The ITO, Ward-9(1),, Ahmedabad v. M/s. Samrat Corporation,, Ahmedabad

ITA 1088/AHD/2007 | 2003-2004
Pronouncement Date: 09-04-2010 | Result: Allowed

Appeal Details

RSA Number 108820514 RSA 2007
Assessee PAN AALFS1024P
Bench Ahmedabad
Appeal Number ITA 1088/AHD/2007
Duration Of Justice 3 year(s) 26 day(s)
Appellant The ITO, Ward-9(1),, Ahmedabad
Respondent M/s. Samrat Corporation,, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 09-04-2010
Appeal Filed By Department
Order Result Allowed
Bench Allotted C
Tribunal Order Date 09-04-2010
Date Of Final Hearing 25-03-2010
Next Hearing Date 25-03-2010
Assessment Year 2003-2004
Appeal Filed On 13-03-2007
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD BEFORE SHRI N.S.SAINI ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH JUDICIAL MEMBER ITA NO.1088/AHD/2007 ASSESSMENT YEAR: 2003-04 DATE OF HEARING:25.3.10 DRAFTED:25.3.10 INCOME TAX OFFICER WARD-9(1) A WING VASUPUJYA CHAMBERS ASHRAM ROAD AHMEDABAD V/S . M/S. SAMRAT CORPORATION STHAPATYA APARTMENT MEMNAGAR AHMEDABAD PAN NO.AALFS1024P (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI M.C. PANDIT SR-DR RESPONDENT BY:- NONE O R D E R PER MAHAVIR SINGH JUDICIAL MEMBER:- THIS APPEAL BY THE REVENUE IS ARISING OUT OF THE O RDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-XV AHMEDABAD IN APPEAL NO. CI T(A)-XV/WD. 9(1) / 30.2006- 07 DATED 18-12-2006. THE ASSESSMENT WAS FRAMED BY T HE INCOME-TAX OFFICER WARD- 9(1) AHMEDABAD U/S. 143(3) R.W.S. 147 OF THE INCOM E-TAX ACT 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 20-0 3-2006 FOR ASSESSMENT YEAR 2003- 04. 2. AT THE OUTSET WE FIND THAT THE ISSUE IS SQUAREL Y COVERED BY THE DECISION OF THIS TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO.938 & 939/AHD/2006 FOR THE ASSESSMENT YEAR 2000-01 AND 2002-03 AND THE CIT(A) HAS ALSO RE LIED ON THESE YEARS WHICH WERE BEFORE TRIBUNAL. THE TRIBUNAL HAS SET ASIDE T HIS ISSUE TO THE FILE OF THE ASSESSING OFFICER. WE REFERRED TO THE FOLLOWING PA RAS OF THE TRIBUNAL WHEREIN THE TRIBUNAL HAS CONSIDERED THE ISSUE IN GREAT DETAIL T HE ELIGIBILITY U/S.80IB(10) BY FOLLOWING OBSERVATIONS AND SET ASIDE THIS ISSUE TO THE ASSESSING OFFICER WITH FOLLOWING DIRECTIONS IN PARA-7 :- 7. SINCE A COPY OF THE RELEVANT DEVELOPMENT AGREEM ENT HAS NOT BEEN PLACED BEFORE US WHILE BOTH THE PARTIES AGREED THAT THE MA TTER NEED TO BE RECONSIDERED IN THE LIGHT OF AFORESAID DECISIONS OF THE IAT IN THE CASE OF M/S. SHAKTI CORPORATION & OTHERS IN ITA NOS. 1503/AHD/20 08 AND M/S. RADHE DEVELOPERS & OTHERS IN ITA NO.2482/AHD/2006 IN THE INTEREST OF JUSTICE WE VACATE THE FINDINGS OF THE LD. CIT(A) AND RESTORE T HE MATTER TO THE FILE OF THE ITA NO.1088/AHD/2007 A.Y. 2003-04 ITO WD-9(1) ABD V. M/S. SAMRAT CORPORATION PAGE 2 AO WITH THE DIRECTIONS TO ANALYSE THE RELEVANT DEVE LOPMENT AGREEMENT ENTERED INTO BY THE UNDERTAKING OF TAXPAYER WITH TH E LANDOWNER IN THE LIGHT OF FACTS OBTAINING IN THE BOOKS OF ACCOUNTS MAINTAINED FOR THE SAID UNDERTAKING BY THE TAXPAYER AND OTHER RELEVANT DOCUMENTS KEEPI NG IN VIEW THE AFORESAID DECISIONS OF THE ITAT AS ALSO AFTER ALLOWING SUFFIC IENT OPPORTUNITY TO THE TAXPAYER AND THEREAFTER DECIDE AS TO WHETHER THE U NDERTAKING OF THE TAXPAYER HAS INDEED PURCHASED THE LAND FOR A FIXED CONSIDERA TION FROM THE LANDOWNER AND HAS DEVELOPED THE HOUSING PROJECT AT ITS OWN CO ST AND RISKS INVOLVED IN THE PROJECT. IN THE EVENT THE AO FINDS THAT THE LAN D HAD BEEN PURCHASED BY THE UNDERTAKING OF THE TAXPAYER AND HAS ALL THE DOMINAN T CONTROL OVER THE PROJECT AND DEVELOPED THE LAND AT HIS OWN COST AND RISKS T HE AO SHOULD ALLOWS THE DEDUCTION U/S.80IB(10) OF THE ACT IN ACCORDANCE WI TH LAW . IN CASE THE AO FINDS THAT THE UNDERTAKING OF THE TAXPAYER HAS ACTE D ON BEHALF OF THE LANDOWNER AND HAS GOT ONLY THE FIXED CONSIDERATION FROM THE LANDOWNER FOR THE DEVELOPMENT OF THE HOUSING PROJECT THE TAXPAYER WO ULD NOT BE ENTITLED TO ANY DEDUCTION U/S.80IB(10) OF THE ACT. WITH THESE DIREC TIONS GROUND NO.1 IN BOTH THE APPEALS IS DISPOSED AS INDICATED HEREINBEFORE. 3. AS THE TRIBUNAL HAS SET ASIDE THE ISSUE OF THE R EVENUES APPEAL IN EARLIER YEARS AND THE LD. COUNSEL FOR THE ASSESSEE FAIRLY S TATED THAT THIS YEAR IS ALSO EMANATING FOR THE SAME PROJECT AND THE TRIBUNAL HAS ALREADY SET ASIDE EARLIER YEARS TO THE FILE OF THE ASSESSING OFFICER THIS YEAR CAN ALSO BE SET ASIDE TO THE FILE OF AO. IN VIEW OF THE TRIBUNALS DECISION IN ASSESSEES OW N CASE (SUPRA) RESPECTFULLY FOLLOWING AND TAKING A CONSISTENT VIEW WE ALSO SET SIDE ON SIMILAR LINES. NEEDLESS TO SAY THAT THE AO WILL PROVIDE REASONABLE OPPORTUNIT Y TO THE ASSESSEE OF BEING HEARD. 4. IN THE RESULT REVENUES APPEAL IS ALLOWED FOR STAT ISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 09/04/2010 SD/- SD/- (N.S.SAINI) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD DATED : 09/04/2010 *DKP COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 4. THE CIT CONCERNS. 2. THE RESPONDENT. 5 . THE DR ITAT AHMEDABAD 3. THE CIT(APPEALS)-XV AHMEDABAD 6. GUARD FILE . BY ORDER /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT AHMEDABAD