2016 (3) TMI 725 - AT - Income Tax

Entitlement to deduction under sec.80IB - Held that - The assessee entered into construction agreement with the prospective buyers, who has no choice of giving the construction to another builder and thereafter, the assessee constructed the building as per the approved plan and provided various amenities common to all people. Therefore, looking into the entire transaction, as such, it is a development of housing project by the assessee itself and no one awarded any work to the assessee. Even if, there is an enabling clause in the partnership deed to do the works contract, that cannot be a reason to conclude that the assessee undertook works contract. Further, in similar circumstances, the Tribunal, in the case of Sanghvi & Doshi Enterprises v. ITO (2011 (5) TMI 597 - ITAT, CHENNAI ) has taken a similar view, wherein it was held that where the assessee entered into a joint development agreement to build up a housing project on land owned by some other person and assumed all risks that are assumed by a developer, then the assessee was entitled to deduction under sec.80IB of the Act. - Decided in favour of assessee.

Issues Involved:
1. Eligibility for deduction under Section 80IB(10) of the Income Tax Act.
2. Compliance with conditions laid down under Section 80IB(10).
3. Interpretation of "works contract" versus "developer".
4. Requirement of completion certificate.
5. Impact of multiple approvals on eligibility for deduction.
6. Built-up area exceeding prescribed limits.

Issue-wise Detailed Analysis:

1. Eligibility for Deduction under Section 80IB(10):
The primary issue was whether the assessee was eligible for deduction under Section 80IB(10) of the Income Tax Act. The assessee claimed this deduction on profits from the business, which the Assessing Officer (AO) denied. The AO argued that the method of executing the housing project was not in accordance with the provisions of Section 80IB(10), and the assessee had not submitted the completion certificate. The Commissioner of Income-tax (Appeals) upheld this view, noting that the assessee failed to comply with the conditions laid down under Section 80IB(10) and did not demonstrate that the activity carried out was developing and building of housing projects.

2. Compliance with Conditions Laid Down under Section 80IB(10):
The AO and the CIT(A) observed that the assessee did not comply with the conditions of Section 80IB(10). The project involved the sale of plots of land and subsequent construction of houses thereon as per construction agreements signed by the buyers of the plots. There was no registration of the sale of houses, and the assessee did not obtain approval from the local authority for the project as a whole. The CIT(A) concluded that the activity carried out by the assessee was that of a "works contract" rather than developing and building housing projects.

3. Interpretation of "Works Contract" versus "Developer":
The AO held that the project was executed as a works contract and not as a developer, based on the retrospectively inserted explanation below Section 80IB(10). The assessee argued that the developer is different from a works contractor, as the developer takes financial risks in executing a housing project. The Tribunal agreed with the assessee, noting that the assessee had developed the housing project and constructed flats by creating infrastructure facilities. The Tribunal referenced the Kerala High Court's judgment in Kerala Builders Forum v. State of Kerala, which distinguished between a builder/landowner and a works contractor.

4. Requirement of Completion Certificate:
The AO rejected the deduction claim partly because the assessee did not submit a completion certificate. The assessee contended that the completion certificate was not mandatory for the project, which was an ordinary building category with Ground Floor plus one. The Tribunal accepted this argument, noting that the Development Regulations for Chennai Metropolitan supported the assessee's case for non-furnishing of the completion certificate.

5. Impact of Multiple Approvals on Eligibility for Deduction:
The AO and CIT(A) argued that multiple approvals for various houses in the housing project indicated that it was not a single project developed on one acre of land. The Tribunal rejected this approach, referencing the case of Asst. v. C. Rajini (Smt.), where it was held that multiple approvals should not bar the claim of deduction. The Tribunal emphasized that the method of execution should not be a decisive test and that the project could be executed in different ways.

6. Built-up Area Exceeding Prescribed Limits:
The AO noted that some houses exceeded the maximum built-up area of 1500 sq.ft., leading to the rejection of the entire deduction claim. The assessee had already restricted the claim of deduction to profits from houses complying with the conditions prescribed in Section 80IB(10) in the revised return of income. The Tribunal referenced the case of M/s Sanghvi & Doshi Enterprise, which allowed pro rata deduction under Section 80IB(10) for flats within the prescribed built-up area limits.

Conclusion:
The Tribunal concluded that the assessee was eligible for deduction under Section 80IB(10), as the project was a development of housing projects and not a works contract. The Tribunal allowed the appeals of the assessees, emphasizing that the method of execution and multiple approvals should not bar the claim of deduction. The Tribunal also held that the completion certificate was not mandatory for the project in question. The appeals were disposed of in favor of the assessees.

← Previous Next →