9911796707
TMI Blog2021 (2) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... roval of plan, constructed the project on more than one acre of land, construction was completed before 31.03.2003, commercial area was less than 3%. The assessee was having dominant control over the project. On the aforesaid observation, the ld.CIT(A) held that decision of Radhe Developers and other [ 2011 (12) TMI 248 - GUJARAT HIGH COURT] is squarely applicable on the case. In Radhe Developers (supra) the Hon'ble High Court held that neither the provision of section 80IB nor any other provisions contained in other relevant statues were brought to demonstrate that ownership of land would be condition precedent for developing housing project.It was perhaps not in the case of Revenue that under other law governing construction in Urban and Semi-urban area there was any restriction. Also in CIT vs Sahajanand Associates [ 2014 (4) TMI 76 - GUJARAT HIGH COURT] while relying on earlier decision of High Court in Radhe Developers (supra) held that assessee is entitled for deduction under section 80IB(10) in respect of developing the housing project even though neither land nor development permission was in the name of builder. Even though title of land had not passed on the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nership firm. During the relevant assessment year the assessee was engaged in the business of development of residential housing project. The assessee filed its return of income from 01.03.2006 declaring Nil income. In the computation of income, the assessee claimed deduction under section 80IB(10) of ₹ 2.42 crore. Initially the return of income was accepted in the assessment order passed under section 143(3) and allowed deduction under section 80IB(10). Subsequently, the ld.CIT-1, Surat revised the assessment order under section 263 of the Act, vide order dated 26.03.2008 directing the Assessing Officer (AO) to pass the fresh assessment order after examining the fact and the claim of deduction under section 80IB(10) of the Act. 3. The AO in order giving effect to the direction of the ld.CIT, Surat, noted that during relevant period, the assessee completed housing project known as Rutvan Apartments consisting of Six building of seven stories each i.e. building A to F and 20 shops. This housing project was developed on plot no.83/B, TPS No. 13 at Adajan, Surat. The assessee has shown a total sales of ₹ 8.08 crores and cost of construction was shown at ₹ 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 80IB(10) of the Act. The assessee further claimed that fees for approval of plan, development expenses, material costs, labour charges and administrative cost was borne by the assessee. The assessee also appointed various contractors for executing the project. The ld. CIT after consideration the contention of assessee held that all those aforesaid facts were not brought on record by the AO in the original assessment and as such the AO had not examined such facts which were essential for allowing deduction under section 80IB(10) of the Act. 5. The assessee filed its written submission dated 05.11.2008, as recorded by the ld.AO in para 3 of the assessment order. The assessee in its reply stated that they are engaged in the business of development of building and housing project. The construction activities of housing project was started after 01.10.1998 and completed the project before the 31.03.2003. For carrying out development of housing project, necessary sanction was obtained by the assessee from Surat Municipal Corporation(SMC) vide sanctioned order dated 17.08.1999 and thereafter development was commenced. Entire project was completed before 31.03.2003. Ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee. Thus, aggrieved by the order of ld.CIT(A), the Revenue has filed present appeal before this Tribunal. 9. We have heard submission of ld. Departmental Representative (DR) for the Revenue and Authorised Representative (AR) of the assessee and perused the material available on record. 10. The ld. DR for the Revenue supported the order of the ld.AO. The ld. DR for revenue further submitted that in para 4 of the assessment order the AO clearly held that assessee has not purchased the land in its name and having only the Satakhat [agreement with the sellers]. The land was finally purchased by the Co-operative Society. The Co-operative Society is the owner of the land on which the activities was carried out by the assessee. The assessee has not furnished any agreement with the Cooperative Society regarding its role and the activities undertaken for development of project. The assessee is merely a confirming party in the transaction of land. The reliance in case of Radhe Developers (supra) by the AR for the assessee is misplaced. The ld. DR submits that the said case has not attained the finality. The assessee also fails to demonstrate as to how much extent the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal work on the site. All other allied services were undertaken by the assessee. Thus, assessee was having full control over the project. 13. The ld.AR submits that jurisdictional High Court in case of CIT Vs. Radhe Developers (supra) held that assessee builder, developed housing project, even though neither land nor development right permission was in the name of the builder was eligible for claim under section 80IB(10) of the Act. The ld.AR for the assessee further submits that in CIT Vs Sahajanand Associates (2014) 44 taxmann.com 458 (Gujarat), the Hon'ble High Court held that section 80IB deduction is admissible to the assessee developer though development permission obtained by the land owner. It was also held that benefit of 80IB is available even though title of land had not passed to the assessee and the development permission were obtained in the name of original land owners. 14. We have considered the rival submission of both the parties and perused the order of Lower Authorities. We have also deliberated on various case laws relied by the both the parties. The AO while passing the assessment order disallowed the deduction under section 80IB(10) of the Act by ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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