M/S. DRAUPDI BUILDERS & DEVELOPERS, Bhopal V. THE Addl.CIT R-1, Bhopal

ITA 578/IND/2013

• Counselvise Citation: 57822714 RSA 2013
• Duration Of Justice: 2 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 05-10-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 12-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Question of law
• Section: 143(3); 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI B.C.MEENA, ACCOUNTANT MEMBER I.T.A.NO. 578/IND/2013 A.Y. : 2010-11 M/S. DRAUPADI BUILDERS & DEVELOPERS, ADDL. CIT, RANGE 1, BHOPAL BHOPAL VS APPELLANT RESPONDENT PAN NO. :AAFFD0349A APPELLANT BY SHRI ANIL KHABYA, C. A. RESPONDENT BY SHRI R. A. VERMA, DR DATE OF HEARING : 05.10. 2015 DATE OF PRONOUNCEMENT : 05. 10.2015 DRAUPADI BUILDERS & DEVELOPERS, BHOPAL VS. ADDL, CI T RANGE 1, BHOPAL, I.T.A.NO. 576/IND/2013 A. Y. 2 010-11 2 2 O R D E R PER GARASIA, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A)-I, BHOPAL, DATED 11.07.2013 FOR THE ASSES SMENT YEAR 2010-11. 2. THE ONLY GROUND RAISED BY THE ASSESSEE IN THIS APPE AL READS AS UNDER :- 1. THAT THE LD. CIT(A) ERRED IN LAW IN CONSIDERING THE DATE MENTIONED ON THE PERMISSION CERTIFICATE I. E. 29.03.2005 AS THE DATE OF APPROVAL AS CONTEMPLATED U/S 80IB(10) INSPIRE OF THE FACT THAT THE DATE OF DISPATCH OF PERMISSION CERTIFICATE WAS ON 5.04.2005 ONLY AFTER FULFILLMENT OF THE PRECONDITIONS PRESCRI BED THEREIN AND THUS THE PROJECT COULD HAVE BEEN TREATE D AS APPROVED ONLY ON 5.04.2005 WHICH SHALL BE TREATED AS THE DATE OF PERMISSION FOR THE PURPOSE O F COMPUTING DATE OF WORK COMPLETION AS PROVIDED U/S 80IB(10) ON THE INCOME-TAX ACT, 1961. 3. THE SHORT FACTS OF THE CASE ARE AS UNDER :- DRAUPADI BUILDERS & DEVELOPERS, BHOPAL VS. ADDL, CI T RANGE 1, BHOPAL, I.T.A.NO. 576/IND/2013 A. Y. 2 010-11 3 3 4. THE ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF DEVELOPMENT AND CONSTRUCTION OF HOUSING PROJECT. THE ASSESSEE FURNISHED ITS RETURN OF INCOME FOR ASS ESSMENT YEAR 2010-11 ON 27.09.2010 DECLARING NIL INCOME AFT ER CLAIMING DEDUCTION U/S 80IB(10) OF RS. 33,20,254/-. THE CASE WAS SELECTED FOR SCRUTINY BY ISSUING NOTICE U/S 143 (2) OF THE INCOME-TAX ACT, 1961. AND ASSESSMENT U/S 143(3) WAS COMPLETED ON 18.02.2013 ASSESSING THE TAXABLE INCOM E OF THE ASSESSEE AT RS. 33,20,254/-. 5. THE AO NOTICED THAT THE ASSESSEE HAD CLAIMED DEDUCTION U/S 80IB(10) OF RS. 33,20,250/- FOR PERIO D SHIVLOK, AT BAWADIA KALAN, PIPLANI, BHOPAL. THE PERMISSION O F THE HOUSING PROJECT WAS ACCORDED BY THE BHOPAL MUNICIPA L CORPORATION ON 29.03.2005 AND AS PER PROVISIONS OF SECTION 80IB(10)(A)(II), THE ASSESSEE FIRM WAS REQUIRED TO COMPLETE THE HOUSING PROJECT WITHIN 4 YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE HOUSING PROJECT WAS APPROVED BY T HE LOCAL AUTHORITY. HOWEVER, THE COMPLETION CERTIFICATE IN R ESPECT OF THIS DRAUPADI BUILDERS & DEVELOPERS, BHOPAL VS. ADDL, CI T RANGE 1, BHOPAL, I.T.A.NO. 576/IND/2013 A. Y. 2 010-11 4 4 HOUSING PROJECT HAD BEEN ISSUED ON 30.03.2010 AND, THUS, THE ASSESSEE FAILED TO FULFILL THE CONDITION REGARDING COMPLETION OF HOUSING PROJECT WITHIN THE TIME SPECIFIED IN SECTIO N 80IB(10) OF THE INCOME-TAX ACT, 1961. 6. THE MATTER CARRIED TO CIT(A) AND TRIBUNAL AND THE TRIBUNAL HAS DISMISSED THE APPEAL OF THE ASSESSEE. 7. IN ASSESSMENT YEAR 2007-08 AND 2008-09, THE ASSESSEES CLAIM U/S 80IB WAS DISALLOWED BY THE ASS ESSING OFFICER, CIT(A) AND TRIBUNAL. THE ASSESSEE HAS GONE BEFORE THE HON'BLE JURISDICTIONAL HIGH COURT AND HIGH COURT HA S ADMITTED THE APPEAL OF THE ASSESSEE BY FOLLOWING OR DER :- I.T.A.NO. 192/2012 02.04.2013 SHRI SUMIT NEMA, COUNSEL FOR THE APPELLANT SHRI SANJAY LAL, COUNSEL FOR THE RESPONDENT. I.A.NO.221/2003, FOR EXEMPTION FROM FILING CERTIFIED COPY OF THE IMPUGNED ORDER. IT IS SUBMITTED BY THE LD. COUNSEL FOR THE APPELLANT THAT THE CERTIFIED COPY OF THE DRAUPADI BUILDERS & DEVELOPERS, BHOPAL VS. ADDL, CI T RANGE 1, BHOPAL, I.T.A.NO. 576/IND/2013 A. Y. 2 010-11 5 5 IMPUGNED ORDER HAS ALREADY BEEN FILED IN I.T.A.NO. 191/2012, WHICH IS LISTED FOR HEARING TODAY ITSELF. IT IS PRAYED THAT ON THE AFORESAID GROUND THIS APPELLANT MAY BE EXEMPTED FROM FILING CERTIFIED COPY OF THE IMPUGNED ORDER. THE AFORESAID PRAYER IS NOT OPPOSED BY SHRI SANJAY LAL LD. COUNSEL FOR RESPONDENTS, HENCE, THE PRAYER MADE IN THE APPLICATION IS ALLOWED. APPELLANT IS EXEMPTED FROM FILING CERTIFIED COPY OF THE IMPUGNED ORDER. HEARD ON ADMISSION. THIS APPEAL IS ADMITTED ON THE FOLLOWING SUBSTANTIAL QUESTION OF LAW :- WHETHER THE TRIBUNAL ERRED IN LAW IN CONSIDERING THE DATE MENTIONED ON THE PERMISSION CERTIFICATE I.E. 29.03.2005 AS THE DATE OF APPROVAL AS CONTEMPLATED U/S 80(IB)(10) INSPITE OF THE FACT THAT THE DATE OF DISPATCH OF DRAUPADI BUILDERS & DEVELOPERS, BHOPAL VS. ADDL, CI T RANGE 1, BHOPAL, I.T.A.NO. 576/IND/2013 A. Y. 2 010-11 6 6 PERMISSION CERTIFICATE WAS ON 05.04.2005 ONLY AFTER FULFILLMENT OF THE PRE-CONDITIONS PRESCRIBED THEREIN AND THUS THE PROJECT COULD HAVE BEEN TREATED AS APPROVED ONLY ON 05.04.2005 WHAT SHALL BE TREATED AS THE DATE OF PERMISSION FOR THE PURPOSE OF COMPUTING DATE OF WORK COMPLETION AS PROVIDED U/S 80(IB)(10) OF THE INCOME-TAX ACT, 1961 ? NOTICE ON BEHALF OF THE RESPONDENTS IS ACCEPTED BY SHRI SANJAY LAL ADVOCATE. BE LISTED FOR HEARING ON 30.04.2013. SD/- SD/- (KRISHN KUMAR LAHOTI) ( B. D. RATHI ) JUDGE JUDGE THE ASSESSEE HAS APPROACHED TO THE HON'BLE HIGH CO URT AND HON'BLE HIGH COURT HAS ADMITTED THE APPEAL OF THE A SSESSEE. THEREFORE, THE ASSESSEE HAS APPLIED U/S 158A OF THE INCOME- TAX ACT, 1961, TO A VOID REPETITIVE APPEALS IN HIGH COURT ON SIMILAR QUESTION OF LAW AND HE HAS SUBMITTED FORM N O.8 RULE 10, WHICH IS THE DECLARATION AND HAS TO BE GIVEN AS PER THE DRAUPADI BUILDERS & DEVELOPERS, BHOPAL VS. ADDL, CI T RANGE 1, BHOPAL, I.T.A.NO. 576/IND/2013 A. Y. 2 010-11 7 7 PRESCRIBED FORM BY INCOME-TAX ACT, 1961. THE LD. DR HAS NO OBJECTION IF THE MATTER IS RESTORED TO THE AO. 8. DURING THE COURSE OF HEARING OF THE APPEAL, THE LD . DR COULD NOT BRING ANY EVIDENCE BEFORE US TO SHOW THAT THE FACTS OF THIS CASE ARE DIFFERENT FROM THE ASSESSMENT YEAR S 2007-08 AND 2008-09. WE FIND THAT THE TRIBUNAL HAS NOT ALLO WED SIMILAR CLAIM OF THE ASSESSEE IN RESPECT OF PROFIT DERIVED FROM THE SAME HOUSING PROJECT. THE ASSESSEE HAS CLAIMED DEDUCTION U/S 80IB. THE MATTER IS PENDING BEFORE THE HON'BLE HIGH COURT. 9. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. THE LD. AUTHORIZED REPRESENTATIVE HAS FIL ED A DECLARATION IN FORM NO.8 UNDER THE PROVISIONS OF SE CTION 158A(1) OF THE INCOME-TAX ACT, 1961, TO AVOID THE R EPETITIVE APPEAL ON THE GROUND THAT THE SUBSTANTIAL QUESTION OF LAW IS ALREADY ADMITTED BY THE HON'BLE HIGH COURT. THEREFO RE, THIS APPEAL MAY BE ALLOWED AND FORM NO.8 MAY BE ACCEPTED AND THE MATTER MAY BE RESTORED TO THE AO. DRAUPADI BUILDERS & DEVELOPERS, BHOPAL VS. ADDL, CI T RANGE 1, BHOPAL, I.T.A.NO. 576/IND/2013 A. Y. 2 010-11 8 8 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS RESTOR ED TO THE FILE OF AO AND THE AO IS DIRECTED TO TAKE THE D ECISION AS PER OUT COME OF THE APPEAL OF THE CASE OF DRAUPADI BUIL DERS & DEVELOPERS, WHICH IS PENDING BEFORE THE HON'BLE M.P .HIGH COURT IN I.T.A.NO.192/2012 PERTAINING TO ASSESSMENT YEAR 2008-09. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 5 TH OCTOBER, 2015. SD/- (B. C. MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED :05 TH OCTOBER, 2015. CPU* 6.9