TMI Blog2018 (10) TMI 1881X X X X Extracts X X X X X X X X Extracts X X X X ..... ls at the conditions as laid down in the provisions of the income Tax Act. In the said case the assessee had failed to fulfill the conditions required to claim deduction u/s 80IB{10). However, the Assessing Officer had not examined the said issue and allowed the claim of the said deduction thereby rendering the assessment order to be erroneous prejudicial to the interest of revenue. Neither the project was approved by the assessee nor any enquiry has been made by the AO as to how the eligibility condition u/s.80IB(10) has been complied with by the assessee who has been given development rights in respect of certain portion of the project approved in the name of M/s. Unitech Limited - out of the deduction claimed, the AO has reduced the amount pertaining to the profit earned on this project in the earlier two years, but no enquiry has been made by the AO as to why in respect of the very same project, profit of earlier years was to be reduced from the profit of eligible project. We also observe that audit report in form No.10CCB filed by the assessee at Column 4(a), the assessee has claimed the project to be fully owned by it, whereas the actual fact is that assessee has no owne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ownership rights (ii) the appellant had not paid any service tax and (iii) the appellant had not obtained completion certificate from the local authority all of which being not appropriate for denying the claim u/s 80IB(10), the order passed u/s 263 be quashed. 4. The Id. Pr. CIT was not justified in holding that appellant was not entitled for deduction u/s 80IB(10) and setting aside the completed assessment to the file of the Id. AO for passing denovo assessment and therefore the order u/s 263 be quashed. The appellant craves leave to add, alter, amend and/or vary any of the grounds at any time before the decision of the appeal. 3. Rival contentions have been heard and record perused. 4. In the order passed u/s.263, CIT observed that assessee was not entitled for deduction u/s.80IB of the IT Act. The assessee failed to fulfill the conditions laid down as per the provisions of the Act in respect of its claim of deduction u/s. 80IB of the Act, the assessment order was erroneous and prejudicial to the interests of Revenue. The assessment order was accordingly, set aside with directions to the AO to reframe the assessment order after examining the assessee's cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... velopment Agreement dated (14.06.2003, only Development Rights came to be assigned to the assessee by the owner of the undertaking M/s. Unitech Limited. The entire correspondence with the Planning Authority is with M/s. Unitech Limited, establishing beyond any shred of doubt that the owner of the undertaking is M/s. Unitech Limited, and by virtue of such fact is solely entitled for the deduction u/s. 80IB of the Act. It is also seen from the Audit Report in Form No.10CCB that against Column No.4(a) seeking details of ownership of the project undertaking, the assessee has claimed the project to be fully owned by it, whereas the actual fact is that it has no ownership rights in the project. 5. It was argued by learned AR that order u/s.263 cannot be based on the grounds which are totally different from grounds raised in the show-cause notice. For this purpose reliance was placed on the judicial pronouncements placed on record. It was further argued in support of the proposition that for deduction u/s.80IB developer need not to be the owner of the land and reliance was placed on the various judicial pronouncements placed on record. As per learned AR, housing project developed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as to when the project was approved and when the project was completed. The CIT originally passed the order u/s.263 invoking Section 263 dated 01/03/2012. In this order CIT has mentioned various dates when the opportunity was given to assessee to present his case with regard to eligibility u/s.80IB, however, no one appeared on behalf of the assessee, accordingly, CIT passed the order wherein he observed that the housing project had been first approved by the local authority in the year 1990 in the name of M/s Unitech Limited. Further, from the certificate issued by the local authority, which is on the subject of amalgamation and amended approved plan of the housing project,. referring to various commencement certificates and amended plan with the earliest date back to 19.11.1998. If the project was approved in the year 1990, here is no question of deduction 80IB(10) and if the project was under taken in the year 1998 whether the said project had been completed within the stipulated four years period. From the facts gathered it was observed that the construction of the project was not completed within four years from the end of the financial year in which the housing project was f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the land but has got the project approved and had undertaken all the activities in terms of Section 80IB (10), then it will be eligible for deduction not withstanding the fact that the plot has not owned by him. However, in the instant case, neither the project was approved by the assessee nor any enquiry has been made by the AO as to how the eligibility condition u/s.80IB(10) has been complied with by the assessee who has been given development rights in respect of certain portion of the project approved in the name of M/s. Unitech Limited. We found that out of the deduction claimed, the AO has reduced the amount pertaining to the profit earned on this project in the earlier two years, but no enquiry has been made by the AO as to why in respect of the very same project, profit of earlier years was to be reduced from the profit of eligible project. We also observe that audit report in form No.10CCB filed by the assessee at Column 4(a), the assessee has claimed the project to be fully owned by it, whereas the actual fact is that assessee has no ownership rights in the project. Thus, it is clear that no enquiry has been made by the AO so as to ascertain correctness of the assesse ..... 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