The ITO, Ward-9(1), Ahmedabad V. M/s. Swastik Associates, Ahmedabad

ITA 2525/AHD/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 67662 (ITAT-AHMEDABAD)
• Duration Of Justice: 9 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2013
• Appeal Filed By: Department
• Bench Allotted: C
• Next Hearing Date: 12-08-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 07-11-2012
• Court: TRIBUNAL
• Department Lawyers: J P JANGID
• Assessee Lawyers: VIJAY RANJAN
• Section: 80IB

Judgement Text

, , , , C, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, C BENCH . .. . . .. . , !' !' !' !', , , , #$ %&'( #$ %&'( #$ %&'( #$ %&'(, , , , )* + ) ' )* + ) ' )* + ) ' )* + ) ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND ANIL CHATURVEDI, ACCOUNTANT MEMBER) ITA NO.2525/AHD/2012 [ASSTT.YEAR : 2009-2010] ITO, WARD-9(1) AHMEDABAD. /VS. M/S.SWASTIK ASSOCIATES RAIPUR MILL COMPOUND SARASPUR ROAD SARASPUR, AHMEDABAD. PAN : ABAFS 6575 R ( (( (-. -. -. -. / APPELLANT) ( (( (/0-. /0-. /0-. /0-. / RESPONDENT) + 1 2 )/ REVENUE BY : SHRI J.P. JANGID, SR.DR 4& 1 2 )/ ASSESSEE BY : SHRI VIJAY RANJAN 5 1 &(*/ DATE OF HEARING : 12 TH AUGUST, 2013 678 1 &(*/ DATE OF PRONOUNCEMENT : 5.9.2013 )9 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT : THIS APPEAL BY THE REVENUE FOR THE ASSESSMENT YEAR 2009-2010, IS DIREC TED AGAINST THE ORDER OF THE CIT(A)-XV, AHMEDABAD DATED 14.08.2 012. 2. THE ONLY GROUND OF THE APPEAL OF THE REVENUE IS AS UNDER: ITA NO.2525/AHD/2012 -2- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS I N DIRECTING THE AOP TO ALLOW THE ASSESSEES CLAIM FOR DEDUCTION OF RS.36,53,874/- U/S.80IB(10) OF THE ACT . 1(B). THE LD.CIT(A) HAS DECIDED THE ISSUE N.1 ON TH E GROUND IN HOLDING THAT THE ASSESSEE FULFILS THE CON DITIONS LAID DOWN FOR CLAIMING DEDUCTION U/S.80IB(10) EVEN WHEN THE LAND WAS IN THE NAME OF RAIPUR (RAKHIAL) COMMER CIAL CO.OP. HSG. SOCIETY LTD., WHICH IS A SEPARATE LEGAL ENTITY IN THE EYE OF LAW AND THE ASSESSEE ENTERED INTO THE PR OJECT BY A DEVELOPMENT AGREEMENT WITH THE SOCIETY. THE ENTIRE RESPONSIBILITY TO EXECUTE THE HOUSING PROJECT AND A BIDE 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 PERMISSIO N FOR DEVELOPMENT TO THE SOCIETY. THE ASSESSEE WAS JUST A CONTRACTOR OF THE LAND OWNERS CONSTRUCTING RESIDENT IAL UNITS AND NOT A DEVELOPER. 3. THE LEARNED DR HAS RELIED ON THE ORDER OF THE AO . THE COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUE I N THIS APPEAL OF THE REVENUE IS COVERED IN FAVOUR OF THE ASSESSEE WI TH THE DECISION OF THE ITAT, AHMEDABAD BENCH IN ASSESSEES OWN CASE FOR EARLIER ASSESSMENT YEAR 2006-2007 IN ITA NO.141 0/AHD/2010 DATED 28.7.2011 WHEREIN IN IDENTICAL FACTS THE ISSU E OF DEDUCTION UNDER SECTION 80IB(10) OF THE I.T. ACT WAS DECIDED IN FAVOUR OF THE ASSESSEE. 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS CAREFULLY A ND HAS PERUSED THE ORDERS OF THE AO AND THE CIT(A), AND AL SO PERUSED THE ORDER OF THE CO-ORDINATE BENCH OF THE ITAT, AHM EDABAD IN ASSESSEES OWN CASE FOR EARLIER ASSESSMENT YEAR 200 6-20907 DATED 28.07.2011 (SUPRA). WE FIND THAT THE ISSUE UNDER S ECTION 80IB ITA NO.2525/AHD/2012 -3- (10) OF THE ACT IS COVERED IN FAVOUR OF THE ASSESSE E, WHO IS IN THE BUSINESS OF CONSTRUCTION OF HOUSING PROJECT WITH TH E DECISION OF THE ITAT, AHMEDABAD BENCH IN ASSESSEES OWN CASE FO R EARLIER ASSTT. YEAR 2006-2007 DATED 28.07.2011 (SUPRA). TH E CIT(A) HAS RECORDED A FINDING THAT THE ASSESSEE HAS FULFILLED ALL THE CONDITIONS REQUIRED FOR CLAIM UNDER SECTION 80IB(10) OF THE AC T FOR THE RELEVANT PERIOD. HE HAS FOLLOWED THE DECISION OF T HE HONBLE GUJARAT HIGH COURT IN RADHE DEVELOPERS, 341 ITR 404 , AND ALSO THE DECISION OF THE ITAT, AHMEDABAD IN ASSESSEES O WN CASE FOR EARLIER ASSESSMENT YEAR 2006-2007. IN THESE FACTS OF THE CASE, WE FIND THAT THERE IS NO MISTAKE IN THE ORDER OF THE C IT(A) ON THIS ISSUE, WHICH IS ACCORDINGLY CONFIRMED AND THE GROUN D OF THE REVENUE IS DISMISSED. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( %&'( %&'( %&'( %&'( / ANIL CHATURVEDI) )* + )* + )* + )* + /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD