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TMI Blog2015 (2) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... d housing project and entire risk with regard to such housing project was to be borne by it only. Accordingly, Assessing Officer was not justified in denying the claim u/s. 80IB(10) and same has rightly been granted by CIT(A). This reasoned finding of CIT(A) needs no interference from our side. - Decided in favour of assessee. - ITA. Nos. 50, 51 & 52/Ahd/2013 - - - Dated:- 20-1-2015 - SHRI SHAILENDRA KUMAR YADAV AND SHRI ANIL CHATURVEDI, JJ. For the Appellant :Shri Dinesh Singh, Sr. D.R. For the Respondent : Shri Milin Mehta, A.R. ORDER PER SHAILENDRA KUMAR YADAV, J.M: All these appeals filed by Revenue are pertained to same assessee for A.Y. 2005-06, 2006-07 2007-08, arising out form the order of CIT(A)-IV, Baroda, dated 22.10.2012 on similar grounds. So, they are being disposed of by way of this common order for the sake of convenience. 2. In ITA No. 50/Ahd/2013 for A.Y. 2005-06, Revenue has filed the appeal on the following ground: 1. On the facts and in the circumstances of the case and in law, the learned CIT (A) erred in allowing deduction of ₹ 19,33,110/- u/s. 80IB(10) of the Income-tax Act without appreciating the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. As per assessee, the site did not consist of commercial construction and only residential premises are constructed in the site and the construction area of each house was less than 1500 sq.ft. As per assessee, income tax return of the firm was filed in tune along with the certificate of Chartered Accountant in Form 10CCB. As per assessee, in the case of assessee, it fulfills all the six conditions prescribed by law and has maintained records and books of account and furnished income tax return for the respective year within time limit u/s. 139 of the Act. As per assessee, with regards to query regarding the existence and or establishment of partnership firm was after the purchase of land for which assessee had claimed deduction u/s. 80IB of the Act. In this regard, it was stated on behalf of assessee that the said land was purchased by four partners jointly and severally and with oral understanding and payments were made out of one account of Mr. Rajesh Mankadia by taking deposits from rest of the partners. As per assessee, it was very clear from the above that initially four partners were jointly and severally purchased the land and then organized the housing project by d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a works contractor as discussed above, it was not eligible for deduction u/s 80IB(10) of the Act and such deduction claimed by assessee at ₹ 19,33,109/- was therefore, disallowed and added back to the total income of assessee. 4. Matter was carried before the First Appellate Authority, wherein matter was contested on reopening on merit. However, on reopening, it was not pressed but it was pressed on merit and having considered submission on behalf of assessee on merit CIT(A) granted relief to the assessee. Same has been opposed before us on behalf of Revenue inter alia submitting that CIT(A) was not justified in allowing deduction of ₹ 19,33,109/- under provision of Section 80IB(10) of the Act. Accordingly, order of CIT(A) be set aside and that of Assessing Officer be restored. On other hand, ld. Authorized Representative submitted that CIT(A) has rightly allowed the relief to assessee by following decision of CIT vs. Radhey Developer India Ltd. Another (2012) 341 ITR 403 (Guj.), which take cares of issue. Accordingly, order of CIT(A) on allowability of 80IB(10) be upheld. 5. After going through rival submissions and material on record, we find that stand of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity in respect of a housing project and the person who has obtained the said approval is a matter of no consequence. As per assessee, as a matter of fact the permission granted by local authority was in the name of project and not to a particular developer or the land owner. As per Assessing Officer, moment the project is approved by a competent local authority, condition laid down under the section 80IB(10) is fulfilled and duly complied with. The only condition prescribed under the section is that an undertaking should develop a housing project approved by local authority and person, has duly complied with the same. As per the Authorized Representative, deduction continues even in case of transfer of undertaking for simple reason that benefit u/s 80IB(10) of the Act is available not to assessee, but to an undertaking. As per the AR therefore, even when the ownership of the undertaking is transferred so long as the transferee continues to fulfill the requirement of section 80IB(10), it shall be entitled to claim benefit of deduction under the said section. Similar view has been taken Hon'ble Gujarat High Court in the case of M/s Radhey Developers Others [2012] 341 ITR 403 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said approval is a matter of no consequent. Even when the ownership of the undertaking is transferred so long as the transferee continues to fulfill the requirement of section 80IB(10) of the Act, it shall be entitled to claim benefit of deduction under the said section as held in M/s Radhe Developers and others (supra). Assessing Officer has brought nothing on record which could suggest that conditions as laid down in section 80IB(10) of the Act have not been fulfilled by assessee firm. Only ground for rejection of claim of assessee as taken by Assessing Officer is that the land on which housing construction project has taken place was not owned by assessee firm and such land was owned by above four partners. In view of above discussion, this ground as taken by Assessing Officer was not justified in rejecting the claim of assessee because in this case, housing project has been approved by the local authority on 24-05-2004 and plan was passed on 02-08-2004. The size of plot of land was 12,141.59 sq.mtrs. which was more than 1 acre. Built-up area of each unit did not exceed 1500 sq.fts. The undertaking starting construction in the financial year 2004-05 and the same was completed in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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