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TMI Blog2016 (3) TMI 1058X X X X Extracts X X X X X X X X Extracts X X X X ..... a finding that the assessee was having dominant control over the land and was found to have been fulfilling the tests laid down by the Tribunal in the case of M/s. Shakti Corporation [2008 (11) TMI 436 - ITAT AHMEDABAD ]. Before us, Revenue has not brought any material on record to controvert the findings of ld. CIT(A) and has not brought on record any contrary binding decision. In view of the aforesaid facts, we find no reason to interfere in the order of ld.CIT(A) - Decided against revenue - ITA No: 3151/AHD/2011 - - - Dated:- 12-2-2016 - SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER For The Appellant by : Shri Deepak Sutaria, Sr. D.R. For The Respondent by : Shri A. C. Brahmakshatri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessing Officer. 3.1 During the course of assessment proceedings, Assessing Officer observed that assessee has claimed deduction of ₹ 1,22,73,851/- u/s.80IB(10) of the Act. Assessing Officer on analyzing the details furnished by assessee concluded that assessee was a mere builder who had entered into the agreement with the landowner for construction of housing project as per the approvals obtained by the landowner for construction on the land owned by the landowner and therefore assessee did not satisfy the conditions stipulated in Section 80IB(10) of developing and building the housing project therefore assessee was not eligible for deduction u/s.80IB(10) and accordingly denied the claim of deduction u/s.80IB(10). 4. Aggri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use (d) of section 80IB(10) with respect to time limit of permissions, time limit of completion, area of land, built-up area limit prescribed for the residential units, and percentage of commercial construction which can be undertaken. His objection is that the appellant is not a developer because it is not the owner of the land on which the residential units were constructed. According to him the appellant is a works contractor executing construction authorized by the cooperative housing society and is thus not eligible for deduction because it is hit by the Explanation inserted in the Act by Finance Act 2009 according to which a works contractor who executes the work awarded by any person is not eligible for deduction u/s.801B. The appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing points emerge: a. The AO has not disputed the land funding argument of the appellant in the remand report which was made even during the assessment proceedings as clear from the submission of the appellant reproduced on page 5 of the assessment order wherein land cost has been informed to be of ₹ 4,08,045. b. Secondly the bank statement of the appellant enclosed as Annexure-1 of this order shows four cheques (debits) issued in September 2004 totaling to ₹ 3,49,445 claimed to have been towards land cost. Four cheques have been confirmed in the remand report by the AO. In view of the above two points the appellant is found meeting the test of having practically purchased the land, set forth in Hon'ble ITAT de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... To start with smooth administration, the Partners of the second Part have decided to form a body where in near relatives shall be the office bearers. After forming the Housing Society for the purpose, the partners of the Second Part has arrange the fund to purchase the said land in the name of the Society, The possession was taken in lieu of POA in the name of the Society. After taking possession of the land for the Housing Project, the Second Party has prepared/ got prepared a lay-out plan, filed the plan before the local authority, made follow ups and got it approved. Clauses of the Development Agreement which show dominant control are mentioned below: Clause (12) The Developer shall obtain the sale consideration from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he addition made u/s.80IB(10). 5. Aggrieved by the order of ld. CIT(A), assessee is now in appeal before us. 5.1 Before us, ld. D.R. supported the order of Assessing Officer. On other hand, ld. A.R. reiterated the submissions made before Assessing Officer and CIT(A) and supported the order of CIT(A). 6. We have heard the rival submissions and perused the material on record. The issue in the present case is with respect to deleting the disallowance of deduction u/s.80IB(10) of the Act. The claim of the assessee for deduction was disallowed by the Assessing Officer mainly for the reason that assessee did not own the land on which the project was constructed and the assessee was a works contractor and that the approval for construc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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