TMI Blog2016 (3) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... the expenditures, assessee had received entire sale consideration from the buyers of the units as per rates decided by it and assessee has taken full risk of executing the housing project and that the assessee was entitled to all the profit and gains including losses, if any, arising from sale of housing units. He has further given a finding that the facts of the assessee’s case were identical to the facts of the case in the case of Radhe Developers [2011 (12) TMI 248 - GUJARAT HIGH COURT ], which was decided in assessee’s favour. Before us, Revenue has not brought on record any material to controvert the findings of ld. CIT(A). In view of the aforesaid facts, we find no reason to interfere with the order of ld. CIT(A) - Decided against rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd on facts in deleting the disallowance of deduction u/s.80IB(10) claimed by the assessee for ₹ 4,17,12,892/- without appreciating the fact that the Assessing Officer had made the addition on the ground that the assessee failed to fulfill the conditions laid down in this regard, such as the assessee is not developer because it did not conceptualize and own the project in as much as the assessee did not own the land and the approval of the project was not received in the name of assessee by the local authority. Assessee is merely a contractor for the purpose of construction of the project and as per the amendment to Section 80IB by the Finance Act, 2009 a work contractor who executes the work awarded by any persons is not eligible for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered into two development agreements with Society for development and construction of housing project in land area of 7485 Sq. Mtrs. And as per such agreements, appellant has acquired impugned land along with possession at agreed consideration of ₹ 1,19,50,197 which includes stamp charges being 1% of the land. As per the development agreements entered with Society, Society is entitled to value of land as stated herein above and all the profit/gains and losses, if any, arising on the completion of the project has to be borne by appellant. This fact proves beyond doubt that Assessee has become de-facto owner of the land and took the full risk of executing the housing project and thereby making profit/loss, as the case may be. Further, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry out development of the housing project at its own risk and rewards. (ii) Further, the plans prepared for the purpose of proposed construction of buildings were prepared by appellant-developer after appointing architect and the entire revised plan, if any required, and building use permission and all other approval required for development of the project was to be obtained by appellant-developer only. (iii) Appellant-developer was entitled to fix sale price of housing unit to proposed buyers in lieu of their allotment and even it was entitled to fix the mode of payment, time of payment as per its own requirement and considering the mode of payment, time of payment, area of unit, location and situation of unit, appellant was en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old unit is of appellant and not of Society. Further, appellant has received entire sale consideration from the buyers of the units as per rates decided by it only. At the time of execution, of sale deed, appellant is one of the parties to such agreement which also proves appellant is one of the parties for transfer of property to buyer of the units. Appellant has obtained all the necessary permissions required for completion of the housing project and made necessary financial arrangements for the purpose of completion of housing project. Even though the development permission is in the name of Society, the same will not lead to any disallowance of deduction in view of observation made by the Hon'ble Gujarat High Court referred herein a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of ld. CIT(A), Revenue is now in appeal before us. 5.1 Before us, ld. D.R. took us the various finding of A.O. and supported his order. Ld. A.R. on the other hand reiterated the submissions made before the ld. A.O. and ld. CIT(A) and supported the order of ld. CIT(A). 6. We have heard the rival submissions and perused the material on record. The issue in the present case is with respect to eligibility for deduction u/s.80IB(10) of the Act. The claim of deduction was denied by the A.O. mainly for the reason that assessee was not the owner of the land and according to him, the assessee was merely a contractor. We find that ld. CIT(A) while deciding the issue in favour of assessee and after perusing the development agreement has gi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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