The ITO, Ward-9(1), Ahmedabad V. M/s. Yagnesh Dahyabhai Vyas, Ahmedabad

ITA 2440/AHD/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9622 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 10-02-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 26-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAMES KUREIN
• Assessee Lawyers: M K PATEL
• Keywords: Retrospective amendment; Tax effect

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE S/SHRI RAJPAL YADAVJM, AND MANISH BORAD, AM ./ITA.NO.2439 & 2440/AHD/2011_ ( / ASSTT YEARS : 2007-08 & 2008-09) ITO, WD-9(1), AHMEDABAD. VS. SHRI YOGNESH DAHYABHAI VYAS, PROP.OF M/S PREMIER DESIGN, 10, CHANDRAKANTA, OPP. RAJHANS SOCIETY, OFF CG ROAD, ELLIS BRIDGE, AHMEDABAD. PAN ABHPV 1757F (APPELLANT) (RESPONDENT) / APPELLANT BY: MR. JAMES KUREIN, SR.DR / RESPONDENT BY: SHRI M. K. PATEL, AR / DATE OF HEARING 10/02/2016 /DATE OF PRONOUNCEMENT 11-02-2016 / O R D E R PER BENCH THE REVENUE IS IN APPEALS BEFORE US AGAINST TWO S EPARATE ORDERS OF LD.COMMISSIONER INCOME-TAX (APPEALS)-XV, AHMEDABAD OF EVEN DATED 29/7/2011 AND PASSED FOR THE ASSTT.YEARS 2007-08 & 2008-09. 2. THE GRIEVANCES OF THE REVENUE, AS PER GROUNDS OF APPEAL IN ITA NO.2439/AHD/2011, FOR ASST. YEAR 2007-08 ARE AS FO LLOWS :- (1) THE LD. CIT(A)-XV, AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DI RECTING THE ASSESSING OFFICER TO ALLOW THE ASSESSEES CLAIM FOR DEDUCT ION OF RS.21,76,471/- U/S 80IB(10) OF THE ACT. ITA.NO.2439 & 2440/AHD/2011 - 2 (2) THE LD. CIT(A)-XV, AHMEDABAD HAS ERRED IN HOLDING THAT THE ASSES SEE FULFILLS THE CONDITIONS LAID DOWN FOR CLAIMING DEDUCTION U/S 80IB(10) EVEN WHEN THE LAND WAS IN THE NAME OF PARVATIKUNJ VANZAR CO-OP. HOUSING SOCIETY, WHICH IS A SEPARATE LEGAL ENTITY IN THE EYE OF LAW AND THE ASSESSEE ENTERED INTO THE PROJECT BY A DEVELOPMENT AGREEMENT WITH THE SOCIETY. THE ENTIRE RESPONSIBILITY TO EXECUTE THE HOUSING PROJECT AND ABIDE BY THE TERMS AND CONDITIONS OF ITS APPROVAL RIGHT FROM THE INCEPTION OF THE PROJECT TILL ITS COMPLETION RESTS WITH THE SOCIETY. THE LOCAL AUTHORITY HAD GRANTED P ERMISSION FOR DEVELOPMENT TO SHRI ASHOKBHAI CHANDUBHAI & OTHERS INSTEAD OF THE ASSESSEE. ASSESSEE WAS JUST A CONTRACTOR AND NOT A DEVELOPER. (3) THE LD. CIT(A)-XV, AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DE LETING THE ADDITION OF RS.1,02,901/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF AGRICULTURAL EXPENSES. (4) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CI T(A)-XV, AHMEDABAD OUGHT TO HAVE UPHELD THE ORDER OF THE AO. (5) IT IS THEREFORE, PRAYED THAT THE ORDER OF THE LD. CIT(A)- XV, AHMEDABAD MAY BE SET ASIDE AND THAT OF THE AO BE RESTORED. 3. THE GRIEVANCES OF THE REVENUE, AS PER GROUNDS OF APPEAL IN ITA NO.2440/AHD/2011, FOR ASST. YEAR 2008-09 ARE AS FO LLOWS :- (1) THE LD. CIT(A)-XV, AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DI RECTING THE ASSESSING OFFICER TO ALLOW THE ASSESSEES CLAIM FOR DEDUCT ION OF RS.14,72,295/- U/S 80IB(10) OF THE ACT. (2) THE LD. CIT(A)-XV, AHMEDABAD HAS ERRED IN HOLDING THAT THE ASSES SEE FULFILLS THE CONDITIONS LAID DOWN FOR CLAIMING DEDUCTION U/S 80IB(10) EVEN WHEN THE LAND WAS IN THE NAME OF PARVATIKUNJ VANZAR CO-OP. HOUSING SOCIETY, WHICH IS A SEPARATE LEGAL ENTITY IN THE EYE OF LAW AND THE ASSESSEE ENTERED INTO THE PROJECT BY A DEVELOPMENT AGREEMENT WITH THE SOCIETY. THE ENTIRE RESPONSIBILITY TO EXECUTE THE HOUSING PROJECT AND ABIDE BY THE TERMS AND CONDITIONS OF ITS APPROVAL RIGHT FROM THE INCEPTION OF THE PROJECT TILL ITS COMPLETION RESTS WITH THE SOCIETY. THE LOCAL AUTHORITY HAD GRANTED P ERMISSION FOR DEVELOPMENT TO SHRI ASHOKBHAI CHANDUBHAI & OTHERS INSTEAD OF THE ASSESSEE. ASSESSEE WAS JUST A CONTRACTOR AND NOT A DEVELOPER. (3) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CI T(A)-XV, AHMEDABAD OUGHT TO HAVE UPHELD THE ORDER OF THE AO. (4) IT IS THEREFORE, PRAYED THAT THE ORDER OF THE LD. CIT(A)- XV, AHMEDABAD MAY BE SET ASIDE AND THAT OF THE AO BE RESTORED. ITA.NO.2439 & 2440/AHD/2011 - 3 4. THESE APPEALS WERE PRESENTED ON 26/9/2011. ON 1 0.12.2015 THE CBDT HAS ISSUED INSTRUCTIONS BEARING NO. 21/2015 PR OHIBITING ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL T O THE TRIBUNAL AGAINST THE ORDER OF THE CIT(A) WHERE THE TAX EFFECT BY VIR TUE OF THE RELIEF GIVEN BY THE CIT(A) IS LESS THAN RS.10 LAKHS. THE INSTRU CTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT, MEANING THERE BY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. THE TAX EF FECT ON DELETION OF THE TOTAL ADDITION WOULD BE LESS THAN RS.10 LAKHS. THE PRESENT APPEALS DESERVE TO BE DISMISSED BEING TREATED TO BE FILED I N VIOLATION OF CBDT INSTRUCTIONS. THE CASE DOES NOT FALL WITHIN THE AMB IT OF EXCEPTIONS PROVIDED IN THE INSTRUCTIONS. IT IS FURTHER OBSERVE D THAT SINCE, WHILE HEARING THE APPEALS, SUCH FACTORS WERE NOT CONSIDER ED, THEREFORE, IN CASE, ON RE-VERIFICATION AT THE END OF THE AO, IT CAME TO THE NOTICE THAT THE TAX EFFECT IS MORE OR IT FALLS WITHIN THE AMBIT OF EXCE PTIONS PROVIDED IN THE INSTRUCTION, THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICATIO N SHOULD BE FILED WITHIN FOUR YEARS OF THIS ORDER. IN VIEW OF THE ABOVE, TH E APPEALS OF THE REVENUE ARE DISMISSED. 5. IN THE RESULT, APPEALS OF THE REVENUE ARE DISMIS SED. ORDER PRONOUNCED IN THE COURT ON 11 TH FEBRUARY, 2016 AT AHMEDABAD. SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER DATED, 11/02/2016 MAHATA/- ITA.NO.2439 & 2440/AHD/2011 - 4 ! '!/ COPY OF THE ORDER FORWARDED TO : 1. $% / THE APPELLANT 2. &$% / THE RESPONDENT. 3. '(( ) * / CONCERNED CIT 4. ) * ( ) / THE CIT(A)- 5. !-. , ,012 /DR,ITAT, AHMEDABAD, 6. .3 45 / GUARD FILE. ) ' / BY ORDER, ' (0 (ASSTT.REGISTRAR) ITAT, AHMEDABAD 1. DATE OF DICTATION .. : 11/2/2016. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER : 11/2/2016 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P.S./P.S 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FO R PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P.S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 11/2/16 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATUR E ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER