The ITO, Ward-9(2), Ahmedabad V. M/s. Dhanshree Devlopers, Ahmedabad

ITA 1307/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9322 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 8 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 18-01-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 14-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Assessee Lawyers: CHHAJED
• Keywords: Retrospective amendment; Question of law
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, A HMEDABAD , (BEFORE SHRI ANIL CHATURVEDI, A.M. & SHRI KUL BHARA T, J.M.) ( , !'# $ , ! %& ) ITA NO. 1307/AHD/2012 (ASSESSM ENT YEAR: 2008-09) ITO, WARD 9(2), AHMEDABAD VS. M/S. DHANSHREE DEVELOPERS 106/D, SHIROMANI COMPLEX, SATELLITE ROAD, NEHRUNAGAR, AHMEDABAD PAN NO. AAEFD1773F (APPELLANT) (RESPONDENT) APPELLANT BY : SMT. SONIA KUMAR, SR. D.R. RESPONDENT BY : SHRI M. S. CHHAJED, A.R. DATE OF HEARING : 19 -01-201 6 DATE OF PRONOUNCEMENT : 16-02-2016 ( )/ ORDER PER ANIL CHATURVEDI, ACCOUNTANT MEMBER THIS APPEAL FILED BY REVENUE IS AGAINST THE ORDER O F CIT(A)-XV, AHMEDABAD, DATED 16 TH APRIL, 2012 FOR THE ASSESSMENT YEAR 2008-09 . 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI ALS ON RECORD ARE AS UNDER: 3. THE ASSESSEE IS A PARTNERSHIP FIRM STATED TO BE ENGAGED IN THE BUSINESS OF CONSTRUCTION. ASSESSEE ELECTRONICALLY FILED ITS RE TURN OF INCOME FOR A.Y. 2008-09 ON 24.09.2008 DECLARING TOTAL INCOME AT RS. NIL AF TER CLAIMING DEDUCTION OF RS.83,69,575/- U/S.80IB(10) OF THE ACT. THE CASE W AS SELECTED FOR SCRUTINY AND THEREAFTER ASSESSMENT WAS FRAMED U/S.143(3) OF THE ACT VIDE ORDER DATED ITA NO.1307/AHD/12 A.Y. 2008-09 (ITO VS. M /S. DHANSHREE DEVELOPERS) 2 31.12.2010 AND THE TOTAL INCOME WAS DETERMINED AT R S.83,69,575/- BY DISALLOWING THE CLAIM OF DEDUCTION U/S.80IB(10). AGGRIEVED BY THE ORDER OF ASSESSING OFFICER, ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) W HO VIDE ORDER DATED 16 TH APRIL, 2012 ALLOWED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF LD. CIT(A), REVENUE IS NOW IN APPEAL BEFORE US AND HAS RAISED F OLLOWING GROUNDS: 1). THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)- XV, AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE ASSESSING OFFICER TO ALLOW T HE ASSESSEE'S CLAIM FOR DEDUCTION OF RS.83,69,575/- U/S. 80IB(10) OF THE IT. ACT. 2). THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) -XV, AHMEDABAD HAS ERRED IN HOLDING THAT THE ASSESSEE FULFILLS THE CONDITIONS LAID DOWN FOR CLAIMING DEDUCTION U/S.80IB(10) EVEN WHEN THE LAND WAS IN THE NAME OF VRUNDAVAN (NA RODA) CO.-OP. HOUSING SOCIETY LTD., WHICH IS A SEPARATE LEGAL ENTITY IN THE EYE O F LAW AND THE ASSESSEE ENTERED INTO THE PROJECT BY A DEVELOPMENT AGREEMENT WITH THE SOCIETY . THE LOCAL AUTHORITY ACCORDED PERMISSION FOR DEVELOPMENT AND CONSTRUCTION OF THE PROJECT TO POWER OF ATTORNEY OF SHRI BHIKHUBHA CHHAGANBHAI. THE ENTIRE RESPONSIBILITY TO EXECUTE THE HOUSING PROJECT AND ABIDE BY THE TERMS AND CONDITIONS OF ITS APPROVAL R IGHT FROM THE INCEPTION OF THE PROJECT TILL ITS COMPLETION RESTS WITH THE SOCIETY. THE LOC AL AUTHORITY HAD GRANTED PERMISSION FOR DEVELOPMENT TO THE SOCIETY. ASSESSEE WAS JUST A CON TRACTOR OF THE LAND OWNERS CONSTRUCTING RESIDENTIAL UNITS AND NOT A DEVELOPER. 3). ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV, AHMEDABAD OUGHT TO HAVE UPHELD THE OR DER OF THE ASSESSING OFFICER. 4. DURING COURSE OF ASSESSMENT PROCEEDINGS, ASSESSI NG OFFICER NOTICED THAT ASSESSEE HAS CLAIMED DEDUCTION U/S.80IB(10) OF THE ACT. ASSESSING OFFICER WAS OF THE VIEW THAT ASSESSEE DID NOT CONCEPTUALIZE THE PR OJECT, AS IT WAS NOTED THAT THE APPROVAL FOR THE PROJECT WAS NOT ISSUED TO IT BY TH E LOCAL AUTHORITIES BUT WAS ISSUED TO THE OWNERS OF THE LAND. HE WAS OF THE VIEW THAT ASSESSEE HAS ENTERED INTO PROJECT BY ENTERING INTO A DEVELOPMENT AGREEMENT WITH THE L AND OWNERS AND THE CONSTRUCTION WAS DONE AS PER THE AGREEMENT AND THER EFORE, ASSESSEE WAS MERELY A CONTRACTOR FOR THE PURPOSE OF CONSTRUCTION OF PROJE CT. HE FURTHER NOTICED THAT ASSESSEE HAD NOT SOLD ANY UNIT TO THE PURCHASER BUT THE SALE DEEDS WERE EXECUTED BY THE SOCIETY AND ASSESSEE JOINED ONLY AS A CONFIRMIN G PARTY TO THE TRANSACTIONS. HE WAS THEREFORE OF THE VIEW THAT THE PROFITS EARNED B Y THE ASSESSEE ON THE HOUSING ITA NO.1307/AHD/12 A.Y. 2008-09 (ITO VS. M /S. DHANSHREE DEVELOPERS) 3 PROJECT CALLED DHANSHREE BUNGLOWS WAS NOT ELIGIB LE FOR DEDUCTION U/S.80IB(10). HE ACCORDINGLY DENIED THE CLAIM OF DEDUCTION. 5. AGGRIEVED BY THE ORDER OF ASSESSING OFFICER, AS SESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) WHO AFTER CONSIDERING THE SUB MISSIONS OF THE ASSESSEE AND VARIOUS DECISIONS INCLUDING THAT OF HONBLE GUJARAT HIGH COURT DECIDED THE ISSUE IN FAVOUR OF ASSESSEE BY HOLDING AS UNDER: 14. I HAVE CONSIDERED THE FACTS OF THE CASE AS ENU MERATED BY THE A.O. IN THE ASSESSMENT ORDER. I HAVE PERUSED AND CONSIDERED THE CONTENTION OF THE A PPELLANT WITH EVIDENCES AS MADE BEFORE THE A.O. DURING THE ASSESSMENT PROCEEDINGS AND ALSO BEF ORE ME DURING THE APPELLATE PROCEEDINGS. AFTER CAREFUL CONSIDERATION OF ALL THESE FACTS AND SUBMISSIONS I AM INCLINED TO ACCEPT THE CONTENTIONS OF THE APPELLANT. 15. (A) HON'BLE GUJARAT HIGH COURT IN ITS LANDMARK JUDGEMENT DATED 13.12.2011 IN THE CASE OF RADHE DEVELOPERS, SHAKTI CORPORATION AND OTHERS VS. CIT AT PARA 4 AND PARA 5 ILLUSTRATE THE BASIC FACTS OF THE CASE OF M/S. RADHE DEVELOPERS. A T PARA 7, HON'BLE ITAT'S ORDER DATED 29.6.2007 WAS SUMMARIZED WHEREIN IT WAS HELD THAT F IRSTLY FOR DEDUCTION U/S.80IB(10) OF THE ACT IT IS NOT NECESSARY THAT THE ASSESSEE MUST BE THE OWNE R OF THE LAND AND SECONDLY LOOKING TO THE PROVISIONS CONTAINED IN SECTION 2(47) OF THE ACT RE AD WITH SECTION 53A OF THE TRANSFER OF PROPERTY ACT, BY VIRTUE OF THE DEVELOPMENT AGREEMENT AND THE AGREEMENT TO SELL, THE ASSESSEE HAD, FOR THE PURPOSE OF INCOME TAX, BECOME THE OWNER OF THE LAND . (B) AT PARA 8.3 & 8.4,, IT CONSIDERED HON'BLE ITAT ORDER DATED 7M 1.2008 IN THE CASE OF M/S.SHAKTI CORPORATION WHEREIN HON'BLE ITAT DIFFERE NTLY (DIFFERENT THAN M/S.RADHE DEVELOPERS CASE) HELD THAT CONSIDERING THE TERMS AND CONDITION S OF DEVELOPMENT AGREEMENT AND OTHER DOCUMENTS ON RECORD, THE ASSESSEE HAD ACQUIRED DOMI NION OVER THE LAND, WHICH HE HAD DEVELOPED BY CONSTRUCTING HOUSING PROJECT INCURRING EXPENSES AND ALSO TAKING RISKS. IT WAS HELD FURTHER BY HON'BLE ITAT THAT DEDUCTION U/S.8016(10) OF THE ACT ARE NOT TO BE GRANTED FOLLOWING RATIO OF ORDER OF M/S.RADHE DEVELOPERS WHERE THE ASSESSEE HAD ENTE RED INTO AN AGREEMENT FOR A FIXED REMUNERATION AND WORKED MERELY AS CONTRACTOR TO CON STRUCT THE HOUSING PROJECT ON BEHALF OF THE LAND OWNER. (C) ON THE BASIS OF FACTS OF ABOVE TWO CASES AND OT HER SIMILAR CASES, THE HON'BLE GUJARAT HIGH COURT FRAMED FOLLOWING SUBSTANTIAL QUESTION OF LAW: 'WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE APPELLATE TRIBUNAL WAS RIGHT IN LAW IN ALLOWING DEDUCTION U/S.80IB(10) R.W.S. 80IB( 1)TO THE ASSESSEE WHEN THE APPROVAL BY THE LOCAL AUTHORITY AS WELL AS COMPLETION CERTIFICATE W AS NOT GRANTED TO THE ASSESSEE BUT TO THE LANDOWNER AND THE RIGHTS AND THE OBLIGATIONS UNDER THE SAID APPROVAL WERE NOT TRANSFERABLE, AND WHEN THE TRANSFER OF DWELLING UNITS IN FAVOUR OF TH E END-USERS WAS MADE BY THE LANDOWNER AND NOT BY THE ASSESSEE?' (D) AT PARA 25, HON'BLE HIGH COURT CONSIDERED VARIO US PROVISIONS OF THE TRIPARTITE AGREEMENT DATED 18.5.2000 IN THE CASE OF M/S.RADHE DEVELOPERS . OUT OF SUCH PROVISIONS, FOLLOWING CLAUSES OF THE AGREEMENT ARE IMPORTANT: ITA NO.1307/AHD/12 A.Y. 2008-09 (ITO VS. M /S. DHANSHREE DEVELOPERS) 4 CLAUSE-4. WITH THE CONSENT OF THE PARTY OF THE FIRS T (I.E. LAND OWNER) AND SECOND PART (I.E. SOCIETY) THE PARTY OF THE THIRD PART (I.E. ASSESSEE ) AS A DEVELOPER AND BUILDER WANTS TO DO A PROJECT/SCHEME OF CONSTRUCTING RESIDENTIAL HOUSES H AVING AREA LESS THAN 1500 SQ.FT. FOR THE MIDDLE CLASS SOCIETY. CLAUSE-5. THE PARTY OF THE FIRST AND THE PARTY OF T HE THIRD PART HAVE EXECUTED ONE AGREEMENT OF SALE ON 18-05-2000 ACCORDINGLY ON THAT BASIS THE RI GHTS OF AGREEMENT OF SALE DATED 7-9-91 AT THE RATE OF RS.100/- PER SQ.FT. SUBJECT TO OTHER CONDIT IONS WRITTEN THEREIN ARE DECIDED TO BE PURCHASED BY THE PARTY OF THE THIRD PART. CLAUSE-6. IN FACT IN THE PARTY OF THE FIRST AND SEC OND PART CONFIRMING PARTY HAVE NO NECESSARY TECHNICAL KNOWLEDGE AND SKILL PASS THROUGH THE SAID SCHEME TO ARRANGE FOR CONSTRUCTING RESIDENTIAL HOUSES HAVING AREA LESS THAN 1500 SQ.FT . FOR THE MIDDLE CLASS SOCIETY AND ALSO HAVE NO FINANCE TO INVEST AS PER THE SIZE OF SCHEME AND TO REGISTER THE MEMBERS FOR THAT REQUIRED ALERTNESS AND SKILL BEING ABSENT THEY THEMSELVES ARE NOT IN A POSITION TO PLACE A PROJECT OR SCHEME ON THE LAND MENTIONED IN SCHEDULE IN SUCH CIRCUMSTANCES TO THE PARTY OF THE THIRD PART OVER AND ABOVE THE RIGHT TO PURCHASE THE RIGHTS OF AGREEMENT OF SA LE ON DT. 18-05-2000 THEY HAVE ALSO DECIDED TO GIVE ALL RIGHTS ALONG WITH CONSTRUCTING AND DEVELOP ING ON THE SAID LAND MENTIONED IN SCHEDULE BY THIS AGREEMENT DT.18-05-2000. CLAUSE 11 (3): THE SAID DEVELOPER CUM BUILDING CONT RACTOR IS AUTHORIZED TO ADMIT THE PERSONS WHO ARE WILLING TO JOIN IN THE SCHEME TO GET THE HO USES OF FIXED AREA AND IN THIS MANNER TO ADMIT THE RESPECTIVE MEMBER IN THE SCHEME OR AT THE TIME OF ADMISSION OF SUCH MEMBER AS PER THE SCHEME THE FIXED AMOUNT O F CONTRIBUTION OF CONSTRUCTION AND OTHER AMOUNTS AND INCIDENTAL EXPEN SES THAT THE ADMITTING MEMBERS SHALL HAVE TO PAY AS ADMISSION FEES THE REC EIPT OF DEPOSIT OR A CLEAR RECEIPT OF AMOUNT CONTRIBUTION SHALL HAVE TO BE GIV EN, MOREOVER THE DEVELOPER CUM BUILDING CONTRACTOR HAS GIVEN FULL RIGHT AND AU THORITY ALSO TO DECIDE THE PRICE OF HOUSES OF THIS SCHEME AND TO EXECUTE NECES SARY AGREEMENTS WITH THE PURCHASERS OF HOUSES. CLAUSE 11(11): THAT THE SAID DEVELOPER CUM BUILDING CONTRACTOR AS PER THIS SCHEME, WHATEVER CONSTRUCTION HE SHALL DO ON THE LAND DESCRIBED IN S CHEDULE SHALL BE AUTHORIZED TO ALLOT TO THE RESPECTIVE MEMBER AND ALSO OUT OF THIS LAND DEDUCTING THE CONSTRUCTED LAND AND DEDUCTING THE LAND OF MARGIN AND PASSAGE W HATEVER EXCESS LAND THAT SHALL REMAIN THEN DEVELOPER CUM BUILDING CONTRACTOR SHALL HAVE RIGHT TO ALLOT THAT LAND. CLAUSE 11(13): AS PER THIS SCHEME DEVELOPER CUM BU ILDING CONTRACTOR HAS GIVEN INCIDENTAL LUMP SUM ESTIMATE OF PRICE FOR THE RESIDENTIAL HOUSES TO BE CONSTRUCTED BUT AS PER THE STEP-STAGE WISE DEVELOPMENT OF THE SCHEME AND AS PE R THE CHANGES DEVELOPER CUM BUILDING CONTRACTOR IS AUTHORIZED TO REVISE THE ESTIMATE AND THAT SHALL ALWAYS BE AGREEABLE AND BINDING TO THE MEMBERS. CLAUSE 11(16): THE PARTY OF THE FIRST AND SECOND PA RT HAVE HANDED OVER ALL THE RESPONSIBILITIES OF THE SCHEME TO THE DEVELOPER CUM BUILDING CONTRAC TOR SO AT PRESENT TO THE PARTY OF THE FIRST PART AS PER RULES AND REGULATION S HE IS GETTING F.S.I, BUT IN FUTURE IF CHANGES TAKE PLACE IN RULES AND REGULATION OF F. S.I IN SUCH CIRCUMSTANCES OTHER THAN THE PRESENT SCHEME ON THE LAND IF SPECIAL CONS TRUCTION IS ALLOWED THEN FOR SUCH ADDITIONAL WORK OTHER THAN TOTAL CONSTRUCTION MADE, AS PER RULES AND REGULATIONS BY GETTING PASSED THE PLANS FROM VMC. V ADODARA TO DO THE CONSTRUCTION ALL THE RIGHTS AND AUTHORITIES SHALL B E WITH DEVELOPER CUM BUILDING ITA NO.1307/AHD/12 A.Y. 2008-09 (ITO VS. M /S. DHANSHREE DEVELOPERS) 5 CONTRACTOR AND THEREAFTER ALSO WHATEVER F.S.I. RIGH TS SHALL REMAIN THAT ALSO AS PER THIS AGREEMENT SHALL BE WITH THE PARTY OF THE T HIRD PART. (E) AT PARA 27 HON'BLE HIGH COURT CONSIDERED VARIO US PROVISIONS OF DEVELOPMENT AGREEMENT IN THE CASE OF M/S.SHAKTI CORPORATION. OUT OF SUCH PROVISIONS, FOLLOWING CLAUSES OF THE AGREEMENT ARE IMPORTANT: 'CLAUSE -1: THAT THE PARTY OF THE SECOND PART ( ASS ESSEE) SHALL UPON OBTAINING ALL NECESSARY PERMISSIONS OVER THE SAID LAND SUCH AS NA, NOC, DEV ELOPMENT PERMISSION, RAJACHITHTHI, PERMISSION FOR PASSING PLANS, TITLE CLEARANCE, ETC. FOR MAKING THE CONSTRUCTION AND ERECT AN APARTMENT IN THE SAME, CAN ORGANIZE SHOPS, OFFICES, FLATS AND TENEMENT SOCIETY AND CAN ENGAGE ARCHITECT IF REQUIRED, CAN PREPARE PLANS AND OBTAIN THE OCCUPATION CERTIFICATE, COMPLETION CERTIFICATE, CAN GET THE REVISED MAPS PREPARED AND FOR WHICH THE COMPLETE POWERS ARE GIVEN TO THE PARTY OF THE SECOND PART. CLAUSE-4: THE PARTY OF THE SECOND PART DEVELOPERS C AN REGISTER THE MEMBERS FOR THE NEW CONSTRUCTION THAT MAY BE MADE OVER THE SAID LAND/PR OPERTY, CAN ISSUE RECEIPT TO THE MEMBERS, CAN ISSUE ALLOTMENT LETTER TO THE MEMBERS, CAN EXECUTE THE AGREEMENT TO SALE, CAN HAND OVER THE POSSESSION, CAN EXECUTE TRIPARTITE AGREEMENT, BUT T HE ENTIRE RESPONSIBILITY FOR THE SAME SHALL BE THAT OF THE PARTY OF THE SECOND PART. CLUASE-7: THAT FOR THE HOUSES, SHOPS FLATS, ETC. TH AT ARE TO BE CONSTRUCTED OVER THE SAID LAND FOR WHICH THE PARTY OF THE SECOND PART IS TO REGIST ER THEM AS MEMBERS AND CAN UPON EXECUTING AGREEMENT TO SALE ETC. ACCEPT THE MONEY AND ISSUE R ECEIPTS TO THE MEMBERS. SAME WAY, YOU CAN REMOVE ALL OBSTRUCTIONS THAT MAY COME DURING THE PE RIOD OF MAKING THE DEVELOP IT. CLAUSE-10: FROM THE DATE OF THIS AGREEMENT, YOU, TH E PARTY OF THE SECOND PART IS BOUND TO PAY TAX, LAND REVENUE, SPECIAL CESS ETC. IN THE OFF ICES OF THE VADODARA MUNICIPAL CORPORATION, GOVERNMENT, SEMI GOVERNMENT AND WHATEVER TAX, LAND REVENUE, EDUCATION CESS, SPECIAL CESS, ETC, ARE OUTSTANDING PRIOR TO BE THE DATE OF THIS AGREEM ENT, THE SAME ARE AND SHALL BE PAID BY US, THE PARTY OF THE FIRST PART AS A LAND OWNER. (F) AFTER CONSIDERING THE PROVISIONS OF SECTION 80I B(1) AND 80IB(10) IN RESPECT OF QUESTION OF OWNERSHIP OF LAND BEING AN ESSENTIAL CONDITION FOR DEDUCTION U/S.80IB(10) OF THE ACT, HON'BLE GUJARAT HIGH COURT AT PARA 30 HELD THAT '30. THE ESSENCE OF SUB-SECTION (10) OF SECTION 80I B, THEREFORE, REQUIRES INVOLVEMENT OF AN UNDERTAKING IN DEVELOPING AND BUILDING HOUSING PROJ ECTS APPROVED BY THE LOCAL AUTHORITY. APPARENTLY, SUCH PROVISION WOULD BE AIMED AT GIVING ENCOURAGEMENT TO PROVIDING HOUSING UNITS IN THE URBAN AND SEMIURBAN AREAS, WHERE THERE IS PE RENNIAL AND ACUTE SHORTAGE OF HOUSING, PARTICULARLY, FOR THE MIDDLE INCOME GROUP CITIZENS. TO ENSURE THAT THE BENEFIT REACHES THE PEOPLE, CERTAIN CONDITIONS WERE PROVIDED IN SUB-SECTION(10) SUCH AS SPECIFYING DATE BY WHICH THE UNDERTAKING MUST COMMENCE THE DEVELOPING AND CONSTR UCTION WORK AS ALSO PROVIDING FOR THE MINIMUM AREA OF PLOT OF LAND ON WHICH SUCH PROJECT WOULD BE PUT UP AS WELL AS MAXIMUM BUILT UP AREA OF EACH OF THE RESIDENTIAL UNITS TO BE LOCATED THEREON. THE PROVISIONS NOWHERE REQUIRED THAT ONLY THOSE DEVELOPERS WHO THEMSELVES OWN THE LAND W OULD RECEIVE THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT,' (G) FURTHER CONSIDERING VARIOUS CLAUSES, TERMS AND CONDITIONS OF DEVELOPMENT AGREEMENT IN BOTH THE LEADING CASES VIZ. M/S.RADHE DEVELOPERS AN D M/S.SHAKTI CORPORATION, HON'BLE GUJARAT HIGH COURT AT PARA 34 HELD THAT- ITA NO.1307/AHD/12 A.Y. 2008-09 (ITO VS. M /S. DHANSHREE DEVELOPERS) 6 '34. WE HAVE REPRODUCED RELEVANT TERMS OF DEVELOPME NT AGREEMENTS IN BOTH THE SETS OF CASES. IT CAN BE SEEN FROM THE TERMS AND CONDITIONS THAT T HE ASSESSEE HAD TAKEN FULL RESPONSIBILITIES FOR EXECUTION OF THE DEVELOPMENT PROJECTS. UNDER THE AG REEMENTS, THE ASSESSEE HAD FULL AUTHORITY TO DEVELOP THE LAND AS PER HIS DISCRETION. THE ASSESSE E COULD ENGAGE PROFESSIONAL HELP FOR DESIGNING AND ARCHITECTURAL WORK. ASSESSEE WOULD ENROLL MEMBE RS AND COLLECT CHARGES. PROFIT OR LOSS WHICH MAY RESULT FROM EXECUTION OF THE PROJECT BELONGED E NTIRELY TO THE ASSESSEE. IT CAN THUS BE SEEN THAT THE ASSESSEE HAD DEVELOPED THE HOUSING PROJECT. THE FACT THAT THE ASSESSEE MAY NOT HAVE OWNED THE LAND WOULD BE OF NO CONSEQUENCE.' (H) AT PARA 36, THE HON'BLE HIGH COURT EXAMINED THE EFFECT OF EXPLANATION OF SECTION 80IB(10) INTRODUCED WITH RETROSPECTIVE EFFECT FROM 1.4.2001 AND HELD THAT- '36. WE HAVE NOTED AT SOME LENGTH, THE RELEVANT TER MS AND CONDITIONS OF THE DEVELOPMENT AGREEMENTS BETWEEN THE ASSESSEES AND THE LAND OWNER S IN CASE OF RADHE DEVELOPERS. WE ALSO NOTED THE TERMS OF THE AGREEMENT OF SALE ENTERED IN TO BETWEEN THE PARTIES. SUCH CONDITIONS WOULD IMMEDIATELY REVEAL THAT THE OWNER OF THE LAND HAD R ECEIVED PART OF SALE CONSIDERATION. IN LIEU THEREOF HE HAD GRANTED DEVELOPMENT PERMISSION TO TH E ASSESSEE. HE HAD ALSO PARTED WITH THE POSSESSION OF THE LAND. THE DEVELOPMENT OF THE LAND WAS TO BE DONE ENTIRELY BY THE ASSESSEE BY CONSTRUCTING RESIDENTIAL UNITS THEREON AS PER THE P LANS APPROVED BY THE LOCAL AUTHORITY. IT WAS SPECIFIED THAT THE ASSESSEE WOULD BRING IN TECHNICA L KNOWLEDGE AND SKILL REQUIRED FOR EXECUTION OF SUCH PROJECT. THE ASSESSEE HAD TO PAY THE FEES TO T HE ARCHITECTS AND ENGINEERS. ADDITIONALLY, ASSESSEE WAS ALSO AUTHORIZED TO APPOINT ANY OTHER A RCHITECT OR ENGINEER, LEGAL ADVISER AND OTHER PROFESSIONALS. HE WOULD APPOINT SUB-CONTRACTOR OR L ABOUR CONTRACTOR FOR EXECUTION OF THE WORK. THE ASSESSEE WAS AUTHORIZED TO ADMIT THE PERSONS WI LLING TO JOIN THE SCHEME. THE ASSESSEE WAS AUTHORISED TO RECEIVE THE CONTRIBUTIONS AND OTHER D EPOSITS AND ALSO RAISE DEMANDS FROM THE MEMBERS FOR DUES AND EXECUTE SUCH DEMANDS THROUGH L EGAL PROCEDURE, IN CASE, FOR SOME REASON, THE MEMBER ALREADY ADMITTED IS DELETED, THE ASSESSE E WOULD HAVE THE FULL RIGHT TO INCLUDE NEW MEMBER IN PLACE OF OUTGOING MEMBER. HE HAD TO MAKE NECESSARY FINANCIAL ARRANGEMENTS FOR WHICH PURPOSE HE COULD RAISE FUNDS FROM THE FINANCI AL INSTITUTIONS, BANKS ETC. THE LAND OWNERS AGREED TO GIVE NECESSARY SIGNATURES, AGREEMENTS, AN D EVEN POWER OF ATTORNEY TO FACILITATE THE WORK OF THE DEVELOPER. IN SHORT, THE ASSESSEE HAD U NDERTAKEN THE ENTIRE TASK OF DEVELOPMENT, CONSTRUCTION AND SALE OF THE HOUSING UNITS TO BE LO CATED ON THE LAND BELONGING TO THE ORIGINAL LAND OWNERS. IT WAS ALSO AGREED BETWEEN THE PARTIES THAT THE ASSESSEE WOULD BE ENTITLED TO USE THE FULL FSI AS PER THE EXISTING RULES AND REGULATIONS. HOWE VER, IN FUTURE, RULES BE AMENDED AND ADDITIONAL FSI BE AVAILABLE, THE ASSESSEE WOULD HAV E THE FULL RIGHT TO USE THE SAME ALSO. THE SALE PROCEEDS OF THE UNITS ALLOTTED BY THE ASSESSEE IN F AVOUR OF THE MEMBERS ENROLLED WOULD BE APPROPRIATED TOWARDS THE LAND PRICE. EVENTUALLY AFT ER PAYING OFF THE LAND OWNER AND THE ERSTWHILE PROPOSED PURCHASERS, THE SURPLUS AMOUNT WOULD R EMAIN WITH THE ASSESSEE. SUCH TERMS AND CONDITIONS UNDER WHICH THE ASSESSEE UNDERTOOK T HE DEVELOPMENT PROJECT AND TOOK OVER THE POSSESSION OF THE LAND FROM THE ORIGINAL OWNER, LEA VES LITTLE DOUBT IN OUR MIND THAT THE ASSESSEE HAD TOTAL AND COMPLETE CONTROL OVER THE LAND IN QUE STION. THE ASSESSEE COULD PUT THE LAND TO USE AS AGREED BETWEEN THE PARTIES. THE ASSESSEE HAD FUL L AUTHORITY AND ALSO RESPONSIBILITY TO DEVELOP THE HOUSING PROJECT BY NOT ONLY PUTTING UP THE CONS TRUCTION BUT BY CARRYING OUT VARIOUS OTHER ACTIVITIES INCLUDING ENROLLING MEMBERS, ACCEPTING MEMBERS, CARRYING OUT MODIFICATIONS ENGAGING PROFESSIONAL AGENCIES AND SO ON, MOST SIGN IFICANTLY, THE RISK ELEMENT WAS ENTIRELY THAT OF THE ASSESSEE. THE LAND OWNER AGREED TO ACCEPT ONLY A FIXED PRICE FOR THE LAND IN QUESTION. THE ASSESSEE AGREED TO PAY OFF THE LAND OWNER FIRST BEF ORE APPROPRIATING ANY PART OF THE SALE CONSIDERATION OF THE HOUSING UNITS FOR HIS BENEFIT. IN SHORT, ASSESSEE TOOK THE FULL RISK OF EXECUTING THE HOUSING PROJECT AND THEREBY MAKING PROFIT OR LO SS AS THE CASE MAY BE. THE ASSESSEE INVESTED ITS OWN FUNDS IN THE COST OF CONSTRUCTION AND ENGAG EMENT OF SEVERAL AGENCIES. LAND OWNER WOULD ITA NO.1307/AHD/12 A.Y. 2008-09 (ITO VS. M /S. DHANSHREE DEVELOPERS) 7 RECEIVE A FIX PREDETERMINED AMOUNT TOWARDS THE PRIC E OF LAND AND WAS THUS INSULATED AGAINST ANY RISK.' (I) AFTER CONSIDERING THE HON'BLE BOMBAY HIGH COURT JUDGEMENT IN THE CASE OF CIT VS. GLENMARK PHARMACEUTICAL LTD. (2010) 324 ITR 199 UND ER THE HEAD 'CONTRACT OF WORK OR A CONTRACT OF SALE' AND HON'BLE SUPREME COURT JUDGEME NT IN THE CASE OF STATE OF ANDHRA PRADESH VS. M/S. KONE ELEVATORS (L)LTD. AIR 2005 SC 1581, T HE HON'BLE GUJARAT HIGH COURT AT PARA 38 HELD THAT - '38. IN THE PRESENT CASE, AS ALREADY HELD THE ASSES SEE HAD UNDERTAKEN THE DEVELOPMENT OF HOUSING PROJECT AT ITS OWN RISK AND COST. THE LAND OWNER HA D ACCEPTED ONLY THE FULL PRICE OF THE LAND AND NOTHING FURTHER. THE ENTIRE RISK OF INVESTMENT AND EXPENDITURE WAS THAT OF THE ASSESSEE. RESULTANTLY, PROFIT AND LOSS ALSO WOULD ACCRUE TO T HE ASSESSEE ALONE. IN THAT VIEW OF THE MATTER, THE ADDITION OF THE EXPLANATION TO SECTION 80IB WITH RE TROSPECTIVE EFFECT OF 1.4.2001 WOULD HAVE NO MATERIAL BEARING IN THE CASES ON HAND. WE MAY RECAL L THAT THE SAID EXPLANATION INTRODUCED BY FINANCE (NO.2)ACT, 2009 PROVIDED AS UNDER: - [EXPLANATION- FOR THE REMOVAL OF DOUBTS, IT IS HERE BY DECLARED THAT NOTHING CONTAINED IN THIS SUB- SECTION SHALL APPLY TO ANY UNDERTAKING WHICH EXECUT ES THE HOUSING PROJECT AS A WORKS CONTRACT AWARDED BY ANY PERSON (INCLUDING THE CENTRAL OR STA TE GOVERNMENT)].' (J) FINALLY AFTER CONSIDERING THE RATIO OF VARIOUS CASE LAWS RELIED ON BY REVENUE, AT PARA 45 AND 46 HON'BLE GUJARAT HIGH COURT CONCLUDED THAT- '45. UNDER THE CIRCUMSTANCES, WE ARE OF THE OPINION THAT THE TRIBUNAL COMMITTED NO ERROR IN HOLDING THAT THE ASSESSEES WERE ENTITLED TO THE BEN EFIT UNDER SECTION 80IB(10) OF THE ACT EVEN WHERE THE TITLE OF THE LANDS HAD NOT PASSED ON TO T HE ASSESSEES AND IN SOME CASES, THE DEVELOPMENT PERMISSIONS MAY ALSO HAVE BEEN OBTAINED IN THE NAME OF THE ORIGINAL LAND OWNERS. 46. WE FIND THAT IT IS NOT EVEN THE CASE OF THE REV ENUE THAT OTHER CONDITIONS OF SECTION 80IB OF THE ACT WERE NOT FULFILLED. WE, THEREFORE, ANSWER THE Q UESTION IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE AND DISPOSE OF ALL APPEALS ACCORDINGLY.' 16. THE FACTS OF THE APPELLANT ARE IDENTICAL WITH T HE CASES DEALT BY HONBLE GUJARAT HIGH COURT. EVEN THE CONTENTION RAISED BY THE AO ALONG WITH RELIANCE OF VARIOUS JUDICIAL AUTHORITIES ARE IDENTICAL. THEREFORE FOLLOWING RATIO OF HON'BLE GUJARAT HIGH COURT IN THIS CASE, THE DISALLOWANCE AND THEREBY ADDITIONS MADE BY THE AO I N THE CASE OF THE APPELLANT ARE NOT JUSTIFIED AND DIRECTED TO BE DELETED. APPELLANT GETS RELIEF O F RS. 83,69,575. 6. AGGRIEVED BY THE ORDER OF LD. CIT(A), REVENUE IS NOW IN APPEAL BEFORE US. 6.1 BEFORE US, LD. D.R. SUPPORTED THE ORDER OF ASSE SSING OFFICER. ON THE OTHER HAND, LD. A.R. REITERATED THE SUBMISSIONS MADE BEFO RE THE ASSESSING OFFICER AND LD. CIT(A) AND SUPPORTED THE ORDER OF LD. CIT(A). ITA NO.1307/AHD/12 A.Y. 2008-09 (ITO VS. M /S. DHANSHREE DEVELOPERS) 8 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS ABOUT DEDUCTION U/ S.80IB(10) OF THE ACT. WE FIND THAT LD. CIT(A) AFTER CONSIDERING VARIOUS DECISION S OF HONBLE GUJARAT HIGH COURT AND OTHER COURTS CITED IN THE ORDER HAS HELD THAT T HE FACTS OF THE CASE OF THE ASSESSEE ARE IDENTICAL TO THE FACTS OF M/S. RADHE DEVELOPERS AND M/S. SHAKTI CORPORATION. HE, THEREFORE, RELYING ON THE AFORESAID DECISIONS D IRECTED THE ASSESSING OFFICER TO GRANT DEDUCTION U/S.80IB(10) OF THE ACT TO ASSESSEE . BEFORE US, REVENUE HAS NOT POINTED OUT ANY CONTRARY BINDING DECISION IN ITS SU PPORT NOR COULD CONTROVERT THE FINDINGS OF LD. CIT(A). IN VIEW OF THE AFORESAID FACTS, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF LD. CIT(A) AND THUS, TH E GROUND OF REVENUE IS DISMISSED. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DI SMISSED. ORDER PRONOUNCED IN OPEN COURT ON 16 - 02 - 2016. (KUL BHARAT) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 16/02/2016 TRUE COPY S K SINHA COPY OF THE ORDER FORWARDED TO:- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD