M/s. Mac Developers, Bilimora V. The Income tax Officer,Wrd-3, Navsari

MA 214/AHD/2012

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9759 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-01-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 09-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y P VERMA
• Assessee Lawyers: S N SOPARKAR
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD B BENCH BEFORE: SHRI MUKUL KR. SHRAWAT JUDICIAL MEMBER AND SHRI T.R. MEEN A, ACCOUNTANT MEMBER M/S MAC DEVELOPERS, 15, ALIPORIA SOCIETY, SOMNATH ROAD, BILLIMORA (APPELLANT) PAN NO. AAIFM4667P VS. INCOME TAX OFFICER, WARD-3, NAVSARI (RESPONDENT) REVENUE BY : SRI Y.P. VERMA SR. D.R. ASSESSEE BY : SRI S.N. SOPARKAR, A.R. DATE OF HEARING : 04-01-2013 DATE OF PRONOUNCEMENT : 31-01-2013 / ORDER PER : T.R. MEENA, ACCOUNTANT MEMBER:- IN THIS CASE CO-ORDINATE B BENCH ORDER DATED 24- 08-2012 IN ITA NO. 3357/AHD/2008 FOR THE ASSESSMENT YEAR 2005-06 W HEREIN THE APPELLANT WAS NOT ALLOWED DEDUCTION U/S 80IB(10) BY RELYING T HE ORDER OF CO-ORDINATE B BENCH IN CASE OF MANAM CORPORATION, SURAT IN I TA NO. 2424/AHD/2009 ORDER DATED 13-05-2005. M.A. NO. 214 /AHD/2012 (ARISING OUT OF ITA NO. 3357/AHD/2008) A.Y.:-2005-06 M.A. NO. 214/AHD/2012 A.Y. 2005-06 PAGE NO M/S MAC DEVELOPERS VS. ITO 2 2. NOW, THE ASSESSEE HAS FILED THIS M.A. AND CONTE NDED AS UNDER:- 1. THE APPELLANT FILES THE PRESENT APPLICATION FOR SETTING ASIDE THE ORDER DATED 24/08/2012 PASSED BY THIS HON'BLE TRIBU NAL ALLOWING THE APPEAL FILED BY THE RESPONDENT (ORIGIN AL APPELLANT). IT IS MOST RESPECTFULLY SUBMITTED THAT IN THE SAID ORDER OF THE HON'BLE ITAT, THERE IS ERROR APPARENT ON THE RECORD. 2. THE HON'BLE ITAT WHILE ALLOWING APPEAL FILE D BY THE RESPONDENT (ORIGINAL APPELLANT) ADJUDICATED AS UNDE R ON PAGE 24 OF THE ORDER: THE APPELLANT ALSO RELIED UPON VARIOUS CASE LAWS ME NTIONED IN HIS REPLY AND IN ARGUMENT BUT THEY ARE DIFFERENT BE NCHES OF IT AT AS DECIDED BY THE JURISDICTIONAL HIGH COURT DECI SION IN CASE OF SAYAJS IRON AND ENGG. CO. IN WHICH IT WAS HELD T HAT SUBSEQUENT BENCH CANNOT DEFER WITH AN EARLIER DECIS ION OF CO - ORDINATE BENCH OF THIS TRIBUNAL. THEREFORE, WE HAVE TO FOLLOW THE CO - ORDINATE BENCH, AHMEDABAD, DECISION IN CAS E OF M/S MANAN CORPORATION (SUPRA). ACCORDINGLY, THE APPELLANT IS NOT ENTITLED THE DEDUCTION U/S 8OIB (10) OF THE IT ACT. THEREFORE, WE CANNOT UPHOLD ORDER OF THE CIT (A) IN VIEW OF THE A BOVE FINDINGS. THE REVENUE'S APPEAL IS ALLOWED. 3. THE APPELLANT RESPECTFULLY SUBMITS THAT THE ORDER O F THE CO - ORDINATE BENCH OF M/S MANAN CORPORATION, ITA # 2424/AHD/2009 ON WHICH THE HON'BLE BENCH RELIED UPO N TO ALLOW THE APPEAL FILED BY REVENUE IS NO LONGER VALI D. THE HON'BLE GUJARAT HIGH COURT HAS REVERSED THE DECISIO N OF THE HON'BLE ITAT VIDE THEIR JUDGMENT IN ITA NO, 1053 OF 2011 DATED 03/09/2012 (ANNEXTURE I) HOLDING THAT THE AMENDMENT IN SECTION 80IB(10) BY INSERTING PROVISO (D) PUTTING C EILING ON COMMERCIAL AREA EFFECTIVE FROM 01/04/2005 DOES NOT APPLY TO PROJECTS APPROVED BEFORE 01/04/2005. THE PROJECT OF THE APPLICANT AS NOTED IN THE ORDER WAS APPROVED PRIOR TO 01/04/2005.. M.A. NO. 214/AHD/2012 A.Y. 2005-06 PAGE NO M/S MAC DEVELOPERS VS. ITO 3 4. UNDER THE CIRCUMSTANCES IT IS RESPECTFULLY SUBMI TTED THAT THE DECISION RELIED UPON BY THE HON'BLE BENCH TO ALLOW, THE APPEAL FILED BY REVENUE HAVING BEEN REVERSED BY THE JURISD ICTIONAL HIGH COURT, THERE IS AN ERROR APPARENT ON THE RECOR D AND THE SAME REQUIRES TO BE RECTIFIED AND THEREFORE, THE OR DER OF THE HON'BLE ITAT IS REQUIRES TO BE RECALLED AND APPEAL FILED BY REVENUE BE DISMISSED BY UPHOLDING ORDER OF ID. CIT (A) GRANTING RELIEF TO THE APPELLANT. 3. THE APPELLANT HAS REQUESTED TO ALLOW DEDUCTION U /S 80IB(10). BUT FROM THE SIDE OF THE REVENUE, LD. D.R. ARGUED THAT IF THE M.A. IS ALLOWED IT WILL TANTAMOUNT TO REVIEW THE ORDER OF THE BENCH WH ICH IS NOT PERMITTED UNDER THE LAW. 4. WE HAVE HEARD THE RIVAL CONTENTION AND PERUSED T HE MATERIAL ON RECORD. IN THE CASE, THE ISSUE WAS INVOLVED WHETHE R DEDUCTION U/S 80IB(10) IS ALLOWABLE OR NOT AFTER AMENDMENT IN SECTION 80IB (10) W.E.F. 01/04/2005 WHICH PROVIDES THAT EVEN THOUGH SHOPS AND COMMERCIA L ESTABLISHMENTS ARE INCLUDED IN THE HOUSING PROJECT U/S 80IB(10) W.E.F. 01/04/2005 WOULD BE ALLOWABLE WHERE SUCH COMMERCIAL USER DOES NOT EXCEE D 5 PER CENT OF THE AGGREGATE BUILT UP AREA OF THE HOUSING PROJECT FOR 2,000 SQUARE FEET WHICHEVER IS LOWER. BY FINANCE ACT, 2010 CLAUSE (D ) IS AMENDED TO THE EFFECT THAT COMMERCIAL USER SHOULD NOT EXCEED 3 PER CENT OF THE AGGREGATE BUILT UP AREA OF THE HOUSING PROJECT OR 5,000 SQUAR E FEET WHICHEVER IS HIGHER. SINCE THE CASE LAW CITED BY THE APPELLANT IN FAVOUR OF THE ASSESSEE BUT THE VERIFICATION OF FACTS/INFORMATION CANNOT BE MADE ON THE BASIS OF INFORMATION AVAILABLE ON RECORD. THUS, WE RECALL OUR ORDER DAT ED 24/08/2012 IN CASE OF M.A. NO. 214/AHD/2012 A.Y. 2005-06 PAGE NO M/S MAC DEVELOPERS VS. ITO 4 APPELLANT FOR A.Y. 2005-06. ACCORDINGLY, THE REGIS TRY IS DIRECTED TO FIX THIS CASE IN REGULAR BENCH. 5. IN THE RESULT, THIS M.A. IS ALLOWED. SD/- SD/- (MUKUL KR. SHRAWAT) (T.R. MEE NA) JUDICIAL MEMBER A CCOUNTANT MEMBER AHMEDABAD : DATED 31/01/2013 AK / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. / CONCERNED CIT 4. - / CIT (A) 5. , ! , '# / DR, ITAT, AHMEDABAD 6. $% &' / GUARD FILE. BY ORDER/ , ( / ' ) ! , '#