TMI Blog2014 (3) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... s undertaken the construction as per plans approved by Local Authority - The assessee developer has paid fees to the Architects and Engineers. The assessee has carried out and admitted the members - The land owner has agreed to give necessary signature, agreements, and even power of attorney to facilitate the work of the developer - the assessee has undertaken the entire task of development, construction and sale of the housing units to be located on the land belonging the original land owners - as per the sale agreement the developer was given full power of attorney and the land owner was given Rs. 95 lakhs in consideration of the property – the assessees were entitled to the benefit u/s 80IB(10) even where the title of the lands had no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t purchased/booked in respect of the Project. On the basis of details furnished, it is noticed that there are certain allotments which are not as per the conditions specified 80IB(10)(e) (f). Moreover, on the basis of details furnished by the assessee firm, it is seen that the approval of the plans for the 80IB project CD Scenic Acres is in the name of Shri Nilesh Anant Naik, land owner of the said plot, which is evident from the South Goa Planning Development Authority, and Licence from Margao Municipal Council, Margao. It was noticed that the approval from the local authority for the housing project, undertaken by the assessee firm, for which deduction claimed u/s. 80IB is neither in the name of the firm nor in the name of the partner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Nilesh Anant Naik and the promotion for construction is in the name of the Nilesh Anant Naik. Therefore, Section 80IB (10) can be allowed only to the owner of the property. 5. On the other hand, the learned AR relied upon the order of the CIT(A). We have also relied upon the decision of CIT vs. Mahalakshmi Housing Society 41 Taxman. 146 (Mad), CIT vs. Sanghvi Doshi Enterprise 29 Taxman 386(Mad), CIT vs. Radhe Developers 17 Taxman, 156/341ITR 403(Guj), CIT vs. Prathama Developers 32 Taxman 336 (Guj), Radhe Developers 32 taxman 113 ITJ 300 (Ahd). 6. The learned AR submitted that the as per the requirement of section 80IB (10) is approval for the project and benefit the deduction is available to the undertaking which developing and b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and we have gone through the terms of agreement and as per the condition No.9 of the agreement to sale the prospective vendee shall get the plans drawn for construction of Villas row villas and Apartment in the said property as they deemed fit and proper seek approvals from statutory authority including the Margaon Planning and Development Authority, PWD, Margao Municipal Council. The prospective vendors shall cooperate with the prospective vendee in obtaining the required approvals, no objection certificates, permissions etc. and in getting water and electricity connections for purposes of construction and thereafter for premises built in the said plot. The prospective vendors have to execute a power of attorney in favour of prospective v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per was given full power of attorney and the land owner was given Rs. 95 lakhs in consideration of the property. The developer was given power to sell, transfer of Row Villas and to receive the consideration amount, and all the risk was taken by the builder, therefore, in our opinion the decision of Gujrat High Court in the case of CIT vs. Radhe Developers is applicable to the facts of the case of the assessee. In the case of Radhe Developers (supra) has decided the appeal by observing as under: 36. We have noted at some length, the relevant terms and conditions of the development agreements between the assessees and the land owners in case of Radhe Developers, We also noted the terms of the agreement of sale entered into between the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the entire task of development, construction and sale of the housing units to be located on the land belonging to the original land owners. It was also agreed between the parties that the assessee would be entitled to use the full FSI as per the existing rules and regulations. However, in future, rules be amended and additional FSI be available, the assessee would have the full right to use the same also. The sale proceeds of the units allotted by the assessee in favour of the members enrolled would be appropriated towards the land price. Eventually after paying off the land owner and the erstwhile proposed purchasers, the surplus amount would remain with the assessee. Such terms and conditions under which the assessee undertook the develo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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