The ITO, Ward-9(1), Ahmedabad V. M/s. Nirman Enterprise, Ahmedabad

ITA 2596/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 89520 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 08-06-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 19-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Section: 80IB; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH BEFORE: S H RI N.S. SAINI , ACCOUNTANT MEMBER AND SHR I RAJPAL YADAV , JUDICIAL MEMBER THE INCOME TAX OFFICER, WARD - 9(1), AHMEDABAD (APPELLANT) VS M/S. NIRMAN ENTERPRISE, NIRMAN COMPLEX, NR. HAVELI ROAD, R.C. TECHNICAL ROAD, CHANDLODIA, AHMEDABAD PAN: AABFN4795Q (RESPONDENT) REVENUE BY: S H RI M. K. SINGH , SR. D.R ASSESSEE BY: NONE DATE OF HEARING : 08 - 06 - 2 015 DATE OF PRONOUNCEMENT : 12 - 06 - 2 015 / ORDER P ER : RAJPAL YADAV , JUDICIAL MEMBER : - THE REVENUE IS IN AP PEAL BEFORE US AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX(A) DATED 3 0 TH AUGUST, 2011 PA SSED FOR ASSESSMENT YEAR 200 6 - 07 . 2. THE GROUNDS OF APPEAL TAKEN BY REVENUE ARE NOT IN CONSONANCE WITH RULE 8 OF ITAT RULES, THEY ARE DESCRIPTIVE AND ARGUMENTA TIVE IN NATURE. I T A NO . 2596 / A HD/20 11 A SSESSMENT YEAR 20 06 - 07 I.T.A NO. 2596 /AHD/2011 A.Y. 20 06 - 07 PAGE NO ITO VS. M/S. NIRMAN ENTERPRISE 2 3. IN BRIEF, THE GRIEVANCE OF REVENUE IS THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN ACCEPTING THE CLAIM OF ASSESSEE U/S. 80IB( 10 ) OF THE ACT. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HAS FILED ITS RETURN OF I NCOME ON 31 - 12 - 2006 DECLARING TOTAL INCOME AT RS. NIL. THE ASSESSEE HAS CLAIMED DEDUCTION AT RS. 1,91,400/ - U/S. 80IB(10) OF THE INCOME TAX ACT. THIS DEDUCTION HAS BEEN DISALLOWED TO THE ASSESSE BY THE ASSESSING OFFICER BY FOLLOWING HIS FINDING IN ASSESS MENT YEAR 2005 - 06. THE BRIEF OBSERVATION O F THE ASSESSING OFFICER READS AS UNDER: - 6. THE SUBMISSION OF THE ASSESSEE HAS BEEN CAREFULLY CONSIDERED. AFTER PERUSAL OF THE REPLY AND FACTS OF THE CASE IT IS NOTICED THAT THERE IS NO CHANGE IN THE FACTS OF T HE CASE AS COMPARED TO THAT OF A. Y. 2005 - 2006 WHEREIN THE THEN A. 0 . HAD MADE AN ELABORATE AND SPEAKING ORDER AS TO WHY THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION U/S 80 IB (10) AND FOLLOWING THE SAME ORDER I HOLD THAT THE ASSESSEE IS NOT ELIGIBLE FOR DED UCTION U/S 80 IB (10) FOR THIS YEAR ALSO. FURTHER THE ASSESSEE HAS ALSO CARRIED OUT THE CONSTRUCTION IN VIOLATION OF THE ORIGINAL PLAN PASSED BY AUDA AND THEREFORE VIOLATED THE CONDITION OF SECT ION 80 IB(10). THE ASSESSEE HAS EVEN NOT CARED TO PUT A REVISED PLAN IN RESPECT OF THE 8 UNIT BUILT OVER AND ABOVE THE ORIGINAL 152 UNITS APPROVED BY THE AUDA. IT COMES ONLY WHEN THE AUDA OFFICIALS HAD VISITED THE SITE OF THE ASSESSEE TO ISSUE BU PERMISSION, THEY HAVE ALSO PUT A REMARK ON THE BU PERMISSION CERTIFICATE THAT THE NO'S OF UNIT AS PER APPROVAL WERE 152 AND AS PER SITE VISIT IT IS 160 UNITS. THIS ITSELF PROVES THAT THE ASSESSEE HAS WITH MALAFIDE INTENTION CARRIED OUT EXCESSIVE CONSTRUCTION AND THEREBY TOOK ADVANTAGE OF SECTION 80IB (10) OF THE ACT. THUS THE AS SESSEE HAS BREACHED THE CONDITIONS OF SECTION 80 - IB(10) AND THEREFORE HE IS NOT ELIGIBLE FOR DEDUCTION UNDER THE SAID SECTION. 5. ON APPEAL, LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS UPHELD THE CLAIM OF ASSESSEE BY OBSERVING AS UNDER: - I.T.A NO. 2596 /AHD/2011 A.Y. 20 06 - 07 PAGE NO ITO VS. M/S. NIRMAN ENTERPRISE 3 3. I T IS SEEN THAT THE DEDUCTION HAS BEEN DISALLOWED ON THE SAME REASONS IN AY 2005 - 06 BY THE AO. IN THE PRESENT AY ON PAGE 7 OF THE ASSESSMENT ORDER THE AO HAS MENTIONED THAT THE APPROVAL WAS GIVEN TO THE ASSESSEE FOR CONSTRUCTING 152 UNITS BUT IT CONSTRUCTED 160 UNI TS AS PER REMARKS MADE BY AUDA IN BU PERMISSION DATED 22.4.2003. THE AO HAS ALSO MADE THIS AS GROUND FOR DISALLOWING THE DEDUCTION. IN MY VIEW THE APPELLANT HAS BU PERMISSION FOR 160 UNITS AND ONCE AUDA HAS GIVEN BU PERMISSION THEN THERE REMAINS NO BASIS T O DENY THE DEDUCTION. 4. AFTER GOING THROUGH RIVAL SUBMISSIONS IT IS SEEN THAT THE DISALLOWANCE U/S. 80IB(10) MADE BY THE AO IN AY 2005 - 06 WAS ALLOWED THROUGH THIS OFFICE APPELLATE ORDER DATED 9.7.2008. RELYING UPON THE APPELLATE ORDER IN THE CASE OF THE APPELLANT IN AY 2005 - 06 THE AO IS DIRECTED TO ALLOW THE DEDUCTION THIS YEAR ALSO BECAUSE THE FACTS OF THE CASE ARE SAME. 6. IN RESPONSE TO THE NOTICE OF HEARING, NO - ONE HAS COME PRESENT ON BEHALF OF THE ASSESSEE. LD. DEPARTMENTAL REPRESENTATIVE SOUGHT AN ADJOURNMENT ON THE GROUND THAT HE WANTS TO ASCERTAIN THE STATUS OF ASSESSMENT YEAR 2005 - 06. HOWEVER , CONSIDERING THE FINDING OF LD. COMMISSIONER OF INCOME TAX (APPEALS), WE DID NOT ENTERTAIN HIS REQUEST. THE LD. FIRST APPELLATE AUTHORITY HAS RECORDED A FINDING OF FACT TH AT AUDA, AHMEDABAD IN ITS BU PERMISSION HAS GRANTED THE PERMISSION TO CONSTRUCT 160 UNITS. THE PRIMARY REASON FOR DISALLOWANCE IS THAT PERMISSION WAS FOR 152 UNITS. BEFORE US, NO MATERIAL HAS BEEN PLACED ON RECORD DEMONSTRATING THAT TH IS FINDING OF FACT RECORDED BY THE LD. COMMISSIONER OF INCOME TAX (APPEA LS) IS CONTRARY TO THE RECORD. THUS, TAKING INTO CONSIDERATION THE FINDING OF THE COMMISSIONER OF INCOME TAX (APPEALS), WE DO NOT FIND ANY MERIT IN THIS A PPEAL. HOWEVER, IN CA SE THE FINDING OF THE COMMISSIONER OF INCOME TAX (APPEALS) IN ASSES SMENT YEAR 2005 - 06 GOT REVERSED IN FURTHER APPEAL, THEN, REVENUE WILL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER AND IN CASE M.A. IS BEING FILED BY THE REVENUE FOR RECA LL FOR THIS I.T.A NO. 2596 /AHD/2011 A.Y. 20 06 - 07 PAGE NO ITO VS. M/S. NIRMAN ENTERPRISE 4 ORDER ON THE GROUND THAT FINDING OF COMMISSIONER OF INCOME TAX (APPEALS) IN ASSESSMENT YEAR 2005 - 06 IS SET ASIDE THEN THIS ORDER WILL BE RECALLED, SUBJECT TO ABOVE OBSERVATION, T HIS APPEAL OF THE REVENUE IS DISMISSED. ORDER P R ONOUNCED IN THE OPEN COURT ON 12 - 06 - 2015 SD/ - SD/ - ( N.S. SAINI ) ( RAJPAL YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 12 /06 /2015 AK / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ( ,