The ITO, Ward-9(1), Ahmedabad V. M/s. Shivam Builders, Ahmedabad

ITA 34/AHD/2011

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0524 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 21-09-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 06-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M K PATEL
• Keywords: Question of law
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH AHMEDABAD BEFORE SHRI RAJPAL YADAV, JM, & SHRI MANISH BORA D, AM. ITA NO. 34/AHD/2011 ASST. YEAR: 2007-08 ITO, WARD-9(1), AHMEDABAD. VS. SHIVAM BUILDERS, 206, RAJVI ARCADE, DRIVE- IN-ROAD, MEMNAGAR, AHMEDABAD. APPELLANT RESPONDENT PAN AAZFS 8573R APPELLANT BY SHRI PRASOON KABRA, SR. DR RESPONDENT BY SHRI M. K. PATEL, AR DATE OF HEARING: 21.9.2016 DATE OF PRONOUNCEMENT: 26/9/2016 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER . THIS APPEAL OF REVENUE IS DIRECTED AGAINST THE ORD ER OF LD. CIT(A)-XV, AHMEDABAD DATED 22.11.2010 VIDE APPEAL N O.CIT(A)- XV/ITO 9(1)/225/09-10, PASSED AGAINST ORDER U/S 143 (3) OF THE IT ACT, 1961 (IN SHORT THE ACT) FRAMED ON 16.12.2009 BY ITO , WD-9(1) AHMEDABAD. FOLLOWING GROUNDS HAVE BEEN RAISED BY TH E REVENUE :- 1) THE ID. COMMISSIONER OF INCOME-TAX (A)-XV, AHM EDABAD HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE ASSESSING OF FICER TO ALLOW THE ASSESSEE'S CLAIM FOR DEDUCTION OF RS. 1,88,38,020/- U/S. 801B(10) OF THE ACT ITA NO. 34/AHD/2011 ASST. YEAR 2007-08 2 2) THE ID. COMMISSIONER OF INCOME-TAX (A)-XV, AHMED ABAD HAS ERRED IN HOLDING THAT THE ASSESSEE FULFILLS THE CONDITION S LAID DOWN FOR CLAIMING DEDUCTION U7S.80IB(10) EVEN WHEN THE LAND WAS IN THE NAME OF NEW RAJVIR CO-OPERATIVE HOUSING SOCIETY LTD . . THE LAND OWNERS ARE A SEPARATE LEGAL ENTITY IN THE EYE OF LA W AND THE ASSESSEE ENTERED INTO THE PROJECT BY A DEVELOPMENT AGREEMENT / WITH THE SOCIETY. THE ENTIRE RESPONSIBILITY TO EXEC UTE THE HOUSING PROJECT AND ABIDE BY THE TERMS AND CONDITIONS OF IT S APPROVAL RIGHT FROM THE INCEPTION OF THE PROJECT TILL ITS COMPLETI ON RESTS WITH THE SOCIETY. ASSESSEE WAS JUST A CONTRACTOR OF THE LAND OWNERS CONSTRUCTING 30 RESIDENTIAL UNITS (TENAMENTS) AND N OT A DEVELOPER. 3) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A)- XV, AHMEDABAD OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 4) IT IS THEREFORE, PRAYED THAT THE ORDER OF THE ID . CIT(A)-XV, AHMEDABAD MAY BE SET-ASIDE AND THAT OF THE ASSESSIN G OFFICER BE RESTORED. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT T HE ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF CONSTRU CTION OF HOUSING PROJECTS. RETURN OF INCOME WAS E-FILED ON 13.09.200 7 DECLARING TOTAL INCOME AT RS.92,800/- AFTER CLAIMING DEDUCTION U/S 80IB(10) OF THE ACT OF RS.1,88,38,020/-. THE CASE WAS SELECTED FOR SCRU TINY ASSESSMENT. DETAILED QUESTIONNAIRE WAS ISSUED TO THE ASSESSEE. NECESSARY REPLY WAS RECEIVED BY THE ASSESSING OFFICER. ASSESSING OF FICER WAS OF THE VIEW THAT ASSESSEE IS NOT THE OWNER OF THE LAND AND IS MERELY A WORKS CONTRACTOR AND, THEREFORE, DENIED DEDUCTION U/S 80I B(10) OF THE ACT AT RS.1,88,38,020/-BY OBSERVING FOLLOWING REASONS :- 1. THE ASSESSEE IS NOT BOTH DEVELOPER AND BUILDER AS REQUIRED BY THE PROVISIONS OF SECTION 80IB(10). ASSESSEE IS NOT A D EVELOPER BECAUSE THE ASSESSEE DID NOT CONCEPTUALIZE AND OWN THE PROJECT IN AS MUCH AS THE ASSESSEE IS NOT THE OWNER OF THE LAND AND THE APPRO VAL WAS NOT ISSUED TO IT BY THE LOCAL AUTHORITY. ITA NO. 34/AHD/2011 ASST. YEAR 2007-08 3 2. THE ASSESSEE ENTERED INTO THE PROJECT BY A DEVEL OPMENT AGREEMENT WITH THE 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 ASSESSE E JOINED ONLY AS A CONFIRMING PARTY TO THE TRANSACTION. THIS ALSO PROVES THAT THE ASSESSEE WAS MERELY A CONTRACTOR/ AGENT OF THE SOCIETY. 4. AS PER THE AMENDMENT TO SECTION 801B BY THE FINA NCE ACT 2009, A WORKS CONTRACTOR WHO EXECUTES THE WORK AWARDED BY ANY PER SON IS NOT ELIGIBLE FOR THE DEDUCTION U/S 80IB. ANY PERSON INCLUDES THE NEW RAJ VIR CO-OPERATIVE HOUSING SOCIETY LTD., WHICH IS A LEGAL ENTITY. 3. AGGRIEVED, ASSESSEE WENT IN APPEAL BEFORE THE LD . CIT(A). LD. CIT(A) ALLOWED THE ASSESSEES APPEAL BY DELETING TH E DISALLOWANCE MADE BY LD. ASSESSING OFFICER BY RELYING ON THE DEC ISION OF THE CO- ORDINATE BENCH, AHMEDABAD, DATED 7.11.2008 IN THE C ASE OF SHAKTI CORPORATION, BARODA IN ITA NO.1503/AHD/2008 FOR ASS T. YEAR 2005-06 BY OBSERVING AS UNDER :- 6. IT IS SEEN THAT THE AO HAS NOT DISPUTED THAT THE APPELLANT DID NOT FULFILL ANY OF THE CONDITIONS SPECIFIED IN SECTION 80IB(10) FROM C LAUSE (A) TO (D) WITH RESPECT TO APPROVALS FROM LOCAL AUTHORITY, COMPLETION OF PROJE CT WITHIN THE SPECIFIED TIME LIMITS, ONE ACRE OF LAND CONDITION, 1500 SQ.FT. BUI LT - UP AREA CONDITION OF EACH UNIT IN THE PROJECT AND THAT OF PERCENTAGE OF CONSTRUCTI ON FOR COMMERCIAL USE. HIS OBJECTION IS THAT THE APPELLANT IS NOT THE OWNER OF THE LAND. THIS OBJECTION OF THE AO HAS TO BE SEEN IN THE 'LIGHT OF THE TESTS LAID D OWN BY HON'BLE ITAT BENCH A AHMEDABAD DECISION DATED 7.11.2008 IN THE CASE OF M /S.SHAKTI CORPORATION, BARODA IN ITA NO.15Q3/AHD/2Q08 IN AY 2005-06. BUT H ERE THE APPELLANT HAS ALSO BEEN FOUND MEETING THE TESTS LAID DOWN IN HON' BLE ITAT BENCH A AHMEDABAD DECISION IN THE CASE OF M/S.SHAKTI CORPOR ATION AND AS IT HAD PRACTICALLY PURCHASED THE LAND AND ACQUIRED DOMINAN T CONTROL OVER THE PROJECT AND BORE 'THE RISK OF DEVELOPING THE PROJECT, THAT IS WHY IN MY VIEW IT IS ELIGIBLE FOR DEDUCTION U/S.80IB(10) AND THE AO IS DIRECTED TO AL LOW THE SAME. 4. AGGRIEVED, REVENUE IS NOW IN APPEAL BEFORE THE T RIBUNAL. ITA NO. 34/AHD/2011 ASST. YEAR 2007-08 4 5. LD. DR REFERRED AND RELIED ON THE OBSERVATIONS M ADE BY LD. ASSESSING OFFICER. LD. DR HAS ALSO REFERRED AND REL IED ON THE DECISION OF THE TRIBUNAL IN THE CASE OF ITO VS. M/S KRISHNA DEVELOPERS IN ITA NO.24/AHD/2011 FOR ASST. YEAR 200 7-08 DATED 17.5.2013 AND REQUESTED FOR SETTING ASIDE THE ISSUE TO THE FILE OF LD. CIT(A) TO EXAMINE AS TO HOW THE ASSESSEE IS TREATED AS DEEMED OWNER ON WHICH THE HOUSING PROJECT HAS BEEN DEVELOP ED. 6. ON THE OTHER HAND, LD. AR REFERRED AND RELIED ON THE OBSERVATION AND HAS ALSO FILED PAPER BOOK AT PAGES 1 TO 112 WHICH INCLUDES THE COPY OF DEVELOPMENT AGREEMENT. LD. AR SUBMITTED THAT ASSESSEE HAS DULY COMPLIED WITH ALL THE CONDITIONS AS LAID DOWN U/S 80IB(10) OF THE ACT FOR CLAIMING DEDUCTION. LD. AR ALSO TOOK US TO VARIOUS CLAUSES IN THE DEVELOPMENT AGREEMENT AVAILA BLE AT PAGES 81 TO 112 OF THE PAPER BOOK TO DEMONSTRATE THAT TOTAL CONTROL OF THE PROJECT FROM PREPARATION OF PROJECT PLAN, APPOINTME NT OF ARCHITECT AND OTHER AGENCIES, BOOKING OF FLATS AND ALL RELATED WO RKS ATTACHED TO THE DEVELOPMENT OF THE HOUSING PROJECT WHICH WERE UNDER TAKEN BY THE ASSESSEE. LD. AR ALSO SUBMITTED THAT THE FACTS ARE VERBATIM SIMILAR TO THE FACTS OF THE CASE OF M/S RADHE DEVELOPERS DECID ED BY THE HON. JURISDICTIONAL HIGH COURT [329 ITR 01(GUJ)]. FURT HER LD. AR ALSO BRIEFED THAT EVEN DURING THE COURSE OF ASSESSMENT P ROCEEDINGS ASSESSEE SUBMITTED ABOUT SIMILARITY OF FACTS WITH T HE DECISION OF THE CO-ORDINATE BENCH IN ITA NO.2482/AHD/2006 IN THE CA SE OF RADHE DEVELOPERS BUT LD. ASSESSING OFFICER DID NOT ACCEPT THE PLEA ON THE GROUND THAT THE CASE OF RADHE DEVELOPER IS STILL PE NDING FOR JUDGMENT BEFORE HON. JURISDICTIONAL HIGH COURT. LD. AR ALSO SUBMITTED THAT THE ITA NO. 34/AHD/2011 ASST. YEAR 2007-08 5 DECISION OF THE TRIBUNAL IN THE CASE OF RADHE DEVEL OPERS (SUPRA) HAS BEEN UPHELD BY THE HON. JURISDICTIONAL HIGH COURT. LD. AR ALSO REFERRED TO THE JUDGMENT OF HON. JURISDICTIONAL HIG H COURT IN THE CASE OF CIT VS. VISHAL DEVELOPERS IN TAX APPEAL NO.507 OF 2014 DATED 7/10/2014 WHICH HAS FURTHER CRYSTALLIZED THE ISSUE OF SEC.80IB(10) AND DECIDED THE SAME IN FAVOUR OF ASSESSEE BY REFERRING TO THE JUDGMENT OF RADHE DEVELOPERS (SUPRA). 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD AND ALSO GONE THROUGH THE JUDGMENTS REFER RED BY BOTH THE PARTIES. SOLITARY GRIEVANCE OF THE REVENUE IS AGAIN ST THE ORDER OF LD. CIT(A) DIRECTING THE ASSESSING OFFICER TO ALLOW THE CLAIM OF DEDUCTION AT RS.1,88,38,020/- U/S 80IB(10) OF THE ACT. WE FIN D THAT LAND BEARING SURVEY NO.317/1 HAVING TOTAL AREA OF 12141 SQ.METRE S WAS PURCHASED BY NEW RAJVI CO-OP. HOUSING SOCIETY LTD. ON 6.11.2004. THE LOCAL AUTHORITY GRANTED PERMISSION FOR DEVELOPM ENT AND CONSTRUCTION VIDE ORDER DATED 15.12.2005 TO THE NEW RAJVI CO-OP. HOUSING SOCIETY LTD. ON 30.11.2004 I.E. MUCH BEFORE THE APPROVAL ACCORDED BY LOCAL AUTHORITY, ASSESSEE ENTERED INTO THE DEVELOPMENT AGREEMENT WITH THE NEW RAJVI CO-OP. HOUSING SOCIETY LTD. AS PER THE TERMS OF THE AGREEMENT ASSESSEE WAS GIVEN POSSESSIO N OF THE LAND FOR CONSTRUCTION OF HOUSING UNITS AS PER THE PLAN. ASSESSEE WAS ALLOWED TO ENROLL PROSPECTIVE BUYERS AND COLLECT SA LE CONSIDERATION FOR LAND AS WELL AS SUPER STRUCTURE FROM THEM. THE ASSE SSEE WAS ALSO TO RETAIN CONSIDERATION RECEIVED FOR CONSTRUCTION AND CHARGE THE LAND COST OF THE SOCIETY. AS THE SOCIETY (LAND OWNER) WA S HAVING NO EXPERIENCE OF CONSTRUCTION ASSESSEE WAS ALLOWED TO CONSTRUCT THE ITA NO. 34/AHD/2011 ASST. YEAR 2007-08 6 HOUSING PROJECT AS PER THE TERMS & CONDITIONS NARRA TED IN THE DEVELOPMENT AGREEMENT. FURTHER WE ALSO FIND THAT TH E CONSTRUCTION, AND APPOINTMENT OF STRUCTURAL ENGINEERS WERE DONE B Y ASSESSEE AND THE ENTIRE LAND PURCHASE CONSIDERATION, FINANCE WER E ARRANGED BY THE ASSESSEE WHICH PROVES DIRECT NEXUS BETWEEN THE MONE Y CONSIDERATION AND FUND FOR PURCHASING THE LAND AND CONSTRUCTION. FURTHER WE ALSO OBSERVE THAT THE ENTIRE EXPENDITURE IN THE NAME OF ADMINISTRATIVE EXPENSES FOR PUTTING THE HOUSING CON STRUCTION WAS CONTROLLED, MANAGED BY THE ASSESSEE INCLUDING ARRAN GEMENT OF LABOUR, ARCHITECT, ENGINEERS, DESIGN, DEVELOPMENT A ND OTHER REQUIREMENTS IN CONNECTION WITH SUCCESSFUL COMPLETI ON OF THE PROJECT. FROM GOING THROUGH THE ABOVE ACTIVITIES UNDERTAKEN BY THE ASSESSEE WE FIND THAT THE FACTS OF THE CASE BEFORE US ARE SI MILAR TO THE FACTS OF THE CASE OF M/S RADHE DEVELOPERS (SUPRA). FURTHER L D. DR WAS UNABLE TO DEMONSTRATE ANY VARIATION OF FACTS OF ASS ESSEE WITH THAT OF RADHE DEVELOPERS WHEREAS LD. AR WAS SUCCESSFULLY PR OVED THE SAME BY TAKING US THROUGH THE RELEVANT CLAUSES OF DEVELO PMENT AGREEMENT AND VARIOUS ACTIVITIES UNDERTAKEN. WE FURTHER FIND THAT HON. JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. VI SHAL DEVELOPERS (SUPRA) HAS DEALT WITH SIMILAR ISSUE AND FACTS HAVE TOUCHED UPON VARIOUS ASPECTS RELATING TO DEDUCTION U/S 80IB(10) OF THE ACT AND ALSO THE DIFFERENCE BETWEEN THE WORKS CONTRACTOR AND A D EVELOPER. HON. COURT HAS DECIDED THE ISSUE IN FAVOUR OF ASSESSEE B Y OBSERVING AS BELOW :- 12. ON A COMBINED READING OF THE ABOVE REFERRED DEC ISIONS, IT IS APPARENT THAT BOTH THE DECISIONS OF THE SUPREME COURT IN THE CASE OF LARSEN AND TOUBRO LIMITED (SUPRA) AS WELL AS IN K. RAHEJA DEVELOPMENT CORPORATION (SUPRA) WERE ITA NO. 34/AHD/2011 ASST. YEAR 2007-08 7 RENDERED IN THE BACKDROP OF THE KARNATAKA SALES TAX ACT AND THE MAHARASHTRA VALUE ADDED TAX ACT. WHILE CONSTRUING THE MEANING O F THE TERM WORKS CONTRACT, WHAT THE SUPREME COURT HAD IN MIND WAS ARTICLE 366( 29-A)(B) OF THE CONSTITUTION. BY ARTICLE 366(29-A)(B), A LEGAL FICTION HAD BEEN I NTRODUCED INTO A CONTRACT WHICH WAS DIVISIBLE INTO ONE FOR SALE OF GOODS AND THE OT HER FOR SUPPLY OF LABOUR. THE SUPREME COURT WHILE DEALING WITH THE ABOVE CASES HA D UNDERSTOOD THE TERM WORKS CONTRACT IN THE MANNER THAT PARLIAMENT HAD IN ITS VIEW AT THE TIME OF THE FORTY-SIXTH AMENDMENT WHICH WAS MORE THAN APPROPRIA TE TO ARTICLE 366(29-A)(B) AND WHICH WAS NOT RESTRICTED TO WORKS CONTRACT AS COMMONLY UNDERSTOOD I.E. A CONTRACT TO DO SOME WORK ON BEHALF OF SOMEBODY ELSE . THE ORDINARY MEANING OF THE TERM WORKS CONTRACT MEANS A CONTRACT TO DO SO ME WORK ON BEHALF OF SOMEBODY ELSE WHEREAS IN THE ABOVE DECISIONS, THE S UPREME COURT HAVING REGARD TO THE PROVISIONS OF ARTICLE 366(29-A)(B) HA S ADOPTED A WIDER MEANING OF THE EXPRESSION WORKS CONTRACT. IN THE OPINION OF THIS COURT, WHILE CONSTRUING THE PROVISIONS OF THE INCOME TAX ACT, THE ORDINARY MEAN ING OF THE EXPRESSION WORKS CONTRACT IS REQUIRED TO BE TAKEN INTO AND RESORT C ANNOT BE HAD TO THE MEANING OF THE SAID EXPRESSION AS ENVISAGED UNDER THE RELEVANT SALES TAX ACT WHICH ARE IN THE CONTEXT OF THE PROVISIONS OF ARTICLE 366(29-A)( B) OF THE CONSTITUTION. 13. A DIVISION BENCH OF THIS COURT IN THE CASE OF COMMISSIONER OF INCOME TAX III V. SWASTIK ASSOCIATES RENDERED ON 7TH MAY, 2014 IN TAX APPEAL NO.348/2014 HAD REFERRED TO THE DECISION OF THE SUP REME COURT IN THE CASE OF K. RAHEJA DEVELOPMENT CORPORATION V. STATE OF KARNATAK A (SUPRA) WHICH HELD THAT THE INTERPRETATION OF THE EXPRESSION WORKS CONTRAC T WAS RENDERED IN THE BACKGROUND OF THE TERM WORKS CONTRACT DEFINED IN SECTION 2(1)(V-I) OF THE KARNATAKA SALES TAX ACT AND IT WAS IN THAT BACKDROP THAT THE SUPREME COURT CONCLUDED THAT THE AGREEMENT WAS ONE OF WORKS CONTR ACT. THE COURT WAS OF THE VIEW THAT THE INTERPRETATION RENDERED BY THE APEX C OURT IN THE SAID DECISION WAS BASED NOT ON THE NORMAL MEANING OF THE TERM WORKS CONTRACT BUT ON THE SPECIAL MEANING ASSIGNED TO IT UNDER THE ACT ITSELF, WHICH PROVIDED FOR A DEFINITION OF INCLUSIVE NATURE. THE COURT WAS, ACCORDINGLY, OF TH E VIEW THAT THE TRIBUNAL DID NOT COMMIT ANY ERROR IN HOLDING THAT THE ASSESSEES WERE ENTITLED TO THE BENEFIT UNDER SECTION 80IB OF THE ACT EVEN WHERE THE TITLE OF THE LANDS HAD NOT PASSED ON THE ASSESSEES AND UNDER SOME CASES THE DEVELOPMENT PERM ISSIONS ALSO HAVE BEEN OBTAINED IN THE NAME OF THE ORIGINAL OWNERS. 14. IN COMMISSIONER OF INCOME TAX-I V. ARCHAN ENTERPRISES RENDERED ON 18TH MARCH, 2014 IN TAX APPEAL NO.171/2014, A DIVISION B ENCH OF THIS COURT HAD THE OCCASION TO CONSIDER THE DECISION OF THE SUPREME CO URT IN THE CASE OF LARSEN AND TOUBRO LTD. V. STATE OF KARNATAKA (SUPRA) AND R AHEJA DEVELOPMENT CORPORATION (SUPRA) IN THE CONTEXT OF THE PROVISION S OF SECTION 80IB(10) OF THE ACT. THE COURT HELD THAT THE DECISION IN THE CASE OF RAH EJA DEVELOPMENT CORPORATION (SUPRA) WAS RENDERED IN THE BACKGROUND OF THE DEFIN ITION OF THE TERM WORKS CONTRACT CONTAINED IN THE KARNATAKA SALES TAX ACT AND EVEN THE DECISION IN THE CASE OF LARSEN AND TOUBRO LIMITED (SUPRA) WAS RENDE RED IN THE CONTEXT OF SALES TAX/VAT OF THE SAID STATE. THE SUPREME COURT WHILE UPHOLDING THE RATIO OF THE ITA NO. 34/AHD/2011 ASST. YEAR 2007-08 8 DECISION IN THE CASE OF RAHEJA DEVELOPMENT CORPORAT ION (SUPRA) FURTHER LAID DOWN CERTAIN PRINCIPLES FOR JUDGING WHEN A CONTRACT FOR CONSTRUCTION CAN BE STATED TO BE A WORKS CONTRACT AND IN THE PROCESS WHEN THE MATERIALS USED IN THE EXECUTION OF SUCH CONTRACTS CAN BE EXIGIBLE TO SALE S TAX/VAT. THE DIVISION BENCH AFTER CONSIDERING BOTH THE ABOVE REFERRED DEC ISIONS OF THE SUPREME COURT DID NOT FIND ANY REASON TO DEVIATE FROM THE CASE OF RADHE DEVELOPERS (SUPRA) 15. THE ABOVE REFERRED DECISION IN THE CASE OF COMMISSIONER OF INCOME TAX-I V. ARCHAN ENTERPRISES WOULD BE SQUARELY APPLICABLE TO THE FACTS OF THE PR ESENT CASE. UNDER THE CIRCUMSTANCES, WHEN THE TRIBUNAL HA S RECORDED CONCURRENT FINDINGS OF FACT TO THE EFFECT THAT THE DECISION OF THIS COURT IN THE CASE OF RADHE DEVELOPERS (SUPRA) WOULD BE SQUARELY APPLICABLE TO THE FACTS OF THE PRESENT CASE, IN THE ABSENCE OF ANY PERVERSITY BEING POINTED OUT IN THE FINDINGS OF FACT RECORDED BY THE TRIBUNAL, THERE IS NO WARRANT FOR INTERFEREN CE. THE DECISION OF THE SUPREME COURT IN THE CASE OF LARSEN AND TOUBRO LIMITED (SUP RA) HAVING BEEN RENDERED IN THE CONTEXT OF THE KARNATAKA SALES TAX ACT AND THE MAHARASHTRA VALUE ADDED TAX ACT, WOULD NOT BE APPLICABLE TO THE FACTS OF TH E PRESENT CASE AND THE MEANING ASSIGNED TO THE EXPRESSION WORKS CONTRACT IN THE SAID DECISIONS CANNOT BE IMPORTED WHILE CONSTRUING THE MEANING OF THE SAI D EXPRESSION IN THE CONTEXT OF THE PROVISIONS OF THE INCOME TAX ACT. 16. IN THE LIGHT OF THE ABOVE DISCUSSION, IT IS NOT POSSIBLE TO STATE THAT THERE IS ANY LEGAL INFIRMITY IN THE IMPUGNED ORDER PASSED BY THE TRIBUNAL, SO AS TO GIVE RISE TO ANY QUESTION OF LAW, MUCH LESS, A SUBSTANTIAL QUEST ION OF LAW SO AS TO WARRANT INTERFERENCE. THE APPEAL, THEREFORE, FAILS AND IS, ACCORDINGLY DISMISSED. 8. RESPECTFULLY FOLLOWING THE JUDGMENT OF HON. HIGH COURT IN THE CASE OF CIT VS. VISHAL DEVELOPERS (SUPRA) WE ARE OF THE VIEW THAT ASSESSEE IS A DEVELOPER OF HOUSING PROJECT AND HAS COMPLIED WITH ALL THE CONDITIONS OF SECTION 80IB(10) OF THE ACT. WE, THEREFORE, FIND NO REASON TO INTERFERE WITH THE ORDER OF LD. CIT(A). W E UPHOLD THE SAME AND DISMISS THE APPEAL OF REVENUE. 9. OTHER GROUNDS OF GENERAL NATURE WHICH NEED NO AD JUDICATION. ITA NO. 34/AHD/2011 ASST. YEAR 2007-08 9 10. IN THE RESULT, APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH SEPTEMBER, 2016 SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER DATED 26/9/2016 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 1. DATE OF DICTATION: 21/09/2016 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 23/09/2016 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: 26/9/16 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: