The ITO, Ward-5(1), Baroda V. M/s. Nilesh Developers, Baroda

ITA 3405/AHD/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6480 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-06-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 24-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAMIR TEKRIWA LA
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : B BENCH : AHMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA, J.M. & HONBL E SHRI A.K.GARODIA, A.M.) I.T.A. NO. 3405/AHD./2009 ASSESSMENT YEAR : 2006-2007 I.T.O., WARD-5(1), BARODA VS- NILESH DEVELOPERS, BARODA (PAN : AADFN 9846L) (APPELLANT) (RESP ONDENT) APPELLANT BY : SHRI SAMIR TEKRIWA LA, SR.D.R. RESPONDENT BY : SHRI MILIN MEHTA, A.R . O R D E R PER SHRI T.K. SHARMA, JUDICIAL MEMBER : THIS APPEAL IS FILED BY THE REVENUE AGAINST THE OR DER DATED 27-10-2009 OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-V, BARO DA DIRECTING THE AO TO VERIFY WHETHER THE DEVELOPER HAS DOMINANT CONTROL OVER THE PROJECT AND HAS DEVELOPED THE LAND AT ITS OWN COST AND RISK AND IF SO THE DEDUCTI ON U/S. 80IB(10) OF RS.34,03,905/- AS CLAIMED BY THE ASSESSEE HAS TO BE ALLOWED FOR THE A SSESSMENT YEAR 2006-07. 2. AT THE OUTSET, SHRI MILIN MEHTA, APPEARING ON BE HALF OF THE ASSESSEE, POINTED OUT THAT WITH RESPECT TO THE LIABILITY OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT, THE AO HAS DISALLOWED DEDUCTION ON THE GROUND THAT THE LAND ON WHICH THE PROJECT WAS DEVELOPED WAS NOT OWNED BY THE ASSESSEE. THE ITAT, IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2005-06, VIDE ORDER DATED 04.03.201 1 AT PAGE NO.42, IN ITA NO.1505/AHD/2010 HELD AS UNDER: 6. WE FIND THAT THE ID. CIT(A), FOLLOWING THE AFOR ESAID DECISIONS IN THE CASE OF M/S SHAKTI CORPORATION(SUPRA) & M/S RADHE DEVELOPER S (SUPRA), IN THE INSTANT CASE BEFORE US CONCLUDED THAT THE ASSESSEE HAD PURC HASED THE LAND FOR A FIXED CONSIDERATION AND THEREFORE, IN TERMS OF THE DECISI ON OF M/S SHAKTI CORPORATION WERE ELIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE ACT . THE REVENUE HAVE NOT PLACED BEFORE US ANY MATERIAL CONTROVERTING THE AFO RESAID FINDINGS OF THE ID. CIT(A) NOR BROUGHT TO OUR NOTICE ANY CONTRARY DECIS ION. IN THESE ITA NO.3405/AHD/2009 2 CIRCUMSTANCES, ESPECIALLY WHEN THE LD. CIT(A) MEREL Y FOLLOWED THE DECISIONS OF THE ITAT IN THE CASE OF M/S SHAKTI CORPORATION (SUP RA) & M/S. RADHE DEVELOPERS (SUPRA) WHILE THERE IS NO MATERIAL BEFOR E US TO TAKE A DIFFERENT VIEW IN THE MATTER, WE ARE NOT INCLINED TO INTERFERE. TH EREFORE, GROUND NOS. 1(I) TO (III), RAISED BY THE REVENUE IN THIS APPEAL ARE DIS MISSED. 2.1 IN VIEW OF THE ABOVE, THE LD. COUNSEL OF THE AS SESSEE POINTED OUT THAT SINCE IN THE ASSESSMENT YEAR 2005-06, THE ITAT, IN ASSESSEE S OWN CASE, HELD THAT IT IS ENTITLED TO DEDUCTION UNDER SECTION 80IB(10). THEREFORE, THE VIEW TAKEN BY THE LD. CIT(A) BE UPHELD. 3. ON THE OTHER HAND, SHRI SAMIR TEKRIWALA, SR. D.R ., APPEARING ON BEHALF OF THE REVENUE, COULD NOT CONTROVERT THE AFORESAID SUBMISS IONS MADE BY THE LD. COUNSEL OF THE ASSESSEE. 4. HAVING HEARD BOTH THE SIDES, WE HAVE CAREFULLY G ONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT IN PARA 4.3 OF THE IMPUGNED ORDER, THE LD. CIT(A) HELD AS UNDER: 4.3. I HAVE CAREFULLY EXAMINED THE FACTS OF THE CA SE AND PERUSED THE ARGUMENTS OF THE ASSESSING OFFICER. THE ISSUE OF DEDUCTION U/ S. 80IB (10) WAS DECIDED IN FAVOR OF THE APPELLANT AND AGAINST REVENUE BY THE O RDER OF THE JURISDICTIONAL ITAT, IN THE CASE OF RADHE DEVELOPERS VS ITO WARD 3(2) BARODA NO 2482/AHD/2006 A BENCH AHMEDABAD, HOWEVER THE DECISION WAS PARTLY MODIFIED BY THE SUBSEQUENT DECISION IN THE CASE OF ITO VS M/S. SHAKTI CORPORATION ITA NO. 1503/AHD/2008 DATED 07/11/2008 WHEREIN, THE HON'BLE ITAT HAS INDICATED THAT THE BENEFIT UNDER 80IB(10) WOULD BE AVAILABLE IF THE DEVELOPER HAS DOMINANT CONTROL OVER THE PROJECT AND HAS DEVELOPED THE LAND AT ITS OWN COST AND RISK AND THE BENEFIT WOULD BE DENI ED IF THE ASSESSEE HAD ENTERED INTO AN AGREEMENT FOR A FIXED REMUNERATION AS A CONTRACTOR TO CONSTRUCT OR DEVELOP THE PROJECT ON BEHALF OF THE LAND OWNER. THE AO IS ACCORDINGLY, DIRECTED TO VERIFY THE AGREEMENT AND OTHER DETAILS IN THE LIGHT OF THE DECISION OF THE TRIBUNAL IN THE CASE OF M/S. SHAKTI DEVELOPERS. THE GROUND IS ALLOWED SUBJECT TO VERIFICATION. 4.1 FROM THE ABOVE, IT IS CLEAR THAT FOR THE ASSESS MENT YEAR UNDER APPEAL, THE LD. CIT(A) MERELY DIRECTED THE AO TO ALLOW DEDUCTION UN DER SECTION 80IB(10), SUBJECT TO VERIFICATION, AS INDICATED IN PARA 4.3 OF THE IMPUG NED ORDER, WHICH IS REPRODUCED BY US HEREINABOVE. ITA NO.3405/AHD/2009 3 4.2 KEEPING IN VIEW OF THE DECISION OF THE ITAT, IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2005-06, WE ARE CONVINCED THAT NO I NTERFERENCE IS CALLED FOR. WE, THEREFORE, INCLINE TO UPHOLD THE ORDER OF THE LD. C IT(A). 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. THE ORDER PRONOUNCED IN THE CO URT ON 09.06.2011 SD/- SD/- (A.K.GARODIA) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 09/ 06 / 2011 COPY OF THE ORDER IS FORWARDED TO:- (1) THE ASSESSEE (2) THE DEPARTMENT. (3) CIT (A.) CONCERNED. (4) CIT CONCERNED. (5) D.R., ITAT, AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGISTRAR, ITAT, AH MEDABAD. TALUKDAR/ SR. P.S.