Gujarat High Court
Commissioner vs M/S on 21 June, 2011
Author: Akil Kureshi
Bench: Akil Kureshi
Gujarat High Court Case Information System
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TAXAP/305/2010 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 305 of 2010
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COMMISSIONER
OF INCOME TAX - III - Appellant(s)
Versus
M/S
LABHAM CORPORATION - Opponent(s)
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Appearance :
MRS
MAUNA M BHATT for
Appellant(s) : 1,
None for Opponent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
and
HONOURABLE
MS JUSTICE SONIA GOKANI
Date
: 21/06/2011
ORAL
ORDER
(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) Revenue is in appeal against the judgment of the Tribunal dated 4.9.2009 raising following questions for our consideration.
"(A) "Whether on the facts and circumstances of the case and in law, the Appellate Tribunal was correct in holding that the project undertaken by the assessee on sub plot No.1 and sub plot No.2 of F.P. 60 is a single project despite the fact that the assessee has taken / applied for the plan approval on different dates?"
(B) "Whether on the facts and circumstances of the case and in law, the Tribunal was justified in deleting the addition of Rs.1,07,25,683/- made by the Assessing Officer disallowing the claim u/s.80IB(10) of the Act holding that the conditions as laid down u/s.80IB(10) of the Act have been fulfilled by the assessee?"
(C) "Whether on the facts and circumstances of the case and in law, the Appellate Tribunal was justified in deleting the addition of Rs.1,07,25,683/-
made by the Assessing Officer disallowing the claim u/s.80IB(10) of the Act relying upon the case of Air Developers 123 TTJ (Nagpur) page 959, though the facts are different in the present case?"
Though three questions are framed, issue is common arising in common factual background.
The assessee is a developer of housing projects. For the year in question i.e.A.Y. 2003-04, the assessee filed its return of income inter-alia claiming benefits under Section 80IB(10) of Income Tax Act, 1961. Assessing Officer, however, limited such benefits on the premise that the assessee had carried out two separate projects of housing and that though for the first project benefit under Section 80IB(10) was allowable but not for the second project. Issue ultimately reached the Tribunal. The Tribunal ruled in favour of the assessee and confirmed the view of the CIT (A). This was primarily on the ground that the Tribunal found that this was not the case of two separate projects but one single housing project developed by the assessee in two adjacent plots. To come to above conclusion, the Tribunal observed that plots were adjacent to each other. Plot No.1 was purchased by the assessee on 4.6.1998 and second plot was purchased on 4.7.1998 within short interval of about one month. The assessee stated that to avoid any delay, two separate plans were submitted. However, the firm had carried out the construction of the area, at the same time, constructed common play area, common garden, common parking amenities and common plot area, etc. In-fact, both the plots were surrounded by common boundary wall.
Tribunal, further, also noted the fact that assessee fulfilled other conditions for benefit under Section 80IB(10) is not in dispute. Tribunal, therefore, held as under:
"We have also noted that total land area on which the construction was carried out was more than one acre and the entire project consisting of six buildings were carried out as one project and built up area of each residential unit did not exceed 1500 sq.feet. In that view of the matter, we do see any infirmity in the findings of the CIT (A) on this issue. Thus, considering the entire facts and circumstances of the present case, we are of the view that the CIT (A) has passed a well reasoned order after appreciating the facts and circumstances of the case as well as relevant provisions of the law. Accordingly, we uphold the view taken by the CIT (A) and dismiss the ground raised by the Revenue".
We do not find any infirmity in the view of the Tribunal confirming the decision of the CIT (A). From the evidence on record, Tribunal came to the conclusion that this was not a case of two separate housing projects undertaken by the assessee but one common housing project developing the two adjacent plots purchased by the assessee within short span of time. Additionally, Tribunal based its conclusion on various observations such as the fact that the entire block of plots was developed simultaneously, had common amenities like common play area, common garden, common parking amenities and common plot area. Thus, this was clear case of one single housing project developed by the assessee.
Tribunal's conclusion is purely factual in nature based on evidence on record. No question of law arises. Tax Appeal is, therefore, dismissed.
(AKIL KURESHI, J.) (Ms.SONIA GOKANI, J.) (ashish) Top