2014 (3) TMI 1082 - AT - Income Tax

Taxability u/s 167B - nature of receipts derived by the assessee from the AOP - whether the amount received by the assessee from the AOP representing 35% of gross sale proceeds was a profit sharing arrangement as claimed by the assessee or it is a mere consideration in lieu of surrender of development rights in the land to RKC as observed by the Assessing Officer - Held that - We find the Mumbai Bench of the Tribunal in the case of M/s Fortaleza Developers Vs. ITO 2014 (2) TMI 740 - ITAT MUMBAI in the case of the AOP has categorically held that 35% share received by SPPL was not in the nature of overriding title to the revenue but is only share of profit of SPPL therefore respectfully following the above and in absence of any contrary material brought to notice against the order of the Tribunal the grounds raised by the assessee have to be allowed. - Decided against revenue

Summary

Issues Involved:
1. Taxability of the amount received by the assessee from the AOP.
2. Applicability of Section 167B and Section 86 of the Income Tax Act.
3. Jurisdiction of the Assessing Officer in reassessment proceedings.
4. Entitlement to deduction under Section 80IB(10).

Issue-wise Detailed Analysis:

1. Taxability of the amount received by the assessee from the AOP:
The primary issue was whether the amount received by the assessee, a private limited company engaged in real estate development, from an Association of Persons (AOP) named Fortaleza Developers should be taxed as business receipts or as a share of profit exempt under Section 167B(2). The Assessing Officer (AO) argued that the assessee received a fixed 35% of the gross sale proceeds from the AOP, which constituted consideration for the transfer of development rights rather than a share of profit. This was based on the clauses of the AOP agreement and the statements of the assessee's director. The AO emphasized that the assessee's entitlement was to a share in the gross receipts, not the profit, and thus, the exemption under Section 167B(2) was not applicable.

2. Applicability of Section 167B and Section 86 of the Income Tax Act:
The assessee contended that the amount received from the AOP was indeed its share of profit and should be exempt under Section 167B(2) and Section 86, which stipulate that income tax is not payable by an assessee in respect of its share in the income of an AOP. The CIT(A) rejected this contention, holding that the amount received was not a share of profit but consideration for the transfer of development rights, and thus, the provisions of Sections 67A, 86, and 167B did not apply. The CIT(A) upheld the AO's decision to treat the amount as business receipts.

3. Jurisdiction of the Assessing Officer in reassessment proceedings:
The assessee argued that the AO had no jurisdiction to make the addition in reassessment proceedings, as the assessment was based on the same grounds as a previous assessment year where the AOP was assessed as a valid entity. The CIT(A) did not address this argument fully. The Tribunal noted that the issue of jurisdiction was academic in nature since the primary grounds were decided in favor of the assessee.

4. Entitlement to deduction under Section 80IB(10):
The assessee also argued that the income received from the AOP should be entitled to deduction under Section 80IB(10), which pertains to profits from developing and building housing projects. The CIT(A) did not accept this alternate contention. However, the Tribunal found that the Mumbai Bench of the Tribunal, in the case of the AOP, had already decided that the 35% share received by the assessee was indeed a share of profit and not in the nature of overriding title to the revenue. Therefore, the Tribunal allowed the grounds raised by the assessee, setting aside the CIT(A)'s order and holding that the amount received was a share of profit, thus exempt under Section 167B(2).

Conclusion:
The Tribunal ruled in favor of the assessee, concluding that the amount received from the AOP was a share of profit and not consideration for the transfer of development rights. This share of profit was exempt under Section 167B(2) and Section 86 of the Income Tax Act. The Tribunal also noted that the issue of jurisdiction was academic and did not require adjudication. The appeals filed by the assessee were allowed.