The ITO, Ward-9(1), Ahmedabad V. M/s. Safal Associates, Ahmedabad

ITA 1968/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 89359 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 8 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 27-04-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 08-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D P GUPTA
• Assessee Lawyers: P M MEHTA
• Section: 143(3); 80IB

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER ./ ITA NO. 1968/AHD/2011 / ASSESSMENT YEAR: 2008-09 ITO, WARD 9(1), AHMEDABAD .. APPELLANT VS M/S. SAFAL ASSOCIATES, TOP FLOOR, SARTHIK ANNEXE, B/S. FUN-REPUBLIC, AHMEDABAD .. RESPONDENT PAN : ABFFS 8813 D REVENUE BY : SHRI D.P. GUPTA, CIT-DR ASSESSEE(S) BY : SHRI P.M. MEHTA, AR / DATE OF HEARING 27/04/2015 !' /DATE OF PRONOUNCEMENT 30/04/2015 $% $% $% $% / O R D E R PER SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER: THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEAL S)-XV, AHMEDABAD DATED 13.06.2011 FOR ASSESSMENT YEAR 2008 -09, ON THE FOLLOWING GROUNDS:- 1. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV, AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DIRECTIN G THE ASSESSING OFFICER TO ALLOW THE ASSESSEES CLAIM FOR DEDUCTION OF RS.32,72,64,595/- U/S 80IB(10) OF THE ACT. ITA NO. 1968/AHD/2011 ITO VS. SAFAL ASSOCIATES AY 2008-09 - 2 - 2. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV, AHMEDABAD HAS ERRED IN HOLDING THAT THE ASSESSEE FU LFILLS THE CONDITIONS LAID DOWN FOR CLAIMING DEDUCTION U/S 80IB(10) EVEN WHEN THE LAND WAS IN THE NAME OF SHER IN CO- OP. HOUSING SOCIETY PART-I AND II, AND JAY VAISHNO DEVI CO- OP. HOUSING SOCIETY, PART-VI WHICH ARE SEPARATE LEG AL ENTITIES IN THE EYE OF LAW AND THE ASSESSEE ENTERED INTO THE PROJECT BY A DEVELOPMENT AGREEMENT WITH THEM. THE E NTIRE RESPONSIBILITY TO EXECUTE THE HOUSING PROJECT(S) AN D ABIDE BY THE TERMS AND CONDITIONS OF ITS APPROVAL RIGHT FROM THE INCEPTION OF THE PROJECT(S) TILL ITS COMPLETION RES TS WITH THE SOCIETY. ASSESSEE WAS JUST A CONTRACTOR OF THE LAND CONSTRUCTING HOUSING PROJECTS AND NOT A DEVELOPER. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV, AHMEDABAD OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFF ICER. 4. IT IS THEREFORE PRAYED THAT THE ORDER OF THE LD. CO MMISSIONER OF INCOME-TAX (APPEALS)-XV, AHMEDABAD MAY BE SET-AS IDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 2. IN THE CASE OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION, THE ASSESSMENT WAS FRAMED U/S 143(3) OF THE ACT ON 09.12.2010, IN WHICH DISALLOWANCE OF RS.32,7 2,64,595/- WAS MADE BY THE ASSESSING OFFICER U/S 80IB(10) OF T HE ACT. 2.1 MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AUTHORITY, WHEREIN VARIOUS CONTENTIONS WERE RAISED ON BEHALF O F ASSESSEE AND HAVING GONE THROUGH THE SAME, CIT(A) OBSERVED T HAT THE ITAT IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2007-08 HAS DECIDED THE SIMILAR ISSUE, BY OBSERVING AS UNDE R:- 7. WE HAVE EXAMINED THE FACTS OF THE PRESENT CASE IN THE LIGHT OF THE DECISION IN THE CASE OF M/S. AMALTAS A SSOCIATES (SUPRA) AND FIND THAT THE ASSESSEE HAS SATISFIED AL L THE ITA NO. 1968/AHD/2011 ITO VS. SAFAL ASSOCIATES AY 2008-09 - 3 - REQUIREMENTS OF SECTION 80 IB (10) OF THE IT ACT IN THE MATTER. THE LEARNED COUNSEL FOR THE ASSESSEE REFERR ED TO THE TERMS OF THE DEVELOPMENT AGREEMENTS EXTENSIVELY DUR ING THE COURSE OF THE ARGUMENTS FOR THE HOUSING PROJECT PB -80 TO 104 WITH BOTH THE SOCIETIES FOR DEVELOPMENT AND CONSTRUCTION OF RESIDENTIAL HOUSING PROJECT AND IT PROVIDES THAT THE ASSESSEE HAS PURCHASED ALL SUBSTANTIVE DEVELOPMENT RIGHTS WHICH INCLUDES ALL OTHER RIGHTS FOR CONSIDERATION OF RS.30,76,675/- AND RS.1,02,08,853/ -. THE SAME IS ALSO DEBITED IN THE PROFIT & LOSS ACCOUNT O F THE ASSESSEE. THE SALE CONSIDERATION IS NOT DISPUTED AN D THE CONFIRMATION OF THE SOCIETIES FROM THEIR ACCOUNTS, COPIES OF THEIR BANK ACCOUNT AND COPY OF THE BANK ACCOUNT OF THE ASSESSEE AND LEDGER ACCOUNTS FROM THE ACCOUNTS OF T HE ASSESSEE HAVE BEEN FILED ON RECORD. IT IS ALSO CLAI MED THAT THE ASSESSEE HAS ALSO ENTERED INTO AGREEMENT TO SEL L THE LAND WITH THE SOCIETIES ON 23-5-2006 WHICH IS MENTI ONED IN THE SUBMISSION OF THE ASSESSEE REPRODUCED IN THE ASSESSMENT ORDER AS WELL AS IN THE STATEMENT OF FAC TS FILED BEFORE THE TRIBUNAL. THE DEVELOPMENT AGREEMENTS ENT ERED INTO BY THE ASSESSEE WAS OVER AND ABOVE THE AGREEME NT TO SELL TO ACQUIRE THE AFORESAID 4 RIGHTS AND DOMAIN O VER THE LAND IN QUESTION. ACCORDING TO THE DEVELOPMENT AGRE EMENTS IT WAS THE RESPONSIBILITY OF THE ASSESSEE FOR PLANN ING, SANCTION OF THE BUILDING PLAN, WORK OF CONSTRUCTION , DEVELOPMENT OF THE HOUSING PROJECTS ALONG WITH ALL EXPENDITURE TO BE INCURRED BY THE ASSESSEE FOR DEVE LOPMENT OF THE PROPERTY IN QUESTION. THE ASSESSEE IS ALSO E NTITLED TO RECEIVE THE SALE CONSIDERATION AND SHALL ACCEPT ALL THE PAYMENTS FROM THE BUYERS. THE DETAILS OF THE SAME A RE FILED ON RECORD TO SHOW THAT EVEN IN THE SALE DEEDS THE N AME OF THE ASSESSEE IS MENTIONED ALONG WITH HISTORY AS TO HOW THE PROPERTY HAS BEEN DEVELOPED BY THE ASSESSEE AS A DE VELOPER AND THAT THE ENTIRE SALE CONSIDERATION IS RECEIVED BY THE ASSESSEE. THE LEARNED COUNSEL FOR THE ASSESSEE ALSO SUBMITTED THAT AUDA HAS GRANTED PERMISSION TO CONST RUCT 324 RESIDENTIAL UNITS IN 65310.22 SQ. M. OF LAND AN D IN THE PERMISSION FOR DEVELOPMENT THE NAME OF ONE OF THE S OCIETIES AND OTHERS AND SAFAL ENGINEERING ASSOCIATES, 4TH FL OOR SHARTHIK ANNEXE, NR. FUN REPUBLIC SCHOOL, AHMEDABAD IS ALSO MENTIONED. THE ADDRESS MENTIONED IN THE PERMIS SION ITA NO. 1968/AHD/2011 ITO VS. SAFAL ASSOCIATES AY 2008-09 - 4 - FOR DEVELOPMENT IS OF THE ASSESSEE AND THE WORD OT HER IS ALSO MENTIONED WHICH IS NOT APPRECIATED BY THE AUTH ORITIES BELOW. THE BUILDING USE CERTIFICATE IS ISSUED IN TH E NAME OF ONE OF THE SOCIETIES AS PER THE TERMS OF THE PERMIS SION FOR DEVELOPMENT FOR THE SAME AREA AND FOR THE SAME NUMB ER OF RESIDENTIAL UNITS. WHEN THE PERMISSION FOR DEVELOPM ENT AND BUILDING USE CERTIFICATES ARE CONSIDERED IN THE LIG HT OF THE DEVELOPMENT AGREEMENTS, IT WOULD CLARIFY THAT THE P ROPERTY NUMBERS ARE SAME AS HAS BEEN MENTIONED BY AUDA AND THAT THERE IS NO OBJECTION FROM THE SIDE OF THE SOC IETIES. THEREFORE, IT IS CLEAR THAT THE BUILDING PLANS HAVE BEEN SANCTIONED IN RESPECT OF THE LAND ACQUIRED BY THE A SSESSEE THROUGH THE AGREEMENT TO SELL AND THE DEVELOPMENT AGREEMENTS IN QUESTION. THE DETAILS ON RECORD SUPPO RTS THE CASE OF THE ASSESSEE THAT THE ASSESSEE HAS UNDERTAK EN THE ENTIRE DEVELOPMENT OF THE HOUSING PROJECT FOR WHICH THE PLANS WERE APPROVED AND PERMISSION TO USE WAS OBTAI NED IN RESPECT OF THE SAME PROPERTY IN QUESTION, THE ASSES SEE INCURRED ALL THE EXPENDITURE FOR DEVELOPMENT OF THE HOUSING PROJECT AND RECEIVED THE ENTIRE SALE CONSIDERATION FROM THE BUYERS. IT WOULD, THEREFORE, PROVE THAT THE ASSESSE E UNDERTAKEN 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 PROPERTY IN QUESTION AND THE DETAILS OF THE SALE PR OCEEDS RECEIVED FROM THE BUYERS HAVE ALSO BEEN MENTIONED I N THE TOTAL SALE PROCEEDS IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE. THE FACTS OF THE CASE AND EVIDENCES ON RECORD WOULD PROVE THAT THE ASSESSEE ENTERED INTO DEVELOPMENT AGREEMEN TS AND AGREEMENT TO SELL WITH THE SOCIETIES FOR CONSIDERAT ION. ALL THE RESPONSIBILITIES FOR CARRYING OUT CONSTRUCTION, PER MISSION AND DEVELOPMENT OF THE PROJECT LIE WITH THE ASSESSE E. THE REAL OWNER OF THE LAND I.E. SOCIETIES WAS ONLY TO C O-OPERATE WITH THE ASSESSEE IN CARRYING OUT THE DEVELOPMENT A ND TO EXECUTE NECESSARY DOCUMENTS WHENEVER REQUIRED BY TH E ASSESSEE AS A DEVELOPER. THE SOCIETIES HAVE HANDED OVER PHYSICAL POSSESSION OF THE LAND TO THE ASSESSEE AS A DEVELOPER FOR CARRYING OUT DEVELOPMENT OF HOUSING P ROJECT. THE SOCIETIES WERE NOT LEFT WITH ANY RIGHT, INTERES T OR TITLE IN THE DEVELOPMENT WHICH WAS CARRIED OUT BY THE ASSESS EE. THE MOTIVES OF THE SOCIETIES WERE NOT TO DEVELOP, CONST RUCT OR ITA NO. 1968/AHD/2011 ITO VS. SAFAL ASSOCIATES AY 2008-09 - 5 - CARRYING OUT ANY BUSINESS AS A BUILDER OR DEVELOPER AND PRACTICALLY NOTHING WAS LEFT WITH THEM. FOR ALL INT ENT 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 AN D THE SOCIETIES AS PER THE DEVELOPMENT AGREEMENTS PROVIDE D ALL THE DOMINANT CONTROL AND RIGHTS OVER THE LAND TO TH E ASSESSEE AND THE ASSESSEE DEVELOPED AND CONSTRUCTED THE HOUSING PROJECT AT ITS OWN COST AND WOULD REMAIN OW NER OF THE BUILDING WITHOUT ANY INTERFERENCE FROM THE SOCI ETIES. THE DEVELOPMENT AGREEMENTS IN QUESTION DID NOT PROVIDE THAT THE ASSESSEE WOULD BE WORKING AS A CONTRACTOR OR AG ENT ON BEHALF OF THE SOCIETIES. THE AGREEMENTS IN QUESTION WOULD NOT BE REGARDED TO BE THE JOINT VENTURE OR COLLABOR ATION AGREEMENT. IT WAS THE AGREEMENTS UNDER WHICH THE AS SESSEE WAS ENTITLED TO DEVELOP THE HOUSING PROJECT ON THE LAND ON ITS OWN COST AND IN THE MANNER IN WHICH THE ASSESSE E MIGHT HAVE DECIDED. THE AUTHORITIES BELOW REJECTED THE CL AIM OF THE ASSESSEE BECAUSE OUT OF 324 UNITS, 4 RESIDENTIAL UN ITS HAVE BUILT UP AREA IN EXCESS OF 1500 SQ. FT., ON TWO GRO UNDS THAT ADDITIONAL CONSTRUCTION HAVE BEEN CARRIED OUT AND I F OPEN TERRACE AREA IS ADDED THE CONSTRUCTED AREA IN REGAR D TO ALL THE SAID 4 FLATS, TOTAL AREA IS IN EXCESS OF 1500 S Q. FT. THE ASSESSEE FILED COPIES OF 4 SALE DEEDS AT PB- 181 TO 269 OF THE PAPER BOOK IN WHICH THE CONSTRUCTED AREA BY THE ASS ESSEE WAS BELOW 1500 SQ. FT. WHICH IS SUPPORTED BY POSSES SION- UM-DECLARATION LETTERS OF THE DEVELOPERS FILED AT P B-295 TO 298 OF THE PAPER BOOK. ACCORDING TO THE ASSESSEE TH E ENTIRE CONSTRUCTION OF THE UNITS REFERRED TO ARE MADE BY T HE DEVELOPER AS PER APPROVED PLAN AND ONLY ON THAT BAS IS BUILDING USE PERMISSION HAS BEEN GRANTED WHICH WAS BELOW 1500 SQ. FT. AFTER GIVING POSSESSION ON SALE TO THE OCCUPANTS, THE OCCUPANTS MIGHT HAVE MADE SOME ADDIT IONS WHICH ARE ALSO CONFIRMED BY THE DVO IN HIS REPORT P B-293. THEREFORE, THE ASSESSEE WOULD NOT BE RESPONSIBLE FO R THE LATER DEVELOPMENT AFTER RECEIPT OF SALE CONSIDERATI ON. EVEN, THE OWNERS OF THE FLATS WHO HAVE PURCHASED THE RESI DENTIAL UNITS FROM THE ASSESSEE HAVE GIVEN CONFIRMATION FOR RAISING ADDITIONAL CONSTRUCTION AFTER RECEIVING THE SALE CONSIDERATION BY THE ASSESSEE. COPIES OF THE CONFIR MATIONS ITA NO. 1968/AHD/2011 ITO VS. SAFAL ASSOCIATES AY 2008-09 - 6 - ARE ALSO FILED IN THE PAPER BOOK. THEREFORE, ADDITI ONAL CONSTRUCTION CARRIED OUT BY THE SUBSEQUENT FLAT OWN ERS CANNOT BE TAKEN INTO CONSIDERATION AGAINST THE ASSE SSEE FOR NOT COMPLYING WITH THE PROVISIONS OF LAW. WITH REGA RD TO ISSUE OF INCLUSION OF OPEN TERRACE IN THE BUILT UP AREA, THE ISSUE IS CONSIDERED IN DETAIL IN THE CASE OF M/S. A MALTAS ASSOCIATES (SUPRA) AND IT WAS HELD THAT THE AUTHORI TIES BELOW WERE NOT JUSTIFIED IN REJECTING THE CLAIM OF THE ASSESSEE BY TAKING THE OPEN TERRACE AS BALCONY/VERA NDAH. IT WAS, THEREFORE, HELD THAT OPEN TERRACE CANNOT BE IN CLUDED IN THE BUILT UP AREA. WITH REGARD TO THE DISCREPANCY O F SURVEY NUMBERS MENTIONED IN THE APPROVAL AND B. U. PERMISS ION ISSUED BY AUDA, LEARNED COUNSEL FOR THE ASSESSEE EX PLAINED THAT THERE WAS INADVERTENT MISTAKE IN ENGLISH TRANS LATION AND IF THE ORIGINAL IS TAKEN INTO CONSIDERATION NO DISCREPANCY IS NOTED. THE LEARNED COUNSEL FOR THE A SSESSEE EXPLAINED THAT DEVELOPMENT PERMISSION WAS RECEIVED FOR VARIOUS SURVEY NUMBERS WHICH WAS JOINTLY RECEIVED B Y THE ASSESSEE ALONG WITH OTHER PERSONS FOR A GREATER ARE A BUT THE ASSESSEE WAS GRANTED PERMISSION TO CONSTRUCT IN 179 38 SQ. M. OF AREA FOR 324 RESIDENTIAL UNITS ONLY. THE SURV EY NUMBERS OF THE LAND IN QUESTION MATCH WITH THE DEVELOPMENT AGREEMENTS ETC. AS IS CLARIFIED BY THE LEARNED COUNSEL FOR THE ASSESSEE. IN BRIEF, THE SAME ARE ME NTIONED AT PB-91, 95 AND PB- 103A. SINCE THE APPROVAL OF TH E DEVELOPMENT WAS GRANTED FOR 324 RESIDENTIAL UNITS A ND ON THE SAME BASIS BUILDING USE PERMISSION IS GRANTED F OR 324 RESIDENTIAL UNITS DEVELOPED BY THE ASSESSEE WHICH W ERE AS PER THE TERMS AND CONDITIONS STIPULATED IN THE DEVE LOPMENT PERMISSION AND THAT THERE WAS NO OBJECTION FROM THE SIDE OF THE SOCIETIES, WE DO NOT FIND ANY DISCREPANCY FOR A NY SURVEY NUMBER FOR CONSTRUCTION OF THE PROPERTY IN QUESTION . WE MAY ALSO NOTE HERE THAT THE COMPETENT AUTHORITIES W OULD NEVER GRANT PERMISSION TO RAISE CONSTRUCTION WITHOU T VERIFYING THE SURVEY NUMBERS/PLOT NUMBERS OF THE PR OPERTY IN QUESTION. THE COMPETENT AUTHORITIES ALWAYS VERIF Y THE AREA OF THE PROPERTY ALONG WITH THEIR TITLE NUMBER BEFORE GRANTING PERMISSION FOR RAISING CONSTRUCTION IN THE PROPERTY. MOREOVER, THE AO HAS NOT MADE OUT ANY CASE IF THE A SSESSEE RAISED CONSTRUCTION IN OTHERS PROPERTY. EVEN IF, T HE CONTENTION OF THE DEPTT. IS ACCEPTED THAT THE ASSES SEE RAISED ITA NO. 1968/AHD/2011 ITO VS. SAFAL ASSOCIATES AY 2008-09 - 7 - CONSTRUCTION IN SOME OTHER AREA/SURVEY NUMBER, BUT NOBODY CAME FORWARD TO OBJECT TO THE RAISING OF THE CONSTRUCTION BY THE ASSESSEE IN THEIR PROPERTY. THE HUGE HOUSING COMPLEX CAN NEVER BE RAISED IN A DAY OR IN A NIGHT, IT WOULD TAKE LONG PERIOD, THEREFORE, THERE WOULD B E BOUND TO BE OBJECTION FROM THE OWNER OF THE LAND IF THEIR LANDS HAVE BEEN ENCROACHED BY THE ASSESSEE. HOWEVER, THE AO HAS NOT MADE OUT ANY SUCH CASE AGAINST THE ASSESSEE . MOREOVER, REQUIREMENT OF SECTION 80 IB (10) OF THE IT ACT IS THAT THE ASSESSEE HAD UNDERTAKEN DEVELOPMENT AND BUILDING HOUSING PROJECT WHICH IS APPROVED BY THE L OCAL AUTHORITIES AND THAT CONSTRUCTION COMMENCED AND COMPLETED WITHIN THE STIPULATED PERIOD WITHIN THE PRESCRIBED AREA. THE POINTS RAISED BY THE AUTHORITI ES BELOW ARE IRRELEVANT AS AGAINST SPECIFIC REQUIREMENT OF S ECTION 80 IB (10) OF THE IT ACT. THE CLAIM OF THE ASSESSEE FO R DEDUCTION HAS BEEN DISALLOWED ON IRRELEVANT CONSIDERATION WHI CH HAS NOT BEEN PROVIDED UNDER THE ABOVE PROVISIONS. THE L EARNED COUNSEL FOR THE ASSESSEE HAS BEEN ABLE TO EXPLAIN T HE DISCREPANCY IF ANY NOTED BY THE AUTHORITIES BELOW W ITH REGARD TO THE SURVEY NUMBERS. IT IS NOT IN DISPUTE THAT THE ASSESSEE BEING A DEVELOPER CONSTRUCTED THE HOUSING PROJECT AS PER THE DEVELOPMENT AGREEMENTS BY INCURRING TOTA L EXPENDITURE AND RECEIVED THE SALE CONSIDERATION. TH EREFORE, THE ASSESSEE IS ABLE TO SATISFY THE REQUIREMENT OF SECTION 80 IB (10) OF THE IT ACT. WE MAY ALSO NOTE THAT ONCE P LAN IS APPROVED BY AUDA ON PAPERS SUBMITTED BY THE ASSESSE E AND OTHERS, IT WOULD BE DEEMED APPROVAL OF CONSTRUC TION OF HOUSING UNITS IN FAVOUR OF THE ASSESSEE, MORE SO, W HEN THE ASSESSEE ENTERED INTO AGREEMENTS FOR DEVELOPING THE WHOLE OF THE PROPERTY. THEREFORE, OBJECTION OF THE AUTHOR ITIES BELOW, THE NAME OF THE ASSESSEE IS NOT MENTIONED IN THE PERMISSION OR SURVEY NUMBERS ARE DIFFERENT, ARE NOT SUSTAINABLE IN LAW. THE FACTS OF THE CASE, IF CONSI DERED IN THE LIGHT OF THE DECISIONS OF ITAT AHMEDABAD BENCH IN T HE CASES OF RADHE DEVELOPERS, SHAKTI CORPORATION AND M /S. AMALTAS ASSOCIATES (SUPRA), WE ARE OF THE VIEW THE ISSUE IS NOW FULLY COVERED IN FAVOUR OF THE ASSESSEE FOR GRA NT OF DEDUCTION U/S 80 IB(10) OF THE IT ACT BECAUSE THE A SSESSEE HAS ACQUIRED DOMINANT RIGHT OVER THE LAND AND HAS DEVELOPED THE HOUSING PROJECT BY INCURRING ALL THE EXPENSES ITA NO. 1968/AHD/2011 ITO VS. SAFAL ASSOCIATES AY 2008-09 - 8 - AND TAKING ALL RISKS INVOLVED THEREOF. THE CRUX OF THE MATTER WOULD BE THAT ASSESSEE HAS ACQUIRED THE LAND IN QUE STION AND HAS DEVELOPED THE HOUSING PROJECT AT ITS OWN CO ST AS PER THE REQUIREMENT OF SECTION 80 IB (10) OF THE IT ACT. THEREFORE, WE ARE OF THE VIEW THE ASSESSEE WOULD BE ENTITLED FOR DEDUCTION U/S 80 IB (10) OF THE IT ACT. AS REGA RDS ALTERNATE CONTENTION OF THE ASSESSEE WITH REGARD TO PRO RATA DEDUCTION, THE ISSUE IS ALREADY DECIDED IN FAVOUR O F THE ASSESSEE IN THE CASE OF M/S. AMALTAS ASSOCIATES (SU PRA) BY FOLLOWING THE DECISION OF ITAT NAGPUR BENCH IN THE CASE OF AIR DEVELOPERS (SUPRA), THEREFORE, THE AUTHORITIES BELOW SHOULD NOT HAVE REJECTED THE CLAIM OF THE ASSESSEE AT LEAST ON ALTERNATE CONTENTION THAT THE ASSESSEE WOULD BE ENTITLED FOR DEDUCTION U/S 80IB (10) OF THE IT ACT ON PRO RA TA BASIS. HOWEVER, WE HAVE HELD THAT THE EXTENSION OF THE 4 U NITS IS NOT DONE BY THE ASSESSEE AND THAT OPEN AREA IS NOT PART OF BALCONY/VERANDAH, THEREFORE, ACCORDING TO THE SUBMI SSION OF THE ASSESSEE, THE BUILT UP AREA OF THE ASSESSEE WAS WITHIN THE PRESCRIBED LIMIT, THEREFORE, THERE IS NO NEED T O GIVE FURTHER FINDING WITH REGARD TO ALTERNATE CLAIM OF T HE ASSESSEE. CONSIDERING THE FACTS OF THE CASE IN THE LIGHT OF THE ABOVE DECISIONS, WE ARE OF THE VIEW THE ISSUE IS FU LLY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE TR IBUNAL IN THE CASE OF M/S. AMALTAS ASSOCIATES (SUPRA) AS IS C ONTENDED BY THE LEARNED COUNSEL FOR THE ASSESSEE. WE ARE OF THE VIEW THAT ASSESSEE FULFILLED THE CONDITIONS AND REQUIREM ENTS OF SECTION 80 IB (10) OF THE IT ACT, THEREFORE, THE CL AIM OF THE ASSESSEE FOR DEDUCTION SHOULD NOT HAVE BEEN DENIED BY THE AUTHORITIES BELOW. WE DIRECT THE AO TO GRANT DEDUC TION TO THE ASSESSEE U/S 80 IB (10) OF THE IT ACT AS CLAIME D BY THE ASSESSEE. 2.2 FOLLOWING THE AFORESAID DECISION OF TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2007-08, THE CIT(A) GR ANTED RELIEF TO THE ASSESSEE AND DIRECTED THE ASSESSING O FFICER TO ALLOW THE CLAIM OF THE ASSESSEE OF RS.32,72,64,595/- U/S 80IB(10) OF THE ACT. ITA NO. 1968/AHD/2011 ITO VS. SAFAL ASSOCIATES AY 2008-09 - 9 - 2.3 NOTHING CONTRARY WAS BROUGHT TO OUR KNOWLEDGE O N BEHALF OF THE REVENUE. THE FACTS UNDER THE YEAR CONSIDERAT ION ARE ALSO SIMILAR TO THE FACTS OF ASSESSMENT YEAR 2007-08. TH EREFORE, WE ARE NOT INCLINED TO INTERFERE IN THE FINDINGS OF TH E CIT(A) WHO HAD RIGHTLY GRANTED RELIEF TO THE ASSESSEE BY FOLLO WING THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2007-08 AS DISCUSSED ABOVE. ACCORDINGLY, THE S AME IS UPHELD. 3. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE COURT ON 30TH OF APRIL, 201 5 AT AHMEDABAD. SD/- SD/- (ANIL CHATURVEDI ) ACCOUNTANT MEMBER ( SHAILENDRA KUMAR YADAV ) JUDICIAL MEMBER AHMEDABAD; DATED 30/04/2015 *BT $% $% $% $% &' &' &' &' ($' ($' ($' ($' / COPY OF THE ORDER FORWARDED TO : 1. )* / THE APPELLANT 2. &+)* / THE RESPONDENT. 3. , / CONCERNED CIT 4. , ( ) / THE CIT(A), 5. '-. & , , / DR, ITAT, AHMEDABAD 6. . / / GUARD FILE. $% $% $% $% / BY ORDER, //TRUE COPY// 0 00 0 / 1 1 1 1 (DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD