TMI Blog2014 (10) TMI 930X X X X Extracts X X X X X X X X Extracts X X X X ..... ct right from soil-testing, earth filling, designing, planning, sewerage, drainage, and till the final completion of the project. It is worth quoting that as per condition No. (iii) the flats were to be maintained till they are handed over to the Engineer in Charge. Hon'ble Jurisdictional High Court in the case of ABG Heavy Industries Ltd. (2010 (2) TMI 108 - BOMBAY HIGH COURT) decided the similar case in favour of the assessee treating him to be a developer. The expression "development" has not been artificially defined for the purposes of sec.80IA/80IB of the Act, therefore, it should receive its ordinary and natural meaning. The Parliament in its wisdom amended the provisions of sec.80IA/80IB of the Act so as to clarify that in order to avail a deduction the assessee should (i) develop or (ii) operate and maintain or (iii) develop, operate and maintain the facility. Parliament eventually stepped into to clarify that it was not invariably necessary for a developer to operate and maintain the facility So far as, the contention of the Revenue that the assessee is not the owner of the project. We note that the section nowhere put a condition that for claiming deduction under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l design etc. were to be got approved from DDA/competent authority. The ld. Counsel further submitted that even the whole planning was done by the assessee and further asserted that the assessee is a creator of this facility, purchased own material having entire risk qua the project, thus, the assessee is a developer. Reliance was placed upon the decision in the case of VRM (India) Ltd. )ITA No.811/Del/2008 date 23/04/2010 and by further contending that for Assessment Year 2008-09 the ld. CIT(A) decided the issue in favour of the assessee vide order dated 30/12/2013. Reliance was also placed on the decision from Hon'ble Bombay High Court in CIT vs. ABG Heavy Industries Ltd.(322 ITR 323), ITO vs. Suraksha Realtors (ITA No.4223/Mum/2010, M/s. Pratibha Constructions Engineers (I) P. Ltd. vs. ACIT (ITA No.118/PN/2008) and Mahalaxmi Constructions vs. ACIT (ITA No.433/PN/2007). The ld. AR furnished the copies of aforementioned/cited cases. 2.1 On the other hand, the ld. DR defended the conclusion drawn in the impugned orders by submitting that the assessee is merely a work contractor for DDA and the development is done by the authority because the assessee merely executed the wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wned by a company registered in India or by a consortium of such companies; (ii) the enterprise has entered into an agreement with the Central Government or a State Government or a local authority or any other statutory body for developing, maintaining and operating a new infrastructure facility subject to the condition that such infrastructure facility shall be transferred to the Central Government, State Government, local authority or such other statutory body, as the case may be, within the period stipulated in the agreement; (iii) the enterprise starts operating and maintaining the infrastructure facility on or after the 1st day of April, 1995. 80IB(10) The amount of profits in case of an undertaking developing and building housing projects approved by a local authority, shall be hundred per cent. of the profits derived in any previous year relevant to any assessment year from such housing project if,-- (a) such undertaking has commenced or commences development and construction of the housing project on or after the 1st day of October, 1998, and completes the same before the 31st day of March, 2001 ; (b) the project is on the size of a plot of land which has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re taking up the work, the layout plans as well as building plans, structural designs etc. are to be got approved from DDA/competent Authority as mentioned in the NIT by adhering to the time schedule laid down in the NIT vi) The agency will also be responsible for getting the fire fighting arrangements, approved from the Delhi Fire Services before execution of the water supply scheme vii) The reimbursement of increase in cost of material, labour etc. will be applicable from the date of submission of Envelope-C i.e. revised financial bid instead of submission of tender initially and such reimbursement for escalation in cost under clause-14 would be payable during the stipulated period of completion only. You are requested to attend this office to sign the agreement on Non-judicial stamp paper of ₹ 50/- (Rs.Fifty only) within fifteen days from the date of issue of this letter. Please note that if you fail to attend the office of the undersigned within fifteen days from the date of issue of this Letter, the acceptance of the tender is liable to be withdrawn and the earnest money forfeited. You are also requested to contact Asstt. Engineer-II of this division and start t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Now we are expected to analyze the aforementioned provisions of the Act. Sub-section (10) to sec. 80IB of the Act speaks about an undertaking developing and building housing projects approved before a specified date by the local authority and, if the conditions are fulfilled, then the profit derived therefrom shall be 100% of the profits, derived in the previous year relevant to any Assessment Year. In these appeals, we note that the project was duly approved by the competent authority, therefore, condition No.(i) is fulfilled, likewise the condition contained in (ii) is also fulfilled and similar is the position with respect to condition as contained in (iii). So far as, condition contained in sub clause (b) is concerned the size of the plot is also within the prescribed limit of more than one acres and the development of the project was carried out in accordance with the scheme framed by the government. So far as built up area condition is concerned this is also within the specified limit, meaning thereby all the conditions as stipulated in this section are complied with by the assessee. The position has been further explained by the Explanation inserted by the Fin.(No.2)Act, of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble Apex Court considered the decision in allied Motors Pvt. Ltd. vs. CIT (224 ITR 677)(SC)(para-23), CIT vs. Alom Extrusions Ltd. (319 ITR 306)(SC)(para-23). It is noteworthy that the Pune Bench of the Tribunal in the case of M/s. Pratibha Constructions Engineers (I) P. Ltd. (supra), on identical fact deliberated upon the issue and decided in favour of the assessee. It is worth mentioning that Hon'ble Jurisdictional High Court in the case of ABG Heavy Engineering Ltd. (supra), decided the issue. The relevant portion is worthy of notice. 22 The submission which was urged on behalf of the revenue is that under clause (iii) of subsection (4) of section 801A, one of the conditions imposed was that the enterprise must start operating and maintaining the infrastructure facility on or after 1st April, 1995. The same requirement is embodied in sub- clause (1) of sub-clause (4) of the amended provisions. It was urged that since the assessee was not operating and maintaining the facility, he did not fulfill the condition. The submission is fallacious both in fact and in law That the assessee was maintaining the facility is not in dispute. The facility was commenced af ..... X X X X Extracts X X X X X X X X Extracts X X X X
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