9911796707
TMI Blog2012 (5) TMI 568X X X X Extracts X X X X X X X X Extracts X X X X ..... of 80IB(10) of the I.T. Act. 2. Facts in brief as emerged from the corresponding assessment order passed u/s.143(3) of the I.T. Act, 1961 dated 24/12/2008 were that the assessee-firm is stated to be in the business of development of real estate and construction of residential housing project. It was noted by the Assessing Officer that the profit earned by the assessee at Rs. 25,85,920/- and after claiming the deduction u/s.80-IB of the I.T.Act the NIL return was declared. The Assessing Officer has noted that the land remained with the land owners and the permission for construction was also granted in the name of the land owners as per the following details. "i. 17-05-2005 - the land owner Smt.Purnimaben J Panchal has executed power of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the land is under the possession of the appellant firm. The appellant firm was the defacto land owner for all practical purposes and had developed the housing project by incurring all the expenses and taking all the risks involved therein. The appellant firm was not merely a contractor of the land owner for fixed remuneration. The land owners were eligible to get only price of land fixed by the development agreements and not to get any share in the development profits of the project The appellant had thus fulfilled all the conditions laid down in sec.80IB(10) of the Act. 3.5. In view of the above discussion in para-3.2 to para-3.4 and respectfully following the decision of the Hon'ble Ahmedabad Tribunal in the case of M/s. Radhe Dev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (10). Those requirements have to be fulfilled by a developer to stake a claim of deduction. The requisite information is not available on record. We have noticed that the said requisite information was not even examined by the Revenue Authorities in the light of the High Court decision. The guidelines given by the Hon'ble High Court can be summarized as follows:- (a) The relevant terms of development agreement are to be examined so as to ascertain the terms on which the assessee was granted right of construction of a housing project. (b) On the basis of the terms and conditions, it has to be ascertained whether it was a "work contract" or a "Development Contract". (c) On the basis of the terms and conditions, it has to be examined th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... institutions. (l) The risk element connected with the said housing project has also to be examined. (m) The Assessing Officer has to examine the size of the plot on which project is constructed. (n) The Assessing Officer has to examine built-up area of sanctioned unit whether will in the prescribed limit. 7. In addition to the above guidelines, once the matter is going back for reconciliation, then the agreements connected to the land and the details of the approval granted by the local authority permitting to develop the housing project can also be examined if deem fit. Since the Hon'ble High Court has given the verdict in favour of the assessee after due ascertainment of these basic facts, therefore it is appropriate first to place o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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