The ITO, Ward-9(2), Ahmedabad V. M/s. Balaji Corporation, Ahmedabad

ITA 2500/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9351 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 26-02-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 07-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R P MAURYA
• Assessee Lawyers: P M MEHTA WITH GULAB THAKO R

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI S.S. GODARA, JUDICIAL MEMBER) ITA. NO: 2500/AHD/2012 (ASSESSMENT YEAR: 2009-10) I.T.O., WARD 9(2), AHMEDABAD V/S M/S. BALAJI CORPORATION 2, SHYAM SHIKHAR, ARTEX COMPOUND, AHMEDABAD 380024 (APPELLANT) (RESPONDENT) PAN: AAGFB 4882K APPELLANT BY : SHRI R.P. MAURYA, SR. D.R. RESPONDENT BY :SHRI P.M. MEHTA, WITH GULAB THAKO R ( )/ ORDER DATE OF HEARING : 26 -02-201 6 DATE OF PRONOUNCEMENT : 29 -02-2016 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. THIS APPEAL BY THE REVENUE IS PREFERRED AGAINST THE ORDER OF LD. CIT(A)-XV, AHMEDABAD DATED 14.08.2015 PERTAINING TO A.Y. 2009-10. ITA NO. 2500 /AHD/2012 . A.Y. 2009-10 2 2. THE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE REVEN UE RELATES TO THE ALLOWANCE OF THE CLAIM OF DEDUCTION U/S. 80IB(10) O F THE ACT. 3. AT THE VERY OUTSET, THE LD. COUNSEL FOR THE ASSESSE E STATED THAT THE GRIEVANCE OF THE REVENUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE BY THE TRIBUNAL IN A.YS. 20 06-07 TO 2008-09 VIDE ITA NOS. 2436 TO 2438/AHD/2011. PER CONTRA, TH E LD. D.R. COULD NOT BRING ANY DISTINGUISHING FACT/DECISION IN FAVOU R OF THE REVENUE. 4. WE HAVE CAREFULLY PERUSED THE ORDER OF THE FIRST AP PELLATE AUTHORITY. WE FIND THAT AT PARA 5 ON PAGE 7, THE LD. CIT(A) HA S FOLLOWED THE DECISION IN ASSESSEES OWN CASE FOR EARLIER YEARS I .E. 2006-07 TO 2008- 09. WE ALSO FIND THAT THE TRIBUNAL IN ITA NOS. 2436 TO 2438/AHD/2011 AT PARA 8 ON PAGE 7 OF ITS ORDER HAS HELD AS UNDER: - 7. BEFORE US, LD. D.R. SUPPORTED THE ORDER OF A.O. HE FURTHER SUBMITTED THAT LD. CIT(A) DID NOT OBTAIN THE COMMENTS OF A.O ON THE DVO REPOR T CALLED BY HER. HE THEREFORE SUBMITTED THAT THE ASSESSEE WAS RIGHTLY DENIED THE CLAIM OF DEDUCTION UNDER 80IB(10) OF THE ACT. THE LD. A.R. ON THE OTHER HAND REITERAT ED THE SUBMISSIONS MADE BEFORE A.O AND LD.CIT(A). HE FURTHER SUBMITTED THAT IN THE PRE SENT CASE, THE PLAN WAS APPROVED ON 17.05.2004 AND THEREFORE AMENDMENT TO SECTION 80 IB(10) WHICH INTRODUCED THE COMMERCIAL SPACE RESTRICTIONS BY WAY OF CLAUSE (D) TO HOUSING PROJECTS WAS NOT APPLICABLE IN THE VIEW OF THE DECISION OF HONBLE A PEX COURT IN THE CASE OF CIT VS. SARKAR BUILDERS REPORTED IN (2015) 57 TAXMAN.COM 31 3 (SC). HE ALSO PLACED ON RECORD THE COPY OF THE AFORESAID DECISION. HE THUS SUPPORTED THE ORDER OF LD. CIT(A). 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IN THE PRESENT CASE, A.O HAD DENIED THE DEDUCTION OF CLAIM U/S. 80IB(10) OF THE ACT MAINLY FOR THE REASON THAT ACCORDING TO THE A.O, ASSESSEE WAS A DEVELOPER BUT A CONTRACTOR. WE FIND THAT LD. CIT(A) WHILE GRANTING RELIEF TO THE ASSESSEE HAS GIVEN A FINDING THAT THE LAND COST WAS DEBITED BY THE ASSES SEE TO ITS PROFIT AND LOSS ACCOUNT, ITA NO. 2500 /AHD/2012 . A.Y. 2009-10 3 THE ENTIRE RISK AND CONTROL OVER THE RESIDENTIAL UN IT OF THE TWO SCHEMES DEVELOPED BY THE ASSESSEE WAS OF THE ASSESSEE. SHE HAS FURTHER G IVEN A FINDING THAT THE TESTS LAID DOWN BY THE HONBLE ITAT AHMEDABAD BENCH IN THE CAS E OF SHAKTI CORPORATION TO CLAIM DEDUCTION U/S. 80IB(10) STAND FULFILLED IN TH E CASE OF ASSESSEE. WITH RESPECT TO THE AREA IN CASE OF CERTAIN FLATS WHERE IT WAS HELD BY DVO TO BE IN EXCESS OF 1500 SQ. FT., LD. CIT(A) HAS GIVEN A FINDING THAT IN VIEW OF THE DEFINITION OF BUILT UP AREA, THE AREAS OF THE FLATS DID NOT EXCEED THE AREA OF 1500 SQ. FT. BECAUSE BALCONY/VERANDA COULD NOT BE INCLUDED IN THE BUILT UP AREA OF 1500 SQ. FT. PRESCRIBED BY THE STATUTE. SHE HAS FURTHER HELD THAT COMMERCIAL CONSTRUCTION HAS N OT BEEN FOUND TO HAVE BEEN INCURRED BY THE ASSESSEE AND THAT ASSESSEE WAS ELIG IBLE FOR DEDUCTION U/S. 80IB(10) OF THE ACT. BEFORE US, REVENUE HAS NOT PLACED ANY MATE RIAL ON RECORD TO CONTROVERT THE FINDINGS OF LD. CIT(A). IN VIEW OF THESE AFORESAID FACTS, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF LD. CIT(A) AND THUS THE GROUNDS O F REVENUE ARE DISMISSED. 9. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSE D. 5. RESPECTFULLY FOLLOWING THE DECISION OF THE CO-ORDIN ATE BENCH, WE DECLINE TO INTERFERE WITH THE FINDINGS OF THE LD. CIT(A). APPE AL FILED BY THE REVENUE IS ACCORDINGLY DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 29 - 02 - 2016. SD/- SD/- (S. S. GODARA) (N. K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD.