The ACIT,Bharuch Circle, Bharuch V. M/s. Narayan Land Estate, Bharuch

ITA 941/AHD/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 9029 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 10 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 05-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: U S BHATI; A S BHATI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH (BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) ITA. NO: 941/AHD/2013 (ASSESSMENT YEAR: 2009-10) ASSISTANT COMMISSIONER OF INCOME TAX, BHARUCH CIRCLE, BHARUCH V/S M/S. NARAYAN LAND ESTATE, NARAYAN CHAMBER, STATION ROAD, BHARUCH-392001 (APPELLANT) (RESPONDENT) PAN: AACFN0406B APPELLANT BY : SHRI ASHISH POPHARE, SR. D.R. RESPONDENT BY : SHRI U.S. BHATI & A.S. BHATI , A.R. ( )/ ORDER DATE OF HEARING : 01 -03-201 7 DATE OF PRONOUNCEMENT : 03-03-2017 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)- IV, AHMEDABAD DATED 24.01.2013 PERTAINING TO A.Y. 2 009-10. ITA NO. 941/ AHD/2013 . A.Y. 2009-10 2 2. THE ASSESSEE IS PARTNERSHIP FIRM DOING BUSINESS IN THE NAME AND STYLE OF M/S. NARAYAN LAND ESTATE, DOING CONSTRUCTION AND DE VELOPMENT OF VARIOUS HOUSING PROJECTS IN THE NAME OF NARAYAN SHRUSHTI, NARAYAN GARDEN & NARAYAN SQUARE AT BHARUCH. 3. DURING THE COURSE OF THE SCRUTINY ASSESSMENT PROCEE DINGS, THE A.O. NOTICED THAT THE ASSESSEE HAS CLAIMED DEDUCTION U/S. 80IB(1 0) OF THE ACT FOR WHICH IT HAS FILED FORM NO. 10 CCB FOR CLAIMING THE DEDUC TION AND OTHER RELATED DOCUMENTS WERE ALSO FILED AND EXAMINED BY THE A.O. 4. ON PERUSAL OF DOCUMENTS, THE A.O. FOUND THAT THE AS SESSEE IS NOT THE OWNER OF THE LAND FOR NARAYAN SHRUSHTI & NARAYAN GARDEN PROJECT. THE A.O. NOTICED THAT THE LETTER OF APPROVAL IS NOT IN THE N AME OF THE ASSESSEE BUT IN THE NAME OF SHRI ABDUL GAFUR HAJI AHMED AND OTHERS. SINCE THE ASSESSEE WAS NOT THE OWNER OF THE LAND AND THE APPROVAL OF T HE LOCAL AUTHORITY IS NOT IN THE NAME OF THE ASSESSEE, THE A.O. HELD THAT THE ASSESSEE HAS NOT FULFILLED THE MANDATORY CONDITIONS LAID DOWN IN SEC TION 80IB(1) OF THE ACT AND ACCORDINGLY DISALLOWED THE CLAIM OF DEDUCTION A MOUNTING TO RS. 75,79,331/-. 5. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) A ND REITERATED ITS CLAIM OF DEDUCTION. 6. AFTER CONSIDERING THE SUBMISSIONS AND THE RELATED D OCUMENTS, THE LD. CIT(A) OBSERVED THAT THE A.O. ON THE BASIS OF MISTAKEN FAC T DISALLOWED THE CLAIM OF ITA NO. 941/ AHD/2013 . A.Y. 2009-10 3 DEDUCTION U/S. 80IB(10) OF THE ACT. THE LD. CIT(A) FOUND THAT THE OWNERSHIP OF LAND ON WHICH THE PROJECT IS DEVELOPED IS IN THE NAME OF THE ASSESSEE. THE LD. CIT(A) FURTHER OBSERVED THAT OWNERSHIP OF L AND IS NOT A NECESSARY CONDITION FOR CLAIMING DEDUCTION U/S. 80IB(10) OF T HE ACT PROVIDED THE DEVELOPER HAS DOMINANT CONTROL OVER THE PROJECT AND ALSO RISK INVOLVED THEREIN VESTED WITH THE DEVELOPER ONLY. THE LD. CIT (A) ALLOWED THE CLAIM OF DEDUCTION BY RELYING UPON THE DECISION OF THE HONB LE JURISDICTIONAL HIGH COURT IN THE CASE OF RADHE DEVELOPERS 17 TAXMANN.CO M 156. 7. BEFORE US, THE LD. D.R. COULD NOT BRING ANY DISTING UISHING DECISION IN FAVOUR OF THE REVENUE NOR COULD POINT OUT ANY FACTUAL ERRO R IN THE FINDINGS OF THE LD. CIT(A). 8. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE FIN DINGS OF THE FIRST APPELLATE AUTHORITY. WE FIND THAT THE FACTS OF THE CASE IN HAND ARE SIMILAR TO THE FACTS IN THE CASE OF RADHE DEVELOPERS (SUPRA) W HEREIN THE HONBLE JURISDICTIONAL HIGH COURT HAS ALLOWED THE CLAIM OF DEDUCTION U/S. 80IB(10) OF THE ACT. SINCE THE LD. CIT(A) HAS FOLLOWED THE DECI SION OF THE HONBLE JURISDICTIONAL HIGH COURT, WE DO NOT FIND ANY ERROR OR INFIRMITY IN THE FINDINGS OF THE LD. CIT(A). 9. APPEAL FILED BY THE REVENUE IS ACCORDINGLY DISMISSE D. ORDER PRONOUNCED IN OPEN COURT ON 03 - 03- 2 017 SD/- SD/- (MAHAVIR PRASAD) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY ACCOUNTANT MEMBER