M/s MBL Infrastructure Ltd., Kolkata V. DCIT, CIR-2(2), , Kolkata

CO 22/KOL/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0734 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 29 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 23-12-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 26-08-2019
• Assessment Year: 2010-2011
• Appeal Filed On: 25-07-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K NAYAK; RANU BISWAS
• Assessee Lawyers: S K TULSIYAN
• Keywords: Depreciation; Search and seizure; Document seized; Earning of tax free income; Deemed to accrue or arise in india; Retrospective amendment; Block assessment; Capital receipt; Condonation of delay; Revised return; Documents seized; Capital expenditure; TDS; Set aside; Deduction Disallowance; Capital Gains
• Section: 80C; 143(3); 72(1); 80HHC; 153A; 234B; 115JB; 80IB; 139(5); 194C; 143(1); 80IA; 143(2); 139(1); 139(4); 73; 13; 263; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A, BENCH KOLKATA BEFORE SHRI S. S. GODARA, JM & DR. A. L. SAINI, AM IT(SS) NO.77/KOL/2016 & C.O NO.22/KOL/2019 & IT(SS) NO.78/KOL/2016 &IT(SS) NO.46/KOL/2016 ( [ [ / ASSESSMENT YEARS: 2010-11 & 2011-12) DCIT, CC-2(2), KOLKATA VS. M/S MBL INFRASTRUCTURE LTD. 2/3, JUDGES COURT ROAD, KOLKATA 700027. ./ ./PAN/GIR NO.: AACCM0564C (REVENUE/DEPARTMENT) .. (ASSESSEE) ASSESSEE BY : SHRI S. K. TULSIYAN, ADVOCATE & BHOOMIJA VERMA, ADVOCATE REVENUE/DEPARTMENT BY : SHRI A. K. NAYAK, CIT-DR AND MS. RANU BISWAS, ADDL. CIT / DATE OF HEARING : 04/09/2019 & 13/12/2019 /DATE OF PRONOUNCEMENT : 23/12/2019 / O R D E R PER SHRI S. S. GODARA: THE REVENUE AND ASSESSEE HAVE FILED APPEAL ITA NO.77/KOL/2016 AND C.O NO.22/KOL/2019 FOR ASSESSMENT YEAR 2010-11 AND CROSS-APPEALS ITA NO.78 &46/KOL/2016 FOR ASSESSMENT YEAR 2011-12, AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS)-20, KOLKATAS SEPARATE ORDER; BOTH DATED 02.06.2016 PASSED IN CASE NO.80&81/CIT(A)-20/CC-2(2)/13-14 RESPECTIVELY INVOLVING PROCEEDINGS U/S 153A READ WITH SECTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). HEARD BOTH SIDES. CASE FILES/RECORDS PERUSED. IT(SS) NOS.77&78/KOL/2016, IT(SS) NO.46/KOL/2016 & C.O NO.22/KOL/2019 M/S MBL INFRASTRUCTURE LTD. PAGE | 2 2. IT TRANSPIRES AT THE OUTSET THAT MOST OF THE ISSUES RAISED IN THESE FOUR CASES ARE IDENTICAL/INTERCONNECTED. WE HAVE HEARD THESE CASES TOGETHER FOR THE SAKE OF CONVENIENCE AND BREVITY. 3. IT IS POINTED OUT AT BOTH PARTIES BEHEST THAT THE ASSESSEES CROSS-OBJECTION NO.22/KOL/2019 SUFFERS FROM 1016 DAYS DELAY IN FILING. IT HAS PLACED ON RECORD ITS CONDONATION PETITION AND AFFIDAVIT DATED 24.07.19, INTER ALIA PLEADING TO HAVE SUFFERED HUGE LOSSES IN FINANCIAL YEAR 2016-17 RESULTING IN DEFAULT OF LOAN PAYMENTS FOLLOWED BY INITIATION OF COMPANY PETITION NO.170 OF 2017 BY THE FINANCIAL CREDITOR, M/S RBL BANK LIMITED BEFORE THE NATIONAL COMPANY LAW TRIBUNAL (NCLT), KOLKATA BENCH DATED 30.03.2017 U/S 7 OF THE INSOLVENCY AND BANKRUPTCY CODE 2016. THE NCLT BENCH IS STATED TO HAVE APPROVED THE CORRESPONDING RESOLUTION PLAN EFFECTIVE FROM THE DATE OF DISPOSAL OF THE INSOLVENCY PETITION. ITS CASE ACCORDINGLY IS THAT ALL THIS LED TO A LOT OF EMPLOYEES QUITTING EMPLOYMENT GIVING RISE TO COMMUNICATION GAP BETWEEN THE MANAGEMENT AND THE STAFF CONCERNED. THIS ENTIRE EPISODE ALSO RESULTED IN OVERLOOKING OF APPROPRIATED MAT AND OTHER COMPUTATION UNDER THE PROVISIONS OF THE ACT. 4. LEARNED COUNSEL SUBMITS THAT THESE CRUCIAL FACTS HAVE SEEN LIGHT OF THE DAY ONLY AFTER CHANGE IN ASSESSEES MANAGEMENT ONLY. HONBLE APEX COURTS DECISION IN COLLECTOR LAND ACQUISITION VS. MST KATIJI & ORS. [1987] 167 ITR 471 (SC) PROPOUNDING OF VARIOUS PARAMETERS OF CONDONATION OF DELAY; HAS BEEN REFERRED AS UNDER: '3. THE LEGISLATURE HAS CONFERRED THE POWER TO CONDONE DELAY BY ENACTING SECTION 5 (ANY APPEAL OR ANY APPLICATION, OTHER THAN AN APPLICATION UNDER ANY OF THE PROVISIONS OF ORDER XXI OF THE CPC, 1908, MAY BE ADMITTED AFTER THE PRESCRIBED PERIOD IF THE APPELLANT OR THE APPLICANT SATISFIES THE COURT THAT HE HAD SUFFICIENT CAUSE FOR NOT PREFERRING THE APPEAL OR MAKING THE APPLICATION WITHIN SUCH PERIOD) OF THE INDIAN LIMITATION ACT OF 1963 IN ORDER TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO PARTIES BY DISPOSING OF MATTERS ON 'MERITS'. THE EXPRESSION 'SUFFICIENT CAUSE' EMPLOYED BY THE LEGISLATURE IS ADEQUATELY;' ELASTIC TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SUBSERVES THE ENDS OF JUSTICE THAT BEING THE LIFE-PURPOSE FOR THE EXISTENCE OF THE INSTITUTION OF COURTS. IT IS COMMON KNOWLEDGE THAT THIS COURT HAS BEEN MAKING A JUSTIFIABLY LIBERAL APPROACH IN MATTERS INSTITUTED IN THIS COURT. BUT THE MESSAGE DOES NOT APPEAR TO HAVE PERCOLATED IT(SS) NOS.77&78/KOL/2016, IT(SS) NO.46/KOL/2016 & C.O NO.22/KOL/2019 M/S MBL INFRASTRUCTURE LTD. PAGE | 3 DOWN TO ALL THE OTHER COURTS IN THE HIERARCHY. AND SUCH A LIBERAL APPROACH IS ADOPTED ON PRINCIPLE AS IT IS REALIZED THAT: L. ORDINARILY A LITIGANT DOES NOT STAND TO BENEFIT BY LODGING AN APPEAL LATE. 2. REFUSING TO CONDONE DELAY CAN RESULT IN A MERITORIOUS MATTER BEING THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTICE BEING DEFEATED- AS AGAINST THIS WHEN DELAY IS CONDONED THE HIGHEST THAT CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERITS AFTER HEARING THE PARTIES. 3. 'EVERY DAY'S DELAY MUST BE EXPLAINED' DOES NOT MEAN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOUR'S DELAY, EVERY SECOND'S DELAY? THE DOCTRINE MUST BE APPLIED IN A RATIONAL COMMON SENSE PRAGMATIC MANNER. 4. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS ARE PITTED AGAINST EACH OTHER, CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON-DELIBERATE DELAY. 5. THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONED DELIBERATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE, OR ON ACCOUNT OF MALA FIDES- A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY. IN FACT HE RUNS A SERIOUS RISK. 6. IT MUST BE GRASPED THAT JUDICIARY IS RESPECTED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO.' 5. MR. TULSIYAN ALSO CITES THEIR LORDSHIPS LATTER DECISION IN NATIONAL THERMAL POWER CORPORATION LTD. VS. CIT (1998) 229 ITR 383 (SC) THAT THE CLINCHING STATUTORY EXPRESSION IN SECTION 254 PASS SUCH ORDERS THEREON AS IT THINKS FIT CONFERS WIDEST POSSIBLE JURISDICTION ON THE TRIBUNAL TO DETERMINE THE CORRECT TAX LIABILITY OF AN ASSESSEE ARISING OUT OF AN ASSESSMENT AS LONG AS THE RELEVANT FACTS ARE ALREADY ON RECORD. 6. LEARNED CIT-DR VEHEMENTLY OPPOSES THE ASSESSEES CONDONATION PETITION THAT THE SAME FAILS TO EXPLAIN THE FOREGOING DELAY TO THE SATISFACTION OF THE TRIBUNAL. HE SUBMITS THAT THE ASSESSEES CONDONATION PLEADINGS NOWHERE INDICATE THE RELEVANT CIRCUMSTANCES BEYOND ITS CONTROL. MR. NAYAK STATES THAT DELAY IN FILING OF A LIS CAN ONLY BE CONDONED IF THE PARTY CONCERNED MAKES IT A FIT CASE BY WAY OF EXPLAINING THE CORRESPONDING REASONS BEYOND ITS CONTROL. CASE LAW RAMLAL, MOTILAL AND CHHOTELAL VS. REWA COALFIELDS LTD. (1962) AIR 361(SC) THAT FACTUAL IT(SS) NOS.77&78/KOL/2016, IT(SS) NO.46/KOL/2016 & C.O NO.22/KOL/2019 M/S MBL INFRASTRUCTURE LTD. PAGE | 4 AVERMENTS IN SUPPORT OF CONDONATION OF DELAY EXPLAINING A SUFFICIENT CAUSE ONLY HAVE TO BE ACCEPTED. 7. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO THE FOREGOING RIVAL CONTENTIONS REGARDING CONDONATION OF 1016 DAYS DELAY IN FILING OF ASSESSEES CROSS-OBJECTION NO.22/KOL/2019. IT HAS ALREADY PROVED THE ASSESSEES CLINCHING AVERMENTS HAVING FACED INSOLVENCY PROCEEDINGS RIGHT FROM THE YEAR 2017 I.E. DURING THE PRESCRIBED LIMITED PERIOD FOLLOWED BY CHANGE IN MANAGEMENT AS WELL AS QUITTING OF JOBS OF ITS EMPLOYEES; HAVE GONE UNREBUTTED FROM THE REVENUE SIDE. WE THEREFORE GO BY HONBLE APEX COURTS DECISION (SUPRA) GIVING PRECEDENCE TO THE CAUSE OF SUBSTANTIAL JUSTICE THEN TECHNICAL ASPECTS TO CONDONE THE IMPUGNED 1016 DAYS DELAY IN FILING. WE MAKE IT CLEAR THAT ALL THE ABOVE NARRATED CIRCUMSTANCES DULY INDICATE THAT THE SAME IS NEITHER INTENTIONAL NOR DELIBERATE BUT BEYOND THE ASSESSEES CONTROL. WE ACCORDINGLY ADMIT THE ASSESSEES CROSS-OBJECTION NO.22/KOL/2019 FOR ADJUDICATION ON MERITS. 8. COMING TO REVENUES APPEALS ITA NO.77&78/KOL/2016, WE NOTICE THAT REVENUES IDENTICAL FIRST SUBSTANTIVE GRIEVANCE IN BOTH OF ITS APPEALS SEEKS TO REVERSE CIT(A)S ACTION DELETING SECTION 35D AMORTIZATION OF EXPENSES DISALLOWANCE OF RS.1,12,60,000/- IN THE TWO IMPUGNED ASSESSMENT YEARS. WE THUS TREAT THE FORMER ASSESSMENT YEAR 2010-11 AS THE LEAD ASSESSMENT YEAR FOR ADJUDICATION OF THE INSTANT ISSUE. 9. A PERUSAL OF THE CASE FILE SUGGESTS THAT THE ASSESSEES AUDITED ACCOUNTS OF THE RELEVANT FINANCIAL YEAR 2009-10 AND ITS PROSPECTUS RELATING TO PUBLIC OFFERING AS WELL WORKING OF THE IMPUGNED EXPENSES FROM PART OF RECORDS IN PAGES 36 TO 55, 75 & 76; RESPECTIVELY. THE ASSESSEE COMPANY ENGAGED IN CIVIL CONSTRUCTION BUSINESS, HAD SOUGHT FOR THE IMPUGNED AMORTIZATION U/S 35D(2)(C)(IV) OF THE ACT REGARDING ITS IPO. IT STATED THAT ALTHOUGH THE EXPENDITURE ELIGIBLE FOR AMORTIZATION IN ISSUE STOOD AT RS.5,96,58,485/- OUT OF WHICH 5% OF THE PROJECT COST CAME TO RS.1,12,60,000/- ONLY. THE ASSESSING OFFICER REJECTED THE IMPUGNED CLAIM ON TWO IT(SS) NOS.77&78/KOL/2016, IT(SS) NO.46/KOL/2016 & C.O NO.22/KOL/2019 M/S MBL INFRASTRUCTURE LTD. PAGE | 5 COUNTS. HE FIRST OF ALL OBSERVED THAT SINCE THE ASSESSEE STOOD INCORPORATED WAY BACK ON 25.08.1995 AND IT HAD BEEN CARRYING OUT ITS BUSINESS ACTIVITIES, IT COULD NOT BE SAID THAT THIS EXPENDITURE WAS PRIOR TO COMMENCEMENT OF THE BUSINESS. AND THAT THIS EXPENDITURE PERTAINED TO IPO ONLY AND THEREFORE, IT CARRIED IMPRINT OF CAPITAL EXPENDITURE AS WELL. THE ASSESSING OFFICER THEN DEALT WITH ASSESSEES PLEA THAT CAPITAL RAISED THROUGH IPO HAS HELPED IN ACHIEVING THE GROWTH AND THUS, IT WAS AN INSTANCE OF EXTENSION OF UNDERTAKING ONLY. THE ASSESSING OFFICER DID NOT AGREE TO THE FOREGOING EXPLANATION. HE CAME TO ASSESSEES DETAILS THAT THE GROSS RECEIPTS HAD GONE UP 55.67% BY RAISING SHARE CAPITAL THAN 26.21% IN THE IMMEDIATE SUCCEEDING ASSESSMENT YEAR EVEN THOUGH NO SUCH CAPITAL HAD BEEN RAISED. ALL THIS MADE HIM TO HOLD THAT THE ASSESSEES CAPITAL DID NOT HAVE ANY DIRECT IMPACT ON THE GROSS RECEIPTS. HE FINALLY CONCLUDED THAT THE ASSESSEES IMPUGNED CLAIM RELATING TO ITS IPO DID NOT QUALIFY SECTION 35D AMORTIZATION SINCE IT NEITHER PERTAINED TO TIME PERIOD PRIOR TO COMMENCEMENT OF BUSINESS NOR IN CONNECTION WITH EXTENSION OF UNDERTAKING OR SETTING UP OF A NEW UNIT. HE THEREFORE DISALLOWED THE ASSESSEES SECTION 35D AMORTIZATION CLAIM AMOUNTING TO RS.112,60,00,000/-. 10. THE CIT(A) HAS DELETED THE IMPUGNED DISALLOWANCE AS UNDER: IT(SS) NOS.77&78/KOL/2016, IT(SS) NO.46/KOL/2016 & C.O NO.22/KOL/2019 M/S MBL INFRASTRUCTURE LTD. PAGE | 6 IT(SS) NOS.77&78/KOL/2016, IT(SS) NO.46/KOL/2016 & C.O NO.22/KOL/2019 M/S MBL INFRASTRUCTURE LTD. PAGE | 7 11. LEARNED CIT-DR VEHEMENTLY CONTENDS DURING THE COURSE OF HEARING THAT THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE IMPUGNED SECTION 35D DISALLOWANCE. HE REITERATED THE ASSESSING OFFICERS TWIN REASONS THAT THE ASSESSEES IPO EXPENSES NEITHER PERTAINED TO TIME PERIOD PRIOR TO COMMENCEMENT OF BUSINESS NOR THEY INDICATE ANY EXTENSION OR SETTING UP OF A NEW UNIT. CASE LAW (2006) 6 SOT 200 (CHENNAI) ASHOK LEYLAND LTD. VS ACIT, (2011) 8 ITR (T) 639 (BANGALORE) MEDREICH LTD. VS. DCIT AND (2014) 29 ITR (T) 134 INTER ALIA HOLDING THAT ONLY THESE SPECIFIED HEADS OF EXPENSES PRESCRIBED U/S 35D COULD BE AMORTIZED WHOSE ALL SUPPORTIVE DETAILS ARE ON RECORD. LEARNED CIT-DR ACCORDINGLY PRESSES FOR RESTORING THE ASSESSING OFFICERS ACTION DISALLOWING THE IMPUGNED SECTION 35D AMORTIZATION CLAIM. 12. LEARNED AUTHORIZED REPRESENTATIVE STRONGLY SUPPORTS THE CIT(A)S FOREGOING DETAILED DISCUSSION. HE SUBMITS THAT THE ASSESSEES FIXED ASSETS ALONG WITH PLANT AND MACHINERY FIGURES IN FINANCIAL YEAR 2009-10 HAD OPENING WRITTEN DOWN VALUE (WDV) OF 59.66 CRORES AND 58.74 CRORES WHICH SAW INCREASE OF RS.27.20 CRORES AND 27 CRORES; RESPECTIVELY. HIS CASE THEREFORE IS THAT THESE FIGURES SUFFICIENTLY INDICATE A SUBSTANTIAL EXPANSION OF ASSESSEES UNDERTAKING. MR. TULSIYAN THEN DRAWS OUR ATTENTION TO ASSESSEES INCREASE IN TURNOVER AS WELL INVOLVING CORRESPONDING FIGURES OF RS.505.84 CRORES IN 2009 RISING TO 628.88 CRORES IN FINANCIAL YEAR 2009-10 RELEVANT TO IMPUGNED ASSESSMENT YEAR. HE THUS CLARIFIES THE EFFECT OF ASSESSEES IPO IN QUESTION INVOLVING RAISING OF FUNDS HAVING COME INTO PLAY IN RELEVANT PREVIOUS YEAR ONLY. MR. TULSIYAN ALSO REFERS TO ASSESSEES INVESTMENTS COMPILED IN ITEMS NO.1 TO 8 SUGGESTING THAT THE CORRESPONDING PROJECTS ARE OTHERWISE ELIGIBLE FOR SECTION 80IA DEDUCTION AS WELL. 13. NEXT COMES THE ASSESSEES DETAILED PAPER BOOK PAGE 7 IN LATTER ASSESSMENT YEAR 2011-12 INDICATING 98.99 PER CENT INCREASE IN TURNOVER IN ASSESSMENT YEAR 2009-10 (SUPRA). MR. TULSIYAN TOOK US TO ASSESSEES OBJECTS OF SHARE CAPITAL AS WELL AND SUBMITS THAT THE FUNDS RAISED RELATED TO INVESTMENT IN CAPITAL EQUIPMENT ONLY AS PER PAGE 24 OF THE PAPER BOOK. IT(SS) NOS.77&78/KOL/2016, IT(SS) NO.46/KOL/2016 & C.O NO.22/KOL/2019 M/S MBL INFRASTRUCTURE LTD. PAGE | 8 14. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO THE RIVAL SUBMISSIONS IN SUPPORT OF AND AGAINST THE CIT(A)S ACTION DELETING IMPUGNED SECTION 35D AMORTISATION DISALLOWANCE. THERE CAN HARDLY BE ANY DISPUTE THAT THIS STATUTORY PROVISION PRESCRIBES AMORTISATION OF CAPITAL EXPENDITURE RELATING TO SPECIFIED ITEMS ONLY U/S 35D WHICH HAVE BEEN INCURRED; BEFORE THE COMMENCEMENT OF BUSINESS OR AFTER THE COMMENCEMENT OF HIS BUSINESS, IN CONNECTION WITH THE EXTENSION OF ITS UNDERTAKING OR IN CONNECTION WITH HIS SETTING UP A NEW INDUSTRIAL UNIT PROVIDED IN SUB-SECTION 2(I) AND (II) OF SECTION 35D; RESPECTIVELY. WE FIND THAT THERE IS NO REBUTTAL COMING FROM THE REVENUE SIDE ABOUT THE PURPOSE OF ASSESSEES CAPITAL RAISED AS MEANT FOR INVESTMENT IN CAPITAL EQUIPMENTS, WORKING CAPITAL REQUIREMENT, GENERAL CORPORATE PURPOSES FOLLOWED BY ISSUE EXPENSES ONLY. THIS TRIBUNALS RECENT DECISION IN ACIT VS. WEST GUJARAT EXPRESSWAY LTD. (2015) 154 ITD 103 (MUMBAI-TRIB) ALLOWS SIMILAR INSTANCE OF EXPENSES OF AUTHORIZED SHARE CAPITAL AS AMORTIZABLE FALLING UNDER EXTENSION OF THE UNDERTAKING ONLY. LEARNED COORDINATE BENCH HAS ALSO CONSIDERED EID PARRY (INDIA) LTD. VS. DCIT 256 CTR 104 (MADRAS). WE CONCLUDE IN THE FOREGOING FACTUAL AND LEGAL POSITION THAT THE ASSESSEES CASE COMES U/S 35D(2)(II) SINCE IN CONNECTION WITH EXTENSION OF ITS UNDERTAKING ONLY AS EVIDENT FROM ASSESSEES FOREGOING FACTUAL DETAILS. THE CIT(A)S IDENTICAL FINDINGS UNDER CHALLENGE DELETING IMPUGNED IDENTICAL SECTION 35D DISALLOWANCE OF RS.120,00,000/- IN BOTH THESE ASSESSMENT YEARS ARE UPHELD THEREFORE. 15. NEXT COMES THE REVENUES SECOND SUBSTANTIVE GRIEVANCE THAT THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING SECTION 80IA DEDUCTION DISALLOWANCE OF RS.23,90,63,499/- IN ASSESSMENT YEAR 2010-11. WE NOTICE THAT THE ASSESSEES FIRST SUBSTANTIVE GROUND IN ITS CO NO.22/KOL/2019 SEEKS TO EXEMPT THE VERY SUM OF SECTION 115JB MAT COMPUTATION. COMING TO LATTER ASSESSMENT YEAR 2011-12 INVOLVING THE ASSESSEES APPEAL ITA NO.46/KOL/2016 ALSO, WE NOTICE THAT ITS SECOND SUBSTANTIVE GROUND SEEKS TO ALLOW SECTION 80IA DEDUCTION OF RS.18,17,75,627/- AND ITS EXEMPTION U/S 115JB MAT COMPUTATION IN THE LATTER IT(SS) NOS.77&78/KOL/2016, IT(SS) NO.46/KOL/2016 & C.O NO.22/KOL/2019 M/S MBL INFRASTRUCTURE LTD. PAGE | 9 SUBSTANTIVE GROUND. THE LATTER RELIEF OF MAT COMPUTATION IN ASSESSMENT YEAR 2011-12 HAS BEEN CLAIMED BY WAY OF ITS PETITION SEEKING TO ADMIT ADDITIONAL GROUND DATED 25.07.19. LEARNED CIT-DR OBJECTED TO ASSESSEES ADDITIONAL GROUND(S) THE SAME AT THIS BELATED STAGE. WE FIND NO FORCE IN REVENUES FOREGOING TECHNICAL ARGUMENTS IN THE LIGHT OF HONBLE APEX COURTS DECISION IN NATIONAL THERMAL POWER CORPORATION(SUPRA) CONSIDERED IN THE TRIBUNALS SPECIAL BENCHS DECISION IN ALL CARGO GLOBAL LOGISTICS LTD VS. DCIT REPORTED IN (2012) 137 ITD 287 (MUM ITAT) (SB) THAT WE CAN VERY WELL ENTERTAIN SUCH AN ADDITIONAL GROUND FOR DETERMINING THE CORRECT TAX LIABILITY OF A TAX PAYER PROVIDED ALL THE RELEVANT FACTS ARE ALREADY ON RECORD. THIS IS NOT THE REVENUES CASE THAT THE CASE FILE DOES NOT CONTAIN THE RELEVANT DETAILS. WE ACCORDINGLY ADMIT THE ASSESSEES PETITION SEEKING TO RAISE TO VARIOUS ADDITIONAL GROUNDS. 16. WE THUS PROCEED TO DEAL WITH THE INSTANT ISSUE OF SECTION 80IA DEDUCTION AS WELL AS MAT IMPLICATIONS THEREOF AND TREAT THE FORMER ASSESSMENT YEAR 2010-11 AS THE LEAD ASSESSMENT YEAR. 17. WE NOTICE FROM A PERUSAL OF THE CASE FILE IN FORMER ASSESSMENT YEAR 2010-11 THAT ASSESSEE HAD FILED ITS ORIGINAL RETURN U/S 139(1) OF THE ACT ON 13.10.10. THE DEPARTMENT CARRIED OUT A SEARCH IN QUESTION IN ITS OFFICE AND OTHER BUSINESS PREMISES ON 28-29/10/2010. THE ASSESSING OFFICER ISSUED SECTION 153A NOTICE DATED 20.07.2011 FOR ASSESSMENT YEARS 2005-06 TO 2010-11 ASKING FOR RETURN OF INCOME WITHIN 15 DAYS OF SERVICE THEREOF. THIS NOTICE STOOD SERVED ON THE VERY DAY ITSELF. 18. THE ASSESSEE FILED ITS POST-SEARCH RETURN ON 30.09.11 REITERATING THE EARLIER INCOME (SUPRA). IT HAD ADMITTEDLY NOT CLAIMED THE IMPUGNED SECTION 80IA DEDUCTION IN EITHER OF THESE TWO RETURNS. THE ASSESSEE RATHER CHOSE TO FILE REVISED RETURN/COMPUTATION DATED 15.03.2013 CLAIMING SECTION 80IA DEDUCTION FOR THE FIRST TIME INTER ALIA PLEADING THEREIN THAT THE VERY CLAIM STOOD ACCEPTED IN ASSESSMENT YEAR 2005-06 TO 2006-07 IN SEARCH ASSESSMENT FRAMES U/S 153A, SECTION 80IA IT(SS) NOS.77&78/KOL/2016, IT(SS) NO.46/KOL/2016 & C.O NO.22/KOL/2019 M/S MBL INFRASTRUCTURE LTD. PAGE | 10 EXPLANATION HAD NOT BEEN TAKEN INTO ACCOUNT THEREIN, SOME OF ITS PROJECTS HAD NOT BEEN CONSIDERED AS ELIGIBLE FOR THIS RELIEF DUE TO AMENDMENT INTRODUCED VIDE FINANCE ACT NO.2 OF 2009 WITH RETROSPECTIVE EFFECT FROM 01.04.2000 AND THAT IT HAD FINALLY CONSIDERED ITSELF AS ELIGIBLE FOR THE DEDUCTION IN QUESTION AS PER VARIOUS JUDICIAL PRONOUNCEMENTS AT THAT POINT OF TIME. 19. THE ASSESSING OFFICERS ASSESSMENT ORDER DATED 22.03.13 DECLINED ASSESSEES SECTION 80IA DEDUCTION CLAIM ON MULTIPLE GROUNDS. HE OBSERVED THAT THIS RELIEF COULD NOT BE ALLOWED IN ABSENCE OF A REVISED RETURN AS PER GOETZE (INDIA) LTD. VS. CIT [2006] 284 ITR 323 (SC). THAT THE ASSESSEE HAD ALSO FILED A REVISED RETURN ON THE SAME DAY WHICH WAS NOT VALID SINCE SUBMITTED BEYOND A PERIOD OF ONE YEAR FROM END OF THE RELEVANT ASSESSMENT YEAR. THE ASSESSING OFFICER WENT ON TO QUOTE DATE OF SECTION 153A NOTICE I.E ON 20.07.2011 ASKING FOR RETURN WITHIN 15 DAYS OF SERVICE. HE OBSERVED THAT ASSESSEES RETURN; WHICH WAS REQUIRED TO BE FILED ON OR BEFORE 11.08.11 INCLUSIVE OF 15 WORKING DAYS; CAME ON 30.09.2011 ONLY. HE HELD THAT THE SAID RETURN WAS ALSO A BELATED ONE U/S 139(1) WHICH COULD NOT BE REVISED. AND THAT SECTION 234A(1) INTEREST PROVISION WAS ALSO INDICATIVE THAT SECTION 139(1) AND SECTION 153 RETURN ARE IDENTICALLY METED. CASE LAW (1996) 86 TAXMAN 122(SC) JAGDISH CHANDRA SINHA VS. CIT THAT ONLY A RETURN U/S 139(1) AND (2) COULD BE REVISED U/S 139(5) AND NOT THAT SUBMITTED U/S 139(4) OF THE ACT WAS ALSO QUOTED. THE ASSESSING OFFICER THUS RULED THAT THE ASSESSEES TWIN RECOURSE(S) ADOPTED IN FILING BOTH REVISED RETURN AS WELL AS COMPUTATION SUGGESTED SHEER CONFUSION ON ITS PART AS WELL. 20. THE ASSESSING OFFICER FURTHER ADVERTED TO ASSESSEES ELIGIBLE PROJECTS UNDERTAKEN (INCLUDING PROJECT COST) THAT THE REVENUE DERIVED THEREFROM WAS VERY MUCH CERTAIN WITHOUT INVOLVING ENTREPRENEURIAL OR INVESTMENT RISK SO AS TO QUALIFY FOR DEVELOPMENT IN VIEW OF SECTION 80IA(13) EXPLANATION INTRODUCED BY THE FINANCE ACT 2007 W.E.F. 01.04.2000. REFERENCE WAS ALSO MADE TO CBDTS CORRESPONDING EXPLANATORY NOTE DATED 12.03.08 ALONG WITH FINANCE ACT (NO.2) ACT 2009 INSERTING EXPLANATION TO SECTION 80IA(13) W.E.F 01.04.2000 AS WELL AS A SIMILAR MEMORANDUM ISSUED IN THE SAME DIRECTION. THE ASSESSING IT(SS) NOS.77&78/KOL/2016, IT(SS) NO.46/KOL/2016 & C.O NO.22/KOL/2019 M/S MBL INFRASTRUCTURE LTD. PAGE | 11 OFFICER FINALLY CONCLUDED THAT THE ASSESSEES PAYMENTS SUBJECT TO SECTION 194C TDS DEDUCTION SUFFICIENTLY INDICATED THAT THE CONCERNED PROJECTS DID NOT INVOLVE ITS BUSINESS RISK BEING A MERE CONTRACTOR ONLY AND THEREFORE, HE DECLINED THE IMPUGNED SECTION 80IA DEDUCTION RELIEF OF RS.239063499/-. 21. THE CIT(A) HAS REVERSED THE ASSESSMENT FINDINGS AS UNDER: IT(SS) NOS.77&78/KOL/2016, IT(SS) NO.46/KOL/2016 & C.O NO.22/KOL/2019 M/S MBL INFRASTRUCTURE LTD. PAGE | 12 IT(SS) NOS.77&78/KOL/2016, IT(SS) NO.46/KOL/2016 & C.O NO.22/KOL/2019 M/S MBL INFRASTRUCTURE LTD. PAGE | 13 IT(SS) NOS.77&78/KOL/2016, IT(SS) NO.46/KOL/2016 & C.O NO.22/KOL/2019 M/S MBL INFRASTRUCTURE LTD. PAGE | 14 IT(SS) NOS.77&78/KOL/2016, IT(SS) NO.46/KOL/2016 & C.O NO.22/KOL/2019 M/S MBL INFRASTRUCTURE LTD. PAGE | 15 22. LEARNED CIT-DR REITERATED THE ASSESSING OFFICERS FOREGOING DETAILED REASONING. HE INVITED OUR ATTENTION TO ASSESSEES REVISED RETURN AS WELL AS COMPUTATION AS WELL WHICH HAD NOT BEEN ACCEPTED AS VALID AS PER THE ASSESSING OFFICERS QUOTING SECTION 139(1), (2), (4) AND (5) OF THE ACT (SUPRA). MR. NAYAK IT(SS) NOS.77&78/KOL/2016, IT(SS) NO.46/KOL/2016 & C.O NO.22/KOL/2019 M/S MBL INFRASTRUCTURE LTD. PAGE | 16 QUOTED THE RELEVANT DATES OF ASSESSEES ORIGINAL RETURN, SEARCH, ISSUANCE OF 153A NOTICE AND THE RETURN IN RESPONSE THERETO (SUPRA). IT IS FURTHER SUBMITTED THAT THE ASSESSEES REVISED RETURN AS WELL AS REVISED COMPUTATION CAME ON 15.03.13 WHICH COULD NOT HAVE BEEN ACCEPTED GOING BY SECTION 139(4) AND (5) OF THE ACT. HE FURTHER STATES THAT EVEN IF THE EARLIER ASSESSMENT STOOD ABATED, THE ASSESSEE COULD NOT HAVE RAISED THE IMPUGNED CLAIM IN SECTION 153A PROCEEDINGS SINCE A SEARCH UNDER THE PROVISIONS OF THE ACT DOES NOT CONFER ANY ADVANTAGE ON A TAXPAYER. SECTION 80AC IS ALSO QUOTED THAT AN ASSESSEE IS NOT ENTITLED FOR CHAPTER-VI DEDUCTION UNLESS THE RETURN IN QUESTION IS FURNISHED ON OR BEFORE THE DUE DATE PRESCRIBED U/S 139(1) OF THE ACT. OUR ATTENTION IS FURTHER INVITED TO THE RELEVANT DATE IN THE ASSESSING OFFICERS SECTION 153A NOTICE DATED 20.07.11 SEEKING RESPONSE WITHIN 15 DAYS (SUPRA) AND ASSESSEES RETURN ON 30.09.11 I.E. BEYOND THE STIPULATED PERIOD. THE ASSESSING OFFICER HAD RIGHTLY TREATED THE ASSESSEES RETURN AS AN INVALID ONE THEREFORE. CASE LAW SUOLIFICIO LINEA ITALIA (INDIA) (P.) LTD. (2018) 407 ITR 16 (CAL) AND (1973) 90 ITR 236 (ALLAHABAD) DHAMPUR SUGAR MILLS LTD. VS. CIT THAT SECTION 80AC BARS DEDUCTION UNDER CHAPTER VI OF THE ACT IN CASE A RETURN DOES NOT COME WITHIN THE DUE DATE U/S 139(1) OF THE ACT IS ALSO QUOTED. 23. MR. NAYAK NEXT CAME TO ASSESSEES PAPER BOOK DATED 25.07.19 CONTAINING 291 PAGES. HIS CASE IS THAT ITS AGREEMENT DATED 07.12.17 SUFFICIENTLY INDICATES THAT IT WAS A MERE CONTRACTOR AND NOT A DEVELOPER AS PER THE TWIN STATUTORY AMENDMENTS AND SUBSEQUENT MEMORANDUM OF EXPLANATION (SUPRA). IT IS ACCORDINGLY PRAYED THAT THE IMPUGNED SECTION 80IA DEDUCTION DISALLOWANCE MADE BY THE ASSESSING OFFICER DESERVES TO BE RESTORED. 24. MR. TULSIYAN STRONGLY SUPPORTED THE CIT(A)S ACTION DELETING THE IMPUGNED DEDUCTION DISALLOWANCE. HE STARTS WITH ADMITTED FACTS REGARDING THE ASSESSEE HAVING FILED SECTION 139(1) RETURN ON TIME FOLLOWED BY SEARCH, SECTION 153A NOTICE, ITS SERVICE DATE, TIME LIMITATION OF 15 DAYS POST-SEARCH RETURN, REVISED COMPUTATION (SUPRA). HIS CASE IS THAT THE ASSESSING OFFICER HAS HIMSELF ACCEPTED THE ASSESSEES POST-SEARCH RETURN AS A VALID ONE AND THEREFORE, THE SAME CANNOT BE IT(SS) NOS.77&78/KOL/2016, IT(SS) NO.46/KOL/2016 & C.O NO.22/KOL/2019 M/S MBL INFRASTRUCTURE LTD. PAGE | 17 ALLOWED TO BE HELD AS AN INVALID ONE AS PER REVENUES STAND. COMING TO SECTION 80AC, HIS CASE IS THAT THE SAME DOES NOT DEAL WITH A RETURN IN PROCEEDINGS U/S 153A OF THE ACT. AND THAT SECTION 153A(1)(A) NOTICE DOES NOT PRESCRIBE ANY TIME LIMITATION TO FILE A RETURN AS IT IS PROJECTED AT THE REVENUES BEHEST. LEARNED COUNSEL TOOK US TO EARLIER SCHEME OF BLOCK ASSESSMENT IN SEARCH CASES PRESCRIBED IN CHAPTER XIV(B) OF THE ACT IN SECTIONS 158B TO N 158B(I) UPTO 31.05.2003 FOLLOWED BY SEARCH ASSESSMENTS BY WAY OF INSERTING SECTION 153A TO SECTION 153D VIDE FINANCE ACT 2003 W.E.F. 01.06.2003. HIS CASE IS THAT THE LEGISLATURE HAD SPECIFICALLY PROVIDED TIME LIMIT OF FILING RETURN BETWEEN 15 TO 45 DAYS IN SPECIFIED CIRCUMSTANCES IN A CASE INVOLVING BLOCK ASSESSMENTS U/S 158BC(1) AND (II) AND AS WELL AS 2 ND PROVISO THERETO THAT AN ASSESSEE FURNISHING RETURN UNDER THE SAID CLAUSES WAS NOT ENTITLED TO REVISE HIS RETURN. LEARNED COUNSEL ACCORDINGLY SUBMITS THAT THERE IS NO SUCH EMBARGO IN THE NEW SCHEME OF SEARCH ASSESSMENTS U/S 153A TO 153C OF THE ACT, WHEREIN, THE TIME LIMIT OF FILING OF RETURN OR REVISION THEREOF HAS NOT BEEN PRESCRIBED. IT IS REITERATED THAT WE ARE DEALING WITH AN ABATED ASSESSMENT U/S 153A(1) 2 ND PROVISO AND THEREFORE, THE IMPUGNED ASSESSMENT IS SUPPOSED TO BE THAT OF TOTAL INCOME U/S 153A(1)(B) OF THE ACT. THIS TRIBUNALS COMMON ORDER IN ASSESSEES CASES ITSELF IN ASSESSMENT YEARS 2005-06, 2007-08 AND 2009-10 AT PAGE 50 OF THE PAPER BOOK DECLINING THE REVENUES VERY SUBSTANTIVE GRIEVANCE HAS ALSO BEEN QUOTED AS UNDER: 13. IN THE RETURN OF INCOME ORIGINALLY FILED UNDER SECTION 139(1) ON 30.09.2008 DECLARING TOTAL INCOME OF RS.10,08,54,860/- FOR THE YEAR UNDER CONSIDERATION I.E. A.Y. 2008-09, A DEDUCTION OF RS.5,77,16,153/- WAS CLAIMED BY THE ASSESSEE UNDER SECTION 80IA OF THE ACT. THE SAID RETURN WAS ACCEPTED BY THE ASSESSING OFFICER UNDER SECTION 143(1) AND NO NOTICE UNDER SECTION 143(2) WAS ISSUED BY HIM TILL THE EXPIRY OF STATUTORY TIME LIMIT ON 30.09.2009. THEREAFTER A SEARCH AND SEIZURE ACTION WAS CONDUCTED IN THE CASE OF THE ASSESSEE ON 28.10.2010 AND IN THE RETURN OF INCOME FILED IN RESPONSE TO THE NOTICE ISSUED UNDER SECTION 153A IN PURSUANT TO THE SAID ACTION, DEDUCTION TO THE EXTENT OF RS.1,27,30,160/- WAS CLAIMED BY THE ASSESSEE. DURING THE COURSE OF ASSESSMENT PROCEEDINGS UNDER SECTION 153A READ WITH SECTION 143(3), THE ASSESSEE, HOWEVER, FILED A REVISED COMPUTATION OF TOTAL INCOME CLAIMING DEDUCTION UNDER SECTION 80IA OF RS.5,77,16,153/- AS CLAIMED IN THE RETURN OF INCOME ORIGINALLY FILED ON 30.09.2008. IN THE ASSESSMENT COMPLETED UNDER SECTION 153A READ WITH SECTION 143(3) VIDE AN ORDER DATED 22.03.2013, THE ASSESSING OFFICER ALLOWED THE CLAIM OF THE ASSESESE FOR DEDUCTION UNDER SECTION 80IA ONLY TO THE EXTENT OF RS.1,27,30,160/- AND THE ADDITIONAL DEDUCTION OF RS.4,49,85,993/- CLAIMED BY THE ASSESSEE IN THE REVISED COMPUTATION OF TOTAL INCOME WAS DISALLOWED BY HIM FOR THE SAME REASONS AS GIVEN FOR A.Y. 2005-06. ON APPEAL, THE LD. CIT(APPEALS) ALLOWED THE CLAIM OF THE ASSESSEE FOR ADDITIONAL DEDUCTION UNDER SECTION 80IA AS MADE IN THE REVISED COMPUTATION OF TOTAL INCOME ON THE SAME GROUNDS AS GIVEN IN A.Y. 2005-06. IT(SS) NOS.77&78/KOL/2016, IT(SS) NO.46/KOL/2016 & C.O NO.22/KOL/2019 M/S MBL INFRASTRUCTURE LTD. PAGE | 18 14. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES ON THIS ISSUE AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERVED THAT THE RETURN OF INCOME ORIGINALLY FILED BY THE ASSESSEE ON 30.09.2008 CLAIMING DEDUCTION OF RS.5,77,16,153/- UNDER SECTION 80IA WAS ACCEPTED BY THE ASSESSING OFFICER UNDER SECTION 143(1) AND SINCE NO NOTICE UNDER SECTION 143(2) WAS ISSUED BY HIM TILL THE EXPIRY OF THE STATUTORY TIME LIMIT, WHICH ENDED ON 30.09.2009, THE ORIGINAL ASSESSMENT FOR THE YEAR UNDER CONSIDERATION, I.E. A.Y. 2008-09 HAD BECOME FINAL BEFORE THE SEARCH AND SEIZURE OPERATION CONDUCTED ON 28.10.2010. AS RIGHTLY CONTENDED BY THE LD. COUNSEL FOR THE ASSESSEE, THERE WAS THUS NO REASON OR OCCASION TO RAISE THIS ISSUE IN THE PROCEEDINGS UNDER SECTION 153A READ WITH SECTION 143(3) AND THE DISALLOWANCE MADE BY THE ASSESSING OFFICER TO THE EXTENT OF RS.4,49,85,993/- ON ACCOUNT OF ASSESSEES CLAIM FOR DEDUCTION UNDER SECTION 80IA, WHICH WAS ALLOWED IN THE ORIGINAL ASSESSMENT AND THAT ASSESSMENT HAD BECOME FINAL, WAS NOT SUSTAINABLE, ESPECIALLY WHEN THERE WAS NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH, WHICH COULD FORM THE BASIS OF THE SAID DISALLOWANCE. EVEN THE LD. D.R. HAS NOT DISPUTED THIS POSITION, WHICH IS CLEARLY EVIDENT FROM THE RECORD INCLUDING THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 153A READ WITH SECTION 143(3). WE, THEREFORE, FIND NO INFIRMITY IN THE IMPUGNED ORDER OF THE DL. CIT(APPEALS) DELETING THE DISALLOWANCE MADE BY THE ASSESSING OFFICER ON THIS ISSUE AND UPHOLDING THE SAME, WE DISMISS GROUNDS NO. 1 & 2 OF THE REVENUES APPEAL. 25. MR. TULSIYAN NEXT SUBMITS THAT THE ASSESSEE COULD NOT RAISE ITS IMPUGNED DEDUCTION CLAIM IN VIEW OF THE CORRESPONDING STATUTORY AMENDMENTS FOLLOWED BY THE CBDTS MEMORANDUMS (SUPRA). LEARNED COUNSEL STATES THAT THE ASSESSEES DEDUCTION CLAIM OF RS.23,90,63,499/- HAS BEEN DERIVED FROM ITS DEVELOPMENT AGREEMENTS WITH M/S MPRRDC, M/S BSRDC, NEW DELHI PROJECTS INVOLVING VARYING SUMS OF MONEY. HE TAKES US TO ASSESSEES PAPER BOOK RUNNING INTO 1-857 PAGES COMPRISING OF ALL THE RELEVANT DEVELOPMENT AGREEMENTS WITH PROJECT WISE BALANCE SHEETS. IT IS CLARIFIED THAT THE ASSESSEE HAD NOT ONLY DEPLOYED ITS PLANT AND MACHINERY IN EXECUTION OF THE SAID DEVELOPMENT AGREEMENTS BUT ALSO 10% OF THE GROSS RECEIPTS STOOD WITHHELD AS RETENTION MONEY GOING BY CONTRACTUAL CLAUSES. LEARNED AUTHORISED REPRESENTATIVE SUBMITS IN ALL THESE FACTS ON RECORD THAT THE ASSESSEE CAN BE VERY WELL HELD TO HAVE UNDERTAKEN AN BUSINESS RISKS IN DEVELOPMENT OF THE CORRESPONDING INFRASTRUCTURAL PROJECTS SO AS TO BE ELIGIBLE FOR THE IMPUGNED DEDUCTION. AND THAT THE ASSESSING OFFICERS ASSESSMENT ORDER HAD BRUSHED ASIDE ALL THE FOREGOING EXPLANATION WITHOUT DEALING WITH THE CORRESPONDING FACTUAL MATRIX OF THE ISSUE INVOLVED. IT IS LASTLY SUBMITTED THAT AN ASSESSEES DULY ELIGIBLE CLAIM COULD NOT HAVE BEEN DISALLOWED IN SUCH A CRYPTIC FASHION. CASE LAW OF NTPC LTD. 229 ITR 383(SC) IS ALSO RELIED UPON THAT EVEN THIS TRIBUNAL CAN ENTERTAIN AN ADDITIONAL PLEA TO ADJUDICATE UPON CORRECT TAX LIABILITY OF AN ASSESSEE IN SECOND APPELLATE PROCEEDINGS. IT(SS) NOS.77&78/KOL/2016, IT(SS) NO.46/KOL/2016 & C.O NO.22/KOL/2019 M/S MBL INFRASTRUCTURE LTD. PAGE | 19 26. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO THE ABOVE RIVAL CONTENTIONS. WE REITERATE THAT THE ASSESSEES REGULAR RETURN U/S 139(1) OF THE ACT CAME ON 13.10.10 FOLLOWED BY DEPARTMENTS SEARCH ACTION DATED 28/29.10.10 AND ISSUANCE OF SECTION 153A NOTICE DATED 20.07.11 SEEKING RETURN WITHIN 15 DAYS WHICH STOOD SERVED ON THE VERY DAY. THE ASSESSEE FURNISHED HIS SECTION 153A RETURN ON 30.09.11. WE FIND NO SUBSTANCE IN EITHER OF THE REVENUES TECHNICAL AS WELL AS LEGAL ARGUMENTS. IT EMERGES FIRST OF ALL THAT THE IMPUGNED SECTION 80IA DEDUCTION CLAIM ON MERITS, IS ALREADY COVERED BY THE TRIBUNAL COMMON ORDER (SUPRA) IN ASSESSMENT YEARS 2005-06 TO 2009-10 DATED 01.05.2019 THAT IT IS A DEVELOPER HAVING UNDERTAKEN BUSINESS RISK IN SIMILAR INFRASTRUCTURAL PROJECTS. REVENUES PLEADINGS IN THE INSTANT APPEAL NOWHERE PINPOINTED ANY DISTINCTION IN LAW AND ON FACTS IN ALL THESE ASSESSMENT YEARS. IT IS FURTHER NOTED THAT THE ASSESSEE HAS BEEN DEPLOYED ITS FIXED ASSETS AND ALSO PAID RETENTION MONEY TO THE PAYERS CONCERNED. ALL THIS SUFFICIENTLY INDICATES THAT THE ASSESSEES PAYERS NOWHERE UNDERTOOK ANY RISK IN THE CORRESPONDING PROJECTS. 28. COMING TO TECHNICAL ASPECT INVOLVED IN THE INSTANT LIS REGARDING THE FILING OF BELATED REVISED RETURN, WE FIND THAT HONBLE APEX COURTS JUDGMENT IN NTPC (SUPRA) SETTLED THE LAW LONG BACK THAT IF THE ASSESSEE IS A LEGALLY ENTITLED FOR A DEDUCTION CLAIM WHICH IS NOT TAXABLE AND THE CORRESPONDING CLAIM CAN ALSO BE ALLOWED TO BE RAISED FOR THE FIRST TIME EVEN IN SECTION 254 PROCEEDINGS. IT HAS ALSO COME ON RECORD THAT THE ASSESSEE HAD VERY WELL EXPLAINED THE REASONS OF HAVING NOT RAISED THE IMPUGNED SCHEME DUE TO THE CORRESPONDING LEGISLATIVE AMENDMENTS IN SECTION 80IA FOLLOWED BY CBDTS EXPLANATORY MEMORANDUMS. THIS TRIBUNAL IN (2012) 22 TAXMANN.COM 2(HYDERABAD) ITO VS. S. VENKATAIAH ALSO HOLDS THAT AN ASSESSEES LEGALLY ALLOWABLE CLAIM WHICH COULD NOT BE RAISED OWING TO CIRCUMSTANCES BEYOND ITS CONTROL AND PRESSED LATER ON BY WAY OF BELATED RETURN, COULD NOT BE DECLINED ON ACCOUNT OF MERE TECHNICALITY. 29. COMING TO THE STATUTORY ASPECT VIEWED FROM VARIOUS LEGISLATIVE DEVELOPMENTS RIGHT FROM BLOCK TO SEARCH ASSESSMENTS APPLICABLE UP TO IT(SS) NOS.77&78/KOL/2016, IT(SS) NO.46/KOL/2016 & C.O NO.22/KOL/2019 M/S MBL INFRASTRUCTURE LTD. PAGE | 20 31.05.03 AND W.E.F. 01.06.03 ONWARDS; RESPECTIVELY, WE FIND THAT THE SAME SUFFICIENTLY ANSWER THE REVENUES ARGUMENTS. THE FORMER SCHEME OF BLOCK ASSESSMENT IN SECTION 158BCA(I) AND (II) READ WITH 2 ND PROVISO THERETO MADE IT CLEAR THAT A PERSON; WHO HAD FURNISHED A RETURN UNDER THIS CLAUSE, WOULD NOT BE ENTITLED TO FILE A REVISED RETURN. THE LEGISLATURE HAS NOWHERE EMPLOYED SUCH A RESTRICTIVE EXPRESSION IN THE NEW SCHEME OF SEARCH ASSESSMENT IN SECTION 153A TO SECTION 153C APPLICABLE W.E.F. 01.06.03. MORE PARTICULARLY U/S 153A(1)(A) READS THAT THE PROVISIONS OF THIS ACT SHALL SO FAR AS THE CASE MAY BE APPLIED ACCORDINGLY AS IF SUCH RETURN WAS FURNISHED U/S 139 MEANING THAT A RETURN FILED U/S 153A IS TREATED AS THAT FILED U/S 139 OF THE ACT ONLY. SAME ANALOGY THEREFORE APPLIES TO A REVISED RETURN COVERED UNDER THE SAID GENERAL SCHEME OF THE ACT ONLY. WE THEREFORE HOLD THAT THE REVENUES EMPHASIS SEEKING TO DELETE ASSESSEES RETURN ITSELF AS AN INVALID ONE DOES NOT DESERVE TO BE ACCEPTED. 30. LEARNED CIT-DRS FURTHER ARGUMENT SEEKING TO INVOKE SECTION 80AC OF THE ACT THAT NO SUCH DEDUCTION SHALL BE ALLOWED TO HIM UNLESS HE FURNISHES THE RETURN OF HIS INCOME FOR SUCH ASSESSMENT ORDER ON OR BEFORE THE DUE DATE SPECIFIED UNDER SUB-SECTION (1) OF SECTION 139 ALSO FAILS TO EVOLVE OUR CONCURRENCE SINCE THE ASSESSEE ADMITTEDLY FILED HIS RETURN U/S 139(1) AS ON 13.10.10 ONLY. THE REVENUES EMPHASIS FOR TREATING THE ASSESSEES SECTION 153A RETURN AS BELATED IS WITHOUT ANY MERIT SINCE THE SAME WAS VERY MUCH TREATED AS A VALID ONE AS PER THE ASSESSMENT ORDER AND MORE SO, IN VIEW OF THE FACT THAT THE ASSESSING OFFICER MADE OTHER DISALLOWANCE/ADDITIONS ON MERITS AS WELL. WE ALSO WISH TO REITERATE THAT SECTION 153(1)(A) NOWHERE PRESCRIBES THE EFFECT OF NON-COMPLIANCE OF THE ASSESSING OFFICERS TIME LIMIT COMING IN THE CORRESPONDING NOTICE AS WAS THE CASE IN SECTION 158 BLOCK ASSESSMENTS. WE THUS ADOPT STRICTER INTERPRETATION PRINCIPLE AS PER HONBLE APEX COURTS CONSTITUTION BENCH JUDGMENT IN COMMR. OF CUSTOMS V. DILIP KUMAR AND CO., 2018 SCC ONLINE SC 747, DATED 30-07-2018 AND HOLD THAT THE LEGISLATURES NEW SCHEME OF SEARCH ASSESSMENTS U/S 153A TO 153C ALLOWS RETURNS TO BE REVISED AS PER NORMAL PROVISIONS U/S 139(1) TO (5) OF THE ACT UNLIKE THOSE IN IT(SS) NOS.77&78/KOL/2016, IT(SS) NO.46/KOL/2016 & C.O NO.22/KOL/2019 M/S MBL INFRASTRUCTURE LTD. PAGE | 21 BLOCK ASSESSMENTS (SUPRA). WE ARE FURTHER MINDFUL OF THE FACT THAT EVEN OTHERWISE ELSE, THERE IS NO UNDUE DELAY ON ASSESSEES PART IN FILING ITS POST SEARCH RETURN. 31. WE LASTLY NOTICE MORE A PERUSAL OF ASSESSEES CORRESPONDING DEVELOPMENT AGREEMENTS RUNNING TO PAGES 1 TO 164 IN PAPER BOOK DATED 27.10.09 AND OTHER SIMILAR RECORDS COMPRISING 1-854 PAGES THAT IT HAD VERY WELL UNDERTAKEN BUSINESS RISKS BY RAISING CAPITAL DEPLOYMENT OF FIXED ASSETS FOR CARRYING OUT THE NECESSARY INFRASTRUCTURAL DEVELOPMENT AND COMPLIED WITH RETENTION MONEY STIPULATIONS AS WELL(SUPRA). THE ASSESSEE HAS ALSO BEEN TREATED AS A DEVELOPER IN EARLIER ASSESSMENT YEARS. THIS TRIBUNALS COORDINATE BENCHS ORDER IN ITO VS. M/S SIMPLEX PROJECTS LTD. ITA NO.194&251/KOL/2011 DATED 17.01.2014 AND ITS GROUP COMPANIES CASE IN ITA NO.1684/KOL/2011 AND 1685/KOL/2011 DATED 18.06.2013 IN SIMPLEX SOM- DUTT BUILDERS J.V. AND SIMPLEX SUBHASH J.V.; RESPECTIVELY, CONSIDERED ALL THE STATUTORY AMENDMENTS IN THE ACT UP TO INSERTION OF EXPLANATION AFTER SECTION 80IA(13) TO HOLD THAT SUCH DEVELOPMENT AGREEMENTS ARE ELIGIBLE FOR SECTION 80IA DEDUCTION. WE THEREFORE CONCLUDE THAT THE CIT(A) HAS RIGHTLY ACCEPTED THE ASSESSEES REVISED CLAIM TO ALLOW ITS SECTION 80IA DEDUCTION OF RS.23,90,63,499/- IN ISSUE. THE REVENUE FAILS IN ITS SECOND SUBSTANTIVE GROUNDS IN FORMER ASSESSMENT YEAR 2010-11 INVOLVING ITA NO.77/KOL/2016 THEREFORE. 32. WE PROCEED FURTHER TO NOTICE THAT THE ASSESSEES FIRST SUBSTANTIVE GROUND IN ITS CROSS OBJECTION NO.22/KOL/2019 SEEKS TO EXEMPT THE ABOVE SECTION 80IA DEDUCTION CLAIM FROM THE PURVIEW OF SECTION 115JB MAT COMPUTATION. MR. TULSIYAN QUOTES THIS TRIBUNALS COORDINATE BENCHS DECISION IN NEHA HOME BUILDERS P. LTD. VS. CIT (2019) 92 TAXMANN.COM 102 AND HONBLE JURISDICTIONAL HIGH COURTS JUDGMENT IN PCIT VS. ANKIT METALS & POWER LTD. ITA 155 OF 2018 DATED 09.07.19 (PERTAINING TO A CAPITAL RECEIPT ONLY). WE FIND NO FORCE IN THE ASSESSEES INSTANT GRIEVANCE. IT EMERGES THAT THE TRIBUNALS YET ANOTHER COORDINATE BENCHS DECISION IN M/S. ROCKLINE DEVELOPERS P. LTD. VS. ITO ITA NO.5125/MUM/2016 DATED 06.07.2018 HAS CONSIDERED THE EARLIER ORDER IN NEHA IT(SS) NOS.77&78/KOL/2016, IT(SS) NO.46/KOL/2016 & C.O NO.22/KOL/2019 M/S MBL INFRASTRUCTURE LTD. PAGE | 22 HOME BUILDERS (SUPRA) TO DECLINE SUCH A MAT EXEMPTION AGAINST THE ASSESSEE AS UNDER: 6. THE FIRST ISSUE RELATES TO THE CLAIM FOR DEDUCTION U/S 80IB(10) OF THE ACT, WHILE COMPUTING BOOK PROFIT U/S 115JB OF THE ACT. THE LEARNED A.R. SUBMITTED THAT PROVISIONS OF SECTION 115JB(5) OF THE ACT, WHICH READS AS UNDER:- SAVE AS OTHERWISE PROVIDED IN THIS SECTION, ALL OTHER PROVISIONS OF THIS ACT SHALL APPLY TO EVERY ASSESSEE, BEING A COMPANY MENTIONED IN THIS SECTION. HE SUBMITTED THAT THE HON'BLE SUPREME COURT IN THE CASE OF ROLTA INDIA LTD. 330 ITR 470 HAS INTERPRETED SECTION 115JB(5) OF THE ACT AND HAS HELD THAT ALL OTHER PROVISIONS OF THE ACT SHALL APPLY. ACCORDINGLY THE LEARNED A.R. CONTENDED THAT PROVISIONS OF SECTION 80IB SHOULD ALSO APPLY FOR COMPUTING BOOK PROFIT UNDER SECTION 115JB OF THE ACT. 7. THE LEARNED A.R. FURTHER SUBMITTED THAT DEDUCTION PRESCRIBED UNDER SECTION 80HHC OF THE ACT HAS BEEN ALLOWED IN THE CASE OF CIT VS. INDIAN PETROCHEMICALS CORPORATION LTD. (2016) 74 TAXMANN.COM 163 (GUJ). HE FURTHER SUBMITTED THAT THE RECEIPTS WHICH ARE NOT IN THE NATURE OF INCOME CANNOT BE TAXED UNDER SECTION 115JB OF THE ACT AS PER THE DECISION RENDERED BY THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF INCOME TAX OFFICER VS. FRIGSALES (INDIA) LTD. (2005) 4 SOT 376. HE ALSO SUBMITTED THAT THE CAPITAL RECEIPTS WHICH DO NOT CONSTITUTE INCOME OF THE ASSESSEE CANNOT BE BROUGHT TO TAX NET BY EMPLOYING THE MECHANISM OF SECTION 115JB OF THE ACT, AS HELD IN THE CASE OF ITO VS. SURAJ JEWELLERY (INDIA) LTD. (2008) 21 SOT 79 (MUM). THE LEARNED A.R. FURTHER SUBMITTED THAT PROVISIONS OF SECTION 115JB WERE INTRODUCED TO BRING CERTAIN COMPANIES WITHIN THE TAX NET, SINCE THEY WERE SHOWING BOOK PROFIT, BUT NOT PAYING ANY TAX BY AVAILING VARIOUS EXEMPTIONS AND DEDUCTIONS. HE SUBMITTED THAT THE ASSESSEE HEREIN DOES NOT FALL IN THE CATEGORY OF CERTAIN COMPANIES, REFERRED TO IN THE OBJECTIVE OF INTRODUCING SEC. 115JB OF THE ACT AND HENCE THE PROVISIONS OF SECTION 115JB SHOULD NOT BE APPLIED TO THE ASSESSEE. HE FURTHER SUBMITTED THE EXEMPTION GIVEN TO THE COMPANY UNDER SECTION 80IB(10) OF THE ACT SHALL REPRESENT THE INCOME WHICH IS NOT TAXABLE AND HENCE THE SAME SHOULD BE DEDUCTED WHILE COMPUTING BOOK PROFIT. IN THIS REGARD THE LEARNED A.R. TOOK SUPPORT OF THE DECISION RENDERED BY THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. D.P. SANDHU BROTHERS 273 ITR 1 WHEREIN IT WAS HELD THAT RECEIPTS WHICH ARE NOT TAXABLE CANNOT BE BROUGHT TO TAX NET UNDER ANY OTHER SECTION. ACCORDINGLY THE LEARNED A.R. SUBMITTED THAT THE ASSESSEE SHOULD BE ALLOWED DEDUCTION UNDER SECTION 80IB(10) OF THE ACT WHILE COMPUTING BOOK PROFIT. HE SUBMITTED THAT THE MUMBAI BENCH OF THE TRIBUNAL HAS CONSIDERED IDENTICAL ISSUE IN THE CASE OF NEHA HOME BUILDERS P. LTD. VS. CIT (2018) 92 TAXMANN.COM 102 AND HELD THAT THE ASSESSEE WAS ENTITLED TO DEDUCTION UNDER SECTION 80IB(10) OF THE ACT WHILE COMPUTING BOOK PROFIT UNDER SECTION 115JB OF THE ACT. 8. ON THE CONTRARY, THE LEARNED D.R. SUBMITTED THE PROVISIONS OF SECTION 115JB OF THE ACT IS APPLICABLE TO ALL COMPANIES MENTIONED THEREIN AND HENCE THE CONTENTIONS OF THE LEARNED A.R. THAT IT WOULD COVER ONLY CERTAIN COMPANIES IS NOT IN ACCORDANCE WITH THE MANDATE OF THE PROVISIONS. SHE FURTHER SUBMITTED THAT PROVISIONS OF SECTION 115JB IS AN ALTERNATE TAX MECHANISM BROUGHT INTO STATUTE TO COLLECT TAX FROM COMPANIES COVERED BY THE SECTION AND THE INCOME TAX SO PAID CAN BE ADJUSTED BY THE ASSESSEE FROM THE LIABILITY TO PAY INCOME TAX IN SUBSEQUENT YEARS UNDER NORMAL PROVISIONS OF THE ACT. SHE FURTHER SUBMITTED THAT PROVISIONS OF SECTION 115JB PRESCRIBE THE METHOD OF COMPUTATION OF BOOK PROFIT. AS PER THE METHOD SO PRESCRIBED, CERTAIN ITEMS OF EXPENDITURE DEBITED TO THE PROFIT & LOSS ACCOUNT HAS TO BE ADDED TO THE NET PROFIT AND CERTAIN TYPES OF INCOME CREDITED TO THE PROFIT & LOSS ACCOUNT HAS TO BE REDUCED FROM THE NET PROFIT. EXCEPT THE ADJUSTMENTS SO PROVIDED, THE ASSESSEE IS NOT ENTITLED TO CLAIM ANY OTHER DEDUCTION. 9. THE LD D.R SUBMITTED THAT THE PROVISIONS OF SECTION 115JB(5) PROVIDES THAT ALL OTHER PROVISIONS OF SEC.115JB SHALL APPLY TO THE COMPANIES SPECIFIED IN THAT SECTION EXCEPT FOR THE ITEMS SPECIFICALLY PROVIDED IN SEC. 115JB OF THE ACT. SHE FURTHER SUBMITTED THAT THE METHOD OF COMPUTATION OF BOOK PROFIT IS PROVIDED IN SEC. 115JB OF THE ACT ONLY AND NOT IN ANOTHER PROVISIONS. HENCE FOR IT(SS) NOS.77&78/KOL/2016, IT(SS) NO.46/KOL/2016 & C.O NO.22/KOL/2019 M/S MBL INFRASTRUCTURE LTD. PAGE | 23 DETERMINING THE BOOK PROFIT, ONE HAS TO LOOK INTO THE PROVISIONS OF SEC. 115JB ONLY AND NOT ELSEWHERE. 10. THE LEARNED D.R. FURTHER SUBMITTED THAT PROVISIONS OF SECTION 115JA PREVAILED BEFORE THE INTRODUCTION OF SEC. 115JB OF THE ACT. THE PROVISIONS OF SEC. 115JB SPECIFICALLY PROVIDED FOR DEDUCTION UNDER SECTION 80HHC OF THE ACT AND HENCE THE SAME WAS DISCUSSED IN THE CASE OF INDIAN PETROCHEMICALS CORPORATION LTD. (SUPRA). THE DECISION IN THE CASE OF FRIGSALES (INDIA) LTD. DISCUSSED ABOUT THE RECEIPTS, WHICH ARE NOT IN THE NATURE OF INCOME. SIMILARLY IN THE CASE OF SURAJ JEWELLERY (INDIA) LTD. (SUPRA) THE ISSUE CONSIDERED WAS ABOUT CAPITAL RECEIPTS. THE LEARNED D.R. SUBMITTED THAT THE ABOVE SAID DECISIONS DO NOT APPLY TO THE FACTS OF THE PRESENT CASE. SINCE THE ISSUE CONTESTED BY THE ASSESSEE RELATES TO THE CLAIM FOR DEDUCTION UNDER SECTION 80IB(10) OF THE ACT WHILE COMPUTING BOOK PROFIT. THE LEARNED D.R. SUBMITTED THAT THE PROVISIONS OF SECTION 115JB DOES NOT PROVIDE FOR DEDUCTION UNDER SECTION 80IB(10) OF THE ACT AND HENCE THE SAME COULD NOT BE ALLOWED. THE LEARNED D.R. FURTHER SUBMITTED THAT AN IDENTICAL ISSUE WAS CONSIDERED EXTENSIVELY BY HON'BLE KARNATAKA HIGH COURT IN THE CASE OF SANKHLA POLYMERS P. LTD. (SUPRA) AND HE HON'BLE HIGH COURT HAS HELD THAT PROVISIONS OF SECTION 115JB WOULD APPLY TO THE ASSESSEE WHO IS CLAIMING DEDUCTION UNDER SECTION 80IB OF THE ACT AND DEDUCTION UNDER SECTION 80IB(10) OF THE ACT CANNOT BE ALLOWED WHILE COMPUTING BOOK PROFIT UNDER SECTION 115JB OF THE ACT. THE LEARNED D.R. FURTHER SUBMITTED THAT AN IDENTICAL VIEW HAS BEEN EXPRESSED BY THE AHMEDABAD BENCH OF THE TRIBUNAL IN THE CASE OF GANESH HOUSING CORPORATION LTD. (SUPRA). THE LEARNED D.R. FURTHER SUBMITTED THAT THE DECISION IN THE CASE OF D.P. SANDHU BROTHERS (SUPRA) WAS RENDERED BY THE HON'BLE SUPREME COURT IN THE CONTEXT OF COMPUTATION OF CAPITAL GAINS AND HENCE THE OBSERVATIONS MADE THEREIN CANNOT BE TAKEN SUPPORT BY THE ASSESSEE WHILE COMPUTING BOOK PROFIT UNDER SECTION 115JB OF THE ACT. 11. WE HAVE HEARD THE PARTIES ON THIS ISSUE AND PERUSED THE RECORD. AS SUBMITTED BY THE LEARNED D.R., PROVISIONS OF SECTION 115JB PRESCRIBE THE METHODOLOGY TO COLLECT MINIMUM AMOUNT OF TAX AND HENCE THE TAX SO COLLECTED WAS CALLED MINIMUM ALTERNATE TAX. THIS PROVISION IS SUCCESSOR TO SEC. 115JA AND SEC. 115J, WHICH WERE BROUGHT INTO THE STATUTE BY THE PARLIAMENT ON NOTICING THAT CERTAIN COMPANIES ARE DECLARING HUGE BOOK PROFITS, BUT ARE NOT PAYING INCOME TAX UNDER THE NORMAL PROVISIONS OF THE ACT BY AVAILING VARIOUS DEDUCTIONS AND EXEMPTIONS. THE MINIMUM ALTERNATIVE TAX IS LEVIED ON THE AMOUNT OF BOOK PROFIT COMPUTED AS PER THE PROVISIONS OF SECTION 115JB OF THE ACT. THIS SECTION PRESCRIBES A METHODOLOGY TO COMPUTE BOOK PROFIT AS PER WHICH THE FINANCIAL STATEMENTS HAS TO BE PREPARED IN ACCORDANCE WITH THE PROVISIONS OF COMPANIES ACT AND THE NET PROFIT SHOULD BE ARRIVED AT. THEREAFTER CERTAIN ITEMS OF EXPENDITURE DEBITED TO PROFIT & LOSS ACCOUNT HAS TO BE ADDED TO THE NET PROFIT AND CERTAIN ITEMS OF INCOME CREDITS TO THE PROFIT & LOSS ACCOUNT HAS TO BE REDUCED, MEANING THEREBY, THE BOOK PROFIT HAS TO BE COMPUTED IN ACCORDANCE WITH THE METHODOLOGY PROVIDED IN SECTION 115JB OF THE ACT. ADMITTEDLY, THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT WAS NOT LISTED AS A PERMISSIBLE DEDUCTION FROM THE NET PROFIT WHILE COMPUTING BOOK PROFIT. 12. WE HAVE NOTICED THAT THE LEARNED A.R. HAS PLACED RELIANCE ON VARIOUS CASE LAWS. WE NOTICE THAT THOSE CASE LAWS HAVE BEEN RIGHTLY DISTINGUISHED BY THE LEARNED D.R. AND HENCE WE ARE OF THE VIEW THAT THE ASSESSEE CANNOT TAKE SUPPORT OF THOSE CASE LAWS. THE LEARNED A.R. PLACED HEAVY RELIANCE ON PROVISIONS OF SECTION 115JB(5) OF THE ACT WHICH STATES THAT SAVE AS OTHERWISE PROVIDED IN THE SECTION ALL OTHER PROVISIONS OF THE ACT SHALL APPLY. THE LD A.R PLACED EMPHASIS ON THE EXPRESSION ALL OTHER PROVISIONS OF THE ACT SHALL APPLY AND STATED THAT THE PROVISIONS OF SEC. 80IB(10) ALSO SHALL APPLY WHILE COMPUTING BOOK PROFIT U/S 115JB OF THE ACT. ADMITTEDLY, THE LD A.R MISSED OUT THE EXPRESSION SAVE OTHERWISE PROVIDED IN THIS SECTION OCCURRING IN FIRST PART OF SEC. 115JB OF THE ACT. 13. WE HAVE NOTICED THAT THE PROVISIONS OF SEC. 115J/115JA/115JB WERE INTRODUCED IN THE INCOME TAX ACT TO BRING CERTAIN COMPANIES POPULARLY CALLED ZERO TAX COMPANIES INTO TAX NET BY DEVISING AN ALTERNATIVE MECHANISM OF COLLECTION OF TAX. THESE COMPANIES WERE NOT PAYING TAX BY AVAILING VARIOUS EXEMPTIONS AND DEDUCTIONS. UNDER THESE PROVISIONS, BOOK PROFIT OF THE COMPANY IS COMPUTED AS PER THE METHODOLOGY PROVIDED IN SEC.115JB OF THE ACT. THE INCOME TAX PAYABLE AS PER SEC. 115JB IS MORE THAN THE TAX PAYABLE UNDER NORMAL PROVISIONS OF THE ACT, THEN THE BOOK PROFIT COMPUTED U/S 115JB OF THE ACT IS TAKEN AS TOTAL INCOME AND TAX SHALL BE LEVIED THEREON AS PER THE IT(SS) NOS.77&78/KOL/2016, IT(SS) NO.46/KOL/2016 & C.O NO.22/KOL/2019 M/S MBL INFRASTRUCTURE LTD. PAGE | 24 PROVISIONS OF SEC.115JB OF THE ACT. IT IS PERTINENT TO NOTE THAT THE METHODOLOGY TO COMPUTE BOOK PROFIT IS PRESCRIBED IN SEC. 115JB OF THE ACT. IN OUR VIEW, THE PROVISIONS OF SEC.115JB(5) PROTECTS THE METHODOLOGY OF COMPUTING BOOK PROFIT PRESCRIBED IN SEC. 115JB OF THE ACT AND HENCE THE IT BEGINS WITH THE EXPRESSION SAVE AS OTHERWISE PROVIDED IN THIS SECTION, I.E., EXCEPT FOR THE PROVISIONS SPECIFICALLY PROVIDED IN SEC. 115JB OF THE ACT, ALL OTHER PROVISIONS OF THE ACT SHALL APPLY. IN OUR VIEW, THIS IS THE PROPER INTERPRETATION OF SEC. 115JB(5) OF THE ACT. WE NOTICE THAT SEC.115JB(5) OF THE ACT WAS INTERPRETED BY THE HON'BLE SUPREME COURT IN THE CASE OF ROLTA INDIA LTD.(SUPRA) IN THE CONTEXT OF CHARGING OF INTEREST U/S 234B OF THE ACT. ADMITTEDLY PROVISIONS OF SECTION 115JB DOES NOT PROVIDE FOR CHARGING INTEREST CORRESPONDING TO SEC. 234B AND HENCE THE HONBLE SUPREME COURT HELD THAT THE PROVISIONS OF SEC. 234B SHALL APPLY TO THE TAX PAYABLE ON THE BOOK PROFIT COMPUTED U/S 115JB OF THE ACT, SINCE SEC. 115JB(5) STATES THAT ALL OTHER PROVISIONS THE ACT SHALL APPLY. THERE WAS NO OCCASION FOR THE HONBLE SUPREME COURT TO INTERPRET THE FIRST PORTION OF SEC. 115JB(5), WHICH STATES THAT SAVE AS OTHERWISE PROVIDED IN THIS SECTION. ADMITTEDLY THE METHODOLOGY FOR COMPUTING BOOK PROFIT IS PROVIDED ONLY IN SECTION 115JB OF THE ACT AND IS SAVED BY THE PROVISIONS OF SECTION 115JB(5) OF THE ACT. 14. THERE SHOULD NOT BE ANY DISPUTE THAT THE METHODOLOGY PROVIDED IN SEC. 115JB FOR COMPUTING BOOK PROFIT DID NOT PRESCRIBE FOR REDUCING THE AMOUNT ELIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE ACT FROM THE NET PROFIT. 15. WE ALSO NOTICE THAT THE ASSESSEE HAS CONSIDERED SEC. 80IB(10) OF THE ACT AS AN EXEMPTION PROVISION. IT IS WELL SETTLED PROPOSITION THAT THE DEDUCTIONS PRESCRIBED IN CHAPTER VIA ARE DEDUCTIONS PROVISION AND THEY SHALL BE ALLOWED ONLY IF THE GROSS TOTAL INCOME IS IN POSITIVE FIGURE. A DEDUCTION FOR A PARTICULAR TYPE OF INCOME IS AVAILABLE ONLY IF IT FORMS PART OF GROSS TOTAL INCOME. THUS, THE CONCERNED INCOME IS TAKEN AS PART OF GROSS TOTAL INCOME AND THEREAFTER, DEDUCTIONS ARE ALLOWED UNDER CHAPTER VIA OF THE ACT. CERTAIN INCOMES ARE TOTALLY EXEMPT FROM TAX AND SUCH TYPE OF INCOME DOES NOT ENTER INTO THE GROSS TOTAL INCOME AT ALL. HENCE THE DEDUCTION ALLOWED U/S 80IB(10) FALLS UNDER THE CATEGORY OF DEDUCTION PROVISION AND NOT EXEMPTION PROVISION AS CONTENDED BY THE ASSESSEE. THE PROVISIONS OF SEC. 115JB PRESCRIBES EXCLUSION OF CERTAIN EXEMPTED INCOME AND DO NOT PROVIDE DEDUCTION GIVEN U/S 80IB(10) OF THE ACT. THE HONBLE KARNATAKA HIGH COURT HAS MADE THIS POINT VERY CLEAR IN THE CASE OF IN THE CASE OF SANKHLA POLYMERS P. LTD. (SUPRA), WHEREIN THE HON'BLE HIGH COURT HAS HELD THAT PROVISIONS OF SECTION 115JB WOULD APPLY TO THE ASSESSEE WHO IS CLAIMING DEDUCTION UNDER SECTION 80IB OF THE ACT AND DEDUCTION UNDER SECTION 80IB(10) OF THE ACT CANNOT BE ALLOWED WHILE COMPUTING BOOK PROFIT UNDER SECTION 115JB OF THE ACT. IDENTICAL VIEW HAS BEEN EXPRESSED BY THE AHMEDABAD BENCH OF THE TRIBUNAL IN THE CASE OF GANESH HOUSING CORPORATION LTD. (SUPRA). 16. FOR THE SAKE OF CONVENIENCE, WE EXTRACT BELOW THE RELEVANT OBSERVATIONS MADE BY HONBLE KARNATAKA HIGH COURT IN THE CASE OF SANKHLA POLYMERS P LTD (SUPRA):- 26. SECTION 115JB IS IN THE NATURE OF A SPECIAL PROVISION, A CHARGING PROVISION, AND CREATING LIABILITY IN RESPECT OF AN ASSESSEE WHICH IS A COMPANY AND WHOSE TAXES AS DETERMINED ON THE RETURNS FILED IN THE NORMAL MANNER FALLS SHORT OF THE STIPULATED AMOUNT AND A CHARGE IS CREATED FOR MAKING THE DIFFERENCE I.E. THE OBJECT OF THE LEGISLATION IS TO ENSURE A MINIMUM TAX OF 7% ON THE BOOK PROFIT AS ASCERTAINED UNDER SECTION 115JB IS LEVIED AND COLLECTED FROM THE COMPANIES WHOSE PAYMENT OF TAX ALWAYS WITHOUT THE APPLICATION OF THIS PROVISION FALLS SHORT OF THIS AMOUNT OF TAX. 27. THOUGH SRI SHANKAR, LEARNED COUNSEL FOR THE APPELLANT HAS CALLED IN AID NOT ONLY THE BUDGET SPEECH BUT ALSO THE CIRCULAR ISSUED BY THE BOARD AND THE PRINCIPLES OF PROMISSORY ESTOPPEL AND LEGITIMATE EXPECTATION ETC., WE ARE AFRAID NONE OF THESE PRINCIPLES ARE ATTRACTED FOR THE SIMPLE REASON THAT A BUDGET SPEECH BEING ONLY AN INTRODUCTORY TO THE BILL IN THE PARLIAMENT AND THAT IN ITSELF IS NOT AN END. 28. THOUGH MANY DECISIONS ARE ROPED IN FOR INTERPRETING THIS, WE FIND THERE IS NO SCOPE FOR INTERPRETATION IN THE PRESENT SITUATION, AS THE PROVISION OF THE STATUTE SHOULD BE GIVEN EFFECT TO, AS IT OCCURS AND IF THERE IS ONLY ANY AMBIGUITY IN UNDERSTANDING THE STATUTE THEN ONLY THE TOOL OF IT(SS) NOS.77&78/KOL/2016, IT(SS) NO.46/KOL/2016 & C.O NO.22/KOL/2019 M/S MBL INFRASTRUCTURE LTD. PAGE | 25 INTERPRETATION SHOULD BE CALLED IN AID. WE DO NOT FIND ANY COMPETING OR DEROGATORY PROVISION IN SECTION 115JB VIS-VIS SECTION 80-IB OF THE ACT IS CONCERNED. 29. SECTION 80-IB OPERATES IN A PARTICULAR SPHERE AND SECTION 115JB IS OPERATIVE IN A TOTALLY DIFFERENT SPHERE. IT IS NOT THE CASE OF THE APPELLANT-ASSESSEE THAT SECTION 80- IB IS NOT OPERATED OR GIVEN EFFECT TO. GRIEVANCE OF THE ASSESSEE IS THAT BECAUSE OF THE OPERATION OF SECTION 115JB, THE BENEFIT OF SECTION 80-IB IS TAKEN AWAY. SECTION 115JB OCCURRING IN A TAXING STATUTE IS IN THE NATURE OF A CHARGING SECTION AND THAT TOO A SPECIAL CHARGING SECTION, EXEMPTION OR CONCESSION OR ANY OTHER BENEFIT SOUGHT SHOULD COME FROM WITHIN THE PROVISIONS OF SECTION 115JB ITSELF, WHICH OCCURS IN CHAPTER XII-B OF THE ACT. SECTION 80-IB IS A PROVISION WHICH OCCURS IN CHAPTER VI-A OF THE ACT AND A CHAPTER WHICH CONTAINS CERTAIN INCENTIVES AND CONCESSIONS GIVEN TO AN ASSESSEE ON FULFILLING THE REQUIREMENT SPECIFIED IN EACH SECTION MENTIONED THEREIN. 30. SECTION 80-IB IN THE FIRST INSTANCE IS NOT AN EXEMPTION PROVISION AND IT IS ONLY A PROVISION PROVIDING CERTAIN CONCESSIONS OR BENEFIT TO AN ASSESSEE AND IT DOES FACTOR WHILE COMPUTING THE TOTAL TAXABLE INCOME OF THE ASSESSEE, AS CHARGED UNDER SECTION 4 OF THE ACT. 31. WHILE THIS IS NOT IN ANY WAY DENIED TO AN ASSESSEE, SECTION 115JB IS A SPECIAL CHARGING SECTION FOR REGULATING TAX LIABILITY OF COMPANIES IN GENERAL AND MADE APPLICABLE IN PARTICULAR AND IS CONFINED TO THE ASSESSEE COMPANIES WHOSE TAX LIABILITY, WHEN COMPUTED IN THE NORMAL MANNER FALLS SHORT OF THE LIABILITY AS COMPUTED UNDER THIS PROVISION. THEREFORE, WE ARE OF THE VIEW THAT THERE IS ABSOLUTELY NO QUESTION OF SECTION 80-IB HAVING ANY BEARING OR EFFECT OR CONTROL OVER THE PROVISIONS OF SECTION 115JB OF THE ACT. IT IS TO BE NOTICED THAT SECTION 80-IB CONCESSION IS IN RESPECT OF THOSE ASSESSEES WHO QUALIFY FOR THAT AND SECTION 115JB LEVY IS CONFINED TO COMPANIES AND SUCH COMPANIES WHICH ARE ROPED IN WITHIN THE SCOPE OF THIS SECTION. IT IS BECAUSE OF THIS POSITION, WE ARE OF THE VIEW THAT THERE IS NO OCCASION FOR THE INTERPRETATION OR EXAMINATION OF THE PRINCIPLES OF PROMISSORY ESTOPPEL OR DOCTRINE OF LEGITIMATE EXPECTATION. THE BENEFIT UNDER SECTION 80-IB IS NOT DENIED, IT WORKS AS IT IS. IT IS ONLY BECAUSE THE ASSESSEE HAPPENS TO BE A COMPANY TO WHICH THE PROVISIONS OF SECTION 115JB IS ALSO ATTRACTED, LEVY AS INDICATED THEREIN BECOMES OPERATIVE. THEREFORE, WE DO NOT FIND THE APPLICABILITY OF THE DECISIONS RELIED UPON BY THE LEARNED COUNSEL FOR THE APPELLANT-ASSESSEE ON THIS ASPECT OF THE MATTER, IN THE PRESENT SITUATION. 32. IN SO FAR AS THE RELIANCE PLACED ON THE JUDGMENT OF THIS COURT IN THE CASE OF M/S UNITED BREWERIES LTD [SUPRA] IS CONCERNED, WHILE THAT WAS WITH REFERENCE TO THE PROVISIONS OF SECTION 115JA AND WE ARE NOW EXAMINING THE LIABILITY UNDER SECTION 115JB OF THE ACT. THE SCHEME OF CHARGING UNDER SECTION 115JB BEING TOTALLY DIFFERENT AND NOT WITH REFERENCE TO GENERAL RATE, BUT WITH REFERENCE TO A SPECIFIED RATE AS INDICATED IN SECTION 115JB ITSELF I.E. 7% OF DEEMED INCOME FOR THE PURPOSE OF SECTION 115JB, WE ARE AFRAID THE JUDGMENT WILL NOT ADVANCE THE CASE OF THE ASSESSEE IN THE PRESENT SITUATION. 33. A BUDGETARY SPEECH WHILE WILL HAVE SOME SIGNIFICANCE FOR UNDERSTANDING A PROVISION IF THERE IS ANY AMBIGUITY, IN THE WAKE OF CLEAR LANGUAGE OF THE SECTION 115JB, IN THE FIRST INSTANCE THERE IS NO AMBIGUITY, IN THE SECOND INSTANCE, THE AMBIGUITY SOUGHT TO BE INTRODUCED ON CERTAIN PREMISE WHICH IS NOT APPARENT AND IS ONLY ON A LIMITED READING OF THE BUDGET SPEECH, AT ANY RATE A BUDGET SPEECH IN ITSELF CANNOT REGULATE OR CONTROL THE STATUTORY PROVISION, MORE SO A CHARGING SECTION IN A REVENUE YIELDING STATUTE, WE ARE OF THE CLEAR OPINION THAT THE PROVISIONS OF SECTION 115JB SHOULD BE GIVEN FULL EFFECT TO WITHOUT BEING INFLUENCED OR GUIDED OR REGULATED BY THE BUDGET SPEECH OF THE FINANCE MINISTER. THE BOARD CIRCULAR BEING IN THE CONTEXT OF THE EARLIER PROVISIONS, BUT, NEVERTHELESS MORE BY WAY OF EXTRACTION OF THE BUDGET SPEECH, THAT BY ITSELF CANNOT HAVE ANY SPECIAL SIGNIFICANCE, AS THE BOARD CIRCULAR DOES NOT IN ANY WAY SEEKS TO CLARIFY THE LEVY AND RATE OF LEVY AS PROVIDED IN SECTION 115JB OF THE ACT. LEVY AND RATE OF TAX ALONE IS WHAT MATTERS FOR THE PURPOSE OF SECTION 115JB OF THE ACT. 34. ARGUMENTS ARE ADVANCED BY SRI SHANKAR, LEARNED COUNSEL FOR APPELLANT-ASSESSEE BASED ON PRINCIPLE OF INTERPRETATION THAT SECTION 115JB SHOULD BE SO INTERPRETED OR UNDERSTOOD AS TO ENSURE THAT THE BENEFIT GIVEN TO THE APPELLANT-ASSESSEE UNDER SECTION 80-IB OF THE ACT IS NOT TAKEN AWAY AND THE INTERPRETATION SUGGESTED BY SRI SHANKAR FAILS FOR MORE THAN ONE REASON EVEN ON APPLYING THE PRINCIPLE OF INTERPRETATION. THOUGH THERE IS NO NEED FOR INTERPRETING THE PROVISION AND EXAMINATION CAN IT(SS) NOS.77&78/KOL/2016, IT(SS) NO.46/KOL/2016 & C.O NO.22/KOL/2019 M/S MBL INFRASTRUCTURE LTD. PAGE | 26 ONLY BE IN THE CONTEXT OF UNDERSTANDING THE SCOPE OF SECTION 115JB OF THE ACT, NEVERTHELESS, IF IT IS SOUGHT TO BE INTERPRETED AS CONTENDED BY SRI SHANKAR IN THE BACKDROP OF SECTION 80- IB OF THE ACT, THE PRINCIPLE OF HARMONIOUS CONSTRUCTION OF A STATUTE WILL HAVE TO BE KEPT IN MIND. IT IS A WELL SETTLED PRINCIPLE THAT NO PROVISION OF AN ENACTMENT SHOULD BE SO INTERPRETED OR UNDERSTOOD AS TO RENDER OTIOSE OR INEFFECTIVE ANY OTHER PROVISION OF THE SAME ENACTMENT. THEREFORE, SECTION 80-IB CANNOT BE INTERPRETED SO AS TO RENDER THE PROVISION OF SECTION 115JB OF THE ACT NUGATORY OR OTIOSE OR INEFFECTIVE OR DOES NOT ACHIEVE THE PURPOSE FOR WHICH IT IS ENACTED. 35. SECTION 115JB, IN FACT, IN NO WAY EITHER DENIES THE BENEFIT GIVEN UNDER SECTION 80-IB OR REDUCES THE SAME. WHILE THE APPELLANTASSESSEE CAN CLAIM THE BENEFIT UNDER SECTION 80-IB OF THE ACT AND IT IS NOT DENIED PER SE TO THE APPELLANT-ASSESSEE, IN THE GIVEN CASE, THE PROVISIONS OF SECTION 115JB MAY BE ATTRACTED OR MAY NOT BE ATTRACTED DEPENDING UPON THE NATURE OR LEGAL COMPOSITION OF THE ASSESSEE. 36. IN FACT, THE MINIMUM ALTERNATE TAX IS SOUGHT TO BE LEVIED EARLIER UNDER SECTION 115JA AND NOW UNDER SECTION 115JB OF THE ACT, ONLY IN RESPECT OF SUCH COMPANIES WHICH, BY AVAILING VARIOUS CONCESSIONS GIVEN IN CHAPTER VI-A OF THE ACT, ARE ABLE TO SHOW EITHER A NIL TAXABLE INCOME OR MUCH REDUCED TAXABLE INCOME. CONCESSION GIVEN UNDER SECTION 80-IB IS ALSO ONE SUCH AND THEREFORE NO EXCEPTION CAN BE TAKEN. ONLY IN RESPECT OF THE AVAILABILITY OF A CONCESSION UNDER SECTION 80-IB AND TO MAKE IT IMMUNE FROM THE APPLICABILITY OF THE PROVISIONS OF SECTION 115JB OF THE ACT. BOTH PROVISIONS OPERATE IN THEIR OWN RESPECTIVE SPHERES AND HAVE TO BE GIVEN EFFECT. 37. SECONDLY AND MORE IMPORTANTLY, NO PROVISION OF A STATUTE CAN BE SO INTERPRETED AS TO RENDER IT UNCONSTITUTIONAL. IF THE ARGUMENT OF SRI SHANKAR, LEARNED COUNSEL FOR THE APPELLANT, IS TO BE ACCEPTED, THEN IT WILL RESULT IN A DISCRIMINATION AGAINST SUCH ASSESSEE- COMPANIES WHO HAVE TO PAY TAX UNDER SECTION 115JB OF THE ACT, BUT HAVE NO CONCESSION AVAILABLE UNDER SECTION 80-IB, WHEREAS THE TAX LIABILITY OF THE PERSON UNDER SECTION 115JB OF THE ACT, WHO CAN CLAIM CONCESSION UNDER SECTION 80-IBOF THE ACT GETS REDUCED FOR THE PURPOSE OF SECTION 115JB OF THE ACT. IT IS, THEREFORE, TO AVOID SECTION 115JB BEING RENDERED DISCRIMINATORY AND UNCONSTITUTIONAL BEING VIOLATIVE OF ARTICLE 14 OF THE CONSTITUTION OF INDIA, THE CONTENTION OF SRI SHANKAR FOR READING DOWN OR READING UP THE PROVISIONS OF SECTION 115JB OF THE ACT, PARTICULARLY BY ADDING TO DIFFERENT SITUATIONS MENTIONED IN THE EXPLANATION, TO BE EXPANDED BY INCLUDING REFERENCE TO SECTION 80-IB OF THE ACT CANNOT BE ACCEPTED. A STATUTORY PROVISION CANNOT BE SO READ DOWN TO RENDER IT UNCONSTITUTIONAL, BUT READING DOWN A STATUTORY PROVISION IS TO MAKE IT CONSTITUTIONAL AND NOT OTHERWISE. THEREFORE, THE ARGUMENTS FAIL. 17. THE AHMEDABAD BENCH OF TRIBUNAL ALSO CONSIDERED AN IDENTICAL ISSUE IN THE CASE OF GANESH HOUSING CORPORATION LTD VS. ACIT (2009)(32 SOT 207), WHEREIN IT WAS HELD AS UNDER:- 8. FROM THE PERUSAL OF AFORESAID SECTION, IT IS APPARENT THAT IF IN THE CASE OF AN ASSESSEE BEING A COMPANY THE INCOME-TAX COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF THE INCOME-TAX ACT COMES TO LESS THAN 10 PER CENT OF THE BOOK PROFIT, SUCH BOOK PROFIT SHALL BE DEEMED TO BE THE TOTAL INCOME OF THE ASSESSEE AND THE TAX PAYABLE BY THE ASSESSEE ON SUCH TOTAL INCOME, I.E., BOOK PROFIT WILL BE COMPUTED AT THE RATE OF 10 PER CENT. IN SUCH A SITUATION, NO OTHER PROVISIONS CONTAINED IN THE INCOME-TAX ACT WILL BE APPLICABLE. SUB-SECTION (2) STIPULATES THAT FOR THE PURPOSE OF THIS SECTION, THE PROFIT AND LOSS ACCOUNT FOR THE RELEVANT PREVIOUS YEAR SHALL BE PREPARED IN ACCORDANCE WITH THE PROVISIONS OF PARTS II AND III OF SCHEDULE VI TO THE COMPANIES ACT, 1956. IT HAS FURTHER BEEN LAID DOWN THAT WHILE PREPARING THE ANNUAL ACCOUNTS INCLUDING THE PROFIT AND LOSS ACCOUNT, THE ACCOUNTING POLICIES, ACCOUNTING STANDARDS, THE METHODS AND RATES ADOPTED FOR CALCULATING THE DEPRECIATION SHALL BE THE SAME AS HAS BEEN ADOPTED FOR THE PURPOSE OF PREPARING SUCH ACCOUNTS INCLUDING THE PROFIT AND LOSS ACCOUNT AND LAID BEFORE THE COMPANY AT THE ANNUAL GENERAL MEETING IN ACCORDANCE WITH THE PROVISIONS OF SECTION 210 OF THE COMPANIES ACT, 1956. EXPLANATION 1 DEFINES BOOK PROFIT FOR THE PURPOSE OF SECTION 115JB TO MEAN THE NET PROFIT AS SHOWN IN THE PROFIT AND LOSS ACCOUNT FOR THE RELEVANT PREVIOUS YEAR AS PREPARED UNDER SUB-SECTION (2) AND INCREASED WITH THE ITEMS AS HAS BEEN STIPULATED UNDER CLAUSES (A) TO (H ) OF EXPLANATION 1 AND HAS TO BE REDUCED BY THE ITEMS AS STIPULATED UNDER IT(SS) NOS.77&78/KOL/2016, IT(SS) NO.46/KOL/2016 & C.O NO.22/KOL/2019 M/S MBL INFRASTRUCTURE LTD. PAGE | 27 CLAUSES (I) TO (VIII). THUS, THE BOOK PROFIT WILL BE THE NET PROFIT AS SHOWN IN THE PROFIT AND LOSS ACCOUNT AS HAS BEEN LAID BEFORE THE COMPANY AT ITS ANNUAL GENERAL MEETING IN ACCORDANCE WITH THE PROVISIONS OF SECTION 210 OF THE COMPANIES ACT, 1956 AND AS HAS BEEN ARRIVED AT BY FOLLOWING THE ACCOUNTING POLICIES, ACCOUNTING STANDARDS AND THE METHODS AND RATES ADOPTED FOR CALCULATING THE DEPRECIATION AS HAS BEEN ADOPTED FOR PREPARING THE PROFIT AND LOSS ACCOUNT AS LAID BEFORE THE ANNUAL GENERAL MEETING. THUS, THE NET PROFIT AS SHOWN IN THE PROFIT AND LOSS ACCOUNT LAID BEFORE THE ANNUAL GENERAL MEETING WILL BE THE BOOK PROFIT BUT THIS BOOK PROFIT IS SUBJECT TO THE ADJUSTMENT AS LAID DOWN UNDER EXPLANATION 1, CLAUSES (A) TO (H ) AND CLAUSES (I) TO ( VIII). CLAUSES (IV), (V) AND (VI ) NO DOUBT STATE THAT THE PROFIT HAS TO BE REDUCED BY THE AMOUNT OF PROFIT ELIGIBLE FOR DEDUCTION UNDER SECTION 80HHC, UNDER SECTION 80HHE AND UNDER SECTION 80HHF, RESPECTIVELY. CLAUSES (I) TO (VIII) UNDER EXPLANATION 1 NOWHERE PROVIDES FOR THE REDUCTION OF THE DEDUCTION ALLOWABLE UNDER SECTION 80-IB OUT OF THE BOOK PROFIT. SUB-SECTION (3) STATES THAT THE PROVISIONS OF SECTION 115JB(1) WILL NOT AFFECT THE DETERMINATION OF THE AMOUNTS IN RELATION TO THE RELEVANT PREVIOUS YEARS TO BE CARRIED FORWARD TO THE SUBSEQUENT YEAR OR YEARS UNDER SECTION 32(2) OR 32A(3) OR 72(1) OR 73 OR 74A(3). SECTION 115JB(4) MAKES IT MANDATORY ON THE PART OF THE ASSESSEE-COMPANY TO WHOM SECTION 115JB IS APPLICABLE TO FURNISH A REPORT IN THE PRESCRIBED FORM FROM THE CHARTERED ACCOUNTANT CERTIFYING THAT THE BOOK PROFIT HAS BEEN COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION AND SUCH REPORT SHOULD BE FURNISHED ALONG WITH THE RETURN OF INCOME FILED UNDER SECTION 139(1) OR IN RESPONSE TO A NOTICE UNDER SECTION 142(1)(I). SUB-SECTION (5) PROVIDES THAT ALL THE PROVISIONS OF THIS ACT SHALL APPLY TO EVERY ASSESSEE BEING A COMPANY EXCEPT TO THE EXTENT OTHERWISE PROVIDED IN THIS SECTION. THE CRUX OF THE ARGUMENTS OF THE LEARNED AR IS ON THIS SUB-SECTION AND, THEREFORE, HE PLEADED THAT THE DEDUCTION AVAILABLE UNDER SECTION 80-IB SINCE FALLS UNDER CHAPTER VI-A AND HAS TO BE ALLOWED TO THE ASSESSEE EVEN A COMPANY WHILE COMPUTING THE TOTAL TAXABLE INCOME, THEREFORE, IN VIEW OF SUB-SECTION (5) OF SECTION 115JB, THE ASSESSEE SHOULD BE ALLOWED THE DEDUCTION IN RESPECT OF THE INCOME ELIGIBLE FOR DEDUCTION UNDER SECTION 80-IB WHILE COMPUTING THE BOOK PROFIT UNDER THIS SECTION. WE DO NOT AGREE WITH THE CONTENTION OF THE LEARNED AR BECAUSE THE DEDUCTION UNDER SECTION 80-IB IF WE READ THE LANGUAGE OF SECTION 80-IB IS AVAILABLE OUT OF THE GROSS TOTAL INCOME PROVIDED THE GROSS TOTAL INCOME OF AN ASSESSEE INCLUDES ANY PROFITS AND GAINS DERIVED FROM THE ELIGIBLE BUSINESS. SECTION 115JB IS CONCERNED WITH THE COMPUTATION OF BOOK PROFIT, AND NOT THE TOTAL INCOME. THE TERMS 'BOOK PROFIT' AND 'TOTAL INCOME' BOTH ARE HAVING DIFFERENT MEANINGS. 'BOOK PROFIT' IS DEFINED UNDER EXPLANATION 1 AS POINTED OUT BY US EARLIER UNDER SECTION 115JB WHILE THE 'TOTAL INCOME' IS DEFINED UNDER SECTION 66. UNDER SECTION 115JB, WE ARE CONCERNED WITH THE DETERMINATION OF THE BOOK PROFIT, AND NOT THE TOTAL INCOME OR THE GROSS TOTAL INCOME. 9. CHARGE OF INCOME-TAX AS PER SECTION 4 OF THE INCOME-TAX ACT IS ON THE TOTAL INCOME OF THE PREVIOUS YEAR OF EVERY PERSON. THE SCOPE OF THE TOTAL INCOME IS DEFINED UNDER SECTION 5 OF THE INCOME-TAX ACT WHICH IS DIFFERENT IN THE CASE OF RESIDENTS AND NON-RESIDENTS. THE RESIDENT IN INDIA OR NON-RESIDENT HAS TO BE DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 6 OF THE INCOME-TAX ACT. SECTIONS 10 TO 13A DEAL WITH THE INCOME, WHICH DO NOT FORM PART OF THE TOTAL INCOME. SECTION 14 DEALS WITH THE PROVISIONS HOW THE TOTAL INCOME IS TO BE COMPUTED UNDER DIFFERENT HEADS OF INCOME, VIZ., SALARIES, INCOME FROM HOUSE PROPERTY, PROFITS AND GAINS OF BUSINESS OR PROFESSION, CAPITAL GAINS AND INCOME FROM OTHER SOURCES. AFTER COMPUTING THE INCOME UNDER THE DIFFERENT HEADS AS PER THE PROVISIONS OF SECTIONS 14 TO 59, THERE ARE CERTAIN INCOME OF OTHER PERSONS WHICH ARE TO BE INCLUDED IN ASSESSEES TOTAL INCOME. THEY ARE BEING DEALT WITH UNDER SECTIONS 60 TO 65 OF THE ACT. SECTION 66 LAYS DOWN THAT IN COMPUTING THE TOTAL INCOME OF THE ASSESSEE THERE SHALL BE INCLUDED ALL THE INCOME ON WHICH NO INCOME-TAX IS PAYABLE UNDER CHAPTER VII. SECTIONS 67 TO 79 FALLING UNDER CHAPTER VII DEAL WITH THE AGGREGATION OF THE INCOME AND SET-OFF AND CARRY-FORWARD OF THE LOSSES WHILE COMPUTING THE TOTAL INCOME OF THE ASSESSEE. HOWEVER, CHAPTER VI-A DEALS WITH VARIOUS PROVISIONS RELATING TO THE DEDUCTIONS TO BE MADE IN COMPUTING THE TOTAL INCOME OF THE ASSESSEE. THESE DEDUCTIONS ARE TO BE MADE OUT OF THE GROSS TOTAL INCOME. GROSS TOTAL INCOME IS DEFINED UNDER SECTION 80B(5) TO MEAN THE TOTAL INCOME COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF THE INCOME-TAX ACT BEFORE MAKING ANY DEDUCTION UNDER CHAPTER VIA. THE DEDUCTION UNDER SECTION 80-IB IS IT(SS) NOS.77&78/KOL/2016, IT(SS) NO.46/KOL/2016 & C.O NO.22/KOL/2019 M/S MBL INFRASTRUCTURE LTD. PAGE | 28 ALLOWABLE TO THE ASSESSEE ON THE PROFITS OF THE ELIGIBLE BUSINESS INCLUDED IN THE GROSS TOTAL INCOME OUT OF THE GROSS TOTAL INCOME AND FALLS UNDER CHAPTER VI-A. SECTION 80A(1) PROVIDES IN COMPUTING THE TOTAL INCOME OF AN ASSESSEE, THERE SHALL BE ALLOWED FROM HIS GROSS TOTAL INCOME IN ACCORDANCE WITH AND SUBJECT TO THE PROVISIONS OF THIS ACT, THE DEDUCTION SPECIFIED IN SECTIONS 80C TO 80U. THUS, THE INCOME COMPUTED PRIOR TO THE DEDUCTION UNDER CHAPTER VI-A HAS TO BE REGARDED TO BE THE GROSS TOTAL INCOME AND ONCE THE DEDUCTIONS UNDER CHAPTER VI-A ARE ALLOWED, THE TOTAL INCOME IS ARRIVED AT. ON THIS TOTAL INCOME, THE TAX IS COMPUTED SUBJECT TO THE PROVISIONS CONTAINED IN CHAPTERS VII AND VIII OF THE INCOME-TAX ACT. SECTION 115JB AS HAS BEEN REPRODUCED HEREINABOVE ITSELF DISTINGUISHES IN THE TERMS TOTAL INCOME AND BOOK PROFIT. IT CLEARLY STATES THAT FIRSTLY, THE TOTAL INCOME OF THE ASSESSEE HAS TO BE COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF THE INCOME-TAX ACT. SECONDLY, THE INCOME-TAX PAYABLE ON THE TOTAL INCOME SO COMPUTED HAS TO BE DETERMINED. THIRDLY, THE BOOK PROFIT HAS TO BE WORKED OUT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 115JB. FOURTHLY, THE INCOME-TAX PAYABLE ON THE TOTAL INCOME HAS TO BE COMPARED WITH THE BOOK PROFIT AND ON COMPARISON, IF IT IS FOUND THAT THE INCOME-TAX PAYABLE IS LESS THAN 10 PER CENT OF THE BOOK PROFIT, THE BOOK PROFIT SO WORKED OUT SHALL BE DEEMED TO BE THE TOTAL INCOME OF THE ASSESSEE AND THE TAX PAYABLE BY THE ASSESSEE ON SUCH BOOK PROFIT SHALL BE THE AMOUNT OF INCOME-TAX AT THE RATE OF 10 PER CENT. THUS, THE BOOK PROFIT AND TOTAL INCOME HAS TO BE COMPUTED INDEPENDENTLY. THEREFORE, IN OUR OPINION, THE ASSESSEE COULD NOT BE ALLOWED DEDUCTION UNDER SECTION 80-IB WHILE COMPUTING THE BOOK PROFIT UNDER SECTION 115JB. 18. THE ABOVE SAID DECISIONS CLEARLY BRING OUT THAT THE TERM TOTAL INCOME AND BOOK PROFIT ARE CLEARLY DISTINGUISHED UNDER THE ACT. THE BOOK PROFIT IS REQUIRED TO BE COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SEC. 115JB OF THE ACT, WHILE THE TOTAL INCOME IS REQUIRED TO BE COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF THE ACT. WHILE COMPUTING THE TOTAL INCOME, THE DEDUCTION U/S 80IB(10) IS ALLOWED. HOWEVER, THE BOOK PROFIT IS REQUIRED TO BE COMPUTED STRICTLY IN ACCORDANCE WITH SEC.115JB OF THE ACT, WHICH DOES NOT SPECIFY AMOUNT COMPUTED U/S 80IB(10) AS A PERMISSIBLE DEDUCTION. 19. THE LD A.R PLACED HEAVY RELIANCE ON THE DECISION RENDERED BY THE COORDINATE BENCH IN THE CASE OF NEHA HOME BUILDERS (P) LTD VS. CIT (2018)(92 TAXMANN.COM 102), WHEREIN IT WAS HELD THAT THE ASSESSEE IS ENTITLED FOR DEDUCTION U/S 80IB(10) OF THE ACT WHILE COMPUTING BOOK PROFIT U/S 115JB OF THE ACT. ON A CAREFUL PERUSAL OF THE ORDER PASSED IN THE CASE OF NEHA HOME BUILDERS (P) LTD (SUPRA), WE NOTICE THAT THE SAME IS RELATED TO THE APPEAL PREFERRED AGAINST THE REVISION ORDER PASSED BY LD CIT U/S 263 OF THE ACT. IN THE ABOVE SAID CASE, THE AO HAD ACCEPTED THE CLAIM OF THE ASSESSEE FOR GRANTING DEDUCTION U/S 80IB(10) OF THE ACT FROM THE NET PROFIT, WHILE COMPUTING BOOK PROFIT U/S 115JB OF THE ACT. THE LD CIT FOLLOWED THE DECISION RENDERED BY HONBLE KARNATAKA HIGH COURT AND AHMEDABAD BENCH OF TRIBUNAL (BOTH THE CASES REFERRED ABOVE) AND HELD THAT THE ASSESSEE CANNOT CLAIM DEDUCTION U/S 80IB(10) OF THE ACT WHILE COMPUTING BOOK PROFIT. THE TRIBUNAL TOOK THE VIEW THAT THE AO HAS TAKEN A POSSIBLE VIEW AND ACCORDINGLY SET ASIDE THE REVISION ORDER. THE TRIBUNAL HAS TAKEN THE VIEW THAT THE DECISION RENDERED BY NON-JURISDICTIONAL HIGH COURT CANNOT TRIGGER REVISION PROCEEDINGS U/S 263 OF THE ACT. SINCE THE DECISION HAS BEEN RENDERED BY THE TRIBUNAL IN THE CONTEXT OF PROVISIONS OF SEC.263 OF THE ACT, WE ARE OF THE VIEW THAT THE ASSESSEE CANNOT PLACE RELIANCE ON THIS DECISION RENDERED BY THE CO-ORDINATE BENCH. 20. IN VIEW OF THE FOREGOING DISCUSSIONS, IN OUR CONSIDERED VIEW, THE CONTENTION OF THE LEARNED A.R. THAT PROVISIONS OF SECTION 80IB(10) WOULD FALL UNDER THE CATEGORY OF ALL OTHER PROVISIONS OF THE ACT AS MENTIONED IN SECTION 115JB(5) IS LIABLE TO BE REJECTED. ACCORDINGLY WE HOLD THAT THE ASSESSEE IS NOT ENTITLED TO CLAIM DEDUCTION U/S 80IB(10) OF THE ACT FROM THE NET PROFIT FOR THE PURPOSE OF COMPUTING BOOK PROFIT U/S 115JB OF THE ACT. ACCORDINGLY WE CONFIRM THE ORDER PASSED BY LD CIT(A) ON THIS ISSUE 33. COUPLED WITH THIS, THERE IS HARDLY ANY DISPUTE THAT THE IMPUGNED SECTION 115JB MAT PROVISION IS IN THE NATURE OF A NON-OBSTANTE CLAUSE SINCE CONTAINING THE CLINCHING STATUTORY EXPRESSION NOTWITHSTANDING ANYTHING CONTAINED IN ANY IT(SS) NOS.77&78/KOL/2016, IT(SS) NO.46/KOL/2016 & C.O NO.22/KOL/2019 M/S MBL INFRASTRUCTURE LTD. PAGE | 29 PROVISION OF THE ACT. THERE IS NO EXCEPTION THERETO IN THE RELEVANT DEDUCTION PROVISION U/S 80IA. WE THUS APPLY THE LEGAL LATIN MAXIM 'GENERALIA SPECIALIBUS NON-DEROGANT', I.E THE GENERAL PROVISION MUST YIELD TO THE SPECIAL PROVISION AND HOLD IN LIGHT OF THE COORDINATE BENCHS DETAILED DISCUSSION THAT THE ASSESSEES GRIEVANCE SEEKING MAT EXEMPTION REGARDING ITS SECTION 80IA DEDUCTION CLAIM OF RS.23,90,63,499/- DOES NOT CARRY ANY MERIT. THE SAME STANDS REJECTED THEREFORE. 34. COMING TO THE LATTER ASSESSMENT YEAR 2011-12, IT TRANSPIRES THAT THE ASSESSEES SECOND AND THIRD SUBSTANTIVE GROUNDS SEEK IDENTICAL SECTION 80IA DEDUCTION CLAIM OF RS.18,17,75,627/- IN NORMAL PROVISION FOLLOWED BY ITS EXEMPTION FROM SECTION 115JB MAT COMPUTATION. THIS ASSESSEES PAPER BOOKS INDICATE THIS CLAIM WAS NEITHER DECLINED IN ASSESSMENT ORDER DATED 22.03.2013 NOR IN THE CIT(A)S ORDER. RATHER NO SUCH GROUND WAS RAISED AS PER FORM 35. THE FACT ALSO REMAINS THAT THE ASSESSEE HAS PLACED ON RECORD ITS IDENTICAL DETAILS OF HAVING CARRIED OUT INFRASTRUCTURAL DEVELOPMENT. WE THEREFORE KEEP IN MIND THE CLINCHING FACTS OF THE ASSESSEES CORRESPONDING DETAILS IN THE PAPER BOOK AND DEEM IT APPROPRIATE TO RESTORE THE INSTANT ISSUE FORMING SUBJECT MATTER OF SECOND AND THIRD SUBSTANTIVE GROUNDS BACK TO THE ASSESSING OFFICER FOR ADJUDICATION AS PER LAW IN LIGHT OF OUR DETAILED DISCUSSION IN PRECEDING PARAGRAPHS IN ASSESSMENT YEAR 2010- 11. WE MAKE IT CLEAR THAT THE ASSESSEE WOULD NOT BE ENTITLED FOR SECTION 115JB MAT EXEMPTION GOING BY OUR FINDINGS IN LEAD ASSESSMENT YEAR. THE ASSESSEES SECOND AND THIRD SUBSTANTIVE GROUNDS IN ITA NO.46/KOL/2016 IN ASSESSMENT YEAR 2011-12 ARE ALLOWED FOR STATISTICAL PURPOSES AND REJECTED; RESPECTIVELY. 35. WE STAY BACK IN REVENUES TWO APPEALS. ITS THIRD AND SECOND SUBSTANTIVE GRIEVANCE IN BOTH ASSESSMENT YEARS CHALLENGES CORRECTNESS OF THE CIT(A)S ACTION HOLDING THAT THE ASSESSEE WAS ENTITLED FOR EXEMPTION OF INCOME DERIVED FROM JOINT VENTURE INVOLVING CORRESPONDING SUMS OF RS.21268081/- AND RS.11916769/-; RESPECTIVELY. THE ASSESSEES FOURTH SUBSTANTIVE GROUND IN ITS CROSS OBJECTION NO.22/KOL/2019 IN FORMER AND FIFTH ADDITIONAL GROUND IN LATTER ASSESSMENT YEAR ITA NO.46/KOL/2016 SEEK MAT EXEMPTION THEREUPON. WE DEEM IT PROPER TO IT(SS) NOS.77&78/KOL/2016, IT(SS) NO.46/KOL/2016 & C.O NO.22/KOL/2019 M/S MBL INFRASTRUCTURE LTD. PAGE | 30 REPRODUCE THE CIT(A)S DETAILED DISCUSSION IN THE LEAD ASSESSMENT YEAR 2010-11 ON THIS ISSUE AS FOLLOWS: 7. APPEAL ON GROUND NO 4 IS AGAINST THE DISALLOWANCE OF RS.21268081/- AS EXEMPT INCOME EARNED BY THE ASSESSEE FROM DIFFERENT AOPS. IN THE ASSESSMENT ORDER THE AO HAS GIVEN HIS FINDINGS AS UNDER: WHILE COMPUTING THE TOTAL INCOME, THE ASSESSEE COMPANY HAS REDUCED, FROM TAXABLE INCOME, THE PROFIT FROM VARIOUS JOINT VENTURES, CLAIMING THAT THE SAME ARE EXEMPT FOLLOWING ARE THE DETAILS: 1. MBL-CISC JV 2. MBL-LBPL JV 3. MBL-SUPREME JV BEFORE ALLOWING SUCH CLAIM, IT WAS VERY MUCH NECESSARY TO VERIFY THE ADMISSIBILITY AS WELL AS ACCURACY OF THE CLAIM SO MADE. HENCE, THE ASSESSEE WAS REQUESTED TO FURNISH THE RELEVANT DOCUMENT IN THIS REGARD, PARTICULAR THE EVIDENCE OF FILING OF RETURN OF INCOME BY THE JV, BEING AOP. HOWEVER, DESPITE HAVING BEEN CATEGORICALLY REQUESTED TO FURNISH THE DOCUMENTARY EVIDENCE IN SUPPORT OF THE CLAIM, THE ASSESSEE COULD NOT PRODUCE ANY EVIDENCE IN RESPECT OF FILING OF RETURN OF INCOME JUSTIFYING THE CLAIM OF RS.21268081/- DECLARED IN RESPECT OF MBL-SUPREME JV. AS THE ASSESSEE HAS FAILED TO DISCHARGE ITS PRELIMINARY ONUS TO SUBSTANTIATE THE CLAIM OF EXEMPTION, SUCH CLAIM IS DISALLOWED IN RESPECT OF THE JOINT VENTURE FOR DOCUMENTARY EVIDENCE COULD NOT BE FURNISHED'. DURING THE APPELLATE PROCEEDINGS THE AR HAS SUBMITTED THAT THE ASSESSEE HAD FILED ALL THE RELEVANT DOCUMENTS TO THE AO DURING THE APPELLATE PROCEEDINGS BUT SOMEHOW THE AO COULD NOT TAKE THEM INTO CONSIDERATION AND MADE THE DISALLOWANCE OF INCOME FROM AOP. MOREOVER, THE AR AGAIN FILED THE FULL AND COMPLETE SET OF PAPERS OF ASSESSEE'S INCOME FROM AOP. IN THE REMAND REPORT THE AO HAS ACCEPTED THAT THE ASSESSEE PRODUCED SOME PAPERS IN RESPECT OF TWO AOPS BUT DID NOT FULLY SUBSTANTIATE ITS CLAIM WITH RESPECT OF MBL-SUPREME JV. I HAVE CONSIDERED THE FINDING OF THE AO IN THE ASSESSMENT ORDER AND IN THE REMAND REPORT. I HAVE ALSO CONSIDERED DOCUMENTS FILED BY THE AR DURING THE APPELLATE PROCEEDINGS IN RESPECT OF ASSESSEE'S INCOME FROM DIFFERENT JOINT VENTURES. FROM DOCUMENTS FILED IT IS CLEAR THAT THE ASSESSEE HAS EARNED INCOME FROM AOP WHICH ARE NOT CHARGEABLE TO TAX IN THE HANDS OF THE ASSESSEE AS PER SECTION 86 OF THE I T ACT, 1961. HOWEVER, THE ASSESSEE HAS CLAIMED THAT THE SHARE OF ITS INCOME IN AOP AS IT IS INCORPORATED IN ITS BOOKS OF ACCOUNTS, IS ON ESTIMATED BASIS AND THE DIFFERENCE IF ANY, WITH ACTUAL HAS BEEN ADJUSTED IN SUBSEQUENT YEARS. THE ASSESSING OFFICER IS DIRECTED TO VERIFY THE CLAIM OF THE ASSESSEE IN THE LIGHT OF DOCUMENTS FILED AND TREAT THE INCOME CREDITED ON ACCOUNT OF AOP AS FREE FROM TAX U/S.86 AND THE DIFFERENCE AMOUNT, IF CORRECTED IN SUBSEQUENT YEARS, ALSO TO BE TREATED AS TAX NEUTRAL. THUS, ASSESSEES APPEAL ON GROUND NO.4 IS ALLOWED. 36. THE FACTUAL POSITION IS NO DIFFERENT IN LATTER ASSESSMENT YEAR 2011-12 AS WELL. THE ASSESSING OFFICER DECLINED THE IMPUGNED EXEMPTION ON THE SOLE GROUND THAT THE ASSESSEE HAD NOT PLACED ON RECORD THE CORRESPONDING DETAILS OF ITS JOINT VENTURES. WE FIND FROM THE FORMER ASSESSMENT YEARS ASSESSMENT ORDER DATED 22.03.13 PARA 4.3 THAT THERE IS NO OTHER REASONING WHATSOEVER IN THE ASSESSING OFFICERS OPINION TO DECLINE THE IMPUGNED EXEMPTION. THE CIT(A)S ORDER UNDER IT(SS) NOS.77&78/KOL/2016, IT(SS) NO.46/KOL/2016 & C.O NO.22/KOL/2019 M/S MBL INFRASTRUCTURE LTD. PAGE | 31 CHALLENGE ON THE OTHER HAND HOLDS THAT THE ASSESSEE HAD FILED ALL THE RELEVANT DOCUMENTS TO THE ASSESSING OFFICER WHICH HAD NOWHERE BEEN CONSIDERED. WE THEREFORE OBSERVE THAT ALTHOUGH THE REVENUE HAS ARGUED ON THE BASIS OF SECTION 251(1)(A) THAT THE POWER OF CIT(A) TO SET ASIDE THE ISSUE BACK TO THE ASSESSING OFFICER STANDS OMITTED W.E.F. 01.06.01, THE IMPUGNED ARGUMENT DIRECTION ARE AGAINST THE LAW. THE SAME DESERVES TO BE REJECTED SINCE THE ASSESSING AUTHORITY HAS BEEN DIRECTED TO GO BY THE ACTUAL AND THAN ON ESTIMATION BASIS FIGURES ONLY. WE THUS DECLINE THE REVENUES FOREGOING ARGUMENTS. SUFFICE TO SAY, THE ASSESSING OFFICER DIRECTED TO FINALISE HIS CONSEQUENTIAL FACTUAL VERIFICATION AS PER LAW. THIS REVENUES SUBSTANTIVE GROUND AS WELL AS BOTH OF ITS APPEALS ITA NO.77&78/KOL/2016 FAIL ACCORDINGLY. 37. COMING TO THE ASSESSEES SECTION 115JB EXEMPTION CLAIM QUA ITS JOINT VENTURES IN ISSUE, WE HOLD THAT THE ASSESSING OFFICER SHALL TAKE INTO ACCOUNT ALL FACTUAL AS WELL AS LEGAL ASPECTS (SECTION 115JB EXPLANATION 1(FA) NOT APPLICABLE IN THE IMPUGNED ASSESSMENT YEAR 2010-11 & 2011-12) IN HIS CONSEQUENTIAL COMPUTATION. THE FOURTH GRIEVANCE IN ITS CROSS OBJECTION CO NO.22/KOL/2019 AND FIFTH SUBSTANTIVE GROUND IN ASSESSMENT YEAR 2011-12 APPEAL ITA NO.46/KOL/2016 ARE ACCEPTED FOR STATISTICAL PURPOSES. 38. WE STAY BACK IN ASSESSMENT YEAR 2010-11 IN ASSESSEES CROSS-OBJECTION CO NO.22/KOL/2019. ITS SECOND GRIEVANCE IN CROSS OBJECTION AND SIXTH SUBSTANTIVE GRIEVANCE IN ASSESSMENT YEAR 2011-12S APPEAL ITA NO.46/KOL/2016 SEEK TO DELETE SECTION 40(A)(II) EDUCATION CESS DISALLOWANCE(S) OF RS.10,37,435/- WITH RS.9,26,089/- AND RS.4886592/-; RESPECTIVELY FOLLOWED BY SUCH SECTION 115JB MAT EXEMPTION. WE FIND THAT THIS TRIBUNALS COORDINATE BENCHS DECISION IN DCIT VS. ITC INFOTECH ITA NO.67/KOL/2015 HAS CONSIDERED HONBLE RAJASTHAN HIGH COURTS JUDGMENT IN CHAMBAL FERTILIZERS AND CHEMICALS LTD. ITA NO.52/2018 DATED 31.07.2018 AS WELL AS CBDTS CIRCULAR DATED 18.05.67 THAT THE CLINCHING STATUTORY EXPRESSION TAX DOES NOT EXCLUDE CESS. HE THEREFORE DIRECTED THE IT(SS) NOS.77&78/KOL/2016, IT(SS) NO.46/KOL/2016 & C.O NO.22/KOL/2019 M/S MBL INFRASTRUCTURE LTD. PAGE | 32 ASSESSING OFFICER TO ALLOW THE ASSESSEES EDUCATION CESS(ES) IN BOTH ASSESSMENT YEARS IN BOTH ASSESSMENT YEARS AS ALLOWABLE DEDUCTION IN LAW. 39. COMING TO MAT EXEMPTION OF THE IMPUGNED EDUCATION CESS, WE FIND THAT THE SECTION 115JB EXPLANATION 2(IV) AND (V) MAKES IT CLEAR THAT THE SECONDARY AND HIGHER EDUCATION CESS(ES) ON INCOME TAX HAVE BEEN INCLUDED IN EXPLANATION (1)(A) THEREOF. WE THEREFORE DECLINE THE ASSESSEES LATTER GRIEVANCE ON THE INSTANT ISSUE. 40. THE ASSESSEES THIRD SUBSTANTIVE GROUND IN ITS CO NO.22/KOL/2019 AND FOURTH GRIEVANCE IN APPEAL ITA NO.46/KOL/2016 SEEK YET ANOTHER SECTION 115JB MAT ADJUSTMENT EXEMPTION REGARDING ITS RETENTION MONEY OF RS.44937636/- AND RS.112688259/-; ASSESSMENT YEAR WISE; RESPECTIVELY. 41. AFTER GIVING OUR THOUGHTFUL CONSIDERATION TO THE RIVAL CONTENTIONS IN FAVOUR AND AGAINST THE IMPUGNED RELIEF, WE NOTICE THAT THIS ISSUE IS NO MORE RES INTEGRA SINCE THE TRIBUNALS ORDER IN DCIT VS. M/S MCNALLY BHARAT ENGINEERING LTD. I.T.A NOS. 147&109/KOL/2018 HOLDS THAT SUCH A RETENTION MONEY CANNOT BE REGARDED AS INCOME EVEN FOR THE PURPOSE OF COMPUTING SECTION 115JB BOOK PROFITS. LEARNED COORDINATE BENCH HOLDS THAT RETENTION MONEY DOES NOT PARTAKE CHARACTER OF INCOME TILL THE TIME THE CONTRACTUAL OBLIGATION IN ISSUE ARE FULLY PERFORMED TO THE SATISFACTION OF THE PAYER/OTHER PARTIES CONCERNED. WE ADOPT THE VERY REASONING MUTATIS MUTANDIS AND DIRECT THE ASSESSING OFFICER TO GRANT THE IMPUGNED SECTION 115JB MAT EXEMPTION TO THE ASSESSEE REGARDING RETENTION MONEY AMOUNTS IN ISSUE. ITS ABOVE SUBSTANTIVE GROUNDS ARE ACCEPTED. THE ASSESSEES CROSS-OBJECTION NO.22/KOL/2019 PARTLY ALLOWED IN ABOVE TERMS. 42. WE ARE NOW LEFT ASSESSEES CROSS APPEAL ITA NO.46/KOL/2016 IN LATTER ASSESSMENT YEAR 2011-12. WE MAKE IT CLEAR THAT WE HAVE ALREADY DECIDED ALMOST ALL ISSUES IN PRECEDING PARAGRAPHS. ITS FIRST SUBSTANTIVE GRIEVANCE IS THAT THE IMPUGNED SECTION 153A PROCEEDINGS ARE NOT LIABLE TO BE INVALID SINCE INITIATED WITHOUT ANY INCRIMINATING DOCUMENTS FOUND DURING THE COURSE OF SEARCH IN IT(SS) NOS.77&78/KOL/2016, IT(SS) NO.46/KOL/2016 & C.O NO.22/KOL/2019 M/S MBL INFRASTRUCTURE LTD. PAGE | 33 QUESTION DATED 28-29/10/2010. THE CIT(A) REJECTED THIS LEGAL PLEA FOR THE REASON THAT THE SEARCH AUTHORITIES HAD FOUND INCRIMINATING MATERIAL AGAINST THE ASSESSEE AS UNDER: 4. APPEAL ON GROUND NO 1/ADDITIONAL GROUND TAKEN BY THE AR IS AGAINST THE ORDER PASSED BY THE AO U/S 153A. THE MAIN CONTENTION OF THE ASSESSEE IS THAT THE AO HAS PASSED ORDER U/S 153A MAKING VARIOUS ADDITIONS WITHOUT ANY INCRIMINATING DOCUMENT FOUND RELATED THERETO FOUND DURING THE SEARCH OPERATION. THE AR HAS ALSO BROUGHT ON RECORD DIFFERENT CASE LAWS PRONOUNCED BY DIFFERENT JUDICIAL AUTHORITIES ON THIS ISSUE. I HAVE CONSIDERED AR'S SUBMISSION ON THIS ISSUE AND I HAVE ALSO CONSIDERED DIFFERENT CASE LAWS BROUGHT ON RECORD BY THE AR. I FIND THAT THE AO IN THE ASSESSMENT ORDER HAS CLEARLY MENTIONED THAT DURING THE SEARCH OPERATIONS ON DIFFERENT COMPANIES OF M/S MBL GROUP AND M/S MBL INFRASTRUCTURE DIFFERENT DOCUMENTS AND BOOKS OF ACCOUNTS WERE SEIZED UNDER THE ID MARKS MBNS/1 TO MBNS/12 AND MBNS/HD/1, MBL/1 TO MBL/14 & MNL/HD/1 TO MBL/HD/4, MBLSKA/1 TO MBLSKA/8 & MBLSKA/HD/9 AND MBL/1. THE ASSESSEE WAS ASKED TO FURNISH THE PAGE-WISE EXPLANATION OF THE DOCUMENTS SEIZED. REPLY FURNISHED BY THE ASSESSEE HAS BEEN EXAMINED WITH REFERENCE TO THE SEIZED DOCUMENTS. THUS IT IS CLEAR THAT THE AO HAS TAKEN INTO CONSIDERATION DIFFERENT SEIZED DOCUMENTS AND EXPLANATIONS THEREON BEFORE FRAMING THE ASSESSMENT ORDER AND MAKING DIFFERENT ADDITIONS THEREIN. SO, THE AR'S CONTENTION THAT DIFFERENT ADDITIONS HAVE BEEN MADE WITHOUT ANY INCRIMINATING SEIZED DOCUMENTS IS NOT CORRECT. ACCORDINGLY, ASSESSEE'S APPEAL ON GROUND NO 1/ADDITIONAL GROUND TAKEN IS DISMISSED. 43. THE ABOVE EXTRACTED CLINCHING FINDINGS THAT THE IMPUGNED ASSESSMENT IS INDEED BASED ON INCRIMINATING MATERIAL FOUND DURING SEARCH HAVE GONE UNREBUTTED FROM THE ASSESSEES SIDE. WE THEREFORE DECLINE ITS FIRST SUBSTANTIVE GROUND. ALL OF ITS REMAINING GROUNDS ALREADY STAND ADJUDICATED IN PRECEDING PARAS. THIS MAIN APPEAL ITA NO.46/KOL/2016 IS ALSO ACCEPTED IN PART IN ABOVE TERMS. 44. TO SUM UP, THE REVENUES APPEALS ITA NO.78 & 77/KOL/2016 ARE DISMISSED. THE ASSESSEES CO NO.22/KOL/2019 AS WELL AS CROSS-APPEAL NO.46/KOL/2016 THERETO ARE PARTLY ALLOWED IN ABOVE TERMS. A COPY OF THIS ORDER BE PLACED IN RESPECTIVE CASE FILES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 23.12.2019. SD/- ( A. L. SAINI ) SD/- (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER /KOLKATA; / DATE:23/12/2019 RS, SR. PS IT(SS) NOS.77&78/KOL/2016, IT(SS) NO.46/KOL/2016 & C.O NO.22/KOL/2019 M/S MBL INFRASTRUCTURE LTD. PAGE | 34 / COPY OF THE ORDER FORWARDED TO : TRUE COPY BY ORDER ASSISTANT REGISTRAR, I.T.A.T, KOLKATA BENCHES, KOLKATA . 1. THE ASSESSEE - M/S MBL INFRASTRUCTURE LTD. 2. THE REVENUE/DEPARTMENT- DCIT, CC-2(2), KOLKATA 3. ( ) / THE CIT(A), KOLKATA [SENT THROUGH EMAIL] 4. / CIT 5. , , / DR, ITAT, KOLKATA [SENT THROUGH EMAIL] 6. [ / GUARD FILE.