DCIT, Chatrapatti V. M/s. Abhinitha Foundation Pvt. ltd., CHENNAI

ITA 3037/CHNY/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 4291 (ITAT-CHENNAI)
• Duration Of Justice: 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 15-06-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 27-10-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: B RAMAKRISHNAN

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: CHENNAI , ! . , ' BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER , AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO.3037/MDS/2016 /ASSESSMENT YEAR: 2012-13 THE DY. COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE-1(1), CHENNAI-600 034. VS. M/S.ABHINITHA FOUNDATION PVT. LTD., NEW NO.9/OLD NO.3, RADHAKRISHNAN STREET, T. NAGAR, CHENNAI 600 017. [PAN: AAFCA 0140 F] ( & /APPELLANT) ( '(& /RESPONDENT) & ) / APPELLANT BY : MR.SASIKUMAR, JCIT '(& ) /RESPONDENT BY : MR.B.RAMAKRISHNAN, CA ) /DATE OF HEARING : 15.06.2017 ) /DATE OF PRONOUNCEMENT : 15.06.2017 / O R D E R PER GEORGE MATHAN , JUDICIAL MEMBER : ITA NO.3037/MDS/2016 IS AN APPEAL FILED BY THE REV ENUE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-1 , CHENNAI, IN ITA NO.92/CIT(A)-1/15-16 DATED 03.08.2016 FOR THE AY 20 12-13. 2. SHRI SASIKUMAR, JCIT, REPRESENTED ON BEHALF OF T HE REVENUE AND SHRI B.RAMAKRISHNAN, CA, REPRESENTED ON BEHALF OF T HE ASSESSEE. ITA NO.3037/MDS/2016 :- 2 -: 3. IT WAS SUBMITTED BY THE LD.DR THAT THE ASSESSEE HAD CLAIMED DEDUCTION U/S.80IB(10) IN RESPECT OF THE HOUSING PR OJECT WHICH HAD BEEN GRANTED APPROVAL ON 24.03.2010. IT WAS A SUBMISSIO N THAT ON APPEAL LD.CIT(A) HAD HELD THAT THE FIRST APPROVAL IN RESPE CT OF THE SAID PROJECT WAS TAKEN ON 24.10.2007. IT WAS A SUBMISSION THAT THE ORDER OF THE LD.CIT(A) WAS LIABLE TO BE REVERSED. 4. IN REPLY, THE LD.AR SUBMITTED THAT THE PROJECT V IKAS HILL VIEW WAS ORIGINALLY APPROVED BY THE CMDA ON 24.10.2007 FOR T HE CONSTRUCTION OF 57 RESIDENTIAL UNITS. IT WAS A SUBMISSION THAT AS 57 RESIDENTIAL UNITS WERE LARGER IN SIZE, IT WAS NOT ENTITLED TO THE DEDUCTIO N U/S.80IB(10). SUBSEQUENTLY, THE PROJECT WAS MODIFIED AND THE MODI FIED DRAWINGS WERE GIVEN APPROVAL BY THE CMDA ON 24.03.2010. IT WAS A SUBMISSION THAT FOR THE AY 2010-11, THE ASSESSEE HAD CLAIMED DEDUCTION U/S.80IB(10) AND THE LD.CIT(A) HAD DIRECTED THE AO TO GRANT THE ASSESSE E THE BENEFIT OF DEDUCTION U/S.80IB(10) AFTER VERIFICATION OF THE IS SUE IN RESPECT OF THE COMMERCIAL SPACE. IT WAS A SUBMISSION THAT FOR THE AY 2011-12 ALSO, THE HONBLE JURISDICTIONAL HIGH COURT OF MADRAS VIDE OR DER DATED 06.06.2017 IN TAX CASE (A) NO.811/2016 CONFIRMED THE ACTION OF THE TRIBUNAL IN RESTORING THE ISSUE TO THE FILE OF THE AO FOR RE-AD JUDICATION. IT WAS A SUBMISSION THAT FOR THE RELEVANT ASSESSMENT YEAR, T HE APPROVAL HAVING BEEN GRANTED TO THE ASSESSEE BY THE CMDA ORIGINALLY ON 24.10.2007 AND ONLY THE MODIFICATIONS HAVING BEEN APPROVED ON 24.0 3.2010, THE ASSESSEE WAS ENTITLED TO THE BENEFIT OF DEDUCTION U/S.80IB(1 0) IN VIEW OF THE ITA NO.3037/MDS/2016 :- 3 -: EXPLANATION TO SEC.80IB(10). IT WAS A SUBMISSION T HAT THE ORDER OF THE LD.CIT(A) WAS LIABLE TO BE CONFIRMED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IT IS NOTICED THAT THE ASSESSEE HAS CLAIMED THE DEDUCTION U/S.80IB(10) IN RESPECT OF THE SAME PROJECT RIGHT FROM THE AY 2010-11. FOR THE AYS 201 0-11 & 2011-12, THE ISSUE IN RESPECT OF THE CLAIM OF DEDUCTION U/S.80IB (10) HAS BEEN RESTORED TO THE FILE OF THE AO FOR RE-ADJUDICATION. HERE, I T MUST BE MENTIONED THAT FOR THE AY 2010-11, THE ISSUE HAS BEEN RESTORED TO THE FILE OF THE AO FOR VERIFICATION OF THE COMMERCIAL SPACE. FOR THE AY 2 011-12, THE ISSUE HAS BEEN RESTORED BY THE TRIBUNAL AGAIN ON THE GROUND T HAT THE RELEVANT MATERIAL, ON THE BASIS OF WHICH, THE CLAIM IS MADE BY THE ASSESSEE COMPANY WAS NOT AVAILABLE. FOR THE AY UNDER APPEAL , IT IS NOTICED THAT THE LD.CIT(A) HAS RESTORED THE ISSUE OF THE DEDUCTION U /S.80IB(10) TO THE FILE OF THE AO IN RESPECT OF THE ISSUE OF THE COMMERCIAL SPACE, THOUGH, HE HAS HELD THAT THE APPROVAL TAKEN FIRST ON 24.10.2007 IS TO BE TAKEN AS THE REQUISITE APPROVAL FOR THE DEDUCTION U/S.80IB(10). THIS BEING SO, AS THE ISSUE OF COMPUTATION OF DEDUCTION U/S.80IB(10) ITSE LF IS RESTORED TO THE FILE OF THE AO FOR RE-ADJUDICATION IN RESPECT OF THE ISS UE OF THE COMMERCIAL SPACE, WE ARE OF THE VIEW THAT EVEN THE ISSUE OF AP PROVAL IS TO BE RESTORED TO THE FILE OF THE AO FOR RE-ADJUDICATION. THIS IS BECAUSE ADMITTEDLY THERE ARE TWO APPROVALS ONE DATED 24.10.2007 AND OTHER DA TED 24.03.2010. THE AO HAS NOT EXAMINED AS TO WHETHER THE APPROVAL DATED 24.03.2010 IS A TOTALLY NEW APPROVAL OR WHETHER IT IS MODIFICATIO N OF THE EARLIER APPROVAL ITA NO.3037/MDS/2016 :- 4 -: GRANTED ON 24.10.2007? THIS WOULD HAVE TO BE VERIF IED AFTER TAKING INTO CONSIDERATION THE DETAILS OF THE APPLICATION MADE B EFORE THE CMDA AS ALSO AFTER VERIFYING WITH THE CMDA AS TO WHETHER THE APP ROVAL DATED 24.10.2007 HAS BEEN WITHDRAWN OR MODIFIED? THIS BE ING SO, THE ISSUE IS RESTORED TO THE FILE OF THE AO FOR RE-ADJUDICATION AFTER GRANTING THE ASSESSEE ADEQUATE OPPORTUNITY TO SUBSTANTIATE HIS C ASE. 6. IN THE RESULT, THE APPEAL FILED BY REVENUE IS A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON JUNE 15, 201 7, AT CHENNAI. SD/- SD/- ( . ) ( A. MOHAN ALANKAMONY ) ! /ACCOUNTANT MEMBER ( ) (GEORGE MATHAN) ! /JUDICIAL MEMBER /CHENNAI, 1 /DATED: JUNE 15, 2017. TLN ) '23 43 /COPY TO: 1. & /APPELLANT 4. 5 /CIT 2. '(& /RESPONDENT 5. 3 ' /DR 3. 5 ( ) /CIT(A) 6. /GF