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TMI Blog2019 (3) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned CIT (Appeals) is not justified in holding that Section 80-IB(10) is applicable only to an undertaking involved in developing and construction by ignoring the legal position that Section 80-IB(10) is applicable to an undertaking of developing 86 building housing project and not developing 86 construction of housing project. 3. The learned CIT (Appeals) is not justified in holding that the Appellant is mere contributor of land ignoring fact that the Appellant himself was engaged in the business of real estate, had obtained requisite plan sanction, water 85 electricity for development of housing project. 4. The learned CIT (Appeals) is not justified in holding that the Appellant did not engage in developing but only contribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f constructed flats. The facts in brief borne out from the record are that the appellant (HUF) filed return of income declaring total income of Rs. 25,63,870/-, after claiming deduction under section 80-IB(10) of the Act. The appellant entered into JDA with SJR Builders dated 16.06.2004 under which the appellant has offered their land to the builder namely SJR Builders for construction of residential apartments. As per the agreement, the builder undertakes to put up a superstructure on that part or portion of land retained by the appellant in consideration of transfer of remaining part. It was further explained before the AO that JDA is not a sale simpliciter, because there is an element of builder's contract with the only difference that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the scheduled property to the builder for construction of residential apartment and this Act shall not be construed as delivery of possession in time of section 53 of Transfer Property Act r.w.s. 2(47) of the Income Tax Act. Hence, till the space sharing agreement, the owner of the land has full livery to supervise the building under JDA and also to carryout the building activities and to sign all necessary papers that are required for the purpose of getting sanction, getting various agency approval at appropriate time and also the appellant was ready to give support with regard to finance. Hence, the appellant was actively involved with the builder as a developer in developing the property as the JDA. He has also placed reliance on vario ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons that the 80IB(10) deduction is to be given to the undertakings or the persons who construct the residential apartment. In these cases, more than one person was engaged in the construction activities and the exemption was given to all the persons involved in construction activities with respect to the profit earned on sale of residential flats fell in their respective share. Therefore, claim of exemption under section 80IB(10) be allowed to the assessee in the light of aforesaid judgments. 5. The learned DR on the other hand has placed reliance upon the order of the lower authorities. She has also contended that assessee was not engaged in construction activities. The assessee has rather given his capital assets to the builder for raisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affidavits, etc., for obtaining sanction and permission from the competent authorities. As per this agreement, the shares of constructed portion were to be allocated amongst the appellant to the developers. It has also been made clear through clause 15 that the scheduled property was made available to the developer for construction of residential apartment and this shall not be construed as delivery of possession in terms of section 53 of the Transfer Property Act. The time was also stipulated for the completion of the project. As per clause 17, the appellant or his authorized representatives, at all reasonable time, shall have right of inspection of progress of work and quality of work with prior intimation to developers. The complete set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uted under JDA for the construction of residential apartments. Therefore, the profit earned on sale of flat would be a business profit. It was contended that the Revenue has not raised any dispute with regard to fulfilment of requisite conditions for claiming deduction of exemption under section 80IB(10) of the Act as the claim raised by developer was allowed with respect to shares of his profit. We have also examined the judgments referred to by the assessee and we find in those judgments, the claim of exemption under section 80IB(10) of the Act was allowed to both the parties of the JDA as both of them were engaged in construction activities. It is also an undisputed fact that the builder/developer has claimed deduction of exemption under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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