The ITO, Ward-1, Mehsana V. M/s. Divya Developers Co., Mehsana

ITA 3832/AHD/2007

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 5965 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-06-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 08-06-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 10-10-2007
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NEETA SHAH
• Keywords: Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B BEFORE SHRI MUKUL SHRAWAT, JUDICIAL MEMBER AND SHRI D.C. AGRAWAL, ACCOUNTANT MEMBER DATE OF HEARING : 08/06/2010 DRAFTED ON: 08 /06/2010 ITA NO.3832/AHD/2007 ASSESSMENT YEAR : 2004-05 THE INCOME TAX OFFICER WARD-1 MEHSANA VS. M/S.DIVYA DEVELOPERS CO., 28, ASPADEEP SOCIETY MODHERA DORAD MEHSANA PAN/GIR NO. : AAEFD 3862 D (APPELLANT) .. (RESPONDENT) APPELLANT BY : SMT. NEETA SHAH, SR.D.R. RESPONDENT BY: WRITTEN SUBMISSIONS O R D E R PER SHRI MUKUL SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL AT THE BEHEST OF THE REVENUE WH ICH HAS EMANATED FROM THE ORDER OF THE LEARNED CIT(APPEALS) -XXI, AHMEDABAD DATED 31/07/2007. THE MAIN GROUNDS ARE REPRODUCED BELOW:- (1) THE LEARNED CIT(APPEALS) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE ASSESSEE IS ENTITLED FOR DEDUCTION U/S.80IB(10) OF THE ACT AND THEREBY DELETING THE AD DITION OF RS.10,27,191. (2) THE LEARNED CIT(APPEALS) OUGHT TO HAVE APPRECIA TED THAT THE ASSESSEE WAS NOT THE OWNER OF THE LAND AND THE PLOTS WERE OWNED BY INDIVIDUAL MEMBERS AND THEREFORE THE ASSESSEE WAS ONLY A CONTRACTOR IN COMMON PARLANCE. ITA NO. 3832/AHD/2007 ITO VS. M/S.DIVYA DEVELOPERS CO. ASST.YEAR 2004-05 - 2 - 2. FROM THE SIDE OF THE RESPONDENT-ASSESSEE A LETT ER DATED 08/06/2010 IS PLACED BEFORE US. THROUGH THIS LETTER, IT IS PO INTED OUT THAT ON IDENTICAL FACTS IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 20 05-06 IN ITA NO.2597/AHD/2008 VIDE AN ORDER DATED 16/01/2009 THE ITAT B BENCH AHMEDABAD HAD RESTORED THE MATTER BACK TO THE STAG E OF THE ASSESSING OFFICER, THEREFORE, ON THE SAME LINES A VIEW CAN BE TAKEN FOR THE PRESENT APPEAL FOR ASSESSMENT YEAR 2004-05. 3. FROM THE SIDE OF THE REVENUE, SMT.NEETA SHAH LEA RNED DEPARTMENTAL REPRESENTATIVE APPEARED AND AFTER PERU SING THE RELEVANT ORDERS MADE A STATEMENT THAT ONCE THIS TRIBUNAL HAS TAKEN A VIEW OF RESTORING THE MATTER BACK TO ASSESSING OFFICER FOR A FRESH ADJUDICATION, THEREFORE, ON THE SAME LINES A VIEW CAN ALSO BE TAK EN IN THE PRESENT APPEAL. HOWEVER, LEARNED DEPARTMENTAL REPRESENTATI VE HAS PLACED A RELIANCE ON THE DECISION OF SHAKTI CORPORATION BEAR ING ITA NO.1503/AHD/2008 & OTHERS IN SUPPORT OF THE ACTION OF THE ASSESSING OFFICER. 4. WE HAVE PERUSED THE AFOREMENTIONED ORDER OF THE RESPECTED CO- ORDINATE BENCH B AHMEDABAD DATED 16/01/2009 PRONO UNCED IN ASSESSEES OWN CASE AND FOR THE SAKE OF COMPLETENES S THE CONCLUDING PARAGRAPH NO.6 IS REPRODUCED BELOW:- 6. IT CAN BE OBSERVED THAT THE DISTINCTION BETWEEN THE CONTRACTOR AND THE DEVELOPER AS LAID DOWN IN THE AF ORESAID DECISIONS WERE NOT TAKEN INTO CONSIDERATION BY EITH ER OF THE LOWER AUTHORITIES FOR ARRIVING AT THE CONCLUSIONS. IN T HE CIRCUMSTANCES, IN OUR OPINION, IT SHALL BE JUST AND FAIR TO ALLOW THE A.O. AN ITA NO. 3832/AHD/2007 ITO VS. M/S.DIVYA DEVELOPERS CO. ASST.YEAR 2004-05 - 3 - OPPORTUNITY TO EXAMINE THE FACTS OF THE CASE IN THE LIGHT OF THE AFORESAID DECISION. WE, THEREFORE, SET ASIDE THE O RDERS OF THE LOWER AUTHORITIES ON THIS ISSUE AND RESTORE THE MATTER BA CK TO THE FILE OF A.O. FOR FRESH ADJUDICATION IN THE LIGHT OF THE DEC ISION QUOTED ABOVE AS PER LAW AND AFTER ALLOWING SUFFICIENT OPPO RTUNITY OF HEARING TO THE ASSESSEE. THUS, THIS GROUND OF APPE AL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 4.1. IT IS WORTH TO MENTION THAT THE TRIBUNAL IN TH IS ORDER HAS TAKEN DUE NOTE OF BOTH THE ORDERS; NAMELY, RADHE DEVELOPERS & OTHERS REPORTED AS 113 TTJ (AHD.) 300 AS WELL AS THE DECISION OF SHAKT I CORPORATION(SUPRA). FINALLY, THE MATTER WAS RESTORED BACK FOR RE-ADJUDI CATION AT THE LEVEL OF THE ASSESSING OFFICER IN THE LIGHT OF THE DIRECTION S GIVEN IN THE CASE OF SHAKTI CORPORATION(SUPRA). CONSIDERING THE SUBMIS SIONS OF BOTH THE SIDES, WE, AS WELL, HEREBY RESTORE THESE GROUNDS OF THE REVENUE BACK TO ASSESSING OFFICER TO RE-DECIDE THE ISSUE INVOLVED I N THE LIGHT OF THE DIRECTIONS GIVEN BY THE RESPECTED CO-ORDINATE BENCH IN THE CASE OF SHAKTI CORPORATION AS CITED IN THE ASSESSEES OWN A PPEAL FOR ASSESSMENT YEAR 2005-06. WE ORDER ACCORDINGLY. 5. IN THE RESULT, APPEAL OF THE REVENUE MAY BE TREA TED AS ALLOWED BUT FOR STATISTICAL PURPOSES. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 11/06/2010. SD/- SD/- ( D.C. AGRAWAL) ( MUKUL SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 11/ 06 /2010 T.C. NAIR, SR. PS ITA NO. 3832/AHD/2007 ITO VS. M/S.DIVYA DEVELOPERS CO. ASST.YEAR 2004-05 - 4 - COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-XXI, AHMEDABAD 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD