The ITO, Ward-2(1),, Baroda v. M/s. Kirti Construction, Baroda

ITA 485/AHD/2012 | 2008-2009
Pronouncement Date: 13-11-2014 | Result: Partly Allowed

Appeal Details

RSA Number 48520514 RSA 2012
Assessee PAN AAGFK7066A
Bench Ahmedabad
Appeal Number ITA 485/AHD/2012
Duration Of Justice 2 year(s) 8 month(s) 20 day(s)
Appellant The ITO, Ward-2(1),, Baroda
Respondent M/s. Kirti Construction, Baroda
Appeal Type Income Tax Appeal
Pronouncement Date 13-11-2014
Appeal Filed By Department
Order Result Partly Allowed
Bench Allotted C
Tribunal Order Date 13-11-2014
Date Of Final Hearing 30-10-2014
Next Hearing Date 30-10-2014
Assessment Year 2008-2009
Appeal Filed On 23-02-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH AHMEDABAD BEFORE SHRI ANIL CHATURVEDI ACCOUNTANT MEMBER AND SHRI KUL BHARAT JUDICIAL MEMBER SL. NO(S) ITA NO(S) NOS. ASSESSMENT YEAR(S) APPEAL(S) BY APPELLANT VS. RESPONDENT APPELLANT RESPONDENT 1. 1686/AHD/2013 2005-06 ITO WARD-2(1) BARODA M/S.KIRTI CONSTRUCTION AYODHYA TOWNSHIP KEDAR PARK NR.MOTINAGAR -3 TARSALI ROAD BARODA-390 009 PAN:AAGF K 7066A 2. 1325/AHD/2011 2007-08 ASSESSEE REVENUE 3. 485/AHD/2012 2008-09 REVENUE ASSESSEE 4. 288/AHD/2012 2008-09 ASSESSEE REVENUE 5 . 2 331 /AHD/2012 200 9 - 10 REVENUE ASSESSEE 6. 2434/AHD/2012 2009-10 ASSESSEE REVENUE ASSESSEE BY : SHRI SHRI S.N.SOPARKAR A.R. REVENUE BY : SHRI M.K. SINGH SR.DR / DATE OF HEARING 30/10/2014 / DATE OF PRONOUNCEMENT 13/11/2014 / O R D E R PER SHRI KUL BHARAT JUDICIAL MEMBER : THESE GROUP OF APPEALS BY THE ASSESSEE AND THE REVE NUE ARE DIRECTED AGAINST THE SEPARATE ORDERS OF THE LD.COMM ISSIONER OF INCOME TAX(APPEALS)-II BARODA (CIT(A) IN SHORT) PERTAINING TO ASSESSMENT YEARS (AYS) 2005-06 2007-08 2008-09 & 2009-10. O UT OF THESE SIX ITA NOS.1686/AHD/2013 1325/AHD/2011 485 288 2331 AND 2434/AHD/2012 ITO VS. M/S.KIRTI CONSTRUCTION (CROSS-APPEALS) ASST.YEARS 2005-06 2007-08 2008-09 & 2009-10 - 2 - APPEALS TWO SET OF APPEALS ARE CROSS-APPEALS PERTA INING TO AYS 2008-09 & 2009-10. SINCE COMMON ISSUES AND FACTS ARE INVO LVED IN THESE APPEALS THESE WERE HEARD TOGETHER AND ARE BEING DI SPOSED OF BY WAY OF THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE . 2. FIRST WE TAKE UP THE REVENUES APPEAL IN ITA NO .1686/AHD/2013 FOR AY 2005-06 IS AGAINST THE ORDER OF THE LD.CIT(A )-II BARODA DATED 31/01/2011. THE REVENUE HAS RAISED THE FOLLOWING G ROUNDS OF APPEAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD.CIT(APPEALS) ERRED IN NOT CONSIDERING 25.10. 2000 AS THE BASE YEAR FOR DECIDING THE COMPLETION YEAR AND DATE OF THE PROJECT IN VIEW OF THE DECISION OF THE HONBLE ITAT IN ITA NO.3074/AHD/2008 DATED 27.11.2009. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD.CIT(APPEALS) ERRED IN DIRECTING THE ASSESSIN G OFFICER TO ALLOW DEDUCTION U/S.80IB(10) OF THE ACT PROPORTIONA TELY ON THE COMPLETED UNITS OF THE PROJECT WITHOUT APPRECIATING THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S.80IB(10) ONL Y WHEN ALL THE CONDITIONS OF SECTION 80IB(10) IN RESPECT OF THE E NTIRE PROJECT IS COMPLETED. 3. THE APPELLANT CRAVES LEAVE TO ADD TO AMEND OR ALTER THE ABOVE GROUNDS AS MAY BE DEEMED NECESSARY. RELIEF CLAIMED IN APPEAL IT IS PRAYED THAT THE ORDER OF THE CIT(APPEALS) BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 3. BRIEFLY STATED FACTS ARE THAT THE CASE OF THE AS SESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S.143( 3) OF THE INCOME TAX ITA NOS.1686/AHD/2013 1325/AHD/2011 485 288 2331 AND 2434/AHD/2012 ITO VS. M/S.KIRTI CONSTRUCTION (CROSS-APPEALS) ASST.YEARS 2005-06 2007-08 2008-09 & 2009-10 - 3 - ACT 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VIDE ORDER DATED 22.11.2011 THEREBY THE ASSESSING OFFICER (AO IN SHORT) DISALLO WED THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S.80IB(10 ) AMOUNTING TO RS.42 76 463/- IN SECOND ROUND OF LITIGATION. IN EARLIER ROUND THE AO HAD FRAMED ASSESSMENT U/S.143(3) OF THE ACT DATED 2 6/12/2007 WHEREBY THE AO HAD DISALLOWED THE DEDUCTION U/S.80IB(10) OF THE ACT. THE MATTER TRAVELLED UPTO THE ITAT BY WAY OF ITA NO.30 74/AHD/2008 DATED 27/11/2009 AND THE TRIBUNAL RESTORED THE ISSUED BAC K TO THE FILE OF AO WITH THE DIRECTION AS RECORDED IN THE ASSESSMENT OR DER IN PARA-5 WHICH IS REPRODUCED HEREUNDER:- 5. THAT ITAT AHMEDABAD VIDE ORDER DATED 27.11.20 09 VIDE DIRECTION ON PAGE NO.50 & 51 OF THE ORDER RESTORED THE ISSUES TO THE FILE OF THE AO WITH THE DIRECTION THAT: (1) THE AO SHALL LOOK INTO THE AGREEMENT ENTERED INTO BY EACH OF THE ASSESSEE WITH THE LANDOWNER AND DECIDE WHETHER THE ASSESSEE HAS IN FACT PURCHASED THE LAND FOR A FIXED CONSIDERATION FROM THE LANDOWNER AND HAS DEVELOPED THE HOUSING PROJECT AT ITS OWN COST AND RISKS INVOLVED IN THE PROJECT. IN CASE THE AO FINDS THAT PRACTICALLY THE LAND HAS BEEN BOUGHT BY THE DEVELOPER AND DEVELOPER HAS ALL DOMINANT CON TROL OVER THE PROJECT AND HAS DEVELOPED THE LAND AT HIS OWN C OST AND RISKS THE AO SHOULD ALLOW THE DEDUCTION TO THE ASS ESSEE U/S.80IB(10). IN CASE THE AO FINDS THAT THE DEVELO PER HAS ACTED ON BEHALF OF THE LANDOWNER AND HAS GOT THE FIXED CO NSIDERATION FROM THE LANDOWNER FOR THE DEVELOPMENT OF THE HOUSI NG PROJECTS THE ASSESSEE SHOULD NOT BE ALLOWED DEDUCT ION U/S.80IB(10) TO THE ASSESSEE. (2) THE AO SHOULD ALSO LOOK INTO WHETHER THE ASSESSEE H AS IN THIS CASE COMPLIED WITH THE CONDITIONS AS GIVEN U/S.80IB (10)(A) READ WITH EXPLANATION THERETO ABOUT THE COMPLETION OF TH E HOUSING ITA NOS.1686/AHD/2013 1325/AHD/2011 485 288 2331 AND 2434/AHD/2012 ITO VS. M/S.KIRTI CONSTRUCTION (CROSS-APPEALS) ASST.YEARS 2005-06 2007-08 2008-09 & 2009-10 - 4 - PROJECT BY THE ASSESSEE BEFORE 31 ST DAY OF MARCH 2008. AS PER THE EXPLANATION TO SECTION 80IB(10)(A) THE DATE OF APPROVAL IN THE CASE OF THE ASSESSEE IN OUR OPINION WILL BE T AKEN TO BE 25.10.2000 AND NOT 16.06.2004 AS THAT IS THE DATE O N WHICH THE HOUSING PROJECT WAS APPROVED. IF THE OPINION OF TH E AO THE ASSESSEE HAS NOT COMPLETED THE PROJECT BEFORE 31 ST DAY OF MARCH 2008 NO DEDUCTION SHOULD BE ALLOWED TO THE ASSESSEE U/S.80IB(10) IN OUR OPINION ALL THE CONDITIONS AS STIPULATED UNDER SUB-CLAUSES (1) (B) (C) AND (D) U/S.80IB10 MUST BE COMPILED WITH BY THE ASSESSEE FOR CLAIMING THE DEDU CTION U/S.80IB(10). IN VIEW OF THE DIRECTION NO.1 & 2 MENTIONED ABOVE THE ASSESSEE WAS ISSUED NOTICE U/S.143(2) ON 25.06.2010 AND U/S. 142(1) OF THE IT ACT ON 30.05.2011 AND 27.10.2011 TO FURNISH ALL THE DOCUMENTARY EVIDENCE IN SUPPORT OF THEIR CLAIM AND ALSO TO FURNISH THE COMPLETION CERTIFICATE IN RESPECT OF THE SAID P ROJECT. 3.1. THE AO IN PURSUANCE OF THE DIRECTION OF THE TR IBUNAL GAVE FINDING THAT SO FAR AS THE FIRST DIRECTION IS CONCERNED TH E TERMS OF THE DEVELOPMENT AGREEMENT IS SUCH THAT THE ASSESSEE I.E . DEVELOPER HAS POSSESSES ALL RIGHTS AND RISKS ON THE CONSTRUCTED P ROPERTY AND LAND OWNER ONLY INTERESTED IN RECEIVING HIS PART OF THE LAND C ONSIDERATION FOR TRANSFER OF LAND TITLE. IN RESPECT OF THE SECOND DIRECTION THE AO GAVE A FINDING THAT COMPLETION CERTIFICATE WAS NOT ISSUED WITHIN T HE STIPULATED TIME THEREFORE THE ASSESSEE HAS FAILED TO COMPLY WITH TH E PROVISIONS OF SECTION 80IB(10) OF THE ACT AND PROCEEDED TO MAKE DISALLOWA NCE CLAIMED U/S.80- IB(10) OF THE ACT. AGAINST THIS THE ASSESSEE FILE D AN APPEAL BEFORE THE LD.CIT(A) WHO AFTER CONSIDERING THE SUBMISSIONS DI RECTED THE AO TO ALLOW THE DEDUCTION ON 220 UNITS OUT OF 223 UNITS. ITA NOS.1686/AHD/2013 1325/AHD/2011 485 288 2331 AND 2434/AHD/2012 ITO VS. M/S.KIRTI CONSTRUCTION (CROSS-APPEALS) ASST.YEARS 2005-06 2007-08 2008-09 & 2009-10 - 5 - 3.2. THE LD.SR.DR SUBMITTED THAT THE LD.CIT(A) WAS NOT JUSTIFIED IN DELETING THE DISALLOWANCE. HE SUBMITTED THAT THE A PPELLANT COULD NOT PRODUCE COMPLETION CERTIFICATE IN RESPECT OF 129 UN ITS. HOWEVER THE LD.CIT(A) GRANTED THE RELIEF ON THE BASIS OF THE A PPLICATION MADE BY THE ASSESSEE TO THE VADODARA MUNICIPAL CORPORATION. HE SUBMITTED THAT THIS APPROACH OF THE LD.CIT(A) IS NOT JUSTIFIED. 4. ON THE CONTRARY LD.SR.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF ASSESSEE AN D HE PLACED RELIANCE ON THE JUDGEMENT OF HONBLE GUJARAT HIGH COURT RENDERE D IN THE CASE OF CIT-IV VS. TARNETAR CORPORATION (2012) REPORTED AT 210 TAXMAN 206 (GUJ.). HE ALSO PLACED RELIANCE ON THE DECISION OF THE COORDINATE BENCH (ITAT AHMEDABAD D BENCH) RENDERED IN THE CASE OF SAKET CORPORATION VS. ITO IN ITA NO.3377/AHD/2010 FOR AY 2007-08 DATED 14/08/2014. HE ALSO PLACED RELIANCE ON THE JUDGEME NT OF THE HONBLE DELHI HIGH COURT RENDERED IN THE CASE OF CIT VS. CH D DEVELOPERS LTD. (2014) REPORTED AT 362 ITR 177 (DELHI). IN SUPPORT OF THIS CONTENTION DELAY ON THE PART OF THE CONCERNED AUTHORITY FOR IS SUING THE COMPLETION CERTIFICATE WOULD NOT DISENTITLE THE ASSESSEE FROM CLAIM OF DEDUCTION UNDER SECTION 80-IB(10) OF THE ACT. HE SUBMITTED T HAT EVEN OTHERWISE ALSO WHEN THE HOUSING PROJECT WAS APPROVED THERE WAS NO PROVISION FOR GETTING THE COMPLETION CERTIFICATE FROM THE CONCERN ED AUTHORITY IT WAS INSERTED BY WAY OF SUBSEQUENT AMENDMENT IN THE PROV ISION. ITA NOS.1686/AHD/2013 1325/AHD/2011 485 288 2331 AND 2434/AHD/2012 ITO VS. M/S.KIRTI CONSTRUCTION (CROSS-APPEALS) ASST.YEARS 2005-06 2007-08 2008-09 & 2009-10 - 6 - 5. WE HAVE HEARD THE RIVAL SUBMISSIONS PERUSE D THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHOR ITIES BELOW AS WELL AS THE JUDGEMENTS RELIED UPON BY THE LD.SR.COUNSEL FOR THE ASSESSEE. THE UNDISPUTED FACT ARISING FROM THE RECORD IS THAT OUT OF 456 UNITS THE APPROVAL GRANTED FOR 222 UNITS OF PLOTS AND 234 UNI TS OF RESIDENTIAL UNITS FROM VADODARA MAHANAGAR SEVA SADAN. THE LD.SR.COUN SEL FOR THE ASSESSEE CONTENDED THAT THE ASSESSEE HAS MADE CLAIM WITH REGARD TO RESIDENTIAL UNITS ONLY AND NOT WITH REGARD TO THE P LOTS. THE LD.CIT(A) HAS GIVEN A FINDING THAT OUT OF 223 UNITS THE ASSESSEE HAS RECEIVED COMPLETION CERTIFICATE IN RESPECT OF 129 UNITS - ON 20/04/2005 FOR 39 UNITS ON 23/08/2005 FOR 20 UNITS AND ON 10/02/2006 FOR 70 UNITS AND SUBMITTED DULY ACKNOWLEDGE COPY OF FORM NO.7 I.E. C OMPLETION REPORT SUBMITTED TO VADODARA MUNICIPAL CORPORATION ON 9 TH MAY-2007 FOR 91 UNITS. THIS FACT IS NOT DISPUTED BY THE REVENUE. WE FIND THAT THE LD.CIT(A) HAS FOLLOWED THE JDUGEMENT OF HONBLE JUR ISDICTIONAL HIGH COURT RENDERED IN THE CASE OF TARNETAR CORPORATION( SUPRA). WHEREIN THE HONBLE HIGH COURT HELD THAT THE ASSESSEE HAD NOT O NLY COMPLETED THE CONSTRUCTION TWO YEARS BEFORE THE FINAL DATE BUT HA D APPLIED FOR THE BUILDING USE PERMISSION. SUCH BUILDING PERMISSION WAS NOT REJECTED ON THE GROUND THAT CONSTRUCTION WAS NOT COMPLETED BUT ON SOME OTHER TECHNICAL GROUND. THUS GRANTING THE BENEFIT OF DE DUCTION COULD NOT BE HELD TO BE ILLEGAL. IN THE INSTANT CASE ALSO THE ASSESSEE HAD COMPLETED THE CONSTRUCTION AND APPLIED FOR THE ISSUANCE OF COMPLE TION CERTIFICATE. WHILE MAKING APPLICATION THE ASSESSEE ALSO ENCLOSE D THE CERTIFICATE ISSUED BY THE ARCHITECT/ENGINEER WHO HAVE GIVEN THE COMPLETION ITA NOS.1686/AHD/2013 1325/AHD/2011 485 288 2331 AND 2434/AHD/2012 ITO VS. M/S.KIRTI CONSTRUCTION (CROSS-APPEALS) ASST.YEARS 2005-06 2007-08 2008-09 & 2009-10 - 7 - CERTIFICATE. IT IS NOTEWORTHY THAT THE LD.CIT(A) H AS RECORDED A FINDING THAT OUT OF 223 UNITS THE CONCERNED AUTHORITY GAVE COMP LETION CERTIFICATE IN RESPECT OF 129 UNITS WHICH IS NOT DISPUTED BY THE R EVENUE. FURTHERMORE THE LD.CIT(A) HAS ALSO GIVEN A FINDING THAT IN RESP ECT OF 91 UNITS THE ASSESSEE HAD MADE APPLICATION FOR ISSUANCE OF THE C OMPLETION CERTIFICATE ON 09/05/2007. THIS FACT IS SUPPORTED BY THE EVIDE NCE OF FORM NO.7 ENCLOSED AT PAGE NO.97 OF THE PAPER-BOOK OF THE ASS ESSEE. THE COORDINATE BENCH OF THIS TRIBUNAL IN SAKET CORPORAT ION VS. ITO (SUPRA) HAS FOLLOWED THE JUDGEMENT OF HONBLE DELHI HIGH CO URT RENDERED IN THE CASE OF CIT VS. CHD DEVELOPERS LTD.(SUPRA) AND HELD THAT IN THE INSTANCE CASE THE HOUSING PROJECT WAS APPROVED ON 10/03/2004 BY THE COMPETENT AUTHORITY. THE ABOVE FACT IS NOT IN DISPUTE AND TH E FACT AS PER THE DECISION OF HONBLE DELHI COURT RENDERED IN THE CAS E OF CIT VS. CHD DEVELOPERS LTD.(SUPRA) THE CONDITION FOR OBTAINING COMPLETION CERTIFICATE WITHIN FOUR YEARS OF THE DATE OF APPROVAL FOR BEING ELIGIBLE FOR DEDUCTION U/S.80IB(10) OF THE ACT IS NOT APPLICABLE. IN TH E PRESENT CASE ALSO IT IS RECORDED BY THE AO THAT INITIALLY THE APPROVAL OF T HE PROJECT FROM VADODARA MUNICIPAL CORPORATION WAS OBTAINED ON 25/ 10/2000. THIS FACT IS NOT CONTROVERTED BY THE REVENUE. THE HONBLE DE LHI HIGH COURT IN THE CASE OF CIT VS. CHD DEVELOPERS LTD.(SUPRA) HEL D AS UNDER:- IN THE PRESENT CASE CONCEDEDLY THE APPROVAL FOR T HE PROJECT WAS GIVEN BY THE MATHURA VRINDAVAN DEVELOPMENT AUTHORIT Y ON MARCH 16 2005. CLEARLY THE APPROVAL RELATED TO THE PERI OD PRIOR TO 2005 I.E. BEFORE THE AMENDMENT WHICH INSISTED ON ISSUA NCE OF THE COMPLETION CERTIFICATE BY THE END OF THE FOUR-YEAR PERIOD WAS BROUGHT INTO FORCE. WE ARE IN FULL AGREEMENT WITH THE GUJARAT HIGH COURT THAT THE APPLICATION OF SUCH STRINGENT C ONDITIONS WHICH ITA NOS.1686/AHD/2013 1325/AHD/2011 485 288 2331 AND 2434/AHD/2012 ITO VS. M/S.KIRTI CONSTRUCTION (CROSS-APPEALS) ASST.YEARS 2005-06 2007-08 2008-09 & 2009-10 - 8 - ARE LEFT TO AN INDEPENDENT BODY SUCH AS THE LOCAL A UTHORITY WHO IS TO ISSUE THE COMPLETION CERTIFICATE WOULD HAVE LED TO NOT ONLY HARDSHIP BUT ABSURDITY. AS A CONSEQUENCE WE ARE OF THE OPINION THAT THE REASONING AND CONCLUSIONS OF THE KARNATAKA HIGH COURT AND THE GUJARAT HIGH COURT ARE FULLY APPLICABLE TO THE FACTS OF THIS CASE. THE TRIBUNAL WAS NOT THEREFORE IN ERROR OF LAW WHILE HOLDING IN FAVOUR OF THE ASSESSEE. IN VIEW OF THE ABOVE NO SUBSTANTIAL QUESTION OF LAW ARISES FOR CONSIDERATION. THE APPEAL IS ACCORDINGLY DISMISSED . 5.1. IN VIEW OF THE BINDING PRECEDENTS AS CITED HE REINABOVE WE DO NOT FIND GOOD REASON TO INTERFERE WITH THE ORDER OF THE LD.CIT(A) SAME IS HEREBY UPHELD. THUS GROUND NO.1 OF REVENUES APPE AL IS REJECTED. 6. APROPOS TO GROUND NO.2 LD.DR SUPPORTED THE ORD ER OF THE ORDER OF THE AO WHEREAS LD.SR.COUNSEL FOR THE ASSESSEE SUPPORTED THE ORDER OF THE LD.CIT(A) AND REITERATED THE SUBMISSIONS AS WER E MADE BEFORE THE LD.CIT(A). 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. THE LD.CIT(A) WHILE DECIDING THE ISSUE HAS OBSERVED AS UNDER:- ON THE ISSUE OF PROPORTIONATE DEDUCTION U/S.80IB(1 0) ALSO HIGH COURT HAS OPINED IN FAVOUR OF THE ASSESSEE THAT THE SAME IS ALLOWABLE ON THE UNITS WHICH ARE FULFILLING THE ELI GIBILITY CONDITION. THOUGH IN THAT CASE THE BUILT UP ARE WAS UNDER CO NSIDERATION AND IN THE PRESENT CASE THE ISSUE IS OF COMPLETION CER TIFICATES. HOWEVER IN MY OPINION THE RATIO IS THE SAME AND WI LL APPLY ON THE RESIDENTIAL UNITS WHICH ARE COMPLETED BUT WHERE COM PLETION CERTIFICATES HAVE NOT BEEN ISSUED BY THE BMC. HON BLE MADRAS ITA NOS.1686/AHD/2013 1325/AHD/2011 485 288 2331 AND 2434/AHD/2012 ITO VS. M/S.KIRTI CONSTRUCTION (CROSS-APPEALS) ASST.YEARS 2005-06 2007-08 2008-09 & 2009-10 - 9 - HIGH COURT IN CASE OF SANGHVI AND DOSHI ENTERPRISE (SUPRA) HELD THAT: 36. THIS LEAVES US WITH THE LAST QUESTION ON PROPORTIONALITY WHICH WAS CONSIDERED BY US IN T.C.(A)NOS.1348 AND 1349 OF 2007 DATED 18.10.2012. THOUGH THE ASSESSEE HAD COMPLIED WITH THE EXTENT OF BUILT-UP AREA AS PER CLAUSE (C) AND THE ASSESSEE IS ENTITLED TO HAVE THE BENEFIT OF DEDUCTION UNDER SECTION 80IB OF THE INCO ME TAX ACT SINCE THE TRIBUNAL HAD REMANDED THE PORTION OF THE BUILT-UP AREA FOR VERIFICATION BEFORE THE ASSESSING OFFICER AND A FACTUAL ENQUIRY HAS TO BE MADE THEREON AS TO WHETHER THE BUILT-UP AREA IS IN FACT 1500 SQ.FT. OR MORE TH AN THAT WE DO NOT THINK THAT THE REVENUE COULD HAVE ANY SERIOU S OBJECTION ON THIS ASPECT. IN THE CIRCUMSTANCES WE CONFIRM THE ORDER OF THE TRIBUNAL ON THE REMAND PORTION. LD. AUTHORIZED REPRESENTATIVE FOR THE APPELLANT HAS ALSO RELIED UPON THE DECISION OF MADRAS HIGH COURT IN CASE OF V ISWAS PROMOTERS (P.) LTD. VS. CIT (2013) 29 TAXMANN.COM 1 9 (MAD.) WHEREIN IT HAS BEEN HELD THAT EACH RESIDENT IAL BLOCK IN A HOUSING PROJECT IS A HOUSING PROJECT IN ITSELF FOR PURPOSE OF CLAIMING DEDUCTION U/S.80IB(10) OF THE ACT. IT HAS BEEN HELD BY THE HIGH COURT THAT THE PROPORTIONATE DEDUCTION HAS TO BE ALLOWED TO THE ASSESSEE IN RESPECT OF THE UNITS WHI CH FULFILL THE ELIGIBILITY CONDITIONS. THE APPELLANT IS ELIGIBLE FOR DEDUCTION U/S.80IB(1 0) ON THOSE UNITS IN RESPECT OF WHICH COMPLETION CERTIFICATES HAVE BE EN ISSUED BY THE BMC. IT WILL ALSO GET DEDUCTION U/S.80IB(10) IN RE SPECT OF THOSE UNITS FOR WHICH ASSESSEE HAD APPLIED TO BMC BEFORE THE DUE DATE I.E. 31.03.2008. THE APPELLANT HAS RECEIVED COMPLE TION CERTIFICATE IN RESPECT OF 129 UNITS (ON 20.04.2005 FOR 39 UNITS ON 23.08.2005 FOR 20 UNITS AND ON 10.02.2006 FOR 70 UNITS AND SUB MITTED DULY ACKNOWLEDGED COPY OF FORM NO.7 I.E. COMPLETION REPO RT SUBMITTED ITA NOS.1686/AHD/2013 1325/AHD/2011 485 288 2331 AND 2434/AHD/2012 ITO VS. M/S.KIRTI CONSTRUCTION (CROSS-APPEALS) ASST.YEARS 2005-06 2007-08 2008-09 & 2009-10 - 10 - TO BMC (VADODARA MUNICIPAL CORPORATION) ON 9 TH MAY 2007 FOR 91 UNITS. ACCORDING TO THE JURISDICTIONAL HIGH COU RT IN CASE OF TARNETAR CORPORATION (SUPRA) THE APPLICATION FOR O BTAINING COMPLETION CERTIFICATE BY THE ASSESSEE BEFORE THE D UE DATE IS SUFFICIENT COMPLIANCE FOR THE GRANT OF DEDUCTION U/ S.80IB(10). IN THE CASE OF THE APPELLANT IT HAS BEEN DEMONSTRATED THAT THE APPLICATION FOR SUCH CERTIFICATES WAS MADE ON 09.05 .2007 I.E. BEFORE THE DUE DATE OF 31.03.2008. THUS ONLY 3 UN ITS OUT OF TOTAL 223 APPROVED BY THE BMC REMAINED INCOMPLETE ON WHIC H DEDUCTION U/S.80IB(10) WILL NOT BE AVAILABLE. AS T HE APPELLANT FIRM HAD COMPLETED CONSTRUCTION OF THE 220 UNITS MUCH BE FORE 31 ST MARCH 2008 I.E. THE DATE BEFORE WHICH CONSTRUCTION WAS TO BE COMPLETED AS PER THE PROVISIONS OF SECTION 80IB(10) OF THE INCOME TAX ACT 1961 THE ASSESSING OFFICER IS DIRECTED TO ALLOW FULL DEDUCTION U/S.80IB(10) ON 220 UNITS OUT OF TOTAL 22 3 UNITS. THE DEDUCTION IS WORKED OUT AS UNDER: TOTAL DEDUCTION CLAIMED RS.42 76 463 X 220 = RS.42 18 932/- ------ 223 THE ASSESSEE SHALL GET RELIEF OF RS.42 18 932/-. 7.1. WE FIND THAT THE LD.CIT(A) HAS FOLLOWED THE JU DGEMENT OF HONBLE MADRAS HIGH COURT RENDERED IN THE CASE OF CIT VS. S ANGHVI AND DOSHI ENTERPRISE REPORTED AT (2013) 255 CTR 156 (MAD.) . THEREFORE WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD.CIT(A ) SAME IS HEREBY UPHELD ON THIS ISSUE. THUS THIS GROUND OF REVENUE S APPEAL IS REJECTED. 7.2. DURING THE COURSE OF HEARING LD.DEPARTMENTAL REPRESENTATIVE RAISED AN ADDITIONAL GROUND WITH REGARD TO ALLOWANC E OF DEDUCTION U/S.80IB(10) OF THE ACT IN RESPECT OF UNUTILIZED FS I IN VIEW OF THE ITA NOS.1686/AHD/2013 1325/AHD/2011 485 288 2331 AND 2434/AHD/2012 ITO VS. M/S.KIRTI CONSTRUCTION (CROSS-APPEALS) ASST.YEARS 2005-06 2007-08 2008-09 & 2009-10 - 11 - JUDGEMENT OF HONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF CIT VS. MOON STAR DEVELOPERS IN TAX APPEAL NO.549 OF 2008. THE LD.SR.COUNSEL FOR THE ASSESSEE SUBMITTED THAT HE HA S NO OBJECTION IF THIS ISSUE IS RESTORED TO THE FILE AO FOR VERIFICATION A ND DECISION AFRESH IN THE LIGHT OF THE JUDGEMENT OF HONBLE GUJARAT HIGH COUR T RENDERED IN THE CASE OF MOON STAR DEVELOPERS (SUPRA). THE LD.COUNS EL FOR THE ASSESSEE HAS RELIED ON THE JUDGEMENT OF HONBLE HIGH COURT OF GUJARAT RENDERED IN THE CASE OF CIT VS. SHREENATH INFRASTRUCTURE REP ORTED AT (2014) 44 TAXMANN.COM 461 (GUJ.). THE HONBLE GUJARAT HIGH C OURT IN THE CASE OF CIT VS. SHREENATH INFRASTRUCTURE HAS FOLLOWED THE J UDGEMENT OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. MOON STAR DEVELOPERS (TAX APPEAL NO.549) AND HAS REPRODUCED THE OBSERVATION O F THE HONBLE HIGH COURT IN PARA-3 OF THEIR JUDGEMENT AS UNDER:- 3. IT WAS HELD AND OBSERVED AS UNDER:- '28. IN THIS CONTEXT WE MAY EXAMINE WHETHER THE D ECISION OF THE ASSESSING OFFICER TO TREAT THE INCOME OF THE ASSESS EES FROM SALE OF FSI SEPARATE AND EXCLUDABLE FROM THE PURVIEW OF SEC TION 80IB(10) OF THE ACT? THE CONCEPT OF FSI IS A WELL-KNOWN ONE. L OCAL AUTHORITIES SUCH AS CORPORATIONS MUNICIPALITIES AND PANCHAYATS FRAME REGULATIONS FOR REGULATING ACTIVITIES OF DEVELOPMEN T OF LANDS WITHIN THEIR LOCAL AREAS. SUCH REGULATIONS ARE POPULARLY R EFERRED TO GENERAL DEVELOPMENT CONTROL REGULATIONS (GDCR). IN ADDITION TO PROVIDING DIFFERENT ZONES CONTROLLING DEVELOPMENT ACTIVITIES IN DIFFERENT AREAS FOR REGULATED AND ORDERLY DEVELOPMENT OF URBAN AREA S THESE REGULATIONS ALSO PROVIDE FOR VARIOUS OTHER DETAILS SUCH AS MAXIMUM HEIGHT UP TO WHICH THE CONSTRUCTION CAN BE CARRIED OUT MAXIMUM AREA ON THE GROUND FLOOR OR ON OTHER FLOORS WHICH CAN BE COVERED UNDER CONSTRUCTION MARGIN TO BE LEFT ON SIDES PARKING F ACILITIES TO BE PROVIDED ITA NOS.1686/AHD/2013 1325/AHD/2011 485 288 2331 AND 2434/AHD/2012 ITO VS. M/S.KIRTI CONSTRUCTION (CROSS-APPEALS) ASST.YEARS 2005-06 2007-08 2008-09 & 2009-10 - 12 - DEPENDING ON THE NATURE OF BUILDING AND MOST IMPORT ANTLY THE MAXIMUM CONSTRUCTION THAT CAN BE CARRIED OUT ON A GIVEN PIE CE OF Y LAND. THE LAST ELEMENT NAMELY THE RATIO OF THE LAND AREA VERSUS THE MAXIMUM CONSTRUCTION PERMISSIBLE ON SUCH LAND IS REFERRED TO AS FLOOR SPACE INDEX (FSI FOR SHORT). IT IS THIS FSI WHICH WILL DE CIDE THE MAXIMUM AREA OF CONSTRUCTION THAT CAN BE CARRIED OUT ON ANY GIVE N PIECE OF LAND. IT IS THEREFORE NOT DIFFICULT TO APPRECIATE THAT BESIDES SEVERAL OTHER FACTORS OF SITUATIONAL AND OTHER ADVANTAGES AND DISADVANTAGES FSI PERMISSIBLE FOR THE LAND IN QUESTION WOULD BE AN IMPORTANT FACT OR IN THE CONTEXT OF DEVELOPMENT OF THE LAND. GIVEN ALL OTHER FACTORS-SA ME HIGHER THE FSI THE GREATER THE VALUE OF THE LAND. 29. IT IS IN THIS CONTEXT WE HAVE TO APPRECIATE TH E UNDER UTILIZATION OF THE FSI BY THE ASSESSEES IN DIFFERENT HOUSING PROJE CTS UNDER CONSIDERATION. FROM THE FIGURES RECORDED IN THE EAR LIER PORTION OF THE JUDGMENT WE CAN GATHER THAT SUCH UTILIZATION OF TH E FSI BY THE ASSESSEES RANGES FROM THE MINIMUM OF 11.14% OF THE FULL FSI A VAILABLE TO A MAXIMUM OF 65.81%. IN MAJORITY OF THE CASES THE AS SESSEES HAVE COVERED BARELY ABOUT ONE-FOURTH OR ONE-THIRD OF THE PERMISSIBLE FSI. 30. FOR ANY COMMERCIAL ACTIVITY OF CONSTRUCTION BE IT RESIDENTIAL OR COMMERCIAL COMPLEX MAXIMUM UTILIZATION OF FSI IS OF GREAT IMPORTANCE TO THE DEVELOPER. ORDINARILY THEREFORE IT WOULD B E IMPRUDENT FOR A DEVELOPER TO UNDER-UTILIZE AVAILABLE FSI. SALE PRIC E OF CONSTRUCTED PROPERTIES IS DECIDED ON THE BUILT UP AREA. IT CAN THUS BE SEEN THAT GIVEN THE RATE OF CONSTRUCTED AREA REMAINING SAME NON-UT ILIZATION OF AVAILABLE FSI WOULD REDUCE THE PROFIT MARGIN OF THE DEVELOPER. WHEN A DEVELOPER THEREFORE UTILIZES ONLY SAY 25% OF FSI AN D SELLS THE UNIT LEAVING 75% FSI STILL AVAILABLE FOR CONSTRUCTION H E OBVIOUSLY WORKS OUT THE SALE PRICE BEARING IN MIND THIS SPECIAL FEATURE . LET US COMPARE TWO INSTANCES. IN THE SAME AREA TWO RESIDENTIAL SCHEMES ARE DEVELOPED. BOTH HAVE RESIDENTIAL UNITS OF 1500 SQ. FEET. IN ONE SCH EME 100% FSI IS USED IN ANOTHER 25% FSI IS USED AND 75% IS PASSED ON TO THE BUYER OF THE UNIT. PRICE OF THE UNIT IN THE LATER SCHEME WOULD F OR APPARENT REASON BE CONSIDERABLY HIGHER THAN THE FORMER BECAUSE THE BUY ER THERE GETS NOT ONLY A RESIDENTIAL UNIT OF 1500 SQ. FEET HE ALSO G ETS THE RIGHT TO BUILD FURTHER CONSTRUCTION OF 4500 SQ. FEET. WHETHER THIS INCLUDES OPEN LAND OR NOT IS NOT IMPORTANT. IN TERMS OF CONSTRUCTION BUSI NESS IT IS EQUIVALENT TO SALE OF LAND. THUS THEREFORE WHEN A DEVELOPER CONSTRUCTS RESIDENTIAL UNIT OCCUPYING A FOURTH OR HALF OF USABLE FSI AND S ELLS IT HIS PROFITS ITA NOS.1686/AHD/2013 1325/AHD/2011 485 288 2331 AND 2434/AHD/2012 ITO VS. M/S.KIRTI CONSTRUCTION (CROSS-APPEALS) ASST.YEARS 2005-06 2007-08 2008-09 & 2009-10 - 13 - FROM THE ACTIVITY OF DEVELOPMENT AND CONSTRUCTION O F RESIDENTIAL UNITS AND FROM SALE OF UNUSED FSI ARE DISTINCT AND SEPARA TE AND RIGHTLY SEGREGATED BY THE ASSESSING OFFICER. 31. IT IS TRUE THAT SECTION 80IB(10) OF THE ACT DOE S NOT PROVIDE THAT FOR DEDUCTION THE UNDERTAKING MUST UTILIZE 100% OF THE FSI AVAILABLE. THE QUESTION HOWEVER IS CAN AN UNDERTAKING UTILIZE ONL Y A SMALL PORTION OF THE AVAILABLE AREA FOR CONSTRUCTION SELL THE PROPE RTY LEAVING AMPLE SCOPE FOR THE PURCHASER TO CARRY ON FURTHER CONSTRU CTION ON HIS OWN AND CLAIM FULL DEDUCTION UNDER SECTION 80IB(10) OF THE ACT ON THE PROFIT EARNED ON SALE OF THE PROPERLY? IF THIS CONCEPT IS ACCEPTED IN A GIVEN CASE AN ASSESSEE MAY PUT UP CONSTRUCTION OF ONLY 1 00 SQ. FT. ON THE ENTIRE AREA OF ONE ACRE OF PLOT AND SELL THE SAME T O A SINGLE PURCHASER AND CLAIM FULL DEDUCTION ON THE PROFIT ARISING OUT OF SUCH SALE UNDER SECTION 80IB(10) OF THE ACT. SURELY THIS CANNOT BE STATED TO BE DEVELOPMENT OF A HOUSING PROJECT QUALIFYING FOR DED UCTION UNDER SECTION 80IB(10) OF THE ACT. THIS IS NOT TO SUGGEST THAT FO R CLAIMING DEDUCTION UNDER SECTION 80IB (10) OF THE ACT INVARIABLY IN A LL CASES THE ASSESSEE MUST UTILIZE THE FULL FSI AND ANY SHORTAGE IN SUCH UTILIZATION WOULD INVITE WRATH OF THE CLAIM UNDER SECTION 80IB(10) B EING REJECTED. THE QUESTION IS WHERE DOES ONE DRAW THE LINE. IN OUR OP INION THE ISSUE HAS TO BE SEEN FROM CASE TO CASE BASIS. MARGINAL UNDERU TILIZATION OF FSI CERTAINLY CANNOT BE A GROUND FOR REJECTING THE CLAI M UNDER SECTION 80IB(10) OF THE ACT. EVEN IF THERE HAS BEEN CONSIDE RABLE UNDERUTILIZATION IF THE ASSESSEE CAN POINT OUT ANY SPECIAL GROUNDS WHY THE FSI COULD NOT BE FULLY UTILIZED SUCH AS HEIGH T RESTRICTION BECAUSE OF SPECIAL ZONE PASSING OF HIGH TENSION ELECTRIC W IRES OVERHEAD OR ANY SUCH SIMILAR GROUNDS TO JUSTIFY UNDER UTILIZATI ON THE CASE MAY STAND ON A DIFFERENT FOOTING. HOWEVER IN CASES WHE RE THE UTILIZATION OF FSI IS WAY SHORT OF THE PERMISSIBLE AREA OF CONS TRUCTION LOOKING TO THE SCHEME OF SECTION 80IB(10) OF THE ACT AND THE P URPOSE OF GRANTING DEDUCTION ON THE INCOME FROM DEVELOPMENT OF HOUSING PROJECTS ENVISAGED THEREUNDER BIFURCATION OF SUCH PRO FITS ARISING OUT OF SUCH ACTIVITY AND THAT ARISING OUT OF THE NET SELL OF FS I MUST BE RESORTED TO. IN THE PRESENT CASE NONE OF THE ASSESSEES HAVE MAD E ANY SPECIAL GROUND FOR NON-UTILIZATION OF THE FSI. ITA NOS.1686/AHD/2013 1325/AHD/2011 485 288 2331 AND 2434/AHD/2012 ITO VS. M/S.KIRTI CONSTRUCTION (CROSS-APPEALS) ASST.YEARS 2005-06 2007-08 2008-09 & 2009-10 - 14 - 32. THE CONTENTION OF THE COUNSEL FOR THE ASSESSEE THAT AS LONG AS THERE HAS BEEN 100% UTILIZATION OF THE MAXIMUM PERM ISSIBLE AREA ON THE GROUND FLOOR DEDUCTION UNDER SECTION 80IB(10) OF THE ACT CANNOT BE DECLINED CANNOT BE ACCEPTED. AS NOTED EARLIER IN CASE OF M/S. MOON STAR DEVELOPERS AND MANY OTHER ASSESSEES SUCH FULL UTILIZATION OF THE GROUND FLOOR AREA AVAILABLE FOR CONSTRUCTION RESULTED INTO BARELY 20% TO 25% OF THE FSI BEING USED REMAINING MORE THAN 75% BEING LEFT UNUSED. 33. WHAT IS AVAILABLE FOR DEDUCTION UNDER SECTION 8 0IB(10) OF THE ACT IS THE PROFIT OF AN UNDERTAKING DERIVED FROM DEVELO PING AND BUILDING A HOUSING PROJECT. MERE SALE OF OPEN LAND OR UNUSED FSI AS PART OF THE HOUSING PROJECT WHERE UTILIZATION OF THE FSI IS WAY SHORT OF PERMISSIBLE LIMITS CANNOT BE SAID TO HAVE BEEN DERI VED FROM SUCH HOUSING PROJECT. TERMS 'DERIVED FROM' 'ARISING OUT OF AND 'ATTRIBUTABLE TO' ARE OFTEN TIMES USED IN THE CONTE XT OF INCOME TAX IN DIFFERENT CONNOTATION. IN THE CASE OF STERLING FOOD S (SUPRA) THE ASSESSEE WAS ENGAGED IN PROCESSING PRAWNS AND OTHER SEA FOOD WHICH IT EXPORTED. IN THE PROCESS THE ASSESSEE EAR NED IMPORT ENTITLEMENTS TO USE ITSELF OR SELL THE SAME TO OTHE RS. DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE INCLUDED SUCH SAL E PROCEEDS FOR CLAIMING RELIEF UNDER SECTION 80HH OF THE ACT IN C ASE OF ANY PROFIT OR GAIN DERIVED FROM AN INDUSTRIAL UNDERTAKING IN BACK WARD AREAS. IN THIS CONTEXT THE APEX COURT HELD THAT THE IMPORT E NTITLEMENTS CANNOT BE SAID TO BE DERIVED FROM THE INDUSTRIAL UNDERTAKI NG OF THE ASSESSEE. FOR THE APPLICATION OF THE WORDS 'DERIVED FROM' TH ERE MUST BE A DIRECT NEXUS BETWEEN THE PROFITS AND GAINS AND THE INDUSTRIAL UNDERTAKING AND IN THE CASE ON HAND THE NEXUS WAS NOT DIRECT BUT ONLY INCIDENTAL.' 7.3. AFTER CONSIDERING THE TOTALITY OF THE FACTS OF THE PRESENT CASE THIS ISSUE IS RESTORED BACK TO THE FILE OF AO TO VERIFY THE UNUTILIZATION OF FSI AND DECIDE THIS ISSUE AFRESH IN THE LIGHT OF THE JU DGEMENT OF HONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF CIT VS. MOON STAR ITA NOS.1686/AHD/2013 1325/AHD/2011 485 288 2331 AND 2434/AHD/2012 ITO VS. M/S.KIRTI CONSTRUCTION (CROSS-APPEALS) ASST.YEARS 2005-06 2007-08 2008-09 & 2009-10 - 15 - DEVELOPERS IN TAX APPEAL NO.549 OF 2008. THUS THI S GROUND OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 8. AS A RESULT REVENUES APPEAL IN ITA NO.1686/AHD /2013 FOR AY 2005-06 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 9. NOW WE TAKE UP APPEAL OF THE ASSESSEE IN ITA NO.1325/AHD/2011 FOR AY 2007-08. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACT S IN DISALLOWING CLAIM OF RS.43 98 491/- MADE UNDER THE PROVISIONS O F SECTION 80IB(10) OF THE ACT BY THE APPELLANT ON ALL TOGETHER DIFFERE NT GROUNDS AND REASONING THAT WERE NOT THE BASIS FOR MAKING ADDITI ONS IN THE ASSESSMENT ORDER AND WHICH ARE FAR FROM THE FACT AN D EVIDENCES ON RECORDS AND ARE BASED ON CONJECTURES AND SURMISES. THE ORDER OF LD.CIT(A) BEING BAD IN LAW PREJUDICED AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE DESERVES TO BE QUASHED. 2. THE LEARNED CIT(A) HAS GROSSLY ERRED IN LAW AND ON FACTS IN PLACING RELIANCE ON THE INFORMATION RECEIVED BY AO SUBSEQUE NT TO PASSING OF THE ASSESSMENT ORDER FROM VADODARA MAHANAGAR SEVA SADAN FOR DENYING THE BENEFIT U/S.80IB(10) OF THE ACT WITHOUT AFFORDI NG OPPORTUNITY TO THE APPELLANT TO MITIGATE THE SAME. THUS THIS ACTION OF LD.CIT(A) HAS RESULTED INTO ASSESSING AS ALTOGETHER NEW SOURCE OF DISALLOWANCE WHICH IS NOT PERMISSIBLE UNDER THE LAW AND THEREFORE DESE RVES TO BE QUASHED. 3. LEVY INTEREST U/S.234B/234C & 234D OF THE ACT I S NOT JUSTIFIED. 4. INITIATION OF PENALTY U/S.271(1)(C) OF THE ACT IS NOT JUSTIFIED. THE APPELLANT CRAVES LEAVE TO ADD AMEND ALTER ED IT DELETE MODIFY OR CHANGE ALL OR ANY OF THE GROUNDS OF APPEAL AT THE T IME OF OR BEFORE THE HEARING OF THE APPEAL. ITA NOS.1686/AHD/2013 1325/AHD/2011 485 288 2331 AND 2434/AHD/2012 ITO VS. M/S.KIRTI CONSTRUCTION (CROSS-APPEALS) ASST.YEARS 2005-06 2007-08 2008-09 & 2009-10 - 16 - 10. GROUND NOS.1 & 2 ARE INTER-CONNECTED AND THERE FORE THE SAME ARE DECIDED TOGETHER. FACTS ARE IDENTICAL TO THE FACTS OF REVENUES APPEAL IN ITA NO.1686/AHD/2013 FOR AY 2005-06(SUPRA) EXCEPT T HAT IN THE AY 2005-06 THE LD.CIT(A) HAS ALLOWED THE APPEAL OF THE ASSESSEE HOLDING THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCTION IN RESP ECT OF 220 UNITS OUT OF 223 UNITS. IN THE PRESENT YEAR THE LD.CIT(A) HAS DISALLOWED THE DEDUCTION ON THE BASIS THAT THE ASSESSEE COULD NOT PRODUCE THE COMPLETION CERTIFICATE. THE LD.SR.COUNSEL FOR THE ASSESSEE A DOPTED THE ARGUMENT IN THE AS ADVANCED IN THE AY 2005-06 AND SUBMITTED TH AT THIS ISSUE IS SQUARELY COVERED BY THE JUDGEMENT OF THE HONBLE JU RISDICTIONAL HIGH COURT RENDERED IN THE CASE OF CIT-IV VS. TARNETAR CORPORATION (2012) REPORTED AT 210 TAXMAN 206 (GUJ.) JUDGEMENT OF THE HONBLE DELHI HIGH COURT RENDERED IN THE CASE OF CIT VS. CHD DEVELOPE RS LTD. (2014) REPORTED AT 362 ITR 177 (DELHI) AND DECISION OF THE COORDINATE BENCH RENDERED IN THE CASE OF SAKET CORPORATION VS. ITO I N ITA NO.3377/AHD/2010 FOR AY 2007-08 DATED 14/08/2014 . 11. WE HAVE HEARD THE RIVAL SUBMISSIONS PERUSED TH E MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE JUDGEMENTS RELIED UPON BY THE LD.COU NSEL FOR THE ASSESSEE. WE FIND THAT THE LD.CIT(A) HAS DENIED THE DEDUCTION ON THE BASIS THAT THE ASSESSEE COULD NOT PRODUCE COMPLETION CERTIFICATE B EFORE 31/03/2008. THE LD.CIT(A) OBSERVED THAT THE COMPLETION CERTIFIC ATE WERE ISSUED ONLY IN RESPECT OF 132 UNITS ONLY ON 31.03.2008. WE FIN D THAT THE ORDER IN ITA NOS.1686/AHD/2013 1325/AHD/2011 485 288 2331 AND 2434/AHD/2012 ITO VS. M/S.KIRTI CONSTRUCTION (CROSS-APPEALS) ASST.YEARS 2005-06 2007-08 2008-09 & 2009-10 - 17 - RESPECT OF AY 2007-08 WAS PASSED BY THE LD.CIT(A) O N 31/01/2011. HOWEVER THE ORDER IN RESPECT OF AY 2005-06 WAS PAS SED BY THE LD.CIT(A) AGAINST THE ORDER OF THE AO PASSED U/S.1 43(3) RWS 254 OF THE ACT ON 15/03/2013 WHEREIN THE LD.CIT(A) HAS ALLOW ED DEDUCTION. THIS ORDER OF THE LD.CIT(A) ON THIS ISSUE HAS BEEN UPHEL D BY US IN REVENUES APPEAL I.E. ITA NO.1686/AHD/2013 FOR AY 2005-06(SUP RA) THEREFORE THERE IS NO REASON TO TAKE A DIFFERENT VIEW FOR THI S ASSESSMENT YEAR. THUS THIS GROUND OF ASSESSEES APPEAL IS ALLOWED. THE A O IS DIRECTED TO ALLOW DEDUCTION U/S.80-IB(10) OF THE ACT AS PER THE ORDE R OF LD.CIT(A) FOR AY 2005-06. THUS GROUND NOS.1 & 2 OF ASSESSEES APP EAL ARE ALLOWED. 12. GROUND NO.3 IS CONSEQUENTIAL IN NATURE IN RESPE CT OF LEVY OF INTEREST U/S.234B & 234C. IN RESPECT OF LEVY OF IN TEREST U/S.234D OF THE ACT NO ARGUMENT HAS BEEN ADVANCED BY THE LD.SR.COU NSEL FOR THE ASSESSEE THEREFORE THIS GROUND IS REJECTED. 13. GROUND NO.4 IS AGAINST INITIATION OF PENALTY U/ S.271(1)(C) OF THE ACT WHICH IS PREMATURE AND THE SAME IS REJECTED AS SUCH. 13.1. LAST GROUND OF ASSESSEES APPEAL IS GENERAL I N NATURE REQUIRES NO INDEPENDENT ADJUDICATION. 14. AS A RESULT ASSESSEES APPEAL IN ITA NO.1325/A HD/2011 FOR AY 2007-08 IS PARTLY ALLOWED. ITA NOS.1686/AHD/2013 1325/AHD/2011 485 288 2331 AND 2434/AHD/2012 ITO VS. M/S.KIRTI CONSTRUCTION (CROSS-APPEALS) ASST.YEARS 2005-06 2007-08 2008-09 & 2009-10 - 18 - 15. NOW WE TAKE UP THE CROSS-APPEALS OF THE ASSESS EE AND THE REVENUE (IN ITA NOS.288/AHD/2012 AND 485/AHD/2012 F OR AY 2008-09 RESPECTIVELY) AGAINST THE ORDER OF THE LD.CIT(A)-I I BARODA PASSED FOR AY 2008-09 DATED 02/12/2011. 15.1. IN ASSESSEES APPEAL (ITA NO.288/AHD/2012 FOR AY 2008-09) THE FOLLOWING GROUNDS HAVE BEEN RAISED:- 1. LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN CON FIRMING DISALLOWANCE OF DEDUCTION CLAIMED U/S.80IB (10) OF THE ACT HOLDING THAT THE CONDITIONS LAID DOWN UNDER THE PROVISIONS OF THE SECTION WERE NOT FULFILLED BY THE APPELLANT. THE ORDER OF LD.CIT(A) BEING HARSH UNJUST AND BAD IN LAW DESERVES TO BE QUASHED . 2. LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN NOT TAKING COGNIZANCE OF THE FACT THAT THE APPELLANT HAD ALREA DY OBTAINED COMPLETION CERTIFICATE FOR 129 UNITS WHEREAS APPLIC ATION IN RESPECT OF ANOTHER 91 UNITS WAS PENDING BEFORE THE AUTHORIT IES THAT WERE COMPLETED WITHIN PRESCRIBED TIME LIMIT AS LAID DOWN IN THE SECTION. LD.CIT(A) OUGHT TO HAVE APPRECIATED THE FACT THAT T HE CONDITIONS FOR GRANT OF DEDUCTION U/S.80IB(10) OF THE ACT WERE COMPLIED IN SUBSTANCE BY THE APPELLANT AND HENCE OUGHT TO HAVE GRANTED DEDUCTION AS CLAIMED BY THE APPELLANT. 3. ALTERNATIVELY AND WITHOUT PREJUDICE LD.CIT(A) O UGHT TO HAVE HELD THAT PROPORTIONATE ALLOWANCE FOR THE UNITS IN RESPECT OF WHICH COMPLETION CERTIFICATE WAS OBTAINED FROM THE COMPET ENT AUTHORITY BE ALLOWED U/S.80IB(10) OF THE ACT. 4. LEARNED CIT(A) ERRED IN MAKING APPLICABLE OBSER VATIONS OF THE SPECIAL BENCH DECISION DEALING WITH CONCEPT OF PRO FIT OF HOUSING PROJECT FOR DENYING THE BENEFIT OF PROPORTIONATE D EDUCTION FAILING TO APPRECIATE THAT THE APPELLANT OBTAINED COMPLETIO N CERTIFICATE OF UNITS AS HOUSING PROJECT ONLY. ITA NOS.1686/AHD/2013 1325/AHD/2011 485 288 2331 AND 2434/AHD/2012 ITO VS. M/S.KIRTI CONSTRUCTION (CROSS-APPEALS) ASST.YEARS 2005-06 2007-08 2008-09 & 2009-10 - 19 - 5. BOTH THE LOWER AUTHORITIES HAVE ERRED IN LAW AN D ON FACTS IN NOT CONSIDERING VARIOUS EXPLANATIONS SUBMISSIONS AND E VIDENCES PLACED ON RECORD BY THE APPELLANT IN ITS PROPER PER SPECTIVE. THIS ACTION OF BOTH THE LOWER AUTHORITIES DESERVES TO BE QUASHED. 6. LEVY OF INTEREST U/S.234A/234B/234C & 234D OF T HE ACT IS NOT JUSTIFIED. 7. INITIATION OF PENALTY U/S.271(1)(C) OF THE ACT IS NOT JUSTIFIED. THE APPELLANT CRAVES LEAVE TO ADD AMEND ALTER ED IT DELETE MODIFY OR CHANGE ALL OR ANY OF THE GROUNDS OF APPEA L AT THE TIME OF OR BEFORE THE HEARING OF THE APPEAL. 15.2. GROUND NOS.1 TO 5 ARE INTER-CONNECTED AND TH EREFORE THE SAME ARE DECIDED TOGETHER. FACTS ARE IDENTICAL TO FACTS OF REVENUES APPEAL IN ITA NO.1686/AHD/2013 FOR AY 2005-06 (SUPRA) WHEREIN WE HAVE DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. THEREFORE TA KING A CONSISTENT VIEW GROUND NOS.1 TO 5 OF ASSESSEES APPEAL FOR AY 2008- 09 ARE ALLOWED. THE AO IS HEREBY DIRECTED TO GRANT DEDUCTION IN TER MS OF ORDER OF LD.CIT(A) FOR THE AY 2005-06. GROUND NO.6 IS IN RES PECT OF INTEREST LEVIED U/S.234A/234B/234C & 234D OF THE ACT. SO FA R THE LEVY OF INTEREST U/S.234A 234B & 234C OF THE ACT IS CONCERN ED THE SAME ARE CONSEQUENTIAL IN NATURE AND WE HOLD ACCORDINGLY. I N RESPECT OF LEVY OF INTEREST U/S.234D OF THE ACT NO SPECIFIC ARGUMENT HAS BEEN ADVANCED BY THE LD.SR.COUNSEL FOR THE ASSESSEE THEREFORE THI S GROUND OF ASSESSEES APPEAL IS REJECTED. THUS GROUND NO.6 OF ASSESSEE S APPEAL IS PARTLY ALLOWED. 16. GROUND NO.7 IS AGAINST INITIATION OF PENALTY U/ S.271(1)(C) OF THE ACT WHICH IS PREMATURE. ITA NOS.1686/AHD/2013 1325/AHD/2011 485 288 2331 AND 2434/AHD/2012 ITO VS. M/S.KIRTI CONSTRUCTION (CROSS-APPEALS) ASST.YEARS 2005-06 2007-08 2008-09 & 2009-10 - 20 - 17. AS A RESULT ASSESSEES APPEAL IN ITA NO.288/AH D/2012 FOR AY 2008-09 IS PARTLY ALLOWED. 18. REVENUES APPEAL IN ITA NO.2485/AHD/2012 FOR AY 2008-09 WHEREIN FOLLOWING GROUNDS HAVE BEEN RAISED:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD.CIT(APPEALS) ERRED IN DIRECTING THE ASSESSING OF FICER TO ALLOW THE DEDUCTION U/S.80IB(10) R.W.S.80IB(1) OF THE INC OME-TAX ACT WITHOUT APPRECIATING THE FACT THAT RELATIONSHIP BET WEEN THE ASSESSEE AND THE END USER OF THE UNITS WAS THAT OF WORK CONTRACT SINCE THE APPROVAL BY THE LOCAL AUTHORITY AS WELL A S COMPLETION CERTIFICATE WAS NOT GRANTED TO THE ASSESSEE BUT TO THE LANDOWNER AND THE RIGHTS AND THE OBLIGATIONS UNDER THE SAID A PPROVAL WERE NOT TRANSFERABLE AND THAT TRANSFER OF DWELLING UNI TS IN FAVOUR OF THE EN-USERS WAS MADE BY THE LANDOWNER AND NOT BY THE A SSESSEE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD.CIT(APPEAL) ERRED IN DIRECTING THE ASSESSING OFFICER TO ALLOW THE DEDUCTION U/S.80IB(10) R.W.S.80IB(1) OF T HE INCOME-TAX ACT TO THE ON PROFIT DERIVED FROM SALE OF UNUTILIZE D FSI WITHOUT APPRECIATING THAT THIS PROFIT NOT AN ELEMENT OF PRO FITS DERIVED FROM THE BUSINESS ACTIVITY OF DEVELOPMENT AND CONSTRUCTI ON OF THE HOUSING PROJECT RELATING TO THE SALE OF TENEMENTS. 3. THE APPELLANT CRAVES LEAVE TO ADD TO AMEND OR ALTER THE ABOVE GROUNDS AS MAY BE DEEMED NECESSARY. RELIEF CLAIMED IN APPEAL IT IS PRAYED THAT THE ORDER OF THE CIT(APPEALS) BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 18.1. PARTIES HAVE ADOPTED THE SAME ARGUMENT AS ADV ANCED IN ITA NO.1686/AHD/2013 (REVENUES APPEAL-SUPRA) FOR AY 20 05-06. ITA NOS.1686/AHD/2013 1325/AHD/2011 485 288 2331 AND 2434/AHD/2012 ITO VS. M/S.KIRTI CONSTRUCTION (CROSS-APPEALS) ASST.YEARS 2005-06 2007-08 2008-09 & 2009-10 - 21 - 18.2. GROUND NO.1 IS AGAINST THE DISALLOWANCE ON TH E BASIS THAT THE RELATIONSHIP BETWEEN THE ASSESSEE AND THE END USER OF THE UNITS WAS THAT OF WORK CONTRACT SINCE THE APPROVAL BY THE LOCAL AUT HORITY 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. THIS ISSUE HAS BEEN DECIDE D BY US IN FAVOUR OF ASSESSEE BY RELYING ON THE JUDGEMENT OF HONBLE GUJ ARAT HIGH COURT RENDERED IN THE CASE OF CIT VS. RADHE DEVELOPERS R EPORTED AT (2012) 341 ITR 403 (GUJ.). THEREFORE WE DO NOT FIND ANY INFI RMITY IN THE ORDER OF THE LD.CIT(A) SAME IS HEREBY UPHELD. THUS THIS GR OUND OF REVENUES APPEAL IS REJECTED. 18.3. GROUND NO.2 IS AGAINST THE ISSUE OF ALLOWABIL ITY OF DEDUCTION U/S.80IB(10) R.W.S.80IB(1) OF THE ACT TO THE ON PRO FIT DERIVED FROM SALE OF UNUTILIZED FSI. SINCE THE FACTS ARE IDENTICAL TO T HE FACTS OF ASSESSEES APPEAL IN ITA NO.1325/AHD/2011 FOR AY 2007-08 THER EFORE THIS ISSUE IS RESTORED BACK TO THE FILE OF AO FOR VERIFICATION AN D DECISION AFRESH IN THE LIGHT OF THE JUDGEMENT OF HONBLE GUJARAT HIGH COUR T RENDERED IN THE CASE OF CIT VS. MOON STAR DEVELOPERS IN TAX APPEAL NO.549 OF 2008. TAKING A CONSISTENT VIEW FOR THIS YEAR ALSO THIS ISSUE IS RESTORED BACK TO THE FILE OF AO TO DECIDE IN THE LIGHT OF THE JUDGEM ENT OF HONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF CIT VS. MOON STA R DEVELOPERS IN TAX APPEAL NO.549 OF 2008. THUS THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSES. ITA NOS.1686/AHD/2013 1325/AHD/2011 485 288 2331 AND 2434/AHD/2012 ITO VS. M/S.KIRTI CONSTRUCTION (CROSS-APPEALS) ASST.YEARS 2005-06 2007-08 2008-09 & 2009-10 - 22 - 18.4. GROUND NO.3 IS GENERAL IN NATURE REQUIRES NO INDEPENDENT ADJUDICATION. 19. AS A RESULT REVENUES APPEAL IN ITA NO.485/AHD /2012 FOR 2008- 09 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 20. NOW WE TAKE UP THE CROSS-APPEALS OF THE ASSESS EE AND REVENUE IN ITA NOS.2434/AHD/2012 AND 2331/AHD/2012 FOR AY 2009 -10 RESPECTIVELY AGAINST THE ORDER OF THE LD.CIT(A)-II BARODA PASSED FOR AY 2009-10 DATED 31/08/2012. 20.1. IN ASSESSEES APPEAL (ITA NO.2434/AHD/2012 FO R AY 2009-10) THE FOLLOWING GROUNDS HAVE BEEN RAISED:- 1. LD.CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMI NG REJECTION OF THE CLAIM OF DEDUCTION U/S.80IB(10) OF THE ACT MADE BY THE APPELLANT ON ALL TOGETHER DIFFERENT GROUNDS THAN AO HOLDING THAT THE APPELLANT FAILED TO FULFILL THE CONDITIONS LAID DOWN IN THE SECTION FOR CLAIMING THE DEDUCTION. THE ORDER OF LD.CIT(A) BEING HARSH UNJUST AND BAD IN LAW DESERVES TO BE QUASHED. 2. LD.CIT(A) ERRED IN LAW AND ON FACTS IN REJECTIN G THE CLAIM OF THE APPELLANT SIMPLY ON THE BASIS OF APPELLATE ORDER OF EARLIER YEAR THAN INDEPENDENTLY EXAMINING THE ISSUE. LD.CIT(A) RELIED UPON ORDER FOR AY 2005/06 IN SET ASIDE PROCEEDINGS NOT A PPRECIATING ALTERNATE PLEA TO GRANT PROPORTIONATE ALLOWANCE FOR THE UNITS IN RESPECT OF WHICH COMPLETION CERTIFICATE WAS OBTAINE D FROM THE COMPETENT AUTHORITY AS HOUSING PROJECT TO ALLOW D EDUCTION U/S.80IB(10) OF THE ACT. ITA NOS.1686/AHD/2013 1325/AHD/2011 485 288 2331 AND 2434/AHD/2012 ITO VS. M/S.KIRTI CONSTRUCTION (CROSS-APPEALS) ASST.YEARS 2005-06 2007-08 2008-09 & 2009-10 - 23 - 3. LEVY OF INTEREST U/S.234A/234B & 234C OF THE AC T IS NOT JUSTIFIED. 4. INITIATION OF PENALTY U/S.271(1)(C) OF THE ACT IS NOT JUSTIFIED. 20.2. GROUND NOS.1 & 2 ARE INTER-CONNECTED. SINCE T HE FACTS ARE IDENTICAL TO THE FACTS IN AY 2008-09 OF ASSESSEES APPEAL(SUP RA) AND REVENUE HAS NOT POINTED OUT ANY CHANGE IN THE FACTS THEREFORE TAKING A CONSISTENT VIEW FOR THIS YEAR AS WELL THESE TWO GROUNDS ARE DECIDE D IN FAVOUR OF ASSESSEE. THEREFORE GROUND NOS.1 & 2 OF ASSESSEES APPEAL AR E ALLOWED. 20.3 GROUND NO.3 IS AGAINST LEVY OF INTEREST U/S.23 4A/234B & 234C OF THE ACT. THE LEVY OF INTEREST BEING CONSEQUENTIAL IN NATURE. WE DIRECT ACCORDINGLY. 20.4. GROUND NO.4 IS AGAINST INITIATION OF PENALTY U/S.271(1)(C) OF THE ACT WHICH IS PREMATURE. 21. AS A RESULT ASSESSEES APPEAL IN ITA NO.2434/A HD/2012 FOR AY 2009-10 IS PARTLY ALLOWED. 22. NOW WE TAKE UP THE REVENUES APPEAL IN ITA NO. 2331/AHD/2012 FOR AY 2009-10 WHEREIN FOLLOWING GROUNDS HAVE BEEN TAKEN:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD.CIT(APPEALS) ERRED IN ALLOWING DEDUCTION OF RS.79 21 904/- U/S.80IB(10) R.W.S. 80IB(1) TO THE ASSESSEE ON PROF IT DERIVED FROM ITA NOS.1686/AHD/2013 1325/AHD/2011 485 288 2331 AND 2434/AHD/2012 ITO VS. M/S.KIRTI CONSTRUCTION (CROSS-APPEALS) ASST.YEARS 2005-06 2007-08 2008-09 & 2009-10 - 24 - SALE OF UNUTILIZED FSI NOT BEING THE ELEMENT OF PRO FITS DERIVED FROM THE BUSINESS ACTIVITY OF DEVELOPMENT AND CONSTRUCTI ON OF THE HOUSING PROJECT. 2. THE APPELLANT CRAVES LEAVE TO AD TO AMEND OR A LTER THE ABOVE GROUNDS AS MAY BE DEEMED NECESSARY. RELIEF CLAIMED IN APPEAL IT IS PRAYED THAT THE ORDER OF THE CIT(APPEALS) BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 22.1. THE ONLY EFFECTIVE GROUND RAISED IN THIS REVE NUES APPEAL IS AGAINST IN ALLOWING DEDUCTION OF RS.79 21 904/- U/ S.80IB(10) R.W.S. 80IB(1) TO ASSESSEE ON PROFIT DERIVED FROM SALE OF UNUTILIZED FSI. SINCE THIS ISSUE HAS BEEN RESTORED BACK TO THE FILE OF AO FOR VERIFICATION AND DECISION AFRESH IN THE LIGHT OF THE JUDGEMENT OF HO NBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF CIT VS. MOON STAR DEV ELOPERS IN TAX APPEAL NO.549 OF 2008 THEREFORE TAKING A CONSISTEN T VIEW IN THIS YEAR ALSO THIS GROUND OF REVENUES APPEAL IS RESTORED B ACK TO THE FILE OF AO FOR VERIFICATION AND DECISION AFRESH. THUS THIS G ROUND OF REVENUES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 22.2. GROUND NO.2 IS GENERAL IN NATURE REQUIRES NO INDEPENDENT ADJUDICATION. AS A RESULT REVENUES APPEAL FOR AY 2009-10 IS ALLOWED FOR STATISTICAL PURPOSES. ITA NOS.1686/AHD/2013 1325/AHD/2011 485 288 2331 AND 2434/AHD/2012 ITO VS. M/S.KIRTI CONSTRUCTION (CROSS-APPEALS) ASST.YEARS 2005-06 2007-08 2008-09 & 2009-10 - 25 - 23. WE SUMMARIZE THE RESULT AS UNDER: 1. REVENUES APPEAL IN ITA NO.1686/AHD/2013 FOR AY 2005- 06 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 2. ASSESSEES APPEAL IN ITA NO.1325/AHD/2011 FOR AY 2007-08 IS PARTLY ALLOWED. 3. ASSESSEES APPEAL IN ITA NO.288/AHD/2012 FOR AY 2008-09 IS PARTLY ALLOWED. 4. REVENUES APPEAL IN ITA NO.485/AHD/2012 FOR AY 2 008-09 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 5. ASSESSEES APPEAL IN ITA NO.2434/AHD/2012 FOR AY 2009-10 IS PARTLY ALLOWED. 6. REVENUES APPEAL IN ITA NO.2331/AHD/2012 FOR AY 2009-10 IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN COURT ON THE DATE MENTIONED HER EINABOVE AT CAPTION PAGE SD/- SD/- ( ) ( ) ( ANIL CHATURVEDI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 13 / 11 /2014 (.. .../ T.C. NAIR SR. PS !'#$#%! / COPY OF THE ORDER FORWARDED TO : 1. *+ / THE APPELLANT 2. -.+ / THE RESPONDENT. 3. /0/12 3 / CONCERNED CIT 4. 3 ( * ) / THE CIT(A)-II BARODA 5. 45- 12 *12 0 / DR ITAT AHMEDABAD 6. 5789 / GUARD FILE. / BY ORDER .4* - //TRUE COPY// / ( DY./ASSTT.REGISTRAR) / ITAT AHMEDABAD