TMI Blog2021 (8) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... onfirming 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 in the circumstances of the case as well as law on the subject, the learned Commissioner of income Tax (Appeals) has erred in confirming the action of assessing officer in disallowing deduction of ₹ 59,80,995/- claimed by assessee u/s 80IB(10) of the IT Act, 1961. 2. Brief facts of the case are that assessee is an individual and engaged in the business of travel agent under the name style of proprietary concern M/s Govindji Patel Co. and also in development building of housing project. The assessee filed his return of income for AY 2013-14 declaring total income of Rs,.6,75,629/-. During the year, the assessee undertook a development of housing project and claimed deduction under section 80IB(10) of the Income Tax Act 1961, ( the Act for short). The assessee developed housing project in the name of Hampton Park alongwith his mother. The assessee and his mother were having 50% shareholding in housing project. The assessee in his computation of income claimed ded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objection allowed deduction in favour of co-owner (mother of assessee) The Ld. AR of the assessee further submits that by following the decision of co-owner s case in assessment year2011-12 for similar deduction was allowed to the co-owner in assessment year 2012-13 and again in assessment year 2013-14 in ITA No.238/Ahd/2017 dated 23.09.2020 and ITA No.148/Srt/2017 for assessment year 2012-13 and 2013-14 respectively. The Ld. AR of the assessee placed on record copy of decisions of Tribunal. 5. On the other hand, Ld. Sr.DR for the Revenue relied upon the order of authorities below. 6. We have considered the rival submission of both the parties and have gone through the order of authorities below. We have also deliberated on the decision of Tribunal (authored by the same combination) in assessee s coowner s case (mother of assessee), wherein on identical set of fact in assessment year 2013-14 the Tribunal passed the following order:- 4. We have considered the contention of both the parties and perused the order of Lower Authorities carefully. We have noted that the Id.CIT(A) in para 6.1.2 confirmed the disallowance under section 80IB of the Act by following his predecesso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receiving the booking money, making payment towards purchase of construction raw material and also :other administrative expenses etc., In the year end, proof it derived from the said project has been apportioned between Co-owners in their 50:50 ratio and same has been shown in the income tax returns individually. The application for development of the housing project was filed jointly and by assessee and her son and approval of housing project has been granted accordingly. Thus, the assessee and her son are the co-owners of the land and the subsequent development of housing project in the name of Hampton Park on the impugned land is also in the status of co-ownership of the assessee and her son. The assessee has developed the housing project and claimed deduction u/s.80IB of the Act in respect of this housing project as co-owner. We Further, notice that the assessee has filed report in Form No. 10 CCB in support of claim of deduction u/s. 801B(10) of the Act. This report requires the assessee to state ownership status of the undertaking/ enterprise in SL No. 4 of the Form. This Form specifically requires assessee to state as to whether the undertaking (enterprise is fully ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and developer. It carried out the project for developing the land held by assessee. Assessee received his share of profit from the same and claimed deduction of the her share of profit as per provision of section 80IB (10). The AO declined the benefit of deduction to the assessee on the premise that deduction u/s. 80IB(10) was available only to an undertaking engaged in developing and building house project subject to fulfilment of conditions laid down in subsection (10) of section 80IB. It is settled law that owner of the land as well as developer of the land both were eligible for claiming deduction under section 80IB(10) in respect of housing project where the owner contributes the land as well as resources to develops the housing project. Thus, assessee was also eligible for claiming deduction under section 80IB(10) as it full fills all the conditions laid down under section 80IB.The learned counsel for the assessee has relied in the case of Sudhir Nagpal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and developer. It carried out the project for developing the land held by assessee. Assessee received his share of profit from the same and claimed deduction of her share of profit as per provision of section 80IB (10). The AO declined the benefit of deduction to the assessee on the premise that deduction u/s. 80IB(10) was available only to an undertaking engaged in developing and building house project subject to fulfilment of conditions laid down in subsection (10) of section 80IB. It is settled law that owner of the land as well as developer of the land both were eligible for claiming deduction under section 80IB(10) in respect of housing project where the owner contributes the land as well as resources to develops the housing project. Thus, assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, which attracts provisions of section 80IB(10), it is developing and building housing project, which attracts said provisions for allowing deduction under section 80IB of the Act. The Hon'ble High Court observed as follows: 8. In terms of the agreement, which are not in dispute, the assessee not only undertook the aforesaid development activities on the land in question, but in fact, he entered into an agreement of sale with the owners of the land, paid the entire consideration but he did not take a registered sale creed in his name. On the contrary, the procedure adopted is he in turn entered into a joint development agreement with the builder and the owner of the land made a party to the said proceedings. Thus, the assessee contributed the land, undertook the aforesaid developmental activities in the said land and thus, complied with all other conditions, which have to be fulfilled before chiming benefit under Section 80IB(10) of the Act The builder has invested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 the benefit of deduction u/s. 80IB(10) to the assessee. In the light of above. facts and circumstances, the appeal of the assessee is allowed. 14.In the result, the appeal of the assessee stands allowed. 6. Considering the aforesaid decision of Tribunal on identical set of fact, wherein no variation in facts in brought to our notice for the year under consideration, nor any contrary law is shown to us to take other view, therefore, respectfully following the decision of coordinate bench, the appeal of assessee is allowed with similar observation. 5. Considering the decision of the Tribunal on identical set of facts for AY 2011-12, which was further followed in AY 2012-13, wherein no variation in facts is brought to our notice nor any contrary law shown to us, therefore following the decisions of Coordinate Bench decision, the appeal of the assessee is allowed with similar observation. 6. In the result, appeal of the assessee is allowed. 7. Considering the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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