Shri Mukeshbhai V. Patel, Ahmedabad v. The Income tax Officer, Ward-3,, Gandhinagar

ITA 372/AHD/2009 | 2005-2006
Pronouncement Date: 22-07-2011 | Result: Allowed

Appeal Details

RSA Number 37220514 RSA 2009
Bench Ahmedabad
Appeal Number ITA 372/AHD/2009
Duration Of Justice 2 year(s) 5 month(s) 16 day(s)
Appellant Shri Mukeshbhai V. Patel, Ahmedabad
Respondent The Income tax Officer, Ward-3,, Gandhinagar
Appeal Type Income Tax Appeal
Pronouncement Date 22-07-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 22-07-2011
Date Of Final Hearing 20-07-2011
Next Hearing Date 20-07-2011
Assessment Year 2005-2006
Appeal Filed On 05-02-2009
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.372/AHD/2009 ASSESSMENT YEAR:2005-06 DATE OF HEARING:20.7.11 DRAFTED:21.7.11 MUKESHBHAI V PATEL PLOT NO.588 SECTOR 22 GHANDINAGAR PAN NO.ACKPP7110L V/S . INCOME TAX OFFICER WARD-3 GANDHINAGAR (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI V.P. PATEL AR RESPONDENT BY:- SHRI SAMIR TEKRIWAL SR-DR O R D E R PER D.K. TYAGI JUDICIAL MEMBER:- THIS IS ASSESSEES APPEAL AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME- (APPEALS)-GANDHINAGAR DATED 28-11-2008 FOR THE ASSE SSMENT ORDER 2005-06. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS:- THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAWS IN S USTAINING THE DISALLOWANCES OF DEDUCTION U/S. 80IB(10) OF THE ACT WHERE THE AP PELLANT HAS FULFILLED ALL THE CONDITIONS AND DOMAIN OVER THE PROJECT WAS ALSO WIT H THE APPELLANT HENCE THE SAME MAY DELETE IN TOTO. 2. THE LD CIT(A) ERRED ON FACT AND IN LAWS IN SUSTA INING THE ADDITION OF RS.80000/-TOWARDS CASH PAYMENT FOR LAND WHERE THE SAME IS NOT DISALLOWANCE UNDER THE PROVISION OF SECTION 40A(3) OF THE ACT. 2. THE FIRST GROUND RELATES TO REJECTION OF ASSESSE ES CLAIM OF RS.12 71 980/- U/S 80IB(10) OF THE INCOME-TAX ACT 1961. THE ASSESSEE D ERIVE INCOME FROM THE BUSINESS OF CONSTRUCTION AND DURING THE YEAR UNDER APPEAL. T HIS CLAIM OF THE ASSESSEE WAS REJECTED BY ASSESSING OFFICER ON THE GROUND THAT NO DETAILS WITH RESPECT OF COMMENCEMENT OF WORK OR MEASUREMENT OF PLOT WERE FI LED BEFORE HIM. HE WAS OF THE ITA NO.372/AHD/2009 A.Y. 2005-06 MUKESHBHAI V PATEL V. ITO WD-3 GNG PAGE 2 VIEW THAT THERE WAS NO WAY THAT ASSESSEES CLAIM OF ACTUAL CONSTRUCTION CAN BE VERIFIED ON THE BASIS OF DETAILS FILED. ALSO MISSIN G WAS THE DETAILS ABOUT AREA OF RESIDENTIAL AND COMMERCIAL ESTABLISHMENTS. 3. BEFORE LD. CIT(APPEALS) THE CONTENTION OF THE AS SESSEE WAS THAT DEVELOPMENT AND CONSTRUCTION WORK OF THE HOUSING SC HEME AS PER THE APPROVED PLAN OF LAND MORE THAN 1 ACRE HAS COMMENCED FROM DEC01 ONWARDS AND WAS COMPLETED IN 2007 AND HENCE ALL THE CONDITIONS STIPULATED IN SECTION 80IB(10) HAVE BEEN FULLY SATISFIED. IT WAS FURTHER STATED THAT DEDUCTION HAS BEEN GRANTED IN THE PRECEDING YEAR AS WELL AS IN THE SUCCEEDING YEARS. THE RELIANCE WA S ALSO PLACED ON THE DECISION OF ITAT AHMEDABAD BENCHES IN THE CASE OF RADHYA DEVELOPERS WHICH ACCORDING TO ASSESSEE WAS SQUARELY APPLICABLE TO THE FACTS OF TH E CASE. HOWEVER LD. CIT(APPEALS) CONFIRMED THE ACTION OF ASSESSING OFFI CER. 4. FURTHER AGGRIEVED NOW ASSESSEE IS IN APPEAL BEFO RE US. 5. AT THE TIME OF HEARING LEARNED COUNSEL FOR THE A SSESSEE SUBMITTED THAT DURING THE PREVIOUS YEAR THE CLAIM OF THE ASSESSEE U/S.80IB(10) IN RESPECT OF SAME PROJECT HAS BEEN ALLOWED AND THEREFORE AO WAS NOT J USTIFIED IN NOT ACCEPTING THE CLAIM OF THE ASSESSEE DURING THE YEAR UNDER APPEAL AS ALL THE CONDITIONS HAD BEEN FULFILLED BY THE ASSESSEE FOR CLAIMING THIS DEDUCTI ON. 6. LD. DR ON THE OTHER HAND RELIED ON THE ORDERS OF LOWER AUTHORITIES. 7. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RECORD AND ALSO THE ASSESSMENT ORDER FOR THE ASSESSMENT ORDER 2004-05 IT IS NOT CLEAR WHETHER THE CLAIM OF THE ASSESSEE U/S.80IB(10) DURING THE A.Y 2004-05 WAS IN RESPECT OF THE SAME PROJECT. THE MATTER IS RESTORED BACK TO THE FILE OF ASSESSING OFFICER FOR FRESH ADJUDICATION TO GIVE THE ASSESSEE ONE MORE OPPORTUN ITY TO SUBSTANTIATE HIS CLAIM BEFORE THE AO. 8. THE SECOND GROUND RELATES TO ADDITION OF RS.80 0 00/- U/S.40A(3) OF THE ACT FOR CASH PAYMENT OF LAND. ITA NO.372/AHD/2009 A.Y. 2005-06 MUKESHBHAI V PATEL V. ITO WD-3 GNG PAGE 3 9. DURING THE YEAR UNDER APPEAL ASSESSEE MADE THE P AYMENT OF RS.4 CRORE BY CASH TO PURCHASE LAND. THE ASSESSING OFFICER INVOKI NG THE PROVISIONS OF SECTION 40A(3) DISALLOWED THE SUM OF RS.80 000/-. THIS ACTI ON OF ASSESSING OFFICER WAS CONFIRMED BY LD. CIT(APPEALS). 10. BEFORE US IT WAS SUBMITTED THAT PAYMENTS WERE M ADE TO FARMERS WHO INSISTED THAT PAYMENTS BE MADE IN CASH ONLY AS THEY WERE NOT HAVING ANY BANK ACCOUNT IN THEIR RESPECTIVE NAMES. HOWEVER NO EVIDENCE IN THI S RESPECT WAS FILED AT ANY STAGE AND THEREFORE THIS ISSUE IS ALSO RESTORED BACK TO T HE FILE OF AO FOR FRESH ADJUDICATION AND THE ASSESSEE WILL BE FREE TO FILE FURTHER EVIDE NCE IN SUPPORT THIS CLAIM THAT CASH PAYMENTS WAS MADE BY HIM ON THE REQUEST OF THE FARM ERS. 11. IN THE RESULT ASSESSEES APPEAL IS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED ON THIS DAY OF 22 ND JULY 2011 SD/- SD/- ( G.D.AGARWAL ) ( D.K. TYAGI ) (VICE PRESIDENT) (JUDICIAL MEMBER) AHMEDABAD DATED : 22/07/2011 *DKP COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)-GANDHINAGAR 4. THE CIT CONCERNS. 5. THE DR ITAT AHMEDABAD 6. GUARD FILE. BY ORDER /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT AHMEDABAD