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TMI Blog2022 (2) TMI 989X X X X Extracts X X X X X X X X Extracts X X X X ..... question were paid by the assessee from 1998 onwards. It is also noted that assessee has even made payment for the development rights. What the AO has missed out is unless respondent had any role in the development of the project, the joint venture partner would not agree to share 50% profit in the project with the assessee. Therefore, on this issue, we are in agreement with ITAT. Project was approved and commenced before the stipulated date of 01.10.1998 - ITAT has once again come to a finding of fact that the project, as completed, was different from the project for which initial approval had been obtained. It is true that the original Plan which was submitted and for which IOD was granted, was in 1997. The life of the IOD once gran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee did neither invest any money nor developed /constructed the building? (B) Whether the facts and in the circumstances of the case and in law, the Hon ble ITAT has erred in directing the AO to allow deduction u/s. 80IB(10) of the Income Tax Act, 1961, amounting to ₹ 17,94,05,681/- when the assessee did not assume any risk associated with being a developer and hence was neither land owner nor developer, but mere facilitator? (C) Whether on the facts and in the circumstances of the case and in law, the Hon ble ITAT has erred in directing the AO to allow deduction u/s.80IB(1) of the I.T. Act, 1961, amounting to ₹ 17,94,05,681/- ignoring the fact that the commencement of development of residential project started before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not owned by the assessee but by Malad Satguru Sadan CHS Ltd. and that the Conveyance Deed for the said land had been executed in the name of the society in pursuance to the directions of the High Court vide Consent Decree passed on 18.07.1995. The AO also noted that the assessee had been engaged as a developer by the Malad Sadguru Sadan CHS and has made payment on behalf of the society. Based on this, the AO concluded that the assessee was not the owner of the said land. Then the AO proceeded to examine whether the assessee could be considered as a developer. The AO observed that the assessee entered into a Joint Venture Agreement with M/s. Vaman Estate on 28.08.2001 and observed that as per the agreement, the development and constr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18,12,22,340/-. 5. Respondent-Assessee firm challenged this order before the Commissioner of Income Tax (Appeals) [ CIT (Appeals) ] by fling an appeal. The appeal was allowed by an order dated 31.01.2013. The CIT (Appeals) allowed the claim of deduction under section 80IB(10) of the Act. Aggrieved by this order of CIT (Appeals), revenue preferred an appeal before the Income Tax Appellate Tribunal, Mumbai ( ITAT ). The ITAT dismissed the appeal by an order dated 26.08.2016. Impugning the order of ITAT, this appeal has been fled. 6. The issue is regarding disallowability of claim of deduction under section 80IB(10) of the Act. Revenue had originally raised three points, namely, (a) lack of ownership of land on which the project was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO has missed out is unless respondent had any role in the development of the project, the joint venture partner would not agree to share 50% profit in the project with the assessee. Therefore, on this issue, we are in agreement with ITAT. 9. As regards the other objection that the project was commenced much before the stipulated date of 1.10.1998, Mr.Walve submitted that the assessee had submitted the original Plan to the concerned authorities on 7.11.1996 for which the IOD was granted in 1997, and therefore, even if a subsequent IOD has been obtained, as per the Explanation to section 80IB(10) of the Act, where the approval for the concerned project was given more than once, the date of final approval would be operative date of approv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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