The ITO, Ward-9(1)., Ahmedabad V. M/s. Siddhi Vinayak Developers, Ahmedabad

ITA 2527/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1404 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-06-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 10-05-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 07-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL
• Section: 143(3); 80IB; 12

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH BEFORE: S H RI PRAMOD KUMAR , ACCOUNTANT MEMBER AND SHR I S. S. GODARA , JUDICIAL MEMBER THE ITO, WD. 9(1), AHMEDABAD (APPELLANT) VS SIDDHI VINAYAK DEVELOPERS, 13 - 14, KAILASDHAM, SOCIETY - I, BAPUNAGAR, AHMEDABAD PAN: ABFFS1439P (RESPONDENT) REVENUE BY : S H RI P.L. KUREEL , SR. D . R. ASSESSEE BY: S MT. URVASHI SHODHAN , A.R. DATE OF HEARING : 10 - 05 - 2 016 DATE OF PRONOUNCEMENT : 09 - 06 - 2 016 / ORDER P ER : S. S. GODARA , JUDICIAL MEMBER : - THIS REVENUE S A PPEAL FOR A.Y. 2009 - 10 , AR ISES FROM ORDER OF THE CIT(A) - XV, AHMEDABAD DATED 14 - 08 - 2012 IN APPEAL NO. CIT(A) - XV/9(1)/269/11 - 12 , DELETING SECTION 80IB(10) DEDUCTION DISALLOWANCE OF RS. 3,90,93,145/ - AS MADE BY THE ASSESSING OFFICER IN ASSESSMENT I T A NO . 2527 / A HD/20 12 A SSESSMENT YEAR 200 9 - 10 I.T.A NO. 2527 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ITO VS. SIDDHI VINAYAK DEVELOPERS 2 ORDER DATED 21 - 11 - 2011, IN PROCEEDINGS UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2. FACTS OF THE CASE ARE IN A NARROW COMPASS . THE ASSESSEE - FIRM CONSTRUCT S HOUSING PROJECTS. IT CLAIMED THE IMPUGNED SECTION 80 IB ON NET PROFITS AMOUNTING TO R S. 3,90,93,145/ - DERIVED FROM A HOUSING PROJECT NAMELY KARNAVATI APARTMENTS - III AT MANINAGAR, AHMEDABAD. THE ASSESSING OFFICER NOTICED THAT M/S RONAK PARK (MANINAGAR) COOPERATIVE HOUSING SOCIETY LTD. HAD PURCHASED THE LAND IN QUESTION ADMEASURING 11, 689 SQ.MT, FILED APPLICATION /PLAN AND THE LOCAL AUTHORITY ACCORDED PERMISSION FOR CONST RUC T IO N AND DEVELOPMENT OF THE PROJECT TO ITS POWER OF ATTORNEY HOLDER. THE ASSESSEE HAD ENTERED INTO DEVELOPMENT AGREEMENT WITH THE ABOVE STATED COOPERATIVE SOCIETY ON 04 - 04 - 2006. THE ASSESSING OFFICER REJECTED THE IMPUGNED DEDUCTION CLAIM INTER ALIA ON THE GROUND THAT THE ASSESSEE WAS NOT BOTH BUILDER AND DEVELOPER, IT WAS ONLY A CONTRACTOR SINCE THE SOCIETY HAD ENGAGED IT FOR CONSTRUCTION OF THE PROJECT, IT HAD NOT S OLD ANY UNIT TO THE PURCHASER AND THE FINANCE ACT, 2009 HAD INSERTED AN AMENDMENT IN SECTION 80IB DENYING SUCH A DEDUCTION TO CONTRACTORS. AL L THIS RESULTED IN THE IMPUGNED DISALLOWANCE BEING MADE. 3. THE CIT(A) ALLOWS ASSESSEE S APPEAL ON THE GROUND T HAT THE ASSESSEE HAD ALREADY SUCCEEDED ON THE VERY ISSUE IN PRECEDING ASSESSMENT YEAR. AND ALSO THAT OWNERSHIP IN LAND IN QUESTION WAS NO MORE A MANDATORY REQUIREMENT SECTION 80IB(10) DEDUCTION AS HELD BY I.T.A NO. 2527 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ITO VS. SIDDHI VINAYAK DEVELOPERS 3 HON BLE JURISDICTIONAL HIGH COURT IN CIT VS. RADHE DEVELOPERS (2012) 341 ITR 403. THIS LEAVES THE REVENUE AGGRIEVED. 4. WE HAVE HEARD RIVAL CONTENTIONS SUPPORTING AND OPPOSING THE IMPUGNED SECTION 80IB(10) DISALLOWANCE. THE ASSESSEE PLACES BEFORE US A COPY OF THE TRIBUNAL S ORDER IN ITA 2824/AHD/201 1 IN ITS OWN CASE IN PRECEDING ASSESSMENT YEAR 2008 - 09 AFFIRMING CIT(A) S SIMILAR ORDER HOLDING IT ENTITLED FOR THE VERY DEDUCTION CLAIM PERTAINING TO THIS KARNAVATI APARTMENT - III PROJECT. THIS O RDER IS DATED 17 - 12 - 2015. THE R EVENUE FAILS TO POINT OUT AN Y EXCEPTION ON FACTS OR LAW THEREIN. WE FIND NO REASON TO INTERFERE WITH THE CIT(A) S ORDER IN THESE FACTS AND CIRCUMSTANCES. 5. THIS REVENUE S APPEAL IS DISMISSED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 09 - 06 - 201 6 SD/ - SD/ - ( PRAMOD KUMAR ) ( S. S. GODARA ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 09 /06 /2016 AK / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. I.T.A NO. 2527 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ITO VS. SIDDHI VINAYAK DEVELOPERS 4 BY ORDER/ , / ,