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TMI Blog2011 (4) TMI 642X X X X Extracts X X X X X X X X Extracts X X X X ..... en any finding with regard to status of the assessee whether the developer or merely a contractor - Therefore, set aside the order of the learned Commissioner of Income-tax (Appeals) on the issue of allowability of deduction u/s 80-IB of the Act and the matter is restored to the file of the Assessing Officer for deciding afresh after asking the assessee to produce completion certificate of the project which should be prior to 31-3-2008 by the local authority - Hence, the appeal of the revenue is allowed for statistical purposes. - IT APPEAL NO. 253 (IND.) OF 2008 - - - Dated:- 4-4-2011 - JOGINDER SINGH, R.C. SHARMA, JJ. P.K. Mitra for the Appellant. H.P. Verma and Ashish Goyal for the Respondent. ORDER Joginder Singh, Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attention was also invited to page 6 of the impugned order wherein income-tax has been held that developer includes contractor. It was also submitted that municipal corporation gives approval in the name of M/s Jai Shankar Grah Nirman Sahkari Sanstha and not to the assessee. Consequently, the impugned order is unjustified. 3. On the other hand, ld. Counsel for the assessee contended that the impugned issue is not covered by the decision of Fortune Builders (supra) as canvassed by the learned Senior Departmental Representative. Our attention was also invited to last para of page 3 of the assessment order. Only approval should be taken by the assessee and ownership is not the pre-requisite. The impugned order was defended. 4. We have cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired to be fulfilled for claiming exemption/deduction under section 80-IB of the Act "(10) The amount of deduction in the case of an undertaking developing and building housing projects approved before the 31st day of March, 2008 by a local authority shall be hundred per cent of the profits derived in the previous year relevant to any assessment year from such housing project if, (a) such undertaking has commenced or commences development and construction of the housing project on or after the 1st day of October, 1998 and completes such construction, (i) in a case where a housing project has been approved by the local authority before the 1st day of April, 2004, on or before the 31st day of March, 2008; (ii) in a case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hundred square feet at any other place; and (d) the built-up area of the shops and other commercial establishments included in the housing project does not exceed five per cent of the aggregate built-up area of the housing project or two thousand square feet, whichever is less. The following clauses (e) and (f) shall be inserted after clause (d) of sub-section (10) of section 80-IB by the Finance (No. 2) Act, 2009, with effect from 1-4-2010 : (e) not more than one residential unit in the housing project is allotted to any person not being an individual; and (f) in a case where a residential unit in the housing project is allotted to a person being an individual, no other residential unit in such housing project is allotted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant cannot be denied the benefit available under section 80-IB(10) of the income-tax Act, 1961 it is true that the developer includes contractor and also the section does not bar deduction to any specific category of persons like builder, developer or it may be a colonizer. The word undertaking has not been defined in the Act. Hence the appellant is eligible for deduction under this section inspite of its status. The agreement executed between the society and the appellant builder firm is very clear that the development and construction work is to be completed in all respects by the builder firm. I am convinced with the arguments and submission of the ld. AR that there is no requirement in this section that the approval should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... insertion of Explanation whereby it was provided that the benefit of deduction under section 80-IB of the Act should not be given to an undertaking which executed the housing project as work contract awarded by any person. It has been clearly provided in the Explanation that only to the developer who develops the project in its entirety as per the approved plan can be given benefit of deduction under section 80-IB of the Act in respect of profits derived from such project. From record we find that the conditional approval has been granted by the assessee by the competent authority but the assessee has not filed any completion certificate of the project in question within the stipulated period of four years. Even the sanction/approval is sub ..... X X X X Extracts X X X X X X X X Extracts X X X X
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