ITO, Ward 3(1), Pune V. M/s. Saubhagyalaxmi Developers, Pune

ITA 1474/PUN/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2799 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 01-09-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 15-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DIVYA BAJPAYEE
• Keywords: Maximum Marginal Rate; Revised return
• Section: 80IB; 37

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E , , !'#'' $ , % & BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM / ITA NO. 1474/PN/2013 %' ( ')( / ASSESSMENT YEARS : 2009-10 INCOME TAX OFICER, WARD 3(1), PUNE ....... / APPELLANT ' / V/S. M/S. SAUBHAGYALAXMI DEVELOPERS, K.G. MANSION, 1233/C, APTE ROAD, DECCAN GYMKHANA, PUNE 411004 PAN : AAMFM3372R / RESPONDENT ASSESSEE BY : SHRI KISHOR PHADKE REVENUE BY : SMT. DIVYA BAJPAYEE / DATE OF HEARING : 01-12-2015 / DATE OF PRONOUNCEMENT : 29-01-2016 * / ORDER PER VIKAS AWASTHY, JM : THE APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE OR DER OF COMMISSIONER OF INCOME TAX (APPEALS)-II, PUNE DATED 28-02 -2013 FOR THE ASSESSMENT YEAR 2009-10. 2. THE REVENUE HAS CHALLENGED THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) IN ITS APPEAL BY RAISING THE FOLLOWING GROUNDS: 1) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ER RED IN DELETING THE DISALLOWANCE U/S. 80IB(10) OF THE ACT OF RS.6,18,71 ,636/-. 2 ITA NOS. 1474/PN/2013, A.Y. 2009-10 2) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ER RED IN NOT CONSIDERING THAT THE EXPLANATION TO SECTION 80IB(10 ) INSERTED BY THE FINANCE ACT 2009 W.E.F 01.04.2001 CLEARLY STIPULATE S THAT NOTHING CONTAINED IN THE SUB SECTION SHALL APPLY TO ANY UND ERTAKING WHICH EXECUTES THE HOUSING PROJECT AS A WORK CONTRACT AWA RDED BY ANY PERSON INCLUDING THE CENTRAL OR STATE GOVERNMENT AND IN TH IS CASE THE SLUM REHABILITATION AUTHORITY (SRA) AND PIMPRI CHINCHWAD MUNICIPAL CORPORATION ( PCMC) HAD GIVEN THE CONTRACT WORK OF CONSTRUCTION OF BUILDINGS TO REHABILITATE THE SLUM DWELLERS TO THE ASSESSEE BY FLOATING TENDERS. 3) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ER RED IN NOT APPRECIATING THE FACT THAT THE LEGISLATIVE INTENT W AS NOT TO ALLOW ANY DEDUCTIONS TO THE ELIGIBLE UNDERTAKING IF IT WAS GI VEN BY WAY OF CONTRACT AND IN THIS CASE A CONTRACTUAL AGREEMENT I.E. ARTIC LES OF AGREEMENT WAS SIGNED BETWEEN THE ASSESSEE AND THE SRA FOR CONSTRU CTION OF SLUM AND AS SUCH THE WORK OF SLUM REDEVELOPMENT WAS DONE AS A RESULT OF A CONTRACT ENTERED INTO BETWEEN THE ASSESSEE AND THE SRA. 4) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ER RED IN ALLOWING THE 80IB DEDUCTION TO THE ASSESSEE WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE WAS TO BE PROVIDED TDR ON COMPLETION OF CO NSTRUCTION WORK IN PHASES AND THE ASSESSEE DID NOT OWN THE LAND AND HE HAD TO ABIDE BY THE TERMS & CONDITIONS OF SRA AND PCMC. 5) THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND A NY OR ALL THE GROUNDS OF APPEAL. 3. THE FACTS OF THE CASE AS EMANATING FROM THE RECORDS ARE: THE ASSESSEE IS A PROMOTER AND BUILDER. THE ASSESSEE HAD U NDERTAKEN ONLY SINGLE PROJECT FOR DEVELOPMENT/CONSTRUCTION AT BHAVANI PE TH, SURVEY NO. 527, KASEWADI, PUNE. THE SAID PROJECT WAS ALLOTTED TO THE ASSESSEE BY THE SLUM REHABILITATION AUTHORITY PUNE AND PIMPRI CHINCH WAD (HEREINAFTER REFERRED TO AS SRA) ON CONTRACT FOR CONSTR UCTION OF BUILDING TO REHABILITATE THE SLUM DWELLERS. THE PROJECT WAS AWARDE D TO THE ASSESSEE BY SRA AFTER INVITING TENDERS. AFTER AWARDING O F THE CONTRACT, AN AGREEMENT WAS EXECUTED BETWEEN THE ASSESSEE AND SRA FOR THE 3 ITA NOS. 1474/PN/2013, A.Y. 2009-10 CONSTRUCTION OF BUILDING WHICH INCLUDED 448 RESIDENTIAL UNITS A ND 48 SHOPS. THE ASSESSEE WAS REQUIRED TO COMPLETE THE PROJ ECT WITHIN THE TIME FRAME OF 365 DAYS FROM THE DATE OF AWARD IN ACCORDA NCE WITH STANDARDS AND SPECIFICATIONS SET OUT BY THE SRA. AFTER A WARDING OF THE CONTRACT, THE ASSESSEE DEPOSITED EARNEST MONEY OF ` 50 LAKHS. A FURTHER AMOUNT OF ` 2 CRORES WAS PAID BY THE ASSESSEE TO PUNE MUNICIPAL CORPORATION FOR ESTABLISHING TRANSIT CAMP FOR THE SLUM DWELLERS. 3.1 THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR ON 23-09-2009 DECLARING TOTAL TAXABLE INCOME OF ` 6,16,32,660/-. THEREAFTER, THE ASSESSEE FILED REVISED RETURN OF INCOME ON 28-03-2011 DECLARING GROSS TOTAL INCOME OF ` 6,19,92,622/-. IN THE REVISED RETURN OF INCOME THE ASSESSEE CLAIMED DEDUCTION OF ` 6,18,71,636/- U/S. 80IB(10) OF THE INCOME TAX ACT, 1961 (HE REINAFTER REFERRED TO AS THE ACT). THUS, THE TOTAL TAXABLE INCOM E DECLARED BY THE ASSESSEE IN THE IMPUGNED ASSESSMENT YEAR WAS ` 1,20,990/-. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND ACCORDINGL Y NOTICE U/S. 143(2) WAS ISSUED TO THE ASSESSEE ON 26-08-2011. IN SC RUTINY ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER AFTER EXAMININ G THE DOCUMENTS FURNISHED BY THE ASSESSEE CAME TO THE CONCLU SION THAT THE ASSESSEE IS NOT A DEVELOPER BUT A CONTRACTOR, THEREFORE , THE ASSESSEE IS NOT ELIGIBLE TO CLAIM DEDUCTION U/S. 80IB(10) OF THE ACT. THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAS NOT UNDERTAKEN ANY BUSINESS RISK IN RESPECT OF THE PROJECT AWARDED BY THE SRA. TH E AGREEMENT BETWEEN SRA AND THE ASSESSEE HAS ALL THE INGREDIENTS O F THE WORKS CONTRACT. THE ASSESSEE IS NOT THE OWNER OF THE LAND. THE ASSESSING OFFICER DISALLOWED THE ASSESSEES CLAIM OF DEDUCTION U/S. 80IB (10) OF THE ACT. 4 ITA NOS. 1474/PN/2013, A.Y. 2009-10 AGGRIEVED BY THE ASSESSMENT ORDER DATED 23-12-2011, T HE ASSESSEE PREFERRED AN APPEAL BEFORE THE COMMISSIONER OF I NCOME TAX (APPEALS). THE COMMISSIONER OF INCOME TAX (APPEALS) AFTER CO NSIDERING THE FACTS OF THE CASE AND VARIOUS DECISIONS ON WHICH THE ASSESSEE HAD PLACED RELIANCE AS WELL AS CBDT CIRCULAR DATED 05-01-2011 REVERSED THE FINDINGS OF THE ASSESSING OFFICER AND ACCEPTED THE APPE AL OF THE ASSESSEE. NOW, THE REVENUE IS IN APPEAL BEFORE THE TRIBU NAL ASSAILING THE FINDINGS OF THE COMMISSIONER OF INCOME TAX (APPEALS). 4. SMT. DIVYA BAJPAYEE REPRESENTING THE DEPARTMENT SUB MITTED THAT THE COMMISSIONER OF INCOME TAX (APPEALS) WITHOUT VERIFYING THE FACTS OF THE CASE HAS MERELY ACCEPTED THE CONTENTION OF THE AS SESSEE. THE ASSESSING OFFICER HAS GIVEN DETAILED REASONS TO HOLD THAT T HE ASSESSEE IS A WORKS CONTRACTOR AND NOT A DEVELOPER. THE LD. DR SUB MITTED THAT FIRST AND FOREMOST REQUIREMENT TO BE A DEVELOPER IS THAT THE DEVELOPER MUST OWN A LAND, WHEREAS, IN THE PRESENT CASE THE LAND IS OWNE D BY THE GOVERNMENT. ANOTHER IMPORTANT FACT WHICH HAS TO BE CON SIDERED IS THE BUSINESS RISK. THIS FACTOR IS ALSO MISSING IN THE PRESENT C ASE. A PERUSAL OF THE AGREEMENT VIDE WHICH THE CONTRACT WAS AW ARDED TO THE ASSESSEE FOR CONSTRUCTION OF A BUILDING WOULD SHOW THAT TH E ASSESSEE HAS TO CONSTRUCT THE BUILDING IN ACCORDANCE WITH THE SPE CIFICATIONS AND CONDITIONS LAID DOWN BY THE SRA. THE QUOTATIONS WERE CA LLED FROM THE INTERESTED PARTIES THROUGH ADVERTISEMENT IN THE NEWSPAP ER. THE PROJECT WAS ALLOTTED TO THE ASSESSEE AFTER RECEIVING LOWEST QUOTA TION. THE WORK TO BE DONE IS SPECIFICALLY MENTIONED IN THE AGREEMENT UNDE R THE HEADING, SCHEDULE OF WORKS. THE ASSESSEE WAS REQUIRED TO PAY EARNEST MONEY DEPOSIT OF ` 50 LAKHS. THERE WERE SOME OTHER CLAUSES SUCH AS TERMINATION OF CONTRACT, LIQUIDATED DAMAGES, PERIOD OF TIME FOR 5 ITA NOS. 1474/PN/2013, A.Y. 2009-10 COMPLETION OF WORK ETC. WHICH CLEARLY INDICATE THAT THE ASS ESSEE WAS A CONTRACTOR AND NOT A DEVELOPER. THE LD. DR FURTHER SUB MITTED THAT THE CASE LAWS ON WHICH THE COMMISSIONER OF INCOME TAX (APPEALS ) HAS PLACED RELIANCE ARE DISTINGUISHABLE ON FACTS. THE LD. DR VEH EMENTLY SUPPORTED THE FINDINGS OF ASSESSING OFFICER AND PRAYED FOR S ETTING ASIDE THE ORDER OF FIRST APPELLATE AUTHORITY. 5. AU CONTRAIRE SHRI KISHOR PHADKE APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE PRIMARY ISSUE IN THE PRESEN T APPEAL RAISED BY THE REVENUE IS, WHETHER THE ASSESSEE IS A DEVELOPER OR A CONTRACTOR? THE ASSESSEE HAD FILED DETAILED SUBMISSIONS BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) GIVING REPLY/EXPLANATION TO THE OBJE CTIONS RAISED BY THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDIN GS. THE FIRST OBJECTION RAISED BY THE ASSESSING OFFICER WAS THAT THE AS SESSEE IS NOT A OWNER OF LAND. THE LD. AR CONTENDED THAT TO CLAIM DEDUCTIO N U/S. 80IB(10) THE DEVELOPER NEED NOT BE THE OWNER OF THE LAND . IN SUPPORT OF HIS SUBMISSIONS THE LD. AR PLACED RELIANCE ON THE DECISION OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. RADHE DEVELOPERS REPORTED AS 17 TAXMANN.COM 156 (GUJ.): 341 ITR 403 (GUJ.). 5.1 THE LD. AR SUBMITTED THAT THE ASSESSEE HAS MADE HUG E INVESTMENT IN THE PROJECT AND HAD UNDERTAKEN THE RISK. THERE WERE SEVERAL CLAUSES IN THE AGREEMENT, WHICH IF ENFORCED WOULD H AVE RESULTED IN TERMINATION OF CONTRACT AND FORFEITURE OF THE AMOUNT. THE ASSESSEE IS A ENTREPRENEUR. THE CONTRACTOR NEVER MAKES INVESTMEN T IN ANY PROJECT. FOR COMPLETING THE WORK, THE CONTRACTOR RECEIVES THE PA YMENT AT REGULAR INTERVAL FROM THE CONTRACTEE. WHEREAS, IN THE PRESENT C ASE THE ASSESSEE 6 ITA NOS. 1474/PN/2013, A.Y. 2009-10 HAS NOT RECEIVED ANY PAYMENT IN BETWEEN STARTING OF PRO JECT AND COMPLETION OF PROJECT. THE ASSESSEE MADE INVESTMENT FROM MARCH, 2007 TO JULY, 2008 WITH NO RETURN AT ALL. THUS, THE AS SESSEE HAD TAKEN INVESTMENT RISK. THE LD. AR PLACING RELIANCE ON THE CBDT CIR CULAR NO. 5 OF 2010 SUBMITTED THAT ACCORDING TO THE CIRCULAR THE O BJECTIVE OF TAX CONCESSION IS TO PROVIDE TAX BENEFIT TO THE PERSON UNDE RTAKING THE INVESTMENT RISK I.E. THE ACTUAL DEVELOPER. THE CIRCULAR FURTH ER CLARIFIES THAT ANY PERSON UNDERTAKING CONTRACT RISK IS NOT ENTITL ED TO TAX BENEFITS. IN THE PRESENT CASE THE ASSESSEE HAD UNDERT AKING THE INVESTMENT RISK. THE LD. AR FURTHER SUBMITTED THAT CLAUSE 33.5 OF THE SAID CIRCULAR HAS CLARIFIED THAT AN EXPLANATION AFTER SUB-SE CTION (10) OF SECTION 80IB INSERTED PROVIDES THAT NOTHING CONTAINED IN THIS SUB- SECTION SHALL APPLY TO ANY UNDERTAKING WHICH EXECUTES T HE HOUSING PROJECT AS WORKS CONTRACT AWARDED BY ANY CENTRAL OR STATE GOVERNMENT. THE LD. AR FURTHER REFERRED TO CBDT NOTIFICATION NO. 1 OF 20 11 DATED 05-01-2011 WHICH STATES THAT WHERE ANY SCHEME FOR SLUM DEVELOPMENT PREPARED BY THE MAHARASHTRA GOVERNMENT U/S. 37(2) OF TH E MAHARASHTRA REGIONAL TOWN PLANNING ACT, 1966 IS NOTIFIED BY THE BOARD OR ANY PROJECT IS APPROVED BY THE LOCAL AUTHORITY UNDER THE AFORESAID SCHEME ON OR AFTER 01-04-2004 BUT BEFORE 31-03-2008, A NY INCOME ARISING FROM SUCH PROJECTS SHALL BE ELIGIBLE FOR DEDUCTION U/ S. 80IB(10) OF THE ACT FOR THE ASSESSMENT YEAR 2005-06 ONWARDS. T HE LD. AR IN ORDER TO SUPPORT HIS SUBMISSIONS PLACED RELIANCE ON THE FO LLOWING DECISIONS: I. B.T. PATIL & SONS BELGAUM CONSTRUCTIONS (P.) LTD. VS. ASSISTA NT COMMISSIONER OF INCOME TAX, 59 SOT 61 (PUNE, ITAT); II. KOYA AND CO. CONSTRUCTION (P.) LTD. VS. ASSISTANT COMMISSIONE R OF INCOME TAX, 51 SOT 203 (HYD., ITAT); 7 ITA NOS. 1474/PN/2013, A.Y. 2009-10 III. ASSISTANT COMMISSIONER OF INCOME TAX VS. BHARAT UDYOG LT D., 24 SOT 412 (MUM., ITAT); IV. ITO VS. M/S. SONASHA ENTERPRISES IN ITA NOS. 4911 & 4912/MUM/2010 FOR ASSESSMENT YEARS 2007-08 & 2008-09 DECIDED ON 31-10-2011. THE LD. AR VEHEMENTLY SUPPORTED THE FINDINGS OF THE COMMISSIONER OF INCOME TAX (APPEALS) AND PRAYED FOR DISMISSIN G THE APPEAL OF THE REVENUE. 6. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESENT ATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF THE AUTHORITIE S BELOW. WE HAVE ALSO CONSIDERED THE DOCUMENTS PLACED ON RECORD IN THE FORM OF PAPER BOOK AND THE DECISIONS ON WHICH THE LD. AR HAS PLAC ED RELIANCE. THE DEPARTMENT IN APPEAL HAS ASSAILED THE ORDER OF COMMIS SIONER OF INCOME TAX (APPEALS) IN HOLDING THE ASSESSEE AS DEVELOPER AND THUS ELIGIBLE TO CLAIM DEDUCTION U/S. 80IB(10). THE ASSESSING OFFICER HAD DENIED DEDUCTION U/S. 80IB(10) TO THE ASSESSEE PRIMARILY O N THE FOLLOWING GROUNDS: I. THE LAND IS NOT OWNED BY THE ASSESSEE; II. THE ASSESSEE HAS NOT UNDERTAKEN ANY RISK; III. THE ASSESSEE IS NOT A DEVELOPER BUT A CONTRACTOR IN VIE W OF THE TERMS AND CONDITIONS SET OUT IN AGREEMENT BETWEEN SRA AND THE ASSESSEE. 7. AS REGARDS THE OBJECTION OF THE REVENUE WITH RESPECT TO OWNING A LAND TO BE CLASSIFIED AS DEVELOPER, WE DO NOT FIND ANY MERIT IN THIS OBJECTION. IT IS NOW A WELL SETTLED PROPOSITION THAT THE D EVELOPER NEED 8 ITA NOS. 1474/PN/2013, A.Y. 2009-10 NOT OWN A LAND. THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. RADHE DEVELOPERS (SUPRA) HAS OBSERVED THAT, . THERE IS NOTHING UNDER SECTION 80IB(10) OF TH E ACT REQUIRING THAT OWNERSHIP OF THE LAND MUST VEST IN THE DEVELOPER TO BE ABLE TO QUALIFY FOR SUCH DEDUCTION. 8. THE SECOND CONTENTION OF THE LD. DR IS THAT THE ASSES SEE HAS NOT UNDERTAKEN ANY RISK. CONTROVERTING THE ASSERTIONS MAD E ON BEHALF OF THE DEPARTMENT, THE LD. AR HAS SUBMITTED THAT THE ASSES SEE HAS UNDERTAKEN BUSINESS RISK AND ENTREPRENEUR RISK. THE AS SESSEE HAD MADE INVESTMENT OF ABOUT ` 6 CRORES. THE ASSESSEE HAS TAKEN ALL THE RISKS IN TAKING APPROVALS, ADMINISTRATION CLEARANCES, MAKING T RANSIT ACCOMMODATION FOR SLUM DWELLERS AND FINALLY REALIZATION OF TDR S. THE FIRM HAS PROVIDED FURTHER FACILITIES SUCH AS ELECTRICAL LIGHTS, FAN S ETC. WHICH WERE NOT PART OF THE AGREEMENT. IN SUPPORT OF H IS SUBMISSION, THE LD. AR HAS PLACED RELIANCE ON THE DECISION OF B.T. PATIL & SONS BELGAUM CONSTRUCTIONS (P.) LTD. VS. ACIT (SUPRA). AFTER ANALYZING DOCUMENTS ON RECORD, WE FIND THAT THE AS SESSEE WAS LIABLE FOR LIQUIDATED DAMAGES (CLAUSE 7 OF THE GENERAL CONDITIONS OF CONTRACT), IF IT FAILS TO FULFILL THE OBLIGATIONS SET OUT IN THE AG REEMENT. THE ASSESSEE HAS UNDERTAKEN FINANCIAL RISK BY MAKING INVES TMENT. IT IS AN UNDISPUTED FACT THAT NO PAYMENTS WERE RECEIVED BY T HE ASSESSEE DURING OR AFTER EXECUTION OF THE PROJECTS. THE PROJECT WAS EXECUTED IN LIEU OF TDR, WHEREIN AGAIN THE ASSESSEE HAD TO MAKE HUGE INVESTMENT. IN THE BACKDROP OF THESE FACTS, WE DO NOT FIND MERIT IN T HE SECOND OBJECTION OF THE LD. DR. 9. IN SO FAR AS THE ISSUE WHETHER THE ASSESSEE IS A DEV ELOPER OR CONTRACTOR VIZ-A-VIZ SRA PROJECT IS CONCERNED, THE ASS ESSEE HAS PLACED 9 ITA NOS. 1474/PN/2013, A.Y. 2009-10 RELIANCE ON THE DECISION OF THE MUMBAI BENCH OF THE TRIBUN AL IN THE CASE OF ITO VS. M/S. SONASHA ENTERPRISES (SUPRA). IN TH E SAID CASE, THE ASSESSEE FIRM DEVELOPED A HOUSING PROJECT UNDER SRA SCH EME SANCTIONED BY MMRDA. THE ASSESSEE CLAIMED DEDUCTION U/ S. 80IB(10) OF THE ACT. THE ASSESSING OFFICER DENIED THE CLAIM OF DEDUCT ION. ONE OF THE GROUND TO DENY DEDUCTION WAS THAT THE ASSESSEE IS A CONTRACTOR AND NOT A BUILDER WHO HAS SOLD TRANSFER OF DEVELOPMENT RIGHTS (TDR) WHICH IS A MOVABLE ASSET. THE TRIBUNAL DECIDED THE ISSUE IN FAV OUR OF THE ASSESSEE BY CONFIRMING THE FINDINGS OF COMMISSIONER OF INCOM E TAX (APPEALS) IN HOLDING THE ASSESSEE AS A DEVELOPER. THE RELE VANT EXTRACT OF THE ORDER OF THE TRIBUNAL IS REPRODUCED HERE-IN-UNDER: 5.2 AS REGARD THE LAST CONTENTION OF THE REVENUE I S THAT THE ASSESSEE IS NOT A BUILDER AND THE INCOME RECEIVED BY SALE OF TD R AND NOT BY SALE OF HOUSING PROJECT IS CONCERNED, WE FIND THAT THERE IS NO DISPUTE ABOUT THE FACT THAT THE ASSESSEE RECEIVED THE TDR AS A CONSID ERATION AGAINST THE DEVELOPMENT OF THE PROJECT IN QUESTION. WE FURTHER NOTE THAT THE TDR WAS RECEIVED ONLY FOR RESIDENTIAL PORTION OF THE HOUSIN G PROJECT AND NOT FOR THE COMMERCIAL ESTABLISHMENT. THUS, WHEN THE TDR RECEIV ED BY THE ASSESSEE WAS IMMEDIATELY SOLD AND THE SALE CONSIDERATION WAS SHOWN AS RECEIPT FROM THE HOUSING PROJECT, THEN, THERE IS NO OTHER E LEMENT IN THE SAID RECEIPT AGAINST THE SALE OF TDR OTHER THAN THE INCO ME FROM HOUSING PROJECT. 5.3 IT IS NOT THE CASE OF THE REVENUE THAT THE ASSE SSEE SOLD THE TDR AFTER APPRECIATION OF THE VALUE AND THEREFORE, THE ENTIRE AMOUNT CANNOT BE TREATED AS SALE CONSIDERATION OF THE HOUSING PROJEC T. THE ASSESSEE HAS GIVEN THE DETAILS OF THE RECEIPTS OF TDR AND SALE O F THE TDR AS IN THE SAME YEAR AND IMMEDIATELY AFTER RECEIVING FROM THE MMDRA. THEREFORE, THERE IS NO ELEMENT OF ANY APPRECIATION IN THE VALU E IN THE SALE CONSIDERATION. IN VIEW OF THE ABOVE FACTS AND CIRCU MSTANCES OF THE CASE, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE ORD ER OF THE LD CIT(A) FOR BOTH THE AYS. 10. WE FIND THAT THE CASE OF THE ASSESSEE IN THE PRESENT APPEAL IS O N A BETTER FOOTING, AS THERE IS NO ISSUE OF SALE OF TDR BY THE ASSESSEE. 10 ITA NOS. 1474/PN/2013, A.Y. 2009-10 THUS, WE CAN SAFELY CONCLUDE THAT THE ASSESSEE EXECUTIN G THE PROJECT UNDER SRA SCHEME IS A DEVELOPER AND NOT A CONTRACTOR. 11. THE ASSESSEE HAS PLACED RELIANCE ON THE CBDT NOTIFICA TION DATED 05-01-2011 TO SUBSTANTIATE ITS CLAIM THAT THE ASSESSEE IS ELIGIBLE TO CLAIM DEDUCTION U/S. 80IB(10). THE RELEVANT EXTRACT OF THE NOTIFICATION DATED 05-01-2011 READS AS UNDER: MINISTY OF FINANCE DEPARTMENT OF REVENUE CENTRAL BOARD OF DIRECT TAXES NOTIFICATION (INCOME TAX) NEW DELHI, THE 5 TH JANUARY, 2011. S.O. (E.)- IN EXERCISE OF THE POWERS CONFERRED BY CLAUSES (A) AND (B) OF SUBSECTION (10) OF SECTION 80IB OF THE INCOME TAX A CT, 1961 (43 OF 1961), THE BOARD HEREBY NOTIFIES, THE SCHEME FOR SLUM REDE VELOPMENT PREPARED BY THE MAHARASHTRA GOVERNMENT UNDER SUB-SECTION (2) OF SECTION 37 OF THE MAHARASHTRA REGIONAL TOWN PLANNING ACT, 1966 (M AH.XXXVII OF 1966) AND PUBLISHED VIDE NOTIFICATION NO. TPS-1893/ 973/CR- 49/93A/UD-13, DATED THE 26 IH FEBRUARY, 2004, AS A SCHEME FOR THE PURPOSES OF THE SAID SECTION SUBJECT TO THE CONDITI ON THAT ANY AMENDMENT TO THE SCHEME HEREBY NOTIFIED SHALL BE REQUIRED TO BE RE-NOTIFIED BY THE CENTRAL BOARD OF DIRECT TAXES. 2. THIS NOTIFICATION SHALL BE DEEMED TO APPLY TO PR OJECTS APPROVED BY A LOCAL AUTHORITY UNDER THE AFORESAID SCHEME ON OR AF TER THE 1 ST DAY OF APRIL, 2004 AND BEFORE 31 ST DAY OF MARCH, 2008 THEREBY MAKING THE INCOMES ARISING FROM SUCH PROJECTS ELIGIBLE FOR DED UCTION UNDER SUB- SECTION (10) OF SECTION 80IB FROM THE ASSESSMENT YE AR 2005-06 ONWARDS. [F.NO. 178/35/2008-ITA-I] SD/ - (RAMAN CHOPRA) DIRECTOR(ITA-I) THE LD. AR HAS SUBMITTED THAT THE PROJECT DEVELOPED BY THE ASSESSEE IS NOTIFIED UNDER THE SCHEME. THIS FACT HAS NOT BEEN CONTROVERTED BY THE DEPARTMENT. ONCE THE SCHEME IS N OTIFIED AND THE 11 ITA NOS. 1474/PN/2013, A.Y. 2009-10 PROJECT IS APPROVED, THE ASSESSEE IS ELIGIBLE TO CLAIM DEDUC TION ON THE PROJECT U/S. 80IB(10) OF THE ACT. THUS, IN VIEW OF THE FACTS OF THE CASE AND THE DECISION OF T HE CO- ORDINATE BENCH, WE DO NOT FIND ANY MERIT IN THE APPEAL OF THE REVENUE AND THE SAME IS DISMISSED. 12. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED B EING DEVOID OF ANY MERIT. ORDER PRONOUNCED ON FRIDAY, THE 29 TH DAY OF JANUARY, 2016. SD/- SD/- ( . . / R.K. PANDA) ( ! ' / VIKAS AWASTHY) #' / ACCOUNTANT MEMBER $ % #' / JUDICIAL MEMBER / PUNE; &# / DATED : 29 TH JANUARY, 2016 RK *+,%-.#/#)- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ' () / THE CIT(A)-II, PUNE 4. ' / THE CIT-II, PUNE 5. !*+ %%,- , ,- , . ./0 , / DR, ITAT, B BENCH, PUNE. 6. + 1 23 / GUARD FILE. // ! % // TRUE COPY// #4 / BY ORDER, %5 ,0 / PRIVATE SECRETARY, ,- , / ITAT, PUNE