Shree Ambica Corporation, Ahmedabad vs Department Of Income Tax

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD "A" BENCH AHMEDABAD आयकर अपीलीय अिधकरण, अिधकरण, अहमदाबाद यायपीठ ',,'

Before Shri Mukul Kumar Shrawat, Judicial Member and ौी मुकुल कुमार ौावत, याियक सदःय एवं Shri Anil Chaturvedi, Accountant Member ौी अिनल चतुवद , लेखा सदःय के सम# ।

ITA No. 1873/Ahd/2011 Assessm ent Year :2008-09

I.T.O., V/s. M/s Shree Am bica Corporation W ard-9(1), Ahm edabad 32, Sainath Duplex, B/h. Sarvottam Nagar Society, Railway Colony, Kaligam, Ahmedabad PAN No. ABCFS9970N (Appellant) .. (Respondent)

अपीलाथ& क' ओर से /By Appellant Shri Dinesh Singh, Sr. D.R. ू*यथ& क' ओर से/By Respondent Shri S. N. Divatia, A.R. सुनवाई क' तार ख/Date of Hearing 13.02.2015 घोषणा क' तार ख/Date of Pronouncement 20.02.2015

ORDER

PER : Shri Anil Chaturvedi, Accountant Member

This appeal is filed by the Revenue against the order of ld. CIT(A)-XV,

Ahmedabad, dated 20.05.2011 for the assessment year 2008-09.

2. The facts as culled out from the materials on record are as under:

I. T . A. No. 1 87 3/ A hd /2 01 1 A . Y. 08- 0 9 ( I TO v s.

M / s . S hr ee Am bi c a Co r po r a t ion) Page 2

3. The assessee is a partnership firm stated to be engaged in the business

of construction of housing projects. The assessee electronically filed its

return of income on 15.09.2008 declaring total income at Rs. Nil after claiming

deduction of Rs.50,72,514/- u/s. 80IB(10) of the Act. The case was selected

for scrutiny and thereafter the assessment was framed u/s.143(3) vide order

dated 30.11.2010 and the total income was determined at Rs.50,72,510/-.

Aggrieved by the order of A.O., assessee carried the matter before the CIT(A)

who vide order dated 20.05.2011 allowed the appeal of the assessee.

Aggrieved by the aforesaid order of CIT(A), the Revenue is now in appeal

before us and has raised following ground:

"1). The ld. Commissioner of Income-tax (Appeal)-XV, Ahmedabad has erred in law and on facts in directing the Assessing Officer to allow the assessee's claim for deduction of Rs.50,72,514/- u/s. 80IB(10) of the Act.

2). The Id. Commissioner of Income-tax (Appeal)-XV, Ahmedabad has erred in holding that the assessee fulfills the conditions laid down for claiming deduction u/s.80IB(10) even when the land was in the names of Shri Vijaykumar Bhanushankar Joshi and Others [ Sh.

Rasikbhai Babalbhai is one of the co-owners of the land AND partner of the firm], which is a seperate legal entity in the eye of law and the assessee entered into the project by a development agreement with them. The entire responsibility to execute the housing project and abide by the terms and conditions of its approval right from the inception of the project till its completion rests with them. Assessee was just a contractor of the land constructing 68 residential Complex (Duplex) AND not a developer."

I. T . A. No. 1 87 3/ A hd /2 01 1 A . Y. 08- 0 9 ( I TO v s.

M / s . S hr ee Am bi c a Co r po r a t ion) Page 3

4. Before us, ld. Sr. D.R. submitted that the only effective ground is with

respect to deduction u/s. 80IB(10) of the Act.

5. During course of assessment proceeding, A.O. noticed that assessee

had constructed a housing project and the profit there from of Rs.50,72,514/-

was claimed as deduction u/s. 80IB of the Act. A.O. was of the view that

assessee was not eligible for deduction u/s. 80IB(10) as assessee was not a

developer because it did not conceptualize and own the project and assessee

was not the owner of the land and the approval was not issued to it by the

local authorities. He was further of the view that by entering into a

development agreement with the land owners and thereby doing the

construction, the assessee was acting as a contractor for the construction of

project. He also noted that assessee had not sold any unit to the purchaser

but had constructed the residential unit for them under a construction contract.

He was therefore of the view that assessee did not fulfill the conditions

stipulated u/s. 80IB(10) of the Act and therefore it was not eligible for

deduction. He accordingly denied the deduction u/s. 80IB(10).

6. Aggrieved by the order of A.O., the assessee carried the matter before

the CIT(A). CIT(A) noted that the facts of the case in the year under

consideration were similar to the facts of the case in A.Y. 2007-08 and I. T . A. No. 1 87 3/ A hd /2 01 1 A . Y. 08- 0 9 ( I TO v s.

M / s . S hr ee Am bi c a Co r po r a t ion) Page 4

therefore following the order for A.Y. 07-08 decided the issue in favour of

assessee.

7. Aggrieved by the order of CIT(A), the Revenue is now in appeal before

us.

8. Before us, ld. Sr. D.R. supported the order of A.O. Ld. A.R. on the other

hand submitted and pointed out that CIT(A) while deciding the issue in favour

of assessee had followed the order of CIT(A) for A.Y. 07-08. Against the

order of A.Y. 07-08, Revenue had preferred the appeal before Hon'ble

Tribunal. Hon'ble Tribunal while deciding the appeal of the Revenue in ITA

No. 83/Ahd/2011 order dated 01.04.2014, had restored the issue to the file of

A.O. to verify as to whether the housing project during the relevant period was

the same as in A.Y. 09-10 and if it was same, the claim of deduction be

allowed. He also placed on record the copy of aforesaid order. He further

submitted that the project on which assessee has claimed deduction is the

same "Sainath Project" and therefore assessee is eligible for deduction u/s.

80IB(10). He thus supported the order of CIT(A).

9. We have heard the rival submissions and perused the material on

record. We find that CIT(A) while allowing the appeal of the assessee had

followed the order of CIT(A) in A.Y. 07-08. Against the order of CIT(A) for I. T . A. No. 1 87 3/ A hd /2 01 1 A . Y. 08- 0 9 ( I TO v s.

M / s . S hr ee Am bi c a Co r po r a t ion) Page 5

A.Y. 07-08 Revenue had preferred the appeal before Hon'ble Tribunal. The

Co-ordinate Bench of Tribunal had decided the issue in ITA No. 83/Ahd/2011

order dated 01.04.2014 by holding as under:

"4. We have considered rival submissions and perused the orders of the AO and the CIT(A). We find that the assessee is entitled to deduction under section 80IB(10) of the Act in case the housing project for the relevant period was the same "Sainath Project" as was in the subsequent assessment year 2009-10. The doctrine of consistency applies to the case of the assessee and deduction under section 80IB(10) of the Act has been allowed by the AO in the subsequent assessment year 2009-10 vide assessment order dated 22.3.2013, copy of which has been filed by the assessee before the Tribunal. In the facts and circumstances of the case, we restore this issue in the grounds of the appeal of the Revenue to the file of the AO with direction to allow deduction under section 80IB(10) of the Act to the assessee, if on verification it is found that the housing project during the relevant period in appeal before us was the same "Sainath Project" as was in the subsequent assessment year 2009-10. We direct accordingly."

Before us, ld. A.R. submitted that the profits of the project from which

assessee has claimed deduction u/s. 80IB(10) is the same project as was in

A.Y. 07-08. We however find that there is no finding of A.O. about the project

from which the assessee has claimed deduction. Further no distinguishable

feature of the case as compared to that of A.Y. 07-08 has been pointed out

Revenue. We therefore respectfully following the decision of Co-ordinate I. T . A. No. 1 87 3/ A hd /2 01 1 A . Y. 08- 0 9 ( I TO v s.

M / s . S hr ee Am bi c a Co r po r a t ion) Page 6

Bench for A.Y. 07-08 and with similar directions contained therein restore the

issue to the file of A.O. We direct accordingly.

10. In the result, the appeal of the Revenue is allowed for statistical

purposes.

This Order pronounced in open Court on 20/02/2015

Sd/- Sd/-

(Mukul Kumar Shrawat) (Anil Chaturvedi) Judicial Member Accountant Member True Copy S.K.Sinha

आदे श क' ूितिल0प अमे0षत / Copy of Order Forwarded to:-

1. अपीलाथ& / Appellant

2. ू*यथ& / Respondent

3. संबंिधत आयकर आयु6 / Concerned CIT

4. आयकर आयु6- अपील / CIT (A)

5. 0वभागीय ूितिनिध, आयकर अपीलीय अिधकरण, अहमदाबाद / DR, ITAT, Ahmedabad

6. गाड> फाइल / Guard file.

By order/आदे श से,

उप/सहायक पंजीकार आयकर अपीलीय अिधकरण, अहमदाबाद ।