The ITO, Ward-9(2),, Ahmedabad v. M/s. Ashutosh Developers,, Ahmedabad

ITA 3444/AHD/2007 | 2004-2005
Pronouncement Date: 14-05-2010 | Result: Allowed

Appeal Details

RSA Number 344420514 RSA 2007
Assessee PAN AAJFA0874N
Bench Ahmedabad
Appeal Number ITA 3444/AHD/2007
Duration Of Justice 2 year(s) 9 month(s) 5 day(s)
Appellant The ITO, Ward-9(2),, Ahmedabad
Respondent M/s. Ashutosh Developers,, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 14-05-2010
Appeal Filed By Department
Order Result Allowed
Bench Allotted D
Tribunal Order Date 14-05-2010
Date Of Final Hearing 12-05-2010
Next Hearing Date 12-05-2010
Assessment Year 2004-2005
Appeal Filed On 09-08-2007
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD (BEFORE S/SHRI G. D. AGARWAL VP AND BHAVNESH SAINI JM) ITA NO.3444/AHD/2007 A. Y.: 2004-05 THE INCOME TAX OFFICER WARD-9(2) A WING VASUPRIYA CHAMBERS ASHRAM ROAD BARODA VS M/S. ASHUTOSH DEVELOPERS 15 ABHOKRAM APPARTMENTS NR. RAJ AVENUE THALTEJ AHMEDABAD PA NO. AAJFA 0874 N (APPELLANT) (RESPONDENT) APPELLANT BY SHRI C. K. MISHRA DR RESPONDENT BY NONE O R D E R PER BHAVNESH SAINI: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE CIT(A)-XV AHMEDABAD DATED 31-05-2007 FOR ASSESSMENT YEAR 2004-05 CHALLENGING THE DELETION O F ADDITION MADE OF RS.18 06 869/- ON ACCOUNT OF DISALLOWANCE OF DEDUCT ION U/S 80 IB(10) OF THE IT ACT. 2. WE HAVE HEARD THE LEARNED DR AND PERUSED THE FIN DINGS OF THE AUTHORITIES BELOW. NONE PRESENT ON BEHALF OF THE AS SESSEE DESPITE SERVICE OF NOTICE THROUGH REGISTERED POST. THE ASSESSEE IS THEREFORE PROCEEDED EX-PARTE. 3. THE AO OBSERVED THAT THE ASSESSEE HAS NOT CARRIE D OUT ANY DEVELOPMENT AND CONSTRUCTION WORK FOR THE SOCIETY N AMELY NEW HARSHAD BHAVANI CO-OPERATIVE HOUSING SOCIETY LTD. THE ASSES SEE HAS SHOWN RECEIPTS UNDER THE HEAD SUPERVISION CHARGES AND LAB OUR CHARGES WHICH ACCORDING TO THE AO WOULD CLEARLY SHOW THAT THE ASS ESSEE HAS MERELY CARRIED OUT SUPERVISION AND LABOUR WORK FOR THE SAI D SOCIETY. IN LIEU OF SUCH SERVICES THE ASSESSEE HAS BEEN PAID THE SUPER VISION FEES @ 23% OF ITA NO.3444/AHD/2007 ITO VS M/S. ASHUTOSH DEVELOPERS 2 THE TOTAL COLLECTING MADE FROM THE MEMBERS OF THE S OCIETY. SIMILARLY THE LABOUR CHARGES WERE PAID TO THE ASSESSEE @ RS.900/- PER SQ. YD. OF THE CONSTRUCTION WORK OF THE SOCIETY. THE AO FURTHER OB SERVED THAT EXCEPT FOR THE LABOUR EXPENSES THE ASSESSEE HAS NOT DEBITED A NY OTHER EXPENSES TOWARDS PURCHASE OF CONSTRUCTION MATERIAL ETC. THE AO THEREFORE NOTED THAT THE ASSESSEE DID LABOUR CONTRACT WORK FOR THE SOCIETY. THE AGREEMENT OF THE ASSESSEE WITH THE SOCIETY ALSO SHOWS THAT TH E ASSESSEE MERELY SUPERVISED THE WORK OF DEVELOPMENT AND CONSTRUCTION OF THE SOCIETY. ON VERIFICATION OF THE BOOK ALSO THE AO OBSERVED THAT THE ASSESSEE FIRM IS NOT INVOLVED IN ACTUAL DEVELOPMENT AND CONSTRUCTION WORK OF THE SOCIETY. THE AO THEREFORE HELD THAT THE ASSESSEE IS NOT EN TITLED FOR DEDUCTION U/S 80 IB (10) OF THE IT ACT. THE ASSESSEE AGITATED THE FINDING OF THE AO BEFORE THE LEARNED CIT(A). THE SUBMISSIONS OF THE A SSESSEE ARE RECORDED IN PARA 2.1 OF THE IMPUGNED ORDER. THE LEARNED CIT( A) CONSIDERING THE SAME ARGUMENT OF THE ASSESSEE NOTED THAT SIMILAR FA CTS ARE CONSIDERED IN THE CASE OF M/S. MEGA DEVELOPERS FOR THE SAME ASSES SMENT YEAR AND RELIEF HAS BEEN ALLOWED IN THAT CASE. THE LEARNED C IT(A) ON THE BASIS OF THE SAME REASONS GIVEN IN THE CASE OF MEGA DEVELOPE RS ALLOWED THE APPEAL OF THE ASSESSEE. 4. THE LEARNED DR SUBMITTED THAT THE LEARNED CIT(A) SHOULD HAVE GIVEN SPECIFIC REASONS IN THE IMPUGNED ORDER AS TO HOW THE ORDER IN THE CASE OF MEGA DEVELOPERS HAS BEEN FOLLOWED. THE LEAR NED DR ALSO SUBMITTED THAT THE LEARNED CIT(A) HAS NOT GIVEN ANY FINDING AS TO HOW THE FACTS ARE IDENTICAL IN THIS CASE AS COMPARED TO THE CASE OF THE ASSESSEE. THE LEARNED DR THEREFORE SUBMITTED THAT THE MATTE R REQUIRES RECONSIDERATION BY THE LEARNED CIT(A). 5. ON CONSIDERATION OF THE SUBMISSIONS OF THE LEARN ED DR WE ARE OF THE VIEW THAT THE MATTER REQUIRES RECONSIDERATION A T THE LEVEL OF THE LEARNED CIT(A). THE ASSESSEE IS SERVED OF THE NOTIC E BUT THE ASSESSEE ITA NO.3444/AHD/2007 ITO VS M/S. ASHUTOSH DEVELOPERS 3 CHOSE NOT TO APPEAR BEFORE THE TRIBUNAL. THE LEARNE D CIT(A) FOLLOWED THE ORDER IN THE CASE OF MEGA DEVELOPERS DECIDED BY THE LEARNED CIT(A) HIMSELF. THE LEARNED CIT(A) HAS HOWEVER NOT GIVEN ANY REASON AS TO HOW THE FINDINGS IN THAT CASE WERE IDENTICAL TO THE CAS E OF THE ASSESSEE. MOREOVER THE ORDER OF THE LEARNED CIT(A) IN THE CA SE OF MEGA DEVELOPERS IS NOT AVAILABLE ON RECORD. THEREFORE WE ARE NOT A BLE TO EXAMINE THE REASONS GIVEN BY THE LEARNED CIT(A) IN ALLOWING REL IEF TO THE ASSESSEE U/S 80 IB (10) OF THE IT ACT. THERE IS ALSO NO CO-OPERA TION FROM THE SIDE OF THE ASSESSEE. THEREFORE IN THE ABSENCE OF ANY MATERIAL ON RECORD AS WELL AS IN THE ABSENCE OF ANY SPECIFIC FINDING GIVEN BY THE LEARNED CIT(A) ON THE MATTER IN ISSUE WE ARE OF THE VIEW THAT THE MATTER REQUIRES RECONSIDERATION BY THE LEARNED CIT(A). WE ACCORDING LY SET ASIDE THE ORDER OF THE LEARNED CIT(A) AND DIRECT HIM TO RE-DECIDE T HE ISSUE BY GIVING REASONABLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN CASE THE LEARNED CIT(A) FINDS THAT THE ISSUE IS SAME AS IN THE CASE OF MEGA DEVELOPERS THE LEARNED CIT(A) SHOULD QUOTE THE REA SONS FROM THAT CASE IN THE IMPUGNED ORDER IN ORDER TO ENABLE THE TRIBUN AL TO APPRECIATE THE FINDINGS OF THE LEARNED CIT(A). WITH THE ABOVE OBSE RVATIONS THE APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 6. AS A RESULT THE APPEAL OF THE REVENUE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 14-05-2010 SD/- SD/- (G. D. AGARWAL) VICE PRESIDENT (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 14-05-2010 LAKSHMIKANT/- ITA NO.3444/AHD/2007 ITO VS M/S. ASHUTOSH DEVELOPERS 4 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR ITAT AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR ITAT AHMEDABAD