The ITO, Ward-2(3), Baroda V. M/s. Aditya Corporation, Baroda

ITA 253/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9240 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 10-03-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 30-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Assessee Lawyers: D K PARIKH

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ ITA NOS. 253 & 254/AHD/2012 / ASSESSMENT YEAR : 2004-05 & 2005-06 THE INCOME TAX OFFICER, WARD-2(3), BARODA VS M/S. ADITYA CORPORATION, 2 ND FLOOR, DEVDEEP COMPLEX, NIZAMPURA, BARODA PAN: AAHFA 7994 G / (APPELLANT) / (RESPONDENT) REVENUE BY : SMT. SONIA KUMAR, SR. DR. ASSESSEE(S) BY : SHRI D.K. PARIKH, AR / DATE OF HEARING : 10/03/2016 / DATE OF PRONOUNCEMENT: 15/03/2016 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER:- BOTH THESE APPEALS BY THE REVENUE ARE DIRECTED AGA INST A COMMON ORDER OF THE COMMISSIONER OF INCOME-TAX (APP EALS)-II, BARODA, DATED 25.11.2011 FOR ASSESSMENT YEARS 2004-05 AND 2 005-06. SINCE BOTH THESE APPEALS ARE AGAINST SAME ASSESSEE AND INVOLVE IDENTICAL ISSUES, THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY TH IS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. FIRST WE TAKE UP THE REVENUES APPEAL FOR ASSESS MENT YEAR 2004-05 AND THE REVENUE HAS RAISED FOLLOWING GROUNDS IN THI S APPEAL:- ITA NO. 253/AHD/2012 : AY : 2004-05: BY REVENUE 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE ID CIT (APPEALS) ERRED IN DIRECTING THE ASSESSING OFFI CER TO ALLOW THE DEDUCTION U/S.80IB(10) R.W.S. 80IB(L) OF THE INCOME -TAX ACT TO THE ASSESSEE IN VIEW OF THE DECISION OF THE HON'BLE ITA T IN THE CASE OF ITA NOS. 253 & 254/AHD/2012 ITO VS. M/S. ADITYA CORPORATION AYS : 2004-05 & 2005-06 2 M/S. RADHE DEVELOPERS IN ITA NO.2482/AHD/2006 DATED 29.06.2007, WITHOUT APPRECIATING THAT THE APPROVAL BY THE LOCAL AUTHORITY AS WELL AS COMPLETION CERTIFICATE WAS NOT GRANTED TO THE AS SESSEE BUT TO THE LANDOWNER AND THE RIGHTS AND THE OBLIGATIONS UNDER THE SAID APPROVAL WERE NOT TRANSFERABLE, AND THAT TRANSFER OF DWELLIN G UNITS IN FAVOUR OF THE END-USERS WAS MADE BY THE LANDOWNER AND NOT BY THE ASSESSEE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE ID CIT (APPEALS) ERRED IN DIRECTING THE ASSESSING OFFI CER TO ALLOW THE DEDUCTION U/S.80IB(10) R.W.S. 80IB(L) OF THE INCOME -TAX ACT TO THE ON PROFIT DERIVED FROM SALE OF UNUTILIZED FSI WITHOUT APPRECIATING THAT THIS PROFIT IS NOT AN ELEMENT OF PROFITS DERIVED FR OM THE BUSINESS ACTIVITY OF DEVELOPMENT AND CONSTRUCTION OF THE HOU SING PROJECT. 3. THE APPELLANT CRAVES LEAVE TO ADD TO, AMEND OR A LTER THE ABOVE GROUNDS AS MAY BE DEEMED NECESSARY. 3. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSES SEE POINTED OUT THAT THESE APPEALS HAVE BECOME INFRUCTUOUS SINCE THE LEA RNED CIT IN ORDER U/S 264 PERTAINING TO ASSESSMENT YEAR 2003-04 AND 2006- 07 HAS EXAMINED THE ISSUE AND DECIDED IN FAVOUR OF THE ASSESSEE. SINCE THE FACTS ARE IDENTICAL TO THE YEARS UNDER CONSIDERATION, THESE APPEALS MAY AL SO BECOME INFRUCTUOUS AND MAY BE DISMISSED AS SUCH. THE LEARNED COUNSEL F OR THE ASSESSEE ALSO SUBMITTED THAT THIS IS THE SECOND ROUND OF LITIGATI ON AND IN THE EARLIER ROUND IT WAS TRAVELLED UPTO THIS TRIBUNAL IN ITA NOS. 766 & 3224/AHD/2008 FOR ASSESSMENT YEARS 2004-05 AND 2005-06 RESPECTIVELY; WHEREIN, THE TRIBUNAL WAS PLEASED TO RESTORE THE ISSUE TO THE FILE OF THE LEARNED CIT(A) BY MAKING OBSERVATION IN PARAGRAPH 9 OF THE ORDER. THE LD. C OUNSEL FOR THE ASSESSEE SUBMITTED THAT UNDER THESE FACTS OF THE PRESENT CAS E, THE APPEALS FILED BY THE REVENUE DESERVE TO BE DISMISSED. ON THE CONTRARY, LEARNED SR. DR HAS OPPOSED THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE AND HE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. ITA NOS. 253 & 254/AHD/2012 ITO VS. M/S. ADITYA CORPORATION AYS : 2004-05 & 2005-06 3 4. THE ONLY EFFECTIVE GROUND IN THESE APPEALS IS WI TH REGARD TO THE AVAILABILITY OF DEDUCTION U/S 80IB(10) TO THE ASSES SEE. BRIEFLY STATED FACTS ARE THAT THE ASSESSING OFFICER DECLINED TO ACCEPT T HE CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT ON THE BASIS THAT THE ASSESSEE IS NOT ELIGIBLE FOR CLAIM OF DEDUCTION U/S 80IB(10) IN VIEW OF THE FACT THAT THE FSI APPROVED BY THE LOCAL AUTHORITIES EXCEEDS 1,500 SQ. FT. AGGRIEVED BY TH IS ORDER OF THE ASSESSING OFFICER, THE ASSESSEE PREFERRED AN APPEAL AND THE M ATTER TRAVELLED UPTO THE TRIBUNAL AND THE TRIBUNAL HAS RESTORED THE ISSUE TO THE FILE OF THE LEARNED CIT(A) FOR DECISION AFRESH IN THE LIGHT OF THE OBSE RVATION MADE IN PARAGRAPH 9 OF THE ORDER IN ITA NOS. 766 & 3224/AHD/2008, WHI CH IS REPRODUCED HEREUNDER FOR READY REFERENCE:- 9. THE AFORESAID FINDINGS OF THE LD. CIT IN THE AYS 2003-04 & 2006-07 HAVE NOT BEEN DISPUTED BY THE REVENUE BEFORE US WHILE TH E LD. CIT(A) UPHELD THE DISALLOWANCE ONLY ON THE GROUND THAT THE ASSESSEE D ID NOT FULFILL THE CONDITION STIPULATED IN CLAUSE (C) OF SECTION 80IB(10) OF THE AC T. IN THESE CIRCUMSTANCES, WE CONSIDER IT FAIR AND APPROPRIATE TO SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER RELATING TO CLAIM FOR DEDUCTION U/S 80IB(10) OF THE ACT TO HIS FILE FOR DECIDING THE ISSU E AFRESH IN ACCORDANCE WITH LAW, IN THE LIGHT OF AFORESAID FINDINGS OF THE CIT IN THE AYS 2003-04 & 2006- 07 AFTER ALLOWING SUFFICIENT OPPORTUNITY TO BOTH TH E PARTIES. THE LD. CIT(A) IS FREE TO UNDERTAKE ANY INDEPENDENT ENQUIRES, IF F OUND NECESSARY AND THEREAFTER, MAY PASS SUCH ORDER AS HE DEEMS PROPER, IN ACCORDANCE WITH LAW, BRINGING OUT CLEARLY AS TO WHETHER OR NOT THE CONDI TION STIPULATED IN CLAUSE (C) OF SEC. 80IB(10) OF THE ACT, IS FULFILLED IN THE Y EARS UNDER CONSIDERATION. WITH THESE OBSERVATIONS, GROUND NO.1 IN THESE TWO A PPEALS IS DISPOSE OF. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THA T THE CLAIM OF THE ASSESSEE HAS BEEN ALLOWED BY THE LEARNED CIT BY EXE RCISING JURISDICTION U/S 264 OF THE ACT IN RESPECT OF ASSESSMENT YEARS 2003- 04 AND 2006-07. THIS CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE HAS NOT BEEN CONTROVERTED BY THE REVENUE BY PLACING ANY MATERIAL ON RECORD; T HEREFORE, THE GROUNDS ITA NOS. 253 & 254/AHD/2012 ITO VS. M/S. ADITYA CORPORATION AYS : 2004-05 & 2005-06 4 RAISED IN THIS APPEAL ARE DISMISSED. IN THE RESULT , THIS APPEAL OF THE REVENUE IS DISMISSED. ITA NO. 254/AHD/2012 : AY : 2005-06: BY REVENUE 5. IN THIS APPEAL BY THE REVENUE FOR ASSESSMENT YEA R 2005-06 ALSO IDENTICAL GROUNDS ARE RAISED. THEREFORE, FOR THE DE TAILED DISCUSSION IN ITA NO.253/AHD/2012 FOR ASSESSMENT YEAR 2004-05 (SUPRA ), THE REVENUES APPEAL FOR ASSESSMENT YEAR 2005-06 IS ALSO DISMISSE D. 6. IN THE RESULT, BOTH THE APPEALS FILED BY THE REV ENUE ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 15 TH MARCH, 2016 AT AHMEDABAD. SD/- SD/- (ANIL CHATURVEDI) ACCOUNTANT MEMBER (KUL BHARAT) JUDICIAL MEMBER AHMEDABAD; DATED 15/03/2016 *BIJU T. '#$%&'&($ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! ' ' # / CONCERNED CIT 4. ' ' # ( ) / THE CIT(A) 5. &'( ! , ' ! , / DR, ITAT, AHMEDABAD 6. (- . / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD