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2016 (3) TMI 408 - AT - Income TaxInadmissibility of deduction u/s 80IB(10) - surrender made on account of undisclosed income (on money found during search proceedings) - Whether the assessee is a developer or a works contractor? - Held that:- As examined the financial statement of the assessee and find that in the audited balance sheet as on 31.3.2006 assessee has shown sundry debtor of ₹ 1,99,21,445/-, the list of which includes 42 parties including Shri Madhav Co-op. Housing Society Ltd. being a sundry debtor of ₹ 8,87,166/- and the remaining amount of debtor i.e. ₹ 1,90,34,279/- are being debit balance in the names of various flat owners from whom the assessee had yet to receive the amount which it has spent for the housing project. This shows that assessee was not working only as a work contractor on behalf of Shree Madhav Co-op. Housing Society Ltd. else the assessee would have been showing the complete outstanding balance in the name of Shree Madhav Co-op. Housing Society Ltd. This fact has not been controverted by the revenue at any stage below and, therefore, looking to the terms and conditions of the development agreement and audited financial statement of the assessee, we are of the view that assessee comes under the category of developer and not of works contractor and, therefore, comes within the definition of developer as referred in the provisions of section 80IB(10) of the Act. Relying on the above decision of the co-ordinate bench in the case of Golden Developer vs. ITO (OSD), Range-9, Ahmedabad (2015 (9) TMI 645 - ITAT AHMEDABAD ) and looking to the facts of the case of assessee and applying the ratio of consistency, we find that assessee has successfully been able to fulfill all the requisite conditions for getting deduction u/s 80IB(10) of the Act. Even in the situation if the assessee is not the owner of the land, nor approval for construction received from the local authority is in its name but still assessee being a developer and fulfilling all the conditions embedded in the provisions of section 80IB(10) of the Act assessee is eligible for deduction under section 80IB(10) of the Act. Respectfully applying the judgment of co-ordinate bench in the case of Madhav Corporation (2015 (7) TMI 992 - ITAT AHMEDABAD ), we are of the view that assessee is eligible to claim deduction u/s 80IB(10) of the Act for the undisclosed income surrendered during search/survey action in a situation when assessee has been assessed in previous years and has been allowed deduction u/s 80IB(10) of the Act as well as there is no other source of income of the assessee other than the business of developing housing projects. - Decided in favour of assessee
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