ACIT, Jaipur V. M/S INDO CONTINENTAL HOTELS AND, Jaipur

ITA 486/JPR/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54213 (ITAT-JAIPUR)
• Duration Of Justice: 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 20-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUBHASH CHANDRA
• Assessee Lawyers: G G MUNDRA
• Keywords: Sale consideration of property below Jantri Value; Fair market value
• Section: 50C; 80IB; 6; 2

Judgement Text

1 ITA 486-11 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH B JAIPUR. ( BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ) ITA NO. 486/JP/2011 ASSTT. YEAR : 2008-09. THE ACIT, CIRCEL-3, VS. M/S. INDO CONTINENTAL HO TELS AND JAIPUR. RESORTS LTD., S.C. ROAD, JAIPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUBHASH CHANDRA RESPONDENT BY : SHRI G.G. MUNDRA DATE OF HEARING : 11.10.2011 DATE OF PRONOUNCEMENT : 21.10.2011. ORDER DATED : 21/10/2011. PER R.K. GUPTA, J.M. THIS IS AN APPEAL BY DEPARTMENT AGAINST THEORDER O F LD. CIT (A) RELATING TO ASSESSMENT YEAR 2008-09. 2. THE FOLLOWING GROUNDS HAVE BEEN TAKEN BY THE DEP ARTMENT IN ITS APPEAL :- WHETHER ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT (A) IS JUSTIFIED IN :- (I) DIRECTING TO ADOPT DLC RATE OF RS. 4200/- PER S Q. MTR AS FAIR MARKET VALUE OF THE IMMOVABLE PROPERTY WHEREAS THE GHAZIABAD DEVELOPMENT AUTHORITY HAS GIVEN RESERVE PRICE OF RS . 5700/- PER SQ. MTR. FOR THE ASSESSEES SPECIFIC PLOT OF LAND. (II) ALLOWING DEDUCTION U/S 80IB(10) TO THE ASSESSE E WHEN THE ASSESSEE COMPANY DOES NOT FULFILL THE CONDITIONS MENTIONED I N THIS SECTION. 2 3. THE LD. CIT D/R STATED THAT THOUGH THE ISSUE IS SIMILAR AS INVOLVED IN EARLIER YEAR AND IN EARLIER YEAR THE TRIBUNAL HAS DECIDED THE IS SUE IN FAVOUR OF THE ASSESSEE BY REJECTING THE APPEAL OF THE DEPARTMENT ON IDENTICAL GROUNDS, HOWEVER, IT WAS SUBMITTED THAT IN THIS YEAR THE AO HAS NOTED SOME NEW FACTS, WHICH ARE LIABLE TO BE TAKEN INTO CONSIDERATION. ATTENTION OF THE BENCH WAS DRAWN ON PAGE 10 OF THE ASSESSMENT ORDER. 4. ON THE OTHER HAND, THE LD. COUNSEL OF THE ASSESS EE SUBMITTED THAT THERE IS NO CHANGE IN FACTS AS IDENTICAL FACTS ARE INVOLVED IN THE YEAR UNDER CONSIDERATION, PROJECT IS ALSO THE SAME. THEREFORE, THERE MAY BE DIFFERENCE IN OBSERVING THE FACTS BUT THERE IS NO MATERIAL CHANGE IN FACTS. THE GROUNDS OF THE DEPA RTMENT ARE ALSO IDENTICALLY WORDED AS RAISED IN THE EARLIER YEAR. ATTENTION OF THE BENCH WAS DRAWN ON GROUNDS TAKEN IN EARLIER YEAR WHICH ARE REPRODUCED IN THE ORDER OF THE TRIBU NAL OF THE EARLIER YEAR, COPY OF WHICH IS PLACED ON RECORD. 5. WE HAVE HEARD RIVAL SUBMISSIONS AND CONSIDERED T HEM CAREFULLY. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING THE MATERI AL ON RECORD, WE FIND THAT ISSUE IS SQUARELY COVERED BY THE DECISION OF THE TRIBUNAL FO R IMMEDIATELY PRECEDING YEAR I.E. 2007-08 DECIDED IN ITA NO. 351/JP?2010 VIDE ORDER D ATED 6.5.2011. THE GROUNDS OF THE DEPARTMENT ARE ALSO IDENTICALLY WORDED FOR THE YEAR UNDER CONSIDERATION. IT IS FURTHER SEEN THAT AO ALSO REJECTED THE CLAIM OF THE ASSESSEE DET ERMINING THE CAPITAL GAIN BY ADOPTING MARKET VALUE OF RS. 5700/- AGAINST FAIR MARKET VALU E OF RS. 4200/- AND IN THIS WAY THE CAPITAL GAIN WAS HELD ASSESSABLE AT RS. 1,90,78,560 /- UNDER SECTION 45(2). THE BRIEF FACTS HAVE BEEN DISCUSSED IN THE ORDER OF LD. CIT (A) AT PAGES 1 & 2 WHICH REPRODUCED HERE AS UNDER :- THE APPELLANT HAS SHOWN LONG TERM CAPITAL GAIN O F RS.14L28227/- ON SALE OF LAND OF HOUSING PROJECT AT GHAZIABAD. TH E APPELLANT WAS 3 ASKED TO EXPLAIN WHY RATE OF RS.5700/- PER SQ. MT. WHICH IS SPECIFIC RATE OF LAND PRESCRIBED BY GHAZIABAD DEVELOPMENT AU THORITY SHOULD NOT BE TAKEN INSTEAD OF RS.4200/- PER SQ. MT . TAKEN BY THE APPELLANT AS PER GENERAL RATE OF THAT LOCALITY PRES CRIBED BY THE DISTT. COLLECTOR AND ADOPTED BY THE APPELLANT. IT WAS EXPL AINED BY THE APPELLANT THAT DLC RATE OF RS.4200/- PER SQ. MT. WA S APPLICABLE FOR ASCERTAINING THE MARKET VALUE AS ON DATE OF CONVERS ION OF FIXED ASSET TO STOCK IN TRADE AND NOT THE RESERVE PRICE O F LOCAL AUTHORITY I.E. RS.5700/- PER SQ. MT. THAT THE ISSUE STAND FIN ALLY DECIDED IN FAVOUR OF THE APPELLANT COMPANY IN APPEAL ORDER FOR AY 04-05 WHICH ORDER HAS BEEN CONFIRMED IN 2ND APPEAL AND TH E DEPARTMENT HAS NOT CHALLENGED THE FINDING OF CIT(A) ON THIS IS SUE. FURTHER, IN FIRST APPEAL FOR AY 07-08 THE VIEW OF APPELLANT WAS UPHELD. THE MARKET VALUE OF LAND AS PER SCHEME OF THE ACT IS AD OPTED AS PER DLC RATE (AS PRESCRIBED IN SECTION 50C/56(2) OF THE ACT) AND NOT ON RESERVE PRICE OF LOCAL AUTHORITIES MEANT FOR AUC TION/ALLOTMENT OF PLOT OF LAND. DETAILED SUBMISSION WAS MADE DURING T HE ASSESSMENT PROCEEDINGS FOR AY 04-05 AND 07-08 ON THIS ISSUE. THE AO HOWEVER, DID NOT CONSIDER THE EXPLANATION OF THE APPELLANT AS ACCEPTABLE ON THE GROUND THAT THE RATE GIVEN BY GHAZIABAD DEVELOPMENT AUTHORITY WAS FOR THE APPELLA NTS SPECIFIC PLOT OF LAND WHEREAS THE RATE GIVEN BY DISTT. COLLE CTOR WAS A GENERAL RATE OF THAT AREA. THAT THE RESERVE PRICE O F GHAZIABAD DEVELOPMENT AUTHORITY HAPPENS TO BE THE FAIR MARKET VALUE FOR SAID PLOT OF LAND WHICH SHOULD BE ADOPTED FOR THE P ROVISIONS OF SECTION 45(2). THE AO, THEREFORE, CONSIDERED RATES PRESCRIBED BY GHAZIABAD DEVELOPMENT AUTHORITY FAIR AND REASONABLE AND ACCORDINGLY LONG TERM CAPITAL GAIN OF DIFFERENCE AM OUNT OF RS. 1500/- PER SQ. MT. (5700-4200) OF TOTAL AREA O 1271 9 SQ. MT. WAS 4 WORKED OUT AT RS.L9078560/- AND SAME WAS ADDED TO T HE TOTAL INCOME OF THE APPELLANT. 6. CONTENTION OF THE ASSESSEE HAS BEEN DISCUSSED BY LD. CIT (A) AT PAGES 2 & 3 IN THE FOLLOWING MANNER :- CONTENTION OF THE AR IS THAT THE SAME ISSUE CAME U P IN APPEAL IN CASE OF THE APPELLANT FOR A.Y 04-05 WHEN WHOLE CAPI TAL GAIN WAS TAXED IN AY 04-05 HOLDING THAT ENTIRE PLOT OF LAND GOT TRANSFERRED ON THE DATE OF APPROVAL OF PLANS FOR HOUSING PROJEC T ON 25.4.03 BY COMPETENT AUTHORITIES. THE AO WHILE WORKING THE CAP ITAL GAIN ADOPTED THE FAIR MARKET VALUE AS ON DATE OF TRANSFE R AT RS.5700/-PER SQ. MT. ON THE BASIS OF SAID RESERVE PRICE RATE OF GHAZIABAD DEVELOPMENT AUTHORITY. DETAILED SUBMISSION MADE AT THE TIME OF APPELLATE PROCEEDINGS FOR AY 04-05 WAS REPRODUCED. IT WAS FURTHER SUBMITTED BY THE AR THAT THE APPEAL WAS DECIDED IN FAVOUR OF THE APPELLANT VIDE ORDER DATED 20.9.07 ON THIS GROUND T HAT CAPITAL GAIN WAS NOT ASSESSABLE IN AY 04-05. THE DEPARTMENT FILE D APPEAL BEFORE THE HONBLE ITAT AGAINST ORDER OF CIT(A) BUT CHALLENGED THE CIT(A) S DECISION ONLY ON THE GROUND OF DELETI ON OF CAPITAL GAINS ASSESSED IN AY 04-05 ON THE BASIS OF APPROVAL PLANS BY AN COMPETENT AUTHORITIES BUT NO APPEAL WAS FILED ON TH E ABOVE GROUND DECIDED BY CIT(A). THERE WAS NO ARGUMENT ON THIS IS SUE BEFORE THE HONBLE ITAT WHO HAS UPHELD THE ORDER OF CIT(A) VID E THEIR ORDER DATED 31.12.08. THUS THE SAID ORDER OF CIT(A) HAS B ECOME FINAL, THE GROUND OF APPEAL, THEREFORE, DESERVES TO BE ALL OWED IN FAVOUR OF THE ASSESSEE COMPANY. WITHOUT PREJUDICE TO THE ABOVE THE AO LATER MADE AV AILABLE CERTIFICATE ISSUED BY GHAZIABAD DEVELOPMENT AUTHORI TY WHICH GIVES RESERVE PRICE FOR DISPOSAL/SALE OF GROUP HOUS ING PLOT OF THE 5 AREA FOR AUCTION/ALLOTMENT PURPOSES. THE RESERVE PR ICE IS A PRICE FIXED BY AN AUCTIONEER BELOW WHICH HE WILL NOT SELL HIS PROPERTY/ITEMS AT THE AUCTION. RESERVE PRICE IS ALW AYS WITH REFERENCE TO AN AUCTION AND THE SELLER MAY NOT SELL THE GOODS IF THE BIDS RECEIVED ARE LESS THAN THE RESERVE PRICE. THE DEVELOPMENT AUTHORITIES HAVE DIFFERENT POLICIES FOR FIXING THE RESERVE PRICE WHICH MAY BE CHANGED FROM TIME TO TIME DEPENDING ON THE RESPONSE AT A PARTICULAR RESERVE PRICE AT THE LAST AUCTION IN THAT AREA. RESERVE PRICE, THEREFORE, CANNOT BE TAKEN AS THE FA IR MARKET PRICE AS IT CAN VARY FROM AUCTION TO AUCTION AND SOLELY DEPE NDS UPON THE WISHES OF AUCTIONEER. WITH THIS, IT WAS SUBMITTED T HAT THE FAIR MARKET VALUE IS TO BE TAKEN AS PER DLC RATE WHICH ARE DETERMINED BY STAMP VALUATION AUTHORITY AND MEANT FOR ASSESSIN G FAIR MARKET VALUE FOR REGISTERING ANY SALE DEED/AGREEMENT TO SA LE ON THAT DATE. THIS IS ALSO IN ACCORDANCE WITH THE PROVISIONS OF S ECTION 50C OF IT ACT FOR ASSESSING CAPITAL GAIN. 7. THE LD. CIT (A) AFTER FOLLOWING THE ORDER OF EAR LIER YEAR ALLOWED THE APPEAL OF THE ASSESSEE BY OBSERVING AS UNDER :- CONTENTION OF THE AR IS CONSIDERED. THE ISSUE CAME UP DURING THE HEARING OF APPEAL IN AY 04-05 AND 07-08 WHEN THE IS SUE WAS DECIDED IN FAVOUR OF THE APPELLANT. RESERVE PRICE I S A PRICE FIXED BY AN AUCTIONEER BASED ON HIS WHIMS AND FANCY. DEPENDI NG ON THE RESPONSE FROM THE PROSPECTIVE BUYERS THE RESERVE PR ICE MAY BE CHANGED IN SUBSEQUENT AUCTION. IT IS THE FAIR MARKE T VALUE WHICH IS TO BE TAKEN FOR COMPUTATION OF CAPITAL GAIN. WITH T HE INSERTION OF SECTION 50C THERE REMAINS NO DOUBT THAT THE FAIR MA RKET VALUE IS WHAT, WHICH IS ADOPTED BY THE STAMP VALUATION AUTHO RITY FOR REGISTERING THE PROPERTY UNDER SALE OR TRANSFER. TH E PROVISIONS OF 6 SECTION 50C ARE DEEMING PROVISIONS WHEREIN THE VALU E TAKEN BY STAMP VALUATION AUTHORITY IS DEEMED TO BE TAKEN AS FULL VALUE OF CONSIDERATION RECEIVED AS A RESULT OF TRANSFER OF P ROPERTY. FURTHER, VALUE TAKEN BY STAMP VALUATION AUTHORITY IS DLC RAT E ONLY AND, THEREFORE, THE DLC RATE TAKEN BY THE APPELLANT IS C ORRECTLY TAKEN FOR COMPUTATION OF CAPITAL GAIN. THE ACTION OF AO CANNO T BE UPHELD. THE ADDITION OF RS.19078560/- MADE BY AO IS HEREBY DELETED. THE 1ST GROUND OF APPEAL IS DECIDED IN FAVOUR OF THE AP PELLANT. 8. AS STATED ABOVE, IDENTICAL ISSUE IS INVOLVED IN THE EARLIER YEAR AND THE TRIBUNAL HAS CONFIRMED THE ORDER OF LD. CIT (A) BY HOLDING THAT SIMILAR ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE FOR ASSESSMENT YEAR 2004-05 AND ACCORDINGLY THE ISSUE WAS ACCORDINGLY DECIDED IN FAVOUR OF THE ASSESSEE. SIN CE FACTS ARE IDENTICAL, THEREFORE, FOLLOWING THE DECISION OF EARLIER YEAR OF THE TRIBU NAL, WE CONFIRM THE ORDER OF LD. CIT (A) FOR THE YEAR UNDER CONSIDERATION ALSO. 9. REGARDING DEDUCTION UNDER SECTION 80IB, AGAIN FA CTS ARE SIMILAR. BRIEF FACTS HAS BEEN DISCUSSED BY LD. CIT (A) IN HIS ORDER AT PAGES 4 & 5 ARE AS UNDER :- THE COMPANY HAD CONSTRUCTED HOUSING PROJECT AT 1 8A, SENTOSA CITY SCHEME INDRAPURAM YOJNA) GHAZIABAD. DEDUCTION U/S 801B(10) WAS CLAIMED @ 100% ON PROFITS AMOUNTING TO RS.47706498/- FROM THIS HOUSING PROJECT AND CLAIM W AS MADE BY FILING AUDIT REPORT IN FORM IOCCB. THE CLAIM WAS RE JECTED ON THE FOLLOWING GROUNDS: (I) DEDUCTION U/S 80IB (10) IS AVAILABLE TO A DEV ELOPER IN SUBSTANCE. THE APPELLANT WAS NOT CONSIDERED DEVELO PER OR BUILDER AS THE APPELLANT MERELY ENTERED INTO A DEVELOPMENT AGREEMENT WITH M/S PARASVNATH DEVELOPERS LTD. FOR THE SPECIFIC PUR POSE OF 7 DEVELOPMENT/CONSTRUCTION AND MARKETING. AS PER THE AGREEMENT, THE APPELLANT WAS ENTITLED TO 1/3 RD SHARE IN THE SALE PROCEEDS AND HAD NO ROLE TO PLAY IN ANY DEVELOPING AND CONSTRUCT ING ACTIVITIES. THE AO RELIED UPON THE DECISION OF HONBLE AHMEDABA D TRIBUNAL IN THE CASE OF RADHEY DEVELOPERS & ORS VS. ITO 113 TTJ 300. (II) ACCOUNTING TREATMENT OF THE INCOME FROM HOUS ING PROJECT ALSO DOES NOT SUPPORT THE CLAIM FOR DEDUCTION. THE DEDUC TION CAN BE CLAIMED EITHER ON YEAR TO YEAR BASIS, IN CASE PARTI AL COMPLETION OF THE PROJECT METHOD IS FOLLOWED OR IN THE YEAR OF CO MPLETION OF THE PROJECT IN CASE THE PROJECT COMPLETION METHOD IS FO LLOWED. IN THE APPELLANT CASE NEITHER PARTIAL COMPLETION METHOD NO R THE PROJECT COMPLETION METHOD WAS FOLLOWED. AS IN PARTIAL COMPL ETION METHOD THE APPELLANT WAS REQUIRED TO DISCLOSE INCOME FROM AY 04-05 ONWARDS WHEREAS THE APPELLANT HAS DECLARED INCOME F ROM THE PROJECT FIRST TIME IN AY 07-08 ONLY. (III) THE REASONS DISCUSSED IN AY 07-08 I.E. (A) T HAT THE ASSESSEE COMPANY DID NOT COMPLY WITH THE PROVISIONS OF SECTI ON 801B(10)(C)/14(A) OF SECTION 801B(10) (B) THAT THE APPELLANT DOES NOT FALL UNDER THE CATEGORY OF AN INDUSTRIAL UNDERT AKING AND DOES NOT FULFILL THE CONDITIONS LAID DOWN U/S 801B(2). REGARDING THE LAST 3 GROUNDS RAISED BY THE AO AS PE R AY 07-08, IT WAS HELD WHILE DECIDING THE APPEAL FOR AY 07-08 THAT THE APPELLANT FULFILLS ALL THE 3 CONDITIONS. AFTER CONS IDERING THE DETAILED SUBMISSIONS OF THE AR THE FINDING WAS GIVEN. IT WAS HELD THAT DEDUCTION UNDER SUB SECTION (10) IS AVAILABLE TO AN Y UNDERTAKING NOT NECESSARY TO BE AN INDUSTRIAL UNDERTAKING. FURT HER, DEFINITION OF BUILT UP AREA CAME INTO STATUTE W.E.F. 1.4.05 AND, THEREFORE, ANY HOUSING PROJECT WHICH WAS APPROVED BEFORE 31.3.05, WILL NOT COVER BY THE AMENDMENT. SIMILARLY, PRESCRIBING CEILING OF 5% OF 8 AGGREGATE BUILT UP AREA KEPT FOR COMMERCIAL ESTABLI SHMENT WAS FURTHER RESTRICTED TO 2000 SQ. FT. THAT AMENDMENT I S EFFECTIVE FROM 1.4.05 AND, THEREFORE, THIS CEILING WILL NOT BE APP LICABLE FOR THE PROJECT SANCTIONED PRIOR TO 1.4.05. THIS PRINCIPLE WAS LAID DOWN BY HON'BLE ITAT SPECIAL BENCH OF PUNE IN THE CASE OF B RAHMA ASSOCIATES VS. JCIT (2009) 315 ITR (AT) 268 (PUNE). THE SAID DECISION OF ITAT HAS BEEN UPHELD BY BOMBAY H.C. REP ORTED IN (2011) 239 CTR (BOM) 30. THE HONBLE COURT HELD THA T WHEN A LOCAL AUTHORITY APPROVED A PROJECT TO BE HOUSING PR OJECT WITH OR WITHOUT COMMERCIAL USE THEN THE PROJECT APPROVED IS ELIGIBLE FOR DEDUCTION U/S 801B(1O) IRRESPECTIVE OF THE FACT THA T PROJECT WAS APPROVED AS HOUSING PROJECT OR AS RESIDENTIAL PLUS COMMERCIAL. IT WAS HELD THAT RESTRICTION REGARDING SIZE OF RESIDEN TIAL UNIT WAS SPECIFIED WITH A VIEW TO MAKE AVAILABLE LARGE NUMBE R OF AFFORDABLE HOUSES TO COMMON MEN AND NOT WITH A VIEW TO DENY CO MMERCIAL USER IN RESIDENTIAL PLOT. THE HONBLE COURT HELD TH AT TRIBUNAL WAS NOT CORRECT IN ALLOWING DEDUCTION U/S 801B ONLY IN RESPECT OF RESIDENTIAL PLOT ON THE GROUND THAT PROFITS THERE F ROM COULD BE DETERMINED ON STAND ALONE BASIS. THE ARGUMENTS OF T HE REVENUE THAT SECTION 801B(10) AS AMENDED INSERTING CLAUSE (D) SH OULD BE RETROSPECTIVELY SO FOUND NO MERIT AS CLAUSE (D) HAS BEEN SPECIFICALLY INSERTED W.E.F 1.4.05 AND, THEREFORE, IT CANNOT BE APPLIED FOR THE PERIOD PRIOR TO 1.4.05. THE TRIBUNA L WAS JUSTIFIED IN HOLDING THAT CLAUSE (D) INSERTED W.E.F. 1.4.05 IS P ROSPECTIVE AND NOT RETROSPECTIVE. THE DISALLOWANCE MADE BY THE AO ON T HE ABOVE MENTIONED 3 GROUNDS, THEREFORE, CANNOT BE UPHELD. H OWEVER, THE FIRST TWO OBJECTIONS OF AO AND THE SUBMISSION OF TH E AR THEREON ARE NOW DISCUSSED. 9 THE AOS OBJECTION THAT THE APPELLANT DID NOT QUALI FY A BUILDER AND DEVELOPER AND HOUSING PROJECT BUT MERELY IS OWNER O F LAND AND DEVELOPERS ACTIVITY WAS UNDERTAKEN. 10. DETAILED SUBMISSIONS WERE FILED BEFORE LD. CIT (A) WHICH HAS BEEN DISCUSSED AT PAGES 5 TO 7 OF HIS ORDER. THEREAFTER, LD. CIT (A ) FOLLOWING THE ORDER OF EARLIER YEAR ALLOWED THE ISSUE IN FAVOUR OF THE ASSESSEE AS THE FACTS ARE IDENTICAL. 11. AFTER CONSIDERING THE FINDING OF LD. CIT (A) AN D THE ORDER OF TRIBUNAL FOR EARLIER YEAR I.E. 2007-08, WE FIND THAT ON IDENTICAL FACTS THE DEDUCTION UNDER SECTION 80IB WAS REJECTED BY THE AO. THE LD. CIT (A) ALLOWED THE IS SUE IN FAVOUR OF THE ASSESSEE. 12. ON APPEAL BY DEPARTMENT, THE TRIBUNAL HAS CONFI RMED THE FINDING OF LD. CIT (A) BY DISCUSSING THE ISSUE IN DETAIL. THE DEPARTMENT HAS PLACED RELIANCE ON VARIOUS CASE LAWS AND HAS ARGUED AT LENGTH. ALL THE ARGUMENTS O F THE DEPARTMENT AS WELL AS OF THE ASSESSEE WERE TAKEN INTO CONSIDERATION. THE TRIBUN AL FOUND THAT LD. CIT (A) WAS JUSTIFIED IN ALLOWING THE ISSUE IN FAVOUR OF THE ASSESSEE. TH E ARGUMENT OF THE DEPARTMENT AS WELL AS OF THE LD. COUNSEL OF THE ASSESSEE AND FINDINGS OF THE TRIBUNAL HAVE BEEN RECORDED IN PARA 17 ONWARDS AT PAGES 11 TO 20 WHICH ARE AS UNDER :- 17. THE LD. CIT D/R, FIRSTLY PLACED RELIANCE ON THE ORDER OF THE AO. IT WAS FURTHER CONTENDED THAT THE ASSESSEE IS NOT A DE VELOPER AND BUILDER ITSELF AND, THEREFORE, THE ASSESSEE IS NOT ENTITLED FOR DEDUCTION UNDER SECTION 80IB(10). THE FIRST CONDITION FOR CLAIMING DEDUCTION UNDER SECTION 80IB(10) IS THAT THE PERSON WHO IS CLAIMING DEDUCTI ON SHOULD BE A DEVELOPER AND BUILDER OF HOUSING PROJECT. THE ASSE SSEE ENTERED INTO AN AGREEMENT WITH M/S. PARSWANATH BUILDERS PVT. LTD. I N THE RATIO OF 33% AND 67%. THE ASSESSEE EXCEPT PROVIDING LAND HAS DONE N OTHING AS ENTIRE PROJECT HAS BEEN DEVELOPED BY M/S. PARSWANATH BUILD ERS PVT. LTD. THE 10 ASSESSEE JUST TO CLAIM DEDUCTION UNDER SECTION 80IB (10) HAS SHOWN ITSELF AS A DEVELOPER AND BUILDER OF A HOUSING PROJECT. E NTIRE FUNDS ARE INVESTED BY M/S PARSWANATH BUILDERS PVT. LTD. ALL ACTIVITIES FOR COMPLETING THE PROJECT IS DONE BY M/S. PARSWANATH B UILDERS PVT. LTD. THE PROJECT HAS BEEN COMPLETED UNDER THE SUPERVISION AN D CONTROL OF M/S. PARSWANATH BUILDERS PVT. LTD. THEREFORE, THE ASSES SEE CANNOT BE EQUATED WITH A DEVELOPER AND BUILDER OF A HOUSING PROJECT. RELIANCE HAS BEEN PLACED ON THE DECISION OF AHMEDABAD BENCH OF TRIBUN AL IN THE CASE OF M/S. RADHEY DEVELOPERS & ORS VS. ITO, 113 TTJ 300 A ND ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF FAQIR CHAND GULATI VS. UPPAL AGENCIES PVT. LTD. AND ANOTHER IN CIVIL APPEAL NO. 3302 OF 2005 DATED 10.7.2008. ACCORDINGLY, IT WAS SUBMITTED THAT THE D EDUCTION ALLOWED BY LD. CIT (A) IS NOT JUSTIFIED AS ASSESSEE CANNOT BE TERM ED AS THOSE OF A DEVELOPER AND BUILDER OF A HOUSING PROJECT. THE AS SESSEE IS ENTITLED TO MERELY ONE-THIRD SHARE IN THE SALE PROCEEDS AND HAS NO ROLE TO PLAY IN ANY DEVELOPING AND CONSTRUCTING ACTIVITIES. IT WAS FUR THER SUBMITTED THAT THE DEVELOPMENT AGREEMENT ENTERED BY ASSESSEE WITH M/S. PARSWANATH BUILDERS PVT. LTD. IS NOT IN NATURE OF JOINT VENTU RE OR COLLABORATION AGREEMENT AS M/S. PARSWANATH BUILDERS PVT. LTD. HAS DONE ENTIRE WORK OF DEVELOPING THE HOUSING PROJECT AND MARKETING OF SEP ARATE RESIDENTIAL AND COMMERCIAL PREMISES ON THE PLOT OWNED BY THE COMPAN Y WITH M/S. PARSWANATH DEVELOPERS LTD. THE HONBLE APEX COURT IN CASE OF FAQIR CHAND GULATI VS. UPPAL AGENCIES PVT. LTD (SUPRA) HA S CLEARLY HELD THAT MERELY ENTERING INTO A JOINT VENTURE CANNOT BE HELD AS A JOINT VENTURE. SOME PORTION OF JUDGEMENT WAS READ ALSO BY LD. CIT D/R. ACCORDINGLY IT WAS SUBMITTED THAT ASSESSEE IS NOT ENTITLED TO ANY DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IN RESPECT OF PROFITS FROM THE HOUSING PROJECT WHICH HAS NOT BEEN DEVELOPED BY THE ASSESSEE. THE ASSESS EE BEING MERELY AN OWNER OF THE LAND AND HAVING NOT PERFORMED ANY REAL ACTIVITY WITH REGARD TO THE DEVELOPMENT AND BUILDING OF HOUSING PROJECT DOES NOT QUALIFY THE BASIC ELIGIBILITY CONDITION PRESCRIBED UNDER SECTIO N 80IB(10) OF THE ACT. 11 18. IN REPLY, THE LD. COUNSEL OF THE ASSESSEE FIRST PLACED RELIANCE ON THE ORDER OF LD. CIT (A). IT WAS FURTHER SUBMITTED THAT THE CONTENTION OF LD. CIT D/R ARE NOT CORRECT. ATTENTION OF THE BENCH WAS DRA WN ON VARIOUS DOCUMENTS PLACED IN THE PAPER BOOK. IT WAS EXPLAIN ED THAT ALL THE FORMALITIES HAVE BEEN DONE BY THE ASSESSEE FOR COMP LETING THIS PROJECT. NO DOUBT, THE ASSESSEE HAS ENTERED INTO DEVELOPMENT AG REEMENT WITH M/S. PARSWANATH DEVELOPERS LTD. ON 2.9.2002 WITH A PROFI T SHARING RATIO OF ONE- THIRD AND TWO-THIRD. THE ASSESSEE HAS CONTRIBUTED I TS LAND AND M/S. PARSWANATH DEVELOPERS LTD HAS CONTRIBUTED FUNDS FOR DEVELOPING THE HOUSING PROJECT. WITHOUT LAND, THE DEVELOPMENT WOR K CANNOT BE STARTED. THEREFORE, FIRST CONTRIBUTION IS MADE BY THE ASSESS EE AND THEN M/S. PARSWANATH DEVELOPERS LTD. HAS INVESTED FUNDS FOR S TARTING DEVELOPMENT OF THE HOUSING PROJECT. NECESSARY PERMISSION FOR B UILDING PLAN BY GHAZIABAD DEVELOPMENT AUTHORITY HAS BEEN OBTAINED B Y THE ASSESSEE. THE HOUSING PROJECT HAS BEEN CLEARED BY GHAZIABAD D EVELOPMENT AUTHORITY IN THE NAME OF ASSESSEE. LETTER OF APPRO VAL OF HOUSING PROJECT OF COMPANY BY GHAZIABAD DEVELOPMENT AUTHORITY HAS B EEN GIVEN IN THE NAME OF THE ASSESSEE, COPY OF WHICH IS PLACED ON RE CORD AT PAGE 45. APPLICATION WAS MOVED BY THE ASSESSEE, ALL THE STRU CTURAL SAFETY AND NATURAL HAZARD PROTECTION OF BUILDINGS WERE ALSO FI LED ON BEHALF OF THE ASSESSEE. COPY OF THE SAME IS PLACED AT PAGES 47 T O 53 OF THE PAPER BOOK. ARCHITECTURAL AND STRUCTURAL SUPERVISION HAS BEEN D ONE IN THE NAME OF THE ASSESSEE. ATTENTION OF THE BENCH WAS DRAWN ON PAGE 29 OF THE PAPER BOOK WHERE A LETTER WAS ISSUED BY GDA DATED 25..4.2003 I N THE NAME OF THE ASSESSEE BY WHICH THE ASSESSEE WAS REQUIRED TO FILE VARIOUS DETAILS NUMBERING 20 AND THEREAFTER ASSESSEE HAS FILED ALL THESE DETAILS BEFORE GDA FOR GRANTING THE APPROVAL OF THE HOUSING PROJEC T. THE COPY OF THE AGREEMENT IS PLACED IN THE PAPER BOOK AT PAGES 12 T O 23 WHICH IS SIGNED BY THE DIRECTOR OF THE ASSESSEE COMPANY AND DIRECTOR O F M/S. PARSWANATH DEVELOPERS LTD. BEFORE THAT, A RESOLUTION WAS PASS ED IN THE YEAR 1996 FOR ENTERING INTO AN AGREEMENT WITH M/S. PARSWANATH DE VELOPERS LTD. FOR THE 12 PURPOSE OF DEVELOPING THE HOUSING PROJECT. CERTIFI ED COPIES WERE GIVEN TO THE VARIOUS AUTHORITIES. COPIES OF THESE DOCUMENTS ARE PLACED IN THE PAPER BOOK. IT WAS FURTHER SUBMITTED THAT ORIGINALLY THE PIECE OF LAND PURCHASED BY ASSESSEE WAS SHOWN AS INVESTMENT IN LAND AND THE REAFTER IN ASSESSMENT YEAR 2004-05 THIS PLOT OF LAND WAS CONVERTED INTO S TOCK-IN-TRADE AND CAPITAL GAIN ON CONVERSION OF PLOT INTO STOCK-IN-TR ADE WAS PAID IN A.Y. 2004-05. THE MATTER REACHED TO THE STAGE OF TRIBUN AL AND TRIBUNAL HAS ACCEPTED THAT THIS PLOT OF LAND WAS CONVERTED INTO STOCK IN TRADE AND HAS SHOWN CAPITAL GAIN. HOWEVER, THE AO IN THAT YEAR M ADE AN ADDITION OF RS.6.5 CRORES OR ODD WHICH WAS DELETED BY LD. CIT ( A) AND THE ORDER OF LD. CIT (A) HAS BEEN AFFIRMED BY THE TRIBUNAL. 18.1. IN FACT, THE ASSESSEE COMPANY HAS PURCHASED A PLOT IN THE YEAR OF 1996 FOR DEVELOPING A HOTEL/COMMERCIAL INSTITUTION. HOWEVER, ASSESSEE COMPANY DID NOT FOUND IT FEASIBLE TO CONSTRUCT A HO TEL. THUS IT GOT THE LAND USE CHANGED INTO RESIDENTIAL/COMMERCIAL FROM HOTEL ON 2.9.2002 AND ASSESSEE COMPANY ENTERED INTO A DEVELOPMENT AGREEME NT WITH M/S. PARSWANATH DEVELOPERS LTD. AND THIS FACT HAS ALSO B EEN MENTIONED IN THE ORDER OF TRIBUNAL DECIDED IN ITA NO. 995/JP/2007 VI DE ORDER DATED31.12.2008. ACCORDINGLY IT WAS SUBMITTED THAT THE ASSESSEE HAS NOT TRANSFERRED ITS LAND TO M/S. PARSWANATH DEVELOPERS LTD AS ENTIRE PIECE OF LAND WAS IN THE NAME OF ASSESSEE AND IT REMAINED IN THE NAME OF ASSESSEE. ONLY PROJECT DEVELOPMENT AGREEMENT WAS ENTERED BY T HE ASSESSEE WITH M/S. PARSWANATH DEVELOPERS LTD. AND BOTH I.E. ASSES SEE AND M/S. PARSWANATH DEVELOPERS LTD. HAVE DONE THE DEVELOPMEN T WORK TOGETHER. WITHOUT THE USE OF ASSESSEES INFRASTRUCTURE, THE H OUSING PROJECT COULD NOT HAVE BEEN COMPLETED AND, THEREFORE, THE CONTENTION OF THE DEPARTMENT OR OF THE LD. CIT D/R THAT ASSESSEE IS MERELY A NAME LEND ER IS NOT CORRECT. RELIANCE WAS PLACED ON VARIOUS CASE LAWS I.E. IN CA SE OF BRAHMA ASSOCIATES,239 CTR 30, IN CASE OF M/S. SAROJ SALES ORGANIZATION VS. ITO, 115 TTJ 485, IN CASE OF PARCH CORPORATION VS. ITO, 23 SOT 368, IN CASE OF ENEM NOSTRUM REMEDIES P. LTD. VS. ACIT, 119 ITD 427, IN CASE OF 13 ITO VS. AIR DEVELOPERS, 123 TTJ 959, IN CASE OF ARU N EXCELLO FOUNDATIONS P. LTD. VS. ACIT, 108 TTJ 71 AND IN CAS E OF DCIT VS. BRIGADE ENTERPRISES PVT. LTD., 119 TTJ 269. REGARD ING THE DECISIONS RELIED ON BY LD. CIT D/R, IT WAS STATED THAT FACTS ARE TOTALLY DIFFERENT FROM THE CASES RELIED UPON BY LD. CIT D/R. 19. REGARDING THE CASE OF RADHEY DEVELOPERS, 113 TT J 300, IT WAS SUBMITTED THAT THIS JUDGMENT IS ON A DIFFERENT FACT S. IN FACT, IN THIS CASE THE ISSUE WAS WHETHER THE ASSESSEE IS ELIGIBLE FOR CLAI M DEDUCTION UNDER SECTION 80IB(10) ON THE PROFIT DERIVED FROM DEVELOP ING AND BUILDING HOUSING PROJECT WHEN THE LAND WAS NOT REGISTERED IN THE NAME OF ASSESSEE. IN THE PRESENT CASE THE LAND IS REGISTERED IN THE N AME OF ASSESSEE, THEREFORE, THE RATIO OF THAT DECISION RATHER SUPPORTS THE CASE OF THE ASSESSEE. 20. REGARDING THE DECISION OF HONBLE APEX COURT IN THE CASE OF FAQIR CHAND GULATI (SUPRA), IT WAS SUBMITTED THAT THE ISS UE WAS ENTIRELY DIFFERENT AS THE HONBLE SUPREME COURT HAS DECIDED THE ISSUE BETWEEN TWO PARTIES I.E. FAQIR CHAND GULATI AND M/S. UPPAL AGENCIES PVT . LTD. THE RATIO OF THIS JUDGMENT WAS ALSO READ AND IT WAS STATED THAT IN NO MANNER THIS RATIO OF THE HONBLE APEX COURT DECISION IS APPLICABLE IN THE FA CTS OF THE PRESENT CASE. 21. WE HAVE HEARD RIVAL SUBMISSIONS AND CONSIDERED THEM CAREFULLY. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD AS WELL AS TAKING INTO CONSIDERATION THE VARIOUS DECIS IONS RELIED UPON BY BOTH THE PARTIES, WE ARE OF THE VIEW THAT LD. CIT (A) WA S JUSTIFIED IN ALLOWING THE DEDUCTION TO THE ASSESSEE. MAIN OBJECTION, RAT HER IT CAN BE SAID THAT ONLY OBJECTION OF THE DEPARTMENT NOW IS THAT THE AS SESSEE IS MERELY NAME LENDER IN THE PROJECT AS THE PROJECT HAS BEEN COMPL ETED BY M/S. PARSWANATH DEVELOPERS LTD. ONLY. ENTIRE FUNDS WERE INVESTED B Y M/S. PARSWANATH DEVELOPERS LTD. AND NOT BY ASSESSEE. THEREFORE, IT CANNOT BE TERMED AS JOINT VENTURE IN TERMS OF SECTION 80IB(10). 21.1. AFTER TAKING INTO CONSIDERATION THESE ARGUMEN TS OF THE DEPARTMENT AND GOING THROUGH THE ORDER OF THE AO, IT IS SEEN T HAT THIS WAS NOT CASE OF THE AO THAT ASSESSEE IS NOT A BUILDER AND DEVELOPER OF A HOUSING PROJECT. 14 THE AO HAS DENIED DEDUCTION UNDER SECTION 80IB(10) BY OBSERVING THAT CERTAIN OTHER CONDITIONS FOR CLAIMING DEDUCTION UND ER THIS SECTION ARE NOT SATISFIED. THEREFORE, THERE IS NO MUCH SUBSTANCE IN THESE ARGUMENTS RAISED AT THIS POINT OF TIME. IT IS SEEN THAT LD. CIT (A) HAS TAKEN INTO CONSIDERATION ALL CONTENTIONS OF THE AO FOR REJECTI NG THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) AND THE ARGUMENTS OF THE LD. A/R OF THE ASSESSEE AND FOUND THAT OBJECTIONS RAISED BY THE AO WERE NOT CORRECT. EVEN IF THE ARGUMENT OF THE DEPARTMENT THAT ASSESSE E IS NOT A BUILDER AND DEVELOPER OF HOUSING PROJECT IS TAKEN INTO CONSIDER ATION, THEN ALSO IT IS SEEN THAT THIS ARGUMENT OF THE DEPARTMENT IS NOT CO RRECT. 21.2. WE HAVE SEEN THE VARIOUS DETAILS PLACED IN TH E RECORD. IT IS NOTICED THAT THE PLOT WAS PURCHASED BY THE ASSESSEE IN 1996 AND THE SAME WAS SHOWN AS FIXED ASSET IN THE BALANCE SHEET. THEREAF TER ASSESSEE IN THE YEAR OF 2004-05 OR SO CONVERTED THE FIXED ASSETS INTO ST OCK IN TRADE AND SHOWN THE CAPITAL GAIN IN A.Y. 2004-05. THE AO TREATED T HE CAPITAL GAIN AS SHORT TERM AND ENHANCED THE CAPITAL GAIN. ASSESSEE FILED APPEAL BEFORE THE LD. CIT (A) WHO ALLOWED THE CLAIM OF THE ASSESSEE AND T HE ORDER OF LD. CIT (A) HAS BEEN AFFIRMED BY THE TRIBUNAL, COPY OF THE SAME IS PLACED AT PAPER BOOK PAGES 8 TO 11. THEREFORE, IT IS NOT DISPUTED THAT LAND IN QUESTION WAS REGISTERED IN THE NAME OF ASSESSEE AS THE DEPARTMEN T HAS ACCEPTED ITSELF THAT LAND IN QUESTION PERTAINS TO ASSESSEE. THEREA FTER ASSESSEE ENTERED INTO AGREEMENT WITH M/S. PARSWANATH DEVELOPERS LTD. FOR DEVELOPING A HOUSING PROJECT. NECESSARY PERMISSION AND APPROVAL WERE OBTAINED BY THE ASSESSEE FOR DEVELOPING THE HOUSING PROJECT. T HE ASSESSEE FILED APPLICATION BEFORE GHAZIABAD DEVELOPMENT AUTHORITY (GDA) FOR CONVERSION OF USE OF LAND I.E. FROM HOTEL BUILDING TO RESIDENTIAL BUILDING, THAT WAS ALSO DONE ON BEHALF OF THE ASSESSEE. THER EAFTER VARIOUS DETAILS AS REQUIRED BY THE GDA WERE FILED ON BEHALF OF THE ASS ESSEE. THEREAFTER THE GDA VIDE ITS LETTER DATED 25.4.2003 GRANTED APPROVA L ON VARIOUS CONDITIONS I.E. 20 IN NUMBERS. THIS APPROVAL WAS G RANTED IN THE NAME OF VICE PRESIDENT AND MANAGING DIRECTOR OF M/S. INDO C ONTINENTAL HOTELS & 15 RESORTS LTD. (I.E. ASSESSEE). FROM THIS APPROVAL L ETTER ALONE IT IS ASCERTAINABLE THAT THE APPROVAL OF HOUSING PROJECT WAS APPROVED IN THE NAME OF ASSESSEE AND NOT IN THE NAME OF M/S. PARSWA NATH DEVELOPERS LTD. THEREFORE, IT CANNOT BE SAID THAT ASSESSEE IS ONLY A NAME LENDER. AS PER AGREEMENT ENTERED BY ASSESSEE WITH M/S. PARSWANATH DEVELOPERS LTD. (PDL), IN VARIOUS CLAUSES IT HAS BEEN PROVIDED THAT ASSESSEE WILL PARTICIPATE IN THE HOUSING PROJECT AND WILL DO THE NECESSARY WORK ASSIGNED TO THE ASSESSEE. THEREAFTER ON COMPLETION OF THE P ROJECT, THE PROFIT RATIO WAS SHARED IN THE RATIO OF 1/3 RD AND 2/3 RD AS AGREED UPON BY THE ASSESSEE AND M/S. PDL. NO DOUBT, ASSESSEE HAS NOT DONE ANY MARKETING ACTIVITY AS THIS WAS THE DUTY OF M/S. PDL WHO HAS DONE THE MARK ETING OF THE HOUSING PROJECT AND THEREAFTER FLATS WERE SOLD IN THE MARKE T AND AS STATED ABOVE, THE PROFITS WERE SHARED IN TERMS OF AGREED RATIO. FROM ALL THESE FACTS AND CIRCUMSTANCES OF THE CASE, IT IS AMPLY PROVED THAT ASSESSEE WAS INDULGED IN DEVELOPING OF THE HOUSING PROJECT. 21.3. THE DECISION IN CASE OF M/S. RADHEY DEVELOPER S RELIED UPON BY LD. CIT D/R IS ALTOGETHER ON DIFFERENT FOOTING. IN FACT , IN THIS CASE THE LAND IN QUESTION WAS NOT IN THE NAME OF THAT ASSESSEE AND, THEREFORE, IT WAS HELD THAT THEY ARE NOT ENTITLED FOR DEDUCTION UNDER SECT ION 80IB. IN THE PRESENT CASE THE LAND IN QUESTION IS IN THE NAME OF ASSESSE E. THEREFORE, THE RATIO OF THIS DECISION IS NOT APPLICABLE ON THE FACTS OF PRE SENT CASE. 22. IN CASE OF FAQIR CHAND GULATI (SUPRA), THE FACT S WERE THAT FAQIR CHAND GULATI WAS OWNER OF PREMISES IN KAILASH COLON Y. HE ENTERED INTO COLLABORATION AGREEMENT WITH M/S. UPPAL AGENCIES PV T. LTD. THEREAFTER DISPUTE AROSE BETWEEN SHRI FAQIR CHAND GULATI AND D EVELOPER M/S. UPPAL AGENCIES PVT. LTD. THE BUILDER M/S. UPPAL AGENCIES WHO SECURED SANCTION OF THE PLAN FOR CONSTRUCTION FROM MCD BUT MADE SEVERAL UNAUTHORIZED DEVIATION DURING CONSTRUCTION RESULTIN G IN SEVERAL DEVIATION NOTICES FROM MCD. MCD PASSED AN ORDER DATED 16.1.1 991 TO SEAL THE PREMISES BUT SUBSEQUENTLY THE PREMISES WAS DE-SEALE D TO ENABLE THE BUILDER TO RECTIFY THE DEVIATION. THE BUILDER GAVE POSSESSION OF THE GROUND 16 FLOOR AND SOLD 1 ST FLOOR AND 2 ND FLOOR TO FOUR PERSONS. THE DELIVERY OF GROUND FLOOR WAS MADE BY THE BUILDER TO ASSESSEES SON DURING ASSESSEES ABSENCE FROM INDIA. ON HIS RETURN, THE ASSESSEE SE NT A LETTER POINTING OUT SEVERAL SHORT COMINGS IN THE CONSTRUCTION AND THE V IOLATION OF SANCTIONED PLAN AND CALLED UPON THE BUILDER TO RECTIFY THE DEV IATION AND DEFECTS. THE BUILDER DID NOT COMPLY. THE APPELLANT I.E. SHRI FA QIR CHAND GULATI, THEREFORE, FILED COMPLAINT BEFORE DISTRICT CONSUMER FORUM SEEKING RELIEF AGAINST THE BUILDER AND ULTIMATELY THE DISPUTED REA CHED TO THE HONBLE SUPREME COURT. THEREAFTER, THE HONBLE SUPREME COU RT HAS HELD THAT THIS WAS NOT A JOINT VENTURE AS SHRI FAQIR CHAND GULATI ENTERED INTO COLLABORATION AGREEMENT FOR CONSTRUCTING THE HOUSE ON AGREED TERMS AND THOSE TERMS WERE VIOLATED BY THE BUILDER AND ACCORD INGLY IT WAS HELD THAT THIS WAS NOT A JOINT VENTURE. 22.1. THE RATIO OF THIS DECISION IS NOT APPLICABLE ON THE FACTS OF THE PRESENT CASE AS IN THE PRESENT CASE THERE IS NO DIS PUTE BETWEEN ASSESSEE AND DEVELOPER WHO ENTERED INTO DEVELOPMENT AGREEMENT FO R DEVELOPING HOUSING PROJECT WHICH WAS DEVELOPED ALSO. NO DISPU TE AROSE BETWEEN THE ASSESSEE AND M/S. PDL. AS PER THEIR TERMS, THE PRO FIT RATIO IS DIVIDED. HERE BEFORE US THE ISSUE IS OF DEDUCTION UNDER SECT ION 80IB(10) AND BEFORE THE HONBLE SUPREME COURT THE ISSUE WAS NOT A DEDUC TION UNDER SECTION 80IB(10) BUT THE ISSUE WAS AGAINST THE VIOLATION OF AGREEMENT ENTERED WITH THE BUILDER WHO DID NOT CONSTRUCT THE FLATS ON AGRE ED TERMS. THEREFORE, THE RATIO OF THIS DECISION IS NOT FOUND APPLICABLE ON T HE FACTS OF THE PRESENT CASE. 22.2. IT IS ALSO A MATTER OF FACT THAT ASSESSEE HAS NOT CLAIMED DEDUCTION UNDER SECTION 80IB (10) ON ENTIRE PROFIT OF THE PRO JECT BUT HAS CLAIMED DEDUCTION ONLY ON ITS SHARE OF PROFIT. PROVISIONS O F SECTION 80IB (10) ARE VERY CLEAR BY WHICH IT HAS BEEN PROVIDED THAT ON DE VELOPING A HOUSING PROJECT THE DEDUCTION IS ALLOWABLE. THIS ISSUE HAS ALSO BEEN DECIDED BY THE SPECIAL BENCH WHICH HAS BEEN TAKEN INTO CONSIDERATI ON BY LD. CIT (A) ALSO. THE DECISION OF SPECIAL BENCH IN CASE OF M/S. BRAHMA ASSOCIATES 17 (SUPRA) HAS BEEN APPROVED NOW BY THE HONBLE BOMBAY HIGH COURT IN 239 CTR 30. ONCE IT IS FOUND THAT A HOUSING PROJECT HAS BEEN DEVELOPED, THEN IN OUR VIEW, THE DEPARTMENT SHOULD NOT HAVE REJECTE D THE CLAIM MERELY ON THE GROUND THAT CERTAIN CONDITIONS ARE NOT SATISFIE D OR THIS IS NOT A JOINT VENTURE. ALL THE CONDITIONS ARE SATISFIED AS EXAMI NED BY LD. CIT (A) AND THERE IS A VALID JOINT VENTURE BETWEEN ASSESSEE AND M/S. PDL. THEREFORE, IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES AND IN VIEW OF DETAILED REASONING GIVEN BY LD. CIT (A) WHICH REMAINED UNCON TROVERTED ALSO, WE CONFIRM THE ORDER OF LD. CIT (A). 13. WE HAVE ALSO SEEN PAGE 10 OF THE AO AND FOUND T HAT THE AO HAS DISCUSSED THE SIMILAR FACTS IN EARLIER YEAR ALSO. LANGUAGE MAY BE DIFFERENT BUT THERE IS NO CHANGE IN MATERIAL FACTS AS THE PROJECT IS ALSO THE SAME AND THE AO HAS DISALLOWED THE CLAIM OF THE ASSESSEE BY OBSERVING THAT SIMILAR CLAIM WAS DISALL OWED IN EARLIER YEAR ALSO. THIS FACT HAS BEEN MENTIONED BY THE AO AT PAGE 10 ITSELF. AT PAG E 11, THE AO HIMSELF MENTIONED THAT ASSESSEE DOES NOT FALL UNDER THE CATEGORY OF INDUST RIAL UNDERTAKING AS FINDINGS GIVEN IN THE ASSESSMENT YEAR 2007-08. THIS OBSERVATION HAS BEEN MADE BY AO IN PARA 4 AT PAGE 11 OF HIS ORDER. THEREFORE, IT CAN BE EASILY SAID T HAT THERE IS NO CHANGE IN THE FACTS AND ON SIMILAR FACTS THE TRIBUNAL HAS ALREADY GIVEN A FIND ING. THEREFORE, IN VIEW OF THE CONSISTENCY, WE CONFIRM THE ORDER OF LD. CIT (A) FO R THE YEAR UNDER CONSIDERATION ALSO. 14. IN THE RESULT, APPEAL OF THE DEPARTMENT IS DISM ISSED. 15. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 21 .10.2011. SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR, D/ 18 COPY FORWARDED TO :- THE ACIT, CIRCLE-3, JAIPUR. M/S. INDO CONTINENTAL HOTELS AND RESORTS LTD., JAIP UR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 486/JP/2011) BY ORDER, AR ITAT JAIPUR.