M/s. Sharda Realtors Pvt.Ltd., Baroda V. The Dy.CIT., Circle-4, Baroda

ITA 2442/AHD/2010

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4401 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2006-2007
• Appeal Filed On: 03-08-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K C MATHEWS SRDR
• Assessee Lawyers: NIKITA BRAHMBHATT
• Section: 234B

Judgement Text

S , , , , , , , , IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D BENCH, AHMEDABAD .., ! '# '# '# '# $ %&, ! BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER #./ I.T.A. NO.2442/AHD/2010 ( ( ')( ( ')( ( ')( ( ')( / / / / ASSESSMENT YEAR : 2006-07) M/S.SHARDA REALTORS PVT.LTD. 271, GIDC ESTATE MAKARPURA BARODA / VS. THE ACIT CIRCLE-4 BARODA !* #./+, #./ PAN/GIR NO. : AACCS 9699E ( *- / // / APPELLANT ) .. ( ./*- / RESPONDENT ) *- 0 / APPELLANT BY : MS.NIKITA BRAHMBHATT, C.A. ./*- 1 0 / RESPONDENT BY : SHRI K.C. MATHEWS, SR.DR $'2 1 & / / / / DATE OF HEARING : 18/11/2013 34) 1 & / DATE OF PRONOUNCEMENT : 28/11/2013 5 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-III, BARODA( CIT(A) FOR SHORT) DATED 31/05/2010 PERTAINING TO ASSESSMENT Y EAR (AY) 2006-07. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) ERRED IN FACT AND IN LAW IN CONFIRMING THE ACTION OF AO IN MAKING AN ADDITION OF RS.76693/- U/S.40(A)(IA) OF THE ACT. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ER RED IN FACT AND IN LAW IN CONFIRMING THE ACTION OF AO IN MAKING DISALLOWANCE ITA NO.2442/AHD /2010 M/S.SHARDA REALTORS PVT.LTD. VS. ACIT ASST.YEAR 2006-07 - 2 - OF BROKERAGE EXPENSES AMOUNTING TO RS.2,00,000/- ON THE GROUND THAT THE SAID PAYMENT IS NOT MADE FOR BUSINESS PURP OSE. 2.1. WITHOUT PREJUDICE TO ABOVE THE LEARNED COMMIS SIONER OF INCOME TAX (APPEALS) ERRED IN FACT AND IN LAW IN CONFIRMIN G THE ACTION OF AO IN NOT ALLOWING THE SAID DEDUCTION FROM THE SALE CONSIDERATION ON SALE OF FACTORY OVERHEADS DESPITE THE FACT THAT THE ASSESSING OFFICER HAS ACCEPTED THE VALIDITY OF CLAIM FOR CAPI TAL GAIN PURPOSE. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ER RED IN FACT AND IN LAW IN CONFIRMING THE ACTION OF AO IN DISALL OWING DEDUCTION U/S.80IB(10) DESPITE THE FACT THAT THE APPELLANT HA D FULFILLED ALL THE CONDITIONS MENTIONED IN SECTION 80IB(10) OF THE INC OME TAX ACT, 1961. 4. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ER RED IN FACT AND IN LAW IN CONFIRMING THE ACTION OF AO IN CHARGI NG INTEREST U/S.234B OF THE INCOME TAX ACT. 5. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ER RED IN FACT AND IN LAW IN CONFIRMING THE ACTION OF AO IN INITIA TING PENALTY PROCEEDINGS U/S.271(1)(C) OF THE ACT. 6. YOUR APPELLANT CRAVES A RIGHT TO ADD TO OR AMEND, A LTER, SUBSTITUTE, DELETE OR WITHDRAW ALL OR ANY OF THE GROUNDS OF APP EAL. 2. BRIEFLY STATED FACTS ARE THAT THE CASE OF THE AS SESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S.143( 3) OF THE INCOME TAX ACT,1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VIDE ORDER DATED 19/12/2008, THEREBY THE ASSESSING OFFICER(AO) HAS MADE ADDITION ON ACCOUNT OF DISALLOWANCE OF RS.76,693/- BEING DIF FERENCE BETWEEN THE FORM 3CD, DISALLOWANCE OF RS.1,19,023/- U/S.40(A)(I A), DISALLOWANCE OF BROKERAGE FEE OF RS.2 LACS AND DISALLOWANCE OF DEDU CTION OF RS.20,359/- MADE U/S.80-IB(10) OF THE ACT. AGAINST THIS, THE A SSESSEE FILED AN APPEAL BEFORE THE LD.CIT(A), WHO AFTER CONSIDERING THE SUB MISSIONS OF THE ASSESSEE PARTLY ALLOWED THE APPEAL. IN EFFECT, THE APPEAL WAS DISMISSED. 3. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT UNDER THE INSTRUCTION OF THE ASSESSEE SHE DOES NOT WISH TO PRESS GROUND N O.1 AND THEREFORE THE SAME IS DISMISSED AS NOT PRESSED. ITA NO.2442/AHD /2010 M/S.SHARDA REALTORS PVT.LTD. VS. ACIT ASST.YEAR 2006-07 - 3 - 4. GROUND NO.2 IS AGAINST THE DISALLOWANCE OF BROK ERAGE EXPENSES AMOUNTING TO RS.2 LACS. THE LD.COUNSEL FOR THE ASS ESSEE SUBMITTED THAT THE BROKERAGE WAS PAID BY ACCOUNT PAYEE CHEQUE AN D TDS WAS DEDUCTED. THE SR.DR SUBMITTED THAT BEFORE THE AUTH ORITIES BELOW THE ASSESSEE COULD NOT PRODUCE THE EVIDENCE OF RENDERIN G THE SERVICES OF SUCH PERSONS AND ANY OTHER EVIDENCE IN SUPPORT OF THE CL AIM WAS ALSO NOT PRODUCED. 5. BEFORE US ALSO, THE ASSESSEE HAS NOT PLACED ANY EVIDENCE TO PROVE THE RENDERING OF SERVICES, THEREFORE WE DO NOT FIND ANY MERIT IN THIS GROUND RAISED BY ASSESSEE AND THE SAME IS REJECTED AS SUCH. THUS, GROUND NO.2.1 IS ALSO REJECTED. 6. GROUND NO.3 IS AGAINST DISALLOWANCE OF DEDUCTIO N U/S.80IB(10) OF THE ACT. THE LD.COUNSEL FOR THE ASSESSEE HAS RELI ED UPON THE DECISION OF HONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF MANAN CORPORATION VS. ACIT IN TAX APPEAL NO.1053 OF 2011 DATED 3 RD SEPTEMBER, 2012 (REPORTED AT 255 CTR 415). HOWEVER, SHE SUBMITTED THAT BEFORE THE LD.CIT(A) IT WAS THE SUBMISSION THAT THE ISSUE RELA TING TO THE COMMERCIAL CONSTRUCTION IS COVERED AGAINST THE APPELLANT BY TH E DECISION OF THE HONBLE ITAT C BENCH AHMEDABAD IN THE CASE OF SH RI SHILESH D.PATEL VS. DY.CIT IN ITA NO.1934/AHD/2008 FOR AY 2 005-06. ON THE CONTRARY, LD.SR.DR SUPPORTED THE ORDERS OF THE AUT HORITIES BELOW. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. ITA NO.2442/AHD /2010 M/S.SHARDA REALTORS PVT.LTD. VS. ACIT ASST.YEAR 2006-07 - 4 - WE FIND THAT BEFORE THE LD.CIT(A) THE SUBMISSION OF THE ASSESSEE WAS THAT THE ISSUE HAS BEEN DECIDED AGAINST THE ASSESSEE BY THE TRIBUNAL IN THE CASE OF SHRI SHAILESH D.PATEL VS. DCIT (SUPRA). TH E ASSESSEE HAS NOT BROUGHT ON RECORD WHETHER THE ORDER OF THE TRIBUNAL IN ITA NO.1934/AHD/2008 IN THE CASE OF SHRI SHAILESH D.PAT EL HAS BEEN REVERSED BY THE HONBLE GUJARAT HIGH COURT. UNDER THESE FAC TS, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD.CIT(A), THE SA ME IS HEREBY DISMISSED. THE DECISION RELIED UPON BY THE LD.COUNSEL FOR THE ASSESSEE IS NOT APPLICABLE IN THE PRESENT CASE AS THE FACTS IN THAT CASE WERE DIFFERENT. THEREFORE, GROUND NO.3 IS HEREBY REJECTED. 8. GROUND NO.4 IS AGAINST CHARGING OF INTEREST U/S. 234B OF THE IT ACT. 8.1. THE CHARGING OF INTEREST U/S.234B OF THE I.T. ACT IS CONSEQUENTIAL IN NATURE. IT IS HELD ACCORDINGLY. THIS GROUND IS THEREFORE REJECTED. 9. GROUND NO.5 IS AGAINST INITIATION OF PENALTY PRO CEEDINGS U/S.271(1)(C) OF THE ACT. THIS GROUND IS PRE-MATURE , HENCE REJECTED. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DI SMISSED. ORDER PRONOUNCED IN COURT ON THE DATE MENTIONED HER EINABOVE AT CAPTION PAGE SD/- SD/- ( .. ) ($ %&) ! ! ( N.S. SAINI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 28/11/2013 8.., '.../ T.C. NAIR, SR. PS ITA NO.2442/AHD /2010 M/S.SHARDA REALTORS PVT.LTD. VS. ACIT ASST.YEAR 2006-07 - 5 - 5 1 .&9 :9)& 5 1 .&9 :9)& 5 1 .&9 :9)& 5 1 .&9 :9)&/ COPY OF THE ORDER FORWARDED TO : 1. *- / THE APPELLANT 2. ./*- / THE RESPONDENT. 3. ## & $; / CONCERNED CIT 4. $;() / THE CIT(A)-III, BARODA 5. 9'%< .& , , / DR, ITAT, AHMEDABAD 6. <( =2 / GUARD FILE. 5$ 5$ 5$ 5$ / BY ORDER, /9& .& //TRUE COPY// > >> >/ // / #+ #+ #+ #+ ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 20.11.13(DICTATION-PAD PAG ES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING 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 5. DATE ON WHICH FAIR ORDER PLACED BEFORE OTHER MEMBER 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.28.11.13 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 28.11.13 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER