TaxTMI 
TaxTMI 
2015 (11) TMI 120
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....oject. Assessee filed its return of income for A.Y. 2006-07 on 12.12.2006 declaring total income of Rs. Nil after claiming deduction of Rs. 38,99,189/- u/s. 80IB(10) of the Act. The case was selected for scrutiny and thereafter the assessment was framed under section 143(3) vide order dated 29.12.2008 and the total income was determined at Rs. 38,99,190/- interalia by denying the claim of deduction u/s. 80IB(10) of the Act. Aggrieved by the order of A.O., Assessee carried the matter before ld. CIT(A) who vide order dated 29.07.2011 allowed the claim of deduction u/s. 80IB(10) of the Act. Aggrieved by the aforesaid order of ld. CIT(A), Revenue is now in appeal before us and has raised the following grounds:- 1. The Ld. Commissioner of Income-tax (A)-XV, Ahmedabad has erred in law and on facts in deleting the disallowance amounting to Rs. 38,99,189/- made by the Assessing Officer u/s 801B(10) of the Act. 2. The Id. Commissioner of Income-tax (A)-XV, Ahmedabad has erred in holding that the assessee fulfills the conditions laid down for claiming deduction u/s.80IB(10) even when the land was in the name of Jagnath (Saraspur) Shops and Housing Cooperative Society Ltd., ....
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.... Cooperative Housing Society as Party of One part and Jay Mahakali Infrastructure Pvt.Ltd. and Balaji Corporation as the said firms as Party of the Other part states as under: "7. It has been decided to give all powers and authority as per the details mentioned above to the party of the other part for doing all the procedures including upto the stage of completion of the scheme and giving possessions to the members of the scheme to be developed upon the said land of the party of the one part and as per the mutual decision taken by and between both the parties hereto, Jay Makahali Infrastructure Pvt.Ltd. has willingly accepted the work of development of the said property including completing the whole schemes consisting of commercial offices, shops, etc. in "Prasiddhi Complex-1" and "Prasiddhi Complex-2' on behalf of the party of the one part, similarly M/s. Balaji Corporation has willingly accepted the work of development of the said property including completing the while schemes consisting of residential units etc. in "Prarthana Bungalows" and "Prerna Bungalows" on behalf of the party of the one part and in context to the same the terms and conditions have been mutua....
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.... in the agreement dated 15.4.2004 states: "In this manner the party of the other part shall decide, collect and recover such amount towards land and construction on it, from the members of "Prarthana Bungalows" scheme. On getting the total amount from the member enrolled in the society the party of the other part will give its recommendation to the society for issuing to the member the share certificate towards such land and construction on it and thereupon the party of the one part will issue such a certificate to such member for enrolling him as a member." 10. Thus the tests laid down by Hon'ble ITAT 'A' bench, Ahmedabad in the case of Shakti Corporation stand fulfilled that the appellant should have practically purchased the land (in this case land cost was to be transferred to the society as per Development Agreement -Clause 3(D) and land cost has been debited in the P&L account, all of which was informed to the AO as well) and the appellant should have acquired dominant control as obvious from the various clauses of the development agreement dated 15.4.2004 reproduced above. The entire risk and control over the residential units of the two schemes....
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....al before us. 7. Before us, ld. D.R. supported the order of A.O. He further submitted that ld. CIT(A) did not obtain the comments of A.O on the DVO report called by her. He therefore submitted that the Assessee was rightly denied the claim of deduction under 80IB(10) of the Act. The ld. A.R. on the other hand reiterated the submissions made before A.O and ld.CIT(A). He further submitted that in the present case, the plan was approved on 17.05.2004 and therefore amendment to Section 80IB(10) which introduced the Commercial Space Restrictions by way of clause (d) to housing projects was not applicable in the view of the decision of Hon'ble Apex Court in the case of CIT vs. Sarkar Builders reported in (2015) 57 Taxman.com 313 (SC). He also placed on record the copy of the aforesaid decision. He thus supported the order of ld. CIT(A). 8. We have heard the rival submissions and perused the material on record. In the present case, A.O had denied the deduction of claim u/s. 80IB(10) of the Act mainly for the reason that according to the A.O, Assessee was a "Developer" but a Contractor. We find that ld. CIT(A) while granting relief to the Assessee has given a finding that the lan....