The ITO, Ward-3(1), Baroda V. M/s. J.R. Construction Co., Baroda

ITA 1980/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1573 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 8 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 24-05-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 05-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Keywords: Audit objection; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH AHMEDABAD , BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER. ITA. NO.1980/AHD/2012 (ASSESSMENT YEAR:2008-09) INCOME-TAX OFFICER, WARD-3(1), BARODA APPELLANT VS. M/S. J. R. CONSTRUCTION CO. TALJA MANGALS KHADKI, AT. PADRA, BARODA 391440 RESPONDENT PAN: AADFD5422C /BY APPELLANT : SHRI DINESH SINGH, SR.D.R. /BY RESPONDENT :NONE /DATE OF HEARING : 24.05.2016 /DATE OF PRONOUNCEMENT : 25.05.2016 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY REVENUE AGAINST THE O RDER OF COMMISSIONER OF INCOME TAX (APPEALS)-II, BARODA, DATED 18.06.2012 FOR A.Y. 2008-09 ON FOLLOWING GROUND:- ITA NO.1980/AHD/12 A.Y. 08-09 [ITO VS. M/S. J.R. CONSTRUCTION CO.] PAGE 2 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD CIT(APPEALS) ERRED IN ALLOWING DEDUCTION OF RS.23,39,980/- U/S.80IB(10) R.W.S. 80I B(1) TO THE ASSESSEE ON PROFIT DERIVED FROM SALE OF UNUT ILIZED FSI NOT BEING THE ELEMENT OF PROFITS DERIVED FROM T HE BUSINESS ACTIVITY OF DEVELOPMENT AND CONSTRUCTION O F THE HOUSING PROJECT. 2. ON THE DATE OF HEARING, NONE APPEARED ON BEHALF OF ASSESSEE BUT HOWEVER THE LD. D.R. FAIRLY ADMITTED T HAT THE TAX EFFECT ON THE IMPUGNED ADDITIONS IS LESS THAN THE L IMIT PRESCRIBED BY THE CBDT CIRCULAR OF 10.12.2015 BEARI NG NO. 21 OF 2015. 2.1 WE HAVE HEARD THE LD. D.R. AND PERUSED THE MATE RIAL ON RECORD. ON PERUSING THE GROUNDS OF APPEAL RAISED BY THE REVENUE, WE FIND THAT REVENUE IS AGGRIEVED BY ALLOW ING DEDUCTION OF RS.23,39,980/- U/S.80IB(10) R.W.S. 80I B(1) OF THE ACT TO ASSESSEE BY CIT(A), THE TAX EFFECT OF WH ICH IS BELOW RS.10 LACS. AS PER THE ANNOUNCEMENT OF CENTRAL BOA RD OF DIRECT TAXES (CBDT) DATED 10.12.2015 (CIRCULAR NO.2 1 OF 2015), NO DEPARTMENT APPEALS ARE TO BE FILED AGAINS T RELIEF GIVEN BY LD. CIT(A) BEFORE THE INCOME TAX APPELLATE TRIBUNAL UNLESS THE TAX EFFECT, EXCLUDING INTEREST, EXCEEDS RS.10 LACS AND IT FURTHER STATES THAT THE INSTRUCTIONS WILL AP PLY RETROSPECTIVELY TO THE PENDING APPEALS. THE BOARD HAS PROVIDED EXEMPTIONS AT CLAUSE (8) OF THE INSTRUCTIO NS WHEREIN IT HAS BEEN PROVIDED THAT THESE INSTRUCTIONS WILL N OT BE APPLICABLE, IF VIRES OF ANY PROVISIONS HAS BEEN QUA SHED BY IMPUGNED ORDER OR ADDITION WAS MADE ON SOME AUDIT OBJECTIONS OR THE ADDITION RELATES TO UNDISCLOSED F OREIGN ITA NO.1980/AHD/12 A.Y. 08-09 [ITO VS. M/S. J.R. CONSTRUCTION CO.] PAGE 3 ASSETS/BANK ACCOUNTS, ETC. WE PRIMA-FACIE FIND THAT THE PRESENT CASE DOES NOT FALL WITHIN THE EXEMPTION CLA USE AND THE TAX EFFECT OF THIS IS BELOW RS. 10 LAKHS. IT I S FURTHER OBSERVED THAT SINCE, WHILE HEARING THE APPEAL, SUCH FACTORS WERE NOT CONSIDERED, THEREFORE, IN CASE, ON RE-VERI FICATION AT THE END OF THE ASSESSING OFFICER, IT CAME TO THE NO TICE THAT THE TAX EFFECT IS MORE OR IT FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE INSTRUCTION, THEN THE DEPARTMENT WI LL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICATION SHOULD BE FILED WITHIN FOUR YEARS OF TH IS ORDER. IN VIEW OF THE ABOVE, THE APPEAL OF THE REVENUE IS DIS MISSED. 3. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSE D. PRONOUNCED IN THE OPEN COURT ON THIS THE 25 TH DAY OF MAY, 2016. SD/- SD/- (ANIL CHATURVEDI) (SHAILENDRA KUMAR YA DAV) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 25/05/2016 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE $ %&%'( ) / CONCERNED CIT 4 )- / CIT (A) ,-./00'(1 '( 123& / DR, ITAT, AHMEDABAD 4/5678 / GUARD FILE. BY ORDER / 1 / 2% '( 123&