TMI Blog2012 (7) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... efit under Section 80IB(10) - as the builder has invested the money in the construction, it is after completion of the building in terms of the agreement, the assessee was given 22% share of the building area. It is after sale of the built area, in terms of Section 80IB (10), the assessee is claiming deduction - it is clear from the joint development agreement, the undertaking of developing and building housing project was jointly undertaken by the assessee and the builder the persons who undertook this undertaking are entitled to the benefit of Section 80IB(10) in proportion to the share to which they are entitled to in the built up area - against revenue. - IT APPEAL NOS. 421 AND 422 OF 2009 - - - Dated:- 28-2-2012 - N. KUMAR AND RAVI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Rs. 45,00,000/-and to deliver 22% of the super built area to the consenting witness, namely the assessee. As a consequence of the agreement, the assessee firm got the land converted into non-agricultural land and got the work commencement letter dated 11.05.1999 from the Byatarayanapura City Municipal Corporation. On 30.03.2001 another joint development agreement was made wherein the earlier agreement was improved by retaining the same terms and conditions. A further supplement agreement was made on 20.04.2001 in which the modalities for dividing the super built area were mentioned. Out of the total 211 flats that were to be constructed as per the projects, 40 flats in different blocks were allotted to the assessee. The assessee sold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the assessee has not developed and built the project on its own, the Commissioner of Income Tax (Appeals) held that the assessee is not entitled for deduction. Aggrieved by the aforesaid two orders, the assessee preferred an appeal to the Tribunal. The Tribunal held that the assessee not only obtained the permission/sanction for the construction but also has done the work of making the land useful for the apartment construction, providing roads, supervising the construction activity along with Purvankara Projects Ltd. Therefore, the assessee is an integral part of the development and construction activities. The assessee is not merely the land owner who had agreed to part with the land. Normally, once the land is transferred to the develo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... using project, which attracts the provision. In the order passed by the Commissioner of Income Tax (Appeals), the development and construction activities undertaken by the assessee are listed. They are: ( i ) Obtaining khatha from municipality; ( ii ) Obtaining plan sanction for construction of apartment on the said property by the local authority; ( iii ) Making the land usable for the purpose of apartment construction by providing proper road and to give an approach to the site; ( iv ) Jointly supervising the construction of the apartments buildings; ( v ) Marking the apartments falling to the share of the assessee; ( vi ) Also undertaking the levelling the road and removal of rocky surface in the said land and made it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. In that view of the matter, the contention of the revenue that the assessee did not undertake any developmental or building activity and therefore, he cannot individually claim the benefit has no substance. That is not the requirement of law. Keeping in mind, the object with which this provision is introduced when all persons who have made investments in this housing project which is for the benefit of middle and lower class people and, when they have complied with all the conditions prescribed under the aforesaid provision, both of them are entitled to hundred percent benefit of tax deduction as provided under the said provision. In that view of the matter, we do not see any merit in these appeals. The substantial question of law i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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