M/s.Abad Builders P Ltd, Cochin V. The ACIT, Cochin

ITA 6/COCH/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 96809 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 09-12-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 10-01-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: P K SASIDHARAN
• Section: 80IB; 194C

Judgement Text

ITA NO S 5 & 6/COCH/2014 1 IN THE INCOME TAX APPEL L A TE T R IBUNAL COCHIN BENCH , COCHIN BEFORE S/SH RI B P JAIN , A M & G EORGE GEORGE.K , J M ITA NO S 5 & 6/COCH/2014 (ASST YEAR S 2008 - 09 & 2009 - 10 ) M/S ABAD BUILDERS (PVT LTD. ABAD PLAZA BUILDING M G ROA COCHIN 682 035 VS THE ASST COMMR OF INCOME TA CIRCLE 1(1), KOCHI ( APPELLANT) (RESPONDENT) PAN NO. AAECA2661C ASSESSEE BY SHRI PK SASIDHARAN REVENUE BY SMT TRIPTHI BISWAS, CIT - DR/ SHRI K P GOPAKUMAR, SR - DR DATE OF HEARING 9 TH DEC 2015 DATE OF PRONOUNCEMENT 11 TH DEC 2015 OR D ER PER GEORGE GEORGE. K. J M: THESE APPEALS, AT THE INSTANCE OF THE ASSESSEE, ARE DIRECTED AGAINST SEPARATE ORDERS OF THE CIT(A) - II, KOCHI, BOTH DATED 12 TH NOV 2013. THE RELEVANT ASSESSMENT YEARS ARE 2008 - 09 AND 2009 - 10. 2 SINCE COMMON ISSUE S ARE INVO LVED IN THESE APPEALS AND THEY PERTAIN TO THE SAME ASSESSEE, THEY WERE HEARD TOGETHER AND DISPOSE OF BY THIS CONSOLIDATED ORDER. ITA NO S 5 & 6/COCH/2014 2 3 IDENTICAL TEN GROUNDS (EXCEPT FOR VARIANCE IN FIGURES) ARE TAKEN IN BOTH THESE APPEALS. GROUND NOS. 1, 9 & 10 ARE GENERAL IN NATURE AND NO SPEC IFIC ADJUDICATION IS CALLED FOR, H ENCE, THESE GROUNDS ARE DISMISSED. GROUND NO.2 IN BOTH THESE APPEALS WERE NOT PRESSED ; AT THE TIME OF HEARING OF THE CASE, HENCE, THIS GROUND IS ALSO DISMISSED. THE SURVIVING GROUND SHALL BE DISPOSE D AS UNDER: GROUND NOS 3 ,4 & 5: 4 THE ABOVE GROUNDS RELATE TO THE ISSUE OF DISALLOWANCE OF EXPENDITURE BY INVOKING PROVISIONS OF SEC. 40(A)(IA) OF THE ACT. BRIEFLY STATED THE FACTS IN RELATION TO THE ABOVE GROUNDS ARE AS FOLLOWS: THE AO WHILE COMPLETIN G THE SCRUTINY ASSESSMENT FOR THE AYS 2008 - 09 AND 2009 - 10 , HAD MADE DISALLOWANCE B Y INVOKING THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT AMOUNTING TO RS. 1,19,00,117/ - AND RS. 80,12,870/ - FOR THE AYS 2008 - 09 AND 2009 - 10 RESPECTIVELY. THE REASON FOR THE DISALLOWANCE WAS THAT THE ASSESSEE HAD NOT DEDUCTED THE TAX AT SOURCE WHILE CREDITING/MA KING THE PAYMENTS TO THE SUB CONTRACTORS. THE ASSESSEE PREFERRED APPEAL TO THE FIRST APPELLATE AUTHORITY. IT WAS CONTESTED BEFORE THE CIT(A) THAT WHEN THE INCOME IS COMPUTED ON THE BASIS OF PERCENTAGE COMPLETION METHOD RECOGNIZED BY ACCOUNTING STANDARD (AS) - 7, THE PROVISIONS OF SEC. 40(A)(IA) OF THE I T ACT CANNOT BE APPLIED. THE CIT(A), HOWEVER, REJECTED THE CONTENTION RAISED , AND ITA NO S 5 & 6/COCH/2014 3 CONFIRMED TH E ASSESSMENT ORDERS PASSED FOR THE AYS 2008 - 09 AND 2009 - 10. THE RELEVANT FINDINGS OF THE CIT(A) READ AS UNDER: 7.3 I HAVE CAREFULLY GONE THROUGH THE ASSESSMENT ORDER AND THE SUBMISSIONS MADE BY THE APPELLANT. I DO NOT AGREE WITH THE ARGUMENTS OF THE APPEL LANT. THE LIABILITY OF THE APPELLANT TO DEDUCT TAX AT SOURCE ON PAYMENTS REFERRED TO IN CHAPTER XVII - B IS NOT DEPENDENT ON THE METHOD OF RECOGNITION OF INCOME AND ANY FAILURE TO COMPLY WITH THE PROVISIONS WOULD ATTRACT OTHER CONSEQUENCES PROVIDED IN TH E ACT. HENCE, THE ADDITION MADE BY THE AO IS HEREBY CONFIRMED. IT S ALSO SEEN THAT AS A RESULT OF THIS ADDITION, THE ASSESSEE HAS PAID THIS TDS AND THE CREDIT OF THE SAME WAS ALLOWED IN SUBSEQUENT YEARS. 5 AGGRIEVED BY THE ABOVE ORDERS OF THE CIT(A), TH E ASSESSEE IS IN APPEAL BEFORE US. THE LD COUNSEL FOR THE ASSESSEE FAIRLY SUBMITTED THAT THE ISSUE IN QUESTION IS COVERED AGAINST THE ASSESSEE BY THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE PRECEDING ASSESSMENT YEAR 2007 - 08 REPORTED IN ( 2014) 43 TAXMANANN.COM 128 ( COCH - TRIB). THE LD DR PRESENT WAS DULY HEARD. 6 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE TRIBUNAL IN ASSESSEES OWN CASE (SUPRA) HAS HELD THAT THE ASSESSEE IS LIABLE TO DEDUCT TA X AT SOURCE ON THE PROVISION FOR EXPENSES CREATED BY THE ASSESSEE AND NON DEDUCTION OF TAX ON THE SAID PROVISION FOR EXPENSE WARRANTS DISALLOWANCE UNDER THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT. THE RELEVANT FINDINGS OF THE TRIBUNAL IN ASSESSEES OWN CASE (SUPRA) READ AS UNDER: 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND CAREFULLY PERUSED THE RECORD. ADMITTEDLY, THE ASSESSEE HAS CREATED A PROVISION FOR EXPENSES. HOWEVER, BOTH THE PARTIES HAVE NOT SPECIFIED THE NATURE OF THE EXPENSES SO PROVIDED FOR. HOWEVER, THE LD A.R HAS SUBMITTED THAT THE PROVISION FOR EXPENSES SO MADE HAS BEEN INCLUDED IN WORK IN PROGRESS AND FROM THIS SUBMISSION; IT ITA NO S 5 & 6/COCH/2014 4 CAN BE UNDERSTOOD THAT THE PROVISION MADE BY THE ASSESSEE SHOULD BE RELATED TO THE CONSTRUCTION EXPENSES. 6.1 U NDER AS - 29 ISSUED BY THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA UNDER THE TITLE PROVISIONS, CONTINGENT LIABILITIES AND CONTINGENT ASSETS, THE TERMS PROVISION AND LIABILITY ARE DEFINED AS UNDER: - A PROVISION IS A LIABILITY WHICH CAN BE MEASURED ONLY BY USING A SUBSTANTIAL DEGREE OF ESTIMATION. A LIABILITY IS A PRESENT OBLIGATION OF THE ENTERPRISE ARISING FROM PAST EVENTS, THE SETTLEMENT OF WHICH IS EXPECTED TO RESULT IN AN OUTFLOW FROM THE ENTERPRISE OF RESOURCES EMBODYING ECONOMIC BENEFITS. THE ACCOUNTING STANDARD FURTHER STATES AS TO WHEN A PROVISION SHOULD BE RECOGNISED. IT IS STATED AS UNDER: A PROVISION SHOULD BE RECOGNISED WHEN:_ (A) AN ENTERPRISE HAS A PRESENT OBLIGATION AS A RESULT OF PAST EVENT; (B) IT IS PROBABLE THAT AN OUTFLO W OF RESOURCES EMBODYING ECONOMIC BENEFITS WILL BE REQUIRED TO SETTLE THE OBLIGATION; AND (C) A RELIABLE ESTIMATE CAN BE MADE OF THE AMOUNT OF THE OBLIGATION. IF THESE CONDITIONS ARE NOT MET, NO PROVISION SHOULD BE RECOGNISED. THUS, IT IS SEEN THAT A PRO VISION IS MADE BY AN ENTERPRISE, WHEN IT HAS GOT A PRESENT OBLIGATION IN RESPECT OF A PAST EVENT AND A RELIABLE ESTIMATE CAN BE MADE OF THE AMOUNT OF OBLIGATION. IN THE INSTANT CASE, THE VERY FACT THAT THE ASSESSEE HAS CREATED A PROVISION FOR EXPENSES, APP ARENTLY RELATING TO CONSTRUCTION ACTIVITY, WOULD SHOW THAT THE WORK RELATING TO THE SAID EXPENSES HAS ALREADY BEEN COMPLETED AND THE ASSESSEE HAS GOT A PRESENT OBLIGATION IN RESPECT THEREOF. HENCE, THE ASSESSEE IS ACCEPTING THE LIABILITY TO PAY THE AMOUNT FOR WHICH THE PROVISION IS CREATED. 6.2 A CAREFUL READING OF THE PROVISIONS OF SEC. 194C WOULD SHOW THAT ANY PERSON RESPONSIBLE FOR PAYING ANY SUM TO ANY RESIDENT FOR CARRYING OUT ANY WORK IN PURSUANCE OF A CONTRACT, SHALL DEDUCT THE TAX AT SOURCE EITHER AT THE TIME OF CREDIT OF THE SAME TO THE ACCOUNT OF THE CONTRACTOR OR AT THE TIME OF PAYMENT THEREOF, WHICHEVER IS EARLIER. IT IS FURTHER PROVIDED IN EXPLANATION 2 OF SEC. 194C, WHICH EXISTED AT THE RELEVANT POINT OF TIME, THAT THE SAID TDS LIABILITY WOUL D ARISE EVEN IF THE AMOUNT IS CREDITED TO ANY ACCOUNT WHETHER CALLED SUSPENSE ACCOUNT OR CALLED BY ANY OTHER NAME. IN THE INSTANT CASE, THE LD CIT(A) HAS OBSERVED THAT THE ASSESSEES CLAIM FOR DEDUCTION OF VERY SAME AMOUNT IN THE SUCCEEDING YEAR WAS ALLOWE D, SINCE THE ASSESSEE HAD DEDUCTED TAX AT SOURCE THEREON IN THAT YEAR. THIS FACT SHOWS THAT THE ASSESSEE IS ACCEPTING THE POSITION THAT THE PROVISION FOR EXPENSES SO MADE IS SUSCEPTIBLE FOR DEDUCTION OF TAX AT SOURCE. FURTHER, ITA NO S 5 & 6/COCH/2014 5 THE PROVISIONS OF SEC. 194C C LEARLY STATES THAT THE ASSESSEE IS LIABLE TO DEDUCT TAX AT SOURCE EITHER AT THE TIME OF CREDIT TO THE ACCOUNT OF THE CONTRACTOR OR AT THE TIME OF PAYMENT THEREOF, WHICHEVER IS EARLIER. IT IS FURTHER PROVIDED THAT THE SAID LIABILITY WOULD ARISE EVEN IF THE AMOUNT IS CREDITED TO ANY OTHER ACCOUNT WHETHER CALLED SUSPENSE ACCOUNT OR BY ANY OTHER NAME. HENCE, IN OUR VIEW, THE ASSESSEE WOULD BE LIABLE TO DEDUCT TAX AT SOURCE U/S 194C ON THE AMOUNT PROVIDED UNDER THE HEAD PROVISION FOR EXPENSES. HENCE, WE REJ ECT THE CONTENTIONS OF THE ASSESSEE THAT THE TDS PROVISIONS SHALL NOT APPLY TO THE PROVISION FOR EXPENSES. 6.3 THE ASSESSEE FURTHER SUBMITTED THAT THE WORK IN PROGRESS AMOUNT CREDIT TO THE PROFIT AND LOSS ACCOUNT INCLUDES THE AMOUNT OF PROVISION SO CREAT ED. ACCORDINGLY, IT WAS CONTENDED THAT THE PROVISION FOR CONSTRUCTION EXPENSES DEBITED TO THE PROFIT AND LOSS ACCOUNT STOOD NULLIFIED BY THE WORK - IN - PROGRESS CREDITED TO THE PROFIT AND LOSS ACCOUNT. IN OUR VIEW, THE SAID SUBMISSIONS WOULD NOT ABSOLVE THE A SSESSEE FROM THE TDS LIABILITY U/S 194C OF THE ACT, SINCE A CAREFUL READING OF THE PROVISIONS OF SEC. 194C WOULD SHOW THAT THE SAID SECTION IS CONTRACT SPECIFIC AND NOT RELATED TO THE INCOME OF THE ASSESSEE. HENCE, THIS ARGUMENT OF THE ASSESSEE ALSO FAIL S. 6.4. IT IS AN ADMITTED FACT THAT THE ASSESSEE HAS CLAIMED THE IMPUGNED AMOUNT AS DEDUCTION IN THE SUCCEEDING ASSESSMENT YEAR, I.E., ASSESSMENT YEAR 2008 - 09. THOUGH THE ASSESSEE CONTENDS THAT IT HAS CLAIMED THE SAME ON PROTECTIVE BASIS, WE DO NOT FIND ANY SUCH OBSERVATION IN THE ASSESSMENT ORDER WHICH IS PLACED IN THE PAPER BOOK FILED BY THE ASSESSEE. THE LD. CIT(A) HAS RIGHTLY POINTED OUT THAT THE ASSESSEE HAS CLAIMED THE VERY SAME AMOUNT TWICE, I.E., IN ASSESSMENT YEAR 2007 - 08 AND ALSO IN ASSESSMENT Y EAR 2008 - 09. 6.5 IN THE PRECEDING PARAGRAPHS, WE HAVE HELD THAT THE ASSESSEE IS LIABLE TO DEDUCT TAX AT SOURCE ON THE PROVISION FOR EXPENSES CREATED BY THE ASSESSEE. IT AN ADMITTED FACT THAT THE ASSESSEE HEREIN DID NOT DEDUCT TAX AT SOURCE FROM THE AMOUN T OF PROVISION SO CREATED. WE HAVE ALREADY REJECTED VARIOUS CONTENTIONS URGED BY THE LD A.R. UNDER THESE CIRCUMSTANCES, IN OUR VIEW, THE LD. CIT(A) WAS JUSTIFIED IN CONFIRMING THE DISALLOWANCE MADE BY THE ASSESSING OFFICER U/S. 40(A)(IA) OF THE ACT. ACCORD INGLY, WE UPHOLD HIS ORDER ON THIS ISSUE. 7 I N THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ITA NO S 5 & 6/COCH/2014 6 7 IN VIEW OF THE ABOVE ORDER OF THE TRIBUNAL, WHICH IS IDENTICAL TO THE FACTS OF THE CASE, WE HOLD THAT THE ORDERS OF THE AUTHORITIES BELOW , DISAL LOWING THE PROVISIONS FOR EXPENSE BY INVOKING PROVISIONS OF SECTION 40(A)(IA) OF THE I T ACT , IS CORRECT AND IN ACCORDANCE WITH LAW AND NO INTERFERENCE IS CALLED FOR. HENCE, GROUND NOS 3,4 & 5 RAISED IN BOTH THESE APPEALS ARE REJECTED. GROUND NOS 6, 7 & 8: 8 THE ABOVE GROUNDS RELATE TO THE ISSUE OF DISALLOWANCE OF DEDUCTION U/S 80 IB(10) OF THE ACT. 9 THE ASSESSEE HAD CLAIMED DEDUCTION U/S 80IB(10) OF THE ACT WITH REGARD THE PROFIT OF A RESIDENTIAL BUILDING PROJECT CALLED SUNSHINE COURT IN RESP ECT OF BOTH THE ASSESSMENT YEARS. THE AO HAD REJECTED THE CLAIM FOR THE FOLLOWING REASON: I) THE PROJECT HAS NOT BEEN APPROVED BY THE LOCAL AUTHORITY; AND II) THE CONSTRUCTION HAS BEEN CARRIED OUT BY THE ASSESSEE AS A CONTRACTOR ON BEHALF OF THE FLAT OWNERS. III) THE PROJECT HAS BEEN CARRIED OUT A WORKS CONTRACT AND HENCE THE EXPLANATION INTRODUCED BY THE FINANCE (NO.2) AY 2009IN SECTION 80IB(10) WOULD BE APPLICABLE. 10 AGGRIEVED BY THE DENIAL OF DEDUCTION U/S 80IB(10), THE ASSESSEE PREFERRED AN APPEAL TO THE FIRST APPELLATE AUTHORITY. THE CIT(A) WAS OF THE VIEW THAT THE ASSESSEE DOES NOT SATISFY ONE OF THE CONDITIONS . THE CIT(A) HELD THAT ASSESSEE HAD UNDERTAKEN THE PROJECT ON WORK CONTRACT BASIS AND THEREFORE, AS A WORK CONTRACTOR, IT IS NO T ENTITLED TO THE BENEFIT OF DEDUCTION U/S 80IB (10)OF THE ACT. ITA NO S 5 & 6/COCH/2014 7 11 AGGRIEVED BY THE DENIAL OF THE BENEFIT OF DEDUCTION U/S 80IB(10), THE ASSESSEE IS IN APPEAL BEFORE US. THE LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUE IN QUESTION IS COVERED BY THE ORDER OF THE TRIBUNAL IN THE CASE OF DESAI HOME IN ITA NO. 29/COCH/2014 (ORDER DATED 24.9.2014), A COPY OF WHICH PLACED ON RECORD. THE LD DR, ON THE OTHER HAND , FAIRLY SUBMITTED THAT THE ISSUE IN QUESTION IS SQUARELY COVERED BY THE ORDER OF THE TRIB UNAL IN THE CASE OF DESAI HOME CITED BY THE LD AR. 12 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. BOTH THE PARTIES HAVE AGREED THAT THE ISSUE IN QUESTION IS COVERED BY THE ORDER OF THE TRIBUNAL IN THE CASE OF DESAI HOMES (SUPR A). THE RELEVANT FINDINGS OF THE TRIBUNAL IN THE CASE OF DESAI HOME (SUPRA), FOR READY REFERENCE, ARE REPRODUCED BELOW: 11. WE HAVE ALSO CAREFULLY GONE THROUGH THE JUDGMENT OF THE KERALA HIGH COURT IN KERALA BUILDERS FORM (SUPRA). BEFORE THE KERALA HIGH C OURT, THE CONSTITUTIONAL VALIDITY OF THE KERALA STAMP ACT, 1959 AS AMENDED BY KERALA FINANCE ACT, 2007 WAS CHALLENGED. THE KERALA LEGISLATURE BY KERALA FINANCE ACT, 2007, HAS AMENDED THE STAMP ACT, 1959 WHICH PROVIDED LEVY OF STAMP DUTY ON THE FLAT FULLY C ONSTRUCTED AND SOLD BY THE BUILDERS TO THE PROSPECTIVE PURCHASERS. THE PROSPECTIVE PURCHASERS HAS TO ENTER INTO AN AGREEMENT FOR PURCHASE OF UNDIVIDED SHARE OF LAND AND SIMULTANEOUSLY HAS TO ENTER INTO CONSTRUCTION OF FLAT ALSO. THE CONTENTION OF THE STATE GOVERNMENT WAS THAT WHEN THE BUILDERS SOLD THE FULLY CONSTRUCTED FLATS THEN STAMP DUTY HAS TO BE PAID FOR THE LAND AS WELL AS THE FLAT. AND TO AVOID STAMP DUTY ON THE VALUE OF THE BUILDING, THE INDIVIDUALS, WHO PURCHASED THE FLAT ENTERED INTO AN AGREEMEN T OF SALE OF UNDIVIDED SHARE OF LAND AND SIMULTANEOUSLY ENTERED INTO AN AGREEMENT FOR CONSTRUCTION OF FLAT FOR HIM. THEREFORE, IT WAS CONTENDED BEFORE THE KERALA HIGH COURT THAT IT WAS A WORKS CONTRACT. THE KERALA HIGH COURT, AFTER CONSIDERING AN IDENTICAL AGREEMENT AS ENTERED INTO IN THE CASE BEFORE US FOUND THAT IT IS NOT A WORKS CONTRACT. THE KERALA HIGH COURT FURTHER FOUND THAT THE ITA NO S 5 & 6/COCH/2014 8 AGREEMENTS WERE SO MADE TO APPEAR THE TRANSACTION IS ONE OF WORKS CONTRACT, BUT IN FACT IT IS NOT A WORKS CONTRACT. 12. I N THE CASE BEFORE US ALSO, THE ASSESSEE ENTERED INTO AGREEMENT FOR SALE OF PROPORTIONATE SHARE OF UNDIVIDED LAND AND ALSO AGREED TO CONSTRUCT THE FLAT ON BEHALF OF THE PROSPECTIVE PURCHASER. IT HAS TO BE NECESSARILY KEPT IN MIND THAT PROSPECTIVE PURCHASER OF A FLAT HAS NO CHOICE OF GIVING THE WORK TO ANY OTHER BUILDER. THEREFORE, WHEN THE PURCHASER PURCHASES THE UNDIVIDED SHARE OF AND HE HAS TO NECESSARILY AGREE FOR CONSTRUCTION OF THE BUILDING BY THE ASSESSEE AS PER THE BUILDING PLAN SANCTIONED BY RESPECTI VE LOCAL AUTHORITY. THEREFORE, WHEN WE LOOK INTO THE ENTIRE TRANSACTION AS SUCH IT IS A DEVELOPMENT OF HOUSING PROJECT BY THE ASSESSEE ITSELF AND NO ONE AWARDED ANY WORK TO THE ASSESSEE. MERELY BECAUSE, THERE IS AN ENABLING CLAUSE IN THE PARTNERSHIP DEED T O DO THE WORKS CONTRACT, THAT CANNOT BE A REASON TO CONCLUDE THAT THE ASSESSEE UNDERTOOK WORKS CONTRACT. ON THE FACTS OF THIS CASE AND THE NATURE OF TRANSACTIONS ENTERED INTO BY THE ASSESSEE CLEARLY SHOW THAT THE ASSESSEE EXECUTED THE HOUSING PROJECT AS A DEVELOPER. THEREFORE, IT IS NOT A CASE OF WORKS CONTRACT. IN VIEW OF THE ABOVE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ASSESSEE IS ENTITLED FOR DEDUCTION U/S 80IB(10) OF THE ACT. 13. FOR THE ASSESSMENT YEAR 2007 - 08, ORIGINALLY, THE ASSESSING OFFICER GRANTED DEDUCTION U/S 80IB(10) OF THE ACT. HOWEVER, THE ADMINISTRATIVE COMMISSIONER REVISED THE ORDER AND DIRECTED THE ASSESSING OFFICER TO REDO THE ASSESSMENT. THE ASSESSEE CHALLENGED THE ORDER OF THE ADMINISTRATIVE COMMISSIONER BEFORE THIS TRIBU NAL. THIS TRIBUNAL FOUND THAT THE ASSESSING OFFICER HAS NOT APPLIED HIS MIND TO THE FACTS OF THE CASE. THEREFORE, THIS TRIBUNAL CONFIRMED THE ORDER OF THE ADMINISTRATIVE COMMISSIONER. CONSEQUENT TO THE ORDER OF THE ADMINISTRATIVE COMMISSIONER AS CONFIRMED BY THIS TRIBUNAL, THE ASSESSING OFFICER AGAIN EXAMINED THE MATTER FOR THE ASSESSMENT YEAR 2007 - 08 AND FOUND THAT THE ASSESSEE HAS EXECUTED A HOUSING PROJECT AS A DEVELOPER AND ACCORDINGLY GRANTED DEDUCTION U/S 80IB OF THE ACT. IN VIEW OF THE ORDER OF THE A SSESSING OFFICER FOR THE ASSESSMENT YEAR 2007 - 08, THE DEPARTMENT CANNOT NOW CONTEND THAT THE ASSESSEE IS NOT ENTITLED FOR DEDUCTION U/S 80IB(10) OF THE ACT. THEREFORE, THE CIT(A) IS NOT JUSTIFIED IN REJECTING THE CLAIM OF THE ASSESSEE MERELY BECAUSE THERE IS AN ENABLING CLAUSE IN THE PARTNERSHIP DEED TO DO WORKS CONTRACT IN ADDITION TO DEVELOPMENT OF HOUSING PROJECT. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ASSESSEE EXECUTED THE HOUSING PROJECT AS A DEVELOPER AND NOT AS WORKS CONTRACT. 14. IN VIEW OF THE ABOVE, THE ORDERS OF THE LOWER AUTHORITIES ARE SET ASIDE AND THE ASSESSING OFFICER IS DIRECTED TO GRANT DEDUCTION U/S 80IB OF THE ACT IN RESPECT OF D.D. NEST PROJECT. ITA NO S 5 & 6/COCH/2014 9 13 IN VIEW OF THE ORDER OF THE TRIBUNAL AND THE SUBMISSIONS MADE BY BOTH THE PARTIES, WE HOLD THAT THE ASSESSEE IS ENTITLED TO THE BENEFIT OF DEDUCTION U/S 80IB(10) OF THE ACT. IT IS ORDERED ACCORDINGLY ; THEREFORE, G ROUND NOS 6 TO 8 ARE ALLOWED 14 IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE ARE PARTLY ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 11 TH DAY OF DEC 2015 . SD/ - SD/ - ( B P JAIN ) ( GEORGE GEORGE K ) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN: DATED 11 TH DEC 2015 RAJ* COPY TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT , 5 . DR 6 . GUARD FILE BY ORDER ASSISTANT REGISTRAR ITAT, COCHIN