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2016 (7) TMI 312 - ITAT AHMEDABAD

2016 (7) TMI 312 - ITAT AHMEDABAD - TMI - Eligibility of deduction u/s 80IB - ownership of land - Held that:- Hon’ble Gujarat High Court in case of CIT vs. Radhe Developers (2011 (12) TMI 248 - GUJARAT HIGH COURT ) held that for deduction u/s.80IB(10) of the Act it is not necessary that the assessee must be the owner of the land and secondly looking to the provisions contained in Setion 2(47) of the Act r.w.s. 53A of the Transfer of Property Act, by virtue of the development agreement and agreem .....

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1305 & 1306/Ahd/2012 - Dated:- 16-5-2016 - Shri Shailendra Kumar Yadav, Judicial Member And Shri Manish Borad, Accountant Member For the Revenue : Shri Dileep Kumar, Sr. D.R. For the Assessee : Shri Anil Brahmkshatriya, A.R. ORDER Per Shailendra Kumar Yadav, J. M These two appeals are filed by Revenue against the separate orders of CIT(A)-XV, Ahmedabad, dated 02.04.2012 for A.Ys. 2007-08 & 2008-09. 2. For Assessment Year 2007-2008, the Revenue has taken following grounds of appeal:- 1). The .....

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l entity in the eye of law and the Assessee entered into the project by a development agreement with the Society. The entire responsibility to execute the housing project and abide by the terms and conditions of its approval right from the inception of the project till its completion rests with the Society. The local Authority had granted permission for development to the Society. Assessee was just a contractor of the land owners constructing residential units and not a developer. 3. Before us, .....

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by assessee s claim for deduction of ₹ 21,37,718/- allowed by CIT(A), the tax effect of which is below ₹ 10 lacs. As per the announcement of Central Board of Direct Taxes (CBDT) dated 10.12.2015 (Circular No. 21 of 2015), no Department appeals are to be filed against relief given by ld. CIT(A) before the Income Tax Tribunal unless the tax effect, excluding interest exceeds ₹ 10 lacs and it further states that the instructions will apply retrospectively to the pending appeals. .....

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d therefore the present appeal is not maintainable on account of low tax effect. In such circumstances, we dismiss the appeal of Revenue without expressing any opinion on merits of the case. 5. In the result, the appeal of Revenue is dismissed. 6. For Assessment Year 2008-2009, the Revenue has taken following grounds of appeal:- 1). The Ld. Commissioner of Income-Tax (Appeals)-XV, Ahmedabad has erred in law and on facts in directing the Assessing Officer to allow the Assessee s claim for deducti .....

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ing project and abide by the terms and conditions of its approval right from the inception of the project till its completion rests with the Society. The local Authority had granted permission for development to the Society. Assessee was just a contractor of the land owners constructing residential units and not a developer. 7. Assessee is engaged in the business of developing and constructing housing project in the name of Vrundavan Bunglows for Vrundavan (Naroda) Co-operative Housing Society L .....

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sessee s claim for deduction u/s.80IB(10) of the Act of ₹ 1,10,93,292/-. Accordingly, the order of CIT(A) be set aside and that of Assessing Officer be restored. On the other hand, ld. A.R. supported the order of CIT(A). 10. After going through rival submissions and material on record, we find that land bearing survey no.593/2, having total area of 12444 sq. mtrs., out of it 11609 sq. mtrs. was purchased by the Vrundavan (Naroda) Co-operative Housing Society Ltd. on 16.10.2006 for consider .....

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ollowing reasons: i) The Assessee is not both developer and builder as required by the provisions of section 80IB(10). Assessee is not a developer because the assessee did not conceptualize and own the project in as much as the assessee is not the owner of the land and the approval was not issued to it by the Local authority. ii) The Assessee entered into the project by a Development Agreement with the land owner and construction was done as per the agreement and hence the assessee is merely a c .....

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