The ITO, Ward-2(2)(5), Ahmedabad V. M/s. Sujal Developers, Ahmedabad

ITA 3276/AHD/2016

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8643 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2007-2008
• Appeal Filed On: 06-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH (BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) ITA. NO: 3276/AHD/2016 (ASSESSMENT YEAR: 2007-08) THE INCOME TAX OFFICER, WARD-2(2)(5), AHMEDABAD V/S M/S. SUJAL DEVELOPERS, 41, SANSKARBHARTI SOCIETY, ANKUR ROAD, NARANPURA, AHMEDABAD-380013 (APPELLANT) (RESPONDENT) PAN: AAMFM1427H APPELLANT BY : SHRI MUDIT NAGPAL, SR. D. R. RESPONDENT BY : SHRI BHARAT SHAH, A.R. ( )/ ORDER DATE OF HEARING : 17 -10-201 8 DATE OF PRONOUNCEMENT : 21-12-2018 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-5, AHMEDABAD DATED 09.09.2016 PERTAINING TO A.Y. 2007- 08 AND THAT LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE DISAL LOWANCE U/S. 80IB(10) OF THE ITA NO. 3276 /AHD/2016 . A.Y. 2007- 08 2 ACT AMOUNTING TO RS. 1,37,07,361/- WITHOUT APPRECIA TING THE FACTS OF THE CASE AND THE MATERIAL BROUGHT ON RECORD. 2. IN THIS CASE, ASSESSMENT U/S. 143(3) WAS PASSED ON 24.12.2009 REJECTING THE CLAIM MADE BY THE ASSESSEE U/S.80IB(10) OF THE ACT. THEREAFTER THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A) AND THE LD. CIT( A) VIDE ORDER DTD. 28.10.2010 DISMISSED THE APPEAL OF THE ASSESSEE. THE ASSESSEE CAME IN APPEAL BEFORE THE HON'BLE ITAT, AHMEDABAD AND THE ITAT VIDE ORDER DTD . 28.03.2016 SET ASIDE THE ORDER OF THE CIT(A) AND RESTORED THE MATTER BAC K TO THE FILE OF THE CIT(A) TO DECIDE ON MERITS. THE RELEVANT PORTION OF THE HO N'BLE ITAT ORDER IS REPRODUCED AS UNDER : 9. BEFORE US, AT THE OUTSET, BOTH THE PARTIES SUBM ITTED THAT GROUNDS RAISED I THE PRESENT APPEAL OF ASSESSEE ARE IDENTICAL TO THAT OF GROUNDS RAISED IN ASSESSEE'S APPEAL IN A.Y. 2006-07 AND THE SUBMISSION MADE THEM WHILE ARGUING THE APPEAL FOR A, Y. 2006-07 ARE ALSO APPLICABLE TO THE GROUND S RAISED IN A. Y. 2007-08. IN VIEW OF THE AFORESAID SUBMISSIONS MADE BEFORE US BY BOTH THE PARTIES, WE FOR THE REASONS AS STATED HEREINABOVE WHILE DECIDING THE GR OUNDS FOR A.Y. 2006-07 AND FOR SIMILAR REASONS ALLOWED THE APPEAL OF ASSESSEE FOR A. Y. 2007-08. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE FOR A .Y. 2007-08 IS ALLOWED FOR STATISTICAL PURPOSES. 11. IN THE RESULT BOTH THE APPEALS OF ASSESSEE AR E ALLOWED FOR STATISTICAL PURPOSES.' 3. IN PURSUANT TO THE ITAT DIRECTIONS, LD. CIT(A) GRAN TED RELIEF TO THE ASSESSEE AMOUNTING TO RS. 1,37,07,361/-. 4. NOW DEPARTMENT HAS COME IN APPEAL BEFORE US. ITA NO. 3276 /AHD/2016 . A.Y. 2007- 08 3 5. AS WE CAN SEE, SOLITARY ISSUE IN THIS APPEAL IS DED UCTION U/S. 80IB(10) OF THE ACT. THE ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF DEVELOPING HOUSING PROJECT. ASSESSEE FILED ITS RETURN OF INCOM E FOR ASSESSMENT YEAR 2006- 07 ON 05.10.2006 DECLARING TOTAL INCOME OF RS. NIL CLAIMING DEDUCTION OF RS. 46,40,938/- U/S. 80IB(10) OF THE ACT. THEREAFTER, T HE CASE WAS SELECTED FOR SCRUTINY AND LD. A.O. REFUSED TO GIVE BENEFIT OF SE CTION 80IB(10) DETERMINED TOTAL INCOME OF RS. 46,40,940/-. 6. THE ASSESSING OFFICER MAIN CONTENTION WAS THAT ASSE SSEE IS NOT THE OWNER OF THE LAND ON WHICH THE DEVELOPMENT IS MADE AND HAS A CTED AS AN AGENT OF THE CONTRACTOR. AND LOWER AUTHORITIES ALSO DISALLOWED T HE CLAIM OF THE ASSESSEE THAT HE FAILED TO PROVIDE THE CERTIFICATE FROM THE AHMED ABAD URBAN DEVELOPMENT AUTHORITY (AUDA) WHICH CERTIFIED THAT ASSESSEE IS E NTITLED FOR BENEFIT OF U/S. 80IB(10). 7. AS WE CAN SEE, THE ASSESSEE GOT PERMISSION OF AUDA ON 26.02.2007 FOR 30 UNITS COPY OF THE SAME IS ENCLOSED AT PAGE NO. 193 OF THE PAPER BOOK IN WHICH PLOT AREA AND OTHER DETAILS ARE MENTIONED AND ASSE SSEE ALSO FILED A CERTIFICATE FROM DISTRICT VALUATION OFFICER OF THE DEPARTMENT W HO ALSO CONFIRMED THAT BUILT UP AREA OF EACH UNIT DOES NOT EXCEED 1500 SQ . FT. AND ALSO CERTIFIED THAT PERMISSIBLE FSI WAS FOR 15909.73 SQ. MT. AND FSI U TILIZED ONLY 5686.74 SQ. MT. MEANING THEREBY, ASSESSEE HAS UTILIZED LESS FSI AND IN SUPPORT OF ITS CONTENTION, LD. A.R. HAS CITED A JUDGMENT OF GUJARAT HIGH COUR T IN THE MATTER OF CIT VS. RADHE DEVELOPERS [2012] 341 ITR 483 (GUJ.) WHEREIN IT HAS BEEN HELD: ITA NO. 3276 /AHD/2016 . A.Y. 2007- 08 4 8. IN VIEW OF THE ABOVE, WE HOLD THAT ASSESSEE IS ELIG IBLE FOR DEDUCTION U/S. 80IB(10) OF THE ACT AND AFTER GOING THROUGH THE IMP UGNED ORDER. WE ARE OF THE CONSIDERED OPINION, THAT LD. CIT(A) HAS PASSED DETA ILED AND REASONED ORDER AND SAME DOES NOT REQUIRE ANY KIND OF INTERFERENCE AT O UT END. 9. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DISMI SSED. ORDER PRONOUNCED IN OPEN COURT ON 21- 12- 2018 SD/- SD/- (PRADIP KUMAR KEDIA) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 21/12/2018 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.REGISTRAR ITAT,AHME DABAD