M/s. Casa Grande Private Limited, CHENNAI V. ACIT, CHENNAI

CO 201/CHNY/2012

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8476 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 1 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 11-04-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 09-04-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 10-12-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANIRUDH RAI
• Assessee Lawyers: N DEVANATHAN
• Keywords: Reopening of assessment
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : CHENNAI [BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI V. DURGA RAO, JUDICIAL MEMBER] I.T.A.NOS.1788 & 1930/MDS/2012 ASSESSMENT YEARS : 2008-09 AND 2009-10 THE ASSTT. COMMISSIONER OF INCOME-TAX COMPANY CIRCLE I(3) CHENNAI VS M/S CASA GRANDE PVT. LTD 10, RESERVE BANK COLONY THIRUVANMIYUR CHENNAI 600 041 [PAN AACCC 2758 A] (APPELLANT) (RESPONDENT) C.O.NOS.185 & 201/MDS/2012 ASSESSMENT YEARS : 2008-09 AND 2009-10 M/S CASA GRANDE PVT. LTD 10, RESERVE BANK COLONY THIRUVANMIYUR CHENNAI 600 041 VS THE ASSTT. COMMISSIONER OF INCOME-TAX COMPANY CIRCLE I(3) CHENNAI (CROSS OBJECTOR) (RESPONDENT) DEPARTMENT BY : SHRI ANIRUDH RAI, CIT/DR ASSESSEE BY : SHRI N. DEVANATHAN, ADVOCATE DATE OF HEARING : 09-04-2013 DATE OF PRONOUNCEMENT : 11-04-2013 O R D E R PER N.S. SAINI, ACCOUNTANT MEMBER THESE ARE THE APPEALS FILED BY THE REVENUE AND THE CROSS OBJECTIONS FILED BY THE ASSESSEE AGAINST THE ORDER S OF THE LD. CIT(A) I.T.A.NOS1788 & 1930/12 C.O .NOS.185 & 201/12 :- 2 -: III, CHENNAI, DATED 15.6.2012 AND 9.7.2012, FOR THE ASSESSMENT YEARS 2008-09 AND 2009-10, RESPECTIVELY. 2. THE LD. CIT/DR SUBMITTED THAT IN BOTH THE APPEALS, COMMON ISSUE AND GROUNDS ARE INVOLVED. HE SUBMITTED THAT T HE ONLY ISSUE INVOLVED IN BOTH THE APPEALS WAS THAT THE LD. CIT(A ) ERRED IN ALLOWING THE CLAIM OF THE ASSESSEE U/S 80IB(10) IN RESPECT OF ITS PROJECT NAMED RIVIERA AT PALLIKARANAI, CHENNAI, BY OBSERVING A S UNDER: 5.5 I HAVE CAREFULLY CONSIDERED THE FACTS OF TH E CASE AND THE SUBMISSION OF THE ID. AR. I HAVE ALSO GONE THRO UGH THE DECISIONS RELIED ON BY THE ID.AR AS WELL AS PROVISI ONS OF SEC 80-IB(10). I HAVE ALSO GONE THROUGH THE DETAILS FUR NISHED BY THE APPELLANT INCLUDING THE APPROVAL AND COMPLETION CERTIFICATES ISSUED BY CMDA ON 21.02.2008 AND 02.02 .2010 RESPECTIVELY, SALE AGREEMENT, POWER OF ATTORNEY, CO PY OF SALE AGREEMENT FOR TRANSFER OF UNDIVIDED SHARE OF LAND, CONSTRUCTION AGREEMENT, AREA & ALLOTTEE DETAILS OF THE FLATS OF THE PROJECT, BALANCE SHEET AND PROFIT & LOSS ACCOUN T ETC. THE APPELLANT HAD ALSO FURNISHED ALL THESE DETAILS BEFO RE THE AO. DEDUCTION U/S 80-IB IS ALLOWED IF THE FOLLOWING CON DITIONS ARE FULFILLED. (I) THERE SHOULD BE AN UNDERTAKING FOR DEVELOPING AND BUILDING A HOUSING PROJECT. (II) SUCH HOUSING PROJECT SHOULD BE APPROVED BY A LOCAL AUTHORITY BEFORE 31.3.2008. (III) THE ASSESSEE COMMENCES DEVELOPMENT AND CONSTRUCTION OF THE HOUSING PROJECT ON OR AFTER 1.10.1998 AND COMPLETES SUCH CONSTRUCTION WITHIN FOUR YEARS FROM THE END OF THE FINANCIAL YEA R IN WHICH THE PROJECT IS APPROVED BY THE LOCAL AUTHORIT Y. THE COMPLETION PERIOD IS FIVE YEARS IF THE APPROVAL IS TAKEN AFTER 1.4.2005. (IV) THE HOUSING PROJECT SHOULD BE ON A PLOT SIZE O F MORE THAN 1 ACRE. I.T.A.NOS1788 & 1930/12 C.O .NOS.185 & 201/12 :- 3 -: (V) THE BUILT-UP AREA SHOULD NOT EXCEED 1000 SQ.FT IF IT IS SITUATED IN THE CITY I WITHIN 25 KILOMETRES FROM THE MUNICIPAL LIMIT OF MUMBAI AND DELHI AND 1500 SQ.FT AT ANY OTHER PLACE. IN RESPECT OF 'RIVIERA' PROJECT UNDER CONSIDERATION, T HE APPELLANT HAS ACQUIRED A PLOT WHICH IS OF THE SIZE OF MORE THAN 1 ACRE (PLOT SIZE 196015 SQ.FT.). BUILDING PLANNING PERMIT WAS GRANTED FOR THE HOUSING PROJECT BY CMDA ON 21.02.20 08. THE HOUSING PROJECT CONSIST OF 220 FLATS. THE BUILT UP AREA OF ALL THESE FLATS WERE BELOW 1500 SQ.FT EACH. THE BUILDIN G COMPLETION CERTIFICATE WAS ISSUED' BY CMDA ON 02.02 .2010 WHICH WAS WITHIN THE TIME ALLOWED IN SEC 80-1B(10). IN VIEW OF THE ABOVE, ALL THE CONDITIONS PRESCRIBED U/S 80- 1B(10) OF THE ACT ARE SATISFIED. 5.6 AS REGARDS THE ISSUE AS TO WHETHER THE ASSES SEE IS A DEVELOPER OR MERE WORKS CONTRACTOR, IT IS FOUND FRO M THE MATERIALS ON RECORD THAT THE APPELLANT HAS INVESTED MONEY ON ACQUIRING THE LAND AND EXECUTING THESE CONSTRUCTION S. THUS, THE APPELLANT WAS THE DEVELOPER. THE APPELLANT HAS INVESTED ITS OWN MONEY AND TAKEN THE RISK FROM THE STAGE OF ACQUISITION OF LAND TILL SALE OF THE FLATS TO THE P ROSPECTIVE BUYERS. IT HAS MADE THE PLANS FOR THE BUILDINGS, GO T APPROVAL FROM THE LOCAL AUTHORITY, APPOINTED CONTRACTORS FOR CONSTRUCTING THE BUILDING, ADVERTISED FOR THE PROJE CTS, NEGOTIATED WITH THE CUSTOMERS REGARDING THE FINAL P RICE OF THE FLAT, ENTERED INTO AGREEMENT OF SALE OF UDS AND CON STRUCTION WITH THE PURCHASERS OF FLATS, GOT THE COMPLETION CE RTIFICATE FROM CMDA ETC. THE INVESTMENT RISK WAS ALSO TAKEN B Y THE APPELLANT. IF THE FLATS WERE NOT SOLD AND IF THERE WAS LOSS, THE SAME HAS TO BE BORNE BY THE APPELLANT. THESE ACTIVI TIES CLEARLY REVEAL THAT THE APPELLANT WAS A DEVELOPER A ND NOT A MERE 'WORKS CONTRACTOR'. IN FACT, THE APPELLANT HAS APPOINTED M/S. RAMCONS AS THE CONSTRUCTION CONTRACTOR WHO EXE CUTED THE CIVIL WORKS. THE APPELLANT HAS DEDUCTED TDS @ 2% ON THE PAYMENTS MADE TO M/S. RAMCONS U/S 194C. HENCE, EXPLANATION TO SEC 80-IB(10) IS NOT ATTRACTED TO TH E FACTS OF THE INSTANT CASE. RELIANCE IS ALSO PLACED ON THE DE CISIONS OF HON'BLE CHENNAI ITAT IN THE CASE OF ACIT V, SMT. C. RAJNI IN ITA NO.1239/MDS/2008 DATED 10.12.2010, ACIT V . M/S SASHWATH CONSTRUCTIONS PVT.LTD IN ITA NO. 1069(MDS) /2008 DATED 25.2.2008, DECISION OF THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF CIT V . M/LS SHRAVANEE CONSTRUCTIONS (ITA NO.421 AND 422/2009 DATED 28.02.2012) AND THE DECISION OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT V . RADHE DEVELOPERS(SUPRA). IN CASE OF RADHE DEVELOPER S, THE I.T.A.NOS1788 & 1930/12 C.O .NOS.185 & 201/12 :- 4 -: HON'BLE HIGH COURT HELD THAT THE OWNERSHIP OF LAND IS NOT A CONDITION PRECEDENT FOR DEVELOPING AND BUILDING HOU SING PROJECT U/S 80-IB(10). IT FURTHER HELD THAT THE ASS ESSEE HAD UNDERTAKEN THE ENTIRE TASK OF DEVELOPMENT, CONSTRUC TION AND SALE OF THE HOUSING UNITS TO BE LOCATED ON THE LAND BELONGING TO THE ORIGINAL LAND OWNERS. FURTHER, THE RISK ELEM ENT WAS ENTIRELY THAT OF THE ASSESSEE FIRM. THE ASSESSEE TO OK THE FULL RISK OF EXECUTING THE HOUSING PROJECTS AND THEREBY MAKING PROFIT OR LOSS, AS THE CASE MAY BE. THE ASSESSEE IN VESTED ITS OWN FUND IN THE COST OF CONSTRUCTION AND ENGAGEMENT OF VARIOUS AGENCIES. HENCE, APPEAL OF REVENUE WAS DISM ISSED AND CLAIM OF DEDUCTION U/S 80-IB(10) WAS ALLOWED. I N THE PRESENT CASE ALSO, THE APPELLANT HAD UNDERTAKEN THE DEVELOPMENT OF THE HOUSING PROJECT AT ITS OWN RISK AND COST. THE ENTIRE RISK OF INVESTMENT AND EXPENDITURE WAS T HAT OF THE APPELLANT. RESULTANTLY, THE PROFIT OR LOSS WOULD AL SO ACCRUE TO THE APPELLANT ALONE. IN VIEW OF THE FACTS DISCUSSED ABOVE AND RESPECTFULLY FOLLOWING THE PRECEDENTS, I AM OF THE CONSIDERED OPINION THAT THE APPELLANT IS THE DEVELO PER AND BUILDER OF 'RIVIERA' HOUSING PROJECT. EXPLANATION T O 80-IB(10) WOULD HAVE NO BEARING TO THE FACTS OF THE INSTANT C ASE. ACCORDINGLY, THE APPELLANT IS ELIGIBLE FOR DEDUCTIO N U/S 80- IB(10). 5.7 THE AO HAS ALSO TREATED THE APPELLANT AS A C ONTRACTOR BECAUSE IT IS FOLLOWING AS-7 WHICH IS PRESCRIBED FO R RECOGNIZING REVENUE IN CONTRACTS WORK. SUCH A CONCL USION IS NOT WARRANTED BECAUSE THE ACCOUNTING STANDARDS(AS) ONLY HELP IN RECOGNIZING REVENUE OF THE ASSESSEE AND NOT IN CLASSIFYING THE CATEGORY OF THE ASSESSEE. EVERYONE FOLLOWING AS-7 CANNOT BE TREATED AS CONTRACTOR. THIS IS MORE SO BECAUSE NO AS IS SPECIFICALLY RECOMMENDED FOR DEVEL OPERS. IN ABSENCE OF THE SAME, WHEN EVERY ASSESSEE IN THE CONSTRUCTION FIELD FOLLOWS THE SAME STANDARD, THE A PPELLANT DOES NOT AUTOMATICALLY BECOME A WORKS CONTRACTOR. B E THAT AS IT MAY, SUBSTANCE OF THE TRANSACTIONS SHOULD PRE VAIL OVER ITS FORM. REFERENCE MAY BE MADE TO THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF KARANPURA DEVELOPMENT CO. LTD V. CIT (44 ITR 362). IN DECIDIN G WHETHER AN ASSESSEE IS A DEVELOPER OR A CONTRACTOR, ONE MUST NOT SEE THE FORM WHICH IT GAVE TO THE TRANSACT IONS OR THE METHOD OF ACCOUNTING IT FOLLOWED, BUT THE SUBSTANCE OF THE MATTER. THE APPELLANT HAS EXHIBITED ALL THE CHARACT ERISTICS OF A DEVELOPER WHICH HAS BEEN ELABORATELY DISCUSSED IN T HE PRECEDING PARAGRAPHS. HENCE, REJECTING THE CLAIM ON MERELY A TECHNICAL GROUND THAT THE APPELLANT IS FOLLOWING AS-7 IS NOT PROPER. THE HON'BLE SUPREME COURT IN THE CASE OF BA JAJ I.T.A.NOS1788 & 1930/12 C.O .NOS.185 & 201/12 :- 5 -: TEMPO LTD V. CIT (62 TAXMAN 480) HELD THAT A PROVIS ION IN THE TAXING STATUTE GRANTING INCENTIVES SHOULD BE CO NSTRUED LIBERALLY AND FURTHER THE RESTRICTION ON IT TOO HAS TO BE CONSTRUED SO AS TO ADVANCE THE OBJECTIVE OF THE PRO VISION AND NOT TO FRUSTRATE IT. HENCE, THE DISALLOWANCE OF DED UCTION U/S.80IB(10) CANNOT BE SUSTAINED MERELY BECAUSE THE APPELLANT HAS FOLLOWED AS-7. IN VIEW OF THE ABOVE FACTUAL AND LEGAL POSITIONS, T HE AO IS DIRECTED TO ALLOW DEDUCTION U/S 80IB(10) IN RESPECT OF RIVIERA PROJECT. THE GROUND IS ALLOWED. 3. THE LD. CIT/DR FURTHER SUBMITTED THAT THE DECISI ON OF THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF SHRAVAN EE CONSTRUCTIONS RELIED ON BY THE LD. CIT(A) IN HIS ORDER WAS NOT AC CEPTED BY THE DEPARTMENT AND SLP PROPOSALS HAD BEEN FORWARDED. H E FURTHER SUBMITTED THAT THE LD. CIT(A) ERRED IN DELETING THE DISALLOWANCE OF DEDUCTION U/S 80IB(10) EVEN THOUGH EXPLANATION TO SECTION 80IB(10) CLEARLY STIPULATES THAT DEDUCTION U/S 80IB(10) WAS NOT AVAILABLE TO AN UNDERTAKING WHICH EXECUTES THE HOUSING PROJECT AS A WORKS CONTRACT AWARDED BY ANY PERSON INCLUDING THE CENTRAL AND STA TE GOVERNMENT. HE FURTHER SUBMITTED THAT IN THE CASE OF THE ASSESS EE WAS FOLLOWING ACCOUNTING STANDARD-7 WHICH PRESCRIBES FOR RECOGNIZ ING REVENUE IN CONTRACT WORKS. HENCE, THE ASSESSEE HAS CATEGORISE D ITSELF AS A CONTRACTOR AND NOT AS A DEVELOPER AND SELLER OF FLATS. HE FURTHER SUBMITTED THAT THE LAND COMPONENT OF THE RESIDENTIA L FLAT WAS TRANSFERRED TO THE BUYER OF FLAT BY WAY OF A REGIST ERED SALE DEED. THE I.T.A.NOS1788 & 1930/12 C.O .NOS.185 & 201/12 :- 6 -: CONSTRUCTION COMPONENT, ON THE OTHER HAND, WAS NOT SOLD TO THE BUYER BUT THE BUYER OF LAND ENTERED INTO A CONSTRUCTION C ONTRACT WITH THE ASSESSEE THROUGH A CONSTRUCTION AGREEMENT AND THE S PECIFICATION OF THE PROPOSED CONSTRUCTION CONTRACT WAS PROVIDED AS AN ANNEXURE. THEREFORE, ALL THE ESSENTIAL INGREDIENTS OF A CONST RUCTION CONTRACT WERE INCORPORATED IN THIS BUILDERS AGREEMENT WHICH CLEAR LY DEPICTS THE ROLE PLAYED BY THE ASSESSEE IN ERECTING THE RESIDENTIAL PROJECT. PROFITS OF THE ASSESSEE OUT OF SUCH CONSTRUCTION ACTIVITY IN W HICH IT PLAYED THE ROLE OF A CONTRACTOR AND NOT THAT OF A DEVELOPER WA S NOT ELIGIBLE FOR DEDUCTION 80IB(10). THE LD.CIT/DR SUBMITTED THAT A DEVELOPER OUGHT TO SALE LAND AND BUILDING TOGETHER AND CANNOT EXECU TE A CONSTRUCTION WORK IN RESPECT OF THE BUILDING COMPONENT. THE LD.C IT/DR SUBMITTED THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE IN ALLOWING THE CLAIM FOR DEDUCTION U/S 80IB(10) TO THE ASSESSEE BY FOLLOWING THE DECISION OF THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS M/S SHRA VANEE CONSTRUCTIONS, I.T.A.NO. 421 AND 422/2009, DATED 2 8.2.2012, DECISION OF THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF CI T VS RADHE DEVELOPERS, TAX APPEAL NO.546 OF 2008 AND OTHERS, O RDER DATED 13.12.2011 AS WELL AS THE DECISION OF THE CHENNAI BENCH OF THE TRIBUNAL IN THE CASE OF ACIT VS SMT. C.RAJNI, IN I.T.A.NOS1788 & 1930/12 C.O .NOS.185 & 201/12 :- 7 -: I.T.A.NO.1239/MDS/2008, ORDER DATED 10.12.2010 AND ACIT VS M/S SASHWATH CONSTRUCTIONS PVT. LTD. IN I.T.A.NO.1069/M DS/2008, ORDER DATED 25.2.2008, HOLDING THAT THE ASSESSEE HAD UNDE RTAKEN THE DEVELOPMENT OF THE HOUSING PROJECT AT ITS OWN RISK AND COST AND THE ENTIRE RISK OF INVESTMENT AND EXPENDITURE WAS OF TH E ASSESSEE AND RESULTANTLY, THE PROFIT OR LOSS ACCRUED TO THE ASSE SSEE ALONE. HE SUBMITTED THAT IN THE DECISION OF THE HON'BLE KARN ATAKA HIGH COURT IN THE CASE OF CIT VS M/S SHRAVANEE CONSTRUCTIONS (SUP RA), THE FACTS WERE DIFFERENT. IN THAT CASE, THE ASSESSEE SOLD SO ME OF THE FLATS AND THE AT THE END OF THE YEAR SOME OF THE FLATS REMAIN ED WITH THE ASSESSEE AS UNSOLD STOCK, WHICH WAS NOT THE FACTS I N THE PRESENT CASE. 4. ON THE OTHER HAND, THE LD. A.R OF THE ASSESSEE FULL Y SUPPORTED THE ORDERS OF THE LD. CIT(A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSED T HE ORDERS OF THE LOWER AUTHORITIES AND MATERIALS AVAIL ABLE ON RECORD. WE FIND THAT IN THE INSTANT CASE, THE ASSESSING OFFICE R DENIED DEDUCTION CLAIMED BY THE ASSESSEE U/S 80IB(10) IN RESPECT O F RIVIERA HOUSING PROJECT ON THE GROUND THAT IN HIS OPINION, THE ASS ESSEE WAS MERELY A CONTRACTOR AND NOT A DEVELOPER OF THE SAID PROJECT WITHIN THE MEANING OF SECTION 80IB OF THE ACT. ON THE OTHER HAND, TH E LD. CIT(A) I.T.A.NOS1788 & 1930/12 C.O .NOS.185 & 201/12 :- 8 -: ACCEPTED THAT THE ASSESSEE WAS DEVELOPER OF THE SA ID PROJECT AND THEREFORE, DIRECTED THE ASSESSING OFFICER TO ALLOW DEDUCTION U/S 80IB(10) OF THE ACT. THUS, THE ISSUE BEFORE US WHI CH REQUIRES ADJUDICATION IS WHETHER THE ASSESSEE WAS A CONTRAC TOR OR A DEVELOPER IN RESPECT OF THE RIVIERA HOUSING PROJECT. 6. WE FIND THAT THE ASSESSING OFFICER HAS HELD THAT TH E ASSESSEE WAS A CONTRACTOR SOLELY FOR THE REASON THA T THE ASSESSEE HAS INITIALLY SOLD UNDIVIDED SHARE OF THE LAND TO VARIO US PERSONS AND THEREAFTER ENTERED INTO A CONSTRUCTION AGREEMENT WI TH SUCH PERSONS FOR CONSTRUCTION OF RESIDENTIAL HOUSES AS PER THEIR SPE CIFICATIONS. THE RELEVANT OBSERVATION OF THE ASSESSING OFFICER IS AS UNDER: THE LAND COMPONENT OF THE RESIDENTIAL FLAT IS TRAN SFERRED TO THE BUYER OF FLAT BY WAY OF A REGISTERED SALE DEED. T HE CONSTRUCTION COMPONENT, ON THE OTHER HAND, IS NOT S OLD TO THE BUYER, BUT THE BUYER OF LAND ENTERS INTO A CONSTRU CTION CONTRACT WITH THE ASSESSEE THROUGH A CONSTRUCTION AGREEMENT, AND THE SPECIFICATIONS OF THE PROPOSED CONSTRUCTION CONTRAC T IS PROVIDED AS AN ANNEXURE. ALL THE ESSENTIAL INGREDIENTS OF A CONSTRUCTION CONTRACT IS INCORPORATED IN THIS BUILDERS AGREEMENT WHICH CLEARLY DEPICTS THE ROLE PLAYED BY THE ASSESSEE IN ERECTING THE RESIDENTIAL PROJECT. PROFITS OF THE ASSESSEE IS OUT OF SUCH CONSTRUCTION ACTIVITY IN WHICH IT PLAYS THE ROLE OF A CONTRACTOR AND NOT THAT OF A DEVELOPER. A DEVELOPER OUGHT TO SELL LAND AND BUILDING TOGETHER AND CANNOT EXECUTE A CONSTRUCTION CONTRACT IN RESPECT OF THE BUILDING COMPONENT. 7. THUS, A PERUSAL OF THE ABOVE SHOWS THAT THE ASSESSI NG OFFICER HAS MERELY TAKEN INTO CONSIDERATION THE FOR M OF THE I.T.A.NOS1788 & 1930/12 C.O .NOS.185 & 201/12 :- 9 -: TRANSACTIONS AND NOT CONSIDERED THE TRANSACTION AS A WHOLE TO ASCERTAIN THE ACTUAL FACTS OF THE CASE. THE ASSESSING OFFICE R HIMSELF STATES THAT THE LAND COMPONENT OF THE FLAT WAS SOLD BY THE ASS ESSEE TO THE BUYERS OF THE FLAT. THE ABOVE FINDING OF THE ASSESSING OF FICER CLEARLY SHOWS THAT THE LAND WAS SOLD TO THE FLAT BUYERS BY THE A SSESSEE. FURTHER, WE FIND THAT THE LD. CIT(A) HAS RECORDED THE FOLLOWING FINDING: IT HAS MADE THE PLANS FOR THE BUILDINGS, GOT APPRO VAL FROM THE LOCAL AUTHORITY, APPOINTED CONTRACTORS FOR CONSTRUCTING THE BUILDING, ADVERTISED FOR THE PROJE CTS, NEGOTIATED WITH THE CUSTOMERS REGARDING THE FINAL P RICE OF THE FLAT, ENTERED INTO AGREEMENT OF SALE OF UDS AND CONSTRUCTION WITH THE PURCHASERS OF FLATS, GOT THE COMPLETION CERTIFICATE FROM CMDA ETC. 8. WE FIND THAT NO DEFECT OR ERROR IN ANY OF THE ABOVE FINDING OF THE LD. CIT(A) COULD BE POINTED OUT BY THE REVENUE BEFORE US. IT IS NOT THE CASE OF THE REVENUE THAT THE ASSESSEE HAS NOT PLANNED THE HOUSING PROJECT IN QUESTION, THE ASSESSEE HAS NOT TAKEN PERMISSION IN ITS OWN NAME FOR CONSTRUCTION OF THE HOUSING PROJEC T, THE ASSESSEE HAS NOT ADVERTISED FOR THE PROJECT OR IT HAD NOT OB TAINED THE COMPLETION CERTIFICATE FROM THE APPROPRIATE AUTHORI TY FOR THE PROPERTY IN ITS OWN NAME. ON THE ABOVE UNDISPUTED FACTS, IN OUR CONSIDERED OPINION, THE ASSESSEE UNDERTOOK THE DEVELOPMENT OF HOUSING PROJECT IN QUESTION AS A DEVELOPER THEREOF IN SUBSTANCE AND THEREFORE, MERELY I.T.A.NOS1788 & 1930/12 C.O .NOS.185 & 201/12 :- 10 -: BECAUSE IT HAD, INSTEAD OF EXECUTING A CONSOLIDATED SALE DEED FOR FLAT AND LAND APPURTENANT THERETO, HAS TRANSFERRED THE F LAT BY EXECUTING A SALE DEED AND CONSTRUCTION CONTRACT WITH THE BUYER OF THE FLAT, IT CANNOT BE CONCLUDED THAT IN FACT THE ASSESSEE WAS NOT A DEVELOPER OF THE PROJECT AND THE ASSESSEE WAS MERELY A CONTRACT OR. FURTHER, THE LD. CIT/DR SUBMITTED THAT THE DECISION OF THE HON'B LE KARNATAKA HIGH COURT IN THE CASE OF SHRAVANEE CONSTRUCTIONS RELIED ON BY THE LD. CIT(A) IN HIS ORDER HAS NOT BEEN ACCEPTED BY THE DE PARTMENT AND SLP PROPOSALS HAVE BEEN FORWARDED. 9. IN REPLY TO THAT, THE LD. A.R OF THE ASSESSEE FILED BEFORE US A COPY OF THE ORDER DATED 19.11.2012 PASSED IN PETITI ONS FOR SPECIAL LEAVE TO APPEAL(CIVIL) CC 20122 -20123/2012, OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS SHRAVANEE CONSTRUCTIONS , AND POINTED OUT THAT THE SLPS FILED BY THE REVENUE AGAINST THE ORDE R OF THE HON'BLE KARNATAKA HIGH COURT WERE DISMISSED BY THE HON'BLE SUPREME COURT. 10. IN THE ABOVE CIRCUMSTANCES, WE DO NOT FIND ANY GOOD AND JUSTIFIABLE REASON TO INTERFERE WITH THE ORDERS OF THE LD. CIT(A) FOR BOTH THE ASSESSMENT YEARS UNDER CONSIDERATION WHICH ARE CONFIRMED AND THE GROUNDS OF APPEAL OF THE REVENUE ARE DISMISSED. I.T.A.NOS1788 & 1930/12 C.O .NOS.185 & 201/12 :- 11 -: 11. IN C.O. NO.185/MDS/2012, FOR ASSESSMENT YEAR 2008-0 9, THE ASSESSEE HAS CHALLENGED THE REOPENING OF ASSESSMENT . AT THE TIME TO HEARING, THE LD. A.R OF THE ASSESSEE SUBMITTED THAT HE IS NOT PRESSING THE CROSS OBJECTION AND IN EVIDENCE OF THE SAME, HE HAS MADE AN ENDORSEMENT TO THIS EFFECT ON THE GROUNDS OF CROSS OBJECTION FILED ALONGWITH FORM NO.36A. THEREFORE, THE CROSS OBJECT ION FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 2008-09 IS DISMISSED A S NOT PRESSED. 12. IN RESPECT OF C.O.NO.201/MDS/2012, FOR ASSESSMENT Y EAR 2009-10, THE LD. A.R OF THE ASSESSEE SUBMITTED THAT THE SAME WAS IN SUPPORT OF THE ORDER OF THE LD. CIT(A). AS THERE B EING NO GRIEVANCE AGAINST THE ORDER OF THE LD. CIT(A), THE CROSS OBJE CTION OF THE ASSESSEE FOR ASSESSMENT YEAR 2009-10 HAS BECOME INFRUCTUOUS AND HENCE, DISMISSED. 13. IN THE RESULT, THE APPEALS FILED BY THE REVENUE AND THE CROSS OBJECTIONS FILED BY THE ASSESSEE ALL ARE DI SMISSED. ORDER PRONOUNCED ON THURSDAY, THE 11 TH OF APRIL, 2013, AT CHENNAI. SD/- SD/- (V. DURGA RAO) JUDICIAL MEMBER (N.S.SAINI) ACCOUNTANT MEMBER DATED: 11 TH APRIL, 2013, RD COPY TO: APPELLANT/RESPONDENT/CIT(A)/CIT/DR