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TMI Blog2012 (3) TMI 470X X X X Extracts X X X X X X X X Extracts X X X X ..... ject was completed since by virtue of explanation to section 80IB(10) which was inserted by Finance (No.2) Act, 2009 which is applicable w.r.e.f. 1.4.2001 the assessee is a contractor. 2. On the facts and in the circumstances of the case and in law, the ld CIT(A) erred in deleting the addition of Rs. 49,39,818 made by the AO on account of disallowance u/s.80IB(10) made by the AO on account of disallowance u/s.80IB(10) of the I.T.Act, 1961 inspite of the fact that the assessee failed to obtain completion certificate from the Muncipal Authority on or before 31.3.2008. 3. On the facts and in the circumstances of the case and in law, the ld CIT(A) erred in deleting the addition of Rs. 49,39,818 made by the AO on account of disallowance u/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould complete the project and obtains the completion/occupation certificate on or before 31.3.2008 whereas the assessee contended that the architect applied for completion certificate on 16.4.2007 and no completion certificate was issued till the time of completion of assessment. It was on this backdrop that the AO required the assessee to explain as to why the deduction u/s.80IB(10) cannot be denied. 4. Before the AO, it was contended that the assessee only developed the housing project and received sale consideration and merely because the assessee is not owner of the land, the assessee cannot be treated as a contractor. He contended that as per section 8OIB( 10) there is no condition that the developer should be owner of the land. Relia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate on or before 31.3.2008 and even till the time of completion of assessment and, therefore, on this count also, the assessee is not entitled for deduction u/s. 80IB(10) of the Act. 6. Aggrieved, the assessee preferred appeal before the CIT(A). 7. Before the CIT(A), the assessee reiterated the submissions made before the AO. Reliance was placed on various clauses of the irrevocable power of attorney in which were provided as under: 1) The appellant would be entitled to make application to the electric supply company for obtaining light and power connection during the course of construction. 2) To submit the applications to the cement controller and steel controller for obtaining the supply of cement in connection with the constructio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of development permits the same." Relying on clauses 11 and 16, it was submitted before the CIT(A) that the assessee sold the flats constructed by them and admitted the sale proceeds in the credit side of the P&L account. It was submitted that as held by the AO, if the assessee is treated as contractor, the assessee would have received only contract receipts from M/s. Sai Samarth Enterprises whereas the assessee received sale consideration from the prospective buyers of flats and thereby it cannot be said that the assessee is only a contractor. 8. Regarding completion certificate, reliance was placed on the decision of ITAT in the case of M/s. Saroj Sales Organisation, 115 TTJ 485. It was submitted that as per section 80IB(10), which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st objection of the AO, it is seen from the development agreement entered into by the appellant with M/s. Sai Samarth Enterprises that the appellant had the rights to appropriate the sale proceeds. Further it is seen from the P&L account that the assessee has admitted the sale proceeds of flats/shops constructed by them and it is not a case where the assessee has admitted contract receipts received from M/s. Sai Samarth Enterprises. If the assessee had admitted contract receipts from M/s Sai Samarth Enterprises, the TDS provisions should be applicable and they should have deducted TDS whereas as seen from the statement of total income, the assessee has not claimed any credit for TDS. This shows that the assessee was not a contractor as held ..... X X X X Extracts X X X X X X X X Extracts X X X X
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