TaxTMI 
TaxTMI 
2024 (10) TMI 1776
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....drawn. 3. The background facts leading to these appeals are such that the assessee is a firm engaged in real estate business. The assessee filed returns of AY 2009-10, 2010-11 and 2011-12 after claiming deduction u/s 80-IB(10) relating to income from developing and building housing projects. The returns were selected for scrutiny-assessment and the AO issued notices u/s 143(2)/ 142(1) to assessee. Finally, the AO completed assessments u/s 143(3) wherein the deduction u/s 80-IB(10) was disallowed qua three projects undertaken by assessee, namely "D.K. Honey Homes", "D.K. Devasthali" and "D.K. Cottage" for certain reasons as narrated in assessment-order. Aggrieved, the assessee filed first-appeals to CIT(A) and succeeded. Now, the revenue has come in these appeals before us assailing the orders of first-appeal passed by CIT(A). 4. Originally, the revenue/appellant filed Grounds of Appeal in Form No. 36 but subsequently revised grounds dated 03.09.2024 have been filed. During hearing, Ld. AR for assessee/respondent did not have any objection against filing of revised grounds. Therefore, the appeals have been heard on revised grounds and the same are being adjudicated in subseque....
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....9;completed' for the purpose of Explanation (ii) to Section 80IB(10) of the Act and since the said Explanation of the Act is unambiguous and in very clear words says that the date of completion shall be only the date on which completion certificate is issued by the local authority and moreover when the Act is crystal clear on any issue, there is no need to derive any other conclusion; and (ii) moreover, even in subsequent AY, when the AO asked the assessee to explain the same, the assessee failed to establish that the project was completed on or before the due date? (e) Without prejudice to the above, the matter has been decided by the jurisdictional MP High Court in assessee's own case (ITA Nos. 65/2012 and 161/2012) in favor of Revenue? (3) Whether on the facts and the circumstances of the case the Ld. CIT(A) was justified in allowing deduction u/s 80IB(10), thereby deleting the addition made by the AO for the project D.K. Devasthali? (4) Whether on the facts and the circumstances of the case the Ld. CIT(A) was justified in allowing deduction u/s 80IB(10), thereby deleting the addition made by the AO for the project D.K. Devasthali, ignoring tha....
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.... houses does not mean the housing project is complete; and therefore, it is clear that this project was not complete on or before the due date? (e) Without prejudice to the above, the matter has been decided by the jurisdictional MP High Court in assessee's own case (ITA Nos. 65/2012 and 161/2012) in favor of Revenue? (5) Whether on the facts and the circumstances of the case the Ld. CIT(A) was justified in allowing deduction u/s 80IB(10), thereby deleting the addition made by the AO for the project D.K. Cottage? (6) Whether on the facts and the circumstances of the case the Ld. CIT(A) was justified in allowing deduction u/s 80IB(10), thereby deleting the addition made by the AO for the project D.K. Cottage, ignoring that: (a) The assessee is merely a contractor and, accordingly, it is not eligible for deduction u/s 80IB(10) of the Income Tax Act, 19612 (b) Among other aspects in this regard, the assessee was not selling any constructed property to its customers, since only the registry/transfer of the plot by it was made in the name of the purchaser whereas separate agreement for construction of the bungalow/house was made against p....
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.... of project including development of infrastructure must be undertaken by assessee. According to Ld. DR, 'entire project' would mean development as a cohesive unit which includes the construction of houses with development of essential amenities. In the case of assessee, the buyers have first acquired ownership of plots from assessee and only then entered into a separate agreement for construction with assessee, which indicates that the assessee functioned as a 'contractor' rather than 'builder/developer'. Ld. DR submitted that this situation disentitles assessee from claiming deduction as held by ITAT, Indore in Sky Builders & Developers (2011) 14 taxmann.com 78 (Indore) order dated 17.08.2011 and Nitin Agarwal Vs. ACIT, ITA No. 156/Ind/2013 order dated 14.09.2015. Ld. DR referred following paras of these decisions: Sky Builders: "4. If sub-clause (2) to Explanation is analysed with the facts of the present appeal, it clearly provides that the date of issue of completion certificate, by the local authority, shall be the date of completion of the project. However, as admitted by the Ld. Counsel for assessee and also in view of the letter da....
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....2010 w.e.f. 1.4.2010 as per which the assessee is supposed to complete the project within the specified time form the end of the FY in which the housing project is approved by the local authority and the date of completion of construction shall be taken to be the date on which completion certificate is issued by the local authority in respect of such housing project. However, in the case of the assessee, even till today, no completion certificate was issued to the assessee, therefore, we find no infirmity in the stand of the Id. CIT(A). It is affirmed." Nitin Agarwal: "8. We have heard both the sides. We have also considered the case laws relied upon by the parties. During the relevant period the assessee claimed that it has constructed 2 projects, one on two acres land at village Dham Kheda at Khasra No. 34/170/1/1 purchased by himself. It is claimed that project was approved by Gram Panchayat on 20.2.2002 and completed on 31.3.2004. It is claimed that completion certificate is not required as project was prior to amendment in the Act. The other project was on 4 acres of land owned by SarvDharmGrihNirmanSahakari Samiti Maryadit Society Khasra No.34/170/2/1 and 34....
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.... ACIT (2013) 22 ITJ 273 (Trib. Indore) These decisions are prior to Nitin Agarwal (supra). Agarwal Builders Vs. DCIT (2015) 26 ITJ 709 (Trib. Indore) CIT Vs. Radhe Developers (2012) 341 ITR 403 (Guj HC) DCIT Vs. AG8 Ventures Ltd. (2019) 34 ITJ 209 (Trib. Indore) / AG8 Ventures Ltd. Vs. ACIT, Bhopal IT(SS)A No.83, 84, 86, 87, 90, 91, 109, 110 & ITA, No. 922 & 923/Ind/2019 order dated 16.02.2021 The ITAT has merely followed the issue of contractor vs. developer as decided in original proceeding. Further, the ITAT has not taken into account the order passed in Nitin Agarwal (supra). Swadesh Developers and Builders Vs. ACIT, ITA No. 304 to 309/Ind/2017 order dated 10.08.2021 (ITAT, Indore) There was no bifurcation of cost towards land and cost of construction in the allotment-letter issued by assessee to buyers whereas in present appeals, there was a clear-cut bifurcation in the construction receipts and the consideration received on sale of plots. 9. Lastly, Ld. DR submitted that the CIT(A) has erroneously relied upon previous orders of CIT(A) for AYs 2006-07 and 2008-09 passed in assessee's case for holding that the assessee is a 'developer', ....
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....he receipt of entire sale consideration as set forth herein above. 5. That the possession of the agreed property shall be handed over to the Second Party by the first party only upon receipt of full consideration and other dues as mentioned in this deed. This will be the special condition. The Second Party shall have no right to demand the possession of the agreed property from the first party without complying this condition." 12. Then, Ld. AR drew us to the registered Sale-deed of same Bungalow No. 60 filed at Page No. 105-112 of Paper-Book. He carried us through various clauses and covenants of Sale-deed wherein there is a clear reference of aforesaid initial Agreement as well as there are complete details of the township project undertaken by assessee; the details of statutory permissions obtained; the specification of bungalow sold by assessee to the buyer, etc. Ld. AR invited our particular attention to the following clause of Sale-Deed: "2. ....... The constructive possession of the said property is delivered to the purchaser, however the physical possession will be delivered upon the completion and finishing of said property, by the seller to the purcha....
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....The Assessing Officer also observed that the registered sale deed mentions that the plots have been sold at structure level. Thus, the difference of agreed sale price and the sale-deed price is the contract receipts. Accordingly, he held that the assessee is a contractor and not a developer. We have carefully gone through the agreement executed by the assessee with the buyers wherein structure was sold just to enable the buyers to take loan against it. However, possession was to remain with the assessee who alleged to carry out the complete construction of the building thereon as per the approved plan. The relevant clause 17 of the agreement reads as under: "But in that case for all practical purposes the actual and physical possession of the said apartment shall continue to remain with the builders only and the builders shall have a lien over the said apartment until the entire balance payment is made to the builders either by the purchaser or by his/her financer. Therefore, it is clearly understood and agreed by the purchaser that such sale-deed will be executed by the builders only to facilitate the purchaser to get the housing loan or as the case may be, but the same s....
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.... in that case only the plots were sold to the purchasers and not the constructed area. Various documents submitted before us including sanction from the Municipal Corporation and the completion certificate and other documents establish that the registries of the structure were made only to facilitate the housing loan to the purchasers. The initial agreement clearly provided that after receiving the sale consideration, the registration for structure/semi-finished/finished flats/bungalows may be done whenever the purchaser desires. Even after execution of the registration of sale-deed of structure/semi-finished/finished flats/bungalows, the possession shall remain with the seller till full payment is made. All these facts suggest that the assessee was a developer and it has never worked as a contractor on behalf of the purchasers. We also get support from the decision of the ITAT in the case of Paras Housing (supra) and Vardhman Builders & Developers (supra). Our this view is also supported by the decision of the Hon'ble Gujarat High Court in the case of CIT vs. Radhe Developers (supra) wherein the Hon'ble High Court has held as under :- "The assessee had, in part pe....
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.... deduction u/s. 80IB(10). Further, we find that the claim of deduction u/s. 80IB(10) was already a subject matter of regular assessments in preceding years. In the A.Y. 2004-05 to 2007-08 the deduction was impugned before this Tribunal and the same was decided in favor of assessee and copy of order is placed at PB 438-447. Further, in A.Y. 2007-08, the issue of deduction was disallowed again in proceedings u/s. 147. The matter again travelled before this Tribunal and in ITA No. 472 & 473/Ind/2015, vide order dated 08.01.2019 deduction u/s.80IB(10) of the Act was allowed. The order has been placed in the assessee's paper book at PB 125-145. Further in A.Y. 2008-09, which is impugned before us, the assessment was completed u/s. 143(3) and the claim of deduction u/s. 80IB(10) was allowed by the Ld. AO (The Assessment order is placed at PB 45-46). Also, in A.Y. 2009-10, the claim was allowed in the assessment u/s. 143(3) by the Ld. AO. The Assessment order is placed at PB 69-70. In A.Y. 2010-11, the issue of developer and contractor travelled to ITAT. The claim was allowed by the ITAT, Indore Bench, Indore and the order is placed at PB 125-145. Thus, the issue as regards the deduct....
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....ion of the residential house is given to the buyers/colonizers. 26. However, the Coordinate Bench Ahmedabad in the case of Green Associates (supra) dealing with the similar issue and identical set of acts and placing reliance on the decision of Tribunal in the case of Narayan Reality Ltd. ITANo.2293/Ahd/2012 and others dated 02.05.2014 held that the assessee is a developer eligible for deduction u/s 80IB(10) of the Act observing as follows: "We have heard the rival submission and perused the material on record. We find that in the present case the assessee was denied deduction u/s 80IB(10) by Ld. CIT(A) for the reason that assessee had not sold residential houses in the house project but had sold developed residential plots with construction up to the plinth only and thus the assessee could not be considered as developer of housing project but was a contractor and therefore assessee was not eligible for deduction u/s 80IB(10) of the Act. we find that on similar facts, in the case of Narayan Reality Ltd. (supra) the issue was decided in favor of the assessee by holding as under: "8. We have heard the rival submissions and perused the material on record. On....
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....rs & Developers vs. (2011)14 Taxman.com 78 ITO (Indore) 3. M/s. Vardhman Builders ITA No.559/Ind/2010 dated and Developers vs. ITO 09/05/20 12 4. Raghava Estates Vs. Dy. CIT ITA Nos.248 & 49/Vizag/2009 dated 04/08/2011. 5.2. He submitted that in the case of Vardhman Builders & Developers (supra) also, the assessee had entered into a separate agreement for sale of land and separate agreement for construction of housing on such land and under these facts, it was held by the Tribunal in that case that merely because of two separate agreements, the claim of the assessee for deduction u/s.80-IB (10) of the Act cannot be declined if other conditions are being satisfied. 5.3. He further submitted that in the case of DCIT vs. SMR Builders (P) Ltd. (supra) also, the facts were that the assessee had sold flats in a semi-finished stage. In that case, the AO had noted that as per the sale- deed, the assessee-company has sold undivided share of land with super-structure of semi-finished built-up area for a certain consideration. The AO held that these mi-finished structure has never been considered as a residential unit. It was also noted by the AO in that ca....
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....in that case also, the land was sold separately along with partial and unfinished construction of flats and, thereafter, construction agreement was entered into to carry out the balance construction work and under these facts, it was held by the Tribunal in that case that such agreement for construction to complete the balance work is only an incidental facilitation to protect interest of the parties and therefore, the assessee is eligible for deduction u/s.80-IB(10) of the Act. Similarly, in the case of Raghava Estates vs. Dy. CIT (supra) on which reliance was placed by the Id.AR of the assessee, the facts are similar. In that case also, the assessee had sold the plots separately and thereafter, constructed the houses and under these facts, the Revenue held that the assessee has to be considered as a mere contractor and, therefore, the assessee is not eligible for deduction u/s.80-IB (10) of the Act. This goes to show that the facts in that case were identical. In that case, it was noted by the Tribunal that the assessee had chosen to register the plot in the name of the buyer on payment of specified amount in order to achieve cost saving and to ensure reliability and thereafter, ....
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....deduction by following decisions of ITAT, Indore in Paras Housing and Vardhman Builders & Developers as well as the decision of Hon'ble Gujarat High Court in Radhe Developers. 16. Ld. AR also distinguished Nitin Agarwal (supra) by pointing out certain distinguishable facts discernible from the very same Para 8 and 9 of the order relied by Ld. DR (re-produced above). These are such that (i) in one project, the completion-certificate was not filed at all; (ii) in other project, the land was belonging to a society which got approval to construct duplex bungalows and the assessee had acted as a contractor. Further, the approval from Gram Panchayat was for individual plot units and not for a project. Ld. AR also referred Para No. 7 of the order wherein the ITAT has also taken cognizance of the AO's findings that (i) no investment had been made by assessee to start the project; (ii) the project was not approved by Municipal Corporation; (iii) no building permission was given, (iv) the completion-certificate was not obtained. Ld. AR submitted that none of these adverse features is existing in assessee's case, therefore Nitin Agarwal's decision is not applicable at all. ....
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....ds was to facilitate bank financing only. The assessee, however, received payments from buyers as per initial Agreements and delivered possession of bungalows to the buyers after complete construction of bungalows. Thus, the initial Agreements were not obliterated in any manner due to execution of sale-deeds of partly finished houses. Further, there is no bifurcation of construction-receipts and the consideration received towards sale of plots. The initial Agreement clearly mentions one 'single consideration' for entire bungalow/house and the assessee received proceeds of such 'single consideration' from time to time from buyers. It is also a point that the physical possession of entire bungalows was given to buyers after completion of full bungalows and after receiving full consideration as per Agreement. That apart, the assessee has developed the entire project with all amenities and facilities like road, drainage, lights, etc. The assessee made initial investments for developing the project. These clinching facts shown by Ld. AR with reference to the documents held in Paper-Book could not be rebutted by revenue. Therefore, in these set of facts, the decisions rel....
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....on 26.04.2003 and the same was required to be completed by 31.03.2008. As per Explanation (ii) to section 80-IB(10), the 'date of completion of construction' of housing project shall be taken to be the 'date on which the completion-certificate in respect of such housing project is issued by the local authority'. In present case, the assessee claims that although the project was completed on 21.03.2008 and the assessee had applied to local authority for issuance of completion-certificate but the completion-certificate was issued by local authority on 15.12.2008 (subsequently a rectified certificate was issued by local authority on 24.12.2010). The assessee claims that the completion of project was before 31.03.2008, therefore it is eligible for deduction. On the other hand, the revenue has taken a view that in terms of Explanation (ii) to section 80-IB(10), the date of completion of project shall be taken as 15.12.2008/24.12.2010 i.e. the date on which completion-certificate was issued by local authority. Therefore, the assessee was not entitled to deduction. 22. For this issue, the assessee has filed an application alongwith declaration in Form No. 8 u/s 158A(1) ....
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....es" is confined to the point as to whether the completion- certification dated 15.12.2008/24.12.2010 issued by local authority certifying that the said project was completed in March, 2008 i.e. before 31.03.2008 would entitle the assessee for deduction u/s 80-IB(10) or not? There is no other controversy so far as the project "D.K. Honey Homes" is concerned. Therefore, the issue involved is identical to the issue pending before Hon'ble Supreme Court. Hence, the declaration filed by assessee in terms of section 158A(1) qua the project "D.K. Honey Homes" is admissible. At this stage, we also take note that for AY 2014-15 also, the assessee filed similar declaration u/s 158A(1) in ITA No. 23/Ind/2022 before ITAT, Indore and the ITAT has already made following adjudication vide order dated 09.09.2024: "4.2 Having regard to the fact as recorded above as well as judgment of Hon'ble Bombay High Court (supra), we are satisfied that the issue involved in the present appeal of the assessee before us as raised in ground no.1 is identical to the question of law raised by the assessee in the ground (b) & (c) (reproduced in forgoing part of this order) before the Hon'ble Supr....
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....as found following infirmities in the certificate submitted by assessee which the CIT(A) has failed to address adequately: (i) The name of project "D.K. Devasthali" is not mentioned in certificate. (ii) The certificate does not mention date of completion of project. (iii) The certificate mentions about completion of construction only for plot numbers 14 to 119 which means the plot numbers 1 to 13 remained unconstructed. The assessee has also filed additional evidence before the bench in the shape of letter dated 19.09.2024 from local authority certifying that no construction was done over plot numbers 1 to 13. The claim of assessee that plot nos. 1 to 13 are commercial and to avoid litigation regarding the permissible area of commercial plots, assessee has not made construction over those plots, does not suffice as the construction on all plots is a statutory requirement for claiming deduction. (iv) The certificate lacks the seal of local authority casting doubt on its authenticity. The CIT(A) has failed to make any enquiry from local authority. 31. Ld. AR for assessee referred the impugned certificate filed at Page 38 of an earlier Paper-Book....
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....sed the documents to which our attention has been drawn. After a careful consideration, we find that the assessee has filed a completion-certificate to the AO but the AO has inferred certain infirmities and raised doubt on authenticity. Ld. AR has successfully shown that the certificate is issued by Bhawan Anugya Sakha, Nagar Nigam Bhopal on their letter-head, it bears S.No. 476/Bh.A.Sa./09 dated 31.03.2009, it contains a reference of Permission No. 178 dated 29.04.2004 granted by Nagar Nigam to assessee for construction and it is signed by three authorities of Nagar Nigam with their designations. It is true that the certificate lacks seal of Nagar Nigam but other details contained in the certificate are sufficient enough. Still if the AO had any doubt, the AO had all authority to make enquiry from Nagar Nigam to rebut the certificate filed by assessee but the AO has not done any such effort, instead resorted to disallow deduction to assessee. Be that as it may, we find that the latest letter dated 19.09.2024 filed by assessee as received from CPIO of Nagar Nigam also contains reference of Original Permission No. 178 dated 29.04.2004 as mentioned in the impugned completion-certific....
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....a). Therefore, CIT(A)'s order must be overturned. 36. Per contra, Ld. AR for assessee firstly submitted that there is no ground raised by revenue qua this issue, hence the submission made by Ld. DR in absence of ground is liable to rejected. Without prejudice, Ld. AR relied upon following order passed by CIT(A) qua this issue: "Regarding completion certificate of the Project D.K. Cottage, it was under construction when the assessment-proceedings were going on and, therefore, completion-certificate was not furnished. The Ld. AR furnished the completion-certificate in the course of appellate proceedings which has been kept on record. The certificate is issued by the Municipal Corporation, Bhopal dated 31.03.2012 and, therefore, claim for deduction u/s 80IB(10) for this project is accepted. However, the AO can exercise the option of invoking Instruction No. 4 of 2009 dated 30.06.2009 of CBDT if it is detected that completion-certificate of the project furnished at the appellate stage is not correct." 37. After a careful consideration, we find sufficient merit in the submission of Ld. AR. At first, we find that there is no ground raised by revenue qua this issue. The....
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....y the local authorities on a subsequent date. The aforesaid issue first arose in the assessment made for A.Y 2005-06 and A.Y 2008-09 and the same has been decided by the M P High Court vide Its order dated 21.08.2015 In Appeal No 65/2012 & 161/2012 against the assessee. The assessee had filed a petition before the Supreme Court against the sald judgment bearing Special Leave Petition (C) Nos 35004-35005 of 2015. The order of the M P High Court has been stayed by the Hon'ble Supreme Court vide its order dated 08.07.2019. Under the above circumstances the assessee is enclosing herewith an application in Form 8 as required by section 158A (1) Rule 15A requesting that the said ground of appeals of the assessee may be decided as per law with a right of modifying the order in accordance with the final order of the Hon'ble Supreme Court. Application in Form 8 is enclosed. Thanking you Sincerely yours 2 5 JUN 2024 Dinesh Kumar Goyal {Partner) Document 2 FORM NO. 8 [[sco rule 15 A]] [c-Form] Declaration under section 158A(1) of the Income-tax Act, 1961 to be made by an assessee claiming that identical question of law is pending before the High Court or the Sup....
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....¤¾à¤¯à¥à¤•à¥à¤¤ (केनà¥à¤¦à¥à¤°à¥€à¤¯)-1, à¤à¥‹à¤ªà¤¾à¤², कमरा सं.204, आयकर à¤à¤µà¤¨, अरेरा हिलà¥à¤¸, होशंगाबाद रोड, à¤à¥‹à¤ªà¤¾à¤² (म0पà¥à¤°0) F.No.DCIT(C) 1/BPU/AppeaVITAT/2024 25 Dated : 03/09/2024 10, The Commissioner of Income Tax (DR), Income Tax Appellate Tribunal, CGO Building, A-Wing, White-Church, Indore - 452001 Sir Sub. :- Appellate proceedings in the case of M/s D.K. Construction, Bhopal, PAN: AAAFD7121P, ITA No. 159/ind/2015 for AY 2010-11, 436/Ind/2015 for AY 2011- 12 and 59/Ind/2015 for AY 2009-10 - regarding - regarding. Ref: Letter F.No. CIT(DR)/ITAT/Ind/2024-25 dated 10.07.2024 and email dated 14.08.2024. Kindly refer to the above. 2.1 In this regard, REPORT OF THE ASSESSING OFFICER, AS REQUIRED UNDER SECTION 15BA (2) OF THE INCOME TAX ACT, 1961 is as under: Before submitting the report about correctness of the decleration uis 158A (1) of the Act, it is re....
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....mbay High Court in Commissioner of Income Tax vs. Happy Home Enterprises and Commissioner of Income Tax va, Kankio Spaces Pvt. Lid. [(2015) 372 (TR 1 (Bom)] wherein while dealing clause (d) to Section 80 IB (10) it was held that the aforesaid provision was prospective and not retrospective in nature? (h) Is not the High Court in error in setting aside the judgment of the petitioner referring to an order of a coordinate bench of the Tribunal in D. K. Construction (17 ITJ1) wherein I was held that the date of issue of Completion Certificate was not crucial but dale of compiction of project is relevant? ã® Is not the impugned judgment passed by the High Court contrary to the cardinal rule of interpretation that a construction of provision leading to an unreasonable harsh and absurd result ought to be avoided in light of the fact that the petitioner exercises no control over issuance of completion certificate then just making an application for lasuance of a completion certificato? 6 Has not the High Court erred in law in not following the judgment of this Hon'ble Court in the case of Commissioner of Income Tax vs. Sarkar Builders reportod in (2015) 7 SCC 579 while conside....