TaxTMI 
TaxTMI 
2025 (5) TMI 2042
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....0-2011 and 2012-2013. 2. Since common issues are involved in these appeals, they were heard together and are being disposed of by this consolidated order, for the sake of convenience. We take ITA No.927/Coch/2024 for Asst.Year 2009-2010, as a lead appeal for discussion and adjudication, and the decision arrived at therein would mutatis mutandis apply to the other appeals, as well. 3. All these appeals are delayed by 47 days. For the reasons mentioned in the condonation petition, we hereby condone the delay of 47 days and proceed to decide these appeals by way of this consolidated order for the sake of convenience. 4. The brief facts of the case as coming out from the orders of the authorities below are that the assessee is a partnership ....
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....ents, but it is giving impressions that Aster project, shown as Block A in the approved plan, is having land area of less than one acre or 100 cents". The appellant has contended that the conclusion/inference of the AO is erroneous. In this regard, the appellant has filed the following submissions/explanation. "The approved plan Block A (Aster) and Block B (Lavender) is furnished herewith. We may submit that the observation of the AO is not supported by facts. We would like to explain as follows: The projects Aster and Lavender are in land extending 221,498 cents. The section does not specify that each projects should be on a vacant land of one acre. The section does not prohibit more than one project in land extending more than one a....
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....cents", is not based on fact but rather a mere impression/inference. The above finding by the AO is not sustainable in view of the judicial pronouncements and detailed discussion made earlier in this order. 5. While framing the assessment, the AO at para.14 of the order has observed that "the claim of the assessee for the deduction u/s. 80IB in the return filed on 29/09/2009 was Rs. 9,29,37,725/-. While computing the deduction u/s. 80IB, the assessee has taken into account other income such as interest, rent and miscellaneous income under Schedule 13. But the assessee is not allowable to take the benefit of deduction u/s. 80IB for other incomes such as interest, rent and miscellaneous income." 5.1 During the course of appellate proceedi....
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.... been reiterated in many judicial pronouncements. Hence, the AO is not justified in his conclusion that the appellant is to be treated as a "Works Contractor" as the purported sales receipts are shown as "Contract Receipts" in its P&L account. 6.1 Further, it needs to be stated that the eligibility for deduction u/s. 80IB(10) in the case of builders was considered and analysed in detail by the Hon'ble ITAT Cochin Bench, in the case of Desai Homes Vs. DCIT, in ITA.29/Coch/2014 and Kalpaka Builders Private Limited Vs. AddI.CIT in ITA.139/Coch/2015. The Hon'ble ITAT has examined in detail the circumstances that could differentiate between a developer/builder and a works contractor. The relevant extract of the Hon'ble ITAT is repr....
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....ding as per the approved plan and create infrastructure facilities like parking area, drainage facility, drinking water facility, fire extinguishment, lift, etc. These facilities cannot be provided by the individual purchaser of a particular flat. This Tribunal is of the considered opinion that the assessee being the owner of the land and developer of the housing project constructed the flat by creating all infrastructure facilities and sold the same to the individual purchasers. The individual purchasers cannot award any work to the assessee. In fact, it is not the choice of the individual purchasers to award work to the assessee. The individual purchaser has to purchase the flat only from the construction made by the assessee. When the pu....
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....e case of Desai Homes does not materially alter the nature or character of the business of the appellant from being a builder/developer. Hence, the conclusion drawn by the AO that the facts of the case of the appellant are different from that of Desai Homes is erroneous. Accordingly, the decision of the AO treating the appellant as a "Works Contractor" as against a "Builder/Developer" is not correct. 6.3 Therefore, considering the facts of the case in instant appeal and also in respectful obedience to the decision of the Hon'ble jurisdictional ITAT cited above, the addition made by the AO by disallowing the claim of deduction u/s. 80IB is to be deleted." 5. Aggrieved with the order of the CIT(A), the Revenue has come up in appeal bef....