ACIT, Bhubaneswar V. M/s Aryans Infrastructures Pvt. Ltd, Bhubaneswar

ITA 256/CTK/2007

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0793 (ITAT-CUTTACK)
• Duration Of Justice: 3 year(s) 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2011
• Appeal Filed By: Department
• Bench Allotted: DB
• Next Hearing Date: 16-11-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 06-08-2007
• Court: TRIBUNAL
• Department Lawyers: WHEREAS C O IS FILED ASSESSE
• Keywords: Opportunity of being heard

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK ( ) BEFORE . . , , HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER. /AND . . . , S HRI K.S.S.PRASAD RAO , JUDICIAL MEMBER / I.T.A.NO. 256/CTK/2007 AND C.O.NO.24/CTK/2007 (FILED BY ASSESSEE) / ASSESSMENT YEAR ASST.COMMISSIONER OF INCOME - TAX, CIRCLE 2(1), BHUBANESWAR - - - VERSUS - M/S.ARYANS INFRASTRUCTUR ES PVT. LTD., 107, SURYA NAGAR,BHUBANESWAR. ( /APPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI S.K.DASH, DR / FOR THE RESPONDENT: / SHRI P.K.PANDA/DAS, ARS / ORDER . . . , , SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER . THE APPEAL IS FILED BY THE DEPARTMENT, WHEREAS THE C.O. IS FILED BY THE ASSESSE HAVING BEEN AGGRIEVED BY THE ORDER OF THE COMMISSIONER OF INCOME - TAX (APPEALS) DT.28.5.2007 FOR ASSESSMENT Y EAR 2004 - 05 IN THE CASE OF THE ASSESSEE. 2. THE DEPARTMENT RAISES THE SOLE ISSUE OBJECTING THE DIRECTION OF THE CIT(A) TO THE ASSESSING OFFICER TO ALLOW DEDUCTION U/S.80IB(1) OF THE INCOME - TAX ACT,1961 TO THE ASSESSEE. 3. BOTH PARTIES WERE HEARD REGARDING THE ISSUE RAISED BY THE DEPARTMENT SO ALSO IN THE C.O. FILED BY THE ASSESSEE SUPPORTING THE IMPUGNED ORDER OF THE LEARNED CIT(A). 4. ON CAREFUL CONSIDERATION OF THE MATERIAL AVAILABLE TO THE TRIBUNAL AND ANALYZING THE SAME IN THE LIGHT OF THE RIVAL SUBMISS IONS OF BOTH THE PARTIES AND THE LAW APPLICABLE THERETO, THE UNDISPUTED FACTS RELATING TO THE ISSUE ARE I.T.A.NO. 256/CTK/2007 AND C.O.NO.24/CTK/2007 2 THAT THE ASSESSEE IS A PRIVATE LIMITED COMPANY ENGAGED IN THE BUSINESS OF REAL ESTATE. IT HAS FILED THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2004 - 05 CLAIMING DEDUCTION U/S.80IB(1 0) AMOUNTING TO 26,58,459, WHILE SHOW ING INCOME OF 24,69,821. THE ASSESSEE COMPANY STARTED DEVELOPMENT OF GROUP HOUSING PROJECT CONSISTING OF 14 HOUSING UNITS AT THE ARYAPALLI , PATIA, BHUBANESWAR IN THE FY 2001 - 02. THE ASSESSEE HAS COMPLETED AND DELIVER ED THREE UNITS TO THE CUSTOMERS DURING THE FY 2002 - 03 AND THE BALANCE 11 UNITS WERE DELIVERED DURING THE FY 2003 - 04. THE ASSESSEE HAS CONSTRUCTED THE UNITS AFTER OBTAINING APPROVAL FROM THE BHUBANESWAR DEVELOPMENT AUTHORITY (IN SHORT BDA) AS PER LETTER NO. 16239 DT.19.10.2001 FOR 14 UNITS OVER AN AREA OF ONE ACRE ( ABOUT 43,650 SFT). THE GROUP HOUSING SCHEME WAS SUB - DIVIDED INTO TWO SIZES OF PLOTS, (1) 60 X 51 TOTALING AREA OF 3,050 SFT. (SUB - PLOT NO.1, HOUSE NO.15) AND 8 (HOUSE NO.22), (2) 45 X 51, TO TALING AREA OF 202 5 SFT (SUB - PLOT NO.2 TO 7 EQUAL TO HOUSE NO.21) AND 9 TO 14 (HOUSE NOS.23 TO 28). THE PLANS APPROVED BY THE BDA FOR THE ENTIRE SCHEME WAS IDENTICAL. THE TOTAL BUILT UP AREA ALLOWED FOR CONSTRUCTION IN ALL THE FOURTEEN UNITS WAS 20,874 SFT CONSISTING OF GROUND FLOOR MEASURING 14,868 SFT AND FIRST FLOOR MEASURING 6,006 SFT. THE INDIVIDUAL UNIT AREA IS 1,062 SFT (INCLUDING THE PARKING AREA IN THE GROUND FLOOR) AND 429 SFT OF THE FIRST FLOOR GRAND TOTAL L ING 14,091 SFT. AFTER OBTAINING PERMISSI ON FROM THE BDA THE ASSESSEE ENTERED INTO AGREEMENTS WITH VARIOUS BUYERS FOR CONSTRUCTION AND DEVELOPMENT AND DELIVERED THEM TO THE RESPECTIVE BUYERS DURING THE FY 2002 - 03 ( 3 UNITS) AND DURING THE FY 2003 - 04 (THE BALANCE 11 UNITS). 5. A SURVEY TOOK PLACE IN THE CASE OF THE ASSESSEE AT THE BUSINESS PREMISES ON 15.11.2006 RESULTING IN TRACING OF OFFICIAL DOCUMENTS SUCH AS, APPROVED PLANS SUBMITTED ALONG WITH THE RETURN ETC. ON GOING THROUGH THE SAID DOCUMENTS, IT WAS NOTICED BY THE DEPARTMENT THAT THERE ARE CORRECTIONS I.T.A.NO. 256/CTK/2007 AND C.O.NO.24/CTK/2007 3 IN THE AREA STATEMENT GIVEN IN THESE DOCUMENTS. THE RETURN FILED BY THE ASSESSEE ON 10.10.2004 DISCLOSED TOTAL INCOME OF 24,69,821 AFTER CLAIMING DEDUCTION U/S.80IB(10) OF THE ACT TO THE EXTENT OF 26,58,450. THIS RETURN WAS TAKEN UP FOR SCRUT INY AND AFTER GIVING ALL STATUTORY NOTICES, THE ASSESSING OFFICER STARTED ASSESSMENT PROCEEDINGS AND ON PERUSING THE MATERIAL MADE AVAILABLE TO THE ASSESSE AND THE STATEMENT RECORDED DURING THE SURVEY, HE CAME TO THE CONCLUSION THAT THE ASSESSEE HAS CONSTR UCTED THE UNITS CONSISTING BUILT UP AREA MORE THAN 1500 SFT, WHEREAS THE DEDUCTION U/S.80IB(10) IS AVAILABLE ONLY IF THE CONSTRUCTED AREA OF THE UNITS WERE BELOW 1500 SFT AND IN A PLOT MEASURING ONE ACRE . THE ASSESSEE PLEADED BEFORE THE ASSESSING OFFICER T HAT THEY HAVE CONSTRUCTED UNITS CONSISTING OF AREA BELOW THE SPECIFIED LIMIT OF 1500 SFT. THE PURCHASERS MIGHT HAVE MADE THE SUBSEQUENT CONSTRUCTIONS AFTER THE SALE OF THE SAID UNITS TO THEM BY THE ASSESSEE WHICH MIGHT COME TO MORE THAN THE AREA OF 1500 SF T. THEREFORE, THE CLAIM OF THE ASSESSEE U/S.80IB(10) IS VERY MUCH PERFECT AND VALID AS PER LAW APPLICABLE THERETO. THEREFORE, THE ASSESSEE CLAIMED BENEFIT OF THE SAME. BUT THE ASSESSING OFFICER NEGATIVE D THE CLAIM OF THE ASSESSEE HOLDING THAT THE UNITS CON STRUCTED BY THE ASSESSEE ARE OF MORE THAN1500 SFT DISENTITLING IT FOR THE CLAIM U/S.80IB(10). 6. AGGRIEVED WITH TH IS ASSESSMENT ORDER, THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(A) AND WAS SUCCESSFUL. THEREFORE, THE DEPARTMENT FILED THE PRESENT APPEAL BEF ORE THE TRIBUNAL, WHEREAS THE ASSESSEE HAS FILED THE CROSS OBJECTION SUPPORTING THE IMPUGNED ORDER OF THE LEARNED CIT(A). 7. AFTER HEARING BOTH PARTIES AND ANALYZING THE MATERIAL MADE AVAILABLE TO THE TRIBUNAL IN THE LIGHT OF THE RIVAL SUBMISSIONS OF BOTH THE PARTIES, IT IS FOUND THAT THE LEARNED CIT(A) HAS NOT MADE OUT ANY POSITIVE EVIDENCE I.T.A.NO. 256/CTK/2007 AND C.O.NO.24/CTK/2007 4 CONTROVERTING THE FINDINGS OF THE ASSESSING OFFICER. ON THE OTHER HAND, ALL HIS FINDINGS ARE ON SURMISES AND EVASIVE, AS CAN BE SEEN FROM THE OPERATIVE PORTION OF HIS O RDER, WHICH IS NOT PERMISSIBLE UNDER LAW. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THIS ISSUE REQUIRES TO BE RECONSIDERED BY THE CIT(A) AFTER OBTAINING THE RECORDS, SUCH AS , APPROVED PLAN OF THE UNITS IN QUESTION DIRECTLY FROM THE BDA AND AFTER OBTAI NING THE CERTIFIED COPIES OF THE FIRST SALES DOCUMENTS PERTAINING TO THESE UNITS BY THE ASSESSE FROM THE CONCERNED SUB - REGISTRAR OFFICE OF THE STATE GOVE RNMENT AND ALSO TAKING INTO CONSIDERATION THE MUNICIPAL RECORDS REGARDING THE FIRST ASSESSMENT OF THE UNIT FOR PROPERTY TAX AND SUCH OTHER RELEVANT DOCUMENT S FROM THE PUBLIC OFFICES SUCH AS, PLAN FILED BY THE PURCHASERS PLUS THE ASSESSEE AS WOULD BE FELT B Y HIM NECESSARY AND PASS NECESSARY ORDERS AFTER GIVING OPPORTUNITY OF BEING HEARD TO BOTH PARTIES BEFORE HIM AS PER LAW . WITH THIS DIRECTION, THE ISSUE IS RESTORED TO THE FILE OF THE LEARNED CIT(A). HOWEVER, THE ASSESSEE IS HEREBY DIRECTED TO COOPERATE WIT H THE CIT(A) IN EARLY DISPOSAL OF THE APPEAL BY HIM. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES AND THE C.O. FILED BY THE ASSESSEE IS DISMISSED. THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 18.1.2011 S D/ - S D/ - ( . . ) , , (K.K.GUPTA), ACCOUNTANT MEMBER. ( . . . ) , (K.S.S.PRASAD RAO), JUDICIAL MEMBER. ( ) DATE: 15 TH FEBRUARY, 2011 ( ), ( H.K.PADHEE ), SENIOR.PRIVATE S ECRETARY. I.T.A.NO. 256/CTK/2007 AND C.O.NO.24/CTK/2007 5 - COPY OF THE ORDER FORWARDED TO: 1 . / THE APPELLANT : ASST.COMMISSIONER OF INCOME - TAX, CIRCLE 2(1), BHUBANESWAR 2 / THE RESPONDENT: M/S.ARYANS INFRASTRUCTU RES PVT. LTD., 107, SURYA NAGAR,BHUBANESWAR. 3 . / THE CIT, 4 . ( )/ THE CIT(A), 5 . / DR, CUTTACK BENCH 6 . GUARD FILE . / TRUE COPY, / BY ORDER, [ ] SENIOR PRIVATE SECRETARY