TaxTMI 
TaxTMI 
2014 (4) TMI 518
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....come of Rs. 11,24,370/- after claiming deduction under section 80IB(10) of Rs. 38,76,416/-. The case was selected for scrutiny and thereafter the assessment was framed under section 143(3) of the Act vide order dated 21.12.2011 and the total income was determined at Rs. 50,28,400/-. Aggrieved by the order of A.O., Assessee carried the matter before CIT(A). CIT(A) vide order dated 30.11.2012 allowed the appeal of the Assessee. Aggrieved by the aforesaid order of CIT(A), the Revenue is now in appeal before us and has raised the following effective ground:- 1. The ld. CIT(A) erred in law in allowing deduction of Rs. 38,76,416/- u/s. 80IB(10) of the I.T. Act without appreciating that legal relationship between the assessee and the end user of ....
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....ssessee's claim for deduction under 80IB(10). Aggrieved by the order of A.O., Assessee carried the matter before CIT(A), CIT(A) decided the issue in favour of Assessee by holding as under:- 3.3 I have considered the facts of the case, finding of the AO and written submissions made by the appellant. Undisputed facts are that the assessee was owner of a plot having area of 52702 sqr metres which \ is more than the minimum area of 01 acre required to be eligible for deduction under the 80IB(10). The assessee has also taken necessary approval from the appropriate authority and commenced the scheme within the prescribed period and constructed residential units having built-up area of less than 1500 sqr feet. The main contention of the AO is tha....
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.... sold the land before entering into the construction agreement as has been held by the AO. Apparently, appellant has followed this route to save on Stamp duty. This practice is being followed invariably by the builders and developers who are constructing and selling bungalows or apartments. By doing so they save on the Stamp duty. If constructed bungalow is sold then the Stamp duty would have been levied on the cost of construction along with the land prices. This modus operendi is well known to the State Registration Authorities. Even if they are not aware then the AO should have brought these facts to the notice of the Registration Authority. As far as Income-tax is concerned appellant has shown income from sale of land as well as receipt....
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....nvolved in all activities relating to development and construction of the project. Since this case was decided after the assessment order was passed hence the benefit of the same was not available to the AO. The said decision has duly considered various reasons stated by the AO for disallowing deduction u/s 80IB(10). The decision in the case of K Raheja Development Corporation which has been relied upon by the AO, has no relevance to the claim of deduction u/s 80IB(10) of the Income Tax, since the same was pertaining to Sales Tax Law. This is not a case where appellant is acted on behalf of land owner and has got fixed consideration for developing the housing project. The land was belonging to appellant and he has undertaken the construct....
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....case, we find that the Assessee has been denied the deduction under 80IB(10) by the A.O. for the reason that the Assessee is not the owner of the land and has acted only as a contractor. We further find that the decision of Gujarat High Court in the case of CIT vs. Radhe Developers 341 ITR 403 was delivered by Hon. Gujarat High Court on 30th December, 2011 and therefore the A.O. was not having the benefit of the aforesaid decision. We further find that the Co-ordinate Bench in the case of Shikar Developers ITA No. 854/AHD/2010 has noted the various requirements as stipulated in the case of Radhe Developers (2010) 329 ITR 01 (Guj) needs to be fulfilled by a developer to stake a claim for deduction, the relevant portion of the guidelines as n....
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....er the agreement the assessee had been given full authority to develop the land and to construct residential units. The AO has to examine the fact in respect of engagement of professionals, such as, architect for designing and architectural work. (e) The AO has to examine the responsibility of enrolment of members and collection of charges required to be made from the buyers of the residential units. (f) The AO has to examine about the "profit" or "loss" arising from the said project. (g) Though the ownership of land has been held as not the only criteria for allowing the claim u/s 80IB(10) but the domain over the land and the control over the project has to be examined by the A.O. (h) Whether on transfer of domain the land owners have ....