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2021 (7) TMI 802 - AT - Income TaxDeduction u/s 80IB(10) - assessee is a cooperative society of Sahara India group and is engaged in the business of development and construction of residential and commercial units - CIT(A) allowed the claim of the assessee - built up area of shops and commercial establishments far exceeds the area prescribed under the statute - HELD THAT:- The issue stands settled in favour of the assessee by the decision in the case of Sarkar Builders [2015 (5) TMI 555 - SUPREME COURT] and CIT vs. Vatika Township Private Ltd.,[2014 (9) TMI 576 - SUPREME COURT] wherein it has been held that restriction on extent of commercial space in housing project imposed by way of amendment to section 80IB(10) w.e.f. 01.04.2005 does not apply to housing projects approved before 01.04.2005 even though completed after 01.04.2005. Since, in the instant case the housing project was admittedly approved before 01.04.2005, therefore, the first allegation of the Revenue that the aggregate built up commercial area far exceeds the prescribed limit is not applicable to the assessee Completion of the project on or before 31.03.2008 - it is the submission of the ld. Counsel that the project was completed before 31st March, 2008 in view of the additional evidences - Since these documents were never produced before the lower authorities and were filed before the tribunal for the first time in the shape of additional evidences, therefore, we admit the additional evidences filed in terms of Rule 29 of the Income Tax (Appellate Tribunal) Rules 1963 and deem it proper to restore the issue relating to completion of the project prior to 31st March, 2008 to the file of the AO for adjudication of this issue i.e., completion of the project prior to 31st March, 2008. The AO shall examine the documents and any other details that he may require and decide the issue as per fact and law after giving due opportunity of being heard to the assessee. Assessee is not a developer - we find the condition of developer was decided and allowed in the initial years of claim, i.e., in the A.Y. 2003-04 and 2004-05 which is evident from the order of the CIT(A) for A.Y. 2005-06. Therefore, we find merit in the argument of the ld. Counsel that the same is not open for examination in subsequent year in absence of change in the factual position. In our opinion, without disturbing the assessment for the initial assessment year it is not open to the Revenue to make disallowance of such deduction in subsequent year by taking a contrary stand. Further, merely appointing SICCL as a contractor for development and construction of the project, in our opinion, cannot lead to the conclusion that the said activities were not carried on by the assessee society. Since the assessee is bearing the entire risks and responsibilities relating to the project and SICCL was appointed only to execute the project, therefore, in the light of the ratio of various decisions relied on by ld. Counsel for the assessee, the assessee ought to be considered as a developer and cannot be denied the benefit of deduction u/s 80IB(10). Merely because certain procedural formalities relating to collection of booking application forms and money from the buyers were delegated to SICCL, it would not render SICCL as the developer of the project since the money collected by SICCL was on behalf of the assessee only and on the authorization of the assessee and not in its independent capacity. Therefore, in our opinion, delegation of certain formalities regarding collection of booking application forms and money on behalf of the assessee would not cease the assessee company as being rendered as a developer of the project.
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