M/s. Pratham Realty Pvt. Ltd., Baroda V. The Asst. CIT, Circle-4, Baroda

ITA 2531/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94732 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 26-10-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 10-10-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 143(3); 14A; 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH BEFORE: S H RI PRAMOD KUMAR , ACCOUNTANT MEMBER AND SHR I S. S. GODARA , JUDICIAL MEMBER DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE - 4, BARODA (APPELLANT) VS M/S. PRATHAM REALTY PVT. LTD, BARODA PAN: AACCP4084A (RESPONDENT) M/S. PRATHAM REALTY PVT. LTD, BARODA PAN: AACCP4084A (APPELLANT) VS DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE - 4, BARODA (RESPONDENT) REVENUE BY : S H RI R.K. GUPTA , SR. D . R. ASSESSEE BY: S H RI BHAVIN MARFATIA , A. R. DATE OF HEARING : 21 - 10 - 2 015 DATE OF PRONOUNCEMENT : 27 - 11 - 2 015 / ORDER P ER : S. S. GODARA , JUDICIAL MEMBER : - I T A NO S . 2500 & 2501 / A HD/2 0 11 A SSESSMENT YEAR 200 5 - 06 & 2008 - 09 ITA NO. 2531 /AHD/20 11 A SSESSMENT YEAR 2008 - 09 I.T.A NO S . 2500, 2501 & 2531 /AHD/20 11 A.Y. 2005 - 06 &2008 - 09 PAGE NO DCIT VS. M/S. PRATHAM REALTY PVT. LTD 2 THIS SET OF THREE APPEALS RELATE TO ASSESSMENT YEARS 2005 - 06 AND 2008 - 09. THE REVENUE HAS FILED ITA 2500/AHD/2011 IN FORMER ASSESSMENT YEAR AGAINST ORDER OF THE CIT(A) - III, BARODA DATED 08 - 07 - 2011 IN PROCEEDINGS U/S. 143 R.W.S. 254 OF THE INCOME TAX ACT, 1961 IN SHORT THE ACT . THE LATTER ASSESSMENT YEAR INVOLVES CROSS APPEAL FILED BY THE REVENUE AND ASSESSEE ITAS NO. 2501 AND 2531/AHD/2011 ; RESPECTIVELY AGAINST THE CIT(A) S DATED 08 - 07 - 2011 IN PRO CEEDINGS U/S. 143(3) OF THE ACT. 2. A PERUSAL OF THE CASE FILE REVEALS THAT THE REVENUE S IDENTICAL GRIEVANCE IN ITS TWO APPEALS ITA NOS. 2500 & 2501/AHD/2011 FOR BOTH ASSESSMENT YEAR S CHALLENGES THE CIT(A) S ORDERS HOLDING THE ASSESSEE ELIGIBLE FOR SECT ION 80IB DEDUCTION AMOUNTING TO RS. 1,56,04,0959/ - AND RS. 40,58,144/ - ; RESPECTIVELY. THE SAME PERTAINS TO A RESIDENTIAL PROJECT NAMELY PRATHAM ENCLAVE, VILLAGE ATLADRA, BARODA. ASSESSMENT YEAR 2003 - 04 TURNS OUT TO BE THE FIRST YEAR OF RAI SING OF THIS D EDUCTION CLAIM. THE ASSESSEE REITERATED THE SAME IN THE IMPUGNED TWO ASSESSMENT YEARS AS WELL. THE ASSESSING O FFICER IN ASSESSMENT ORDER DATED 28 - 12 - 2007 FOLLOWED PRECEDING ASSESSMENT YEARS DISALLOWING THE VERY CLAIM HOLDING ASSESSEE AS NEITHER OWNER OF THE LAND NOR THE ONE WHO HAD ATTAINED APPROVAL OF THE HOUSING PROJECT FROM THE CONCERNED LOCAL AUTHORITY. HE ACCORDINGLY REJECTED ASSESSEE S CONTENTION THAT THE CIT(A) IN HIS APPELLATE ORDER OF THE ABOVE STATED PRECEDING ASSESSMENT YEAR HAD ACCEPTED THE V ERY DEDUCTION CLAIM BY FOLLOWING TRIBUNAL S DECISION IN I.T.A NO S . 2500, 2501 & 2531 /AHD/20 11 A.Y. 2005 - 06 &2008 - 09 PAGE NO DCIT VS. M/S. PRATHAM REALTY PVT. LTD 3 RADHE DEVELOPERS VS. ITO 133 TTJ 300. THE RELEVANT FINDINGS READ THAT MAIN REASON WAS THAT DEPARTMENT S APPEAL WAS PENDING IN THE HON BLE JURISDICTIONAL HIGH COURT. SIMILAR REASONING WAS FOLLOWED IN LATTER ASSESSMENT YEAR IN A SSESSMENT ORDER DATED 22 - 12 - 20 10 QUA THE VERY PROJECT. 3. THE ASSESSEE PREFERRED APPEAL. THE CIT(A) FOLLOWED HIS EARLIER ORDER IN ASSESSEE S OWN CASE QUA THE VERY PROJECT IN ABOVE STATED PRECEDING ASSESSMENT YEARS FOR ALLOWIN G THE IMPUGNED DEDUCTION CLAIM IN ORDER DATED 11 - 08 - 2008. THE REVENUE CAME IN APPEAL BY FILING ITA NO. 3878/AHD/2008. A CO - ORDINATE BENCH OF THE TRIBUNAL IN ITS ORDER DATED 11 - 11 - 2009 REMITTED THE ISSUE BACK TO THE ASSESSING AUTHORITY FOR FRESH ADJUDICAT ION IN VIEW OF THE EXPLANATION ADDED TO SECTION 80IB(10) AND AN IDENTICAL DECISION IN ITA 1503/AHD/2003 TITLED AS M/S SHAKTI CORPORATION. IT IS TO BE SEEN THAT THE REVENUE FILED TAX APPEAL NO S . 1174 TO 1176 OF 2010 AGAINST THE TRIBUNAL S REMAND ORDERS IN IDEN TICAL CIRCUMSTANCES IN ASSESSEE S CASE ITSELF. THE SAME STOOD ADMITTED ON 24/08/2011 AND 05/09/2011. 4. THE ASSESSING OFFICER TOOK UP CONSEQUENTI AL PROCEEDINGS. HE SIMPLY REJE CTED ASSESSEE S CLAIM FOR WANT OF ANY REBUTTA L TO EXPLANATION TO SECTIO N 80IB (10) RELATING TO APPROVAL AND COMPLETION. WE FIND THAT THE CONSEQUENTIAL ORDER DATED 22 - 12 - 2010 IS TOTALLY SILENT. THE REVENUE ALSO FAILS IN BRINING ASSESSEE S CASE WITHIN THE PURVIEW OF ABOVE STATED EXPLANATION. WE PROCEED AND FIND THAT THE CIT(A ) HAS FOLLOWED HIS ORDER IN ASSESSEE S OWN CASE FOR ASSESSMENT I.T.A NO S . 2500, 2501 & 2531 /AHD/20 11 A.Y. 2005 - 06 &2008 - 09 PAGE NO DCIT VS. M/S. PRATHAM REALTY PVT. LTD 4 YEAR 2006 - 07 ALLOWING THE VERY SECTION 80IB(10) AF T ER CONSIDERING CASE LAW OF SHAKTI CORPORATION. THE SAME FACTUAL POSITION IS TO BE SEEN IN LATTER ASSESSMENT YEAR FROM THE LOWER APPELLA TE ORDER. 5. THE REV ENUE HAS FILED THESE TWO APPEAL S IN THE BACKDROP OF FACTS. IT IS EVIDENT FROM A PERU S AL OF THE CASE FILE THAT THE HON BLE JURISDICTIONAL HIGH COURT HAS DECIDED THIS ISSUE OF SECTION 80IB(10) DEDUCTION VIS - - VIS OWNERSHIP OF THE RESID ENTIAL PROJECT LAND IN (2012) 341 ITR 403 CIT VS. RADHE DEVELOPERS ALONG WITH REVENUE S TAX APPEALS 1174 TO 1176 (SUPRA) IN ASSESSEE S FAVOUR BY HOLDING THAT SUCH AN OWNERSHIP IS NOWHERE A CONDITION PRECEDENT FOR CLAIMING DEDUCTION IN QUESTION. THIS IS N OT THE REVENUE S CASE THROUGHOUT THAT THE ASSESSEE HAS NOT BORNE ENTREPRENEURIAL RISK IN DEVELOPING THE PRATHAM REALITY RESIDENTIAL PROJECT AT ANY STAGE OF THE INSTANT PROCEEDINGS. NOR DOES IT POINT OUT ANY DISTINCTION ON FACTS OR LAW. PAPER BOOK PLACED ON RECORD INDICATES THAT REVENUE S SLP AGAINST THE HON BLE HIGH COURT DE C IS ION STANDS DISMISSED ON 23 - 11 - 2012 IN ASSESSEE S CASE ITSELF. WE FIND NO REASON TO INTERFERE WITH CIT(A) S ORDERS UNDER CHALLENGE HOLDING ASSESSEE ENTITLED FOR SECTION 80IB(10) DED UCTION. THESE TWO REVENUE S APPEAL S ITA 2500 & 2501/AHD/2011 FAIL. 6. THIS LEAVES US WITH ASSESSEE S APPEAL 2531/AHD/2011 CHALLENGING CIT(A) S ORDER UPHOLDING DISALLOWANCE OF RS. 1,31,295/ - U/S. 14A R.W RULE 8D AS AGAINST THAT OF RS. 2,62,590/ - MADE BY TH E ASSESSING OFFICER. THE ASSESSEE MAKES A VERY FAIR SUBMISSION AFTER I.T.A NO S . 2500, 2501 & 2531 /AHD/20 11 A.Y. 2005 - 06 &2008 - 09 PAGE NO DCIT VS. M/S. PRATHAM REALTY PVT. LTD 5 A RGUING THE ISSUE FOR SOME TIME THAT ITS SOLE SUBSTANTIVE GROUND MAY BE DISMISSED AS NOT PRESSED KEEPING IN MIND SMALLNESS OF THE AMOUNT INVOLVED. THE REVENUE DOES NOT OBJECT TO THE S AME. WE ACCORDINGLY DISMISS THIS APPEA L ITA 2531/AHD/2011 AS NOT PRESSED. ORDERED ACCORDINGLY. 7. THESE TWO REVENUE S APPEAL 2500 & 2501 /AHD/2011 ARE DISMISSED AND ASSESSEE S APPEAL ITA 2531/AHD/2011 IS DISMISSED AS NOT PRESSED. ORDER P R ONOUNCED IN THE OPEN C OURT ON 27 - 11 - 2015 SD/ - SD/ - ( PRAMOD KUMAR ) ( S. S. GODARA ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 27 /11 /2015 AK / COPY OF ORDER FORWARDED TO: - 1. ASSE SSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,