The ITO, Ward-9(2), Ahmedabad V. Shri Kamleshkumar Gandalal Shah,HUF, Ahmedabad

ITA 2520/AHD/2012

• Counselvise Citation: 252020514 RSA 2012
• Duration Of Justice: 1 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-05-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 22-05-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 07-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIVEK OJHA
• Section: 80IB

Judgement Text

, , , , , , , , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD , . .. . . .. . , , , , '# ' $ '# ' $ '# ' $ '# ' $ BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI T.R.MEENA, ACCOUNTANT MEMBER 1. ./ I.T.A. NO.2520/AHD/2012 A.Y. 2006-07 2. ./ I.T.A. NO.2521/AHD/2012 A.Y. 2007-08 THE I.T.O. WARD-9(2) AHMEDABAD & & & & / VS. SHREE KAMLESHKUMAR GANDALAL SHAH (HUF) 469/13, PARSI CHAWL, SAKAR BAZAR,KALUPUR, AHMEDABAD ' '# ./() ./ PAN/GIR NO. : AAIHS 5640 C ( '* / // / APPELLANT ) .. ( +,'* / RESPONDENT ) '* - ' / APPELLANT BY : SHRI VIVEK OJHA, SR.DR +,'* . - ' / RESPONDENT BY : SHRI PRAKASH D.SHAH &/ . # / / / / DATE OF HEARING : 22/05/2014 012 . # / DATE OF PRONOUNCEMENT : 23/05/2014 '3 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THESE TWO APPEALS BY THE REVENUE PERTAINING TO SAME ASSESSEE ARE DIRECTED AGAINST THE SEPARATE ORDERS OF THE LD.COMM ISSIONER OF INCOME TAX(APPEALS)-XV, AHMEDABAD (CIT(A) FOR SHORT) BOTH IDENTICALLY DATED 03/08/2012 FOR ASSESSMENT YEARS (AYS) 2006-07 & 2007-08. THE REVENUE HAS RAISED THE IDENTICAL GROUNDS OF APPEAL( S). IN ASST.YEAR 2006-07, THE FOLLOWING GROUNDS ARE RAISED:- 1) THE LD.COMMISSIONER OF INCOME-TAX (APPEALS)-XV, AHM EDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENAL TY OF RS.23,06,660/- ( FOR AY 2007-08 OF RS.14,65,577/- ) LEVIED U/S.271(1)(C) OF THE ACT. 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD.COMMISSIONER OF INCOME-TAX (APPEALS)-XV, AHMEDAB AD OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. ITA NOS.2520 & 2521/AHD/ 2012 ITO VS. SHREE KAMLESHKUMAR GANDALAL SHAH (HUF) ASST.YEARS 2006-07 & 2007-08 RESPECTIVELY - 2 - 3) IT IS THEREFORE, PRAYED THAT THE ORDER OF THE LD.CO MMISSIONER OF INCOME-TAX (APPEALS)-XV, AHMEDABAD MAY BE SET-ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 2 . AT THE OUTSET, THE LD.COUNSEL FOR THE ASSESSEE SU BMITTED THAT BOTH THESE APPEALS PERTAIN TO THE PENALTY PROCEEDINGS AN D IN THE QUANTUM APPEALS, THE HONBLE TRIBUNAL (ITAT C BENCH AHMED ABAD) HAS DELETED THE ADDITION. THEREFORE, THE PENALTY DOES NOT SURVIVE. HE HAS ALSO PLACED ON RECORD THE COPY OF THE ORDER OF THE TRIBUNAL DATED 08/11/2013 PASSED IN ITA NOS.2710 & 2711/AHD/2010 FOR ASST.YEARS 2006-07 & 2007-08 RESPECTIVELY. 3. ON THE OTHER HAND, LD.SR.DR SUPPORTED THE ORDERS OF THE ASSESSING OFFICER AND RELIED ON THE PENALTY ORDERS. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THIS TRIBUNAL IN ASSESSEES OWN CASE I N ITA NOS.2710 & 2711/AHD/2010 FOR ASST.YEARS 2006-07 & 2007-08 RESP ECTIVELY VIDE ORDER DATED 08/11/2013 HAS HELD AS UNDER:- 11. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND MATERIAL AVAILABLE ON RECORD. IN THE INSTANT CASE, THE AO DISALLOWED THE CLAIM OF THE ASSESSEE FOR DED UCTION UNDER SECTION 80IB OF THE ACT ON THE GROUND THAT THE ASSESSEE WAS NOT THE OWNER OF THE LAND ON WHICH THE HOUSING PROJECT UNDER CONSIDERATI ON WAS DEVELOPED BY THE ASSESSEE. THE LEARNED CIT(A) ALSO OBSERVED THAT THE ASSESSEE HAS NOT PROPERLY UTILIZED THE AREA OF THE LAND, IN OTHER WO RDS, HAS NOT DEVELOPED THE AREA OF LAND, BECAUSE, AS PER PERMISSIBLE FSI, MORE NUMBER OF RESIDENTIAL UNITS IN MULTISTORIED BUILDINGS COULD H AVE BEEN CONSTRUCTED. WE FIND THAT THE ISSUE OF LAND OWNERSHIP IS SQUAREL Y COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. RADHE DEVELOPERS (SUPRA). THEREFOR E, RESPECTFULLY FOLLOWING THE SAME, IN OUR CONSIDERED VIEW, LOWER A UTHORITIES WERE NOT ITA NOS.2520 & 2521/AHD/ 2012 ITO VS. SHREE KAMLESHKUMAR GANDALAL SHAH (HUF) ASST.YEARS 2006-07 & 2007-08 RESPECTIVELY - 3 - JUSTIFIED IN DISALLOWING THE CLAIM OF DEDUCTION UND ER SECTION 80IB OF THE ACT, ON SUCH GROUND. 12. WITH REGARD TO OTHER OBSERVATIONS OF THE LEARNE D CIT(A), IN RESPECT OF NON-PROPER DEVELOPMENT OF THE LAND OF ON E ACRE, THE REQUIREMENT OF LAW, AS HELD BY THIS BENCH OF THE TR IBUNAL IN THE CASE OF M/S.SHREENATHHJI CONSTRUCTION VS. ITO, IN ITA NO.32 24/AHD/2009 ORDER DATED 9.11.2012 IS AS UNDER: WE FIND THAT IT IS NOT MANDATORY REQUIREMENT TO FU LLY UTILIZE PERMISSIBLE FSI; THERE IS NO CONDITION AS TO FSI UN DER THE SCHEME OF THE PROVISIONS OF SEC. 80IB(10) OF THE ACT;. THE CONTRARY VIEW THUS TAKEN BY THE LEARNED CIT(A) IS NOT SUSTAINABLE. IN THE ABOVE CIRCUMSTANCES, WE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES ON THIS ISSUE, AND DIRECT THE AO TO ALL OW DEDUCTION UNDER SECTION 80IB(10) OF THE IT ACT, AS CLAIMED BY THE A SSESSEE IN THE RETURN OF INCOME, AND THUS ALLOW THE GROUNDS OF THE APPEAL S OF THE ASSESSEE IN BOTH THE YEARS UNDER CONSIDERATION. 5. IN VIEW OF THE DECISION OF THE TRIBUNAL IN QUANT UM APPEALS, WHEREIN THE ADDITION HAS BEEN DELETED, THE PENALTY DOES NOT SURVIVE. THEREFORE, GROUNDS RAISED BY THE REVENUE ARE REJECT ED IN BOTH THE YEARS. 6. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE P ERTAINING TO ASST.YEARS 2006-07 & 2007-08 ARE DISMISSED. ORDER PRONOUNCED IN COURT ON THE DATE MENTIONED HER EINABOVE AT CAPTION PAGE SD/- SD/- ( .. ) ( ) '# ( T.R. MEENA ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 23/ 05 /2014 ..&, .&../ T.C. NAIR, SR. PS ITA NOS.2520 & 2521/AHD/ 2012 ITO VS. SHREE KAMLESHKUMAR GANDALAL SHAH (HUF) ASST.YEARS 2006-07 & 2007-08 RESPECTIVELY - 4 - '3 . +6 7'62 '3 . +6 7'62 '3 . +6 7'62 '3 . +6 7'62/ COPY OF THE ORDER FORWARDED TO : 1. '* / THE APPELLANT 2. +,'* / THE RESPONDENT. 3. 8 / CONCERNED CIT 4. 8() / THE CIT(A)-XV, AHMEDABAD 5. 69 +& , , / DR, ITAT, AHMEDABAD 6. 9:;