Shri Shailesh D. Patel, Baroda V. The ACIT.,Circle-4, Baroda

ITA 2115/AHD/2010

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 9270 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 21-06-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SHAILAJA RAI
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER, AND SHRI D. C. AGRAWAL, ACCOUNTANT MEMBER ITA NO.2115/AHD/2010 ASSESSMENT YEAR:2007-08 DATE OF HEARING:219.11.10 DRAFTED:9.23.11.10 SHRI SHAILESH D PATEL, PROP. SHARDA CONSTRUCTION, 271 GIDC ESTATE, MAKARPURA, BARODA PAN NO.ACQPP7076D V/S . ACIT, CIRCLE-4, BARODA (APPELLANT) .. (RESPONDENT) APPELLANT BY :- NONE (WRITTEN SUBMISSION) RESPONDENT BY:- SMT. SHAILAJA RAI, DR O R D E R PER MAHAVIR SINGH, JUDICIAL MEMBER:- THIS APPEAL BY THE ASSESSEE IS ARISING OUT OF THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-III, BARODA IN APPEAL NO.CA B/III/07-08 DATED 09-03- 2010. THE ASSESSMENT WAS FRAMED BY ACIT, CIRCLE-4, BARODA, U/S143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO A S THE ACT) VIDE HIS ORDER DATED 11-12-2009 FOR ASSESSMENT YEAR 2007-08. 2. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AGA INST THE ORDER OF CIT(A) CONFIRMING THE DISALLOWANCE DEDUCTION U/S.80IB OF T HE ACT. FOR THIS, ASSESSEE HAS RAISED THE FOLLOWING EFFECTIVE GROUND :- 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) ERRED IN FACT AND IN LAW IN CONFIRMING THE ACTION OF THE AO IN DI SALLOWING THE DEDUCTION U/S.S80IB AMOUNTING TO RS.14,97,987/- ON TOTALLY IRRELEVANT ITA NO.2115/AHD/2010 A .Y 2007-08 SH. SHAILESH D PATEL V. ACIT, CIR-4, BRT PAGE 2 GROUNDS DESPITE THE FACT THAT THE APPELLANT HAD FUL FILLED ALL THE CONDITION MENTIONED IN SECTION 80IB OF THE INCOME TAX ACT, 19 61. 1.1 THE LEARNED COMMISSIONER OF INC TAX (APPEALS) E RRED IN FACT AND IN LAW IN CONFIRMING THE ACTION OF THE AO THAT THE APP ELLANT IN THIS CASE NOT ENTITLED TO DEDUCTION U/S.80IB(10) IN RESPECT OF PR OFIT WHICH IN OPINION OF THE AO WAS ATTRIBUTABLE TO UNAPPROVED UNUTILIZED FS I OF INDIVIDUAL RESIDENTIAL BUILDINGS. 1.2 THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) ERRED IN FACT AND IN LAW IN CONFIRMING THE ACTION OF THE AO THAT THE DEDUCTION U/S.80IB OF THE ACT RESTRICTS ITSELF TO THE PROFITS FROM THE R ESIDENTIAL PROJECT AS PROVIDED IN SECTION 80IB(10) OF THE ACT. 1.3 THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) ERRED IN FACT AND IN LAW IN CONFIRMING THE ACTION OF THE AO IN NO T APPRECIATING THE FACT THAT DEVELOPMENT OF HOUSING PROJECT IS A COMPOSITE ACTIVITY HAVING SEVERAL INTEGRATED AND INTERCONNECTED ELEMENTS WHER EIN CONSTRUCTION OF A RESIDENTIAL UNIT IS AN ESSENTIAL PART BUT NOT THE ONLY PART OF THE PROJECT . 3. AT THE OUTSET, IT IS SEEN THAT THE ASSESSEE VIDE LETTER DATED 16-11-2010 HAS REQUESTED THE BENCH AS UNDER:- 1. THE HEARING OF THE ABOVE MATTER IS FIXED ON 19-11-2010. 2. THE ONLY ISSUE UNDER CONSIDERATION IS DISALLOWAN CE OF DEDUCTION U/S.80IB(10) OF THE ACT. IT MAY BE MENTIONED THAT T HE CIT(A) HAS DISALLOWED THE DEDUCTION U/S.80IB(10) BY FOLLOWING ORDER OF THE ITAT, AHD IN THE CASE OF THE APPELLANT FOR AY 2005-06. TH E ITAT, AHD VIDE ITA NO.1934/A/2008 DATED 27-11-2009 FOR AY 2005-06 HAS HELD THAT SINCE THE APPELLANT HAD UNDERTAKEN COMMERCIAL CONST RUCTION IN EXCESS OF 5% OF AGGREGATE BUILT UP AREA IT IS NOT ELIGIBLE TO CLAIM DEDUCTION U/S.80IB(10) OF THE ACT (COPY OF DECISION OF THE IT AT, AHD IS ATTACHED AS ANNEXURE-1), SINCE THE ISSUE IS A COVERED ISSUE, WE REQUEST YOUR KIND OFFICE TO TAKE A VIEW ACCORDINGLY. 3. SHOULD YOU REQUIRE ANY FURTHER INFORMATION ON EX PLANATION WE SHALL BE PLEASED TO SUBMIT THE SAME ON HEARING FROM YOUR KIN D OFFICE TO DO SO. FROM THE ABOVE, IT IS CLEAR THAT THE ASSESSEE ADMIT TED THAT ASSESSEES OWN CASE IS SQUARELY COVERED BY THE TRIBUNALS DECISION , AS THE PROJECT BEING THE SAME, AGAINST THE ASSESSEE IN ASSESSEES OWN CASE I N ITA NO. 1934 / AHD / ITA NO.2115/AHD/2010 A .Y 2007-08 SH. SHAILESH D PATEL V. ACIT, CIR-4, BRT PAGE 3 2008 DATE 27-11-2009 FOR THE ASSESSMENT YEAR 2005-06, W HEREIN THE TRIBUNAL HAS HELD IN PARA-17 AS UNDER:- THE ASSESSEE IN THIS CASE ALTHOUGH HAS NOT SUBMITT ED THE COPY OF THE DEVELOPMENT AGREEMENT BEFORE US BUT IN OUR OPINION, WHETHER THE ASSESSEE HAS COMPLIED WITH THE OTHER CONDITIONS OR NOT, THE ISSUE WILL BE ACADEMIC. WE HAVE ALREADY HELD IN THE PROCEEDING PA RAGRAPHS THAT FOR AVAILING OF THE DEDUCTION U/S.80IB(10), THE ASSESSE E HAS TO COMPLY WITH ALL THE CONDITIONS AS STIPULATED U/S.80(B(10). THE ASSESSEE, IN OUR OPINION, HAS FAILED TO COMPLY WITH THE CONDITIONS R ELATING TO THE COMMERCIAL BUILT-UP AREA. WE, THEREFORE, DISMISS TH E GROUND TAKEN BY THE ASSESSEE. AS THE TRIBUNAL IN ASSESSEES OWN CASE (SUPRA) HAS ALREADY DISALLOWED THE CLAIM OF THE ASSESSEE U/S.80IB(10) OF THE ACT THAT THE SAME PROJECT, RESPECTFULLY FOLLOWING THE SAME, WE DISMISS THE APP EAL OF THE ASSESSEE. 4. IN THE RESULT, ASSESSEES APPEAL IS DISMISSED ORDER PRONOUNCED IN OPEN COURT ON 30/11/2010 SD/- SD/- (D.C.AGRAWAL) (MAHAVIR SIN GH) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, DATED : 30/11/2010 *DKP COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)-III, BARODA 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD