2016 (4) TMI 171

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..... Drawing our attention to the Explanation inserted towards the end of Sub-Section (10) of Section 80IB, it is contended by the learned Standing Counsel for the Department that the benefit of Section 80IB is not available to any undertaking, which executes a housing project or a works contract awarded by any person. This Explanation was inserted by Finance Act 2/2001 with effect from 1.4.2001. But unfortunately for the Department, the above Explanation has no application to the case on hand. The assessee did not execute a housing project as a works contract for the owner of the land. The relationship that the assessee had with the purchasers of undivided shares has been misunderstood as the relationship that they had with the owner of t .....

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..... agreed to develop the land, put up constructions of flats and sell them to third parties. 4. The assessee claimed themselves to be developers and claimed relief under Section 80IB of the Act. This was accepted in respect of the assessment years 2007-08 and 2008-09. However, in respect of the assessment year 2009-10, the Assessing Officer took the view that the assessee is not a developer, but a contractor. The Commissioner (Appeals) confirmed the assessment order and the Tribunal also upheld the same, forcing the assessee to come up with the above appeal. 5. It is seen from paragraph 7 onwards of the order of the Tribunal that there is no dispute on the following facts : (i) that the assessee entered into an unregistered agreemen .....

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..... 8. But, in so far as the owner of the land is concerned, the assessee actually acted as the developer. They had undertaken the following activities namely (i) engagement of architects (ii) preparation of building plans for approval (iii) coordinating with the Local Body for the grant of building plan approval (iv) identification of purchasers of flats and (v) entering into agreements of construction with them. All the above activities cannot be undertaken, if a person was merely a contractor. Therefore, primarily, the view taken by the Tribunal appears to be wholly unsustainable. 9. Drawing our attention to the Explanation inserted towards the end of Sub-Section (10) of Section 80IB, it is contended by the learned Standing Counsel fo .....

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