The ITO, Ward-3(1), Baroda V. Maitree Developers, Baroda

ITA 2712/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94897 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 07-12-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 03-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K PANDAY
• Section: 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ./ ITA NO. 2712/AHD/2011 / ASSESSMENT YEAR: 2007-08 INCOME TAX OFFICER WARD-3(1) BARODA .. APPELLANT VS M/S. MAITREE DEVELOPERS 2/13, BHAGWATNAGAR SOCIETY, NEW SAMA ROAD, BARODA .. RESPONDENT PAN : AAKFM 2749 N REVENUE BY : SHRI A.K. PANDAY , SR - DR AS SESSEE(S) BY : NONE / DATE OF HEARING 07/12/2015 /DATE OF PRONOUNCEMENT 11/12/2015 / O R D E R PER SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER: THIS APPEAL FILED BY THE REVENUE IS AGAINST THE OR DER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-II, BARODA DATED 17.08.2011 FOR ASSESSMENT YEAR 2007-08, ON THE FOLL OWING GROUND:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(APPEALS) ERRED IN DIRECTING THE AS SESSING OFFICER TO ALLOW THE DEDUCTION U/S 80IB(10) R.W.S. 80IB(1) OF THE INCOME-TAX ACT TO THE ASSESSEE IN VIEW OF TH E ITA NO. 2712/AHD/2011 ITO VS. MAITREE DEVELOPERS AY 2007-08 - 2 - DECISION OF THE HONBLE ITAT IN THE CASE OF M/S. SH AKTI CORPORATION & OTHERS IN ITA NO.1503/AHD/2008 DATED 07.11.2008, WITHOUT APPRECIATING THAT THE APPROVAL BY THE LOCAL AUTHORITY AS WELL AS COMPLETION CERTIFICATE W AS NOT GRANTED TO THE ASSESSEE BUT TO THE LANDOWNER AND TH E RIGHTS AND THE OBLIGATIONS UNDER THE SAID APPROVAL WERE NOT TRANSFERABLE, AND THAT TRANSFER OF DWELLING UNI TS IN FAVOUR OF THE END-USERS WAS MADE BY THE LANDOWNER A ND NOT BY THE ASSESSEE. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS ENGAGED IN THE BUSINESS OF CONSTRUCTION AND DEVELOPMENT OF HOUSING PROJECT OF MANGALAM DUPLEX. THE ASSESSEE FILED R ETURN OF INCOME ON 25.10.2007 DECLARING TOTAL INCOME OF RS. NIL. THE ASSESSMENT U/S 143(3) WAS FRAMED ON 29.12.2009, DET ERMINING TOTAL INCOME OF THE ASSESSEE AT RS.13,20,073/-, AFT ER DISALLOWING RS.13,20,073/- U/S 80IB(10) OF THE ACT. 2.1 THE SOLITARY ISSUE BEFORE US IS WITH REGARD TO ALLOWABILITY OF SECTION 80IB(10) OF RS.13,20,073/-. THE ASSESSI NG OFFICER HAS DENIED THE SAME ON THE GROUND THAT THE ASSESSEE -FIRM WAS NOT THE OWNER OF THE LAND ON WHICH THE SAID PROJECT HAS BEEN DEVELOPED. SIMILAR ISSUE CAME UP BEFORE THE CO-ORD INATE BENCH OF THIS TRIBUNAL IN THE CASE OF M/S. RADHE DE VELOPERS & OTHERS IN ITA NO.2482/AHD/2006 AND ALSO IN THE CAS E OF ITO ITA NO. 2712/AHD/2011 ITO VS. MAITREE DEVELOPERS AY 2007-08 - 3 - VS. SHAKTI CORPORATION, BARODA IN ITA NO.1503/AHD/2 008, WHEREIN THIS ISSUE WAS DECIDED IN FAVOUR OF THE ASS ESSEE. 2.2 FOR THE YEAR UNDER CONSIDERATION, IN APPEAL, TH E CIT(A), FOLLOWING THE DECISIONS OF ITAT IN THE CASE OF M/S. RADHE DEVELOPERS & OTHERS (SUPRA) & SHAKTI CORPORATION (S UPRA), DECIDED THE ISSUE IN FAVOUR OF ASSESSEE IN RESPECT OF ISSUE OF OWNERSHIP OF LAND NOT BEING A MANDATORY CONDITION. HE FURTHER DIRECTED THE ASSESSING OFFICER TO LOOK INTO THE AGR EEMENT ENTERED INTO BY THE ASSESSEE WITH THE LANDOWNER AND DECIDE WHETHER THE ASSESSEE HAS IN FACT PURCHASED THE LAND FOR A FIXED CONSIDERATION FROM THE LANDOWNERS AND HAS DEVELOPED THE HOUSING PROJECT AT ITS OWN COST AND RISKS INVOLVED IN THE PROJECT. THE CIT(A) ALSO DIRECTED THE ASSESSING OF FICER THAT THE ASSESSING OFFICER SHOULD ALLOW THE DEDUCTION TO THE ASSESSEE U/S 80IB(10) IN CASE HE FINDS THE LAND HAS BEEN BOU GHT BY THE DEVELOPER AND THE DEVELOPER HAS ALL DOMINANT CONTRO L OVER THE PROJECT AND HAS DEVELOPED THE LAND AT HIS OWN COST AND RISKS; AND IN CASE THE ASSESSING OFFICER FINDS THAT THE DEVELOPER HAS ACTED ON BEHALF OF THE LANDOWNER AND HAS GOT A FIXE D CONSIDERATION FROM THE LANDOWNER FOR THE DEVELOPMEN T OF THE HOUSING PROJECTS, THE CLAIM OF ASSESSEE SHOULD NOT BE ALLOWED U/S 80IB(10) OF THE ACT. THESE REASONED FINDINGS, W HEREBY ITA NO. 2712/AHD/2011 ITO VS. MAITREE DEVELOPERS AY 2007-08 - 4 - CIT(A) HAS RESTORED THIS ISSUE TO THE FILE OF THE A SSESSING OFFICER AS REFERRED TO ABOVE, NEED NO INTERFERENCE FROM OUR SIDE. WE UPHOLD THE SAME. 3. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE COURT ON 11TH OF DECEMBER, 2015 AT AHMEDABAD. SD/- SD/- ( RAJESH KUMAR ) ACCOUNTANT MEMBER ( SHAILENDRA KUMAR YADAV ) JUDICIAL MEMBER AHMEDABAD; DATED 11/12/2015 *BT !'# $#! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A), 5. !'# $$ , , / DR, ITAT, AHMEDABAD 6. #() / GUARD FILE. / BY ORDER, //TRUE COPY// / (DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD