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TMI Blog2015 (9) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer has called into question correctness of learned CIT(A) s two separate orders, both dated 30th August, 2011, in the matter of assessment under section 143(3) of the Income Tax Act, 1961 ( the Act hereinafter) for the Assessment Years 2007-08 2008-09. 2. Since identical issues are involved in these appeals, we dispose of these appeals by this common order, for the sake of convenience. 3. Since common grounds have been raised by the appellant in both these appeals, therefore, for the sake of convenience, the grounds raised in ITA No.2598/Ahd/2011 for A.Y. 2007-08 are reproduced as under :- ITA No.2598/Ahd/2011 for A.Y. 2007-08 1) The Ld. Commissioner of Income-tax (Appeals)-XV, Ahmedabad has erred in law and on facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owner of the land on which project was completed nor the necessary permissions were granted to the assessee. It was also noted that the land belonged to Darshan Twins Co-operative Housing Society Limited and Shyam (Bopal) Co-operative Housing Society Limited. It was in this backdrop and for this reason that deduction under section 80IB(10) of the Act was declined to the assessee. However, when the matter was carried in appeal before the ld. CIT(A), she reversed the action of the Assessing Officer and allowed deduction under section 80IB(10) of the Act by observing, inter alia, as follows :- 16. After going through rival submissions on BU permission point I am of the view that Gram Panchayat Bopal letter dated 29.4.2010 can be taken as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case in the light of the applicable legal position. 7. We find that the issue in appeal is now covered, in favour of the assessee, by a rather recent decision of the co-ordinate bench, in the case of Shri Umeya Corporation vs. Income Tax Officer (ITA No.211/Ahd/2010; order dated 07.07.2015) wherein the Tribunal has observed as follows :- 6. We find that, in the case of CIT Vs Radhe Developers [(2012) 341 ITR 403 (Guj)] , Hon ble jurisdictional High Court had an occasion to consider the issue of ownership of land, on which housing project is developed, in the context of eligibility of deduction under section 80IB(10). Hon ble jurisdictional High Court has, in this context, inter alia observed as follows: 32. Sec. 80-IB(10) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condition precedent for deduction under section 80IB has been satisfied inasmuch as whether or not the assessee is engaged in developing and building housing projects , all that is material is whether assessee is taking the entrepreneurship risk in execution of such project. When profits or losses, as a result of execution of project as such, belong predominantly to the assessee, the assessee is obviously taking the entrepreneurship risk qua the project and is, accordingly, eligible for deduction under section 80IB(10) in respect of the same. The assumption of such an entrepreneurship risk is not dependent on ownership of the land. The business model of developing and building housing projects by buying, on outright basis, and construct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lborn, and its relevance is confined to academic significance, for the reason that that while giving effect to the majority view, vide order dated 28th February, 2013 and on somewhat peculiar fact situation in this case, the final order of the Tribunal did not endorse these views. Quite to the contrary, following Hon ble Bombay High Court decision in the case of CIT Vs ABG Heavy Industries Ltd and Ors [(2010) 322 ITR 323 (Bom)] and upon by taking into account Hon ble Bombay High Court s specific directions in the case before the Tribunal, the Tribunal s final order had, inter alia, concluded as follows: .while giving effect to the opinion of Third Member u/s.255(4) of the Act, we take view in conformity with order of jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sk in the present case was undisputedly borne by the assessee, we confirm the stand taken by the ld CIT(A) and grant of deduction under section 80IB(10) to the assessee, and decline to interfere in the matter. 9. In the result, appeal filed by the Assessing Officer for A.Y. 2007-08 is dismissed. ITA No.2599/Ahd/2011 for A.Y. 2008-09 10. Learned Representatives fairly agree that whatever we decide in ITA No.2598/Ahd/2011 i.e. Revenue s appeal for the A.Y. 2007-08 in the case of this very assessee and which appeal was heard along with this appeal, will follow in this case as well. 11. While dealing with ITA No. 2598/Ahd/2011 for A.Y. 2007-08 we have upheld the relief granted by the ld. CIT(A) vide paragraph nos.6 to 9 above. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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