2016 (5) TMI 574 - AT - Income Tax

Assessee qualifies as developer, not contractor, eligible for Section 80IB(10) deduction. Tribunal affirms CIT(A) decision.

ÌTO, Wd-9 (2), Ahmedabad Versus M/s Hariom Corporation

The Tribunal upheld the decision of the CIT(A) that the assessee qualified as a developer, not merely a works contractor, and was eligible for deduction ... Eligibility of deduction u/s.80IB(10) - Held that:- Respectfully following the decision of Hon. Jurisdictional High Court in the case of CIT vs. Radhe Developers (2011 (12) TMI 248 - GUJARAT HIGH COURT) and applying the ratio of the decision to the facts of the case before us, we are of the considered opinion that assessee is a developer of the project and not merely a works contractor and is eligible for deduction u/s 80IB(10) of the Act - Decided in favour of assessee. Issues Involved:1. Eligibility for deduction under Section 80IB(10) of the I.T. Act, 1961.2. Determination of whether the assessee is a developer or merely a works contractor.3. Ownership of the land and its impact on eligibility for deduction.Issue-wise Detailed Analysis:1. Eligibility for Deduction under Section 80IB(10):The Revenue contended that the Commissioner of Income-tax (Appeals) erred in allowing the assessee's claim for deduction of Rs. 95,56,580/- under Section 80IB(10) of the I.T. Act. The Assessing Officer (AO) had denied the deduction on the grounds that the assessee was not both a developer and builder as required by the provisions of Section 80IB(10). The AO argued that the assessee did not conceptualize and own the project, as the land was not owned by the assessee and the approval was not issued to it by the local authority.2. Determination of Developer vs. Works Contractor:The AO claimed that the assessee acted as a contractor for the landowners, constructing residential units as per a development agreement with the Parth Bunglows Co-op. Housing Society Ltd., and thus did not qualify as a developer. The AO noted that the society bore the principal investment risk and executed the sale deeds, with the assessee acting merely as a booking agent and builder contractor. The AO also cited an amendment to Section 80IB by the Finance Act, 2009, which disqualified works contractors from claiming the deduction.3. Ownership of Land and Impact on Deduction Eligibility:The AO argued that the assessee was not the owner of the land, and the entire responsibility for executing the housing project rested with the society. However, the CIT(A) examined the development agreement and concluded that the assessee was a developer, not a mere works contractor. The CIT(A) relied on a previous decision by the ITAT in the case of Shakti Corporation, Baroda, which allowed deduction under similar circumstances where the assessee bore the risk of development.Tribunal's Findings:The Tribunal observed that the assessee had carried out various activities as a developer, including designing and conceiving the housing project, forming a co-operative housing society, bearing all incidental expenses, preparing and getting plans approved, advertising the project, and issuing legal documents related to the sale of residential units. The Tribunal noted that the assessee had control over the project and bore the risk of development, as evidenced by the clauses in the development agreement.The Tribunal also referred to the decision of the Jurisdictional High Court in the case of CIT vs. Radhe Developers, which held that an assessee could be considered a developer eligible for deduction under Section 80IB(10) even if they were not the owner of the land but carried out activities as a developer-cum-building contractor.Conclusion:The Tribunal upheld the CIT(A)'s decision, concluding that the assessee was a developer and not merely a works contractor, and was thus eligible for deduction under Section 80IB(10) of the I.T. Act. The appeal of the Revenue was dismissed, and the order of the CIT(A) was affirmed.Order Pronounced:The order was pronounced in the open Court on 10th May, 2016.