The ITO, Ward-9(2),, Ahmedabad v. M/s. Chitrakut Corporation, Ahmedabad

ITA 2856/AHD/2011 | 2007-2008
Pronouncement Date: 30-03-2012 | Result: Dismissed

Appeal Details

RSA Number 285620514 RSA 2011
Bench Ahmedabad
Appeal Number ITA 2856/AHD/2011
Duration Of Justice 4 month(s) 12 day(s)
Appellant The ITO, Ward-9(2),, Ahmedabad
Respondent M/s. Chitrakut Corporation, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 30-03-2012
Appeal Filed By Department
Order Result Dismissed
Bench Allotted C
Tribunal Order Date 30-03-2012
Date Of Final Hearing 06-03-2012
Next Hearing Date 06-03-2012
Assessment Year 2007-2008
Appeal Filed On 17-11-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH AHMEDABAD BEFORE SHRI A. K. GARODIA ACCOUNTANT MEMBER AND SHRI KUL BHARAT JUDICIAL MEMBER I.T.A. NO. 2856/ AHD/2011 (ASSESSMENT YEAR 2007-08) ITO WARD 9(2) AHMEDABAD VS. M/S. CHITRAKUT CORPORATION 120/2 RADHE CHAMBERS PRANAMINAGAR VASTRAL AHMEDABAD PAN/GIR NO. : AAMM0451B (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI A TIRKEY SR. DR SHRI VINOD SINGH BHATI AR RESPONDENT BY: DATE OF HEARING: 06.03.2012 DATE OF PRONOUNCEMENT: 30.03.2012 O R D E R PER SHRI A. K. GARODIA AM:- THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDE R OF LD. CIT(A) XV AHMEDABAD DATED 19.09.2011 FOR THE ASSESSMENT Y EAR 2007-08. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1). THE LD. COMMISSIONER OF INCOME-TAX (APPEA LS)-XV AHMEDABAD HAS ERRED IN LAW AND OR FACTS IN DIRECTIN G THE ASSESSING OFFICER TO ALLOW THE ASSESSEE'S CLAIM FOR DEDUCTION OF RS.12 41 966/- U/S. 80IB(10) OF THE ACT. 2). THE LD. COMMISSIONER OF INCOME-TAX (APPEAL S)-XV AHMEDABAD HAS ERRED IN HOLDING THAT THE ASSESSEE FU LFILLS THE CONDITIONS LAID DOWN FOR CLAIMING DEDUCTION U/S.80I B(10) EVEN WHEN THE LAND WAS IN THE NAME OF ROYAL BUNGLOWS CO- OP. HOUSING SOCIETY LTD. WHICH IS A SEPARATE LEGAL ENT ITY IN THE EYE OF LAW AND THE ASSESSEE ENTERED INTO THE PROJECT BY A DEVELOPMENT AGREEMENT WITH THE SOCIETY. THE ENTIRE RESPONSIBILI TY TO EXECUTE THE HOUSING PROJECT AND ABIDE BY THE TERMS AND CONDITIO NS OF ITS I.T.A.NO.2856 /AHD/2011 2 APPROVAL RIGHT FROM THE INCEPTION OF THE PROJECT TI LL ITS COMPLETION RESTS WITH THE SOCIETY. THE LOCAL AUTHORITY HAD GRA NTED PERMISSION FOR DEVELOPMENT TO THE SOCIETY. ASSESSEE WAS JUST A CONTRACTOR OF THE LAND OWNERS CONSTRUCTING 62 RESIDENTIAL UNITS ( ROW HOUSES) OF THE SCHEME TITLED 'CHITRAKUT ROW HOUSE ' AND NOT A DEVELOPER. 3). ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV AHMEDABAD OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 4). IT IS THEREFORE PRAYED THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME-TAX (APPEAL2)-.XV AHMEDABAD MAY BE SET-ASIDE AND THAT OF THE ASSESSING OFFICER BE R ESTORED. 2. LD. D.R. OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER WHEREAS THE LD. A.R. OF THE ASSESSEE SUPPORTED THE ORDER OF LD. CIT(A). HE ALSO SUBMITTED THAT NOW THIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY A RECENT JUDGMENT OF HONBLE GUJARAT HIGH COURT RENDE RED IN THE CASE OF RADHE DEVELOPERS AS REPORTED IN 341 ITR 403. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW AND THE JUDGMENT OF HONBLE GUJARAT HIGH COURT CITED BY THE LD. A.R. OF THE ASSESSEE. WE FIND THAT THE LD. CIT(A) HAS DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE BY FOLLOWING THE TRIBUNAL DECISION REN DERED IN THE CASE OF SHAKTI CORPORATION IN I.T.A.NO. 1503/AHD/2008. IN THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS RA DHE DEVELOPERS (SUPRA) THE HONBLE GUJARAT HIGH COURT HAS ALSO CO NSIDERED THE TRIBUNAL DECISION RENDERED IN THE CASE OF SHAKTI CORPORATION (SUPRA). REGARDING THIS DECISION OF THE TRIBUNAL RENDERED IN THE CASE OF SHAKTI CORPORATION (SUPRA) IT IS OBSERVED BY THE HONBLE GUJARAT HIGH COURT THAT IN THE FORM OF REMUNERATION THE ASSESSEE HAS TO BEAR THE LOSS AND AS THE CASE MAY BE TAKE HOME THE PROFIT AND HENCE IT BECOMES ABUNDANT LY CLEAR THAT THIS PROJECT WAS DEVELOPED BY HIM AT HIS OWN RISK AND CO ST AND NOT AT THE COST OF LAND OWNER. IT WAS HELD BY THE HONBLE GUJARAT HIGH COURT THAT I.T.A.NO.2856 /AHD/2011 3 EXPLANATION TO SECTION 80-IB(10) IS NOT APPLICABLE. IN THE PRESENT CASE A CLEAR CUT FINDING IS GIVEN BY LD. CIT(A) THAT HE EN TIRE COST AND RISK IS BEING BORNE BY THE ASSESSEE. THIS FINDING OF LD. C IT(A) COULD NOT BE CONTROVERTED BY THE LD. D.R. AND HENCE BY RESPECTF ULLY FOLLOWING THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF RADHE DEVELOPERS (SUPRA) WE DECLINE TO INTERFERE IN THE ORDER OF LD . CIT(A). 4. IN THE RESULT APPEAL OF THE REVENUE STANDS DIS MISSED. 5. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (KUL BHARAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR AHMEDABAD BY ORDER 6. THE GUARD FILE AR ITAT AHMEDABAD 1. DATE OF DICTATION 27/3 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 28/3 .OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 30/3 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.30/3 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 30/3 /12 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .