TMI Blog2008 (11) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... e substantive provision, and section 80-IB(10), which is a machinery provision, postulating complete identity between the assessee as referred to in section 80-IB(1), and the undertaking developing and building housing projects approved by the local authority as referred to in section 80-IB(10), not permitting such splitting between the assessee and the person who is granted approval by the local authority for developing and building housing projects, as presumed by the CIT(A). 3.The ld. CIT(A) failed to abide by the scheme of section 80-IB based on complete identity between the assessee as referred to in section 80-IB(1), on the one hand, and the entity fulfilling the conditions laid down in sections 80-IB(3), 80-IB(9), 80-IB(11) and 80-IB(11AA), besides section 80-IB(10), on the other. 4.The ld. CIT(A) failed to appreciate that the land being integral part of any housing project, the assessee, without owning the land component, could not pass on full title over dwelling units to the customers so as to derive profits from developing and building housing projects and this integration is further fortified by the requirement of approval by the local authority as well as grant of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effectively dealt with and, accordingly, following the decision of the Tribunal, he directed the Assessing Officer to allow the deduction under section 80-IB(10) to the assessee. Similarly in all other cases, the deduction was allowed. The revenue has come in appeals before us. 4. The learned DR before us vehemently relied on the decision of the Hon ble Supreme Court in the case of Fakir Chand Gulati v. Uppal Agencies (P.) Ltd. [Civil Appeal No. 3302 of 2005], and contended that the essence of the agreement has to be looked into before deciding whether the assessee is entitled for the deduction under section 80-IB(10) or not. If the agreement entered into between the assessee and the landowners points out that it relates to the sale between the two and the contractor is developing housing projects at its own rights, not as an agent of the landowner, the assessee should be allowed deduction but where the assessee is working on behalf of the landowner as its agent for a fixed consideration, the case of the assessee will not be covered by the decision of the Tribunal in the case of Radhe Developers ( supra ). 5. The learned AR, on the other hand, drawn our attention towa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He carried us to the decision in the case of Radhe Developers ( supra ) specifically paras 3, 8, 10, 12, 13, 14, 29 and 31 of the decision and contended that the facts involved in the case of the assessee are similar to the facts involved in the case of Radhe Developers ( supra ) and for this attention was drawn towards the agreement entered into by the assessee with the landowner appearing at pages 42 to 49 of the paper book. On a query from the Bench he was fair enough to concede that where a developer/Builder is working for a fixed remuneration on behalf of the landowners, the provisions of law laid down in the case of Radhe Developers ( supra ) will not apply. It was vehemently contended that the assessee is a developer of the project at its own cost and risks and not a mere contractor working on behalf of the landowner. The assessee has not worked for a fixed remuneration for the landowner but has worked for himself in order to exploit the potential of its business in his own interest. The assessee was responsible for all the business risks associated with the business of development and building of housing projects. Whether there is a profit or loss the owner of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Builder" hereinafter]. The terms of the agreement, in brief were as under : "( i )The owner shall place at the disposal of the builder, vacant possession of the premises and authorize the builder to secure necessary sanctions, permissions and approvals for demolition of the existing building and construction and completion of a new building. ****** ( iii )The builder shall demolish the existing structure and construct a residential building consisting of ground, first and second floors, at its cost and expense. ( iv )The builder will have the right to appoint Architects, contractors, sub-contractors, etc. ( v )The new building to be constructed by the builder shall be of good quality as per the detailed specifications contained in Annexure-A to the agreement. ( vi )On completion of construction, the land-owner will be entitled to the entire ground floor (consisting of three bedrooms with attached bathrooms, one drawing- cum -dining, one store room, one kitchen) with one servant room under the overhead water tank on rear terrace and one parking space, as his share in consideration of his having made available the land. The builder shall also pay a sum of Rs. 8 lakhs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement is not a partnership and shall not be deemed to be a partnership between the owner and the builder." 8. The landowner alleges that the Builder made several unauthorized deviations during the construction from the sanctioned plan of Municipal Corporation of Delhi due to which the landowner received a number of notices from Municipal Corporation of Delhi and vide order dated 16-1-1991, Municipal Corporation of Delhi directed to seal the premises and the premises were de-sealed subsequently to enable the Builder to rectify the deviations. The Builder delivered the Ground Floor to the landowner s son during the landowner s absence from India. The landowner on return noted a number of shortcomings in the construction and the violation of sanctioned plan and, accordingly, vide letter dated 29-10-1992 asked the Builder to rectify the deviations and defects. The Builder did not comply with the same. The landowner, therefore, filed a complaint before the District Consumer Disputes Redressal Forum. The District Consumer Disputes Redressal Forum dismissed the complaint as not maintainable under the Consumer Protection Act, 1986 holding that the landowner was not a consumer. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er who gets some apartments may retain the same or may dispose of his share of apartments with corresponding undivided shares to others. The usual feature of these agreements is that the land-holder will have no say or control in the construction. Nor will he have any say as to whom and at what cost the builder s share of apartments are to be dealt with or disposed of. His only right is to demand delivery of his share of constructed area in accordance with the specifications. The builders contend that such agreements are neither contracts for construction, nor contracts for sale of apartments, but are contracts entered for mutual benefit and profit and in such a contract, they are not service-providers to the land-owners, but a co-adventurer with the land-holder in a joint venture , in developing the land by putting up multiple-housing (Apartments) and sharing the benefits of the projects. The question is whether such agreements are truly joint-ventures in the legal sense. 19. What then is the nature of the agreement between the appellant and the first respondent? Appellant is the owner of the land. He wants a new house, but is not able to construct a new house for himself eit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd to construction, the dispute raised by the landowner will be a consumer dispute. We may mention that it makes no difference for this purpose whether the collaboration agreement is for construction and delivery of one apartment or one floor to the owner or whether it is for construction and delivery of multiple apartments or more than one floor to the owner. The principle would be the same and the contract will be considered as one for house construction for consideration. The deciding factor is not the number of apartments deliverable to the landowner, but whether the agreement is in the nature of a joint-venture or whether the agreement is basically for construction of certain area for the landowner. 20. It is, however, true that where the contract is a true joint venture the scope of which has been pointed out in para 17 above, the position will be different. In a true joint venture agreement between the landowner and another (whether a recognized builder or fund provider), the landowner is a true partner or co-adventurer in the venture where the landowner has a say or control in the construction and participates in the business and management of the joint venture, and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two decisions, the first being that of the National Commission in C. Narasimha Rao v. K. R. Neelakandan-I (1994) CPJ 160 and the second being that of the Delhi State Commission in Har Swarup Gupta v. Mis. Kailash Nath Associates - II (1995) CPJ 275. In C. Narasimha Rao, there was an agreement between the landowners and a builder for construction of a building and sharing of the constructed area. The old building was demolished, but the builder failed to complete the construction of a new building and hand over the owner s share of flats. The landowners preferred a complaint claiming Rs. 94,000 as the value of the malba (retrievable valuables from the debris of the old building) that had been removed by the builder. The National Commission held that as the claim was for recovery of the money being value of the malba removed by the builder, it does not amount to a claim based on deficiency of service and, therefore, such a claim would fall outside the scope of the Consumer Protection Act. The said decision is wholly inapplicable, as it dealt with a different question. In Har Swarup Gupta, the State Commission was concerned with a claim of the landowners for compensation al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. (4)Even the nomenclature given in the body of the agreement/document/instrument is also not determinative of the nature and character of the agreement/document/instrument." On the facts of this case, the Hon ble Supreme Court observed that the landowner has to do nothing except to the extent he has to receive the constructed area by way of consideration from the Builder/Developer. The Hon ble Supreme Court came to the conclusion that the basic purpose of the agreement to construct a house or apartment by the Builder for the owner and, therefore, the agreement is not joint venture even though the nomenclature of the agreement given may be a collaboration agreement. The landowner will not have any say or control in the construction. His motive is not to develop, construct or carry on the business. His only right is to demand delivery of his share of constructed area in accordance with the specifications. Therefore, the Hon ble Supreme Court after having lengthy and pain taking discussion came to the conclusion that the contract entered into even though is titled as collaboration agreement is in fact a contract for house construction for the consideration and accordingly, took ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndings of material facts, direct and inferential. An inferential finding of fact is the inference which the Judge draws from the direct, or perceptible facts; ( ii ) statements of the principles of law applicable to the legal problems disclosed by the facts; and ( iii ) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a Court has been decided is alone binding as a precedent - State of Orissa v. Sudhansu Sekhar Misra AIR 1968 SC 647 and Union of India v. Dhanwanti Devi [1996] 6 SCC 44. A case is a precedent and binding for what it explicitly decides and no more. The words used by the Judges in their judgments are not to be read as if they are words in Act of Parliament. In Quinn v. Leathem [1901] AC 495 (H.L.), Earl of Halsbury LC observed that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying precedents have become locus classicus : Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. ****** Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it. " 10. Now the question before us is whether the decision of the Hon ble Supreme Court in the case of Fakir Chand Gulati ( supra ) will be applicable in the case of the assessee or not or can it be regarded to be the precedent for deciding the issue involved in the cases before us for which the Ld. Senior Advocate took all the pains for travelling from Ahemadabad to Baroda and made us read and un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is also mentioned in the said agreement that for constructing buildings for residential as well as commercial purpose over the land mentioned in this agreement, the Vadodara Municipal Corporation has granted Rajachiththi No. L/96/ 2003, dated 28-7-2003. The assessee has to perform the following acts over the said land including construction : "(1)That the Party of the Second Part (Assessee) shall upon obtaining all necessary permissions over the said land such as N A, N O C, Development Permission, Rajachiththi, permission for passing plans, Title Clearance, etc., for making the construction and erect an apartment in the same, can organize shops, offices, flats and tenement society and can engage architect if required, can prepare plans and obtain the Occupation Certificate, Completion Certificate, can get the revised maps prepared and for which, the complete powers are given to the Party of the Second Part. (2)The entire responsibility for carrying all legal proceedings in respect of aforesaid land shall be that of the Party of the Second Part and for that purpose, the Party of the First Part are bound to subscribe signatures, consents, affidavits, if and when found necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er them as members and can upon executing Agreements to Sale, etc., accept the money and issue receipts to the members. Same way, you can remove all obstructions that may come during the period of making the develop it. (8)If required, the Party of the Second, will raise necessary capital for making development and construction over the said land and can obtain the loan from the bank or any other institutions to complete the scheme and for that purpose can file a claim against such institutions for carrying out necessary proceedings and Party of the Second Part of its own whatever financial responsibility that may arise in such works, shall be on the head of the Party of the Second Part Developers. (9)That all activities relating to the construction is to be carried out by the Developer and if required, the Party of the First Part has to extend necessary co-operation and assistance as a landowner. The expenses for the said works is to be borne by the Party of the Second Part Developer. (10)From the date of this Agreement, you, the Party of the Second Part is bound to pay tax, land revenue, special cess, etc., in the offices of the Vadodara Municipal Corporation, Government, S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in to the Party of the Second Part herein." 12. If the facts and the terms and conditions of this agreement are compared with the decision of the Hon ble Supreme Court in the case of Fakir Chand Gulati ( supra ), we noted that in this case, there is no agreement to share the constructed area. This agreement relates only to purchase part of the land from the landowner by the assessee for a pre-determined consideration. All the responsibilities for carrying out the construction, permission, NA, NOC, legal proceedings and the results of the development lies with the assessee. The first party is only to co-operate the assessee in carrying out the development and also to execute the documents whenever it is required by the Developer. The assessee has also handed over the physical possession to the Builder for carrying out the development of the project. The landowner does not have any right, interest, title in the development so carried out except to the extent he has to receive the consideration from the assessee. The assessee is entitled to publicize the project, print brochures, etc., and can sell the project at its own right. All the expenses have to be incurred by the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through the assessee-firm and also agreed that the assessee-firm would make the members, i.e., prospective buyers and collect the land consideration at the rate mentioned in the agreement. The project was approved by the local authority, Baroda Municipal Corporation hereinafter referred to as BMC on 17-7-2000. The approval was in the name of the said owners of the land. As the assessee-firm is not the owner of the land and even the approval for permission to develop and construct the project was also not in the name of the assessee but in the name of the original landowners, the Assessing Officer held that the assessee has merely acted as an agent/contractor for construction of residential houses, and, therefore, did not satisfy the conditions for granting the claim of deduction under section 80-IB(10) of the Act and accordingly not entitled to the deduction. 4. The CIT(A) dismissed the assessee s appeal vide discussion in paragraph Nos. 15 16 of his order in the following manner : 15. Therefore, the deduction under section 80-IB(10), read with section 80-IB(1) and rule 18BBB is admissible only to such assessees as are deriving profits from an undertaking of building a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale-deed. This is because of variety of reasons, namely, because such conveyance would entail payment of stamp duty, because of litigation, prohibition against execution of conveyance-deed immediately, etc. In some cases, the land may be conveyed directly in favour of Co-operative Housing Societies or Non-Trading Corporations or Developers. Therefore, if the land is conveyed to a developer, what the developer does is that he enters into an agreement titled as Development Agreement with the land-owner. The Development Agreement effectively is an agreement of sale under which the landowner hands over the possession to the Developer, which entitle Developer to develop the property entirely at his choice, convenience and discretion. By such Development Agreement, the price on which the land would be sold, is fixed. The Agreement would also specify that the land-owner would be entitled to receive his consideration either immediately or over a fixed period, irrespective of whether or not the land is actually developed by the Developer. The land-owner gives all his rights over the land and gives full authority to the developer to enjoy the land in the manner of his choice. The Agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DCR gives definitions. The term "owner" in Clause 2.32 includes "Developers". Therefore, in GDCR whenever there is a reference to the term "Owner" it would always include "Developers developing any property." Clause 3 of GDCR prescribes procedure for acquiring development permission. Application has to be made in Form No. 1 which can be filed by anyone including "Developer". Thus, a "Developer" has a right to apply for development permission and to carry on all construction activities. Clause 11 prescribes conditions for development of land and clearly contemplates grant of development permission not only to "Owner" but also to a person who has a right to develop the land. Regulation 23 shows that it applies to the new construction, as distinguished from the applicability to the person applying for construction. In other words, the Developer caries out development activity as to comply with the Regulations whether or not he is the "Owner". This becomes further clear when one examines Clause 25, which pertains to penalties. Finally when the construction is completed the application for occupancy permission has to be made in Form No. 7 pursuant to Regulation No. 6.2( b ) and that Bui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... greement to sale favouring consenting party. Therefore, they are taken as consenting party, in present agreement to sale. At the time of making agreement to sale we landowners, the executors have received full amount towards the sale price of the land and, therefore, the party of Third Part is made consenting party and, therefore, the amount of sale price is to be given to the consenting party by the purchaser as per this agreement to sale. 14. The relevant terms and conditions clearly states that the second party are the owners of the land. The agreement for development of the housing project and construction dated 18-5-2000 described in the schedule and the land is in their names in the Government records. The relevant clauses 1, 2, 3 and 4, read as under: Who shall be hereinafter in this present Agreement of Development of Housing Project and Construction termed as The Party of the Third Part or You the said Firm or Developer-Builder in the meaning and context of the said term includes all the present and future partners/partners from time to time of the said Firm of the Party of the Third Part, who are alive, and heirs, successors, guardians, etc., of everybody. 1. Whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceive General Power of Attorney from The Party of the First and Second Part. 9. In order to complete the scheme as per arrangement plan and in prescribed time period, Developer- cum -Building Contractor has to all the proceedings at Government and Semi-Government and Municipal Corporation Office and in legal Courts and at other places on behalf of The Party of the First and Second Part on necessary applications and written statements, replies and in the forms all that is to be done by Developer- cum -Building Contractor and for that hereby the authority and powers are given to him in spite of that in future if any Specific Power of Attorney is to be obtained at that time. The Party of the First and Second Part shall have to execute that in favour of Developer- cum -Building Contractor. 16. By clause 14 of this Agreement the possession is to be with the Developer- cum -Building Contractor, i.e., assessee-firm and it reads as under: 14. The land described in schedule below and the construction done on it, its actual possession shall be with Developer- cum -Building Contractor till the completion of this scheme and moreover till the total implementation of this agreement on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c.; and that these expenses are incurred by the assessee-firm and the Assessing Officer has brought out the complete details year-wise in his assessment orders at page No. 5 reading as under : Sr. No. Particulars Financial Year Amount (Rs.) 1. VMC charges paid to Vadodara Municipal Corporation 2000-01 65,532 2. VMC charges paid to Vadodara Municipal Corporation 2001-02 31,116 3. VUDA charges paid to Vadodara Development Authority 2000-01 46,508 4. Electricity charges paid to GEB for getting electricity connection to its project 2000-01 1,99,944 19. The assessee commenced the work to develop which included the development of sites, laying roads within the housing complex, providing for compound-walls of the housing complex, streetlights, drainage, etc.; that simultaneously the construction commenced the work of the housing work; that the cost of the entire Development and the Construction is substantially made out by the assessee-firm initially and partially recovered from the customers who are desirous to purchase any residen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f profits in case of an undertaking developing and building housing projects approved by a local authority, shall be hundred per cent of the profits derived in any previous year relevant to any assessment year from such housing project if, ( a )such undertaking has commenced or commences development and construction of the housing project on or after the 1st day of October, 1998, and completes the same before the 31st day of March, 2001; ( b )the project is on the size of a plot of land which has minimum area of one acre; and ( c )the residential unit has a maximum built-up area of one thousand square feet where such residential unit is situated within the cities of Delhi or Mumbai or within twenty-five kilometers from the municipal limits of these cities and one thousand and five hundred square feet at any other place. 23. For enacting this provision, the Notes on Clauses to the Finance Bill, 1999 has explained that the provision also seeks to provide that for approved housing projects the profits which are fully deductible, the built-up area in regions other than outside twenty-five kms. of municipal limits of Delhi and Mumbai, does not exceed one thousand five hundr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oject was amended from time to time. Firstly, by Finance Act, 2000 with effect from 1-4-2000 extending the outer limit for completion of the housing project on or before 31-3-2002 as against 31-3-2001 originally enacted. This sub-section was again amended by Finance Act, 2003 removing the time-limit for completion of the project meaning thereby that for the assessment years 2002-03, 2003-04 and 2004-05, the assessment years with which we are concerned, there was no outer time-limit for completion of the project. There have been certain further amendments in this section by Finance (No. 2) Act, 2004 with effect from 1-4-2005, but we are not concerned with these amendments insofar as all these appeals are concerned. Therefore, we are not dealing with the same. 27. A bare reading of this provisions of section 80-IB(10), as they stood in the years under consideration, the requirements for claiming deduction for housing projects are that ( i ) there must be an undertaking developing and building housing project; ( ii ) such housing project is approved by the local authority; ( iii ) the development and construction of housing project has commenced on or after 1-10-1998; ( iv ) the hou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... housing project that is entitled to deduction irrespective of the fact whether that it is the owner or not or whether it is the contractor thereof. The requirement for claiming deduction is that such an undertaking must develop and build housing project, be it on their own land or on the land of others and for which a tripartite agreement has been entered into for development and building housing project; or be the assessee a contractor for developing and building housing project or an owner of the land. 30. What is the meaning of the term develop, developer, developing, development, we can find the answer in certain dictionaries, including the Law Dictionary. ( a )The Webster s Encyclopedia Unabridged Dictionary of the English Language gives following meanings of the term developer as: 1. One who or that which develops; 2. A person who invests in and develops the urban or Suburban potentialities of real estate. ( b ) Oxford Advanced Learners Dictionary of Current English Fourth Indian Edition gives meaning of the term developer as person or company that develops land. ( c ) Random House Dictionary of the English Language, the following definitions can be found : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permission has been obtained in the name of the registered landowners, but the same have been obtained by the assessee-firm through its partners who are holding Power of Attorney of the respective land-owners. It is a fact that the assessee is a Developer and not a Contractor as held by the lower authorities. The Developer is not working on remuneration for the land-owners, but Developer is working for himself in order to exploit the potential of its business in his own interest and, therefore, option for all business risks associated with the business of development of real estate including developing and building of housing projects. As per the provisions of section 2(1)( g ) of Regulation of Employment and Conditions of Service Act (27 of 1996), the term Contractor means a person who undertakes to produce a given result for any establishment, other than a mere supply of goods or articles of manufacture, by the employment of building workers or who supplies building workers for any work of the establishment; and includes a sub-contractor. 32. In these circumstances, in our opinion, the assessee is entitled to deduction under section 80-IB(10) as it had developed and built ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 2(47)( v ), which reads as under : (47) "transfer", in relation to a capital asset, includes, ( i )to ( iva ) ****** ( v )any transaction involving the allowing of the possession of any immovable property to be taken or retained in part performance of a contract of the nature referred to in section 53A of the Transfer of Property Act, 1882 (4 of 1882) ; or 35. Section 53A of the Transfer of Property Act, 1882 referred to in the aforesaid section of the Income-tax Act, reads as under : 53A. Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he mortgage was created by the assessee himself. It is not a case where the property had been mortgaged by the previous owner and the assessee had acquired only the mortgagor s interest in the property mortgaged and by clearing the same he had acquired the interest of the mortgagee in the said property. The questions raised by the assessee in the application submitted under section 256(2) of the Act do not, therefore, raise any arguable question of law and the said application was rightly rejected by the High Court. In the circumstances, even though we are unable to agree with the reasons given in the impugned order, we are in agreement with the order of the High Court dismissing the application filed by the assessee under section 256(2) of the Act." 38. The argument is totally misconceived as in the present case, the assessee has performed his part of the contract in regard to Agreement to Sale and Development Agreement and paid part of consideration to perform his part and carried out development activities by constructing a housing project as per agreement. This being a tri-party agreement, i.e., the Development Agreement which has passed on a valid and rightful title t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis that it had acquired dominion over the buildings. We will assume the correctness of the judgment but, on the facts found, it is not possible to reach the conclusion that the assessee had acquired dominion over the mills in question. There is nothing on the record which indicates this nor is that the finding of the Tribunal. 41. The Supreme Court in this case has considered the issue and finally found that there is nothing on record which indicated that the assessee had acquired dominion over the mills in question on which depreciation was claimed in order to the findings of the Tribunal available. In view of these facts, the Supreme Court has dismissed the appeal of the assessee. 42. We may refer to decisions referred to by the ld. counsel for the assessee in the case of Supreme Court in the case of Mysore Minerals Ltd. 239 ITR 775, wherein by relying on the decision of CIT v. Podar Cement (P.) Ltd. [1997] 226 ITR 625, the Supreme Court has elaborately discussed and defined the word "owner" and finally held as under: Section 32 of the Income-tax Act confers a benefit on the assessee. The provision should be so interpreted and the words used therein should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Stroud s Judicial Dictionary gives several definitions and illustrations of ownership. One such definition is that the "owner" or "proprietor" of a property is the person in whom (with his or her assent) it is for the time being beneficially vested, and who has the occupation, or control, or usufruct, of it; e.g. , a lessee is, during the term, the owner of the property demised. Yet another definition that has been given by Stroud is : " Owner applies to every person in possession or receipt either of the whole, or of any part, of the rents or profits of any land or tenement; or in the occupation of such land or tenement, other than as a tenant from year to year or for any less term or as a tenant at will ." In State of U.P. v. Renusagar Power Company [1991] 70 Comp. Cas. 127, 149 (SC) is, was held that "the word own is a generic term, embracing within itself several gradations of title, dependent on the circumstances, and it does not necessarily mean ownership in fee simple; it means, to possess, to have or hold as property ." In CIT v. Podar Cement (P.) Ltd. [1997] 226 ITR 625 (SC), the question which came up for consideration before this Court was whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the Income-tax Act and has to be taken as a trend-setter in the concept of ownership. Assistance from the law laid down therein can be taken for finding out the meaning of the term "owned" as occurring in section 32(1) of the Act. In our opinion, the term "owned" as occurring in section 32(1) of the Income-tax Act, 1961, must be assigned a wider meaning. Anyone in possession of property in his own title exercising such dominion over the property as would enable others being excluded therefrom and having the right to use and occupy the property and/or to enjoy its usufruct in his own right would be the owner of the buildings though a formal deed of title may not have been executed and registered as contemplated by the Transfer of Property Act, the Registration Act, etc. "Building owned by the assessee" the expression as occurring in section 32(1) of the Income-tax Act means the person who having acquired possession over the building in his own right uses the same for the purposes of the business or profession though a legal title has not been conveyed to him consistently with the requirements of laws such as the Transfer of Property Act and the Registration Act, etc., but ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty and/or to enjoy its usufruct in his own right would be the owner of the buildings though a formal deed of title might not have been executed and registered as contemplated by the Transfer of Property Act, the Registration Act, etc. In the present case before us, by virtue of Agreement to Sale and Development Agreement , the assessee has acquired dominion over the land to the exclusion of others and he has completed the project in terms and conditions laid down under section 80-IB(10) of the Act, to claim deduction on the profit derived from construction and development of residential housing project. There is no explicit condition enumerated in section 80-IB(10) of the Act as regards to requirement of ownership for the claim of deduction. In view of above facts and circumstances of the case as well as legal proposition laid down by the Supreme Court in the case of Mysore Minerals Ltd. ( supra ), we hold that the assessee is entitled for claim of deduction on the profit derived from Construction and Development of Residential Housing Project." [Emphasis supplied] 16. The facts involved in the case of the assessee are similar to the facts in the case of Radhe Develo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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