TMI Blog2015 (9) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... of the authorities below are thus devoid of legally sustainable merits. In view of the above discussions, and bearing in mind entirety of the case, we are of the considered view that the stand of the authorities below, in declining deduction under section 80IB (10) and on the facts of this case, is incorrect. We vacate the same and direct the Assessing Officer to delete the disallowance. - Decided in favour of assessee. Disallowance u/s 40(a)(ia) - Held that:- It is not in dispute, in the light of a series of judgments of Hon’ble jurisdictional High Court, that the amendment brought to Section 40(a)(ia), which provides that as long as the taxes deducted at source have been deposited before the due date of filing return under section 139(1), disallowance under section 40(a)(ia) cannot be invoked for delay in depositing the tax deducted at source, is only clarificatory in nature and it will also apply to the assessment years prior to the assessment years 2010-11 as well. There is no dispute that on the facts of this case, the taxes were deposited in May 2006, as is the categorical finding in paragraph no. 17 of the order passed the CIT(A), which was well before the due date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvested no amount with respect to purchase of Iand. In the Shakti Corporation case Hon ble ITAT found that the land has been purchased as well as developed by the appellant, but this is not the case here. Vide written submission dated 24.11.2009 it was once again stated that the appellant had not purchased lands but the lands owned by the other persons have been developed in terms of Development Agreement. Development Agreement dated 2.7.2003 was entered by the appellant with the land owner Shri Ramabhai Chaturdas Patel for construction of the housing project known as Someshwar and another Agreement dated 2.4.2004 was entered with Shri Parsotambhai Joitaram Patel for construction / development of the housing project known as Someshwar Part 2. The perusal of the Development Agreements shows that the projects were built by the appellant, bearing all costs and the profit margin would be apportioned by the developer (this is clear from clause 13 or the Development Agreement), but at the very beginning of the Development agreement it has been mentioned that the Owner of the land is not the Developer, that the developer (appellant) had been appointed to develop / build by constructing te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the land owners. The disallowance made by the AO u/s. 80IB(10) (on the grounds summarized in para 5 above) is therefore confirmed. 4. The assessee is not satisfied and is in further appeal before us. 5. We have heard the rival contentions, perused the material on record and considered facts of the case in the light of the applicable legal position. 6. We find that, in the case of CIT Vs Radhe Developers [(2012) 341 ITR 403 (Guj)] , Hon ble jurisdictional High Court had an occasion to consider the issue of ownership of land, on which housing project is developed, in the context of eligibility of deduction under section 80IB(10). Hon ble jurisdictional High Court has, in this context, inter alia observed as follows: 32. Sec. 80-IB(10) of the Act thus provides for deductions to an undertaking engaged in the business of developing and constructing housing projects under certain circumstances noted above. It does not provide that the land must be owned by the assessee seeking such deductions. 33. It is well settled that while interpreting the statute, particularly, the taxing statute, nothing can be read into the provisions which has not been provided by the leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al world even as, in substance, the fundamental character of the business remains the same, but certainly such modalities or complexities of business models cannot come in the way of eligibility for an incentive which is for the purpose of developing and building a housing project . There is no justification, conceptual or legal, in restricting eligibility of deduction under section 80IB(10) to any particular business model that an entrepreneur adopts in the course of developing and constructing housing project. 8. As regards learned CIT(A) s reliance on the decision of a larger bench of this Tribunal, in the case of B T Patil Sons (Belgaum) Constructions Pvt Ltd vs ACIT [(2010) 1 ITR (Tribunal) 703 (Mum)] , what has been referred to by her is the view of the three member bench resolving the point of difference between the members of the division bench. However, this view was stillborn, and its relevance is confined to academic significance, for the reason that that while giving effect to the majority view, vide order dated 28th February, 2013 and on somewhat peculiar fact situation in this case, the final order of the Tribunal did not endorse these views. Quite to the contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the month of May 2006. Aggrieved by the disallowance so made, assessee carried the matter in appeal before the CIT(A) but without any success. The assessee is not satisfied and is in further appeal before us. 13. We have heard the rival contentions, perused the material on record and duly considered facts of the case in the light of the applicable legal position. 14. As the things stand now, it is not in dispute, in the light of a series of judgments of Hon ble jurisdictional High Court, that the amendment brought to Section 40(a)(ia), which provides that as long as the taxes deducted at source have been deposited before the due date of filing return under section 139(1), disallowance under section 40(a)(ia) cannot be invoked for delay in depositing the tax deducted at source, is only clarificatory in nature and it will also apply to the assessment years prior to the assessment years 2010-11 as well. In the case of CIT Vs Omprakash R Chaudhury Others (TA No. 412 of 2013; judgment dated 22nd November 2013) , Hon ble jurisdictional High Court has, inter alia, observed as follows: .we answer the substantial question of law raised in these appeals in favour of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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