2012 (8) TMI 354 - AT - Income Tax

Disallowance u/s.80IB(1) - land being integral part of a housing project but did not belong to the assessee - Held that - As decided in Commissioner of Income-tax Versus Radhe Developers 2011 (12) TMI 248 - GUJARAT HIGH COURT that the relevant terms of development agreement are to be examined so as to ascertain the terms on which the assessee was granted right of construction of a housing project to ascertain whether it was a work contract or a Development Contract - not the only criteria for allowing the claim u/s.80IB(10) but the domain over the land and the control over the project has to be examined by the AO - matter is going back for reconsideration, then the agreements connected to the land and the details of the approval granted by the local authority permitting to develop the housing project can also be examined if deem fit - in favour of revenue for statistical purposes.

Summary

Issues:
- Appeal by Revenue against CIT(Appeals) orders allowing deduction u/s.80IB(10) for AYs 2004-05, 2005-06, and 2006-07.

Analysis:
1. Ownership of Land and Built-Up Area: The Assessing Officer contended that the housing project did not qualify for deduction u/s.80IB(10) as the land was not owned by the assessee, and the built-up area exceeded the prescribed limit of 1500 sq.ft. The AO highlighted discrepancies in the built-up area calculation, leading to a disallowance under section 80IB(1).

2. Dominant Control and Developer Status: The CIT(A) reversed the AO's decision, emphasizing that the assessee had dominant control over the project and fulfilled conditions for claiming the deduction. The Revenue argued that the assessee acted as a contractor, not a developer, and failed to provide a satisfactory explanation for the built-up area exceeding the limit.

3. Rights and Liabilities of the Assessee: The respondent-assessee asserted that they had dominant control over the property, paid the land cost to the Society, and undertook the project's risks. The assessee's representative highlighted the rights and liabilities assigned to the assessee, including receiving payments from society members.

4. Guidelines from High Court: The Tribunal referred to the guidelines from the Hon'ble Jurisdictional High Court in the case of CIT vs. Radhe Developers, emphasizing the examination of development agreement terms, determination of work contract vs. development contract, responsibility for project execution, authority over land development, financial arrangements, risk elements, and other crucial factors.

5. Order and Directions: Considering the guidelines provided by the High Court, the Tribunal decided to remand the issue back to the Assessing Officer for a detailed examination based on the specified criteria. The Tribunal directed a thorough review of agreements, local authority approvals, possession status, financial arrangements, risk elements, plot size, and built-up area compliance before reaching a final decision.

6. Decision and Conclusion: The Tribunal allowed the Revenue's appeal for statistical purposes only, indicating a procedural victory without altering the substantive outcome. The case was remanded for a comprehensive reassessment based on the High Court's guidelines to ensure a fair and accurate determination of the assessee's eligibility for deduction u/s.80IB(10).