M/s. Shakti Developers, Baroda v. The Income tax Officer,Ward-2(2),, Baroda

ITA 2256/AHD/2008 | 2004-2005
Pronouncement Date: 07-03-2011 | Result: Allowed

Appeal Details

RSA Number 225620514 RSA 2008
Bench Ahmedabad
Appeal Number ITA 2256/AHD/2008
Duration Of Justice 2 year(s) 8 month(s) 25 day(s)
Appellant M/s. Shakti Developers, Baroda
Respondent The Income tax Officer,Ward-2(2),, Baroda
Appeal Type Income Tax Appeal
Pronouncement Date 07-03-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 07-03-2011
Date Of Final Hearing 07-03-2011
Next Hearing Date 07-03-2011
Assessment Year 2004-2005
Appeal Filed On 12-06-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD B BENCH BEFORE SHRI G.D. AGARWAL HONBLE VICE-PRESIDENT (AZ) AND SHRI D.K. TYAGI HONBLE JUDICIAL MEMBER ITA NO.2256-2257/AHD/2008 [ASSTT.YEARS 2004-05 & 2005-06] M/S. SHAKTI DEVELOPERS -VS- INCOME TAX OFFICER C/O. MANISH SHAH & ASSOCIATES WARD-2(2) BARODA 101/38 RACE COURSE CIRCLE BARODA PAN NO.AAQFS3259K (APPELLANT) (RESPONDENT) REVENUE BY : SHRI K. MADHUSUDAN SR-DR ASSESSEE BY: SHRI S.N.SOPARKA R SR-AR & SMT. URVA SHI SHODHAN AR O R D E R PER D.K. TYAGI JUDICIAL MEMBER:- THESE ARE TWO ASSESSEES APPEALS AGAINST THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-II BARODA IN APPEAL NO.CAB /II-671/06-07 & CAB/II- 202/07-08 OF EVEN DATE I.E. 25-04-2008 FOR THE ASSE SSMENT YEARS 2004-05 & 2005-06. 2. THE COMMON GROUND IN BOTH THE YEARS READS AS UND ER:- 1. THE LEARNED INCOME TAX OFFICER HAS ERRED IN LAW AND ON THE FACTS OF THE APPELLANTS CASE IN ASSESSING TOTAL INCOME OF T HE APPELLANT AT RS.16 64 147/- FOR ASSESSMENT YEAR 2004-05 AND RS.2 5 18 343/- FOR ASSESSMENT YEAR 2005-06 INSTEAD OF RS. NIL RETURNED BY IT. THE APPELLANT MOST HUMBLY SUBMITS THAT THE DISALLOW ANCES MADE BY THE LEARNED INCOME TAX OFFICER IS ERRONEOUS BOTH ON FAC TS OF THE CASE AS WELL AS IN LAW. THE APPELLANT FURTHER SUBMITS THAT THE INCOME RETURNED BY IT IS THE CORRECT INCOME AND PRAYS THAT THE HONBL E TRIBUNAL BE PLEASED TO HOLD SO NOW AND DELETE THE ADDITION/DISALLOWANCE S MADE. ITA NO.2256-57/AHD/2008 A.YS. 04-05 & 05-06 M/S. SHAKTI DEVELOPERS V. ITO WD-2(2) BRD PAGE 2 2. THE LEARNED INCOME TAX OFFICER HAS ERRED IN LAW AND ON FACTS OF THE APPELLANTS CASE IN DISALLOWING DEDUCTION U/S.80-IB (10) OF THE I.T. ACT 1961 ON THE ERRONEOUS PLEA THAT THE PROJECT UNDERTA KEN BY THE APPELLANT IS NOT A HOUSING PROJECT. THE APPELLANT MOST HUMBLY SUBMITS THAT BOTH ON FACT S OF THE CASE AS WELL AS IN LAW THE DEDUCTION U/S.80-IB (120) OF THE ACT IS RIGHTLY ALLOWABLE AS IT HAS COMPLIED WITH ALL THE CONDITION S PRESCRIBED IN THE SAID SECTION FOR GRANTING SUCH DEDUCTION AND PRAYS THAT THE HONBLE TRIBUNAL BE PLEASED TO HOLD SO NOW AND ALLOW THE SA ID DEDUCTION. 3. THE APPELLANT CRAVES LEAVE TO ADD/ALTER OR AMEND THE GROUNDS HEREIN ABOVE TAKEN. APPEALS WERE FILED BY THE ASSESSEE ON 12-06-2008. S UBSEQUENTLY IN SUPPORT OF ORDERS OF LOWER AUTHORITIES A LETTER DATED 16-1 0-2009 WAS FILED ON BEHALF OF REVENUE WHICH READS AS UNDER:- OFFICE OF THE INCOME TAX OFFICER WARD 2(5) 1 ST FLOOR ROOM NO.107 AAYAKAR BHAVAN RACE CORUSE CIRCLE BARODA PHONE 0 265 234 2345637 NO/BRD/ITO/WD 2(5) PAPER BOOK/SD/09-10 DATE: 16.10.2009 TO THE ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SIR SUB: APPELLATE PROCEEDINGS IN THE CASE OF M/S. SHAK TI DEVELOPERS FOR A.Y. 2004-05 PROPOSAL FOR INCLUSION OF ADDITIONAL G ROUND/FILING OF PAPER BOOK TO THE ITAT IN ITA NO.2256/AHD/2008. ----- KINDLY REFER TO THE ABOVE 2. IN THIS CONNECTION IT IS SUBMITTED THAT THE RET URN OF INCOME IN THIS CASE FOR A.Y. 2004-05 WAS FILED ON 25.10.204 DECL ARING A TOTAL INCOME OF RS.NIL AFTER CLAIMING DEDUCTION OF RS.16 64 147 /- U/S. 80IB(10) OF THE I.T. ACT. ASSESSMENT U/S.143(3) OF THE I.T. ACT WER E COMPLETED ON 29.12.2006 DISALLOWING THE CLAIM OF RS.16 64 147/- ON TWO GROUNDS (I) PERMISSION FROM LOCAL AUTHORITY IS NOT IN THE NAME OF THE ASSESSEE AND (II) COMMERCIAL SPACE IS MORE THAN THE LIMIT PRESCR IBED IN CLAUSE (D) OF SECTION 80IB (10) OF THE I.T. ACT. THE ASSESSEE HAS FILED AN APPEAL BEFORE THE CIT(A)-II VADODARA. THE LD. CIT(A)-II VADODARA VIDE ITS ORDER NO.CAB/II-671/06-07 DATED 25.4.2008 DELETED T HE ADDITION ON THE GROUND OF OWNERSHIP BUT CONFIRMED THE DISALLOWANCE S ON THE BASIS OF ITA NO.2256-57/AHD/2008 A.YS. 04-05 & 05-06 M/S. SHAKTI DEVELOPERS V. ITO WD-2(2) BRD PAGE 3 COMMERCIAL SPACE IS MORE THAN THE PRESCRIBED LIMIT. THE ASSESSEE FILED SECOND APPEAL NO.2256/AHD/2008 DATED 11.6.2008 BEFO RE THE HONBLE ITAT BENCH AHMEDABAD WHICH IS STILL PENDING. 3. AFTER COMPLETION OF ASSESSMENT INFORMATION HAS BEEN RECEIVED FROM THE OFFICE OF THE VADODARA MAHANAGAR SEVA SADAN (LO CAL AUTHORITY) THAT THE PROJECT APPROVED BY THEM WAS NOT COMPLETED WITHIN THE DUE DATE I.E. 31.3.2008. AS PER THE INFORMATION RECEIVE D FROM VADODARA MAHANAGAR SEVA SADAN (LOCAL AUTHORITY) THE COMPLETI ON CERTIFICATES HAS NOT BEEN ISSUED TO THE ASSESSEE. THIS SHOWS THA T THE PROJECT WAS NOT COMPLETED WITHIN THE DUE DATE AS PROVIDED U/S.8 0IB(10)(A)(I) OF THE I.T. ACT. HOWEVER SINCE THIS INFORMATION WAS RECEI VED AFTER THE COMPLETION OF ASSESSMENT THE SAME COULD NOT BE TAK EN IN THE ASSESSMENT ORDER. IT IS THEREFORE REQUESTED TO TA KE THE NOTE OF THIS FACT WHILE DECIDING THE APPEAL. 3. THE PAPER BOOK CONTAINING ABOVE FACTS IS FILED H EREWITH IN TRIPLICATE. YOURS FAITHFULLY SD/- K.C.DHAME (K.C. DHAME) INCOME TAX OFFICER WARD 2(5) BARODA COPY FOR KIND INFORMATION TO: 1. THE COMMISSIONER OF INCOME-TAX-I BARODA W.R.T. LETTER NO.BRD/CIT- I/HQ/SD/PAPER BOOK/2009-10/68 DATED 16.9.2009 2. THE ADDL. COMMISSIONER OF INCOME-TAX RANGE-2 B ARODA ITO WARD-2(5) BARODA IN REBUTTAL OF THE ABOVE ASSESSEE APPLIED FOR PLACI NG OF ADDITIONAL EVIDENCE ON 18-08-2010. THE RELEVANT PORTION OF ACCOMPANIED APP LICATION READS AS UNDER:- THE APPELLANT RESPECTFULLY SUBMITS THAT THE ABOVE REFERRED EVIDENCE IS SUBMITTED TO MEET OUT THE ADDITIONAL GROUND RAISED BY THE DEPARTMENT THAT THE PROJECT APPROVED WAS NOT COMPLETED WITHIN THE DUE DATE ON THE BASIS OF INFORMATION RECEIVED FROM THE OFFICE OF TH E LOCAL AUTHORITY. THE CERTIFICATE FROM THE ARCHITECT IS SUBMITTED TO FACI LITATE PERCENTAGE WORK OUT VIS A VIS COMMERCIAL CONSTRUCTION AND RESIDENTI AL CONSTRUCTION IN LIGHT OF DECISION OF PUNE SPECIAL BENCH IN BRAHMA ASSOCIA TES REPORTED IN 119 ITD 255. 3. AT THE TIME OF HEARING LD. COUNSEL FOR THE ASSES SEE AT THE OUTSET SUBMITTED THAT IN VIEW OF ADDITIONAL INFORMATION NO W RELIED BY THE REVENUE AND THE REBUTTAL THEREOF BY THE ASSESSEE AND ALSO IN VI EW OF THE VERDICT OF HON;BLE ITA NO.2256-57/AHD/2008 A.YS. 04-05 & 05-06 M/S. SHAKTI DEVELOPERS V. ITO WD-2(2) BRD PAGE 4 BOMBAY HIGH COURT VIDE ITS ORDER DATED 22-02-2011 I N ITA NO.1194 OF 2010 ON THE DECISION OF ITAT PUNE SPECIAL BENCH IN THE C ASE OF BRAHMA ASSOCIATES (2009) 119 ITD 255 (SB) (PUNE) IT WOULD BE APPROPR IATE IF THE MATTER IS RESTORED BACK TO THE FILE OF ASSESSING OFFICER FOR FRESH ADJUDICATION. THIS SUBMISSION OF AUTHORIZED REPRESENTATIVE WAS NOT OPP OSED BY LD. SR-DR. THEREFORE THE MATTER IS RESTORED BACK TO THE FILE O F ASSESSING OFFICER FOR FRESH ADJUDICATION IN THE LIGHT OF THE ADDITIONAL EVIDENC E BY THE ASSESSEE AND THE RECENT JUDICIAL PRONOUNCEMENT ON THE ISSUE IN THE C ASE OF BRAHMA ASSOCIATES (SUPRA) AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO ASSESSEE. 4. AT THE TIME OF HEARING NO ARGUMENT WAS ADVANCE R EGARDING THE OTHER GROUND TAKEN BY THE ASSESSEE FOR ASSESSMENT YEAR 20 05-06 IN RESPECT OF DISALLOWANCE U/S.40(A)(IA) OF THE I.T. ACT. HOWEVER SINCE WE HAVE RESTORED THE MAIN ISSUE BACK TO THE FILE OF ASSESSING OFFICER TH IS ISSUE IS ALSO RESTORED BACK TO THE FILE OF AO FOR FRESH ADJUDICATION. 5. IN THE RESULT BOTH THE APPEAL OF ASSESSEES ARE AL LOWED FOR STATISTICAL PURPOSES AS INDICATED ABOVE. ORDER PRONOUNCED ON THIS DAY OF 7 TH MARCH 2011 SD/- SD/- ( G.D.AGARWAL ) ( D.K. TYAGI ) (VICE PRESIDENT) (JUDICIAL MEMBER) AHMEDABAD DATED : 07/03/2011 *DKP COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 4. THE CIT CONCERNS. 2. THE REVENUE. 5. THE DR ITAT AHMEDABAD 3. THE CIT(APPEALS)-II BARODA 6. GUARD FILE. BY ORDER /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT AHMEDABAD