The ITO, Ward-3(1), Baroda V. M/s. D.D.Construction, Baroda

MA 252/AHD/2010

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7434 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 1 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-01-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 26-11-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B L YADAV

Judgement Text

, , , . , ! ! ! ! ' ' ' ' IN THE INCOME TAX APPELLATE TRIBUNAL : A BENCH : AHMEDABAD BEFORE SHRI BHAVNESH SAINI, J.M. & HONBLE SHRI A .MOHAN ALANKAMONY, A.M.) ## ## ## ## (M.A.) NO.252/AHD/2010 : ASSESSMENT YEAR 2006-07 (ARISING OUT OF ITA NO.2291/AHD./2009) ITO, WARD-3(1), BARODA .... ( / APPLICANT) -VS- D.D. CONSTRUCTION, BARODA ( $%&' / RESPONDENT) PAN: AADFD 5422C ( ) /APPLICANT BY : SHRI B.L.YADAV, SR.D.R. $%&' ( ) / RESPONDENT BY : NONE (WRITTEN SUBMISSION) *+ ( ,-! / DATE OF HEARING : 13/01/2012 . / ( ,-! / DATE OF PRONOUNCEMENT : 13/01/2012 / ORDER PER SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER : THE REVENUE HAS FILED THIS MISCELLANEOUS APPLICATI ON UNDER SECTION 254(2) OF THE I.T. ACT SEEKING RECTIFICATION OF THE ORDER PASSED BY THE TRIBUNAL DATED 30.09.2009 IN ITA NO.2291/AHD/2009 F OR THE ASSESSMENT YEAR 2006-07. 2. THE REVENUE, VIDE ITS M.A. DATED 26.11.2010, HAS STATED AS UNDER: IT IS RESPECTFULLY SUBMITTED THAT IN THE ORDER OF T HE INCOME-TAX APPELLATE TRIBUNAL, AHMEDABAD BENCH 'A', AHMEDABAD IN ITA NO.2291/AHD/2009 PASSED IN THE CASE OF INCOME-TAX O FFICER, WARD- 2 M.A.NO. 252-AHD-2010 3(1), BARODA VERSUS M/S. D.D.CONSTRUCTION, BARODA F OR THE ASSESSMENT YEAR 2006-07, MISTAKE APPARENT FROM THE RECORD HAS CROPPED UP WHICH IS DELINEATED HEREUNDER. 2. THE ASSESSING OFFICER WHILE PASSING ASSESSMENT O RDER HAS RESTRICTED THE DEDUCTION AMOUNTING TO RS.33,17,320/ - TO RS16,56,886/- CLAIM BY THE ASSESSEE U/S.80IB(10) OF THE ACT HOLDING THAT THE PROFIT AMOUNTING TO RS.16,60,334/- SHOULD NOT BE TREATED AS PROFIT ON SALE OF UNDEVELOPED PLOT OF LAND/UNUTILIZ ED FSI . THE LD.C.I.T.(APPEALS) -II,BARODA HAS ALLOWED THE APPEA L IN FAVOUR OF THE ASSESSEE. HOWEVER, THE DEPARTMENT PREFERRED APPEAL TO THE I.T.A.T.,AHMEDABAD VIDE FORM NO.36 INCORPORATING 8 GROUNDS OF APPEALS. 3. IN THE AFORESAID ORDER, THE HON'BLE I.T.A.T., AH MEDABAD BENCH'A', AHMEDABAD HAS SET-ASIDE THE ORDER OF THE LOWER AUTH ORITIES ON THE ISSUE AND RESTORE THE MATTER TO THE FILE OF ASSESSI NG OFFICER FOR FRESH ADJUDICATION AS PER THE DIRECTION GIVEN VIDE PARA-5 FOLLOWING THE DECISION OF SHAKTI CORPORATION. THE TRIBUNAL FURTHE R STATED THAT IF THE A.O. FINDS THAT PRACTICALLY THE LAND HAS BEEN BOUGH T BY THE DEVELOPER AND DEVELOPER HAS ALL DOMINANT CONTROL OVER THE PRO JECT AND DEVELOPED THE LAND AT HIS OWN COST AND RISKS, THEN THE DEDUCTION U/S.80IB(10) BE ALLOWED TO THE ASSESSEE. 3. HOWEVER, THE HON'BLE I.T.A.T.. AHMEDABAD BENCH-A . AHMEDABAD HAS NOT DECIDED THE ISSUE TAKEN UP VIDE GROUND NO.7 WHICH RELATES TO THE RESTRICTION OF DEDUCTION IN RESPECT OF UNUTILIZED FSI, WHICH IS MENTIONED AS UNDER :- '7. 'WITHOUT PREJUDICE, THE ID.C.I.T.(APPEALS) ERRED IN ALLOWING DEDUCTION U/S.80IB(10) IN RESPECT OF THE P ROCEEDS ATTRIBUTABLE TO THE SALE OF UNUTILIZED FSI AND NOT TO THE DWELLING UNITS IN THE HOUSING PROJECTS, WHICH COULD NOT BE TERMED AS PROFITS 'DERIVED' FROM DEVELOPING AND BUI LDING HOUSING PROJECTS IN TERMS OF THIS PROVISION. 4. SINCE, THE MISTAKE IS APPARENT ON RECORD, MISCELLAN EOUS APPLICATION IS MADE BEFORE THE INCOME-TAX APPELLATE TRIBUNAL, AHMEDABAD WITH A PRAYER THAT THE IMPUGNED ORDER MAY BE RECTIFIED . 3 M.A.NO. 252-AHD-2010 3. AT THE TIME OF HEARING, THE LD. D.R. SUBMITTED T HAT THE ABOVE SUBMISSIONS OF THE DEPARTMENT MAY BE CONSIDERED AND THE ORDER OF THE TRIBUNAL DATED 30.09.2009 MAY BE RECALLED FOR ADJUD ICATION OF THE GROUND NO.7, AS REPRODUCED ABOVE. ON THE OTHER HAND, NONE APPEARED ON BEHALF OF THE ASSESSEE BUT THE ASSESSEE HAS SUBMITTED WRITTEN SUBMISSION WITH REGARD TO THE ABOVE-SAID GROUND. 4. WE HAVE HEARD THE SUBMISSIONS OF THE LD. D.R. AN D PERUSED THE MATERIALS ON RECORD. ON PERUSING THE ORDER OF THE TRIBUNAL, WE FIND THAT THE PRAYER OF THE REVENUE SEEMS TO BE JUSTIFIED SINCE G ROUND NO.7 IS NOT ADJUDICATED. HENCE, THE ORDER OF THE TRIBUNAL IS R ECALLED IN ORDER TO ADJUDICATE THE GROUND NO.7 VIZ. 'WITHOUT PREJUDICE, THE ID.C.I.T.(APPEALS) ERRED IN ALLOWING DEDUCTION U/S.80IB(10) IN RESPECT OF THE PROCEEDS ATTRIBUTABLE TO THE SALE OF UNUTILIZED FSI AND NOT TO THE DWELLING UNITS IN THE HOUSING PROJECTS, WHICH COULD NOT BE TERMED AS PROFITS 'DERIVED' FROM DEVELOPING AND BUILDING HOUSING PROJECTS IN TE RMS OF THIS PROVISION. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE REVENUE IS ALLOWED, AS INDICATED ABOVE. 0 ( . / 12 13 / 01 /201 2 3 ( 4+ 5 SD/- SD/- (BHAVNESH SAINI) (A.MOHAN ALANKAMONY ) JUDICIAL MEMBER ACCOUNTANT M EMBER DATED : 13/01/2012 4 M.A.NO. 252-AHD-2010 ( (( ( $,# $,# $,# $,# 6 6 6 6#/,2 #/,2 #/,2 #/,2- -- - 1. &' 2. $%&' 3. , *< 4. *<- - 5. #4 $,, , 5 6. 4A B0 , C/ E , 5 TALUKDAR/ SR. P.S.