The ACIT,Vapi Circle, Vapi V. M/s. Datta Developers, SILVASSA

ITA 921/AHD/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94235 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 06-08-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 20-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRAVIN KUMAR
• Section: 143(3); 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH AHMEDABAD BEFORE S/SHRI RAJPAL YADAV, JM & ANIL CHATURVEDI, AM. ITA NO.921/AHD/2012 ASST. YEAR 2008-09 ASSTT. COMMISSIONER OF INCOME- TAX, VAPI CIRCLE, VAPI. VS M/S DATTA DEVELOPERS, SILVASSA. (APPELLANT) (RESPONDENT) PAN: AACFD0228R APPELLANT BY SHRI PRAVIN KUMAR, DR RESPONDENT BY SHRI TUSHAR HEMANI, AR DATE OF HEARING: 6/8/2015 DATE OF PRONOUNCEMENT: 11/08/2015 O R D E R PER ANIL CHATURVEDI, ACCOUNTANT MEMBER. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) DATED 27.01.2012, FOR ASST. YEAR 2008-09. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI AL ON RECORD ARE AS UNDER. 3. THE ASSESSEE IS A PARTNERSHIP FIRM STATED TO BE ENGAGED IN THE BUSINESS OF DEVELOPMENT AND CONSTRUCTION OF HOUSING PROJECTS IN THE NAME OF DATTA DEVELOPERS. THE ASSESSEE ELECTRONICAL LY FILED ITS RETURN ITA NO.921/AHD/2012 ASST. YEAR 2008-09 2 OF INCOME FOR AY 2008-09 ON 22.9.2008 DECLARING TOT AL INCOME OF RS.NIL AFTER CLAIMING DEDUCTION UNDER SECTION 80IB (10) OF THE ACT. THE CASE WAS SELECTED FOR SCRUTINY AND THERE AFTER ASSESSMENT WAS FRAMED UNDER SECTION 143(3) VIDE ORDER DATED 29.11. 2010 AND THE TOTAL INCOME WAS DETERMINED AT RS.14,95,640/-. AGGR IEVED BY THE ORDER OF ASSESSING OFFICER, THE ASSESSEE CARRIED TH E MATTER IN APPEAL BEFORE CIT(A) WHO VIDE ORDER DATED 27.1.2012 ALLOWE D THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF CIT(A), REV ENUE IS IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS :- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE LEARNED CIT(A) HAS ERRED IN HOLDING THAT THE ASSESS EE FIRM WILL BE ELIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE ACT O F RS.14,93,287/-. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LEARNED CIT(A) HAS GRANTED RELIEF TO THE ASSESSEE W ITHOUT CONSIDERING THE FACT THAT ASSESSEE DID NOT OWN THE LAND IN WHICH THE PROJECTS WERE CONSTRUCTED AND BENEFIT U/S 80IB( 10) WAS CLAIMED. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO NOTICED THAT ASSESSEE HAS CLAIMED DEDUCTION OF RS.2,63,09,2 42/- UNDER SECTION 80IB(10) OF THE ACT. AO ON PERUSING THE DET AILS NOTICED THAT ONE PROJECT NAMELY SAI DARSHAN WAS CONSTRUCTED BY T HE ASSESSEE AS ITA NO.921/AHD/2012 ASST. YEAR 2008-09 3 A DEVELOPER AND THAT THE ASSESSEE WAS NOT THE OWNER OF THE LAND. THE AO WAS OF THE VIEW THAT SINCE ASSESSEE WAS NOT THE OWNER OF LAND IT WAS NOT ELIGIBLE TO CLAIM DEDUCTION UNDER S ECTION 80IB(10) OF THE ACT AND ACCORDINGLY DENIED THE CLAIM OF DEDUCTI ON ON THE PROFIT FROM SAI DARSHAN AMOUNTING TO RS.14,93,287/-. AGGRI EVED BY THE ORDER OF AO ASSESSEE CARRIED THE MATTER BEFORE CIT( A) WHO DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY HOLDING AS U NDER :- 4.3 DECISION: I HAVE CONSIDERED THE OBSERVATION OF THE AO IN THE ASSESSMENT ORDER AS WELL AS THE CONTENTION RAISED B Y THE AR OF THE APPELLANT IN THE WRITTEN SUBMISSION. THIS ISSUE WAS ALREADY DECIDED BY ME IN THE CASE OF THE APPELLANT FOR THE ASST. YEAR 200 7-08 VIDE APPELLATE ORDER IN APPEAL NO. CIT(A)/VLS/412/09-10 DATED 26.1 1.2010. FOLLOWING THE SAID ORDER, I DIRECT THE AO TO GRANT DEDUCTION U/S 80IB(10) OF THE I.T. ACT TO THE APPELLANT. THUS, THIS GROUND OF APPEAL I S ALLOWED. 5. AGGRIEVED BY THE ORDER OF CIT(A) REVENUE IS IN A PPEAL BEFORE US. 6. BEFORE US THE LD. DR SUPPORTED THE ORDER OF AO. ON THE OTHER HAND, THE LD. AR REITERATED THE SUBMISSIONS MADE BE FORE THE AO AND THE CIT(A) AND THUS SUPPORTED THE ORDER OF CIT(A). 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT CIT(A) WHILE DECIDING THE I SSUE IN FAVOUR OF ITA NO.921/AHD/2012 ASST. YEAR 2008-09 4 THE ASSESSEE HAD FOLLOWED HIS OWN ORDER IN ASSESSEE S OWN CASE FOR AY 2007-08. BEFORE US REVENUE HAS NOT POINTED OUT A NY DISTINGUISHING FEATURES IN THE CASE UNDER CONSIDERA TION AND THAT OF AY 2007-08 THAT WAS FOLLOWED BY LD. CIT(A). FURTHER NO MATERIAL HAS BEEN PLACED ON RECORD BY THE REVENUE TO DEMONSTRATE THAT THE DECISION OF CIT(A) FOR AY 2007-08 HAS BEEN OVER TUR NED BY HIGHER AUTHORITIES. IN VIEW OF THE AFORESAID FACTS, WE FIN D NO REASON TO INTERFERE WITH THE ORDER OF CIT(A) AND THE GROUNDS OF REVENUE ARE DISMISSED. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11/08/2015 SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER (ANIL CHATURVEDI) ACCOUNTANT MEMBER DATED :11/08/2015. MAHATA ITA NO.921/AHD/2012 ASST. YEAR 2008-09 5 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER DY. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: 7//8/2015 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 10/8/2015 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 11/8/2015 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: