TaxTMI 
TaxTMI 
2014 (5) TMI 228
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....approved is not in the name of the Assessee? B. Whether on the facts and circumstances of the case the decision of the Tribunal is perverse in holding that the Assessee was eligible to benefit u/s 80IB(10) of the Income Tax Act, 1961 even though part of the approved project pertaining to Villas or Bungalows exceeded the prescribed limit in Built-up Area? 2. Since both these appeals involve identical questions of fact and law, they are being disposed of by this common order. 3. Appeals are directed against the judgment and order dated 28 August 2013 of the Income Tax Appellate Tribunal in appeals filed by the Asst.Commissioner of Income-tax, Margao against the order dated 26 February 2013 of the CIT (Appeals)-Panaji. 4. The respondents-a....
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....for the buildings between 5 march 2009 and 8 October 2009. Thus, completion certificates were issued within five years from the date of approval, which period was to expire on 24 May 2011. 5. The Assessing Officer disallowed the assessee's claim u/s 89IB(10) on the following grounds:- (i) The housing project is not approved by the local authority in the name of the assessee or in the name of the project, but it was approved in the name of other person; (ii) The completion certificate has not been issued by the Village Panchayat and (iii) Row houses to be handed over to the owner were more than 1500 sq.ft.; 6. The assessee carried the matter in appeal before the CIT (Appeals)-Panaji, who allowed the assesse's claim for deduction....
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....der Section 8oIB (10) of the Act. 9. Identical contention was raised before the Gujarat High Court in Radhe Developers (supra), in which also under the agreement of sale entered into between the owner of the land and the developer, the owner of the land had received part of the sale consideration for parting with the possession of the land and for granting development permission to the developer in cash. The development of the land was entirely done by the developer- assessee by constructing residential units thereon as per the plans approved by the local authority. The developer-assessee had to pay the fees to the Architects and engineers. In addition the developer-assessee was also authorised to appoint any other architect, engineers, co....
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....he housing project by not only putting up the construction but by carrying out various other activities including enrolling members, accepting members etc. Most significantly, the risk element was entirely that of the assessee. The land owner agreed to accept only a fixed price for the land in question. In short the assessee took the full risk of executing the housing project and thereby making profit or loss as the case may be. 10. We are in respectful agreement with the view of the Gujarat High Court in Radhe Developers' case (supra) that the deduction u/s 80IB(10) is available to an assessee who is engaged in the business of developing and building a housing project. 11. The CIT (Appeals) as also the ITAT have given concurrent find....