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TMI Blog2014 (5) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... e deleting the addition by a well-reasoned order granted substantial relief to the assessee – revenue could not controvert the findings of CIT(A) nor had brought any material in its support – thus, there is no reason to interfere with the order of CIT(A) – Decided against Revenue. - I.T.A. No. 2770/AHD/2012 - - - Dated:- 29-4-2014 - Shri G. C. Gupta And Shri Anil Chaturvedi, A.M.,JJ. For the Appellant : Shri Shri O. P. Batheja, Sr. D.R. For the Respondent : None ORDER Per Shri Anil Chaturvedi,A.M. 1. This appeal is filed by the Revenue against the order of CIT(A), Ahmedabad dated 17.09.2012 for A.Y. 2009-10. 2. The relevant facts as culled out from the material on record are as under: 3. Assessee is a par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only the right to its use. A.O. was therefore of the view that expenditure incurred by the assessee was for creation of various fixed assets of the firm and the ownership of which also remained with the firm. He therefore after considering the expenses like land leveling, land NA expenses, supervisory expenses and brokerage expenses aggregating to Rs 8,51,600/- considered the balance expenses of Rs 47,57,551/- to be of capital in nature which were eligible for depreciation and after allowing the depreciation disallowed the net expenses of Rs 42,81,796/-. Aggrieved by the order of AO, Assessee carried the matter before CIT(A). CIT(A) deleted the addition by holding as under:- 7.11 have gone through the facts of the case, the assessment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) As regards to bore well over head tank, it has been clearly mentioned in the sale deed that, these will remain in the ownership of the appellant firm. (iv) All were for longer period having enduring benefit and cannot be destroyed in a short-span of time. (v) The legal opinion submitted is factually incorrect and cognizance of this opinion cannot be taken. However, I find that the AO has not correctly appreciated the facts. The amenities including roads and parks etc., were clearly for all the plot owners. Except the bore well over head tank, the appellant had given the rights of the common facilities to the plot holders (including the future plot owners). The copy of agreement unequivocally stated that the land for the commo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l in any such scheme. All the plot holders, present and future would have a right to enjoy these amenities only and all other rights of ownership would be enjoyed jointly by them. In fact if we look on the true and exact position; the appellant developer would not retain any rights in the common facilities (except borewell and overhead tank, which is discussed later). The decision of the Hon'ble Supreme Court in the case of R.B. Jodharmal Kuthalia vs CIT 82 ITR 570 has been relied on out of context by the AO. In fact, in the common facilities it was the appellant who would not have any right like possession, to alienate, to lease or even use or enjoy in the capacity of a developer. Most of the rights (which cannot be absolute in such ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eciation is allowable on the cost of facilities as allowed by the AO after making the disallowance. It is to be understood that the facilities and amenities ultimately would belong to the plot holders and any depreciation wear or tear would be their loss. The appellant suffers no depreciation. The grounds of appeal are therefore decided as above. To sum up, the total income of the appellant declared would increase by Rs. 4,81,600/- over and above the returned income; instead of the variations made by the A.O. 6. Aggrieved by the order of CIT(A), Revenue is now in appeal before us. 7. Before us, the Ld. A.R moved an adjournment application but the same was rejected and thereafter the case was taken up for hearing on merits. 8. Be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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