TMI Blog2011 (2) TMI 1469X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 [hereinafter referred to as the Act ]. 2. Facts, in brief, as per relevant orders for the AY 2004-05 are that return declaring nil income after claiming deduction of ₹ 17,08,263/- u/s 80IB(10) of the Act filed on 25-10-2004 by the assessee, engaged in the business construction of housing projects, after being processed on 12-03-2005 u/s 143(1)(a) of the Act, was selected for scrutiny with the issue of a notice u/s 143(2) of the Act on 01-08-2005 .During the course of assessment proceedings, the Assessing Officer [AO in short] noticed that the assessee was not eligible for deduction u/s 80IB(10) of the Act as the approval of the Competent Authority for development of the housing project was in the name of owners of the land viz. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5-06, the AO disallowed the claim for deduction of ₹ 30,99,640/- u/s 80IB(10) of the Act . 4. On appeal, the Id. CIT(A) allowed the claim for deduction u/s 80IB(10) of the Act in these two assessment years, merely following the decision dated 29.6.2007 of the ITAT in the case of Radhe Dvelopers Others in ITA no. 2482/Ahd./2006. 5. The Revenue is now in appeal before us. The Id. DR relied upon the order of the AO and submitted that the matter may be restored to the file of the AO for re-examination in the light of decision of the ITAT in case of M/s Shakti Corporation others in ITA nos. 1503/Ahd./2008. The Id. AR on behalf of the assessee did not oppose these submissions of the ld. DR and also relied upon the aforesaid decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loper 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 not dealt with such situation. The proposition of law laid down in the case of Radhe Developers cannot be applied universally without looking into the development agreement entered into by the Developer along with the landowner. In the case of Shakti Corporation since the assessee has filed copy of the development agreement and crux of the agreement is that the assessee has purchased the land and has developed the housing project at its own, therefore, we are of the view that the assessee will be entitled for the deduction u/s 80IB(10). The decision of the Hon'ble Supreme Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest of justice, we vacate the findings of the ld. CIT(A) and restore the matter to the file of the AO with the directions to analyse the relevant development agreement entered into by the undertaking of the assessee with the landowner(s) in the light of facts obtaining in the books of accounts maintained for the said undertaking by the assessee and other relevant documents, keeping in view the aforesaid decisions of the ITAT as also after allowing sufficient opportunity to the assessee and thereafter, decide as to whether the undertaking of the assessee has indeed purchased the land for a fixed consideration from the landowner and has developed the housing project at its own cost and risks involved in the project. In the event the AO fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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