2017 (12) TMI 128 - HC - Income Tax

Benefit of deduction u/s 80IB - adherence to eligibility criteria - whether assessee is a builder and developer and cannot be termed as a works contractor? - Held that - In the present case in appeal even though the appellant followed Project Completion method but it has given up his claim and agreed to be assessed on the basis of Percentage Completion method provided the deduction under section 80IB(10) of the Act is allowed to it in the light of Board s Instruction No. 4/2009 as has been reproduced in para 8.2 of the assessment order as the tax audit report as envisaged before allowing deduction has also been furnished by the assessee. We, therefore, on the peculiar facts and considering entire gamut of the case laws are satisfied that the assessee is a builder and developer and cannot be termed as a works contractor for invoking Explanation below section 80IB(10) of the Act. The appellant having agreed to be assessed on Percentage Completion method, the estimation of income after rejecting accounts by the Ld. CIT(A) in both the years under appeal does not require any interference so that the appellant in this case having filed the requisite audit report also is entitled to deduction under section 80IB(10) in terms of the Instruction No. 4/2009 issued by the CBDT. The assessing authority accordingly shall allow the deduction to the appellant in both the years under appeal. - Decided in favour of assessee.

Summary

Issues Involved:
1. Justification of the Tribunal in reversing the orders passed by CIT(A) and the Assessing Officer.
2. Eligibility for deduction under Section 80IB of the Income Tax Act.
3. Classification of the assessee's work as a "work contract" or as a "developer".

Issue-wise Detailed Analysis:

1. Justification of the Tribunal in reversing the orders passed by CIT(A) and the Assessing Officer:
The appellant challenged the Tribunal's decision which partly allowed the assessee's appeal. The Tribunal reversed the orders of the CIT(A) and the Assessing Officer, allowing the benefit of deduction under Section 80IB of the Income Tax Act to the assessee. The Tribunal relied heavily on the decision in "The Commissioner of Income Tax-I vs. Radhe Developers (2012) 341 ITR 403 (Guj.)" which stated that the land ownership by the assessee is not a necessary condition for claiming deductions under Section 80IB(10). The Tribunal found that the assessee had full responsibility and authority over the development projects and bore the associated risks and rewards, thus qualifying as a developer rather than a mere contractor.

2. Eligibility for deduction under Section 80IB of the Income Tax Act:
The substantial question of law framed was whether the Tribunal was justified in allowing the deduction under Section 80IB(10) to the assessee, despite the specific explanation to the section that excludes works contracts. The Tribunal's decision was based on the detailed terms and conditions of the development agreements, which showed that the assessee had undertaken the entire task of development, construction, and sale of housing units. The Tribunal noted that the assessee had full control over the land and project, managed all financial arrangements, and bore all risks, thus qualifying for the deduction under Section 80IB(10). The Tribunal's interpretation was supported by precedents, including the Bombay High Court's decision in "Commissioner of Income Tax vs. Cajetano Mario Pereira (2014) 88 CCH 152".

3. Classification of the assessee's work as a "work contract" or as a "developer":
The Tribunal and the High Court examined whether the assessee's activities constituted a "work contract" or if the assessee acted as a "developer". The Tribunal concluded that the assessee's role went beyond that of a contractor. The agreements and the nature of the work indicated that the assessee had undertaken the development project at its own risk and cost, with the landowner only receiving a fixed price for the land. The Tribunal found that the assessee's involvement included planning, designing, development, and selling the housing units, which involved significant risk and investment by the assessee. This was contrasted with a "work contract," where the contractor typically does not bear such risks. The Tribunal's findings were consistent with judicial interpretations distinguishing between contracts for sale and works contracts, as discussed in various Supreme Court decisions.

Conclusion:
The High Court upheld the Tribunal's decision, affirming that the assessee was entitled to the deduction under Section 80IB(10) of the Income Tax Act. The High Court agreed with the Tribunal's interpretation that the assessee acted as a developer and not merely as a contractor, thus answering the issue in favor of the assessee and dismissing the appeals.