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2019 (1) TMI 1926 - AT - Income TaxDeduction u/s 80IB(10) denied - No ownership to land - permission from the Nagar Nigam not valid - when the permission was not validly issued, therefore completion certificate for the same would also not be validly given, therefore, the A.O. disallowed the claim of deduction - as per AO Assessee is not undertaking development and construction of housing projects. The assessee is not owner of the land of which project is claimed to have been undertaken - HELD THAT:- As in the case of CIT Vs. Radhe Developers [2011 (12) TMI 248 - GUJARAT HIGH COURT] wherein the Hon'ble High Court was of the view that the ownership of the land is not sine-qua-non for claiming deduction u/s 80IB(10) of the Act. Therefore, in our considered view, this objection of the A.O. is contrary to the judicial pronouncements cannot be sustained. A.O’s objection that the assessee is merely acting as a contractor to the customer to whom land is independently sold and there after construction is being done as per agreement. This issue was examined by the Tribunal in original proceedings, wherein it has been decided in favour of the assessee. There is no change into facts and circumstances. Hence, this objection is also not sustained. No valid permission - A.O. of the view that when the permission from the Nagar Nigam is not valid since same has been taken before acquiring the land, since we have not sustained the objection of the A.O. that ownership of land on which project is claimed to have been undertaken, we therefore, do not find any merit into this objection of the A.O. This objection is also not sustainable. Hence, same is rejected. Disallowance u/s 14A - contention of the assessee is that the judicial pronouncement wherein it has been held that if the assessee has not earned exempt income in a particular accounting year, the resort to section 14A of the Act cannot be adopted - HELD THAT:- Admittedly, the assessee had not pressed ground against invoking the provisions of section 14A of the Act. In the ordinary circumstances, the assessee would have not been given an opportunity, but in the present case where the judicial pronouncement came later to the assessee’s withdrawal of the ground, we deem it proper in the interest of justice that atleast an opportunity by the Ld. CIT(A) should be given. We therefore restore this ground of cross objection to the file of the Ld. CIT(A) for decision afresh. The cross objection filed by the assessee is allowed for statistical purposes.
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