2014 (5) TMI 228 - HC - Income Tax

Eligibility for the benefit u/s 80IB(10) of the Act - Held that - Following Commissioner of Income-tax Versus Radhe Developers 2011 (12) TMI 248 - GUJARAT HIGH COURT - Both the CIT (A) as the Tribunal was of the view that the risks and costs relating to the project were on the assessee and not on the owner of the land - the assessee had full authority and responsibility to develop the housing project by not only putting up the construction but by carrying out various other activities including enrolling members, accepting members etc. - the risk element was entirely that of the assessee - the deduction u/s 80IB(10) is available to an assessee who is engaged in the business of developing and building a housing project. Prescribed limit exceeded or not - Whether part of the approved project pertaining to Villas or Bungalows exceeded the prescribed limit in Built-up Area Held that - Both the CIT(A) and Tribunal was of the view that four row houses have been built upon the area exceeding 1500 sq.ft, were not part and parcel of the housing project, for which the deduction was claimed and that the assessees had not claimed deduction for those four Bungalows - the claim of the assessees for the buildings other than the four row houses was in consonance with the condition stipulated in Section 80IB (10) of the Act no substantial question of law arises for consideration - Decided against Revenue.

Summary

Issues:
1. Eligibility of the assessee for benefit under Section 80IB(10) of the Income Tax Act, 1961.
2. Compliance with prescribed limits in built-up area for residential units.

Eligibility for Benefit under Section 80IB(10):
The case involved appeals under Section 260A of the Income Tax Act, 1961, where the appellant-revenue questioned the eligibility of the assessee for benefits under Section 80IB(10) based on the approval of the housing project not being in the name of the assessee. The Tribunal's decision was challenged on the grounds that the project approval was not in the name of the assessee but in the name of the landowner. However, both the CIT (Appeals) and the Tribunal upheld the assessee's claim based on the Gujarat High Court's decision in a similar case, emphasizing that the risks and costs of the project were borne by the assessee, making them eligible for the deduction under Section 80IB(10). The High Court concurred with this view, stating that the assessee had complete control over the project and the risk element, thereby qualifying for the deduction under Section 80IB(10).

Compliance with Prescribed Limits in Built-Up Area:
The second issue pertained to whether the benefit under Section 80IB(10) could be lost due to certain residential units exceeding the prescribed limit of 1500 sq.ft. of built-up area. The CIT (Appeals) and the Tribunal found that the specific row houses in question that exceeded the limit were not part of the housing project for which the deduction was claimed. The High Court noted that the claim for buildings other than the exceeding row houses was in compliance with the prescribed limits under Section 80IB(10) for Goa. Consequently, the High Court dismissed the revenue's contentions, affirming that there was no merit in challenging the eligibility of the assessee based on the project approval or the size of specific residential units.

Conclusion:
In conclusion, the High Court summarily dismissed the appeals, stating that no substantial question arose from the Tribunal's order. The judgment emphasized the assessee's eligibility for the benefits under Section 80IB(10) based on the control, risks, and compliance with prescribed limits in the housing project, as established through the decisions of the CIT (Appeals), the Tribunal, and the Gujarat High Court.