, `B'
IN THE INCOME TAX APPELLATE TRIBUNAL
"B" BENCH, AHMEDABAD
.. , ,
BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND
SHRI KUL BHARAT, JUDICIAL MEMBER
./ ITA Nos. 3018/Ahd/2010 & 2529/Ahd/2012
/ Assessment Years : 2007-08 & 2009-10
The I.T.O. Unique City Homes
Ward 9(1), Vs. Ahmedabad
Ahmedabad F/5, Vishal Complex,
Nr. Dinesh Hall,
Ashram Road, Ahmedabad
PAN :AABFU 7489 E
./ ITA No. 1194/Ahd/2011 &
CO No.122/Ahd/2011
/ Assessment Years : 2008-09
The A.C.I.T. (OSD), Unique City Homes
Circle-9, Vs. Ahmedabad
Ahmedabad F/5, Vishal Complex,
Nr. Dinesh Hall,
Ashram Road, Ahmedabad
PAN :AABFU 7489 E
/ Appellant / Respondent
Revenue by : Shri P.L. Kareel, Sr. DR
Assessee(s) by : Shri Vijay Ranjan &
Shri Hardik Trivedi
/ Da te of Hea rin g : 18 /03/2 014
/Da te of P r on ouncemen t : 24 /03/2 014
/O R D E R
PER SHRI N.S. SAINI, ACCOUNTANT MEMBER:
These are the appeals filed by the Revenue against the orders of ld.
CIT(A)-XV, Ahmedabad dated 22.09.2010, 24.02.2011 and 22.08.2012 for
AYs 2007-08, 2008-09 and 2009-10 respectively. The Cross-objection is
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filed by the assessee against the order of ld. CIT(A)-XV, Ahmedabad for
the AY 2007-08.
2. At the time of hearing, the ld. Departmental Representative
submitted that the facts and issues involved in all the years under
consideration in the Revenue's appeals are similar. He, therefore,
submitted that he will be making the arguments in the appeal of the
Revenue for the AY 2007-08 which should be taken as the arguments of
the Revenue in the other assessment years also.
3. The ld. AR of the assessee also agreed with the submissions of the ld.
DR.
4. The sole issue involved in the appeals of the Revenue is that the
CIT(A) erred in law and on facts in directing the AO to allow deduction u/s
80IB(10) of the Act for Rs.1,06,43,571/- in the AY 2007-08,
Rs.4,08,18,896/- in the AY 2008-09 and Rs.74,09,233/- in the AY 2009-10.
5. The brief facts of the case are that the AO observed that land bearing
survey numbers 329 to 332 and 335, 336, 346, 347/a, 347/2, 347/3,
348/1+2, 375/1, 375/2, 350,351,352,353/1, 354, 355, 372/1, 372/2 and
325 having an area of 113100 sq. meters was purchased by Dharti Vikas
Co-Operative Housing Society Ltd. Thereafter, the said society filed an
application and plan before the local authority who accorded permission for
development and construction of the project to Dharti Vikas Co-operative
Housing Society Ltd on 04.04.2005.
6. Thereafter the assessee entered into a Development Agreement with
the said Dharti Vikas Co-operative Housing Society Ltd on 21.10.2005. As
per this agreement, the following terms were agreed upon:-
i) The assessee was given possession of the land for construction
of housing units as per the plan,
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ii) The assessee was allowed to enroll prospective buyers as the
members on behalf of the society,
iii) The assessee was allowed to collect the consideration for land
as well as super-structure from the buyers on behalf of the
society,
iv) The assessee was allowed to retain the consideration received
for construction and charge the land cost to the Society. In
other words the Society was formed for group housing of the
members and was supposed to construct and transfer the
houses to the members,
v) According to the Development Agreement, since the society
had no experience of construction, the assessee was allowed to
construct the houses on behalf of the society as per the terms
narrated in the agreement according to the approved plan of
the Society.
7. The AO further observed that on verification of land documents it is
found that the assessee is not the owner of the said land and that the
owners were M/s. Dharti Vikas Co-operative Housing Society Ltd. who was
permitted to develop the land by constructing a Housing Project. The name
of the assessee-firm neither appears in the application forms nor on the
permission letters of the local authority for the Housing Project.
8. The AO further observed that permission issued by the local authority
shows that the permission for construction was issued in the name of M/s.
Dharti Vikas Co-operative Housing Society Ltd and not in the name of the
assessee. The permission categorically states that the permission was
being granted for construction as per the approved plan enclosed with the
application and it was subject to the Rules and Bye-laws of Gujarat Town
Planning and Urban Development Rules, Gujarat; Ahmedabad Urban
Development Authority; General Development Control Regulations etc..
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9. From the above facts, the AO inferred that the assessee firm was not
the owner of the land and that the approval for the project was also not
received in the name of the assessee. The documents clearly states that
the local authority permitted the owner of the land viz. Dharti Vikas Co-
operative Housing Society Ltd. to develop the Housing Scheme. He
observed that the assessee came into the project by way of "Development
Agreement" entered into by it with the land owner. Accordingly, one of the
fundamental conditions, laid down in the provisions of Section 80IB (10)
relating to the approval of the project was not complied with by the
assessee in as much as it had not taken the approval from local authorities
for the development and construction of the said project. The AO therefore
held that it appeared that the assessee was not eligible for deduction u/s
80IB(10) as claimed by it. Therefore, the AO issued a show-cause notice
dated 19.11.2009 as to why the deduction u/s 80IB(10) should not be
disallowed.
10. In reply to the show-cause notice, the assessee submitted as under:-
"2.9 In response to the show cause notice the assessee gave
reply, the contents of which is reproduced as under:
"In connection with the assessment proceedings for the
Assessment Year 2007-2008, the assessee has been providing
necessary details, explanation to your satisfaction. It was
during the. course of such hearings, your good self has
observed that as per the development agreement entered by
the assessee with the land owners/society, the assessee has
carried out the housing project as per specifications and plans
obtained from the local authority. Accordingly, your good self is
of the view that the assessee has merely acted as work
contractor and accordingly, in the light of this belief and
practically the explanation brought in under section 80IB(10) of
the act w.e.f. 1/04/2001, the assessee has been show caused
as to why the assessee's claim of deduction u/s 80IB should not
be disallowed as the assessee has acted as contractor and not
as developer. In this regard, the assessee states the as under:
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2. At the outset and before we provide necessary explanation
and throw light on the facts of the present case, it is submitted
that we are engaged in the business of development and
construction of real estate project. During the year under
consideration, we were developing housing project named as;
"Unique City Homes". Now with regard to your observations
that the assessee firm has merely carried out the activities as a
work contractor and not as a developer, we provide necessary
explanation as under;
a) At the very outset, we would like to provide a brief detail of
the scheme, of "Unique City Homes" proposed developed & sold
by us. In order that you appreciate the fact of the case, we
would like to state that the said land on which such aforesaid
scheme was developed was owned by Dharti Vikas Co operative
Housing Society Ltd Vibhag 1(B) as agreed and understood with
the society and thus the assessee Unique City Homes
Ahmedabad has made necessary payments for such lands even
prior to carrying out any development work on the same.
Moreover, various permissions have been obtained thereafter
by the assessee to carry out the said project and accordingly
we have secured exclusive rights in these lands for the
development, construction and sale of units to be constructed
on the said land to be purchased, because it was specifically
understood that the Society shall continue in order to assist
future buyers to maintain the housing colony in a proper
manner. Thus, your good self will appreciate that the said land
was purchased for the purpose of development of housing
project and development, construction and sale of units to be
constructed on the said land in these lands are part and parcel
of the activity of the assessee firm through executing separate
development agreement and by paying necessary stamp duty
thereon. Thus, your good self will appreciate that the assessee
has by executing valid documents, being a registered
development agreement, secured and acquired the rights in
this land for carrying out development work and thus the
question that the assessee has carried out the project as work
contractor would not stand at all. Thus, your good self may
note that the assessee has carried out the development work
as a developer builder only and not as work contractor and
accordingly, the claim of the assessee u/s 80IB of the act is
allowable. As, called for the translated version of development
agreement is enclosed here with.
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b) A quick look at this development agreement would further
clarify that the assessee firm has much prior to execution of
development agreement acquired the possession and control of
the said land by making due payments for the same for
carrying out activities which were necessary for the
development and also incurred huge expenses like preparation
of plans for development, plantation of trees, prepare common
plots, expenses for taking care etc. at own cost and thus, you
may observe that the assessee firm has carried out the housing
project as exclusive developer & seller taking al the inherent
risks for completing and selling the project. Your kind attention
is invited to free English translation the para (I)-page 10 of the
development agreement which reads as follow;
"............... ...But earlier to this, during the discussion since
last six months for the development of the this land between
the party of the first part (original society) and the party of the
second part, as the party of the first part has stated as far as
possible the work of development will be given to the party of
the second part, and relying on it, the party of the second part
has made huge expenses for this project and since then as
possession of the land was with the party of the second part
which was handed over by the party of the first part, the party
of the second part has made expenses for works like taking its
care, to prepare plans for development, plantation of trees, to
prepare common plot etc., at their own costs and the party of
the first part shows consent to the same.....".
From the above, it may be appreciated that the assessee firm
has carried out the project at own cost and risk by
development, construction and sale of units to be constructed
on the said land purchased and the society is a mere
instrument to enable the subsequent buyers to maintain the
property in an easy manner jointly.
c) Once your good self will appreciate the above facts, your
good self would appreciate from the below table that the
assessee has duly complied with all the requirement u/s 80(IB)
of the act which is summarized as under:
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Sr. Conditions specified Fulfillment of,
No. for deduction u/s. 80IB conditions of deduction
u/s.80IB
1 Date of Approval by Approval date
Local Authority 04/04/2005
2 Date of Completion Before 3 1.03.20 10(At
of Housing Project present the project is partly
completed)
3 Size of the plot of land More than 1 acre
4 Built up area of 1500 Each residential unit is
Sq feet for each having built up area of less
residential unit than 1500 Sq. Ft. as per
the approved plan.
Also in support of aforesaid claim of deduction u/s 80IB(10),
the assessee firm has submitted submits following details to
assessing officer
(i) Audited Annual Accounts for the year ended on 31/03/2007
(ii) Audit report inform no. 10CCB for claiming deduction u/s
80IB(10) of the Act
(in) Approval of housing project approved from AUDA
(Ahmedabad urban Development Authority)
(iv) B. U. Permission received from A UDA alongwith letter by
said authority clarifying that for such BU Permission certificate ,
developer 'is assessee firm.
As the assessee firm has satisfied all the conditions laid down
under Section 80IB (10) of the Act, deduction under section
80IB(10) cannot be disallowed, The assessee states that there
is no other conditions, which is to be complied by an assessee
for claiming the deduction on profits of the housing projects
and thus the claim of the assessee is valid.
3. Now with regards to your observation that assesses firm has
acted as mere work contractor and not as developer, here the
assesses states that all the permissions and approval were
obtained by the assesses developer firm and all efforts were
put in by developer firm with all its responsibilities and risk as
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developer and were also legally bound to do so under the
development. A perusal of the Agreement would show that
development as per lay out plan has to be done by the
assessee at its own cost and risk. All the functions of the
developer firm are that of development of this property and are
briefly described as under:
(i)The developer for the purpose of planning and executing the
project "Unique City Homes" has sanctioned necessary plans,
drawings, specifications and maps, etc., and has done the work
of planning, construction and development of the said project
as and when required.
ii)The developer has appointed the Engineers, Legal Advisors
and such, other professionals necessary for the purpose of
implementation of such project and has born the necessary
expenditure. The developer has made all necessary
arrangements with the aforesaid professionals for successful
planning, construction and development of the said project.
(iiii) The developer has accepted money from the persons
enrolled in the project. The price to be charged to customers is
solely determined by the assessee and thereby, collects the
consideration. Entire sales value of a unit has been shown as
income in the books of account of assessee.
(iv) For the purpose of completing the project, as planned and
within stipulated period, developer has made all necessary
applications, replies, statements, which are needed, in the
Government Offices or Municipal Corporation Offices, etc.
(v) The complete responsibility of the planning, and the total
construction is rested upon the developer and during the time
when the project was going on, the complete responsibility for
whatever agreement executed under the project and whatever
transactions taken place with third, parties, the same was
rested upon the developer and the Society was not responsible.
(vi) The assessee-developer has created common amenities
and other infrastructure like roads, garden, electricity, water,
drainage, etc., for aforesaid project at their own cost thus,
assessee has created a new product on the plot of land by
performing aforesaid development work.
(vii) It can be seen from B.U. permission obtained from AUDA,
name of assessee firm being M/s Unique City Homes
Ahmedabad has been mentioned as developer
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The aforesaid facts clearly prove that active engagement in the
work of development of project and sale of residential units is
of the assessee and not of the society.
3.2 The assessee -would further like to submit dictionary
meanings of the words develop", "developer" and
"development" from various dictionaries as under:
From the Random House Dictionary of the English Language,
the following definitions can be found:
Develop :
1. To bring out the capabilities or possibilities of; bring to a
more advanced or effective state;
2. To cause to grow or expand.
Developer:
1. A person or thing that develops.
Development:
1. The act or process of developing; progress.
Synonym - expansion, elaboration, growth, evolution;
unfolding, maturing, maturation.
From Webster Dictionary the following definitions emerge
:
Development:
a. To realise the potential of;
b. To aid in the growth of: strengthen, develop the
biceps.
To bring into being: make active (develop a business).
To convert (a tract of land) for specific purpose, as by building
extensively.
From Law Lexicon Dictionary, the following definitions could be
seen :
Development:
1. The act, process or result of developing or growing or
causing to grow; the state .of being developed;
2. Happening
Development of land: The expression 'development' means the
realisation of the potentialities of land or territory by building or
mining:
Sadruddin Suleman V. J. H. Patwadlen AIR 1965 Bom 224, 242
(Constitution of India, Art. 31) ,
Development work : The construction of underground market
does not destroy the intrinsic character of the park as a public
park but re-locate and re-develop the park as a place for public
recreation and as such the construction of the underground
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market is a development work. Calcutta Youth Front vs. State
of West Bengal AIR 1988 SC 436, 439 [Calcutta Municipal
Corporation Act (59 of 1980) s. 353(2) Explanation]."
The aforesaid definitions squarely apply to the case of asses
see and establish the fact that it has worked as developer of
the project and it is entitled to deduction u/s. 80IB of the Act.
3.3 The assessee further submits that developer means a
person who makes the thing happen and it is the assessee, who
by mobilizing and synthesizing people, plan, technical
expertise, supervision, co ordination and control developed and
created the housing project, he has undertaken to bear all
risks. Further the assessee has constructed the residential units
together with common amenities like road, water supply,
electric power, drainage connection etc. Thus it has created a
new product on the plot of land, by performing the above
stated development activities.
3.4 The assessee further states that, it is the developer being
the assessee firm who offers membership to members and
allots the houses to members. The price to be charged to
members is solely determined by assessee and thereby,
collects the consideration. The Society is bound to enter the
same persons as members and decision to sale the house to
customer is of assessee firm and not of society. Free English
translation of para No. 24 on page 24 of the development
agreement is as follows:
"......
(24) the party of the second part shall decide the price of the
property to be allotted to the allottee for the units to be
constructed on the land, future allottee, along -with the
members and allottee, taking into consideration proper and
reasonable facts and circumstances for the same........" "
In view of what is stated herein above, your good self may note
that the assessee firm has carried out the whole project as
developer builder from the purchase of land to the ultimate
disposal as a sale of final product as evident from the
development agreement. This clearly proves that the work
carried out by assessee firm is nothing but the work of
development of housing project as referred in section 80IB(10)
of the Act and thus, the said activity is eligible for deduction
u/s. 80IB of the Act.
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4. Having explained the facts that the assessee firm has acted
as developer of the whole housing project, it can be
further appreciated from the development agreement that the
assessee firm in order to secure the rights in. these lands has
agreed to make total payment of land to be developed by us.
On that understanding, the assessee firm had made
payment of Rs.3,38,63,000/- towards land development right
and this is nothing but the acquisition cost of the land. It is
further pertinent to note that assessee firm. has made payment
irrespective of the fact that it is able to sell out the develop
land or not, which means all the risks are on account of
assessee firm. This fact can be appreciated from the
registred development agreement also and thus you may note
that the assessee is developer builder' only who has carried out
the whole housing project at its own risk.
It can also be seen from the audited accounts that it has not
carried out work as contractor or at fixed remuneration but
rather has debited Profit & loss account with the amount of land
rights paid to society, labour cost, material cost and other cost
incurred towards completion of project and shown entire sale
value of unit including land cost as its income as worked out on
the basis of accepted principles of accounting. The entire profit/
loss arising from completion of project, as worked out and
certified by the auditor has been shown in assessee's books of
account and not in the books of society.
4.2 Also, even for a moment we assume that the assessee firm
has carried out the whole housing project as work contractor,
then, the assessee would have received a fixed amount of
consideration/remunerations from land owner whereas in case
of assessee, it has not received any such fixed amount and
received the aggregate amount towards land, development and
construction of housing projects from persons to whom such
houses were sold during the year. Had the assessee was doing
the work as contractor or on fixed remuneration, no cost
related for completion of project would have been debited in
Profit & loss account and rather entire Profit & loss account
would have been showing remuneration received from society
which is not the case of assessee. It is further pertinent to note
that even work in progress carried on in the books of the
assessee firm is also inclusive of cost of land being payment
made to the owners of land development right, which proves
beyond doubt that assessee has carried out the work as
developer cum builder. And also the fact that the assessee has
through executing valid registered document and by paying
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necessary stamp duty thereon, acquired the rights which
beyond doubts proves that the assessee has carried out the
housing project as developer builder only and not as work
contractor as observed by you.
In view of what is stated herein above, that assessee is not
working on remuneration from the land owners but is working
itself as a developer in order to exploit the potential of its
business in its own interest and, therefore, opted for all
business risks associated with the business of development of
real estate including development and building of housing
projects, THEREFORE YOUR OBSERVATIONS ON FACTS THAT
ASSESSEE HAS ACTED MERELY AS WORK CONTRACTOR IS
FACTUALLY TOTALLY INCORRECT AND PERVESE.
5. The assessee firm may refer to the decision of Hon'ble
Supreme Court in case of Gujarat Industrial Development 227
ITR 414 wherein Apex Court considering the meaning of
"developer" held that the word "Development" appearing in the
provisions should be understood in its wider sense and,
therefore, granted exemption even though the Gujarat
Industrial Development Corporation was engaged in the
industrial development. The development means the realization
of potentialities of land or territory by building or mining.
Accordingly, it can be .safely said that a person who undertakes
to develop real estate by developing and constructing a housing
project is an eligible undertaking; developing and building of
housing projects within the meaning of s. 80-IB(10) of the Act.
In the present case in hand, the landowner has not made any
conscious attempt to develop the property. The landowners, no
doubt, have not thrown themselves into development of
property. It is only the assessee who is developing the
property. Throwing itself into the business of development and
building of housing projects by taking all risks associated with
the business by engaging architects, structural consultants,
designing and planning of the housing schemes, payment of
development charges, obtaining necessary permissions,
approving plans, hiring machinery and equipments, hiring
engineers, appointing contractors, etc. The developer is not
working on remuneration for the landowners, but developer is
working for himself in order to exploit the potential of its
business in his own interest and, therefore, opted for all
business risks associated with the business of development of
real estate, including developing and building of housing
projects. In view of such facts, assessee firm is entitled to
deduction u/s 80IB(10) as claimed in return -of income.
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From the above, your good self will thus appreciate that the
assessee has carried out the whole project as developer only.
The assessee further states that as in case of it, there is no
fixed remuneration contract with society and society has been
rewarded for land cost hence both the conditions laid down in
aforesaid decisions is satisfied in case of assessee and therefore
it is entitled to deduction u/s. 80IB as claimed in return of
income.
We hope the above explanation will meet your requirement
clarify that the assessee firm has acted as developer only and
not as mere work contractor which your good self is of the
view. We believe that once the above facts and explanations
are duly considered, it will clarify that the assessee is developer
builder and thus entitled to claim deduction u/s 80IB of the
act."
11. The AO, after considering the submissions of the assessee, held as
under:-
"2.10 Before we embark upon the discussion of the provisions of the
Section and whether the assessee has satisfied the conditions laid
down in the section 80-IB, it is pertinent to go through the wording of
the section as applicable to the year under consideration. It reads..
Deduction in respect of profits and gains from certain
industrial undertakings other than infrastructure
development undertakings.
80-IB. (1) Where the gross total income of an assessee
includes any profits and gains derived from any business
referred to in sub-sections (3) to [(11), (11A) and (11B) (such
business being hereinafter referred to as the eligible business),
there shall, in accordance with and subject to the provisions
of this section, be allowed, in computing the total income of
the assessee, a deduction from such profits and gains of an
amount equal to such percentage and for such number of
assessment years as specified in this section.
......
......
(10) The amount of deduction in the case of an undertaking
developing and building housing projects approved before
the 31st day of March, 2007 by a local authority shall be
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hundred per cent of the profits derived in the 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 such
construction,-- , (emphasis supplied)
2.11 On an analysis of the provisions of section 80-IB, it is seen that
the sub-section (1) provides that the deduction shall be allowed in
computing the total income of an assessee from the profits and gains
derived from any business referred to in sub-sections (3) to [(11),
(11A) and (11B) called the eligible business subject to the
provisions of this section viz. Section 80IB.
Sub-section (10) of 80IB states that the amount of deduction under
subsection (1) to the undertaking developing and building
housing projects approved before the 31st day of March, 2007 by a
local authority shall be hundred per cent of the profits derived in the
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 such construction,--
2.12 On a careful perusal of the language of this sub-section the
following points emerge. Word "and" has been used between
"developing1 and " building' housing project. In the following
conditional clause also the word 'and' has been used between the
words development and construction. Use of the word "and"
clearly brings out that both the conditions need to be cumulatively
satisfied by the eligible business for getting the deduction. It
indicates that the housing projects should not only be built but also
to be developed by the assessee so as to make its income qualify
for deduction.
2.13 In normal parlance it may be possible that these two words are
used interchangeably, but the statute uses both the words specifically
with 'and' in between. From the usage of both the words, it is implied
that these two words have different meaning and both have to be
simultaneously satisfied. It follows that these words have a special
and separate meaning in the given context and also means that there
is a special condition that the enterprise must be not only a builder
but also a developer. In our case the assessee constructed the
houses as per the agreement with the Society. It Is to be examined
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as to whether the assessee has developed the housing project and
whether the assessee can be called a 'developer' within the meaning
of section 80-1B(10)?
2.14 Assessee in its reply had submitted that the housing project had
satisfied all the conditions required under section 80IB viz. (i) the
area of the land is more than one acre (ii) Built up area of each unit
is below 1500 sft (iii) there is no commercial area or it is less than
the limit prescribed and (iv) the project approval and completion are
within the time limits allowed by the Act. Contention of the assessee
in this respect is duly considered. These are physical parameters
which have to be satisfied by an undertaking developing and building
housing projects. As discussed in the above paragraphs, the point in
issue is not the satisfaction of physical parameters but whether the
assessee is a developer within the meaning of the word and context
of the developer used in section 80IB.
2.15 The amended provisions of section 80IA which are in pari
materia with section 80IB were interpreted by a Larger Bench of the
ITAT Mumbai in the case of M/s B.T Patil & Sons Belguam
Construction Private Ltd in ITA Nos 1408 & 1409/PN/2003, where
in it has been held.
"39. We find it as an undisputed position that the words
"developer' and: `contractor' have not been defined in or for the
purposes of section 80-IA. The primary question which arises is
that how to find out the meaning of a word or an expression
which is not defined in the Act. It is a settled legal position that
ordinarily the meaning or definition of a word used in one
statute cannot per se be, imported into another as has been
held by the Hon'ble Supreme Court in the case of Union of India
Vs. R.C.Jain [(1981) 2 SCC 308], Therefore, the meaning of the
words developer and contractor, as put forth before us by the
rival parties from other legislations, be they State or Central
enactments, cannot be automatically applied in the present
context. In order to ascertain the meaning of a word not
defined in the Act, a useful reference can be made to the
General Clauses Act, 1897. If a particular word is not defined in
the relevant statute but has been defined in the General
Clauses Act, such definition throws ample light for guidance and
adoption in the former enactment. According to section 3 of the
General Clauses Act the definitions given in this Act shall have
applicability in all the Central Acts unless a contrary definition is
provided of a particular word or expression. On scanning
section 3 of the General Clauses Act we observe that neither
the word "contractor' nor "developer' has been defined therein.
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Thus, the General Clauses Act is also of no assistance in this
regard. Going ahead, when these words are neither defined in
the Income Tax Act, 1961 nor in the General Clauses Act, the
next question is that where from to find the meaning of such
words. There is no need to wander here and there in search of
answer which has been aptly given by the Hon'ble jurisdictional
High Court in the case of Abdulgafar A.Nadiadwala Vs. ACIT and
Ors. [(2004) 267 ITR 488 (Bom,)] wherein the Hon'ble High
Court was looking into the meaning of the words "goods' and
"merchandise', which are not defined u/s. 80HHC in the context
of Income Tax Act, 1961. The Hon'ble High Court held that: "it
is well settled that in the absence of there being anything
contrary to the context, the language of a statute should be
interpreted according to the plain dictionary meaning of the
terms used therein". Similar view has been expressed by the
Hon'ble Supreme Court in the case of CWT Vs. Officer-In-
Charge (Court of Wards), Baigah [(1976) 105 ITR 133 (SC)] in
which it was held that the ordinary dictionary meaning of a
word cannot be disregarded.
40. Coming back to our point of ascertaining the meaning of
the words "contractor' as well as "developer', which have
neither been defined in the Income Tax Act nor in the General
Clauses Act, we fall upon Oxford Advanced Learner's Dictionary
to find out their meaning, According to this dictionary
"developer" is a person or company that designs and creates
new products, whereas "contractor" is a person or a company
that has a contract to do work or provides services or goods to
another. The New Shorter Oxford Dictionary defines the word
"contractor" as : "A person who enters into a contract or
agreement. Now chiefly spec. a person or firm that undertakes
work by contract, esp. for building to specified plans". In the
light of the meaning ascribed to these words by the dictionaries
it is observed that the developer is a person who designs and
creates new products. He is the one who conceives the project.
He may execute the entire project himself or assign some parts
of it to others. On the contrary the contractor is the one who is
assigned a particular job to be accomplished on behalf of the
developer. His duty is to translate such design into reality.
There may, in certain circumstances, be overlapping in the
work of developer and contractor, but 'the line of demarcation
between the two is thick and unbreachable. When the person
acting as developer, who designs the project, also executes the
construction work, he works in the capacity of contractor too.
But when he assigns the job of construction to someone else,
he remains the developer simpliciter, whereas the ' person to
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whom the job of construction is assigned, becomes the
contractor. The role of developer is much larger than that of the
contractor. It is no doubt true that in certain circumstances a
developer may also do the work of a contractor but a mere
contractor per se can never be called as a developer, who
undertakes to do work according to the pre-decided plan."
2.16 In the present case the assessee has entered into an agreement
with the Dharti Vikas Co-operative Housing Society Ltd. for
construction of the housing project as per the plan approved by the
local authority for the Society. The Dharti Vikas Co-operative Housing
Society Ltd. is a legal entity registered under the Gujarat Co op
Societies Act, 1961 with Reg. No GH 21429 dated 30.09.2005. Under
the provisions of this Act, a Society can enter into financial
transactions and own land. The Dharti Vikas Co-operative Housing
Society Ltd. had purchased the land and conceptualized the housing
project. The Dharti Vikas Co-operative Housing Society Ltd. through
its Secretary/president had applied for housing plan approval and got
the permission (rajachitti) to develop in its name. A perusal of the
approval document reveals that the approval for construction of the
project was granted to the Society as per its application. The Society
was directed to abide by the rules arid conditions laid down in the
approval and in case of any violation it was the Society which was
punishable The assessee because of its expertise in construction had
come forward to construct the housing project in accordance with to
the approval received by the Society. The conditions to be satisfied
by the assessee were specified in the Development Agreement
entered by the assessee with the Society.
2.17 As narrated earlier, the development Agreement states that (i)
the proposed land was owned by the Dharti Vikas Co-operative
Housing Society Ltd. and the Society was in complete possession of
the land, (ii) The Dharti Vikas Co-operative Housing Society Ltd. got
a plan approved for the development of the project, (iii) Since the
Dharti Vikas Co-operative Housing Society Ltd, had no expertise in
construction, and the assessee firm had come forward to construct
the project as per the approved plan and had agreed to abide with
the other conditions, (iv) The Society has given possession of the site
to the builder only for the purpose of construction, (v) All other
conditions like admission of prospective buyers as members,
collection of consideration for the land and construction on behalf of
the Society, arrangement of finance if necessary are narrated in this
deed (vi) It Is further narrated that this agreement is being
negotiated because the Society had no organized office and staff
whereas the builder was well organized in this respect. As discussed
above Development and Construction are different words and have
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separate meanings. Therefore this agreement, though called a
Development Agreement, is in essence an agreement for
construction.
2.18 The assessee has stated that complete possession was taken by
the assessee wit all risks and rewards. For this purpose reliance was
placed on some terms of the Development Agreement. However I
find that these stipulations are only intended to make the Society
toothless but they cannot convert by any stretch of imagination an
agreement for construction into a conveyance deed in the eyes of the
law. Therefore, Dharti Vikas Co-operative Housing Society Ltd.
remains the owner of the land as also the property constructed
thereon, since the Society has not transferred the ownership to the
assessee, but has only handed over temporary possession of the land
to the assessee for construction of the houses as per the plan and the
agreement. The assessee remains merely the builder who has agreed
to construct the houses. Reliance in this respect is placed on the
Supreme Court judgment in the case of K Raheja Development
Corporation Vs State of Karnataka [2005] 2 STT 178. In this case
Hon'ble Apex Court was dealing with Karnataka sales Tax Act and the
claim of the ownership of property by the builder based on certain
terms of the Development Agreement so that the turnover tax was
not applicable under that Act, The Hon'ble Supreme Court held
'Appellants would not be owners as admittedly they do not have any
registered sale deeds in their hand. The agreement-relied upon by
Mr. Mehta between the Appellants and the owners of the land is
nothing but a Development agreement. Pursuant to such an
Agreement, plan would be get sanctioned in the name of the owner of
the property. It would be the owner of the property who would then
execute a conveyance directly to the society of purchasers. All that
the appellants have is possessory interest and a right to construct.
Such rights do not constitute the person an owner of the property'.
2.19 The assessee argued that they also appointed the architects,
structural engineers, arranged finance for the project wherever
necessary and took the risks and rewards of the project including the
sale of the units to the prospective buyers. These jobs undertaken by
the builder are as per the Development Agreement but are not very-
much different from that of a civil contractor who wins a contract ;to
build a dam or canal and executes it as per the plan supplied by the
principal according to the terms of the tender document/agreement
or a work order. To execute a contract, the contractor engages
engineers, architects and supervisors, arranges finance for carrying
out the project and also takes the risks and rewards (including the
losses if any) in the work and handsover the completed product- to
the principal. The development agreement in a case like the present
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one is a contract, more specifically a contract for construction in
which the principal is the Society and the builder is the contractor
wh6 undertakes to construct the project as per the plan given to him.
Instead of getting payment directly from the Society for the work
done (including the material in some cases), the builder gets paid by
the buyers after enrolling them as members of the Dharti Vikas Co-
operative Housing Society Ltd. The builder has, in essence, charged
the land value to the Society and retained the construction value as
per the terms of the agreement.
2.20 It was also argued by the assessee that the Society was
created by him and the funds were arranged by him for purchase of
the land. This may be factually correct but it is also a fact that there
is no registration fee for land transaction for societies in the state of
Gujarat and therefore purchase of land is invariably made in the
name of the Societies. Thus to one authority (the State Government),
the assessee represented that the society was the owner of the land
while to-another (the Income tax Department) the assessee claimed
himself to be the owner. An inconsistent stand has been taken
consciously to avoid paying Stamp Duty on one hand and Income tax
on the other. The fact is that the Dharti Vikas Co-operative Housing
Society Ltd is a legal entity created by registration under the
Societies Act with all its legal powers and advantages. A legal entity
created to take advantage of some legal provision can not be brushed
aside for claiming benefits under another statute so as to cause loss
to the exchequer at both points.
2.21 In the instant case as per the agreement, the assesses had
purchased the material and built the housing units as per the plan,
but it had no ownership on the houses, as the land was owned by the
society and the assessee had constructed the dwelling units as per
the agreement entered into with the Society. Looking at the facts
from another angle, the assessee is merely a works contractor
because in a contract for work, the person producing the product has
no ownership in the thing produced as a whole, even if part or whole
of the material used by him may have been his property in the
process. The contractor gets the payment for the material and the
labour alongwith profit as agreed. By use of the material, he will not
become the owner of the whole and he can not transfer the property.
Reliance is placed in this regard on Supreme Court in the case of HAL
Lid. Vs. State of Orissa [55 STC 327 ]and Tamil Nadu Vs. Anandam
Vishwanathan [(1989) 1 SCC 613]. The assessee can not transfer the
ownership of the housing unit constructed to the prospective buyer.
The housing unit has to be transferred by the land owner only, in this
case Dharti Vikas Cooperative Housing Society Ltd. This is also clear
from the Conveyance deeds executed for the sale of units in the
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housing project. The Society has transferred the house (as
transferor) to the buyer (the transferee) and the assessee has been
included in the document only as confirming party to avoid any
litigation in view of the agreement entered by the society with the
assessee for construction.
2.22 To sum up - ;
(a) The Society is a legal entity and it acquired the land and
has to be recognized as the owner of the land.
(b) The Dharti Vikas Co-operative Housing Society Ltd. got the
plan for the housing project approved from the local authority
as owner of the land on which the project was to come up.
(c) It is immaterial whether the assessee approached the
Society or the Society approached the assessee for
construction.
(d) The fact remains that the Society is the principal and the
assessee is a contractor satisfying all the ingredients, of the
contract as discussed above.
(e) Therefore, in the instant case, the assessee is a mere
builder who has entered into an agreement with the Society for
construction of the housing project as per the approval
obtained by the Society for construction on the land owned by
the Society.
(f) It. therefore follows that the assessee is not the
Developer of the project as it is not the designer, creator and
owner of the housing project.
(g) Therefore, it is clear that the assessee is mere builder
and does not satisfy the primary requirement of the section
that the assessee must develop and build a housing project-.
Since the assessee had simply done the work of civil
construction related to the housing project (as per the
agreement entered with the Society) the assessee is not
eligible for deduction under section 80IB(10) as per the
amendment brought to the section 80IB by the Finance Act
2009 w.e.f. 1.4.2001 which is reproduced below.
Explanation.--For the removal of doubts, it is hereby declared
that nothing contained in this sub-section shall apply to any
undertaking which executes the housing project as a works
contract awarded by any person (including the Central or State
Government).
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2.23 It is, therefore, held that the assessee is not eligible for
deduction under section 80IB for the following reasons.
1. The Assessee is not both developer and builder as
required by the provisions of section 801B(10). Assessee is not
a developer because the assessee did not conceptualize and
own the project in as much as the assessee is not the owner of
the land and the approval was not issued to it by the Local
authority.
2. The Assessee entered into the project by a Development
Agreement with the land owner and construction was done as
per the agreement and hence the assessee is merely a
contractor for the purposes of construction of the project.
3. The assessee has not sold any unit to the purchaser but the
Society has executed the sale deeds as a seller and the
assessee joined only as a confirming party to the transaction.
This also proves that the assessee was merely a contractor/
agent of the society.
4. As per the Amendment to section 80IB by the Finance Act
2009, a works contractor who executes the work awarded by
any person is not eligible for the deduction u/s 80IB. Any
person includes the Dharti Vikas Co-operative Housing Society
Ltd., which is a legal entity.
2.24 Thus, the assessee has failed to satisfy the conditions of
section 80IB(10). Therefore, no deduction under this section is
allowed. Penalty proceedings u/s 271(l)(c) are initiated for
furnishing inaccurate particulars of income."
12. Being aggrieved by the said order of the AO, the assessee filed
appeal before the ld. CIT(A) who allowed the claim of deduction u/s
80IB(10) to the assessee by observing as under:-
"4. Ground No.1 is : On the facts and in the circumstances of the
appellant's case, the Assessing Officer erred in disallowing deduction
claimed by the assessee u/s.80IB(10) of the Income tax Act.
Perusal of the assessment order shows that 80IB deduction was
denied by the AO mainly on the ground that the appellant in his view
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worked as the contractor of the housing society which is the owner of
the land and as through the Development agreement the society
which is a separate legal entity assigned construction work of flats to
the appellant.
5. Through written submissions filed from time to time which are
placed on record it was stated that the appellant was given
possession of land by the Society as per Development Agreement and
that the appellant had obtained land possession together with the
Rights to develop and construct the project for which the appellant
paid a substantial amount to the society and which was debited in the
P&L Account.
Vide written submission received in this office on 23.8.2010 it was
informed that Rs.3,42,19,630 was paid as cost of obtaining
development rights and this appears on the debit side in the P&L
Account as Land Rights of the year under consideration. Copy of
HDFC Bank account maintained at Ashram Road of the appellant firm
was also given to show payments given to Dharti Samudayik
Sahakari Kheti Man. Ltd. Part-1A (the co. operative housing society)
in FY 2005-06. The ledger account of the society was given in
support, which is enclosed as Annexure-1 of this order. Bank
statement of the society was also given and is enclosed as
Annexure-2 of this order showing the payment made by the
appellant received by the society.
6. It is seen that the AO has not disputed that the appellant did not
fulfill any of the conditions specified in section 80IB(10) from clause
(a) to (d) with respect to approvals from local authority, completion
of project within the specified time limits, one acre of land condition,
1500 sq.ft. built up area condition of each unit in the project and that
of percentage of construction for commercial use. His objection is
that the appellant is not the owner of the land. This objection of the
AO has to be seen in the light of the tests laid down by Hon'ble ITAT
Bench A Ahmedabad decision in the case of M/s.Shakti Corporation,
Baroda in ITA No.1503/Ahd/2008 in AY 2005-06. But here the
appellant has been found fulfilling the conditions laid down in section
80IB (10) of the Income Tax Act and has also been found meeting
the tests laid down in Hon'ble ITAT Bench A Ahmedabad decision in
the case of M/s.Shakti Corporation, Baroda in ITA No.1503/Ahd/2008
in AY 2005-06 and as it had practically purchased the land and it
bore the entire cost and risk of developing the project that is why in
my view it is eligible for deduction u/s.80IB(10) and the AO is
directed to allow the same."
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13. The ld. DR supported the order of the AO and relied on clause nos.12,
16, 19, 22, 25 and 30 of the Development Agreement dated 21.10.2005
and submitted that the assessee was acting as a contractor for construction
of house property and was not a developer of the property which would be
observed from the reading of the above clauses of the Development
Agreement.
14. On the other hand, the ld. AR of the assessee supported the order of
the ld. CIT(A). He pointed out that as per clause 30 of the Development
Agreement dated 21.10.2005, the assessee was entitled to the entire sale
proceeds of the flats constructed in the project which was shown by the
assessee as its sale proceeds in the Profit and Loss account. It was thus
submitted that the entire profit or loss from the housing project belonged
to the assessee and the assessee was entitled to the risks and rewards of
the projects. It was therefore his submission that the assessee was a
Developer and not a Contractor. He further filed before us a chart
comparing the covenants of the Development Agreement with the decision
of Radhe Developers rendered by the Jurisdictional High Court reported at
341 ITR 403 (Guj) to demonstrate that the facts of the assessee's case
were similar to the facts that were before the Hon'ble Gujarat High Court in
the case of Radhe Developers. It was therefore his submission that the
case of the assessee was squarely covered by the decision of the Hon'ble
Gujarat High Court in the case of Radhe Developers in favour of the
assessee. Hence, it was prayed that the order of ld. CIT(A) should be
confirmed.
15. The chart filed by the ld. AR of the assessee is as follows:-
Covenants of In Radhe Developers In Unique City Homes
Development ( 341 ITR 403) (assessee)
Agreement
Para 25 of order The party of the third Part is connected The parties of the second part are doing the
Clause 3 with the construction of business since business of construction of the land. They
many years and has experience of are conversant with the activities of to
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constructing residential houses. make construction on the land and the
connected activities of the development of
land for construction agencies like Project
Consultant Engineer, Contractor, Sub-
contractor, Architect, Surveyor, etc. and
they are able to easily obtain their services,
these administrators are well known and
experience and they have stated this firm to
do the business of the construction for
getting profit. (Page 5)
Para 25 of order With the consent of The Party of the The said land under Draft T.P. Scheme No.
Clause 4 First and Second Part, The Party of the 29 allotted Proposal Final Plot No.28/1 to
Third Part as a developer and builder the land admeasures 55170 sq. mt. and the
wants to do a project/scheme of land described in this Agreement being
constructing residential houses having 46560 sq. mts. particulars of which is
area less than 1500 sq. ft. for the middle shown in Schedule, in the same for making
class society. plots for residential purpose and for
making construction for residential
purpose bungalows, tenements, row
houses, as per the approved plans and for
developing all lands and to organize all
work of construction, to coordinate, to
search for members, to obtain money
etc. for doing all these works, the Party
of Second Part has been appointed as
developer. (Page 8 Para 1)
Para 25 of order The Party of the First and The Party of The party of the First part in their
Clause 5 the Third Part have executed one outgeneral meeting dated 10.10.2005
Agreement of Sale on 18-05-2000 passed unanimously a Resolution No. 2 for
accordingly on that basis the rights of handing over this development work to the
agreement of Sale dated 7-9-91 at the Party of Second Part and for this
rate of Rs. 100/- per Sq. ft. Subject to Development Agreement, the said proposal
other conditions written therein are has been approved by the said meeting and
decided to be purchased by the Party of the President and the Secretary are
the Third Part. authorized to act and make signature on
behalf of the society. The Party of Second
Part in their meeting dated 10.10.2005
unanimously passed a Resolution No. 2
and gave authority to Shri Rajkumar K.
Rai to execute this Development
Agreement on behalf of behalf of the
Partnership firm. Therefore, the Party of
Second Part executes this Development
Agreement with Party of First Part and
both Parties hereby make note of the
understanding made for the
development and the terms and
conditions and duties by this Deed.
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Para 25 of order In fact in The Party of the First and The members of Party of the First Part
Clause 6 Second Part confirming party have no wish to get construct the house on the land
necessary technical knowledge and skill bearing said Final Plot No. 28/1, but the
pass through the said scheme to arrange Party of First Part has never got
for constructing residential houses constructed such type of construction of
having area less than 1500 sq. ft. for thebungalows /tenements on commercial basis
middle class society and also have no or that construction for any other purpose
finance to invest as per the size of of such type has not got carried out in
scheme and to register the members for earlier point of time or that by becoming a
that required alertness and skill being member no members have been obtained
absent they themselves are not in a for such construction and it has no
position to place a project or scheme on knowledge to attract the persons wishes to
the land mentioned in schedule in such obtain such unit of construction. They are
circumstances to The Party of the Third not known in public and market as
part over and above the right to professional or such type of work. They
purchase the rights of Agreement of do not know the suppliers dealing in
Sale on dt.18-05-2000 they have also supply of goods for such construction work
decided to give all rights along with and as the suppliers are unknown they may
constructing and developing on the said not have faith in Party of First Part. Further
land mentioned in schedule by this because of busy schedule of their
Agreement dt.18-05-2000. respective occupations, the office bearers
and members and due to lack of time the
Party of First Part are not able to get of
such big construction on the said land.
The party of First Part has no any
experience of getting construction done.
(Page 4)
Para 25 of order The said Developer cum Building Whatever the developer has to make
Clause 9 Contractor by doing discussions with construction as a part of development of
The Party of the First and Second Part the said land, the plans, elevation, sections,
confirming party, to bring the scheme in drawings etc. of the said construction has
reality of constructing houses and get to be got prepared and whatever the
through it, has to do construction materials that has to be used in the
according to necessary plans, drawings, construction, and whatever the
specifications and maps etc. go passed specification are there, in that regard after
from Vadodara Municipal Corporation. the discussion with the Architect of the
Scheme, the same has to be carried out and
whatever it is necessary regarding the same
has to be obtain from the authorities. (Page
12 para 3)
Para 25 of order To appoint Architect Engineers, Legal The party of second part has made huge
Sub-clause 1 to Advisor and such professionals whose expenses for this project and since then
Clause 11 services for completing this scheme is as the possession of the land was with
necessary and by deciding their area of the party of second part, it has made
operation to fix-up their remuneration expenses for work like taking care, to
and fees etc. and for that to bear all prepare plans for development,
expenses, to execute agreements so that plantation of trees, to prepare common
the construction work of this project can plots etc. (Page10 para 1)
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be completed successfully.
They are conversant with the activities of
to make construction on the land and the
connected activities of the development of
land for construction agencies like Project
Consultant Engineer, Contractor, Sub-
contractor, Architect, Surveyor, etc. and
they are able to easily obtain their services.
(Page 5)
Para 25 of order To complete this scheme as per his The party of second part developer
Sub-clause 2 to discretion he can given sub-contract, themselves or with any other jointly shall
Clause 11 labour contract etc. but while doing carry out the work of development of the
such appointments it is to be kept in said property under this agreement or all
mind that the responsibility of the proceedings connected to it. The party
construction of this project is/shall be of second part shall have right to
on him that is on Developer cum transfer, assign or dispose of in any
Contractor. manner, whole or part rights, benefits,
or duties under this agreement,
completely or partly to any other person
on any conditions or with understanding
after consulting the party of first part.
(Page 15 para 9)
Para 25 of order The said Developer cum Building Generally as per the instruction of the
Sub-clause 3 to Contractor is authorized to admit the Party of Second Part, the Party of the
Clause 11 persons who are willing to join in the First Part shall have to accept the
scheme to get the houses of fixed area purchaser of the Unit as a member of
and in this manner to admit the the society, but without the
respective member in the scheme or at recommendation of and taking into
the time of admission of such member confidence the Party of Second Part no
as per the scheme the fixed amount of person shall be entertain as member in the
contribution of construction and other society. (Page 17 Para 11)
amounts and incidental expenses that
the admitting members shall have to pay
as admission fees the receipt of deposit
or a clear receipt of amount contribution
shall have to be given, moreover the
Developer cum Building Contractor has
given full right and authority also to
decide the price of houses of this
scheme and to execute necessary
agreements with the purchasers of
houses.
Para 25 of order Whatever the construction contribution The party of second part can receive
Sub-clause 4 to and other contributions or other deposits and accept the membership fees, charges
Clause 11 etc. that the said Developers cum regarding unit, land fund, allotment fee,
Building Contractors shall from time to parking place charges, maintenance
time demand from the respective charges, and development charges from
members by issuing a legal notice and such persons or institute in their name
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in this manner as per the notice of the or in any other name. (page 21 para 18)
Developer cum Building Contractor to
the member admitted in scheme not
paying the amount out of the deposit by
deducting damages/loss remaining
amount shall be returned and to delete
the name of that admitted member the
authority shall remain with the
Developer Cum Building Contractor.
Regarding this whatever decision that it
shall be taken by the Developer Cum
Building Contractor shall be agreeable
and binding on the Party of the First
Part.
Para 25 of order The said Developer cum Building The scheme for the construction on the
Sub-clause 6 to Contractor as per the scheme whatever said land which has been prepared by the
Clause 11 the changes he would do thereafter in Party of Second Part taking in confidence
nature of final scheme, the terrace, open the Party of the First Part, will be binding
land, ladder and common amenities to the Party of First Part and in future, the
shall be received by the member persons purchasing the units of the scheme
entering/admitting in the scheme as per and their committee. The Party of First
the agreement he shall receive the Part gives authority to the Party of the
property and the decision of the Second Part to allot the different units
Developer cum Building Contractor of that may be constructed under the said
allotment of property to the respective scheme, along with marginal and open
person shall be final for The Party of the terrace, Parking Place, and any place in
First and Second Part and shall be the scheme and to transfer the same in
agreeable and binding to the person any manner. (Page 14 Para 8)
registered as a member without any
dispute.
Para 25 of order That the said Developer cum Building For the construction that has to be carries
Sub-clause 8 to Contractor in order to complete the out on the land, for its preparation, for
Clause 11 scheme in order step by step but in beginning with the construction, for
prescribed time period, The Party of the completion of the construction, for its
First and Second Part and all the disposal of it, as per the rules from time to
members desirous in joining in the time in existence, necessary permission,
scheme Developer cum Building certificate, consent, confirmation etc. are
Contractor whenever and wherever they required to be obtain from such officers,
need the signatures and admissions, and for that purpose, the party of first part
they shall have to give that to the has to give all co-operation and to be
Developer cum Building Contractor and helpful to the party of second part (page 14
in special circumstances Developer cum para 7)
Building Contractor in order to
complete the scheme in order step by
step in prescribed time period, shall be
entitled to receive General Power of
Attorney from The Party of the First
and Second Part.
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Para 25 of order To complete this scheme in the The party of second part for attracting and
Sub-clause 10 prescribed time period and for the for inviting the persons who can become
to Clause 11 purpose of admitting the members in the purchaser, can prepare any type of
scheme, to give advertisement of the pamphlet, brochure and shall contribute as
total or partial scheme in local news the party of second part thinks proper and
reasonable for the construction that is to be
paper or to print out its booklet, to place
sign board, neon board on site the rights carried put in the said scheme can give
and authorities are hereby given to the advertisement in magazine and daily
Developer cum Building Contractor. newspaper and can put simple sign board
and neon light and can advertise the
scheme in different ways. (page 20 para
17)
Para 25 of order That by the said the Party of the First The Party of Second Past shall have to give
Sub-clause 12 and Second Part have given all the effect in the books of account the expenses
to Clause 11 authorities to Developer cum Building incurred by the Party of Second Part,
Contractor, for completing the scheme authorized person appointed by them,
of constructing residential houses and payment of amount and expenses and
incidental work there to and therefore payment of amount made in regards to the
the said Developer cum Building scheme to be carried out in the said land
Contractor has to complete this scheme incurred under this agreement shall be
as per his own talents, whatever he treated as expended for the construction
deems proper as per his discretion and scheme to be carried out on the said land.
decisions. The accounts right from the If it is the wish of the Party of Second Part,
implementation of this Agreement up to then all such expenses and payment of
the completion of the project, Developer amount shall be made from the society.
cum Building Contractor has to (Page 25 Para 25)
maintain in his office in his books of
accounts and it is the liability and
responsibility of Developer cum
Building Contractor the Party of the
Third part to fully recover the
consideration from the members.
Para 25 of order As per this scheme Developer cum The party of second part shall decide the
Sub-clause 13 Building Contractor has given price of the property to be allotted to the
to Clause 11 incidental lump sum estimate of price allottee for the units to be constructed
for the residential houses to be on the land, future allottee, along with
constructed but as per the step-stage the members and allottee, taking into
wise development of the scheme and as consideration proper and reasonable
per the changes Developer cum facts and circumstances. (Page 24 para
Building Contractor is authorized to 24)
revise the estimate and that shall always
be agreeable and binding to the
members.
Para 25 of order The land described in schedule below Till the time the scheme of construction in
Sub-clause 14 and the construction done on it, its the said land is complete, and all the
to Clause 11 actual possession shall be with amounts of the projects are receives and
Developer cum Building Contractor till obtained from different persons, and the
the completion of this scheme and Party of Second Part get and receive
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moreover till the total implementation complete amount of their job, the
of this agreement on the said land and possession of the said land and complete
the construction over it there shall be a construction over the same shall remain
contractual lien of the Developer cum completely in possession of the Party of
Building Contractor. Second Part and Party of Second Part can
make transaction of the part or dispose of
or transfer the same as they think proper.
As stated in the aforesaid para the Party of
Second Part shall transfer or dispose of the
construction that is to be carried out on the
said land in the manner as think fit by them
and such construction shall remain in
possession of the Party of Second Part till
the scheme is completed. Till the amount
of any unit is not received and recovered,
the Party of Second Part will have charge
and lien over such unit and Property of the
scheme. (Page 27 Para 31 & 32)
Para 25 of order With the consent of The Party of the Further it is clarified that the developer
Sub-clause 15 First and Second Part the scheme taken will be entitled/responsible for the
to Clause 11 on hand its liability of project is on profit, income, or loss occurred form
Developer cum Building Contractor and this project, i.e. after deducting the
therefore during the working of the amount that is to be recovered by the
project in this scheme by the society from whatever the amount
agreements or otherwise whatever the received from the members of this
transactions are entered into with third project, the whatever loss or income,
parties the liability of those transactions profit or loss will be the complete
shall be Developer cum Building responsibility of the Developer and
Contractor and in this manner in the Society will not be entitled/responsible
agreements with third parties The Party for the same. In such way, for the
of the First and Second Part have/shall calculation or proposed profit or loss, the
not have any liability hence any suit for Developer can adopt the Accounts System
loss, damages or compensation on site decided by them and Society will have to
cannot be a liability of The Third Part of raise any objection
the First and Second Part. (Page 27 Para 30)
Para 25 of order The amount of total collection received This agreement shall remain in force till
Sub-clause 24 from person becoming member in this the full amount of this scheme and the
to Clause 11 scheme out of that the amount shall amount of unit are received from the
become payable to The Party of the persons who booked the unit in the scheme
First that is paid to Second Part by them carrying out on the said land and the said
and to The Party of the First shall be scheme is fully completed and all the units
entitled to receive consideration as per are disposed of by the Party of Second Part
the Agreement dt.18-5-2000 and after and all the amounts being paid to the Party
deducting that remaining all amount of the Second Part, their Agents, Sub-
shall be received by The Party of Third contractors, Financial. ( Page 29 Para 34)
Part as his remuneration."
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16. We have heard the rival submissions and perused the orders of the
lower authorities and the material available on record. In the instant case,
the assessee claimed deduction u/s 80IB(10) of the Act in respect of profit
derived from Housing Project relating to Dharti Vikas Co-Operative Housing
Society Ltd which was denied by the AO. The AO denied the said claim of
the assessee on the ground that in his opinion the assessee was not a
Developer of the said Housing Project but was merely a Contractor. The
opinion of AO was based on the fact that the land on which housing project
was constructed was owned by Dharti Vikas Co-Operative Housing Society
Ltd and at the time of sale of flats the Conveyance Deed was executed by
the said Society in favour of the purchaser and in the said Conveyance
Deed the assessee was made a confirming party.
17. Apart from the agreement entered into with the said Dharti Vikas Co-
Operative Housing Society Ltd and the assessee, the AO also verified the
approval plan of the Housing Society and observed that the approval for
the Housing Project was obtained in the name of the said Housing Society.
18. According to the AO, as the land was owned by the Housing Society
the building constructed thereon by the assessee became the property of
the Housing Society and therefore, even though the agreement between
the assessee and the said society was termed as Development Agreement
but in essence it was merely a Construction Agreement and the assessee
has no right to transfer the constructed flat and therefore the assessee was
merely a Contractor.
19. On an appeal against this order of the AO, the ld. CIT(A) reversed the
decion of the AO and allowed the claim of the assessee for deduction u/s
80IB(10) of the Act. The ld. CIT(A) found that the assessee paid
Rs.3,42,19,630/- to the Society for acquiring development rights in the
land and debited that amount in its Profit and Loss Account.
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20. Further, he found that the AO has accepted that all the conditions
specified in Section 80IB(10) was satisfied in the instant case like area of
land, approval of local authorities, period of completion, size of each units,
and permissible commercial use, etc. The only dispute relates to the
ownership of the land and on this ground the issue is covered in favour of
the assessee by the decision of the Ahmedabad Bench of the Tribunal in the
case of M/s. Shakti Corporation, Vadodara in ITA No.1503/Ahd/2008 in AY
2005-06. The ld. CIT(A) therefore held that as the assessee has practically
purchased the land and it bore the entire cost and risk of developing the
project that is why in his view it was eligible for deduction u/s 80IB(10) and
directed the AO to allow the same.
21. Before us, the ld. DR supported the order of the AO and contended
that on a reading of the agreement dated 21.10.2005 placed at page nos.
161 to 200 of the paper book filed by the assessee entered into between
the assessee and the said society shows that assessee was merely a
contractor and not the Developer. He pointed out from clause 12 of the said
agreement that it shows the assessee had no right to sell the constructed
flat. He also pointed out from clause 16 of the agreement that all the work
done by the assessee under the agreement was done by him as an Agent
of the Society and not as a Principal and the assessee was not responsible
for the work done or not done under the agreement.
22. On the other hand, the ld. AR of the assessee supported the order of
the ld. CIT(A). He relied upon clause 19 & 30 of the agreement and
contended that these clauses show that the assessee was for all practical
purposes given the possession of the land and was responsible for
development of Housing Project thereon and received money by selling the
constructed flats thereon and all the profit and loss on sale of the
developed property belonged to or was borne by the assessee. Thus, the
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entire risk and rewards of the development of the property was of the
assessee, housing society was paid by the assessee adequate consideration
for land and development rights thereon and possession was received by
the assessee against that consideration. Thus the assessee was the real
developer of the housing project and therefore, the ld. CIT(A) was justified
in allowing deduction u/s 80IB(10) to the assessee. He also relied upon the
decision of the Jurisdictional High Court in the case of ACIT v. Someshwar
Developers in Tax Appeal No. 1300 of 2008, order dated 11.01.2012 and
pointed out that therein the decision of the Hon'ble Supreme Court in the
case of K. Raheja Development Corporation v. State of Karnataka, (2005) 2
STT 178, was duly considered by the Hon'ble High Court and thereafter the
issue was decided in favour of the assessee.
23. We find that the relevant clauses of the agreement dated 21.10.2005
read as under:-
"12. Generally the purchasers of the Units, the persons wish to
obtain the construction, who have been recommended by the
Developer to give membership shall be given membership on giving
consent that he will obey the by-laws of the society from time to
time, regulations, resolutions and decision. But the decision of the
society will be final as to any person shall be entertained in the
society and obtain membership and the same shall be conclusive and
final and binding to all the concerned.
16. With regard to the project that has to be carried out in the said
land, and the works whether done or not done in connection with it,
writings, matter or articles done on the basis of this agreement shall
be treated as done by the Party of First Part as Agent of the Party of
First Part and the Party of Second Part shall not be responsible in that
regard.
19. The Party of Second Part shall have to complete this project as
early as possible. Therefore, for early completion of the said project
in time limit, for the purpose of completing the said scheme for the
purpose of obtaining money, if whenever the necessity of arises and
as far as possible, the Party of First Part gives consent and authority
to the Party of Second Part to mortgage the land and construction
over the same.
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22. With regard to the money paid to the Party of Second Part for
Project that is carried out in the said land, the Party of Second Part
has to regularly and properly maintain Accounts and Books
concerning the same and have also to maintain the Accounts of
expenses incurred. The Party of Second Part can obtain services of
anybody for maintaining proper and true Accounts and maintaining
record at the cost of Association and can also obtain services of such
person who for maintaining record of the Project that is carried out in
the said land and can pay salary and amounts. The Party of Second
Part has to get audited and certified such Account Books from the
Chartered Accountant. If the said Accounts are audited and certified
by the Chartered Accountant, then the same will be final and binding
to all the concerns and in that circumstances, the Party of Second will
be released from the duties and responsibilities for accuracy of
maintaining such Accounts and maintaining the record properly and
thereafter the Party of Second will be released from any inquiry or
clarification from the society of the scheme, its members, Party of
First Part or any other in that regard.
25. The Party of Second Part shall have to give effect in the Books
of Account the expenses incurred by the Party of Second Part,
authorized persons appointed by them, payment of amount and
expenses and payment of amount made in regard to the scheme to
be carried out in the said land incurred under this agreement shall be
treated as expended for the construction scheme to be carried out on
the said land. If it is the wish of the Party of Second Part, then all
such expenses and payment of amount shall me made from the
society.
30. Further it is clarified that the developer will be entitled /
responsible for the profit, income, or loss occurred from this project,
i.e. after deducting the amount that is to be recovered by the society
from whatever the amount received from the members of this
project, the whatever loss or income, profit or loss will be the
complete responsibility of the Developer and Society will not be
entitled / responsible for the same. In such way, for the calculation or
proposed profit or loss, the Developer can adopt the Accounts System
decided by them and the Society will have to raise any objection."
24. We find that from clause 12 of the agreement, it cannot be contended
that the assessee has no right to sell the flat of the developed housing
project as contended by the ld. DR. A reading of the said clause shows
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that the intending purchaser will be recommended by the assessee only.
On recommendation of the assessee the Housing Society may agree or may
not agree with the recommendations of the assessee. When society agree
with the recommendation of the assessee, the intending purchaser will be
admitted as a member of the society and to that intended purchaser flat
will be sold. Thus, it is noticed that the intending purchaser will be decided
only on recommendation of the assessee and therefore, it cannot be said
that the assessee had no right to choose the purchaser of the developed
flat in the project under consideration.
25. Further from a perusal of clause 16 it cannot be concluded that the
assessee was merely a Contractor and not Developer. From the said
clause, it cannot be concluded that the risk and reward of the Housing
Project was not that of the assessee. On the other hand, the clause No.30
of the agreement shows that the assessee is entitled to sale proceeds of
the flat of the Housing Project under consideration and consequently, the
profit or loss arising from the project was the profit or loss of the assessee.
Thus, from the above clause, it cannot be held that the assessee was a
mere contractor and risk or reward of the housing project was not of the
assessee but of any other person.
26. In the instant case, it is not in dispute that the entire sale proceeds of
the flats of the Housing Property in question was recognized by the
assessee as its revenue and profits of the assessee was computed on the
basis of the said sale proceeds. Thus, we find from the entire facts and
circumstances of the case and on a reading of the agreement as a whole
that the development of the Housing Project in question was undertaken by
the assessee, the entire risk and reward of the Housing Project in fact
belonged to the assessee and therefore, in our considered view, the
assessee cannot be held as a Contractor only and not a Developer within
the meaning of Section 80IB(10) of the Act. Our above view finds support
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from the decision of the Hon'ble Jurisdictional High Court in the case of
Someshwar Developers (supra); wherein the question before the Hon'ble
High Court was as under:-
"Whether on the facts and circumstances of the case, the Tribunal was
right in law in allowing benefits under Sec.80IB(10) of the Act, when the
approval of the local authority as well as completion certificate was not
granted to the assessee, but to the land owners and rights and obligations
under the said approval were not transferable, and when transfer of
dwelling units in favour of end users was made by the land owners and
not by the assessee?"
27. The Hon'ble High Court has held as under:-
"5. The central question is as to whether the respondent assessee is eligible
for the benefit under Section 80IB. As can be culled out from the record, both
CIT(Appeals) as well as the Tribunal had allowed the deduction to the assessee
respondent under Section 80IB(10) read with Section 80IB(1).
6. As candidly pointed out to us by the learned counsel, this Bench in Tax
Appeal No.546 of 2008 and allied appeals in case of Commissioner of Income-
Tax vs. Radhe Developers decided the identical question of law on 13.12.2011.
As the present appeal also arise in similar factual background leading to the
same question of law, instead of giving independent reasonings to the question
proposed, relevant findings arrived at in case of Radhe Developers(supra)
would be appropriate to be reproduced for the purpose of deciding the present
appeal.
"3. In Tax Appeal No.546 of 2008 (M/s. Radhe Developers), the assessee
had claimed deduction under Section 80IB(10) of the Income Tax Act, 1961
( "the Act" for short) of Rs.24,75,940/- on the premise that such income was
derived from the business of the undertaking developing and building
housing project approved by the local authority. To execute such housing
project, the assessee had entered into a development agreement with
Vinodbhai Nathabhai Patel (HUF) and others as party of the First Part and
heirs of deceased Ambalal Motibhai Patel as party of the Second Part. In
the said development agreement dated 18.5.2000, the assessee was
referred as a party of the Third Part. The party of the Second Part
represented the land owners and party of the First Part represented those,
who had previously entered into an agreement to purchase such land.
Under this development agreement, the assessee agreed to develop the
land belonging to party of the Second Part on certain terms and conditions.
We would refer to relevant terms and conditions at a later stage.
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4. On the same day i.e. 18.5.2000, the land owners entered into an
agreement to sell the land in question to the assessee. The assessee
was described as purchaser and the original land owners i.e. the
heirs of deceased Ambalal Motibhai Patel were described as party of
the Second Part or the sellers.
5. The Assessing Officer, however, rejected the assessee's claim for
deduction under Section 80IB(10) of the Act. The Assessing Officer
was of the opinion that the assessee firm was not the owner of the
land. Approval by the local authority as well as permission to develop
the project and permission to commence construction were not in the
name of the assessee firm. The Assessing Officer was also of the
opinion that the assessee had merely acted as an agent or a
contractor for construction of residential houses.
6. The assessee carried the matter in appeal. CIT(Appeals) vide
order dated 19.9.2006 rejected the assessee's appeal. CIT(Appeals)
put considerable stress on the requirement of ownership of the land to
qualify for deduction under Section 80IB(10) of the Act. He was of the
opinion that the land is intrinsic and inalienable part of the housing
project. No assessee, therefore, could carry on the business of
undertaking developing and building housing projects without owning
the land.
7. The assessee carried the matter further in appeal before the
Income Tax Appellate Tribunal (" the Tribunal" for short). The Tribunal
vide its impugned judgment dated 29.6.2007 allowed the assessee's
appeal and reversed the orders passed by the Revenue authorities.
The Tribunal based its order on two aspects. Firstly, the Tribunal was
of the opinion that for deduction under Section 80IB (10) of the Act it is
not necessary that the assessee must be the owner of the land.
Second aspect of the Tribunal's judgment was that even otherwise
looking to the provisions contained in Section 2(47) of the Act, read
with Section 53A of the Transfer of Property Act, by virtue of the
development agreement and the agreement to sell, the assessee had,
for the purpose of Income Tax, become the owner of the land. The
Tribunal, accordingly, allowed the assessee's appeal directing the
Assessing Officer to grant deduction under Section 80IB(10) of the
Act. The Revenue is, therefore, in appeal before this Court.
8. Second stream of appeals led by Tax Appeal No.733 of 2009
(M/s. Shakti Corporation) arises in the following background.
8.1 Here also the assessee had claimed deduction under Section
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80IB (10) of the Act on the ground that the income was derived from
the business of the undertaking developing and building housing
projects approved by the local authority. The Assessing Officer
disallowed the claim primarily on the ground that not being the owner
of the land, the assessee was not eligible for deduction under
Section 80IB(10) of the Act.
8.2 In appeal, CIT(Appeals) followed the decision of the Tribunal in
case of M/s. Radhe Developers, which was by then available. This
decision of CIT(Appeals) was challenged by the Revenue before the
Tribunal. Revenue contended that the assessee's facts were different
from those involved in the case of M/s. Radhe Developers. The
Revenue pressed in service the decision of the Apex Court in the
case of Faqir Chand Gulati vs. Uppal Agencies Private Limited and
another reported in (2008) 10 SCC 345 to contend that for an
assessee to seek benefit under Section 80IB (10) of the Act, he must
show his ownership over the land in question.
8.3 The Tribunal, though did not accept the Revenue's stand; in view
of the decision of the Apex Court in the case of Faqir Chand Gulati
vs. Uppal Agencies Private Limited and another (supra), made a
minor departure from its own decision in the case of M/s. Radhe
Developers. The Tribunal confined its view in its judgment dated
7.11.2008 on the aspect of the ownership of the land. Considering
the terms and conditions of development agreement and other
documents on record, the Tribunal was of the opinion that the benefit
of section 80IB(10) of the Act to the assessee could not be denied.
8.4 The Tribunal held that the assessee had acquired dominion over
the land, which he had developed by constructing housing project
incurring expenses and also taking risks. The Tribunal, however,
observed that decision in the case of M/s. Radhe Developers would
not apply in cases, where the assessee had entered into an
agreement for a fixed remuneration and worked merely as contractor
to construct the housing project on behalf of the land owners. In such
a case, agreement between the assessee and the land owner would
not permit the assessee to claim the benefit.
9. In the case of M/s.Shakti Corporation, since the assessee had
produced documents on record, the Tribunal accepted its case for
benefit under Section 80IB(10) of the Act. However, in group of other
cases, which the Tribunal was disposing off by the said common
judgment, such documents were not readily available. The Tribunal
remanded the proceedings to the Assessing Officer with a direction
that the Assessing Officer should look into the agreement entered
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into in each case by the land owner and decide whether the
assessee had in fact purchased the land for a fixed consideration
and had developed a housing project at its own cost and risk. If it
was so found, the Assessing Officer should allow the deduction
under Section 80IB(10) of the Act. On the other hand, if the
Assessing Officer found that the developer had acted on behalf of the
land owner and received only a fixed consideration for developing the
housing project, the assessee would not be eligible for deduction
under Section 80IB (10) of the Act. This common judgment in the
case of M/s. Shakti Corporation is also in appeal before us at the
hands of the Revenue. We may record that the assessees have
accepted the judgment and not carried the issue further before us.
xxx xxx xxx
28. From the above documents on record and the statutory provisions
brought to our notice, it is necessary for us to examine whether the
Tribunal was justified in granting benefit to the assessees under Section
80IB(10) of the Act. As already noted, the Tribunal in the case of
M/s.Radhe Developers proceeded on the footing that Section 80IB (10)
does not require that the developer must also be an owner of the land
and further that in any case, the assessee by virtue of agreement with
the land owners, should be deemed to have acquired ownership of the
land in view of the provisions contained in Section 2(47) of the Act and
Section 53A of the Transfer of Property Act. Taking into account the first
limb of the Tribunal's decision, we notice that erstwhile Section 80IA of
the Act was bifurcated with effect from 1.4.2000. The provision for
deduction of income derived from development of housing project was
introduced in Sections 80IB
(1) and (10) of the Act, which for the purpose of these cases, at the
relevant time, read as under:-
"80IB.(1) Where the gross total income of an assessee includes any
profits and gains derived from any business referred to in sub-
sections(3) to [(11) and (11A)]] (such business being hereinafter referred
to as the eligible business), there shall, in accordance with and subject to
the provisions of this section, be allowed, in computing the total income
of the assessee, a deduction from such profits and gains of an amount
equal to such percentage and for such number of assessment years as
specified in this section.
(10) The amount of profits in case of an undertaking developing and
building housing projects approved [before the 31st day of March, [2005]]
by a local authority, shall be hundred per cent of the profits derived in
any 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 or or after the 1st
day of October, 1998;
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(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 kilometres from the
municipal limits of these cities and one thousand and five hundred
square feet at any other place."
29. From the above provisions it can be seen that Section 80IB(10)
provided for deduction of the entire amount of profits of an undertaking
derived from the business of developing and building housing projects
which were approved by the Local Authority before the specified date.
Such deduction, however, was subject to certain conditions, namely, that
such undertaking had commenced development and construction prior to
a specified date and that the project was on the size of a plot of land
with a minimum area of 1 acre and the residential unit had maximum
inbuilt area of 1500 sq.feet, (except in cases of cities of Delhi and
Mumbai, where maximum area permitted was 1000 sq.feet.)
30. The essence of sub-Section (10) of Section 80IB, therefore,
requires involvement of an undertaking in developing and building
housing projects approved by the local authority. Apparently, such
provision would be aimed at giving encouragement to providing housing
units in the urban and semi-urban areas, where there is perennial and
acute shortage of housing, particularly, for the middle income group
citizens. To ensure that the benefit reaches the people, certain
conditions were provided in sub-Section(10) such as specifying date by
which the undertaking must commence the developing and construction
work as also providing for the minimum area of plot of land on which
such project would be put up as well as maximum built up area of each
of the residential units to be located thereon. The provisions nowhere
required that only those developers who themselves own the land would
receive the deduction under Section 80IB(10) of the Act.
31. Neither the provisions of Section 80IB nor any other provisions
contained in other related statutes were brought to our notice to
demonstrate that ownership of the land would be a condition precedent
for developing the housing project. It was perhaps not even the case of
the Revenue that under the other laws governing construction in urban
and semi-urban areas, there was any such restriction. It is, however, the
thrust of the argument of the Revenue that in order to receive benefit
under Section 80IB(10) of the Act, such requirement must be read into
the statute. We cannot accept such a contention. Firstly, as already
noted, there is nothing under Section 80IB (10) of the Act requiring that
ownership of the land must vest in the developer to be able to qualify for
such deduction. Secondly, term developer has been understood in
common parlance as well as in legal sense carrying a much wider
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connotation. The Tribunal itself in the impugned order has traced
different meanings of term developer explained in different dictionaries,
which read as under:-
"a. The Webster's Encyclopedia unabridged of the English
Language gives Following meaning of the term 'developer' as:
"1. One who or that which develops;2. A person who invests in
and develops the Urban or Suburban potentialities of real estate.
b. Oxford Advanced Learners Dictionary of Current
English Fourth Indian Edition gives meaning of the term
'developer' as persons or company that develops land.
c. Random House Dictionary of the English Language
the following can be found.
Develop:
a. To bring out the capabilities or possibilities of; bring
to a more advanced or effective state.
b. To cause to grow or expand.
Developer:
a. The act or process of developing; progress.
b. Synonym: Expansion, elaboration, growth, evolution,
unfolding, maturing, maturation.
d. Webster Dictionary,the following definitions emerge:
a. To realize the potential of;
b. To aid in the growth of Strength, develop the
biceps,
c. To bring into being: make active (develop a
business)
d. To convert ( a tract of land) for specific purpose, as
by building extensively.
e. Law lexicon Dictionary: The following definitions could be
seen:
Development
a. To act, process or result of development or growing or
causing to grow; the state of being developed.
b. Happening."
32. Section 80IB(10) of the Act thus provides for deductions to an
undertaking engaged in the business of developing and constructing
housing projects under certain circumstances noted above. It does not
provide that the land must be owned by the assessee seeking such
deductions.
33. It is well settled that while interpreting the statute, particularly, the
taxing statute, nothing can be read into the provisions which has not
been provided by the Legislature. The condition which is not made part
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of Section 80IB(10) of the Act, namely that of owning the land, which
the assessee develops, cannot be supplied by any purported legislative
intent.
34. We have reproduced relevant terms of development agreements
in both the sets of cases. It can be seen from the terms and conditions
that the assessee had taken full responsibilities for execution of the
development projects. Under the agreements, the assessee had full
authority to develop the land as per his discretion. The assessee could
engage professional help for designing and architectural work.
Assessee would enroll members and collect charges. Profit or loss
which may result from execution of the project belonged entirely to the
assessee. It can thus be seen that the assessee had developed the
housing project. The fact that the assessee may not have owned the
land would be of no consequence.
35. With respect to the question whether the assessee had acquired
the ownership of the land for the purposes of the Income Tax Act and,
in particular, Section 80IB (10) of the Act and to examine the effect of
Explanation to Section 80IB(10) introduced with retrospective effect
from 1.4.2001, since several aspects overlap, it would be convenient to
discuss the same together.
36. We have noted at some length, the relevant terms and conditions of
the development agreements between the assessees and the land
owners in case of Radhe Developers. We also noted the terms of the
agreement of sale entered into between the parties. Such conditions
would immediately reveal that the owner of the land had received part
of sale consideration. In lieu thereof he had granted development
permission to the assessee. He had also parted with the possession of
the land. The development of the land was to be done entirely by the
assessee by constructing residential units thereon as per the plans
approved by the local authority. It was specified that the assessee
would bring in technical knowledge and skill required for execution of
such project. The assessee had to pay the fees to the Architects and
Engineers. Additionally, assessee was also authorized to appoint any
other Architect or Engineer, legal adviser and other professionals. He
would appoint Sub-contractor or labour contractor for execution of the
work. The assessee was authorized to admit the persons willing to join
the scheme. The assessee was authorised to receive the contributions
and other deposits and also raise demands from the members for dues
and execute such demands through legal procedure. In case, for some
reason, the member already admitted is deleted, the assessee would
have the full right to include new member in place of outgoing member.
He had to make necessary financial arrangements for which purpose he
could raise funds from the financial institutions, banks etc. The land
owners agreed to give necessary signatures, agreements, and even
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power of attorney to facilitate the work of the developer. In short, the
assessee had undertaken the entire task of development, construction
and sale of the housing units to be located on the land belonging to the
original land owners. It was also agreed between the parties that the
assessee would be entitled to use the the full FSI as per the existing
rules and regulations. However, in future, rules be amended and
additional FSI be available, the assessee would have the full right to
use the same also. The sale proceeds of the units allotted by the
assessee in favour of the members enrolled would be appropriated
towards the land price. Eventually after paying off the land owner and
the erstwhile proposed purchasers, the surplus amount would remain
with the assessee. Such terms and conditions under which the
assessee undertook the development project and took over the
possession of the land from the original owner, leaves little doubt in our
mind that the assessee had total and complete control over the land in
question. The assessee could put the land to use as agreed between
the parties. The assessee had full authority and also responsibility to
develop the housing project by not only putting up the construction but
by carrying out various other activities including enrolling members,
accepting members, carrying out modifications engaging professional
agencies and so on. Most significantly, the risk element was entirely
that of the assessee. The land owner agreed to accept only a fixed
price for the land in question. The assessee agreed to pay off the land
owner first before appropriating any part of the sale consideration of the
housing units for his benefit. In short, assessee took the full risk
ofexecuting the housing project and thereby making profit or loss as the
case may be. The assessee invested its own funds in the cost of
construction and engagement of several agencies. Land owner would
receive a fix predetermined amount towards the price of land and was
thus insulated against any risk.
37. By no stretch of imagination can it be said that the assessee acted
only as a works contractor. The terms works contractor has been
receiving judicial attention in several cases In the case of Commissioner
of Income-Tax vs. Glenmark Pharmaceuticals Ltd. (supra), the Bombay
High Court observed as under:
"Contract of work or a contract of sale
14. The question as to whether a contract is a contract of work or a
contract of sale is the subject-matter of precedents on the subject. The
principles, as decided cases would show, are well defined but the
application of those principles to individual cases often poses a
difficulty. The consistent line of thinking that emerges from the decided
cases is that essentially, in determining as to whether a contract
constitutes one for work or is a contract of sale, it is the dominant
interest and object of the parties in entering into the contract, as
evinced by the terms of the contract, the circumstances of the contract
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and the custom of the trade that provide a guiding indicator. The object
of the parties is of necessity to be deduced from the terms of the
contract. In order to elucidate the distinction which has been made, it
would be necessary to turn to some of the authorities on the subject.
While dealing with authorities it would be necessary to note that some
of the decided cases deal with issues under sales tax legislation and
many of those judgments relate to the period prior to the enactment of
the Forty Sixth Amendment to the Constitution. The technicalities of
sales tax legislation, especially as a consequence of the Forty Sixth
amendment do not fall for determination in this proceeding. The decided
cases are being referred to only with a view to emphasise the distinction
between a contract for work and a contract for sale.
15. In Govt. of Andhra Pradesh v. Guntur Tobaccos Ltd., AIR 1965
SC 1396; 16 STC 240, the Supreme Court held that in the execution of
a contract of work some materials may be used and property in the
goods so used passes to the other party. However, the contractor who
undertakes to do the work will not necessarily be deemed on that
account to sell the materials. The Supreme Court noted that a contract
for work in the execution of which goods are used may take one of
three forms. Those three forms were elaborated as follows( page 1404
of AIR 1965 SC and page
255 of 16 STC):
"The contract may be for work to be done for remuneration and
for supply of materials used in the execution of the works for a price: it
may be a contract for work in which the use of materials is accessory or
incidental to the execution of the work: or it may be a contract for work
and use or supply of materials though not accessory to th execution of
the contract is voluntary or gratuitous. In the last class there is no sale
because though property passes it does not pass for a price. Whether a
contract is of the first or the second class must depend upon the
circumstances: if it is of the first: it is a composite contract for work and
sale of goods: where it is of the second category, it is a contract for
execution of work not involving sale of goods."
16. In a subsequent decision in the State of Punjab and Haryana v.
Associated Hotels of India Ltd., AIR 1972 SC 1131; 29 STC 474, the
Supreme Court held that a contract for sale is one whose main object is
the transfer of property in, and the delivery of the possession of a
chattel as a chattel to the buyer. Where the principal object of the work
undertaken by the payee of the price is not the transfer of a chattel, the
contract is one of work and labour. The test is whether or not the work
and labour bestowed end in anything that can properly become the
subject of sale; neither the ownership of material, nor the value of the
skill and labour as compared with the value of the material, is
conclusive, though these circumstances may be taken into
consideration in deciding whether a subsisting contract is a contract of
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work and labour or contract for a sale of a chattel. In Sentinel Rolling
Shutters and Engineering Co.Pvt. Ltd. v. CST, AIR 1978 SC 1747; 42
STC 409 this principle was reiterated by the Supreme Court. In State of
Tamil Nadu v. Anandam Viswanathan, AIR 1989 SC 962; 73 STC 1, the
contract in question involved supply and printing of question papers to
universities. The assessee entered into those contracts for printing and
the question involved was whether the taxable turnover for the purpose
of the Tamil Nadu General Sales Tax Act, 1959 would include the
printing and block making charges. The Supreme Court held that the
contract in question was a contract of work, having regard to the nature
of the job to be done and the confidence reposed in the contractor for
work to be rendered. The supply of paper was merely incidental. More
recently, in State of A.P.v. Kone Elevators (India) Ltd. [2005] 3 SCC
389; [2005] 140 STC 22, the assessee was under the terms of contract
required to supply and install lifts to its customers, while it was the
customers' obligation to undertake work connected in keeping the site
ready for installation. The Supreme Court noted that under its
contractual obligations, the assessee had undertaken the installation of
lifts manufactured and brought to site in a knocked-down state and the
contract in question was a contract of sale and not a works contract.
The distinction between a contract of sale and a works contract found
elaboration in the following observations( page 26 of 140 STC):
"If the intention is to transfer for a price a chattel in which the
transferee had no previous property, then the contract is a contract for
sale. Ultimately, the true effect of an accretion made pursuant to a
contract has to be judged not by artificial rules but from the intention of
the parties to the contract. In a 'contract of sale', the main object is the
transfer of property and delivery of possession of the property, whereas
the main object in a 'contract for work' is not the transfer of the property
but it is one for work and labour. Another test often to be applied is:
when and how the property of the dealer in such a transaction passes
to the customer: is it by transfer at the time of delivery of the finished
article as a chattel or by accession during the procession of work on
fusion to the movable property of the customer? If it is the former, it is a
'sale'; if it is the latter, it is a 'works contract'. Therefore, in judging
whether the contract is for 'sale' or for 'work and labour', the essence of
the contract or the reality of the transaction as a whole has to be taken
into consideration. The predominant object of the contract, the
circumstances of the case and the custom of the trade provide a guide
in deciding whether transaction is a 'sale' or a 'works contract'.
Essentially, the question is of interpretation of the 'contract'. It is settled
law that the substance and not the form of the contract is material in
determining the nature of transaction."
17. In Hindustan Shipyard Ltd. v. State of Andhra Pradesh [2000] 119
STC 533, the Supreme Court enunciated certain principles which were
deduced from the decided cases on the distinction between the two
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concepts. The second, third and fourth principles laid down in the
judgment of the Supreme Court, read thus (page 545):
"(2) Transfer of property of goods for a price is the linchpin of the
definition of 'sale'.Whether a particular contract is one of sale of goods
or for work and labour depends upon the main object of the parties
found out from an overview of the terms of contract, the circumstances
of the transaction and the custom of the trade. It is the substance of the
contract document/s and not merely the form, which has to be looked
into. The court may form an opinion that the contract is one whose main
object is transfer of property in a chattel as a chattel to the buyer,
though some work may be required to be done under the contract as
ancillary or incidental to the sale, then it is a sale. If the primary object
of the contract is the carrying out of work by bestowal of labour and
services and materials are incidentally used in execution of such work
then the contract is one for work and labour.
(3) If the thing to be delivered has only individual existence before
the delivery as the sole property of the party who is to deliver it, then it
is a sale. If A may transfer property for a price in a thing in which B had
no previous property then the contact is a contract for sale. On the other
hand where the main object of work undertaken by the payee of the
price is not the transfer of a chattel qua chattel, the contract is one for
work and labour.
(4) The bulk of material used in construction belongs to the
manufacturer who sells the end-product for a price, then it is a strong
pointer to a conclusion that the contract is in substance one for the sale
of goods and not for the work and labour. However, the test is not
decisive..."
18.A contract for sale has hence to be distinguished from a contract
of work. Whether a particular agreement falls within one or the
other category depends upon the object and intent of the parties,
as evidenced by the terms of the contract, the circumstances in
which it was entered into and the custom of the trade. The
substance of the matter and not the form is what is of
importance. If a contract involves the sale of movable property as
movable property,it would constitute a contract for sale. On the
other hand, if the contract primarily involves carrying on of work
involving labour and service and the use of materials is incidental
to the execution of the work, the contract would constitute a
contract of work and labour. One of the circumstances which is
of relevance is whether the article which has to be delivered has
an identifiable existence prior to its delivery to the purchaser
upon the payment of a price. If the article has an identifiable
existence prior to its delivery to the purchaser, and when the title
to the property vests with the purchaser only upon delivery, that
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is important indicator to suggest that the contract is a contract for
sale and not a contract for work. In India, the distinction between
the two categories is elucidated by the Sales of Goods Act, 1930.
Sub-section(1) of section 4 provides that a contract of the sale of
goods is a contract, whereby a seller transfers or agrees to
transfer the property in goods to the buyer for a price. Where
under a contract of sale, the property in goods in transferred from
the seller to the buyer, the contract is that of sale, but where
transfer of property in the goods is to take place at a future time,
or subject to some condition thereafter to be fulfilled, the contract
is not a sale but is an agreement to sell. A contract of sale is
made by an offer to buy or sell goods for a price and the
acceptance of the offer. Under section 5(1) the contract may
provide for immediate delivery of the goods or immediate
payment of the price or postponement of delivery or payment of
the price by installments."
In the case of State of Andhra Pradesh vs. M/s.Kone Elevators
(India) Ltd. (supra),Apex Court observed as under:-
"5. It can be treated as well settled that there is no standard formula by
which one can distinguish a 'contract for sale' from a 'works-contract'.
The question is largely one of fact depending upon the terms of the
contract including the nature of the obligations to be discharged
thereunder and the surrounding circumstances. If the intention is to
transfer for a price a chattel in which the transferee had no previous
property, then the contract is a contract for sale. Ultimately, the true
effect of an accretion made pursuant to a contract has to be judged not
by artificial rules but from the intention of the parties to the contract'. In
a 'contract of sale', the main object is the transfer of property and
delivery of possession of the property, whereas the main object in a
'contract for work' is not the transfer of the property but it is one for work
and labour. Another test often to be applied to is: when and how the
property of the dealer in such a transaction passes to the customer; is it
by transfer at the time of delivery of the finished article as a chattel or by
accession during the procession of work on fusion to the movable
property of the customer? If it is the former, it is a 'sale', if it is the latter,
it is a 'works-contract'. Therefore, in judging whether the contract is for a
'sale' or for 'work and labour', the essence of the contract or the reality
of the transaction as a whole has to be taken into consideration. The
predominant object of the contract, the circumstances of the case and
the custom of the trade provides a guide in deciding whether
transaction is a 'sale' or a 'works-contract'. Essentially, the question is of
interpretation of the 'contract'. It is settled law that the substance and
not the form of the contract is material in determining the nature of
transaction. No definite rule can be formulated to determine the
question as to whether a particular given contract is a contract for sale
of goods or is a works-contract. Ultimately, the terms of a given contract
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would be determinative of the nature of the transaction, whether it is a
"sale" or a "works-contract". Therefore, this question has to be
ascertained on facts of each case, on proper construction of terms and
conditions of the contract between the parties."
38. In the present case, as already held the assessee had
undertaken the development of housing project at its own risk and cost.
The land owner had accepted only the full price of the land and nothing
further. The entire risk of investment and expenditure was that of the
assessee. Resultantly, profit and loss also would accrue to the
assessee alone. In that view of the matter, the addition of the
Explanation to Section 80IB with retrospective effect of 1.4.2001 would
have no material bearing in the cases on hand. We may recall that the
said Explanation introduced by Finance (No.2)Act, 2009 provided as
under:-[Explanation- For the removal of doubts, it is hereby declared
that nothing contained in this sub-section shall apply to any undertaking
which executes the housing project as a works contract awarded by any
person (including the Central or State Government)].
39. We may now move on to the question of ownership of the
land.
40. Relevant portion of Section 2(47) reads as under:-
"2(47): "transfer", in relation to a capital asset, includes,-
(v) any transaction involving the allowing of the possession of any
immovable property to be taken or retained in part performance of a
contract of the nature referred to in section 53A of the Transfer of
Property Act, 1882(4 of 1882); or
Section 53A of the Transfer of Property Act reads as under:-53A.
Where any person contracts to transfer for consideration any
immovable property by writing signed by him or on his behalf from
which the terms necessary to constitute the transfer can be ascertained
with reasonable certainty, and the transferee has, in part performance
of the contract, taken possession of the property or any part thereof, or
the transferee, being already in possession, continues in possession in
part performance of the contract and has done some act in furtherance
of the contract, and the transferee has performed or is willing to perform
his part of the contract, then notwithstanding that where there is an
instrument of transfer, that the transfer has not been completed in the
manner prescribed therefor by the law for the time being in force, the
transferor or any person claiming under him shall be debarred from
enforcing against the transferee and persons claiming under him any
right in respect of the property of which the transferee has taken or
continued in possession, other than a right expressly provided by the
terms of the contract:
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Provided that nothing in this section shall affect the rights of a
transferee for consideration who has no notice of the contract or of the
part performance thereof."
41. In the present case, we find that the assessee had, in part
performance of the agreement to sell the land in question, was given
possession thereof and had also carried out the construction work for
development of the housing project. Combined reading of Section
2(47)(v) and Section 53A of the Transfer of Property Act would lead to a
situation where the land would be for the purpose of Income Tax Act
deemed to have been transferred to the assessee. In that view of the
matter, for the purpose of income derived from such property, the
assessee would be the owner of the land for the purpose of the said
Act. It is true that the title in the land had not yet passed on to the
assessee. It is equally true that such title would pass only upon
execution of a duly registered sale deed. However, we are, for the
limited purpose of these proceedings, not concerned with the question
of passing of the title of the property, but are only examining whether for
the purpose of benefit under Section 80IB (10) of the Act, the assessee
could be considered as the owner of the land in question. As held by
the Apex Court in the case of Mysore Minerals Ltd. vs. Commissioner of
Income Tax (supra), and in the case of Commissioner of Income-Tax
vs. Podar Cement Pvt. Ltd. and others (supra), the ownership has been
understood differently in different context. For the limited purpose of
deduction under Section 80IB(10) of the Act, the assessee had satisfied
the condition of ownership also; even if it was necessary.
42. In the case of Shakti Corporation similarly the assessee had
entered into a development agreement with the land owners on similar
terms and conditions. It is true that there were certain minor differences,
however, in so far as all material aspects are concerned, we see no
significant or material difference. Here also assessee was given full
rights to develop the land by putting up the housing project at its own
risk and cost. Entire profit flowing therefrom was to be received by the
assessee. It is true that the agreement provided that the assessee
would receive remuneration. However, such one word used in the
agreement cannot be interpreted in isolation out of context. When we
read the entire document, and also consider that in form of
"remuneration" the assessee had to bear the loss or as the case may
be take home the profits, it becomes abundantly clear that the project
was being developed by him at his own risk and cost and not that of the
land owners. Assessee thus was not working as a works contract.
Introduction of the Explanation to Section 80IB(10) therefore in this
group of cases also will have no effect.
43. We may at this stage examine the ratio of different judgments
cited by the Revenue. The decision in case of Faqir Chand Gulati vs.
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Uppal Agencies Private Limited and another (supra) was rendered in
the background of the provisions of the Consumer Protection Act. In the
case before the Apex Court, the land owner had entered into an
agreement with the builder requiring him to construct apartment building
on the land in question. Part of the constructed area was to be retained
by the owner of the land. In consideration of the land price remaining
area was free for the builder to sell. When the land owner found series
of defects in the construction, he approached the Consumer Protection
Forum. It was in this background the Apex Court was considering
whether the land owner can be stated to be a consumer and the builder
a service provider. It was in this background that the Apex Court made
certain observations. Such observations cannot be seen out of context
nor can the same be applied in the present case where we are
concerned with the deduction under Section 80IB(10) of the Act.
44. In the case K. Raheja Development Corporation vs. State of
Karnataka (supra), the Apex Court considered whether the builder, who
was engaged in the development of property and for such purpose had
entered into an agreement with the land owner, can be stated to have
executed works contract. Such interpretation was rendered in the
background of the term "works contract" defined in Section 2(1)(v-i) of
the Karnataka Sales Tax Act, which reads as under:-
"12. Section 2(1)(v-i) is relevant. It defines a "works contract" as follows:
"2.(1)(v-i) 'works contract' includes any agreement for carrying out for
cash, deferred payment or other valuable consideration, the building,
construction, manufacture, processing, fabrication, erection, installation,
fitting out, improvement, modification, repair or commissioning of any
movable or immovable property;"
It is thus to be seen that under the Karnataka Sales Tax Act the
definition of the words "works contract" is very wide. It is not restricted
to a "works contract" as commonly understood i.e. a contract to do
some work on behalf of somebody else. It also includes
"any agreement for carrying out either for cash or for deferred
payment or for any other valuable consideration, the building and
construction of any movable and immovable property". (emphasis
supplied)
The definition would therefore take within its ambit any type of
agreement wherein construction of a building takes place either for cash
or deferred payment, or valuable consideration. To be also noted that
the definition does not lay down that the construction must be on behalf
of an owner of the property or that the construction cannot be by the
owner of the property
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Thus even if an owner of property enters into an agreement to construct
for cash, deferred payment or valuable consideration a building or flats
on behalf of anybody else, it would be a works contract within the
meaning of the term as used under the said Act."
It was in background of this definition provided by the statute that the
Apex Court concluded that the agreement was one of works contract.
The Apex Court observed that the term works contract contained in the
Act is inclusive definition and includes not merely the works contract as
normally understood but it is a wide definition which includes any
agreement for carrying out building or construction activity for cash,
deferred payment or other valuable consideration. Thus the
interpretation rendered by the Apex Court in the said decision was
based on not the normal meaning of term "works contract" but on the
special meaning assigned to it under the Act itself, which provided for a
definition of the inclusive nature.
45. Under the circumstances, we are of the opinion that the Tribunal
committed no error in holding that the assessees were entitled to the
benefit under Section 80IB(10) of the Act even where the title of the
lands had not passed on to the assessees and in some cases, the
development permissions may also have been obtained in the name of
the original land owners.
46. We find that it is not even the case of the Revenue that other
conditions of Section 80IB of the Act were not fulfilled. We, therefore,
answer the question in favour of the assessee and against the Revenue
and dispose of all appeals accordingly.
7. Resultantly, this Tax Appeal is also dismissed upholding the order of the
Tribunal which in light of the discussion held hereinabove calls for no
interference."
28. We thus find that the issues involved in present appeals are
squarely covered by the above decision of the Hon'ble Gujarat High
Court. We respectfully following the above decision of the Hon'ble
Gujarat High Court do not find any good reason to interfere with the
order of the ld. CIT(A). Therefore, this ground of appeal of the
Revenue is dismissed for all the years under consideration.
29. In the cross-objection of the assessee the sole ground of
cross-objection reads as under:-
ITA No. 2529 of 12, 3018 of 10, 1194 of 11
with CO 22-Ahd-2011
AYs 2007-08, 2008-09
M/s. Unique City Homes Ahmedabad
- 51 -
"On the facts and in the circumstances of the appellant's case,
the ld. CIT(A) has erred in upholding the impugned additions
of Rs.39,146/- carried out u/s 41(1) of the IT, Act."
30. We have heard the rival submissions and perused the orders
of the lower authorities and the material available on record. The AO
observed that following party's accounts have been carried forward
and no payment has been made during the year.
i) Royal Remedies Services Rs.1,791/-
ii) R.R. Corporation Rs.37,355/-
As these balances were outstanding since long as per
Limitation Act the time limit to file suit also expired, the same were
considered as only book entries and addition u/s 41(1) was made by
the AO.
31. On appeal, the ld. CIT(A) confirmed the action of the AO on
the ground that the assessee has no clue about the existence and
whereabouts of these parties.
32. Before us, the ld. AR of the assessee relied on the decision of
the Hon'ble Gujarat High Court in the case of CIT v. Nitin S. Garg,
reported in [2012] 22 taxmann.com 59 (Guj.); wherein in was held
that "It had not been established that the assessee had written off
the outstanding liabilities in the books of account. The Tribunal was
justified in taking the view that the assessee had continued to show
the admitted amounts as liabilities in its balance sheet, the same
could not be treated as cessation of liabilities. Merely because the
liabilities were outstanding for last many years, it could not be
inferred that the said liabilities has ceased to exist. The Tribunal had
rightly observed that the Assessing Officer would have to prove that
the assessee had obtained the benefits in respect of such trading
liabilities by way of remission or cessation thereof. Merely because
ITA No. 2529 of 12, 3018 of 10, 1194 of 11
with CO 22-Ahd-2011
AYs 2007-08, 2008-09
M/s. Unique City Homes Ahmedabad
- 52 -
the assessee obtained benefit of reduction in the earlier years and
balance was carried forward in the subsequent year, it would not
prove that the trading liabilities of the assessee had become non-
existent. "
33. The ld. DR merely supported the order of the ld. CIT(A). He
could not site any contrary decision before us.
34. Respectfully following the decision of the Hon'ble Gujarat High
Court, we set aside the orders of the lower authorities and delete the
addition of Rs.39,146/-. Thus, this ground of cross-objection of the
assessee is allowed.
35. In the result, all the appeals of the Revenue are dismissed and
cross-objection of the assessee is allowed.
Order pronounced in the Court on Monday, the 24th of March, 2014
at Ahmedabad.
Sd/- Sd/-
(KUL BHARAT) ( N.S. SAINI)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Ahmedabad; Dated 24/03/2014
Bt*
TRUE COPY
/Copy of the Order forwarded to :
1. / The Appellant
2. / The Respondent.
3. / Concerned CIT
4. () / The CIT(A)-III, Ahmedabad
5. , , / DR,
ITAT, Ahmedabad
6. / Guard file.
/ BY ORDER,
/ (Dy./Asstt.Registrar)
, / ITAT, Ahmedabad
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