TaxTMI 
TaxTMI 
2011 (3) TMI 1675
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....f dwelling units in favor of the end- users was made by the landowner and not by the assessee. 2. Without prejudice, the Id. CIT(Appeals) erred in allowing deduction u/s.80IB(10) in respect of the proceeds attributable to sale of unutilized FSI and not to the dwelling units in the housing projects, which could not be termed as profit 'derived' from developing and building housing projects in terms of this provision. 3. The appellant craves leave to add to, amend or alter the above grounds as may be deemed necessary. Relief claimed in appeal The order of the Id. CIT (Appeals) may be set aside and that of the Assessing Officer may be restored." 2. At the outset, considering the nature of the issue involved and the findings of the ld. CIT(A) thereon in the light of decisions of the ITAT, the Bench rejected the request for adjournment filed on behalf of the assessee and proceeded to hear the appeal. 3. Facts, in brief, as per relevant orders are that return declaring nil income filed on 15-11-2006 by the assessee, engaged in construction and development of residential houses, after being processed u/s 143(1) of the Income-tax Act, 1961 [hereinafter referred to as t....
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....ppeal was allowed by CIT(A)-II, Baroda. Further, for A.Y. 2003-04 the Hon'ble ITAT had set aside the order to the file of AO to examine the development agreement in the light of decision in the case of M/s. Shakti Corporation and that the AO in the set aside proceeding vide order dated 08/1/2009 had considered the aspect and had decided that all the risks and cost are borne by the assessee and therefore he allowed deduction u/s. 80IB(10). 5.3. I have carefully examined the facts of the case, submissions of the appellant and perused the arguments of the Assessing officer. On the main issue of deduction u/s. 80IB (10), it is seen that although, the issue was decided in favor of the appellant and against revenue by the order of the Jurisdictional ITAT, in the case of Radhe Developers vs ITO ward 3(2) Baroda No 2482/Ahd/2006 A bench Ahmedabad. The said decision has also decided the matter of proportionate profit from unutilized FSI also in favour of the appellant. Thus the alternate plea of the AO is not acceptable. However the decision was partly modified by the subsequent decision in the case of ITO vs M/s. Shakti Corporation ITA No. 1503/AHD/2008 dated 07/11/2008 wherein, the H....
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....D Forms involves a prayer for rectification of the deficiencies in the building so as to secure the completion certificate and C&D Forms. The facts involved in the case of Faqir Chand Gulati (supra) are that the assessee is the owner of the premises at L-3, Kailash Colony, New Delhi. He entered into a collaboration agreement dated 17-5-1991 with Uppal Agencies Pvt. Ltd. ["the Builder" hereinafter]. The terms of the agreement, in brief were as under: [i] The owner shall place at the disposal of the builder, vacant possession of the remises and authorize the builder to secure necessary sanctions, permissions and approvals for demolition of the existing building and construction and completion of a new building. [iii] The builder shall demolish the existing structure and construct a residential building consisting of ground, first and second floors, at its cost and expense. [iv] The builder will have the right to appoint Architects, contractors, sub-contractors etc. [v] The new building to be constructed by the builder shall be of good quality as per the detailed specifications contained in Annexure-A to the agreement. [vi] On completion of construction, the land-owne....
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.... and the power of attorney executed by the owner in favour of the builder are irrevocable. In the event of neglect, failure, default on the part of the owner or the builder, the affected party shall have the right to specific performance of the said agreement at the cost and risk of the defaulting party who shall also be liable to pay damages. [xiv] The agreement is not a partnership and shall not be deemed to be a partnership between the owner and the builder." 8 The land owner alleges that the Builder made several unauthorized deviations during the construction from the sanctioned plan of Municipal Corporation of Delhi due to which the land owner received a number of notices from Municipal Corporation of Delhi and vide order dated 16-1- 1991, Municipal Corporation of Delhi directed to seal the premises and the premises were de-sealed subsequently to enable the Builder to rectify the deviations. The Builder delivered the Ground Floor to the landowner's son during the landowner's absence from India. The landowner on return noted a number of shortcomings in the construction and the violation of sanctioned plan and accordingly vide letter dated 29-10-1992 asked the Bui....
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....land- holder sells/transfers undivided share/s in the land corresponding to the Builder's share of the building to the builder or his nominees. As a result each Apartment owner becomes the owner of the Apartment with corresponding undivided share in the land and an undivided share in the common areas of the building. In such a contract, the owner's share may be a single apartment or several apartments. The land-holder who gets some apartments may retain the same or may dispose of his share of apartments with corresponding undivided shares to others. The usual feature of these agreements is that the land-holder will have no say or control in the construction. Nor will he have any say as to whom and at what cost the builder's share of apartments are to be dealt with or disposed of. His only right is to demand delivery of his share of constructed area in accordance with the specifications. The builders contend that such agreements are neither contracts for construction, nor contracts for sale of apartments, but are contracts entered for mutual benefit and profit and in such a contract, they are not 'service-providers' to the land-owners, but a co- adventurer with t....
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.... land and permission to construct and own the upper floors). To adjust the value of the extent of land to be transferred, there is also payment of cash consideration by the builder. But the important aspect is the availment of services of the builder by the land-owner of a house construction (construction of owner's share of the building) for a consideration. To that extent, the land-owner is a consumer, the builder is a service-provider and if there is deficiency in service in regard to construction, the dispute raised by the land owner will be a consumer dispute. We may mention that it makes no difference for this purpose whether the collaboration agreement is for construction and delivery of one apartment or one floor to the owner or whether it is for ITA No.2500/Ahd/2010 construction and delivery of multiple apartments or more than one floor to the owner. The principle would be the same and the contract will be considered as one for house construction for consideration. The deciding factor is not the number of apartments deliverable to the land owner, but whether the agreement is in the nature of a joint- venture or whether the agreement is basically for construction of cer....
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....re no provisions for shared control of interest or enterprise and shared liability for losses. 22. The State Commission and National Commission have proceeded on an assumption, which appears to be clearly baseless, that wherever there is an agreement for development of a property between the property owner and builder under which the constructed area is to be divided, it would automatically amount to a joint venture and there is no question of the landholder availing the service of the builder for consideration. Reliance was placed on two decisions, the first being that of the National Commission in C Narasimha Rao v. K R Neelakandan - I (1994) CPJ 160 and the second being that of the Delhi State Commission in Har Sarup Gupta v. Mis. Kailash Nath & Associates - II (1995) CPJ 275. In C Narasimha Rao, there was an agreement between the landowners and a builder for construction of a building and sharing of the constructed area. The old building was demolished, but the builder failed to complete the construction of a new building and hand over the owner's share of flats. The landowners preferred a complaint claiming ₹ 94,000/- as the value of the malba (retrievable valuables....
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....e or nomenclature given to the agreement / document / instrument does not decide the nature of the agreement. (2) The name given to the agreement usually gives some indication of the nature of the agreement / document / instrument. (3) The nature of the agreement has to be decided with reference to the terms and conditions agreed to between the parties who have entered into the agreement or executed the document or instrument as these terms and conditions express the intention of the parties. (4) Even the nomenclature given in the body of the agreement / document / instrument is also not determinative of the nature and character of the agreement / document / instrument. On the facts of this case, the Hon'ble Supreme Court observed that the land owner has to do nothing except to the extent he has to receive the constructed area by way of consideration from the Builder / Developer. The Hon'ble Supreme Court came to the conclusion that the basic purpose of the agreement to construct a house or apartment by the Builder for the owner and, therefore, the agreement is not joint venture even though the nomenclature of the agreement given may be a collaboration agreement. The la....
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....te has heavily relied. We find that in this case the Hon'ble Supreme Court on the applicability of the judgment has held as under: "A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving a judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyze a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates - (i) findings of material facts, direct and inferential. An inferential finding of fact is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reaso....
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....not, of course, construe even a reserved judgment of Russell L.J. as if it were an Act of Parliament." And, in Herrington v British Railways Board (1972 (2) WLR 537) Lord Morris said: "There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case." Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. The following words of Lord Denning in the matter of applying precedents have become locus classicus: "Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."....
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....lature "Agreement for Development". The preamble of the agreement states that out of the said land F. Plot No. 375 Paiki, the powers to develop the land 6985 sq. meters = 75158 sq. ft. are given by the landowner Party of the First Part to the Party of the Second Part Developer (the assessee) and for that purpose, cost of the land is fixed upon calculating at the rate of ₹ 121/- per sq. ft. being ₹ 90,94,190/-. Out of the said amount, ₹ 1,00,000/- has been paid by the Developer to the landowner. The remaining amount of ₹ 89,94,190/- is to be paid by the Party of the Second Part to the Party of the First Part within the period of 33 months in equal instalments of three months. It is also mentioned in the said agreement that for constructing buildings for residential as well as commercial purpose over the land mentioned in this agreement, the Vadodara Municipal Corporation has granted Rajachiththi No. L/96/2003 datd 28-07-2003. The assessee has to perform the following acts over the said land including construction: (1) "That the Party of the Second Part (Assessee) shall upon obtaining all necessary permissions over the said land such as N A, N ....
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....heme or project over the aforesaid property, in which may accept the complete amounts as stated in this agreement for shops, offices, flats, etc. will be constructed for which we shall execute the Sale Deed in favour of members as and when you may intimate and cause registration and witnessing, etc. on the sale deeds in the Office of the Sub Registrar by presenting the same. However, the stamp, registration charges and other expenses for the same shall be borne by you, the Party of the Second Part or the purchasers of the said offices, shops, flats, houses, etc. (7) That for the houses, shops, flats, etc. that are to be constructed over the said land for which the Party of the second Part is to register them as members and can upon executing Agreements to Sale, etc. accept the money and issue receipts to the members. Same way, you can remove all obstructions that may come during the period of making the develop it. (8) If required, the Party of the Second, will raise necessary capital for making development and construction over the said land and can obtain the loan from the bank or any other institutions to complete the scheme and for that purpose can file a claim against such in....
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.... any Agreement to sale or any other writing to sell the said property in favour of any one else and not transferred, assigned the same in any manner. In spite of the same, if any third person comes forward raising right, claim or charge than we the Party of the First Part shall be bound to remove the same at my cost. Thus, by giving assurance, binding and trust that the property as described hereinabove is having complete clear and marketable title, the Development agreement for the aforesaid property is executed in favour of the Developer herein. (15) That the physical possession of the said land for performing development activity over the land is handed over by the Party of the First Part herein to the Party of the Second Part herein." 12 If the facts and the terms and conditions of this agreement are compared with the decision of the Hon'ble Supreme Court in the case of Faqir Chand Gulati (supra), we noted that in this case there is no agreement to share the constructed area. This agreement relates only to purchase part of the land from the landowner by the assessee for a pre- determined consideration. All the responsibilities for carrying out the construction, permi....
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....a housing project on a land at Revenue Survey No.648 belonging to one Shri Ghanshyambhai A Patel & Others, through Power of Attorney holder Mahendrabhai A Patel, who are the owners of the land. The assessee-firm had entered into a development and construction agreement with (1) Shri Vinodbhai Nathabhai Patel (HUF), (2) Shri Bhailalbhai Nathabhai Patel HUF, (3) Harishbhai Nathabhai Patel HUF and (4) Shri Hasmukhbhai Nathabhai Patel through their partner Shri Chetankumar Rameshbhai Jogi. The development and construction agreement and Banakhat Agreement are both dated 18-05-2000. There was a Tri-party development agreement revealing that the land owners agreed to get the land developed through the assessee-firm and also agreed that the assessee-firm would make the members i.e. prospective buyers and collect the land consideration at the rate mentioned in the agreement. The project was approved by the local authority, Baroda Municipal Corporation (hereinafter referred to as 'BMC' on 17-07-2000. The approval was in the name of the said owners of the land. As the assessee-firm is not the owner of the land and even the approval for permission to develop and construct the pr....
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....et them approved with the local authority, and to construct the houses in the form of tenements and flats. The Developer would carry out the construction on his own, namely, carry out all necessary statutory formalities for construction, buy material for construction, employ labour or an agency which would supply labourers and thereupon complete the construction. The Developer would then sell the houses to the prospective buyers. The Developer would buy land and get it transferred in his name even before the plans are placed. 10 However, the other mode in many cases is that land is not purchased at that stage by executing deed of conveyance, i.e. sale-deed. This is because of variety of reasons, namely, because such conveyance would entail payment of stamp duty, because of litigation, prohibition against execution of conveyance-deed immediately, etc. In some cases, the land may be conveyed directly in favour of Co-operative Housing Societies or Non Trading Corporations or Developers. Therefore, if the land is conveyed to a developer, what the developer does is that he enters ITA No.2500/Ahd/2010 into an agreement titled as Development Agreement with the land-owner. The Development....
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..... Rule 9 thereof prescribes application for development permission under Section 27 to be in Form-C and that permission to be granted under Section 29 to be in Form-D. On looking at Form-C, it is clear that such an application can be made by anyone, not necessarily "Owner." Similarly, permission for development could be granted to whoever has applied for the permission; not necessarily only the Owner. 12 We may also refer to at this stage, the "General Development Control Regulations (GDCR) as notified by VUDA in pursuance of provisions of Section 12(2) (m) and Section 13(2) (c) of the TP Act which govern the activity of construction in and around the city of Vadodara. Clause 2 of GDCR gives definitions. The term "owner" in Clause 2.32 includes "Developers". Therefore, in GDCR whenever there is a reference to the term "Owner" it would always include "Developers developing any property." Clause-3 of GDCR prescribes procedure for acquiring development permission. Application has to be made in Form No.1 which can be filed by anyone including "Developer". Thus a "Developer" has a right to apply for development ....
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....ime of paying money the name of members that you suggest to be incorporated in agreement to sale/sale deed by part with internal understanding for which the seller will give consent. As the land is covered by the Laws of Urban Land Ceiling Act, Rules and Regulation there under the party of the Second Part. Before Competent Authority and Additional Collector Baroda has put the said land & has declared on dt. /06/93. The said land to be kept as free hold. The said land lay out plan, development permission to construct by the order dt: 14/1/96 No. L/152/95-96 the Baroda Deputy City Development Authority and permission to construct is granted by Baroda Municipal Corporation. The owners of the land, executors of agreement to sale, by dt: 7/9/81 has passed the deed of agreement to sale favouring consenting party. Therefore they are taken as consenting party, in present agreement to sale. At the time of making agreement to sale we land owners, the executors have received full amount towards the sale price of the land and therefore the party of Third Part is made consenting party and therefore the amount of sale price is to be given to the consenting party by the purchaser as per this ag....
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.... necessary applications and written statements, replies and in the forms all that is to be done by Developer-cum- Building Contractor. The relevant sub-clauses (8) & (9) read as under: "8. That the said Developer cum Building Contractor in order to complete the scheme in order step by step but in prescribed time period, The Party of the First and Second Part and all the members desirous in joining in the scheme Developer cum Building Contractor whenever and wherever they need the signatures and admissions, they shall have to give that to the Developer cum Building Contractor and in special circumstances Developer cum Building Contractor in order to complete the scheme in order step by step but in prescribed time period, shall be entitled to receive General Power of Attorney form The Party of the First and Second Part. 9. In order to complete the scheme as per arrangement plan and in prescribed time period, Developer cum Building Contractor has to all the proceedings at Government and Semi-government and Municipal Corporation Office and in legal Courts and at other places on behalf of The Party of the First and Second Part on necessary applications and written statements, rep....
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....s as mentioned in these two Agreements; that the assessee-firm has also paid consideration of ₹ 56 lacs during the two Financial Years; i.e. 2000-01 & 2001-02; that the assessee-firm has to obtain necessary approvals from the local authorities; i.e. BMC on behalf of the land-owners and all the expenses for such purposes are to be incurred by the assessee; that the assessee-firm has engaged the firm of Architect and also incurred expenses towards the charges payable to Corporation, etc. for obtaining the approvals; that even from the books of account, it is noticed that for obtaining the approval, the assessee-firm has paid the developmental charges to various regulating agencies, i.e. VUDA, BMC and GEB (Gujarat Electricity Board), etc.; and that these expenses are incurred by the assessee-firm and the Assessing Officer has brought out the complete details year-wise in his assessment orders at page No.5 reading as under:- Sr.No. Particulars Financial Year Amount (Rs.) 1. VMC charges paid to Vadodara Municipal Corporation 2000-01 65,532/- 2. VMC charges paid to Vadodara Municipal Corporation 2001-02 31,116/- 3. VUDA charges paid to Vadodara Development Authority ....
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....fore 31st March, 2001. 22 Section 80IA was later split into and spread in two sections- 80IA and 80IB by the Finance Act, 1999 with effect from 1st April 2000. The housing project fell in S. 80IB and forms part of sub-section (10) of Sec. 80IB. It grants deduction in respect of profit and gains from certain industrial undertaking other than infrastructure development undertakings. The relevant provision brought out reads as under: "80-IB. Deduction in respect of profits and gains from certain industrial Undertakings other than infrastructure development undertakings. (10) The amount of profits in case of an undertaking developing and building housing projects approved by a local authority, shall be hundred per cent of the profits derived in any previous year relevant to any assessment year from such housing project if,-- (a) such undertaking has commenced or commences development and construction of the housing project on or after the 1st day of October, 1998, and completes the same before the 31st day of March, 2001; (b) the project is on the size of a plot of land which has minimum area of one acre; and (c) the residential unit has a maximum built-up area of one thousa....
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....nsferred, before the expiry of the period specified in this section, to another Indian company in a scheme of amalgamation or demerger (a) no deduction to be admissible under this section to the amalgamating or the demerged company for the previous year in which the amalgamation or the demerger takes place; and (b) the provisions of this section to apply to the amalgamated or resulting company as they would have applied to the amalgamating or demerged company as if the amalgamation or demerger had not taken place. 26 The sub-section (10) relating to housing project was amended from time to time. Firstly, by Finance Act, 2000 w.e.f. 1st April, 2000 extending the outer limit for completion of the housing project on or before 31st March, 2002 as against 31st March, 2001 originally enacted. This sub- section was again amended by Finance Act, 2003 removing the time limit for completion of the project meaning thereby that for the Asst. Years 2002-2003, 2003-2004 and 2004-05, the assessment years with which we are concerned, there was no outer time limit for completion of the project. There have been certain further amendments in this section by Finance (No.2) Act, 2004 w.e.f. 1st April,....
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....developing and building housing project and therefore, it could not be a developer. We fail to understand as to how such a situation could emerge. A person who enters into a contract with another person is no doubt a contractor. Having entered into agreements with landowners for development and building the housing project, was obviously a contractor but it does not derogate the assessee for being a developer, as well. The term contractor is not essentially contradictory to the term developer. As stated above it is the undertaking that develops or builds the housing project that is entitled to deduction irrespective of the fact whether that it is the owner or not or whether it is the contractor thereof. The requirement for claiming deduction is that such an undertaking must develop and build housing project, be it on their own land or on the land of others and for which a tripartite agreement has been entered into for development and building housing project; or be the assessee a contractor for developing and building housing project or an owner of the land. 30 What is the meaning of the term develop, developer, developing, development, we can find the answer in certain dictionari....
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....reement'. The land-owners no doubt, have not thrown themselves into development of property. It is only the assessee who is developing the property. Throwing itself into the business of development and building of housing projects by taking all risks associated with the business by engaging architects, structural consultants, designing and planning of the housing schemes, payment of development charges, obtaining necessary permissions, approving plans, hiring machinery and equipments, hiring engineers, appointing contractors, etc. No doubt, the permission has been obtained in the name of the registered land-owners, but the same have been obtained by the assessee-firm through its partners who are holding Power of Attorney of the respective land-owners. It is a fact that the assessee is a 'Developer' and not a 'Contractor' as held by the lower authorities. The Developer is not working on remuneration for the land- owners, but Developer is working for himself in order to exploit the potential of its business in his own interest and, therefore, option for all business risks associated with the business of development of real estate including developing and building....
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....land as it had made part payment to the land-owners during the Financial Years 2000-01 & 2001-02 for an amount of ₹ 56 lacs, and taken the possession of the land for development and building the housing project and satisfy that condition as well of being the owner of the land in view of provisions of section 2(47) (v) of the Act. When the assessee has taken on the possession of immovable property or retained it in part performance of a contract of a nature referred to in section 53A of the Act of the Transfer of Property Act, 1882 it amounts to transfer under section 2(47)(v), which reads as under:- "(47) " transfer ", in relation to a capital asset, includes,- (i) ... (ii) ... (iii) ... (iv) ... (iva)... (v) any transaction involving the allowing of the possession of any immovable property to be taken or retained in part performance of a contract of the nature referred to in section 53A of the Transfer of Property Act, 1882 (4 of 1882) ; or" 35 Section 53A of the Transfer of Property Act, 1882 referred to in the aforesaid section of the I. T. Act, reads as under:- "53A. Where any person contracts to transfer for consideration any immovable p....
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....n (Decd.) 227 ITR 240 (SC), observing at page No.243 that "It has been held that where a mortgage was created by the previous owner during his time and the same was subsisting on the date of his death, the successor obtains only the mortgagor's interest in the property and by discharging the mortgage debt he acquires the mortgagee's interest in the property and, therefore, the amount paid to clear off the mortgage is the cost of acquisition of the mortgagee's interest in the property which is deductible as cost of acquisition under section 48 of the Act. In the present case, we find that the mortgage was created by the assessee himself. It is not a case where the property had been mortgaged by the previous owner and the assessee had acquired only the mortgagor's interest in the property mortgaged and by clearing the same he had acquired the interest of the mortgagee in the said property. The questions raised by the assessee in the application submitted under section 256(2) of the Act do not, therefore, raise any arguable question of law and the said application was rightly rejected by the High Court. In the circumstances, even though we are unable to agree with....
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.... or town or village or a combination of them, the income of such authority is not exigible to income-tax." 40 In the case of Tamil Nadu Civil Supplies Corporation Ltd. 249 ITR 214 (SC) referred to by the ld. DR, the Supreme Court has considered the issue as under:- "The assessee before it had purchased certain houses from the Housing Board and had made part payment thereof. It had acquired possession of the houses but the deed of conveyance was not executed until after the financial year in question. Even so, the assessee's claim for depreciation of the buildings, which it had used for the purpose of its business, was upheld on the basis that it had acquired dominion over the buildings. We will assume the correctness of the judgment but', on the facts found, it is not possible to reach the conclusion that the assessee had acquired dominion over the mills in question. There is nothing on the record which indicates this nor is that the finding of the Tribunal." 41 The Supreme Court in this case has considered the issue and finally found that there is nothing on record which indicated that the assessee had acquired dominion over the mills in question on whic....
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....t of one or more persons to possess and use a thing to the exclusion of others. The right by which a thing belongs to some one in particular, to the exclusion of all other persons. The exclusive right of possession, enjoyment and disposal ; involving as an essential attribute the right to control, handle, and dispose." Dias on Jurisprudence (4th edition, at page 400) states : "The position, therefore, seems to be that the idea of ownership of land is essentially one of the 'better right' to be in possession and to obtain it, whereas, with chattels the concept is a more absolute one. Actual possession implies a right to retain it until the contrary is proved, and to that extent a possessor is presumed to be owner." Stroud's Judicial Dictionary gives several definitions and illustrations of ownership. One such definition is that the "owner" or "proprietor" of a property is the person in whom (with his or her assent) it is for the time being beneficially vested, and who has the occupation, or control, or usefruct, of it ; e.g., a lessee is, during the term, the owner of the property demised. Yet another definition that has been given b....
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....owner, not on behalf of the owner but in his own right. We may usefully extract and reproduce the following classic statement of law from Perry v. Clissold [1907] AC 73 (PC) quoted with approval in Nair Service Society Ltd. v. K. C. Alexander, AIR 1968 SC 1165 : "It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title." Podar Cement's case [1997] 226 ITR 625 (SC), is under the Income-tax Act and has to be taken as a trend-setter in the concept of ownership. Assistance from the law laid down therein can be taken for finding out the meaning of the term "owned" as occurring in section 32(1) of the Act. In our opinion, the term "owned" as occurring in section 32(1) of the Income-tax Act, 1961, must be assigne....
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....r the Development of Housing Project and has carried out all the activities of a complete housing project by taking all risks associated with this business. The assessee is ITA No.2500/Ahd/2010 engaged in complete infrastructure including engaging architects, structural consultants, designing and planning of the housing schemes, payment of development charges, obtaining necessary permissions, on behalf of the land owners, got the plans approved, hiring of machinery and equipments, hiring engineers, appointing contractors, etc. 44 As discussed above and in view of the case-law of the Supreme Court in the case of Mysore Minerals Ltd (supra), wherein it has been categorically observed as regards to ownership that anyone in possession of property in his own title exercising such dominion over the property as would enable others being excluded there from and having the right to use and occupy the property and/or to enjoy its usufruct in his own right would be the owner of the buildings though a formal deed of title might not have been executed and registered as contemplated by the Transfer of Property Act, the Registration Act, etc. In the present case before us, by virtue of 'Agree....
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.... Gulati (supra) will not assist the Revenue, as the agreement is not sharing of the constructed area. In other cases the copy of agreement since has not been submitted before us, if submitted , the terms and conditions of the agreement were not specifically argued before and placed before us, we therefore, in the interest of justice and fair play to both the parties set aside the order of the CIT(A) and restore all other appeals to the file of the AO with the direction that the AO shall look into the agreement entered into by each of the assessees with the landowner and decide whether the assessee has in fact purchased the land for a fixed consideration from the landowner and has developed the housing project at its own cost and risks involved in the project. In case the AO finds that practically the land has been bought by the Developer and Developer has all dominant control over the project and has developed the land at his own cost and risks, the AO should allow the deduction to the assessee u/s 80IB(10). In case the AO finds that the Developer has acted on behalf of the landowner and has got the fixed consideration from the landowner for the development of the housing projects,....