The ITO, Ward-9(2), Surat V. M/s. Labham Corporation, Surat

ITA 1967/AHD/2006

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9172 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 01-09-2009
• Assessment Year: 2003-2004
• Appeal Filed On: 11-09-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KRISHNA SAINI
• Assessee Lawyers: M K PATEL
• Keywords: Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME_TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI H.L.KARWA AND SHRI A.N.PAHUJA ITA NO.1967/AHD/2006 (ASSESSMENT YEAR : 2003-04) INCOME-TAX OFFICER, WD.9(2) SURAT. VS. M/S LABHAM CORPORATION, 202, NANDANVAN APARTMENTS, NAGINAWADI, SUMUL DAIRY ROAD, SURAT. (APPELLANT) (RESPONDENT) C.O.NO.32/AHD/2009 (IN ITA NO.1967/AHD/2006) (ASSESSMENT YEAR : 2003-04) M/S LABHAM CORPORATION, 202, NANDANVAN APARTMENTS, NAGINAWADI, SUMUL DAIRY ROAD, SURAT. VS. INCOME-TAX OFFICER, WD.9(2) SURAT. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI KRISHNA SAINI, CIT RESPONDENT BY : SHRI M.K.PATEL, A.R. ( (( ( )/ )/)/ )/ ORDER PER KARWA, JM: THIS APPEAL BY THE REVENUE AND CROSS OBJECTION BY THE A SSESSEE ARE DIRECTED AGAINST THE ORDER OF CIT(A)-V, SURAT DAT ED 05.6.2006 RELATING TO ASSESSMENT YEAR 2003-04. 2. THE ONLY GROUND RAISED BY THE REVENUE IN THIS APPE AL READS AS UNDER: 2 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN L AW, THE LEARNED CIT(A) HAS ERRED IN DELETING AN ADDITION OF RS.1,07,25,683/- MADE BY THE ASSESSING OFFICER U/S 80IB(1 0) OF THE ACT AS PER ASSESSMENT ORDER U/S 143(3) OF THE I.T.ACT, 196 1 DATED 28.03.2006. 3. BRIEFLY STATE, THE FACTS OF THE CASE ARE THAT THE ASSE SSEE FIRM IS THE PROMOTER, DEVELOPER AND ORGANIZER OF THE HOUSING PRO JECT. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS CLAIMED TO HAVE SOLD RESIDENTIAL UNITS OF RS.8,34,32,424.86 AND EARNED NET PROFIT OF RS.2,15,53,344/-. THE ASSESSEE FIRM CLAIMED DEDUCTION U/S 8 0IB OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT) OF RS.2,15,53, 344/-. THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAS CLAIMED TO HAV E PURCHASED TWO DIFFERENT PLOTS OF LAND FROM SHRI MADHAV JIBHAI NARANJIBHAI PATEL AND OTHERS. THE LOCAL AUTHORITY I.E. SURAT URBA N DEVELOPMENT AUTHORITY (SUDA) HAS APPROVED PLAN OF DEVELOPMENT OF HOUSING PROJECT ON 04.7.1998 FOR DEVELOPMENT OF HOUSING ON FIRST PIECE OF LAND AND ON 24.6.1999 FOR DEVELOPMENT OF HOUSES ON SECOND PIECE OF L AND. THE ASSESSING OFFICER OBSERVED THAT THE SECOND PLOT OF LAND WAS PURCHASED WELL AFTER THE DATE OF PASSING OF PLAN OF FIRST PLOT. ACCORDING TO HIM, THIS FACT CLEARLY INDICATES THAT BOTH THE PROCEDURES HAVE BEEN CARRIED OUT SEPARATELY. THE ASSESSING OFFICER OPINED THAT THE PURCHASE OF SECOND PLOT WAS POST THOUGHT. ACCORDING TO HIM, THE ASSESSEE HAS DEVELOP ED SECOND PLOT SEPARATELY AND HAS INCLUDED IT LATER ON TO CLAIM THE DEDUCTION ARRIVED FROM IT. THE ASSESSING OFFICER FURTHER OPINED THAT IF I T WAS A SINGLE PROJECT BOTH PLAN WOULD HAVE APPLIED FOR IN A SINGLE DAY AND IT WAS NOT THE CASE. ACCORDING TO THE ASSESSING OFFICER, PLOTS ARE SEPARATELY TW O AND THE PLANS ARE ALSO DIFFERENT. UNDER THE CIRCUMSTANCES, THE ASSESSEE WAS ASKED BY THE ASSESSING OFFICER TO EXPLAIN AS TO WHY DEDUCTION U/S 8 0IB(10) OF THE ACT IN RESPECT OF INCOME FROM PLOT NO.2 SHOULD NOT BE DI SALLOWED AND ADDED TO THE TOTAL INCOME. IN RESPONSE TO THE ABOVE, T HE ASSESSEE VIDE HIS LETTER DATED 22.3.2006 HAS STATED AS UNDER: 3 'WITH REFERENCE TO ABOVE REFERRED NOTICE ISSUED U/S, 14 2 FOR EXPLAINING AS TO WHY DEDUCTION IN RESPECT OF INCOME FRO M SUB PLOT NO. 2 OF PLOT NO. 60 MAY NOT BE DISALLOWED AND ADDED TO THE TOTAL INCOME. IN THAT CONNECTION, I THE UNDERSIGNED MOST RESPECTFULLY SU BMIT MY EXPLANATION AS UNDER: - THAT YOU HAVE TRIED TO SHOW THE FACTUAL POSITION OF TH E SUB PLOTS NO. 1 AND SUB PLOT NO. 2 DEVELOPED BY THE ASSESSEE FIRM BY PRODUCING THE CHART WHICH IS RE-PRODUCED AGAIN FOR BETTE R COMPLIANCE OF THE ISSUE. PLOT DATE OF PURCHASE AREA IN ACRES FINAL APPLICATION FOR PLAN PLAN PASSING DATE FINAL APPLICATION FOR PLAN SUB PLOT NO. 1 OF F.P.60 04-06-98 1 .05 ACRES 22-05-98 04-07-98 SUB PLOT NO.2 OF F.P.60 14-07-98 0.78 ACRES 11-05-99 24-06-99 ON GOING THROUGH ABOVE, I WOULD LIKE TO BRING TO YO UR KIND CONSIDERATION THE FOLLOWING ISSUES WHICH WILL HELP YOUR GOOD SELF FOR DECIDING THE ISSUE IN THE INTEREST OF JUSTICE. [1] OUR FIRM WHO HAS UNDERTAKEN THE DEVELOPMENT AND BUILDING OF THE HOUSING PROJECT KNOW AS 'PRAGATI NAGAR' HAD ENTERE D INTO SAUDA CHITTHI (DEAL NOTE) ON 15.5.1998 WITH THE LAND OWNE RS FOR PURCHASE OF ONE COMMON AND SINGLE PLOT OF LAND ADMEASURING 7456 .19 SQ.MTS. THE PHOTOCOPY OF THE SAUDA CHITTHI IS ENCLOSED FOR YOUR KIND REFERENCE. [REFER ANNEXURE-K] THIS SAUDA CHITTH I WAS LEGALIZED THROUGH TWO AGREEMENTS FOR SALE AS PER THE AVAILABILIT Y OF FLNANCIAL RESOURCES WITH THE PARTNERS OF THE FIRM. THUS, THE DIFFE RENCE DATES OF PURCHASE AGREEMENT SHOULD BE REFERRED TO IN REFEREN CE TO THE SAUDA CHITTHI. [2] THAT THE FINAL PLOT NO. 60 IS DIVIDED INTO SUB P LOT NO. 1 AND SUB PLOT NO.2. THESE SUB PLOTS ARE ADJOINING TO ONE ANOTHE R WHICH CAN BE VERIFIED ONCE AGAIN AS YOUR ASSESSEE HAS KNOWLEDGE THAT IT WAS 4 VERIFIED BY YOUR PREDECESSOR, IN SHORT, THE TOTAL AREA OF THE LAND OF ABOVE MENTIONED BOTH THE PLOTS WHICH ARE ADJOINING TO ONE ANOTHER IS ADMEASURING 7456.19 SQ MTS ON WHICH THE DEVELOPMENT IS DONE AS 'ONE PROJECT'. [3] THE MOU EXECUTED ON 15.10.1998 BETWEEN THE ASSESSEE FIRM AND THE PRESIDENT OF THE 'PRAGATI PARK CO-OP. HOUSING SOCIETIES LTD'. (ENCLOSED EARLIER VIDE ANNEXURE-E) ALSO CLEARLY INDICATES THAT THE WHOLE PROJECT IS 'ONE PROJECT' WHICH IS DEVELOPED I N THESE TWO SUB PLOTS OF FINAL PLOT NO. 60 AND THEREFORE, THE SAME IS REQUIRED TO BE CONSIDERED AS A WHOLE WHICH IS ELIGIBLE F OR DEDUCTION U/S. SOW (10). THIS MOU ALSO INDICATES THE INTENTION OF THE DEVELOPER THAT IT INTENDS TO DEVELOP THE HOUSING PROJE CT ON A TOTAL LAND ADMEASURING 7456.19 SQ MTS I.E. LAND ADMEASURING 4278.19 SQ MTS WHICH IS DEFINED AS PLOT NO.L AND LAND ADMEASURIN G 3178 SQ.MTS., DEFINED AS PLOT NO. 2. [4] IT IS WORTHWHILE TO MENTION HERE THAT THE SUDA HAS ISSUED ONLY ONE BUC CERTIFICATE CONSIDERING THAT THE ENTIRE DEVELO PMENT ON THIS SUB PLOT NO. LAND 2 OF F.P.NO. 60 IS 'ONE PROJECT'. T HIS IS ALSO ON RECORD UNDER REFERENCE ANNEXURE-F. [5] THE BUILDINGS CONSTRUCTED ON THE SAID PLOT OF LAND REFERRED TO HEREIN ABOVE ARE SERIALLY NUMBERED AS A,B,C,D,E & F AND ON GOING THROUGH THE PHOTOGRAPHIC PRESENTATION SUBMITTED HEREWI TH [REFER ANNEXURE-L), YOUR HONOUR WILL KINDLY APPRECIATE THAT THEY ARE ABSOLUTELY HOMOGENOUS, ALIKE AND FORMS PART OF THE ENT IRE HOUSING PROJECT KNOWN AS 'PRAGATI NAGAR'. THE ENTIRE PROJECT HAS COMMON COMPOUND GATE, IDENTICAL OUTLOOK AND DESIGN, COLOR SCHEME , COMMON GARDEN AND UTILITIES AND THUS, ALL THESE BUILDIN GS ARE DEVELOPED UNDER A SINGLE HOUSING PROJECT SCHEME. [6] YOUR HONOUR IS OF THE OPINION THAT THE ASSESSEE FIRM COULD HAVE APPLIED FOR APPROVAL OF ONE PLAN FOR BOTH THE PLOTS INSTEAD OF TWO SEPARATE PLANS. IN THAT CONNECTION, 1 HAVE TO STATE THAT UNDER THE PROVISIONS OF SECTION 80IB(10), THE LEGISLATURE HAS NOT P LACED ANY RESTRICTION IN THIS REGARD. THE INTENTION OF THE LEGISL ATURE IS TO PROMOTE THE HOUSING PROJECT BY A DEVELOPER ON A LAND NOT LESS THAN 1 ACRE, SO THAT THE RESIDENTIAL HOUSE OF A PRESCRIBED SIZE CAN BE AVAILABLE AT REASONABLE RATE TO THE NEEDY PERSONS. WE CONCEIVED THE HOUSING PROJECT AND PLANNED FOR ALL THE SIX BUILD INGS FOR THE ENTIRE PROJECT, HOWEVER IT IS ONLY IN ORDER TO FACILIT ATE THE PROCESS OF SANCTION, PAYMENT OF APPROVAL FEES, TERMS OF PAYMENT OF THE LANDLORDS, SAVING OF TIME ETC. SPLIT THE PLAN OF A,B,C, D BUILDINGS AND SUBMITTED BEFORE SUDA FOR PART SANCTION OF THE CONSOLIDA TED PLAN. 5 THEREAFTER, IN REFERENCE TO THE ORIGINAL SCHEME THE PL AN FOR BUILDING E & F WERE SANCTION AS PER THE PROCEDURE OF SUDA AND TH IS PROCEDURE WAS CARRIED OUT ONLY OUT OF COMMERCIAL EXPEDIE NCY, BUSINESS PRUDENCE AND AVAILABILITY OF FINANCIAL RESOURCES AND THEREFORE, THE APPROVAL OF PLAN AS PER THE NORMS OF T HE SUDA AUTHORITIES ON DIFFERENCE DATES HAS NOTHING TO DO AS SUCH WITH THE CONCEPT, INTENT AND MIND SET AND APPROACH OF DEVELOPING THE HOUSING PROJECT OF ALL SIX BUILDINGS A, B, C, D,E&F TAK EN TOGETHER ON SUB PLOT NO. 1 AND SUB PLOT NO. 2 OF P.P. NO. 60 WHICH TS ADJOINING TO ONE ANOTHER. [7] FURTHER, IT IS ALSO DIFFICULT, TO MANAGE THE FINA NCE FOR PURCHASE OF BIG PLOT AS WELL AS PLOTS ADJOINING TO ONE ANOTHER BEL ONGING TO VARIOUS PERSONS BY THE PROMOLERS/DEVELOPERS/UNDERTAKIN GS AS THE FINANCE AVAILABLE WITH THEM IS REQUIRED TO BE USED FO R DEVELOPING THE HOUSING PROJECTS. IT IS VERY CLEAR THAT, THE INTENTI ON OF THE LEGISLATURE FROM THE INCEPTION OF THE SECTION WAS TO PRO MOTE THE HOUSING FACILITIES FOR THE PUBLIC AT LARGE AND THEREBY TO BOOST UP THE ECONOMY OF THE COUNTRY BY GIVING RISE TO MANY CONNECTED INDUSTRIES TO HOUSING PROJECTS SUCH AS STEEL INDUSTRIES, CEMENT INDUSTRI ES AND OTHER INDUSTRIES AND THEREFORE, IT CANNOT BE CONSTRUED THAT THE PURCHASE OF SECOND PLOT IS POST THOUGHT. [8] MOREOVER, IF THESE TWO SUBPLOTS OF FINAL PLOT NO. 60 COULD HAVE BEEN AT DIFFERENCE PLACES, THEN THE SITUATION COULD HAVE BEEN DIFFERENT AS ARGUED OUT BY YOUR HONOR FOR CLAIMING DE DUCTION U/S. SOW (JO). HOWEVER, THE SUB PLOT NO. I IS MORE THAN ONE ACRE IS ELIGIBLE FOR THE DEDUCTION U/S. 801B(10) AS THE WHOLE PROJECT IS 'ONE PROJECT'. [9] THE BOOKS OF ACCOUNTS OF THE ENTIRE HOUSING PROJECT K NOW AS 'PRAGATI NAGAR' ARE COMMON AND NO SEPARATE RECORDS AS TO THE PURCHASES, BANKING, SALES ETC. WERE EVER MAINTAINED BY OU R FIRM SINCE THE DEVELOPMENT AND BUILDING OF THE HOUSING PRO JECT WAS ALWAYS TREATED AS ONE HOUSING PROJECT BY US CONSISTENTLY. [10] IT IS ALSO ESSENTIAL TO TAKE INTO ACCOUNT THE FOLL OWING FACTORS BEFORE DECIDING THE ISSUE RAISED BY YOUR HONOR: - THERE ARE TOTAL 6 BUILDING I.E. BUILDING A TO E OF THE ENTIRE PROJECT KNOWN AS 'PRAGATI NAGAR' SITUATED ON THIS SUB PLOT NO.I AND 2 OF F.P. NO. 60 ADMEASURING IN ALL 7456.19SQ.MTS. THERE IS ONLY ONE MAIN GATE FOR THIS PROJECT AS A WHOLE. THE PARKING AREA IS COMMON FOR ALL THE SIX BUILDINGS. 6 THE ROADS ARE INTERCONNECTED WITH ONE ANOTHER FOR ALL THE SIX BUILDINGS. THE PLAY GROUND AREA AND GARDEN IS ALSO COMMON FO R ALL THE SIX BUILDINGS. ALL THE SIX BUILDINGS HAVE IDENTICAL OUTLOOK AND DE SIGN WITH SAME COLOR SCHEME. ONE SINGLE BUC HAS BEEN ISSUED BY SUDA FOR THE ENTI RE PROJECT COMPRISING OF SIX BUILDINGS A TO F. [11 ] WITHOUT PREJUDICE TO THE CONTENTIONS AND SUBMISSIO NS ON THE FACTS AND MERITS OF OUR CASE AS DETAILED HEREINABOVE EVEN OTHERWISE THE LAW REQUIRES FOR COMPLIANCE OF AREA OF LAND (MORE THAN ONE ACRE) IS IN REFERENCE TO AND AT THE TIME OF COMMENCEMENT OF THE HOUSING PROJECT AND THEREAFTER SUBSEQUENT ENHANCEMENT OF FLOORS IN THE BUILDING OR BUILDING IN THE CAMPUS UNDER A COMMON PROPRIETARY OF THE HOUSING PROJECT IS NOT RESTRICTED OR DENIED. THUS, FROM THE FOREGOING SUBMISSION MADE, ONE CAN CLEAR LY APPRECIATE THE FACT THAT THE HOUSING PROJECT HAS TO BE TREATED IN REFERENCE TO THE ENTIRE PLOT OF LAND ADMEASURING 7456 .19 SQ MTS AS ONE SINGLE HOUSING PROJECT AND THE ALLOWABLE DEDUCTIO N U/S. 80IB(10) ON DEVELOPING AND BUILDING TIIE SAID HOUSIN G PROJECT SHOULD BE ALLOWED IN TOTALITY AND NOT ON THE PART OF THE LAND AS VIEWED BY YOUR HONOR. IN ADDITION TO ABOVE, IT IS FRUITFUL TO BRING TO YOU R KIND NOTICE THAT THIS ISSUE WAS ALREADY COVERED BY YOUR PREDECESSOR ALMOST BE FORE 15 MONTHS IN HIS NOTICE DATED 7.12.2004 ISSUED IN HINDI L ANGUAGE, FOR WHICH YOUR ASSESSEE FIRM HAD ELABORATELY EXPLAINED V IDE PARA (F) OF ITS LETTER DATED 22.12.2004 AND ACCORDINGLY IT WAS GIVEN TO UNDERSTAND THAT THE CASE WAS FINALLY HEARD FOR DISPOSAL. IN VIEW OF ABOVE, THE ACTION PROPOSED TO BE INITIATED IN RESPECT OF DISALLOWANCE OF CLAIM U/S. 8018(16) MAY PLEASE BE DROPP ED IN THE INTEREST OF JUSTICE AND OBLIGED. 4. AFTER CONSIDERING THE REPLY OF THE ASSESSEE, THE ASSESSING OFFICER CAME TO THE CONCLUSION THAT AGREEMENT OF THE ASSESSEE IN RE SPECT OF SAUDA CHITTHI MADE ON 15.5.1999 WAS BASELESS. BOTH TH E PLANS WERE 7 APPLIED FOR APPROVAL BY THE SAME PERSON SHRI MADHAVJI BHAI NARANJIBHAI PATEL. THE ASSESSING OFFICER FURTHER OBSERVED THAT THE SEC OND ARGUMENT IS THAT MOU EXECUTED BETWEEN PRAGATI CO. OP. HOUSING SOCI ETY LTD. AND THE ASSESSEE FIRM STATE THAT THE ENTIRE PROJECT AS ONE PROJECT. THE ASSESSING OFFICER DID NOT ACCEPT THIS ARGUMENT OF THE ASSESSEE STATING THAT BOTH THE PERSONS I.E. PRESIDENT SHRI LABHUBHAI D LAKHANI AND SH RI RAVJIBHAI SHETA ARE PARTNERS OF THE FIRM M/S LABHAM CORPORATION. HENCE, THIS MOU IS HIS OWN DOCUMENT. THE ASSESSING OFFICER ALSO OBSERVED THAT THE THIRD ARGUMENT THAT THE SUDA HAS ISSUED ONE BUC CERTIFICATE IS ALSO BASELESS AS IT IS CONVINCING FOR SUDA AS THE ASSESSEE IS ONE AND SINGLE I.E. SHRI MADHAVBHAI N. PATEL. THE ASSESSING OFFICER ALSO OBSERVED T HAT THE IDENTICAL SIZES OF APARTMENTS FROM A TO F ARE DIFFEREN T AND AS UNDER: BUILDING A - 3126 SQ FEET BUILDING B - 31160 SQ FEET BUILDING C - 33914 SQ FEET BUILDING D - 33822 SQ FEET BUILDING E - 68600 SQ FEET BUILDING F - 39340 SQ FEET THE ASSESSING OFFICER FURTHER HELD THAT THE CONSTRUCTION OF PLOT E AND F ARE HAVING MORE AREA. HENCE, ALL BUILDINGS ARE NOT SIM ILAR. THE ASSESSING OFFICER ALSO REJECTED THIS ARGUMENT OF THE ASSESSEE THAT DU E TO FINANCE PROBLEM IT COULD NOT PURCHASE BOTH THE PLOTS AT A TIME AND HENCE, APPLIED FOR APPROVAL OF PLANS TWO TIMES. THE ASSESSING OFFICER CON CLUDED THAT THE ASSESSEE FIRM HAS DEVELOPED SECOND PLOT SEPARATELY AND INCLU DED IT LATER ON TO CLAIM THE DEDUCTION ARRIVED FROM IT. THUS, THE A SSESSEE HAS FAILED TO EXPLAIN AS TO HOW IT CAN BE CONSIDERED ONE AND SINGLE PR OJECT. IN VIEW OF THE ABOVE FACTS, DEDUCTION U/S 80IB(10) OF THE ACT WAS DISALLOWED BY THE ASSESSING OFFICER ON THE INCOME EARNED O UT OF SALE OF RESIDENTIAL UNITS DEVELOPED ON PLOT NO.2 OF FINAL PLO T NO.60. 8 5. AGGRIEVED BY THE ORDER OF ASSESSING OFFICER, THE ASSESSE E CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A). BEFORE THE CIT(A), THE ASSESSEE SUBMITTED THAT THE SUB PLOTS NO. 1 AND 2 OF FINAL PLOT NO.60 WAS PURCHASED BY EXEUCING SAUDA CHITTHI AND SATAKHAT DAT ED 04.6.1998 AND 14.7.1998 AND THESE WERE DONE MUCH BEFORE TO THE ENACT MENT OF SEC. 80IB(10) OF THE ACT RELATING TO THE SCHEME OF HOUSING P ROJECT WHICH CAME INTO FORCE WITH EFFECT FROM 1.10.1998. THE ASSESSEE ALSO FURNISHED COPIES OF SAUDA CHITTHI AND SATAKHAT BEFORE THE CIT(A) AN D SUBMITTED THAT THE INTENTION OF THE FIRM WAS VERY CLEAR FROM THE VERY BE GINNING I.E. TO DEVELOP THE WHOLE PROJECT AS ONE PROJECT ON TOTAL AR EA OF LAND COMPRISING OF SUB PLOT NO.1 AND 2 OF FINAL PLOT NO.60 ADMEASURIN G 7,456.19 SQ. METRES. THE ASSESSEE FURTHER SUBMITTED BEFORE THE CIT(A) THAT THE WHOLE PLAN WAS COMPLETED WITHIN A PERIOD OF FOUR YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE HOUSING PROJECT WAS APPROVE D BY THE CONCERNED LOCAL AUTHORITY I.E. SUDA THOUGH THE LIMITAT ION PERIOD WAS NOT APPLICABLE IN THE CASE OF THE ASSESSEE FIRM AS THIS WAS THE T IME LIMIT CAME INTO FORCE WITH EFFECT FROM 1.4.2005. THE ASSESSEE HAS ALSO STATED THAT THE PROJECT WAS COMMENCED FROM 15.10.1998 AND COMPLETED ON 28.5.2002. IN SUPPORT OF THIS ARGUMENT, THE ASSESSEE HAS SUBMITTED THAT THE LOCAL AUTHORITY I.E. SUDA HAD ISSUED ONE OCCUPANCY CE RTIFICATE FOR THE RESIDENTIAL UNITS CONSTRUCTED ON SUB PLOT NO.1 AND 2 OF FINAL PLOT NO.60 BY TREATING THE WHOLE PROJECT AS ONE PROJECT. THE ASSESSEE ALSO SUBMITTED THAT WHILE LOOKING AT THE ENTIRE PLAN/SANCTION OF TH E CONSTRUCTED HOUSES ON SUB PLOT NO. 1 AND 2, IT CAN BE SEEN THAT THERE WAS ONE COMMON MAIN GATE, COMMON GARDEN, COMMON PARKING AREA AND COMMON PL OT AREA FOR ALL THE PLOT NOS. AS A TO F OF PRAGATI NAGAR. THE A SSESSEE FURTHER SUBMITTED THAT THE LAND AREA ON WHICH THE HOUSING PROJ ECT WAS DEVELOPED BY THE ASSESSEE FIRM WAS MORE THAN ONE ACRE AND THE RESIDE NTIAL UNITS CONSTRUCTED IN ALL THE BUILDINGS WERE LESS THAN 1500 SQ. F EET OF BUILT UP AREA. 9 6. THE CIT(A) ALLOWED THE APPEAL OF THE ASSESSEE OBSERV ING AS UNDER: 5. I HAVE PERUSED THE FACTS OF THE CASE AS DISCUSSED BY THE ASSESSING OFFICER IN HIS ASSESSMENT ORDER AND ALSO CAREFULLY WENT THROUGH THE SUBMISSION AS MADE BY THE A.R. AND J UDICIAL FINDINGS RE1IED UPON BY HIM DURING THE COURSE OF APPE LLATE PROCEEDINGS. AFTER THE PERUSAL OF THE FACTS OF THE CASE IT IS SEENTHAT THE APPELLANT FIRM HAD ENTEREDJNTO AN AGRE EMENT TO BUY THE ABOVE REFERRED SUB PLOT NO.L AND 2 OF FIN AL PLOT NO.60 MUCH BEFORE THE AMENDMENT INTRODUCED BY THE LEGISLATURE U/S.80IB(10) OF THE ACT WITH THE INTENTIO N TO COMMENCE, DEVELOP AND CONSTRUCT A HOUSING PROJECT. IT IS FURTHER SEEN THAT BOTH THE PIECES OF LAND I.E. SUB PLOT NO.L & 2 OF FINAL PLOT NO.60 (WHICH WERE ADJACENT TO EACH OTHER ) WERE PURCHASED SEPARATELY AFTER A SHORT INTERVAL OF ABOUT A MONTH OR SO AS AND WHEN IT COULD ARRANGE THE REQUIRED FINANCE FOR THE SAME AND ACCORDINGLY GOT THE PLANS SUBMITTED IMMEDIATELY AFTER THE PURCHASE AGREEMENTS TO AVOID ANY DELAY. IT IS SEEN THAT AFTER THE SUBMISSION OF SEPARATE PLANS FOR THE ABOVE REFERRED SUB PLOTS NO.L & 2, THE APPELL ANT FIRM HAD CARRIED OUT CONSTRUCTION IN THE ENTIRE AREA AT THE SAME TIME (CONSISTING OF SIX BUILDINGS), PROVIDED A COMMON ENTRANCE, COMMON GARDEN AND PARK AMENITIES, COMMON PARKING FACILITIES AND COMMON PLAY AREA, ETC. AND FURTH ER THE ENTIRE AREA WAS SURROUNDED BY A COMMON BOUNDARY WAIL A ND ON TOP OF IT THE LOCAL AUTHORITY I.E. SUDA HAD ISSUED ONLY ONE OCCUPANCY CERTIFICATE FOR ALL THE BUILDINGS CONSTRUCTED AT THE ABOVE REFERRED SUB PLOTS OF FINAL PLOT NO.60. AFTER G OING THROUGH THE OCCUPANCY CERTIFICATE, IT IS FOUND THAT THE L OCAL AUTHORITY HAD MENTIONED THAT THE DEVELOPMENT WAS CARR IED OUT AS PER THE DEVELOPMENT CONTROLLED REGULATIONS AND CONDITIONS STIPULATED IN THE DEVELOPMENT PERMISSIONS GRA NTED ON 4/07/1998 AND ON 24/06/1999 AND ALL THE BUILDING S WERE COMPLETED WITH SEWAGE TREATMENT PLANT & WATER TANK AN D ADDITIONAL WATER TANK OF CAPACITY OF ONE LAC LITTER WA S ALSO PROVIDED. 5.1 WHILE GOING THROUGH THE ASSESSMENT ORDER IT IS FOUN D THAT THE ASSESSING OFFICER HAD MENTIONED THAT THE SIZES OF THE APARTMENTS CONSTRUCTED IN BUILDINGS A -F WERE DIFFERENT AND NOT IDENTICAL ONES AND THEREFORE THE CONDITIONS AS LAID DOWN UNDER SEC.80IB(10) OF THE ACT WERE NOT FOUND FULFILLED . WHILE GOING THROUGH THE PROVISIONS OF SEC.80IB(10) (C) OF THE ACT IT HAS BEEN FOUND MENTIONED THAT THE BUILT UP AREA OF E ACH 10 RESIDENTIAL UNIT SHOULD NOT BE MORE THAN 1500 SQ.FT. BUT IT NOWHERE STATES THAT ALL THE RESIDENTIAL UNITS SHOULD BE OF SAME SIZE/AREA. THUS IN VIEW OF THE ABOVE FACTS, I DO NOT A GREE WITH THE FINDINGS OF THE ASSESSING OFFICER ON THIS POINT. REGAR DING THE FINDING OF THE A.O THAT BY SUBMITTING TWO PLANS, THE APPELLANT FIRM DEVELOPED TWO PROJECTS, I FIND THAT TH E SAME IS ALSO NOT TENABLE IN THE EYES OF THE LAW. IN THIS REGAR D, I FULLY AGREE WITH THE SUBMISSION AS MADE BY THE A.R. THAT WHIL E DEVELOPING AND CONSTRUCTING A HOUSING PROJECT, IT INVOLV ED VARIOUS ACTIVITIES AS ARRANGEMENT OF THE FUNDS FOR PURCHA SES OF LAND, SUBMISSION OF THE PLANS FOR THE CONSTRUCTION AND DEVELOPMENT OF THE HOUSING PROJECT, COMMENCEMENT OF THE CONSTRUCTION OF THE SAID PROJECT AND FINALLY, AFTER THE COMPLETION OF THE PROJECT TO OBTAIN THE OCCUPANCY CERTIF ICATE FROM THE LOCAL AUTHORITY AND AFTER THAT HANDING OVER THE FLATS TO THE OCCUPANTS AND AS A RESULT THE SUBMISSION OF THE PLA NS ON DIFFERENT DATES FOR APPROVAL BEFORE THE LOCAL AUTH ORITY SHOULD NOT BE TAKEN AS THE ONLY CONDITION REQUIRED TO BE FULFILLED FOR CLAIMING DEDUCTION U/S.80IB(10) OF THE A CT. FROM THE FACTS, IT IS ABUNDANTLY CLEAR THAT WHILE CARRYING OU T THE DEVELOPMENT AND CONSTRUCTION OF THE ABOVE PROJECT, THE APPELLANT FIRM HAD OBSERVED ALL THE CONDITIONS AS LAID DOWN UNDER SEC.80IB(10) OF THE ACT AND IN THIS REGARD IT IS WORTHWHILE TO MENTION THAT THE TOTAL LAND AREA ON W HICH THE CONSTRUCTION WAS CARRIED OUT ( THE AREAS OF SUB PLOT NO.L & SUB PLOT NO.2) WAS MORE THAN ONE ACRE AND THE ENTIRE PROJ ECT CONSISTING OF SIX BUILDINGS WAS CARRIED OUT AS ONE PROJECT AND BUILT UP AREA OF NONE OF THE RESIDENTIAL UNITS EXCEEDE D 1500 SQ. FT. THUS IN VIEW OF THE ABOVE FACTS, I DISAGREE WI TH THE FINDINGS OF THE A.O THAT AS THE PLANS FOR THE COMMENCE MENT, DEVELOPMENT AND CONSTRUCTION OF THE HOUSING PROJECT WER E SUBMITTED SEPARATELY BEFORE THE LOCAL AUTHORITY THEREF ORE THERE WERE DIFFERENT PROJECTS AND IT DID NOT QUALIFY FOR DEDUCTION U/S.80IB SO FAR AS THE CONSTRUCTION ON SUB PLOT N O.2 WAS CONCERNED. 5.2 IN MY CONSIDERED OPINION, SUBMISSION OF PLANS FOR COMMENCEMENT, DEVELOPMENT AND CONSTRUCTION OF THE HOUSING PROJECTS IS ONLY A PART OF THE ENTIRE GAMUT OF ACTIVITIES FOR THE COMPLETION OF A HOUSING PROJECT AND THAT CAN NO T BE A SOLE CRITERIA FOR THE PURPOSE OF ALLOWING DEDUCTION U/S.80IB(10) OF THE ACT. FURTHER, WHILE GOING THROUGH THE BUDGET SPEECH OF THE THEN FINANCE MINISTER OF UNION OF INDIA SHRI YASHWANT SINHA, WHICH WAS DELIVERED BY HIM ON 1/06/1998 WHILE PRESENTING THE BUDGET BEFORE THE HON' BLE 11 PARLIAMENT FOR THE FINANCIAL YEAR 1998-99, IT IS SEEN THAT HE HAD CATEGORICALLY ACKNOWLEDGED THE PRESSING NEED FOR MA KING MORE HOUSES FOR THE LOWER SECTIONS OF THE SOCIETY BECAUSE AN ACUTE SHORTAGE IN THIS AREA WAS FELT AND TO OVERCOME SUCH SITUATION, HE PROPOSED TO INTRODUCE THE DESIRED AMENDME NT IN SEC.SOIB OF THE I.T.ACT. IT IS ALSO FOUND THAT THE THEN FINANCE MINISTER HAD REALIZED THAT UNLESS STRONG INCENTIVES WERE GIVEN, NOBODY WOULD COME FORWARD TO COMMENCE AND DEVEL OP SUCH PROJECTS. IT WAS, IN VIEW OF SUCH COMPELLING SITUATIO NS THAT THE THEN FINANCE MINISTER HAD ANNOUNCED FOR THE TOTAL TAX EXEMPTION OF THE PROFIT OUT OF SUCH PROJECTS TO PROMOTE THE CAUSE OF THE PEOPLE FROM THE WEAKER SECTIONS OF THE SOCIET Y. 5.3 I, THEREFORE, IN LIGHT OF THE ABOVE DISCUSSION, FU LLY AGREE WITH THE SUBMISSION OF THE A.R. AND THE JUDICIAL FINDI NGS OF THE HON'BLE SUPREME COURT OF INDIA IN THE CASE OF BAJAJ TE MPO LTD. VS. CIT(1992) 104 CTR (SC) 116 (SUPRA), RELIED UPON BY HIM WHEREIN THE HON'BLE SUPREME COURT HAS HELD THAT A PROVISION INTENDED FOR PROMOTING ECONOMIC GROWTH HAS TO BE INTERPRETED LIBERALLY, THE RESTRICTION OF IT TOO HAS T O BE CONSTRUED SO AS TO ADVANCE THE OBJECT OF THE SECTION AND NO T TO FRUSTRATE IT. 5.4 THUS, IN VIEW OF THE ABOVE FACTS I AM OF THE VIEW THAT THE FINDINGS OF THE A.O, DENYING THE DEDUCTION U/S.80I B OF THE ACT TO THE APPELLANT WITH REGARD TO THE INCOME EARNED FROM HOUSING PROJECT ON SUB PLOT NO. 2 OF FINAL PLOT NO.60 BY HOLDING THE SAME AS A SEPARATE PROJECT WAS TOTALLY UNTEN ABLE IN THE EYES OF LAW AND HENCE THE ADDITION MADE BY HIM AMOUNTING TO RS. 1,07,25,683/- IS HEREBY DELETED. IN THE RESULT, THE GROUND OF APPEAL NO.L IS ALLOWED. 7. BEFORE US, SHRI KRISHNA SAINI, THE LEARNED D.R. HEAVILY RELIED ON THE ORDER OF THE ASSESSING OFFICER. HE FURTHER SUBMITTED THAT THE DECISION OF THE LD. CIT(A) IS NOT ACCEPTABLE. ACCORDING TO HIM, THE DISALLOWANCE WAS MADE BY THE ASSESSING OFFICER AFTER CAREFUL CONSIDERATION OF ALL ARGUMENTS PUT FORTH BY THE ASSESSEE AND FACTS OF THE CASE DISCUSSED DET AILED IN THE ASSESSMENT ORDER. SHRI KRISHNA SAINI, THE LD. D.R. SUBMI TTED THAT THE CIT(A) HAS ALLOWED APPEAL OF THE ASSESSEE ON THIS POINT, WITHOUT 12 APPRECIATING THE FACTS BROUGHT ON RECORD BY THE ASSESSING O FFICER. HE, THEREFORE, SUBMITTED THAT THE ORDER OF THE CIT(A) MA Y BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 8. SHRI M.K.PATEL WHILE APPEARING FOR THE ASSESSEE REIT ERATED THE SUBMISSIONS MADE BEFORE THE LOWER AUTHORITIES. HE FURTHER SUBMITTED THAT FROM THE CERTIFICATE OF SUDA DATED 28.5.2002, IT IS E VIDENT THAT THERE WAS ONLY ONE HOUSING PROJECT FOR ALL THE BUILDINGS CONSTRU CTED AT THE SUB PLOT NOS. 1 AND 2 OF FINAL PLOT NO.60. HE FURTHER SUBMITTED THAT IN THE CASE OF ITO V. AIR DEVELOPERS (2009) 123 TTJ (NAGPUR) PAGE 9 59,THE TRIBUNAL ALLOWED THE DEDUCTION U/S 80IB(10) OF THE ACT HOLDING THAT THE ASSESSEE HAD DEVELOPED ONLY ONE HOUSING PROJECT ON THE AREA EX CEEDING ONE ACRE THOUGH APPROVAL FOR THE SAME PROJECT WAS OBTAINED FROM NAGPUR IMPROVEMENT TRUST SIX TIMES. IN THE INSTANT CASE, SUDA AP PROVED THE PLAN FOR DEVELOPING OF HOUSING PROJECT ON 04.7.1998 F OR DEVELOPMENT OF HOUSES ON FIRST PLOT OF LAND AND ON 24.6.1999 FOR DEVE LOPMENT OF HOUSES ON THE SECOND PLOT OF LAND. HE, THEREFORE, SUBMITTED TH AT IN VIEW OF THE DECISION OF I.A.T.. NAGPUR BENCH (SUPRA), THE CONTENTION S OF THE REVENUE THAT THE PROJECT OF SECOND PLOT IS POST THOUGHT AND THE ASSESSEE HAS DEVELOPED SECOND PLOT SEPARATELY AND HAS INCLUDED IT LA TER ON TO CLAIM THE DEDUCTION ARRIVED FROM IT ARE BASELESS AND NOT TENABLE. 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAVE AL SO PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS EVIDENT FROM THE RECORD THAT THE ASSESSEE FIRM HAD ENTERED INTO AN AGREEMENT TO BUY SUB P LOT NOS. 1 AND 2 OF FINAL PLOT NO.60 MUCH BEFORE THE AMENDMENT INTR ODUCED BY THE LEGISLATURE U/S 80IB(10) OF THE ACT WITH THE INTENTION TO COMMENCE, DEVELOP AND CONSTRUCT A HOUSING PROJECT. THERE IS NO DI SPUTE THAT BOTH THE PIECES OF LAND WERE ADJACENT TO EACH OTHER. THE ASSESSE E PURCHASED THE FIRST PLOT NO.1 ON 04.6.1998 ADMEASURING 1.05 ACRE S AND SECOND PLOT 13 OF LAND ON 04.7.1998 ADMEASURING 0.78 ACRE. THUS, IT I S CLEAR THAT THESE PIECES OF LAND WERE PURCHASED SEPARATELY AFTER A SHORT IN TERVAL OF ABOUT ONE MONTH OR SO AS AND WHEN IT COULD ARRANGE THE REQUI RED FINANCE FOR THE SAME AND ACCORDINGLY, BOTH THE PLANS SUBMITTED IMMEDIAT ELY AFTER THE PURCHASE AGREEMENTS TO AVOID ANY DELAY. THE CIT(A) HAS CATEGORICALLY STATED THAT THE ASSESSEE FIRM HAD CARRIED OUT CONSTRUCTION IN THE ENTIRE AREA AT THE SAME TIME, PROVIDED A COMMON GARDEN, COMM ON PARKING AMENITIES, COMMON PARKING FACILITIES AND COMMON PLAY AR EA, ETC. AND FURTHER THE ENTIRE AREA WAS SURROUNDED BY A COMMON BOU NDARY. THERE IS NO MATERIAL ON RECORD TO CONTROVERT THE ABOVE FINDING S OF THE CIT(A). IT IS ALSO SEEN THAT THE LOCAL AUTHORITY I.E. SURAT URBAN DE VELOPMENT AUTHORITY HAD ISSUED ONLY ONE OCCUPANCY CERTIFICATE FOR ALL THE BUI LDINGS CONSTRUCTED AT THE ABOVE REFERRED SUB PLOTS WHICH READS AS UNDER: URBAN DEVELOPMENT AUTHORITY OCCUPANCY CERTIFICATE I HEREBY CERTIFY THAT THE RESIDENTIAL DEVELOPMENT OF THE PRAGTI PART PARK CO-OP HOUSING SOCIETY FOR RESIDENTIAL HIGH RISED BUILDINGS NO A & B TYPE ON SURVEY NO. 46/P : P.P. NO. 60/P., SUB PLOT NO .-I & 2,T.P.S. 1 (VESU) VILLAGE VESU, TA. CHOIIYASI - DIST. S URAT, IN THE DEVELOPMENT AREA, COMPLETED UNDER SUPERVISION OF ER. S.H.PAREKH HAS BEEN INSPECTED ON 24/05/2002 AND 1 DECLARE THAT TH E DEVELOPMENT HAS BEEN CARRIED OUT AS PER THE DEVELOPME NT CONTROLLED REGULATIONS AND CONDITIONS STIPULATED IN THE DEVELOPMENT PERMISSION NO. SUPA/VPA/U-4/3427/REVISE3370/3623 DATED . 04/07/1998 & SUDA/VPA/U-4/3460/1/3904 DATED 24/06/1 999 AND THAT THE DEVELOPMENT OF TWO BUILDINGS A &. C ARE OF GROUND PLUS SIX FLOOR (OH-6) & TWO BUILDINGS E&F ARE OF GROUND PLUS SE VEN FLOOR(G+7),COMPLETED WITH SEWAGE TREATMENT PLANT.& W ATER TANK & ADDITIONAL WATER TANK OF CAPACITY OF ONE LAC LITTER, PROVIDED, FOR WHICH THE OCCUPANCY CERTIFICATE HAS BEEN ASKED VIDE YOUR LE TTER DATED 15/05/2002, AND BUILDING COMPLETION CERTIFICATE DATED 23/04/2002 AND DATED 24/05/2002 IS FIT FOR USE FOR W HICH IT HAS BEEN PERMITTED. SUDA .A/U-4/3427/REVISE 3370/3623/3945 /?//( '/VPA/U- & SUDA/VPA/U-4/3460/I/3904 14 DATE: 28/05/2002 SD/-SENIOR TOWN PLANNER SUDA SURAT TRUE COPY SD/- J.P.RATHOD NOTARY 10. FROM THE ABOVE CERTIFICATE, IT IS CLEAR THAT THE DE VELOPMENT WAS CARRIED OUT AS PER THE DEVELOPMENT CONTROL REGULATIONS AND CONDITIONS STIPULATED IN THE DEVELOPMENT PERMISSIONS GRANTED ON 0 4.7.1998 AND 24.6.1999. IT IS ALSO RELEVANT TO STATE THAT THE TOT AL AREA OF LAND FOR THE PROJECT WAS MORE THAN ONE ACRE. AS WE HAVE ALREADY STAT ED THAT ONE COMPLETION CERTIFICATE WAS ISSUED BY THE LOCAL AUTHORITY FOR THE WHOLE PROJECT WHICH WAS CARRIED OUT ON SUB PLOT NOS. 1 AND 2 O F FINAL PLOT NO.60. THE ASSESSING OFFICER HAS NOT DISPUTED THIS FACT THAT THE B UILT UP AREA OF EACH RESIDENTIAL UNIT, IS LESS THAN 1500 SQ. FEET AS FIXED FOR ALLOWABILITY OF DEDUCTION U/S 80IB(10)(C) OF THE ACT FOR THE CITY OF SUR AT. IN OUR VIEW, THE ASSESSING OFFICER WAS NOT JUSTIFIED IN STATING THAT THE SI ZES OF THE HOUSES CONSTRUCTED IN BUILDING A TO F WERE DIFFERENT AND NOT IDENTICAL ONES AND, THEREFORE, THE CONDITIONS AS LAID DOWN U/S 80IB(10) OF THE ACT WERE NOT FOUND FULFILLED. AS WE HAVE ALREADY MENTIONED HEREIN ABOVE THAT THE BUILT UP AREA IS THE RESIDENTIAL UNIT, SHOULD NOT BE MORE TH AN 1500 SQ. FEET, BUT THE SECTION NOWHERE STATES THAT ALL THE RESIDENTIAL UNI TS SHOULD BE OF SAME SIZE/AREA. THE ASSESSING OFFICER HAS ALSO RAISED A CONTENTIO N THAT THE ASSESSEE HAD SUBMITTED TWO PLANS FOR APPROVAL. THIS CONTENT ION OF THE ASSESSING OFFICER IS ALSO NOT TENABLE IN VIEW OF THE DECISI ON OF I.T.A.T. NAGPUR BENCH IN THE CASE OF AIR DEVELOPERS (SUPRA),WHERE IN THERE WAS ONLY ONE HOUSING PROJECT FOR WHICH MULTIPLE SANCTIONS WE RE GRANTED AS PER THE ZONING OF THE PLOT AND ACCESS ROAD. WE ALSO FIND NO FORCE IN THIS OBSERVATION OF THE ASSESSING OFFICER THAT AS THE PLANS FOR THE COMMENCEMENT, DEVELOPMENT AND CONSTRUCTION OF THE HOUSING PROJECT 15 WERE SUBMITTED SEPARATELY BEFORE THE LOCAL AUTHORITY, THEREFORE,THERE WERE DIFFERENT PROJECTS AND IT DID NOT QUALIFY FOR DE DUCTION U/S 80IB(10). SO FAR AS THE CONSTRUCTION ON SUB PLOT NO.1 & 2 IS CONCERN ED, AS WE HAVE ALREADY OBSERVED HEREINABOVE THAT ALL THE CONDITIONS A S LAID DOWN U/S 80IB(10) OF THE ACT HAVE BEEN FULFILLED BY THE ASSESSEE . WE HAVE ALSO NOTED THAT TOTAL LAND AREA ON WHICH THE CONSTRUCTION WA S CARRIED OUT WAS MORE THAN ONE ACRE AND THE ENTIRE PROJECT CONSISTING OF SIX BUILDINGS WERE CARRIED OUT AS ONE PROJECT AND BUILT UP AREA OF EACH R ESIDENTIAL UNIT DID NOT EXCEED 1500 SQ. FEET. IN THAT VIEW OF THE MATTER, WE DO NOT SEE ANY INFIRMITY IN THE FINDINGS OF THE CIT(A) ON THIS ISSUE. THUS, CONSIDERING THE ENTIRE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, WE ARE OF THE VIEW THAT THE CIT(A) HAS PASSED A WELL REASONED ORDER AFTER APPRECIATING THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS RELEVANT PR OVISIONS OF THE LAW. ACCORDINGLY, WE UPHOLD THE VIEW TAKEN BY THE CIT (A) AND DISMISS THE GROUND RAISED BY THE REVENUE. 11. AT THE TIME OF HEARING OF THE CASE, SHRI M.K.PATE L, THE LEARNED COUNSEL FOR THE ASSESSEE DID NOT PRESS FOR THE GROUND RAIS ED IN THE CROSS OBJECTION AND ACCORDINGLY, WE DISMISS THE CROSS OBJECTION AS NOT PRESSED. 12. IN THE RESULT, APPEAL OF THE REVENUE AS WELL AS CR OSS OBJECTION BY THE ASSESSEE ARE DISMISSED. THE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 04.9. 2009. SD/- (A.N.PAHUJA) ACCOUNTANT MEMBER SD/- (H.L.KARWA) JUDICIAL MEMBER AHMEDABAD, DATED:04.9.2009 16 PSP* COPY TO : (1) THE ASSESSEE (2) THE ASSESSING OFFICER (3) THE CIT(A) CONCERNED, (4) THE CIT, CONCERNED, (5) THE DR, ITAT, AHMEDABAD, (6) GUARD FILE. BY ORDER ASSTT. REGISTRAR / D EPUTY REGISTRAR ITAT, AHMEDABAD BENCHES AHMEDABAD.