The ITO, Ward-9(2), Ahmedabad V. M/s. Golden Developers, Ahmedabad

ITA 2705/AHD/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94739 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 02-12-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 03-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ANIL BRAHSHATRIYA
• Keywords: Rule of consistency

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH AHMEDABAD BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER. ITA. NO.2705/AHD/2012 (ASSESSMENT YEARS:2007-08) I.T.O., WARD-9(2), AHMEDABAD APPELLANT VS. M/S. GOLDEN DEVELOPERS 1, LUV KUSH BUNGLOWS, NEAR ST. MARY SCHOOL, NARODA, AHMEDABAD - 380025 RESPONDENT PAN: AAGFG1468G /BY APPELLANT : MS. SANYOGITA NAGPAL, SR. D.R. /BY RESPONDENT : SHRI ANIL BRAHSHATRIYA, A.R. /DATE OF HEARING : 02.12.2015 /DATE OF PRONOUNCEMENT :04.12.2015 ORDER PER RAJESH KUMAR, A.M: THIS APPEAL FILED BY THE REVENUE IS AGAINST THE ORD ER OF CIT(A)-XV, AHMEDABAD, DATED 20 TH SEPTEMBER, 2012 FOR A.Y. 2007-08 ON FOLLOWING GROUNDS: 1). THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV, AHMEDABAD HAS ERRE D IN LAW AND ON FACTS IN DELETING THE PENALTY OF RS.16,28,646/- LEVIED U/S.271(1)(C) OF THE ACT. 2 ITA NO.2705/ AHD/ 2012 (ITO VS. M/S. GOLDEN DEVEL OPERS), A.Y. 07-08 2). ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. COMMISSI ONER OF INCOME-TAX (APPEALS)-XV, AHMEDABAD OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 2. THE ONLY GROUND RAISED BY THE REVENUE IS AGAINST THE DELETION OF PENALTY OF RS.16,28,646/- LEVIED U/S.271(1)(C) BY T HE CIT(A). 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E WAS ENGAGED IN THE BUSINESS OF DEVELOPERS OF PROPERTIES AND DURING TH E YEAR FILED RETURN OF INCOME ON 09.10.2007 DECLARING AN INCOME OF RS.11,0 00/- AFTER CLAIMING DEDUCTION U/S.80IB(10) AMOUNTING TO RS.48,38,518/-. THE LD. A.O. FRAMED ASSESSMENT U/S.143(3) VIDE ORDER DATED 23.12.2009 A ND DETERMINED THE INCOME AT RS.48,49,518/- BY DISALLOWING THE ASSESSE ES CLAIM U/S.80IB(10) OF THE ACT ON THE GROUND THE ASSESSEE DID NOT SATISFY THE CONDITIONS LAID DOWN IN SECTION 80IB(10) SUCH AS THAT ASSESSEE WAS NOT BOTH DEVELOPER AND BUILDER AS REQUIRED BY THE PROVISION OF SECTION 80IB(10) AS TH E ASSESSEE WAS NOT OWNER OF THE LAND AND THE APPROVAL WAS NOT ISSUED BY THE LOCAL AUTHORITIES. ASSESSEE WAS ONLY ENGAGED TO DEVELOP THE PROPERTY BY M/S. LU VKUSH BUNGLOWS (NARODA) CO-OP. HOUSING SOCIETY LTD. IN THE QUANTU M APPEAL, THE LD. CIT(A) VIDE ORDER DATED 31.12.2010 UPHELD THE REJEC TION OF CLAIM OF THE ASSESSEE OF RS.48,38,518/- MADE U/S.80IB(10) OF TH E ACT. THE LD. A.O. LEVIED PENALTY OF RS.16,28,646/- BY HOLDING THAT TH E ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME WITHIN THE MEANING OF SECTION 271(1)(C) OF THE ACT. 4. THE LD. CIT(A) DELETED THE PENALTY BY RELYING O N THE VARIOUS DECISIONS AS REFERRED TO IN PARA 5 OF THE CIT(A) ORDER. THE LD. D.R. RELIED ON THE ORDER OF A.O. AND SUBMITTED BEFORE US TO RESTORE THE SAME . THE LD. A.R., ON THE OTHER HAND, SUBMITTED THAT THE QUANTUM ADDITION ON THE BASIS OF WHICH THE PENALTY WAS LEVIED STAND DELETED BY THE TRIBUNAL VI DE ITA NO. 3 ITA NO.2705/ AHD/ 2012 (ITO VS. M/S. GOLDEN DEVEL OPERS), A.Y. 07-08 496/AHD/2011, A.Y. 2007-08, ORDER DATED 13.11.2014 AND THEREFORE, ARGUED THAT PENALTY HAD TO BE DELETED. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT THE QUANTUM ADDITION HAS BEEN DELETED BY THE TRIBUNAL BENCH D BY DECIDING THE APPEAL IN FAVOUR OF ASSES SEE IN ITA NO.496/AHD/2011, A.Y. 2007-08 BY ORDER DATED 13.11 .2014, THE RELEVANT PARA 4.2 IS REPRODUCED BELOW: 4.2. THE CONTENTION OF THE ASSESSEE IS THAT IN EARLIER YEARS CLAIM OF THE ASSESSEE WAS ALLOWED BY THE DEPARTMENT IN SCRUTINY ASSESSMENT. THE LD.COUNSEL FOR THE ASSESSEE HAS DRAWN OUR ATTENTION TOWARDS PAGE-7 OF THE PAPER-BOOK, WHEREIN THE ASSESSMENT ORDER PERTAINING TO THE AY 2005-06 IS ENCLOSED. THE AO HAS ALLOWE D THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S.80-IB(10) OF THE ACT. AT PAGE NO.10 OF THE PAPER-BOOK IS ENCLOSED THE ASSESSMENT PERTAINING TO THE AY 2006-07, WHEREI N ALSO THE AO ALSO ALLOWED THE CLAIM OF THE ASSESSEE OF DEDUCTION U/S.80IB( 10) OF THE ACT. FACTS ARE IDENTICAL AND PROJECT IS ALSO SAME AND THE REVENUE HAS NOT POINTED OUT AS TO HOW THE CLAIM THAT WAS ALLOWED IN EARLIER YEARS AND ITA NO.496 /AHD/2011 M/S.GOLDEN DEVELOPERS VS. ITO (OSD) ASST.YEAR - 2007-08 UNDER THE SAME FACTS AND CIRCUMSTANCES WOULD BE DISALLOWABLE IN THE YEAR UNDER CONSIDERATION. IT IS SETTLED POSITION OF LAW THAT EVERY YEAR IS AN INDE PENDENT YEAR, HOWEVER, THE RULE OF CONSISTENCY IS TO BE ADOPTED BY THE REVENUE AUTHORIT Y WHILE FRAMING THE ASSESSMENT. IN THE PRESENT CASE, THE REVENUE HAS NOT BROUGHT OUT ANY NEW MATERIAL ON THE BASIS OF WHICH A DIFFERENT VIEW HAS BEEN TAKEN FOR THE YEAR UNDER CONSIDERATION. IF THE ASSESSEE WAS 'DEVELOPER' IN THE EARLIER Y EARS, IT WOULD REMAIN SO IN THE FOLLOWING YEARS UNLESS A NEW MATERIAL COMES TO NOTICE OF AO OR OTHERWISE WHICH WAS AVAILABLE ON RECORD BUT WAS NOT CONSIDERED IN EARLIER Y EARS. NOWHERE IN THE ORDERS OF THE AUTHORITIES BELOW THIS FACT HAS BEEN RECOR DED. THEREFORE, IN OUR CONSIDERED VIEW, THE REVENUE WAS NOT JUSTIFIED IN RE JECTING THE CLAIM FOR DEDUCTION U/S.80IB(10) OF THE ACT IN THIS YEAR. IT IS ALSO NO TEWORTHY THAT THE AUTHORITIES BELOW HAVE NOT RECORDED ANY FINDING AS TO WHAT WAS THE REMUNERATION FIXED BY THE CONTRACT AND HOW THE SUBMISSION OF THE ASSESSEE THAT IT WAS BEARING ALL RISKS AND CONSEQUENCES ARISING FROM THE CONTRACT WERE NOT CORRECT. IN FACT, THE AO HAS STATED THESE STIPULATIONS ARE ONLY INTENDED TO MAKE THE SOCIETY TOOTHLESS BUT THEY CANNOT CONVERT BY ANY STRETCH OF IMAGINATION AN AGREEMENT F OR CONSTRUCTION INTO A CONVEYANCE DEED IN THE EYES OF THE LAW. IT IS NOT DIS PUTED THAT SUCH TERMS AND CONDITIONS WERE IN THE AGREEMENT IN THE EARLIER YEARS ALSO. ON THE BASIS OF SUCH TERMS THE ASSESSEE WAS FOUND TO HAVE FULFILLED THE CONDIT IONS AS ENVISAGED U/S.80IB(10) OF THE ACT. IN OUR CONSIDERED VIEW, THE CONSTRUCTI ON OF ANY AGREEMENT CANNOT BE DIFFERENT IN TWO DIFFERENT ASSESSMENT YEARS, THER EFORE THE ORDERS OF THE AUTHORITIES BELOW REJECTING THE CLAIM OF DEDUCTION U/S.80-IB( 10) OF THE ACT CANNOT BE CONFIRMED, MORE ITA NO.496 /AHD/2011 M/S.GOLDEN DEVELOPERS VS. ITO (OSD) ASST.YEAR - 2007-08 PARTICULARLY IN THE LIGHT OF THE JUDGEM ENT OF THE HON'BLE GUJARAT HIGH COURT RENDERED IN THE CASE OF CIT VS. RADHE DEVELOPER S REPORTED AT (2012) 341 ITR 403 (GUJ.) AND FOLLOWED SUBSEQUENTLY IN A SERIES OF 4 ITA NO.2705/ AHD/ 2012 (ITO VS. M/S. GOLDEN DEVEL OPERS), A.Y. 07-08 DECISIONS OF THIS TRIBUNAL. THUS, THIS SOLE GROUND OF THE ASSESSEE'S APPEAL I S ALLOWED AND THE DISALLOWANCE MADE BY THE AO IS HEREBY DELETED. IN VIEW OF THE DECISION IN QUANTUM APPEAL, WE DISMI SS THE APPEAL FILED BY THE REVENUE. 6. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSE D. PRONOUNCED IN THE OPEN COURT ON THIS THE 04 TH DAY OF DECEMBER, 2015. SD/- SD/- (SHAILENDRA KUMAR YADAV) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 04/12/2015 TRUE COPY / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE $ %&%'( ) / CONCERNED CIT 4 )- / CIT (A) , -./ 00'(1 '( 1 23& / DR, ITAT, AHMEDABAD 4 /56 / GUARD FILE. BY ORDER / 1 / 2 % '( 1 23&