The ITO, Ward-2(3),, Baroda v. M/s. Gokul Developers, Baroda

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD BEFORE SHRI A.K.GARODIA ACCOUNTANT MEMBER AND SHRI KUL BHARAT JUDICIAL MEMBER ITA NO.2948/AHD/2011 ASSESSMENT YEAR:2007-08 INCOME TAX OFFICER WARD-2(3) 2 ND FLOOR AAYKAR BHAVAN RACE COURSE CIRCLE BARODA V/S . M/S. GOKUL DEVELOPERS KRISHNADEEP TENAMENTS B/H PETROFILLS BUS STOP REFINERY ROAD BARODA PAN NO.AAFFG9539H (APPELLANT) .. (RESPONDENT) /BY APPELLANT SHRI VINOD TANWANI SR-DR /BY RESPONDENT NONE /DATE OF HEARING 13-03-2012 /DATE OF PRONOUNCEMENT 30-03-2012 O R D E R PER KUL BHARAT JUDICIAL MEMBER:- THE PRESENT APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-I I BARODA DATED 29- 09-2011 FOR THE ASSESSMENT YEAR 2007-08. 2. THE ASSESSING OFFICER VIDE ASSESSMENT ORDER DATE D 30-12-2009 DECLINED THE DEDUCTION CLAIMED BY THE ASSESSEE U/S. 80IB(10) OF THE ITA NO.2948/AHD/2011 A.Y. 2007-08 ITO WD-2(3) BRD V. M/S. GOKUL DEVELOPERS PAGE 2 INCOME-TAX ACT 1961. THE ASSESSEE FEELING AGGRIEVE D BY THE AMENDMENT ORDER FILED ON APPEAL BEFORE THE LD. CIT( A) WHO AFTER CONSIDERING MATERIAL AVAILABLE ON RECORD AND SUBMIS SIONS MADE BY THE LD. AR OF THE ASSESSEE ALLOWED APPEAL RELYING ON TH E JUDGMENT PASSED BY THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CA SE OF ITO V. SHAKTI CORPORATION IN ITA NO.1503/AHD/2008 ALLOWED THE APPEAL. 3. THE REVENUE FEELING AGGRIEVED OF THE ORDER OF LD . CIT(A) APPROACHED THIS APPEAL TO THE TRIBUNAL HAS RAISED F OLLOWING GROUND OF APPEAL FOR DETERMINATION:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD. CIT(APPEALS) ERRED IN DIRECTING THE ASSESSING OFFIC ER TO ALLOW THE DEDUCTION U/S. 80IB(10) R.W.S. 80IB(1) OF THE INCOM E-TAX ACT TO THE ASSESSEE IN VIEW OF THE DECISION OF THE HONBLE ITA T IN THE CASE OF M/S. SHAKTI CORPORATION IN ITA NO.1503/AHD/2008 DATED 07 .11.2008 WITHOUT APPRECIATING THAT THE APPROVAL BY THE LOCAL AUTHORI TY AS WELL AS COMPLETION CERTIFICATE WAS NOT GRANTED TO THE ASSES SEE BUT TO THE LANDOWNER AND THE RIGHTS AND THE OBLIGATIONS UNDER THE SAID APPROVAL WERE NOT TRANSFERABLE AND THAT TRANSFER OF DWELLIN G UNITS IN FAVOUR OF THE END-USERS WAS MADE BY THE LANDOWNER AND NOT BY THE ASSESSEE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD CIT(APPEALS) ERRED IN DIRECTING THE ASSESSING OFFI CER TO ALLOW THE DEDUCTION U/S. 80IB(10) R.W.S 80IB(1) OF THE INCOME -TAX ACT TO THE ON PROFIT DERIVED FROM SALE OF UNUTILIZED FSI IN VIEW OF THE DECISION OF THE HONBLE ITAT IN THE CASE OF M/S RADHE DEVELOPERS I N ITA NO. 2482/AHD/2006 DATED 29.06.2007 WITHOUT APPRECIATIN G THAT THIS PROFIT NOT AN ELEMENT OF PROFITS DERIVED FROM THE BUSINESS ACTIVITY OF DEVELOPMENT AND CONSTRUCTION OF THE HOUSING PROJECT RELATING TO THE SALE OF TENEMENTS. 4. LD. DR HAS VEHEMENTLY ARGUED AND SUPPORTED THE O RDER PASSED BY THE ASSESSING OFFICER. ITA NO.2948/AHD/2011 A.Y. 2007-08 ITO WD-2(3) BRD V. M/S. GOKUL DEVELOPERS PAGE 3 5. WE HAVE PERUSED THE MATERIAL ON RECORD AND SUBMI SSIONS MADE BY LD. DR. THE ISSUE RAISED IN THIS APPEAL IS NOW S ETTLED AS VIEWED LATER IN SHAKTI CORPORATION (SUPRA) HAS BEEN AFFIRMED BY THE HONBL E JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. RADHE DEVELOPER (2012) 341 ITR 403 (GUJ) . RESPECTFULLY FOLLOWING THE RATIO LAID THEREIN WE F IND NO MERIT INTO THE APPEAL OF REVENUE. HENCE THE IMP UGNED ORDER PASSED BY LD. CIT(A) IS HEREBY CONFIRMED. 6. IN THE RESULT REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTION ED HEREINABOVE AT CAPTION PAGE. SD/- SD/- (A.K.GARODIA) (KUL BHARAT) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD *DKP - 30/03/2012 '() * + + + + --. --. --. --. /. /. /. /. / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. )-1 + +2 / CONCERNED CIT 4. + +2- / CIT (A) 5. .56 ---1 + -1 '() / DR ITAT AHMEDABAD 6. 69: ;< / GUARD FILE. BY ORDER/ + /TRUE COPY/ =/ ' > + -1 '() *