The ITO, Ward-1, Anand V. M/s. Prarambh Associates, Anand

ITA 50/AHD/2013

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 8609 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 01-01-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 04-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Keywords: Reopening of assessment
• Section: 143(3); 142(1); 80IB; 148; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH AHMEDABAD , BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER . ITA. NOS. 50, 51 & 52/AHD/2013 (ASSESSMENT YEARS: 2005-06, 06-07 & 07-08) INCOME TAX OFFICER, WARD 1, ANAND APPEL LANT VS. M/S. PRARAMBH ASSOCIATES VAGHASI NALI, OPP: PRAYAG TENAMENTS, KAILASH FARM ROAD, ANAND-388 001 RESPONDENT PAN: AAHFP3525F / BY REVENUE :SHRI DINESH SINGH, SR. D.R. / BY ASSESSEE : SHRI MILIN MEHTA, A.R. /DATE OF HEARING :01.01.2015 !'# /DATE OF PRONOUNCEMENT : 20.01.2015 I.T.A. NOS. 50, 51 & 52/AHD/2013 FOR A.YS. 05-06, 06-07 & 07-08 (ITO VS. M/S. PRARAMBH ASSOCIATES) PAGE 2 ORDER PER SHAILENDRA KUMAR YADAV, J.M: ALL THESE APPEALS FILED BY REVENUE ARE PERTAINED TO SAME ASSESSEE FOR A.Y. 2005-06, 2006-07 & 2007-08, ARISI NG OUT FORM THE ORDER OF CIT(A)-IV, BARODA, DATED 22.10.20 12 ON SIMILAR GROUNDS. SO, THEY ARE BEING DISPOSED OF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. IN ITA NO. 50/AHD/2013 FOR A.Y. 2005-06, REVENUE HAS FILED THE APPEAL ON THE FOLLOWING GROUND: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT (A) ERRED IN ALLOWING DEDUC TION OF RS.19,33,110/- U/S. 80IB(10) OF THE INCOME-TAX A CT WITHOUT APPRECIATING THE FACT THAT THE LEGAL RELATI ONSHIP BETWEEN THE ASSESSEE AND THE END USER OF THE UNITS WAS THAT OF WORK CONTRACT. 2.1 IN ITA NO. 51/AHD/2013 FOR A.Y. 2006-07, REVENU E HAS FILED THE APPEAL ON THE FOLLOWING GROUND: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT (A) ERRED IN ALLOWING DEDUC TION OF RS.12,21,790/- U/S. 80IB(10) OF THE INCOME-TAX A CT WITHOUT APPRECIATING THE FACT THAT THE LEGAL RELATI ONSHIP BETWEEN THE ASSESSEE AND THE END USER OF THE UNITS WAS THAT OF WORK CONTRACT. I.T.A. NOS. 50, 51 & 52/AHD/2013 FOR A.YS. 05-06, 06-07 & 07-08 (ITO VS. M/S. PRARAMBH ASSOCIATES) PAGE 3 2.2 IN ITA NO. 52/AHD/2013 FOR A.Y. 2007-08, REVENU E HAS FILED THE APPEAL ON THE FOLLOWING GROUND: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT (A) ERRED IN ALLOWING DEDUC TION OF RS.9,41,940/- U/S. 80IB(10) OF THE INCOME-TAX AC T WITHOUT APPRECIATING THE FACT THAT THE LEGAL RELATI ONSHIP BETWEEN THE ASSESSEE AND THE END USER OF THE UNITS WAS THAT OF WORK CONTRACT. 3. IN THIS CASE, FOR A.Y. 2005-06 ASSESSEE FILED RE TURN OF INCOME ON 21/10/2005 DECLARING TOTAL INCOME AT RS. NIL. ORDER U/S 143(3) R.W.S. 147 OF THE IT ACT WAS PASSE D ON 27/10/2011 ASSESSING TOTAL INCOME AT RS.19,33,110/- . THE CASE WAS LATER ON REOPENED U/S 147 OF THE ACT. NOT ICE U/S 148 WAS ISSUED ON 16/03/2011. IN RESPONSE TO SAME, ASSE SSEE VIDE ITS LETTER DATED 21/04/2011 WITH A REQUEST TO TREAT THE RETURN OF INCOME FILED U/S 139(1) OF THE IT ACT ON 21/10/2 005 AS RETURN FILED IN RESPONSE TO NOTICE ISSUED U/S. 148 OF THE ACT. AS PER ASSESSING OFFICER VIDE HIS OFFICE LETTER DAT ED 25/04/2011, REASONS FOR REOPENING OF ASSESSMENT WER E GIVEN TO ASSESSEE AND VIDE NOTICE U/S. 142(1) OF THE ACT DATED 22/06/2011, ASSESSEE WAS REQUESTED TO JUSTIFY THE C LAIM OF RS.19,33,109/- MADE BY ASSESSEE U/S. 80IB OF THE AC T. AS PER ASSESSING OFFICER, VIDE ITS LETTER SUBMITTED ON 30/ 06/2011, ASSESSEE HAS STATED THAT THE CONSTRUCTION PROJECT W AS APPROVED BY LOCAL AUTHORITY AS ON 25/04/2004 AND THE PLAN WA S PASSED ON 02/08/2004. AS PER ASSESSEE, THE SIZE OF PLOT O F LAND WAS I.T.A. NOS. 50, 51 & 52/AHD/2013 FOR A.YS. 05-06, 06-07 & 07-08 (ITO VS. M/S. PRARAMBH ASSOCIATES) PAGE 4 12,141.59 SQ.MTR. (I.E. 3 ACRES) AND THE SAME WAS R EFLECTED IN THE APPROVED PLAN AND ALSO SHOWN IN LAND PURCHASE AGREEMENT. THE CONSTRUCTION SITE WAS COMMENCED IN THE FY 2004-05 AND THE SITE WAS COMPLETED IN THE F.Y. 2007 -08. AS PER ASSESSEE, SO THE COMMENCEMENT AND COMPLETION OF THE SITE WAS WITHIN THE TIME FRAME MENTIONED IN SECTION 80IB (10) OF THE ACT. AS PER ASSESSEE, THE SITE DID NOT CONSIST OF COMMERCIAL CONSTRUCTION AND ONLY RESIDENTIAL PREMISES ARE CONS TRUCTED IN THE SITE AND THE CONSTRUCTION AREA OF EACH HOUSE WA S LESS THAN 1500 SQ.FT. AS PER ASSESSEE, INCOME TAX RETURN OF THE FIRM WAS FILED IN TUNE ALONG WITH THE CERTIFICATE OF CHARTER ED ACCOUNTANT IN FORM 10CCB. AS PER ASSESSEE, IN THE CASE OF ASS ESSEE, IT FULFILLS ALL THE SIX CONDITIONS PRESCRIBED BY LAW A ND HAS MAINTAINED RECORDS AND BOOKS OF ACCOUNT AND FURNISH ED INCOME TAX RETURN FOR THE RESPECTIVE YEAR WITHIN TI ME LIMIT U/S. 139 OF THE ACT. AS PER ASSESSEE, WITH REGARDS TO QUERY REGARDING THE EXISTENCE AND OR ESTABLISHMENT OF PAR TNERSHIP FIRM WAS AFTER THE PURCHASE OF LAND FOR WHICH ASSES SEE HAD CLAIMED DEDUCTION U/S. 80IB OF THE ACT. IN THIS RE GARD, IT WAS STATED ON BEHALF OF ASSESSEE THAT THE SAID LAND WAS PURCHASED BY FOUR PARTNERS JOINTLY AND SEVERALLY AND WIT H ORAL UNDERSTANDING AND PAYMENTS WERE MADE OUT OF ONE ACC OUNT OF MR. RAJESH MANKADIA BY TAKING DEPOSITS FROM REST OF THE PARTNERS. AS PER ASSESSEE, IT WAS VERY CLEAR FROM THE ABOVE THAT INITIALLY FOUR PARTNERS WERE JOINTLY AND SEVER ALLY PURCHASED THE LAND AND THEN ORGANIZED THE HOUSING PROJECT BY DOING NECESSARY FORMALITIES VIZ., PERMISSION FROM GOVERNMENT, I.T.A. NOS. 50, 51 & 52/AHD/2013 FOR A.YS. 05-06, 06-07 & 07-08 (ITO VS. M/S. PRARAMBH ASSOCIATES) PAGE 5 N.A APPROVAL OF THE CONSTRUCTION FROM LOCAL AUTHORI TY, DRAWING, PASSING THEREOF ETC. AS PER ASSESSING OFFICER, PAR TNERSHIP FIRM HAD COME INTO EXISTENCE WITH 12 PARTNERS FROM 01/04 /2004 DURING THE PREVIOUS YEAR RELEVANT TO A.Y. 2005-06 A ND PARTNERSHIP DEED WAS AMENDED ON 06/05/2005 SO AS TO INCLUDE INCOMING PARTNERS IN PLACE OF THE OUTGOING PARTNERS. AS PER ASSESSING OFFICER, IT WAS FURTHER AMENDED ON 07/03/2006 SO AS TO INCLUDE ONE PARTNER IN PLACE OF A DECEASED PARTNER AND NONE OF THESE PARTNERSHIP DEED S MENTIONED THE STATUS OF LAND REQUIRED FOR THE HOUSI NG PROJECT UNDERTAKEN BY ASSESSEE. ASSESSING OFFICER OBSERVED FROM THE COPIES OF PURCHASE DEED OF LAND THAT LAND WAS PURCH ASED EARLIER ON 20/06/2003 I.E. PRIOR TO THE CONSTITUTIO N OF THE FIRM BY FOUR PERSONS WHO HAPPENED TO BE THE PARTNERS IN THE INITIAL PARTNERSHIP DEED EXECUTED ON 01/04/2006 CONSTITUTIN G THE FIRM IN THE NAME AND STYLE OF 'PRARAMBH ASSOCIATES' AND THE LAY OUT AND DETAILS OF THE RESIDENTIAL BUILDING PLA N APPROVED BY THE TOWN PLANNING OFFICER, NADIAD ON 02/08/2004 ALS O MENTIONS THE NAMES OF FOUR PERSONS AS OWNERS WHO HA D PURCHASED THE LAND ON 20/06/2003. ASSESSING OFFICE R OBSERVED THAT AT NO POINT OF TIME ASSESSEE FIRM WAS OWNER OF THE SUBJECT LAND. IT WAS ALSO FOUND THAT AS PER TH E SALE DEED DATED 27/10/2005 THE FOUR PERSONS WHO OWNED THE SUB JECT LAND, HAD SOLD ONE OF THE PLOTS OF THE PROJECT TO O NE SHRI RAMESHBHAI SOMABHAI SOLANKI. THIS INDICATES THAT L AND OF THE BUILDING CONSTRUCTION PROJECT OWNED BY FOUR PERS ONS WAS SOLD I.T.A. NOS. 50, 51 & 52/AHD/2013 FOR A.YS. 05-06, 06-07 & 07-08 (ITO VS. M/S. PRARAMBH ASSOCIATES) PAGE 6 TO INDIVIDUAL OCCUPANTS WHO HAD IN TURN CONSTRUCTED THEIR HOUSES THROUGH THE FIRM M/S. PRARAMBH ASSOCIATES. ACCORDING TO ASSESSING OFFICER, IT WAS CLEAR THAT T HE LAND ON WHICH THE HOUSING CONSTRUCTION PROJECT HAD TAKEN PL ACE WAS NOT AT ALL OWNED BY ASSESSEE. ONLY CONSTRUCTION OF HOUSES WAS DONE BY ASSESSEE ON PLOTS INITIALLY OWNED BY FOUR P ERSONS AND SOLD TO INDIVIDUALS. AS PER ASSESSING OFFICER, ASSE SSEE WAS A MERE CONSTRUCTION CONTRACTOR WHO HAD EXECUTED HOUSI NG PROJECT AS WORKS CONTRACTOR. ACCORDING TO HIM, AS PER THE EXPLANATION INSERTED BELOW SECTION 80IB(10) BY THE FINANCE (NO.2) ACT, 2009, DEDUCTION UNDER THE SECTION IBID WILL NOT BE ALLOWABLE TO ANY UNDERTAKING WHICH EXECUTES THE HOU SING PROJECT AS WORKS CONTRACT AWARDED BY ANY PERSON. A CCORDING TO ASSESSING OFFICER, SINCE ASSESSEE HAD MERELY ACTED AS A WORKS CONTRACTOR AS DISCUSSED ABOVE, IT WAS NOT ELIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE ACT AND SUCH DEDUCTION CLAIMED BY ASSESSEE AT RS.19,33,109/- WAS THEREFORE, DISALLOWE D AND ADDED BACK TO THE TOTAL INCOME OF ASSESSEE. 4. MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AU THORITY, WHEREIN MATTER WAS CONTESTED ON REOPENING ON MERIT. HOWEVER, ON REOPENING, IT WAS NOT PRESSED BUT IT WA S PRESSED ON MERIT AND HAVING CONSIDERED SUBMISSION ON BEHALF OF ASSESSEE ON MERIT CIT(A) GRANTED RELIEF TO THE ASSE SSEE. SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENUE INT ER ALIA SUBMITTING THAT CIT(A) WAS NOT JUSTIFIED IN ALLOWIN G DEDUCTION OF RS.19,33,109/- UNDER PROVISION OF SECTION 80IB(1 0) OF THE I.T.A. NOS. 50, 51 & 52/AHD/2013 FOR A.YS. 05-06, 06-07 & 07-08 (ITO VS. M/S. PRARAMBH ASSOCIATES) PAGE 7 ACT. ACCORDINGLY, ORDER OF CIT(A) BE SET ASIDE AND THAT OF ASSESSING OFFICER BE RESTORED. ON OTHER HAND, LD. AUTHORIZED REPRESENTATIVE SUBMITTED THAT CIT(A) HAS RIGHTLY AL LOWED THE RELIEF TO ASSESSEE BY FOLLOWING DECISION OF CIT VS. RADHEY DEVELOPER INDIA LTD. & ANOTHER (2012) 341 ITR 403 ( GUJ.), WHICH TAKE CARES OF ISSUE. ACCORDINGLY, ORDER OF C IT(A) ON ALLOWABILITY OF 80IB(10) BE UPHELD. 5. AFTER GOING THROUGH RIVAL SUBMISSIONS AND MATERI AL ON RECORD, WE FIND THAT STAND OF ASSESSEE HAS BEEN THA T IT IS ENGAGED IN THE BUSINESS OF REAL ESTATE AND IT HAD C LAIMED DEDUCTION U/S 80IB(10) AMOUNTING TO RS. 19,33,109/- ON THE CONSTRUCTION OF HOUSING PROJECT NAMED 'PRARAMBH ASS OCIATES'. ASSESSING OFFICER HAS DISALLOWED THE CLAIM OF ASSES SEE ON THE GROUND THAT ASSESSEE FIRM IS NOT THE OWNER OF LAND AT RELEVANT POINT OF TIME ON WHICH PROJECT WAS CONSTRUCTED AND PERMISSION FROM LOCAL AUTHORITY WAS NOT ACCORDED IN THE NAME O F ASSESSEE FIRM. ACCORDING TO LD. AUTHORIZED REPRESENTATIVE, ALL CONDITIONS OF SECTION 80IB(10)OF THE ACT HAVE BEEN SATISFIED B Y ASSESSEE. ASSESSING OFFICER HAD NOT APPRECIATED THE FACTS IN A PROPER PERSPECTIVE BEFORE DENYING BENEFIT OF SECTION 80IB( 10) OF THE ACT. ASSESSING OFFICER HAD STATED THAT LAND ON WHI CH HOUSING PROJECT WAS DEVELOPED IS NOT OWNED BY ASSESSEE FIRM . IN THIS REGARD, STAND OF ASSESSEE HAS BEEN THAT LAND ON WHI CH HOUSING PROJECT WAS DEVELOPED WAS OWNED BY THE PARTNERS OF ASSESSEE FIRM WHO HAD DULY INTRODUCED LAND THROUGH THEIR CAP ITAL ACCOUNT IN THE FIRM. AS PER ASSESSEE, IT IS AN ACCE PTED PRACTICE I.T.A. NOS. 50, 51 & 52/AHD/2013 FOR A.YS. 05-06, 06-07 & 07-08 (ITO VS. M/S. PRARAMBH ASSOCIATES) PAGE 8 THAT THE LAND OWNED BY THE PARTNERS CAN BE INTRODUC ED IN THE FIRM AND IT BECOMES THE PROPERTY OF FIRM. FURTHER, INTRODUCTION OF LAND AS CAPITAL IN THE FIRM IS TREATED AS TRANSF ER AS PER SECTION 45(3) OF THE ACT AND THEREFORE IT WAS SUBMI TTED THAT THE ENTIRE PREMISES ON WHICH THE ASSESSING OFFICER DISA LLOWED THE CLAIM WAS WRONG. ONCE ASSET IS TRANSFERRED TO FIRM IT BECOMES THE PROPERTY OF FIRM AS THERE IS DISTINCTION BETWEE N PARTNERS AND FIRM AS PER ACT. THE FOUR PARTNERS NAMELY SHRI RAJESHKUMAR M MANKADIA, SHRI BHIKHABHAI R PRAJAPATI , SHRI F.AMSING R PRAJAPATI AND SHRI ISHWARBHAI R PRAJAPAT I HAD INITIALLY PURCHASED LAND ON 20-06-2003. THESE FOUR PERSONS ALONG WITH OTHER PERSONS HAD CONSTITUTED PARTNERSHI P FIRM AND THESE FOUR PERSONS INTRODUCED LAND AS CAPITAL IN PA RTNERSHIP FIRM. AS PER ASSESSEE, FOUR PARTNERS HAVE JOINTLY AND SEVERALLY PURCHASED THE LAND AND CONSIDERATION WAS PAID OUT O F ACCOUNT OF SHRI RAJESH MANKADIA BY TAKING DEPOSITS FROM OTH ER PARTNERS. AS PER ASSESSEE, FOUR PERSONS HAD PURCHA SED THE LAND AND INTRODUCED AS CAPITAL IN THE ASSESSEE FIRM . THUS, LAND BECAME THE PROPERTY OF LAND ON WHICH HOUSING P ROJECT WAS DEVELOPED. IN SUCH SITUATION, ASSESSING OFFICER WA S NOT JUSTIFIED IN STATING THAT ASSESSEE IS NOT THE OWNER OF LAND. SECTION 80IB(10) OF THE IT ACT TALKS ABOUT APPROVAL BY LOCAL AUTHORITY IN RESPECT OF A HOUSING PROJECT AND THE P ERSON WHO HAS OBTAINED THE SAID APPROVAL IS A MATTER OF NO CO NSEQUENCE. AS PER ASSESSEE, AS A MATTER OF FACT THE PERMISSION GRANTED BY LOCAL AUTHORITY WAS IN THE NAME OF PROJECT AND NOT TO A PARTICULAR DEVELOPER OR THE LAND OWNER. AS PER ASSE SSING I.T.A. NOS. 50, 51 & 52/AHD/2013 FOR A.YS. 05-06, 06-07 & 07-08 (ITO VS. M/S. PRARAMBH ASSOCIATES) PAGE 9 OFFICER, MOMENT THE PROJECT IS APPROVED BY A COMPET ENT LOCAL AUTHORITY, CONDITION LAID DOWN UNDER THE SECTION 80 IB(10) IS FULFILLED AND DULY COMPLIED WITH. THE ONLY CONDITI ON PRESCRIBED UNDER THE SECTION IS THAT AN UNDERTAKING SHOULD DEV ELOP A HOUSING PROJECT APPROVED BY LOCAL AUTHORITY AND PER SON, HAS DULY COMPLIED WITH THE SAME. AS PER THE AUTHORIZED REPRESENTATIVE, DEDUCTION CONTINUES EVEN IN CASE OF TRANSFER OF UNDERTAKING FOR SIMPLE REASON THAT BENEFIT U/S 80IB (10) OF THE ACT IS AVAILABLE NOT TO ASSESSEE, BUT TO AN UNDERTA KING. AS PER THE AR THEREFORE, EVEN WHEN THE OWNERSHIP OF THE UN DERTAKING IS TRANSFERRED SO LONG AS THE TRANSFEREE CONTINUES TO FULFILL THE REQUIREMENT OF SECTION 80IB(10), IT SHALL BE ENTITL ED TO CLAIM BENEFIT OF DEDUCTION UNDER THE SAID SECTION. SIMILA R VIEW HAS BEEN TAKEN HON'BLE GUJARAT HIGH COURT IN THE CASE O F M/S RADHEY DEVELOPERS & OTHERS [2012] 341 ITR 403 (GUJ) , WHEREIN HON'BLE HIGH COURT HAS HELD AS UNDER: '45. UNDER THE CIRCUMSTANCES, WE ARE OF THE OPINION THAT THE TRIBUNAL COMMITTED NO ERROR IN HOLDING THAT THE ASS ESSEES WERE ENTITLED TO THE BENEFIT UNDER SECTION 80IB(10) OF THE ACT EVEN WHERE THE TITLE OF THE LANDS HAD NOT PASSED ON TO THE ASSESSEES AND IN SOME CASES, THE DEVELOPMENT PERMIS SIONS MAY ALSO HAVE BEEN OBTAINED IN THE NAME OF THE ORIG INAL LAND OWNERS .' 5.1. IT IS EVIDENT FROM THE ABOVE THAT FOR THE PURP OSE OF CLAIMING DEDUCTION U/S 80IB(10) OF THE ACT, IT IS N OT NECESSARY FOR ASSESSEE TO OWN THE LAND. SUCH CONDITION IS NO T MENTIONED IN THE RELEVANT SECTION. IN VIEW OF ABOVE, CIT(A) WAS JUSTIFIED IN I.T.A. NOS. 50, 51 & 52/AHD/2013 FOR A.YS. 05-06, 06-07 & 07-08 (ITO VS. M/S. PRARAMBH ASSOCIATES) PAGE 10 HOLDING THAT THE LAND ON WHICH THE HOUSING PROJECT WAS DEVELOPED WAS OWNED BY THE PARTNERS OF ASSESSEE FIR M WHO HAD INTRODUCED THE LAND THROUGH THEIR CAPITAL ACCOUNT I N THE FIRM. THESE PARTNERS IN THEIR DECLARATION DATED 17-10-201 2 HAS DULY CERTIFIED THAT EACH OF THEM HAD INTRODUCED LAND AS CAPITAL WORTH RS. 82,042/- (I.E. L/4 TH - LAND COST + LAND RELATED EXPENSES VIZ STAMP DUTY, REGISTRATION AND OTHER EXP ENSES IN THE PARTNERSHIP FIRM AND SAME WERE REFLECTED IN SCH EDULE-E OF THE FINANCIAL STATEMENT OF A.Y. 2005-06) AS AN OPEN ING BALANCE IN SUCH PARTNERSHIP FIRM. FURTHER ASSESSEE HAS FIL ED THE COPY OF LEDGER ACCOUNT OF THESE FOUR PARTNERS IN THE BOO KS OF ASSESSEE FIRM. AGAIN ON PERUSAL OF SCHEDULE-E (I.E . PARTNERS' CAPITAL ACCOUNT) OF BALANCE SHEET OF ASSESSEE FIRM AS ON 31-03- 2005 IT WAS SEEN THAT EACH OF THE PARTNERS HAS OPEN ING BALANCE OF RS.83,775/-. ON PERUSAL OF COPY OF LEDGER ACCOU NT AS FURNISHED BY ASSESSEE, IT WAS FOUND THAT EACH OF TH E FOUR PARTNERS HAD INTRODUCED LAND AS CAPITAL OF RS 70,00 0/-+ EXPENDITURE ON LAND OF RS.12,042/- AND CASH OF RS.1 ,733/- IN ASSESSEE FIRM AND TOTAL OF WHICH IN RESPECT OF EACH OF THE PARTNERS COMES TO RS. 83,755/-. ACCORDING TO THE S UBMISSION ON BEHALF OF ASSESSEE THAT ONCE THE LAND OWNED BY T HE PARTNERS FIRM HAVE BEEN INTRODUCED THROUGH THEIR CAPITAL ACC OUNT IN THE FIRM, THEN IT BECAME THE PROPERTY OF THE FIRM ON WH ICH THE HOUSING PROJECT WAS DEVELOPED. THUS, THE ALLEGATIO N OF THE ASSESSING OFFICER THAT ASSESSEE WAS NOT THE OWNER O F THE LAND WAS NOT CORRECT. AGAIN SECTION 80IB(10) OF THE ACT TALKS ABOVE THE APPROVAL OF THE LOCAL AUTHORITY IN RESPECT OF H OUSING PROJECT I.T.A. NOS. 50, 51 & 52/AHD/2013 FOR A.YS. 05-06, 06-07 & 07-08 (ITO VS. M/S. PRARAMBH ASSOCIATES) PAGE 11 AND THE PERSON WHO HAS OBTAINED THE SAID APPROVAL I S A MATTER OF NO CONSEQUENT. EVEN WHEN THE OWNERSHIP OF THE UN DERTAKING IS TRANSFERRED SO LONG AS THE TRANSFEREE CONTINUES TO FULFILL THE REQUIREMENT OF SECTION 80IB(10) OF THE ACT, IT SHAL L BE ENTITLED TO CLAIM BENEFIT OF DEDUCTION UNDER THE SAID SECTIO N AS HELD IN M/S RADHE DEVELOPERS AND OTHERS (SUPRA). ASSESSING OFFICER HAS BROUGHT NOTHING ON RECORD WHICH COULD SUGGEST T HAT CONDITIONS AS LAID DOWN IN SECTION 80IB(10) OF THE ACT HAVE NOT BEEN FULFILLED BY ASSESSEE FIRM. ONLY GROUND FOR R EJECTION OF CLAIM OF ASSESSEE AS TAKEN BY ASSESSING OFFICER IS THAT THE LAND ON WHICH HOUSING CONSTRUCTION PROJECT HAS TAKEN PLA CE WAS NOT OWNED BY ASSESSEE FIRM AND SUCH LAND WAS OWNED BY A BOVE FOUR PARTNERS. IN VIEW OF ABOVE DISCUSSION, THIS G ROUND AS TAKEN BY ASSESSING OFFICER WAS NOT JUSTIFIED IN REJ ECTING THE CLAIM OF ASSESSEE BECAUSE IN THIS CASE, HOUSING PRO JECT HAS BEEN APPROVED BY THE LOCAL AUTHORITY ON 24-05-2004 AND PLAN WAS PASSED ON 02-08-2004. THE SIZE OF PLOT OF LAND WAS 12,141.59 SQ.MTRS. WHICH WAS MORE THAN 1 ACRE. BUILT-UP AREA OF EACH UNIT DID NOT EXCEED 1500 SQ.FTS. THE UNDERT AKING STARTING CONSTRUCTION IN THE FINANCIAL YEAR 2004-05 AND THE SAME WAS COMPLETED IN F.Y. 2007-08. ASSESSEE FIRM DEVELOPED HOUSING PROJECT AND ENTIRE RISK WITH REGARD TO SUCH HOUSING PROJECT WAS TO BE BORNE BY IT ONLY. ACCORDINGLY, A SSESSING OFFICER WAS NOT JUSTIFIED IN DENYING THE CLAIM U/S. 80IB(10) AND SAME HAS RIGHTLY BEEN GRANTED BY CIT(A). THIS REAS ONED FINDING OF CIT(A) NEEDS NO INTERFERENCE FROM OUR SIDE. WE UPHOLD THE SAME. I.T.A. NOS. 50, 51 & 52/AHD/2013 FOR A.YS. 05-06, 06-07 & 07-08 (ITO VS. M/S. PRARAMBH ASSOCIATES) PAGE 12 6. SIMILAR ISSUE AROSE IN A.Y.2006-07 & 2007-08. F ACTS BEING SIMILAR SO FOLLOWING SAME REASONING, ORDER OF CIT(A) NEEDS NO INTERFERENCE FROM OUR SIDE WHO ALLOWED THE CLAIM OF ASSESSEE OF RS.12,21,790/- FOR A.Y. 06-07 & RS.9,41 ,940/- FOR A.Y. 07-08 ON THE SAME PROJECT. WE UPHOLD THE ORDE R OF CIT(A) IN THESE YEARS AS WELL. 7. IN THE RESULT, APPEALS FILED BY REVENUE FOR ALL THREE YEARS ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE 20 TH DAY OF JANUARY, 2015. SD/- SD/- (ANIL CHATURVEDI) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER TRUE COPY S.K.SINHA $ $ $ $ &' &' &' &' ('# ('# ('# ('# / COPY OF ORDER FORWARDED TO:- 1. / REVENUE 2. / ASSESSEE 3. -- . / CONCERNED CIT 4. .- / CIT (A) 5. '23 &, , / DR, ITAT, AHMEDABAD 6. 367 89 / GUARD FILE. BY ORDER / $ , :/ - , <