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TMI Blog2019 (6) TMI 757X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned ITAT has erred in law and on facts in allowing the assessee the deduction u/s. 80IB(10) of the Act after treating the assessee as a developer of the Housing Project even though the project as a whole was not primarily developed and built by the assessee itself and the assessee has sold merely the residential plots and rest of the work has been completed by it as a contractor of the plot purchasers, rendering it ineligible for deduction u/s 80IB(10) of the Act ? (b) Whether on the facts and in circumstances of the case, the learned ITAT has erred in law and on facts in allowing the assessee the deduction u/s. 80IB(10) of the Act by ignoring the fact that 70% of the sale proceeds of the project were the work contract receipts an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court, which has been admitted by the Hon'ble Gujarat High Court, vide Tax Appeal No.1340 of 2014 and 1339 of 2014 ?" 2. It appears from the materials on record that the respondent Assessee is engaged in the business of development of Housing Project. The short point involved in this appeal is with regard to the applicability of Section 80IB (10) of the Act. To put it in other words, whether the respondent - Assessee is entitled to claim deduction under Section 80IB(10) of the Act. The Assessing Officer made the above by denying the claim of deduction under Section 80IB (10) of the Act. The Assessee being dissatisfied preferred an appeal before the Commissioner of Income Tax (Appeals) under Section 143(3) of the Act. The Appeal pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecided by the Hon'ble ITAT vide order dated 5/1/2015 in appellant's own case for AY 09-10, reproduced supra. The fact that the appeal has been admitted by the HC against the decision relied upon by the ITAT in order for not following the said judgment. As such, I myself in Appellate order no. CIT(A)-12/CC-1/Baroda/343B/14- 15 dated 29-09-2015 in appeal against freshly made assessment u/s 143(3) r.w.s. 153C for very AY 09-10 have followed the ITAT decision in appellant's own case for AY 09-10. Thus, unless a jurisdictional authority's contrary decision is brought on record by the AO, the Hon'ble ITAT decision relied upon by the AR as also my own decision for AY 09-10 need and must be followed. Indeed there are no such dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an appeal before the Income Tax Appellate Tribunal, Ahmedabad 'B' Bench. The Appellate Tribunal while dismissing the appeal filed by the Revenue observed as under: "8. Ld. A.R. cited two orders of Co-ordinate Bench in assessee's own case in ITA No. 822/Ahd/2013. The issue before the ITAT was that id. CIT(a) has erred in law and on facts of the appellant's case in confirming the action of Learned A.O. of disallowing the claim of deduction u/s 80-IB(10) of the I.T. Act 1961 on various erroneous plea. And both the lower authorities have erred in law and on facts of the appellant's case in not appreciating the facts that the appellant is developing & building housing projects by fulfilling all the requirements for claimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew of the aforesaid facts, we respectfully following the decision of the coordinate bench of Tribunal in the case of Narayan Reality (supra) hold that the Assessee is eligible for deduction u/s 80IB(10). Thus this ground of Assessee is allowed." 4. Mr. Varun Patel, the learned Standing Counsel appearing for the department very fairly brought to the notice of this court the order passed by a coordinate bench dated 08.10.2018 in Tax Appeal No. 1199/2018. The order passed by the coordinate bench is in connection with the very same assessee and the issue was also with regard to deduction under Section 80IB(10) of the Act. We refer to and rely upon the observations made by the coordinate bench as under: "Counsel for the Revenue candidly poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he activity of housing development. Revenue's contention, that the nature of activities carried on by the assessees would only qualify them to be the contractors executing works contract, was also considered. It was held that the assessee had undertaken the development of housing project at their own risk and cost. The owner of the land had accepted the full price of the land. He was therefore not concerned with the successor or failure of the housing project. In such background, reference was made to the definition of term "transfer" under section 2(47) of the Act and held that merely because the land was held by the original owner when the housing development project was executed, would not be detrimental to the assessee's claim o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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