JUDICIAL MEMBER AND , SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER , !' ! # $ ! # $ ! # $ ! # $ ITA NO. 1873/AHD/2011 ASSESSMENT YEAR :2008-09 I.T.O., WARD-9(1), AHMEDABAD V/S . M/S SHREE AMBICA CORPORATION 32, SAINATH DUPLEX, B/H. SARVOTTAM NAGAR SOCIETY, RAILWAY COLONY, KALIGAM, AHMEDABAD PAN NO. A BCFS9970N (APPELLANT) .. (RESPONDENT) %& ' ( ! /BY APPELLANT SHRI DINESH SINGH, SR. D.R. )*%& ' ( ! /BY RESPONDENT SHRI S. N. DIVATIA, A.R. + ' ' /DATE OF HEARING 13.02.2015 ,-. ' ' /DATE OF PRONOUNCEMENT 20.02.2015 O R D E R PER : SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORD ER OF LD. CIT(A)-XV, AHMEDABAD, DATED 20.05.2011 FOR THE ASSESSMENT YEAR 2008-09. 2. THE FACTS AS CULLED OUT FROM THE MATERIALS ON RE CORD ARE AS UNDER: I.T.A. NO. 1873/AHD/2011 A.Y. 08-09 (ITO VS. M/S. SHREE AMBICA CORPORATION) PAGE 2 3. THE ASSESSEE IS A PARTNERSHIP FIRM STATED TO BE ENGAGED IN THE BUSINESS OF CONSTRUCTION OF HOUSING PROJECTS. THE ASSESSEE ELECTRONICALLY FILED ITS RETURN OF INCOME ON 15.09.2008 DECLARING TOTAL INCO ME AT RS. NIL AFTER CLAIMING DEDUCTION OF RS.50,72,514/- U/S. 80IB(10) OF THE AC T. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER THE ASSESSMENT WAS FRAM ED U/S.143(3) VIDE ORDER DATED 30.11.2010 AND THE TOTAL INCOME WAS DETERMINE D AT RS.50,72,510/-. AGGRIEVED BY THE ORDER OF A.O., ASSESSEE CARRIED TH E MATTER BEFORE THE CIT(A) WHO VIDE ORDER DATED 20.05.2011 ALLOWED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE AFORESAID ORDER OF CIT(A), THE REV ENUE IS NOW IN APPEAL BEFORE US AND HAS RAISED FOLLOWING GROUND: 1). THE LD. COMMISSIONER OF INCOME-TAX (APPEAL)-XV , AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE ASSESSIN G OFFICER TO ALLOW THE ASSESSEE'S CLAIM FOR DEDUCTION OF RS.50,72,514/ - U/S. 80IB(10) OF THE ACT. 2). THE ID. COMMISSIONER OF INCOME-TAX (APPEAL)-XV, AHMEDABAD HAS ERRED IN HOLDING THAT THE ASSESSEE FULFILLS THE CON DITIONS LAID DOWN FOR CLAIMING DEDUCTION U/S.80IB(10) EVEN WHEN THE LAND WAS IN THE NAMES OF SHRI VIJAYKUMAR BHANUSHANKAR JOSHI AND OTH ERS [ SH. RASIKBHAI BABALBHAI IS ONE OF THE CO-OWNERS OF THE LAND AND PARTNER OF THE FIRM], WHICH IS A SEPERATE LEGAL ENTITY IN T HE EYE OF LAW AND THE ASSESSEE ENTERED INTO THE PROJECT BY A DEVELOPMENT AGREEMENT WITH THEM. THE ENTIRE RESPONSIBILITY TO EXECUTE THE HOUS ING PROJECT AND ABIDE BY THE TERMS AND CONDITIONS OF ITS APPROVAL R IGHT FROM THE INCEPTION OF THE PROJECT TILL ITS COMPLETION RESTS WITH THEM. ASSESSEE WAS JUST A CONTRACTOR OF THE LAND CONSTRUCTING 68 R ESIDENTIAL COMPLEX (DUPLEX) AND NOT A DEVELOPER. I.T.A. NO. 1873/AHD/2011 A.Y. 08-09 (ITO VS. M/S. SHREE AMBICA CORPORATION) PAGE 3 4. BEFORE US, LD. SR. D.R. SUBMITTED THAT THE ONLY EFFECTIVE GROUND IS WITH RESPECT TO DEDUCTION U/S. 80IB(10) OF THE ACT. 5. DURING COURSE OF ASSESSMENT PROCEEDING, A.O. NOT ICED THAT ASSESSEE HAD CONSTRUCTED A HOUSING PROJECT AND THE PROFIT TH ERE FROM OF RS.50,72,514/- WAS CLAIMED AS DEDUCTION U/S. 80IB OF THE ACT. A.O . WAS OF THE VIEW THAT ASSESSEE WAS NOT ELIGIBLE FOR DEDUCTION U/S. 80IB(1 0) AS ASSESSEE WAS NOT A DEVELOPER BECAUSE IT DID NOT CONCEPTUALIZE AND OWN THE PROJECT AND ASSESSEE WAS NOT THE OWNER OF THE LAND AND THE APPROVAL WAS NOT ISSUED TO IT BY THE LOCAL AUTHORITIES. HE WAS FURTHER OF THE VIEW THAT BY ENTERING INTO A DEVELOPMENT AGREEMENT WITH THE LAND OWNERS AND THER EBY DOING THE CONSTRUCTION, THE ASSESSEE WAS ACTING AS A CONTRACT OR FOR THE CONSTRUCTION OF PROJECT. HE ALSO NOTED THAT ASSESSEE HAD NOT SOLD ANY UNIT TO THE PURCHASER BUT HAD CONSTRUCTED THE RESIDENTIAL UNIT FOR THEM U NDER A CONSTRUCTION CONTRACT. HE WAS THEREFORE OF THE VIEW THAT ASSESSEE DID NOT FULFILL THE CONDITIONS STIPULATED U/S. 80IB(10) OF THE ACT AND THEREFORE I T WAS NOT ELIGIBLE FOR DEDUCTION. HE ACCORDINGLY DENIED THE DEDUCTION U/S . 80IB(10). 6. AGGRIEVED BY THE ORDER OF A.O., THE ASSESSEE CAR RIED THE MATTER BEFORE THE CIT(A). CIT(A) NOTED THAT THE FACTS OF THE CAS E IN THE YEAR UNDER CONSIDERATION WERE SIMILAR TO THE FACTS OF THE CASE IN A.Y. 2007-08 AND I.T.A. NO. 1873/AHD/2011 A.Y. 08-09 (ITO VS. M/S. SHREE AMBICA CORPORATION) PAGE 4 THEREFORE FOLLOWING THE ORDER FOR A.Y. 07-08 DECIDE D THE ISSUE IN FAVOUR OF ASSESSEE. 7. AGGRIEVED BY THE ORDER OF CIT(A), THE REVENUE IS NOW IN APPEAL BEFORE US. 8. BEFORE US, LD. SR. D.R. SUPPORTED THE ORDER OF A .O. LD. A.R. ON THE OTHER HAND SUBMITTED AND POINTED OUT THAT CIT(A) WHILE DE CIDING THE ISSUE IN FAVOUR OF ASSESSEE HAD FOLLOWED THE ORDER OF CIT(A) FOR A. Y. 07-08. AGAINST THE ORDER OF A.Y. 07-08, REVENUE HAD PREFERRED THE APPE AL BEFORE HONBLE TRIBUNAL. HONBLE TRIBUNAL WHILE DECIDING THE APPE AL OF THE REVENUE IN ITA NO. 83/AHD/2011 ORDER DATED 01.04.2014, HAD RESTORE D THE ISSUE TO THE FILE OF A.O. TO VERIFY AS TO WHETHER THE HOUSING PROJECT DU RING THE RELEVANT PERIOD WAS THE SAME AS IN A.Y. 09-10 AND IF IT WAS SAME, THE C LAIM OF DEDUCTION BE ALLOWED. HE ALSO PLACED ON RECORD THE COPY OF AFOR ESAID ORDER. HE FURTHER SUBMITTED THAT THE PROJECT ON WHICH ASSESSEE HAS CL AIMED DEDUCTION IS THE SAME SAINATH PROJECT AND THEREFORE ASSESSEE IS EL IGIBLE FOR DEDUCTION U/S. 80IB(10). HE THUS SUPPORTED THE ORDER OF CIT(A). 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT CIT(A) WHILE ALLOWING THE APP EAL OF THE ASSESSEE HAD FOLLOWED THE ORDER OF CIT(A) IN A.Y. 07-08. AGAINS T THE ORDER OF CIT(A) FOR I.T.A. NO. 1873/AHD/2011 A.Y. 08-09 (ITO VS. M/S. SHREE AMBICA CORPORATION) PAGE 5 A.Y. 07-08 REVENUE HAD PREFERRED THE APPEAL BEFORE HONBLE TRIBUNAL. THE CO-ORDINATE BENCH OF TRIBUNAL HAD DECIDED THE ISSUE IN ITA NO. 83/AHD/2011 ORDER DATED 01.04.2014 BY HOLDING AS UNDER: 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSE D THE ORDERS OF THE AO AND THE CIT(A). WE FIND THAT THE ASSESSEE I S ENTITLED TO DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IN CASE THE HOUSI NG PROJECT FOR THE RELEVANT PERIOD WAS THE SAME 'SAINATH PROJECT' AS W AS IN THE SUBSEQUENT ASSESSMENT YEAR 2009-10. THE DOCTRINE OF CONSISTENC Y APPLIES TO THE CASE OF THE ASSESSEE AND DEDUCTION UNDER SECTION 80IB(10 ) OF THE ACT HAS BEEN ALLOWED BY THE AO IN THE SUBSEQUENT ASSESSMENT YEAR 2009-10 VIDE ASSESSMENT ORDER DATED 22.3.2013, COPY OF WHICH HAS BEEN FILED BY THE ASSESSEE BEFORE THE TRIBUNAL. IN THE FACTS AND CIRC UMSTANCES OF THE CASE, WE RESTORE THIS ISSUE IN THE GROUNDS OF THE APPEAL OF THE REVENUE TO THE FILE OF THE AO WITH DIRECTION TO ALLOW DEDUCTION UNDER S ECTION 80IB(10) OF THE ACT TO THE ASSESSEE, IF ON VERIFICATION IT IS FOUND THAT THE HOUSING PROJECT DURING THE RELEVANT PERIOD IN APPEAL BEFORE US WAS THE SAME 'SAINATH PROJECT' AS WAS IN THE SUBSEQUENT ASSESSMENT YEAR 2 009-10. WE DIRECT ACCORDINGLY. BEFORE US, LD. A.R. SUBMITTED THAT THE PROFITS OF T HE PROJECT FROM WHICH ASSESSEE HAS CLAIMED DEDUCTION U/S. 80IB(10) IS THE SAME PROJECT AS WAS IN A.Y. 07-08. WE HOWEVER FIND THAT THERE IS NO FINDI NG OF A.O. ABOUT THE PROJECT FROM WHICH THE ASSESSEE HAS CLAIMED DEDUCTION. FUR THER NO DISTINGUISHABLE FEATURE OF THE CASE AS COMPARED TO THAT OF A.Y. 07- 08 HAS BEEN POINTED OUT REVENUE. WE THEREFORE RESPECTFULLY FOLLOWING THE DECISION OF CO-ORDINATE I.T.A. NO. 1873/AHD/2011 A.Y. 08-09 (ITO VS. M/S. SHREE AMBICA CORPORATION) PAGE 6 BENCH FOR A.Y. 07-08 AND WITH SIMILAR DIRECTIONS CO NTAINED THEREIN RESTORE THE ISSUE TO THE FILE OF A.O. WE DIRECT ACCORDINGLY. 10. IN THE RESULT, THE APPEAL OF THE REVENUE IS A LLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 20/02/2015 SD/- SD/- ( MUKUL KUMAR SHRAWAT ) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER TRUE COPY S.K.SINHA !/ !/ !/ !/ ' '' ' )0 )0 )0 )0 1!0. 1!0. 1!0. 1!0. / COPY OF ORDER FORWARDED TO:- 1. %& / APPELLANT 2. )*%& / RESPONDENT 3. 6 / CONCERNED CIT 4. 6- / CIT (A) 5. 0:; ) , , / DR, ITAT, AHMEDABAD 6. ;=> ?@ / GUARD FILE. BY ORDER/ !/ !, A/ C , $