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TMI Blog2015 (9) TMI 645X X X X Extracts X X X X X X X X Extracts X X X X ..... red in dismissing the appeal by not properly appreciating the facts of the case as well as submissions made by the appellant firm during the course of appellate proceedings. 2. On the facts and in the circumstances of the case, the Ld.CIT(Appeals) has grossly erred in considering the appellant as contractor and not developer. The AO may be directed to consider the appellant as developer of the housing project and allow the legitimate claim of deduction u/s.80IB(10) of the Act to the tune of Rs. 48,49,520/-. 3. On the facts and in the circumstances of the case, the Ld.CIT(Appeals)-XV has grossly erred in not considering the total investment made in the development of the housing project by the appellant in view of the Circular No.5/2010. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 05-06 and the AY 06-07 under the scrutiny assessment. He submitted that the case has not been re-opened pertaining to those assessment years. He submitted that the ld.CIT(A) failed to appreciate the fact that development permission are issued by the concerned authority for each block of unit and not as a whole of the project. He submitted that the ld.CIT(A) also failed to appreciate the fact that the assessee-firm had invested substantial amount i.e.more than 75%. He submitted that the assessee-firm perceived the project and have dominant control over the project. He also submitted that all risks and rewards are borne by the assessee. 3.1. On the contrary, ld.Sr.DR supported the orders of the authorities below and submitted that every year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... executed the agreement for allotment of units as a seller and the assessee has carried out the construction as per the agreement entered into by it with the members. This also proves that the assessee was merely a contractor/agent of the society. 4. As per the Amendment to section 80IB by the Finance Act, 2009, a works contractor who executes the work awarded by any person is not eligible for the deduction u/s 80IB. Any person includes the Luvkush Bunglows (Naroda) Co-op. Hsg. Society Ltd, which is a legal entity. " 4.1. We also find that the ld.CIT(A) has confirmed the action of the AO by observing as under:- "17. The above discussion shows that the appellant violates the condition stipulated in clause (a) of section 80IB(10) as it fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. It constructed the units as per the plan prepared by the architect made annexure of each construction agreement. For its services the appellant had to deposit service tax as per clause of the construction agreement to the central government. As per Explanation inserted below section 80IB(10) w.r.e.f 01.04.2001 an undertaking executing a works contract awarded by anybody is not entitled to the deduction. The appellant executed works contract. The disallowance made by the AO of Rs. 48,49,520 is thus upheld." 4.2. The contention of the assessee is that in earlier years claim of the assessee was allowed by the Department in scrutiny assessment. The ld.counsel for the assessee has drawn our attention towards page-7 of the paper-book, wherein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee that it was bearing all risks and consequences arising from the contract were not correct. In fact, the AO has stated these stipulations are only intended to make the Society toothless but they cannot convert by any stretch of imagination an agreement for construction into a conveyance deed in the eyes of the law. It is not disputed that such terms and conditions were in the agreement in the earlier years also. On the basis of such terms the assessee was found to have fulfilled the conditions as envisaged u/s.80IB(10) of the Act. In our considered view, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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