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2017 (10) TMI 678 - AT - Income TaxAssessment proceedings u/s. 153A - deduction u/s 80IB (10) claim - JDA copy relied upon - Held that:- The JDA copy found in the course of search was the basis of deduction claimed by the assessee u/s 80IB and this claim was very much examined by the AO by making belated enquiry as per the enquiry letter available in respect of the claim of the assessee for deduction u/s. 80IB. Hence in the present case, we are of the considered opinion that the JDA copy cannot be considered as an incriminating material found in the course of search and there is no reference to any other seized material in the assessment order and therefore, in the absence of any incriminating material found in the course of search, the assessment proceedings u/s. 153A of IT Act is bad in law as per this judgment of Hon'ble Karnataka High Court rendered in the case of CIT Vs. Lancy Constructions (2016 (2) TMI 797 - KARNATAKA HIGH COURT) on which reliance is placed by the ld. AR of the assessee. Deduction u/s 80IB (10) eligibility - Held that:- The assessee should be able to establish that the assessee was jointly engaged along with the other JDA partner in actual development activities also in addition to holding the land. Keeping this in mind, we examine the facts of the present case and we find that as per the JDA, several activities are to be done by the assessee but what is more important is the doing of actual activity and not that what was agreed to be done by the assessee. In this regard, we find that the assessee has brought on record the evidence regarding land leveling activity undertaken by the assessee. The assessee also had undertaken the activity of obtaining khata etc. Hence the only aspect which is not established by the assessee is regarding joint supervision of the construction activity but this is very important because mere certificate by JDA partner cannot be a basis to hold that the assessee was actually involved in joint supervision of the construction activity. Hence in our considered opinion, the matter should go back to the file of the AO for limited purpose of examining this claim of the assessee that the assessee was jointly supervising the construction activity along with SPL and if it is found that the assessee is able to establish this then the deduction u/s 80IB (10) should be allowed to the assessee to the extent it is allowable i.e. after excluding those flats where the area is more than 1500 sq. feet. We held so by respectfully following this judgment of Hon'ble Karnataka High Court rendered in the case of CIT Vs. Shravanee Constructions (2012 (7) TMI 88 - KARNATAKA HIGH COURT ).
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