TMI Blog2013 (11) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... uyers of the residential units. The assessee had also paid cost of the land to the Societies including stamp duty and had taken possession of the land for construction of the project. As per the decision of the Hon'ble Gujarat High Court in the case of Radhe Developers, supra, the legal title is not required for getting benefits u/s 80 IB (10) of the Act. The assessee was deemed owner of the land u/s 2 (47) of the Act. The assessee had borne all the cost of construction including materials and the receipt was not fixed for the contractor. The assessee is a developer and builder of housing project – Decided against the Revenue. - ITA No.2570/Ahd/2010, C. O. No.311/Ahd/2010 - - - Dated:- 6-9-2013 - Shri D. K. Tyagi, JM And Shri T. R. Meena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of M/s. Shakti Corporation and accordingly the Ld. CIT(A) has rightly allowed the deduction u/s. 80 IB(10) of the Act of Rs.4,62,69,270/- in favour of the Respondent." 4. First we take up the revenue's appeal wherein both the grounds of appeal are interlinked relating to deduction u/s 80 IB (10) of the Act and conditions precedent for it. The AO observed that during the year under consideration the assessee firm had constructed a housing project and had shown net profit of Rs.4,62,13,330/-. After disallowing Rs.57,111/- u/s 40(a) and excluding dividend income of Rs.1,171/- in the computation, the assessee had claimed deduction of Rs.4,65,69,270/- at 100% of its profit u/s 80IB (10) of the Act stating that it was entitled to ded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o construct the housing units on behalf of the assessee as per the terms narrated in the agreement according to approved plan of the society. It was found by the AO that the assessee was not owner of the land but the land was in the name of the society for construction of housing units. The AO gave reasonable opportunity of being heard to the assessee on this issue which was replied by the assessee vide letter dated 24-12-2009 which was considered by the AO. Finally, the AO concluded as under: "1. The Assessee is not both developer and builder as required by the provisions of section 80 IB (10). Assessee is not a developer because the assessee did not conceptualize and own the project in as much as the assessee is not the owner of the lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hikhar Developers in ITA No.854/Ahd/2010 for the assessment year 2007-08 dated 31-05-2012 wherein also the Tribunal has decided identical issue by setting aside the matter to the AO for verifying the terms conditions as per the direction of the Hon'ble Gujarat High Court in the case of Radhe Developers 329 ITR 01 (Guj.). On the other hand, the assessee relied upon the order of the CIT(A) and also filed written reply and claimed that the dominant control over the project was with the assessee and the cost, reward and risk are with the assessee. The assessee is a developer and builder. The assessee had made payments for the land to the Societies, booked the units to the members for purchase of residential units, collected the consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case, the assessee had taken full responsibility for execution of the said development project. The assessee has been given full authority for execution of the said development project including development of the land and construction of residential units. The assessee had engaged professionals such as architect for designing architectural work. The assessee had also enrolled the members and collected the consideration from the buyers of the residential units. The assessee had also paid cost of the land to the Societies including stamp duty and had taken possession of the land for construction of the project. As per the decision of the Hon'ble Gujarat High Court in the case of Radhe Developers, supra, the legal title is not required ..... X X X X Extracts X X X X X X X X Extracts X X X X
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