DCIT, CHENNAI v. M/s. Siddarth Foundation and Housing Ltd., CHENNAI

ITA 2193/CHNY/2010 | 2004-2005
Pronouncement Date: 23-09-2011 | Result: Dismissed

Appeal Details

RSA Number 219321714 RSA 2010
Assessee PAN AAFCS9054E
Bench Chennai
Appeal Number ITA 2193/CHNY/2010
Duration Of Justice 8 month(s) 25 day(s)
Appellant DCIT, CHENNAI
Respondent M/s. Siddarth Foundation and Housing Ltd., CHENNAI
Appeal Type Income Tax Appeal
Pronouncement Date 23-09-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 23-09-2011
Date Of Final Hearing 15-09-2011
Next Hearing Date 15-09-2011
Assessment Year 2004-2005
Appeal Filed On 29-12-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH CHENNAI BEFORE SHRI N. S. SAINI ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN JUDICIAL MEMBER .. I.T.A. NO. 2193/MDS/2010 ASSESSMENT YEAR : 2004-05 THE DEPUTY COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE-IV(1) CHENNAI. V. M/S. SIDDARTH FOUNDATIONS AND HOUSING LTD. NO. 14 OLD NO. 124/1 G.N. CHETTY ROAD T. NAGAR CHENNAI-600 017. PAN :AAFCS9054E (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI E. SANKAR CIT-DR RESPONDENT BY : SHRI T. BANUSEKAR CA DATE OF HEARING : 15-09- 2011 DATE OF PRONOUNCEMENT : 23-09-2011 O R D E R PER GEORGE MATHAN JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE LEARNED CIT(APPEALS)-V CHENNAI IN ITA NO. 366/09-10 DATED 01-10-2010 FOR THE ASSESSMENT YEAR 2004-05. 2. SHRI E. SANKAR LEARNED CIT-DR REPRESENTED ON BEH ALF OF THE REVENUE AND SHRI T. BANUSEKAR CA REPRESENTED ON BEHALF OF THE ASSESSEE. I.T.A. NO.2193/MDS/2010 2 3. IN THE REVENUES APPEAL THE REVENUE HAS RAISED THE FOLLOWING GROUNDS : 1.A. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) HAS ERRED IN QUASHING THE ORDER OF T HE A.O. 1.B THE LEARNED CIT(A) HAS FAILED TO NOTE THAT AS ON 01-10- 2010 THE DATE OF APPELLATE ORDER THE CASE WAS ASS ESSED BY THE DEPUTY COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE-I V(1) CHENNAI AND AS CUH THE LEARNED CIT(A) HAD NO JURISDICTION T O DECIDE THE APPEAL AND THAT THE CIT(A)-I CHENNAI-34 ONLY HAD J URISDICTION. 1.C ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE THE LEARNED CIT(A) HAS ERRED IN HOLDING THAT THE ASSESS EE IS A DEVELOPER AND BUILDER AND ENTITLED TO DEDUCTION U/S 80IBV WITHOUT CONSIDERING THAT THE ASSESSEE EXECUTED ONLY WORKS O N WORK CONTRACT BASIS AS PER FORM 19 OF THE COMMERCIAL TA XES DEPARTMENT DATED 31-10-2005 AND THAT VARIOUS DOCUME NTS WERE ONLY YIN THE NAME OF OTHER LEGAL OWNERS OF THE LAND . 1.D THE LEARNED CIT(A) HAS FAILED TO NOTE THAT THE RE IS NO CHANGE OF OPINION BY THE A.O. BUT ONLY A WITHDRAWAL OF DEDUCTION U/S 80IB WHICH THE ASSESSEE HAD GAINED ILLEGALLY BY RELYING ON INAPPLICABLE CASE LAWS AND AS SUCH REOPENING U/S 14 8 IS PERFECTLY LEGAL AS PER THE DECISION OF THE JURISDICTIONAL HIG H COURT IN THE CASE OF ACIT VS. APOLLO HOSPITALS PVT. LTD. CJHENNAI 300 ITR 167 (MAD). 2. THE APPELLANT CRAVES LEAVE TO ADD TO AMEND OR ALTER THE ABOVE GROUNDS OF APPEAL AS MAY BE DEEMED NECESS ARY. 4. IN REGARD TO GROUND NO.1.B IT HAS BEEN AGREED BY THE REVENUE THAT THE LEARNED CIT(APPEALS)-V CHENNAI DID HAVE THE JURISD ICTION TO PASS THE ORDER. CONSEQUENTLY THE SAID GROUND STANDS DISMISSED. I.T.A. NO.2193/MDS/2010 3 5. IN REGARD TO GROUNDS 1.C. AND 1.D. IT WAS SUBM ITTED BY THE LEARNED DR THAT THE ASSESSING OFFICER HAD DENIED THE ASSESSEE THE B ENEFIT OF DEDUCTION UNDER SECTION 80-IB(10) OF THE INCOME TAX ACT 1961 (THE ACT FOR SHORT) ON THE GROUND THAT THE OWNERSHIP OF THE LAND PROJECT APPROVAL AS WELL AS THE COMPLETION CERTIFICATE ALL WERE IN THE NAME OF SHRI SURESH JAI N AND NOT IN THE NAME OF THE ASSESSEE COMPANY AND CONSEQUENTLY IT WAS HELD THAT THE ASSESSEE COMPANY HAD NOT UNDERTAKEN THE ACTIVITY WHICH IS SAID TO BE DEV ELOPING AND BUILDING HOUSING PROJECTS. IT WAS THE SUBMISSION THAT THE ASSESSING OFFICER HAD RELIED UPON THE DECISION OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF M/S. SASHWAT CONSTRUCTIONS PVT. LTD. IN ITA NO. 1828/MDS/2007 DA TED 27-02-2009. IT WAS THE SUBMISSION THAT THE LEARNED CIT(A) HAD ALLOWED THE ASSESSEES CLAIM OF DEDUCTION U/S 80-IB OF THE ACT BY FOLLOWING THE DECISION OF T HE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF RADHE DEVELOPERS & ORS. V. ITO & ORS. REPORTED IN (2008) 113 TTJ 300 (AHD). IT WAS THE SUBMISSION TH AT IN REGARD TO THE ISSUE OF RE-OPENING THE LEARNED CIT(A) HAD ALSO QUASHED THE RE-OPENING HOLDING THAT THE DECISION OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF RADHE DEVELOPERS REFERRED TO SUPRA WAS AVAILABLE ON REC ORD AT THE TIME OF INITIATION OF THE RE-ASSESSMENT PROCEEDINGS AND THE ISSUE HAD ALS O BEEN CONSIDERED IN THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS U/S 143(3 ) AND CONSEQUENTLY THE RE- OPENING FOR THE PURPOSE OF DENYING THE ASSESSEE THE BENEFIT OF DEDUCTION UNDER SECTION 80-IB HOLDING THAT THE ASSESSEE WAS NOT DEV ELOPING AND BUILDING A HOUSING I.T.A. NO.2193/MDS/2010 4 PROJECT WAS INVALID. IT WAS THE SUBMISSION THAT T HE ORDER OF THE LEARNED CIT(A) IS LIABLE TO BE REVERSED. 6. IN REPLY THE LEARNED AUTHORISED REPRESENTATIVE VEHEMENTLY SUPPORTED THE ORDER OF THE LEARNED CIT(A). IT WAS THE FURTHER SU BMISSION THAT IN A SUBSEQUENT DECISION THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF SANGHVI AND DOSHI ENTERPRISES AND OTHERS IN ITA NOS. 259 TO 263/MDS/20 10 DATED 15-09-2010 CHENNAI BENCH A OF THIS TRIBUNAL HAD HELD THAT UN DER SIMILAR CIRCUMSTANCES THE ASSESSEE IS TO BE CONSIDERED AS AN UNDERTAKING WHIC H IS ENGAGED IN THE BUSINESS OF DEVELOPING AND BUILDING HOUSING PROJECTS. 7. IN REGARD TO THE RE-OPENING OF THE ASSESSMENT T HE LEARNED AUTHORISED REPRESENTATIVE DREW OUR ATTENTION TO THE COPY OF TH E ASSESSMENT ORDER PASSED U/S 143(3) DATED 27-12-2006 WHEREIN THE ASSESSING OFFIC ER HAS DISCUSSED THE ISSUE OF THE CLAIM OF DEDUCTION UNDER SEC. 80-IB OF THE ACT . IT WAS THE SUBMISSION THAT THE ISSUE HAD ALREADY BEEN CONSIDERED IN THE REGULA R ASSESSMENT AND THE RE- OPENING FOR THE PURPOSE OF DENYING THE BENEFIT OF T HE DEDUCTION UNDER SECTION 80- IB WAS A MERE CHANGE OF OPINION AND THERE WAS NO AD DITIONAL EVIDENCE AVAILABLE WITH THE ASSESSING OFFICER FOR THE PURPOSE OF RE-OP ENING OF THE ASSESSMENT. HE VEHEMENTLY RELIED UPON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT V. KELVINATOR OF INDIA LTD. REPORTED IN 320 IT R 561. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AT TH E OUTSET COMING TO THE ISSUE OF RE-OPENING OF THE ASSESSMENT IT IS NOTICE D THAT THE ISSUE OF DEDUCTION U/S I.T.A. NO.2193/MDS/2010 5 80-IB OF THE ACT HAS BEEN CONSIDERED IN THE COURSE OF THE REGULAR ASSESSMENT IN THE CASE OF THE ASSESSEE AND MUCH AFTER THE ASSESSM ENT THE RE-OPENING HAS BEEN ATTEMPTED BY RELYING UPON THE DECISION OF THE CO-OR DINATE BENCH OF THIS TRIBUNAL IN THE CASE OF M/S. SASHWAT CONSTRUCTIONS (P) LTD. REFERRED TO SUPRA. FURTHER THE DECISION IN THE CASE OF RADHE DEVELOPERS REFERRED TO SUPRA WAS ALSO VERY MUCH AVAILABLE. IT IS FURTHER NOTICED THAT THE CONSEQUE NT RE-OPENING OF THE ASSESSMENT HAS BEEN DONE ONLY ON THE BASIS OF A CHANGE OF OPIN ION DRAWN ON THE BASIS OF A DECISION OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN ONE CASE ESPECIALLY WHEN A DIAMETRICALLY OPPOSITE VIEW WAS AVAILABLE AND WAS A LSO BEFORE THE ASSESSING OFFICER. THERE WAS NO FRESH EVIDENCE AVAILABLE BEF ORE THE ASSESSING OFFICER OTHER THAN THE DECISION OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL. IN THE CIRCUMSTANCES WE ARE OF THE VIEW THAT IN VIEW OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF KELVINATOR OF INDIA LTD. REFERRED TO S UPRA THE RE-OPENING IS ONLY ON THE CHANGE OF OPINION WHICH IS NOT PERMISSIBLE. C ONSEQUENTLY WE ARE OF THE VIEW THAT THE FINDING OF THE LEARNED CIT(A) IS ON A RIGH T FOOTING AND DOES NOT CALL FOR ANY INTERFERENCE. 9. IN REGARD TO THE ISSUE AS TO WHETHER THE ASSESSE E IS IN THE BUSINESS OF DEVELOPING AND BUILDING OF HOUSING PROJECTS THIS I SSUE HAS BEEN CONSIDERED BY THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF S ANGHVI AND DOSHI ENTERPRISE REFERRED TO SUPRA WHEREIN ONE OF US WAS ALSO A SIG NATORY. IN THE CIRCUMSTANCES RESPECTFULLY FOLLOWING THE DECISION OF THE CO-ORDIN ATE BENCH OF THIS TRIBUNAL IN THE I.T.A. NO.2193/MDS/2010 6 CASE OF SANGHVI AND DOSHI ENTERPRISE THE FINDING OF THE LEARNED CIT(A) ON THIS ISSUE STANDS CONFIRMED. IN THE CIRCUMSTANCES THE APPEAL OF THE REVENUE IS DISMISSED. 10. THE ORDER WAS PRONOUNCED IN THE COURT ON 23/09/ 2011. SD/- SD/- (N. S. SAINI) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI DATED THE 23 RD SEPTEMBER 2011. H. COPY TO: ASSESSEE/AO/CIT (A)/CIT/D.R./GUARD FILE