Income Tax Appellate Tribunal - Ahmedabad
Datta Developers,, Vapi vs Department Of Income Tax on 7 December, 2009
IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD
AHMEDABAD "A" BENCH
(BEFORE DR.O.K. NARAYANAN, VICE-PRESIDENT AND
SHRI BHAVNESH SAINI, JUDICIAL MEMBER)
ITA No.2107/Ahd/2009
[Asstt.Year : 2006-2007]
ACIT, Vapi Circle Vs. M/s.Datta Developers
Vapi. 04, Sai Dham, Nr.Kelavani Naka
Silvassa 396 023.
PAN : AACFD 0228R
Revenue by : Shri Rajiv Agarwal
Assessee by : None
Date of Order Reserved : 07-12-2009
ORDER
PER DR. O.K. NARAYANAN, VICE-PRESIDENT: This appeal is filed by the Revenue. The relevant assessment year is 2006-2007. The appeal is directed against the order of the Commissioner of Income-tax (Appeals) at Valsad dated 26.03.2009 and arises out of the assessment completed under Section 143(1) of the Income Tax Act, 1961.
2. The Revenue has raised the following grounds in this appeal:
"1) On the facts and circumstances of the case and in law, the learned CIT(A) has erred in holding that assessee-firm will be eligible for deduction u/s.80IB(10) of Rs.7,49,060/-.
2) On the facts and circumstances of the case and in law, the learned CIT(A) has granted relief to assessee without considering the fact that assessee did not own the land in which the projects were constructed and benefit u/s.80IB(10) was claimed.
3) It is, therefore, prayed that the order of the learned CIT(A) be set aside and that the order of the AO be restored."
Page - 2 ITA No.2107/Ahd/2009
3. When the matter was called on for hearing, nobody was present for the respondent-assessee. In fact the posting notice has been served on the respondent-assessee through the Income-tax Department. But any how, there was no appearance for the assessee, at the time of hearing. Therefore, we proceed to dispose of this appeal exparte qua the assessee.
4. We heard Shri Rajiv Agarwal, the learned Commissioner of Income-tax, appearing for the revenue.
5. On going through the detailed order passed by the CIT(A), we find that the CIT(A) has decided the issue raised by the assessee mainly relying on the judgment of the Appellate Tribunal, Ahmedabad Benches in the case of Radhe Developers & Ors. Vs. ITO & Ors., 113 TTJ (Ahd) 300. In fact the CIT(A) has relied on the legal propositions propounded in the following judgments:
i) Radhe Developers Vs. ITO & Ors., 113 TTJ (Ahd) 300;
ii) Saroj Sales Organisation Vs. ITO, 115 TTJ 485 (ITAT-Mum);
iii) Patel Engineering Ltd. Vs. DCIT, 84 TTJ 646;
iv) Mysore Minerals Ltd., 239 ITR 775 (SC); v) Tamil Nadhu Civil Supplies Corpn. Ltd. Vs. CIT, 249 ITR 214 (SC) vi) State of UP Vs. Renusagar Power Company, 70 Comp. Cas. 127, 149 (SC) vii) CIT Vs. Podar Cement Pvt. Ltd., 226 ITR 625 (SC);
viii) R.B. Jodha Mal Kuthiala Vs. CIT, 82 ITR 570 (SC);
ix) Perry Vs. Clissold (1907) AC 73 (OC)
6. But while relying heavily on the ratio laid down in the above judgments, the CIT(A) has not discussed the facts and circumstances leading to those judgments along with the facts and circumstances of the present case so that it is clearly reflected in his order, whether the facts and circumstances of the case are analogous to the facts and circumstances considered in those cases. The CIT(A) has not advented upon to discuss the essentials of the case at all. It is not possible to apply the ratio of decisions unless the facts are marshalled and -2- Page - 3 ITA No.2107/Ahd/2009 explained so that the applicability of the ratio is visibly justified in the light of the facts and circumstances of a particular case.
7. In addition to the above lacunae, we also find that the CIT(A) has not considered/explained the provisions of law contained in Section 80IB(10).
While the question of deduction claimed by the assessee is to be considered, it is necessary to state the facts of the case and examine and discuss the statutory provisions under which the exemption is claimed.
8. In short, we find that the above two basic requirements are not satisfied in the order passed by the CIT(A). Therefore, we are constrained to hold that the order of the CIT(A) is bad in law.
9. In the light of the above facts and circumstances, we remit back the case to the file of CIT(A) for fresh disposal in the light of the statutory provisions and decisions of Appellate authorities including recent decisions of the Tribunal and come to a lawful conclusion.
10. In result the appeal filed by the Revenue is treated as allowed for statistical purpose.
Order pronounced on Wednesday this 9th day of December, 2009.
Sd/- Sd/- (BHAVNESH SAINI) (DR.O.K. NARAYANAN) JUDICIAL MEMBER VICE-PRESIDENT Place : Ahmedabad Date : 09-12-2009 -3- Page - 4 ITA No.2107/Ahd/2009 Copy of the order forwarded to: 1) : Assessee 2) : Respondent 3) : CIT(A) 4) : CIT concerned 5) : DR, ITAT. BY ORDER DR, ITAT, AHMEDABAD -4-