2009 (9) TMI 966 - AT - Income Tax

Tribunal clarifies contractor vs. developer distinction in tax deduction cases

Income Tax Officer Ward-5 (2) Baroda Versus M/s. Shreenathji Associates

The Tribunal allowed the Revenue's appeal against the deduction under section 80-IB(10) of the Income Tax Act, 1961, granted by the Learned CIT(Appeals). ... - Issues involved: Appeal against allowing deduction u/s 80-IB (10) of the I.T. Act, 1961 by the Learned CIT(Appeals) for Assessment Year 2002-03.Summary:The Revenue filed an appeal against the order of the Learned CIT(Appeals)-V, Baroda allowing deduction u/s 80-IB(10) of the Act. The Tribunal considered the decision in the case of Radhe Developers and Shakti Corporation, along with the definition of a developer, contractor, and joint venture as laid down by the Hon'ble Supreme Court in the case of Fakirchand Gulati Vs Uppal Agency Pvt. Ltd. The Tribunal observed that the facts in the case of Shakti Corporation were similar to Radhe Developers, where the assessee acquired dominant control over the land and developed the housing project at its own cost and risks. The Tribunal emphasized the distinction between a contractor and a developer, stating that the decision in Radhe Developers cannot be universally applied without considering the development agreement. The Tribunal set aside the lower authorities' orders and directed the Assessing Officer to re-examine the case in light of the distinction between a contractor and a developer. The appeal of the Revenue was allowed for statistical purposes.In conclusion, the Tribunal emphasized the importance of distinguishing between a contractor and a developer in allowing deduction u/s 80-IB(10) and directed a fresh adjudication by the Assessing Officer based on this distinction.