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TMI Blog2015 (10) TMI 1599X X X X Extracts X X X X X X X X Extracts X X X X ..... ur of assessee - I.T.A. No.1700/Ahd/2011 - - - Dated:- 2-6-2015 - SHRI N.S. SAINI AND SHRI KUL BHARAT, JJ. For The Appellant : Shri Nimesh Yadav, Sr.DR For The Respondent : Ms.Arti N.Shah ORDER PER SHRI KUL BHARAT, JUDICIAL MEMBER : This appeal by the Revenue is directed against the order of the Ld.Commissioner of Income Tax(Appeals)-XV, Ahmedabad ( CIT(A) in short) dated 26/05/2011 pertaining to Assessment Year (AY) 2008-09. The Revenue has raised the following grounds of appeal:- 1). The ld.Commissioner of Income-tax(A)-XV, Ahmedabad has erred in law and on facts in deleting the disallowance amounting to ₹ 81,88,289/- made by the Assessing Officer u/s.80IB(10) of the Act. 2). The ld.Commissioner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 80IB(10) of the Act. Now, the Revenue is in further appeal before us. 3. Ground Nos.1 2 inter-connected and, therefore, the same are decided together. The ld.Sr.DR Shri Nimesh Yadav vehemently argued that the ld.CIT(A) was not justified in allowing the claim of the assessee for deduction u/s.80IB(10) of the Act. He submitted that the AO had disallowed the claim by observing that the assessee does not fulfill the requisite conditions. He submitted that under the identical facts, the Coordinate Bench of this Tribunal (ITAT A Bench Ahmedabad) in the case of ITO vs. M/s.Krishna Developers in ITA No.24/Ahd/2011 for AY 2007-08, dated 17/05/2013 was pleased to restore this issue to the file of ld.CIT(A) for decision afresh. 3.1. On the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oses of construction of the project. 3. The assessee has not sold any unit to the purchaser but the Society has executed the sale deeds as a seller and the assessee joined only as a confirming party to the transaction. This also proves that the assessee was merely a contractor/agent of the society. 4. As per the Amendment to section 80IB by the Finance Act 2009, a works contractor who executes the work awarded by any person is not eligible for the deduction u/s.80IB. Any person includes the Survalok, Sabarmati Co-op.Housing Society Ltd., which is a legal entity. 4.2. However, the ld.CIT(A) in its order dated 26/05/2011 has countered the finding of the AO by observing as under:- 5. It is seen that the AO has not dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant, therefore in my view it is eligible for deduction u/s.80IB(10) and the AO is directed to allow the same. 4.3. During the course of hearing, a query was raised to the ld.Sr.DR as to how the finding of the ld.CIT(A) is incorrect or contrary to the records. No specific error into the above finding of the ld.CIT(A) is pointed out by the ld.Sr.DR. We find that the ld.CIT(A) has given categorical finding that the assessee has met the test laid by the Coordinate Bench in the case of Shakti Corporation(supra) and also the risk and consequences in developing the project are borne by the assessee. Reliance is also placed on the judgement of Hon ble Gujarat High Court rendered in the case of CIT vs. Radhe Developers reported at (2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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