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2020 (9) TMI 1198 - AT - Income TaxDeduction u/s 80IB - whether the appellants are to be assessed as AOP or as individual? - income from housing project in the name of "Hampton Park" belongs to AOP and not in the individual capacity as co-owner - AO declined the benefit of deduction to the assessee on the premise that deduction u/s. 80IB(10) was available only to an undertaking engaged in developing and building house project subject to fulfillment of conditions laid down in sub-section (10) of section 80IB - HELD THAT:- It is settled law that owner of the land as well as developer of the land both were eligible for claiming deduction u/s 80IB(10) in respect of housing project where the owner contributes the land as well as resources to develops the housing project. Thus, assessee was also eligible for claiming deduction under section 80IB(10) as it full fills all the conditions laid down under section 80IB. In the case of Sudhir Nagpal and Others Vs. ITO [2013 (2) TMI 371 - PUNJAB AND HARYANA HIGH COURT] wherein agricultural land was inherited by the co-owners from their forefather and general power of Attorney was executed by all the co- owners in favour of the "S" appointing him to construct plinth on their joint agricultural land in the name of all the owners and to further lease out such open plinth to any party on their behalf. In this case, the issue came up whether the appellants are to be assessed as AOP or as individual. It was held that the co-owners had inherited the property from their ancestors and there was nothing to show that they had acted as AOP. It was also held that in order to asses individual to be forming AOP, the individual co-owners should have joined their resources and thereafter acquired their property in the name of AOP. The ratio of this decision is again directly applicable to the facts of share of profit eligible of deed under section 80IB of the Act. The proceeds relating to sale of plots have been deposited in a separate bank amount of the assessee and her son .and. the same has been shared equally. There was non-existence of AOP, otherwise proceeds on sale of plots would not have been deposited in a separate bank account. The assessee also filed development permission letter bearing the name of co-owners in their individual capacity. It was further pointed out that the assessee as well as Ashok Govindbhai Patel has obtained separate registration under the Service Tax act in the individual capacity and the Service Tax Return filed along with deposit of service tax in the individual capacity were also furnished. It was contended that this is not the case where two or more independent persons have joined together for acquiring land and construction housing project by pooling their joint resources. The, assessee with her son cannot be at all be said to be -voluntarily, because the land has been received by them jointly by way of; inheritance. In such cases, the association of two or more persons is a forced association of the joint legatees and therefore, the status can only be regarded as co-ownership. Assessee was a builder and developer. It carried out the project for developing the land held by assessee. Assessee received his share of profit from the same and claimed deduction of her share of profit as per provision of section 80IB (10). The AO declined the benefit of deduction to the assessee on the premise that deduction u/s. 80IB(10) was available only to an undertaking engaged in developing and building house project subject to fulfillment of conditions laid down in sub-section (10) of section 80IB. It is settled law that owner of the land as well as developer of the land both were eligible for claiming deduction under section 80IB(10) in respect of housing project where the owner contributes the land as well as resources to develops the housing project. Thus, assessee was also eligible for claiming deduction under section 80IB(10) as it full fills all the conditions laid down under section 80IB Our view is further, fortified from the decision of CIT v. Shrayanee Constructions [2012 (7) TMI 88 - KARNATAKA HIGH COURT] wherein it was has held that it is not merely building housing project, which attracts provisions of section 80IB(10), it is developing and building housing project, which attracts said provisions for allowing deduction under section 80IB of the Act - Appeal of the assessee is allowed.
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