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2015 (6) TMI 836 - AT - Income TaxClaim for deduction u/s. 80IB(10) - CIT(A) allowed the claim - Held that:- As per clause 15 of the development agreement, the developer was entitled for the profit of the difference between the gross amount received from the members towards construction of bungalows (+) development of basic common infrastructure amenities and the total cost incurred by the developer towards building material, labour, construction, interest, other charges. Meaning thereby the developer was required to bear all costs and expenditure for the completion of the scheme. In one of the clause, it was agreed upon that all the finances for the purpose of construction shall be arranged by the said developer. With this background of the agreement, with the ledger account of the society as maintained in the books of accounts of the assessee to demonstrate that on 12th of February, 2005 a sum of ₹ 10 lac was paid to the society through cheque of Bank of India. Thereafter regular payments were made; that too through account payee cheques and on 30th March, 2008 by a JV entry under “Land Account” a sum of ₹ 92,61,613/- was transferred. Also one of the schedule of the balance sheet to demonstrate that the cost of land was reflected in the account. Learned AR has also informed that the assessee had arranged the finances but simultaneously also received the development charges from the members of the society. There is a difference between a “developer” and a “contractor” which was elaborately explained to learned CIT(A) who has considered those legal aspect in the light of the facts of this case. We have noted that in the case of Radhey Developers, (2011 (12) TMI 248 - GUJARAT HIGH COURT ) the Hon’ble Court has opined that ownership of the property is not the only condition precedent, especially under the circumstances when an agreement is executed to develop a property and the developer has full authority to execute the project but side by side also undertaken the risk as well as the responsibilities. Respectfully following the decision of the Hon’ble High Court in the background of the facts of this case, we hereby uphold the view taken by learned CIT(A) and dismiss the ground of the Revenue. - Decided in favour of assessee.
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