The ITO, Ward-9(2), Ahmedabad V. M/s. M.Sheth Company, Ahmedabad

ITA 2558/AHD/2011

• Counselvise Citation: 255820514 RSA 2011
• Duration Of Justice: 4 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2003-2004
• Appeal Filed On: 14-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G C DAXINI
• Keywords: Retrospective amendment
• Section: 143(3); 148

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 ITO, WARD - 9(2), AHMEDABAD (APPELLANT) VS M/S. M. SHETH & COMPANY, 15, BHAGIRATH SOCIETY, NARANPURA, AHMEDABAD PAN: AAEFM6818L (RESPONDENT) REVENUE BY : S H RI G.C. DAXINI , SR. D . R. ASSESS EE BY: S H RI ARTI N. SHAH , A.R. DATE OF HEARING : 01 - 10 - 2 015 DATE OF PRONOUNCEMENT : 21 - 10 - 2 015 / ORDER P ER : S. S. GODARA , JUDICIAL MEMBER : - THI S REVENUE S APPEAL FO R A.Y. 2003 - 04 , AR ISES FROM ORDER OF THE CIT(A) - XV, AHMEDABAD DATED 29 - 08 - 2011 IN APPEAL NO. CIT(A) - XV/9(2)/364/ 10 - 11 , IN PROCEEDINGS UNDER SECTION 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT I T A NO . 2558 / A HD/20 11 A S SESSMENT YEAR 200 3 - 04 I .T.A NO. 2558 /AHD/20 11 A.Y. 2003 - 04 PAGE NO ITO VS. M/S. M. SHETH & COMPANY 2 2 . THE REVENUE S SOLE SUBSTANTIVE RAISED I N THIS APPEAL CHALLENGES CIT(A) S ORDER QUASHING THE IMPUGNED REOPENING TAKEN RECOURSE TO BY THE ASSESSING OFFICER. THE ASSESSEE - FIRM DEVELOPS, ORGANIZES AND BUILDS HOUSING PROJECTS. IT FILED ITS RETURN ON 23 - 10 - 2003 STATING NIL INCOME AFTER CLAIMIN G SEC TION 80IB(10) DEDUCTION OF RS. 1,00 , 86,467/ - . THE ASSESSING OFFICER FRAMED A REGULAR ASSESSMENT ON 30 - 09 - 2005 MAKING ADDITION OF INTEREST AMOUNT OF RS. 1,55,936/ - FROM M/S. SHILP CORPORATION. THE ASSESSEE DOES NOT SEEM TO HAVE FILED ANY APPEAL. THEREAFTE R , THE ASSESSING OFFICER FORMED REASONS TO BELIEVE THAT ASSESSEE S INCOME LIABLE TO BE ASSESS ED HAD ESCAPED ASSESSMENT ON THE GROUND THAT IT WAS ONLY A WORK S CONTRAC TOR AND NOT A DEVELOPER/BUILDER OF HOUSING PROJECT A PPROVED BY THE LOCAL AUTHORITY AND THAT ITS DEDUCTION CLAIM U/S. 80IB(10) WAS NOT ALLOWABLE IN VIEW OF THE AMENDMENT THEREIN BY THE FINANCE ACT, 2009 INSERTING EXPLANATION WITH RETROSPECTIVE EFFECT FROM 01 - 04 - 2001. THIS MADE HIM TO REOPEN THE ASSESSMENT ALREA DY FRAMED. HE ISSUED SECTION 14 8 N OTICE DATED 12 - 03 - 2010 AND FRAMED REASSESSMENT ON 31 - 12 - 2010 DISALLOWING THE ABOVE STATED DEDUCTION. 3 . THE ASSESSEE PREFERRED APPEAL. THE CIT(A) RELIES UPON HON BLE JURISDICTIONAL HIGH COURT DECISION IN CASE OF AYOJAN DEVELOPER VS. ITO (2011) 335 ITR 234 (GUJ) QUASHING AN IDENTICAL REO PENING BASED ON THE VERY EXPLANATION INSERTED IN THE ACT . THIS LEAVES THE REVENUE AGGRIEVED. I .T.A NO. 2558 /AHD/20 11 A.Y. 2003 - 04 PAGE NO ITO VS. M/S. M. SHETH & COMPANY 3 4 . WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE CASE FILE. RELEVANT FACTS STATED IN PRECEDING PARAGRAPHS ARE NOT REPEATED FOR THE SAKE OF BREVITY. THE ASSESSING OFFICER REOPENED THE IMPUGNED ASSESSMENT BASED ON THE FINANCE ACT, 2009 INSERTING EXPLANATION TO SECTION 80IB(10) WITH RETROSPECTIVE EFFECT FROM 01 - 04 - 2001STIPU LA TING THAT THIS DEDUCTION I S NOT ALLOWABLE IN CASE OF W ORK S CONTRACTOR. THE CASE FILE REVEALS THAT THE HON BLE JURISDICTIONAL HIGH COURT HAS QUASHED AN IDENTICAL REOPENING BASED O N THE VERY REASONING. R EOPENING REASONING AT PAGE 6 OF THE PAPER BOOK AND THOSE BEFORE THE HON BLE JURISDICTIONAL HIGH COURT ARE V ERBATIM SIMILAR. THE REVENUE FAILS TO POINT OUT ANY DISTINCTION ON FACTS AND LAW. THE CIT(A) HAS QUASHED THE IMPUGNED REOPENING BY FOLLOWING THE ABOVE STATED DECISION. WE DO NOT FIND ANY REASON TO INTERFERE . THE REVENUE S SOLE SUBSTANTIVE GROUND FAILS ACCORDINGLY. 5. THIS REVENUE S APPEAL IS DISMISSED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 21 - 10 - 2015 SD/ - SD/ - ( PRAMOD KUMAR ) ( S. S. GODARA ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 21 / 10 /2015 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. 2558 /AHD/20 11 A.Y. 2003 - 04 PAGE NO ITO VS. M/S. M. SHETH & COMPANY 4 BY ORDER/ , / ,