ACI T-CC-2, THANE V. SMC INFRASTRUCTURES P. LTD., THANE

ITA 1003/MUM/2021

• Counselvise Citation: [2022] 103 COUNSELVISE.COM (IT) 9738 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 28-09-2022
• Assessment Year: 2014-2015
• Appeal Filed On: 31-05-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 80IA; 255(4)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, ‘E‘ BENCH MUMBAI BEFORE: SHRI M.BALAGANESH, ACCOUNTANT MEMBER & SHRI RAHUL CHAUDHARY, JUDICIAL MEMBER ITA No.1003/Mum/ 2021 (Asse ssment Year :2014-15) ITA No.1002/Mum/ 2021 (Asse ssment Year :2015-16) ITA No.1001/Mum/ 2021 (Asse ssment Year :2016-17) & ITA No.1000/Mum/ 2021 (Asse ssment Year :2017-18) The ACIT CC-2, Thane Room No. 13, A Wing 6 th Floor, Ashar IT Park Wagle Industrial Estate, Road No. 16Z, Thane(W)-400604 Vs. SMC Infrastructures Private Limited 101, Akuriti SMC, Khopat LBS Mark, Thane(West)-400601 PAN/GIR No.AACC53437L (Appellant) .. (Respondent) Assessee by Shri Neel Khandelwal Revenue by Shri Chintamani V. Divgankar, SR. AR. Date of Hearing 29/09/2022 Date of Pronouncement 26/10/2022 आदेश / O R D E R PER BENCH: These appeals in ITA No. 1003/Mum/2021, 1002/Mum/2021, 1001/Mum/2021, 1000/Mum/2021 for A.Yrs. 2014-15 to 2017-18 arise out of the order by the ld. Commissioner of Income Tax (Appeals)- ITA No.1003/Mum/2021 and other appeals SMC Infrastructures Private Limited 2 CIT(A), Pune-11 in appeal No. CIT(A), Pune-11/10502/2016-17, CIT(A), Pune-11/10272/2017-18, CIT(A), Pune-11/10225/2018-19, CIT(A), Pune- 11/10226/2019-20 dated 18/03/2021 (ld. CIT(A) in short) against the order of assessment passed u/s.143(3) of the Income Tax Act, 1961 (hereinafter referred to as Act) dated 29/12/2016, 20/12/2017, 27/12/2018 & 18/12/2019 by the ld. Deputy Commissioner of Income- Tax, Central Circle-2, Thane, Asst. Commissioner of Income Tax, Central Circle -2, Thane (hereinafter referred to as ld. AO). Identical issues are involved in all these appeals and hence, they are taken up together and disposed off by this common order for the sake of convenience. 2. The only identical issue to be decided in these appeals is as to whether the ld. CIT(A) was justified in granting deduction u/s.80IA(4) of the Act in respect of eligible projects undertaken by the assessee in the facts and circumstances of the instant case. 3. We have heard rival submissions and perused the materials available on record. We find that assessee is a company engaged in the business of developing projects awarded to it by authorities such as Central Government, State Government, Municipal Corporations, and Corporations by Central or State Governments. The infrastructure projects are in respect of water supply projects / water treatment scheme, construction of roads, flyovers and construction of sewage treatment etc., 3.1. For the A.Y. 2014-15, the assessee filed return of income on 29/11/2014 declaring a total income of Rs.8,92,10,730/- and claimed deduction u/s 80IA(4) of the Act in the sum of Rs.13,81,85,353/- in ITA No.1003/Mum/2021 and other appeals SMC Infrastructures Private Limited 3 respect of profits attributable to what was claimed as activity of infrastructure development work. The ld. AO passed assessment order u/s 143(3) of the Act by disallowing the claim u/s 80IA(4) of the Act of Rs. 13,81,85,353/-. 3.2. For the A.Y. 2015-16, the assessee filed return of income on 27/11/2015 declaring total income of Rs.7,17,24,830/- and claimed deduction u/s 80IA(4) of the Act in the sum of Rs. 12,21,63,542/- in respect of profits attributable to what was claimed as activity of infrastructure development work. The ld. AO passed assessment order u/s 143(3) of the Act and disallowed the claim u/s 80IA(4) of the Act. 3.3. For the A.Y. 2016-17, the assessee filed return of income on 30/11/2016 declaring total income of Rs. 6,36,13,030/- and claimed deduction u/s 80IA(4) of the Act in the sum of Rs.9,43,03,274/- in respect of profits attributable to what was claimed as activity of infrastructure development work. The ld. AO passed assessment order u/s 143(3) of the Act and disallowed the claim u/s 80IA(4) of the Act. 3.4. For the A.Y. 2017-18, the assessee filed return of income on 28/11/2017 declaring total Income of Rs.18,90,18,700/- and claimed deduction u/s 80IA(4) of the Act in the sum of Rs.16,81,09,436/- in respect of profits attributable to what was claimed as activity of infrastructure development work. The ld. AO passed assessment order u/s 143(3) of the Act and disallowed the claim u/s 80IA(4) of the Act. 3.5. According to ld. AO, the primary conditions for claim of deduction u/s 80IA of the Act are that the assessee should be a 'developer of an infrastructure facility; that the developer is an entrepreneur who has an ITA No.1003/Mum/2021 and other appeals SMC Infrastructures Private Limited 4 interest in the property, finances the enterprise, initiates its development and ensures that this development is carried out for occupation, investment, dealing or use and recovers the investment by way of use of fees; that the developer undertakes the total responsibility for development and completion of the projects, bears the entire risk whether financial or otherwise, involved in development of the project. Compared to a developer, according to the ld. AO, a contractor is a person who is appointed by the principal to execute specific projects without having any financial stake. The ld. AO was therefore of the view that it cannot be said that a contractor who has constructed/commissioned only part of a whole project is a 'developer of the said project. The ld. AO has relied on the Memorandum explaining the provisions in the Finance bill 2007 where in the context of sec. 80IA of the Act, it is mentioned that the purpose of tax benefit has all along been for encouraging private sector participation by way of investment in development of infrastructure sector and not for the persons who merely execute the civil construction work or any other works contract. Accordingly, a person who entered a contract with another person being an 'undertaking or enterprise' referred to in sec.80IA of the Act for executing works contract, will not be eligible for the tax benefit u/s 80IA of the Act. The ld. AO has further stated that the assessee in his books of account has reflected the receipts from these contracts as work contract receipts clearly indicating that it merely executed a works contract. The ld. AO was therefore of the view, that the assessee is not a 'developer' of an 'infrastructural facility' as envisaged in sec.80IA of the Act and therefore is not eligible for the deduction. The ld. AO has also mentioned that in the case of the assessee on the issue of claim of deduction u/s 80IA of the Act, the Tribunal has in some years allowed the claim of the assessee (AY.2001-02, 2006-07, 2007 08 & 2008-09) whereas, in other ITA No.1003/Mum/2021 and other appeals SMC Infrastructures Private Limited 5 years decided in favour of revenue (AY. 2002-03 to 2005-06) and therefore, both the assessee and the department are in appeal before the Hon’ble Bombay High Court on this issue. In A.Y. 2009-10, the Tribunal has allowed the deduction u/s 80IA of the Act to the assessee relying on its own decision and the decision of B.T.Patel & Sons Belgaum Construction Pvt Ltd and the decision of Hon’ble Bombay High Court in the case of ABG Heavy Industries Ltd reported in 189 Taxman 54 (Bom). The ld.AO examined the list of work orders submitted by the assessee and inferred that most of the work orders received related to the infrastructure projects order awarded by local authorities like Municipal Corporation etc. and that the assessee merely responded to the tenders floated by the local authorities and the contracts were executed as per the work order issued by them. The ld. AO also noted that separate books of account have not been maintained for eligible and ineligible projects u/s 80IA(4) of the Act. These observations of the ld. AO were confronted to the assessee in the show cause notice during the assessment proceedings. 3.6. At the outset, we find that this case has got a chequered history wherein for some years, the claim of deduction has been denied by the Tribunal to the assessee and for some years it has been allowed to the assessee. In order to understand this background, the following facts as stated in the decision of Pune Tribunal in the case of B.T. Patel & Sons Belgaum Constructions (P) Ltd., vs. CIT reported in 34 taxmann.com 97 would be relevant and hence reproduced hereunder:- “ Background of the case is that the Assessing Officer passed an assessment order disallowing the assessee's claim for deduction u/s.80IA(4) of the Act. The CIT(A) confirmed the order of the Assessing Officer. Matter was carried before the ITAT. However, while passing the order, the Judicial Member and the Accountant Member differed. While the Judicial Member accepted the claim of the assessee, the ITA No.1003/Mum/2021 and other appeals SMC Infrastructures Private Limited 6 Accountant Member did not agree. Accordingly, under provisions of section 255(4) of the Act the matter was referred to the Third Member. The issue in question pertains to A.Y. 2000-01 and 2001-02 The appeals were heard by the Third Member. However, while giving its opinion as per the provisions of section 255(4) of the Act the Third Member was of the opinion that the said matter ought to be heard by the Larger Bench of third Member i.e. a bench comprising of three members u/s. 255(4) of the Act. The matter was heard at length by the Larger Bench of the Third Member and they agreed with the Accountant Member. They were of the opinion that the assessee is not entitled to deduction u/s.80IA(4) of the Act. The said matter was referred back to the Division Bench of the Tribunal to give effect in conformity with the opinion of the Third Member as per the provisions of section 255(4) of the Act. 2. The said appeals were pending before the Division Bench of the Tribunal to give effect to the opinion of the Third Member as per the provisions of section 255(4) of the Act. However, the matter was dismissed in limine because of non-appearance on behalf of the assessee. The assessee moved a Miscellaneous Application before the Tribunal to recall the said order. While the said Miscellaneous Application was pending before the Tribunal, by way of abundant precaution the assessee filed appeals before the Hon'ble Bombay High Court being appeal number ITXA 1307 of 2011 for A.Y. 2000-01 and 1640 of 2011 for A.Y. 2001-02 raising various contention regarding the allowance of deduction u/s. 80IA(4) of the Act. 3. While the said appeal was sub judice before the Hon'ble Bombay High Court the Tribunal recalled its order dismissing the appeals of the assessee in limine and gave a fresh date of hearing to the assessee. 4. While the said appeals are pending before the Hon'ble Tribunal to give effect to the opinion of the Third Member as per the provisions of section 255(4) of the Act, the Hon'ble Bombay High Court in the case of ABG Heavy Industries Ltd., passed an order granting deduction to the said assessee u/s. 80IA(4) of the Act. The said jurisdictional order is contrary to the opinion given by the Third Member of the Tribunal. Meanwhile the appeal filed by the assessee against the order of the Tribunal dismissing the appeals of the assessee in limine, before the Hon'ble Bombay High Court came up for hearing on 24/01/2013. In the course of hearing before the Hon'ble Bombay High Court the Counsel of the assessee brought to the notice of the Hon'ble High Court the fact that the Tribunal in the Miscellaneous Application filed by the assessee had recalled its order and the said matter was now fixed for hearing on 15/02/2013. As such the assessee requested to withdraw the said appeal. The assessee also drew attention of the Hon'ble High Court to the decision of CIT v. ABG Heavy Industries Ltd. [2010] 189 Taxman 54 (Bom.) and requested the Hon'ble Bombay High Court to direct the Tribunal to consider the ABG Heavy Industries Ltd. (supra) decision on the issue while giving effect to the opinion of the Third Member as per the provisions of section 255(4) of the Act. 5. The Hon'ble Bombay High Court permitted the Counsel of the assessee to withdraw the said appeals. While passing the order the Hon'ble High Court has kept all the contentions open and further directed the Tribunal to consider the decision of the ABG Heavy Industries and other decisions while passing their order giving effect to the opinion of the Third Member as per the provisions of section ITA No.1003/Mum/2021 and other appeals SMC Infrastructures Private Limited 7 255(4) of the Act. The relevant portion of the said order of Hon'ble jurisdictional High Court in ITXA No.1307 of 2011 for A.Y. 2000-01 and 1640 of 2011 for A.Y. 2001-02 is as under: "1. Since the Tribunal has recalled the impugned order dated 23.03.2011, the appellant is withdrawing its appeal. 2. Further, while considering the matter afresh, the Tribunal will take into consideration all decisions including the decision of this court in the matter of CIT v. ABG Heavy Industries Ltd. reported in 322 ITR page 323. All contentions are kept open. 3. The appeal is dismissed of in above terms." 6. The issue before us is whether the Tribunal while complying with the provisions of section 255(4) of the Act can consider the judgment of the Hon'ble High Court in the case of ABG Heavy Industries. In light of the clear directions given by the Hon'ble Bombay High Court in the appeals filed by the assessee for the impugned assessment years inter alia directed the Tribunal to consider the said decision of ABG Heavy Industries and all other decisions, we can consider the said judgments of ABG Heavy Industries and also the other judgments for allowing the deduction u/s. 80IA(4) of the Act while giving effect to the opinion of the Third Member as per the provisions of section 255(4) of the Act. Following the directions of the Hon'ble Bombay High Court being the Jurisdictional High Court, the Tribunal is bound to follow the directions and we do accordingly.” 3.7. In the instant case before us, the ld. CIT(A) however, after examination of each and every project of the assessee and its related documents and after considering the amendment brought in by the Finance Act 2009 with retrospective effect from 01/04/2000 in the provisions of Section 80IA of the Act, granted relief to the assessee by treating that assessee is only a developer of infrastructure facility and not a contractor as alleged by the ld. AO. The various agreements and the related documents examined by the ld. CIT(A) in respect of various projects of the assessee are listed as under:- a) A.Y.2014-15 - pages 15-24 of the order of the ld. CIT(A) and para 10 thereon. Retrospective effect of the amendment has been discussed in page 35 of his order vide para 14. The decision of the Hon’ble Jurisdictional High Court in the case of ABG Heavy ITA No.1003/Mum/2021 and other appeals SMC Infrastructures Private Limited 8 Industries Ltd., reported in 322 ITR 323 has been relied upon and discussed in para 15 & 16 of his order. b) A.Y.2015-16 - pages 37-45 of the order of the ld. CIT(A) and para 22 thereon. c) A.Y.2016-17 - pages 46-54 of the order of the ld. CIT(A) and para 24 thereon. d) A.Y.2017-18 - pages 55-61 of the order of the ld. CIT(A) and para 26 thereon. 3.8. We find that the issue of eligibility to claim deduction u/s.80IA of the Act has been decided against the assessee for A.Yrs. 2002-03 to 2005-06 and since the time limit for filing Miscellaneous Application had lapsed for the assessee, the assessee could not get the benefit of deduction despite the fact of the order of this Tribunal in its favour for A.Y.2001-02, 2006- 07 and 2007-08 on this aspect in the order dated 31/10/2014 where in the issue of deduction u/s 80IA of the Act was decided in favour of the assessee by following the decision of the Hon’ble Jurisdictional High Court in the case of ABG Heavy Industries Pvt. Ltd., reported in 322 ITR 323. Similarly, for A.Y.2008-09, this Tribunal in assessee’s own case in ITA No.5503/Mum/2011 dated 14/11/2014 had decided the issue in favour of the assessee. Similarly, for A.Y.2009-10, this Tribunal in assessee’s own case in ITA Nos. 3500 and 4756/Mum/2015 dated 25/05/2017 had decided the issue in favour of the assessee. Thereafter, a search and seizure operation was carried out in the premises of the assessee and the assessee preferred to file an application before the Hon’ble Income Tax Settlement Commission (ITSC) and the ITSC vide its order u/s.245D (6B) r.w.s. 245D(4) of the Act dated 02/12/2016 decided the issue of eligibility of claim of deduction u/s.80IA of the Act in favour of the assessee for A.Ys. 2007-08 to 2013-14. It is pertinent to note that in this order of ITA No.1003/Mum/2021 and other appeals SMC Infrastructures Private Limited 9 Settlement Commission, two members decided in favour of the assessee and one member decided against the assessee. Hence, by majority view, the issue of claim of deduction u/s.80IA of the Act was ultimately decided in favour of the assessee. 3.9. The list of projects undertaken by the assessee for each of the years are tabulated hereunder:- F.Y. 2013- 2014. F.Y. 2014-2015. F.Y. 2015- 2016. F.Y. 2016- 2017. Sr. No. Name of the Authority Description of the Project Date of Commencement of Contract Facility First F.Y. of claiming deductio n u/s 80IA Amt. of Works executed Amt. of Works executed Amt. of Works executed Amt. of Works executed Project carried out in earlier F.Y. & deduction allowed u/s 80IA (4) F.Y. 1 Engineer-in-Chief, Bangalore Water Supply And Sewerage Board Work of Providing & Laying clear water pipeline from Gandhi Krishi Vignana Kender (GKVK) Reservoir to Hennur Banaswadi Road (HBR) Reservoir under AMRUT. 18/Aug/2016 Water Supply 2016-17 - - - 214,439,215 2 Commissioner City Corporation Bellary Water supply system in Bellary Package No.02 BLY 01C 29/Mar/2011 Water Supply 2012-13 27,882,622 36,930,134 17,040,594 15,313,582 80IA allowed in Settlement Commission 2012-13 3 The Chief Municipal Officer, Municipal Council, Raisen Madhya Pradesh Water Supply Scheme for Raisen Town 7/Jan/2013 Water Supply 2012-13 96,549,740 81,843,979 50,532,561 49,648,812 80IA allowed in Settlement Commission 2012-13 4 Chief Municipal Officer, Municipal Council, Piparia, Madhya Pradesh Water Supply Scheme to Pipariya village for Pipariya Municipal Council, Madhya Pradesh 30/Jun/2012 Water Supply 2012-13 116,969,678 33,108,795 16,148,532 26,327,128 80IA allowed in Settlement Commission 2012-13 5 Municipal Council Berasia, Dist.- Bhopal, Madhya Pradesh BERASIYA Water Supply Project 5/Jan/2015 Water Supply 2015-16 - - 22,423,445 97,899,924 6 Chief Municipal Officer, Municipal Council, Kannod, Madhya Pradesh Kannod Drinking Water Supply Scheme 19/Feb/2016 Water Supply 2016-17 - - - 33,659,313 7 City and Industrial Development Corporation of Maharashtra Limited Providing & Laying 1500 mm dia M.S. Gravity main along NH-4B from MBR Vahal to Kalamboli Junction under Hetawane Water Supply Scheme 23/Jun/2009 Water Supply 2015-16 - - 39,440,901 143,494,051 ITA No.1003/Mum/2021 and other appeals SMC Infrastructures Private Limited 10 8 Chief Enginner (Construction) EC Western Railway, Churchgate, Mumbai-20 Construction of FOB at Goregaon, Malad and Kandivali on pile foundation consist of RCC substructure & super structure with Structural Steel tubular /box section RCC deck slab, Elastromeric bearing with Geotechnical investigation including submission of design & drawing b/w Andheri-Borivli station of Mumbai suburban secytion of Western Railway 24/May/2012 Water Supply 2012-13 22,592,105 50,150,411 21,965,298 2,995,245 80IA allowed in Settelment Commission 2012-13 9 Executive Engineer, Pench Project Cell Nagpur City water augmentation scheme Pench-IV- Providing, Lowering, Laying, Jointing of Proposed Pure Water Feeder mains (MBR to Service Reservoirs) 10/Mar/2008 Water Supply 2012-13 80,592,315 47,443,133 16,175,293 10,194,922 80IA allowed in Settelment Commission 2012-13 10 Executive Engineer (PPC), NMC, Nagpur Design & Construction of 03 Nos. of RCC ESR's & 01 No. of GSRs within Nagpur City at Various Places 20/Aug/2015 Water Supply 2015-16 - - 5,855,338 39,046,972 11 Executive Engineer MJP Nagari & Gramin Yojana Ward, Gondia Deori Water Supply Yojana Tal. Devri Dist. Gondia 20/Nov/2013 Water Supply 2014-15 - 26,876,819 35,709,315 35,016,856 12 Executive Engineer, Aurangabad Mahanagar Palika Providing, Lowering, Laying, Jointing and Hydraulic Testing of 1400 mm Diameter Mild Steel Gravity Main from Nakshatra Wadi MBR to Railway Station and Providing, Testing of MS and DI Transmision Mains in theLowering, Laying, Jointing and Hydraulic Corporation area. 27/Feb/2009 Water Supply 2012-13 71,846,407 - - 13,636,316 80IA allowed in Settelment Commission 2012-13 13 Commissioner - Mira Bhainder Municipal Corporation Providing, Lowering, Laying, jointing, Testing & Commissioning 1590 mm dia (OD), 10 mm thick Pure Water Rising Main from Saket to Patalipada including crossing of National Highway, MCGB Pipeline at various location by trenchless method (Jacking & Pushing method) and Design, Supply, Installation, Testing & Commissioning of 600 HP VFD operated in line boosting V.T. Pump sets with allied equipments at Saket Pump House. 17/Oct/2015 Water Supply 2015-16 - - 249,117,828 654,256,791 ITA No.1003/Mum/2021 and other appeals SMC Infrastructures Private Limited 11 14 Executive Engineer, PWD Civil Division No. III (DP), Dadara and Nagar Haveli, Silvassa Integrated Water Management Plan for Khanvel, Rudana, Amboli, Surangi and Kherdi Patelad WD-III Part-I (WTP, Rising main and Distribution Network) 3/Oct/2016 Water Supply 2016-17 - - - 92,384,174 15 Chief Municipal Officer, Municipal Panchayat, Lateri (M.P.) Water Supply Scheme for Lateri,Dist : Vidhisha 16/Sep/2011 Water Supply 2012-13 38,814,407 - - - 80IA allowed in Settelment Commission 2012-13 16 Office of the Project Director, Govt of Goa Construction of 100MLD Water Treatment Plant and Intake at Salaulim 25/Mar/2011 Water Supply 2012-13 464,861,717 412,814,429 299,537,372 188,058,082 80IA allowed in Settelment Commission 2012-13 17 Commissioner Municipal Corporation, Bhopal Providing, Laying,Jointing,Testing and Commissioning of Water Supply Distribution Network in various areas of Bhopal, for package no.BPL/WS/15 (Lot-2) 18/Jul/2012 Water Supply 2012-13 75,231,797 - - - 80IA allowed in Settelment Commission 2012-13 18 Commissioner City Corporation Bellary Water supply system in Bellary Package No.02 BLY 01A 29/Mar/2011 Water Supply 2012-13 37,310,856 16,533,929 13,860,253 3,409,314 80IA allowed in Settelment Commission 2012-13 19 Executive Engineer, Sangli, Miraj, Kupwad Muncipal Corporation, Water Department Design & Construction of ESR 1.0ML to 2.5ML with staging of 21m, Renovation of Existing Head works & Automation of Intake well for additional 70 to 130 MLD (Package 1.1), Providing, Lowering, Laying & Jointing Pure Water Transmission Mains of D.I. K-9, for Hirabag to Shamrao Nagar ESR & Gravity Mainto various ESR from MBR under Sujal Nirmal Abhiyan (SNA) Package 1.1 & 1.3 23/Dec/2010 Water Supply 2012-13 8,987,186 1,959,474 - - 80IA allowed in Settelment Commission 2012-13 20 Project Director, JICA ODA Loan Project, PWD Construction of Master Balancing Reservoir at Sirvoi Rock Hill: 20,000 m3. 11/Feb/2012 Water Supply 2012-13 56,588,368 17,692,268 3,405,289 - 80IA allowed in Settelment Commission 2012-13 21 City and Industrial Development Corporation of Maharashtra Limited Operation and Maintenance of 150 MLD Capacity Water Treatment Plant and Raw Water pumping plant at Jite. 1/Nov/2010 Water Supply and Mainten ance 2012-13 6,585,211 3,694,086 3,413,084 1,268,868 80IA allowed in Settelment Commission 2012-13 ITA No.1003/Mum/2021 and other appeals SMC Infrastructures Private Limited 12 22 The Chief Muncipal officer, Hoshangabad Muncipal Council, Hoshangabad, Madhya Pradesh Survey, Design, Construction of Intake Well 9 Nos. overhead tanks, having cumulative capacity 0.4 ML water treatment plant 24 MLD (22 hours) raw and clear water pumps, raw water rising main (GRP), clear water feeder main (DL-K-9) Distribution network(HDPE) including compatible complete electrical work and substation 0.4/33 KVA. 21/Feb/2011 Water Supply 2012-13 55,498,997 20,699,641 - - 80IA allowed in Settelment Commission 2012-13 23 Municipal Nagaparishad Officer, Nagaparishad Neemuch Prime Minister Urban Water Programme Neemuch 18/Jan/2012 Water Supply 2013-14 94,387,245 64,699,250 69,534,590 49,359,261 24 Executive Engineer, GIDC, Ahmedabad P/L M.S pipeline from Narmada Main Canal to Chharodi (Chain age 0.00 to 28.10kms) for 50MLD Canal base WSS (25MLD for TML Project & 25MLD for GIDC) are Sanand (Chharodi) incl. 5 yrs O & M of WSS on EPC Turnkey Basis 25/Feb/2011 Water Supply 2012-13 2,740,650 587,552 1,989,556 - 80IA allowed in Settelment Commission 2012-13 25 Gram Panchayat Pindkepar Water Supply Scheme for Pindkepar village, Tal. & Dist. Gondia. 27/Jan/2012 Water Supply 2012-13 817,147 1,054,907 - - 80IA allowed in Settelment Commission 2012-13 26 Executive Engineer, Maharashtra Jeevan Pradhikaran, Works Division, New Panvel Materan Water Supply Scheme: Repairs of Jackwell & Pump House, Repairs to Railing of Charlotte Lake, Outlet channels, Tunnels, Engine House, modification to existing WTP, Construction of Sump & Pump House, Lowering, Laying & Jointing of 250mm dia D.I.K-9 Rising Main, Providing & Constructing WTP (capacity 2.50 MLD), Distribution System DI & CI, Providing, Erecting & Commissioning Pumping Machinery & Miscellaneous work Tal. Karjat. 23/Aug/2011 Water Supply 2012-13 44,146,839 23,842,753 9,239,120 5,669,759 80IA allowed in Settelment Commission 2012-13 27 The Nodal Executive Engineer, Sindhudurg Zilla Parishad, Sindhudurg. Construction and Maintenance of Road s under PMGSY Project in Sindhudurg District in Block – Kankavali. (Phase–VI) {Package No. MH–2835}: A) Harkul Khurd Mohul Road, B) Halval Parabwadi Road Tal. Kankavali. (PMGSY B.V.Korgaokar - Package 2835) 26/Aug/2008 Road Constru ction and Mainten ance 2012-13 64,861 6,020,596 - - 80IA allowed in Settelment Commission 2012-13 28 Executive Engineer, MIDC, Division No.II, Nagpur PWSS for Chandrapur [Tadali] Growth Centre Providing, laying and jointing 600 mm dia. M.S. and 350 mm dia. M.S pipeline for replacing existing lines coming under widening of PWD road. 11/Jul/2013 Water Supply 2013-14 61,418,318 17,315,878 - - ITA No.1003/Mum/2021 and other appeals SMC Infrastructures Private Limited 13 29 Executive Engineer, M.I.D.C. Division, Alibag Roha Industrial Area.. Water Supply Scheme... Remodeling of C.I. distribution lines in Roha Indl. Area 7/Jun/2013 Water Supply 2013-14 41,401,515 5,449,144 1,906,427 - 30 Executive Engineer, MIDC Division, Dombivli Dombivli Indl Area...; Providing, laying & jointing 710mm dia HDPE effluent main from CETP in Ph-I in Dombivli Indl Area to Thakurli Railway Bridge (Ch.0 to 1500m). 2/Jul/2013 Water Supply 2013-14 26,573,792 34,830,362 7,992,962 - 31 Executive Engineer Water Supply and Drainage Division Sangli Miraj Kupwad Municipal Corporation. Sangli Under Ground Scheme II Phase II 30/Apr/2013 Sewerag e System 2013-14 104,212,736 122,561,773 63,732,629 44,911,663 32 Executive Engineer Water Supply and Drainage Division Sangli Miraj Kupwad Municipal Corporation. Miraj Under Ground Scheme II 30/Apr/2013 Sewerag e System 2013-14 143,279,554 201,225,566 46,022,972 35,423,702 33 Executive Engineer GIDC Ahmedabad P/L Water supply distribution line with RCC U/G sump, ESR & Pump house at Sanand-II (BOL) Industrial Estate with 5 (Five) years free maintenance guarantee period 3/Oct/2012 Water Supply 2012-13 206,450,169 43,606,807 34,169,041 - 80IA allowed in Settelment Commission 2012-13 34 Chief Engineer (Project) BWSSB Work of extending 1219mm dia MS Feeder main from Kothnur Dinne GLR premises to Jamboosavari dinne GLR to feed water supply facilities to Bommanahalli CMC under GBWASP 27/Feb/2013 Water Supply 2013-14 18,516,105 11,938,513 - - 35 Executive Engineering No.1. (Chaturshrungi Water Supply) Pune Municipal Corporation Water Supply Scheme : MS Pipeline from Sndthlr to Chaturshrungi Tank 24/Jul/2012 Water Supply 2012-13 20,858,478 26,444,068 29,126,068 5,640,580 80IA allowed in Settelment Commission 2012-13 36 Executive Engineer, M.J.P.W.W. Ambernath Additional Ambernath Water Supply Scheme Dist. Thane 5/Apr/2013 Water Supply 2013-14 20,755,153 44,209,632 48,302,700 15,561,161 37 President, Grammin Pani Purawatha & Swachata Committee Birwadi, Tal. Mahad, Dist.Raigad National Drinking Water Programme BIRWADI, Water Supply Scheme: Construction of Trench Gallery, R.C.C. . Jack Well, Pumping Machinery, Switch Room, Rising Main, RCC ESR, Distribution System, Trial Run. 24/Jan/2013 Water Supply 2013-14 14,014,795 13,468,501 9,440,227 2,000,000 38 Executive Engineer, Swargate Water Supply Pune Mahanagar Palika Construction of M.S. Raising from Vadgaon Water Supply Centre to Institute E.S.R. 2/Jan/2012 Water Supply 2012-13 12,615,569 - - - 80IA allowed in Settelment Commission 2012-13 39 Executive Engineer, PMGSY, MRRDA Raigad Construction of major bridge on Manghrun Dapoli Road Tal. Mahad 31/Jul/2013 Bridge 2013-14 4,246,878 6,257,595 3,268,060 - 40 Executive Engineer, Maharashtra Jeevan Pradhikaran, Nagari and Gramin Yogana Ward, Gondia Wadegaon (Rehabilitation) Water Supply Scheme Tal. Dist.Gondia 31/May/2012 Water Supply 2012-13 1,886,244 - - - 80IA allowed in Settelment Commission 2012-13 ITA No.1003/Mum/2021 and other appeals SMC Infrastructures Private Limited 14 41 Jawaharlal Nehru Port Trust Structural Rehabilitation of Container Berth in JN Port (Phase-I) 3/Nov/2011 Port 2012-13 1,682,944 - - - 80IA allowed in Settelment Commission 2012-13 42 Executive Engineer, Raigad Zilla Parishad, Alibag Construction of road from S.H.70 to Rawdhal Taluka Mahad 31/May/2008 Road 2008-09 524,869 - - - 80IA allowed in ITAT 2008-09 43 Engineer-in-Chief & Director (Projects) HMWSSB, Hyderabad HMWSSB-KDWSP-Phase III- Manufacturing,supplying, lowering,laying,jointing,testing & commissioning of 2375mm dia MS pumping main with cement mortar factory inlining & outcoating (including cost of mS plates, cost of Valves & other appurtenances) from WTP at Kodandapur to CWR at Nasarlapally(along Nagarjuna Sagar Hyd roadfrom Km 116 to 82/2 Km) including manning & operation for 24 months-Package I 28/Dec/2012 Water Supply 2013-14 567,185,501 235,343,786 - - 44 Ircon International Ltd Construction of Road over Bridge both railway span and adjacent approaches span including Reinforced Earth wall / Retaining wall in lieu of LC-47 B at Km 163/6-7 between Begusarai- Tilrath Section of E.C. Railway under Sonepur Division, Bihar Ircon International Limited 26/Oct/2012 Bridge 2012-13 148,063,506 95,152,723 116,855,629 2,690,739 80IA allowed in Settelment Commission 2012-13 45 Executive Engineer MJP Water Management Division, Nagpur 110 to 200 mm HDPE Pipe Water Supply, Joint Devlameti Water Supply Scheme Dist. Nagpur 12/Apr/2013 Water Supply 2013-14 9,438,986 23,315,337 4,472,767 3,719,799 46 Executive Engineer, PWD Mahd. District Raigad Construction of CC Road 22/Feb/2013 Road 2013-14 6,000,000 - - - 47 City Engineer, Thane Municipal Corporation, Thane. Concretization of Raghunathnagar road of Wagle Estate & Dhokali Naka to Santoshi Mata Mandir road in Majivada Ward Office by UTWT Method 14/Oct/2013 Road 2013-14 5,580,783 7,244,727 3,719,952 - 48 Executive Engineer, Tembhu Lift Irrigation Project Dn., No. II Ogalewadi Construction of Rising Main from 1st stage 1-B Pump House to portal of Khambale tunnel near village Tembhu 3/Apr/2000 Water Supply 2000-01 5,578,112 - - - 80IA allowed in ITAT 2000-01 49 Executive Engineer, PWD Mahd. District Raigad Construction of CC Road 22/Feb/2013 Road 2013-14 4,625,699 - - - 50 Executive Engineer, PWD Mahd. District Raigad Construction of CC Road 22/Feb/2013 Road 2013-14 4,262,379 - - - ITA No.1003/Mum/2021 and other appeals SMC Infrastructures Private Limited 15 51 Executive Engineer,CIDCO Bhavan, CBD, Belapur Providing and Laying balance 5.46Km, additional 1500 mm dia M.S. Pipeline parallel to existing 1500 mm dia M.S. / P.S.C. Pipeline on opposite side along SH 81 @ Ch. 0.00 at BPT to 1/056 at Chirner, 3/636 at Chirner to 7/100 at Dighode and @ ch. 10/700 @ Jambhulpada to 11/640 at MBR Vahal under Hetawane Water Supply Scheme. 28/Jan/2010 Water Supply 2012-13 2,900,599 - - - 80IA allowed in Settelment Commission 2012-13 52 Executive Engineer, Zilla Parishad, Sindhudurg Maintainance to Kelus Khudas Khavneswar Road & Vetore Namaswadi Aadeli Road Tal Vengurla 26/May/2008 Road Mainten ance 2012-13 154,037 - - - 80IA allowed in Settlement Commission 2012-13 53 Executive Engineer, Zilla Parishad, Sindhudurg Maintainance to Nadhavade Bramhandev Road Tal Vaibhavwadi 26/May/2008 Road Mainten ance 2012-13 41,112 - - - 80IA allowed in Settlement Commission 2012-13 54 City Engineer, Thane Municipal Corporation, Thane. Concretization of roads in Ward No.22,23,25,40,42 of Uthalsar ward office by UTWT method 13/Nov/2013 Road 2013-14 43,029,749 20,469,469 26,144,487 - 55 Executive Engineer. MIDC - Mahad Main road from ch.0.00 to ch. 5.50km 5/Dec/2013 Road 2013-14 31,984,332 8,988,485 - - 56 City Engineer,Thane Muncipal Corpn. Thane Concretization of various roads in TMC area with UTWT method (Package II) 10/Mar/2011 Road 2012-13 18,826,134 - - - 80IA allowed in Settlement Commission 2012-13 57 City Engineer,Thane Muncipal Corpn. Thane Concretization of roads by UTWT method in Mumbra ward committee area 17/Sep/2013 Road 2013-14 13,512,144 14,191,679 10,357,749 - 58 Executive Engineer, Satara Zilla Parishad, Satara Upgradation of Amble to Ghatewadi Road Tal. 28/Mar/2008 Road 2012-13 7,973,850 12,837,818 - - 80IA allowed in Settlement Commission 2012-13 59 Executive Engineer, Raigad Zilla Parishad, Alibag Upgradation of Kharavli Nigade Road Tal. Mahad 31/May/2008 Road 2012-13 2,849,702 238,679 266,771 - 80IA allowed in Settlement Commission 2012-13 60 Executive Engineer, PMGSY, Zilla Parishad Sindhudurg Improvements & B.T on Dahibaon Jambhulghati Kunkeshwar road in KM No. 0/00 to 7/290 Tal. Deogad 10/Aug/2009 Road 2012-13 2,235,927 - - - 80IA allowed in Settlement Commission 2012-13 61 The Chief Officer, Mahad Municipal Council, Mahad Strenghtening & Asphaltic treatment to road from Shivmandir to Ambedkar High School in Birwadi Village from Ch. 0.00km to Ch. 1810m 4/Mar/2014 Road 2013-14 1,068,795 11,596,006 6,575,895 8,924,901 62 Executive Engineer, MIDC Sangli Additional Palus Industrial Area ...... Construction of Water Treatment Plant @ Krishna Wine Park, Palus. 30/Sep/2011 Water Supply 2012-13 999,867 - - - 80IA allowed in Settelment Commission 2012-13 ITA No.1003/Mum/2021 and other appeals SMC Infrastructures Private Limited 16 63 City and Industrial Development Corporation of Maharashtra Limited Providing & Laying M.S. gravity main of 1500mm dia from village Tarankhope to WTP at Jite and rising main from Jite to village Kharpada in the right of way of NH-17 and along ZP road and dismantling and removing 1200/1500mm dia PSC/M.S. pipeline under Hetawane water supply scheme 4/Sep/2014 Water Supply 2014-15 - 84,939,128 81,494,550 131,519,742 64 The City Engineer, Thane Municipal Crporation, Thane. Construction of Minor Bridge and Pedestrian Bridge near existing bridge over nalla at Kalwa Bridge Chowk to Akashganga society road 26/Feb/2014 Bridge 2014-15 - 16,405,447 6,172,448 - 65 Executive Engineer, PWD Satara Talmawale Gudhe Kalgaon Acharewadi M.D.R.58 (M.D.R.54 as per R.D.P.2001- 2021)Km.13.500 (Actual length Km.18/00 to 20/00, 22/00 to 23/900 and 25/100 to 33/800 = 12.60Km.) Tal. Patan Dist. Satara (b)Improvement to Nisare Marul Maldan Bahule Gudhe Kalgaon Dhangarwadi Bhurbhushi Yegaon to S.H.144 Road M.D.R. 54Km. 23/900 to 25/100, 25/300 to 26/00 32/500 to 33/800 (Actual length Km.23/900 to 25/100 = 1.20Km) Tal. Patan, Dist. Satara 26/Jun/2014 Road 2014-15 - 3,015,977 42,001,523 13,577,148 66 The Executive Engineer, Maharashtra Jeevan Pradhikaran, Urban & Rural Schemes, Division Chandrapur, Maharashtra New Chandrapur (MHADA) Water Supply Scheme, Dist. Chandrapur (Full Deposit Work) 5/Mar/2014 Water Supply 2014-15 - 34,680,179 20,358,724 14,021,960 67 Executive Engineer. MIDC - Mahad Ville Bhagad Indl Area -Providing 50mm BM and 25mm AC tratment to Roads in WTP at vile Bhagad and approach road to Jackwell 1/Sep/2014 Water Supply 2014-15 - 6,715,630 3,246,098 - 68 City Engineer,Thane Muncipal Corpn. Thane Concretisation of Various roads in Thane Muncipal Coporation area with Ultra Thin White Topping Method.(Package-I) 6/Jul/2010 Road 2012-13 - 23,046,887 12,291,200 - 80IA allowed in Settelment Commission 2012-13 69 Chief General Manager (ENGG), Project Construction Circle-I, Hyderabad HMWSSB Construction of 18 ML Capacity Clear Water Reservoirs at Kodandapur, Nasarlapally, Godakondla and 45 ML (2 Nos of 22.50 ML) Master Balancing Reservoirs at Gungal-Package-VI 3/Jan/2013 Water Supply 2014-15 - 177,774,266 12,747,728 - ITA No.1003/Mum/2021 and other appeals SMC Infrastructures Private Limited 17 70 Commissioner, Greater Vishakapatnam Municipal Corporation, Vishakapatnam Implementation of 24*7 WSS in South west Sector of Central Region of GVMC including Investigation, Survey, Design and Execution of the entire project with maintenance for 5 years after 2 years defect liability period under EPC system under JNNURM 3/Jul/2013 Water Supply 2014-15 - 139,857,758 - - 71 Executive Engineer PWD ,Goa 2000m3 GLR at Navaband and providing & Laying Convening main from Novaband to Betul IDC & site in Quepem consisting providing & laying 300mm dia MS Pipeline from Novaband pump line to 2000m3 GLR Betul site 31/May/2010 Water Supply 2012-13 - 3,039,569 5,794,946 2,225,624 80IA allowed in Settelment Commission 2012-13 72 Project Manager, JNNURM (Water Distribution System) Bhopal Municipal Corp., Bhopal Providing & Laying, Jointing ,Testing & commissioning of Distribution System comprising of HDPE PE-100, 6kg/cm2 & DI k- 7pipes & fittings etc. In the Ward No.6 to 10of Bhopal Town 4/Mar/2014 Water Supply 2014-15 - 29,911,815 51,552,448 40,499,963 73 Executive Engineer, Damoh Drinking Water Supply Scheme at Juzarghat in Damoh 26/Sep/2014 Water Supply 2014-15 - 149,409,094 124,274,317 55,777,882 74 Executive Engineer, MIDC Division No. II, Thane Thane Complex WSS.... Replacement of existing old damaged 1590 mm dia. North Feeder m.s. pipe line Sections between Mahape Circle to Mukund (Ch. 3200 to 12130m). 27/Apr/2015 Water Supply 2015-16 - - 113,508,926 59,473,039 75 Thane Municipal Corporation Design & Construction of Flyovers at Menatai Thakare Chowk, Almeida Chowk and Sant Namdev Chowk (Telephone Exchange) in Thane City 12/May/2015 Bridge 2015-16 - - 13,131,616 215,615,804 76 Chief Municipal Officer, Municipal Council, Thandla, Madhya Pradesh Thandla Drinking Water Supply Scheme 31/Mar/2016 Water Supply 2016-17 - - - 25,564,038 Total Amt. of Eligilbe Projects (Work Done) U/S 80IA in Rs. 2,857,216,480 2,471,434,454 1,774,317,229 2,353,226,330 ITA No.1003/Mum/2021 and other appeals SMC Infrastructures Private Limited 18 3.10. As stated earlier, all the aforesaid projects were duly examined by the ld.CIT(A) with all supporting documents and he had arrived at the conclusion that the assessee is only a developer. No contrary materials were brought on record with supporting evidences by the revenue to controvert this factual findings of the ld. CIT(A) before us. 3.11. In view of the above observations and respectfully following various orders of this Tribunal in assessee’s own case and also the decision of the Hon’ble Jurisdictional High Court in the case of ABG Heavy Industries Pvt. Ltd., reported in 322 ITR 323, we do not find any infirmity in the order of the ld. CIT(A) granting relief to the assessee. 3.12. The decision rendered hereinabove for the A.Y. 2014-15 shall apply mutatis mutandis for A.Y.s 2015-16, 2016-17 and 2017-18 also in view of identical facts, except with variance in figures. 3.13. Hence, the grounds raised by the Revenue for all the Assessment Years are dismissed. 4. In the result all the appeals of the Revenue are dismissed. Order pronounced on 26/10/2022 by way of proper mentioning in the notice board. Sd/- (RAHUL CHAUDHARY) Sd/- (M.BALAGANESH) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai; Dated 26/10/2022 KARUNA, sr.ps ITA No.1003/Mum/2021 and other appeals SMC Infrastructures Private Limited 19 Copy of the Order forwarded to : BY ORDER, (Sr. Private Secretary / Asstt. Registrar) ITAT, Mumbai 1. The Appellant 2. The Respondent. 3. The CIT(A), Mumbai. 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy//