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TMI Blog2011 (7) TMI 1237X X X X Extracts X X X X X X X X Extracts X X X X ..... ,53,128/- for the detailed reasons given in para 2.3, which are extracted below: "2.3 I have considered the submission made by the appellant and the observation of the A.O. The assessment year under consideration is A.Y. 2005- 06 whereas the A.O. has made the addition of on-money on the basis of search conducted on 18.06.2003, which falls in A.Y. 2004-05. The addition of onmoney in A.Y. 2004-05 on the basis of seized materials has been deleted by the CIT(A). The basis for addition in respect of "Amardham-C" is the same as the basis of addition in A.Y. 2004-05 and, therefore, following the order of the CIT(A) dated 05.03.2007 for A.Y. 2004-05 in the assessee's own case in appeal No.CIT(A)-II/CC.I/8G/2006-07, the addition made in this year also deleted." 4. Aggrieved with the order of the ld. CIT(A), the Revenue is in appeal before the Tribunal. 5. At the time of hearing, on behalf of the Revenue, Shri B.L.Yadav, D.R. appeared and pointed out that the assessee developed the project namely "Amardham- C" has shown the sale of 39 flats of build up area of 52,950 sq.ft. with a sale price of ₹ 2,18,11,872/-. The rate of the sales of the flat is ranging from 351 to & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s pertinent to note that in para 10, the ITAT, Ahmedabad 'D' Bench in assessee's own case in ITA No.2041/A/2007 for the assessment year 2004- 05, has held that in the absence of any cogent evidence, there was no scope for extrapolation. On this basis, it was held that addition cannot be made in other years. Admittedly, evidence of 'on money' alleged to be received pertains to earlier assessment year and not for the assessment year under appeal. We, therefore, following the decision of the Tribunal in assessee's own case for the assessment year 2004-05 (supra), uphold the view taken by the ld. CIT(A), who has deleted the addition of ₹ 1,52,53,128/-. Resultantly, this ground of appeal is rejected. 8. The only other ground of appeal raised by the Revenue is as under: "[1] On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deleting the additionof ₹ 16,79,144/- made by the A.O. on account of disallowance of deduction u/s.80IB(10) r.w.s. 80IB(1) of the I.T. Act and r.w.r. 18BBB(4) of the I.T. Rules." 9. At the time of hearing before us, on behalf of the Revenue, the ld. D.R. pointed out that that the ratio laid down by the ITAT, Ahmedaba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Faqir Chand Gulati -vs- Uppal Agencies Pvt. Ltd. & Anr. in Civil Appeal No.3302 of 2005 dated 10.07.2008 and stated that the following issues were raised. (i) A development agreement is one where the land-holder provides the land. The Builder puts up a building. Thereafter, the land owner and builder share the constructed area. The builder delivers the 'owner's share' to the landholder and retains the 'builder's share'. The land-holder sells / transfers undivided share/s in the land corresponding to the Builder's share of the building to the builder or his nominees. The land-holder will have no say or control in the construction of have any say as to whom and at what cost the builder's share of apartments are to be dealt with or disposed of. Such an agreement is not a "joint venture" in the legal sense. It is a contract for "services". (ii) On the other hand, an agreement between the owner of a land and a builder, for construction of apartments and sale of those of apartments so as to share the profits in a particular ratio may be a joint venture, if the agreement discloses an intent that both parties shall exerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 landowner. 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 landowner 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 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 deci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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