TMI Blog2015 (9) TMI 645X X X X Extracts X X X X X X X X Extracts X X X X ..... is to be adopted by the Revenue authority while framing the assessment. In the present case, the Revenue has not brought out any new material on the basis of which a different view has been taken for the year under consideration. The construction of any agreement cannot be different in two different assessment years, therefore the orders of the authorities below rejecting the claim of deduction u/s.80-IB(10) of the Act cannot be confirmed, more particularly in the light of the judgement of the Hon’ble Gujarat High Court rendered in the case of CIT vs. Radhe Developers reported at (2011 (12) TMI 248 - GUJARAT HIGH COURT ) - Decided in favour of assessee. - I.T.A. No. 496/Ahd/2011 - - - Dated:- 13-11-2014 - Shri Anil Chaturvedi And S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to add, alter, amend or withdraw any grounds of appeal on or before hearing of the appeal. 2. The only effective ground in this appeal is against the disallowance of claim of the assessee for deduction u/s.80-IB(10) of the IT Act. 2.1. Briefly stated facts are that the case of the assessee was picked up for scrutiny assessment and the assessment u/s.143(3) of the Income Tax Act,1961 (hereinafter referred to as the Act ) was framed vide order dated 23/12/2009, thereby the Assessing Officer (AO in short) disallowed the claim of the assessee made u/s.80IB(10) of the Act. Against this, the assessee filed an appeal before the ld.CIT(A), who after considering the submissions and the facts on record, dismissed the appeal of the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come eligible for claiming the deduction u/s.80-IB(10) of the Act. He submitted that the authorities below have found under the facts of the present case that the assessee is not a developer but merely a work contractor and had carried out the contract of construction as per direction and instructions of the landowner. 4. We have heard the rival submissions, perused the material available on record and gone through the orders of the authorities below. The AO has summarized the reason for disallowing the claim of the assessee in para-3.27 as under:- 3.27 It is, therefore, held that the assessee is not eligible for deduction under section 80IB for the following reasons. 1. The Assessee is not both developer and builder as requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is also known as completion plan and without the completion plans in this case it is not possible to understand the very fundamentals of the case like the land area, survey numbers involved, built-up area of the constructed units, number of constructed units and whether any terraces or extra space has been given to the unit holders which does not find mention in BU permission. The approved plan is the spinal cord of any project and the appellant failed to furnish it despite opportunities given. In its absence of other conditions mentioned from clause (b) to clause (d) cannot be commented upon by this office. The appellant also fails the test laid down by Hon ble ITAT Bench A Ahmedabad in their decision in the case of Shakti Corporatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er-book is enclosed the assessment pertaining to the AY 2006-07, wherein also the AO also allowed the claim of the assessee of deduction u/s.80IB(10) of the Act. Facts are identical and project is also same and the Revenue has not pointed out as to how the claim that was allowed in earlier years and under the same facts and circumstances would be disallowable in the year under consideration. It is settled position of law that every year is an independent year, however, the rule of consistency is to be adopted by the Revenue authority while framing the assessment. In the present case, the Revenue has not brought out any new material on the basis of which a different view has been taken for the year under consideration. If the assessee was d ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
