M/s. Kirti Construction, Baroda V. The Income tax Officer,Ward-2(1), Baroda

MA 26/AHD/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0721 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-08-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 18-02-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: O P BATEJA
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER M.A. NO.39/AHD/2010, 26/AHD/2013 & 168/AHD/2011 (ARISING OUT OF ITA NOS.3074/AHD/2008 AND 3022/AHD/ 2009) A.Y: 2008-09 M/S. KIRTI CONSTRUCTION AYODHYA TOWNSHIP, KEDARPARK, MOTINAGAR3 TARASALI ROAD, BARODA PAN: AAGFK 7066A VS INCOME TAX OFFICER, WARD-2(1), IST FLOOR, AAYKAR BHAVAN RACE COURSE, BARODA. (ASSESSEE) (REVENUE) REVENUE BY : SHRI O.P. BATEJA, SR. D.R. ASSESSEE(S) BY : SMT. URVASHI SODHAN, A.R. / // / DATE OF HEARING : 02/08/2013 / DATE OF PRONOUNCEMENT: 14/08/2013 / O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER : TWO MAS, I.E., M.A. NO.26/AHD/2013 AND 39/AHD/2010 WERE FILED BY THE ASSESSEE WHEREAS THE REMAINING ONE M.A. BEIN G M.A. NO.163/AHD/2011 HAS BEEN FILED BY THE REVENUE. 2. REGARDING M.A. NO.26/AHD/2013, IT WAS SUBMITTED BY THE LEARNED AR OF THE ASSESSEE THAT THIS M.A. IS NOT PRESSED. A CCORDINGLY, WE DISMISS THE SAME AS NOT PRESSED. 3. REGARDING SECOND M.A. OF THE ASSESSEE BEING M.A. NO.39/AHD/2010, IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT SUBSEQUENTLY, LEARNED CIT(A) HAS DECIDED THIS ISSUE IN FAVOUR OF THE MA NOS. 39/AHD/10, 26/AHD/13 AND 168/AHD/11 M/S. KIRTI CONSTRUCTION BARODA VS. ITO A.Y. 2008-09 - 2 - ASSESSEE AND, THEREFORE, THIS MA IS ALSO NOT PRESSE D. ACCORDINGLY, WE DISMISS THE SAME AS NOT PRESSED. 4. REGARDING THE MA FILED BY THE REVENUE, IT WAS SU BMITTED BY LEARNED DR OF THE REVENUE THAT AS PER THE TRIBUNAL ORDER IN ASSESSEES OWN CASE FOR A.Y. 2005-06 IN ITA NO.3074/AHD/2008 D ATED 27.11.2009, IT WAS HELD BY THE TRIBUNAL THAT THE DEDUCTION UNDE R SECTION 80IB (10) IS NOT ALLOWABLE TO THE ASSESSEE IF THE PROJECT IS NOT COMPLETED WITHIN THE STIPULATED PERIOD PROVIDED UNDER SECTION 80IB (10) OF IT ACT. HE FURTHER SUBMITTED THAT IN THE PRESENT YEAR, I.E., A.Y. 2006 -07, THE TRIBUNAL SHOULD HAVE DECIDED THE ISSUE ON THE SAME LINES AS WAS DEC IDED BY THE TRIBUNAL IN A.Y. 2005-06 BUT SINCE THIS WAS NOT DONE BY THE TRIBUNAL, IT IS AN APPARENT MISTAKE IN THE TRIBUNAL ORDER, WHICH SHOUL D BE RECTIFIED. AS AGAINST THIS, IT WAS SUBMITTED BY THE LEARNED A.R. OF THE ASSESSEE THAT THERE IS NO MISTAKE IN THE TRIBUNAL ORDER IN THE PR ESENT YEAR BECAUSE NO ADDITIONAL GROUND WAS RAISED BY THE REVENUE IN THIS YEAR WHEREAS AN ADDITIONAL GROUND WAS RAISED BY THE REVENUE IN A.Y. 2005-06. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND WE FIND THAT IN A.Y. 2005-06 FOLLOWING ADDITIONAL GROUND WAS RAISED BY T HE REVENUE AS HAS BEEN NOTED BY THE TRIBUNAL IN PARAGRAPH 2 PAGE 3 OF THE TRIBUNAL ORDER FOR A.Y. 2005-06 DATED 27.11.2009, WHICH IS REPRODU CED HEREINBELOW: THAT THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION U/ S 80IB(10) ON THE GROUND THAT THE CONDITIONS REGARDING COMPLETION OF THE PROJECT AS PER THE ACT HAS NOT BEEN FULFILLED . 6. IN THE PRESENT YEAR, NO ADDITIONAL GROUND WAS R AISED BY THE REVENUE AND IN THE MAIN GROUND ALSO, AS HAS BEEN RE PRODUCED BY THE MA NOS. 39/AHD/10, 26/AHD/13 AND 168/AHD/11 M/S. KIRTI CONSTRUCTION BARODA VS. ITO A.Y. 2008-09 - 3 - TRIBUNAL AT PAGES 3 AND 4 OF THE IMPUGNED TRIBUNAL ORDER, THERE IS NO SUCH ISSUE RAISED BY THE REVENUE REGARDING NON ALLO WABILITY OF DEDUCTION U/S. 80IB (10) ON THE GROUND THAT THE CONDITIONS RE GARDING COMPLETION OF THE PROJECT AS PER THE ACT HAS NOT BEEN FULFILLED. THE TRIBUNAL IS REQUIRED TO DECIDE ONLY THOSE ISSUES AND ASPECTS OF THE MATT ER WHICH ARE RAISED BY ANY PARTY BEFORE THE TRIBUNAL AND SINCE, THIS ASPEC T OF THE MATTER WAS NOT RAISED BY THE REVENUE BEFORE THE TRIBUNAL IN THE PR ESENT YEAR, THE SAME WAS NOT REQUIRED TO BE DECIDED BY THE TRIBUNAL AND HENCE, THERE IS NO MISTAKE IN THE IMPUGNED TRIBUNAL ORDER ON THIS ACCO UNT. THIS MA OF THE REVENUE IS DISMISSED. 7. IN THE RESULT, BOTH THE MAS OF THE ASSESSEE AS W ELL AS THE MA OF THE REVENUE ARE DISMISSED. SD/- SD/- (MUKUL KR. SHRAWAT) (A.K. GARODIA) JUDICIAL MEMBER ACCOUNT ANT MEMBER AHMEDABAD; DATED 14/08/2013 PRABHAT KR. KESARWANI, SR. P.S. TRUE COPY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT. 3. #$#% ' '& / CONCERNED CIT 4. ' '&() / THE CIT(A)-III, AHMEDABAD 5. )*' %, ' ' % , ,-$ / DR, ITAT, AHMEDABAD 6. *./ 0 / GUARD FILE. / BY ORDER, 1 11 1/ // /,' #2 ,' #2 ,' #2 ,' #2 ( DY./ASSTT.REGISTRAR) ' ' % ' ' % ' ' % ' ' % , , , , ,-$ ,-$ ,-$ ,-$ / ITAT, AHMEDABAD