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TMI Blog2016 (7) TMI 527X X X X Extracts X X X X X X X X Extracts X X X X ..... al, disallowance is required to be deleted and the order of the Tribunal is required to be confirmed. - Decided in favour of assessee - TAX APPEAL NO. 547, 551, 559, 560, 562, 563, 571, 576, 578, 579, 757, 1719 of 2008, TAX APPEAL NO. 460, 729, 733, 1708 of 2009, CIVIL APPLICATION (OJ) NO. 61 of 2009 In TAX APPEAL NO. 547, 548 of 2008 - - - Dated:- 30-6-2016 - MR. KS JHAVERI AND MR. G.R.UDHWANI, JJ. FOR THE APPELLANT : MR KM PARIKH, ADVOCATE FOR THE OPPONENT : MR MANISH SHAH, ADVOCATE ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI) 1. Being aggrieved and dissatisfied with the impugned judgment and order passed by the Income Tax Appellate Tribunal, Ahmedabad Bench A (hereinafter referred to as the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ahd/2007 2003-04 460/2009 29.02.2008 4249/Ahd/2007 2004-05 729/2009 25.04.2008 371/Ahd/2008 2004-05 733/2009 07/11/08 1503/Ahd/2008 2005-06 1708/2009 24.04.2009 1297/Ahd/2005 2001-02 548/2008 29.06.2007 2445/Ahd/2006 2003-04 1.1 These matters were admitted by this Court for consideration of the following substantial question of law: TAX APPEAL Nos. 547, 548, 551, 559, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the circumstances of the case, the Appellate Tribunal was right in law in allowing deduction u/s.80IB(10) r.w.s.80IB(1) to the assessee when the approval by the local authority as well as completion certificate was not granted to the assessee but to the landowner and the rights and the obligations under the said approval were not transferable, and when the transfer of dwelling units in favour of the end-users was made by the landowner and not by the assessee. (B) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in allowing deduction u/s.80IB(10) r.w.s.80ib(1) to the assessee on profit derived from sale of unutilized SFI not being the element of profits derived from the business acti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly a machinery provision and the substantive provision for the relevant deduction is Section 80IB(1) which must be read along with the former. He submitted that the undertaking of the assessee and it is the housing project of the assessee s undertaking that has tobe approved by the local authority. 4. Mr. Manish Shah, learned advocate appearing for the assessee submitted that the Tribunal is justified in reversing the order of CIT(A). He has drawn the attention of this Court to the decision rendered by this Court in the case of CIT vs. Radhe Developers reported in [2012] 341 ITR 403 wherein this Court has held as under: 41. In the present case, we find that the assessee had, in part performance of the agreement to sell the land in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement with the land owners on similar terms and conditions. It is true that there were certain minor differences, however, in so far as all material aspects are concerned, we see no significant or material difference. Here also assessee was given full rights to develop the land by putting up the housing project at its own risk and cost. Entire profit flowing therefrom was to be received by the assessee. It is true that the agreement provided that the assessee would receive remuneration. However, such one word used in the agreement cannot be interpreted in isolation out of context. When we read the entire document, and also consider that in form of remuneration the assessee had to bear the loss or as the case may be take home the profits, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present appeals are required to be answered in favour of the assessee. We are not giving any elaborate reasons for the same as in the case of Radhe Developers (Supra) and Swastik Associates (supra) it is held by this Court that assessees are entitled to benefit under section 80IB(10) even where title of lands had not passed on to assessees and in some cases, development permissions may also have been obtained in name of original land owners. Since the facts in the present matters are identical, disallowance is required to be deleted and the order of the Tribunal is required to be confirmed. 6. In view of the above, the questions raised for consideration in the present appeals are answered in favour of the assessee and consequentl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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