M/s. Shreenathji Developers, Baroda V. The ACIT, Circle-5, Baroda

ITA 1680/AHD/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6254 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 10 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 06-04-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 10-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL KUMAR
• Keywords: Gift
• Section: 80IB; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENC H (BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) ITA. NOS: 1680 & 1681/AHD/2013 (ASSESSMENT YEARS: 2008-09 & 2009-10 ) M/S. SHREENATHJI DEVELOPERS 401, VITRAG APARTMENT, OPP. SHREEPAD NAGAR SOCIETY, VIP ROAD, KARELIBAUG, BARODA- 390018 V/S THE ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE-5, BARODA (APPELLANT) (RESPONDENT) PAN: ABGFS0359F APPELLANT BY : MS. URVASHI SHODHAN, AR RESPONDENT BY : SHRI RAHUL KUMAR SR. D.R. ( )/ ORDER DATE OF HEARING : 06 -04-201 7 DATE OF PRONOUNCEMENT : 13 -04-2017 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. ITA NOS. 1680 & 1681/AHD/2013 ARE APPEALS BY THE AS SESSEE PREFERRED AGAINST TWO SEPARATE ORDERS OF THE LD. CIT(A)-V, BA RODA DATED 22.03.2013 PERTAINING TO A.YS. 2008-09 & 2009-10. ITA NO . 168 0 & 1681/AHD/2013 . A.Y. 2008-09 & 2009-10 2 2. SINCE COMMON GRIEVANCE IS INVOLVED IN BOTH THESE AP PEALS, THEY WERE HEARD TOGETHER AND ARE DISPOSED OF BY THIS COMMON ORDER F OR THE SAKE OF CONVENIENCE. 3. THE COMMON GRIEVANCE IN THE IMPUGNED APPEALS RELATE TO THE DISALLOWANCE OF THE CLAIM OF DEDUCTION MADE U/S. 80IB(10) OF THE ACT BY TREATING THE ASSESSEE AS A WORKS CONTRACTOR. 4. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT THE I NCOME OF THE ASSESSEE IS DERIVED FROM BUSINESS AND OTHER SOURCES, BEING IN T HE LINE OF THE BUSINESS OF CONSTRUCTION AND DEVELOPMENT OF PLOT. 5. DURING THE COURSE OF THE SCRUTINY ASSESSMENT PROCEE DINGS AND AFTER VERIFYING THE PROPOSED LAY OUT PLAN, DEVELOPMENT PE RMISSION AND THE DEVELOPMENT AGREEMENT, THE A.O. NOTICED THAT THE AS SESSEE IS NOT THE ACTUAL OWNER OF THE LAND ON WHICH THE PROJECT CALLE D VAIBHAV LAXMI WAS CONSTRUCTED. THE A.O. FORMED A BELIEF THAT THE ASSE SSEE IS NOT ENTITLED FOR DEDUCTION U/S. 80IB(1) OF THE ACT SINCE THE APPROVA L OF THE PROJECT IS NOT GRANTED IN THE NAME OF THE ASSESSEE. THE A.O. COMPL ETED THE ASSESSMENT BY DISALLOWING THE CLAIM OF DEDUCTION MADE U/S. 80I B(10) OF THE ACT. 6. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER BEFORE T HE LD. CIT(A) BUT WITHOUT ANY SUCCESS. ITA NO . 168 0 & 1681/AHD/2013 . A.Y. 2008-09 & 2009-10 3 7. WHILE DISMISSING THE APPEAL OF THE ASSESSEE, THE LD . CIT(A) OBSERVED IF WE CONSIDER THE HOUSING PROJECT AS A WHOLE IT IS CLEAR THAT THE HOUSING PROJECT IS PARTLY DEVELOPED AND BUILT BY THE APPELLANT ON ITS OWN AND THE LATER PART OF THE HOUSING PROJECT IS COMPLETED UNDER WORKS CONTRA CTS AWARDED BY PLOT PURCHASERS. ROLE OF THE APPELLANT AS DEVELOPER AND BUILDER OF THE PROJECT GETS OVER AS SOON AS RESIDENTIAL PLOTS ARE SOLD TO INDIVIDUAL PURCHASERS WITH ALL THE RIGHTS IN THE PLOT. 8. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE VEHEMEN TLY STATED THAT THE ISSUE IS NOW COVERED IN FAVOUR OF THE ASSESSEE AND AGAINS T THE REVENUE BY VARIOUS DECISIONS OF THE CO-ORDINATE BENCH AND THE HONBLE HIGH COURT. 9. PER CONTRA, THE LD. D.R. COULD NOT BRING ANY DISTIN GUISHING DECISION IN FAVOUR OF THE REVENUE. 10. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTHORI TIES BELOW. WE HAVE ALSO GONE THROUGH THE VARIOUS JUDICIAL DECISIONS BR OUGHT TO OUR NOTICE BY THE LD. COUNSEL. WE FIND FORCE IN THE CONTENTION OF THE LD. COUNSEL. AN IDENTICAL ISSUE WAS CONSIDERED BY THE CO-ORDINATE B ENCH IN THE CASE OF SATSANG DEVELOPERS IN ITA NOS. 1011 , 2498 & 1221/A HD/2012. THE RELEVANT PART READS AS UNDER:- 9.2 NOW WE TAKE UP THE THIRD AND LAST OBJECTION OF ID.CIT (A) THAT THE ASSESSEE HAD SOLD THE LAND SEPARATELY AND UNDERTOOK THE CONS TRUCTION WORK AS PER A SEPARATE AGREEMENT AND, THEREFORE THE ASSESSEE IS N OT A BUILDER OR A DEVELOPER BUT A LAND DEALER AND CONTRACTOR. IN THIS REGARD, I N OUR CONSIDERED OPINION, THE ISSUE INVOLVED IS SQUARELY COVERED IN FAVOUR OF ASS ESSEE BY THE DECISION OF IT AT ITA NO . 168 0 & 1681/AHD/2013 . A.Y. 2008-09 & 2009-10 4 INDORE BENCH RENDERED IN THE CASE OF M/S.VARDHMAN B UILDERS AND DEVELOPERS VS. ITO (SUPRA). IT IS NOTED BY THE TRIBUNAL IN THAT CA SE THAT THE ASSESSEE HAD ENTERED INTO AN AGREEMENT FOR A SALE OF LAND AND A SEPARATE AGREEMENT FOR CONSTRUCTION OF THE HOUSE ON THE LAND AND, THEREFORE, THE FACTS ARE SIMILAR. UNDER THESE FACTS, IT WAS HELD BY THE TRIBUNAL IN THAT CASE THAT THE CLAI M OF THE ASSESSEE FOR DEDUCTION U/S.80-IB (10) OF THE ACT CANNOT BE DECLINED IF OTH ER CONDITIONS ARE BEING SATISFIED. SIMILARLY, IN THE CASE OF DCIT VS. SMR BUILDERS (P. ) LTD. (SUPRA) ALSO, THE ASSESSEE SOLD THE LAND ALONG WITH SEMI-FINISHED STRUCTURE TO THE BUYERS AND AS PER SEPARATE AGREEMENT, AGREED FOR CONSTRUCTION FOR COMPLETION O F BALANCE WORK. HENCE, THE FACTS OF THIS CASE ARE ALSO SIMILAR BECAUSE IN THAT CASE ALSO, THE LAND WAS SOLD SEPARATELY ALONG WITH PARTIAL AND UNFINISHED CONSTR UCTION OF FLATS AND, THEREAFTER, CONSTRUCTION AGREEMENT WAS ENTERED INTO TO CARRY OU T THE BALANCE CONSTRUCTION WORK AND UNDER THESE FACTS, IT WAS HELD BY THE TRIB UNAL IN THAT CASE THAT SUCH AGREEMENT FOR CONSTRUCTION TO COMPLETE THE BALANCE WORK IS ONLY AN INCIDENTAL FACILITATION TO PROTECT INTEREST OF THE PARTIES AND THEREFORE, THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S.80-IB(10) OF THE ACT. SIMILARLY, IN THE CASE OF RAGHAVA ESTATES VS. DY.CIT (SUPRA) ON WHICH RELIANCE WAS PLACED BY THE ID.AR OF THE ASSESSEE, THE FACTS ARE SIMILAR. IN THAT CASE ALSO, THE ASSESSEE HAD SOLD THE PLOTS SEPARATELY AND THEREAFTER, CONSTRUCTED THE HOUSES AND UNDER THESE FACTS, THE REVENUE HELD THAT THE ASSESSEE HAS TO BE CONSIDERED AS A MERE CONTRAC TOR AND, THEREFORE, THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION U/S.80-IB (1 0) OF THE ACT. THIS GOES TO SHOW THAT THE FACTS IN THAT CASE WERE IDENTICAL. IN THAT CASE, IT WAS NOTED BY THE TRIBUNAL THAT THE ASSESSEE HAD CHOSEN TO REGISTER T HE PLOT IN THE NAME OF THE BUYER ON PAYMENT OF SPECIFIED AMOUNT IN ORDER TO AC HIEVE COST SAVING AND TO ENSURE RELIABILITY AND THEREAFTER, THE ASSESSEE HAD PROCEEDED TO CONSTRUCT THE HOUSE AS PER BUILDING PLAN OBTAINED IN THE NAME OF THE PLOT-OWNERS ON PAYMENT OF SUBSEQUENT INSTALLMENTS, IT IS ALSO NOTED THAT T HE ASSESSEE HAD ALSO DEVELOPED VARIOUS PUBLIC AMENITIES WITHIN THE PROJECT. THEREA FTER, IT WAS HELD BY THE TRIBUNAL THAT ON A TOTALITY OF A FACT, THE TRIBUNAL IS OF THE VIEW THAT THE ASSESSEE ITA NO . 168 0 & 1681/AHD/2013 . A.Y. 2008-09 & 2009-10 5 HAS UNDERTAKEN DEVELOPING AND BUILDING HOUSING PROJ ECTS AS PER THE SCHEME PROVIDED IN SECTION 80-IB (10) OF THE ACT. 9.3 SINCE THE FACTS IN THE PRESENT CASE ARE SIMILAR TO THE FACTS IN ABOVE NOTED THREE TRIBUNAL DECISIONS, WE DO NOT FIND ANY DEFECT IN THE CONSTRUCTION IN THE PRESENT CASE AND HENCE RESPECTFULLY FOLLOWING THESE DECISIONS, WE DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE 11. AGAIN A SIMILAR ISSUE CAME UP BEFORE THE CO-ORDINAT E BENCH IN ITA NO. 44/AHD/2013 WHEREIN THE CO-ORDINATE BENCH HAD THE O CCASION TO CONSIDER THE IDENTICAL OBSERVATIONS MADE BY THE FIRST APPELL ATE AUTHORITY AT PAGE 13 OF HIS ORDER. THE BENCH CONSIDERED THE FOLLOWING OB SERVATIONS OF THE FIRST APPELLATE AUTHORITY:- '4.3.5 DEDUCTION U/S 80IB(10) IS AVAILABLE IN RESPEC T OF DEVELOPMENT AND BUILDING OF A HOUSING PROJECT. CLAUSE (B) OF SUB-SECTION 10 OF SECTION 80IB PRESCRIBES THE MINIMUM SIZE OF PLOT OF LAND FOR THE PROJECT AND CL AUSE(C) OF SUB-SECTION 10 OF SECTION 80IB PRESCRIBES MAXIMUM BUILT OF AREA FOR T HE RESIDENTIAL UNIT. THUS, IT IS VERY CLEAR THAT A HOUSING PROJECT ELIGIBLE FOR DEDU CTION UNDER SUB-SECTION 10 OF SECTION 80IB MUST COMPRISE OF RESIDENTIAL UNITS VIZ FLATS, BUNGALOWS OR TENEMENTS. EXPLANATION BELOW SUB SECTION 10 CLARIFIES THAT DED UCTION UNDER SUB-SECTION 10 OF SECTION 80IB IS NOT AVAILABLE TO ANY UNDERTAKING WH ICH EXECUTE THE HOUSING PROJECT AS A WORKS CONTRACT AWARDED BY ANY PERSON. THEREFORE, WHATEVER MAY BE THE DICTIONARY MEANING OF THE TERM BUILDER AND DEVE LOPER, A BUILDER AND DEVELOPER WITHIN THE MEANING OF PROVISIONS OF SECTION 80IB OF THE IT ACT IS ONE WHO IS EXECUTING THE HOUSING PROJECT ON ITS OWN AND NOT AS A CONTRACTOR OF ANYBODY AND WHO IS ELIGIBLE FOR DEDUCTION U/S. 80IB OF THE IT ACT. IN THE SUBSEQUENT DISCUSSION WHENEVER THE TERM BUILDER OR DEVELOPER IS USED IT WILL BE USED IN REFERENCE TO A BUILDER OR DEVELOPER WHO IS ELIGIBLE FOR DEDUCTION U/S. 80IB. ITA NO . 168 0 & 1681/AHD/2013 . A.Y. 2008-09 & 2009-10 6 IN VIEW OF THE ABOVE DISCUSSION, THE POSITION IS VE RY CLEAR IN RESPECT OF AN ENTERPRISE WHICH IS DEVELOPING AND BUILDING A HOUSI NG PROJECT AS BY ITSELF. IT IS ELIGIBLE FOR DEDUCTION UNDER SUB- SECTION 10 OF SECTION 80IB . THE POSITION IS ALSO VERY CLEAR IN RESPECT OF AN ENTERPRISE WHICH IS DEV ELOPING AND BUILDING A HOUSING PROJECT AS A WORKS CONTRACT BY SOME OTHER PERSON. I T IS NOT ELIGIBLE FOR DEDUCTION UNDER SUB- SECTION 10 OF SECTION 80IB BECAUSE AS CLARIFIED BY THE CBDT AND THE FINANCE ACT THE INCENTIVE IS INTENDED TO BENEFIT DEVELOPERS WH O UNDERTAKE ENTREPRENEURIAL AND INVESTMENT RISK AND NOT CONTRAC TORS WHO UNDERTAKE ONLY BUSINESS RISK. THIS IS ALSO SUM AND SUBSTANCE OF TH E DECISION IN THE CASE OF RADHE DEVELOPERS QUOTED AND RELIED UPON BY THE APPELLANT. HOWEVER, PROBLEM ARISES WHEN A HOUSING PROJECT IS PARTLY DEVELOPED AND BUIL DING ITSELF BY AN ENTERPRISE AND PART OF THE HOUSING PROJECT IS COMPLETED AS A W ORKS CONTRACT. IT IS BEYOND DOUBT THAT WHAT THE APPELLANT WAS PLAN NING TO DEVELOP AND BUILD WAS A HOUSING PROJECT AND INITIAL APPROVALS AND ACT IVITIES WERE SOLELY DIRECTED TOWARDS THAT END. HOWEVER, IN THE END ONLY FULLY DE VELOPED RESIDENTIAL PLOTS HAVE BEEN SOLD BY EXECUTING A REGISTERED SALE AGREEMENT. PAGE-7, PARA-2 OF THE SAMPLE SALE DEED PROVIDED BY THE APPELLANT STATES THAT 'AFTER SELLING THE LAND (PLOT) PHYSICAL POSSESSION HAS BEEN HANDED OVER'. PAGE-3, PARA-1 OF THE SALE DEED STATES THAT 'FROM THIS MOMENT ONWARDS THE PURCHASER AND HIS LEGA L HEIRS ARE FULL OWNER OF THE LAND DESCRIBED IN THE SCHEDULE AND THEY ARE ENT ITLED TO USE, MANAGE MORTGAGE, SELL OR GIFT IT. FROM THIS POINT ONWARDS THE SELLER AND HIS LEGAL HEIRS HAVE NO SHARE, TITLE OR INTEREST IN THE LAND.' THUS, THE PLOT PURCHASER GETS FULL RIGHTS AND CONTROL OVER THE PROPERTY ON EXECUTION O F THE SALE DEED AND BECOMES ITS ABSOLUTE OWNER. AFTER EXECUTION OF SALE DEED, T HE APPELLANT HAS ENTERED INTO A SEPARATE WRITTEN CONSTRUCTION AGREEMENT WITH THE PL OT PURCHASER FOR CONSTRUCTION OF BUILDING ON THE SAID PLOT. IT DOES NOT MATTER TH AT CONSTRUCTION HAS BEEN AS PER UNIFORM DESIGN GOT APPROVED BY THE APPELLANT FROM C ONCERNED AUTHORITIES BECAUSE SUCH A CONDITION CAN ALWAYS BE IMPOSED ON T HE PLOT PURCHASERS. ITA NO . 168 0 & 1681/AHD/2013 . A.Y. 2008-09 & 2009-10 7 MOREOVER, THE PURCHASER HAD AN OPTION TO MAKE CHANG ES. BY ENTERING INTO A CONSTRUCTION AGREEMENT WITH THE PLOT PURCHASER THE APPELLANT HAS MADE HIMSELF A CONTRACTOR OF THE PLOT PURCHASER. THUS, THERE IS NO SALE OF RESIDENTIAL HOUSES BY THE APPELLANT IN A HOUSING PROJECT RATHER THERE IS A SALE OF DEVELOPED RESIDENTIAL PLOTS ONLY (BY THE LAND OWNERS AT THE INSTANCE OF T HE APPELLANT). THERE IS NOT A SINGLE INSTANCE WHERE A FULLY CONSTRUCTED PROPERTY HAS BEEN SOLD BY THE APPELLANT. THUS, IT IS CLEAR THAT THE APPELLANT HAD CONSCIOUSL Y DECIDED TO SELL FULLY DEVELOPED RESIDENTIAL PLOTS ONLY AND COMPLETE REST OF THE WOR K AS A CONTRACTOR OF THE PLOT OWNERS. DEDUCTION U/S 80IB(10) IS NOT AVAILABLE IN RESPECT OF DEVELOPMENT OF A SCHEME CONSISTING OF RESIDENTIAL PLOTS. IF WE CONSI DER THE HOUSING PROJECT AS A WHOLE IT IS CLEAR THAT THE HOUSING PROJECT IS PARTL Y DEVELOPED AND BUILT BY THE APPELLANT ON ITS OWN AND THE LATER PART OF THE HOUS ING PROJECT IS COMPLETED UNDER WORKS CONTRACTS AWARDED BY PLOT PURCHASERS. ROLE OF THE APPELLANT AS DEVELOPER AND BUILDER OF THE PROJECT GETS OVER AS SOON AS RES IDENTIAL PLOTS ARE SOLD TO INDIVIDUAL PURCHASERS WITH ALL THE RIGHTS IN THE PL OT. A CONTRACTOR OF INDIVIDUAL PLOT OWNERS, WHO IS CONSTRUCTING HOUSES, CANNOT CLAIM TH AT HE IS STILL A DEVELOPER AND BUILDER OF THE HOUSING PROJECT AND HE IS ENTITLED T O CLAIM DEDUCTION U/S 80IB(10) OF THE IT ACT . IF WE CONSIDER GROSS RECEIPTS OF THE ENTIRE PROJE CT IT WILL BE VERY CLEAR THAT MORE THAN 75% OF THE RECEIPTS OF THE PROJECT C OME FROM WORKS CONTRACTS. UNDER THESE CIRCUMSTANCES, I AM OF THE OPINION THAT IT CANNOT BE HELD THAT PROJECT AS A WHOLE HAS BEEN PRIMARILY DEVELOPED AND BUILT B Y THE APPELLANT ITSELF WITHIN THE MEANING OF THE PROVISIONS OF SECTION 80IB OF THE IT ACT BECAUSE MORE THAN 75% OF SALE PROCEEDS OF THE PROJECT ARE WORKS CONTR ACT RECEIPTS AND NO ENTREPRENEURIAL AND INVESTMENT RISK HAS BEEN TAKEN BY THE APPELLANT IN RESPECT OF THEM. IN FACT, NO ENTREPRENEURIAL AND INVESTMENT RI SK HAS BEEN TAKEN BY THE APPELLANT ONCE THE SALE OF PLOTS IN THE PROJECT WAS OVER. THEREFORE, IN MY OPINION, IT CANNOT BE HELD THAT THE APPELLANT IS A BUILDER A ND DEVELOPER OF A HOUSING PROJECT WITHIN THE MEANING OF THE PROVISIONS OF SECTION 80IB OF THE IT ACT AND THEREFORE, IT IS NOT ENTITLED FOR DEDUCTION U/S 80I B (10) IN RESPECT OF PROFIT DERIVED ITA NO . 168 0 & 1681/AHD/2013 . A.Y. 2008-09 & 2009-10 8 FROM THE PROJECT UNDER CONSIDERATION. CLAIM OF DEDU CTION U/S 80IB (10) AMOUNTING TO RS.8,03,273/- BY THE APPELLANT IS HERE BY DISALLOWED.' 12. AND THE BENCH HELD AS UNDER:- 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT AO HAD DENIED THE CLAIM OF DEDUCTION U/S. 80IB(10) TO THE ASSESSEE FOR THE REASON THAT THE ASSESSEE WAS NOT THE OWNER OF T HE LAND AND WAS MERELY A CONTRACTOR. BEFORE US ASSESSEE HAD SUBMITTED THAT I N EARLIER YEARS I.E. A.Y. 2004- 05 THE ASSESSEE'S CLAIM FOR DEDUCTION U/S. 80IB(10) WAS ALLOWED BY LD. CIT(A) AND WHICH WAS ALSO CONFIRMED BY THE HON'BLE TRIBUNA L IN ITA NO. 1750/AHD/2010 ORDER DATED 15-10-2010. FURTHER IT IS ASSESSEE'S SU BMISSION THAT THE PROJECT ON WHICH THE ASSESSEE IS CLAIMING THE DEDUCTION U/S. 8 0IB(10) IS THE SAME PROJECT AND THE AFORESAID SUBMISSION OF THE ASSESSEE HAS NOT BE EN CONTROVERTED BY THE REVENUE BY BRINGING ANY CONTRARY MATERIAL ON RECORD . WITH RESPECT TO THE ARGUMENT OF THE REVENUE THAT THE LAND WAS SOLD SEPA RATELY AND THE CONSTRUCTION WORK WAS UNDERTAKEN BY A SEPARATE AGREEMENT, WE FIN D THAT ON IDENTICAL ISSUE IN THE CASE OF SATSANG DEVELOPERS(SURPA), THE CO- ORDI NATE BENCH OF TRIBUNAL IN ITA NO. 1011 & 2498/AHD/2012 DATED 12-11- 2013 WAS DECI DED BY THE CO-ORDINATE BENCH OF TRIBUNAL BY HOLDING AS UNDER:- '9.2. NOW WE TAKE UP THE THIRD AND LAST OBJECTION O F ID.CIT (A) THAT THE ASSESSEE HAD SOLD THE LAND SEPARATELY AND UNDERTOOK THE CONS TRUCTION WORK AS PER A SEPARATE AGREEMENT AND, THEREFORE THE ASSESSEE IS N OT A BUILDER OR A DEVELOPER BUT A LAND DEALER AND CONTRACTOR. IN THIS REGARD, IN OU R CONSIDERED OPINION, THE ISSUE INVOLVED IS SQUARELY COVERED IN FAVOUR OF ASSESSEE BY THE DECISION OF ITAT INDORE BENCH RENDERED IN THE CASE OF M/S.VARDHMAN BUILDERS AND DEVELOPERS VS ITO (SUPRA). IT IS NOTED BY THE TRIBUNAL IN THAT CASE T HAT THE ASSESSEE HAD ENTERED INTO AN AGREEMENT FOR A SALE OF LAND AND A SEPARATE AGRE EMENT FOR CONSTRUCTION OF THE HOUSE ON THE LAND AND, THEREFORE, THE FACTS ARE SIM ILAR. UNDER THESE FACTS, IT WAS HELD BY THE TRIBUNAL IN THAT CASE THAT THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S.80-IB (10) OF THE ACT CANNOT BE DECLINED IF OTH ER CONDITIONS ARE BEING SATISFIED. SIMILARLY, IN THE CASE OF DCIT VS. SMR BUILDERS (P. ) LTD. (SUPRA) ALSO, THE ITA NO . 168 0 & 1681/AHD/2013 . A.Y. 2008-09 & 2009-10 9 ASSESSEE SOLD THE LAND ALONG WITH SEMI-FINISHED STR UCTURE TO THE BUYERS AND AS PER SEPARATE AGREEMENT, AGREED FOR CONSTRUCTION FOR COM PLETION OF BALANCE WORK. HENCE, THE FACTS OF THIS CASE ARE ALSO SIMILAR BECA USE IN THAT CASE ALSO, THE LAND WAS SOLD SEPARATELY ALONG WITH PARTIAL AND UNFINISH ED CONSTRUCTION FLATS AND, THEREAFTER, CONSTRUCTION AGREEMENT WAS ENTERED INTO TO CARRY OUT THE BALANCE CONSTRUCTION WORK AND UNDER THESE FACTS, IT WAS HEL D BY THE TRIBUNAL IN THAT CASE THAT SUCH AGREEMENT FOR CONSTRUCTION TO COMPLETE TH E BALANCE WORK IS ONLY AN INCIDENTAL FACILITATION TO PROTECT INTEREST OF THE PARTIES AND THEREFORE, THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S. 80-IB(10) OF THE ACT . SIMILARLY, IN THE CASE OF RAGHAVA ESTATES VS. DY.CLT (SUPRA) ON WHICH RELIANC E WAS PLACED BY THE LD. AR OF THE ASSESSEE, THE FACTS ARE SIMILAR. IN THAT CASE A LSO, THE ASSESSEE HAD SOLD THE PLOTS SEPARATELY AND THEREAFTER, CONSTRUCTED THE HO USES AND UNDER THESE FACTS, THE REVENUE HELD THAT THE ASSCSSEE HAS TO BE CONSIDERED AS A MERE CONTRACTOR AND, THEREFORE, THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTI ON U/S.80-IB (10) OF THE ACT. THIS GOES TO SHOW THAT THE FACTS IN THAT CASE WERE IDENT ICAL. IN THAT CASE, IT WAS NOTED BY THE TRIBUNAL THAT THE ASSESSEE HAD CHOSEN TO REG ISTER THE PLOT IN THE NAME OF THE BUYER ON PAYMENT OF SPECIFIED AMOUNT IN ORDER TO AC HIEVE COST SAVING AND TO ENSURE RELIABILITY AND THEREAFTER, THE ASSESSEE HAD NEEDED TO CONSTRUCT THE HOUSE AS PER BUILDING PLAN OBTAINED IN THE NAME OF PLOT-O WNERS ON PAYMENT OF SUBSEQUENT INSTALLMENTS. IT IS ALSO NOTED THAT THE ASSESSEE HAD ALSO DEVELOPED VARIOUS PUBLIC AMENITIES WITHIN THE PROJECT. THEREA FTER, IT WAS HELD BY THE TRIBUNAL THAT ON A TOTALITY OF A FACT, THE TRIBUNAL IS OF THE VIEW THAT THE ASSESSEE HAS UNDERTAKEN DEVELOPING AND BUILDING HOUSING PROJ ECTS AS PER THE SCHEME PROVIDED IN SECTION 80-IB (10) OF THE ACT.' 8. BEFORE US THE REVENUE HAS NOT BROUGHT ANY CONTRA RY BINDING DECISION IN ITS SUPPORT. WE THEREFORE RESPECTFULLY FOLLOWING THE AF ORESAID DECISION OF CO-ORDINATE BENCH IN THE CASE OF SATSANG DEVELOPERS (SUPRA), AR E OF THE VIEW THAT ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S. 80IB. WE HOLD ACCORDING LY. IN THE RESULT, THIS GROUND OF ASSESSEE'S APPEAL IS ALLOWED. ITA NO . 168 0 & 1681/AHD/2013 . A.Y. 2008-09 & 2009-10 10 13. AS MENTIONED ELSEWHERE, THE FACTS OF THE CASE ARE I DENTICAL TO THE FACTS OF THE CASES CONSIDERED HEREINABOVE. THEREFORE, RESPEC TFULLY FOLLOWING THE FINDINGS OF THE CO-ORDINATE BENCH (SUPRA), WE DIREC T THE A.O. TO ALLOW THE CLAIM OF DEDUCTION U/S. 80IB(10) OF THE ACT. 14. BOTH THESE APPEALS BY THE ASSESSEE ARE ACCORDINGLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 13 - 04- 20 17 SD/- SD/- (MAHAVIR PRASAD) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY ACCOUNTANT MEMBER AHMEDABAD: DATED 13 /04/2017 RAJESH 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,AHME DABAD