2014 (10) TMI 425 - AT - Income Tax

Claim of deduction u/s 80IB(10) on sale of houses AO had denied the claim of deduction u/s. 80IB(10) to the assessee for the reason that the assessee was not the owner of the land and was merely a contractor - Held that - Following the decision in M/s. Satsang Developers Versus ACIT, Circle-2(2), Baroda 2014 (5) TMI 184 - ITAT AHMEDABAD - the claim of the assessee for deduction u/s.80-IB (10) of the Act cannot be declined if other conditions are being satisfied - the land was sold separately along with partial and unfinished construction flats and, thereafter, construction agreement was entered into to carry out the balance construction work - such agreement for construction to complete the balance work is only an incidental facilitation to protect interest of the parties and the assessee is eligible for deduction u/s. 80-IB(10) of the Act - the assessee had chosen to register the plot in the name of the buyer on payment of specified amount in order to achieve cost saving and to ensure reliability and the assessee had needed to construct the house as per building plan obtained in the name of plot-owners on payment of subsequent installments - the assessee had also developed various public amenities within the project the assessee is eligible for deduction u/s 80IB Decided in favour of assessee.

Summary

Issues Involved:
1. Eligibility for deduction under section 80IB(10) of the Income Tax Act.
2. Classification of the appellant as a builder and developer versus a works contractor.
3. Denial of deduction under section 80IB(10) due to sale of incomplete houses.
4. Disallowance under section 40(a)(ia) for non-deduction of TDS on brokerage charges.

Issue-wise Detailed Analysis:

1. Eligibility for Deduction under Section 80IB(10):
The primary issue revolves around the eligibility of the assessee, a partnership firm engaged in building construction, for deduction under section 80IB(10) of the Income Tax Act. The assessee filed its return for A.Y. 2007-08 declaring nil income after claiming a deduction of Rs. 1,31,273 under section 80IB(10). The Assessing Officer (AO) disallowed the deduction, determining the total income at Rs. 12,43,770, on grounds that the assessee was not the owner of the land, had not taken approval from the local authority, and acted merely as a contractor. The Commissioner of Income Tax (Appeals) [CIT(A)] upheld the AO's decision, stating that the assessee did not fulfill the conditions stipulated under the Act, as it sold incomplete houses and acted as a works contractor.

2. Classification as a Builder and Developer vs. Works Contractor:
The CIT(A) held that the appellant was not a builder and developer assuming entrepreneurial risk but rather a works contractor. The CIT(A) emphasized that deduction under section 80IB(10) is intended for developers who undertake entrepreneurial and investment risk, not contractors who undertake only business risk. The CIT(A) noted that the appellant sold fully developed residential plots and completed the construction under separate agreements, thus acting as a contractor.

3. Denial of Deduction Due to Sale of Incomplete Houses:
The CIT(A) denied the deduction under section 80IB(10) on the basis that the appellant executed sale deeds for incomplete houses and entered into separate construction agreements with plot purchasers, thereby acting as a contractor. The CIT(A) concluded that more than 75% of the project receipts came from works contracts, indicating no entrepreneurial and investment risk taken by the appellant.

4. Disallowance under Section 40(a)(ia) for Non-Deduction of TDS:
The AO disallowed Rs. 1,500 under section 40(a)(ia) due to non-deduction of TDS on brokerage charges. The appellant argued that even if the disallowance was upheld, it should be allowed as a deduction under section 80IB(10). However, this ground was not pressed by the appellant during the appeal.

Tribunal's Findings:
The Tribunal noted that the assessee's claim for deduction under section 80IB(10) for the same project was allowed in A.Y. 2004-05 by the CIT(A) and confirmed by the ITAT. The Tribunal also referred to the case of Satsang Developers, where it was held that selling land separately and undertaking construction work as per separate agreements does not disqualify the assessee from claiming deduction under section 80IB(10). The Tribunal found that the Revenue did not present any contrary material to dispute the assessee's claim that the project was the same as in earlier years. Consequently, the Tribunal allowed the assessee's claim for deduction under section 80IB(10) and dismissed the ground related to disallowance under section 40(a)(ia) as not pressed.

Conclusion:
The appeal was partly allowed, with the Tribunal holding that the assessee is eligible for deduction under section 80IB(10) based on the precedent set in earlier years and the case of Satsang Developers. The disallowance under section 40(a)(ia) was dismissed as not pressed.