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TMI Blog2015 (11) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... een incurred by the Assessee and that Assessee was eligible for deduction u/s. 80IB(10) of the Act. Before us, Revenue has not placed any material on record to controvert the findings of ld. CIT(A). In view of these aforesaid facts, we find no reason to interfere with the order of ld. CIT(A) - Decided in favour of assessee. - ITA No. 2436 to 2438/Ahd/2011 - - - Dated:- 9-10-2015 - Anil Chaturvedi, AM And Kul Bharat, JM For the Appellant : Shri Dinesh Singh, Sr DR For the Respondents : Shri P M Mehta with G M Thakor ORDER Per Anil Chaturvedi, Accountant Member 1. These three appeals filed by the Revenue are against the orders of CIT(A)- XV, Ahmedabad dated 29.07.2011 for A.Y. 2006-07 to 2008-09. 2. Before us, at the outset both the parties submitted that though the appeals of Revenue relates to 3 different assessment years but the facts and circumstances of all the cases are similar except for the assessment years and amounts and the submissions are also common for all the appeals and therefore all the appeals can be heard together. We therefore proceed to dispose of all the appeals together for the sake of convenience and proceed with the facts in A.Y. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , but the solitary issue is with respect to granting of claim of deduction u/s. 80IB(10). 5. During the course of assessment proceedings, A.O noticed that Assessee has claimed deduction of ₹ 38,99,189/- u/s. 80IB(10) of the Act. Assessee was asked to substantiate its claim of deduction. The submissions of the Assessee were not found acceptable to the A.O as A.O was of the view that since the housing project was approved by Local Authority in the name of the land owners Jagnath (Saraspur) Shops Housing Co.op. Society Ltd. and the B.U. permission was also obtained by the society, the Assessee had merely acted as a Contractor and was not the owner of the land. He therefore held that Assessee cannot be considered to be a Developer as per the provisions of Section 80IB(10) of the Act and accordingly denied the claim of deduction u/s. 80IB(10). Aggrieved by the order of A.O., Assessee carried the matter before ld. CIT(A) who vide order dated 29.07.2011 decided the issue in favour of the Assessee by holding as under:- 8. Perusal of the Development Agreement dated 15.4.2004 entered by the appellant with Jagnath (Saraspur) Shops and Cooperative Housing Society Ltd. shows th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D): The party of the other part will have to accept money towards the share for the land and construction from the persons enrolled in the project. Out of such monies received by the party of the other part it will have pay to the society such amount towards land contribution as may be decided by the society. Save and except this amount the party of the one part shall have no other right over any monies collected by the party of the other part from the members of the society. But it will be the total responsibility of the party of the other part to develop all the amenities and common facilities upon the land of the party of the one part as per the agreement arrived at between the parties and the party of the one part willingly accepts this responsibility. Clause 7 of the Conditions entered by the society with Balaji Corporation in the agreement dated 15.4.2004 states: 7. Party of the other part shall hold the physical possession with it of the land as well as whatever construction is put up on the said land, till the completion of the project and further till the agreement for the land as well as construction upon it is not completely executed, the contractual lien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d decision dated 7.11.2008 in the case of Shakti Corporation Baroda in AY 2005-06 (ITA No.1503/Ahd/2008) and is found having invested in cost of land and having acquired dominant control over the project bearing the entire cost and risk of execution. With respect to built-up area limit of some units exceeding 1500 sq.ft.limit because veranda / balcony is included in them while calculating built-up area limit the case of the appellant is covered by the Hon'ble ITAT Mumbai decision in the case of Sheth Developers 33 SOT 277 (Mum ITAT) wherein it has been held that veranda / balcony was included in the built-up area limit of the projects approved prior to 1.4.2005 but the project of the appellant was approved later than 1.4.2005 therefore merely because four or five residential units built-up area limit gets exceeded than 1500 sq.ft. limit because veranda / balcony is included should not bar the appellant from the deduction u/s.80IB(10). Commercial construction has not been found incurred by the appellant and no other condition has been disputed by the AO, therefore both on law and facts the appellant is found eligible for deduction u/s.80IB(10). The AO is directed to allow the sa ..... 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