The ITO, Ward-3(1), Baroda V. M/s. Amar Corporation, Baroda

ITA 1991/AHD/2013

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3667 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 10 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-06-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 18-05-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 24-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANILKUMAR BHARADWAJ

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI RAJPAL YADAV, JUDICIAL MEMBER ./ ITA NO.1991/AHD/2013 WITH CO NO.19/AHD/2014 / ASSTT.YEAR: 2009-2010] ITO, WARD - 3(1) BARODA. VS M/S.AMAR CORPORATION A-10, GHANSHYAM PARK SOCIETY NEW SAMA ROAD, BARODA. ( APPLICANT ) (RESPONDENT) REVENUE BY : SHRI ANIL KUMAR BHARADWAJ, SR.DR ASSESSEE BY : NONE / DATE OF HEARING : 18/05/2016 / DATE OF PRONOUNCEMENT: 01 /06/2016 *+/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE REVENUE IS IN APPEAL BEFORE US AGAINST THE ORDE R OF THE LD.CIT(A)-II DATED 9.4.2013 PASSED FOR THE ASSTT.YE AR 2009-10. ON RECEIPT OF NOTICE IN REVENUES APPEAL, THE ASSE SSEE HAS FILED CROSS OBJECTION BEARING NO.19/AHD/2014. 2. SOLITARY GRIEVANCE OF THE REVENUE IN ITS APPEAL IS THAT THE LD.CIT(A) ERRED IN ALLOWING DEDUCTION OF RS.60,18,6 30/- UNDER SECTION 80IB(10) OF THE INCOME TAX ACT. IN THE CO THE ASSE SSEE HAS PLEADED THAT THE LD.CIT(A) HAS RIGHTLY ALLOWED DEDUCTION TO THE ASSESSEE, ITA NO.1991/AHD/2013 2 BECAUSE, THE ISSUE IN DISPUTE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THE ITAT IN THE ASSTT.YEARS 2006-07 AND 20 07-08. THESE ORDERS HAVE BEEN UPHELD BY THE HONBLE HIGH COURT A LSO. THE ASSESSEE HAS ANNEXED COPY OF THE DECISION OF THE HONBLE HIG H COURT PASSED IN ITS OWN CASE IN TAX APPEAL NO.1286 OF 2001 DATED 11.01. 2012. 3. IN RESPONSE TO THE NOTICE OF HEARING, NO ONE HAS COME PRESENT ON BEHALF OF THE ASSESSEE. 4. WITH THE ASSISTANCE OF THE LD.DR, WE HAVE GONE T HROUGH THE RECORD CAREFULLY AND PROCEEDED TO DISPOSE OF THE AP PEAL AS WELL AS CO EX PARTE QUA THE ASSESSEE. 5. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HA S FIELD ITS RETURN OF INCOME ON 25/09/2009 DECLARING INCOME AT NIL. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT AND N OTICE UNDER SECTION 143(2) OF THE INCOME TAX WAS ISSUED ON 19.8.2010. ON SCRUTINY OF THE ACCOUNTS, IT REVEALED TO THE AO THAT THE ASSESSEE H AS SHOWN SALES OF RS.2,62,96,421/-. IT HAS SHOWN NET PROFIT AT RS.60 ,18,626/-. THE ASSESSEE HAS CLAIMED DEDUCTION UNDER SECTION 80IB(1 0) OF THE ACT. IT HAS FILED REPORT IN FORM NO.10CCB IN SUPPORT OF ITS CLAIM. THE LD.AO HAS OBSERVED THAT THE ASSESSEE IS NOT OWNER OF THE LAND. PERMISSION TO RAISE CONSTRUCTION WAS GIVEN BY THE VADODARA MUNICI PAL CORPORATION ON 7.4.2005. IT WAS ALSO IN THE NAME OF SHRI DALSUKHB HAI CHATURBHAI PRAJAPATI AND OTHERS. THE LD.AO HAS MADE REFERENCE TO A NUMBER OF REASONS FOR DENYING THE DEDUCTION TO THE ASSESSEE. HOWEVER, CONSIDERING THE DISPUTE IN EARLIER YEARS, WE DO NOT DEEM IT NECESSARY TO RE-CAPITULATE AND RECITE ALL THE FACTS. IT WOULD B E SUFFICE TO SAY THAT IT IS THE SAME PROJECT ON WHICH DEDUCTION WAS ALLOWED TO THE ASSESSEE IN EARLIER YEARS BY THE TRIBUNAL, AND ORDER OF THE TRI BUNAL HAS BEEN UPHELD BY THE HONBLE GUJARAT COURT. IN THE SUBMISSIONS A NNEXED WITH THE ITA NO.1991/AHD/2013 3 CROSS-OBJECTION, THE ASSESSEE HAS DEMONSTRATED THAT PERMISSION FOR DEVELOPMENT OF PLOT WAS GRANTED ON 7.4.2005. THUS, IT WAS DURING THE PERIOD BETWEEN 1.10.1998 TO 31.3.2007. THE SIZE OF EACH RESIDENTIAL UNIT IS LESS THAN 1500 SQ.FEETS. SIZE OF THE PLOT O N WHICH THE PROJECT IS UNDERTAKEN IS OF 17700 SQ.METERS, WHICH IS MORE THA N ONE ACRE. OTHER OBJECTIONS OF THE AO ARE USUAL OBJECTIONS THAT THE ASSESSEE IS WORK CONTRACTOR, AND IT WAS NOT THE OWNER OF THE LAND ET C., ALL THESE ASPECTS HAVE BEEN CONSIDERED IN THE CASE OF THE ASSESSEE IN THE ASSTT.YEARS 2006-07 AND 2007-08. COPY OF THE HONBLE HIGH COUR TS DECISION IN TAX APPEAL NO.1286 OF 2011 IN THE CASE OF ITO VS. AMAR CORPORATION DECIDED ON 11.1.201 HAS BEEN PLACED ON RECORD. IN THE LIGHT OF THIS DECISION, IF WE PERUSE THE ORDER OF THE CIT(A), THE N, IT WOULD REVEAL THAT REASONING OF THE LD.CIT(A) ARE IN CONSONANCE WITH T HE VIEW TAKEN BY THE ITAT IN EARLIER YEARS, WHICH HAS BEEN UPHELD BY THE HONBLE JURISDICTIONAL HIGH COURT. THEREFORE, WE DO NOT SE E ANY REASON TO INTERFERE WITH THE ORDER OF THE CIT(A). CONSEQUENT LY, THE APPEAL OF THE REVENUE IS DISMISSED AND THE CO OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED, AND THE CO OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 1 ST JUNE, 2016 AT AHMEDABAD. SD/- SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 01/06/2016