M/s GMR Tuni-Anakapali Expressways Pvt Ltd , Bangalore V. Deputy Commissioner of Income TAx Circle-3(1)(2), Bangalore

CO 82/BANG/2018

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 4042 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 21 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 10-08-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 19-06-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: SUNIL JAIN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH C, BANGALORE BEFORE SHRI N. V. VASUDEVAN, JUDICIAL MEMBER AND SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NOS. 1132 & 1133/BANG/2018 ASSESSMENT YEARS 2013 14 & 2014 15 THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 3 (1) (2), BANGALORE. VS. M/S. GMR TUNI ANAKAPALLI EXPRESSWAY PVT. LTD., 25/1, SKIP HOUSE, MUSEUM ROAD, BANGALORE 560025. PAN : AABCG8474E APPELLANT RESPONDENT & C. O. NOS. 82 & 83/BANG/2018 (IN ITA NOS. 1132 & 1133/BANG/2018) ASSESSMENT YEARS: 2013 14 & 2014 15 M/S GMR TUNI ANAKAPALLI EXPRESSWAY PVT. LTD., 25/1, SKIP HOUSE, MUSEUM ROAD, BANGALORE 560025. PAN : AABCG8474E VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 3 (1) (2), BANGALORE. APPELLANT RESPONDENT ASSESSEE BY : SHRI SUNIL JAIN, C. A. RE VENUE BY : SHRI SUNIL KUMAR SINGH, CIT ( DR ) DATE OF HEARING : 08 .0 8 .2018 DATE OF PRONOUNCEMENT : 10 .0 8 .2018 O R D E R PER A. K. GARODIA, AM. BOTH THESE APPEALS ARE FILED BY THE REVENUE AND THE SE TWO C.OS. ARE FILED BY THE ASSESSEE AND THESE ARE DIRECTED AGAINST TWO SEP ARATE ORDERS OF LEARNED CIT (A) 3, BANGALORE BOTH DATED 23.01.2018 FOR A. Y. 2013 14 & 2014 - 15. ITA NOS. 1132 & 1133/BANG/2018 & C.O. NOS. 82 & 83/BANG/2018 PAGE 2 OF 4 ALL THESE WERE HEARD TOGETHER AND ARE BEING DISPOSE D OF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. AS PER THE ONLY ONE IDENTICAL GROUND RAISED BY T HE REVENUE IN BOTH YEARS, THE ONLY GRIEVANCE OF THE REVENUE IS THIS THAT THE CIT (A) ERRED IN ALLOWING THE CLAIM U/S 80IA WHEN CONTACT WORK PERFORMED BY THE ASSESSE E DOES NOT FALL WITHIN THE DEFINITION OF NEW INFRASTRUCTURE FACILITY U/S 80IA AND IS IN CONTRAVENTION TO CBDT CIRCULAR NO. 4/2010 DATED 18.05.2010. 3. IN THE C. OS., THE GROUNDS RAISED BY THE ASSESSE E ARE IN SUPPORT OF THE ORDER OF CIT (A). 4. LEARNED DR OF THE REVENUE SUPPORTED THE ASSESSME NT ORDER AND LEARNED AR OF THE ASSESSEE SUPPORTED THE ORDER OF CIT (A). HE ALS O SUBMITTED THAT LEARNED CIT (A) HAS FOLLOWED THE TRIBUNAL ORDER IN THE CASE OF KMC CONSTRUCTIONS LTD. VS. ACIT AS REPORTED IN 21 TAXMAN.COM 138/ 32 CCH 0 297 HYD TRIB AND ALSO THE TRIBUNAL ORDER RENDERED IN THE CASE OF SOMDUTT BUILDERS NCC JV VS. ACIT IN ITA NOS. 148 & 481/HYD/2009 DATED 03.02.2017, CO PY AVAILABLE ON PAGES 48 TO 66 OF LEGAL PAPER BOOK. THEREAFTER HE SUBMITTED THAT THE WORK WAS DONE AS PER AN OLD AGREEMENT DATED 09.10.2001 AND SUPPLEMEN TARY AGREEMENT DATED 02.08.2002 COPY AVAILABLE ON PAGES 1 TO 201 OF THE PAPER BOOK. THEREAFTER, HE SUBMITTED THAT IN ALL EARLIER YEARS, DEDUCTION WAS ALLOWED U/S 80IA AS CLAIMED BY THE ASSESSEE AND HE POINTED OUT THAT COPY OF ASS ESSMENT ORDERS FOR A. YS. 2010 11 TO 2012 13 PASSED U/S 143 (3) ARE AVAIL ABLE ON PAGES 336 TO 343 OF THE PAPER BOOK. HE ALSO SUBMITTED THAT INTIMATIO N U/D 143 (1) FOR A. Y. 2015 16 DATED 28.07.2016 IS AVAILABLE ON PAGES 344 TO 36 3 OF THE PAPER BOOK AND THERE IS NO NOTICE ISSUED BY THE AO U/S 143 (2) OR U/S 148 FOR THIS YEAR TILL DATE. HE SUBMITTED THAT IN VIEW OF THE PRINCIPLE OF CONSI STENCY, THE CLAIM OF THE ASSESSEE IN THE PRESENT TWO YEARS ALSO SHOULD BE AL LOWED. IN REJOINDER, LEARNED DR OF THE REVENUE COULD NOT POINT OUT ANY DIFFERENC E IN FACTS AND HE COULD NOT REBUT THIS CONTENTION ABOUT THE PRINCIPLE OF CONSIS TENCY. ITA NOS. 1132 & 1133/BANG/2018 & C.O. NOS. 82 & 83/BANG/2018 PAGE 3 OF 4 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIN D THAT THE LEARNED CIT (A) HAS FOLLOWED TWO TRIBUNAL ORDERS AND NO DIFFERENCE IN F ACTS COULD BE POINTED OUT BY THE LEARNED DR OF THE REVENUE. AS PER PARA 48 OF T HIS TRIBUNAL ORDER, IN THAT CASE ALSO, DEDUCTION U/S 80IA WAS IN DISPUTE FOR TH E WORK UNDERTAKEN BY THE ASSESSEE FOR WIDENING TO FOUR LANES AND STRENGTHENI NG OF EXISTING TWO LANE CARRIAGEWAY IN KM. 27.80 TO KM. 61.00 JAGATPUR-CHAN DIKHOL SECTION OF NATIONAL HIGHWAY NO.5 IN THE STATE OF ORISSA. IN THE PRESENT CASE ALSO, THE FACTS ARE SIMILAR AND THE AO ALLOWED THE CLAIM OF THE ASSESSE E TO THE EXTENT OF 50% BY HOLDING THAT WORK UNDERTAKEN BY THE ASSESSEE FOR WI DENING TO FOUR LANES IS ELIGIBLE FOR DEDUCTION BUT HE HELD THAT THE WORK UN DERTAKEN BY THE ASSESSEE FOR STRENGTHENING OF EXISTING TWO LANE CARRIAGEWAY IN K M. 27.80 TO KM. 61.00 JAGATPUR-CHANDIKHOL SECTION OF NATIONAL HIGHWAY NO. 5 IN THE STATE OF ORISSA IS NOT ELIGIBLE FOR SUCH DEDUCTION AND SINCE THIS IS A COMBINED CONTRACT AND SEPARATE PROFIT IS NOT DETERMINABLE, HE HELD THAT 5 0% OF THE ENTIRE PROFIT IS FOR SUCH WORK IN RESPECT OF STRENGTHENING OF EXISTING T WO LANE CARRIAGEWAY AND TO THIS EXTENT, HE DISALLOWED THE CLAIM OF THE ASSESSE E. WHEN WE EXAMINE THIS LEGAL POSITION IN THE LIGHT OF THIS FACT THAT IN AL L EARLIER YEARS, THE AO HAS HIMSELF ALLOWED THE CLAIM OF THE ASSESSEE IN THE ORDERS PAS SED BY HIM U/S 143 (3), THERE IS NO INFIRMITY IN THE ORDER OF CIT (A) AND H ENCE, WE DECLINE TO INTERFERE. 6. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE A ND BOTH THE C.OS. OF THE ASSESSEE ARE DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- (N.V. VASUDEVAN) (ARUN KUMAR GARO DIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 10 TH AUGUST, 2018. /MS/ ITA NOS. 1132 & 1133/BANG/2018 & C.O. NOS. 82 & 83/BANG/2018 PAGE 4 OF 4 COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.