TMI Blog2021 (2) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... land on which the residential project was undertaken was less than one acre. It is settled proposition of law that the eligibility conditions of section 80IB(10) of the Act does not prescribe that a developer of the land i.e. need not be the owner of the land. Hon ble Gujarat High Court in the case of CIT vs. Radhe Developers[ 2011 (12) TMI 248 - GUJARAT HIGH COURT] clearly held that for the purpose of claiming deduction u/s 80IB(10) of the Act, it is not necessary that the assessee should be owner of the land. It is neither for the Municipal Corporation nor for the Assessing Authority to look into the title of the property. There is no material on record to show that the land which is physically available in excess of the area mentioned in 7/12 extracts is claimed by any other third party nor is there any substituting the dispute in this regard. The requirement of the provisions of section 80IB(10) of the Act stands satisfied if the area on which the project was undertaken is one acre or more. It is not open to the Assessing Officer to act as an Arbitrator of land disputes. The concept of ownership of the land is alien to the provisions of section 80IB(10) of the Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . S. Viswanethra Ravi, JM For the Assessee : Shri S. N. Puranik For the Revenue : Shri Sudhendu Das ORDER PER INTURI RAMA RAO, AM: This is an appeal filed by the assessee directed against the order of the ld. Commissioner of Income Tax (Appeals)- 1, Pune ( the CIT(A) for short) dated 12.01.2011 for the assessment year 2007-08. 2. The appellant raised the following grounds of appeal :- 1. Lower authority has erred both on facts and on law in rejecting Appellant s claim U/s 80IB(10). Same may please be allowed. 2. Lower authority has erred in excluding the land area of 1,508.49 Sq.mtrs. For road widening. As total size of plot of land of the project is 4,722.45 Sq. mtrs. As such more than one acre. Hence appellant be declared eligible for deduction U/s 80IB(10). 3. a) Assessee firm denies its liability to interest U/s 234B. b) Lower authority has erred in charging interest U/s 234B same may please be deleted. 4. Appellant prays for just and equitable relief. 5. Appellant prays to add, alter, amend, modify, explain and / or withdraw the Ground/s as occasion may demand. 6. Appellant prays for Stay of Demand. 3. Brief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26.06.2006 and accordingly the completion certificate was also issued by the Pune Municipal Corporation and the construction of 36 flats of A-2 Block were completed by 30.03.2007 and accordingly, the Pune Municipal Corporation issued completion certificate. The Assessing Officer after extracting the provisions of clause (10) of section 80IB of the Act held that the appellant firm was not entitled for deduction u/s 80IB(10) of the Act for the reason that the appellant firm had not satisfied one of the conditions to be eligible for claiming deduction u/s 80IB(10) of the Act i.e. the project should be under the size of plot of land with minimum area of one acre. According to the Assessing Officer, the total area of the land on which the project was undertaken is only 40 ares or 4000 sq.mtrs. which is just less than the one acre of land. Accordingly, the Assessing Officer issued a show cause notice dated 26.10.2009 calling upon the appellant firm to show cause as to why the deduction u/s 80IB(10) of the Act should not be denied, as the size of plot on which the project was undertaken is less than one acre of the land. In response to the show-cause notice, the assessee submitted as u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alent to 40 Ares i.e. the area available as per the land revenue records of the land in respect of which the development rights were acquired. He further submitted that the Pune Municipal Corporation for the purpose of determining the permissible FSI lower of the area as per the revenue records and actual area alone is considered which does not mean that the actual area is not available nor is it disputed by the Assessing Officer or municipal authorities. He also placed reliance on the following judicial precedents :- (a) Bunty Builders (supra); (b) M/s. Shashwati Constructions vs. ITO (ITA No.2010/PUN/2014 dt. 09.05.2018); (c) M/s. Tulsi Developers vs. DCIT (ITA No.484/PUN/2017) dt. 20.04.2018). 11. Without prejudice to the above, it is contended that as per the metric system 4000 sq.mtrs. is equivalent to one acre. Thus, it is contended that even otherwise it satisfies the conditions of the area of one acre or more and therefore, the claim for deduction u/s 80IB(10) cannot be denied. 12. On the other hand, the ld. CIT-DR contended that the appellant is not eligible for deduction u/s 80IB(10) of the Act, as the appellant not satisfied the conditions that the land on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one acre. It is settled proposition of law that the eligibility conditions of section 80IB(10) of the Act does not prescribe that a developer of the land i.e. need not be the owner of the land. The Hon ble Gujarat High Court in the case of CIT vs. Radhe Developers, 341 ITR 403 clearly held that for the purpose of claiming deduction u/s 80IB(10) of the Act, it is not necessary that the assessee should be owner of the land. It would suffice if the residential project is undertaken on an area of plot of land of one acre or more. It is neither for the Municipal Corporation nor for the Assessing Authority to look into the title of the property. In any way, if the appellant has constructed the project on the property in respect of which the title of the land ownership of the land is in dispute, he would be doing so at his own risk and peril. There is no material on record to show that the land which is physically available in excess of the area mentioned in 7/12 extracts is claimed by any other third party nor is there any substituting the dispute in this regard. The requirement of the provisions of section 80IB(10) of the Act stands satisfied if the area on which the project was und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id not meet the contention of the appellant that 4000 sq.mtrs. with reference to which the permissible of construction area was granted by the municipal authorities is equivalent to one acre in metric system. Thus, there is no material on record to say that the area of land on which the housing project was taken up was less than one acre. The Assessing Officer merely went by the entries made in he 7/12 extracts which are in the nature of mutation entries made in the land records of the State Government. 15. The mutation entries in the records of the State does not confer any title on the property. In this connection we refer to the following judicial precedents extracted by the Hon ble Himachal Pradesh High Court in the case of Naresh Kumar And Another vs. Nirmala Devi And Others in RSA No.475 of 2004 dated 01.10.2018 wherein it is stated hereunder :- 18. It is settled that mutation entries are only to enable the State to collect revenues from the persons in possession and enjoyment of the property and the right, title and interest as to the property should be established dehors the entries. Entries are only one of the modes of proof of the enjoyment of the property. Mutati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to get the mutation of entries of the suit land incorporated in record shows that there was no intention on their part to act upon the contents of the two sale deeds, cannot be accepted as mere mutation of. entries does not confer title upon the deceased respondent no. 1 in the immovable property. In the case of Sawarni v. Inder Kaur 1996 6 SCC 223, this Court held as under: (SCC p.227, para 7) 7.......Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. The learned Additional District Judge was wholly in error in coming to a conclusion that mutation in favour of Inder Kaur conveys title in her favour. This erroneous conclusion has vitiated the r entire judgment...... 21. In Guru Amarjit Singh v. Rattan Chand 1993 4 SCC 349, this Court held that the entries in jamabandi are not proof of title in respect of an immoveable property. In Jattu Ram v. Hakam Singh 1993 4 SCC 403, this Court observed that entries made by patwari in official record are only for the purpose of records and do not by itself pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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