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

ITA 3152/AHD/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1618 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 4 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 05-05-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 12-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAMES KURIEN
• Assessee Lawyers: A C BRAHMAKSHATRIYA
• Keywords: Capital asset; Retrospective amendment
• Section: 143(3); 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH AHMEDABAD BEFORE SHRI RAJPAL YADAV, JM, & SHRI MANISH BORA D, AM. ITA NO.3152 /AHD/2011 ASST. YEAR: 2008-09 TO, WD-9(2), AHMEDABAD, VS. M/S HARIOM CORPORATION, 62, VIJAYANT PARK SOCIETY, SAIJPUR BOGHA ROAD, HIRAWADI, AHMEDABAD. APPELLANT RESPONDENT PAN AADFH 9994 H APPELLANT BY SHRI JAMES KURIEN, DR RESPONDENT BY SHRI A. C. BRAHMAKSHATRIYA, AR DATE OF HEARING: 5/5/2016 DATE OF PRONOUNCEMENT: 10/5/2016 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER . REVENUE IS IN APPEAL AGAINST THE ORDER OF CIT(A) X V, AHMEDABAD, DATED 20 TH OCTOBER, 2011. ASSESSMENT U/S 143(3) OF I.T. ACT, 1961 (IN SHORT AS THE ACT), WAS FRAMED ON 27.1 2.2010 BY ITO, WD-9(2), AHMEDABAD. REVENUE HAS RAISED THE FOLLOWIN G GROUNDS OF APPEAL :- 1) THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV, AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE ASSESSIN G OFFICER TO ALLOW THE ASSESSEE'S CLAIM FOR DEDUCTION OF RS.95,56,580/- U/ S. 80IB(10) OF THE L.T. ACT. ITA NO. 3152/AHD/2011 ASST. YEAR 2008-09 2 2). THE LD. COMMISSIONER OF INCOME-TAX (APPEALS )-XV, AHMEDABAD HAS ERRED IN HOLDING THAT THE ASSESSEE FULFILLS THE CONDITION S LAID DOWN FOR CLAIMING DEDUCTION U/S.80IB(10) EVEN WHEN THE LAND WAS IN TH E NAME OF PARTH BUNGLOWS (NANA CHILODA) CO-OP. HOUSING SOCIETY LTD. , WHICH IS A SEPERATE LEGAL ENTITY IN THE EYE OF LAW AND THE ASSESSEE ENT ERED INTO THE PROJECT BY A DEVELOPMENT AGREEMENT WITH THE SOCIETY. THE ENTIR E RESPONSIBILITY TO EXECUTE THE HOUSING PROJECT AND ABIDE BY THE TERMS AND CONDITIONS OF ITS APPROVAL RIGHT FROM THE INCEPTION OF THE PROJECT TI LL ITS COMPLETION RESTS WITH THE SOCIETY. THE LOCAL AUTHORITY HAD GRANTED PERMIS SION FOR DEVELOPMENT TO THE SOCIETY. ASSESSEE WAS JUST A CONTRACTOR OF T HE LAND OWNERS CONSTRUCTING 81 RESIDENTIAL UNITS OF THE SCHEME TIT LED ' PARTH BUNGLOWS ' AND NOT A DEVELOPER. 3). ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV, AHMEDABAD OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 4). IT IS THEREFORE, PRAYED THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV, AHMEDABAD MAY BE SET-ASIDE AND THAT O F THE ASSESSING OFFICER BE RESTORED. 2. BRIEFLY STATED FACTS AS CULLED OUT FROM THE RECO RDS ARE THAT ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSIN ESS OF DEVELOPMENT AND CONSTRUCTION OF RESIDENTIAL HOUSES. IN THE RETURN OF INCOME FOR ASST. YEAR 2008-09 WAS FILED ON 10.6.200 8 DECLARING TOTAL INCOME OF RS.NIL AFTER CLAIMING DEDUCTION OF RS.95, 56,579/-. CASE WAS SELECTED FOR SCRUTINY ASSESSMENT. NOTICE U/S 14 3(2) WAS ISSUED ON 19.8.2009. ASSESSING OFFICER DENIED DEDUCTION TO ASSESSEE U/S 80IB(10) OF THE ACT FOR RS.95,56,579/- BY OBSERVING AS UNDER :- 1. THE ASSESSEE IS NOT BOTH DEVELOPER AND BUILDER AS REQUIRED BY THE PROVISIONS OF SECTION 80IB(10). ASSESSEE IS- NO T A DEVELOPER BECAUSE THE ASSESSEE DID NOT CONCEPTUALIZE AND OWN THE PROJECT IN AS MUCH AS THE ASSESSEE IS NOT THE OWNER OF THE LAN D AND THE APPROVAL WAS NOT ISSUED TO IT BY THE LOCAL AUTHORIT Y. 2. THE ASSESSEE HAS NOT UNDERTAKEN ANY INVESTMENT R ISK IN THE PROJECT. THE RISK TAKEN IS PRINCIPALLY BY THE SOCIETY. THE A SSESSEE ENTERED ITA NO. 3152/AHD/2011 ASST. YEAR 2008-09 3 INTO THE PROJECT BY A DEVELOPMENT AGREEMENT WITH TH E LAND OWNER AND CONSTRUCTION WAS DONE AS PER THE AGREEMENT AND HENCE THE ASSESSEE IS MERELY A CONTRACTOR FOR THE PURPOSES OF CONSTRUCTION OF THE PROJECT. 3. THE ASSESSEE HAS NOT SOLD ANY UNIT TO THE PURCHA SER BUT THE SOCIETY HAS EXECUTED THE SALE DEEDS AS A SELLER AND THE ASS ESSEE JOINED ONLY AS A BOOKING AGENT AND THE BUILDER CONTRACTOR. THIS ALSO PROVES THAT THE ASSESSEE WAS MERELY A CONTRACTOR/ AGENT OF THE SOCIETY. 4. AS PER THE AMENDMENT TO SECTION 80IB BY THE FINA NCE ACT, 2009, A WORKS CONTRACTOR WHO EXECUTES THE WORK AWARDED BY A NY PERSON IS NOT ELIGIBLE FOR THE DEDUCTION U/S 80IB. ANY PERSON INCLUDES THE PARTH BUNGLOWS (NANA CHILODA) CO-OP. HOUSING SOCIET Y LTD. WHICH IS A LEGAL ENTITITY. AS A RESULT, INCOME WAS ASSESSED AT RS.95,56,579/-. 3. AGGRIEVED, ASSESSEE WENT IN APPEAL BEFORE LD. CI T(A), WHO ON THE BASIS OF HIS EXAMINATION OF DEVELOPMENT AGREEME NT BETWEEN THE LAND OWNER(S) AND THE ASSESSEE ADJUDICATED THE ISSU E AND HELD THAT ASSESSEE IS A DEVELOPER AND NOT A MERE WORKS CONTRA CTOR AND FURTHER RELYING ON THE DECISION OF THE CO-ORDINATE BENCH IN THE CASE OF SHAKTI CORPORATION, BARODA IN ITA NO.1503/AHD/2008 IN ASST . YEAR 2005-06 DELETED THE ADDITION MADE BY LD. ASSESSING OFFICER AND ALLOWED THE DEDUCTION U/S 80IB(10) TO THE ASSESSEE AT RS.95,56, 579/-. 4. AGGRIEVED, REVENUE IS NOW IN APPEAL BEFORE THE T RIBUNAL. 5. LD. DR SUPPORTED THE ORDER OF ASSESSING OFFICER. ITA NO. 3152/AHD/2011 ASST. YEAR 2008-09 4 6. ON THE OTHER HAND, LD. AR SUBMITTED THAT ASSESSE E FIRM ACTED IN THE CAPACITY OF A DEVELOPER AND NOT A MERE CONTRACT OR AS THE PARTNERS OF THE ASSESSEE FIRM TOOK INITIATIVE TO DESIGN AND CONCEIVE THE HOUSING PROJECT AND ALSO FORMED CO-OPERATIVE HOUSIN G SOCIETY FOR SMOOTH ADMINISTRATION POST COMPLETION OF HOUSING PR OJECT. INVESTMENT IN THE LAND, NOC. CHARGES, PLAN PASSING EXPENSES AN D ALL OTHER INCIDENTAL EXPENSES OF THE HOUSING PROJECT WERE BOR NE BY THE ASSESSEE FIRM AND WORKED AS DEEMED OWNER BY VIRTUE OF RIGHT OF POSSESSION OVER THE LAND AND STRUCTURE DEVELOPED ON IT AS PER DEVELOPMENT AGREEMENT ENTERED INTO BETWEEN THE HOUS ING SOCIETY AND THE ASSESSEE. LD. AR FURTHER SUBMITTED THAT ASS ESSEE FIRM PREPARED THE PLAN, GOT IT APPROVED BY LOCAL AUTHORI TY, ENGAGED ARCHITECT/STRUCTURAL ENGINEERS AND MADE FOLLOW UPS TO COMPLETE THE HOUSING PROJECT IN A FAIR WAY AND FURTHER MADE SUIT ABLE DEVELOPMENT OF THE PROJECT FOR GETTING ALL THE RESIDENTIAL UNIT S READY TO SELL AND ALL THE BROCHURES FOR BOOKING OR INFORMATION WERE HAVIN G THE NAME AND ADDRESS OF THE ASSESSEE FIRM. LD. AR ALSO SUBMITTED THAT AS PER DEVELOPMENT AGREEMENT ASSESSEE FIRM HAS ISSUED RECE IPTS, ALLOTMENT LETTERS, POSSESSION LETTERS AND ALL THE DOCUMENTS A ND HAS FIXED THE CONSIDERATION/PRICE WITH THE PROPOSED BUYERS/CUSTOM ERS FOR THE ACTUAL USERS AND, THEREFORE, ASSESSEE FIRM CANNOT BE TERME D JUST AS A CIVIL CONTRACTOR BUT IN ALL FAIRNESS ASSESSEE IS A DEVELO PER OF RESIDENTIAL HOUSING PROJECT AND ELIGIBLE FOR DEDUCTION U/S 80IB (10) OF THE ACT. LD. CIT(A) HAS RIGHTLY DELETED THE ADDITION. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. REVENUE HAS RAISED VARIOUS GROUNDS OF AP PEAL BUT THE ITA NO. 3152/AHD/2011 ASST. YEAR 2008-09 5 SOLITARY GRIEVANCE REVOLVES ROUND THE SINGLE ISSUE THAT LD. CIT(A) ERRED IN DIRECTING THE ASSESSING OFFICER TO ALLOW A SSESSEES CLAIM FOR DEDUCTION U/S 80IB(10) OF THE ACT AT RS.95,56,579/- , EVEN WHEN THE LAND ON WHICH THE PROJECT NAMELY PARTH BUNGLOWS CO- OP. HOUSING SOCIETY LTD. WAS NOT OWNED BY ASSESSEE AND THE ENTI RE RESPONSIBILITY TO EXECUTE THE HOUSING PROJECT AND ABIDE BY THE TER MS AND CONDITIONS OF ITS APPROVAL RIGHT FROM THE INCEPTION OF THE PRO JECT TILL ITS COMPLETION RESTS WITH THE SOCIETY AND ASSESSEE IS MERELY A CON TRACTOR AND NOT A DEVELOPER. FROM GOING THROUGH THE RECORD, WE OBSERV E THAT THE LAND BEARING PLOT NO.7/TP SCHEME NO.99 NANA CHILODA HA VING AN AREA OF 8,317 SQ. MTRS. WAS PURCHASED BY PARTH BUNGLOWS (NANA CHILODA) CO-OP. HOUSING SOCIETY LTD. AND ON THIS LAND PREVIO US OWNER WAS ACCORDED PERMISSION BY LOCAL AUTHORITY FOR DEVELOPM ENT AND CONSTRUCTION OF THE PROJECT DURING FINANCIAL YEAR 2 005-06 ON 2 ND JUNE, 2005 AND THEREAFTER THE ASSESSEE ENTERED INTO A DEV ELOPMENT AGREEMENT WITH PARTH BUNGLOWS CO-OP. HOUSING SOCIET Y LTD. WE OBSERVE THAT FOLLOWING EXPLANATION BELOW SECTION 80 IB(10) OF THE ACT WAS INSERTED WITH RETROSPECTIVE EFFECT FROM 1.4.200 1 :- EXPLANATION FOR THE REMOVAL OF DOUBTS, IT IS HEREBY DECLARE D THAT NOTHING CONTAINED IN THIS SUB-SECTION SHALL APPLY T O ANY UNDERTAKING WHICH EXECUTES THE HOUSING PROJECT AS A WORKS CONTRACT AWARDED BY ANY PERSON (INCLUDING THE CENTRAL OR STATE GOVERNMENT). NOW IN ORDER TO EXAMINE AS TO WHETHER THE ASSESSEE IS A DEVELOPER, WE OBSERVE THAT ASSESSEE HAS CARRIED OUT VARIOUS AC TIVITIES RIGHT FROM ITA NO. 3152/AHD/2011 ASST. YEAR 2008-09 6 THE INCEPTION OF THE PROJECT TILL THE SALE OF LAST RESIDENTIAL UNIT AND THE SAME ARE ENUMERATED BELOW :- SR.NO. TITLE AS A DEVELOPER 1. INITIATION CONCEPTION THE PARTNERS OF THE ASSESSEE FIRM HAVE TAKEN INITIATIVE AND HAD DESIGNED & CONCEIVED THE HOUSING PROJECT AND FLOATED IT. 2 FORMATION CO-OP. HSG. SO, FORMED FOR SMOOTH ADMINI STRATION SUBSEQUENTLY ON COMPLETION OF THE HOUSING PROJECT. 3 RELATIONSHIP THE OFFICER-BEARERS OF THE SOCIETY ARE NEAR RELATIVES OF THE PARTNERS OF THE FIRM. 4 INVESTMENT THE INVESTMENT OF LAND (BY THE PARTNERS OF THE FIRM) N.A. CHARGES + PLAN PASSING EXPENSES + ALL OTHER INCIDENTAL EXPENSES OF THE HOUSING PROJECT BORNE BORNE BY THE ASSESSEE-FIRM. 5. OWNERSHIP DEEMED OWNER BY VIRTUE OF RIGHT OF POSSES SION OVER THE LAND & STRUCTURE DEVELOPED ON IT AS PER DEVELOPMENT AGREEMENT PARA -5. 6 BROCHURE NAME/ADDRESSES/TELE NO. OF THE ASSESSEE FI RM IS VERY WELL APPEARED IN THE BROCHURE FOR BOOKING OR INFORMATION OF THE HOUSING PROJECT IS FLOATED. 7 PREPARATION OF PLANS THE ASSESSEE FIRM HAS PREPARED THE PLAN/GOT IT APPROVED FROM LOCAL AUTHORITY, ENGAGED ARCHITECT/STRUCTURAL ENGINEERS AND MADE FOLLOW UPS TO COMPLETE THE HOUSING PROJECT IN A FAIR WAY. 8 APPROVAL OF THE PLANS SOLELY RESPONSIBLE TO GET THE CONSTRUCTION LAY OUT PLANS APPROVED AS DESIGNED BY IT. 9 EXECUTION OF CIVIL WORK SOLELY RESPONSIBLE AS PER DEVELOPMENT AGREEMENT 10 ADVERTISEMENT THE ASSESSEE-FIRM HAS ADVERTISED THE PROJECT AND GOT BOOKING OF THE RESIDENTIAL UNITS. 11 ACCEPTANCE OF BOOKING/SELLING PRICE AS PER AGREEMENT THE ASSESSEE FIRM HAS ISSUED RECEIPTS, ALLOTMENT LETTERS, POSSESSION LETTERS & A LL OTHER LEGAL DOCUMENTS. 12 RESPONSIBILITY THE ASSESSEE FIRM IS RESPONSIBLE OF EVERY WORK OF THE HOUSING PROJECT. 13 AUTHORITY AS PER AGREEMENT, THE ASSESSEE HAS ISSUE D RECEIPTS, ALLOTMENT LETTERS, POSSESSION LETTERS & A LL OTHER LEGAL DOCUMENTS/TO CANCEL THE BOOKING/REPAY THE ADVANCE MONEY RECEIVED FROM THE PROPOSED BUYER/ BOOKER/TO ENROLL AS SUBSEQUENT MEMBER OF THE HOUSING PROJECT. 14 AGREEMENT DEVELOPMENT AGREEMENT PROVED THAT IT HAS ENTERED ITA NO. 3152/AHD/2011 ASST. YEAR 2008-09 7 INTO TO DEVELOP THE HOUSING PROJECT, AS A WHOLE INCLUDING ALL NECESSARY AMENITIES/ROADS/STREETLIGHT S /MAINTENANCE OF THE DEVELOPMENT SITE UP TO POSSESSION OF THE HOUSING PROJECT AS A WHOLE TO ALL THE RESIDENTIAL UNIT BUYERS/CUSTOMERS. 15 CONTROL DOMAIN CONTROL ON THE WHOLE OF THE LAND OF THE PROJECT. 16 PRICE FIXATION THE ASSESSEE FIRM HAS FIXED THE CON SIDERATION/PRICE WITH PROPOSED BUYERS/ CUSTOMERS/ACTUAL USERS AND NOT WITH THE LAND OWNER SOCIETY. EVEN THE SOCIETY HAS NO AUTHORITY TO INTERFERE IN PRICE FIXATION WITH THE BUYER/MEMBER. 17 FLUCTUATION IN MARKET THE VARIATION IN SELLING PRICE OF THE RESIDENTIAL U NITS AFFECT THE PROFIT/LOSS OF THE ASSESSEE FIRM. 18 RISK INVOLVED IN WHOLE OF THE DEVELOPMENT OF THE PROJECT/IF PROJECT FAILS, THE CHANCES OF LOSS WAS V ERY HIGH. BUT FORTUNATELY, THE PROJECT SUCCEEDS. 19 WORK THE ASSESSEE FIRMS DEVELOPMENTAL WORK INCLUD ES CIVIL CONSTRUCTION WORK. 20 MEANING DEVELOPER IS WIDER TERMS. MEANS DEVELOPER CAN BE SAID TO BE A CONTRACTOR BUT CANNOT VICE A VERSA 21 CONNECTION THE ASSESSEE FIRM WAS DIRECTLY CONNECTE D TO THE ACTUAL USERS/CUSTOMERS/MEMBERS/ BROKERS. THEY DO NOT KNOW THE LAND OWNER SOCIETY. 22 KEEPING BOOKS OF ACCOUNT ETC. THE ASSESSEE FIRM HAS KEPT THE BOOKS OF ACCOUNT/GETTING IT AUDITED/FILED RETURN OF INCOME REGULARLY. 23 POSSESSION ON COMPLETION OF THE HOUSING PROJECT, TH E POSSESSION OF EACH RESIDENTIAL UNIT IS GIVEN TO THE MEMBERS/BUYERS BY THE ASSESSEE FIRM. 24 MAINTENANCE THE ASSESSEE FIRM HAS MAINTAINED THE HO USING PROJECT UPTO COMPLETION OF THE HOUSING PROJECT, I.E . UPTO LAST SALE OF RESIDENTIAL UNIT. 8. FURTHER WE OBSERVE FROM THE DEVELOPMENT AGREEMEN T THAT ASSESSEE FIRM WAS HAVING CONTROL ON THE PROJEC T IN THE CAPACITY OF DEVELOPER WHICH IS JUSTIFIABLE ON THE B ASIS OF BELOW MENTIONED CLAUSES OF THE DEVELOPMENT AGREEMEN T BY VIRTUE OF WHICH ASSESSEE WAS APPOINTED AS A BUILDER FIRM :- ITA NO. 3152/AHD/2011 ASST. YEAR 2008-09 8 3. IT IS AGREED BY BOTH THE PARTIES THAT THE CONSTRU CTION AND DEVELOPMENT WORK SHALL BE IN ACCORDANCE WITH THE APPROVED PLAN. HOWEVER, A S EPARATE AGREEMENT BETWEEN THE PROPOSED/PROSPECTIVE BUYERS/PURCHASER/CUSTOMER A ND THE BUILDER-FIRM SHALL BE EXECUTED. THE PARTY OF THE FIRST PART SHALL NOT BE H ELD RESPONSIBLE FOR ANY DELAY IN WORK AND / OR QUALITY OF THE WORK. EACH BUYER WILT FREE TO INSPECT THE QUALITY OF THE WORK AND ON SATISFACTION ONLY, THE BUILDER-FIRM SHALL BE ENTITLED FOR THE CONSIDERATION OF THE WORK EXECUTED. ALT THE RISK AND CONTROL OVER TH E HOUSING PROJECT WOULD BE THAT OF M/S. HARIOM 5. EXCEPT AS PROVIDED IN THIS AGREEMENT, M/S. HARIOM CORPORATION IS AND AT ALL TIMES WILL BE INDEPENDENT BUILDER CUM DEVELOPER. M/S. HARI OM CORPORATION, THE PARTY OF THE OTHER PART HAS TO RAISE FUND FOR TH E DEVELOPMENT AND CONSTRUCTION WORK ON THEIR OWN. THE NECESSARY DEVELOPMENTAL EXPEN SES SHALL ALSO BE BORNE BY THE PARTNERSHIP FIRM. ANY PROFIT/LOSS ARISE ON THE DE VELOPMENTAL WORK OF THE HOUSING PROJECT SHALL BELONG TO M/S. HARIOM CORPORATION. 6. THE PARTY OF THE FIRST PART DOES NOT RETAIN THE R IGHT TO TERMINATE THIS AGREEMENT PRIOR TO THE SATISFACTION OF THE TERMS HEREOF. UPON THE OCCU RRENCE OF ANY BREACH OR DEFAULT BY M/S. HARIOM CORPORATION OF ANY TYPE OF THE TERMS, O BLIGATIONS AND COVENANT CONTAINED IN THIS AGREEMENT, IF IT OCCURS, IT SHOULD BE RESOLVED BY MUTUAL DISCUSSION ONLY. THE PARTY OF THE OTHER PART WILL FREE IN SELECTING THE ARCHITECT FOR ASSISTANCE AND TECHNICAL INFORMATION TO ASSIST M/S. HARIOM CORPORATIO N FOR COMPLETING THE CONSTRUCTION WORK. 9. M/S. HARIOM CORPORATION AGREES TO CARRY OUT THE CONSTRUCTION CUM DEVELOPER WORK ON THE LAND AS PER THE APPROVED PLAN AND FREE TO USE ANY ADVERTISEMENT OR OTHER MATERIALS OR OTHER INFORMATION FOR THE PURPOSE OF ADVERTISING, PROMOTING OR OTHERWISE FOR PUBLISHING THE HOUSE ACCOMMODATION. . 9. WE FURTHER OBSERVE THAT LD. CIT(A) WHILE ALLOWIN G THE ASSESSEES APPEAL OBSERVED AS UNDER :- 6. THE AO HAS NOT DISPUTED ANY OF THE CONDITIONS S TIPULATED FROM CLAUSE (A) TO CLAUSE (D) OF SECTION 80IB(10) W ITH RESPECT TO TIME LIMIT OF PERMISSIONS, TIME LIMIT OF COMPLETION, AREA OF L AND, BUILT-UP AREA LIMIT PRESCRIBED FOR THE RESIDENTIAL UNITS, AND PERCENTAGE OF COMMERCIAL CONSTRUCTION WHICH CAN BE UNDERTAKEN. HIS OBJECTION IS THAT THE APPELLANT IS NOT A DEVELO PER BECAUSE IT IS NOT THE OWNER OF THE LAND ON WHICH THE RESIDENTIAL UNITS WERE CONSTRUCTED. ACCORDING TO HIM THE APPELLANT IS A WO RKS CONTRACTOR EXECUTING CONSTRUCTION AUTHORIZED BY THE COOPERATIV E HOUSING SOCIETY AND IS THUS NOT ELIGIBLE FOR DEDUCTION BECA USE IT IS HIT BY THE EXPLANATION INSERTED IN THE ACT BY FINANCE ACT 2009 ACCORDING TO ITA NO. 3152/AHD/2011 ASST. YEAR 2008-09 9 WHICH A WORKS CONTRACTOR WHO EXECUTES THE WORK AWAR DED BY ANY PERSON IS NOT ELIGIBLE FOR DEDUCTION U/S.80IB. THE APPELLANT ACCORDING TO THE AO WORKED AS CONTRACTOR FOR CONSTR UCTING THE RESIDENTIAL UNITS AS AUTHORIZED BY THE COOPERATIVE HOUSING SOCIETY THROUGH THE DEVELOPMENT AGREEMENT. THIS OBJECTION OF THE AO HAS TO BE SEEN IN THE LIGH T OF THE TESTS LAID DOWN BY HON'BLE ITAT BENCH A AHMEDABAD DECISION DAT ED 7.11.2008 IN THE CASE OF M/S. SHAKTI CORPORATION, BARODA IN ITA NO.I503/AHD/2008 IN AY 2005-06 WHEREIN HON'BLE ITAT HAS HELD THAT WHERE THE APPELLANT IS FOUND HAVING PRACTICALL Y PURCHASED THE LAND AND HAS BORNE THE RISK OF DEVELOPMENT DEDUCTIO N SHOULD BE ALLOWED. 7. THE SUBMISSION OF THE APPELLANT DATED 2.5.2011 IN W HICH IT RATED THAT THE FUNDS TO THE COOPERATIVE HOUSING SOC IETY WERE MADE AVAILABLE BY THE APPELLANT WAS SENT TO THE AO FOR REMAND REPORT. REMAND REPORT OF THE AO WAS RECEIVED VIDE L ETTER DATED 7.9.2011. COUNTER COMMENTS OF THE APPELLANT ON REMA ND REPORT WERE RECEIVED VIDE LETTER DATED 17.10.2011. 8. THE AO IN HIS REPORT DATED 7.9.2011 STATED AS UN DER: *AS DIRECTED BY YOUR HONOUR THE AR OF THE ASSESSEE SUBMITTED THE COPY OF MGER ACCOUNT OF THE SOCIETY APPEARING IN THE BOOKS OF PARTNERS. ON PERUSAL OF THE SAME, IT IS NOTICED THAT PARTNERS HAVE PAID CAS H OF RS.52,000 ON 1Z4.2005 AND RS.3,50,000 (RS.1,50,000 + RS.1,50,000) ON 11.5 .2005 I.E. THE DATE OF PURCHASE OF LAND ON WHICH PROJECT IS DEVELOPED.' AFTER GOING THROUGH RIVAL SUBMISSIONS IT IS SEEN TH AT IN THE REMAND REPORT THE AO HAS NOT DISPUTED THE LAND FUNDING ARG UMENT OF THE APPELLANT THEREFORE THE APPELLANT IS FOUND MEETING THE TEST OF HAVING PRACTICALLY PURCHASED THE LAND, SET FORTH IN HON'BLE ITAT DECISION IN THE CASE OF SHAKTI CORPORATION. 9. FURTHER IN THE REMAND REPORT THE AO HAS REITERAT ED THE ARGUMENTS MADE IN THE ASSESSMENT ORDER THAT THE APP ELLANT IS NOT THE OWNER OF THE LAND BECAUSE THE LAND OWNER HAS AP PLIED FOR ITA NO. 3152/AHD/2011 ASST. YEAR 2008-09 10 HOUSING PLAN APPROVAL AND GOT THE PERMISSION TO DEV ELOP IN THEIR NAMES. TO EXAMINE THESE ARGUMENTS THE DEVELOPMENT A GREEMENT HAS TO BE REFERRED TO AS STATED BY HON'BLE ITAT 'A 1 BENCH AHMEDABAD IN THE CASE OF SHAKTI CORPORATION WHEREIN IN PARA 16 OF THE ORDER IT HAS BEEN DIRECTED THAT THE DEVELOPM ENT AGREEMENT SHOULD BE REFERRED TO FOR CONCLUDING WHETHER THE AP PELLANT IS IN THE DOMINANT CONTROL OF THE LAND OR NOT AND WHETHER THE PROJECT IS DEVELOPED AT ITS COST AND RISK. HON'BLE ITAT HAS HE LD THAT WHERE THE APPELLANT IS FOUND HAVING PRACTICALLY PURCHASED THE LAND AND HAS BORNE THE RISK OF DEVELOPMENT DEDUCTION SHOULD BE ALLOWED . IN THIS CASE FOLLOWING CLAUSES OF THE DEVELOPMENT A GREEMENT DATED 2.6.2005 SHOW DOMINANT CONTROL OF THE APPELL ANT. (2) PARTH BUNGLOWS (NANA CHILODA) CO.OP. HSG. SOCIE TY LTD. THE PARTY OF THE FIRST PART HEREBY APPOINTS THE PARTNERSHIP FIRM M/S HARIOM CORPORATION AND THE FIRM M/S. HARIOM CORPORATION AGREE TO ACT AS B UILDER CUM DEVELOPER TO DEVELOP THE AND BUILD THE HOUSING PROJECT THEREO N ON ITS OWN RISK AND COST. (3) IT IS AGREED BY BOTH THE PARTIES THAT THE CONST RUCTION AND DEVELOPMENT WORK SAII BE IN ACCORDANCE WITH THE APPROVED PLAN. HOWEVER, A SEPARATE AGREEMENT BETWEEN THE PROPOSED/PROSPECTIVE BUYERS/P URCHASER/CUSTOMER AND THE BUILDER-FIRM SHALL BE EXECUTED. THE PARTY OF TH E FIRST PART SHALL NOT BE HELD RESPONSIBLE FOR ANY DELAY IN WORK AND/OR QUALITY OF THE WORK. EACH BUYER WILL FREE TO INSPECT THE QUALITY OF TFIE WORK AND ON SATISFAC TION ONLY, THE BUILDER-FIRM SHALL BE ENTITLED FOR THE CONSIDERATION OF THE WORK EXECUTED . ALL THE RISK AND CONTROL OVER THE HOUSING PROJECT WOULD BE THAT OF M/S HARIOM COR PORATION. (5) EXCEPT, AS PROVIDED IN THIS AGREEMENT, M/S HARI OM CORPORATION IS AND AT ALL TIMES WILL BE INDEPENDENT BUILDER CUM DE VELOPER. M/S HARIOM CORPORATION, THE PARTY OF THE OTHER PART HAS TO RAI SE FUND FOR THE DEVELOPMENT AND CONSTRUCTION WORK ON THEIR OWN. THE NECESSARY DEVELOPMENT EXPENSES SHALL ALSO BE BORNE BY THE PARTNERSHIP FIR M. ANY PROFIT/LOSS ARISE ON THE DEVELOPMENT WORK OF THE HOUSING PROJECT SHALL B ELONG TO M/S HARIOM CORPORATION. (7) THE PARTY OF THE FIRST WOULD NOT HAVE ANY AUTH ORITY IN INTERFERING IN FIXING UP THE REMUNERATION/CHARGES BY M/S HARIOM CORPORATION IN ACCORDANCE WITH THE PREVAILING RATES REASONABLY AS PER THE PROGRESS OF EH CONSTRUCTION WORK CARRIED OUT FOR THE PROSPECTIVE BUYERS. A SEPARATE AGREEMENT SHALL BE EXECUTED BETWEEN THE APPOINTEE BUILDER-FIRM AND THE PROPOSED /PROSPECTIVE BUYERS CONTAINING THE CHARGES/RATE OF CONSTRUCTION TO BE P AID TO THE BUILDER-FIRM. ' ITA NO. 3152/AHD/2011 ASST. YEAR 2008-09 11 10. VIOLATION BY THE APPELLANT OF ANY OF THE CONDIT IONS OF SECTION 80IB(10) STIPULATED FROM CLAUSE (A) TO CLAUSE (D) I S NOT UNDER DISPUTE AND THE APPELLANT HAS BEEN FOUND FULFILLING THE TESTS LAID DOWN BY HONBLE ITAT BENCH A AHMEDABAD DECISION DAT ED 7.11.2008 IN THE CASE OF M/S.SHAKTI CORPORATION. BARODA IN ITA NO.1503/AHD/2008 IN AY 2005-06 HAVING PRACTICALLY P URCHASED THE LAND AND POSSESSING DOMINANT CONTROL OVER THE PROJECT, THEREFORE IN MY VIEW THERE IS NO JUSTIFICATION IN DENYING THE DE DUCTION TO THE APPELLANT. THE CASE LAWS CITED BY THE AO ARE NOT AP PLICABLE IN THIS CASE BECAUSE THE APPELLANT ACTUAL CONCEIVED AND DEV ELOPED THE HOUSING PROJECT AT ITS OWN COST AND RISK AND IS NOT MERELY A CONTRACTOR EXECUTING THE SPECIFICATIONS GIVEN. THE AO IS DIRECTED TO DELETE THE ADDITION MADE U/S.80IB(10). 10. FROM GOING THROUGH THE ABOVE DISCUSSION, WE ARE OF THE VIEW THAT ASSESSEE HAS CARRIED ON ACTIVITIES AS A DEVELO PER AND NOT A MERELY WORKS CONTRACTOR. HOWEVER, AS REGARDS THE QU ESTION THAT THE ASSESSEE WAS NOT THE OWNER OF THE LAND THEN HOW HE WILL BE ELIGIBLE TO CLAIM DEDUCTION U/S 80IB(10) OF THE ACT. THE RE PLY TO THIS QUESTION SPECIFICALLY LIES IN THE DECISION OF THE CO-ORDINAT E BENCH IN THE CASE OF SHAKTI CORPORATION, BARODA (SUPRA). IT WAS FURTHER TAKEN UP BEFORE THE JURISDICTIONAL HIGH COURT BY THE REVENUE AND WAS DE ALT IN THE COMBINED ORDER IN THE CASE OF CIT VS. RADHE DEVELOP ERS IN TAX APPEAL NO.546 OF 2008 PRONOUNCED ON 13.12.2011 WHER EIN THEIR LORDSHIPS HAVE ELABORATELY DEALT WITH THIS ISSUE AN D HELD THAT EVE IF AN ASSESSEE IS NOT THE OWNER OF THE LAND BUT HAS CARRI ED OUT ACTIVITIES AS DEVELOPER-CUM-BUILDING CONTRACTOR THEN ALSO HE IS E LIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE ACT. IN DECIDING SO H ON. HIGH COURT HAS OBSERVED AS UNDER :- 39. WE MAY NOW MOVE ON TO THE QUESTION OF OWNERSHIP OF THE LAND. ITA NO. 3152/AHD/2011 ASST. YEAR 2008-09 12 40. RELEVANT PORTION OF SECTION 2(47) READS AS UNDE R:- 2(47): TRANSFER, IN RELATION TO A CAPITAL ASSET, INCLUDES,- (V) ANY TRANSACTION INVOL VING THE ALLOWING OF THE POSSESSION OF ANY IMMOVABLE PROPERTY TO BE TAKEN OR RETAINED IN P ART PERFORMANCE OF A CONTRACT OF THE NATURE REFERRED TO IN SECTION 53A OF THE TRANSFER O F PROPERTY ACT, 1882(4 OF 1882); OR SECTION 53A OF THE TRANSFER OF PROPERTY ACT READS A S UNDER:- 53A. WHERE ANY PERSON CONTRACTS TO TRANSFER FOR CONSIDERATION ANY IMMOVAB LE PROPERTY BY WRITING SIGNED BY HIM OR ON HIS BEHALF FROM WHICH THE TERMS NECESSARY TO CONSTITUTE THE TRANSFER CAN BE ASCERTAINED WITH REASONABLE CERTAINTY, AND THE TRAN SFEREE HAS, IN PART PERFORMANCE OF THE CONTRACT, TAKEN POSSESSION OF THE PROPERTY OR ANY P ART THEREOF, OR THE TRANSFEREE, BEING ALREADY IN POSSESSION, CONTINUES IN POSSESSION IN P ART PERFORMANCE OF THE CONTRACT AND HAS DONE SOME ACT IN FURTHERANCE OF THE CONTRACT, AND T HE TRANSFEREE HAS PERFORMED OR IS WILLING TO PERFORM HIS PART OF THE CONTRACT, THEN N OTWITHSTANDING THAT WHERE THERE IS AN INSTRUMENT OF TRANSFER, THAT THE TRANSFER HAS NOT B EEN COMPLETED IN THE MANNER PRESCRIBED THEREFOR BY THE LAW FOR THE TIME BEING IN FORCE, TH E TRANSFEROR OR ANY PERSON CLAIMING UNDER HIM SHALL BE DEBARRED FROM ENFORCING AGAINST THE TRANSFEREE AND PERSONS CLAIMING UNDER HIM ANY RIGHT IN RESPECT OF THE PROPERTY OF W HICH THE TRANSFEREE HAS TAKEN OR CONTINUED IN POSSESSION, OTHER THAN A RIGHT EXPRESS LY PROVIDED BY THE TERMS OF THE CONTRACT: PROVIDED THAT NOTHING IN THIS SECTION SHA LL AFFECT THE RIGHTS OF A TRANSFEREE FOR CONSIDERATION WHO HAS NO NOTICE OF THE CONTRACT OR OF THE PART PERFORMANCE THEREOF. 41. IN THE PRESENT CASE, WE FIND THAT THE ASSESSEE HAD, IN PART PERFORMANCE OF THE AGREEMENT TO SELL THE LAND IN QUESTION, WAS GIVEN P OSSESSION THEREOF AND HAD ALSO CARRIED OUT THE CONSTRUCTION WORK FOR DEVELOPMENT OF THE HO USING PROJECT. COMBINED READING OF SECTION 2(47)(V) AND SECTION 53A OF THE HC-NIC PAGE 37 OF 42 CREATED ON TUE MAY 10 11:53:01 IST 2016 TAXAP/546/2008 38/42 JUDGMENT TRA NSFER OF PROPERTY ACT WOULD LEAD TO A SITUATION WHERE THE LAND WOULD BE F OR THE PURPOSE OF INCOME TAX ACT DEEMED TO HAVE BEEN TRANSFERRED TO THE ASSESSEE. IN THAT VIEW OF THE MATTER, FOR THE PURPOSE OF INCOME DERIVED FROM SUCH PROPERTY, THE A SSESSEE WOULD BE THE OWNER OF THE LAND FOR THE PURPOSE OF THE SAID ACT. IT IS TRUE TH AT THE TITLE IN THE LAND HAD NOT YET PASSED ON TO THE ASSESSEE. IT IS EQUALLY TRUE THAT SUCH TI TLE WOULD PASS ONLY UPON EXECUTION OF A ITA NO. 3152/AHD/2011 ASST. YEAR 2008-09 13 DULY REGISTERED SALE DEED. HOWEVER, WE ARE, FOR THE LIMITED PURPOSE OF THESE PROCEEDINGS, NOT CONCERNED WITH THE QUESTION OF PASSING OF THE T ITLE OF THE PROPERTY, BUT ARE ONLY EXAMINING WHETHER FOR THE PURPOSE OF BENEFIT UNDER SECTION 80IB (10) OF THE ACT, THE ASSESSEE COULD BE CONSIDERED AS THE OWNER OF THE LA ND IN QUESTION. AS HELD BY THE APEX COURT IN THE CASE OF MYSORE MINERALS LTD. VS. COMMI SSIONER OF INCOME TAX (SUPRA), AND IN THE CASE OF COMMISSIONER OF INCOME-TAX VS. PODAR CEMENT PVT. LTD. AND OTHERS (SUPRA), THE OWNERSHIP HAS BEEN UNDERSTOOD DIFFEREN TLY IN DIFFERENT CONTEXT. FOR THE LIMITED PURPOSE OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT, THE ASSESSEE HAD SATISFIED THE CONDITION OF OWNERSHIP ALSO; EVEN IF IT WAS NECESSARY. 42. IN THE CASE OF SHAKTI CORPORATION SIMILARLY THE ASSESSEE HAD ENTERED INTO A DEVELOPMENT AGREEMENT WITH THE LAND OWNERS ON SIMIL AR TERMS AND CONDITIONS. IT IS TRUE THAT THERE HC-NIC PAGE 38 OF 42 CREATED ON TUE MAY 10 11:53:01 IST 2016 TAXAP/546/2008 39/42 JUDGMENT WERE CERTAIN MINOR DI FFERENCES, HOWEVER, IN SO FAR AS ALL MATERIAL ASPECTS ARE CONCERNED, WE SEE NO SI GNIFICANT OR MATERIAL DIFFERENCE. HERE ALSO ASSESSEE WAS GIVEN FULL RIGHTS TO DEVELOP THE LAND BY PUTTING UP THE HOUSING PROJECT AT ITS OWN RISK AND COST. ENTIRE PROFIT FLOWING THEREF ROM WAS TO BE RECEIVED BY THE ASSESSEE. IT IS TRUE THAT THE AGREEMENT PROVIDED THAT THE ASS ESSEE WOULD RECEIVE REMUNERATION. HOWEVER, SUCH ONE WORD USED IN THE AGREEMENT CANNOT BE INTERPRETED IN ISOLATION OUT OF CONTEXT. WHEN WE READ THE ENTIRE DOCUMENT, AND ALSO CONSIDER THAT IN FORM OF REMUNERATION THE ASSESSEE HAD TO BEAR THE LOSS OR AS THE CASE MAY BE TAKE HOME THE PROFITS, IT BECOMES ABUNDANTLY CLEAR THAT THE PROJE CT WAS BEING DEVELOPED BY HIM AT HIS OWN RISK AND COST AND NOT THAT OF THE LAND OWNERS. ASSESSEE THUS WAS NOT WORKING AS A WORKS CONTRACT. INTRODUCTION OF THE EXPLANATION TO SECTION 80IB(10) THEREFORE IN THIS GROUP OF CASES ALSO WILL HAVE NO EFFECT. 43. WE MAY AT THIS STAGE EXAMINE THE RATIO OF DIFFE RENT JUDGMENTS CITED BY THE REVENUE. THE DECISION IN CASE OF FAQIR CHAND GULATI VS. UPPA L AGENCIES PRIVATE LIMITED AND ANOTHER (SUPRA) WAS RENDERED IN THE BACKGROUND OF T HE PROVISIONS OF THE CONSUMER PROTECTION ACT. IN THE CASE BEFORE THE APEX COURT, THE LAND OWNER HAD ENTERED INTO AN AGREEMENT WITH THE BUILDER REQUIRING HIM TO CONSTRU CT APARTMENT BUILDING ON THE LAND IN ITA NO. 3152/AHD/2011 ASST. YEAR 2008-09 14 HC-NIC PAGE 39 OF 42 CREATED ON TUE MAY 10 11:53:01 IST 2016 TAXAP/546/2008 40/42 JUDGMENT QUESTION. PART OF THE CONSTRUCTED AR EA WAS TO BE RETAINED BY THE OWNER OF THE LAND. IN CONSIDERATION OF THE LAND PRICE REM AINING AREA WAS FREE FOR THE BUILDER TO SELL. WHEN THE LAND OWNER FOUND SERIES OF DEFECTS I N THE CONSTRUCTION, HE APPROACHED THE CONSUMER PROTECTION FORUM. IT WAS IN THIS BACKGROUN D THE APEX COURT WAS CONSIDERING WHETHER THE LAND OWNER CAN BE STATED TO BE A CONSUM ER AND THE BUILDER A SERVICE PROVIDER. IT WAS IN THIS BACKGROUND THAT THE APEX COURT MADE CERTAIN OBSERVATIONS. SUCH OBSERVATIONS CANNOT BE SEEN OUT OF CONTEXT NOR CAN THE SAME BE APPLIED IN THE PRESENT CASE WHERE WE ARE CONCERNED WITH THE DEDUCTION UNDER SEC TION 80IB(10) OF THE ACT. 44. IN THE CASE K. RAHEJA DEVELOPMENT CORPORATION V S. STATE OF KARNATAKA (SUPRA), THE APEX COURT CONSIDERED WHETHER THE BUILDER, WHO WAS ENGAGED IN THE DEVELOPMENT OF PROPERTY AND FOR SUCH PURPOSE HAD ENTERED INTO AN A GREEMENT WITH THE LAND OWNER, CAN BE STATED TO HAVE EXECUTED WORKS CONTRACT. SUCH INTERP RETATION WAS RENDERED IN THE BACKGROUND OF THE TERM WORKS CONTRACT DEFINED IN SECTION 2(1)(V-I) OF THE KARNATAKA SALES TAX ACT, WHICH READS AS UNDER:- 12. SECTION 2(1)(V-I) IS RELEVANT. IT DEFINES A WORKS CONTRACT AS FOLLOWS: 2.(1)(V-I) 'WORKS CON TRACT' INCLUDES ANY AGREEMENT FOR CARRYING OUT FOR CASH, DEFERRED PAYMENT OR OTHER VA LUABLE CONSIDERATION, HC-NIC PAGE 40 OF 42 CREATED ON TUE MAY 10 11:53:01 IST 2016 TAXAP /546/2008 41/42 JUDGMENT THE BUILDING, CONSTRUCTION, MANUFACTURE, PROCESSING , FABRICATION, ERECTION, INSTALLATION, FITTING OUT, IMPROVEMENT, MODIFICATION, REPAIR OR C OMMISSIONING OF ANY MOVABLE OR IMMOVABLE PROPERTY; IT IS THUS TO BE SEEN THAT UND ER THE KARNATAKA SALES TAX ACT THE DEFINITION OF THE WORDS WORKS CONTRACT IS VERY WI DE. IT IS NOT RESTRICTED TO A WORKS CONTRACT AS COMMONLY UNDERSTOOD I.E. A CONTRACT TO DO SOME WORK ON BEHALF OF SOMEBODY ELSE. IT ALSO INCLUDES ANY AGREEMENT FOR CARRYING OUT EITHER FOR CASH OR FOR DEFERRED PAYMENT OR FOR ANY OTHER VALUABLE CONSIDERATION, TH E BUILDING AND CONSTRUCTION OF ANY MOVABLE AND IMMOVABLE PROPERTY. (EMPHASIS SUPPLIED ) THE DEFINITION WOULD THEREFORE TAKE WITHIN ITS AMBIT ANY TYPE OF AGREEMENT WHEREIN CONSTRUCTION OF A BUILDING TAKES PLACE EITHER FOR CASH OR DEFERRED PAYMENT, OR VALUA BLE CONSIDERATION. TO BE ALSO NOTED THAT THE DEFINITION DOES NOT LAY DOWN THAT THE CONSTRUCT ION MUST BE ON BEHALF OF AN OWNER OF THE PROPERTY OR THAT THE CONSTRUCTION CANNOT BE BY THE OWNER OF THE PROPERTY. THUS EVEN IF ITA NO. 3152/AHD/2011 ASST. YEAR 2008-09 15 AN OWNER OF PROPERTY ENTERS INTO AN AGREEMENT TO CO NSTRUCT FOR CASH, DEFERRED PAYMENT OR VALUABLE CONSIDERATION A BUILDING OR FLATS ON BEHAL F OF ANYBODY ELSE, IT WOULD BE A WORKS CONTRACT WITHIN THE MEANING OF THE TERM AS USED UND ER THE SAID ACT. IT WAS IN BACKGROUND OF THIS DEFINITION PROVIDED BY THE STATUTE THAT THE APEX COURT CONCLUDED THAT THE AGREEMENT WAS ONE OF WORKS CONTRACT. THE APEX COURT OBSERVED THAT THE TERM WORKS CONTRACT CONTAINED IN THE ACT IS INCLUSIVE DEFINITI ON AND INCLUDES NOT MERELY THE WORKS CONTRACT AS NORMALLY UNDERSTOOD BUT IT IS A WIDE DE FINITION WHICH INCLUDES ANY AGREEMENT FOR CARRYING OUT BUILDING OR CONSTRUCTION ACTIVITY FOR CASH, DEFERRED PAYMENT OR OTHER VALUABLE CONSIDERATION. THUS THE INTERPRETATION REN DERED BY THE APEX COURT IN THE SAID DECISION WAS BASED ON NOT THE NORMAL MEANING OF TER M WORKS CONTRACT BUT ON THE SPECIAL MEANING ASSIGNED TO IT UNDER THE ACT ITSELF , WHICH PROVIDED FOR A DEFINITION OF THE INCLUSIVE NATURE. HC-NIC PAGE 41 OF 42 CREATED ON T UE MAY 10 11:53:01 IST 2016 TAXAP/546/2008 42/42 JUDGMENT 45. UNDER THE CIRCUMSTANCES, WE ARE OF THE OPINION THAT THE TRIBUNAL COMMITTED NO ERROR IN HOLDING THAT THE ASSESSEES WERE ENTITLED TO THE BENEFIT UNDER SECTION 80IB(10) OF THE ACT EVEN WHERE THE TITLE OF THE LANDS HAD NOT PASSE D ON TO THE ASSESSEES AND IN SOME CASES, THE DEVELOPMENT PERMISSIONS MAY ALSO HAVE BE EN OBTAINED IN THE NAME OF THE ORIGINAL LAND OWNERS. 46. WE FIND THAT IT IS NOT EV EN THE CASE OF THE REVENUE THAT OTHER CONDITIONS OF SECTION 80IB OF THE ACT WERE NOT FULF ILLED. WE, THEREFORE, ANSWER THE QUESTION IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE AND DISPOSE OF ALL APPEALS ACCORDINGLY. 11. RESPECTFULLY FOLLOWING THE DECISION OF HON. JUR ISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. RADHE DEVELOPERS (SUPR A) AND APPLYING THE RATIO OF THE DECISION TO THE FACTS OF THE CASE BEFORE US, WE ARE OF THE CONSIDERED OPINION THAT ASSESSEE IS A DEVELOPER OF THE PROJECT AND NOT MERELY A WORKS CONTRACTOR AND IS ELIGIBLE F OR DEDUCTION U/S 80IB(10) OF THE ACT AT RS.95,56,579/-. THEREFORE, WE DO NOT FIND ANY ITA NO. 3152/AHD/2011 ASST. YEAR 2008-09 16 REASON TO INTERFERE WITH THE ORDER OF LD. CIT(A) AN D UPHOLD THE SAME. THE GROUND NOS. 1 & 2 RAISED BY THE REVENUE ARE DIS MISSED. 12. OTHER GROUNDS ARE GENERAL IN NATURE, WHICH NEED NO ADJUDICATION 13. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH MAY, 2016 SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER DATED 10/5/2016 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 ASST. REGISTRAR, ITAT, AHMEDABAD ITA NO. 3152/AHD/2011 ASST. YEAR 2008-09 17 1. DATE OF DICTATION: 06/05/2016 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 10/05/2016 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: 11/5/2016 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: