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TMI Blog2018 (3) TMI 1733X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed by the AO was allowed by the ld. CIT (A). 3. We have heard the ld. D/R as well as the ld. A/R and considered the relevant material on record. The assessee got industrial land measuring 1,37,973.25 sq. ft. vide Partition Deed dated 12th August, 2004. Thereafter, the assessee applied to JDA for conversion of land from industrial to Residential use and consequently the JDA vide Lease Deed dated 2nd June, 2005 converted the land for residential use. The assessee then entered into a Development Agreement dated 30th June, 2005 with M/s. Unique Builders & Developers (Realty) for construction of housing project on the said plot of land. As per the Development Agreement, the assessee was to receive 46% of the built up area and the balance 54% share would go to the builder along with the land underneath. The Housing Project was approved by the JDA on 30.08.2005. On sale of the flats, the assessee claimed deduction under section 80IB(10) which was denied by the AO on two grounds which are (i) The assessee is not a Developer but only a land owner ; and (ii) The Project was not completed within the stipulated time period. On appeal, the ld. CIT (A) allowed the claim of deduction u/s 80I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 allotted to Shri Narendra Kumar Rathi on 14.07.2009 who assigned these flats to Smt. Neena Rathi on 28.03.2011. In view of the above, it is held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 when 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 assessee over a period of time. These activities are fundamental and crucial for development of housing project. There is no dispute on these glaring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee 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 followed. Hon'ble Karnataka High Court in case of CIT Vs. Shravanee Construction had occasion to decide the eligibility of claim u/s 80(IB) on similar facts. Hon'ble court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 in not referring to the price in the previous year. 4.2 Therefore, the matter is required to be remitted back to the tribunal only on this issue. 4.3 The matter is remitted back to tribunal to decide ..... X X X X Extracts X X X X X X X X Extracts X X X X
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