TMI Blog2016 (7) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... r the land. She has further given a finding that the assessee has fulfilled all the required conditions laid down u/s.80IB(10) of the Act for claiming the deduction in the light of the decision of Tribunal in the case of M/s.Shakti Corporation (2008 (11) TMI 436 - ITAT AHMEDABAD ). Before us, Revenue has not placed on record any contrary binding decision in its support nor could controvert the findings of the ld.CIT(A). In view of the aforesaid facts, we find no reason to interfere with the order of the ld.CIT(A). Thus, this ground of Revenue is dismissed. - Decided in favour of assessee - ITA No. 279/Ahd/2010 & CO No.66/Ahd/2010 - - - Dated:- 3-6-2016 - SHRI RAJPAL YADAV, JUDICIAL MEMBER And SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10) of the Act amounting to ₹ 9738816/- which was disallowed by the Assessing Officer. 2.2. The assessee has also filed Cross Objection and has raised the following ground:- 1. The Learned Commissioner of Income Tax (Appeals) XV, Ahmedabad after going through the details and submissions of the respondent found that the Respondent has fulfilled the conditions laid down for claiming deduction u/s.80IB(1) and has invested in cost of land and acquired dominant control over the land for the development of the project. The facts of Respondent s case is fully covered by the decision of Hon ble ITAT Ahmedabad, Bench A delivered in the case of M/s.Shakti Corporation and accordingly the Ld.CIT(A) has rightly allowed the deduction u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f it has been approved by the local authority before 1.4.2004. In the case of appellant Development Permissions were given by Auda dated 24.102003 21.11.2003 to the attorney holder of the land owners who sold the land to the NTC (Karnavati Ghodasar Owners Association) vide conveyance deed dated 8.7.2004. It was explained that in this line of business negotiations for land start much earlier than registration of the conveyance deeds and permission for project could have been taken only by the land owners who subsequently entered into a Development Agreement with the appellant for the housing project. It was argued that this condition talks only about approval/permission to the housing project and does not specify in whose name it sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... using project by incurring all the expenses and taking all the risks involved therein. We may mention here that, in our opinion, the decision in the case of Radhe Developers (supra)will not apply in a case where the assessee has entered into the agreement for a fixed remuneration merely as a contractor to construct or develop the housing project on behalf of the land owner. The agreement entered into in that case will not entitle the Developer to have the dominant control over the project and all the risks involved therein will vest with the land owner only. The interest of the Developer will be restricted only for the fixed remuneration for which he would be rendering the services. The decision in the case of Radhe Developers (supra) has n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over the project and has developed the land at his own cost and risks, the AO should allow the deduction to the assessee u/s.80IB(10). In case the AO finds that the Developer has acted on behalf of the land owner and has got the fixed consideration from the land owner for the development of the housing projects. The assessee shoud not be allowed deduction u/s.80IB(10) to the assessee. 10. Thus through the above decision Hon ble ITAT has laid down that to avail itself of the deduction an appellant should have acquired dominant control over the project and should have developed the housing project at its own cost and risks. To ascertain which Hon ble ITAT directed the Development Agreement to be looked into. In this case the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore the AO is directed to allow 80IB(10) deduction to the appellant. 4. Aggrieved by the order of the ld.CIT(A), Revenue is now in appeal before us. 4.1. Before us, ld.DR supported the order of AO. She further submitted that to be eligible for deduction u/s.80IB(10) of the Act the entire risk and reward of the project should be of the assessee, which in the present case is not of the assessee. She therefore submitted that in such a situation, AO was fully justified in denying the claim of deduction u/s.80IB(10) of the Act. Ld.AR, on the other hand, reiterated the submissions made before the AO and ld.CIT(A) and further submitted that the ld.CIT(A) after considering the decision in the case of M/s.Shakti Corporation, Baroda in IT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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