Income Tax Appellate Tribunal - Ahmedabad
Pushkar Construction Co.,, Ahmedabad vs Assessee on 21 October, 2015
आयकर अपील
य अ धकरण, अहमदाबाद यायपीठ 'सी', अहमदाबाद ।
IN THE INCOME TAX APPELLATE TRIBUNAL
" C " BENCH, AHMEDABAD
ी जी.डी.अ वाल,उपा य (अहम. े ) एवं ी कुल भारत, या यक सद य के सम ।
BEFORE SHRI G.D. AGARWAL,VICE PRESIDENT (AZ) And
SHRI KUL BHARAT, JUDICIAL MEMBER
1. आयकर अपील सं./I.T.A. No.2111/Ahd/2012 - AY 2007-08
2. आयकर अपील सं./I.T.A. No.2227/Ahd/2012 - AY 2006-07
1. Pushkar Construction Co. बनाम/ 1. ITO, Ward-9(1)
Ambika Nivas Vs. Ahmedabad
Nr.Uma Society,Paldi
Ahmedabad
2. The ACIT (OSD) 2. M/s.Pushkar
Circle-9 Construction Co.
Ahmedabad Paldi, Ahmedabad
थायी ले खा सं . /जीआइआर सं . / PAN/GIR No(s).:AAIFP 1527 B
(अपीलाथ( /Appellants) .. ()*यथ( / Respondents)
Assessee(s) by : Shri P.M. Mehta, AR
Revenue by : Shri Rakesh Jha, Sr.DR
ु वाई क- तार.ख /
सन Date of Hearing 30/09/2015
घोषणा क- तार.ख /Date of Pronounce ment 21/10/2015
आदे श / O R D E R
PER SHRI KUL BHARAT, JUDICIAL MEMBER :
Out of these two appeals; one appeal in quantum pertaining to Assessment Year (AY) 2007-08 is on behalf of assessee and another appeal is on behalf of the Revenue in penalty proceedings pertaining to AY 2006-07 against the separate orders of the Ld.Commissioner of ITA No.2111/Ahd/2012 (by assessee) and ITA No.2227/Ahd/2012 (by revenue) Pushkar Construction Co. vs. ITO/ACIT Asst.Years -2007-08 & 2006-07 respectively -2- Income Tax(Appeals)-XV, Ahmedabad ['CIT(A)' in short] dated 11/08/2010 and 06/07/2012 respectively. Since both these appeals relate to same assessee, these were heard together and are being disposed of by this consolidated order for the sake of convenience.
2. First, we take up the Assessee's appeal in ITA No.2111/Ahd/2012 for AY 2007-08. The Assessee has raised the following grounds of appeal:-
1. In law and on the facts and in the circumstances of the case, the order passed by the Commissioner of Income-tax (Appeals)-XV [hereinafter referred to as "CIT(A)"], is bad in law and deserves to be cancelled, as she has passed an order without considering and appreciating the facts of case of appellant.
2. In law and in the facts and circumstances of the appellant's case, the learned CIT(A) has grossly erred in upholding the disallowance for deduction u/s. 80IB(10) of the Income tax Act, 1961 (hereinafter referred as "the Act") amounting to Rs. 74,32,885/-, when she ought to have allowed the claim of the appellant.
3. In law and in the facts and circumstances of the appellant's case, the CIT(A) has grossly erred in upholding the charging of interest u/s.
234B of the Act, amounting to Rs. 8,25,630/-, when no such interest is chargeable in the appellant's case. The appellant denies its liability to pay interest.
4. In law and in the facts and circumstances of the appellant's case, the CIT(A) has grossly erred in not entertaining the ground against the initiation of penalty proceedings u/s.271(1)(c).
ITA No.2111/Ahd/2012 (by assessee)and ITA No.2227/Ahd/2012 (by revenue) Pushkar Construction Co. vs. ITO/ACIT Asst.Years -2007-08 & 2006-07 respectively -3-
5. The appellant craves leave to add, alter, amend and/or withdraw any ground or grounds of appeal either before or during the course of hearing of the appeal.
2.1. Briefly stated facts are that the case of the assessee was picked up for scrutiny assessment and the assessment u/s.143(3) of the Income Tax Act,1961 (hereinafter referred to as "the Act") was framed vide order dated 24.12.2009, thereby the Assessing Officer (AO in short) made disallowance of deduction claimed u/s.80IB(10) of the Act of Rs.74,32,885/-. The assessee being aggrieved by the assessment order, preferred an appeal before the ld.CIT(A), who after considering the submissions of the assessee dismissed the appeal. Aggrieved by the order of the ld.CIT(A), now the assessee is further in appeal before us.
3. Apropos to Ground No.1, the ld.counsel for the assessee has not made any effective submissions, therefore the same is dismissed as such.
4. Ground No.2 is against the disallowance of deduction u/s.80IB(10) of the Act of Rs.74,32,885/-. The ld.counsel for the assessee submitted that the ld.CIT(A) has followed the order of her predecessor passed in AY 2006-07, however the assessee feeling aggrieved by the order of the ld.CIT(A) had preferred an appeal before the Tribunal (ITAT "C" Bench Ahmedabad) and the Coordinate Bench of this Tribunal in assessee's own case in ITA No.1544/Ahd/2010 for AY 2006-07 vide its order dated 28/08/2015 had allowed the deduction. The ld.counsel for the assessee ITA No.2111/Ahd/2012 (by assessee) and ITA No.2227/Ahd/2012 (by revenue) Pushkar Construction Co. vs. ITO/ACIT Asst.Years -2007-08 & 2006-07 respectively -4- submitted that in the present appeal also, the facts are identical to that of AY 2006-07.
4.1. On the contrary, the ld.Sr.DR supported the order of the AO and submitted that the assessee is not eligible for deduction u/s.80IB(10) of the Act.
5. We have heard the rival submissions, perused the material available on record and gone through the orders of the authorities below as well as the decision of the Coordinate Bench relied upon by the ld.counsel for the assessee. We find that the facts in the year under appeal are identical to the facts as were in the AY 2006-07 in assessee's own case and the Coordinate Bench in ITA No.1544/Ahd/2010(supra) has decided the issue by observing as under:-
"11. As far as denial of deduction on the ground of flat size being in excess of 1500 sq. ft. is concerned, we find that the Assessee had sold 4 flats namely C-401, 402, 403 and 404 to 4 different purchasers vide separate sale deeds which have also been confirmed by the respective purchasers and at the time of its sale each flat was less than 1500 sq. ft. It is also a fact that the inspection was carried out by the DVO subsequent and much after the date when Assessee had handed over the possession to respective owners of the flat. The respective owners have also confirmed by carrying out the modification in those flats and combining those 4 flats into 2 flats. In such a situation the act of the purchasers of flats of converting the 2 flats in to 1 flat resulting into the area of are combined flat being excess of 1500 sq. ft. cannot be said to be done by Assessee and therefore it cannot be said that Assessee has sold flat whose area was in excess of 1500 sq. ft.ITA No.2111/Ahd/2012 (by assessee)
and ITA No.2227/Ahd/2012 (by revenue) Pushkar Construction Co. vs. ITO/ACIT Asst.Years -2007-08 & 2006-07 respectively -5-
12. Before us, Revenue has not brought any contrary binding decision in its support In view of the aforesaid facts, we are of the view that the Assessee is eligible for deduction u/s.80IB(10) and therefore set aside the order of A.O. on this ground. Thus this ground of assessee is allowed."
5.1. Since the Revenue has not pointed out any change into the facts and circumstances of the case, therefore taking a consistent view, we hereby delete the disallowance and allow the deduction u/s.80IB(10) of the Act. Thus, assessee's this ground of appeal is allowed.
6. Ground No.3 is against charting of interest u/s.234B of the Act of Rs.8,25,630/-. This ground is being consequential in nature, held accordingly.
7. Ground No.4 is against initiation of penalty proceedings u/s.271(1)(c) of the Act. This ground is being pre-mature, therefore the same is dismissed as such.
8. Ground No.5 is general in nature which requires no independent adjudication.
9. As a result, Assessee's appeal in ITA No.2111/Ahd/2012 for AY 2007-08 is partly allowed.
ITA No.2111/Ahd/2012 (by assessee)and ITA No.2227/Ahd/2012 (by revenue) Pushkar Construction Co. vs. ITO/ACIT Asst.Years -2007-08 & 2006-07 respectively -6-
10. Now, we take up the Revenue's appeal in ITA No.2227/Ahd/2012 for AY 2006-07, wherein following grounds have been raised by the Revenue:-
1) The Ld.Commissioner of Income-Tax (Appeals)-XV, Ahmedabad has erred in law and on facts in deleting the penalty of Rs.36,12,311/- levied u/s.271(1)(c) of the Act.
2) On the facts and in the circumstances of the case, the Ld.Commissioner of Income-Tax(Appeals)-XV, Ahmedabad ought to have upheld the order of the Assessing Officer.
3) It is therefore, prayed that the order of the Ld.Commisisoner of Income-tax(Appeals)-XV, Ahmedabad may be set-aside and that of the Assessing Officer be restored.
11. Ground Nos. 2 & 3 are general in nature which require no independent adjudication.
11.1. The only effective ground in this Revenue's appeal is against deletion of penalty of Rs.36,12,311/- levied u/s.271(1)(c) of the Act.
11.2. Briefly stated facts are that while framing the assessment u/s.143(3) of the Act, the Assessing Office (AO) vide order dated 26.12.2008 made two disallowances; (i) u/s.80IB(10) of the Act of Rs.62,83,272/- and (ii) u/s.40(a)(ia) of the Act out of labour expenses of ITA No.2111/Ahd/2012 (by assessee) and ITA No.2227/Ahd/2012 (by revenue) Pushkar Construction Co. vs. ITO/ACIT Asst.Years -2007-08 & 2006-07 respectively -7- Rs.44,48,483/-. The AO also initiated penalty proceedings u/s.271(1)(c) of the Act. Consequently, the AO vide order dated 22/03/2011, levied a penalty of Rs.36,12,311/- on the total disallowance of Rs.1,07,31,755/-.
12. At the outset, ld.counsel for the assessee submitted that in quantum appeal, the assessee had challenged both the disallowances and the Hon'ble Tribunal in AY 2006-07 in ITA No.1544/Ahd/2010 for AY 2006-07 (assessee's own appeal) was pleased to delete the disallowance made on account of disallowance for deduction u/s.80IB(10) of the Act and with respect to disallowance u/s.40(a)(ia) of the Act, the issue has been restored to the file of AO for re-examination.
12.1. On the contrary, ld.Sr.DR has supported the order of the AO.
13. We have heard the rival submissions, perused the material available on record and gone through the orders of the authorities below as well as the decision relied upon by the ld.counsel for the assessee. We find that the Coordinate Bench in ITA No.1544/Ahd/2010 for AY 2006- 07 (in assessee's own case in quantum appeal) has allowed the deduction u/s.80IB(10) of the Act and restored the issue of disallowance u/s.40(a)(ia) of the Act, for decision afresh. This finding of the Tribunal has not been controverted by the Revenue. Therefore, in our considered view, once the disallowance on the basis of which penalty has been ITA No.2111/Ahd/2012 (by assessee) and ITA No.2227/Ahd/2012 (by revenue) Pushkar Construction Co. vs. ITO/ACIT Asst.Years -2007-08 & 2006-07 respectively -8- deleted/set aside by the Tribunal, penalty would not survive. Thus, this ground of Revenue's appeal is rejected. As a result, Revenue's appeal in ITA No.2227/Ahd/2012 for AY 2006-07 is dismissed.
14. In the combined result, Assessee's appeal is partly allowed, whereas Revenue's appeal is dismissed.
Order pronounced in the Court on Wednesday, the 21st day of October, 2015 at Ahmedabad.
Sd/- Sd/-
(जी.डी.अ वाल) (कुल भारत)
उपा य (अहम. े ) या यक सद य
( G.D. AGARWAL ) ( KUL BHARAT )
VICE PRESIDENT (AZ) JUDICIAL MEMBER
Ahmedabad; Dated 21/ 10 /2015
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. संबं7धत आयकर आयु9त / Concerned CIT
4. आयकर आयु9त(अपील) / The CIT(A)-XV, Ahmedabad
5. :वभागीय ) त न7ध, आयकर अपील.य अ7धकरण, अहमदाबाद / DR, ITAT, Ahmedabad
6. गाड< फाईल / Guard file.
आदे शानुसार/ BY ORDER, स*या:पत ) त //True Copy// उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील य अ धकरण, अहमदाबाद / ITAT, Ahmedabad