2015 (1) TMI 779 - AT - Income Tax

Partnership Firm Wins Tax Deduction Dispute for Housing Projects (10)

Green Associates 4th Floor, Versus ITO., Ward-5(2), Baroda

The Assessee, a partnership firm engaged in housing projects, claimed a deduction under Section 80IB(10) of the Income Tax Act. The Assessing Officer ... Disallowance of deduction u/s 80IB(10) - Held that:- Entire work from the stage of the commencement to the stage of making the residential unit habitable have been carried out by the assessee only and, therefore, assessee is eligible for deduction u/s.80-IB(l0) of the Act. We direct the A.O to grant the deduction to the assessee u/s. 80IB(10) of the Act as relying on Satsang Developers [2014 (5) TMI 184 - ITAT AHMEDABAD ], Narayan Reality Ltd. [2014 (5) TMI 221 - ITAT AHMEDABAD] - Decided in favour of assessee. Issues Involved:1. Disallowance of deduction under Section 80IB(10) of the Income Tax Act, 1961.2. Determination of whether the Assessee qualifies as a developer or merely a contractor.Issue-wise Detailed Analysis:1. Disallowance of Deduction under Section 80IB(10):The Assessee, a partnership firm engaged in the development and building of housing projects, filed a return of income for A.Y. 2009-10, claiming a deduction of Rs. 29,32,078/- under Section 80IB(10) of the Income Tax Act. The Assessing Officer (A.O.) denied this deduction on the grounds that the approval for the construction project was in the name of Shri Akshay Kothari and others, not the Assessee, and the land did not belong to the Assessee. The A.O. argued that only the landowner could be considered a developer, and since the Assessee was not the owner, it was not entitled to the deduction.Upon appeal, the Commissioner of Income Tax (Appeals) [CIT(A)] upheld the A.O.'s decision but for different reasons. The CIT(A) acknowledged that the Assessee could not be denied the deduction solely because it was not the landowner, referencing the Hon'ble Gujarat High Court's decision in Radhe Developers. However, the CIT(A) noted that the Assessee sold developed residential plots with construction up to the plinth only and completed the rest of the work as a contractor. Thus, the CIT(A) concluded that the Assessee's role as a developer ended once the plots were sold, and it acted as a contractor thereafter, making it ineligible for the deduction under Section 80IB(10).2. Determination of Developer vs. Contractor:The Assessee argued that the issue was covered by the decision of the co-ordinate bench of the Tribunal in Narayan Reality Ltd., where similar facts led to a decision in favor of the Assessee. The Tribunal, upon reviewing the material and hearing submissions, noted that the CIT(A) had disallowed the deduction because the Assessee had entered into separate agreements for the sale of land and construction, treating the Assessee as a contractor rather than a developer.The Tribunal referred to several cases, including Satsang Developers, where it was held that separate agreements for land sale and construction did not disqualify the Assessee from being considered a developer if other conditions were met. The Tribunal emphasized that the entire work from the commencement to making the residential unit habitable was carried out by the Assessee, thus qualifying it as a developer.Conclusion:The Tribunal found the facts of the present case similar to those in Narayan Reality Ltd. and other cited cases, where the Assessee was considered eligible for the deduction under Section 80IB(10) despite separate agreements for land and construction. The Tribunal held that the Assessee was indeed a developer and directed the A.O. to grant the deduction under Section 80IB(10).Final Judgment:The appeal of the Assessee was allowed, and the order was pronounced in Open Court on 05-01-2015.