Siddhi Construction, Ahmedabad vs Department Of Income Tax

IN THE INCOME TAX APPELLATE TRIBUNAL " D " BENCH, AHMEDABAD (BEFORE SHRI SHAILENDRA Kr. YADAV, J.M. & SHRI ANIL CHATURVEDI, A.M.)

I.T. A. No.1969/AHD/2011 (Assessment Year: 2008-09)

The I.T.O., Ward-9(1), V/S M/s. Siddhi Construction Ahmedabad Arohi Complex, B/h.Bopal- 444, Sardar Patel Ring Road, Bopal, Ahmedabad-3800058 (Appellant) (Respondent)

PAN: ABBFS6428C

Appellant by : Smt. Sonia Kumar, Sr. D.R. Respondent by : Shri Rupesh. P. Mehta, A.R.

(आदे श)/ORDER

Date of hearing : 24-04-2015 Date of Pronouncement : 30 -04-2015

PER SHRI ANIL CHATURVEDI,A.M.

1. This appeal filed by the Revenue is against the order of CIT(A)-XV, Ahmedabad dated 13.06.2011 for A.Y. 2008-09.

2. The relevant facts as culled out from the material on record are as under.

3. Assessee is a partnership firm stated to be engaged in the business of construction of housing project. Assessee electronically filed its return of income for A.Y. 2008-09 on 30.06.2008 declaring total income at Rs. Nil after claiming deduction of Rs. 1,07,14,047/- u/s. 80IB(10) of the Act. The 2 ITA No 1969/AHD/2011 . A.Y. 2008-09 case was selected for scrutiny and thereafter the assessment was framed under section 143(3) vide order dated 06.12.2010 and the total income was determined at Rs. 1,07,14,050/- by denying the claim of deduction u/s. 80IB(10). Aggrieved by the order of A.O., Assessee carried the matter before ld. CIT(A) who vide order dated 13.06.2011 allowed the appeal of the Assessee. Aggrieved by the aforesaid order of ld. CIT(A), Revenue is now in appeal before us and has raised the following ground;-

1. The Ld. Commissioner of Income-tax (Appeals)-XV, Ahmedabad has erred in law and on facts in directing the Assessing Officer to allow the assessee's claim for deduction of Rs. 1,07,14,050/- u/s. 80IB(10) of the Act.

2. The Ld. Commissioner of Income-tax (Appeals)-XV, Ahmedabad has erred in holding that the assessee fulfills the conditions laid down for claiming deduction u/s.80IB(10) even when the land was in the name of Rajsheela Coop. Housing Society , and Naklank Co-op. Housing Society which are separate legal entities in the eye of law and the assessee entered into the project by a development agreement with them. The entire responsibility to execute the housing project(s) and abide by the terms and conditions of its approval right from the inception of the project(s) till its completion rests with the Society. Assessee was just a contractor of the land constructing housing projects and not a developer.

4. The only issue is with respect to denial of claim u/s. 80IB(10).

5. During the course of assessment proceedings, A.O noticed that Assessee has claimed deduction u/s. 80IB(10); A.O was of the view that Assessee was not a developer because the Assessee did not conceptualize and own the project Assessee was not the owner of the land, the Assessee was merely a contractor for the purpose of construction of the project and had not sold any unit to the purchaser but the land owners has executed the sale deed as a seller. He accordingly was of the view that Assessee being a contractor was not eligible for deduction under 80IB(10). Aggrieved by the order of A.O., Assessee carried the matter before ld. CIT(A) who after noting the fact and 3 ITA No 1969/AHD/2011 . A.Y. 2008-09 following the order of her predecessor in the assessee's own case, allowed the claim of the Assessee.

6. Aggrieved by the aforesaid order of ld. CIT(A), Revenue is now in appeal before us.

7. Before us, at the outset, ld. A.R. submitted that ld. CIT(A) had followed order of her predecessor for A.Y. 07-08 against which Revenue had preferred appeal before Hon'ble Tribunal. Hon'ble Tribunal in ITA No. 340/AHD/2011 order dated 12.12.2014 has dismissed the appeal of the Revenue. He therefore submitted that since the facts of the case in the year under appeal are identical to that of A.Y. 07-08, the present appeal of the Revenue also needs to be dismissed. He also placed on record the copy of the aforesaid order. The ld. D.R. on the other hand supported the order of A.O.

8. We have heard the rival submissions and perused the material on record. We find that in Assessee's own case the issue of deduction u/s. 80IB(10) was also in A.Y. 07-08. The Co-ordinate Bench of Tribunal while deciding the appeal for A.Y. 07-08 and after relying on the decision of Hon'ble Gujarat High Court in the case of CIT vs. Radhe Developers (2012) 341 ITR 403 had dismissed the appeal of the Revenue and decided the issue in favour of the Assessee by holding as under:-

7. We find that the Hon'ble Gujarat High Court in the case of CIT vs. Radhe Developers (supra) has held that the provisions nowhere required that only those developers who themselves own the land would receive the deduction under Section 80IB(10) of the Act.

Neither the provisions of Section 80IB nor any other provisions contained in other related statutes demonstrate that ownership of the land would be a condition precedent for developing the housing project. Such requirement cannot be read into the statute 4 ITA No 1969/AHD/2011 . A.Y. 2008-09 because there is nothing under Section 80IB(10) of the Act requiring that ownership of the land must vest in the developer to be able to qualify for such deduction.

8. We, therefore, find that the order of the CIT(A) is supported by the order of the jurisdictional High Court. Hence, we do not find any infirmity in the order of the CIT(A) which is hereby confirmed and the grounds of appeal of the Revenue are dismissed.

9. Before us, Revenue has not brought any distinguishing feature in the facts of the case for the year under review as compared to A.Y. 07-08 nor has brought on record any contrary binding judicial decision in its support. We therefore find no reason to interfere with the order of ld. CIT(A) and thus the ground of Revenue is dismissed.

10. In the result, the appeal of Revenue is dismissed.

Order pronounced in Open Court on 30 - 04 - 2015.

Sd/- Sd/- (SHAILENDRA Kr. YADAV) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad. TRUE COPY Rajesh

Copy of the Order forwarded to:- 1. The Appellant. 2. The Respondent. 3. The CIT (Appeals) - 4. The CIT concerned. 5. The DR., ITAT, Ahmedabad. 6. Guard File. By ORDER

Deputy/Asstt.Registrar ITAT,Ahmedabad