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

ITA 1743/AHD/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6093 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 26-04-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 13-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: OM PRAKASH MEENA
• Keywords: Retrospective amendment
• Section: 143(3); 5(2); 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH AHMEDABAD BEFORE, SHRI S. S. GODARA, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ITA NOS. 1742 & 1743/AHD/2013 (ASSESSMENT YEARS: 2008-09 & 2009-10) I.T.O., WARD.9(2), AHMEDABAD APPELLANT VS. M/S. JAY CORPORATION, 31, SHYAM BUNGLOWS, IOC RD, CHANDKHEDA, AHMEDABAD RESPONDENT PAN: AANFM0681Q /BY REVENUE : SHRI OM PRAKASH MEENA, SR. D.R. /BY ASSESSEE : NONE /DATE OF HEARING : 26.04.2017 /DATE OF PRONOUNCEMENT : 28.04.2017 ORDER PER S. S. GODARA, JUDICIAL MEMBER THESE TWO REVENUES APPEALS FOR ASSESSMENT YEAR 200 8-09 & 2009-10 ARISE AGAINST THE CIT(A)-XV, AHMEDABADS SEPARATE ORDERS; BOTH DATED 04.03.2013 IN CASE NOS. CIT(A)-XV/ITO/9(2)/368/10-1 1 & CIT(A)- XV/ITO/9(2)/413/11-12, REVERSING ASSESSING OFFICER S ACTION IN DISALLOWING SECTION 80IB(10) DEDUCTIONS OF RS.45,47,315/- AND R S.14,78,516/-; ITA NO. 1742 & 1743/AHD/2013 ( ITO VS. M/S. JAY CO RPORATION) A.YS. 2008-09 & 2009-10 - 2 - RESPECTIVELY, IN PROCEEDINGS U/S. 143(3) OF THE INC OME TAX ACT, 1961, IN SHORT THE ACT. CASE CALLED TWICE. NONE APPEARS AT ASSESSEES BEHE ST DESPITE SERVICE OF RPAD NOTICE(S) DATED 06.03.2017. IT IS ACCORDINGLY PROCEEDED EX PARTE. 2. THE REVENUE PLEADS THE FOLLOWING SUBSTANTIVE GRO UNDS IN THE ABOVE FORMER APPEAL: 1A). THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)- XV, AHMEDABAD HAS ERRED IN IN LAW AND ON FACTS IN DIRECTING THE ASSESSING O FFICER TO ALLOW THE ASSESSEE'S CLAIM FOR DEDUCTION OF RS.45,47,315/- U/ S. 80IB(10) OF THE IT. ACT. 1B). THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)- XV, AHMEDABAD HAS ERRED IN IN LAW AND ON FACTSTO IGNORE THE FACT THAT THE P LOTS OF LAND WERE TRANSFERRED BY ONE SHRI NATVARBHAI ISHWARBHAI PATEL TO VARIOUS INDIVIDUALS WITH ASSESSEE CARRYINGOUT ONLY CONSTRUCTION ACTIVIT Y AS PER INDIVIDUAL CONSTRUCTION WORK DEED BETWEEN ASSESSEE & INDIVIDUA LS. 1C). THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)- XV, AHMEDABAD HAS ERRED IN IN LAW AND ON FACTS TO IGNORE THE FACT THAT EXPE NSES FOR BASIC & COMMON INFRASTRUCTURE LIKE LAND DEVELOPMENT, LAND ESCAPING , GARDENING, PLASTERING OF ROADS, COMPOUND WALL, ENTRY GATE, SECURITY CABIN , WATER SUPPLY, ELECTRIC CONNECTION, MARKING OF PLOTS ETC., WERE BORNE BY TH E LAND OWNER WHICH CLEARLY ESTABLISHES THE FACT THAT ASSESSEE FIRM WAS ONLY A WORK CONTRACTOR AND NOT 'DEVELOPER' TO BE ELIGIBLE FOR DEDUCTION U/ S. 80IB(10) OF THE IT. ACT. WE COME TO ABOVE LATTER APPEAL AND NOTICE THAT THE REVENUES GRIEVANCE IN THE SAME IS IDENTICALLY PLEADED AND TH E ONLY DIFFERENCE IS THAT OF THE DISALLOWANCE SUM OF RS.14,78,516/-. LEARNED DEP ARTMENTAL REPRESENTATIVE IS FAIR ENOUGH IN POINTING OUT THE F ACT THAT THE SOLE ISSUE INVOLVED IN THESE TWO REVENUES APPEALS IS IDENTICA L. WE THUS TREAT FORMER APPEAL ITA NO.1742/AHD/2013 AS THE LEAD CASE. 3. THIS ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN R EAL ESTATE DEVELOPMENT AND CONSTRUCTION. IT CLAIMED THE IMPUGNED SECTION 80IB(10) DEDUCTION QUA DEVELOPMENT OF THE RESIDENTIAL PROJECT IN THE NAME AND STYLE OF SHYAMSARTHI BUNGALOWS, CHANDKHEDA-KALOL HIGHWAY, AHMEDABAD. TH E ASSESSING ITA NO. 1742 & 1743/AHD/2013 ( ITO VS. M/S. JAY CO RPORATION) A.YS. 2008-09 & 2009-10 - 3 - OFFICER TOOK UP SCRUTINY. HE NOTICED THAT ONE SHRI NATVARBHAI ISHWARBHAI PATEL ON THE RELEVANT PARCEL OF LAND. THE PROJECT APPROVAL WAS IN HIS NAME. THE ASSESSEE HAD ENTERED INTO DEVELOPMENT AGREEMENT DATED 13.11.2006. THE ASSESSING OFFICER ACCORDINGLY FRAMED THE REGULAR AS SESSMENT ON 28.12.2010 DISALLOWING THE IMPUGNED DEDUCTION ON FOUR COUNTS I NTER ALIA AFTER HOLDING THAT THE ASSESSEE WAS NOT BOTH DEVELOPER AND BUILDE R U/S.80IB(10), IT WAS MERELY A CONTRACTOR AS PER DEVELOPMENT AGREEMENT, I T HAD NOT SOLD ANY UNIT TO THE PURCHASER AND AMENDMENT INSERTED IN SECTION 80I B BY THE FINANCE ACT, 2009 WITH RETROSPECTIVE EFFECT SQUARELY APPLIED IN FACTS OF THE INSTANT CASE. HE THEREFORE DECLINED THE IMPUGNED DEDUCTION. 4. THE CIT(A) REVERSES ASSESSING OFFICERS ABOVE NA RRATED FINDINGS AS UNDER: 5. I HAVE PERUSED THE FACTS OF THE CASE AS ENUMERA TED BY A.O. AND AS SUBMITTED BY APPELLANT. I HAVE PERUSED THE CASE LA WS RELIED ON BY A.O. AS WELL AS APPELLANT. AFTER CAREFUL CONSIDERATION OF FACTS, S UBMISSION AND CONTENTION OF BOTH A.O. AS WELL AS OF APPELLANT, GROUND WISE ADJUDICAT ION IS AS FOLLOWS: 5.1 BEFORE ADJUDICATION FOLLOWING IMPORTANT OBSERVA TION REQUIRED CONSIDERATIONS. (A) THE A.O. AFTER DISCUSSING IN DETAIL, SUMMARIZED THE FACTS AND GIVEN REASONS FOR DISALLOWANCES U/S. 80IB (10) OF THE ACT MAINLY ON A CCOUNT OF NON OWNERSHIP OF LAND SO DEVELOPED. THE A.O. SUPPORTED THE CONTENTIO N THAT BOTH PERMISSION TO DEVELOP PROJECT AND BUILDING USE PERMISSION WAS NOT IN THE NAME OF DEVELOPER. (B) THE APPELLANT IS TREATED AS WORK CONTRACTOR BY A.O. ON THE BASIS OF DEVELOPMENT AGREEMENT AND APPELLANT'S RELIANCE ON H ON'BLE ITAT, AHMEDABAD. ORDERS IN THE CASE OF RADHE DEVELOPERS AND SHAKTI C ORPORATION WERE SUMMARILY REJECTED WITH THE CONTENTION THAT DEPARTMENT HAS NO T ACCEPTED THESE ORDER AND MATTER IS BEFORE THE HON'BLE GUJARAT HIGH COURT. TH E A.O. FURTHER EMPHASIZED THAT INCLUSION OF EXPLANATION IN RESPECT OF 'WORKS CONTR ACT' IS JUSTIFY HIS STAND. AS AGAINST THESE ARGUMENTS THE APPELLANT'S MAIN THR UST WERE ON FOLLOWING ARGUMENTS. (I) THE APPELLANT FULFILL ALL THE ELIGIBLE CONDITIO N AS REQUIRED U/S. 80IB(10) OF THE ACT. THE APPELLANT DEVELOPED A HOUSING PROJECT ON A LAND ADMEASURING MORE THAN 1 ACRE WITH DUE PERMISSION FROM LOCAL AUT HORITY AS PER APPROVED PLAN AND NONE OF THE DWELLING UNIT IS HAVING AREA A DMEASURING MORE THAN 1500 SQ. FT. THE BUILDING USE PERMISSION IS ALSO AV AILABLE. THE APPELLANT ITA NO. 1742 & 1743/AHD/2013 ( ITO VS. M/S. JAY CO RPORATION) A.YS. 2008-09 & 2009-10 - 4 - HAS TAKEN ALL THE RISK OF DEVELOPMENT OF PROJECT RI GHT FROM THE PURCHASE OF LAND, CONCEPTUALIZATION AND PLAN OF THE PRO JECT, GETTING TECHNICAL, STATUTORICAL AND OTHER PERMISSION FROM VA RIOUS AUTHORITIES, ARRANGING THE MAN, MATERIAL AND FINANCE FOR EXECUTION OF DEVELOPMENT, ENROLLING THE MEMBERS/PURCHASER FOR TH E PROJECT, NEGOTIATING WITH THEM, COLLECTION OF PRICE AND OTHER SUCH WORK FOR SALE OF DWELLING UNIT OF PROJECT ETC. THE CLAIM OF APPELLANT IS DULY SUPP ORTED BY A CERTIFICATE IN 10CCB FROM A CHARTERED ACCOUNTANT FOR THE CLAIM AND ELIGIBILITY U/S. 80IB (10) OF THE ACT. THE APPELLANT AS PER THE APPROVED METHOD OF ACCOUNTING I.E. 'PROPORTIONATE COMPLETION METHOD1 CLAIMED SUCH DEDU CTION IN THREE YEARS ON THE BASIS OF YEARLY COMPLETION OF PROJECT AND PR OFIT DERIVED OUT OF SUCH COMPLETION. (II) THE APPELLANT RELIED ON VARIOUS DECISIONS OF HON'BLE IT AT, AHMEDABAD AND HON'BLE GUJARAT HIGH COURT INCLUDING THE LATEST OF M/S. RADHE DEVELOPERS WHERE IN THE FACTS AND CIRCUMSTANCES AS THAT OF APPELLANT'S CASE, HON'BLE HIGH COURT HELD THAT CLAIM IS JUSTIFI ED. THE APPELLANT ALSO SUBMITTED IN THE FORM OF QUESTION AND ANSWER (P.B. PAGE 210 TO 213) ABOUT HOW THE GUIDE LINE AS ENUMERATED BY HON'BLE IT AT, AHMEDABAD IN SUCH CASE IS FULFILLED AND SATISFIED THEREBY HOW THE RAT IO OF HON'BLE GUJARAT HIGH COURT DECISION IN THE CASE OF RADHE DEVELOPER IS AP PLICABLE IN HIS CASE. (COPY IS ATTACHED HEREWITH THIS ORDER FOR READY REF ERENCE) 5.2 APPELLANT'S MAIN GROUNDS ARE AGAINST THE DISALL OWANCE OF CLAIM U/S. 80IB (10) OF THE ACT. IT IS IN THIS REGARD, ON THE BASIS OF ABOVE DISCUSSED OBSERVATIONS AND FACTS, MY OBSERVATION AND FINDINGS ARE AS FOLLO WS: (I) I AM INCLINED TO ACCEPT VARIOUS CONTENTIONS OF THE APPELLANT AS RAISED IN VARIOUS SUB-GROUNDS. THIS INCLUDES THAT A.O. FAILED TO CONSIDER AND APPRECIATE THE DETAILED EXPLANATION GIVEN BY APPELLANT DURING THE COURSE OF ASST. PROCEEDINGS HIGHLIGHTING THE FACTS THAT HE FULFILLED ALL THE RE QUISITE CONDITIONS FOR ELIGIBILITY OF CLAIM U/S.80IB (10) OF THE ACT. THE INVOLVEMENT OF APPELLANT FUND THEREBY RISK UNDERTAKEN BY APPELLANT FOR DEVELOPMENT OF HOUSING PROJECT IS NOT CONTROVERTED BY A.O. THE A.O. SIMPLY RAISED TWO ISSUES FOR DISALLOW ANCES I.E. THE OWNERSHIP OF LAND AND APPELLANT IS A WORK CONTRACTOR. ON THE OTHER HA ND, THE A.O. DISCARDED THE APPELLANT'S SUBMISSION BASED ON FACTS AS WELL AS LE GAL PROPOSITION THAT DOMINION CONTROL OVER LAND WITH ALL THE RISK OF DEVELOPMENT WAS THAT OF APPELLANT AND IT IS ONLY FOR SOME TECHNICAL PURPOSE THE LAND OWNER WAS IN PICTURE FOR OBTAINING PERMISSION FOR DEVELOPMENT AND OTHER SIGNATORY FUNC TIONS. (II) I AM ALSO INCLINED TO ACCEPT THE CONTENTION OF THE APPELLANT THAT RATIO OF CASE LAWS RELIED ON BY APPELLANT ARE SQUARELY APPLI CABLE IN THE FACTS OF THE APPELLANT. THE APPELLANT ALSO PROVIDED DETAILS AND EXPLANATION IN A TABULAR FORM IN RESPECT OF VARIOUS GUIDELINES GIVEN BY HON'BLE GUJA RAT HIGH COURT IN THE CASE OF RADHE DEVELOPERS & ORS. AND AS SUMMARIZED BY HON'BL E ITAT AHMEDABAD IN VARIOUS DECISIONS INCLUDING ACIT CIR.2, BARODA V. M /S.SHIKHAR DEVELOPERS. ALL THESE DETAILS AND EXPLANATIONS ARE VERIFIABLE FROM THE DETAILS AND SUBMISSION, MADE BY APPELLANT BEFORE A.O. AND ALSO BEFORE ME. T HIS ANALYSIS ALSO REFLECTS THAT* APPELLANT FULFILLED ALL THE ELIGIBLE CONDITIONS FOR CLAIM OF DEDUCTION U/S.80IB (10) OF THE ACT. ITA NO. 1742 & 1743/AHD/2013 ( ITO VS. M/S. JAY CO RPORATION) A.YS. 2008-09 & 2009-10 - 5 - (III) I AM INCLINED TO ACCEPT THE CONTENTION OF AP PELLANT THAT IN SECTION 80IB(10) OF THE ACT THERE IS NO CONDITION REGARDING THE OWNE RSHIP OF LAND BEING DEVELOPED AND THERE IS NO REQUIREMENT IN THE SUB-SECTION THAT APPROVAL OF HOUSING PROJECT BY A LOCAL AUTHORITY AND B.U. PERMISSION SHOULD BE THE NAME OF DEVELOPERS. IT IS ONLY THE PROFIT DERIVED FROM BUILDING AND DEVELOPING A H OUSING PROJECT ON MINIMUM ONE ACRE OF LAND WITH EACH UNIT BELOW 1500 SQ. FT. WITH OTHER TIME LIMITATION IS ENTITLED FOR DEDUCTION U/S.80IB (10) OF THE ACT. IT IS THER EFORE A HOLISTIC VIEW ABOUT THE PROVISION WITH ITS OBJECTIVE HAS TO BE TAKEN RATHER CONSIDERING THE PROVISIONS IN A PIECE MEAL MANNER. (IV) I HAVE EXAMINED THE FACTS OF THE PRESENT CASE IN THE LIGHT OF THE DECISION IN THE CASE OF M/S. RADHE DEVELOPERS (SUPRA) AND FIND THAT THE ASSESSEE HAS SATISFIED ALL THE REQUIREMENTS OF SECTION 80 IB (10) OF THE I T ACT IN THE MATTER. THE LEARNED COUNSEL FOR THE ASSESSEE REFERRED TO THE TERMS OF T HE DEVELOPMENT AGREEMENTS EXTENSIVELY DURING THE COURSE OF THE APPEAL PROCEED INGS FOR DEVELOPMENT AND CONSTRUCTION OF RESIDENTIAL HOUSING PROJECT AND IT PROVIDES THAT THE ASSESSEE HAS ACQUIRED ALL SUBSTANTIVE DEVELOPMENT RIGHTS. THE DEVELOPMENT AGREEMENTS ENTERED INTO BY THE ASSESSEE WAS OVER AND ABOVE THE AGREEMENT TO SELL TO ACQUIRE THE RIGHTS AND DOMAIN OVER THE LAND IN QUESTION. AC CORDING TO THE DEVELOPMENT AGREEMENTS IT WAS THE RESPONSIBILITY OF THE ASSESSE E FOR PLANNING, SANCTION OF THE BUILDING PLAN, WORK OF CONSTRUCTION, DEVELOPMENT OF THE HOUSING PROJECTS ALONG WITH ALL EXPENDITURE TO BE INCURRED BY THE ASSESSEE FOR DEVELOPMENT OF THE PROPERTY IN QUESTION. THE ASSESSEE IS ALSO ENTITLED TO RECEI VE THE SALE CONSIDERATION AND SHALL ACCEPT ALL THE PAYMENTS FROM THE BUYERS. THE DETAIL S OF THE SAME ARE FILED ON RECORD. THE LEARNED COUNSEL FOR THE ASSESSEE ALSO S UBMITTED THAT ADDA HAS GRANTED PERMISSION TO CONSTRUCT 80 RESIDENTIAL UNIT S IN 14128 SQ. M. OF LAND AND IN THE PERMISSION FOR DEVELOPMENT THE NAME OF SHRI ASHOKBHAI SUNDERBHAI PATEL CHAIRMAN/SECRETARY AND OTHERS BEING EARLIER LAND OW NER WHO INITIALLY APPLIED FOR DEVELOPMENT APPEARS BUT THOSE LAND OWNER SOLD THE L AND TO SHRI ISHWARBHAI WITH WHOM APPELLANT HAS DEVELOPMENT AGREEMENT BUT DUE TO TERMS AND CONDITION NO NEW PERMISSION FOR DEVELOPMENT IS REQUIRED SINCE TH IS PERMISSION IS GRANTED TO LAND OWNER AS PER LAND RECORD AT THE TIME OF PERMIS SION. THE BUILDING USE CERTIFICATE IS ISSUED IN THE NAME OF LAND OWNER SHR I NATWARBHAI I. PATEL AS PER THE TERMS OF THE PERMISSION FOR DEVELOPMENT FOR THE SAM E AREA AND FOR THE SAME NUMBER OF RESIDENTIAL UNITS. WHEN THE PERMISSION FO R DEVELOPMENT AND BUILDING USE CERTIFICATES ARE CONSIDERED IN THE LIGHT OF THE DEVELOPMENT AGREEMENTS, IT WOULD CLARIFY THAT THE PROPERTY NUMBERS ARE SAME AS HAS BEEN MENTIONED BY ADDA AND THAT THERE IS NO OBJECTION FROM THE SIDE OF THE LANDOWNER. THEREFORE, IT IS CLEAR THAT THE BUILDING PLANS HAVE BEEN SANCTIONED IN RES PECT OF THE LAND DEVELOPED BY THE ASSESSEE THROUGH THE AGREEMENT TO SELL AND THE DEVELOPMENT AGREEMENTS IN QUESTION. THE DETAILS ON RECORD SUPPORTS THE CASE O F THE ASSESSEE THAT THE ASSESSEE HAS UNDERTAKEN THE ENTIRE DEVELOPMENT OF THE HOUSIN G PROJECT FOR WHICH THE PLANS WERE APPROVED AND PERMISSION TO USE WAS OBTAINED IN RESPECT OF THE SAME PROPERTY IN QUESTION, THE ASSESSEE INCURRED ALL THE EXPENDIT URE FOR DEVELOPMENT OF THE HOUSING PROJECT AND RECEIVED THE ENTIRE SALE CONSID ERATION FROM THE BUYERS. IT WOULD, THEREFORE, PROVE THAT THE ASSESSEE UNDERTAKE N TO DEVELOP THE BUILDING HOUSING PROJECT IN QUESTION. THESE FACTS WOULD SHOW AND PROVE THAT THE ASSESSEE MADE THE PAYMENTS OF SALE CONSIDERATION OF THE PROP ERTY IN QUESTION AND THE DETAILS OF THE SALE PROCEEDS RECEIVED FROM THE BUYERS HAVE ALSO BEEN MENTIONED IN THE TOTAL SALE PROCEEDS IN THE BOOKS OF ACCOUNTS OF THE ASSES SEE. THE FACTS OF THE CASE AND ITA NO. 1742 & 1743/AHD/2013 ( ITO VS. M/S. JAY CO RPORATION) A.YS. 2008-09 & 2009-10 - 6 - EVIDENCES ON RECORD WOULD PROVE THAT THE ASSESSEE E NTERED INTO DEVELOPMENT AGREEMENTS AND AGREEMENT TO SELL WITH THE PURCHASER FOR CONSIDERATION. ALL THE RESPONSIBILITIES FOR CARRYING OUT CONSTRUCTION, PER MISSION AND DEVELOPMENT OF THE PROJECT LIE WITH THE ASSESSEE. THE REAL OWNER OF TH E LAND I.E. LANDOWNER WAS ONLY TO CO-OPERATE WITH THE ASSESSEE IN CARRYING OUT THE DE VELOPMENT AND TO EXECUTE NECESSARY DOCUMENTS WHENEVER REQUIRED BY THE ASSESS EE AS A DEVELOPER. THE LANDOWNER HAD HANDED OVER PHYSICAL POSSESSION OF TH E LAND TO THE ASSESSEE AS A DEVELOPER FOR CARRYING OUT DEVELOPMENT OF HOUSING P ROJECT. THE LANDOWNER WAS NOT LEFT WITH ANY RIGHT, INTEREST OR TITLE IN THE DEVEL OPMENT WHICH WAS CARRIED OUT BY THE ASSESSEE. THE MOTIVES OF THE LANDOWNER WAS NOT TO D EVELOP, CONSTRUCT OR CARRYING OUT ANY BUSINESS AS A BUILDER OR DEVELOPER AND PRAC TICALLY NOTHING WAS LEFT WITH HIM. FOR ALL INTENT AND PURPOSES, THE ASSESSEE HAS ACQUIRED DOMINANT RIGHTS OVER THE LAND AND THE ASSESSEE CAN DEAL IN THE LAND IN T HE MANNER IN WHICH THE ASSESSEE MIGHT HAVE LIKED. THE TERMS AND CONDITIONS ENTERED INTO BETWEEN THE ASSESSEE AND THE LANDOWNER AS PER THE DEVELOPMENT AGREEMENTS PRO VIDED ALL THE DOMINANT CONTROL AND RIGHTS OVER THE LAND TO THE ASSESSEE AN D THE ASSESSEE DEVELOPED AND CONSTRUCTED THE HOUSING PROJECT AT ITS OWN COST AND WOULD REMAIN OWNER OF THE BUILDING WITHOUT ANY INTERFERENCE FROM THE LANDOWNE R. THE DEVELOPMENT AGREEMENTS IN QUESTION DID NOT PROVIDE THAT THE ASS ESSEE WOULD BE WORKING AS A CONTRACTOR OR AGENT ON BEHALF OF THE LANDOWNER. THE AGREEMENTS IN QUESTION WOULD NOT BE REGARDED TO BE THE JOINT VENTURE OR COLLABOR ATION AGREEMENT. IT WAS THE AGREEMENTS UNDER WHICH THE ASSESSEE WAS ENTITLED TO DEVELOP THE HOUSING PROJECT ON THE LAND ON ITS OWN COST AND IN THE MANNER IN WH ICH THE ASSESSEE MIGHT HAVE DECIDED. IT IS NOT IN DISPUTE THAT THE ASSESSEE BEING A DEVE LOPER CONSTRUCTED THE HOUSING PROJECT AS PER THE DEVELOPMENT AGREEMENTS BY INCURR ING TOTAL EXPENDITURE AND RECEIVED THE SALE CONSIDERATION. THEREFORE, THE ASS ESSEE IS ABLE TO SATISFY THE REQUIREMENT OF SECTION 80 IB (10) OF THE IT ACT. IT IS HIGHLIGHTED THAT ONCE PLAN IS APPROVED BY AUDA ON PAPERS SUBMITTED BY THE ASSESSE E AND OTHERS, IT WOULD BE DEEMED APPROVAL OF CONSTRUCTION OF HOUSING UNITS IN FAVOR OF THE ASSESSEE, MORE SO, WHEN THE ASSESSEE ENTERED INTO AGREEMENTS FOR DEVEL OPING THE WHOLE OF THE PROPERTY. THEREFORE, OBJECTION OF THE AUTHORITIES B ELOW, THE NAME OF THE ASSESSEE IS NOT MENTIONED IN THE PERMISSION OR DEVELOPMENT AGRE EMENT AS WORKS CONTRACT ARE NOT SUSTAINABLE IN LAW. THE FACTS OF THE CASE, IF C ONSIDERED IN THE LIGHT OF THE DECISIONS OF ITAT AHMEDABAD BENCH IN THE CASES OF R ADHE DEVELOPERS, SHAKTI CORPORATION AS UPHELD BY HON'BLE GUJARAT HIGH COURT IN THE CASE OF RADHE DEVELOPERS 341 ITR 403 AND ALSO IN THE CASE OF C.I. T. VS. TARNETAR CORPORATION (ORDER DT. 12/12/2012 IN TAX APPEAL NO. 1241 OF 201 1), I AM OF THE VIEW THE ISSUE IS NOW FULLY COVERED IN FAVOR OF THE ASSESSEE FOR GRAN T OF DEDUCTION U/S 80 IB(10) OF THE IT ACT BECAUSE THE ASSESSEE HAS ACQUIRED DOMINA NT RIGHT OVER THE LAND AND HAS DEVELOPED THE HOUSING PROJECT BY INCURRING ALL THE EXPENSES AND TAKING ALL RISKS INVOLVED THEREOF. THE CRUX OF THE MATTER WOULD BE T HAT ASSESSEE HAS ACQUIRED THE LAND IN QUESTION AND HAS DEVELOPED THE HOUSING PROJ ECT AT ITS OWN COST AS PER THE REQUIREMENT OF SECTION 80 IB (10) OF THE IT ACT. HO N'BLE SUPREME COURT IN THE CASE OF C.I.T. -1 AHMEDABAD GUJARAT VS. B. NANJI ENTERPR ISE LTD. REJECTED DEPARTMENT'S PETITION FOR SPECIAL LEAVE IN APPEAL (CIVIL)...../2 012 CC 21333/2012 ARISED FROM THE ORDER DT. 13/12/11 IN ITA NO. 1498/2008 OF HON'BLE GUJARAT HIGH COURT VIDE ORDER DT. 07/12/12. FURTHER IN THE CASE OF ACIT (OSD) WD 5(2) BARODA VS. M/S SOMESHWAR DEVELOPERS ALSO SLP OF THE DEPARTMENT ARI SING FROM THE JUDGMENT AND ITA NO. 1742 & 1743/AHD/2013 ( ITO VS. M/S. JAY CO RPORATION) A.YS. 2008-09 & 2009-10 - 7 - ORDER DT. 11/01/2012 IN ITA NO. 1300/2008 OF HON'BL E GUJARAT HIGH COURT, THE HON'BLE SUPREME COURT AFTER CONDONING DELAY, DECLIN ED TO INTERFERE AND DISMISSED THE SLP OF THE DEPARTMENT. THEREFORE,I AM OF THE VIEW THE ASSESSEE WOULD BE EN TITLED FOR DEDUCTION U/S 80 IB (10) OF THE IT ACT. I AM OF THE VIEW THAT ASS ESSEE FULFILLED THE CONDITIONS AND REQUIREMENTS OF SECTION 80IB(10) OF THE IT ACT, THE REFORE, THE CLAIM OF THE ASSESSEE FOR DEDUCTION SHOULD NOT HAVE BEEN DENIED AND DIREC T THE AO TO GRANT DEDUCTION TO THE ASSESSEE U/S80IB(10) OF THE IT ACT AS CLAIMED B Y THE ASSESSEE. THE APPELLANT GETS RELIEF ACCORDINGLY. 5. HEARD LEARNED DEPARTMENTAL REPRESENTATIVE. CASE FILE PERUSED. HE STRONGLY REITERATES ASSESSING OFFICERS CONCLUSION HEREINABOVE THAT THE ASSESSEE IS NOT ENTITLE FOR THE ABOVE IMPUGNED DEDU CTION U/S.80IB(10) OF THE ACT. THERE CAN HARDLY BE ANY DISPUTE THAT OWNERSHI P OF THE LAND IN QUESTION IS NOT A VALID CRITERIA TO DISALLOW THE IMPUGNED DE DUCTION CLAIM AS HELD IN HONBLE JURISDICTIONAL HIGH COURTS DECISION IN CIT VS. RADHE DEVELOPERS CASE (2012) 341 ITR 403 (GUJARAT). LEARNED ASSESSI NG OFFICER IS FAIR ENOUGH IN ADMITTING IN PARA 3.18 THAT THE ASSESSEE HAD BEE N GIVEN RIGHT OF POSSESSION OVER THE PROJECT LAND AND IT HAD EXERCISED ALL RIGH TS OF ADMISSION OF PROSPECTIVE BUYERS, COLLECTION OF CONSIDERATION AS WELL AS FINANCE ARRANGEMENTS. IT HAS COME ON RECORD THAT THE ASSES SEE HAD PLACED THE ABOVE DEVELOPMENT AGREEMENT BEFORE THE ASSESSING OFFICER AS WELL AS THE CIT(A). THE CIT(A) FINDS IN LOWER APPELLATE ORDER THAT IT I S THE ASSESSEE DEVELOPER WHO HAS INCURRED TOTAL EXPENDITURE AND RECEIVED THE SALE CONSIDERATION. WE AFFORDED AMPLE OPPORTUNITY TO THE REVENUE TO REBUT THIS CLINCHING FINDING BY READING THE CORRESPONDING TERMS IN ABOVE DEVELOPMEN T AGREEMENT. WE NOTICE THAT THE SAME DOES NOT EVEN FORM PART OF THE CASE RECORDS. THIS CLINCHING FACTOR MAKES US TO CONCLUDE THAT THE LEAR NED CIT(A) HAS RIGHTLY HELD THE ASSESSEE TO HAVE UNDERTAKEN ALL RISK AND R EWARD IN DEVELOPING THE ABOVESTATED RESIDENTIAL PROJECT SO AS TO BE ELIGIBL E FOR SECTION 80IB(10) DEDUCTION IN QUESTION. THE REVENUES SOLE SUBSTANT IVE GROUND AS WELL AS ITS APPEAL ITA NO.1742/AHD/2013 IS DECLINED. ITA NO. 1742 & 1743/AHD/2013 ( ITO VS. M/S. JAY CO RPORATION) A.YS. 2008-09 & 2009-10 - 8 - 6. SAME ORDER TO FOLLOW IN REVENUES LATTER APPEAL ITA NO.1743/AHD/2013 SINCE WE HAVE ALREADY MADE IT CLEA R IN PRECEDING PARAGRAPHS THAT THE ISSUE INVOLVED HEREIN IS THE SA ME AND IDENTICAL AS ADJUDICATED IN FORMER APPEAL. 7. THESE TWO REVENUES APPEALS ARE DISMISSED. [PRONOUNCED IN THE OPEN COURT ON THIS THE 28 TH DAY OF APRIL, 2017.] SD/- SD/- ( PRADIP KUMAR KEDIA ) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIA L MEMBER AHMEDABAD: DATED 28/04/2017 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )*+ ,--. . /0 / DR, ITAT, AHMEDABAD 1 +23 / GUARD FILE. BY ORDER / . // . /0