2021 (4) TMI 1253 - AT - Income Tax

Disallowance u/s 80IB - Commissioner of Income Tax (Appeals) confirming the action of assessing officer in holding that income from housing project in the name of Hampton Park belongs to AOP and not in the individual capacity as co-owner - HELD THAT - We have further noted that the assessee filed appeal against the order of ld.CIT(A) for A.Y. 2011-12 and assessee was allowed deduction under section 80IB of the Act.- Further, while following the order of the Tribunal for A.Y. 2011-12, the assessee was further allowed similar relief in A.Y. 2012-13 2020 (9) TMI 1198 - ITAT SURAT For completeness of the order, the relevant part of order passed by the Tribunal for A.Y. 2012-13 2020 (9) TMI 1198 - ITAT SURAT . Considering the decision of the Tribunal on identical set of facts for AY 2011-12,which was further followed in AY 2012-13, wherein no variation in facts is brought to our notice nor any contrary law shown to us, therefore following the decisions of Co-ordinate Bench decision, the appeal of the assessee is allowed with similar observation. - Appeal of assessee allowed.

Summary

Issues Involved:
1. Determination of the status of income from the housing project "Hampton Park" as belonging to an Association of Persons (AOP) or as individual co-owners.
2. Disallowance of the deduction claimed under section 80IB(10) of the Income Tax Act, 1961.

Detailed Analysis:

1. Status of Income from Housing Project:
The primary issue is whether the income from the housing project "Hampton Park" should be treated as belonging to an AOP or as income of individual co-owners. The assessee contended that the income should be recognized in the individual capacity of the co-owners, not as an AOP. The Tribunal examined the facts and noted that the land was inherited by the assessee and her son, making them co-owners. Various documentary evidences, such as approved plans, development permission letters, sale deeds, joint bank accounts, and audit reports, supported the claim that the project was carried out under co-ownership. The Tribunal found that the assessee and her son did not voluntarily form an AOP but were forced into co-ownership due to inheritance. Therefore, the income should be treated as belonging to individual co-owners, not an AOP.

2. Disallowance of Deduction under Section 80IB(10):
The second issue concerns the disallowance of the deduction claimed under section 80IB(10) of the Income Tax Act, 1961. The Tribunal noted that the assessee was allowed similar deductions in the previous assessment years (AY 2011-12 and 2012-13) by the Tribunal. The Tribunal reiterated that the assessee and her son were co-owners and that the housing project was developed in their individual capacities. The Tribunal emphasized that the deduction under section 80IB(10) is available to both the owner and the developer of the housing project, provided they fulfill the conditions laid down in the section. The Tribunal also referenced several judicial precedents supporting the view that co-owners are eligible for the deduction. Consequently, the Tribunal allowed the deduction under section 80IB(10) for the assessee, following the decisions of the co-ordinate bench for the previous assessment years.

Conclusion:
The Tribunal concluded that the income from the housing project "Hampton Park" belongs to the individual co-owners and not to an AOP. It also allowed the deduction claimed under section 80IB(10) of the Income Tax Act, 1961, following the precedent set in the assessee's own case for the previous assessment years. The appeal of the assessee was thus allowed.