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TMI Blog2011 (8) TMI 1241X X X X Extracts X X X X X X X X Extracts X X X X ..... ax (Appeals)-XIV, Ahmedabad has erred in law and on facts in directing to allow assessee's claim of deduction u/s.80IB(10) of the Act of ₹ 66,66,358/-. 2.1. Facts in brief as emerged from the corresponding assessment order passed u/s.143(3) of the I.T. Act dated 31/03/2006 are that the assesseecompany is stated to be a Real Estate Developer. For the year under consideration, a claim u/s.80IB(10) of the Act of ₹ 66,66,358/- was made. Certain basic facts about the project and the compliance of the conditions prescribed u/s.80IB(10) of the Act were as follows, reproduced from assessment order:- Sr.No Conditions specifies for deduction u/s.80IB Fulfillment of conditions of deduction u/s.80IB 1. Commencement of Project should b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clauses of the agreement were discussed. On the other hand, AO has placed on record that the plan as approved by the AUDA Authorities did not show the name of the assessee. The AO has also made an observation that as per the TDS certificate issued, the assessee-company has earned contract receipt of ₹ 6,72,65,500/- from the Vishweshwar Co-operative Housing Society Ltd. Therefore, as per AO, the TDS certificate was the sufficient proof that the payment was in terms of a fixed contract amount paid to the assessee. As per AO, the assessee-company has acted merely as a contractor and not as a developer. He has concluded that the deduction is allowable in respect of a profit of an undertaking which is in the business of developing and bui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kti Corporation has held as under: "The A.O. shall look into the agreement entered into by each of the assessees with the landowner and decide whether the assessee has in fact 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 case the AO finds that practically the land has been bought by the Developer and Developer has all dominant control 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 landowner and has got the fixed consideration from the landowner for the development of the housin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ." 5. From the side of the Revenue ld.DR Mr.C.K.Mishra appeared and placed reliance on the order of the AO. From the side of the respondent, ld.AR Mr. M.G.Patel appeared and placed reliance on the order of CIT(A). 5.1 A compilation has been filed by the respondent, containing i) copy of agreement, ii) copy of "land consideration account", iii) "copy of Vishweshwar Co-operative Housing Society Ltd. Account", iv) Noobjection certificate, v) statement of facts, vi) details of amounts received from the customers by the assessee, etc. Through these evidences, at first, the respondent-assessee has tried to demonstrate that the said project was under his dominant control. Through these evidences, the assessee has also emphasized that the risk inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of framing the assessment order. I find from the assessment order that the A.O. has properly recorded satisfaction for initiating penalty proceedings u/s.271(1)(c) of the I.T. Act. Further the I.T. Act has been amended by Finance Act 2008 with effect from 1.4.1989 by introducing subsection (IB) to section 271 of the I.T. Act. Therefore this contention is rejected. The appellant had furnished necessary details in respect of the claim of deduction u/s.80IB(10) while filing the return of return, during the course of assessment proceedings as well as during the appellate proceedings against quantum appeal before the CIT(A), I am of the view that it is a case where the claim and explanation of the appellant was not accepted by the A.O. due to di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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