ACIT, CHENNAI V. Smt. A.Jagadeeswari, CHENNAI

ITA 889/CHNY/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58137 (ITAT-CHENNAI)
• Duration Of Justice: 10 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 19-03-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 13-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: T BANUSEKHAR
• Keywords: Period of limitation
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER I.T.A. NO. 889/MDS/2011 [A.Y. 2007-08] CO NO. 124/MDS/2011 [A/O I.T.A. NO. 889/MDS/2011 [A.Y. 2007-08] ASSESSEE BY : SHRI T. BANUSEKHAR, C.A DEPARTMENT BY : SHRI SHAJI P. JACOB , ADDL CIT THE A.C.I.T. CIRCLE XV CHENNAI (APPELLANT) VS. SMT. A JAGADEESWARI NEW NO. 40 G 2, JAGANNATHAPURAM THIRD STREET, CHETPET CHENNAI 600 031. PAN NO. ADHPJ 4253 E (RESPONDENT) SMT. A JAGADEESWARI VS. THE A.C.I.T NEW NO. 40 CIRCLE XV G -2, JAGANNATHAPURAM CH ENNAI THIRD STREET, CHETPET CHENNAI 600 031. PAN NO. ADHPJ 4253 E 2 ITA NO. 889/MDS/2011 & CO N O. 124/MDS/2011 DATE OF HEARING : 17.03.2012 DATE OF PRONOUNCEMENT : 23.03.2012 O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER : ITA NO. 889/MDS/11 IS AN APPEAL FILED BY THE REVEN UE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX(A)-XII, CHE NNAI IN APPEAL NO. 229/2009-10 DATED 04.02.2011 FOR ASSESSMENT YEA R 2007-08. CO NO. 124/MDS/11 IS FILED BY ASSESSEE IN REVENUE S APPEAL IN ITA NO. 889/MDS/2011 AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX(A)-XII, CHENNAI IN APPEAL NO. 229/09-10 DATED 0 4.02.2011 FOR ASSESSMENT YEAR 2007-08. 2. SHRI SHAJI P. JACOB, ADDL. CIT, D.R. REPRESENTED ON BEHALF OF THE REVENUE AND SHRI T. BANUSEKAR, C.A, REPRESENTED ON BEHALF OF THE ASSESSEE. 3 ITA NO. 889/MDS/2011 & CO N O. 124/MDS/2011 3. AT THE TIME OF HEARING, THE LD. A.R. SUBMITTED THAT HE DID NOT WISH TO PRESS THE CROSS OBJECTION FILED BY THE ASSE SSEE. HE ALSO SIGNED TO THAT EFFECT. CONSEQUENTLY, THE CROSS OBJ ECTION FILED BY THE ASSESSEE STANDS DISMISSED. 4. WITH REGARD TO THE REVENUES APPEAL, THE LD. D.R . SUBMITTED THAT THERE WERE THREE ISSUES RAISED IN THE APPEAL B EING: 1) THE ASSESSEE WAS NOT THE OWNER OF THE PROPERTY FOR THE PURPOSE OF GRANTING DEDUCTING U/S 80IB(10) OF THE A CT; 2) THE ASSESSEE HAD NOT PRODUCED COMPLETION CERTIFICAT E AS REQUIRED UNDER THE PROVISIONS OF SEC 80IB(10) OF TH E ACT; AND 3) THE SIZE OF THE BUILT UP AREA WAS MORE THAN 1500 SQ FT. AND THE SAME WERE VIOLATIVE OF PROVISIONS OF SEC 80 IB(10) OF THE ACT. IT WAS THE SUBMISSION OF THE LD. D.R. THAT THE ASSE SSEE WAS NOT THE OWNER OF THE LAND ON WHICH CONSTRUCTION HAD BEEN DO NE. IT WAS THE 4 ITA NO. 889/MDS/2011 & CO N O. 124/MDS/2011 SUBMISSION THAT THE ASSESSEE WAS ONLY A CONTRACTOR AND NOT A DEVELOPER, AS THE ASSESSEE DID NOT OWN THE LAND ON WHICH CONSTRUCTION WAS DONE. IT WAS THE FURTHER SUBMISSI ON THAT THE ASSESSEE HAD NOT PRODUCED THE COMPLETION CERTIFICAT E AS REQUIRED U/S 80IB OF THE ACT. HOWEVER, IT WAS THE SUBMISSIO N THAT THE LD. CIT(A) HAD ACCEPTED THE CONTENTIONS OF THE ASSESSEE THAT THE PROPERTY CONSTRUCTED BY THE ASSESSEE BEING AT GROUN D AND FIRST FLOOR ONLY, THERE WAS NO REQUIREMENT OF THE COMPLETION CE RTIFICATION AS THE CORPORATION OF CHENNAI DID NOT ISSUE COMPLETION CERTIFICATE IN REGARD TO THE SAID CONSTRUCTION AT GROUND AND FIRST FLOOR. IN REGARD TO THE THIRD ISSUE BEING BUILT UP AREA OF MORE THAN 1500 SQ. FT, IT WAS SUBMITTED THAT IN SECOND LAST PAGE OF HIS ORDER THE LD. CIT(A) MENTIONED THAT THE AREA OF THE PLOTS WERE MORE THAN 1500 SQ FT. IT WAS THE SUBMISSION THAT THE ORDER OF THE LD. CIT(A) WAS LIABLE TO BE REVERSED. 5. IN REPLY, THE LD. A.R. SUBMITTED THAT THE ISSUE THAT THE ASSESSEE WAS NOT THE OWNER WAS NOW SQUARELY COVERED BY THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN THE C ASE OF RADHE 5 ITA NO. 889/MDS/2011 & CO N O. 124/MDS/2011 DEVELOPERS IN TAX APPEAL NO. 546/2008 DATED 13/12/2 011 WHEREIN THE HIGH COURT HAS HELD THAT THE ASSESSEE DOING THE CONSTRUCTION BY ENTERING INTO JOINT VENTURE AGREEMENT WITH THE OWNE RS OF LAND WAS LIABLE TO BE TREATED AS DEVELOPER WHO WAS ENTITLED TO CLAIM BENEFITS OF DEDUCTION U/S 80IB(10) OF THE ACT. IT WAS THE F URTHER SUBMISSION THAT IN REGARD TO THE ISSUE OF THE ASSESSEE NOT PRO DUCING COMPLETION CERTIFICATE, IT WAS THE SUBMISSION THAT THE ASSESSI NG OFFICER HAD WRITTEN LETTER TO THE ASSTT. COMMISSIONER, ZONE X, CORPORATION OF CHENNAI DATED 14.12.2009 INTIMATING THAT THE BUILDI NGS WERE COMPLETED AND CONSTRUCTED IN REGARD TO ALL 14 PLOTS IN RESPECT OF WHICH THE ASSESSEE HAS CLAIMED DEDUCTION U/S 80IB O F THE ACT. IT WAS ALSO FURTHER CLARIFIED THAT THE COMPLETION CERT IFICATES HAD NOT BEEN ISSUED. IT WAS SUBMITTED BY THE LD. A.R. THAT THE LETTER ISSUED BY THE ASSTT. COMMISSIONER, ZONE X, CORPORATION OF CHENNAI DATED 14.12.2009 WAS WITHIN THE FOUR YEAR PERIOD OF LIMIT ATION WHEREIN THE ASSTT. COMMISSIONER, ZONE X, CORPORATION OF CHE NNAI HAS CONFIRMED THAT THE BUILDINGS HAD BEEN COMPLETED AND CONSTRUCTED AND COMPLETION CERTIFICATES WERE ISSUED. IT WAS TH E FURTHER SUBMISSION THAT IN REGARD TO SIZE OF THE BUILT UP A REA, IT WAS 6 ITA NO. 889/MDS/2011 & CO N O. 124/MDS/2011 SUBMITTED THAT THE ASSESSING OFFICER HAD CONSIDERED THE PLOT SIZE WHICH ADMITTEDLY WAS MORE THAN 1500 SQ FT. IT WAS THE SUBMISSION THAT IN ALL CASES, THE BUILT UP AREA WAS LESS THAN 1500 SQ FT AND CONSEQUENTLY THE ASSESSEE WAS ELIGIBLE FOR DEDUCTIO N U/S 80IB OF THE ACT. IT WAS THE SUBMISSION THAT THE ORDER OF THE L D. CIT(A) WAS LIABLE TO BE UPHELD. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WITH R EGARD TO THE FIRST ISSUE BEING THE ASSESSEE IS NOT OWNER OF THE PROPERTY FOR THE PURPOSE OF CLAIMING DEDUCTION U/S 80IB(10) OF THE A CT, IT IS NOTICED THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF RADHE DEVELOPERS [SUPRA] AND IT IS NOTICED THAT THE FINDING OF THE LD. CIT(A) IS IN LI NE WITH THE DECISION OF THE HON'BLE HIGH COURT, AND AS IT IS NOTICED TH AT THE DECISION OF THE HIGH COURT IS THE ONLY DECISION ON THE ISSUE BY HIGH COURT, RESPECTFULLY FOLLOWING THE PRINCIPLES OF JUDICIAL D ISCIPLINE, THE FINDING OF THE LD. CIT(A) ON THIS ISSUE STANDS CONF IRMED. IN REGARD TO THE SECOND ISSUE THAT THE ASSESSEE HAS NOT PRODUCED THE COMPLETION CERTIFICATE, IT IS NOTICED THAT THE ASSESSING OFFIC ER HAD WRITTEN 7 ITA NO. 889/MDS/2011 & CO N O. 124/MDS/2011 LETTER TO THE ASSTT. COMMISSIONER, ZONE X, CORPORAT ION OF CHENNAI DATED 14.12.2009, WHO HAS CONFIRMED THAT THE BUILDI NGS WERE COMPLETED AND CONSTRUCTED AND THE COMPLETION CERTIF ICATES WERE NOT ISSUED AND THAT THE ASSESSEE HAS COMPLETED AND CONSTRUCTED THE CONSTRUCTION WITHIN THE PERIOD OF LIMITATION PRESCR IBED U/S 80IB(10) OF THE ACT WHICH WOULD MAKE THE ASSESSEE ELIGIBLE F OR CLAIMING DEDUCTION U/S 80IB(10) OF THE ACT. IN THE CIRCUMST ANCES, THE FINDING OF THE LD. CIT(A) ON THIS ISSUE STANDS CONFIRMED. IN REGARD TO SIZE OF THE BUILT UP AREA, IT IS NOTICED THAT THE ASSESSING OFFICER HAS CONSIDERED THE AREA OF THE LAND AND NOT THE BUILT U P AREA AS REQUIRED U/S 80IB(10 OF THE ACT. A PERUSAL OF THE ORDER OF THE LD. CIT(A) SHOWS THAT THE LD. CIT(A) HAS CONSIDERED THE FACT THAT THE BUILDINGS CONSTRUCTED HAVE BUILT UP AREA OF LESS TH AN 1500 SQ FT. AND HAS CONSEQUENTLY HELD THE ISSUE IN FAVOUR OF THE AS SESSEE. AS NO ERROR IN THE FINDING OF THE LD. CIT(A) HAS BEEN POI NTED OUT, WE ARE OF THE CONSIDERED OPINION THAT THE FINDING OF THE L D. CIT(A) IS ON RIGHT FOOTING AND CALLS FOR NO INTERFERENCE. IN TH E CIRCUMSTANCES, THE REVENUES APPEAL IS DISMISSED. 8 ITA NO. 889/MDS/2011 & CO N O. 124/MDS/2011 8. IN THE RESULT, THE APPEAL OF THE REVENUE AS WELL AS THE CROSS OBJECTION FILED BY THE ASSESSEE STAND DISMISSED. ORDER PRONOUNCED IN THE COURT ON 23 RD MARCH, 2012. SD/- SD/- (N.S. SAINI) (GEORGE MATHA N) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI, DATED THE 23 RD MARCH, 2012. VL COPY TO: (1) APPELLANT (2) RESPONDENT (3) CIT(A), CHENNAI (4) CIT, CHENNAI (5) D.R. (6) GUARD FILE