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Shri Kalpesh Kantilal Patel Versus ITO, Wd-9 (2) , Ahmedabad

Disallowance of claim made u/s 80IB - Held that:- As in the case of assessee for Asst. Year 2004-05, we observe that the assessee should be allowed deduction u/s 80IB(10) even when the assessee is not the owner of the land but owns rights and responsibilities with the land owner puts the assessee as de facto owner of the land and development of the project is not merely of works contractors. - ITA No.1569/Ahd/2013 - Dated:- 21-9-2016 - Shri S.S. Godara, JM, and Shri Manish Borad, AM. For The App .....

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r.w.s 254 of the I.T. Act is wholly illegal, unlawful and against the law, equity and natural justice. 2. The Ld. CIT(A). has erred in law and on facts in Upholding the order of the Ld. A.O. of disallowance of claim made u/s 80IB of IT. Act, 1961 for ₹ 36,08,678/-. 3. That the construction of the Residential Units in the housing project fulfills the condition laid down in section 80IB(10) of the Act & rejection of claim on the grounds that appellant was not the owner of the land, appro .....

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bservations made and conclusion reached by Ld. CIT{A) for the purpose of making the aforesaid disallowances with regards to the provision of section 801B(10) are wholly unwarranted and unjustified in facts and in law. 6. The observations made and conclusion reached by Ld.CIT(A) with regard to disallowance made U/S 80IB(10) of the Act in so far as the same are prejudicial to the interest of the appellant are wholly unjustified and should be condemned, unless expressly admitted by the appellant. 7 .....

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om development of building housing projects. The case was selected for scrutiny assessment and assessment was completed u/s 143(3) of the Act on 27.01.2006 determining income of ₹ 453675/-. 3. Subsequently an order u/s 263 of the Act was passed on 14.2.2007 setting aside the assessment u/s 143(3) of the Act dated 27.1.2006 with the direction to examine the claim of deduction u/s 80IB(10) of the Act. Assessment u/s 143(3) r.w.s. 263 of the Act was finalized on 18.5.2007 after disallowing th .....

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f the Tribunal given in the case of Shakti Corporation rendered by the Tribunal in ITA No.1503/Ahd/2008 and M/s Radhe Developers & others in ITA No.2482/Ahd/2006. 4. Following the directions of the Tribunal, ld. Assessing Officer initiated proceedings under section 143(3) r.w.s. 254 of the Act and again disallowed the claim of deduction u/s 80IB(10) of the Act at ₹ 36,08,678/- and assessed the income at ₹ 40,63,350/-. Appeal before ld. CIT(A) against the order u/s 143(3) r.w.s. 2 .....

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s the issue is now covered in favour of assessee by the decision of the Tribunal in the case of Radhe Developers (supra). 7. On the other hand, ld. DR supported the orders of lower authorities. 8. We have heard the rival contentions and perused the material placed before us. Through this appeal assessee has challenged the legality of the assessment order passed u/s 143(3) r.w.s 254 of the Act, secondly against the order of ld. CIT(A) upholding the order of Assessing Officer passed u/s 143(3) r.w .....

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ith the directions to decide the issue in the light of the decision of the Tribunal rendered in the case of Shakti Corporation and also in the case of Radhe Developers (supra). We find that in ITA No.2145/Ahd/2007 for Asst. Year 2004-05 in assessee s own case similar issue towards claim of deduction u/s 80IB(10) of the Act was there before the Co-ordinate Bench along with the legality of the order u/s 263 of the Act. The Co-ordinate Bench decided the issue in favour of assessee by observing as u .....

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erefore, AO s order being legally correct, it cannot be called erroneous and prejudicial to the interest of Revenue necessitating invocation power of CIT u/s 263, accordingly, CIT s order is set aside and that of AO upheld. AO is directed to give necessary relief to the assessee as per the decision of this Tribunal in the above case, in accordance with law. 9. We further observe that in the case of Radhe Developers in ITA No.2482/Ahd/2006 & others dated 29.6.2007, the Tribunal has settled th .....

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oy right would be owner of the building though a formal deed of title might not have been executed and registered as contemplated by the Transfer of Property Act, the Registration Act etc. In the present case before us, by virtue of 'Agreement to Sale' and 'Development Agreement', the assessee has acquired dominion over the land to the exclusion of others and he has completed the project in terms and conditions laid down u/s. 80IB(10) of the Act, to claim deduction on the profit .....

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