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be accomplished on the 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 per son 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 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.

The claim that the appellant had given performance bank guarantee for the project is not relevant for deciding whether the appellant was a 'developer' or 'contractor' as every contractor who is executing a project gives such guarantee about the quality of the construction of the project.

Therefore, from above analysis it is clear that this project does not make the appellant entitle for deduction u/s. 80IA as the appellant has worked merely as a contractor and not as a developer. The appellant did not conceive, did not develop the project and did not make investment in it. The developer and the financial investor in this case is MORT&H i.e. the agency which gave the contract to the appellant.

21. As to whether the assessee can be termed as "developer" or a "contractor" as contended by the Revenue in its written submissions, we find, in fact, it only attempts to give a general meaning of the term "contractor" and "developer". In the cases in hand, we find that in terms of tender documents, audited accounts and facts on record suggest that the assessee has fully undertaken the work of development of various infrastructure projects as a whole by undertaking the risk & responsibility, arranged own finances, Construction Pvt. Ltd.) A.Ys.- 2007-08 to 2013-14 & 2016-17 - 35 -

that, the benefit of section 80-IA(4) would be available to a developer and not to a contractor simplicitor. In the present case the lower authorities have denied the benefit of section 80-IA(4) to the appellant-company on the assumption that the appellant-company is engaged in executing merely a work contract and it is not carrying on the business of developing an infrastructure facility. But we find that the assessee has undertaken entirely and exclusively the projects awarded by the Government authorities, as it is evident from the records as explained and already narrated hereinabove and therefore, there is hardly any basis for assuming that it is merely a contractor executing a works contract. The difference between a "developer" and a "contractor" has to be properly analyzed and understood. This issue has come up before the Hon'ble ITAT, Amritsar Bench in the case of M/s. TRG Industries P. Ltd. in ITA Nos. 433 etc./Asr/2009. The Tribunal after relying various case laws has laid down the following parameters when to treat an assessee as a developer or contractor.