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TMI Blog2020 (9) TMI 1198X X X X Extracts X X X X X X X X Extracts X X X X ..... has erred in confirming the action of assessing officer in disallowing deduction of Rs. 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, filed her return of income for relevant assessment year on 25th September 2012. The case was selected for the scrutiny. During the assessment, the assessing officer from the computation of total income noted that the assessee has claimed deduction under section 80IB (10). The assessee claimed that she is 50% shareholder / co-owner with her son in housing project namely 'Hampton Park'. The assessing officer after issuing show cause notice and considering the reply furnished by assessee took his view that the project was undertaken by AOP/BOI/Firm. It was further held that to claim the deduction the assessee has to furnish the return of income before specified date in the status of association of person (AOP). On appeal before learned Commissioner of income tax (Appeals), the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovindbhai 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 names, receipt of booking amount from the-flat holders; audit report u/s.44A8 and 80IB(10) in respect of "Hampton Park", joint books of account-in the name of "Hampton Park" etc., were submitted by the assessee to the Assessing Officer to show that the project was being carried out under the status of Co-ownership". It was justified also stating that for the sake of ; convenience and to comply with the accounting procedure, they have maintained Coowners project account known as "Hampton Park" with joint books of account and said books reflect; all purchase of construction material, receiving the booking money, making payment towards purchase of construction raw material and also :other administrative expenses etc., In the year end, prof it derived from the said project has been apportioned be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 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 forced association of the joint legatees and therefore, the status can only be regarded as co-ownership. In support of this contention the assessee; has placed reliance on the decision of Hon'ble Allahabad High Court in the; case of CIT Vs. Laxmi P Da Sons 316 ITR 330 (All) wherein it was held that' an AOP is a voluntary association of two or more persons who join together; for a particular purpose and that the forced AOP because of inheriting joint property by way of will or such other circumstances not being voluntary; would not constitute such legatees as AOP. The ratio of above decision is directly applicable to the facts of the case and therefore the interpretation made by the assessee is correct as they cannot be regarded as AOP. We are of the view that the assessee was a builder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vindbhai 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 forced association of the joint legatees and therefore, the status can only be regarded as co-ownership. In support of this contention the assessee; has placed reliance on the decision of Hon'ble Allahabad High Court in the; case of CIT Vs. Laxmi P Da Sons 316 ITR 330 (All) wherein it was held that' an AOP is a voluntary association of two or more persons who join together; for a particular purpose and that the forced AOP because of inheriting joint property by way of will or such other circumstances not being voluntary; would not constitute such legatees as AOP. The rati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 son had agreed to share receipts in the ratio of 50%. It is further relevant to note that all the expenditure for the execution of project was incurred by the, assessee and his son. furrier, the following case laws CIT Vs. Laxmi PD. & Sons 316 ITR 330, Sudhir Nagpal and Others vs. ITO 349 ITR 636 (P & H), Baryyopd Estate Vs. State of Tamil Nadu 215 ITR 0520 (Mad), Brahma; Associates Vs. JCIT 119 ITD 255 (Pune) (SB), Hansa Dalakoti Vs. ACIT in ITA N6.3352/Del/201f (Del) and ITO Vs. S. Venkataiah in ITA No.52 SOT 434 (Hyd) are supports the case of the assessee." 12. Our view is Further, fortified from the decision of Hon'ble Karnataka High Court in the case of CIT v. Shrayanee Constructions [2012] 22 taxmann.com 250 (Kar.) wherein it was has held that it is not merely building housing project ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vour 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 A.Y. 2009-10 dated 10.01.2018] has allowed the benefit to individual; assessee. The Co-ordinate Bench of Pune Tribunal has also relied on following case laws i.e. Income Tax Vs. Mahalakshmi Housing, 41 taxmann.com 146 (Madras); Income Tax Officer Vs. M/s. Shalom Sankalp Ventures in ITA No. 1696/Ban§/2013 for assessment year 2008-09decided on 03-11- 2016; Assistant Commissioner of Income Tax Vs. M/s Sri Lakshmi Brick industries in ITA Nos. 1644 to 1647/Mds/2012 for assessment years2006-07 to 2009- 10 decided on 22-11-2012; Deputy Commissioner of Income Tax Vs. M/s. AKS Housing Development Co. P. Ltd, in ITA No. 1766/Mds/2012 for assessment year, 2009-10 decided on 30-11 2012. Therefore, respectfully following the ratio laid down in above decisions and facts of the case as discussed above, we allow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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