TMI Blog2012 (11) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER PER : D.K. TYAGI, JUDICIAL MEMBER All these appeals have been filled by the Revenue against the separate orders of ld. CIT(A)-IV, Ahmedabad dated 25.11.2009. As all the appeals belong to the same assessee and are on identical facts, the same were heard together and are being disposed of by passing a consolidated order by taking the facts of I.T.(SS) No.163/Ahd/2010 for A.Y. 2003-04. 2. The Assessee has taken following common grounds in all the appeals except the figures:- The ld. CIT(A) has erred in law and facts and circumstances of the case in deleting the addition made by A.O. of Rs.67,32,850/- on account of disallowance of deduction u/s 80IB of the Act. 3. During the assessment proceedings the A.O. disallowed the claim of deduction u/s 80IB of the Act of Rs.67,32,850/- on the ground that assessee has not fulfilled all the prescribed conditions laid down u/s 80IB of the Act. The A.O. has discussed this issue in paras 4 to 9 of his order and final finding is in paras 8 and 9 which read as under:- 8. To conclude, the deduction u/s 80IB (10) r.w.s. 80IB(1) and Rule 18BBB is admissible only to such assessee as are deriving profits from an undertakin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oration (unreported) wherein the Hon ble Tribunal reconfirmed the law and proposition laid down in Radhe Developers with the rider that the same cannot be universally applied without looking into the development agreement entered by the developers with the landowner. The Hon ble Tribunal in para 16 of the order has held as under:- (The relevant finding of the decision of M/s Shakti Corporation will be reproduced in the subsequent paras of finding, therefore to avoid repetiion it is not reproduced for sake of brevity) Considering the above decisions of the Hon ble Tribunal, your appellant seeks to establish by referring to the various terms of the development agreement and the attendant facts to show that the appellant in fact exercises the dominion of ownership over the land and subsequent control over the project. All risks and reward involved with the project vest with the developer and the landowner is only entitled to a fixed remuneration. The appellant has developed the various projects in the year under consideration particulars of which was submitted to the ld. A.O. vide its letter dated nil placed at page no.25 to 33 of the Paper Book wherein the appellant has sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over the possession and agreeing to accept the consideration have handed over by transfer the land under consideration to the developer even in terms of the Transfer of Property Act (Sec. 53A) and also in terms of sec. 2(47) of the I.T. Act. The developer is authorized to further transfer the land along with construction in favour of any other person and that landowners have no control or right over the developer on handing over the possession. Thus the risk and reward as also the right of ownership are vested in the developer and it is thus stated that the appellant has established to have complied with the requirements as laid down by the Hon'ble .Tribunal in. the case of Shakti Corporation referred above. In view of the above submission, the Id. A.O. may please be directed to allow the claim of deduction u/s. 80IB as made in respect of the project developed on these plots of land, the particulars of which is submitted to the Id.AO. as mentioned above and the copies of the complete particulars is placed at Page Nos. 34 to 79 of the Paper Book. 5. After taking into consideration these submissions of the assessee Ld. CIT(A) allowed the appeal of the assessee by holding that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assessing Officer was well aware of the decision of Hon'ble Ahmedabad Tribunal in the case of M/s Radhe Developers Ors. vs. I.T.O. Ors. 113 TTJ (Ahd) 300, he disallowed the claim of the appellant u/s 80IB(10) of the Act ignoring the decision of the Jurisdictional Tribunal. The Ahmedabad Tribunal is consistently following the aforesaid decision of M/s Radhe Developers (supra). My predecessor in various cases of the jurisdiction of the same Assessing Officer had allowed the deduction u/s 80IB(10) of the Act by relying on this decision. I have also requested the Assessing Officer vide letter dated 05.10.2009 to state as to how the case of the assessee is not covered by the decisions of the Ahmedabad Tribunal vcases of M/s Radhe Developers and M/s Shakti Corporation ITA No. 1503/Ahd./2008. However, as usual he has totally ignored this particular point on which a specific report was called for while sending his report dated 03.11.2009. The deduction under any provisions of the Act including the provisions of sec. 80IB(10) of the Act cannot be disallowed only by ignoring the decision of the Jurisdictional Tribunal but can only be disallowed if, the conditions laid down therein are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oper, as well. The term contractor is not essentially contradictory to the term developer. The assessee is a 'developer1 and not a 'contractor1 as held by the lower authorities. The developer is not working on remuneration for the landowners, but developer is working for himself in order to exploit the potential of its business in his own interest and, therefore, for all business risks associated with the business of development of real estate including developing and building of housing projects. 4.3 The above principle laid down in the case of Radhe Developers (supra) was also endorsed by the Hon'ble Ahmedabad Tribunal in the unreported case of ITO Ors. vs. Shakti Corporation Ors. vide order dated 07.11.2008 in ITA No. 1503/A/2008. The relevant finding of the aforesaid decision of Shakti Corporation Ors. (supra) is reproduced here under for the sake of convenience: The facts involved in the case of the assessee are similar to the facts in the case of Radhe Developers (supra) and accordingly, we are of the view that the assessee has acquired the dominance over the land and has developed the housing project by incurring all the expenses and taking all the risks involve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of M/s Radhe Developers Ors. vs. I.T.O. Ors. (supra) and also the subsequent decision in the case of Shakti Corporation (supra), I am of the opinion that the appellant firm had fulfilled all the conditions laid down in sec. 80IB(10) of the Act and was entitled to the deduction u/s 80IB(10) of the Act. The Assessing Officer was thus not justified in denying the deduction u/s 8018(10) of the Act to the appellant firm. His finding so recorded is thus cancelled and deduction u/s 80IB(10) of the Act is allowed to the appellant firm. The addition made for Rs.67,32,850/- is hereby deleted. The second ground of appeal is accordingly allowed. 6. After hearing both the parties and perusing the record we find that during the assessment proceedings the A.O. has disallowed the deduction u/s 80IB(10) of the Act claimed by the assessee only on the ground that assessee is not the owner of the land and the approval of local authority is not in the name of the assessee but in the name of the land owners and thus the conditions laid down u/s 80IB(10) are not fulfilled. However, in appellate proceedings, ld. CIT(A) found after carefully going through the relevant clauses of development agree ..... X X X X Extracts X X X X X X X X Extracts X X X X
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