TaxTMI 
TaxTMI 
2015 (1) TMI 779
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....d the matter before CIT(A) who dismissed the appeal of the Assessee. Aggrieved by the aforesaid order of CIT(A), Assessee is now in appeal before us and has raised the following effective grounds;- 1.The Learned CIT (A) has erred in law and on facts of the appellant's case in confirming the action of Learned A.O. of disallowing the claim of deduction u/s 80-IB (10) of the I.T. Act 1961 on various erroneous plea. 2.Both the lower authorities have erred in law and on facts of the appellant's case in not appreciating the fact that the appellant is developing & building housing projects by fulfilling all the requirements for claiming the deduction u/s 80-IB (10) of the Act. 4. During the course of assessment proceedings, A.O noticed that Assessee has claimed deduction of Rs. 29,32,078/- u/s. 80IB(10) of the Act. Assessee was asked to justify its claim of deduction. On the basis of submissions made by the Assessee, A.O noted that the approval for construction of the project for which deduction was claimed by the Assessee was granted by Vadodara Municipal Corporation in the name of Shri Akshay Kothari and Ors. and was not in the name of the Assessee. He also noticed that....
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....wed. 6. Ld. D.R. on the other hand supported the order of A.O and CIT(A). 7. 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 construction 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 Narayan 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 held 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 of his predecessor in assessees own case ....
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....opers (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, it 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 construction 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....
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....e 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. Similarly, 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 facts, 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 building 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 fact, the Tribu....