2011 (3) TMI 1042 - AT - Income Tax

Assessee wins appeal for deduction under section 80-IB(10) as developer.

The Tribunal allowed the appeal filed by the assessee, determining that the assessee was entitled to the deduction under section 80-IB(10) as a developer. ... Whether deduction u/s 80-IB(10) is allowed as developer - agreement clearly indicates that assessee has been made de facto owner of the entire land and project till it is handed over to the members after receipt of necessary sale amount and recommending their names to the society for issuing membership letters - It is also the case of the revenue that the assessee was a mere contractor developing and building housing project and, therefore, it could not be a developer - it is the undertaking that develops or builds the housing project that is entitled to deduction irrespective of the fact whether that it is the owner or not or whether it is the contractor thereof - The developer is not working on remuneration for the landowners, but developer is working for himself in order to exploit the potential of its business in his own interest and, therefore, opted for all business risks associated with the business of development of real estate including developing and building of housing projects Whether parking space is included then total area would exceed specified limit - Parking space is only an appendix to the flat i.e. residential unit and it cannot be its integral part. One may have a car and may purchase a car parking space along with flat - In any case it is not show that purchase of parking space as well as flat was a combined selling unit and no option was available to any purchaser either to purchase flat and not to purchase the parking space - Decided in favor of the assessee Issues Involved:1. Legality of the CIT(A) order.2. Entitlement to deduction under section 80-IB(10).3. Compliance with conditions under section 80-IB(10).4. Classification as a developer or contractor.5. Liability to pay interest.Detailed Analysis:1. Legality of the CIT(A) Order:The assessee contended that the CIT(A) passed the order without considering and appreciating the facts of the case. The Tribunal examined the entire sequence of events, including the agreement between the assessee and the society, and concluded that the CIT(A)'s arguments were not tenable. The Tribunal found that the assessee had made legal arrangements whereby the society was only a vehicle for reducing Stamp Duty on the purchase of the land. The Tribunal emphasized that the assessee had paid for the land, developed the project, and had full control over the project, thus rejecting the CIT(A)'s view.2. Entitlement to Deduction under Section 80-IB(10):The Tribunal examined whether the assessee was entitled to the deduction under section 80-IB(10). The AO had denied the deduction on the grounds that the assessee did not own the land and acted merely as an agent. The Tribunal, however, referred to the case of Radhe Developers and concluded that ownership of the land was not a necessary condition for claiming the deduction. The Tribunal emphasized that the assessee had complete control over the project, bore all the risks, and enjoyed the profits, thus qualifying as a developer under section 80-IB(10).3. Compliance with Conditions under Section 80-IB(10):The Tribunal addressed the conditions required for claiming the deduction under section 80-IB(10), such as the approval of the housing project by the local authority, the project being on a plot of land with a minimum area of one acre, and the built-up area of residential units not exceeding the specified limits. The Tribunal found that the necessary approval for the project had been obtained, the plot size was more than one acre, and the built-up area of the shops and other commercial establishments did not exceed the prescribed limits. The Tribunal rejected the CIT(A)'s claim that the area of two flats exceeded 1500 sq. ft. based on vague and unverified facts.4. Classification as Developer or Contractor:The Tribunal examined whether the assessee acted as a developer or merely as a contractor. The Tribunal referred to various clauses in the development agreement and concluded that the assessee had been made the de facto owner of the entire land and project. The Tribunal emphasized that the assessee had dominant control over the land, bore all the risks, and enjoyed the profits from the sale of the flats. The Tribunal rejected the CIT(A)'s view that the assessee acted only as a contractor for the housing society.5. Liability to Pay Interest:The Tribunal did not specifically address the issue of the appellant's liability to pay interest in the detailed analysis. However, given the Tribunal's decision to allow the appeal and grant the deduction under section 80-IB(10), it can be inferred that the issue of interest liability would be resolved in favor of the assessee.Conclusion:The Tribunal allowed the appeal filed by the assessee, concluding that the assessee was entitled to the deduction under section 80-IB(10) as a developer. The Tribunal emphasized that the assessee had complete control over the project, bore all the risks, and enjoyed the profits, thus qualifying for the deduction. The Tribunal rejected the CIT(A)'s arguments and found that the necessary conditions for claiming the deduction had been met.