9911796707
TMI Blog2014 (6) TMI 704X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commissioner of Income Tax(Appeals) erred in disallowing the claim for deduction u/s. 80IB(10) of the Act for Rs 17,48,939/- in Assessment Year 2000-01, Rs 35,53,660/- in Assessment Year 2001-02 and Rs. 9,56,170/- in Assessment Year 2006-07. 3. We have heard the rival submissions and perused the orders of lower authorities and materials available on record. The undisputed facts of the case are that the assessee claimed deduction u/s. 80IB(10) on housing project constructed near Blind Man Association, Ranip, Ahmedabad. The same was disallowed by the Assessing Officer and confirmed in appeal by the Commissioner of Income Tax(Appeals). 4. The Authorized Representative of the assessee filed before us a copy of the consolidated order of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ince the order dated 27.1.2006 whereas the issue in 2001-02 assessment year was decided by his predecessor on 5.11.2004. Accordingly, taking into consideration these facts he was of the view that the facts and circumstances as taken into consideration by his predecessor in 2000-01 assessment year in his order dated 27.1.2006 needs to be followed. Being also of the view that the deduction u/s 80IB(10) which has been claimed in continuity with the earlier years, the facts and circumstances continued to be the same, he directed the A.O. to allow the deduction u/s 80IB for the assessment year under consideration also. For ready reference, we reproduce the specific finding addressing the facts and circumstances taken into consideration by the CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the approved plan. The appellant had also given advertisement in local newspapers to attract the members for booking. The appellant had prepared ground water tank, approach road and construction lift at the site of housing project. The appellant had appointed the RCC contractors and other labor contractor and experts to carry out the construction and development works. The appellant had also purchased the building materials and made payments to the respective parties. In view of these facts, I agree with the Authorised Representative that the appellant's role has been that of a full fledged contractor/builder in housing project. The development charges were fixed @ 23% of housing project which is in the guise of net income from the hous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant is substantially higher than the presumptive profit as per section 44 AD of the Income-tax Act. If members could not be booked for the vacant premises, then such vacant premises are to be held by the appellant as per Clause No.3 of the development agreement. For the construction of scheme, necessary building materials have been purchased and payments have been made and the labour contractor has been appointed for construction work by the appellant. These clauses prove that the ownership and the risk factor is there on the appellant Further as per the brochure of the scheme, the appellant firm has been shown as developers, which indicates the role of the appellant as a developer. On a consideration of the totality of facts, I a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carried on by the contractor-developer as per the agreement entered into with the land owners which carried on the developmental activity in terms of the agreement. Simply because the land was not owned by the developers it has consistently been held is not a relevant criteria to disallow the deduction claimed not only in the case of Radhe Developers but also has been consistently followed by the Ahmedabad Benches. We find no merit in the departmental appeal in the light of the above facts and circumstances and position of law. Thus, since the facts and circumstances remain identical and no distinguishing fact despite specific opportunities could be pointed out by the Department, respectfully following the order of the Ahmedabad Bench, we d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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