ACIT, Cochin v. Abad Construction P.Ltd, Cochin

ITA 657/COCH/2013 | 2007-2008
Pronouncement Date: 14-11-2014 | Result: Allowed

Appeal Details

RSA Number 65721914 RSA 2013
Assessee PAN AAECA7823L
Bench Cochin
Appeal Number ITA 657/COCH/2013
Duration Of Justice 1 year(s) 1 month(s)
Appellant ACIT, Cochin
Respondent Abad Construction P.Ltd, Cochin
Appeal Type Income Tax Appeal
Pronouncement Date 14-11-2014
Appeal Filed By Department
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 14-11-2014
Date Of Final Hearing 10-11-2014
Next Hearing Date 10-11-2014
Assessment Year 2007-2008
Appeal Filed On 14-10-2013
Judgment Text
1 ITA NO.657/COCH/2013 ITA NO.121/COCH/2014 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI CHANDRA PO OJARI (AM) I.T.A NO. 657/COCH/2013 (ASSESSMENT YEAR 2007-08) ACIT CIR.1(1) VS ABAD CONSTRUCTION (P) LTD KOCHI ABAD PLAZA M.G. ROAD KOCHI 35 PAN : AAECA7823L (APPELLANT) (RESPONDENT) I.T.A NO. 121/COCH/2014 (ASSESSMENT YEAR 2008-09) M/S ABAD CONSTRUCTION (P) LTD VS THE ACIT CIR.1( 1) KOCHI-35 KOCHI (APPELLANT) (RESPONDENT) REVENUE BY : SHRI K.K. JOHN SR DR ASSESSEE BY : SHRI P.K. SASIDHARAN DATE OF HEARING : 10-11-2014 DATE OF PRONOUNCEMENT : 14-11-2014 O R D E R PER N.R.S. GANESAN (JM) THE REVENUE HAS FILED APPEAL FOR THE ASSESSMENT YE AR 2007-08 IN ITA NO.657/COCH/2013 WHEREAS THE ASSESSEE HAS FILED APPEAL FOR THE ASSESSMENT YEAR 2008-09 IN ITA NO.121/COCH/2014. S INCE COMMON ISSUE 2 ITA NO.657/COCH/2013 ITA NO.121/COCH/2014 ARISES FOR CONSIDERATION IN BOTH THE APPEALS WE HE ARD THEM TOGETHER AND DISPOSE OF THE APPEALS BY THIS COMMON ORDER. 2. SHRI K.K. JOHN THE LD.DR SUBMITTED THAT THE ASS ESSEE CLAIMED EXEMPTION U/S 80IB OF THE ACT FOR THE ASSESSMENT YE AR 2007-08 AND THE SAME WAS REJECTED BY THE ASSESSING OFFICER. HOWEVE R ON APPEAL THE CIT(A) ALLOWED THE CLAIM OF THE ASSESSEE. THEREFOR E THE REVENUE PREFERRED THE APPEAL FOR ASSESSMENT YEAR 2007-08. IN RESPECT OF THE VERY SAME PROJECT FOR THE ASSESSMENT YEAR 2008-09 ANOTHE R CIT(A) DISALLOWED THE CLAIM OF THE ASSESSEE U/S 80IB OF THE ACT. THE LD.DR FURTHER SUBMITTED THAT FOR THE ASSESSMENT YEARS 2005-096 AND 2006-07 IN RESPECT OF THE VERY SAME PROJECT VIZ. MARINE PLAZA THE ASSESSING OFFI CER ALLOWED THE CLAIM OF THE ASSESSEE U/S 80IB OF THE ACT. THE COMMISSIONER IN EXERCISE OF HIS REVISIONAL JURISDICTION U/S 263 OF THE ACT FOUND TH AT THE ASSESSING OFFICER HAS TO RE-EXAMINE THE MATTER. HOWEVER THE ASSESSE E CHALLENGED THE ORDERS OF THE ADMINISTRATIVE COMMISSIONER PASSED U/ S 263 BEFORE THIS TRIBUNAL. THIS TRIBUNAL FOUND THAT THE EXERCISE OF JURISDICTION U/S 263 IS NOT JUSTIFIED. ACCORDINGLY THE ORDERS OF THE ADMINIST RATIVE COMMISSIONER WERE SET ASIDE. THE REVENUE TOOK THE MATTER BEFORE THE HIGH COURT BY WAY OF FURTHER APPEALS. THE HIGH COURT FOUND THAT THE TRI BUNAL WAS NOT JUSTIFIED IN SETTING ASIDE THE ORDERS OF THE ADMINISTRATIVE COMM ISSIONER. THE HIGH 3 ITA NO.657/COCH/2013 ITA NO.121/COCH/2014 COURT FOUND THAT THE ASSESSING OFFICER HAS TO MAKE ENQUIRY WITH REGARD TO THE MEASUREMENT OF THE APARTMENT AND OTHER PARTICUL ARS. SINCE IN BOTH THE APPEALS THE VERY SAME PROJECT IS THE SUBJECT MATTER OF THE APPEALS ACCORDING TO THE LD.DR THE MATTER NEEDS TO BE REMA NDED BACK TO THE FILE OF THE ASSESSING OFFICER FOR VERIFICATION AS FOUND BY THE HIGH COURT. 3. WE HEARD SHRI P.K. SASIDHARAN THE LD.REPRESENTA TIVE FOR THE ASSESSEE. ACCORDING TO THE LD.REPRESENTATIVE FOR THE ASSESSMENT YEARS 2005-06 AND 2006-07 THE MATTER IS PENDING BEFORE TH E ASSESSING OFFICER FOR RECONSIDERATION AS DIRECTED BY THE HIGH COURT. THE REFORE THESE TWO APPEALS MAY BE KEPT PENDING TILL THE ASSESSING OFFI CER COMPLETES THE RE- ASSESSMENTS AS PER THE DIRECTION OF THE HIGH COURT. ON THE OTHER HAND THE LD.REPRESENTATIVE SUBMITTED THAT SINCE THE MATT ER NEEDS TO BE FACTUALLY VERIFIED IT MAY BE REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER FOR RECONSIDERATION IN THE LIGHT OF THE DIRECTIONS ISSU ED BY THE HIGH COURT. 4. WE HAVE CONSIDERED THE SUBMISSIONS ON EITHER SID E AND ALSO PERUSED THE MATERIAL PLACED BEFORE US. FOR THE ASS ESSMENT YEAR 2008-09 THE CIT(A) CONFIRMED THE REJECTION OF CLAIM OF THE ASSESSEE U/S 80IB BY THE ASSESSING OFFICER. HOWEVER FOR THE ASSESSMENT YEA R 2007-08 THE CIT(A) BY FOLLOWING THE ORDER OF THIS TRIBUNAL FOR THE ASS ESSMENT YEARS 2005-06 4 ITA NO.657/COCH/2013 ITA NO.121/COCH/2014 AND 2006-07 ALLOWED THE CLAIM OF THE ASSESSEE. IT IS AN ADMITTED FACT THAT THE ORDER OF THIS TRIBUNAL FOR THE ASSESSMENT YEARS 2005-06 AND 2006-07 WAS SET ASIDE BY THE HIGH COURT AND THE ORDERS OF T HE ADMINISTRATIVE COMMISSIONER WERE RESTORED. THEREFORE THE ASSESSI NG OFFICER HAS TO VERIFY THE FACTUAL ASPECT OF THE PROJECT FOR THE PU RPOSE OF SECTION 80IB OF THE ACT. SINCE THE VERY SAME PROJECT VIZ. MARINE PLAZA IS UNDER CONSIDERATION FOR THE ASSESSMENT YEARS UNDER CONSID ERATION AS ALSO FOR THE ASSESSMENT YEARS 2005-06 AND 2006-07 THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ASSESSING OFFICER HAS TO VERIFY TH E MATTER AS DIRECTED BY THE HIGH COURT FOR THE ASSESSMENT YEAR 2005-06 AND 2006 -07. ACCORDINGLY THE ORDERS OF BOTH THE AUTHORITIES BELOW ARE SET SI DE AND THE ISSUE OF CLAIM OF DEDUCTION U/S 80IB FOR BOTH THE ASSESSMENT YEARS UNDER CONSIDERATION IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE-EXAMINE THE MATTER IN THE LIGHT OF DIRECTI ONS OF THE HIGH COURT IN ASSESSEES OWN CASE FOR ASSESSMENT YEARS 2005-06 AN D 2006-07 AND THEREAFTER DECIDE THE SAME IN THE LIGHT OF OBSERVAT IONS MADE BY THE HIGH COURT. 5. IN THE RESULT BOTH THE APPEAL OF THE REVENUE AN D THE APPEAL OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. 5 ITA NO.657/COCH/2013 ITA NO.121/COCH/2014 ORDER PRONOUNCED IN THE OPEN COURT ON THIS 14 TH NOVEMBER 2014. (CHANDRA POOJARI) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN DT : 14 TH NOVEMBER 2014 PK/- COPY TO: 1. ABAD CONSTRUCTION (P) LTD ABAD PLAZA M.G. ROAD KOCHI-35 2. THE ACIT CIR.1(1) KOCHI 3. THE COMMISSIONER OF INCOME-TAX KOCHI 4. THE COMMISSIONER OF INCOME-TAX(A)-II KOCHI 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR INCOME-TAX APPELLATE TRIBUNAL COCHIN BENCH