2012 (11) TMI 234 - AT - Income Tax

ITAT affirms deduction under Section 80IB(10) for housing project development.

The Income Tax Appellate Tribunal (ITAT) upheld the Commissioner of Income Tax (Appeals) [CIT(A)]'s decision, allowing the deduction under Section ... Deduction u/s 80IB - Disallowance on non fulfillment of prescribed conditions - CIT(A) alloowed the claim - Held that:- On consideration of the relevant documents & development agreements it can be fairly concluded that the assessee had acquired dominance over the land and the land was under the possession of the assessee. The assessee firm was de-facto land owner for all practical purposes and has also developed housing project by incurring all the expenses and taking all the risk involved therein. Thus, the assessee firm was not merely contractor of the land owner for fixed remuneration. He further found that land owners were to get only the price of land fixed by the development agreement and not to get any profit of the project. Therefore, the assessee had fulfilled all the conditions as laid down u/s 80IB(10) - in favour of assessee. Issues Involved:1. Disallowance of deduction under Section 80IB of the Income Tax Act.2. Ownership of land for eligibility of deduction under Section 80IB(10).Detailed Analysis:1. Disallowance of Deduction under Section 80IB of the Income Tax Act:During the assessment proceedings, the Assessing Officer (A.O.) disallowed the claim of deduction under Section 80IB of the Income Tax Act amounting to Rs. 67,32,850/- on the grounds that the assessee had not fulfilled all the prescribed conditions laid down under Section 80IB. The A.O. argued that the deduction under Section 80IB(10) read with Section 80IB(1) and Rule 18BBB is admissible only to an assessee deriving profits from an undertaking of building and housing projects approved by the local authority. The A.O. concluded that since the assessee was not the owner of the land and the approval of the local authority was not in the name of the assessee but in the name of the landowners, the conditions laid down in Section 80IB(10) were not fulfilled. Consequently, the deduction claimed was rejected, and penalty proceedings under Section 271(1)(c) were initiated for furnishing inaccurate particulars.2. Ownership of Land for Eligibility of Deduction under Section 80IB(10):The assessee contended before the Commissioner of Income Tax (Appeals) [CIT(A)] that the A.O. erred in disallowing the deduction by holding that the claim is allowable only to an assessee who legally owns the land. The assessee cited the case of Radhe Developers, where it was established that ownership by registration in the name of the assessee claiming deduction under Section 80IB(10) is not essential. The assessee argued that despite not being the registered owner, it exercised dominion over the land and controlled the project, bearing all risks and rewards involved.The CIT(A) examined the development agreements and other relevant documents and concluded that the assessee had acquired dominance over the land and was the de-facto landowner for all practical purposes. The CIT(A) noted that the assessee firm had developed the housing project by incurring all expenses and taking all risks involved, and the landowners were entitled only to a fixed remuneration. The CIT(A) held that the assessee fulfilled all conditions laid down under Section 80IB(10) and was entitled to the deduction of Rs. 67,32,850/-.Judgment:The Income Tax Appellate Tribunal (ITAT), after hearing both parties and perusing the records, upheld the CIT(A)'s decision. The ITAT found that the CIT(A) correctly determined that the assessee had acquired dominance over the land and developed the housing project at its own cost and risk, thereby fulfilling all conditions under Section 80IB(10). The ITAT referenced the principles laid down in the cases of Radhe Developers and Shakti Corporation, which were confirmed by the jurisdictional High Court. Consequently, the ITAT dismissed all appeals filed by the Revenue, affirming the CIT(A)'s order allowing the deduction under Section 80IB(10) to the assessee.