The ITO, Ward-1, Anand V. Shri Pravinbhai Ramanbhai Patel, Anand

ITA 1735/AHD/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 0351 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2009
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 27-05-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SHI C K MISHRA
• Keywords: Depreciation; Set aside
• Section: 143(3); 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD D BENCH (BEFORE S/SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND D.C. AGRAWAL, ACCOUNTANT MEMBER) ITA.NO.1735/AHD/2009 [ASSTT.YEAR : 2005-2006] ITO, WARD-1 ANAND. VS. SHRI PRAVINBHAI RAMANBHAI PATEL PROP. DHRUV ENTERPRISE, G-43-44 VAIBHAV COMMERCIAL CENTRE NR.GRID, ANAND. PAN : ADOPP 8143 N REVENUE BY : SHI C.K.MISHRA ASSESSEE BY : NONE O R D E R PER MAHAVIR SINGH, JUDICIAL MEMBER : THIS APPEAL BY THE REVENUE IS ARISING OUT OF THE ORDER OF THE COMMISSI ONER OF INCOME-TAX (APPEALS)-IV, BARODA IN APPEAL NO.CAB/IV-A-257/07-0 8 DATED 27-3-2009. THE ASSESSMENT WAS FRAMED BY THE ITO, WARD-1, ANAND UNDER SECTION 143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED T O AS THE ACT) FOR THE ASSESSMENT YEAR 2005-2006 VIDE ORDER DATED 31-12-20 07. 2. THE ONLY ISSUE IN THIS APPEAL OF THE REVENUE AS REGARDS TO THE ORDER OF THE LEARNED CIT(A) IN ALLOWING THE DEDUCTION UNDER SECT ION 80IB(10) OF THE ACT. FOR THIS REVENUE HAS RAISED THE FOLLOWING IN GROUND NO.1 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD. CIT(A) HAD ERRED IN ALLOWING DEDUCTION U/S.80IB (10) AMOUNTING TO RS.10,96,335/- IGNORING THE FACT THAT THE ASSESSEE WAS MERELY A CONT5RACTOR WHO WAS NOT AN OWNER OF THE LAND AND WH O IS NOT GIVEN APPROVAL FOR THE HOUSING PROJECT BY LOCAL AUTHORITY FOR CONSTRUCTION. COMPLETELY IGNORING THE UNDERLYING FACT THAT THE PE RSON TO WHOM THE APPROVAL IS GRANTED FOR DEVELOPING AND BUILDING HOU SING PROJECT AND THE PERSONS ACTUALLY CARRYING ON THE PROJECT ARE SO COM PLETELY INTEGRATED IN THE SCHEME THAT SECTION 80IB(10) R.W.S. 80IB(1) EXP LANATION BELOW SECTION 80IB(10) AND RULE 18BBB CANNOT BE VIEWED TO ADMIT ANY SPLITTING UP OF THE FREE ENTITIES. PAGE - 2 ITA.NO.1735/AHD/2009 -2- 3. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIV E AND PERUSED THE CASE RECORDS. AT THE OUTSET, IT IS NOTICED FROM THE ORDER OF CIT( A), THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF THIS TRIBUNA L IN THE CASE OF M/S. RADHYA DEVELOPERS & OTRS. IN ITA NO.2482/AHD/2006 AND OTHERS DATED 29-06-2007. HE REFERRED TO THE FOLLOWING PARAS OF THE TRIBUNAL, WHEREIN THE TRIBUNAL HAS CONSIDERED THE ISSUE IN GREAT DETAIL AND ALLOWED EL IGIBILITY U/S.80IB(10) BY FOLLOWING OBSERVATIONS:- 32 IN THESE CIRCUMSTANCES, IN OUR OPINION, THE ASS ESSEE IS ENTITLED TO DEDUCTION U/S. 80IB(10) AS IT HAD DEVELOPED AND BUILT THE HOUSING PROJECT; IT HAD STARTED CONSTRUCTION AFTER 1 ST DAY OF APRIL 1998; THE PROJECT IS ON THE SIZE OF A PLOT OF LAND WHICH HAS A MINIMUM AREA OF ONE ACRE AND THE MAXIMUM BUILT UP AREA OF THE RESIDENTI AL UNITS ARE NOT MORE THAN 1500 SQ. FT., THE PROPERTY BEING SITUATED IN BARODA, A CITY OTHER THAN DELHI AND MUMBAI. FURTHER, HE REFERRED TO THE VARIOUS PARAS OF THE TR IBUNALS ORDER AND STATED THAT THE TRIBUNAL HAS CONSIDERED VARIOUS CASES LAWS AND PERTINENT OBSERVATIONS READ AS UNDER:- 43 IN VIEW OF DECISION OF THE SUPREME COURT IN THE CASE OF MYSORE MINERALS LTD.(SUPRA), WHEREIN THE TERM OWNE D IN SECTION 32 HAS BEEN GIVEN A WIDER MEANING BY HOLDI NG THAT IF AN ASSESSEE WAS IN POSSESSION OF A PROPERTY AND HAD AC QUIRED DOMINION OVER IT TO THE EXCLUSION OF OTHERS, HE WOU LD BE ENTITLED DEPRECIATION U/S.32 IRRESPECTIVE OF THE LEGAL TITLE . IN THE PRESENT CASE THE DEVELOPMENT AGREEMENT AND AGREEMENT TO SALE THE UNDERTAKING DEVELOPING AND BUILDING HOUSING PROJECT S AND CLAIMING DEDUCTION OF PROFITS FROM SUCH HOUSING PRO JECT, THERE IS, DEFINITELY, A DOMINION OF THE DEVELOPER OVER THE LA ND TO THE EXCLUSION OF OTHERS INASMUCH AS POSSESSION OF THE L AND IS GIVEN TO THE DEVELOPER BY THE LAND-OWNERS TO CARRY OUT TH E CONSTRUCTION ACTIVITY OF THE HOUSING PROJECT. THE A SSESSEE- DEVELOPER HAS COMPLIED WITH ALL THE CONDITIONS AS P ROVIDED U/S.80-IB (10) OF THE ACT, SO AS TO CLAIM DEDUCTION . THE ASSESSEE HAS ALSO PASSED ON THE PART CONSIDERATION FOR ACQUIRING THE LAND THROUGH AN AGREEMENT TO SALE A ND IN VIEW OF THE PROVISIONS OF SECTION 2(47) READ WITH SECTION 5 3-A OF THE TRANSFER OF PROPERTY ACT, 1882, THE ASSESSEE HAS CO MPLETELY PERFORMED HIS PART OF THE CONTRACT AND DEVELOPED TH E HOUSING PROJECT AND TRANSFERRED THE FLATS/TENEMENTS TO THE BUYERS IN VIEW OF AGREEMENT TO SALE AS WELL AS DEVELOPMENT AGRE EMENT. IT SHOWS THAT THE ASSESSEE WAS IN FULL POSSESSION OF T HE LAND FOR PAGE - 3 ITA.NO.1735/AHD/2009 -3- THE DEVELOPMENT OF HOUSING PROJECT AND HAS CARRIED OUT ALL THE ACTIVITIES OF A COMPLETE HOUSING PROJECT BY TAKING ALL RISKS ASSOCIATED WITH THIS BUSINESS. THE ASSESSEE IS ENG AGED IN COMPLETE INFRASTRUCTURE INCLUDING ENGAGING ARCHITEC TS, STRUCTURAL CONSULTANTS, DESIGNING AND PLANNING OF THE HOUSING SCHEMES, PAYMENT OF DEVELOPMENT CHARGES, OBTAINING NECESSARY PERMISSIONS, ON BEHALF OF THE LAND OWNERS, GOT THE PLANS APPROVED, HIRING OF MACHINERY AND EQUIPMENTS, HIRIN G ENGINEERS, APPOINTING CONTRACTORS, ETC. 44 AS DISCUSSED ABOVE AND IN VIEW OF THE CASE-LAW OF THE SUPREME COURT IN THE CASE OF MYSORE MINERALS LTD (S UPRA), WHEREIN IT HAS BEEN CATEGORICALLY OBSERVED AS REGAR DS TO OWNERSHIP THAT ANYONE IN POSSESSION OF PROPERTY IN HIS OWN TITLE EXERCISING SUCH DOMINION OVER THE PROPERTY AS WOULD ENABLE OTHERS BEING EXCLUDED THERE FROM AND HAVING THE RIG HT TO USE AND OCCUPY THE PROPERTY AND/OR TO ENJOY ITS USUFRUC T IN HIS OWN RIGHT WOULD BE THE OWNER OF THE BUILDINGS THOUGH A FORMAL DEED OF TITLE MIGHT NOT HAVE BEEN EXECUTED AND REGISTERE D AS CONTEMPLATED BY THE TRANSFER OF PROPERTY ACT, THE R EGISTRATION ACT, ETC. IN THE PRESENT CASE BEFORE US, BY VIRT UE OF AGREEMENT TO SALE AND DEVELOPMENT AGREEMENT, THE ASSESSEE HAS ACQUIRED DOMINION OVER THE LAND TO THE EXCLUSION OF OTHERS AND HE HAS COMPLETED THE PROJECT IN TERMS AND CONDITION S LAID DOWN U/S.80-IB(10) OF THE ACT, TO CLAIM DEDUCTION ON TH E PROFIT DERIVED FROM CONSTRUCTION AND DEVELOPMENT OF RESIDENTIAL HO USING PROJECT. THERE IS NO EXPLICIT CONDITION ENUMERATED IN SECTION 80- IB(10) OF THE ACT AS REGARDS TO REQUIREMENT OF OWN ERSHIP FOR THE CLAIM OF DEDUCTION. IN VIEW OF ABOVE FACTS AND CIR CUMSTANCES OF THE CASE AS WELL AS LEGAL PROPOSITION LAID DOWN BY THE SUPREME COURT IN THE CASE OF MYSORE MINERALS LTD.(SUPRA), W E HOLD THAT THE ASSESSEE IS ENTITLED FOR CLAIM OF DEDUCTION ON THE PROFIT DERIVED FROM CONSTRUCTION AND DEVELOPMENT OF RESIDE NTIAL HOUSING PROJECT. IN VIEW OF THE ABOVE, THE CIT(A) NOTED THAT THE ISS UE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. 4. LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THE RA TIO LAID DOWN IN THE CASE OF RADHE DEVELOPERS AND OTHERS IS NOT APPLICABLE TO THE FACTS OF THE IMPUGNED CASE. THE SALIENT FEATURES OF THE FACT AS EXISTED IN THE CASE OF RADHE DEVELOPERSS DECISIONS ARE AS UNDER:- PAGE - 4 ITA.NO.1735/AHD/2009 -4- 1. THERE WAS AN AGREEMENT TO SALE IN FAVOUR OF ASSE SSEE DEVELOPER AND POSSESSION WAS GIVEN BY THE LAND OWNE R. SALE CONSIDERATION WAS ALSO PAID. 2. ALL APPROVALS / PERMISSIONS WERE OBTAINED BY POW ER OF ATTORNEY OF LAND OWNER I.E. ASSESSEE. 3. RIGHT TO TAKE / PERUSE ALL GOVT. / QUASI GOVT. P ROCEEDINGS RESTED WITH THE ASSESSEE DEVELOPER BY AN AGREEMENT. 4. FOR ALL THESE BUNDLES OF RIGHTS THE ASSESSEE DEV ELOPER HAD PAID CONSIDERATION TO LAND OWNER AND OBTAINED ALL R IGHTS INCLUDING OWNERSHIP RIGHTS FURTHER THE LD. DR DRAWN OUR ATTENTION TO THE FINDI NGS OF THE ITATS ORDER IN PARA-18 , WHICH IS THE FOUNDATION OF THE DECISION AND WHICH READS AS UNDER:- . FROM THE CLAUSES OF THE DEVELOPMENT AND CONST RUCTION AGREEMENTS AS WELL A AGREEMENT FOR SALE, BOTH DATED 18.05.2000, EXTRACTED ABOVE WE OBSERVE THAT THESE TWO AGREEMENT S EFFECTIVELY TRANSFER TO THE ASSESSEE-FIRM ALL THE RIGHTS OF DEV ELOPMENT AND CONSTRUCTION AND TO DEAL WITH THE LAND FOR CONSIDER ATION PAYABLE WITHIN A STIPULATED TIME; THAT THE ASSESSEE HAD BEEN PUT I N POSSESSION OF THE LAND OF THE TERMS AND CONDITIONS AS MENTIONED IN TH ESE TWO AGREEMENTS; THAT THE ASSESSEE-FIRM HA ALSO PAID CON SIDERATION OF RS.56 LACS DURING THE TWO F.YRS. I.E. 2000-01 AND 2 01-02; THAT THE ASSESSEE-FIRM HAS TO OBTAIN NECESSARY APPROVALS FRO M THE LOCAL AUTHORITIES; I.E., BMC ON BEHALF OF THE LAND OWNERS AND ALL THE EXPENSES FOR SUCH PURPOSES ARE TO BE INCURRED BY THE ASSESSE E; THAT THE ASSESSEE-FIRM HAS ENGAGED THE FIRM OF ARCHITECT AND ALSO INCURRED EXPENSES TOWARDS THE CHARGES PAYABLE TO CORPORATION , ETC., FOR OBTAINING THE APPROVALS; THAT EVEN FROM THE BOOKS O F ACCOUNT, IT IS NOTICED THAT FOR OBTAINING THE APPROVAL, THE ASSESS EE-FIRM HAS PAID THE DEVELOPMENT CHARGES TO VARIOUS REGULATING AGENCIES I.E. AUDA, BMC AND GEB(GUJARAT ELECTRICITY BOARD), ETC. AND THAT T HESE EXPENSES ARE INCURRED BY THE ASSESSEE-FIRM AND THE ASSESSING OFF ICER HAS BROUGHT OUT THE COMPLETE DETAILS YEAR-WISE IN HIS ASSESSMEN T ORDERS AT PAGE NO.5 READING AS UNDER:- .. THE LD. DR FURTHER STATED THAT THE BENCH WAS KIND-E NOUGH TO APPRECIATE THAT THE DECISION IMPARTED IN THE CASE OF RADHE DEVELOPERS IS BASED ON FACTS DISCUSSED IN THAT CASE. NEEDLESS TO SAY THAT THE A PEX COURT TIME AND AGAIN HAD HELD THAT A RATIO BECOMES A BINDING PRECEDENT I N THE CONTEXT OF GIVEN FACTS, NOT IN ISOLATION OF ACTS. THE FACTS OF THE I MPUGNED APPEAL ARE NOT SIMILAR WITH THE FACTS OF THE SAID CASE DISCUSSED AS ABOVE. ON THE CONTRARY, IT LEADS ADVERSE INFERENCE AGAINST THE ASSESSEE AND DESERVES REJECTION OF ASSESSEES CLAIM U/S.80IB ON THE FACTS OF THE CASE OF RADHE DEVELOPERS ETC. THE LD. PAGE - 5 ITA.NO.1735/AHD/2009 -5- DR ALSO REFERRED TO THE PRINCIPALS LAID DOWN IN THE RECENT CASE OF HON'BLE APEX COURT IN THE CASE OF FAQIR CHAND GULATI V. UPPAL AGENCIES PVT. LTD. & A NR. (CIVIL APPEAL NO.3302 OF 2005) DATED 10-07-2008 AND STATED THAT THE FOLLOWING ISSUES WERE RAISED:- I) A DEVELOPMENT AGREEMENT IS ONE WHERE THE LAND-HO LDER PROVIDES THE LAND. THE BUILDER PUTS UP A BUILDING. THEREAFTER, THE LAND OWNER AND BUILDER SHARE THE CONSTRUCTED AREA. THE B UILDER DELIVERS THE OWNERS SHARE TO THE LAND-HOLDER AND RETAINS THE BUILDERS SHARE. THE LAND-HOLDER SELLS / TRANSFERS UNDIVIDED SHARE/S IN THE LAND CORRESPONDING TO THE BUILDERS SHARE OF THE BUILDIN G TO THE BUILDER OR HIS NOMINEES. THE LAND-HOLDER WILL HAVE NO SAY OR CONT ROL IN THE CONSTRUCTION OF HAVE ANY SAY AS TO WHOM AND AT WHAT COST THE BUILDERS SHARE OF APARTMENTS ARE TO BE DEALT WITH OR DISPOSE D OF. SUCH AN AGREEMENT IS NOT A JOINT VENTURE IN THE LEGAL SEN SE. IT IS A CONTRACT FOR SERVICES. II) ON THE OTHER HAND, AN AGREEMENT BETWEEN THE OWN ER OF A LAND AND A BUILDER, FOR CONSTRUCTION OF APARTMENTS AND S ALE OF THOSE OF APARTMENTS SO AS TO SHARE THE PROFITS IN A PARTICUL AR RATIO MAY BE A JOINT VENTURE, IF THE AGREEMENT DISCLOSES AN INTENT THAT BOTH PARTIES SHALL EXERCISE JOINT CONTROL OVER THE CONSTRUCTION / DEVE LOPMENT AND BE ACCOUNTABLE TO EACH OTHER FOR THEIR RESPECTIVE ACTS WITH REFERENCE TO THE PROJECT. III) THE TITLE OF THE DOCUMENTS IS NOT DETERMINATIV E OF THE NATURE AND CHARACTER OF THE DOCUMENT, THOUGH THE NAME MAY USUA LLY GIVE SOME INDICATION OF THE NATURE OF THE DOCUMENT. THE USE O F THE WORDS JOINT VENTURE OR COLLABORATION IN THE AGREEMENT WILL N OT MAKE THE TRANSACTION A JOINT VENTURE, IF THERE ARE NO PROVIS IONS FOR SHARED CONTROL AND LOSSES. IN VIEW OF THESE ARGUMENTS, THE LD. DR STATED THAT NEITHER THE ASSESSING OFFICER NOR THE CIT(A) HAS GONE INTO THE AGREEMENTS AND BUILDERS DEVELOPMENT AGREEMENT, FROM WHERE IT CAN BE INFERRE D THAT THE ASSESSEE IS A DEVELOPER OR A CONTRACTOR. ACCORDINGLY, HE REQUEST ED THE BENCH TO SET ASIDE THE ISSUE FOR VERIFICATION OF DIFFERENT AGREEMENTS AND DOCUMENTS IN THE LIGHT OF THE JUDGMENT OF HON'BLE APEX COURT IN THE CASE OF FAQIR CHAND GULATI (SUPRA). PAGE - 6 ITA.NO.1735/AHD/2009 -6- 5.. WE HAVE HEARD THE LD. DR AND GONE THROUGH THE F ACTS AND CIRCUMSTANCES OF THE CASE. WE HAVE ALSO PERUSED TH E CASE LAWS CITED BY BOTH THE SIDES AND ALSO GONE THROUGH THE ASSESSMENT ORDER AS WELL AS THE ORDER OF CITIA). IT IS NOTICED FROM THE ORDERS OF THE LOWER AUTHORITIES THAT THEY HAVE NOT GONE INTO THE BUILDER AGREEMENT OR JOINT V ENTURE AGREEMENTS. THEY HAVE NOT ASCERTAINED WHETHER THE ASSESSEE IS A DEVE LOPER OR A CONTRACTOR. IN THE ABSENCE OF THESE FINDINGS, WE ARE OF THE VIEW T HAT THE ISSUE NEEDS RE- VERIFICATION IN THE LIGHT OF HON'BLE APEX COURT JUD GMENT IN THE CASE OF FAQIR CHAND GULATI (SUPRA). SIMILARLY, THE AHMEDABAD TRIBUNAL IN ANO THER CASES HAVE ALSO LAID DOWN CERTAIN PRINCIPLES IN THE LIGHT OF HON'BLE APEX COURT JUDGMENT IN THE CASE OF FAQIR CHAND GULATI (SUPRA) AND A.O IS ALSO REQUEST TO CONSIDER THE CASE LAW OF THIS TRIBUNAL IN THE CASE OF ITO & OTRS. V.SHAKTI CORPORATION BARODA AND OTRS. IN ITA NO.1503/AHD/2008 DATED 07-11-2008. THE TRIBUNAL IN THESE CASES HAS HELD AS UNDER:- 16.THE FACTS INVOLVED IN THE CASE OF THE ASSESSEE ARE SIMILAR TO THE FACTS IN THE CASE OF RADHE DEVELOPER S (SUPRA) AND ACCORDINGLY WE ARE OF THE VIEW THAT THE ASSESSE E HAS ACQUIRED THE DOMINANT OVER THE LAND AND HAS DEVELOP ED THE HOUSING PROJECT BY INCURRING ALL THE EXPENSES AND T AKING ALL THE RISKS INVOLVED THEREIN. WE MAY MENTION HERE THA T, IN OUR OPINION, THE DECISION IN THE CASE OF RADHE DEVELOPE RS (SUPRA) WILL NOT APPLY IN A CASE WHERE THE ASSESSEE HAS ENTERED INTO THE AGREEMENT FOR A FIXED REMUNERATION MERELY AS A CONTRACTOR TO CONSTRUCT OR DEVELOP THE HOUSING PROJECT ON BEHALF OF THE LANDOWNER. THE AGREEMENT ENTERED I NTO IN THAT CASE WILL NOT ENTITLE THE DEVELOPER TO HAVE TH E DOMINANT CONTROL OVER THE PROJECT AND ALL THE RISKS INVOLVED THEREIN WILL VEST WITH THE LANDOWNER ONLY. THE INTEREST OF THE DEVELOPER WILL BE RESTRICTED ONLY FOR THE FIXED REM UNERATION FOR WHICH HE WOULD BE RENDERING THE SERVICES. THE D ECISION IN THE CASE OF RADHE DEVELOPERS (SUPRA) HAS NOT DEA LT WITH SUCH SITUATION. THE PROPOSITION OF LAW LAID DOWN IN THE CASE OF RADHE DEVELOPERS CANNOT BE APPLIED UNIVERSALLY W ITHOUT LOOKING INTO THE DEVELOPMENT AGREEMENT ENTERED INTO BY THE DEVELOPER ALONG WITH THE LANDOWNER. IN THE CASE OF SHAKTI CORPORATION SINCE THE ASSESSEE HAS FILED COPY OF TH E DEVELOPMENT AGREEMENT AND CRUX OF THE AGREEMENT IS THAT THE ASSESSEE HAS PURCHASED THE LAND AND HAS DEVELOP ED THE HOUSING PROJECT AT ITS OWN, THEREFORE, WE ARE O F THE VIEW THAT THE ASSESSEE WILL BE ENTITLED FOR THE DEDUCTIO N U/S PAGE - 7 ITA.NO.1735/AHD/2009 -7- 80IB(10). THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF FAQIR CHAND GULATI (SUPRA) WILL NOT ASSIST THE REVENUE, AS THE AGREEMENT IS NOT SHARING OF THE CONSTRUCTED AREA. IN OTHER CASES THE COPY OF AGREEM ENT SINCE HAS NOT BEEN SUBMITTED BEFORE US, IF SUBMITTE D , THE TERMS AND CONDITIONS OF THE AGREEMENT WERE NOT SPEC IFICALLY ARGUED BEFORE AND PLACED BEFORE US, WE THEREFORE, I N THE INTEREST OF JUSTICE AND FAIR PLAY TO BOTH THE PARTI ES SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE ALL OTHER APPEA LS TO THE FILE OF THE AO WITH THE DIRECTION THAT THE AO SHALL LOOK INTO THE AGREEMENT ENTERED INTO BY EACH OF THE ASSESSEES WITH THE LANDOWNER AND DECIDE WHETHER THE ASSESSEE HAS I N FACT PURCHASED THE LAND FOR A FIXED CONSIDERATION FROM T HE LANDOWNER AND HAS DEVELOPED THE HOUSING PROJECT AT ITS OWN COST AND RISKS INVOLVED IN THE PROJECT. IN CASE THE AO FINDS THAT PRACTICALLY THE LAND HAS BEEN BOUGHT BY THE DE VELOPER AND DEVELOPER HAS ALL DOMINANT CONTROL OVER THE PRO JECT AND HAS DEVELOPED THE LAND AT HIS OWN COST AND RISKS, T HE AO SHOULD ALLOW THE DEDUCTION TO THE ASSESSEE U/S 80IB (10). IN CASE THE AO FINDS THAT THE DEVELOPER HAS ACTED ON B EHALF OF THE LANDOWNER AND HAS GOT THE FIXED CONSIDERATION F ROM THE LANDOWNER FOR THE DEVELOPMENT OF THE HOUSING PROJEC TS, THE ASSESSEE SHOULD NOT BE ALLOWED DEDUCTION U/S 80IB(1 0) TO THE ASSESSEE. 6. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE SET ASIDE THIS APPEAL TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTI ON THAT HE WILL CONSIDER THE PRINCIPLES LAID DOWN BY THE HON'BLE APEX COURT IN T HE CASE OF FAQIR CHAND GULATI (SUPRA) AS WELL AS BY THIS TRIBUNAL IN THE CASE OF SHAKTI CORPORATION BARODA (SUPRA) AND DECIDE THIS ISSUE AFRESH IN ACCORDANCE WITH LAW AND IN THE LIGHTS OF FACTS AND CIRCUMSTANCES OF THE CASE. 7. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 09/10/2009. SD/- SD/- (D.C. AGRAWAL) ACCOUNTANT MEMBER (MAHAVIR SINGH) JUDICIAL MEMBER PLACE : AHMEDABAD DATE : 09-10-2009 PAGE - 8 ITA.NO.1735/AHD/2009 -8- *DKP COPY OF THE ORDER FORWARDED TO: 1) : ASSESSEE 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER /TRUE COPY/ DR, ITAT, AHMEDABAD