TMI Blog2015 (7) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... on u/s 80IB (10) of the IT Act on pro rata basis. However, we have held that the extension of the 4 units is not done by the assessee and that open area is not part of balcony/verandah, therefore, according to the submission of the assessee, the built up area of the assessee was within the prescribed limit, therefore, there is no need to give further finding with regard to alternate claim of the assessee. Considering the facts of the case in the light of the above decisions, we are of the view the issue is fully covered in favour of the assessee. We are of the view that assessee fulfilled the conditions and requirements of section 80IB (10) therefore, the claim of the assessee for deduction should not have been denied by the authorities below. We direct the AO to grant deduction to the assessee u/s 80IB (10) of the IT Act as claimed by the assessee. - Decided in favour of assessee. - ITA No. 1968/Ahd/2011 - - - Dated:- 30-4-2015 - Shailendra Kumar Yadav, JM And Anil Chaturvedi, AM,JJ. For the Appellant : Shri D P Gupta, CIT-DR For the Respondent : Shri P M Mehta, AR ORDER Per Shailendra Kumar Yadav, Judicial Member This appeal has been filed by the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PB-80 to 104 with both the societies for development and construction of residential housing project and it provides that the assessee has purchased all substantive development rights which includes all other rights for consideration of ₹ 30,76,675/- and ₹ 1,02,08,853/-. The same is also debited in the profit loss account of the assessee. The sale consideration is not disputed and the confirmation of the societies from their accounts, copies of their bank account and copy of the bank account of the assessee and ledger accounts from the accounts of the assessee have been filed on record. It is also claimed that the assessee has also entered into agreement to sell the land with the societies on 23-5-2006 which is mentioned in the submission of the assessee reproduced in the assessment order as well as in the statement of facts filed before the Tribunal. The development agreements entered into by the assessee was over and above the agreement to sell to acquire the aforesaid 4 rights and domain over the land in question. According to the development agreements it was the responsibility of the assessee for planning, sanction of the building plan, work of construction, deve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the total sale proceeds in the books of accounts of the assessee. The facts of the case and evidences on record would prove that the assessee entered into development agreements and agreement to sell with the societies for consideration. All the responsibilities for carrying out construction, permission and development of the project lie with the assessee. The real owner of the land i.e. societies was only to co-operate with the assessee in carrying out the development and to execute necessary documents whenever required by the assessee as a developer. The societies have handed over physical possession of the land to the assessee as a developer for carrying out development of housing project. The societies were not left with any right, interest or title in the development which was carried out by the assessee. The motives of the societies were not to develop, construct or carrying out any business as a builder or developer and practically nothing was left with them. For all intent and purposes, the assessee has acquired dominant rights over the land and the assessee can deal in the land in the manner in which the assessee might have liked. The terms and conditions entered into b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Associates (supra) and it was held that the authorities below were not justified in rejecting the claim of the assessee by taking the open terrace as balcony/verandah. It was, therefore, held that open terrace cannot be included in the built up area. With regard to the discrepancy of survey numbers mentioned in the approval and B. U. permission issued by AUDA, learned Counsel for the assessee explained that there was inadvertent mistake in English translation and if the original is taken into consideration no discrepancy is noted. The learned Counsel for the assessee explained that development permission was received for various survey numbers which was jointly received by the assessee along with other persons for a greater area but the assessee was granted permission to construct in 17938 sq. m. of area for 324 residential units only. The survey numbers of the land in question match with the development agreements etc. as is clarified by the learned Counsel for the assessee. In brief, the same are mentioned at PB-91, 95 and PB- 103A. Since the approval of the development was granted for 324 residential units and on the same basis Building Use permission is granted for 324 residen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts in favour of the assessee, more so, when the assessee entered into agreements for developing the whole of the property. Therefore, objection of the authorities below, the name of the assessee is not mentioned in the permission or survey numbers are different, are not sustainable in law. The facts of the case, if considered in the light of the decisions of ITAT Ahmedabad Bench in the cases of Radhe Developers, Shakti Corporation and M/s. Amaltas Associates (supra), we are of the view the issue is now fully covered in favour of the assessee for grant of deduction u/s 80IB(10) of the IT Act because the assessee has acquired dominant right over the land and has developed the housing project by incurring all the expenses and taking all risks involved thereof. The crux of the matter would be that assessee has acquired the land in question and has developed the housing project at its own cost as per the requirement of section 80IB (10) of the IT Act. Therefore, we are of the view the assessee would be entitled for deduction u/s 80IB (10) of the IT Act. As regards alternate contention of the assessee with regard to pro rata deduction, the issue is already decided in favour of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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