The ITO, Ward-9(1),, Ahmedabad v. M/s. Siddhi Construction, Ahmedabad

ITA 1969/AHD/2011 | 2008-2009
Pronouncement Date: 30-04-2015 | Result: Dismissed

Appeal Details

RSA Number 196920514 RSA 2011
Assessee PAN ABBFS6428C
Bench Ahmedabad
Appeal Number ITA 1969/AHD/2011
Duration Of Justice 3 year(s) 8 month(s) 22 day(s)
Appellant The ITO, Ward-9(1),, Ahmedabad
Respondent M/s. Siddhi Construction, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 30-04-2015
Appeal Filed By Department
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 30-04-2015
Date Of Final Hearing 23-04-2015
Next Hearing Date 23-04-2015
Assessment Year 2008-2009
Appeal Filed On 08-08-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD (BEFORE SHRI SHAILENDRA KR. YADAV J.M. & SHRI ANIL CHATURVEDI A.M.) I.T. A. NO.1969/AHD/2011 (ASSE SSMENT YEAR: 2008-09) THE I.T.O. WARD-9(1) AHMEDABAD V/S M/S. SIDDHI CONSTRUCTION AROHI COMPLEX B/H.BOPAL- 444 SARDAR PATEL RING ROAD BOPAL AHMEDABAD-3800058 (APPELLANT) (RESPONDENT) PAN: ABBFS6428C APPELLANT BY : SMT. SONIA KUMAR SR. D.R. RESPONDENT BY : SHRI RUPESH. P. MEHTA A.R. ( )/ ORDER DATE OF HEARING : 24-04-2015 DATE OF PRONOUNCEMENT : 30 -04-2015 PER SHRI ANIL CHATURVEDI A.M. 1. THIS APPEAL FILED BY THE REVENUE IS AGAINST THE ORD ER OF CIT(A)-XV AHMEDABAD DATED 13.06.2011 FOR A.Y. 2008-09. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 3. ASSESSEE IS A PARTNERSHIP FIRM STATED TO BE ENGAGED IN THE BUSINESS OF CONSTRUCTION OF HOUSING PROJECT. ASSESSEE ELECTRONI CALLY FILED ITS RETURN OF INCOME FOR A.Y. 2008-09 ON 30.06.2008 DECLARING TOT AL INCOME AT RS. NIL AFTER CLAIMING DEDUCTION OF RS. 1 07 14 047/- U/S. 80IB(10) OF THE ACT. THE ITA NO 1969 /AHD/2011 . A.Y. 2008-09 2 CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER THE A SSESSMENT WAS FRAMED UNDER SECTION 143(3) VIDE ORDER DATED 06.12.2010 AN D THE TOTAL INCOME WAS DETERMINED AT RS. 1 07 14 050/- BY DENYING THE CLAI M OF DEDUCTION U/S. 80IB(10). AGGRIEVED BY THE ORDER OF A.O. ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) WHO VIDE ORDER DATED 13.06.2011 A LLOWED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE AFORESAID ORDER OF LD. CIT(A) REVENUE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GR OUND;- 1. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV AH MEDABAD HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE ASSESSING OFFICER TO ALLO W THE ASSESSEE'S CLAIM FOR DEDUCTION OF RS. 1 07 14 050/- U/S. 80IB(10) OF THE ACT. 2. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV AH MEDABAD HAS ERRED IN HOLDING THAT THE ASSESSEE FULFILLS THE CONDITIONS LAID DOWN FOR CLAIMING DEDUCTION U/S.80IB(10) EVEN WHEN THE LAND WAS IN THE NAME OF RAJSHEELA COO P. HOUSING SOCIETY AND NAKLANK CO-OP. HOUSING SOCIETY WHICH ARE SEPARATE L EGAL ENTITIES IN THE EYE OF LAW AND THE ASSESSEE ENTERED INTO THE PROJECT BY A DEVE LOPMENT AGREEMENT WITH THEM. THE ENTIRE RESPONSIBILITY TO EXECUTE THE HOUSING PROJEC T(S) AND ABIDE BY THE TERMS AND CONDITIONS OF ITS APPROVAL RIGHT FROM THE INCEPTION OF THE PROJECT(S) TILL ITS COMPLETION RESTS WITH THE SOCIETY. ASSESSEE WAS JUST A CONTRAC TOR OF THE LAND CONSTRUCTING HOUSING PROJECTS AND NOT A DEVELOPER. 4. THE ONLY ISSUE IS WITH RESPECT TO DENIAL OF CLAIM U /S. 80IB(10). 5. DURING THE COURSE OF ASSESSMENT PROCEEDINGS A.O NO TICED THAT ASSESSEE HAS CLAIMED DEDUCTION U/S. 80IB(10); A.O WAS OF THE VIE W THAT ASSESSEE WAS NOT A DEVELOPER BECAUSE THE ASSESSEE DID NOT CONCEPTUAL IZE AND OWN THE PROJECT ASSESSEE WAS NOT THE OWNER OF THE LAND THE ASSESSE E WAS MERELY A CONTRACTOR FOR THE PURPOSE OF CONSTRUCTION OF THE P ROJECT AND HAD NOT SOLD ANY UNIT TO THE PURCHASER BUT THE LAND OWNERS HAS EXECU TED THE SALE DEED AS A SELLER. HE ACCORDINGLY WAS OF THE VIEW THAT ASSESSE E BEING A CONTRACTOR WAS NOT ELIGIBLE FOR DEDUCTION UNDER 80IB(10). AGGRIEVE D BY THE ORDER OF A.O. ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) WHO A FTER NOTING THE FACT AND ITA NO 1969 /AHD/2011 . A.Y. 2008-09 3 FOLLOWING THE ORDER OF HER PREDECESSOR IN THE ASSES SEES OWN CASE ALLOWED THE CLAIM OF THE ASSESSEE. 6. AGGRIEVED BY THE AFORESAID ORDER OF LD. CIT(A) REV ENUE IS NOW IN APPEAL BEFORE US. 7. BEFORE US AT THE OUTSET LD. A.R. SUBMITTED THAT L D. CIT(A) HAD FOLLOWED ORDER OF HER PREDECESSOR FOR A.Y. 07-08 AGAINST WHI CH REVENUE HAD PREFERRED APPEAL BEFORE HONBLE TRIBUNAL. HONBLE T RIBUNAL IN ITA NO. 340/AHD/2011 ORDER DATED 12.12.2014 HAS DISMISSED T HE APPEAL OF THE REVENUE. HE THEREFORE SUBMITTED THAT SINCE THE FACT S OF THE CASE IN THE YEAR UNDER APPEAL ARE IDENTICAL TO THAT OF A.Y. 07-08 T HE PRESENT APPEAL OF THE REVENUE ALSO NEEDS TO BE DISMISSED. HE ALSO PLACED ON RECORD THE COPY OF THE AFORESAID ORDER. THE LD. D.R. ON THE OTHER HAND SUPPORTED THE ORDER OF A.O. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT IN ASSESSEES OWN CASE THE ISSUE OF DEDUC TION U/S. 80IB(10) WAS ALSO IN A.Y. 07-08. THE CO-ORDINATE BENCH OF TRIBUN AL WHILE DECIDING THE APPEAL FOR A.Y. 07-08 AND AFTER RELYING ON THE DEC ISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. RADHE DEVELOPERS (2012) 341 ITR 403 HAD DISMISSED THE APPEAL OF THE REVENUE AND DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY HOLDING AS UNDER:- 7. WE FIND THAT THE HON'BLE GUJARAT HIGH COURT IN T HE CASE OF CIT VS. RADHE DEVELOPERS (SUPRA) HAS HELD THAT THE PROVISIONS NOWHERE REQUIR ED THAT ONLY THOSE DEVELOPERS WHO THEMSELVES OWN THE LAND WOULD RECEIVE THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. NEITHER THE PROVISIONS OF SECTION 80IB NOR ANY OTHE R PROVISIONS CONTAINED IN OTHER RELATED STATUTES DEMONSTRATE THAT OWNERSHIP OF THE LAND WOULD BE A CONDITION PRECEDENT FOR DEVELOPING THE HOUSING PROJECT. SUCH REQUIREMEN T CANNOT BE READ INTO THE STATUTE ITA NO 1969 /AHD/2011 . A.Y. 2008-09 4 BECAUSE THERE IS NOTHING UNDER SECTION 80IB(10) OF THE ACT REQUIRING THAT OWNERSHIP OF THE LAND MUST VEST IN THE DEVELOPER TO BE ABLE TO Q UALIFY FOR SUCH DEDUCTION. 8. WE THEREFORE FIND THAT THE ORDER OF THE CIT(A) IS SUPPORTED BY THE ORDER OF THE JURISDICTIONAL HIGH COURT. HENCE WE DO NOT FIND AN Y INFIRMITY IN THE ORDER OF THE CIT(A) WHICH IS HEREBY CONFIRMED AND THE GROUNDS OF APPEAL OF THE REVENUE ARE DISMISSED. 9. BEFORE US REVENUE HAS NOT BROUGHT ANY DISTINGUISHI NG FEATURE IN THE FACTS OF THE CASE FOR THE YEAR UNDER REVIEW AS COMPARED TO A .Y. 07-08 NOR HAS BROUGHT ON RECORD ANY CONTRARY BINDING JUDICIAL DEC ISION IN ITS SUPPORT. WE THEREFORE FIND NO REASON TO INTERFERE WITH THE ORDE R OF LD. CIT(A) AND THUS THE GROUND OF REVENUE IS DISMISSED. 10. IN THE RESULT THE APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 30 - 04 - 2015. SD/- SD/- (SHAILENDRA KR. YADAV) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD. TRUE CO PY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR. ITAT AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT AH MEDABAD