TaxTMI 
TaxTMI 
2018 (9) TMI 2064
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....le for deduction u/s 80IB(10) in absence of date of original permission of project w.r.t. completion certificate issued by the local authority as defined in explanation (ii) to clause (a) of section 80IB(10) of the Act. 3. The appellant reserves his right to add, amend or alter the grounds of appeal on or before the date, the appeal is finally heard for disposal. 2. Briefly stated facts are that the case of the assessee was picked up for scrutiny assessment and the assessment u/s 143(3) of the Income Tax Act, 1961 (hereinafter called as 'the Act') was framed vide order dated 20.12.2011. The A.O. while framing the assessment, disallowed the claim of deduction u/s 80IB(10) of the Act on the ground that a certificate from the C.A. in form No.10CCB was not furnished by the assessee. It was further observed by the A.O. that the assessee firm had acted merely as a contractor. Further, the A.O. made addition of Rs. 16,74,394/- in respect of the creditors on which the notice issued by the A.O. could not be served. 3. Aggrieved by this, the assessee preferred an appeal before Ld. CIT(A), who after considering submissions, allowed the appeal. Now the revenue is in appeal. 4....
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....he A.O. observed that assessee had got the plot registered in name of the customers and there after constructed the house their own, that itself makes it clear that the assessee has acted as mere contractor for the customers and not as a developer of the housing project. Thus, the A.O. rejected the claim on these grounds. However, the Ld. CIT(A) allowed the claim by observing as under: "Ground No.2:- Through this ground of appeal the appellant has challenged the disallowance of Rs. 2,53,19,8252/- on account of rejection of claim u/s 80IB(10). The A.O. disallowed the claim of the appellant on the ground that the audit report in Form No.10CCB, dated 15.9.2009 mentions the profit from the eligible business at Rs. 3,81,46,910/-, whereas the appellant declared the net profit as per audited profit and loss account at Rs. 2,53,19,825/-. The A.O. also mentioned that the appellant has not furnished the completion certificate. The A.O. also mentioned that the appellant worked as a mere contractor rather than developer of the housing project. 4.2.1 The appellant submitted that as per audit report in the Form No.10CCB the deductible profit was at Rs. 3,81,46,910/- due to typographi....
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....e houses sold are financed by one bank or the other. As an essential condition of finance, the banks need the equitable mortgage of the house before the release of the loan amount. Therefore, for the mutual convenience of the seller and the buyer a sale deed is executed in respect of the plot with the construction thereon, in the state it is at that time: without which the bank would not entertain the loan proposal. Thereafter, the bank releases the instalments and each time it does so, it obtains a certificate from its architect as to the stage of construction. Hence the sale deed executed during the course of construction is only to facilitate the sanctioning of loan as mandatory condition of the Banks. 4.2.6 It may also be obser5ved that the loan amounts are released by the bank to the Developer/builder directly on the basis of the Agreement/ Acceptance letter and submission of sale deed and not to the customer; however, if the case was that of sale and subsequent construction by the appellant for an on behalf of the customer, as contended by the Assessing Officer the loan would have been disbursed to the individual customer and not to the builder. It was never the intention ....
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....ssessing Officer (Sky Builders & Developers Vs. ITO Bhopal 2011 14 Taxmann.com 78) is not applicable to the issue at hand as the facts and circumstances of the ctwo cases are entirely different. The sky Builders' case has been decided on the issue of non-granting of completion certificate with in the financial year which is not the case of the appellant. Furthermore, the same bench of ITAT Indore has come out clearly on the identical issue in favour of the assessee in the case of M/s. Vardhman Builders and Developers Vs. ITO in ITA No.559/Ind/2010 dated 9.5.2012. 4.2.9 The following cases wherein the Hon'ble ITAT's have opined in favour of the appellant in identical issues referred to them: a) Green Associates Vs. ITO Wd.5(2), Baroda: ITA No.822/AHD/2013. b) Satsang Developers ITA No.1011, 2498 and 1221 of 2012 order dated 12.11.2013. c) DCIT SMR Builders (P) Ltd (2012) 24 Taxmann.com 194 (Hyd) d) ITO Vs. Meghal Developers ITA No.296/Ahd/2013 e) M/s. Nagma Developers, Baroda Vs. ITO Wd 2(5) Baroda ITA No.2385/Ahd/2012 f) Narayan Realty Vs. DCIT in ITA No.2293/Ahd/2012 and 2095/Ahd/2013 vide order dated 2.5.2014 Thus, i....