The ITO, Ward-5(2), Baroda V. M/s. Abhay Associates, Baroda

ITA 761/AHD/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 85615 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 10 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 08-01-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 15-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ROOP CHAND
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL CHATURVEDI , A.M.) I. T. A. NO S . 548 & 761 / AHD/ 20 1 3 (A SSESSMENT YEAR: 2008 - 09) M/S. ABHAY ASSOCIATES ABOVE TRISHA GALLERY, JETALPUR ROAD, VADODARA V/S THE INCOME TAX OFFICER, WARD - 5(2), BARODA (APPELLANT) (RESPONDENT) THE INCOME TAX OFFICER, WARD - 5(2), BARODA V/S M/S. ABHAY ASSOCIATES ABOVE TRISHA GALLERY, JETALPUR ROAD, VADODARA (APPELLANT) (RESPONDENT) PAN: AAGFA 6771N APPELLANT BY : SHRI MUKUND BAKSHI, A.R. RES PONDENT BY : SHRI ROOP CHAND, SR. D.R. ( )/ ORDER DATE OF HEARING : 08 - 01 - 2015 DATE OF PRONOUNCEMENT : 23 - 01 - 2015 PER SHRI ANIL CHATURVEDI,A.M. 1. THESE 2 APPEALS OF WHICH ONE IS FILE D BY THE REVENUE AND THE OTHER FILED BY THE ASSESSEE , ARE AGAINST THE ORD ER OF CIT(A) - V, BARODA DATED 27.12.2012 FOR A.Y. 2008 - 09 . 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. ITA NO S. 548 & 761/AHD/2013 . A.Y. 2008 - 09 2 3. ASSESSEE IS A PARTNERSHIP FIRM STATED TO BE ENGAGED IN THE BUSINESS OF CONSTRUCTION OF HOUSING PROJECTS. ASSESSEE ELE CTRONICALLY FILED ITS RETURN OF INCOME FOR A.Y. 08 - 09 ON 23.08.2008 DECLARING TOTAL INCOME OF RS. NIL AFTER CLAIMING DEDUCTION U/S. 80IB(10) OF RS. 31,95,505/ - . THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER THE ASSESSMENT WAS FRAMED UNDER SECTION 143(3 ) VIDE ORDER DATED 22.12.2010 AND THE TOTAL INCOME WAS DETERMINED AT RS. 31,95,510/ - BY DENYING THE CLAIM OF DEDUCTION U/S. 80IB. AGGRIEVED BY THE ORDER OF A.O., ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) WHO VIDE ORDER DATED 30.03.2010 GRANTED PARTIAL RELIEF TO THE ASSESSEE. AGGRIEVED BY THE AFORESAID ORDER OF LD. CIT(A) , BOTH REVENUE AS WELL AS ASSESSEE ARE NOW IN APPEAL BEFORE US. THE GROUNDS RAISED BY THE REVENUE READS AS UNDER: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEAR NED CIT(A) ERRED IN (AW IN DIRECTING AO TO ALLOW DEDUCTION CLAIMED U/S 80IB(10) OF THE IT ACT ON PRO - RATA BASIS IN RESPECT OF SALE CONSIDERATION OF GROUND FLOOR WITHOUT APPRECIATING THAT LEGAL RELATIONSHIP BETWEEN THE ASSESSEE AND THE END USER OF UNITS WAS THAT OF 'WORK CONTRACT'. 4. ON THE OTHER GROUND RAISED BY THE ASSESSEE READS AS UNDER: - 1. THE LD. CIT (A) - V, BARODA HAS ERRED IN LAW AND IN FACTS IN DENYING TO THE APPELLANT THE CLAIM OF DEDUCTION U/S 801B(10) ON THE GROUND THAT THERE IS NO SALE OF COMPLETED TENEMENTS IN A HOUSING PROJECT RATHER THERE IS A SALE OF DEVELOPED AND PARTIALLY CONSTRUCTED PLOTS ONLY BY MAKING THE FOLLOWING OBSERVATIONS: (A) THAT THE APPELLANT WAS NOT A DEVELOPER OF RESIDENTIAL PROJECT IN VIEW OF SALE DEED BEING FOR PLOT AND LAND WITH CO NSTRUCTION UPTO THE GROUND FLOOR ONLY AND A SUBSEQUENT AGREEMENT FOR CONSTRUCTION OF FIRST FLOOR WHICH WAS MORE THAN 50% OF THE TOTAL RECEIPTS. (B) BY ENTERING INTO A CONSTRUCTION AGREEMENT WITH THE PURCHASER, THE APPELLANT MADE HIMSELF A CONTRACTOR OF THE PUR CHASER. (C) A CONTRACTOR CANNOT CLAIM HE IS STILL A DEVELOPER OF THE TOTAL HOUSING PROJECT AND ENTITLED TO CLAIM DEDUCTION U/S 801B OF THE ACT. (D) SINCE THE ACTIVITY OF DEVELOPMENT AND SALE OF PLOTS WITH PARTIALLY CONSTRUCTED TENEMENTS FULFILLS ALL THE CONDITIONS OF SECTION 80IB OF THE ACT, THE APPELLANT IS GRANTED DEDUCTION IN RESPECT OF PROFITS EARNED FROM THIS ACTIVITY. (E) IN VIEW OF THE ABOVE, DEDUCTION U/S 80IB HAS BEEN GRANTED ON PRO RATA BASIS IN RESPECT OF SALES CONSIDERATION (NET OF SALES CONSIDERATION OF TH E LAND INCLUDED THEREIN) RECEIVED BY THE APPELLANT AS PER SALE DEED SINCE NO SEPARATE BOOKS OF ACCOUNT HAVE BEEN MADE IN RESPECT OF THE ELIGIBLE ACTIVITY. THE IMPUGNED DENIAL OF DEDUCTION BEING BAD IN LAW IS PRAYED TO BE ALLOWED AS CLAIMED. ITA NO S. 548 & 761/AHD/2013 . A.Y. 2008 - 09 3 5. SINCE THE GROU NDS RAISED BY THE ASSESSEE AS WELL AS REVENUE ARE INTERCONNECTED BOTH THE APPEALS ARE CONSIDERED TOGETHER. 6. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, A.O NOTICED THAT ASSESSEE HAD CLAIMED DEDUCTION U/S. 80IB OF THE ACT. ON PERUSING THE DETAILS FILED BY THE ASSESSEE HE NOTICED THAT ASSESSEE WAS NOT THE OWNER OF THE LAND ON WHICH THE CONSTRUCTION ACTIVI TIES WAS CARRIED OUT. HE ALSO NOTICED THAT APPROVAL OF THE HOUSING PROJECT FROM THE LOCAL AUTHORITY WAS TAKEN BY OTHER PERSONS, THE LAND OWNERS HAD SOLD TH E PIECES OF LAND TO UNIT HOLDERS DIRECTLY AND ASSESSEE WAS MERELY A CONFIRMING PARTY AND ASSESSEE HAD ACTED MERELY AS A CONTRACTOR AS IT HAD ENTERED INTO CONSTRUCTION AGREEMENT WITH THE UNIT HOLDERS. HE ACCORDINGLY DENIED THE CLAIM OF DEDUCTION UNDER 80IB OF THE ACT. AGGRIEVED BY THE AFORESAID ORDER OF A.O, ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A). LD. CIT(A) NOTED THAT IN VIEW OF THE DECISION OF HON BLE TRIBUNAL IN THE CASE OF RADHE DEVELOPERS AND SHAKTI CORPORATION, THE ASSESSEE COULD NOT BE DE NIED D EDUCTION UNDER 80IB(10) SIMPLY BECAUSE THE ASSESSEE WAS NOT THE OWNER OF THE LAND BUT HOWEVER HE WAS OF THE VIEW THAT IN RESPECT OF AN ENTERPRISE WHICH IS DEVELOPING A HOUSING PROJECT AS A WORKS CONTRACT FOR SOME OTHER PERSON, THE BENEFIT OF DEDUCTION UNDE R 80IB(10) IS NOT AVAILABLE. HE NOTED THAT ASSESSEE HAD SOLD FULLY DEVELOPED RESIDENTIAL PLOT WITH CONSTRUCTION OF GROUND FLOOR BY EXECUTING A REGISTERED SALES AGREEMENT. HE FURTHER NOTED THAT A FTER THE EXECUTION OF SALE DEED, ASSESSEE HAD ENTERED INTO A S EPARATE CONSTRUCTION AGREEMENT WITH THE PLOT PURCHASER FOR CONSTRUCTION ON THE PLOT BY ENTERING INTO A CONSTRUCTION AGREEMENT WITH THE PURCHASER, THE ASSESSEE HAS MADE HIMSELF A CONTRACTOR OF THE PURCHASER. HE WAS THEREFORE OF THE VIEW THAT THE CONTRACT WO RK WAS A SEPARATE ACTIVITY WHICH IS NOT ELIGIBLE FOR DEDUCTION U/S. 80IB(10). HE WAS OF THE VIEW THAT THE ROLE OF THE ASSESSEE AS DEVELOPER OF THE PROJECT GETS OVER AS SOON AS RESIDENTIAL PLOTS WITH CONSTRUCTION UP TO THE GROUND FLOOR ARE SOLD TO THE INDIV IDUAL PURCHASER WITH ALL THE RIGHTS IN THE PLOTS. HE WAS THEREFORE OF THE VIEW THAT IT CANNOT BE HELD THAT THE PROJECT AS A WHOLE HAS BEEN PRIMARILY DEVELOPED BY THE ITA NO S. 548 & 761/AHD/2013 . A.Y. 2008 - 09 4 ASSESSEE BECAUSE MORE THAN 50% OF THE SALE PROCEEDS OF THE PROJECT WERE CONTRACT RECEIPTS. HE ACCORDINGLY DIRECTED THE A.O TO REDUCE THE TURNOVER OF THE ASSESSEE BY THE AMOUNT OF SALE CONSIDERATION OF L AND INCLUDED IN IT AND THEN GRANT DEDUCTION U/S. 80IB(10) ON PRO RATA BASIS IN RESPECT OF SALE CONSIDERATION OF GROUND FLOOR RECEIVED BY THE ASS ESSEE. 7. AGGRIEVED BY THE AFORESAID ORDER OF LD. CIT(A) REVENUE AS WELL AS ASSESSEE ARE NOW IN APPEAL BEFORE US. 8. BEFORE US, LD. A.R. AT THE OUTSET SUBMITTED THAT THE FACTS OF THE PRESENT CASE ARE IDENTICAL TO THAT OF NARAYAN REALITY AND THEREFORE ISSUE IN THE PRESENT APPEAL IS DIRECTLY COVERED BY THE DECISION OF THE CO - ORDINATE BENCH OF TRIBUNAL IN THE CASE OF NARAYAN REALITY LTD. ITA NO. 2293/A/12 & 2095/A/13 ( ORDER DATED 2.05.2014 ). HE ALSO PLACED ON RECORD THE COPY OF THE AFORESAID DECISION. HE FURTHE R SUBMITTED THAT SINCE THE FACTS OF THE PRESENT CASE ARE EXACTLY SIMILAR TO THAT OF NARAYAN REALITY, THE ASSESSEE S CLAIM OF DEDUCTION BE ALLOWED. LD. D.R. ON THE OTHER HAND SUPPO RTED THE ORDER OF A.O . 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT IN THE PRESENT CASE THE ASSESSEE WAS DENIED DEDUCTION U/S. 80IB(10) BY LD. CIT(A) FOR THE REASON THAT ASSESSEE HAD NOT SOLD RESIDENTIAL HOUSES IN THE HOUSING PROJECT BUT HAD SOLD DEVELOPED RESIDENTIAL PLOTS WITH CONSTRUCT ION UP TO THE PLINTH ONLY AND THUS THE ASSESSEE COULD NOT BE CONSIDERED AS DEVELOPER OF HOUSING PROJECT BUT WAS A CONTRACTOR AND THEREFORE ASSESSEE WAS NOT ELIGIBLE FOR DEDUCTION U/S. 80IB(10) OF THE ACT. WE FIND THAT ON SIMILAR FACTS, IN THE CASE OF NARAY AN REALITY LTD. (SUPRA) THE ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE BY THE CO - ORDINATE BENCH BY HOLDING AS UNDER: - 8.WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. ON PERUSING THE ORDER OF CIT(A), IT IS SEEN THAT CIT(A) HAS HEL D THAT THE ISSUE RELATING TO DISALLOWANCE OF DEDUCTION U/S 80IB(10) OF THE ACT ON THE GROUND THAT ASSESSEE IS NOT THE OWNER OF THE LAND AND THE APPROVAL OF THE PROJECT NOT BEING IN THE NAME OF THE ASSESSEE IS COVERED IN FAVOUR OF ASSESSEE BY THE DECISION O F HIS PREDECESSOR IN ASSESSEES OWN CASE FOR AY 2008 - 09. WE FURTHER FIND THAT CIT(A) HAD DISALLOWED THE CLAIM OF THE ASSESSEE ON THE GROUND THAT ASSESSEE HAD ENTERED INTO TWO AGREEMENTS NAMELY 'SALE DEED' FOR THE SALE OF LAND AND 'CONSTRUCTION AGREEMENT' FO R THE CONSTRUCTION THE UNIT AND THEREFORE ACCORDING TO HIM, THE ASSESSEE WAS A ITA NO S. 548 & 761/AHD/2013 . A.Y. 2008 - 09 5 CONTRACTOR AND THEREFORE NOT ELIGIBLE FOR DEDUCTION U/S 801B(10). WE ALSO FIND THAT ON IDENTICAL FACTS, THE CO - ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF SATSANG DEVELOPERS ( ITA NO 1011, 2498 AND 1221 OF 2012 ORDER DATED 12.11.2013 HAS ALLOWED THE DEDUCTION TO ASSESSEE BY HOLDING AS UNDER: - 4.2. IN ADDITION TO ABOVE TWO OBJECTIONS, THE ID.CIT (A) HAS RAISED ONE MORE OBJECTION THAT THE ASSESSEE HAS SOLD THE LAND TO THE UNIT HOL DERS SEPARATELY AND HAS DONE THE CONSTRUCTION OF UNITS UNDER SEPARATE AGREEMENT/CONTRACT AND, THEREFORE, THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION U/S.80 - IB(10) OF THE ACT BECAUSE AS PER LD.CIT(A), PROFIT EARNED BY THE ASSESSEE IN RESPECT OF SALE OF LAND IS NOT ELIGIBLE FOR DEDUCTION U/S.80 - IB(10) OF THE ACT AND SIMILARLY, THE PROFIT EARNED BY THE ASSESSEE FOR CONSTRUCTION ACTIVITIES IS NOT ELIGIBLE FOR DEDUCTION U/S.80 - IB(10) BECAUSE THE ASSESSEE IS DOING THE CONSTRUCTION AS A CONTRACTOR FOR A WORK AND NO T AS A BUILDER OR DEVELOPER AND, THEREFORE, THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION U/S.80 - IB(10) OF THE ACT. AGAINST THESE OBJECTIONS OF LD.CIT (A), THE ASSESSEE IS IN APPEAL BEFORE US. 5.2 REGARDING THE 3 RD OBJECTION THAT THE ASSESSE HAS SOLD LAND TO THE UNIT HOLDERS SEPARATELY AND HAS DONE THE CONSTRUCTION UNITS UNDER A PROJECT AGREEMENT/CONTRACT, IT WAS SUBMITTED THAT IT IS A JOINT ACTIVITY ALTHOUGH THE AGREEMENT AND LAND SALE - DEED ARE EXECUTED SEPARATELY, BUT FOR THIS REASON ALONE, IT C ANNOT BE SAID THAT THE ASSESSEE IS NOT A BUILDER OR A DEVELOPER. HE PLACED RELIANCE ON THE FOLLOWING TRIBUNAL DECISIONS: - SL.NO(S) DECISION IN THE CASE OF. ... REPORTED IN.... 1. DCIT VS. SMR BUILDERS (P.)LTD. (2012)24 TAXMAN.COM 194 (HYD.) 2. S KY BUILDERS & DEVELOPERS VS. ITO (2011)14 TAXMAN.COM 78 (INDORE) 3. M/S.VARDHMAN BUILDERS AND DEVELOPERS VS. ITO ITA NO.559/IND/2010 DATED 09/05/20 12 4. RAGHAVA ESTATES VS. DY.CIT ITA NOS.248 & 49/VIZAG/2009 DAT ED 04/08/2011 5.2. HE SUBMITTED THAT IN THE CASE OF VARDHMAN BUILDERS & DEVELOPERS (SUPRA) ALSO, THE ASSESSEE HAD ENTERED INTO A SEPARATE AGREEMENT FOR SALE OF LAND AND SEPARATE AGREEMENT FOR CONSTRUCTION OF HOUSING ON SUCH LAND AND UNDER THESE FACTS, I T WAS HELD BY THE TRIBUNAL IN THAT CASE THAT MERELY BECAUSE OF TWO SEPARATE AGREEMENTS, THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S.80 - IB (10) OF THE ACT CANNOT BE DECLINED IF OTHER CONDITIONS ARE BEING SATISFIED. 5.3. HE FURTHER SUBMITTED THAT IN THE CASE OF DCIT VS. SMR BUILDERS (P) LTD. (SUPRA) ALSO, THE FACTS WERE THAT THE ASSESSEE HAD SOLD FLATS IN A SEMI - FINISHED STAGE. IN THAT CASE, THE AO HAD NOTED THAT AS PER THE SALE - DEED, THE ASSESSEE - COMPANY HAS SOLD UNDIVIDED SHARE OF LAND WITH SUPER - STRUCTURE OF SEMI - FINISHED BUILT - UP AREA FOR A CERTAIN CONSIDERATION. THE AO HELD THAT THE SEMI - FINISHED STRUCTURE HAS NEVER BEEN CONSIDERED AS A RESIDENTIAL UNIT. IT WAS ALSO NOTED BY THE AO IN THAT CASE THAT ON THE SAME DATE WHEN THE SALE DEED WAS EXECUTED, A CONS TRUCTION AGREEMENT WAS ALSO ENTERED INTO WITH THE TRANSFEREE FOR FURTHER CONSTRUCTION OF THE SAME FLATS BY THE BUILDER COMPANY ITSELF. HE SUBMITTED THAT THE FACTS IN THE PRESENT CASE ARE SIMILAR. HE ALSO POINTED OUT THAT IN THAT CASE, IT WAS HELD BY THE TR IBUNAL THAT THE STAND OF THE REVENUE WITH REGARD TO THE SEMI FINISHED CONDITION OF THE FLATS IS DEVOID OF ANY MERIT IN AS MUCH AS WHAT IS SOUGHT TO BE CONSTRUCTED AND SOLD BY THE ASSESSEE IS A RESIDENTIAL UNITS AND WHAT IS SOUGHT TO BE PURCHASED BY THE BUY ER IS THE OWNERSHIP OF THE SPECIFIED UNIT AND REGISTRATION OF FLAT IN SEMI - FINISHED CONDITION IS ONLY TO FACILITATE THE CONVENIENCE OF THE PARTIES AND AGREEMENT FOR DEVELOPMENT AND COMPLETION OF BALANCE WORK IN RELATION TO THE FLATS IS ONLY AN INCIDENTAL F ORMALITY AND THIS CANNOT BE VIEWED AS FATAL TO THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S.80 - IB(10) OF THE ACT. IT WAS ITA NO S. 548 & 761/AHD/2013 . A.Y. 2008 - 09 6 ALSO HELD BY THE TRIBUNAL THAT THE ENTIRE WORK FROM THE STAGE OF THE COMMENCEMENT TO THE STAGE OF MAKING THE RESIDENTIAL UNIT HABITABLE HAVE BEEN CARRIED OUT BY THE ASSESSEE ONLY AND, THEREFORE, ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S.80 - IB(L0) OF THE ACT. 9.2. NOW WE TAKE UP THE THIRD AND LAST OBJECTION OF ID.CIT (A) THAT THE ASSESSE HAD SOLD THE LAND SEPARATELY AND UNDERTOOK THE CONSTRUCT ION WORK AS PER A SEPARATE AGREEMENT AND, THEREFORE THE ASSESSEE IS NOT A BUILDER OR A DEVELOPER BUT A LAND DEALER AND CONTRACTOR. IN THIS REGARD, IN OUR CONSIDERED OPINION, THE ISSUE INVOLVED IS SQUARELY COVERED IN FAVOUR OF ASSESSEE BY THE DECISION OF IT AT INDORE BENCH RENDERED IN THE CASE OF M/S.VARDHMAN BUILDERS AND DEVELOPERS VS. ITO (SUPRA). IT IS NOTED BY THE TRIBUNAL IN THAT CASE THAT THE ASSESSEE HAD ENTERED INTO AN AGREEMENT FOR A SALE OF LAND AND A SEPARATE AGREEMENT FOR CONSTRUCTION OF THE HOUSE ON THE LAND AND, THEREFORE, THE FACTS ARE SIMILAR. UNDER THESE FACTS, IT WAS HELD BY THE TRIBUNAL IN THAT CASE THAT THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S.80 - IB (10) OF THE ACT CANNOT BE DECLINED IF OTHER CONDITIONS ARE BEING SATISFIED. SIMILARLY, IN THE CASE OF DCIT VS. SMR BUILDERS (P.) LTD. (SUPRA) ALSO, THE ASSESSEE SOLD THE LAND ALONG WITH SEMI - FINISHED STRUCTURE TO THE BUYERS AND AS PER SEPARATE AGREEMENT, AGREED FOR CONSTRUCTION FOR COMPLETION OF BALANCE WORK. HENCE, THE FACTS OF THIS CASE ARE ALSO SIMILAR BECAUSE IN THAT CASE ALSO, THE LAND WAS SOLD SEPARATELY ALONG WITH PARTIAL AND UNFINISHED CONSTRUCTION OF FLATS AND, THEREAFTER, CONSTRUCTION AGREEMENT WAS ENTERED INTO TO CARRY OUT THE BALANCE CONSTRUCTION WORK AND UNDER THESE FACTS, IT WAS H ELD BY THE TRIBUNAL IN THAT CASE THAT SUCH AGREEMENT FOR CONSTRUCTION TO COMPLETE THE BALANCE WORK IS ONLY AN INCIDENTAL FACILITATION TO PROTECT INTEREST OF THE PARTIES AND THEREFORE, THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S.80 - IB(10) OF THE ACT. SIMILAR LY, IN THE CASE OF RAGHAVA ESTATES VS. DY.CIT (SUPRA) ON WHICH RELIANCE WAS PLACED BY THE ID.AR OF THE ASSESSEE, THE FACTS ARE SIMILAR. IN THAT CASE ALSO, THE ASSESSEE HAD SOLD THE PLOTS SEPARATELY AND THEREAFTER, CONSTRUCTED THE HOUSES AND UNDER THESE FAC TS, THE REVENUE HELD THAT THE ASSESSEE HAS TO BE CONSIDERED AS A MERE CONTRACTOR AND, THEREFORE, THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION U/S.80 - IB (10) OF THE ACT. THIS GOES TO SHOW THAT THE FACTS IN THAT CASE WERE IDENTICAL. IN THAT CASE, IT WAS NOTED BY THE TRIBUNAL THAT THE ASSESSEE HAD CHOSEN TO REGISTER THE PLOT IN THE NAME OF THE BUYER ON PAYMENT OF SPECIFIED AMOUNT IN ORDER TO ACHIEVE COST SAVING AND TO ENSURE RELIABILITY AND THEREAFTER, THE ASSESSEE HAD PROCEEDED TO CONSTRUCT THE HOUSE AS PER BUI LDING PLAN OBTAINED IN THE NAME OF THE PLOT - OWNERS ON PAYMENT OF SUBSEQUENT INSTALLMENTS. IT IS ALSO NOTED THAT THE ASSESSEE HAD ALSO DEVELOPED VARIOUS PUBLIC AMENITIES WITHIN THE PROJECT. THEREAFTER, IT WAS HELD BY THE TRIBUNAL THAT ON A TOTALITY OF A FAC T, THE TRIBUNAL IS OF THE VIEW THAT THE ASSESSEE HAS UNDERTAKEN DEVELOPING AND BUILDING HOUSING PROJECTS AS PER THE SCHEME PROVIDED IN SECTION 80 - IB (10) OF THE ACT. 9.3. SINCE THE FACTS IN THE PRESENT CASE ARE SIMILAR TO THE FACTS IN ABOVE NOTED THREE TRI BUNAL DECISIONS, WE DO NOT FIND ANY DEFECT IN THE CONSTRUCTION IN THE PRESENT CASE AND HENCE RESPECTFULLY FOLLOWING THESE DECISIONS, WE DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE. THERE IS NO OTHER OBJECTION OF THE LD. CIT(A) REGARDING ALLOWABILITY OF DEDU CTION TO THE ASSESSEE U/S. 80IB(10) OF THE ACT. HENCE, WE DIRECT THE A.O TO GRANT THE DEDUCTION TO THE ASSESSEE U/S. 80IB(10) OF THE ACT. 9.BEFORE US, THE REVENUE COULD DID NOT PLACE ANY CONTRARY DECISION ON RECORD NOR COULD DISTINGUISH THE FACTS OF THE C ASE WHICH WAS RELIED BY THE ASSESSEE. IN VIEW OF THE AFORESAID FACTS, WE RESPECTFULLY FOLLOWING THE AFORESAID DECISION OF THE CO - ORDINATE BENCH OF THE TRIBUNAL, IN THE CASE OF SATSANG DEVELOPERS (SUPRA) HOLD THAT ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S 80I B(10). THUS THIS GROUND OF ASSESSEE IS ALLOWED. 10. WE FIND THAT IN THE CASE OF NARAYAN REALITY LTD. (SUPRA) , THE CO - ORDINATE BENCH OF TRIBUNAL, AFTER PLACING RELIANCE ON THE VARIOUS DECISIONS CITED THEREIN DECIDED THE ISSUE IN FAVOUR OF ASSESSEE. BEFORE US, REVENUE COULD NOT POINT OUT ANY DISTINGUISHING FEATURE OF THE PRESENT CASE WITH THAT OF NARAYAN REALITY LTD. (SUPRA) NOR HAS BROUGHT ANY CONTRARY BINDING DECISION ON RECORD IN ITS SUPPORT. IN VIEW OF THE AFORESAID FACTS, WE RESPECTFULLY FOLLOWING THE DECIS ION OF THE CO - ORDINATE BENCH OF TRIBUNAL IN THE CASE OF NARAYAN REALITY (SUPRA) HOLD THAT THE ITA NO S. 548 & 761/AHD/2013 . A.Y. 2008 - 09 7 ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S. 80IB(10). THUS THIS GROUND OF ASSESSEE IS ALLOWED AND THAT OF REVENUE IS DISMISSED. 11. IN THE RESULT, THE APPEAL OF T HE AS SESSEE IS ALLOWED AND THAT OF REVENUE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 23 - 01 - 201 5 . SD/ - SD/ - (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTAN T MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD ]