Tribunal held that the assessee was engaged as a civil contractor and the income earned from the project was assessed as business income. Therefore, the term ”transfer” as defined in section 2(47)(v) not applicable since the transfer was applicable only in the case of capital assets held by the assessee. The development rights were held as business assets. In terms of the joint venture agreement only part of the income accrued to the assessee on execution of the project agreement. The balance consideration was conditional and was to accrue only in the event of the assessee performing certain obligations under the agreement. The payments received in the subsequent years had already been offered to tax. Therefore, estimating the income at 10 per cent. of gross receipts was justified. Once the income was estimated, no further disallowance under section 40A(3) would be warranted. (AY. 2009-10)
ITO v. Abdul Kayum Ahmed Mohd. Tamboli (2020) 82 ITR 419 (Mum.)(Trib.)
S. 28(i) : Business income-Civil contractor-Transfer of development rights-Income earned from project assessable as business income-Estimation of 10% of gross receipts is held to be justified-When income is estimated specific disallowance u/s. 40A(3) cannot be made-The transfer definition cannot be applied to on transfer development rights which is a business asset-Income taxable on performing certain obligations [S. 2(47)(v), 40A(3), Transfer of Property Act, 1882, S.53A]