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TMI Blog2024 (8) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... ordingly the bench proposes to hear and disposed of this appeal ex-parte. The assessee has raised following revised grounds of appeal: 1) That, the Learned CIT (Appeals) has erred in law and on facts in disallowing the deduction of Rs. 67.30.6127- u/s 80IB(10) to the appellant. 2) That the Learned CIT (Appeais) failed to appreciate the binding order of Honourable ITAT, Indore. in the case of the appellant, which decided all the issues referred in this appeal in his favour, for the same project, in ITA No. 813/Ind/2014 for the A.Y. 2010-11. 3) That the Learned CIT(A) has failed to appreciate that the appellant has complied with all the conditions prescribed u/s 80IB (10) for the Phase-1 of the housing project and eligible to claim the deduction u/s 80IB (10) as a "standalone" project, even if Phase-II could not be completed due to legal dispute. 4) The Learned CIT(A) has failed to appreciate that ownership of land is, no issue, to claim deduction u/s 80IB(10). a) That the learned CIT (A) has erred in considering the appellant as a contractor despite the fact that the appellant has initially purchased the land and after taking due approvals from local authority in his name, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loper but only constructed the houses as a work contractor and (ii) the assessee has not furnished the completion certificate as per the provisions of section 80IB(10). The assessee challenged the action of the AO before the CIT(A) and contended that as per the agreement with the buyers the assessee has sold the plots of land along with constructed houses. The assessee contended that the plots of land were sold by executing sale deed before the construction of the houses to facilitate the buyers to availing loan from the banks/financial institutions. Thus, the assessee has given emphasis on the agreement to sell with the buyers wherein the amount of consideration was mentioned as composite for the land as well as houses on it. Further the assessee submitted that the assessee has got approval of two projects and claimed deduction u/s 80IB(10) only in respect of project which was completed and completion certificate was issued by the authority which is wrongly denied by the AO. The CIT(A) was not impressed with the contention of the assessee and upheld the order of the AO disallowing the claim of deduction u/s 80IB on both grounds that the assessee has not developed the project but h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of house under his project. Thereafter, he got the plot engaged in the house to be transferred, in the name of customer. * The land registry itself, provides that the registration of plot has been done in compliances to agreement between appellant and customer and after completion of such house and its possession is handed over to customers. Copy of possession letters was also filed before Assessing officer to evidence the same. * It is also important to note that the agreement with customers specifically mentions that in case of cancellation of agreement the re- registration of such plot shall be made by customers in favor of appellant. Consequently, all the documents and facts shows that the appellant is a Builders And Developers and not a contractor. ISSUE-I-STAND ALONE PROJECT * The plain reading of the section 80IB(10) makes it very clear that deduction u/s 80IB(10) is available to a housing project complying with various conditions. * The housing Project is defined in sec 80HHBA of Income Tax Act 1961. * As long as the appellant has complied with all the condition of Sec 80IB(10) in respect to one phase of a project by itself, it shall be treated "stand alone" ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven any cogent material or any reasoned finding to show that Appellant is a contractor. * It seems that only possible objection of A.O is that the registration in the name of customer was not made for the completed constructed house by the Appellant consequently he treats him as contractor. * On plain reading of section 80IB(10) it is clear that it does not provide at what stage registration of transfer of property in the name of customer should take place or at all there should be a registration. The section does not provides that to claim a deduction us 80IB (10) the assessee should own land. The issue of ownership of land is settled unanimously by all the courts and it was held that ownership of land is no issue for claiming section 80IB (10). Your attention is also drawn to various cases including 1. CIT v/s Vishal Developers Tax Appeal no. 507/2014 (Ahmeshabad hah Court) 2. CIT v/s Vandana Properties (2012) 19 Taxmann.com 316 (Bombay) 3. CIT v/s Sanghvee&Doshi Enterprises (2013) 29 Tахтани.com 388 (Madras)" 4. On the other hand, Ld. DR has submitted that the assessee has not disputed the fact that he has executed sale deed for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roject having an are of 1.65 hectares i.e. 4.08 acres at Village Tilimafi in Municipal Corporation. Sagar was approved. Thus the housing project as approved by the Local Authority, was on the total area 4.08 acres. It is noticed that this project was consisting of approximately 117 individual plots on which, the appellant was to construct residential houses. It would be relevant to reproduce the relevant portion of Section 80IB(10) of the Act as under :- "(10) The amount of deduction in the case of an undertaking developing and building housing project approved before the 31" day of March 2008 by a local authority B shall be hundred per cent of the profits derive in the previous year relevant to any assessment year from such housing project if (a) Such undertaking has commenced or commences development and construction of the housing project on or after the 1 day of October 1998 and completes such contraction - (i) In a case where a housing project has been approved by the local authority before the 1st day of April 2004 on or before the 31st day of March 2008 (ii) In case where a housing project has been or is approved by the local authority on or after the 1 day of April ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon by the appellant on this issue is not applicable in the instant case because those cases pertain to assessment years before A.Y. 2005-06. The provisions of Section 80IB(10) of the Act were substituted w.e.f. 01.04.2005 from A.Y. 2005-06 and the condition for completion of construction of the project as approved by the local authority within specified time has been provided in claus (a) of Section 80IB(10), which was not before AY. 2005-06. Thus, The appellant had not fulfilled the condition laid down under clause (a) of Section 80IB(10) of the Act. Hence, the appellant was not eligible for deduction u/s 80IB(10) of the Act. Further, it is also noticed in this case that the appellant has divided the whole project into number of independent plots. The appellant had sold the plots to various customers by registering the sale deed for a consideration. It is very important to note here that the appellant had also handed over the possession of the plots to the respective customers as the same has been specifically mentioned in the sale deed registered. For example perusal of a copy of sale deed furnished by the appellant during appellant proceedings it is noticed that the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 235 (MP) when'in Was held as under (head notes) "The orders passed by the Tribunal are binding of all the revenue authorities functioning under the jurisdiction of the Tribunal. The principal of judicial discipline require that the order of the higher appellant authorities should be followed unreservedly by the subordinate authorities The Tribunal has no right to come to a conclusion contrary to the reached by another Bench of the same Tribunal on the same facts. If the Tribunal was to take on opinion different from the are taken by earlier Bench it ought to place the matter before the President of the Tribunal so that he can have the case referred to a bench consisting of three or more Members for winch there is provision in the Income Tax Act itself. In view of the above the decision of Hon'ble the case of Sky Builders & Developers V/s ITO 1(1), (Supra) on the identical facts is binding in nature. Therefore considering the facts and circumstances of the case and the legal position on the issue I am of the considered view that the appellant had not completed the construction of the project as approved by the Local Authority on or before the specified date as required ..... X X X X Extracts X X X X X X X X Extracts X X X X
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