ITO, CHENNAI V. Asvini Foundations, CHENNAI

ITA 1898/CHNY/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 73652 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-02-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 13-02-2014
• Assessment Year: 2010-2011
• Appeal Filed On: 25-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R SIVARAMAN

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI . . . , ! , ' # $ BEFORE DR. O.K. NARAYANAN, VICE PRESIDENT & SHRI VIKAS AWASTHY, JUDICIAL MEMBER ./ I.T.A. NO. 1898/MDS/2013 / ASSESSMENT YEAR : 2010-11 INCOME TAX OFFICER, BUSINESS WARD-III(1), CHENNAI ( !% /APPELLANT) VS M/S.ASVINI FOUNDATIONS, NEW NO.13, OLD NO.7, DHANDAPANI ST., T.NAGAR, CHENNAI-600 017 [PAN: AAIFA 3453 H] ( &'!% /RESPONDENT) / APPELLANT BY : SHRI SHAJI P. JACOB, ADDL.CIT / RESPONDENT BY : SHRI R. SIVARAMAN , ADVOCATE / DATE OF HEARING : 13-02-2014 /DATE OF PRONOUNCEMENT : 13-02-2014 #( / O R D E R PER VIKAS AWASTHY, JUDICIAL MEMBER: THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX(APPEALS)-V, CHENNAI, DAT ED 18-07-2013 RELEVANT TO THE ASSESSMENT YEAR (AY) 201 0-11. THE ASSESSEE IS A PARTNERSHIP FIRM AND IS IN THE BUSINE SS OF DEVELOPMENT OF RESIDENTIAL BUILDINGS AND COMPLEXES. FOR THE ITA. NO. 1898/MDS/13 2 AY.2010-11, THE ASSESSEE FILED ITS RETURN OF INCOME ON 29-06-2010 DECLARING ITS TOTAL INCOME AS ` 84,000/- AFTER CLAIMING DEDUCTION U/S.80IB(10) OF THE INCOME TAX ACT, 1961 (HEREIN AF TER REFERRED TO AS THE ACT). THE CASE OF THE ASSESSEE WAS SELECT ED FOR SCRUTINY AND NOTICE U/S. 143(2) OF THE ACT WAS ISSUED TO THE ASSESSEE ON 29-08-2011. DURING THE COURSE OF ASSESSMENT PROCEE DINGS, THE ASSESSING OFFICER MADE CERTAIN DIS-ALLOWANCES/ADDIT IONS IN THE INCOME RETURNED BY THE ASSESSEE. ONE OF THE GROUND S FOR DIS-ALLOWING DEDUCTION U/S.80IB(10) IS THAT THE ASS ESSEE IS A CONTRACTOR AND IS THUS NOT ELIGIBLE FOR CLAIMING DE DUCTION U/S.80IB(10) OF THE ACT. 2. AGGRIEVED AGAINST THE ASSESSMENT ORDER DATED 11- 03-2013, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(APP EALS). THE CIT(APPEALS) AFTER EXAMINING THE FACTS OF THE CASE AND IN VIEW OF THE JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COU RT IN THE CASE OF CIT VS. SANGHVI & DOSHI ENTERPRISE REPORTED AS 214 TAXMAN 463 (MAD) , HELD THAT THE ASSESSEE IS ENTITLED TO CLAIM DEDUC TION U/S.80IB(10) OF THE ACT. THE CIT(APPEALS) ALLOWED THE APPEAL OF THE ASSESSEE. AGAINST THE ORDER OF THE CIT(APPEALS), THE REVENUE HAS COME IN APPEAL BEFORE THE TRIBUNAL. ITA. NO. 1898/MDS/13 3 3. SHRI SHAJI P. JACOB, APPEARING ON BEHALF OF THE REVENUE SUBMITTED THAT THE CIT(APPEALS) HAS ERRED IN RELYIN G ON THE JUDGMENT OF THE HONBLE MADRAS HIGH COURT IN THE CA SE OF CIT VS. SANGHVI & DOSHI ENTERPRISE (SUPRA). IN THE INSTANT CASE, PLAN PERMISSION AND COMPLETION CERTIFICATE OF THE PROJEC T IS IN THE NAME OF LAND OWNER AND NOT THE ASSESSEE. THE FACTS AND CIRCUMSTANCES SHOW THAT THE ASSESSEE IS A CONTRACTOR AND NOT A DE VELOPER. THE LD.DR VEHEMENTLY SUPPORTED THE ASSESSMENT ORDER AND PRAYED FOR SETTING ASIDE THE IMPUGNED ORDER. 4. ON THE OTHER HAND, SHRI R. SIVARAMAN, APPEARING ON BEHALF OF THE ASSESSEE PLACED RELIANCE ON THE HONBLE MADR AS HIGH COURT IN THE CASE OF CIT VS. SANGHVI & DOSHI ENTERPRISE (SUPRA). THE LD.COUNSEL CONTENDED THAT THE CASE IN HAND IS SQUA RELY COVERED BY THE AFORESAID JUDGMENT OF THE JURISDICTIONAL HIG H COURT. THE LD.COUNSEL SUPPORTING THE IMPUGNED ORDER PRAYED FOR DISMISSAL OF THE APPEAL OF THE REVENUE. 5. BOTH SIDES HEARD. ORDERS OF THE AUTHORITIES BEL OW PERUSED. WE FIND THAT THE ISSUE IN HAND IS SQUARELY COVERED BY THE JUDGMENT OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. SANGHVI & DOSHI ENTERPRISE (SUPRA). THE HONBLE HIGH COURT FOLLOWED THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN THE C ASE OF CIT VS. ITA. NO. 1898/MDS/13 4 RADHA DEVELOPERS REPORTED AS 341 ITR 403. IN THE SAID CASE, THE HONBLE GUJARAT HIGH COURT CONSIDERED THE QUESTION ON OWNERSHIP AS A CONDITION FOR GRANT OF DEDUCTION U/S.80IB(10) IN DEPTH. THE HONBLE COURT HELD THAT THE PROVISIONS NOWHERE REQU IRE THAT DEVELOPERS WHO ARE THE OWNERS OF LAND ALONE WOULD B E ENTITLED FOR GRANT OF DEDUCTION U/S.80IB(10). THE ORDER OF CIT( APPEALS) IS WELL REASONED AND DETAILED. WE CONCUR WITH THE SAME. THE LD.DR HAS NOT BEEN ABLE TO EITHER CONTROVERT THE FINDINGS OF THE CIT(APPEALS) OR SHOW ANY JUDGMENT CONTRARY TO THE J UDGMENT OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. SANGHVI & DOSHI ENTERPRISE (SUPRA). THERE IS NO MERIT IN THE APPEAL OF THE REVENUE. THE SAME IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON THURSDAY, THE 13 TH FEBRUARY, 2014 AT CHENNAI. SD/- SD/- (DR. O.K. NARAYANAN) (VIK AS AWASTHY) VICE PRESIDENT JUDICIAL MEMBER DATED: 13 TH FEBRUARY, 2014 TNMM COPY TO: APPELLANT/RESPONDENT/CIT(A)/CIT/DR