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TMI Blog2018 (1) TMI 1031X X X X Extracts X X X X X X X X Extracts X X X X ..... duction in question wherein held despite granting numerous opportunity of being heard to the appellant, he has failed to attend before me to rebut the findings of the AO with documentary evidences. In absence of documentary evidences, the claim of the appellant cannot be allowed. - Decided against assessee - ITA Nos. 447 And 448/Ahd/2015 - - - Dated:- 16-1-2018 - SHRI S. S. GODARA, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER For The Assessee : Shri M. K. Patel, A.R. For The Revenue : Shri Antony Pariath, Sr. D.R. ORDER PER S. S. GODARA, JUDICIAL MEMBER These two assessee s appeals for assessment years 2006-07 and 2007-08 arise against the CIT(A), Gandhinagar s separate orders, both dated 12.11.2014 in case nos. CIT(A)/GNR/541/2013-14 CIT(A)/GNR/542/2013-14, upholding Assessing Officer s identical action initiating reopening proceedings thereby disallowing Section 80IB(10) deduction of ₹ 4,04,147/- and ₹ 1,15,370/-; respectively, in proceedings u/s. 144 r.w.s. 148 of the Income Tax Act, 1961; in short the Act . Heard both the parties. Case files perused. 2. Learned counsel representing assessee first of all sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee u/s 80IB(10) during the AT 2004-05 was in respect of the same project- The matter is restored back to the file of Assessing Officer for fresh adjudication to give the assessee one more opportunity to substantiate his claim before the A.O. The AO has relied on the order passed for AY 2005-06, wherein similar addition had been made, which has been confirmed, Relying on the view taken in AY 2005-06, AO disallowed the claim of the appellant u/s 80IB(10) of the Act. 5.2 Appellant in the written submission has contended before me as under: Being aggrieved by an order passed by the ld. Assessing Officer, Wd-3, Gandhinagar (hereinafter referred as the A.O.) dt.06-03-2014; the appellant has preferred an appeal on the grounds of appeal appended with the appeal memo, in support of the said grounds the appellant hereby submit the facts of the case as under. 1) That appellant has been engaged in construction and development of land since long. It has been assessed to income tax since last 20 years. 2) The appellant had carried out the construction works of residential premise as per approved plan under the name Shalin Tenemants. The land area of said pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certificate. During the course of reassessment proceeding, we furnished the summary of members year wise collection (pi. refer page no.62); which clearly indicates there had been no any collection onward Nov. 2007 as the housing project completed at the relevant time, we also submitted the copy of Lay out plan of housing project and brochure of the scheme (pi. refer page no.36 to 38); which clearly indicates the housing project consist by 32 residences, the summary of all 32 members collection from 2002 to 2007 and conjoin reading of aforesaid evidences clearly show the project is one only. The hon'ble ITAT has clearly directed that the ld.AO is to verify the claim has been for the same project or not wide para -7 of said order, which reproduced hereunder. After hearing both the parties, and perusing the record and also the assessment order for the A.Y. 2004-05, it is not dear whether the claim of the assessee u/s 80IB(10) during the A.Y. 2004-05 was in respect of the same project. Further, the other contemporaneous evidences like as agreement entered into at initial stage with the members (pg-39 to 45) and they formed the NIC (The Shalin co-op, hous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee had constructed / developed only one project from 2002 to 2007, as directed by the hon'ble ITAT. IN VIEW OF THE above, the we rely on following case laws. 1. CIT Vs. Radhey developers - (2012) 341ITR 403 (Guj.). 2. Medha Constructions p. Ltd. - (2014) 41 CCH 007 Hyd trib. it is held - Conclusion - Even where the assessee was not required to furnish Completion certificate, since project was approved before 01- 04-2005 and completed on dt.31-03-2008.........verify fact relating to deviation of site plan. PRAYER : the appellant most respectfully urge that - the claim deduction u/s 8016(10) may please be allowed and grant any other relief which may deem fit proper and oblige. 5.3 I have considered the facts of the case, assessment order and the submission made by the appellant. On careful consideration of the facts, I find that similar issue has been decided by me for AY 2005-06 in the following words: 5.2 I have considered the facts of case, assessment order and grounds of appeal. The AO after giving the opportunity to the appellant and considering the order of the Hon'ble ITAT in the case of the appellant an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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