TMI Blog2020 (9) TMI 1198X X X X Extracts X X X X X X X X Extracts X X X X ..... orefather and general power of Attorney was executed by all the co- owners in favour of the S appointing him to construct plinth on their joint agricultural land in the name of all the owners and to further lease out such open plinth to any party on their behalf. In this case, the issue came up whether the appellants are to be assessed as AOP or as individual. It was held that the co-owners had inherited the property from their ancestors and there was nothing to show that they had acted as AOP. It was also held that in order to asses individual to be forming AOP, the individual co-owners should have joined their resources and thereafter acquired their property in the name of AOP. The ratio of this decision is again directly applicable to the facts of share of profit eligible of deed under section 80IB of the Act. The proceeds relating to sale of plots have been deposited in a separate bank amount of the assessee and her son .and. the same has been shared equally. There was non-existence of AOP, otherwise proceeds on sale of plots would not have been deposited in a separate bank account. The assessee also filed development permission letter bearing the name of co-owners in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DER PER PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by assessee is directed against the order of learned Commissioner of Income Tax (Appeals)-2, Surat, which in turn arise from assessment order dated 31.03.2015 passed under section 143(3) for assessment year (AY) 2012-13. The assessee has raised following grounds of appeal: (1) On the facts and the circumstances of the case as well as law on the subject, the lender Commissioner of income tax (Appeals) has erred d in confirming the action of assessing officer in holding that income from housing project in the name of Hampton Park belongs to AOP and not in the individual capacity as co-owner. (2) On the facts and circumstances of the case and law on the subject, the landed Commissioner of income tax (Appeals) has erred in confirming the action of assessing officer in disallowing deduction of ₹ 15537723/- claimed by the assessee under section 80IB(1Q) of the IT Act. (3) It is therefore prayed that the above addition confirmed by learned Commissioner of income tax (Appeals) may be deleted. 2. Brief facts of the case as gathered from the order of lower authorities are that the assessee is an individual, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the parties and have gone through the orders of authorities below. We have also deliberated on the decision of co-ordinate bench of Tribunal in assessee s own case for AY.2011-12 on identical grounds of appeal. We have noted that on identical grounds of appeal the co-ordinate bench of Tribunal while considering the identical claim of assessee for earlier assessment year passed the following order: 11. We have heard both submissions and perused the material available record. We find that on death of assessee's husband, the impugned land was inherited to Smt. Jayaben Govindbhai Patel (Assessee), Shri Ashok Govindbhai Patel (Son of the assessee) other son and two daughters who later assigned their rights in favour of the assessee and her one son. Thus, the assessee and her son Ashok Govindbhai Patel are the co-owners of the inherited impugned land on which housing project in the name of Hampton Park has been developed. The documentary evidences such as copies of approved plan submitted and signed by Co-owners, development permission letter bearing the names of both the Co-owners, copy of sale deed executed , by Coowners, copy of current account held jointly in both their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0IB(10), of the Act pertaining to her share of profit eligible of deed under section 80IB of the Act. The proceeds relating to sale of plots have been deposited in a separate bank amount of the assessee and her son .and. the same has been shared equally. This, fact further manifest that there was nonexistence of AOP, otherwise proceeds on sale of plots would not have been deposited in a separate bank account. The assessee also filed development permission letter bearing the name of co-owners in their individual capacity. It was further pointed out that the assessee as well as Ashok Govindbhai Patel has obtained separate registration under the Service Tax act in the individual capacity and the Service Tax Return filed along with deposit of service tax in the individual capacity were also furnished. It was contended that this is not the case where two or more independent persons have joined together for acquiring land and construction housing project by pooling their joint resources. The, assessee with her son cannot be at all be said to be voluntarily, because the land has been received by them jointly by way of inheritance. In such cases, the association of two or more persons is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso held that in order to asses individual to be forming AOP, the individual co-owners should have joined their resources and thereafter acquired their property in the name of AOP. The ratio of this decision is again directly applicable to the facts of share of profit eligible of deed under section 80IB of the Act. The proceeds relating to sale of plots have been deposited in a separate bank amount of the assessee and her son .and. the same has been shared equally. This, fact further manifest that there was nonexistence of AOP, otherwise proceeds on sale of plots would not have been deposited in a separate bank account. The assessee also filed development permission letter bearing the name of co-owners in their individual capacity. It was further pointed out that the assessee as well as Ashok Govindbhai Patel has obtained separate registration under the Service Tax act in the individual capacity and the Service Tax Return filed along with deposit of service tax in the individual capacity were also furnished. It was contended that this is not the case where two or more independent persons have joined together for acquiring land and construction housing project by pooling their joint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e up whether the appellants are to be assessed as AOP or as individual. It was held that the co-owners had inherited the property from their ancestors and there was nothing to show that they had acted as AOP. It was also held that in order to asses individual to be forming AOP, the individual coowners should have joined their resources and thereafter acquired their property in the name of AOP. The ratio of this decision is again directly applicable to the facts of instant case, hence the contention of the Assessing Officer in para 4.6 of the order that eligible business activity has been carried out by the AOP / BOI is invalid. The contention of the AO that benefit of section 80IB(10) can only be granted to an AOP and not to the assessee. If that is the case of the Revenue, then it cannot tax the income which does not belongs to her in her individual capacity and therefore, the same can be taxed in the hands of the AOP. But this is not the case of the AO. The A.O. merely denied the claim that return of income was not filed in the status of AOP, in such situation provision of 292B comes to the rescue of the assessee and defects in return of income can be removed. We do hot find his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they are entitled to in the built up area. 9. In that view of the matter, the contention of the revenue that the assesses did not undertake any developmental, or building activity and therefore, he cannot individually claim the benefit has no substance. That is hot the requirement of law. Keeping in mind, the object with which his provision is introduced when all persons who have made investments in this housing project -which is for the benefit of middle and lower c/ass people and, when they have complied with all the conditions prescribed under fire aforesaid provision, both of them are entitled to Hundred percent benefit of tax deduction as provided under the said provision. In that view of the matter, we do not see any merit in these appeals. The substantial question of law is answered in favour of the assessee and against the revenue. Accordingly, the appeals are dismissed. 13. Therefore, respectfully following the above ratio we allow the appeal of the assessee. We also note that following the ratio laid down in the case of CIT v. Shravanee Constructions (supra), the Co-ordinate Bench of Pune Tribunal in the case of ITO V. Skyline Developers ITA. No. 1503/PUH/2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
