TaxTMI 
TaxTMI 
TaxTMI 
2017 (7) TMI 1181
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....hether the Tribunal was justified in allowing deduction u/s 80IB(10) to the assessee when neither he undertook development and construction of the housing project nor the completion certificate of the project as required in Clause-ii of explanation to Section 80IB(10)(a) was furnished by the assessee? (iii) Whether on the facts and circumstances of the case, the finding of the Tribunal is perverse, contrary to the record and untenable in the eye of law? DB ITA No. 114/2016 (i) Whether the Tribunal was justified in holding assessee as the developer and thereby allowing deduction u/s 80IB(10) of Rs. 5,22,92,252/-, ignoring the specific development agreement entered into by him merely as land owner with another developer to execute and construct the flats on the land of the assessee? (ii) Whether the Tribunal was justified in allowing deduction u/s 80IB(10) to the assessee when niether he undertook development and construction of the housing project nor the completion certificate of the project as required in Clause-ii of explanation to Section 80IB(10)(a) was furnished by the assessee? (iii) Whether on the facts and circumstances of the case, the finding of the Tribuna....
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....it more than evident that the assessee cannot be considered as a developer for any purpose much less for claiming benefit of deduction u/s 80IB(10). The other relevant clause referred by the Assessing Officer which demonstrate and establishes not only the intent but also the incapacity of the assessee to develop the project and also the exclusion of the assessee from day-to-day working in execution/construction/completion of the development of the plot leaves no scope of doubt that the assessee was not a developer of the project and cannot be held entitled for claiming deduction u/s80IB(10). It is further submitted that the Tribunal has grossly erred by placing reliance upon the fact that all the approvals, permissions are in the name of the assessee, which was inevitable as there was no transfer of title by the assessee and merely a development agreement has been entered into by the assessee with a developer to develop the project. Grant of approval/permission in the name of the assessee is of no consequence whatsoever for the purposes of claiming deduction u/s80IB(10) of the Act. 4. However, in view of the observations made by CIT(A) in para 3.1.2 observing as under: 3.1.....
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....favour of Neeta Rathi, his relative. Thus the allotment of these flats were also before 1-4- 2010. The appellant also produced copies of the Agreement to Sell dated 14.07.2009 which revealed that the flats No. 824 and 924 were allotted to Shri Narendra Kumar Rathi on 14.07.2009 who assigned these flats to Smt. Neena Rathi on 28.03.2011. In view of the above, it is held that there was no violation of provisions of clause (e) and clause (f) of sectio 80IB(10) of the Act in respect of flats no. 824 and 924 which were allotted by the appellant on 14.07.2009 i.e. well before the date 01.04.2010, the said clauses were brought on the statute. (v) During the appellate proceedings, the AR submitted a copy of the order dated 04.12.2015 of Hon'ble ITAT, Jaipur in the case of the appellant for the AY 2009-10, 2010-11 and 2011-12 wherein the Hon'ble ITAT allowed deduction u/s 80IB to the appellant for all the three years. (vi) Therefore, in view of the above and respectfully following the decision of Hon'ble ITAT, Jaipur in case of the appellant, as referred above and in view of the principle of consistency, it is held that the AO was not justified in disallowing deduction claimed by the ....
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....ce and meeting the lengthy queries about sanction of plan for development and construction of housing project on the impugned land from local authority which is undisputedly carried over by assessee over a period of time. These activities are fundamental and crucial for development of housing project. There is no dispute on these glaring facts. iii. Making the impugned land usable for the purpose the permission of development of housing construction by providing proper road and easy approach to the site which is precondition for sanction of plan. This work has been done by the assessee. iv. Assessee had not transferred the land to M/s UDB (Reality) and as per agreement retained the rights of jointly supervising the development and construction of the impugned housing project. v. The assessee apart from the said rights of supervision retaining the rights of transferring the flats falling in his share in the name of prospective purchasers. Since the project was big, it falls well within the commercial expediency that the project is jointly developed. Therefore, assessee's endeavor of making a joint venture with M/s UDB (Reality) cannot be looked at with suspicion. It is s....
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....B). In our considered view the facts and circumstances of M/s Indo Continental Hotels are similar to assessee's case and being a judgment of this bench only deserves to be followed. Hon'ble Karnataka High Court in case of CIT Vs. Shravanee Construction had occasion to decide the eligibility of claim u/s 80(IB) on similar facts. Hon'ble court held that- contention of the revenue that there is no eligibility to deduction u/s 80(IB) as assessee did not undertake any developmental or building activity has no substance. That is not the requirement of law and keeping in mind, the object with which this provision is introduced when all persons who have made investments in this housing project and have complied with all the conditions prescribed under the aforesaid provision, both of them are entitled to hundred percent benefit of tax deduction as provided under the said provision". Similar view has been taken by other judicial authorities as under: i. Abdul Khader Vs. ACIT (2012) 137 ITD 188 (Bang) ii. Kura Homes P. Ltd. Vs. I.T.O. (2012) 139 ITD 460 (Hyd) iii. D.K. Construction Vs. ACIT (2010) 17 TTJ 1 (Indore) iv. RNS Infrastructure Ltd. Vs. DCIT (Bang. Bench) (2012) 24 T....
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....No.470/2009, which we have decided today but there is no reference of price in the same. In our view in CIT(A) and the tribunal have committed an error in not referring to the price in the previous year. 4.2 Therefore, the matter is required to be remitted back to the tribunal only on this issue. 4.3 The matter is remitted back to tribunal to decide, the same keeping in view the statutory provision. We make it clear that we have not expressed any opinion of merits. 5.1 The second issue is covered by the decision of this court in Commissioner of Income Tax Vs. Veena Developers(2015) 277 CTR 0297(SC) wherein it has been observed as under: " High Court interpreted the expression "housing project" by giving grammatical meaning thereto as housing project is not defined under the Income Tax Act in so far as the aforesaid provision is concerned. Since sub-section (10) of Section 80IB very categorically mentioned that such a project which is undertaken as housing project is approved by a local authority, once the project is approved by the local authority it is to be treated as the housing project. We may also point out that the High Court had made observations in the context o....