M/s. Baba Housing Corporation, Baroda v. The Income tax Officer,Ward-5(3),, Baroda

CO 90/AHD/2011 | 2005-2006
Pronouncement Date: 28-07-2011 | Result: Allowed

Appeal Details

RSA Number 9020523 RSA 2011
Assessee PAN AAGFM2711E
Bench Ahmedabad
Appeal Number CO 90/AHD/2011
Duration Of Justice 3 month(s) 13 day(s)
Appellant M/s. Baba Housing Corporation, Baroda
Respondent The Income tax Officer,Ward-5(3),, Baroda
Appeal Type Cross Objection
Pronouncement Date 28-07-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 28-07-2011
Date Of Final Hearing 26-07-2011
Next Hearing Date 26-07-2011
Assessment Year 2005-2006
Appeal Filed On 15-04-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL : D BENCH : AHMEDABAD (BEFORE HONBLE SHRI G.D.AGRAWAL V.P. & HONBL E SHRI T.K. SHARMA J.M.) I.T.A. NO. 139/AHD./2009 : ASSESSMENT YEAR : 2005-2006 ITO WARD-5(3) BARODA VS- BABA HOUSING CORPORATION BARODA (PAN : AAGFM 2711E) (APPELLANT) ( RESPONDENT) C.O. NO. 90/AHD/2011 : ASSESSMENT YEAR : 2005-2006 (ARISING OUT OF I.T.A. NO. 139/AHD./2009) BABA HOUSING CORPORATION BARODA -VS- I TO WARD-5(3) BARODA (APPELLANT) (RESPONDENT) DEPARTMENT BY : SHRI B.L.YADAV D. R. ASSESSEE BY : NONE (WRITTEN S UBMISSION) O R D E R PER SHRI T.K. SHARMA JUDICIAL MEMBER : THIS APPEAL FILED BY THE REVENUE AND THE CROSS OBJ ECTION FILED BY THE ASSESSEE ARE AGAINST THE ORDER DATED 16-10-2008 OF LEARNED C OMMISSIONER OF INCOME TAX(APPEALS)-V FOR THE ASSESSMENT YEAR 2005-06. 2. BRIEFLY STATED THE FACTS ARE THAT THE ASSESSEE I S A FIRM. FOR THE ASSESSMENT YEAR UNDER APPEAL IT FILED THE RETURN OF INCOME ON 14.1 1.2005 DECLARING LOSS OF RS.44 570/-. SUBSEQUENTLY THE REVISED RETURN OF INCOME WAS FILE D SHOWING INCOME OF RS.2 85 857/- AFTER CLAIMING SET-OFF OF RS.1 32 704/- OF THE PREC EDING YEARS CARRY FORWARD LOSSES. THE AO FRAMED THE ASSESSMENT UNDER SECTION 143(3) O N 26.12.2007 AT A TOTAL INCOME OF RS.7 39 770/-. IN THIS RETURN OF INCOME THE AO DISALLOWED LABOUR PAYMENTS BY INVOKING PROVISIONS CONTAINED IN SECTION 40(A)(IA) AMOUNTING TO RS.4 53 914/- AND ALSO HELD THAT THE ASSESSEE IS NOT ENTITLED TO DEDU CTION CLAIMED UNDER SECTION 80IB(10) IN RESPECT OF SAI NATH PARK PROPORTIONATE PROFIT O F RS.2 85 857/- BEING 100% OF THE TOTAL INCOME EARNED FROM THE SAID PROJECT. ITA NO.139-AHD-09 & C.O.90-AHD-11 2 3. ON APPEAL IN THE IMPUGNED ORDER THE LD. CIT(A) FOLLOWING THE DECISION OF ITAT AHMEDABAD BENCH IN THE CASE OF RADHE DEVELOPE RS & OTHERS VS- ITO IN ITA NO.2482/AHD/2006 DIRECTED THE AO TO ALLOW DEDUCTIO N UNDER SECTION 80IB(10) AMOUNTING TO RS.2 85 857/-. WITH REGARD TO DISALLOW ANCE OF LABOUR PAYMENT OF RS.4 53 914/- UNDER SECTION 40(A)(IA) THE LD. CIT( A) RESTRICTED THE SAID DISALLOWANCE TO RS.67 863/- ON THE GROUND THAT THE TOTAL INCOME COMPUTED AT RS.2 17 994/- UNDER 80IB PROJECT IS EXEMPT FROM TAX. 4. AGGRIEVED WITH THE ORDER OF THE LD. CIT(A) THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LEARNED CIT(A) ERRED IN ALLOWING DEDUCTION OF RS.2 85 857/- UNDER SECTIO N 80IB(10)OF THE INCOME-TAX ACT DESPITE THE ASSESSEE'S UNDERTAKING NOT BEING AP PROVED BY THE LOCAL AUTHORITY. THE LEARNED CIT(A) RELIED ON THE ' ITAT' S DECISION IN THE CASE OF M/S. RADHE DEVELOPERS. THE SAID DECISION HAVE NOT BEEN A CCEPTED BY THE DEPARTMENT AND AN APPEAL TO THE HIGH COURT HAS BEEN FILED. 2. THE LEARNED CIT(A) ERRED IN NOT APPRECIATING THA T THE APPROVAL FOR DEVELOPING AND BUILDING HOUSING PROJECTS WAS GRANTE D TO THE ORIGINAL OWNERS OF THE LAND AND NOT TO THE ASSESSEE WHO ACTED ONLY AS AN AGENT FOR EXECUTION OF THE PROJECT OF SAI NATH PARK WHICH RIGHTS WERE OBT AINED BY THE ASSESSEE FIRM FROM THE ORIGINAL OWNERS. 3. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE LAND BEING AN ESSENTIAL AND INTRINSIC PART OF DEVELOPING AND BUILDING OF A HOUS ING PROJECT APPROVAL IS GRANTED BY THE LOCAL AUTHORITY TO THE OWNER OF THE LAND FOR DEVELOPING AND BUILDING HOUSING PROJECTS THEREON AND ANY OTHER PE RSON TO WHOM HE ENTRUSTS THE WORKS CONNECTED WITH THE EXECUTION OF THE PROJE CT INSTEAD OF TAKING IT UP HIMSELF CANNOT BE SAID TO BE AN 'UNDERTAKING DEVEL OPING AND BUILDING HOUSING PROJECTS APPROVED BY THE LOCAL AUTHORITY WITHIN TH E MEANING OF SECTION 80IB(10) OF THE ACT. 4. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT IT IS THE OWNERS OF THE LAND WHO ENTERED INTO AGREEMENTS FOR SALE OF THE DEVELOPED U NITS TO THE BUYERS AND THE ASSESSEE ACTED ONLY AS A CONFIRMING PARTY WHICH REN DERS THE OWNERS OF THE LAND AND NOT THE ASSESSEE AS 'AN UNDERTAKING' IN TERMS O F SECTION 80IB(10). 5. THE LEARNED CIT(A) ERRED IN ADOPTING LIBERAL INT ERPRETATION OF A .BENEVOLENT PROVISION DESPITE THE SAME DOING VIOLENCE TO THE EX PRESS LANGUAGE USED IN THE PROVISION IN CONTRAVENTION OF THE RATIO SETTLED IN THE CASE OF PETRON ENGINEERING CONSTRUCTION P. LTD. VS C.B.D.T.175 ITR 523 (SC) C IT VS BUDHARAJA & CO ITA NO.139-AHD-09 & C.O.90-AHD-11 3 204 ITR 412 (SC) PANDIAN CHEMICALS LTD. VS CIT 262 ITR 278 (SC) AND IPCA LABORATORIES LTD VS CIT 262 ITR 278 (SC). 6. THE LEARNED CIT(A) ERRED IN LAW IN RESTRICTING THE ADDITION TO THE TUNE OF RS.67 863/- MADE U/S.40(A)(IA). 4.1 THE ASSESSEE HAS ALSO FILED THE CROSS OBJECTION ON THE FOLLOWING GROUNDS: I. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN ALLOWING RS.386051.00 OF LABOUR PAYMENTS AS AGAINST OUR CLAI M OF RS.453914.00. II. THE APPELLANT RESPECTFULLY SUBMITS AS FOLLOWS: THAT IN VIEW OF DECISIONS OF HONOURABLE AHMEDABAD I NCOME TAX APPELLATE TRIBUNAL IN CASE OF SHRI KANUBHAI RAMJIBHAI MAKWANA V. ITO (APPEAL NO.3983/AHD/2008 ORDER DT. 03.12.2010) AND SHRI KU LWANT SINGH RANDHAWA V. ITO (APPEAL NO.2191/AHD/2008 ORDER DT.16.12.201 0 GIVING RETROSPECTIVE EFFECT FROM 01.04.2005 TO THE AMENDMENT MADE BY FIN ANCE ACT 2010 TO PROVISIONS OF SECTION 40(A)(IA) OF THE ACT W.E.F. 0 1.04.2010 TOTAL LABOUR PAYMENT OF RS.453914.00 BE ALLOWED. 5. ON THE DATE FIXED FOR HEARING NONE WAS PRESENT FROM THE SIDE OF THE ASSESSEE. WE THEREFORE PROCEED TO DECIDE THE APPEAL OF THE REVENUE AS WELL AS THE CROSS OBJECTION OF THE ASSESSEE ON THE BASIS OF SUBMISSIO NS MADE BY THE LD. D.R. AND THE MATERIALS AVAILABLE ON RECORD. SHRI B.L.YADAV APPE ARING ON BEHALF OF THE REVENUE POINTED OUT THAT THE RATIO LAID DOWN BY THE ITAT A HMEDABAD BENCH IN THE CASE OF RADHE DEVELOPERS ( SUPRA ) IS NOT APPLICABLE TO THE FACTS OF THE IMPUGNED CA SE. THE SALIENT FEATURES OF THE FACTS AS EXISTED IN THE CAS E OF RADHE DEVELOPERS DECISION ARE AS UNDER: 1. THERE WAS AN AGREEMENT TO SALE IN FAVOUR OF ASS ESSEE DEVELOPER AND POSSESSION WAS GIVEN BY THE LAND OWNER. SALE CONSID ERATION WAS ALSO PAID. 2. ALL APPROVALS / PERMISSIONS WERE OBTAINED BY POW ER OF ATTORNEY OF LAND OWNER I.E. ASSESSEE. 3. RIGHT TO TAKE / PERUSE ALL GOVT. / QUASI GOVT. P ROCEEDINGS RESTED WITH THE ASSESSEE DEVELOPER BY AN AGREEMENT. 4. FOR ALL THESE BUNDLES OF RIGHTS THE ASSESSEE DEV ELOPER HAD PAID CONSIDERATION TO LAND OWNER AND OBTAINED ALL RIGHTS INCLUDING OWN ERSHIP RIGHTS. ITA NO.139-AHD-09 & C.O.90-AHD-11 4 5.1 THE LD. D.R. FURTHER DREW OUR ATTENTION TO THE FINDINGS OF THE ITATS ORDER IN PARA 18 IN THE CASE OF RADHE DEVELOPERS ( SUPRA ) WHICH IS THE FOUNDATION OF THE DECISION READS AS UNDER: '... .... FROM THE CLAUSES OF THE DEVELOPMENT AND CONSTRUCTIO N AGREEMENTS AS WELL AS AGREEMENT FOR SALE BOTH DATED 18.05.2000 EXTRACTED ABOVE WE OBSERVE THAT THESE TWO AGREEMENTS EFFECTIVELY TRANSFER TO T HE ASSESSEE-FIRM ALL THE RIGHTS OF DEVELOPMENT AND CONSTRUCTION AND TO DEAL WITH TH E LAND FOR CONSIDERATION PAYABLE WITHIN A STIPULATED TIME; THAT THE ASSESSES HAD BEEN PUT IN POSSESSION OF THE LAND OF THE TERMS AND CONDITIONS AS MENTIONE D IN THESE TWO AGREEMENTS; THAT THE ASSESSEE-FIRM HA ALSO PAID CONSIDERATION O F RS.56 LACS DURING THE TWO F.YRS. I.E. 2000-01 AND 2001-02; THAT THE ASSESSEE- FIRM HAS TO OBTAIN NECESSARY APPROVALS FROM THE LOCAL AUTHORITIES; I.E. BMC ON BEHALF OF THE LAND OWNERS AND ALL THE EXPENSES FOR SUCH PURPOSES ARE TO BE IN CURRED BY THE ASSESSEE; THAT THE ASSESSEE-FIRM HAS ENGAGED THE FIRM OF ARCHITECT AND ALSO INCURRED EXPENSES TOWARDS THE CHARGES PAYABLE TO CORPORATION ETC. F OR OBTAINING THE APPROVALS; THAT EVEN FROM THE BOOKS OF ACCOUNT IT IS NOTICED THAT FOR OBTAINING THE APPROVAL THE ASSESSEE-FIRM HAS PAID THE DEVELOPMEN T CHARGES TO VARIOUS REGULATING AGENCIES I.E AUDA BMC AND GEB(GUJARAT E LECTRICITY BOARD) ETC. AND THAT THESE EXPENSES ARE INCURRED BY THE ASSESSE E-FIRM AND THE ASSESSING OFFICER HAS BROUGHT OUT THE COMPLETE DETAILS YEAR-W ISE IN HIS ASSESSMENT ORDERS AT PAGE NO.5 READING AS UNDER:- 5.2 THE LD. D.R. FURTHER REFERRED TO THE PRINCIPLE LAID DOWN IN THE RECENT CASE OF HONBLE APEX COURT IN THE CASE OF FAQIR CHAND GULAT I VS- UPPAL AGENCIES PVT. LTD. & ANR. IN CIVIL APPEAL NO.3302 OF 2005 DATED 10.07. 2008 AND STATED THAT THE FOLLOWING ISSUES WERE RAISED. (I) A DEVELOPMENT AGREEMENT IS ONE WHERE THE LAND-H OLDER PROVIDES THE LAND. THE BUILDER PUTS UP A BUILDING. THEREAFTER THE LAN D OWNER AND BUILDER SHARE THE CONSTRUCTED AREA. THE BUILDER DELIVERS THE 'OWN ER'S SHARE' TO THE LAND- HOLDER AND RETAINS THE 'BUILDER'S SHARE'. THE LAND- HOLDER SELLS / TRANSFERS UNDIVIDED SHARE/S IN THE LAND CORRESPONDING TO THE BUILDER'S SHARE OF THE BUILDING TO THE BUILDER OR HIS NOMINEES. THE LAND-H OLDER WILL HAVE NO SAY OR CONTROL IN THE CONSTRUCTION OF HAVE ANY SAY AS TO W HOM AND AT WHAT COST THE BUILDER'S SHARE OF APARTMENTS ARE TO BE DEALT WITH OR DISPOSED OF. SUCH AN AGREEMENT IS NOT A 'JOINT VENTURE' IN THE LEGAL SEN SE. IT IS A CONTRACT FOR 'SERVICES'. (II) ON THE OTHER HAND AN AGREEMENT BETWEEN THE OW NER OF A LAND AND A BUILDER FOR CONSTRUCTION OF APARTMENTS AND SALE OF THOSE OF APARTMENTS SO AS TO SHARE THE PROFITS IN A PARTICULAR RATIO MAY BE A JO INT VENTURE IF THE AGREEMENT DISCLOSES AN INTENT THAT BOTH PARTIES SHALL EXERCIS E JOINT CONTROL OVER THE CONSTRUCTION / DEVELOPMENT AND BE ACCOUNTABLE TO EA CH OTHER FOR THEIR RESPECTIVE ACTS WITH REFERENCE TO THE PROJECT. ITA NO.139-AHD-09 & C.O.90-AHD-11 5 (III) THE TITLE OF THE DOCUMENTS IS NOT DETERMINATI VE OF THE NATURE AND CHARACTER OF THE DOCUMENT THOUGH THE NAME MAY USUALLY GIVE S OME INDICATION OF THE NATURE OF THE DOCUMENT. THE USE OF THE WORDS 'JOINT VENTURE' OR 'COLLABORATION' IN THE AGREEMENT WILL NOT MAKE THE TRANSACTION A JO INT VENTURE IF THERE ARE NO PROVISIONS FOR SHARED CONTROL AND LOSSES. 5.3 ON THE BASIS OF THE AFORESAID ARGUMENTS THE LD . D.R. STATED THAT NEITHER THE AO NOR THE LD. CIT(A) HAS GONE INTO THE AGREEMENTS AND BUILDERS DEVELOPMENT AGREEMENT FROM WHERE IT CAN BE INFERRED THAT THE A SSESSEE IS A DEVELOPER OR A CONTRACTOR. HE ACCORDINGLY CONTENDED TO SET ASIDE T HE ISSUE FOR VERIFICATION OF DIFFERENT AGREEMENTS AND DOCUMENTS IN THE LIGHT OF THE JUDGME NT OF HONBLE APEX COURT IN THE CASE OF FAQIR CHAND GULATI ( SUPRA ). FURTHER THE LD. CIT(A) HAS NOT CONSIDERED THE REASONING GIVEN BY THE AO AND MERELY FOLLOWED THE D ECISION OF M/S. RADHE DEVELOPERS ( SUPRA ). THEREFORE THIS ISSUE BE REMANDED TO THE FILE OF THE AO. 6. AFTER HEARING THE LD. D.R. WE HAVE CAREFULLY GO NE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE HAVE ALSO PERUSED THE CASE L AWS. WE FIND CONSIDERABLE FORCE IN THE SUBMISSIONS MADE BY THE LD. D.R. BECAUSE THE IS SUE INVOLVED IN THIS APPEAL NEEDS RE-VERIFICATION IN THE LIGHT OF THE JUDGEMENT OF TH E HONBLE APEX COURT IN THE CASE OF FAQIR CHAND GULATI ( SUPRA ). SIMILARLY THE ITAT AHMEDABAD BENCH IN THE CASE S ALSO LAID DOWN CERTAIN PRINCIPLES IN THE LIGHT OF THE JU DGEMENT OF THE HONBLE APEX COURT IN THE CASE OF FAQIR CHAND GULATI ( SUPRA ) AND THE AO IS ALSO REQUESTED TO CONSIDER THE CASE LAW OF THE ITAT IN THE CASE OF SHAKTI CORPORAT ION ( SUPRA ). THE ITAT IN THIS CASE HELD AS UNDER: ' 16. THE FACTS INVOLVED IN THE CASE OF THE ASSESSEE ARE SIMILAR TO THE FACTS IN THE CASE OF RADHE DEVELOPERS (SUPRA) AND ACCORDINGLY WE ARE OF THE VIEW THAT THE ASSESSEE HAS ACQUIRED THE DOMINANT OVER THE LAND AN D HAS DEVELOPED THE HOUSING PROJECT BY INCURRING ALL THE EXPENSES AND T AKING ALL THE RISKS INVOLVED THEREIN. WE MAY MENTION HERE THAT IN OUR OPINION THE DECISION IN THE CASE OF RADHE DEVELOPERS (SUPRA) WILL NOT APPLY IN A CASE W HERE THE ASSESSEE HAS ENTERED INTO THE AGREEMENT FOR A FIXED REMUNERATION MERELY AS A CONTRACTOR TO CONSTRUCT OR DEVELOP THE HOUSING PROJECT ON BEHALF OF THE LANDOWNER. THE AGREEMENT ENTERED INTO IN THAT CASE WILL NOT ENTITL E THE DEVELOPER TO HAVE THE DOMINANT CONTROL OVER THE PROJECT AND ALL THE RISKS INVOLVED THEREIN WILL VEST WITH THE LANDOWNER ONLY. THE INTEREST OF THE DEVELO PER WILL BE RESTRICTED ONLY FOR THE FIXED REMUNERATION FOR WHICH HE WOULD BE RE NDERING THE SERVICES. THE DECISION IN THE CASE OF RADHE DEVELOPERS (SUPRA) HA S NOT DEALT WITH SUCH ITA NO.139-AHD-09 & C.O.90-AHD-11 6 SITUATION. THE PROPOSITION OF LAW LAID DOWN IN THE CASE OF RADHE DEVELOPERS CANNOT BE APPLIED UNIVERSALLY WITHOUT LOOKING INTO THE DEVELOPMENT AGREEMENT ENTERED INTO BY THE DEVELOPER ALONG WITH THE LANDOW NER. IN THE CASE OF SHAKTI CORPORATION SINCE THE ASSESSEE HAS FILED COPY OF TH E DEVELOPMENT AGREEMENT AND CRUX OF THE AGREEMENT IS THAT THE ASSESSEE HAS PURCHASED THE LAND AND HAS DEVELOPED THE HOUSING PROJECT AT ITS OWN THEREFORE WE ARE OF THE VIEW THAT THE ASSESSEE WILL BE ENTITLED FOR THE DEDUCTION U/S 80I B(10). THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF FAQIR CHAND GU LATI (SUPRA) WILL NOT ASSIST THE REVENUE AS THE AGREEMENT IS NOT SHARING OF THE CONSTRUCTED AREA. IN OTHER CASES THE COPY OF AGREEMENT SINCE HAS NOT BEE N SUBMITTED BEFORE US IF SUBMITTED THE TERMS AND CONDITIONS OF THE AGREEMEN T WERE NOT SPECIFICALLY ARGUED BEFORE AND PLACED BEFORE US WE THEREFORE I N THE INTEREST OF JUSTICE AND FAIR PLAY TO BOTH THE PARTIES SET ASIDE THE ORDER O F THE CIT(A) AND RESTORE ALL OTHER APPEALS TO THE FILE OF THE AO WITH THE DIRECT ION THAT THE AO SHALL LOOK INTO THE AGREEMENT ENTERED INTO BY EACH OF THE ASSESSEES WITH THE LANDOWNER AND DECIDE WHETHER THE ASSESSEE HAS IN FACT PURCHASED T HE LAND FOR A FIXED CONSIDERATION FROM THE LANDOWNER AND HAS DEVELOPED THE HOUSING PROJECT AT ITS OWN COST AND RISKS INVOLVED IN THE PROJECT. IN CASE THE AO FINDS THAT PRACTICALLY THE LAND HAS BEEN BOUGHT BY THE DEVELOPER AND DEVEL OPER HAS ALL DOMINANT CONTROL OVER THE PROJECT AND HAS DEVELOPED THE LAND AT HIS OWN COST AND RISKS THE AO SHOULD ALLOW THE DEDUCTION TO THE ASSESSEE U /S 80IB(10). IN CASE THE AO FINDS THAT THE DEVELOPER HAS ACTED ON BEHALF OF THE LANDOWNER AND HAS GOT THE FIXED CONSIDERATION FROM THE LANDOWNER FOR THE DEVE LOPMENT OF THE HOUSING PROJECTS THE ASSESSEE SHOULD NOT BE ALLOWED DEDUCT ION U/S 80IB(10) TO THE ASSESSEE. 6.1 IN VIEW OF THE ABOVE WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THIS ISSUE TO HIS FILE WITH THE DIRECTION THAT HE WILL C ONSIDER THE PRINCIPLES LAID DOWN BY THE HONBLE APEX COURT IN THE CASE OF FAQIR CHAND GULAT I ( SUPRA ) AS WELL AS THE DECISION OF THE ITAT IN THE CASE OF M/S. SHAKTI CORPORATION ( SUPRA ) AND RE-ADJUDICATE THE CLAIM OF THE ASSESSEE REGARDING ALLOWING OF CLAIM OF DEDU CTION UNDER SECTION 80IB(10) AFTER GIVING OPPORTUNITY OF BEING HEARD TO BOTH SIDES. 7. WITH REGARD TO THE SECOND GROUND OF THE REVENUE S APPEAL AND THE GROUNDS OF CROSS-OBJECTION BY THE ASSESSEE THE LD. D.R. POINT ED OUT THAT THIS ISSUE BE ALSO SET ASIDE TO THE FILE OF THE LD. CIT(A). 8. AFTER HEARING THE LD. D.R. WE HAVE CAREFULLY GO NE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT BY FINANCE ACT 2010 THE PROVISIONS OF SECTION 40(A)(IA) ARE AMENDED W.E.F. 01.04.2010 AS POINTED OUT BY THE ASSESSEE IN ITA NO.139-AHD-09 & C.O.90-AHD-11 7 GROUND NO.1 OF THE CROSS-OBJECTION. IN THIS GROUND THE ASSESSEE HAS ALREADY RELIED ON TWO DECISION OF THE TRIBUNAL. ADMITTEDLY THE AMEND ED LAW WAS NOT CONSIDERED BY ANY OF THE DEPARTMENTAL AUTHORITIES BELOW. WE THEREFOR E SET ASIDE THE ORDER OF THE LD. CIT(A) ON THIS ISSUE AND RESTORE THE SAME TO HIS FI LE WITH THE DIRECTION THAT HE MAY VERIFY THE DATE OF PAYMENT OF TDS AND RE-ADJUDICATE THIS ISSUE KEEPING IN VIEW THE RATIO OF TWO DECISIONS POINTED OUT BY THE ASSESSEE IN ITS CROSS-OBJECTION. 9. IN THE RESULT FOR STATISTICAL PURPOSES THE APP EAL FILED BY THE REVENUE AND THE CROSS-OBJECTION FILED BY THE ASSESSEE ARE TREATED A S ALLOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 28.07. 2011 SD/- SD/- (G.D.AGRAWAL) (T.K. SHARMA) VICE PRESIDENT JUDICIAL MEMBER DATED : 28/07/2011 COPY OF THE ORDER IS FORWARDED TO:- (1) THE ASSESSEE (2) THE DEPARTMENT. (3) CIT (A.) CONCERNED. (4) CIT CONCERNED. (5) D.R. ITAT AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGISTRAR ITAT AH MEDABAD. TALUKDAR/ SR. P.S.