The ITO, Ward-9(2), Ahmedabad V. M/s. Madhur Corporation, Ahmedabad

ITA 1377/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9506 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 24-02-2016
• Assessment Year: 2003-2004
• Appeal Filed On: 25-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K PANDEY
• Assessee Lawyers: ANIL BRAHMAKSHATRIYA
• Section: 143(3); 80IB

Judgement Text

ITA NO.1377 /AHD/2012 ASSESSMENT YEAR: 200 3 - 04 PAGE 1 OF 7 IN THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD B BENCH, AHMEDABAD [CORAM : PRAMOD KUMAR AM AND KUL BHARAT JM ] ITA NO. 1377 /AHD/ 20 1 2 ASSESSMENT YEAR : 200 3 - 04 INCOME TAX OFFICER, .. .APPELLANT WARD 9(2), AHMEDABAD. VS. MADHUR CORPORATION .. . RESPONDENT 12, REVABHAI SHOPPING CENTRE, VASTRAL ROAD, AMRAIWADI, AHMEDABAD. [PAN: A AFFM 9272 K ] APPEARANCES BY: A.K. PANDEY , FOR THE APPELLANT ANIL BRAHMA KSHATRIYA , FOR THE RESPONDENT D ATE OF CONCLUDING THE HEARING : FEB RUARY 2 4 TH , 201 6 DATE OF PRONOUNCING THE ORDER : FEBRUARY 25 TH , 201 6 O R D E R PER PRAMOD KUMAR AM : 1. BY WAY OF THIS APPEAL, THE ASSESSING OFFICER HAS CALLED INTO QUESTION CORRECTNESS OF THE ORDER DATED 24 TH APRIL, 2012 , PASSED BY THE LD. CIT(A), IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 ( THE ACT HEREINAFTER) FOR THE ASSESSMENT YEAR 2003 - 04. 2. GRIEVANCES RAISED BY THE ASSESSING OFFICER ARE AS FOLLOWS : - 1). THE LD. COMMISSIONER OF I NCOME - TAX (APPEALS) - XV, AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE ASSESSING OFFICER TO ALLOW THE ASSESSEE'S CLAIM FOR DEDUCTION OF RS.55,94,649/ - U/S. 801B(10) OF THE I .T. ACT. ITA NO.1377 /AHD/2012 ASSESSMENT YEAR: 200 3 - 04 PAGE 2 OF 7 2). THE LD. COMMISSIONER OF INCOME - TAX (APPEALS) - XV, AHMED ABAD HAS ERRED IN HOLDING THAT THE ASSESSEE FULFILLS THE CONDITIONS LAID DOWN FOR CLAIMING DEDUCTION U/S. 80 IB (10) EVEN WHEN THE LAND WAS IN THE NAME OF MANOHAR CO - OP. HOUSING SOCIETY LTD., WHICH IS A SEP A RATE LEGAL ENTITY IN THE EYE OF LAW AND THE ASSESSE E ENTERED INTO THE PROJECT BY A DEVELOPMENT AGREEMENT WITH THE SOCIETY. THE ENTIRE RESPONSIBILITY TO EXECUTE THE HOUSING PROJECT AND ABIDE BY THE TERMS AND CONDITIONS OF ITS APPROVAL RIGHT FROM THE INCEPTION OF THE PROJECT TILL ITS COMPLETION RESTS WITH TH E SOCIETY. THE LOCAL AUTHORITY HAD GRANTED PERMISSION FOR DEVELOPMENT AND CONSTRUCTION OF THE PROJECT TO THE SOCIETY, ASSESSEE WAS JUST A CONTRACTOR OF THE LAND OWNERS CONSTRUCTING RESIDENTIAL UNITS AND NOT A DEVELOPER. 3). ON THE FACTS AND IN THE CI RCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME - TAX (APPEALS) - XV, AHMEDABAD OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 4). IT IS THEREFORE, PRAYED THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME - TAX (APPEALS) - XV, AHMEDABAD MAY BE SET - ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 3. BRIEFLY STATED, THE MATERIAL FACTS ARE LIKE THIS. DURING THE COURSE OF REASSE SS MENT PROCEEDINGS THE A SSESSING OFFICER NOTED THAT THE LAND BEARING SU R VEY NUMBER 994 AND 995 HAVING AN AREA AD MEASURING 19784 SQ. Y ARD WAS PURCHASED BY MANOHAR CO - OP. HOUSING SOCIETY LIMITED , AHMEDABAD ON 29.12.2000 FOR A CONSIDERATION OF RS.10,47,150/ - . IT WAS ALSO NOTED THAT AS PER THE APPLICATION AND PLAN FILED BY THE SOCIETY, THE LOCAL AUTHORITY ACCORDED THE PERMISSION FOR DEVELOPMENT AND CONSTRUCTION OF THE PROJECT TO THE POA OF SOMABHAI NARSINHBHAI PATEL & OTHERS ON 19.07.2010. THE LAND WAS SOLD TO MANOHAR CO - OP. HOUSING SOCIETY LIMITED, AHMEDABAD BY THE LAND OWNER BY SALE DEED DATED 29.12.2000. A SSESSING OFFICER FURTHER NOTED THAT THE ASSESSEE WAS ENTERED INTO A DEVELOPMENT AGREEMENT WITH MANOHAR CO - OP HOUSING SOCIETY LIMITED , AHMEDABAD ON 25.09.2000 AND AS PER THE TERMS OF THIS AGREEMENT, (I) THE A S SE S S E E WAS GIVEN FREE ACCESS OF T HE LAND FOR CONSTRUCTION OF THE HOUSING UNITS AS PER THE PLAN , (II) THE ASSESSEE WAS ALLOWED TO ENROL IN THE PROSPECTIVE BUYERS AS THE MEMBER S ON BEHALF OF THE SOCIETY , (III) THE ASSESSEE WAS ALLOWED TO COLLECT T HE ITA NO.1377 /AHD/2012 ASSESSMENT YEAR: 200 3 - 04 PAGE 3 OF 7 CONSIDERATION FOR LAND AS WELL A S SUPER - STRUCTURE FROM THE BUYER S ON BEHALF OF THE SOCIETY , (IV) THE ASSESSEE WAS ALLOWED T O RE TAIN THE CONSIDERATION RECEIVED FOR CONSTRUCTION AND TRANSFER THE LAND COS T TO THE SOCIETY. THE A SSESSING OFFICER NOTED THAT THE SOCIETY WAS FORMED FOR GROUP HOUSING OF THE MEMBERS AND W A S SUP POSED TO CONSTRUCT AND T RANSFER THE HOUSES TO THE MEMBERS AND A CCORDING TO THE DEVELOPMENT AGREEMENT AS THE SOCIETY WAS NOT EXPERIENCED IN CONSTRUCTION, THE ASSESS E E WAS APPOINTED AS A CONTRACTOR TO CO NSTRUCT THE HOUSES ON BEHALF OF THE SOCIETY AS PER THE TERMS AND T HE APPROVED PLAN OF T HE SOCIETY. IT WAS IN THIS BACKDROP THE ASSESSEE WAS REQUIRED TO SHOW CAUSE AS TO WHY DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IN RESPECT OF THE PROJECT NOT BE DECLINED. THE SUBMISSION OF THE ASSESSEE INTER ALIA THAT AL L THE RISKS AND REWARD S ARE BORNE BY THE ASSESSEE AND HE IS THE DEVELOPER OF THE PROJECT. RELYING UPON A LARGER BENCH OF THIS TRIBUNAL IN THE CASE OF B T PATIL THE ASSESSING OFFICER HELD THAT A MERE CONTRACTOR CANNOT BE CALLED DEVELOPER. THE ASSESSING OFF ICER THUS PROCEEDED TO DECLINE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT BY OBSERVING AS FOLLOWS : - TO SUM UP, THE SOCIETY IS A LEGAL ENTITY AND IT ACQUIRED THE LAND AND HAS TO BE RECOGNIZED AS THE OWNER OF THE LAND. THE MANOHAR CO. OP. HOUSING SOCIETY LTD., AHMEDABAD GOT THE PLAN FOR THE HOUSING PROJECT APPROVED FROM THE LOCAL AUTHORITY AS AN OWNER OF THE LAND ON WHICH THE PROJECT WAS TO COME UP. IT IS IMMATERIAL WHETHER THE ASSESSEE APPROACHED THE SOCIETY OR THE SOCIETY APPROACHED THE ASSESSEE FOR CONS TRUCTION. THE FACT REMAINS THAT THE SOCIETY IS THE PRINCIPAL AND THE ASSESSEE IS A CONTRACTOR SATISFYING ALL THE INGREDIENTS OF THE CONTRACT AS DISCUSSED ABOVE. IN THE INSTANT CASE, THE ASSESSEE IS A MERE BUILDER WHO HAS ENTERED INTO AN AGREEMENT WITH THE SOCIETY FOR CONSTRUCTION OF THE HOUSING PROJECT AS PER THE APPROVAL OBTAINED BY THE SOCIETY ON THE LAND OWNED BY THE SOCIETY. THE ASSESSEE IS NOT THE DEVELOPER OF THE PROJECT AS IT IS NOT THE DESIGNER, CREATOR AND OWNER OF THE HOUSING PROJECT. THEREFORE, I T IS HELD THAT THE ASSESSEE IS MERE BUILDER AND DOES NOT SATISFY THE PRIMARY REQUIREMENT OF THE SECTION THAT THE ASSESSEE MUST DEVELOP AND BUILD A HOUSING PROJECT. THEREFORE, THE ASSESSEE IS NOT ELIGIBLE FOR THE DEDUCTION UNDER SECTION 80IB(10). IN THE IN STANT CASE AS PER THE AGREEMENT, THE ASSESSEE HAD PURCHASED THE MATERIAL AND BUILT THE HOUSING UNITS AS PER THE PLAN, BUT HE HAD NO OWNERSHIP ON ITA NO.1377 /AHD/2012 ASSESSMENT YEAR: 200 3 - 04 PAGE 4 OF 7 THE HOUSES, AS THE LAND WAS OWNED BY THE SOCIETY AND THE ASSESSEE HAD ONLY CONSTRUCTED THE DWELLING UNITS AS PE R THE AGREEMENT ENTERED INTO WITH THE SOCIETY. LOOKING AT THE FACTS FROM ANOTHER ANGLE, THE ASSESSEE IS MERELY A WORKS CONTRACTOR BECAUSE IN A CONTRACT FOR WORK, THE PERSON PRODUCING THE PRODUCT HAS NO OWNERSHIP IN THE THING PRODUCED AS A WHOLE, EVEN IF PA RT OR WHOLE OF THE MATERIAL USED BY HIM MAY HAVE BEEN HIS PROPERTY IN THE PROCESS. THE CONTRACTOR GETS THE PAYMENT FOR THE MATERIAL AND THE LABOUR ALONG WITH PROFIT AS AGREED. BY USE OF THE MATERIAL, HE WILL NOT BECOME THE OWNER OF THE WHOLE AND HE CAN NOT TRANSFER THE PROPERTY. RELIANCE IS PLACED IN THIS REGARD ON SUPREME COURT IN THE CASE OF HAL LTD. VS. STATE OF ORISSA [55 STC 327 ]AND TAMIL NADU VS. ANANDAM VISHWANATHAN [(1989) 1 SCC 613., THE ASSESSEE CAN NOT TRANSFER THE OWNERSHIP OF THE HOUSING UNIT CONSTRUCTED TO THE PROSPECTIVE BUYER. THE HOUSING UNIT HAS TO BE TRANSFERRED BY THE LAND OWNER ONLY, IN THIS CASE THE MANOHAR CO. OP. HOUSING. SOCIETY LTD., AHMEDABAD. THIS IS ALSO CLEAR FROM THE CONVEYANCE DEEDS EXECUTED FOR THE SALE OF UNITS IN THE HOUSI NG PROJECT. THE SOCIETY HAS TRANSFERRED THE HOUSE (AS TRANSFEROR) TO THE BUYER (THE TRANSFEREE) AND THE ASSESSEE HAS BEEN INCLUDED IN THE DOCUMENT ONLY AS CONFIRMING PARTY TO AVOID ANY LITIGATION IN VIEW OF THE AGREEMENT ENTERED BY THE SOCIETY WITH THE ASS ESSEE FOR CONSTRUCTION. SINCE THE ASSESSEE HAD SIMPLY DONE THE WORK OF CIVIL CONSTRUCTION RELATED TO THE HOUSING PROJECT (AS PER THE AGREEMENT ENTERED WITH THE SOCIETY) THE ASSESSEE NOT ELIGIBLE FOR DEDUCTION UNDER SECTION 80 IB(10) AS PER THE AMENDMENT B ROUGHT TO THE SECTION 80IB BY THE FINANCE ACT 2009 W.E.F. 1.4.2001 WHICH IS REPRODUCED BELOW. EXPLANATION. FOR THE REMOVAL OF DOUBTS, IT IS HEREBY DECLARED THAT NOTHING CONTAINED IN THIS SUB - SECTION SHALL APPLY TO ANY UNDERTAKING WHICH EXECUTES THE HOUSIN G PROJECT AS A WORKS CONTRACT AWARDED BY ANY PERSON (INCLUDING THE CENTRAL OR STATE GOVERNMENT). IN VIEW OF THE ABOVE FACTUAL AND LEGAL POSITION, IT IS HELD THAT THE ASSESSEE IS NOT A DEVELOPER AND BUILDER AS REQUIRED UNDER THE PROVISIONS OF THE SECTION 8 0 IB IN RESPECT OF THE SAID HOUSING PROJECT AND IN FACT, IT IS MERELY A CONTRACTOR/AGENT ON BEHALF OF THE HOUSING SOCIETY AND THEIR MEMBERS. IN NUTSHELL, CONDITIONS OF SECTION 80IB(10) ARE NOT SATISFIED AND HENCE THE PROFIT OF THE ASSESSEE FOR THE YEAR BEI NG RS.55,94,649/ - IS TREATED AS INCOME OF THE ASSESSEE AND NO CLAIM UNDER THIS SECTION IS ALLOWED. HENCE THE SAME IS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 4. AGGRIEVED , THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD . CIT ( A ) . THE ASSESSI NG OFFICER NOTED THAT THE INVESTMENT IN LAND WAS, IN FACT, MADE BY THE ASSESSEE. HE WAS ALSO OF THE VIEW THAT THE ASSESSEE WAS OWNER OF THE LAND BY VIRTUE OF DEVELOPMENT AGREEMENT AND THE AGREEMENT ITSELF. HE THEN DISCUSSED THE JUDGEMENT OF HON BLE GUJAR AT HIGH COURT IN T HE CASE OF CIT VS. R ADHE DEVELOPERS [(2012) 341 ITR 403 ITA NO.1377 /AHD/2012 ASSESSMENT YEAR: 200 3 - 04 PAGE 5 OF 7 (GUJ)] AND HELD THAT THE FACT OF THE ASSESSEE S CA S E BEING IDENTICAL WITH THE CASE DEALT BY THE HON BLE GUJARAT HIGH COURT, THE A SSESSEE DESERVES DEDUCTION UNDER SECTION 80IB(10) OF TH E ACT. THE ASSESSING OFFICER IS AGGRIEVED AND IS IN APPEAL BEFORE US. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION. W E FIND THAT IT IS NOT EVE N IN DISPUTE IN THE PRESENT CASE THAT THE RISK S AND REWARDS OF THE HOUSING PROJECT IN QUESTION WERE BORNE BY THE ASSESSEE , BEFORE US. THE ONLY REASON FOR DECLINING DEDUCTION UNDER SECTION 80IB(10) IS STATED TO BE THAT THE LAND OWNERSHIP AND APPROVAL BY LO CAL AUTHORITY ARE NOT IN THE NAME OF THE ASSESSEE. IN THE LIGHT OF THESE FACTS, WE FIND THAT THE ISSUE IN APPEAL BEFORE US IS SQUARELY COVERED BY THE DECISION DATED 7 TH JULY, 2015 OF A CO - ORDINATE BENCH IN THE CASE OF SHRI UMEYA CORPORATION VS. INCOME TAX OFFICER ITA NO.211/AHD/2010 , WHEREIN THE CO - ORDINATE BENCH, INTER ALIA, HAS OBSERVED A S FOLLOWS : - 6. WE FIND THAT, IN THE CASE OF CIT VS RADHE DEVELOPERS [(2012) 341 ITR 403 (GUJ)] , HON BLE JURISDICTIONAL HIGH COURT HAD AN OCCASION TO CONSIDER THE IS SUE OF OWNERSHIP OF LAND, ON WHICH HOUSING PROJECT IS DEVELOPED, IN THE CONTEXT OF ELIGIBILITY OF DEDUCTION UNDER SECTION 80IB(10). HON BLE JURISDICTIONAL HIGH COURT HAS, IN THIS CONTEXT, INTER ALIA OBSERVED AS FOLLOWS: 32. SEC. 80 - IB(10) OF THE ACT THUS PROVIDES FOR DEDUCTIONS TO AN UNDERTAKING ENGAGED IN THE BUSINESS OF DEVELOPING AND CONSTRUCTING HOUSING PROJECTS UNDER CERTAIN CIRCUMSTANCES NOTED ABOVE. IT DOES NOT PROVIDE THAT THE LAND MUST BE OWNED BY THE ASSESSEE SEEKING SUCH DEDUCTIONS. 33. IT IS W ELL SETTLED THAT WHILE INTERPRETING THE STATUTE, PARTICULARLY, THE TAXING STATUTE, NOTHING CAN BE READ INTO THE PROVISIONS WHICH HAS NOT BEEN PROVIDED BY THE LEGISLATURE. THE CONDITION WHICH IS NOT MADE PART OF S. 80 - IB(10) OF THE ACT, NAMELY THAT OF OWNIN G THE LAND, WHICH THE ASSESSEE DEVELOPS, CANNOT BE SUPPLIED BY ANY PURPORTED LEGISLATIVE INTENT. 34. WE HAVE REPRODUCED RELEVANT TERMS OF DEVELOPMENT AGREEMENTS IN BOTH THE SETS OF CASES. IT CAN BE SEEN FROM THE TERMS AND CONDITIONS THAT THE ASSESSEE HAD TAKEN FULL RESPONSIBILITIES FOR EXECUTION OF THE DEVELOPMENT PROJECTS. UNDER THE AGREEMENTS, THE ASSESSEE HAD FULL AUTHORITY TO DEVELOP THE LAND AS PER HIS DISCRETION. THE ASSESSEE COULD ENGAGE PROFESSIONAL HELP FOR DESIGNING AND ARCHITECTURAL WORK. ASSESS EE WOULD ENROLL MEMBERS AND COLLECT CHARGES. PROFIT OR LOSS WHICH MAY RESULT FROM EXECUTION OF THE PROJECT BELONGED ENTIRELY TO THE ASSESSEE. IT CAN THUS BE SEEN THAT THE ASSESSEE HAD DEVELOPED THE HOUSING PROJECT. THE FACT THAT THE ASSESSEE MAY NOT HAVE O WNED THE LAND WOULD BE OF NO CONSEQUENCE. (EMPHASIS, BY UNDERLINING, SUPPLIED BY US) ITA NO.1377 /AHD/2012 ASSESSMENT YEAR: 200 3 - 04 PAGE 6 OF 7 7. I N OUR HUMBLE UNDERSTANDING, THEREFORE, IN ORDER TO ANSWER THE QUESTION AS TO WHETHER THE CONDITION PRECEDENT FOR DEDUCTION UNDER SECTION 80IB HAS BEEN SATISFIED INAS MUCH AS WHETHER OR NOT THE ASSESSEE IS ENGAGED IN DEVELOPING AND BUILDING HOUSING PROJECTS , ALL THAT IS MATERIAL IS WHETHER ASSESSEE IS TAKING THE ENTREPRENEURSHIP RISK IN EXECUTION OF SUCH PROJECT. WHEN PROFITS OR LOSSES, AS A RESULT OF EXECUTION OF PRO JECT AS SUCH, BELONG PREDOMINANTLY TO THE ASSESSEE, THE ASSESSEE IS OBVIOUSLY TAKING THE ENTREPRENEURSHIP RISK QUA THE PROJECT AND IS, ACCORDINGLY, ELIGIBLE FOR DEDUCTION UNDER SECTION 80IB(10) IN RESPECT OF THE SAME. THE ASSUMPTION OF SUCH AN ENTREPRENEUR SHIP RISK IS NOT DEPENDENT ON OWNERSHIP OF THE LAND. THE BUSINESS MODEL OF DEVELOPING AND BUILDING HOUSING PROJECTS BY BUYING, ON OUTRIGHT BASIS, AND CONSTRUCTING RESIDENTIAL UNITS THEREON COULD PROBABLY BE THE SIMPLEST BUSINESS MODELS IN THIS LINE OF AC TIVITY, BUT MERELY BECAUSE THERE IS AN IMPROVISATION IN THE BUSINESS MODEL OR BECAUSE THE ASSESSE E HAS ADOPTED SOME OTHER BUSINESS MODELS FOR THE PURPOSE OF DEVELOPING AND BUILDING HOUSING PROJECT DOES NOT VITIATE FUNDAMENTAL CHARACTER OF THE BUSINESS ACTI VITY AS LONG AS THE RISKS AND REWARDS OF DEVELOPING THE HOUSING PROJECT, IN SUBSTANCE, REMAIN WITH THE ASSESS E E. IT IS DIFFICULT, IF NOT ALTOGETHER IMPOSSIBLE, TO VISUALIZE ALL THE BUSINESS MODELS THAT AN ASSESSEE MAY USE IN THIS DYNAMIC COMMERCIAL WORLD E VEN AS, IN SUBSTANCE, THE FUNDAMENTAL CHARACTER OF THE BUSINESS REMAINS THE SAME, BUT CERTAINLY SUCH MODALITIES OR COMPLEXITIES OF BUSINESS MODELS CANNOT COME IN THE WAY OF ELIGIBILITY FOR AN INCENTIVE WHICH IS FOR THE PURPOSE OF DEVELOPING AND BUILDING A HOUSING PROJECT . THERE IS NO JUSTIFICATION, CONCEPTUAL OR LEGAL, IN RESTRICTING ELIGIBILITY OF DEDUCTION UNDER SECTION 80IB(10) TO ANY PARTICULAR BUSINESS MODEL THAT AN ENTREPRENEUR ADOPTS IN THE COURSE OF DEVELOPING AND CONSTRUCTING HOUSING PROJECT. 8. AS REGARDS LEARNED CIT(A) S RELIANCE ON THE DECISION OF A LARGER BENCH OF THIS TRIBUNAL, IN THE CASE OF B T PATIL & SONS (BELGAUM) CONSTRUCTIONS PVT LTD VS ACIT [(2010) 1 ITR (TRIBUNAL) 703 (MUM)], WHAT HAS BEEN REFERRED TO BY HER IS THE VIEW OF THE THRE E MEMBER BENCH RESOLVING THE POINT OF DIFFERENCE BETWEEN THE MEMBERS OF THE DIVISION BENCH. HOWEVER, THIS VIEW WAS STILLBORN, AND ITS RELEVANCE IS CONFINED TO ACADEMIC SIGNIFICANCE, FOR THE REASON THAT THAT WHILE GIVING EFFECT TO THE MAJORITY VIEW, VIDE OR DER DATED 28TH FEBRUARY, 2013 AND ON SOMEWHAT PECULIAR FACT SITUATION IN THIS CASE, THE FINAL ORDER OF THE TRIBUNAL DID NOT ENDORSE THESE VIEWS. QUITE TO THE CONTRARY, FOLLOWING HON BLE BOMBAY HIGH COURT DECISION IN THE CASE OF CIT VS ABG HEAVY INDUSTRIES LTD AND ORS [(2010) 322 ITR 323 (BOM)] AND UPON BY TAKING INTO ACCOUNT HON BLE BOMBAY HIGH COURT S SPECIFIC DIRECTIONS IN THE CASE BEFORE THE TRIBUNAL, THE TRIBUNAL S FINAL ORDER HAD, INTER ALIA, CONCLUDED AS FOLLOWS: .WHILE GIVING EFFECT TO THE OPINION OF THIRD MEMBER U/S.255(4) OF THE ACT, WE TAKE VIEW IN CONFORMITY WITH ORDER OF JURISDICTIONAL HIGH COURT IN CASE OF ABG HEAVY INDUSTRIES LTD. (SUPRA) AVAILABLE AT THIS TIME THOUGH CONTRARY TO THE OPINION EXPRESSED BY THE THIRD MEMBER. SO IN VIEW OF ABOVE DISCUSSION, FOLLOWING THE RATIO OF JURISDICTIONAL HIGH COURT IN CASE OF ABG HEAVY INDUSTRIES LTD. (SUPRA), THE ASSESSING OFFICER IS DIRECTED TO ALLOW DEDUCTION U/S.80IA(4) OF THE ACT TO THE ASSESSEE WITH REGARD TO THE PROJECTS IN QUESTION FOR BOTH THE YEA RS. 9. IT IS NOT EVEN THE CASE OF THE ASSESSING OFFICER THAT THE ASSESSEE DID NOT ASSUME THE ENTREPRENEURSHIP RISKS OF THE HOUSING PROJECT. THE FORMAT OF ARRANGEMENTS FOR TRANSFER OF BUILT UP UNIT, AND BUSINESS MODEL OF THE ASSESSEE FOR THAT PURPOSE, IS NOT DECISIVE FACTOR FOR DETERMINING ELIGIBILITY OF DEDUCTION UNDER SECTION 80 IB (10), BUT THAT IS ALL THAT THE AUTHORITIES BELOW HAVE FOUND FAULT WITH. THE OBJECTIONS OF THE AUTHORITIES BELOW ARE THUS DEVOID OF LEGALLY SUSTAINABLE MERITS. IN VIEW OF THE A BOVE DISCUSSIONS, AND BEARING IN MIND ENTIRETY OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT THE STAND OF THE AUTHORITIES BELOW, IN DECLINING DEDUCTION UNDER SECTION 80IB (10) AND ON THE FACTS OF THIS CASE, IS INCORRECT. WE VACATE THE SAME AND DIRECT THE ASSESSING OFFICER TO DELETE THE DISALLOWANCE. ITA NO.1377 /AHD/2012 ASSESSMENT YEAR: 200 3 - 04 PAGE 7 OF 7 6. WE SEE NO REASONS TO TAKE ANY OTHER VIEW OF THE MATTER THAN THE VIEW SO TAKEN BY THE CO - ORDINATE BENCH (SUPRA) . RESPECTFULLY FOLLOWING THE SAME, WE REJECT THE GROUNDS RAISED BY THE ASSESSING OFFICER. 7. I N THE RESULT, THE APPEAL IS DISMISSED. P RONOUNCED IN THE OPEN COURT ON THIS 25 TH DAY OF FEBRUARY, 2016 . SD/ - SD/ - KUL BHARAT PRAMOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) PBN/* DATED: T HE 25 TH DAY OF FEBRUARY , 201 6 . COPIES TO : (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD