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Income Tax Appellate Tribunal, “A” BENCH, AHMEDABAD
Before: SHRI WASEEM AHMED & Ms. MADHUMITA ROY
आदेश / O R D E R
PER WASEEM AHMED, ACCOUNTANT MEMBER:
The captioned appeal has been filed at the instance of the Revenue against the order of the Commissioner of Income Tax (Appeals)–I, Ahmedabad [CIT(A) in short] vide appeal no.CIT(A)- I/CC.1(3)/183/2010-11 dated 12/05/2011 arising in the assessment order passed under s.143(3) of the Income Tax Act, 1961(hereinafter referred to as "the Act") dated 16-12-2010 relevant to Assessment Year (AY) 2008-09.
The Revenue has raised the following grounds of appeal:-
ITO vs. M/s.Shrinand Corporation Asst.Year - 2008-09 - 2 -
1. 1. The Ld.Commissioner of Income-tax (A)-I, Ahmedabad has erred in law and on facts in directing the Assessing Officer to allow the assessee’s claim for deduction of Rs.4,44,55,470/- u/s.80IB(10) of the Act.
2. The Ld. Commissioner of Income-tax (A)-I, Ahmedabad has erred in holding that the assessee fulfils the conditions laid down for claiming deduction u/s.80IB(10) even when the land was in the name of Society namely Nandanvan Co-op. Society, which are separate 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(s) and abide by the terms and conditions of its approval right from the inception of the project(s) till its completion rests with the Society. Assessee was just a contractor of the land constructing housing projects AND not a developer.
2. The only issue raised by the Revenue is that the learned CIT (A) erred in deleting the addition made by the AO for ₹4,44,55,470.00 by allowing the deduction under section 80IB (10) of the Act.
At the outset, the learned DR for the Revenue submitted that the 1st year for claiming the deduction under section 80IB(10) of the Act pertains to the assessment 2006-07 which is pending before the learned CIT (A) along with the AY 2007-08 by virtue of the direction of this tribunal in the own case of the assessee bearing and 112/AHD/2010 vide order dated 07-06-2013. Accordingly, the learned DR submitted before us to restore the matter to the file of the learned CIT(A) for fresh adjudication.
On the other hand, the learned AR for the assessee did not raise any objection if the matter is set aside to the learned CIT (A) for the fresh adjudication as per the provisions of law.
ITO vs. M/s.Shrinand Corporation Asst.Year - 2008-09 - 3 - 5. We have heard the rival contentions of both the parties and perused the materials available on record. At the outset we note that the identical issue in the own case of the assessee pertaining to the assessment years 2006-07 and 2007-08 have been restored to the file of the learned CIT (A) for fresh adjudication as per the provisions of law. The relevant extract of the order is reproduced as under:
“19. We have heard the rival submissions and perused the material on record. We find that the Assessing Officer has held that the assessee is not entitled for deduction for 80IB(10) for the reasons listed in the order. We further find that learned CIT(A) has not adjudicated the issue on merits and according to him the issue was redundant. In view of the aforesaid facts, we are of the view that the matter needs to be examined on merits. We therefore set aside this ground to the file of CIT(A) and direct him to examine the issue on merits and pass a speaking order after giving adequate opportunity of hearing to Both the parties relied on the orders of the authorities below as favourable to them. Thus this ground of revenue is allowed for statistical purposes.”
The facts of the case on hand are identical to the facts of the case as discussed above. Moreover, the 1st year for claiming the deduction under section 80 IB (10) of the Act pertains to the assessment year 2006-07 which is pending before the learned CIT (A) as discussed above. In our view, the issue raised in the assessment year 2006-07 being the 1st year should be decided first which is pending before the learned CIT (A). Therefore, we are setting aside the impugned issue to the file of the learned CIT(A) for fresh adjudication as per the provisions of law. Hence, the ground of appeal of the Revenue is allowed for the statistical purposes.
ITO vs. M/s.Shrinand Corporation Asst.Year - 2008-09
- 4 - 6. In the result, appeal of the Revenue is allowed for statistical purposes. This Order pronounced in Open Court on 08/08/2019