Bhargavi Developers, Hyderabad V. ITO, Ward -11(4), Hyderabad

MA 44/HYD/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1624 (ITAT-HYDERABAD)
• Duration Of Justice: 2 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-03-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 17-01-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: S RAMA RAO

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER MISC. APPLN. NO.44/HYD/2014 (IN ITA NO.1294/HYD/12) : ASSESSMENT YEAR 2009 - 10 M/S. BHARGAVI DEVELOPERS HYDERABAD ( PAN - AGHFB 9433 H) V/S. INCOME TAX OFFICER, WARD 11(4), HYDERABAD, HYDERABAD (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI S.RAMA RAO RESPONDENT BY : SHRI SOLGY JOSE T.KOTTARAM DR DATE OF HEARING 21.3.2014 DATE OF PRONOUNCEMENT 28.3.2014 O R D E R PER SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER: BY THIS APPLICATION UNDER S.254(2) OF THE ACT, ASSESSEE SEEKS RECTIFICATION/RECALL OF THE ORDER OF THIS TRIBUNAL DATED 22 ND JANUARY, 2014 IN ASSESSEES APPEAL, ITA NO.1294/HYD/2012 FOR THE ASSESSMENT YEAR 2009 - 10, ON THE GROUND THAT CERTAIN MISTAKES APPARENT FROM RECORD HAVE CREPT INTO THE SAME. 2. REITERATING THE AVERMENTS/CONTENTIONS URGED IN THE P RESENT APPLICATIONS, LEARNED COUNSEL FOR THE ASSESSEE, AFTER NARRATING THE FACTUAL BACKGROUND LEADING TO THE FILING OF THE PRESENT APPLICATION, SUBMITTED THAT THE ASSESSEE CLAIMED DEDUCTION UNDER S.80IB(10) OF THE ACT FOR ITS SHARE OF INCOME FROM THE DEVEL OPMENT PROJECT UNDERTAKEN BY IT JOINTLY WITH ANOTHER FIRM, M/S. PARAMOUNT BUILDERS. HE SUBMITTED THAT IN RESPECT OF SHA R E DERIVED BY IT FROM THE PROJECT BY M/S. PARAMOUNT BUILDERS, THE SAID CONCERN CLAIMED D EDUC T ION UNDER S.80IB(10) OF THE ACT, AND THE CL AIM OF THE ASSESSEE FOR CORRESPONDING DEDUCTION IS ONLY IN RESPECT OF ITS SHARE, IN RESPECT OF WHICH THE OTHER FIRM HAS MA NO. 44 /HYD/2014 (IN ITA NO. 1 29 4/ HYD/20 1 2 ) M/S. BHARGAVI DEVELOPERS , HYDERABAD 2 NOT CLAIMED ANY DEDUCTION UNDER S.80IB(10) OF THE ACT. WHILE THE TRIBUNAL HELD THE VIEW THAT THE ASSESSEE WOULD BECOME ENTITLED FOR DED UCTION UNDER S.80IB(10), IF M/S. PARAMOUNT BUILDERS HAS NO T CLAIMED SUCH DEDUCTION IN RESPECT OF THE INCOME DERIVED BY THE ASSESSEE, THE ULTIMATE DIRECTIONS OF THE TRIBUNAL TO THE ASSESSING OFFICER FOR ALLOWING RELIEF TO THE ASSESSEE ARE NO T CLEAR AND CAT EGORICAL IN THAT RESPECT, INASMUCH AS EH ASSESSING OFFICER WAS DIRECTED TO ALLOW DEDUCTION TO THE ASSESSEE IF M/S. PRAMOUNT BUILDERS WERE NOT ALLOWED SU C H DEDUCTION UNDER S.80IA(10)). 3. LEARNED DEPARTMENTAL REPRESENTATIVE ON THE CONTRARY, STRONGLY SUPP ORTED THE ORDER OF THE TRIBUNAL AND SUBMITTED THAT THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL DATED 22 . 1 .201 4 . 4. WE HEARD BOTH SIDES AND PERUSED THE MATERIAL ON RECORD, IN THE LIGHT OF THE PRESENT APPLICATION OF THE ASSESSEE AND THE ORDER OF THIS TRIBUNAL DATED 22 . 1 .201 4 . THOUGH THE FINDING OF THE TRIBUNAL IN PARAS 10 AND 11 ARE CLEAR IN AS MUCH AS IT WAS HELD THAT IN THE CA S E OF A PROJECT UNDERTAKEN BY A JOIN T VENTURE, IT IS ONLY ANY O NE OF TH E CONSTITUENTS, WHO WOULD BE ELIGIBLE FOR DEDU CT ION UNDER S.80IB(10) OF THE ACT. THE ULTIMATE FINDING AND DIRECTION OF THE TRIBUNAL IN THE CONCLUDING PORTION OF PARA 11 READ AS FOLLOWS - 11. .HOWEVER, IN THE CASE OF A PROJECT UNDERTAKEN BY A JOINT VENTURE, IT IS ONLY ANY ONE OF THE CONSTITUENTS, WHO WOULD BE ELIGIBLE FOR DEDUCTION UNDER S.80IB(10) OF THE ACT. T HAT BEING SO, WE DIRECT THE ASSESSING OFFICER TO ALLOW THE DEDUCTION CLAIMED BY TH E ASSESSEE UNDER S.80IB(10) OF THE ACT, IF OTHER CONSTITUENT OF THE JOINT VENTURE, VIZ. PARAMOUNT BUILDERS HAS NOT CLAIMED THE DEDUCTION ON THE SAME PROJECT AFTER OPPORTUNITY OF HEARING TO THE ASSESSEE. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE PRES ENT CASE, WE AGREE WITH THE APPLICANT THAT THE ABOVE ULTIMATE FINDING AND DIRECTION IN PARA 11 OF OUR ORDER DATED 22.1.2014, ARE NOT UNAMBIGUOUS AND COULD LEAD TO MISINTERPRETATION. WE ACCORDINGLY MODIFY THE SAID SENTENCE AS FOLLOWS - MA NO. 44 /HYD/2014 (IN ITA NO. 1 29 4/ HYD/20 1 2 ) M/S. BHARGAVI DEVELOPERS , HYDERABAD 3 11. .HOWEVER, IN THE CASE OF A PROJECT UNDERTAKEN BY A JOINT VENTURE, IT IS ONLY ANY ONE OF THE CONSTITUENTS, WHO WOULD BE ELIGIBLE FOR DEDUCTION UNDER S.80IB(10) OF THE ACT , IN RESPECT OF SHARE OF INCOME DERIVED BY CONSTITUENT. T HAT BEING SO, WE DIRECT THE ASSESSING OFFICER TO ALLOW THE DEDUCTION CLAIMED BY THE ASSESSEE UNDER S.80IB(10) OF THE ACT, IF OTHER CONSTITUENT OF THE JOINT VENTURE, VIZ. PARAMOUNT BUILDERS HAS NOT CLAIMED THE DEDUCTION ON THE SAME PART OF INCOME DERIVED FROM THE PROJECT AFTER OPPORT UNITY OF HEARING TO THE ASSESSEE. ACCORDINGLY, THE ORDER OF THE TRIBUNAL D A TED 22.1.2014 IS MODIFIED TO THE EXTENT INDICATED ABOVE. 5. IN THE RESULT, ASSESSEES MISCELLANEOUS A PPLICATION IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE COURT ON 28.3.2014 SD/ - SD/ - (C HANDRA POOJARI ) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER DT/ - 28 TH M ARCH , 2014 COPY FORWARDED TO: 1. M/S. BHARGAVI DEVELOPERS C/O. SHRI S.RAMA RAO, FLAT NO.102, SHIRYA'S ELEGANCE, NO.3 - 6 - 643, STREET NO.9, HIMAYATNAGAR, HYDERABAD 500029 2 . INCOME TAX OFFICER WARD 11(4), HYDERABAD 3. COMMISSIONER OF INCOME - TAX(APPEALS) VI HYDERABAD 4. COMMISSIONER OF INCOME - TAX V , HYDERABAD 5 DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S