The ITO, Ward-2(3), Baroda V. M/s. Nirman Developers, Baroda

ITA 1799/AHD/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0006 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 06-10-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 19-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SOPARKAR AR WITH MS UKTI SHAH
• Section: 80IB

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER ./ I.T.A. NO. 1799/AHD/2013 ( / ASSESSMENT YEAR : 2009-10) INCOME TAX OFFICER WARD-2(3), 2 ND FLOOR, AAYAKAR BHAVAN, RACE COURSE CIRCLE, BARODA. / VS. M/S NIRMAN DEVELOPERS, TAKSH BUNGLOW, VASNA ROAD, BARODA ./ ./ PAN/GIR NO. : AAFFN 3161 L ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI PRASOON KABRA, SR.DR / RESPONDENT BY : SHRI SOPARKAR, AR WITH MS. UKTI SHAH / DATE OF HEARING 06/10/2016 / DATE OF PRONOUNCEMENT 29 /11/2016 / O R D E R PER SHRI MAHAVIR PRASAD, JUDICIAL MEMBER : THIS PRESENT APPEAL HAS BEEN FILED BY THE DEPARTMEN T IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-II BARODA [CIT(A) IN SHORT] DATED 11/03/2013 PASSED FO R ASSESSMENT YEAR (AY) 2009-2010 AND FOLLOWING GROUNDS HAVE BEEN TAKE N:- (I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE ID.CIT (APPEALS) ERRED IN ALLOWING DEDUCTION OF RS. 1,27,05,960/- U/S 80IB(10) OF THE INCOME-TAX ACT WITHOUT APPRECIATING THAT THE NATURE OF AGREEMENT BETWEEN THE ASSESSEE AND THE UNIT PURC HASERS SHOWS THAT IT WAS ONLY A WORKS CONTRACT IN SO FAR AS TH E AGREEMENT ITA NO.1799/AHD/2013 INCOME TAX OFFICER VS. NIRMAN DEVELOPERS ASST.YEAR 2009-2010 - 2 - ENTERED INTO BEFORE THE CONSTRUCTIONS WAS COMPLETE AND NOT AFTER THE FLAT OR UNIT WAS CONSTRUCTED. (II) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE ID CIT(A) ERRED IN ALLOWING DEDUCTION U/S 80IB(10) R.W .S. 80IB(1) TO THE ASSESSEE ON THE PROFIT OF RS.8,06,802/- DERIVED FROM SALE OF UNUTILIZED FSI NOT BEING THE ELEMENT OF PROFITS DER IVED FROM THE BUSINESS ACTIVITY OF DEVELOPMENT AND CONSTRUCTION O F THE HOUSING PROJECT RELATING TO THE SALE OF TENEMENTS. 2. DURING THE YEAR UNDER ASSESSMENT, THE ASSESSEE FIRM HAS CONSTRUCTED HOUSING PROJECT AND SHOWN TOTAL NET PRO FIT AT RS.1,27,05,963/- AS HAVING BEEN DERIVED FROM THE DE VELOPMENT AND BUILDING OF THE HOUSING PROJECT. THE PROFIT OF BUSI NESS HAS BEEN CLAIMED AS DEDUCTION AT 100% FROM THE TOTAL INCOME OF THE ASSESSEE FIRM U/S. 80IB(10) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 1. TO SUBSTANTIATE THE ITS CLAIM, THE ASSESSEE HAS FILED COPY OF LAYOUT PLAN, THE AUDIT REPORT IN FORM 10CCB ETC. FO R THE HOUSING PROJECT. HOWEVER, ON PERUSAL OF SUPPORTING DOCUMENT S FILED IN FAVOUR OF THE CLAIM OF DEDUCTION U/S. 80IB(10), IT HAS BEEN OBSERVED THAT PERMISSION FOR DEVELOPMENT / RAJA CHI TTHI ISSUED BY THE LOCAL AUTHORITY I.E., VODODARA MUNICIPAL CORPOR ATION, SHOWS NAME OF THE APPLICATIONS IN WHOSE NAME THE PROJECT IS APPROVED AS SHRI JAYANTI F. PATEL AND SAMIR J AMIN. THIS DOCUME NTS CATEGORICALLY STATES THAT PERMISSION FOR CONSTRUCTI ON IS GRANTED AS PER APPROVED PLAN ENCLOSE WITH IT AND THE PERMISSI ON IS SUBJECT TO VARIOUS RULES AND BYE LAWS LAID DOWN BY THE GUJARAT TOWN PLANNING AND URBAN DEVELOPMENT RULES, VADODARA URBA N DEVELOPMENT AUTHORITY, GENERAL DEVELOPMENT CONTROL REGULATION ETC. THE PERMISSION CLEARLY MENTIONED THAT THE PERM ISSION IS GRANTED TO SHRI JAYANTI F PATEL AND SAMIR J AMIN FO R CONSTRUCTION OF HOUSING PROJECTS ON THE AREA OF LAND OWNED BY TH EM. ITA NO.1799/AHD/2013 INCOME TAX OFFICER VS. NIRMAN DEVELOPERS ASST.YEAR 2009-2010 - 3 - 2.AS PERUSED FROM THE DOCUMENTS FURNISHED, IT IS NO TICED THAT THE PERMISSION FOR DEVELOPMENT / RAJA CHITTHI ISSUED BY THE LOCAL AUTHORITY IS NOT IN THE NAME OF THE ASSESSEE. MOREO VER, THE LAND ON WHICH THE HOUSING PROJECT CONSTRUCTED IS ALSO NOT O WNED BY THE ASSESSEE. AS PER SECTION 80IB(10) OF THE ACT, THE B ASIC REQUIREMENT FOR CLAIMING DEDUCTION IS APPROVAL OF HOUSING PROJE CT BY LOCAL AUTHORITY IN THE NAME OF AN UNDERTAKING DEVELOPING AND BUILDING HOUSE PROJECTS. IT IS ALSO REQUIRED THAT THE AREA O F LAND ON WHICH THE HOUSING PROJECT IS CONSTRUCTED SHALL BE OWNED B Y THE ASSESSEE. 3. ACCORDINGLY, IT WAS STATED AGAINST THE ASSESSEE THA T SINCE ONE OF THE FUNDAMENTAL CONDITIONS LAID DOWN IN THE PROVISIONS OF SECTION 80IB(10) OF THE ACT, RELATING TO THE APPROVAL OF TH E SAID PROJECT HAD NOT BEEN COMPLIED WITH BY THE ASSESSEE IN AS MUCH A S IT HAD NOT TAKEN THE APPROVAL FROM LOCAL AUTHORITIES FOR THE D EVELOPMENT AND CONSTRUCTION OF THE SAID PROJECT. HENCE, HE COULD N OT BE REGARDED AS THE BUILDER AND DEVELOPER WITHIN THE MEANING OF THE PROVISIONS OF SECTION 80IB(10) OF THE ACT AND THEREFORE DID NOT B ECOME ELIGIBLE FOR DEDUCTION U/S.80IB(10) OF THE ACT, AS CLAIMED B Y IT. 4. IT WAS ALSO OBSERVED THAT THE ASSESSEE FIRM HAD NOT UNDERTAKEN THE COMPLETION OF THE PROJECT IN ITS ENTIRETY AS FAR AS DEVELOPMENT AND CONSTRUCTION OF HE UTILIZABLE FSI IS CONCERNED. THE ASSESSEE FIRM HAD TOTAL PLOT AREA OF 23764 SQ. MTRS FOR DEVELOPME NT, AFTER REDUCTION ON ACCOUNT OF COMMON PLOT AND ROADS ETC. THUS, IT WAS ELIGIBLE TO CONSTRUCT SUPER BUILT UP AREA OF 34219 SQ. MTRS. @ 1.6 FSI. THE ASSESSEE HAD CONSTRUCTED THE HOUSING PROJE CT BY DEPOYING ITA NO.1799/AHD/2013 INCOME TAX OFFICER VS. NIRMAN DEVELOPERS ASST.YEAR 2009-2010 - 4 - CONSTRUCTION OF 7879 SQ MTRS OF FSI. THUS, THE FSI OF 7879 SQ MTRS HAS BEEN UTILIZED FOR THE CONSTRUCTION OF THE SAME, OUT OF PERMISSIBLE FSI OF 34219 SQ. MTRS. THE PROFITS ENSU RING FROM ENTIRE PROJECT FOR THE YEAR AS PER THE PROFIT AND LOSS ACC OUNT, INCLUDES ADDITIONAL PROFIT ATTRIBUTABLE TO SALE OF UNUTILIZE D FSI HAS ALSO BEEN BOOKED BY THE ASSESSEE FIRM. SINCE THE ELIGIBLE PRO FITS FOR CLAIM OF DEDUCTION U/S 80IB(10) CAN ONLY RELATE TO THOSE FRO M THE PROJECT OF DEVELOPMENT AND CONSTRUCTION, THE PROFITS ATTRIBUTA BLE TO THE SALE OF UNUTILIZED FSI NOT RELATING TO DEVELOPMENT AND CONS TRUCTION UNDERTAKEN SHALL NOT BECOME ELIGIBLE FOR THE SAID C LAIM. 5. THE ASSESSEE WAS ASKED TO PROVIDE NECESSARY DETAILS AND INFORMATION TO WORK OUT THE PROFIT EARNED ON SALE O F UNUTILIZED FSI. HOWEVER, THE ASSESSEE HAS NOT PROVIDED SUCH INFORMA TION. UNDER THE CIRCUMSTANCES, SUCH PROFIT IS WORKED OUT CONSID ERING THE DETAILS PROVIDED DURING THE COURSE ASSESSMENT PROCEEDINGS. THE ASSESSEE FIRM HAS EARNED PROFIT OF RS.1,27,05,963/- ON SALE OF THE HOUSING UNIT CLUBBED WITH RIGHT OF UNUTILIZED FSI. THE RATI O OF UTILIZED FSI VIA-A-VIS UNUTILIZED FSI IS 7879:26340. THE PROFIT RELEVANT TO THE UNUTILIZED FSI IS COMPUTED AS UNDER:- COST OF LAND AS PER DEVELOPMENT KARAR AS PER REPLY TO RS. 17,09,000 SHOW CAUSE NOTICE TOTAL FSI AVAILABLE FOR DEVELOPMENT SQ.M TR. 34,219 FSI CONSUMED FOR DEVELOPMENT SQ.MTR. 7,87 9 FSI NOT UTILIZED FOR DEVELOPMENT SQ.MTR. 26 ,340 COST OF FSI CONSUMED = TOTAL COST X FSI CONSUMED/ RS. 3,93,501 TOTAL FSI AVAILABLE ITA NO.1799/AHD/2013 INCOME TAX OFFICER VS. NIRMAN DEVELOPERS ASST.YEAR 2009-2010 - 5 - COST OF FSI UNUTILIZED = (TOTAL COST OF LAND COST OF RS. 13,15,499 FSI CONSUMED) COST OF CONSTRUCTION = (TOTAL EXP LAND PURCHASES) RS. 1,90,08,184 TOTAL COST OF PROJECT AT THIS STAGE RS. 2,07,17,184 NET PROFIT RS. 1,27,05,963 NET PROFIT RELEVANT TO FSI UNUTILIZED = NET PROFIT X COST RS. 8,06,802 OF FSI UNUTILIZED/TOTAL COST 2. BUT LD.AO WAS NOT SATISFIED REPLY FILED BY THE ASSE SSEE AND HELD THE ASSESSEE FIRM IS NOT FOUND TO BE ELIGIBLE FOR DEDUC TION UNDER SECTION 80IB OF THE ACT AS IT IS NOT SATISFYING THE PRESCRIBED CONDITION UNDER SECTION 80IB(10) OF THE ACT. 3. THE SENIOR ISSUE HAS ALSO BEEN EXAMINED BY HONBLE GUJARAT HIGH COURT IN THE CASE OF ITO VS. AMAR CORPORATION IN IT A NO. 1286 OF 2011 VIDE ORDER DATED 31.01.2012. HIGH COURT HAS CONSIDERED THE DECISION IN CASE OF RADHE DEVELOPERS WHEREIN TH E APEX COURT DECISION IN THE CASE OF STATE OF ANDHRA PRADESH VS. KONE ELEVATORS (INDIA) LTD., AIR 2005 SC 1581 HAS BEEN DISCUSSED. IT HAS BEEN HELD THAT SECTION 80IB(10) ALLOWS DEDUCTION TO AN U NDERTAKING ENGAGED IN THE BUSINESS OF DEVELOPING AND CONSTRUCT ING HOUSING PROJECTS. THERE IS NO REQUIREMENT THAT THE LAND MUS T BE OWNED BY THE ASSESSE SEEKING THE DEDUCTION. UNDER THE DEVELO PMENT AGREEMENT, THE ASSESSEE HAD UNDERTAKEN THE DEVELOPM ENT OF HOUSING PROJECT AT ITS OWN RISK AND COST. THE LAND OWNER HAD ACCEPTED THE FULL PRICE OF THE LAND AND HAD NOT RES PONSIBILITY. THE ENTIRE RISK OF INVESTMENT AND EXPENDITURE WAS THAT OF THE ASSESSEE. RESULTANTLY, PROFIT AND LOSS ALSO ACCRUED TO THE AS SESSEE ALONE. THE ASSESSEE HAD TOTAL AND COMPLETE CONTROL OVER THE LA ND AND COULD PUT ITA NO.1799/AHD/2013 INCOME TAX OFFICER VS. NIRMAN DEVELOPERS ASST.YEAR 2009-2010 - 6 - THE LAND TO THE AGREED USE. IT HAD FULL AUTHORITY A ND RESPONSIBILITY TO DEVELOP THE HOUSING PROJECT BY NOT ONLY PUTTING UP THE CONSTRUCTION BUT BY CARRYING OUT VARIOUS OTHER ACTIVITIES INCLUD ING ENROLLING MEMBERS, ACCEPTING MEMBERS, CARRYING OUT MODIFICATI ONS ENGAGING PROFESSIONAL AGENCIES AND SO ON. THE RISK ELEMENT W AS ENTIRELY THAT OF THE ASSESSEE. THE ASSESSEE WAS A DEVELOPER IN COMMON PARLANCE AS WELL AS LEGAL PARLANCE AND COULD NOT BE REGARDED AS ONLY A WORK CONTRACTOR. THE EXPLANATION TO SECTIO N 80IB INSERTED W.R.E.F 1.4.2001 HAS NO APPLICATION AS THE PROJECT IS NOT A WORK CONTRACT. FURTHER, AS THE ASSESSEE WAS, IN P ART PERFORMANCE OF THE AGREEMENT TO SELL THE LAND, GIVEN POSSESSION AND HAD ALSO CARRIED OUT THE CONSTRUCTION WORK FOR DEVELOPMENT O F THE HOUSING PROJECT, IT HAD TO BE DEEMED TO BE THE OWNER U/S 2(47)(V) R.W.S. 53A OF THE TRANSFER OF PROPERTY ACT EVEN THOUGH FOR MAL TITLE HAD NOT PASSED. 4. FURTHER, HIGH COURT OF GUJARAT IN CIT(A)-IV VS. TAR NETAR CORPORATION [2012] 210 TAXMAN 206 (GUJ) HAS DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE BY REJECTING REVENUES AP PEAL IN I.T. APPEAL NO. 1241 OF 2011 VIDE ORDER DATED SEPTEMBER 12, 2012 BY HOLDING THAT: THE ISSUE PERTAINS TO DEDUCTION CLAIMED BY THE ASS ESSEE UNDER SECTION 80-IB(10) OF THE ACT ON DEVELOPMENT OF HOUS ING PROJECT. THE ASSESSING OFFICER WAS OF THE OPINION THAT SUCH DEDUCTION WAS NOT JUSTIFIED. REVENUES STAND APPEARS TO BE THAT T HE ASSESSEE WAS NOT A DEVELOPER AND THAT THEREFORE, WOULD NOT BE QU ALIFIED FOR DEDUCTION UNDER SECTION 80-IB(10)OF THE ACT. ADDITI ONAL CONTENTION ITA NO.1799/AHD/2013 INCOME TAX OFFICER VS. NIRMAN DEVELOPERS ASST.YEAR 2009-2010 - 7 - OF THE REVENUE WAS THAT THE ASSESSEE DID NOT FULFIL ONE OF THE ESSENTIAL CONDITIONS REQUIRED FOR CLAIMING DEDUCTIO N UNDER SECTION 80-IB(10) OF THE ACT. WITH RESPECT TO THE FIRST CON TENTION, THE LEARNED COUNSEL FOR THE REVENUE CANDIDLY AGREE THAT SUCH ISSUE WAS DISCUSSED BY THIS COURT AT CONSIDERABLE LENGTH IN THE CASE OF CIT(A)V. RADHE DEVELOPERS (2012) 341 ITR 403/204 TA XMAN 543/17 TAXMANN.COM 156 (GUJ.) AND UNDER SIMILAR CIR CUMSTANCES HELD THAT THE ASSESSEES CANNOT BE DENIED THE BENEFI T OF DEDUCTION. WITHOUT FURTHER ELABORATION, THEREFORE, SUCH CONTEN TION IS TURNED DOWN. 5. HONBLE MADRAS HIGH COURT IN CIT(A) VS. SANGHVI AND DOSHI ENTERPRISE (2013) 255 CTR 156 (MAD.) HAS ALSO FOLLO WED RADHE DEVELOPERS (SUPRA) IN HOLDING THAT VARIOUS CLAUSES IN THE AGREEMENT BETWEEN THE ASSESSEE AND THE OWNER CLEARL Y POINTS OUT THE ROLE OF THE ASSESSEE; WHICH IS NOT JUST AS THAT OF A BUILDER TO PUT UP CONSTRUCTION AS PER THE DIRECTION OF THE OWNER; ON THE OTHER HAND AS RIGHTLY POINTED OUT BY THE TRIBUNAL, THE RISK EL EMENT THAT IS INVOLVED IN THE PROJECT UNDERTAKEN BY THE ASSESSEE IS MORE THAN OF A NORMAL BUILDER, UNDERTAKEN MERE CONSTRUCTION. HIG H COURT HAS ALLOWED THE DEDUCTION U/S 80IB TO THE ASSESSEE. 6. SO FAR AS THE ISSUE OF PROFIT ON THE SALE OF UNUTIL IZED FSI IS CONCERNED, THE MATTER IS COVERED IN FAVOUR OF THE A PPELLANT BY THE DECISION OF THE JURISDICTIONAL ITAT, AHMEDABAD IN C ASE OF RADHE DEVELOPERS [2008] 23 SOT 420 (AHD.) WHICH HAS HELD THAT THE CONCEPT OF ELEMENT OF UNUTILIZED FSI SOLD IS IMAGIN ARY AND BASED ON SURMISES AND CONJUNCTURES. HONBLE TRIBUNAL DEAL T WITH THE SAME AS UNDER. ITA NO.1799/AHD/2013 INCOME TAX OFFICER VS. NIRMAN DEVELOPERS ASST.YEAR 2009-2010 - 8 - A QUESTION HAS ALSO BEEN RAISED BY THE REVENUE THA T THE PROFIT EARNED BY THE ASSESSEE ARE NOT FOR DEVELOPING AND B UILDING HOUSING PROJECT ALONE BUT FOR THE SALE OF EXTRA FSI , WHICH HAS NOT BEEN UTILIZED FOR DEVELOPING AND BUILDING HOUSING P ROJECT. ON A PERUSAL OF THE PROVISIONS OF SECTION 80-IB(10), WE FIND THAT IT IS NOT MANDATORY REQUIREMENT TO FULLY UTILIZE PERMISSIBLE FSI; THERE IS NO CONDITION AS TO FSI UNDER THE SCHEME OF THE PROVISI ON OF SECTION 80-IB(10)OF THE ACT; THERE IS NO QUESTION OF SELLIN G UNUSED FSI TO THE INDIVIDUAL BUYER FOR EACH PROJECT AND ALSO THER E IS NOT QUESTION OF CALCULATING THE PROFITABILITY ON FSI AS THE SAME HAS NOT BEEN CONTEMPLATED UNDER SECTION 80-IB(10) OF THE ACT. ON VERIFICATION OF THE SALE DEEDS EXECUTED IN FAVOUR OF BUYERS OF THE RESIDENTIAL HOUSES, IT IS CLEAR THAT THE ASSESSEE HAD MADE THIS SALE DEED FOR SALE OF PLOT OF LAND. FURTHER, ON VERIFICATION OF D EVELOPMENT AGREEMENT WITH THE LANDOWNER, WE FIND THAT HERE ALS O THE REFERENCE IS WITH RESPECT TO LAND AREA ONLY. IN BOTH THE DOCU MENTS ASSESSEE HAD NOT ACQUIRED RIGHTS AND HAS NOT RELINQUISHED RI GHTS WITH REFERENCE TO FSI. FURTHER, ON VERIFICATION OF APPRO VAL MAP FOR EACH UNIT IS WITH REFERENCE TO BUILT-UP AREA ONLY. UNDER THE CIRCUMSTANCES, THE ASSESSEE HAS NEVER DEALT WITH FS I, BOTH IN TERMS OF ACQUIRING RIGHTS IN THE LAND AND FOR RELINQUISHM ENT OF SUCH RIGHTS IN THE LAND. THE CALCULATION GIVEN IN APPROV ED PLAN IS OF MAXIMUM PERMISSIBLE FSI AND BY GIVING SUCH CALCULAT ION IT IS NOT MADE MANDATORY BY ANY PROVISION OF ANY ACT TO MAKE CONSTRUCTION TO THE FULLEST EXTENT OF MAXIMUM PERMISSIBLE FSI. T HE UTILIZATION OF FSI BY THE BUILDER DEVELOPER DEPENDS ON MANY FACTOR S LIKE SITUATION OF PLOT, THE TYPE OF LOCALITY AND THE TYP E OF BUYERS AFFORDABILITY. IT IS THE MARKET FORCE, WHICH DETERM INES THE AVERAGE SIZE OF THE RESIDENTIAL UNIT A COMMERCIAL DECISIO N, WHICH PREVAILS FOR THE PURPOSE OF CARRYING OUT THE BUSINESS AND FO R MAKING RESIDENTIAL UNITS AND NOT THE PERMISSIBLE MAXIMUM F SI. IT WOULD ALSO BE IMPOSSIBLE TO CONSTRUCT ANY HOUSING UNIT AS PER THE PROVISIONS OF SECTION 80-IB(10) BY UTILIZING THE MA XIMUM FSI. 7. THE UTILIZATION OF FSI BY THE BUILDER DEVELOPER DEP ENDS ON MANY FACTORS LIKE SITUATION OF PLOT, THE TYPE OF LOCALIT Y, AND THE TYPE OF ITA NO.1799/AHD/2013 INCOME TAX OFFICER VS. NIRMAN DEVELOPERS ASST.YEAR 2009-2010 - 9 - BUYERS AFFORDABILITY. THUS, IT IS THE MARKET FORCE , WHICH DETERMINES THE AVERAGE SIZE OF THE RESIDENTIAL UNIT . THE COMMERCIAL DECISION, WHICH WILL PREVAIL FOR THE PURPOSE OF CAR RYING OUT THE BUSINESS AND NOT THE PERMISSIBLE MAXIMUM FSI, WHICH WILL PREVAIL FOR MAKING RESIDENTIAL UNITS. IN THE NORMAL CIRCUMS TANCES ANY BUILDER DEVELOPER WOULD LIKE TO GAIN MAXIMUM OUT OF UTILIZATION OF FSI. 8. WE HAVE CONSIDERED RIVAL SUBMISSION AND GONE THROUG H THE IMPUGNED ORDER LEARNED AR HAS SUBMITTED A COPY OF O UR OWN CO- ORDINATE BENCH IN WHICH ON SIMILAR FACTS RELIEF WAS GRANTED TO THE ASSESSEE FOLLOWING THE CASE OF M/S SAKTI CORPORATIO N (SUPRA) AND M/S RADHE DEVELOPERS (SUPRA) IN WHICH RESPECTIVE AS SESSEE HAD DOMINATING CONTROL OVER THE PROJECT AND DEVELOPMENT THE LAND HAD THEIR OWN RISK AND COST AND THEREFORE, WERE ELIGIBL E FOR DEDUCTION UNDER SECTION 80IB(10) OF THE INCOME TAX ACT AND TH E FURTHER HOLD THAT THERE ARE NO MATERIAL BEFORE THEM TO TAKE OUT OF VIEW IN THE MATTER AND THEY WERE NOT INCLINED TO INTERFERE IN T HE ORDER PASSED BY THE CIT IN WHICH LEARNED CIT GAVE RELIEF TO THE ASSESSEE AND DISMISSED THE APPEAL OF THE DEPARTMENT. 9. LEARNED AR HAS ALSO CITED A JUDGMENT (2014) 44 TAXM ANN.COM 461 (GUJARAT), CIT(A)-(I) VS. SHREENATH INFRASTRUCTURE. 10. IN THIS CASE ALSO ASSESSEE HAD UNDERTAKEN THE DEVEL OPMENT OF HOUSING PROJECT AT ITS OWN RISK AND COST. THE LAND OWNER HAD ACCEPTED ONLY THE FULL PRICE OF THE LAND AND NOTHIN G FURTHER. THE ITA NO.1799/AHD/2013 INCOME TAX OFFICER VS. NIRMAN DEVELOPERS ASST.YEAR 2009-2010 - 10 - ENTIRE RISK OF INVESTMENT AND EXPENDITURE WAS THAT OF THE ASSESSEE. RESULTANTLY, PROFIT AND LOSS ALSO WOULD ACCRUE TO T HE ASSESSEE ALONE. 11. JUDGMENT OF OUR CO-ORDINATE BENCH IN THE MATTER FOL LOWING, THE CO-ORDINATE BENCH ORDER AND ORDER OF THE JURISDICTI ON HIGH COURT AS ENUMERATED ABOVE WE ARE NOT INCLINED TO INTERFER E IN THE ORDER PASSED BY THE LEARNED CIT(A) APPEAL. 12. IN THE RESULT, APPEAL OF THE DEPARTMENT WAS DISMISS ED. THIS ORDER PRONOUNCED IN OPEN COURT ON 29 /11/2016 SD/- SD/- (N.K. BILLAIYA) ( MAHAVIR PRASAD ) ACCOUNTANT MEMBER JUDICIAL MEMBER TRUE COPY AHMEDABAD; DATED 29/ 11/2016 PRITI YADAV !#$ %$ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. $ & / CONCERNED CIT 4. ( ) / THE CIT(A)-II, BARODA 5. ' **$ , $ , / DR, ITAT, AHMEDABAD 6. / / GUARD FILE. / BY ORDER, ' * //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD