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M/s. Unity Infraprojects Ltd.1252, Pushpanjali Apartments, Old Prabhadevi Road, Prabhadevi, Mumbai-400 025. Vs. DCIT Central Circle-45 Aayakar Bhavan Mumbai-400 020.
October, 16th 2014
  ,  Û  , 
  ,

     IN THE INCOME TAX APPELLATE TRIBUNAL
           MUMBAI BENCHES "F", MUMBAI
            ^  , Û  
            ^  ,  ,  ¢ 
      Before Shri Joginder Singh, Judicial Member
      And Shri Sanjay Arora, Accountant Member

      ITA   NO. 3466 /MUM/2011       (A.Y. 2003-04)
      ITA   NO. 3467 /MUM/2011       (A.Y. 2004-05)
      ITA   NO. 3468 /MUM/2011       (A.Y. 2005-06)
      ITA   NO.3469 /MUM/2011       (A.Y. 2006-07)
      ITA   NO.3470 /MUM/2011        (A.Y. 2007-08)

M/s. Unity Infraprojects       DCIT Central Circle-45
Ltd.1252, Pushpanjali      / Aayakar Bhavan
Apartments, Old Prabhadevi     Mumbai-400 020.
                           Vs.
Road, Prabhadevi,
Mumbai-400 025.

   ( /Appellant)                       (×/Respondent)
         /Appellant by :               Shri Vijay Mehta
  ×    /Respondent by :              Shri Rajesh Ranjan
              Prasad

  /
  / Date of Hearing                      16.09.2014
   /                                     10.10.2014
Date of Pronouncement :

                      / O R D E R

PER JOGINDER SINGH (JM) :
    This bunch of five appeals by the assessee for different
Assessment Years having identical grounds challenging the
                               2        I TA N O . 3 4 6 6 , 6 7 , 6 8 , 6 9 & 7 0 / M U M / 2 0 1 1
                                                                  Unity Infraprojects Ltd.




impugned orders all dated 16/2/2011 wherein the ld. First
appellate authority confirmed the disallowance of deduction
u/s.80IA and sec.80IB of the Income tax Act, 1961 (the Act).
2.   During hearing of these appeal the ld. Counsel for the
assessee, Shri Vijay Mehta, did not press the additional
grounds raised in the respective appeals, therefore, the
additional grounds, so raised, are dismissed as not pressed.
Broadly, the ld. Counsel for the assessee contended that one
tender     was      allotted       to            the              assessee                    for
developing/constructing    houses          on        turnkey               basis                at
Bakarwala and Narela, by Delhi Development Authority
(DDA), on the terms and conditions contained in the order for
which our attention was invited to pages 27 to 38 of the paper
book. It was submitted that as per the work execution it
includes planning, designing, soil testing, earth filling, civil
work including its electrification, infrastructure and services
like sewerage, drainage, street lighting, roads, water supply,
horticulture, landscaping etc. The assessee was argued to be
responsible for complete development, thus it was not
simplicitor execution   of work contract                       rather complete
development of the project, therefore, the assessee is entitled
to deduction u/s. 80IB /80IA. It was further submitted that
the project was to be developed till the stage of fit for
habitation without any additional cost with all services. It was
explained that before taking up the work the lay-out plan as
well as building plan and structural design etc. were to be got
approved from DDA/competent authority. The ld. Counsel
further submitted that even the whole planning was done by
the assessee and further asserted that the assessee is a
                               3    I TA N O . 3 4 6 6 , 6 7 , 6 8 , 6 9 & 7 0 / M U M / 2 0 1 1
                                                              Unity Infraprojects Ltd.




creator of this facility, purchased own material having entire
risk qua the project, thus, the assessee is a developer.
Reliance was placed upon the decision in the case of VRM
(India) Ltd. )ITA No.811/Del/2008 date 23/04/2010 and by
further contending that for Assessment Year 2008-09 the ld.
CIT(A) decided the issue in favour of the assessee vide order
dated 30/12/2013. Reliance was also placed on the decision
from Hon'ble Bombay High Court in CIT vs. ABG Heavy
Industries Ltd.(322 ITR 323), ITO vs. Suraksha Realtors (ITA
No.4223/Mum/2010,       M/s.       Pratibha             Constructions                       &
Engineers (I) P. Ltd. vs. ACIT (ITA No.118/PN/2008) and
Mahalaxmi Constructions vs. ACIT (ITA No.433/PN/2007).
The ld. AR furnished the copies of aforementioned/cited
cases.

2.1   On the other hand, the ld. DR defended the conclusion
drawn in the impugned orders by submitting that the
assessee is merely a work contractor for DDA and the
development is done by the authority because the assessee
merely executed the work given by the DDA. Plea was also
raised that the budget was allocated by the DDA and even the
risk factor is of DDA and not of the assessee . It was pleaded
that the DDA provides houses to the public, land is owned by
DDA, financed by DDA, policy and decision making is with
DDA. It was asserted that if due to any reasons the project
fails it is the responsibility of the DDA and not of the
assessee. Any kind of loss suffering was also argued to be of
DDA. Further plea was raised that there is a possibility that
DDA might have claimed the deduction therefore, if further
                                4     I TA N O . 3 4 6 6 , 6 7 , 6 8 , 6 9 & 7 0 / M U M / 2 0 1 1
                                                                Unity Infraprojects Ltd.




deduction is allowed to the assessee it will amount to double
deduction. Broadly the conclusion drawn in assessment
order/impugned order was defended. In reply the ld. Counsel
for the assessee submitted that DDA never claimed the benefit
under the impugned section, therefore, there is no question of
double deduction.

3.    We have considered the rival submissions and perused
the material available on record. Since common issues are
involved in all these appeals, therefore, for the sake of brevity
these appeals are being disposed off by this common and
consolidated order. The facts in brief are that the assessee
company undertook the development and construction of
residential buildings pursuant to contracts awarded by Delhi
Development     Authority    (DDA).         The          assessee                claimed
deduction u/s.80IA(4) and 80IB(10) of the Income tax Act,
1961. The ld. AO disallowed the claim of the assessee on the
ground that the assessee is not a developer of the project and
merely worked as a contractor and placed reliance upon the
decision of the Tribunal in the case of M/s. B.T. Patil and
Sons, Belgaum Constructions (P) Ltd. vs. ACIT (2010) 35 SOT
171 wherein it was held that the claimed deduction is
allowable only to the enterprise               which is engaged in
developing the infrastructure projects. On appeal, the ld.
CIT(A) affirmed the stand of the AO, resultantly, the assessee
is in appeal before this Tribunal .

3.1   Before coming to any conclusion we are reproducing
hereunder the relevant provisions of the Act for ready
                                     5    I TA N O . 3 4 6 6 , 6 7 , 6 8 , 6 9 & 7 0 / M U M / 2 0 1 1
                                                                    Unity Infraprojects Ltd.




reference and its analysis with respect to the facts of the
present appeals:-

           "80IA (4A) This sec. applies to any enterprise
           carrying on the business of developing, maintaining
           and operating any infrastructure facility which fulfils
           all the following conditions namely :-


          (i)     the   enterprise       is    owned              by        a      company
                 registered in India or by a consortium of such
                 companies;
         (ii)    the enterprise has entered into an agreement
                 with   the   Central         Government                   or       a      State
                 Government or a local authority or any other
                 statutory body for developing, maintaining and
                 operating a new infrastructure facility subject to
                 the condition that such infrastructure facility
                 shall be transferred to the Central Government,
                 State Government, local authority or such other
                 statutory body, as the case may be, within the
                 period stipulated in the agreement;
         (iii)   the enterprise starts operating and maintaining
                 the infrastructure facility on or after the 1st day
                 of April, 1995."
                 "80IB(10) The amount of profits in case of an
                 undertaking developing and building housing
                 projects approved by a local authority, shall be
                 hundred per cent. of the profits derived in any
                                 6   I TA N O . 3 4 6 6 , 6 7 , 6 8 , 6 9 & 7 0 / M U M / 2 0 1 1
                                                               Unity Infraprojects Ltd.







              previous year relevant to any assessment year
              from such housing project if,--
               (a)   such     undertaking          has          commenced                    or
              commences development and construction of the
              housing project on or after the 1st day of
              October, 1998, and completes the same before
              the 31st day of March, 2001 ;


               (b) the project is on the size of a plot of land
              which has a minimum area of one acre ; and


               (c) the residential unit has a maximum built-up
              area of one thousand square feet where such
              residential unit is situated within the cities of
              Delhi or Mumbai or within twenty-five kilometers
              from the municipal limits of these cities and one
              thousand and five hundred square feet at any
              other place."


3.2   For fair analysis of the matter we are expected to
examine the terms and conditions agreed between the
assessee and the DDA. We are reproducing hereunder the
conditions of the award/allotment, as a sample, which are
identical in all the cases as contained in negotiated tender
and award of work (No.F.54(163)/SWD-9/DRK/DDA/A/2001-
2002/1541 160/ dt.28 /2/02)
      Terms & Conditions
         1)   the flats shall be 5 (five) storeyed framed
              structure (1000 Nos.) with plinth area of
                             7    I TA N O . 3 4 6 6 , 6 7 , 6 8 , 6 9 & 7 0 / M U M / 2 0 1 1
                                                            Unity Infraprojects Ltd.




      42 sqm. each, In case the number of
      units/plinth area decreases due to
      unavoidable reasons, the cost shall be
      proportionately reduced to Rs.7,190/-
      (Rs.Seven Thousand one hundred ninety
      only) per sqm.

ii) The scope of work as stated in the N.I.T. to
     be executed on Turnkey basis includes
     planning,              designing,          s oil-res ting,
     e ar t h - f i l l i n g ,         civil           wo r k s ,
     including                     i ts          electrification,
     infrastructure              services,       like     str eet
     lighting , se we r age, water supply,
     dr ain age,                ro ads,         hor ticul ture,
     l andsc aping, provision of du al water
     suppl y               s ys tem,         r ain        water
     har ves ting as also cons tr uction of
     Co mmuni ty Hal l, Shopping cen tr e,
     Boundary              wall,       electric     sub-station,
     installation of transformer & equipment in
     it, laying of H.T. cables, L. T. network
     service cables etc. and making the units
     complete and habitable including watch &
     ward for 3 (three) years from the date of
     recorded completion. This scope of work
     given in the NIT is only indicative and not
     exhaustive. The agency shall be
     responsible for execution of all items
     required for completing these houses
     in all respects to make these units
     habitable and ready for occupation
     as well as functioning of all services,
     making                environment              -fit      for
     habitation wi thou t any additional
     cost, complete as per direc tion of the
     Engineer-in-charge
                        8    I TA N O . 3 4 6 6 , 6 7 , 6 8 , 6 9 & 7 0 / M U M / 2 0 1 1
                                                       Unity Infraprojects Ltd.




iii)   The Flats will be maintained till these
       are   handed      over        to      the         Engineer-in-
       charge in good conditions and free from
       all defects.

iv)    The services will be handed over to the
       var ious local bodies af ter its completion
       as per approved plans, etc. as stated in
       the NIT also.

v)         Bef ore taki ng up the wo r k, the
       l ayo u t pl ans as well as bui l d in g pl ans ,
       s tr u c tu ra l de si gn s e tc . ar e to be g o t
       ap pr o v ed       from        DD A/c o mp e te n t
       A u tho r i ty as men ti on ed in the N IT b y
       ad he r ing to the ti me s c hedul e l aid
       do wn in the N IT
v i ) T h e ag e n c y wi l l al s o b e r e s p o n s i b l e
      for     g e t ti n g   th e     fire       fighting
      arrangements , approved from the Delhi
      Fire Services before execution of the water
      supply scheme

vii) The r ei mburs e men t of increase i n c ost
     of     mater i al,   l abour   e tc . wil l  be
     ap pl ic abl e f r om the d ate of sub miss ion
     of Envelope -C i .e. revi se d fi n anc ial
     bi d ins te ad o f s ubmission of tender
     initially and such reimbursement for
     escal ation in cost under clause-14
     would be payable during the stipul ated
     period of completion only. You are
     requested to attend this office to sign
     the agreement on Non- judic i al s tamp
     p aper of Rs .50/- (Rs .Fif ty o nl y) wi thi n
     f if tee n d ays f ro m the d ate of is sue of
                                  9     I TA N O . 3 4 6 6 , 6 7 , 6 8 , 6 9 & 7 0 / M U M / 2 0 1 1
                                                                  Unity Infraprojects Ltd.




               thi s le tte r . Pl eas e no te th at i f you f ai l
               to a tte nd the o f f ice of the unders igned
               wi thin f if teen d ays f r o m the date of
               issue of this Le tter, the acceptance of
               the tender is liable to be withdrawn and the
               earnest money forfeited.

                      You are also requested to contact
               Asstt. Engineer-II of this divi sion and
               s tar t the wor k at once. Ple as e no te
               t h a t t h e t i m e a l l o we d f o r c a r r y i n g
               o u t t h e w o r k a s en ter ed in the te nder
               s hal l be rec kone d f ro m the 15 t h d ay
               af te r th e d ate of i ss ue of th i s l e tte r to
               c o mme nc e the work.
                      T he ti me al l o we d f o r the ex e c u tio n
               of the wo r k shall be 30 (thirty) months only.
               Your                   negotiation                                     letter
               no.UIL/Bakkarwala/D02                      dt.        18/02/2002
               along      with    letter         no.          F.54(163)/SWD-
               9/DWK/DDA/A/2001-02/2804 dt.06/11/01
               and even no.s2907 dt. 22/11/01, shall also
               form part of the agreement.


3.3        If the aforesaid conditions are analysed certain
undisputed facts are oozing out which are summarized as
under :-


       a) The flats which are to be constructed shall be having
           plinth area of 42 sq.mtr.

       b) The work is to be executed on turn-key basis
           including planning, designing, soil testing, earth-
                       10   I TA N O . 3 4 6 6 , 6 7 , 6 8 , 6 9 & 7 0 / M U M / 2 0 1 1
                                                      Unity Infraprojects Ltd.




  filling etc. and complete development of the project
  including services like sewerage, drainage, water
  supply, roads, electrification, rainwater harvesting,
  laying of HT cables and other facilities which are
  required and stipulated in the aforesaid terms and
  conditions.

c) As per condition No.(V) before starting the work the
  layout plans, building plans, structural designs etc.
  were to be got approved from the competent
  authority as mentioned in the NIT adhering to the
  time schedule so laid down alongwith fire fighting
  system.

d) The conditions stated herein above clearly leads to
  the conclusion that the assessee has merely not
  constructed    the   flats       rather             developed                  the
  infrastructure right from filling the earth and soil-
  testing etc., therefore, the assessee cannot be said to
  be a contractor simplicitor.

e) As per the conditions after complete development of
  the project meaning thereby the units and other
  facilities includes watch and ward for 3 years from
  the date of completion of the project, and the
  assessee shall be responsible for execution of all
  items required for completing the project in all
  respect   along   with    all      services              without              any
  additional cost. And not only this all the services
  was to be handed over to the local bodies after its
  completion as per approved plans. All these terms &
                                11     I TA N O . 3 4 6 6 , 6 7 , 6 8 , 6 9 & 7 0 / M U M / 2 0 1 1
                                                                 Unity Infraprojects Ltd.




          conditions are clearly indicative of the fact that the
          assessee is not a contractor rather a developer
          because it is not the case that part of the work was
          completed by different persons rather, it was
          completed/developed in all respects by the assessee
          itself.

3.4.   Now we are expected to analyze the aforementioned
provisions of the Act. Sub-section (10) to sec. 80IB of the Act
speaks   about      an   undertaking      developing                 and         building
housing projects approved before a specified date by the local
authority and, if the conditions are fulfilled, then the profit
derived therefrom shall be 100% of the profits, derived in the
previous year relevant to any Assessment Year.                                   In these
appeals, we note that the project was duly approved by the
competent authority, therefore, condition No.(i) is fulfilled,
likewise the condition contained in (ii) is also fulfilled and
similar is the position with respect to condition as contained
in (iii). So far as, condition contained in sub clause (b) is
concerned the size of the plot is also within the prescribed
limit of more than one acres and the development of the
project was carried out in accordance with the scheme framed
by the government.        So far as built up area condition is
concerned this is also within the specified limit, meaning
thereby all the conditions as stipulated in this section are
complied with by the assessee. The position has been further
explained by the Explanation inserted by the Fin.(No.2)Act, of
2009 with retrospective effect from 01.04.2001 and further
amendments made from time to time. As per the Explanation
nothing contained in the sub-section shall apply to any
                                    12   I TA N O . 3 4 6 6 , 6 7 , 6 8 , 6 9 & 7 0 / M U M / 2 0 1 1
                                                                   Unity Infraprojects Ltd.




undertaking which executes the housing project as a work
contract awarded by any person (including Central or State
Government). The totality of facts are clearly indicative to the
conclusion, as discussed earlier also, that the assessee is not
a work contractor, rather, it developed the project in every
respect     right   from   soil-testing,      earth          filling,          designing,
planning, sewerage, drainage, and till the final completion of
the project. It is worth quoting that as per condition No. (iii)
the flats were to be maintained till they are handed over to the
Engineer in Charge.

3.5   We also note that broadly while disallowing the claim of
the assessee the ld. AO, and also the ld. DR before us, heavily
relied upon the decision of the Tribunal in the case of B.T.
Patil & Sons, Belgaum Constructions Pvt. Limited (supra),
whereby the assessee was treated as works contractor.
However, subsequently the Hon'ble Jurisdictional High Court
in the case of ABG Heavy Industries Ltd. (189 Taxmann 54)
(Bom.) decided the similar case in favour of the assessee
treating him to be a developer. The expression "development"
has   not    been    artificially   defined        for        the        purposes                of
sec.80IA/80IB of the Act, therefore, it should receive its
ordinary and natural meaning. The Parliament in its wisdom
amended the provisions of sec.80IA/80IB of the Act so as to
clarify that in order to avail a deduction the assessee should
(i) develop or (ii) operate and maintain or (iii) develop, operate
and maintain the facility. Parliament eventually stepped into
to clarify that it was not invariably necessary for a developer
to operate and maintain the facility. Even the Hon'ble Apex
Court in Bajaj Tempo vs. CIT (196 ITR 188) emphasized that a
                                     13    I TA N O . 3 4 6 6 , 6 7 , 6 8 , 6 9 & 7 0 / M U M / 2 0 1 1
                                                                     Unity Infraprojects Ltd.




provision in a taxing statute granting incentive for promoting
growth and development should be construed liberally. After
sec.80IA was amended by the Fin. Act of 2001 the Section
applies to an enterprise carrying on the business of (a)
developing or (b) operating and maintaining or (c) developing,
operating and maintaining any infrastructure facility subject
to fulfillment of certain conditions. Thus, the provision has to
be construed harmoniously. While coming to a particular
conclusion the Hon'ble Apex Court considered the decision in
allied Motors Pvt. Ltd. vs. CIT (224 ITR 677)(SC)(para-23), CIT
vs. Alom Extrusions Ltd. (319 ITR 306)(SC)(para-23). It is
noteworthy that the Pune Bench of the Tribunal in the case of
M/s. Pratibha Constructions & Engineers (I) P. Ltd. (supra), on
identical fact deliberated upon the issue and decided in favour
of   the   assessee.    It    is   worth mentioning                       that         Hon'ble
Jurisdictional High          Court   in    the        case          of ABG Heavy
Engineering Ltd. (supra), decided the issue. The relevant
portion is worthy of notice.


            "22 The submission which was urged on
            behalf of the revenue is that under                              clause
            (iii) of subsection (4) of section 801A, one of the
            conditions imposed was that the enterprise
            must       start operating and maintaining the
            infrastructure facility on or after 1st April, 1995.
            The same requirement is embodied in sub-
            clause (1) of sub-clause (4) of the amended
            provisions.      It    was    urged         that         since          the
            assessee was not operating and maintaining
                            14     I TA N O . 3 4 6 6 , 6 7 , 6 8 , 6 9 & 7 0 / M U M / 2 0 1 1
                                                             Unity Infraprojects Ltd.







the facility, he did not fulfill the condition. The
submission is fallacious both in fact and in law

That the assessee was maintaining the facility
is not in dispute. The facility was commenced
after 1st April, 1995. Therefore, the requirement
was met in fact. Moreover, as a matter of law,
what the condition essentially means is that
the infrastructure facility should have been
operational after 1st April, 1995. After section
80-IA was amended by the Finance Act. 200,
the section applies to an enterprise carrying on
the   business        of     (1)     developing:                    or       (ii)
operating           and      maintaining;                       or          (iii)
developing, operating and maintaining any
infrastructure facility which fulfills certain
conditions.         Those          conditions                  are           (1)
ownership of the enterprises by a company
registered in India or by a consortiums: (ii)
an agreement with                  the Central or State
Government, local authority or statutory body:
and    (iii)    The        start       of        operation                 and
maintenance of the infrastructure facility
should commence after 1st April, 1995. The
requirement that operation and maintenance
of the infrastructure facility should commence
after 1st April, 1995 has to be harmoniously
construed with the main provision under which
deduction is available to an assessee who
develops       or    operates          and          maintains,                 or
                                  15    I TA N O . 3 4 6 6 , 6 7 , 6 8 , 6 9 & 7 0 / M U M / 2 0 1 1
                                                                  Unity Infraprojects Ltd.




         develops,     operates         and            maintains                   an
         infrastructure facility."

         A harmonious reading of the provisions in its
         entirety would lead to the conclusion that the
         deduction is available to an enterprise which (i)
         develops: or operates and maintains: or (iii)
         develops,     maintains         and            operates                that
         infrastructure         facility.           However,                     the
         commencement           of     the           operation                  and
         maintenance       of    the     infrastructure                   facility
         should be after 1st April, 1995. In the present
         case   the    assessee         clearly            fulfilled            this
         condition."

         Before the amendment that was brought about
         by Parliament by Finance Act, 2001 we have
         already noted that the consistent line of
         circular of the Board postulated the same
         position The amendment made by Parliament
         to S. 80IA(4) of the Act, set the matter beyond
         any controversy by stipulating that the three
         conditions for development, operation and
         maintenance       were        not       intended                to        be
         cumulative       in    nature."            (underlined                   for
         emphasis by us)."

3.6.     So far as, the contention of the Revenue that the
assessee is not the owner of the project. We note that the
section nowhere put a condition that for claiming deduction
under these sections necessarily the assessee has to be the
                                 16    I TA N O . 3 4 6 6 , 6 7 , 6 8 , 6 9 & 7 0 / M U M / 2 0 1 1
                                                                 Unity Infraprojects Ltd.




owner of the project.       This is not the intention of the
legislature otherwise nothing prevented it to include such
clause at the time of legislating/inacting the provision. If the
contention of the ld. DR is accepted then whole purpose of
inacting such provision and consequent development of
infrastructure will be defeated.

3.7.        Identically, in the case of Mahalaxmi Constructions
(ITA No.433/PN/2007 order dt 6/2/12 the decision in the case
of B.T. Patil and Sons, Belgaum Constructions (P) Ltd. (supra),
along with aforesaid decision from Hon'ble Bombay High Court
was discussed and held that the assessee is eligible for claim
of deduction u/s. 80IA(4) of the Act. In view of the clear facts
available    on   record   and   the      judicial             pronouncements
discussed hereinabove clearly indicates that the assessee is
entitled for claimed deductions. Therefore, all the appeals are
disposed off as indicated hereinabove.

        Order pronounced in the open court in the presence of
ld. Representatives from both sides at the conclusion of the
hearing on 10th Day of October, 2014 .
             10.10.2014    


               Sd/-                                                Sd/-
         (Sanjay Arora)                                       (Joginder Singh)
  /ACCOUNTANT MEMBER                      Û  / JUDICIAL MEMBER
 Mumbai;  Dated : 10th Oct. 2014.
JV, Sr.PS/Shekar.PS
    /              Copy of the Order forwarded to :
1.      / The Appellant
2.     × / The Respondent.
                           17   I TA N O . 3 4 6 6 , 6 7 , 6 8 , 6 9 & 7 0 / M U M / 2 0 1 1
                                                          Unity Infraprojects Ltd.




3.    () / The CIT, Mumbai.
4.     / CIT(A)-13, Mumbai
5.    ,   ,
      / DR, ITAT, Mumbai
6.   [  / Guard file.
                                               / BY ORDER,
×  //True Copy//
                        /  (Dy./Asstt. Registrar)
                        /
                   ,  / ITAT, Mumbai
                   ,

 
 
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