The ITO, Ward-1(3), RAJKOT-GUJARAT V. Kalpataru Sthapatya Pvt. Ltd., RAJKOT-GUJARAT

ITA 28/RJT/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7328 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 13-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Assessee Lawyers: JC RANPARA
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT BEFORE SHRI A.L. GEHLOT (AM) AND SHRI N.R.S. GANESA N (JM) I.T.A. NO.28/RJT/2010 (ASSESSMENT YEAR 2006-07) ITO, WD.1(3) VS KALPATARU STHAPATYA PVT LTD RAJKOT KALAMANDIR APARTMENT 27/38, NEW JAGNATH PLOT RAJKOT PAN : AABCK5549G (APPELLANT) (RESPONDENT) REVENUE BY : SHRI AVINASH KUMAR ASSESSEE BY : SHRI JC RANPARA O R D E R PER N.R.S. GANESAN, JM THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER OF CIT(A)-I, RAJKOT DATED 22-10-2009 AND PERTAINS TO ASSESSMENT YEAR 20 06-07. 2. THE ONLY ISSUE ARISES FOR CONSIDERATION IS DEDUC TION U/S 80IB(10) OF THE INCOME-TAX ACT, 1961. 3. WE HEARD SHRI AVINASH KUMAR THE LEARNED DEPARTME NTAL REPRESENTATIVE AND SHRI JC RANPURA, THE LEARNED COUNSEL FOR THE AS SESSEE. SHRI AVINASH KUMAR, THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBM ITTED THAT THE CIT(A) ALLOWED THE CLAIM OF THE ASSESSEE SUBJECT TO VERIFI CATION BY THE ASSESSING OFFICER. THE DIRECTION OF THE CIT(A) WOULD TANTAMOUNT TO SET TING ASIDE THE ORDER OF ASSESSMENT FOR RECONSIDERATION WHICH IS BEYOND THE JURISDICTION OF THE APPELLATE COMMISSIONER. ACCORDING TO THE LEARNED DEPARTMENTA L REPRESENTATIVE, THE CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFF ICER. ITA NO.28/RJT/2010 2 4. ON THE OTHER HAND, SHRI JC RANPURA SUBMITTED THA T THE ISSUE OF DEDUCTION U/S 80IB(10) WAS CONSIDERED BY THE SPECIAL BENCH OF THIS TRIBUNAL AT PUNE IN BRAHMA ASSOCIATES VS JCIT 122 TTJ 432 AND IT WAS HE LD THAT IF THE COMMERCIAL AREA IN THE PROJECT DOES NOT EXCEED MORE THAN 10% O F THE BUILT UP AREA THEN THE ASSESSEE IS ENTITLED FOR DEDUCTION U/S 80IB OF THE ACT. THEREFORE, THERE IS NO NEED FOR ANY VERIFICATION BY THE ASSESSING OFFICER AND THE ASSESSING OFFICER WAS IN FACT NOT DIRECTED BY CIT(A) TO VERIFY ANY OF THE FA CTUAL ASPECT. THE LEARNED REPRESENTATIVE FOR THE ASSESSEE HAS ALSO PLACED REL IANCE ON THE DECISION OF THIS TRIBUNAL IN ITO VS NANDANVAN BUILDERS IN ITA NO.127 /RJT/2008. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSION ON EITHE R SIDE AND HAVE ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ASSE SSING OFFICER FOUND THAT THE SHOPS AND OTHER COMMERCIAL ESTABLISHMENTS INCLUDED IN THE HOUSING PROJECT IS ABOUT 7.96%. THE CIT(A) AFTER FOLLOWING THE DECISI ON OF THE SPECIAL BENCH OF THIS TRIBUNAL IN BRAHMA ASSOCIATES VS JCIT (SUPRA) FOUND THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S 80IB(10) SINCE THE COMMERCIAL ARE A IS LESS THAN 10% OF THE TOTAL PROJECT. WE HAVE ALSO CAREFULLY GONE THROUGH THE D ECISION OF THIS TRIBUNAL IN ITO VS NANDANVAN BUILDERS (SUPRA). THIS TRIBUNAL, AFTE R FOLLOWING THE JUDGMENT OF THE BOMBAY HIGH COURT IN BRAHMA ASSOCIATES (SUPRA) FOUN D THAT ONCE THE HOUSING PROJECT WAS APPROVED BY THE LOCAL AUTHORITY, THE AS SESSEE IS ELIGIBLE FOR DEDUCTION U/S 80 IB(10). SINCE THE COMMERCIAL AREA ADMITTEDL Y DOES NOT EXCEED 10% OF THE TOTAL PROJECT, BY FOLLOWING THE DECISION OF THE SPE CIAL BENCH OF THIS TRIBUNAL IN BRAHMA ASSOCIATES (SUPRA) AND THE DECISION OF THIS TRIBUNAL IN NANDANVAN BUILDERS (SUPRA) WE UPHOLD THE ORDER OF LOWER AUTHO RITY. 6. COMING TO THE CONTENTION OF THE LEARNED DEPARTME NTAL REPRESENTATIVE THAT THE CIT(A) HAS NO POWER TO SET AIDE THE MATTER; NO DOUBT, THE CIT(A) HAS NO POWER TO REMAND THE MATTER. WE FIND THAT THE CIT(A) HAS NOT REMANDED THE MATTER, BUT HAS DECIDED THE MATTER HIMSELF. THEREF ORE, WE DO NOT FIND ANY JUSTIFICATION IN THE CONTENTION OF THE LEARNED DEPA RTMENTAL REPRESENTATIVE. ITA NO.28/RJT/2010 3 7. IN VIEW OF THE ABOVE, APPEAL OF THE REVENUE IS D ISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31-03-2011. SD/- SD/- (A.L. GEHLOT) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER RAJKOT, DT : 31 ST MARCH, 2011 PK/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A)-I, RAJKOT 4. THE CIT-I, RAJKOT 5. THE DR (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, RAJKOT