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Showing contexts for: Infrastructure Development in Ahmedabad Urban Development Authority vs Assistant Commissioner Of Income Tax ... on 2 May, 2017Matching Fragments
E. Supposing, after notification of the scheme, the law had stipulated and the government had decided to outsource the development work to a third party (a infrastructure company with similar rights and entitlement as given to AUDA), could it be urged that infrastructure development company doing similar work, as AUDA was not engaged in the activity in the nature of trade? F. The most crucial factor which proves that the Assessee has been working with profit motive is that the Town Planning Officer is well aware about the cost of development. In spite of that the Assessee has never sold the 15% of the land on cost basis. For example, the Assessee has developed 1500 sq.yards of land in a HC-NIC Page 21 of 57 Created On Wed Aug 16 05:49:41 IST 2017 scheme, the cost to develop a scheme is Rs.60000/. The Assessee should have allotted 15% of 1500 sq.yards of land at the rate of 400 per sq.yards to the needy persons/institutions by draw of lots. Instead of this, the Assessee has fixed a base price, and thereafter, put the land on auction. It allotted the land to the highest bidder. It has sold the land keeping in view the profit in mind. G. It may be noted that huge profits have been made by the Assessee in these years out of the abovesaid real estate development activity. If that be so, where is the element of charity? The activity of developing roads, park or laying of sewerage land are not to be seen representing a charitable act as the assessee levies charges for their use from the plot owners. Moreover, it has claimed depreciation on these assets on business lines, and if an independent infrastructure company would be given such rights, it could not be held that the same is for charitable purposes. These are just to demonstrate that the Assessee shall perform the activity of advancement of any other objects of general public utility. But auction of land to the highest bidder is an activity, which is specifically, keeping in view, the profit in mind and the levy of cess/charges/fees are designed in lines of an professional and business oriented infrastructure development real estate entity. H. It may be noted that there are surplus and reserves which are continuously swelling. These are generated by the Assessee by way of this activity sale/lease of land and charging fees. The Assessee has not been charging nominal fees or selling the land at a nominal rate. It has been making money by putting the land on auction after taking a reserve price. This activity cannot be said to be a charitable activity.
That the amount of final compensation is determined after making adjustment of the development cost. That all kinds of civic amenities/services that are being provided are not free but for a cost. It is submitted that therefore, even second limb of the proviso to section 2(15) is also satisfied..
8.12. It is further submitted by Shri Bhatt, learned Senior Advocate for the Revenue that suppose, after notification of the scheme, the law had stipulated and the government had decided to outsource the development work to a third party infrastructure company with similar rights and the entitlements as given to AUDA, could it be urged that the Infrastructure Development Company doing the same work as AUDA is not engaged in activity in the nature of HC-NIC Page 24 of 57 Created On Wed Aug 16 05:49:41 IST 2017 trade or business? It is submitted that it would have been definitely constituted as its business income. It is submitted that therefore, it is then, not possible to urge otherwise to suggest that the activity is not in the nature of trade or business. It is submitted that nature of the activities of the assessee are no different from that of a developer of a real estate. It is submitted that difference in the scale of operation or the mode of recovery or degree of profits or how such profits are utilised would not alter the nature of the activity.
8.13. t is further submitted by Shri Bhatt, learned Senior Advocate for the Revenue that the object of the proper development or redevelopment of any urban area is of the state government and the choice of either constituting an authority for the development or entrusting it to a third party is of the Government. It is submitted that the object of the urban development is of the State Government. It is submitted that the Authority is only carrying out and executing the state's object. It is submitted that there are many activities in the nature of infrastructure development like roads, power, housing, etc where the government, instead of constituting an authority, enters into agreement with Infrastructure Development companies. It is submitted that these private companies are allowed to recover their cost and earn profits as a concessionaires or the Govt. may also make direct payments. It is submitted that the income in all such cases would undoubtedly be assessed on profits from business. It is submitted that the mere fact that the same activity is done by an instrumentality of the state will not alter the character of the activity. It is submitted that the HC-NIC Page 25 of 57 Created On Wed Aug 16 05:49:41 IST 2017 activity will still be in the nature of business or trade.
HC-NIC Page 41 of 57 Created On Wed Aug 16 05:49:41 IST 2017 12.1. At this stage decision of the Hon'ble Supreme Court in the case of Ahmedabad Green Belt Khedut Mandal (supra) ((2014) 7 SCC 357) is required to be referred to. Before the Hon'ble Supreme Court, it was contended on behalf of original land owners whose lands were included in the TP Scheme that by permitting the Area Development Authority / Urban Development Authority to sell 15% of the total area, by that the Urban Development Authority will be making profit, the Hon'ble Supreme Court has negatived the aforesaid and has observed that the activities of the Urban Development Authority / Area Development Authority while selling the land to the extent of 15% to the total area covered under the scheme cannot be said to be profitering. It is observed and held that sale upto 15% is from total area covered under the scheme and not in respect of every plot of land. In order to generate financial resources for the development of infrastructure, the salable plot for residential, commercial and industrial use are allotted by the appropriate authority. It is further observed that the provision of the Act have to be read as a whole and therefore, the provision of Section 40(3)(jj)(a)(iv) for sale is to be in consonance / conjointly with other statutory provisions and not in isolation.Under the circumstances, the learned Tribunal has committed gross error in considering the activities of the appellant Urban Development Authority for profiter by selling 15% of the total area and thereby has committed gross error in holding the activities of the assessee in the nature of trade, commerce or business.