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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
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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.