2012 (3) TMI 482

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....wing the claim of deduction u/s.80IB(10) of ₹ 69,58,800/- relying upon the order of the ITAT Ahmedabad in the case of M/s.Radhe Developers & Others [113 TTJ 300]. 2. Facts in brief as emerged from the corresponding assessment order passed u/s.143(3) of the I.T.Act dated 26/12/2008 were that the assesseefirm is stated to be engaged in the business of construction of housing complex. The assessee has shown net profit of ₹ 69,58,801/- and claimed the amount as deduction u/s.80IB(10) of the IT Act. Facts in this regard were that the assessee had carried out a project, namely, "Shyam Vatika" at Surat. It was informed that there were original owners of the land identified as 2/A TP Scheme No.33 at Dumbhal, Surat, namely, Shri Ramchod....

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....nstruction work and collection of money from the members. He was of the view that no business man can carry on the business1 of developing a property and construction of building, namely housing project, without owing the land except in a situation when working as an agent or a contractor of the land owner. A contractor works as an agent and realizes the money from the end user and pass on to the land owners. The AO has therefore concluded that since the assessee has not owned the land, therefore not entitled for claim of deduction u/s.80IB(10) and the same was taxed accordingly. 3. Before the ld.CIT(A), facts have been reiterated and after appreciation of those facts, it was held as under:- "I find that facts of the instant case are abs....

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....l of Honourable Supreme Court decision also indicates that a builder can be a person who is different from the land owner. This fact is evident on perusal of observations of Honourable apex court reproduced earlier. In view of the above decisions & facts of the case, I am of the view that assessee is eligible to get deduction u/s.80IB(1) of the Act as the assessee firm has actually carried out the development and building work of housing project. Hence, assessing officer is directed to allow the claim of assessee." 4. From the side of the Revenue, ld.DR Mr.Bhuvnesh Kulshrestha appeared and supported the view taken by the AO. However, he has strongly pleaded that even after the decision of the Hon'ble Gujarat High Court in the case of Radhe....

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....nces were placed on record to demonstrate that the assessee had full authority to develop the land not as a "Contractor" but as a "Developer". On account of the said reason, the assessee was not only entitled for the profit but also responsible for the loss, if any, occurred in the development of the said project. It has also not been disputed that the responsibility of enrolment of members and collection of charges was on the assessee. Considering all these aspects of the case, ld.CIT(A) has rightly held that the Tribunal in the cited decision has held that merely the ownership of the land is not a pre-condition for allowing the deduction u/s.80IB(10) of the I.T.Act. Now before us, the respondentassessee has placed the decision of Hon'....