TMI Blog2014 (9) TMI 1244X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee and in some cases, the development permissions may also have been obtained in the name of the original land owner - ownership of land is not a necessary condition for claiming the deduction u/s 80IB(10) - Assessee has acquired dominant control over the land, Assessee is responsible for incurring all the expenses and taking all the risks involved - Assessee is not a contractor - Decided in favour of assessee. - I.T.A. No. 293/Ahd/2013 - - - Dated:- 12-9-2014 - SHRI N.S. SAINI, ACCOUNTANT MEMBER And SHRI KUL BHARAT, JUDICIAL MEMBER For the Appellant : Shri M.K. Singh, Sr.DR For the Respondent : Shri J.P. Shah, AR ORDER PER SHRI KUL BHARAT, JUDICIAL MEMBER : This appeal by the Revenue is directed against the order of the Ld.Commissioner of Income Tax(Appeals)-VI, Baroda ( CIT(A) in short) dated 19.11.2012 pertaining to Assessment Year (AY) 2009-10. The Revenue has raised the following grounds of appeal:- 1. On the facts and in the circumstances of the case and in law, The learned CIT(A) erred in law in allowing deduction of ₹ 48,18,878/- u/s.80IB(10) of the IT Act without appreciating that legal relationship between the assessee an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the decision of this Tribunal rendered in the case of M/s.Satsang Developers vs. ACIT in ITA Nos.1011, 2498 1221/Ahd/2012, dated 12/11/2013. The ld.counsel for the assessee submitted that in the aforesaid decision, the Hon ble Jurisdictional High Court decided the case in favour of assessee and against the Revenue. Further, the ld.counsel for the assessee submitted that assessee-firm had taken full responsibilities for execution of development of project and provided all common amenities like common-road, light, water facilities, etc. and all other conditions specified u/s.80IB(10) of the Act had fulfilled by the assessee-firm. He pointed out even, plan of housing project was approved in favour of the Assessee. 3.2. In rejoinder, the ld.Sr.DR submitted that the issue is squarely covered by the decision of Hon ble Coordinate Bench (ITAT Indore Bench) in the case of Sky Builders Developers vs. ITO reported at (2011) 14 Taxman.com 78 (Indore). 4. We have heard the rival submissions, perused the material available on record and gone through the orders of the authorities below. We find that the AO treated the assessee as a work contractor relying on the decision of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing project. He submitted that in the present case, the Revenue wants to bring this on record that as per Gujarat Town Planning and Urban Development Act, 1976 and the Regulations framed thereunder, it is necessary that ownership of the land is a condition precedent for developing the housing project. In this regard, we find that in this very judgement of Hon ble Gujarat High Court rendered in the case of CIT vs. Radhe Developers (supra), in para-19, it was noted by the Hon ble Gujarat High Court that the ld. Counsel for the assesse submitted that under the Gujarat Town Planning and Urban Development Act as also the General Development Act and Control Regulations applicable to the City of Vadodara, there is no requirement that only the owner can develop a housing project on any land. This goes to show that this Act and Regulations on which our attention is drawn by ld.DR of the Revenue has been very much available before Hon ble Gujarat High Court in the case of CIT vs. Radhe Developers (supra), and even after noting the same, it is observed by the Hon ble Gujarat High Court in that case that no provision of any other related statues was brought to their notice to demonstrate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as held by the Tribunal in that case that the claim of the assessee for deduction u/s.80-IB (10) of the Act cannot be declined if other conditions are being satisfied. Similarly, in the case of DCIT vs. SMR Builders (P.) Ltd. (supra) also, the assesse sold the land along with semi-finished structure to the buyers and as per separate agreement, agreed for construction for completion of balance work. Hence, the facts of this case are also similar because in that case also, the land was sold separately along with partial and unfinished construction of flats and, thereafter, construction agreement was entered into to carry out the balance construction work and under these facts, it was held by the Tribunal in that case that such agreement for construction to complete the balance work is only an incidental facilitation to protect interest of the parties and therefore, the assessee is eligible for deduction u/s.80-IB(10) of the Act. Similarly, in the case of Raghava Estates vs. Dy.CIT (supra) on which reliance was placed by the ld.AR of the assessee, the facts are similar. In that case also, the assessee had sold the plots separately and thereafter, constructed the houses and under these ..... X X X X Extracts X X X X X X X X Extracts X X X X
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