TMI Blog2010 (3) TMI 1132X X X X Extracts X X X X X X X X Extracts X X X X ..... the revenue s appeal in ITA No. 248/Ind/2008. 4. Ground nos. 1 to 5 read as under :- In the facts and circumstances of the case, the CIT(Appeals) has erred in :- 1. Deleting the addition of ₹ 53,60,449/- on account of rejection of claim u/s 80IB of IT Act holding that even if the assessee does not own the land the benefit of deduction claimed in respect of the profits derived from such housing project cannot be denied to the assessee particularly when assessee is not eligible for exemption and is merely acting as a contractor. 2. Deleting the disallowance in virtually summary and non speaking manner though the provision u/s 80IB(1) has been comprehensively applied by the Assessing Officer. 3. Allowing the exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by it was provided that the benefit of deduction under section 80IB(1) of the Act could not be given to an undertaking which executed the housing project as a works contract awarded by any person and, therefore, this aspect of the matter was to be considered now. The learned Sr. Departmental Representative further submitted that the observations of the larger Third Member Bench of the Tribunal in the case of B.T. Patil Sons; Belgaum Construction Private Limited v. ACIT in ITA No. 1408 and 1409/PN/2003 order dated 26th October, 2009 as reported in 32 DTR (Mum) (TM) (Trib) 1 on the aspect that a contractor was not entitled for deduction under section 80IA were also relevant in the context of provisions of section 80IB(10) of the Act. 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee i.e. whether it has acted as a developer or has carried out works contract. There are developments subsequent to the order of the learned Commissioner of Incometax (Appeals) in this regard in the form of legislative amendment as well as the aforesaid decision of the Tribunal, which may require consideration to decide the issue conclusively. Further investigation into the facts as to the nature of work done by the assessee and the capacity of the assessed is also required. Therefore, we restore all the issues raised in these grounds to the file of the learned Commissioner of Incometax (Appeals) to decide the same afresh as per law, after taking into consideration such legislative changes, aforesaid decision of the Tribunal and our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ptable. However, he estimated the same at ₹ 1,25,000/- and confirmed the disallowance of ₹ 23,556/-. Aggrieved by this, both the revenue as well as the assessee are before us. 13. The learned Sr. Departmental Representative submitted that the amount in the ground raised by the revenue should be read as ₹ 1,25,000/- instead of ₹ 1,48,556/-. He further placed reliance on the order of the Assessing Officer. 14. On the other hand, the learned counsel for the assessee submitted that the claim of the assessee was fully supported by documentary evidences, hence, the learned Commissioner of Incometax (Appeals) should have allowed total expenses. He further contended that the aspect of necessity was beyond his jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X
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