DCIT, New Delhi V. M/s. Tulip Infratech Pvt. Ltd., New Delhi

ITA 6139/DEL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3779 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2011-2012
• Appeal Filed On: 10-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES D : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER ITA.NO.6139/DEL./2014 ASSESSMENT YEAR 2011-2012 THE DCIT, CIRCLE-16(1), C.R. BUILDING, I.P. ESTATE, NEW DELHI. VS. M/S. TULIP INFRATECH PVT. LTD., 1201 TO 1204, INDRAPRAKASH BUILDING, 21-BARAKHAMBA ROAD, NEW DELHI 110 001. PAN AACCT3755E (APP ELL ANT) (RESPONDENT) FOR REVENUE : SHRI AMIT JAIN, SR. D.R. FOR ASSESSEE : SHRI SHAILESH GUPTA, ADVOCATE DATE OF HEARING : 31 . 1 0.2017 DATE OF PRONOUNCEMENT : 31. 10 .2017 ORDER PER BHAVNESH SAINI, J.M. THIS APPEAL HAS BEEN DIRECTED AGAINST THE ORDER O F THE LD. CIT(A)-19, NEW DELHI, DATED 29 TH AUGUST, 2014 FOR THE A.Y. 2011- 2012, CHALLENGING THE DELETION OF ADDITION OF RS.8, 53,50,105 MADE BY A.O. UNDER SECTION 80IB OF THE I.T. ACT, 1961. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSE SSEE HAS CLAIMED DEDUCTION UNDER SECTION 80IB(10) OF THE I.T . ACT, AMOUNTING 2 ITA.NO.6139/DEL./2014 M/S. TULIP INFRATECH PVT. LTD., NEW DELHI. TO RS.8,53,50,105. THE A.O. WAS OF THE VIEW THAT TH ERE IS NO PROVISION FOR CLAIMING PROPORTIONATE DEDUCTION UNDER SECTION 80IB(10) OF THE I.T. ACT. THE A.O. NOTED THAT EITHER THE ALLOWANCE HAS TO BE GIVEN IN FULL OR TO BE REJECTED. IN THIS CASE, SINCE THE ASS ESSEE HAS FAILED TO COMPLY THE TERMS AND CONDITIONS OF UNDER SECTION 80 IB(10) OF THE I.T. ACT, HENCE, THE CLAIM OF ASSESSEE FOR DEDUCTION UND ER THIS SECTION WAS REJECTED AND ADDITION WAS ACCORDINGLY MADE. THE A.O. ALSO NOTED THAT SIMILAR ADDITION HAS BEEN MADE IN THE CASE OF THE ASSESSEE IN A.Y. 2007-2008. ALTHOUGH, THE LD. CIT(A) DELETED TH E ADDITION SO MADE, THE DEPARTMENT HAS NOT ACCEPTED THE DECISION OF THE LD. CIT(A) AND HAS FILED APPEAL BEFORE ITAT. 3. THE ASSESSEE CONTENDED BEFORE THE LD. CIT(A) TH AT SIMILAR ADDITION SO MADE IN A.YS. 2007-08, 2008-09, 2009-10 AND 2010- 2011 AND THE ADDITION HAVE BEEN DELETED BY THE LD. CIT(A) IN ALL THE YEARS. THE ORDER OF THE LD. CIT(A) IS REPRODUCED IN THE APPEAL ORDER. THE ASSESSEE THEREFORE, SUBMITTED THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY EARLIER YEARS ORDERS. THE LD. CI T(A) CONSIDERING THE HISTORY OF THE ASSESSEE AND EARLIER ORDERS, ALLOWED THE APPEAL OF 3 ITA.NO.6139/DEL./2014 M/S. TULIP INFRATECH PVT. LTD., NEW DELHI. ASSESSEE. HIS FINDINGS IN PARA 3.3 OF THE ORDER ARE REPRODUCED AS UNDER : 3.3 THE SUBMISSIONS OF THE APPELLANT AND THE FAC TS HAVE BEEN CAREFULLY CONSIDERED. THE APPELLANT HAS ARGUED THAT A SIMILAR ADDITION WAS MADE IN AY 2007-08, 2008-09, 2 009-10 AND 2010-11 AND THE ADDITION HAS BEEN DELETED BY THE CI T(A) IN ALL THESE YEARS. IN THE ASSTT. YEAR UNDER CONSIDERATION , THE FACTS ARE SIMILAR AND THE A.O HAS ONLY FOLLOWED HER DECISION IN EARLIER YEARS. IN THE ASSTT. ORDER, THE A.O. HAS STATED THA T 'SIMILAR ADDITION WAS MADE IN THE CASE OF ASSESSEE IN THE A. Y. 2007-08. ALTHOUGH, THE CIT(A) DELETED THE ADDITION MADE, THE DEPARTMENT HAS NOT ACCEPTED THE DECISION OF CIT (A) AND HAS FI LED APPEAL BEFORE ITAT. THE A.O. HAS NOT BROUGHT ANY MATERIAL ON RECORD TO CONTROVERT THE APPELLANTS CLAIMS AND JUSTIFY THE A DDITION. SHE HAS NOT POINTED OUT ANY NEW FACTS OR JUDICIAL DECIS IONS, OR GIVEN ANY REASON, WHY THE DECISION OF THE CIT(A) IN EARLI ER YEARS SHOULD NOT BE FOLLOWED. THE APPELLANT HAS RELIED ON SEVERA L JUDICIAL DECISIONS IN SUPPORT OF HIS CLAIM AND HAS POINTED O UT THAT THEY CONSTITUTE A BINDING PRECEDENT. CONSIDERING THE FAC TS AND JUDICIAL 4 ITA.NO.6139/DEL./2014 M/S. TULIP INFRATECH PVT. LTD., NEW DELHI. DECISIONS ON THE SUBJECT, AND THE ORDERS OF THE CIT (A) IN EARLIER YEARS, THE DECISION OF THE A.O. TO DISALLOW THE PRO -RATA DEDUCTION U/S 80IB CLAIMED BY THE APPELLANT IN HIS RETURN, IS NOT SUSTAINABLE IN LAW. THE ADDITION IS THEREFORE, DELE TED AND THE GROUNDS ARE ACCORDINGLY ALLOWED. 4. THE LEARNED COUNSEL FOR THE ASSESSEE AT THE OUT SET SUBMITTED THAT THE DEPARTMENTAL APPEALS FOR A.YS. 2 007-08 AND 2009-10 HAVE BEEN DISMISSED BY THE ITAT, DELHI BENC H IN ITA.NO.2325/DEL./2010 AND ITA.NO.5045/DEL./2012 VID E ORDER DATED 18 TH FEBRUARY, 2016. HE HAS ALSO SUBMITTED THAT DEPARTM ENTAL APPEAL FOR A.Y. 2008-2009 HAVE ALSO BEEN DISMISSED BY THE TRIBUNAL IN ITA.NO.3842/DEL./2014 VIDE ORDER DATED 28 TH FEBRUARY, 2017. HE HAS SUBMITTED THAT THE ISSUE IS NOW COVERED IN FAVO UR OF THE ASSESSEE BY ABOVE ORDERS OF THE TRIBUNAL. THE COPIES OF THE ORDERS HAVE BEEN SUPPLIED TO THE LD. D.R. WHO AFTER GOING THROUGH TH E SAME HAVE STATED THAT THE ISSUE IS NOW BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL IN PRECEDING ASSESSMENT YEARS MENTIONED AB OVE. 5. CONSIDERING THE FACTS OF THE CASE IN THE LIGHT OF EARLIER ORDERS OF THE TRIBUNAL IN THE CASE OF THE SAME ASSE SSEE REFERRED TO 5 ITA.NO.6139/DEL./2014 M/S. TULIP INFRATECH PVT. LTD., NEW DELHI. ABOVE, IT IS CLEAR THAT IN EARLIER YEARS THE DEDUCT ION UNDER SECTION 80IB(10) OF THE I.T. ACT HAVE BEEN ALLOWED TO THE A SSESSEE BY THE LD. CIT(A) ON FULFILLING THE CONDITIONS OF SECTION 80IB (10) OF THE I.T. ACT. THE A.O. MADE ADDITION IN ASSESSMENT YEAR UNDER APP EAL BECAUSE THE APPEALS OF THE DEPARTMENT FOR EARLIER YEAR ARE PENDING BEFORE THE TRIBUNAL. NOW THE DEPARTMENTAL APPEALS HAVE ALREADY BEEN DISMISSED, MEANING THEREBY, THE ASSESSEE WOULD BE E NTITLED FOR DEDUCTION UNDER SECTION 80IB(10) OF THE I.T. ACT. T HE ISSUE IS NOW COVERED IN FAVOUR OF THE ASSESSEE BY THE EARLIER OR DERS OF THE TRIBUNAL REFERRED TO ABOVE. THE DEPARTMENTAL APPEAL HAS NO M ERIT AND THE SAME IS ACCORDINGLY DISMISSED. 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (O.P. KANT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DELHI, DATED 31 ST OCTOBER, 2017 VBP/- 6 ITA.NO.6139/DEL./2014 M/S. TULIP INFRATECH PVT. LTD., NEW DELHI. COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT D BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASST. REGISTRAR : ITAT DELHI BENCHES : DELHI.