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Income Tax Officer, Ward-9 (2) , Ahmedabad Versus M/s. Mudra Builders

2015 (10) TMI 1599 - ITAT AHMEDABAD

Disallowance u/s.80IB(10) - CIT(A) allowed the claim - Held that:- We find that the ld.CIT(A) has given categorical finding that the assessee has met the test laid by the Coordinate Bench in the case of Shakti Corporation (2008 (10) TMI 550 - ITAT, AHMEDABAD) and also the risk and consequences in developing the project are borne by the assessee. Reliance is also placed on the judgement of Hon’ble Gujarat High Court rendered in the case of CIT vs. Radhe Developers [2011 (12) TMI 248 - GUJARAT HIG .....

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ed 26/05/2011 pertaining to Assessment Year (AY) 2008-09. The Revenue has raised the following grounds of appeal:- 1). The ld.Commissioner of Income-tax(A)-XV, Ahmedabad has erred in law and on facts in deleting the disallowance amounting to ₹ 81,88,289/- made by the Assessing Officer u/s.80IB(10) of the Act. 2). The ld.Commissioner of Income-tax(A)-XV, Ahmedabad has erred in holding that the assessee fulfills the conditions laid down for claiming deduction u/s.80IB(10) even when the land .....

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per. 3). On the facts and circumstances and in law, the ld.CIT(A)-XV, Ahmedabad ought to have upheld the order of the Assessing Officer. 4). It is therefore, prayed that the order of the ld.Commissioner of Incometax( A)-XV, Ahmedabad may be set-aside and that of the Assessing Officer be restored. 2. 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 .....

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imesh Yadav vehemently argued that the ld.CIT(A) was not justified in allowing the claim of the assessee for deduction u/s.80IB(10) of the Act. He submitted that the AO had disallowed the claim by observing that the assessee does not fulfill the requisite conditions. He submitted that under the identical facts, the Coordinate Bench of this Tribunal (ITAT A Bench Ahmedabad) in the case of ITO vs. M/s.Krishna Developers in ITA No.24/Ahd/2011 for AY 2007-08, dated 17/05/2013 was pleased to restore .....

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itted that the finding of the AO is contrary to the records. 4. We have heard the rival submissions, perused the material available on record and gone through the orders of the authorities below. We find that the AO in assessment order declined the deduction u/s.80IB(10) of the Act by the following reasons:- 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 required by th .....

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e the assessee is merely a contractor for the purposes of construction of the project. 3. The assessee has not sold any unit to the purchaser but the Society has executed the sale deeds as a seller and the assessee joined only as a confirming party to the transaction. 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 th .....

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, one acre of land condition, 1500 sq.ft. built up area condition of each unit I the project and that of percentage of construction for commercial use. His objection is that the appellant is not the owner of the land. This objection of the AO has to be seen in the light of the tests laid down by Hon ble ITAT Bench A Ahmedabad decision in the case of M/s.Shakti Corporation, Baroda in ITA No.1503/Ahd/2008 in AY 2005-06 wherein Hon ble ITAT has held that where the appellant is found having practica .....

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