The ITO, Ward-9(2), Ahmedabad V. Mahadev Developers, Ahmedabad

ITA 2245/AHD/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0422 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-03-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 12-02-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 08-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S V AGRAWAL
• Assessee Lawyers: T SANKAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, D BENCH, AHMEDABAD BEFORE SHRI D. K. TYAGI, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO.2242, 2243/AHD/2011 & I.T.A.NO. 2843 / AHD/2010 (ASSESSMENT YEAR 2005-06, 2008-09 & 2007-08 RESPECTIVELY) M/S. MAHADEV DEVELOPERS, A/1, SHIV SHAKTI SHOPPING CENTRE, OPP. SAMRATNAGAR, ISANPUR, AHMEDABAD VS. ITO, WARD 9(2), AHMEDABAD PAN/GIR NO. : AAKFM408F I.T.A.NO. 2245/AHD/2012 (ASSESSMENT YEAR 2007-08) ITO, WARD 9(2), VS. M/S. MAHADEV DEVELOPERS, AHMEDABAD A/1, SHIV SHAKTI SHOPPING CENTRE, OPP. SAMRATNAGAR, ISANPUR, AHMEDABAD (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI S V AGRAWAL, AR RESPONDENT BY: SHRI T SANKAR, SR. DR DATE OF HEARING: 22.03.2013 DATE OF PRONOUNCEMENT: 22.03.203 O R D E R PER BENCH:- OUT OF THIS BUNCH OF FOUR APPEALS, THERE ARE THREE APPEALS OF THE ASSESSEE IN QUANTUM PROCEEDINGS FOR THE ASSESSMENT YEARS 2005-06, 2007- I.T.A.NO. /AHD/200 2 08 AND 2008-09 AND THERE IS ONE APPEAL OF THE REVEN UE FOR THE ASSESSMENT YEAR 2007-08 IN RESPECT OF PENALTY PROCEEDINGS U/S 27(1)(C) OF THE ACT. ALL THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. AT THE VERY OUTSET, IT WAS SUBMITTED BY THE LD. A.R. THAT IN ALL THE THREE QUANTUM APPEALS FILED BY THE ASSESSEE, THE ON LY ISSUE INVOLVED IS REGARDING ALLOWABILITY OF DEDUCTION TO THE ASSESSEE U/S 80-IB(10). HE ALSO SUBMITTED THAT WHILE DECIDING THIS ISSUE, LD. CIT(A ) HAD FOLLOWED THE ORDER OF LD. CIT(A) IN ASSESSMENT YEAR 2006-07. TH EN, HE SUBMITTED THAT IN ASSESSMENT YEAR 2006-07, THIS ISSUE WAS DECIDED BY THE TRIBUNAL IN FAVOUR OF THE ASSESSEE IN I.T.A.NO. 319/AHD/2010 DA TED 20.04.2012. HE SUBMITTED A COPY OF THIS TRIBUNAL DECISION. LD. D. R. SUPPORTED THE ORDERS OF AUTHORITIES BELOW. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW. WE FIND THAT IN THESE THREE YEARS, IN QUANTUM PROCEEDINGS, LD. CIT(A) HAD DECIDED THIS ISSUE REGARDING ALLOWABILITY OF DEDUCT ION TO THE ASSESSEE U/S 80-IB(10) AGAINST THE ASSESSEE BY FOLLOWING THE ORD ER OF LD. CIT(A) IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2006-07 . IN THIS YEAR I.E. IN ASSESSMENT YEAR 2006-07, THE MATTER REACHED TO THE TRIBUNAL AND THE TRIBUNAL IN ASSESSEES OWN CASE, HAS DECIDED THE IS SUE IN FAVOUR OF THE ASSESSEE. THE RELEVANT PARA OF THE TRIBUNAL DECISI ON IS PARA 6, WHICH IS REPRODUCED BELOW: 6. WE HAVE CONSIDERED HE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW AND THE JUDGEMENT OF HONBLE JURISDICTIONAL H IGH COURT CITED BY THE LD. A.R. WE FIND THAT AS PER PARA 22 O F HIS ORDER, IT WAS HELD BY LD. CIT(A) THAT THE DISALLOWANCE MADE B Y THE A.O. U/S 80-IB(10) IS CONFIRMED BECAUSE THE ASSESSEE FIRM DI D NOT MAKE ANY I.T.A.NO. /AHD/200 3 INVESTMENT TOWARDS LAND AND HE HAS PLACED RELIANCE ON THE TRIBUNAL DECISION RENDERED IN THE CASE OF SHAKTI CORPORATION AND MUMBAI BENCH TRIBUNAL DECISION IN THE CASE OF B T PATIL AN D BELGAM CONSTRUCTION PVT. LTD. THIS GOES TO SHOW THAT THE ONLY BASIS ON WHICH THE CLAIM OF THE ASSESSEE WAS REJECTED BY THE AUTHORITIES BELOW IS THIS THAT THE ASSESSEE IS NOT THE OWNER OF THE LAND IN QUESTION. NOW, ON THIS ASPECT, THE JUDGMENT OF HON BLE JURISDICTIONAL HIGH COURT COVERS THE ISSUE IN FAVOU R OF THE ASSESSEE. NOTHING COULD BE SHOWN BY THE LD. D.R. THAT IN THE FACTS OF THE PRESENT CASE, THIS JUDGMENT IS NOT APPLICABLE BY SH OWING THAT THE ASSESSEE DID NOT HAVE TOTAL AND COMPLETE CONTROL OV ER THE LAND IN QUESTION. IT WAS ALSO NOT SHOWN THAT THE RISK ELEM ENT WAS NOT ENTIRELY THAT OF THE ASSESSEE. HENCE, WE FEEL THA T IN THE FACTS OF THE PRESENT CASE, THE ISSUE INVOLVED IS SQUARELY COVERE D IN FAVOUR OF THE ASSESSEE BY THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT RENDERED IN THE CASE OF RADHE DEVELOPERS AND RESPEC TFULLY FOLLOWINGS THE SAME, WE ALLOW THE CLAIM OF THE ASSE SSEE FOR DEDUCTION U/S 80-IB(10) AS CLAIMED BY THE ASSESSEE. 4. IN VIEW OF THE FACT THAT THERE IS NO DISPUTE THA T THERE IS NO DIFFERENCE IN FACTS IN THE PRESENT THREE YEARS AS COMPARED TO THE FACTS IN ASSESSMENT YEAR 2006-07, WE DO NOT FIND ANY REASON OR BASIS TO TAKE A CONTRARY VIEW AND HENCE, BY RESPECTFULLY FOLLOWING THE EARLIER TR IBUNAL DECISION IN ASSESSMENT YEAR 2006-07 IN ASSESSEES OWN CASE, WE DECIDE THIS ISSUE IN FAVOUR OF THE ASSESSEE IN ALL THE THREE YEARS. 5. IN THE RESULT, ALL THE THREE APPEALS OF THE ASSE SSEE ARE ALLOWED. 6. NOW, WE TAKE UP THE APPEAL FILED BY THE REVENUE FOR THE ASSESSMENT YEAR 2007-08. AS PER THIS APPEAL OF THE REVENUE, T HE ONLY DISPUTE RAISED IS REGARDING DELETION OF PENALTY OF RS.28,06,217/- IMP OSED BY THE A.O. U/S 271(1)(C) OF THE INCOME TAX ACT, 1961. WHILE GOING THROUGH THE PENALTY ORDER, WE FIND THAT THIS PENALTY WAS IMPOSED ONLY I N RESPECT OF DISALLOWANCE OF DEDUCTION CLAIMED BY THE ASSESSEE U /S 80-IB(10) OF RS.83,36,955/-. WHILE DECIDING THE APPEAL OF THE A SSESSEE IN QUANTUM I.T.A.NO. /AHD/200 4 PROCEEDINGS AS PER ABOVE PARA, WE HAVE HELD THAT TH IS ADDITION IN QUANTUM PROCEEDING IS NOT MAINTAINABLE AND THE SAME HAS BEE N DELETED BY US. SINCE, THE ADDITION ITSELF HAS BEEN DELETED, THE PE NALTY HAS NO LEGS TO STAND AND HENCE, PENALTY ALSO GOES AND WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF LD. CIT(A). 7. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. 8. IN THE COMBINED RESULT, ALL THE THREE APPEALS OF THE ASSESSEE ARE ALLOWED AND THE APPEAL OF THE REVENUE IS DISMISSED. 9. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE O F HEARING ITSELF I.E. ON 22.03.2013. SD./- SD./- (D. K. TYAGI) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 22/3/2013 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 22/03/2013OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 22/03/2013 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.1/4 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 01/0 4/2013 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .