Income Tax Appellate Tribunal - Ahmedabad
M/S. Anant Developers, Baroda vs The Income Tax Officer,Ward-5(4),, ... on 17 May, 2017
आयकर अपील य अ धकरण, अहमदाबाद यायपीठ 'डी', अहमदाबाद ।
IN THE INCOME TAX APPELLATE TRIBUNAL
" D " BENCH, AHMEDABAD
सव ी एस.एस.गोदारा, या यक सद य एवं द प कुमार के डया, लेखा सद य के सम ।
BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER &
SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER
आयकर अपील सं./I.T.A. No.254/Ahd/2013
( नधा रण वष / Assessment Year : 2008-09)
M/s. Anant Developers बनाम/ The Income Tax Officer
C/o. Tejas Bhavsar Vs. Ward-5(4)
19, Shiv Bungalow Vadodara - 390 007
Khodiyar Chart Rasta
New VIP Road
Vadodara - 390 006
थायी ले खा सं . /जीआइआर सं . / PAN/GIR No. : AAHFA 6752 C
(अपीलाथ' /Appellant) .. ( (यथ' / Respondent)
अपीलाथ' ओर से / Appellant by : Shri M.K. Patel, AR
(यथ' क* ओर से/Respondent by : Shri Pradeep Kumar Majumdar,Sr.DR
ु वाई क* तार ख /
सन Date of Hearing 01/05/2017
घोषणा क* तार ख /Date of Pronounce ment 17/ 05/2017
आदे श / O R D E R
PER PRADIP KUMAR KEDIA, AM:
The captioned appeal by the Assessee is directed against the order of the Commissioner of Income Tax(Appeals)-V, Baroda [CIT(A) in short] dated 06/11/2012 for the Assessment Year (AY) 2008-09.
2. The ground of appeal raised by the Assessee reads as under:-
ITA No.254/Ahd/2013M/s.Anant Developers vs. ITO Asst.Year - 2008-09 -2- On the facts and in the circumstances of the case and in law, the Ld.Commissioner of Income Tax (Appeals)-V erred in disallowing the claim of deduction under Section 80IB(10) of the Income Tax Act, 1961 amounting to Rs.46,01,488/- on the ground that the appellant is not a builder and developer of housing project.
3. Briefly stated, the short question in issue is eligibility of deduction under s.80IB(10) of the Income Tax Act, 1961 (hereinafter referred to as "the Act") on profits in the case of the undertaking of the assessee engaged in developing and building housing project. The Assessing Officer (AO) in the course of the assessment for 2008-09 has observed that the assessee is not the owner of the land on which the housing project is constructed and the approval and the legal authority is also not in the name of the assessee-firm. The AO observed in conclusion that the conditions of section 80IB(10) has not been fulfilled by the assessee in the instant case and he accordingly denied the claim of deduction of Rs.46,01,488/- claimed by the assessee under s.80IB(10) of the Act.
4. The CIT(A) also refused to interfere with the order of the AO in first appeal.
5. We find that similar issue arose in assessee's own case for AY 2007-08 in ITA No.2062/Ahd/2010 order dated 31/10/2012 where the relief has been granted by the Co-ordinate Bench subject to certain ITA No.254/Ahd/2013 M/s.Anant Developers vs. ITO Asst.Year - 2008-09 -3- directions. The relevant para of the order of the Co-ordinate Bench of the Tribunal for AY 2007-08(supra) is reproduced hereunder:-
"3. The factual matrix of the case is that the assessee had declared gross total income of Rs.34,67,092/- and after claiming deduction u/s.80IB of the IT Act, the total income had been returned at Rs.NIL. The assessee is engaged in the business of civil construction of building/society - Property Developers - builders. During the year, the appellant had undertaken construction of Residential Housing Project including shops location of R.S. No. 213 & 214 "Shesh Narayan Society" Beside Ganesh Estate New VIP - Sardar Estate Ring Road, Vadodara. The ld. A.O. gave reasonable opportunity of being heard on the ownership of land which was not in the name of appellant and commercial area of the project was more than limit prescribed u/s. 80IB(10) (d) of the IT Act. The assessee's reply was considered. After analyzing the fact of the case, the A.O. held :
(i) Land was not in the name of the assessee.
(ii) No cost of land had been paid by the appellant.
(iii) Mode and amount of cost of land had not been submitted before the A.O.
(iv) The evidence of sale of house was not given to the A.O.
(v) The assessee violated the provisions of Section 80IB(10)(d) of the IT Act i.e. commercial construction is restricted to 5% of aggregate built up area of the housing project or 2000 sq.ft., whichever, is less.
After detailed discussion made by the ld. A.O., he disallowed the deduction of Rs.34,67,092/- u/s. 80IB(10) of the IT Act.
4. Being aggrieved by the order of A.O., the assessee carried the matter before the CIT(A) who has also confirmed the addition on the basis that the appellant had purchased the land for fixed consideration and is developing housing project on its own cost and risk and there is no joint venture with the land owner. It fulfilled this condition. Thus, in terms of the decision in case of ITA No.254/Ahd/2013 M/s.Anant Developers vs. ITO Asst.Year - 2008-09 -4- ITO vs M/s. Shakti Corporation and Faqir Chand Gulati vs Uppal Agencies Pvt. Ltd. & Anr. He also relied upon in case of Radhe Developers vs. ITO, but condition laid down in Section 80IB(10) in clause (a) to (d) had not been cumulatively satisfied. As the assessee had built up area of shops and other commercial establishes exceed 5% of the aggregate built up area of the housing project or 2000 sq.ft., whichever is less.
5. Now the matter is before us. The ld. A.R., Shri M.K. Patel contended that the amendment made in Section 80IB(10) is effective on project sanctioned after 31st March, 2005 not project approved on or before this date. He also relied upon the decision in case of Manan Corporation vs. ACIT, Circle-5 in Tax Appeal No.1053 of 2011 of Hon'ble Gujarat High Court, order dated 03/09/2012 for A.Y. 2006-07 wherein Hon'ble Gujarat High Court had concluded that the amendment in Section 80IB(10) is effective on project approved after 31st March,2005 not project approved by the Competent Authority on or before that date and held as under:
"34. Above discussion cumulatively when examined with the objectives and intent it sought to achieve in bringing about the said provision of Section 80IB(10), this amended taxing statute requires to be interpreted in favour of the assessee rather than insisting upon strict compliance leading to absurdity."
From the side of the Revenue, ld. D.R. fairly conceded the fact of the case.
6. We have perused the orders of the authorities below and gone through the case laws cited by the appellant. In case of Manan Corporation vs. ACIT (supra), the issue before the Hon'ble Gujarat High Court was identical in which deduction u/s.80IB(10) was not allowed on the basis of amended provision in Clause (d) of sub section 10 of Section 80IB Act by the A.O. But in case of appellant, date of approval of the project by the Competent Authority has not been given at any stage. Therefore, the A.O. is directed to verify the fact of the assessee's case and take decision as per law. Accordingly, the matter is set aside for limited purpose. "
ITA No.254/Ahd/2013M/s.Anant Developers vs. ITO Asst.Year - 2008-09 -5-
6. In consonance with the aforesaid order of the Co-ordinate Bench in assessee's own case, the directions given by the Coordinate Bench in AY 2007-08 shall apply mutatis mutandis to the impugned AY 2008-09. The AO is directed to give similar effect to the directions noted in AY 2007- 08 to this appeal also.
7. In the result, appeal of the assessee is allowed in terms of directions noted above.
This Order pronounced in Open Court on 17 / 05/2017
Sd/- Sd/-
(एस.एस.गोदारा) ( द प कुमार के डया)
या यक सद य लेखा सद य
( S.S. GODARA ) ( PRADIP KUMAR KEDIA )
JUDICIAL MEMBER ACCOUNTANT MEMBER
Ahmedabad; Dated 17/ 05 /2017
ट .सी.नायर, व. न.स./T.C. NAIR, Sr. PS
आदे श क ! त#ल$प अ%े$षत/Copy of the Order forwarded to :
1. अपीलाथ' / The Appellant
2. (यथ' / The Respondent.
3. संबं6धत आयकर आयु8त / Concerned CIT
4. आयकर आयु8त(अपील) / The CIT(A)-V, Baroda
5. 9वभागीय त न6ध, आयकर अपील य अ6धकरण, अहमदाबाद / DR, ITAT, Ahmedabad
6. गाड फाईल / Guard file.
आदे शानुसार/ BY ORDER, स(या9पत त //True Copy// उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील य अ धकरण, अहमदाबाद / ITAT, Ahmedabad