TMI Blog2015 (11) TMI 1208X X X X Extracts X X X X X X X X Extracts X X X X ..... s the Act) on 25.9.2007 by ITO, Wd-9(1), Ahmedabad. Assessee has raised following grounds of appeal :- 1. The ld. CIT(A) erred in law and on facts in determining the appellant role was supervision contractor on fixed rate and ignored the cogent evidence and thereby rejected the deduction u/s 80IB(10) of the Act where the appellant case covered by Shakti Corporation. 2. The ld. CIT(A) erred on facts in misconstrue the facts of instant case and ignored the clear direction of Hon ble ITAT in regard to land investment and domain over the project, which had been with the appellant, so the same is not tenable in the eye of law. The appellant requests that leave be granted to add, alter or amend any of the grounds of appeal on or before the final hearing of the appeal. 2. Briefly stated the facts of the case are that the assessee is a partnership firm carrying out business of construction and development of land for housing project(s). It filed its return of income on 31.08.2005 declaring total income of ₹ 36,890/- for AY 2005-06, along with audit report in form No.10CCB claiming deduction u/s 80IB(10) of the Act. The case was selected for scrutiny assessment under CASS. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant is entitled to development charges at the rate of 23% on project cost and labor charges at 700/- per sq.mts. as per the condition no.16 of the said agreement. 4) The appellant has been maintaining complete books of account along with vouchers for expenses, bill etc, regularly and got it audited. 5) The appellant has furnished the return of income for the year under consideration along with audit report. TDS certificates etc., on total income at ₹ 95776/- after claiming a deduction of ₹ 4516771/- under the provisions of section 80IB(10) of the Income-tax Act. 6) During the course of assessment proceedings, appellant had furnished all the details called for by the ld. AO including agreement of construction and development. The ld. AO has verified the books of account vouchers, bills etc. completely. 7) That the ld. AO had not accepted the claim of appellant on the ground as indicated in para no.5 of assessment order and determined the appellant s total income at ₹ 18,07,624/- by making following addition in the returned income. It is in this backdrop of fact, appellant respectfully submit as under :- The ld. AO has grossly erred on fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee s own case before the Tribunal for AYs 2000-01, 2001-02 2006-07 which were decided in favour of assessee by the Tribunal in ITA Nos.1991, 1992 1993/Ahd/2011 vide its order dated 9.6.2011 (copies of orders placed on record). 5. On the other hand, the ld. DR relied on the orders of lower authorities and conceded that similar issues in assessee s own case have been decided by the Tribunal as per the orders referred by the ld. DR. 6. We have heard the rival contentions and gone through the facts and circumstances of the case, as well as the orders passed by the co-ordinate Bench on identical issues in assessee s own case, on single issue of allowability of deduction under section 80IB(10) in relation to profit from housing projects constructed by the assessee. The order passed by the co-ordinate Bench in ITA Nos.1191,1192 1193/Ahd/2011 dated 9.6.2014 is the latest order which has also discussed the order passed by the co-ordinate Bench in ITA Nos.1086 1087/Ahd/2007 for AYs 2002-03 2003-04, dated 11.3.2008. Relevant portion of the order dated 9.6.2014 passed by the co-ordinate Bench reads as below :- 6. We find that the Tribunal in Assessment Year 2002-03 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant had put up the plan and made payments to AUDA for the development and construction of the scheme as per the approved plan. The appellant had also given advertisement in local newspapers to attract the members for booking. The appellant had prepared ground water tank, approach road and construction lift at the site of housing project. The appellant had appointed the RCC contractors and other labor contractor and experts to carry out the construction and development works. The appellant had also purchased the building materials and made payments to the respective parties. In view of these facts, I agree with the Authorised Representative that the appellant's role has been that of a full fledged contractor/builder in housing project. The development charges were fixed @ 23% of housing project which is in the guise of net income from the housing scheme. The appellant is involved from the beginning i.e. from the time of land purchase to the last step of completion of housing project These facts show that the appellant has actually carried out the work of construction. I agree with the contentions of the Authorised Representative that in a normal course of construction busin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee as contractor, it cannot be said that the assessee had no developed infrastructure facility and for availing deduction under section 80-IA, 'infrastructure facility' should not necessarily be owned by the assessee. It is also found that the wordings of Section 80IA(4) and 80IB(10) are similar. Relying on the ratio laid down in the said case, the appellant is held to have carried out the development work. Accordingly, the Assessing Officer is directed to allow deduction u/s. 80IB(10) to the appellant. 7. In the light of the above facts both the parties have been heard although the Ld. D.R. placed reliance on the assessment order, however, confronted with the order of the Tribunal in the case of Radhe Developers which has consistently been followed by the Ahmedabad Bench in the case of contractors who have been held to be entitled to deduction u/s 80IB which has been denied solely on the ground that the land was not owned by the developer. The activity of the development has been carried on by the contractor-developer as per the agreement entered into with the land owners which carried on the developmental activity in terms of the agreement. Simply because t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
