The ACIT,Vapi Circle, Vapi V. M/s. Datta Developers, SILVASSA

ITA 2107/AHD/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1864 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2009
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 07-12-2009
• Assessment Year: 2006-2007
• Appeal Filed On: 02-07-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJIV AGARWAL
• Keywords: Set aside
• Section: 143(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD A BENCH (BEFORE DR.O.K. NARAYANAN, VICE-PRESIDENT AND SHRI BHAVNESH SAINI, JUDICIAL MEMBER) ITA NO.2107/AHD/2009 [ASSTT.YEAR : 2006-2007] ACIT, VAPI CIRCLE VAPI. VS. M/S.DATTA DEVELOPERS 04, SAI DHAM, NR.KELAVANI NAKA SILVASSA 396 023. PAN : AACFD 0228R REVENUE BY : SHRI RAJIV AGARWAL ASSESSEE BY : NONE DATE OF ORDER RESERVED : 07-12-2009 O R D E R PER DR. O.K. NARAYANAN, VICE-PRESIDENT : THIS APPEAL IS FILED BY THE REVENUE. THE RELEVANT ASSESSMENT YEAR IS 20 06-2007. THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF I NCOME-TAX (APPEALS) AT VALSAD DATED 26.03.2009 AND ARISES OUT OF THE ASSES SMENT COMPLETED UNDER SECTION 143(1) OF THE INCOME TAX ACT, 1961. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS IN THIS APPEAL: 1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN HOLDING THAT ASSESSEE-F IRM WILL BE ELIGIBLE FOR DEDUCTION U/S.80IB(10) OF RS.7,49,060/ -. 2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LEARNED CIT(A) HAS GRANTED RELIEF TO ASSESSEE WITHO UT CONSIDERING THE FACT THAT ASSESSEE DID NOT OWN THE LAND IN WHIC H THE PROJECTS WERE CONSTRUCTED AND BENEFIT U/S.80IB(10) WAS CLAIM ED. 3) IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE L EARNED CIT(A) BE SET ASIDE AND THAT THE ORDER OF THE AO BE RESTORED. PAGE - 2 ITA NO.2107/AHD/2009 -2- 3. WHEN THE MATTER WAS CALLED ON FOR HEARING, NOBOD Y WAS PRESENT FOR THE RESPONDENT-ASSESSEE. IN FACT THE POSTING NOTICE HA S BEEN SERVED ON THE RESPONDENT-ASSESSEE THROUGH THE INCOME-TAX DEPARTME NT. BUT ANY HOW, THERE WAS NO APPEARANCE FOR THE ASSESSEE, AT THE TIME OF HEARING. THEREFORE, WE PROCEED TO DISPOSE OF THIS APPEAL EXPARTE QUA THE ASSESSEE. 4. WE HEARD SHRI RAJIV AGARWAL, THE LEARNED COMMISS IONER OF INCOME-TAX, APPEARING FOR THE REVENUE. 5. ON GOING THROUGH THE DETAILED ORDER PASSED BY TH E CIT(A), WE FIND THAT THE CIT(A) HAS DECIDED THE ISSUE RAISED BY THE ASSE SSEE MAINLY RELYING ON THE JUDGMENT OF THE APPELLATE TRIBUNAL, AHMEDABAD BENCH ES IN THE CASE OF RADHE DEVELOPERS & ORS. VS. ITO & ORS., 113 TTJ (AHD) 300 . IN FACT THE CIT(A) HAS RELIED ON THE LEGAL PROPOSITIONS PROPOUNDED IN THE FOLLOWING JUDGMENTS: I) RADHE DEVELOPERS VS. ITO & ORS., 113 TTJ (AHD) 300; II) SAROJ SALES ORGANISATION VS. ITO, 115 TTJ 485 (ITAT -MUM); III) PATEL ENGINEERING LTD. VS. DCIT, 84 TTJ 646; IV) MYSORE MINERALS LTD., 239 ITR 775 (SC); V) TAMIL NADHU CIVIL SUPPLIES CORPN. LTD. VS. CIT, 249 ITR 214 (SC) VI) STATE OF UP VS. RENUSAGAR POWER COMPANY, 70 COMP. C AS. 127, 149 (SC) VII) CIT VS. PODAR CEMENT PVT. LTD., 226 ITR 625 (SC); VIII) R.B. JODHA MAL KUTHIALA VS. CIT, 82 ITR 570 (SC); IX) PERRY VS. CLISSOLD (1907) AC 73 (OC) 6. BUT WHILE RELYING HEAVILY ON THE RATIO LAID DOWN IN THE ABOVE JUDGMENTS, THE CIT(A) HAS NOT DISCUSSED THE FACTS AND CIRCUMST ANCES LEADING TO THOSE JUDGMENTS ALONG WITH THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE SO THAT IT IS CLEARLY REFLECTED IN HIS ORDER, WHETHER THE FACT S AND CIRCUMSTANCES OF THE CASE ARE ANALOGOUS TO THE FACTS AND CIRCUMSTANCES CONSID ERED IN THOSE CASES. THE CIT(A) HAS NOT ADVENTED UPON TO DISCUSS THE ESSENTI ALS OF THE CASE AT ALL. IT IS NOT POSSIBLE TO APPLY THE RATIO OF DECISIONS UNLESS THE FACTS ARE MARSHALLED AND PAGE - 3 ITA NO.2107/AHD/2009 -3- EXPLAINED SO THAT THE APPLICABILITY OF THE RATIO IS VISIBLY JUSTIFIED IN THE LIGHT OF THE FACTS AND CIRCUMSTANCES OF A PARTICULAR CASE. 7. IN ADDITION TO THE ABOVE LACUNAE, WE ALSO FIND T HAT THE CIT(A) HAS NOT CONSIDERED/EXPLAINED THE PROVISIONS OF LAW CONTAINE D IN SECTION 80IB(10). WHILE THE QUESTION OF DEDUCTION CLAIMED BY THE ASSE SSEE IS TO BE CONSIDERED, IT IS NECESSARY TO STATE THE FACTS OF THE CASE AND EXA MINE AND DISCUSS THE STATUTORY PROVISIONS UNDER WHICH THE EXEMPTION IS CLAIMED. 8. IN SHORT, WE FIND THAT THE ABOVE TWO BASIC REQUI REMENTS ARE NOT SATISFIED IN THE ORDER PASSED BY THE CIT(A). THEREFORE, WE A RE CONSTRAINED TO HOLD THAT THE ORDER OF THE CIT(A) IS BAD IN LAW. 9. IN THE LIGHT OF THE ABOVE FACTS AND CIRCUMSTANCE S, WE REMIT BACK THE CASE TO THE FILE OF CIT(A) FOR FRESH DISPOSAL IN THE LIG HT OF THE STATUTORY PROVISIONS AND DECISIONS OF APPELLATE AUTHORITIES INCLUDING RE CENT DECISIONS OF THE TRIBUNAL AND COME TO A LAWFUL CONCLUSION. 10. IN RESULT THE APPEAL FILED BY THE REVENUE IS TR EATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON WEDNESDAY THIS 9 TH DAY OF DECEMBER, 2009. SD/- SD/- (BHAVNESH SAINI) JUDICIAL MEMBER (DR.O.K. NARAYANAN) VICE-PRESIDENT PLACE : AHMEDABAD DATE : 09-12-2009 PAGE - 4 ITA NO.2107/AHD/2009 -4- COPY OF THE ORDER FORWARDED TO: 1) : ASSESSEE 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR, ITAT, AHMEDABAD