9911796707
TMI Blog2017 (7) TMI 1181X X X X Extracts X X X X X X X X Extracts X X X X ..... ri And Inderjeet Singh, JJ. For the Appellant : Mr. Anuroop Singhi with Mr. Aditya Vijay For the Respondent : Mr. Siddharth Ranka with Sourabh Harsh JUDGMENT 1. In both these appeals common question of law and facts are involved, they are decided by this common judgment. 2. By way of these appeals, the appellants have assailed the judgment and order of the Tribunal whereby Tribunal has dismissed the appeals of the department. 3. Counsel for the appellants has framed the following substantial question of law:- DB ITA No.146/2017 (i) Whether the Tribunal was justified in holding assessee as the developer and thereby allowing deduction u/s 80IB(10) of ₹ 1,01,86,533/-, ignoring the specific development agreement entered into by him merely as land owner with another developer to execute and construct the flats on the land of the assessee? (ii) Whether the Tribunal was justified in allowing deduction u/s 80IB(10) to the assessee when neither he undertook development and construction of the housing project nor the completion certificate of the project as required in Clause-ii of explanation to Section 80IB(10)(a) was furnished by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the housing project. Thus, the order passed by the Tribunal deserves to be quashed and set-aside. He has further submitted that the Tribunal as well as CIT(A) have failed to consider the clauses of agreement, which clearly shows that the assessee was only a land owner. Perusal of clauses of agreements reveals that the assessee was only a land owner. He was not a developer/contractor and by no stretch of imagination could be said to have been involved in developing and building housing project. It is also submitted that the appellate authorities have completely lost sight of the specific clauses of the development agreement dated 30.06.2005 entered into by the assessee, in the capacity of OWNER, with M/s. Unique Builder and Developer (Reality), in the capacity of DEVELOPER. The very factum that the assessee was merely an owner and there was a specific developer for developing the land owned by the assessee makes it more than evident that the assessee cannot be considered as a developer for any purpose much less for claiming benefit of deduction u/s 80IB(10). The other relevant clause referred by the Assessing Officer which demonstrate and establishes not only the inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brought on the statute w.e.f. 01.04.2010 and a perusal of the details has shown that the flats under consideration were allotted before this provision came into force. Therefore, he allowed the deduction u/s 80IB(10) of the Act. (iii) It is noted from the assessment order that it has been observed by the AO that during the year under consideration, the appellant sold two flats i.e. 824 and 924 on 01.04.2011 to Smt. Neena Rathi and thus violated the provisions of clause (e) and (f) of section 80IB(10) of the IT Act which are applicable from 19.08.2009 in view of Explanatory notes to the provisions of the Finance (no. 2) Act 2009 dated 03.06.2010 circulated by CBDT Circular no. 5/2010. (iv) During appellate proceedings, it was submitted by the appellant that the sale deeds registered in favour of Smt. Neeta Rathi on 01.04.2011 were in pursuance to Agreement to Sell dated 14.07.2009 in the name of Narendra Kumar Rathi who assigned his rights in favour of Neeta Rathi, his relative. Thus the allotment of these flats were also before 1-4- 2010. The appellant also produced copies of the Agreement to Sell dated 14.07.2009 which revealed that the flats No. 824 and 924 were allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and building housing projects and not to an individual who entered into a development agreement as the owner of the land. iii. Whether on the facts and in the circumstances of the case and in law the ld. CIT(A) has erred in allowing deduction u/s 80IB to the assessee wheen the completion certificate of the project was not furnished by assessee as required in clause (ii) of explanation below section 80IB(10)(a) of the Act. We find that the coordinate Bench after considering the submissions of the assessee has decided the issue as under:- 4.9 We have heard the rival contentions and perused the material available on record. As the facts emerge, the assessee undertook various activities from inception over a long period of time which included:- i. Undertaking the omprehensive and fundamental tedious process of getting the land converted for residential use from competent authorities and obtaining patta from JDA for its residential use; ii. Coordination, compliance and meeting the lengthy queries about sanction of plan for development and construction of housing project on the impugned land from local authority which is undisputedly carried over by assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TAT in the case of M/s Indo Continental Hotels Resorts Ltd.(supra) held that the approval of project was granted Gaziabad Development Authority in the name of assessee M/s Indo Continental Hotels Resorts Ltd. i.e. assessee and not in the name of M/s Parswanath Developer, therefore it cannot be said that assessee was only a name lender in the development of housing development project. The agreement entered by assessee with M/s Parswanath Developers provided that assessee will participate in the Housing Project and will do the necessary work assigned to it. After completion of the Project, the profit ratio was shared in the ratio of 1/3rd in this case it is 46% and 56%. No doubt, assessee did not do any marketing activity as it was assigned to M/s PDL, and thereafter flats were sold in the market and profits were shared in terms of agreed ratio. ITAT hald that all these facts and circumstances amply proved that assessee indulged in developing of the Housing Project and was eligible for claim u/s 80 (IB). In our considered view the facts and circumstances of M/s Indo Continental Hotels are similar to assessee s case and being a judgment of this bench only deserves to be fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not infirmity in the orders of ld. CIT(A) for the impugned assessment years. Consequently the impugned orders of ld. CIT(A) are upheld. The ld. D/R has not pointed out any contrary binding precedent, therefore, taking a consistent view of the matter, we do not see. Any infirmity in the order of ld. CIT(A), the same is hereby upheld. The ground raised by the revenue in this appeal is dismissed. 6. Otherwise also, the controversy is covered by the decision of this court in appeal no.120/2016 in the case of same assessee decided on 4.1.2017 wherein it has been held as under:- 4. The Tribunal has sought to rely upon the judgment in the case of CIT, Jaipur vs. M/s Indo Continental Hotels and Resorts which judgment was confirmed by this court in D.B. Income Tax Appeal No.630/2011 (CIT Jaipur vs. M/s Indo Continental Hotels and Resorts) other connected matter decided on 30.5.2017 which reads as under:- 4.1 The issue agitated before tribunal as regard to previous year, the issues is discussed in Income Tax appeal No.470/2009, which we have decided today but there is no reference of price in the same. In our view in CIT(A) and the tribunal have committed an error ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
