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2012 (11) TMI 110 - AT - Income TaxDeduction u/s 80IB - CIT(A) allowed the claim - Held that - Considering the Memorandum of Understanding claimed to have been executed with Rutvan Co-operative Housing Society on whose land all development activities are carried out, it is found that it is in Gujrati and the English translation is not complete translation of the MOU, since the same begins from Preamble and the terms of Memorandum begins from clause 2 and ends at clause 4 of terms of memorandum. It is transpired from the English translation that neither it is true translated copy of MOU nor it is certified by the Respondent Firm. Therefore, the same cannot be considered as true translated copy, moreover, it is not clear as to how the risk and rewards shall be shared by the executing parties and whether the respondent firm would have dominant control lover the project - this issue is restored back to the file of CIT(A) to decide afresh after considering all the objections of the AO by way of a speaking order - in favour of revenue for statistical purpose.
Issues:
1. Disallowance made under section 80IB of the Income Tax Act. 2. Interpretation of the role of the assessee in the construction project. 3. Validity of the Memorandum of Understanding with Rutvan Co-operative Housing Society. Analysis: Issue 1: Disallowance under section 80IB The Revenue appealed against the Ld. CIT(A)'s decision to delete the disallowance made under section 80IB of the Income Tax Act. The Revenue argued that the original plot for construction was not in the name of the assessee, who was only a confirming party. The completion certificate was also issued in the name of the land seller. The Revenue contended that the assessee did not have dominant control over the project as required under section 80IB. The Ld. CIT(A) had failed to consider the multiplicity of entities involved in the project and the associated risks and rewards. The Revenue emphasized that the decision in a previous case was not applicable to the current situation. Issue 2: Role of the Assessee The Ld. CIT(A) had allowed the appeal based on the submissions of the assessee. The authorized representative of the assessee argued that all facts were considered appropriately. The partnership firm had entered into agreements for the purchase of land, and the project was approved as a residential one. The assessee's role was defended as that of a developer, in line with the judgment of the High Court. The Revenue, on the other hand, highlighted the lack of legal documents proving ownership and the non-conformity of the project with section 80IB parameters. Issue 3: Memorandum of Understanding The issue regarding the Memorandum of Understanding (MOU) with Rutvan Co-operative Housing Society was raised. The MOU was in Gujarati, and the English translation provided was deemed incomplete and uncertified. The translation did not clarify the sharing of risks and rewards or the dominant control over the project. Due to these discrepancies, the MOU was not considered as a valid document. The matter was remitted back to the Ld. CIT(A) for a fresh decision after addressing all objections raised by the Assessing Officer. In conclusion, the appeal of the Revenue was allowed for statistical purposes, and the main issue was remitted back for further consideration.
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