The ITO, Ward-9(1), Ahmedabad V. M/s. Vishal Construction Co., Ahmedabad

ITA 2861/AHD/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 72852 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 2 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-01-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 06-01-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 13-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J P JHANGID
• Assessee Lawyers: ABHIMANYU SINGH BHATI
• Section: 143(3); 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL C HATURVEDI, A.M.) I.T. A. NO. 2861/AHD/2010 (ASSESSMENT Y EAR: 2007-08) I.T.O. WARD 9 (1), AHMEDABAD V/S M/S VISHAL CONSTRUCTION CO., UMIYA DUPLEX, OPP. SWAMINARAYAN TEMPLE, NIRANT CHOWKADI, VASTRAL, AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AAEFV9476H APPELLANT BY : SHRI J.P. JHANGID, SR, D.R . RESPONDENT BY : SHRI ABHIMANYU SINGH BHATI. ( )/ ORDER DATE OF HEARING : 06-01-201 4 DATE OF PRONOUNCEMENT : 10 -01-2014 PER SHRI ANIL CHATURVEDI,A.M. 1. THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORD ER OF CIT(A)-XV, AHMEDABAD DATED 11.08.2010 FOR A.Y. 2007-08. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 3. ASSESSEE IS A FIRM ENGAGED IN THE BUSINESS OF CONST RUCTION OF HOUSING PROJECT. ASSESSEE ELECTRONICALLY FILED ITS RETURN O F INCOME FOR A.Y. 07-08 ON 29.10.2007 DECLARING TOTAL INCOME AT RS. NIL AFT ER CLAIMING DEDUCTION ITA NO 2861/AHD/2010 . A.Y. 2007-0 8 2 OF RS. 23,88,757/- U/S. 80IB(10) OF THE ACT. THE C ASE WAS SELECTED FOR SCRUTINY AND THEREAFTER THE ASSESSMENT WAS FRAMED U NDER SECTION 143(3) VIDE ORDER DATED 24.12.2009 AND THE TOTAL INCOME WA S DETERMINED AT RS. 23,88,760/-. AGGRIEVED BY THE ORDER OF A.O, ASSESS EE CARRIED THE MATTER BEFORE CIT(A). CIT(A) VIDE ORDER DATED 11 TH AUGUST, 2010 ALLOWED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE AFORESAID ORDER OF CIT(A), THE REVENUE IS NOW IN APPEAL BEFORE US AND HAS RAISED T HE FOLLOWING GROUND:- 1. THE LD. CIT(A)-XV, AHMEDABAD HAS ERRED IN LAW AN D ON FACTS IN DELETING THE DISALLOWANCE AMOUNTING TO RS. 23,88,757/- MADE BY THE ASSESSING OFFICER U/S. 80IB(10) OF THE ACT. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, A.O. N OTICED THAT ASSESSEE HAS SHOWN NET PROFIT OF RS. 23,83,407/- AND HAD CLA IMED DEDUCTION AT 100% OF ITS TOTAL PROFIT UNDER SECTION 80IB(10) OF THE ACT. A.O. WAS OF THE VIEW THAT ASSESSEE IS NOT ELIGIBLE FOR DEDUCTIO N UNDER SECTION 80IB(10) OF THE ACT FOR THE REASON THAT THE ASSESSE E IS NOT BOTH DEVELOPER AND BUILDER AS REQUIRED BY THE PROVISIONS OF 80IB(1 0). HE ALSO NOTICED THAT ASSESSEE HAD ENTERED INTO THE PROJECT BY DEVEL OPMENT AGREEMENT WITH THE LAND OWNERS AND THE CONSTRUCTION WAS DONE AS PER THE AGREEMENT AND THEREFORE ACCORDING TO A.O. THE ASSESSEE WAS ME RELY A CONTRACTOR FOR THE PURPOSES OF CONSTRUCTION OF THE PROJECT. HE ALS O NOTICED THAT ASSESSEE HAD NOT SOLD ANY UNIT TO THE PURCHASER BUT THE SOCI ETY HAD EXECUTED THE SALE DEEDS AS A SELLER AND THE ASSESSEE HAD JOINED ONLY AS A CONFIRMING PARTY TO THE TRANSACTION. HE ALSO NOTICED THAT THE BUILT UP AREA OF EACH UNIT CONSTRUCTED IN TYPE C AND A COMES TO 1889.4 SQ. FT. AND 1537.60 SQ. FT. RESPECTIVELY WHICH EXCEEDS THE LIMIT OF 1500 SQ . FT. SPECIFIED UNDER 80IB(10) OF THE ACT. HE THEREFORE CONCLUDED THAT AS SESSEE HAS FAILED TO SATISFY THE CONDITIONS LAID DOWN UNDER SECTION 80IB (10) OF THE ACT AND ITA NO 2861/AHD/2010 . A.Y. 2007-0 8 3 THEREFORE THE ASSESSEE WAS NOT ELIGIBLE FOR ANY DED UCTION. HE ACCORDINGLY DISALLOWED THE CLAIM OF DEDUCTION U/S. 80IB OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF A.O, ASSESSEE CARRIED THE MATTER BEFORE CIT(A). CIT(A) FOLLOWING THE ORDER OF PREDECESSOR F OR A.Y. 06-07 ALLOWED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY T HE AFORESAID ORDER OF CIT(A) REVENUE IS NOW IN APPEAL BEFORE US. 5. BEFORE US, AT THE OUTSET THE LD. A.R. SUBMITTED THA T THE FACTS OF THE CASE IN THE YEAR UNDER APPEAL ARE IDENTICAL TO THAT OF CASE OF THE ASSESSEE FOR A.Y. 06-07. HE FURTHER SUBMITTED THAT ON IDENTICAL FACTS, THE HONBLE TRIBUNAL IN ITA NO. 1412/AHD/2010 ORDER DATED 23.03 .2012 FOR A.Y. 06-07 HAS ALLOWED THE APPEAL OF THE ASSESSEE. HE PL ACED ON RECORD THE COPY OF THE AFORESAID ORDER. HE THEREFORE SUBMITTED THAT SINCE THE FACTS OF THE CASE THE YEAR UNDER APPEAL ARE IDENTICAL TO THA T OF A.Y. 06-07 AND SINCE IN A.Y. 06-07 THE APPEAL OF THE ASSESSEE HAS BEEN ALLOWED, THE PRESENT APPEAL OF THE REVENUE NEEDS TO BE DISMISSED . HE THUS SUPPORTED THE ORDER OF CIT(A). THE LD. D.R. ON THE OTHER HAND SUPPORTED THE ORDER OF A.O. AND SUBMITTED THAT CIT(A) WHILE ALLOWING TH E APPEAL HAS NOT GIVEN ANY FINDING WITH RESPECT TO THE COMPLIANCE OF CONDITIONS OF THE REQUIREMENT UNDER SECTION 80IB(10) OF THE ACT BY TH E ASSESSEE. HE THUS SUPPORTED THE ORDER OF A.O. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. BEFORE US, THE LD. A.R. HAD SUBMITTED THAT THE FACT S OF THE CASE OF THE YEAR UNDER APPEAL ARE IDENTICAL TO THAT OF A.Y. 06-07 AN D IN A.Y. 06-07 THE APPEAL OF THE REVENUE WAS DISMISSED AND THUS THE IS SUE OF DEDUCTION HAS ATTAINED FINALITY. THESE FACTS OF THE ASSESSEE HAS NOT CONTROVERTED BY ITA NO 2861/AHD/2010 . A.Y. 2007-0 8 4 REVENUE. WE FIND THAT IN A.Y. 06-07, THE CO-ORDINAT E BENCH OF TRIBUNAL IN APPEAL ITA NO. 1412/AHD/2010 VIDE ORDER DATED 23 .03.2012 HAS DISMISSED THE APPEAL OF THE REVENUE BY HOLDING AS U NDER:- 5. WE HAVE CONSIDERED THE SUBMISSIONS MADE BY THE R ESPECTIVE PARTIES AND PERUSED THE RECORD AND THE ORDERS PASSED BY THE AUTHORITIES BELOW. IN THIS CASE THE ASSESSING OFFICER HAS REJECTED CLAIM OF T HE ASSESSEE FOR DEDUCTION U/S 80IB(10) OF THE ACT ON T HE GROUND THAT CONDITIONS AS PRESCRIBED ARE NOT SATISFIED UNDER THE AFOREMENTIONED PROVISIONS ARE N OT FULFILLED. IT IS TRANSPIRED FROM THE RECORDS THA T LD. CIT(A) HAS EXAMINED THE ISSUE CONDITION-WISE IN DETAIL AND HAS GIVEN A SPECIFIC FINDING THEREON. WE DO NOT FIND ANY INFIRMITY INTO THE ORDER OF LD. CIT(A). SINCE HE HAS FOLLOWED THE RATIO LAID BY THE CO-ORDINATE BENCH IN THE CASE OF SHAKTI CORPORATION IN ITA NO. 1503/AHD/2008. THE VIEW EXPRESSED IN SHAKTI CORPORATION (SUPRA) HAS NOW BEEN AFFIRMED BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. RADHE DEVELOPERS DATED 13.12.2011 P ASSED IN TAX APPEAL 546 OF 2008. THEREFORE, WE DO NOT FIND ANY INFIRMITY INTO THE IMPUGNED ORDER. 7. SINCE THE FACTS OF THE CASE THE YEAR UNDER APPEAL ARE IDENTICAL TO THAT OF 06-07 AND ARE UNDISPUTED, WE RESPECTFULLY FOLLOWING THE ORDER OF THE CO- ORDINATE BENCH IN ASSESSEES OWN CASE FOR A.Y. 06-0 7, FIND NO REASON TO INTERFERE WITH THE ORDER OF CIT(A) AND THUS DISMISS THIS GROUND OF REVENUE. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISS ED. ORDER PRONOUNCED IN OPEN COURT ON 10 - 01 - 2014. SD/- SD/- (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.RE GISTRAR ITAT,AHMEDABAD