M/s. Skyland Developers, Ahmedabad V. The Income Tax Officer,Ward-9(1), Ahmedabad

ITA 1721/AHD/2014

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1245 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 06-10-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 04-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: V P PATEL
• Section: 143(3); 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH AHMEDABAD BEFORE S/SHRI S. S. GODARA, JM, & MANISH BORAD, AM. ITA NO. 1721/AHD/2014 ASST. YEAR: 2005-06 .M/S SKYLAND DEVELOPERS, C/O. V.P. PATEL & CO. ADV., A/102, AKSHARDHAM TOWER, NR. UNDER BRIDGE, SHAHIBAUG, AHMEDABAD. VS .INCOME-TAX OFFICER, WARD-9(1), AHMEDABAD. (APPELLANT) (RESPONDENT) PA NO. AAMFS 7450M APPELLANT BY SHRI V. P. PATEL, AR RESPONDENT BY SHRI RAJDEEP SINGH, SR.DR DATE OF HEARING: 6/10/2015 DATE OF PRONOUNCEMENT: 9/10/2015 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER. THIS APPEAL OF THE ASSESSEE IS FILED AGAINST THE O RDER OF CIT(A)- I, AHMEDABAD, DATED 27.01.2014 FOR AY 2005-06. ASSE SSMENT WAS FRAMED UNDER SECTION 143(3) R.W.S. 254 OF THE I.T. ACT, 1961 (HEREIN AFTER REFERRED TO AS THE ACT) ON 25.9.2007 BY ITO, WD-9(1), AHMEDABAD. ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL :- 1. THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN DETE RMINING THE APPELLANT ROLE WAS SUPERVISION CONTRACTOR ON FIXED RATE AND IGNORED THE COGENT EVIDENCE AND THEREBY REJECTED TH E DEDUCTION U/S 80IB(10) OF THE ACT WHERE THE APPELLANT CASE CO VERED BY SHAKTI CORPORATION. ITA NO. 1721/AHD/2014 ASST. YEAR 2005-06 2 2. THE LD. CIT(A) ERRED ON FACTS IN MISCONSTRUE THE FACTS OF INSTANT CASE AND IGNORED THE CLEAR DIRECTION OF HONBLE ITA T IN REGARD TO LAND INVESTMENT AND DOMAIN OVER THE PROJECT, WHI CH HAD BEEN WITH THE APPELLANT, SO THE SAME IS NOT TENABLE IN THE EYE OF LAW. THE APPELLANT REQUESTS THAT LEAVE BE GRANTED TO ADD , ALTER OR AMEND ANY OF THE GROUNDS OF APPEAL ON OR BEFORE THE FINAL HEARING OF THE APPEAL. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT TH E ASSESSEE IS A PARTNERSHIP FIRM CARRYING OUT BUSINESS OF CONSTRUCT ION AND DEVELOPMENT OF LAND FOR HOUSING PROJECT(S). IT FILE D ITS RETURN OF INCOME ON 31.08.2005 DECLARING TOTAL INCOME OF RS.36,890/- FOR AY 2005-06, ALONG WITH AUDIT REPORT IN FORM NO.10CCB CLAIMING D EDUCTION U/S 80IB(10) OF THE ACT. THE CASE WAS SELECTED FOR SCRU TINY ASSESSMENT UNDER CASS. NOTICE U/S 143(2) WAS SERVED UPON THE A SSESSEE AND ASSESSMENT PROCEEDING WAS INITIATED. AO FRAMED THE ASSESSMENT ORDER BY DISALLOWING THE CLAIM OF DEDUCTION OF RS.1 8,07,624/- MADE BY ASSESSEE U/S 80IB(10) OF THE ACT. AGGRIEVED, ASS ESSEE WENT IN APPEAL BEFORE THE CIT(A), WHO CONFIRMED THE DISALLO WANCE MADE BY AO GIVING FOLLOWING OBSERVATION IN THE APPELLATE OR DER :- 5.5 THIS CLEARLY SHOWS THAT THE RECEIPTS THE APPEL LANT IS ENTITLED IS FIXED AT THE INCEPTION OF THE PROJECT AND THE RISKS WHICH RISE D URING THE CONSTRUCTION OF THE PROJECT AS A RESULT OF THE PRICE ESCALATION OR THE PRICES COMING DOWN DOES NOT CHANGE THE PROFIT FLOWING TO THE APPELLANT. IN OTHE R WORDS THE COMPENSATION OF THE APPELLANT AS A WORKS CONTRACTOR WHO HAS TO PERFORM SPECIFIC DUTIES IS FIXED AT THE INCEPTION OF THE PROJECT AND THE SAME DOES NOT ALTE R SIGNIFICANTLY DURING THE PROJECT. THUS, IT IS CLEAR THAT APPELLANT DOES NOT FULFILL THE CRITERIA LAID DOWN BY THE GUJARAT HIGH COURT TO BE ELIGIBLE FOR DEDUCTION U/S 80IB WHEREAS THE HIGH COURT HAD HELD THAT THE ENTRIES RISK OF THE PROJECT HAS T O BE THE PERSON CONSTRUCTING THE PROJECT TO QUALIFY AS A DEVELOPER AND BE ELIGIBLE F OR DEDUCTION U/S 80IB OF THE ACT. ITA NO. 1721/AHD/2014 ASST. YEAR 2005-06 3 6. IN VIEW OF THE ABOVE THE AO WAS JUSTIFIED IN HOL DING THAT THE APPELLANT WAS NOT ELIGIBLE FOR DEDUCTION U/S 80IB OF THE ACT. THE ADDITION MADE BY THE AO IS HENCE CONFIRMED. 3. THE ASSESSEE BEING AGGRIEVED BY THE ORDER OF THE CIT(A) IS NOW IN FURTHER APPEAL BEFORE THE TRIBUNAL. THE LD. AR OF THE ASSESSEE SUBMITTED THAT THE APPELLANT HAS CARRIED OUT LABOUR CONTRACT AND SUPERVISION WORK FOR CONSTRUCTION OF FLATS AND ALSO MADE FOLLOWING SUBMISSIONS :- 1) THAT THE APPELLANT IS FIRM CONSTITUTED BY TEN PA RTNERS W.E.F. 08.12.1998. THE PARTNERS OF THE FIRM HAVE BEEN ENGA GED IN CONSTRUCTION ACTIVITIES SINCE LAST 10 YEARS. 2) THAT THE KAILASNATH CO-OP. HOUS. SOC. LTD. AND O THER TWO SOEICIETIES (FOR SHORT THE SOCIETY), WHICH ARE REGI STERED UNDER THE CO-OPERATIVE SOCIETIES ACT, 1962, OWNS A LAND, WHICH ADMJ.10040 SQ.MTS. SITUATE AT FINAL PLOT NO.123 OF T.P. SCHEME NO.1, IN CITY AREA. 3) THE APPELLANT AND THE SOCIETY ENTER INTO AGREEME NT FOR A DEVELOPMENT AND CONSTRUCTION OF ABOVE MENTIONED LAN D, WHICH EXECUTED ON 26.5.1999. THE APPELLANT HAS BEEN CARRY ING OUT THE CONSTRUCTION AND DEVELOPMENT WORKS IN ACCORDANC E WITH THE TERMS AND CONDITIONS AND AS PER APPROVED PLAN. THE APPELLANT IS ENTITLED TO DEVELOPMENT CHARGES AT THE RATE OF 2 3% ON PROJECT COST AND LABOR CHARGES AT 700/- PER SQ.MTS. AS PER THE CONDITION NO.16 OF THE SAID AGREEMENT. 4) THE APPELLANT HAS BEEN MAINTAINING COMPLETE BOOK S OF ACCOUNT ALONG WITH VOUCHERS FOR EXPENSES, BILL ETC, REGULAR LY AND GOT IT AUDITED. 5) THE APPELLANT HAS FURNISHED THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ALONG WITH AUDIT REPORT. TDS CE RTIFICATES ETC., ON TOTAL INCOME AT RS.95776/- AFTER CLAIMING A DEDUCTION OF ITA NO. 1721/AHD/2014 ASST. YEAR 2005-06 4 RS.4516771/- UNDER THE PROVISIONS OF SECTION 80IB(1 0) OF THE INCOME-TAX ACT. 6) DURING THE COURSE OF ASSESSMENT PROCEEDINGS, APP ELLANT HAD FURNISHED ALL THE DETAILS CALLED FOR BY THE LD. AO INCLUDING AGREEMENT OF CONSTRUCTION AND DEVELOPMENT. THE LD. AO HAS VERIFIED THE BOOKS OF ACCOUNT VOUCHERS, BILLS ETC. COMPLETELY. 7) THAT THE LD. AO HAD NOT ACCEPTED THE CLAIM OF AP PELLANT ON THE GROUND AS INDICATED IN PARA NO.5 OF ASSESSMENT ORDE R AND DETERMINED THE APPELLANTS TOTAL INCOME AT RS.18,07 ,624/- BY MAKING FOLLOWING ADDITION IN THE RETURNED INCOME. IT IS IN THIS BACKDROP OF FACT, APPELLANT RESPECTFU LLY SUBMIT AS UNDER :- THE LD. AO HAS GROSSLY ERRED ON FACTS AND IN LAW IN REJECTING THE APPELLANTS CLAIM OF DEDUCTION OF RS.18,07,624/- WH ERE THE REQUISITE CONDITIONS HAVE BEEN FULLY SATISFIED, HENCE THE SAM E MAY PLEASE BE DELETED. SO FAR AS THE THREE CONDITIONS STIPULATE IN THE SA ID PROVISION HAVE BEEN FULFILLED BY THE APPELLANT AND ACCEPTED B Y THE LD. AO. THAT THE APPELLANT ENTERED INTO AGREEMENT WITH SO CIETY FOR CARRYING OUT THE DEVELOPMENT AND CONSTRUCTION WORKS AS PER APPROVED PLAN BY AUDA. THE SOCIETY LAND AREA IS MORE THEN 1 ACRE (1040 S Q.MTS) THE APPELLANT HAD BEEN CARRYING OUT THE DEVELOPME NT AND CONSTRUCTION ACTIVITY SINCE DECEMBER, 1999. THE APP ELLANT HAS BEEN ENTITLED TO GET DEVELOPMENT/SUPERVISION CHARGE S AT FIXED RATE OF 23% ON TOTAL COLLECTION FROM THE MEMBERS OF SOCIETY AS PER THE CONDITION NO.16 OF DEVELOPMENT AGREEMENT. I N ADDITION TO THAT IT HAS BEEN ALSO ENTITLED TO GET RS.700/- P ER SQ.YDS TOWARDS LABOR CHARGES. ITA NO. 1721/AHD/2014 ASST. YEAR 2005-06 5 THE RESIDENTIAL PREMISES CONSTRUCTED ARE LESS THE N 15 SQ.FT.; FOR THE MIDDLE CLASS PEOPLE, AS PER THE OBJECTIVE OF EN ACTMENT SAID PROVISION. THUS ALL THE THREE CONDITIONS STIPULATED IN SECTION 80IB(10) OF THE ACT HAVE BEEN COMPLETELY FULFILLED. FROM THE PERUSAL OF DEVELOPMENT AND CONSTRUCTION AG REEMENT IT IS ABUNDANTLY CLEAR THAT THE ACTIVITIES CARRIED OUT BY THE APPELLANT HAS BEEN IN THE NATURE OF DEVELOPMENT OF LAND AND CONSTRUCTION OF RESIDENTIAL UNITS. THE SOCIETY HAD GIVEN FOLLOWING POWERS TO APPELLANT FOR THE CONSTRUCTION OF RESIDEN TIAL UNITS. A. TO PREPARE APPROACH ROAD FOR DEVELOPMENT OF LAND AND CONSTRUCTION OF RESIDENCES. B. TO CARRY OUT NECESSARY PROCEDURE IN AUDA FOR APP ROVAL OF N.A. PERMISSION FOR DEVELOPMENT OF LAND. C. TO RAISE A FUND FROM THEIR SOURCES AND/OR FROM M EMBERS BOOKINGS FOR MAKING A PAYMENT OF LAND. D. BOOKING OF MEMBERS AND FIX THE RATE OF RESIDENTI AL UNIT AND ALLOTMENT OF FLATS TO SUCH MEMBER. E. CONSTRUCTION OF SCHEME UNDER THE GUIDANCE OF ENG INEERS AND ARCHITECT, CARRY OUT ALL FORMALITIES FOR LAND WITH AUDA. F. HOLD THE VACANT FLAT, IF RESIDENTIAL UNIT REMAIN UNSOLD. 4. THE LD. AR IN SUPPORT OF HIS SUBMISSIONS FURTHER APPRAISED THE BENCH THAT SIMILAR ISSUES IN ASSESSEES OWN CASE HA VE BEEN HEARD AND DECIDED IN FAVOUR OF ASSESSEE BY THE CO-ORDINAT E BENCH FOR AYS.2002-03 & 2003-04 IN ITA NOS.1986 & 1087/AHD/20 07 VIDE ORDER DATED 11 TH MARCH, 2008. HE ALSO SUBMITTED THAT SIMILAR ISSUES CAME UP IN ASSESSEES OWN CASE BEFORE THE TRIBUNAL FOR A YS 2000-01, ITA NO. 1721/AHD/2014 ASST. YEAR 2005-06 6 2001-02 & 2006-07 WHICH WERE DECIDED IN FAVOUR OF A SSESSEE BY THE TRIBUNAL IN ITA NOS.1991, 1992 & 1993/AHD/2011 VIDE ITS ORDER DATED 9.6.2011 (COPIES OF ORDERS PLACED ON RECORD). 5. ON THE OTHER HAND, THE LD. DR RELIED ON THE ORDE RS OF LOWER AUTHORITIES AND CONCEDED THAT SIMILAR ISSUES IN ASS ESSEES OWN CASE HAVE BEEN DECIDED BY THE TRIBUNAL AS PER THE ORDERS REFERRED BY THE LD. DR. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE THR OUGH THE FACTS AND CIRCUMSTANCES OF THE CASE, AS WELL AS THE ORDER S PASSED BY THE CO-ORDINATE BENCH ON IDENTICAL ISSUES IN ASSESSEES OWN CASE, ON SINGLE ISSUE OF ALLOWABILITY OF DEDUCTION UNDER SEC TION 80IB(10) IN RELATION TO PROFIT FROM HOUSING PROJECTS CONSTRUCTE D BY THE ASSESSEE. THE ORDER PASSED BY THE CO-ORDINATE BENCH IN ITA NO S.1191,1192 & 1193/AHD/2011 DATED 9.6.2014 IS THE LATEST ORDER WH ICH HAS ALSO DISCUSSED THE ORDER PASSED BY THE CO-ORDINATE BENCH IN ITA NOS.1086 & 1087/AHD/2007 FOR AYS 2002-03 & 2003-04, DATED 11.3.2008. RELEVANT PORTION OF THE ORDER DATED 9.6. 2014 PASSED BY THE CO-ORDINATE BENCH READS AS BELOW :- 6. WE FIND THAT THE TRIBUNAL IN ASSESSMENT YEAR 20 02-03 AND 2003- 04 VIDE ORDER DATED 11.03.2008 HAS HELD AS UNDER: 6. THE CIT(A) CONSIDERING THESE FACTS IN 2002-03 A SSESSMENT YEAR TOOK SPECIFIC NOTE OF THE FACT THAT THE VIEW TAKEN IN 20 00-01 ASSESSMENT YEAR IS THE LATEST IN POINT OF TIME BY THE CIT(A) SINCE THE ORDER DATED 27.1.2006 WHEREAS THE ISSUE IN 2001-02 ASSESSMENT YEAR WAS DE CIDED BY HIS PREDECESSOR ON 11.2004.ACCORDINGLY, TAKING INTO CO NSIDERATION THESE FACTS HE WAS OF THE VIEW THAT THE FACTS AND CIRCUMSTANCES AS TAKEN INTO CONSIDERATION BY HIS PREDECESSOR IN 2000-01 ASSESSM ENT YEAR IN HIS ORDER DATED 27.1.2006 NEEDS TO BE FOLLOWED. BEING ALSO OF THE VIEW THAT THE ITA NO. 1721/AHD/2014 ASST. YEAR 2005-06 7 DEDUCTION U/S 80IB(10) WHICH HAS BEEN CLAIMED IN CO NTINUITY WITH THE EARLIER YEARS, THE FACTS AND CIRCUMSTANCES CONTINUE D TO BE THE SAME, HE DIRECTED THE A.O. TO ALLOW THE DEDUCTION U/S 80IB F OR THE ASSESSMENT YEAR UNDER CONSIDERATION ALSO. FOR READY REFERENCE, WE R EPRODUCE THE SPECIFIC FINDING ADDRESSING THE FACTS AND CIRCUMSTANCES TAKE N INTO CONSIDERATION BY THE CIT(A) IN 2000-01 ASSESSMENT YEAR WHICH HAVE BE EN REPRODUCED IN PAGE 3 OF THE IMPUGNED ORDER AND CONSIDERED TO BE T HE .SAME IN THE YEAR UNDER CONSIDERATION ALSO:- 'THE RELEVANT PORTION OF THE APPELLATE ORDER OF MY LD. PREDECESSOR GIVEN IN APPEAL NO. CIT(A)-XV/ ITO. WD.9(L)/78/05-0 6 DATED 27/01/2006 IS REPRODUCED AS UNDER: 'I HAVE CONSIDERED THE SUBMISSIONS OF THE AUTHORISE D REPRESENTATIVE CAREFULLY. THE APPELLANT IS A SUPERV ISION AND LABOUR CONTRACTOR. DURING THE YEAR IN APPEAL THE APPELLANT HAS CARRIED OUT LABOUR CONTRACT WORK AND SUPERVISION WORK FOR CONST RUCTION OF FLATS FOR THE THREE CO. OP. HOUSING SOCIETIES I.E. PINK C ITY (RANIP) CO. OP. HOUSING SOCIETY LTD., KAILASNATH (RANIP) CO. OP . HOUSING SOCIETY LTD. AND PRAKARSH (RANIP) CO. OP. HOUSING S OCIETY LTD. I FIND THAT THE APPELLANT HAS SATISFIED ALL THE THREE CONDITIONS REQUIRED FOR DEDUCTION U/S. 80IB OF THE I. T. ACT. THE APPEL LANT HAS PROVIDED THE FUNDS TO THE SOCIETIES FOR ACQUIRING THE LAND I N THEIR NAMES AND THE SOCIETIES HAD PAID THE SALE CONSIDERATION TO OR IGINAL LAND OWNERS. THE APPELLANT GOT THE LAND CONVERTED BY N.A ./NOC PROCEEDINGS. IN TURN, THE DEVELOPMENT RIGHT WAS GIV EN TO THE APPELLANT. THE DEVELOPMENT CHARGES OF MORE THAN RS. 25 LACS HAVE BEEN PAID TO AUDA ON BEHALF OF THE SOCIETY AND THE APPELLANT HAS CARRIED OUT CONSTRUCTION WORK AS PER THE PLAN. AS P ER THE CONDITIONS OF THE AGREEMENT, THE APPELLANT HAD PUT UP THE PLAN AND MADE PAYMENTS TO AUDA FOR THE DEVELOPMENT AND CONSTRUCTI ON OF THE SCHEME AS PER THE APPROVED PLAN. THE APPELLANT HAD ALSO GIVEN ADVERTISEMENT IN LOCAL NEWSPAPERS TO ATTRACT THE ME MBERS FOR BOOKING. THE APPELLANT HAD PREPARED GROUND WATER TA NK, APPROACH ROAD AND CONSTRUCTION LIFT AT THE SITE OF HOUSING P ROJECT. THE APPELLANT HAD APPOINTED THE RCC CONTRACTORS AND OTH ER LABOR CONTRACTOR AND EXPERTS TO CARRY OUT THE CONSTRUCTIO N AND DEVELOPMENT WORKS. THE APPELLANT HAD ALSO PURCHASED THE BUILDING MATERIALS AND MADE PAYMENTS TO THE RESPECTIVE PARTI ES. IN VIEW OF THESE FACTS, I AGREE WITH THE AUTHORISED REPRESENTA TIVE THAT THE APPELLANT'S ROLE HAS BEEN THAT OF A FULL FLEDGED CO NTRACTOR/BUILDER IN HOUSING PROJECT. THE DEVELOPMENT CHARGES WERE FIXED @ 23% OF HOUSING PROJECT WHICH IS IN THE GUISE OF NET INCOME FROM THE HOUSING SCHEME. THE APPELLANT IS INVOLVED FROM THE BEGINNING I.E. FROM THE TIME OF LAND PURCHASE TO THE LAST STEP OF COMPLETION OF HOUSING PROJECT THESE FACTS SHOW THAT THE APPELLANT HAS ACTUALLY ITA NO. 1721/AHD/2014 ASST. YEAR 2005-06 8 CARRIED OUT THE WORK OF CONSTRUCTION. I AGREE WITH THE CONTENTIONS OF THE AUTHORISED REPRESENTATIVE THAT IN A NORMAL COUR SE OF CONSTRUCTION BUSINESS, FOR ERECTING THE BUILDING AS PER PLAN, THE SOCIETY HAS TO ENTRUST SUCH VERY DIFFICULT TASK TO EXPERIENCED CONTRACTOR/DEVELOPER, AS THE MEMBERS OF SOCIETY DO NOT HAVE ANY KNOWLEDGE OR EXPERTISE IN CONSTRUCTION AND DEVELOPM ENT WORK AND FOR EFFECTIVE AND TIMELY COMPLETION OF SCHEME SUCH SOCIETY ENGAGED RELIABLE AND EXPERIENCED DEVELOPER/CONTRACTOR AND L ABOUR CONTRACTOR; BY AN AGREEMENT BY STIPULATING CERTAIN CONDITIONS. THUS THE SOCIETY IN THIS CASE HAS ENTRUSTED THE CONSTRUC TION AND LABOUR WORK TO THE APPELLANT FIRM AS PER THE TERMS AND CON DITIONS LAID DOWN IN THE DEVELOPMENT AND LABOUR AGREEMENT. IN A NORMA L COURSE OF CONSTRUCTION BUSINESS, THE SOCIETY HAS TO BEAR THE EXPENSES IN RESPECT OF ELECTRICITY CONNECTIONS, WIRE LINES AND LEGAL EXPENSE INCURRED FOR THE LAND ETC., AS THE A.B.C. CONNECTIO NS ARE TO BE OBTAINED IN THE NAME OF THE SOCIETY. LAND IS ALSO P URCHASED BY THE SOCIETY. HENCE FOR SUCH WORK, DEVELOPMENT CHARGES H AVE BEEN FIXED AT THE RATE OF 23% IN ADDITION TO RS. 700/- F OR LABOUR CHARGES, WHICH HAS BEEN FIXED IN THE GUISE OF PROFIT AND SUC H TYPE OF AGREEMENTS ARE COMMON IN THE CONSTRUCTION BUSINESS. FURTHER THE PROFIT DECLARED BY THE APPELLANT IS SUBSTANTIALLY H IGHER THAN THE PRESUMPTIVE PROFIT AS PER SECTION 44 AD OF THE INCO ME-TAX ACT. IF MEMBERS COULD NOT BE BOOKED FOR THE VACANT PREMISES , THEN SUCH VACANT PREMISES ARE TO BE HELD BY THE APPELLANT AS PER CLAUSE NO.3 OF THE DEVELOPMENT AGREEMENT. FOR THE CONSTRUCTION OF SCHEME, NECESSARY BUILDING MATERIALS HAVE BEEN PURCHASED AN D PAYMENTS HAVE BEEN MADE AND THE LABOUR CONTRACTOR HAS BEEN A PPOINTED FOR CONSTRUCTION WORK BY THE APPELLANT. THESE CLAUSES P ROVE THAT THE OWNERSHIP AND THE RISK FACTOR IS THERE ON THE APPEL LANT FURTHER AS PER THE BROCHURE OF THE SCHEME, THE APPELLANT FIRM HAS BEEN SHOWN AS DEVELOPERS, WHICH INDICATES THE ROLE OF THE APPE LLANT AS A DEVELOPER. ON A CONSIDERATION OF THE TOTALITY OF FA CTS, I ARRIVE AT THE CONCLUSION THAT THE APPELLANT HAS ACTUALLY CARRIED OUT THE WORK OF DEVELOPMENT AND CONSTRUCTION, AS THERE WAS NO OTHER PERSON WHO HAS DONE THE WORK, AND THEREFORE, THE APPELLANT IS ENTITLED TO DEDUCTION U/S. 801B OF THE I.T. ACT. FURTHER IT HAS BEEN HELD BY ITAT, MUMBAI IN THE CASE OF PATEL ENGINEERING LTD. VS. DCIT (2004) REPORTED IN 84 TTJ (MUM.) 646/94 ITD 411 THAT MER ELY BECAUSE STATE GOVERNMENT PAID FOR DEVELOPMENT OF INFRASTRUC TURE FACILITY CARRIED OUT BY THE ASSESSEE AS CONTRACTOR, IT CANNO T BE SAID THAT THE ASSESSEE HAD NO DEVELOPED INFRASTRUCTURE FACILITY A ND FOR AVAILING DEDUCTION UNDER SECTION 80-IA, 'INFRASTRUCTURE FACI LITY' SHOULD NOT NECESSARILY BE OWNED BY THE ASSESSEE. IT IS ALSO FO UND THAT THE WORDINGS OF SECTION 80IA(4) AND 80IB(10) ARE SIMILA R. RELYING ON THE RATIO LAID DOWN IN THE SAID CASE, THE APPELLANT IS HELD TO HAVE ITA NO. 1721/AHD/2014 ASST. YEAR 2005-06 9 CARRIED OUT THE DEVELOPMENT WORK. ACCORDINGLY, THE ASSESSING OFFICER IS DIRECTED TO ALLOW DEDUCTION U/S. 80IB(10 ) TO THE APPELLANT.' 7. IN THE LIGHT OF THE ABOVE FACTS BOTH THE PARTIES HAVE BEEN HEARD ALTHOUGH THE LD. D.R. PLACED RELIANCE ON THE ASSESSMENT ORDER, H OWEVER, CONFRONTED WITH THE ORDER OF THE TRIBUNAL IN THE CASE OF RADHE DEVELOPE RS WHICH HAS CONSISTENTLY BEEN FOLLOWED BY THE AHMEDABAD BENCH IN THE CASE OF CONTRACTORS WHO HAVE BEEN HELD TO BE ENTITLED TO DEDUCTION U/S 80IB WHIC H HAS BEEN DENIED SOLELY ON THE GROUND THAT THE LAND WAS NOT OWNED BY THE DEVEL OPER. THE ACTIVITY OF THE DEVELOPMENT HAS BEEN CARRIED ON BY THE CONTRACTOR-D EVELOPER AS PER THE AGREEMENT ENTERED INTO WITH THE LAND OWNERS WHICH C ARRIED ON THE DEVELOPMENTAL ACTIVITY IN TERMS OF THE AGREEMENT. SIMPLY BECAUSE THE LAND WAS NOT OWNED BY THE DEVELOPERS IT HAS CONSISTENTLY BEEN HELD IS NOT A RELEVANT CRITERIA TO DISALLOW THE DEDUCTION CLAIMED NOT ONLY IN THE CASE OF RADHE DEVELOPERS BUT ALSO HAS BEEN CONSISTENTLY FOLLOWED BY THE AHMEDABAD BENCHES . WE FIND NO MERIT IN THE DEPARTMENTAL APPEAL IN THE LIGHT OF THE ABOVE FACTS AND CIRCUMSTANCES AND POSITION OF LAW. THUS, SINCE THE FACTS AND CIRCUMST ANCES REMAIN IDENTICAL AND NO DISTINGUISHING FACT DESPITE SPECIFIC OPPORTUNITIES COULD BE POINTED OUT BY THE DEPARTMENT, RESPECTFULLY FOLLOWING THE ORDER OF THE AHMEDABAD BENCH, WE DISMISS THE DEPARTMENTAL APPEAL. 8. IN THE RESULT, APPEAL IN ITA NO. 1086/ AHD / 200 7 BY THE DEPARTMENT IS DISMISSED. 7. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF T HE CASE, AS THE HOUSING PROJECT AND RELATED AGREEMENT IS THE SAME WHICH WAS IN THE ASSESSMENT YEAR 2002-03 AND 2003-04 IN THE YEARS INVOLVED IN THE PR ESENT APPEAL AND THE FACT THAT THE DECISION OF THE TRIBUNAL IN THE CASE OF RA DHE DEVELOPERS WHICH WAS RELIED UPON BY THE TRIBUNAL IN THE ABOVE QUOTED ORD ER HAS SINCE BEEN AFFIRMED BY THE HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT V S. RADHE DEVELOPERS (2012) 341 ITR 403, WE SET ASIDE THE ORDERS OF THE LOWER A UTHORITIES AND ALLOW THE CLAIM FOR DEDUCTION U/S. 80IB(10) TO THE ASSESSEE FOR RS 17,48,939/- IN ASSESSMENT YEAR 2000-01, RS 35,53,660/- IN ASSESSMENT YEAR 200 1-02 AND RS 9,56,170/- IN ASSESSMENT YEAR 2006-07. 8. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE A LLOWED. 7. IN THE LIGHT OF ABOVE JUDGMENT OF THE CO-ORDINAT E BENCH AS WELL AS THE FACTS BROUGHT ON RECORD BY BOTH THE PARTIES, IT IS AMPLY CLEAR THAT ASSESSEE IS ENTITLED TO DEDUCTION UNDER SECTIO N 80IB(10) BECAUSE THE ACTIVITY OF THE DEVELOPMENT HAS BEEN CARRIED ON BY THE ASSESSEE CONTRACTOR-CUM- DEVELOPER AS PER THE AGREEMENT ENTE RED INTO WITH THE LAND OWNERS. THEREFORE, SINCE THE FACTS AND CIRCUMS TANCES OF THE CASE REMAIN IDENTICAL AND DISTINGUISHING FACTS HAVE NOT BEEN BROUGHT ITA NO. 1721/AHD/2014 ASST. YEAR 2005-06 10 ON RECORD BY THE REVENUE, WE RESPECTFULLY FOLLOWING THE ORDERS OF CO- ORDINATE BENCH, ALLOW THE APPEAL OF ASSESSEE. 8. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 9/10/2015 SD/- SD/- (S. S. GODARA) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER DATED 9/10/2015 MAHATA/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER DY. REGISTRAR, ITAT, AHMEDABAD ITA NO. 1721/AHD/2014 ASST. YEAR 2005-06 11 1. DATE OF DICTATION:6/10/2015 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 7/10/2015 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 9/10/2015 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: