TMI Blog2015 (4) TMI 1325X X X X Extracts X X X X X X X X Extracts X X X X ..... der of the CIT(A) and delete the disallowance of claim of deduction under section 80IB(10) of the Act. Thus, this ground of appeal of the assessee is allowed. - ITA No. 2385/Ahd/2012 - - - Dated:- 29-4-2015 - SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER For the Assessee : Ms.Urvashi Shodhan For the Revenue : Shri Nimesh Yadav, Sr.DR ORDER PER N.S. SAINI, ACCOUNTANT MEMBER: This is an appeal filed by the assessee against the order of the Commissioner of Income-Tax (A) III, Baroda dated 21.8.2012. 2. Sole ground of appeal taken in this appeal is that the CIT(A) erred in confirming the action of the AO by disallowing the claim under section 80IB(10) of the Act. 3. In the instant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e according to him, the Assessee was a contractor and therefore not eligible for deduction u/s 801B(10). We also find that on identical facts, the co-ordinate Bench of the tribunal in the case of Satsang Developers (ITA No 1011, 2498 and 1221 of 2012 order dated 12.11.2013 has allowed the deduction to assessee by holding as under:- 4.2. In addition to above two objections, the Id.CIT (A) has raised one more objection that the assessee has sold the land to the Unit holders separately and has done the construction of units under separate agreement/contract and, therefore, the assessee is not eligible for deduction u/s.80-IB(10) of the Act because as per ld.CIT(A), profit earned by the assessee in respect of sale of land is not eligible for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He submitted that in the case of Vardhman Builders Developers (supra) also, the assessee had entered into a separate agreement for sale of land and separate agreement for construction of housing on such land and under these facts, it was held by the Tribunal in that case that merely because of two separate agreements, the claim of the assessee for deduction u/s.80-IB (10) of the Act cannot be declined if other conditions are being satisfied. 5.3. He further submitted that in the case of DCIT vs. SMR Builders (P) Ltd. (supra) also, the facts were that the assessee had sold flats in a semi-finished stage. In that case, the AO had noted that as per the sale-deed, the assessee-company has sold undivided share of land with super-structure o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... separately and undertook the construction work as per a separate agreement and, therefore the assessee is not a builder or a developer but a land dealer and contractor. In this regard, in our considered opinion, the issue involved is squarely covered in favour of assessee by the decision of ITAT Indore Bench rendered in the case of M/s.Vardhman Builders and Developers vs. ITO (supra). It is noted by the Tribunal in that case that the assessee had entered into an agreement for a sale of land and a separate agreement for construction of the house on the land and, therefore, the facts are similar. Under these facts, it was 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 decline ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure reliability and thereafter, the assessee had proceeded to construct the house as per building plan obtained in the name of the plot-owners on payment of subsequent installments. It is also noted that the assessee had also developed various public amenities within the project. Thereafter, it was held by the Tribunal that on a totality of a fact, the Tribunal is of the view that the assessee has undertaken developing and building housing projects as per the scheme provided in section 80- IB (10) of the Act. 9.3. Since the facts in the present case are similar to the facts in above noted three Tribunal decisions, we do not find any defect in the construction in the present case and hence respectfully following these decisions, we decide ..... X X X X Extracts X X X X X X X X Extracts X X X X
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