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2015 (8) TMI 1446 - AT - Income TaxDeduction u/s 80IA denied - the assessee had acted only as a contractor - Held that:- According to us the Revenue Department is expected to examine few things to ascertain whether the assessee is a developer or a contractor such as the utilization of funds, development of project, the nature of venture, the substance of the transaction etc. The provisions of section 80IA also require a finding to the effect that whether the assessee as an enterprise carried out the business of developing a project or the assessee has developed, maintain and also operating the project. The provisions are applicable in respect of the project which is related to development of infrastructure facility. One of the primary requirement is that an assessee is entitled for the claim of deduction if he has developed the project. The assessee is expected to shoulder out the investment and also subjected to technical risk in respect of the work executed. Such a developer is liable for liquidated damages if failed to fulfill the obligation laid down in the agreement. To keep brevity in mind it is not advisable to discuss all the parameters in this regard but to leave it to the Revenue authorities to examine the issue in its entirety so as to arrive at the correct judicial decision. It is also worth to mention that the guidelines enumerated in the case of ABG Heavy Industries Ltd. (2010 (2) TMI 108 - BOMBAY HIGH COURT) are required to be followed while deciding this issue. Revision u/s 263 - this is not the case of the assessee that on one hand the Assessing Officer has rightly granted the deduction under section 80IA(4) of I.T. Act and on the other hand there was a change of opinion of learned Commissioner while passing the order under section 263 of I.T. Act. Therefore, after recording these reasons, we are of the conscientious view that the issue should be re-examined by the Assessing Officer - Decided in favour of assessee for statistical purposes
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