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TMI Blog2016 (8) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in favour of assessee - ITA Nos. 1028 & 1781/Ahd/2012 - - - Dated:- 29-6-2016 - SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER For The Revenue : Shri Rajdeep Singh, Sr DR For The Assessee(s) : Shri Bharat S. Shah, AR ORDER PER SHRI KUL BHARAT, JUDICIAL MEMBER:- These two appeals by the Revenue are directed against the separate orders of the Commissioner of Income-tax (Appeals)-XV, Ahmedabad dated 24.02.2012 for Assessment Years 2008-09 2009-10. 2. The effective grounds raised by the Revenue in its appeals read as under:- AY : 2008-2009 1. The Ld. Commissioner of Income-tax (Appeals)-XV, Ahmedabad has erred in law and on facts in directing the Assessing Officer to allow the Assessee s claim for deduction of ₹ 2,02,19,004/- u/s 80IB(10) of the I.T. Act 2. The Ld. Commissioner of Income-tax (Appeals)-XV, Ahmedabad has erred in holding that the assessee fulfills the conditions laid down for claiming deduction u/80IB(10) even when the land was in the names of (1) Shukan Villas for Sakal Co-operative Hsg. Society Ltd., Vibhag-19 (New Name : Shukan Vilas Co-op Hsg Society Ltd) and (2) Sulay Raw House ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2014, wherein the issue about eligibility of deduction under section 80IB(10) in favour of the assessee who is not the owner of the land was allowed following the ITAT judgement in the case of Satsang Developers in ITA No.1011, 2498 and 1221/Ahd/2012 by following observations:- 8. We have heard the rival submissions and perused the material on record. On perusing the order of CIT(A), it is seen that CIT(A) has held that the issue relating to disallowance of deduction u/s 80IB(10) of the Act on the ground that Assessee is not the owner of the land and the approval of the project not being in the name of the Assessee is covered in favour of Assessee by the decision of his predecessor in assessees own case for AY 2008-09. We further find that CIT(A) had disallowed the claim of the Assessee on the ground that Assessee had entered into two agreements namely sale deed for the sale of land and construction agreement for the construction the unit and therefore according to him, the Assessee was a contractor and therefore not eligible for deduction u/s 8018(10). We also find that on identical facts, the co-ordinate Bench of the tribunal in the case of Satsang Developers (ITA No 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (10) of the Act cannot be declined if other conditions are being satisfied. 5.3. He further submitted that in the case of DCIT vs. SMR Builders (P) Ltd. (supra) also, the facts were that the assessee had sold flats in a semi-finished stage. In that case, the AO had noted that as per the sale-deed, the assessee-company has sold undivided share of land with super-structure of semi-finished built-up area for a certain consideration. The AO held that the semi-finished structure has never been considered as a residential unit. It was also noted by the AO in that case that on the same date when the sale deed was executed, a construction agreement was also entered into with the transferee for further construction of the same flats by the builder company itself. He submitted that the facts in the present case are similar. He also pointed out that in that case, it was held by the Tribunal that the stand of the Revenue with regard to the semifinished condition of the flats is devoid of any merit in as much as what is sought to be constructed and sold by the assessee is a residential units and what is sought to be purchased by the buyer is the ownership of the specified unit and regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at case also, the assessee had sold the plots separately and thereafter, constructed the houses and under these facts, the Revenue held that the assessee has to be considered as a mere contractor and, therefore, the assessee is not eligible for deduction u/s.80-IB (10) of the Act. This goes to show that the facts in that case were identical. In that case, it was noted by the Tribunal that the assessee had chosen to register the plot in the name of the buyer on payment of specified amount in order to achieve cost saving and to ensure reliability and thereafter, the assessee had proceeded to construct the house as per building plan obtained in the name of the plot-owners on payment of subsequent installments. It is also noted that the assessee had also developed various public amenities within the project. Thereafter, it was held by the Tribunal that on a totality of a fact, the Tribunal is of the view that the assessee has undertaken developing and building housing projects as per the scheme provided in section 80-IB (10) of the Act. 9.3. Since the facts in the present case are similar to the facts in above noted three Tribunal decisions, we do not find any defect in the const ..... X X X X Extracts X X X X X X X X Extracts X X X X
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