, Û ,
, ,
IN THE INCOME TAX APPELLATE TRIBUNAL
"B" BENCH, AHMEDABAD
BEFORE SHRI D.K. TYAGI, JUDICIAL MEMBER And
SHRI A.K. GARODIA, ACCOUNTANT MEMBER
1. ./I.T.A. No.460/Ahd/2013 - [ [/A.Y.2005-06
2. ./I.T.A. No.461/Ahd/2013 - [ [/A.Y.2005-06
1.M/s.Sagar Associates / 1. The Income Tax Officer
Darshanam, Vs. Ward-2(2)
Opp.Gulmohar Society Baroda
Gotri, Baroda-390 021
PAN: AALFM5191K
2.M/s.Sagar Builders 2. The Asst.CIT
A-2,Sevashram Society Circle-3
Jyoti Ashram Baroda
Ellora Park
Baroda-390 023
PAN: AAKFM 6146P
( /Appellants) .. (×/Respondents)
Assessee(s) by :
Shri Mukund Bakshi
Revenue by :
Shri P.L.Kureel, Sr.DR
/ Date of Hearing : 03/09/2013
/Date of Pronouncement : 26/11/2013
/ O R D E R
PER SHRI A.K.GARODIA ACCOUNTANT MEMBER :
Both these appeals are assessees' appeals which are directed against two
separate orders of ld.CIT (A)-V Baroda both dated 21/11/2012 in respect of two
different Assessees, i.e. M/s.Sagar Associates and M/s.Sagar Builders for
Asst.Year 2005-06. Since the issue involved is common and identical, both
ITA Nos.460 & 461/Adh/29013
M/s.Sagar Associates vs. ITO &
M/s.Sagar Builders vs. ACIT (respectively)
Asst.Year - 2005-06
-2-
these appeals were heard together and are being disposed of by way of this
consolidated order for the sake of convenience.
2. Grounds raised by the assessee are identical in both the cases, except
difference in amount and, hence, we reproduce the grounds of appeal from the
appeal of the assessee in the case of M/s.Sagar Associates, i.e. ITA
No.460/Ahd/2013. The grounds are as under:-
All the grounds of appeal in this appeal are mutually exclusive and
without prejudice to each other.
1. The Ld.CIT (A)-V, Baroda has erred in law and in facts in holding
that the appellant is not a Builder and Developer, who is not assuming
the entrepreneurial risk and that the business undertaken by it is in the
nature of a Works Contractor.
2. The Ld.CIT(A)-V, Baroda has erred in law and in facts in holding
that appellant, though developing and building residential houses cannot
be said to have fulfilled the conditions for the claim of deduction
u/s.80IB(10) as in sale of the houses, the appellant has executed the sale
deed of the incomplete house and that the execution of construction
agreement for construction of the incomplete house would render the
appellant ineligible for the claim of deduction u/s.80IB(10) and that such
act would tantamount to undertaking the business as a Works Contractor
and that the profit from such business is ineligible for the claim of the
deduction u/s.80IB(10).
3. The Ld.CIT(A)-V, Baroda has erred in law and in facts in denying to
the appellant the claim of deduction u/s.80IB(10) amounting to Rs.83,185
despite the appellant having fulfilled all the conditions for such claim
including that of the development and building of housing projects. The
appellant may please be allowed the claim as made.
4. You appellant craves the liberty to add, alter, amend or delete any
or all of the above ground(s) of appeal.
ITA Nos.460 & 461/Adh/29013
M/s.Sagar Associates vs. ITO &
M/s.Sagar Builders vs. ACIT (respectively)
Asst.Year - 2005-06
-3-
2.1. In the case of other appeal, i.e. M/s.Sagar Builders in ITA
No.461/Ahd/2013, the amount of deduction claimed by the assessee is
Rs.6,45,908/-.
3. It was agreed by both the sides that, in both the appeals, the claim of the
assessee(s) regarding deduction u/s.80-IB(10) of the Act was disallowed by
ld.CIT(A) on this basis that the assessee sold the plot separately and completed
the construction work separately and, therefore, not eligible for deduction
u/s.80-IB(10) of the Act.
4. Learned AR of the assesse submitted that the issue involved in these two
appeals is squarely covered in favour of the assessee by the following tribunal
decisions:-
Sl.No(s) Decision in the case of.... Reported in....
1. DCIT vs. SMR Builders (P.)Ltd. (2012)24 Taxman.com
194 (Hyd.)
2. M/s.Vardhman Builders and ITA No.559/Ind/2010
Developers vs. ITO dated 09/05/2012
3. Raghava Estates Vs. Dy.CIT ITA Nos.248 &
49/Vizag/2009 dated
04/08/2011
5. At the time of hearing of these appeals, it was pointed out by the Bench to
both the sides that in the similar facts, one more appeal was heard by the ITAT
"C" Bench Ahmedabad in the case of Satsang Developers vs. ACIT in ITA
No.1011/Ahd/2012 for AY 2008-09 and one of the Members, i.e. Accountant
ITA Nos.460 & 461/Adh/29013
M/s.Sagar Associates vs. ITO &
M/s.Sagar Builders vs. ACIT (respectively)
Asst.Year - 2005-06
-4-
Member is common and, therefore, the issue will be decided on similar line as
per the decision in that case. Both the sides agreed to this proposition.
5.1 As per the recent Tribunal order rendered in the case of Satsang
Developers (supra), this issue was decided by the Tribunal in favour of the
assessee by following the Tribunal decisions:
Sl.No(s) Decision in the case of.... Reported in....
1. DCIT vs. SMR Builders (P.)Ltd. (2012)24 Taxman.com
194 (Hyd.)
2. M/s.Vardhman Builders and ITA No.559/Ind/2010
Developers vs. ITO dated 09/05/2012
3. Raghava Estates Vs. Dy.CIT ITA Nos.248 &
49/Vizag/2009 dated
04/08/2011
5.2. Before us in the present two appeals also, reliance was placed on these
tribunal decisions only. Respectfully following the Tribunal decision in the case
of Satsang Developers (supra) and other Tribunal decisions which were
followed by the Tribunal in that case and cited before us also, we decide the
issue in the present two appeals also in favour of the assessee.
6. In the result, both the appeals of the assessees are allowed.
Order pronounced in open court on the date mentioned on caption page.
Sd/- Sd/-
(D.K. TYAGI) (A. K. GARODIA)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Ahmedabad; Dated 26/11/2013
.., .../T.C. NAIR, Sr. PS Order pronounced on 26/11/13
Sd/- Sd/-
AM JM
(AC) (DKT)
ITA Nos.460 & 461/Adh/29013
M/s.Sagar Associates vs. ITO &
M/s.Sagar Builders vs. ACIT (respectively)
Asst.Year - 2005-06
-5-
/
Copy of the Order forwarded to :
1. / The Appellant
2. × / The Respondent.
3. / Concerned CIT
4. () / The CIT(A)-v, Baroda
5. , , / DR, ITAT, Ahmedabad
6. [ / Guard file.
/ BY ORDER,
× //True Copy//
/ (Dy./Asstt.Registrar)
/
, / ITAT, Ahmedabad
,
1. Date of dictation ......28.10.13 (dictation-pad 5-pages attached with the file)
2. Date on which the typed draft is placed before the Dictating Member ............30.10.13/7.11.13
3. Date on which the approved draft comes to the Sr.P.S./P.S.................
4. Date on which the fair order is placed before the Dictating Member for
pronouncement......
5. Date on which fair order placed before Other Member............
6. Date on which the fair order comes back to the Sr.P.S./P.S.......26.11.13
7. Date on which the file goes to the Bench Clerk.....................26.11.13
8. Date on which the file goes to the Head Clerk..........................................
9. The date on which the file goes to the Assistant Registrar for signature
on the order..........................
10. Date of Dispatch of the Order..................
|
