M/s. BMW Industries Pvt. Ltd., Kolkata V. DCIT, CIR-1(2), KOLKATA, Kolkata

ITA 1020/KOL/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4131 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-12-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 17-11-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 12-05-2016
• Court: TRIBUNAL
• Department Lawyers: G MALLIKARJUNA
• Assessee Lawyers: D S DAMLE
• Keywords: Depreciation; Retrospective amendment; Difference of opinion
• Section: 143(3); 263; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : KOLKATA [BEFORE HONBLE SRI N.V.VASUDEVAN, JM & DR.ARJUN LAL SAINI, AM] I.T.A NO. 1020/KOL/20 16 ASSESSMENT YEAR : 2011-1 2 BMW INDUSTRIES LTD. -VS.- D.C.I.T., CIRCL E-1 (2) KOLKATA KOLKATA [PAN : AABCB0986G] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI D.S.DAMLE, FC A FOR THE RESPONDENT : SHRI G.MALLIKARJUNA, CIT (DR) DATE OF HEARING : 24.11.2016. DATE OF PRONOUNCEMENT : 2.12.2016. ORDER PER N.V.VASUDEVAN, JM THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 22.03.2016 OF PRINCIPAL C.I.T.-I, KOLKATA PASSED U/S 263 OF THE I NCOME TAX ACT, 1961 (ACT). 2. THE ASSESSEE IS A COMPANY. IT IS ENGAGED IN THE BUSINESS OF MANUFACTURING AND SALE OF MANUFACTURING AND SALE OF PIPE AND TUBES BESIDES CARRYING OUT CONVERSION JOBS. THE ASSESSEE ALSO CARRIES ON BUSINESS OF CONSTRUCTION A CTIVITIES. 3. FOR A.Y.2011-12 THE ASSESSEE FILED RETURN OF INCOME ON 29.09.2011 SHOWING A TOTAL INCOME OF RS.20,48,49,810/-. IN ARRIVING AT T HE TOTAL INCOME THE ASSESSEE HAD CLAIMED DEDUCTION OF A SUM OF RS.1,49,16,548/- U/S 80IA(4)(I) OF THE ACT NAMELY PROFITS DERIVING FROM DEVELOPING, OPERATING AND MAI NTAINING INFRASTRUCTURAL FACILITY. THE AO EXAMINED THE CLAIM OF THE ASSESSEE AND REDUCED T HE CLAIM MADE BY THE ASSESSEE BY A SUM OF RS.2,78,385/- FOR THE FOLLOWING REASONS :- FROM THE COMPUTATION OF TOTAL INCOME IT IS SEEN TH AT THE ASSESSEE COMPANY HAS CLAIMED DEDUCTION OF RS. 1,49,16,548/- U/S 80IA(4) OF THE I T,ACT,1961 IN SUPPORT OF WHICH FORM 2 ITA NO.1020/KOL/2016 BMW INDUSTRIES LTD. A.YR.2011-12 2 NO.10CCB HAS BEEN SUBMITTED. FROM FORM NO.L0CCB IT IS SEEN THAT IN COMPUTING PROFIT FROM THE ELIGIBLE UNIT TO COMPUTE DEDUCTION U/S 80I A THE PROPORTIONATE HEAD OFFICE EXPENSES OF RS. 2,78,385/-HAS NOT BEEN DEDUCTED FRO M THE CONSTRUCTION CHARGES RECEIVED TO ARRIVE AT PROFIT FROM ELIGIBLE BUSINESS. THEREFO RE, PROFIT BY THE IDENTICAL AMOUNT HAS BEEN INFLATED AND THEREBY EXCESS DEDUCTION OF THE AMOUNT HAS BEEN CLAIMED. THE ACTUAL PROFIT EARNED FROM THE ELIGIBLE UNIT WILL BE AS UND ER :- PARTICULARS AMOUNT (IN RS.) AMOUNT (IN RS.) INCOME CONSTRUCITON CHARGES RECEIVED 4,78,91,401 EXPENDITURE AS CLAIMED 2,59,69,851 ADD: PROPORTIONATE HEAD OFFICE EXPENSES AS DISCUSSED ABOVE. 2,78,385 2,62,48,236 PROFIT BEFORE DEPRECIATION 2,16,43,165 DEPRECIATION 70,05,002 PROFIT AFTER DEPRECIATION 1,46,38,163 SINCE PROFIT EARNED FROM THE ELIGIBLE UNIT IS RS.1, 46,38,163/- THEREFORE DEDUCTION U/S80IA(4) OF THE I.T.ACT, 1961 IN THIS CASE WILL B E RS.1,46,38,163/- AND NOT RS.1,49,16,548/- AS CLAIMED IN THE RETURN. AS A RES ULT ADDITION OF RS.2,78,385/- BY DISALLOWANCE OF DEDUCTION U/S 80IA(4) IS BEING MADE . 4. THE CIT IN EXERCISE OF HIS POWERS U/S 263 OF THE ACT WAS OF THE VIEW THAT ORDER OF THE AO IN SO FAR AS IT RELATES TO ALLOWING THE CLAI M OF THE ASSESSEE FOR DEDUCTION U/S 80IA(4)(I) OF THE ACT WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. IN THIS REGARD, THE CIT ISSUED SHOW CAUSE NOTICE U/S 263 OF THE ACT NOT ONLY FOR A.Y.2011-12 BUT ALSO FOR A.Y.2010-11. BOTH THE SHOW CAUSE NOTIC ES WERE DATED 23.02.2016. THE ALLEGATIONS IN THE SHOW CAUSE NOTICE FOR BOTH THE A YS WERE IDENTICAL. IN SO FAR AS AY 2011-12, THE ALLEGATION OF THE CIT IN THE SHOW CAUS E NOTICE U/S.263 OF THE ACT WAS THAT THE ASSESSEE WAS ENGAGED IN ROAD CONSTRUCTION AND C LAIMED AND AVAILED DEDUCTION U/S.80IA DURING A.Y. 2011-12 AS DETAILED BELOW: AY WORK EXECUTED FOR WHICH DEDUCTION CLAIMED TOTAL DEDUCTION CLAIMED TOTAL DEDUCTION ALLOWED 3 ITA NO.1020/KOL/2016 BMW INDUSTRIES LTD. A.YR.2011-12 3 2011-12 EXECUTED WORKS FOR EXECUTIVE ENGINEER STATERURALDEVELOPMENT AGENCY IN BANKURA, PURULIA (SONAMUKHI BLOCK)AND PASCHIM MEDINIPOREGARBETA- II,PANCHAYAT SAMITI AREA). 1,49,16,548 1,46,38,163 5. UNDER SECTION-80IA(4)(I) OF THE ACT, A DEDUCTIO N OF PRESCRIBED PERCENTAGE OF PROFITS DERIVED FROM THE ELIGIBLE BUSINESS FOR CERTAIN NUMB ER OF YEARS IS ALLOWED TO - (I)ANY ENTERPRISE CARRYING ON THE BUSINESS OF (I)DE VELOPING OR(II)OPERATING AND MAINTAINING OR (III) DEVELOPING, OPERATING AND MAIN TAINING ANY INFRASTRUCTURE FACILITY EXPLANATION TO SECTION 80IA(4)(I) OF THE ACT LAYS D OWN THAT FOR THE PURPOSES OF THE SAID CLAUSE, 'INFRASTRUCTURE FACILITY' WOULD MEAN- (A)A ROAD INCLUDING TOLL ROAD, A BRIDGE OR A RAIL S YSTEM; (B)A HIGHWAY PROJECT INCLUDING HOUSING OR OTHER ACT IVITIES BEING AN INTEGRAL PART OF THE HIGHWAY PROJECT; EXPLANATION BELOW SEC.80IA(13) OF THE ACT THAT WAS SUBSEQUENTLY ADDED EXPLAINING THAT THE DEDUCTION IS NOT ALLOWABLE TO A CONTRACTOR. TH E SAID EXPLANATION READS THUS: EXPLANATION - FOR THE REMOVAL OF DOUBTS, IT IS HER EBY DECLARED THAT NOTING CONTAINED IN THIS SECTION SHALL APPLY IN RELATION T O A BUSINESS REFERRED TO IN SUB- SECTION (4) WHICH IS IN THE NATURE OF A WORKS CONTR ACT AWARDED BY ANY PERSON (INCLUDING THE CENTRAL OR STATE GOVERNMENT) AND EXE CUTED BY THE UNDERTAKING OR ENTERPRISE REFERRED TO IN SUB-SECTION (1). THE ABOVE EXPLANATION WAS SUBSTITUTED BY THE FINANC E (NO.2) ACT, 2009, W.R.E.F 1-4- 2000. 6. PRIOR TO ITS SUBSTITUTION, EXPLANATION, AS INSE RTED BY THE FINANCE ACT, 2007, W.R.E.F 1- 4-2000, READ AS UNDER: 4 ITA NO.1020/KOL/2016 BMW INDUSTRIES LTD. A.YR.2011-12 4 EXPLANATION - FOR THE REMOVAL OF DOUBTS, IT IS HER EBY DECLARED THAT NOTHING CONTAINED IN THIS SECTION SHALL APPLY TO A PERSON W HO EXECUTES A WORKS CONTACT ENTERED INTO WITH THE UNDERTAKING OR ENTERPRISE, AS THE CASE MAY BE.' 7. IN THE CASE OF M/S. B.T. PATIL & SONS BELGAUM C ONSTRUCTION PRIVATE LIMITED VS. THE ASST. COMMISSIONER OF INCOME-TAX, CIRCLE-2, KOLHAPU R, (LAGER BENCH OF ITAT, MUMBAI, OCTOBER,2009) ITA NOS. 1408&1409/PN/2003, I T WAS HELD THAT SECTION 80- IA(4) (EVEN PRE-AMENDMENT) APPLIES ONLY TO A 'DEVEL OPER'. THE DIFFERENCE BETWEEN A 'DEVELOPER' AND 'CONTRACTOR' IS THAT THE FORMER DES IGNS AND CONCEIVES NEW PROJECTS WHILE THE LATTER EXECUTES THE SAME. 8. ACCORDING TO THE CIT, SINCE THE ASSESSEE WAS ME RELY EXECUTING THE JOB OF CIVIL CONSTRUCTION, IT WAS NOT ELIGIBLE U/S. 80-IA(4). TH E CIT WAS OF THE FURTHER VIEW THAT THE ASSESSEE WAS ALSO NOT THE 'OWNER' OF THE FACILITY A ND WAS MERELY EXECUTING THE JOB OF CIVIL CONSTRUCTION ON THE BASIS OF WORKS CONTRACT A WARDED BY EXECUTIVE ENGINEER. HE WAS ALSO OF THE VIEW THAT THE ROADS CONSTRUCTED BY THE ASSESSEE WERE NOT COMING UNDER EXPRESSWAY OR HIGHWAY CATEGORY AS MENTIONED IN THE CLARIFICATION STATED ABOVE. THUS THE ASSESSEE WAS NOT A DEVELOPER OF AN INFRASTRUCTU RE FACILITY AND WAS NOT ELIGIBLE DEDUCTIONS UNDER THE SECTION. THE CIT WAS THEREFORE OF THE VIEW THAT THE ORDER OF THE AO ALLOWING DEDUCTION U/S.80IA(4)(I) OF THE ACT TO THE ASSESSEE WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE AND THER EFORE THE SHOW CAUSE NOTICE WAS BEING ISSUED TO PASS APPROPRIATE ORDERS U/S.263 OF THE AC T. 9. ACCORDING TO THE ASSESSEE IT FILED A REPLY TO THE SHOW CAUSE NOTICE IN THE OFFICE OF THE CIT ON 30.03.2016. THE CIT HOWEVER HAD ALREADY PASSED THE IMPUGNED ORDER U/S 263 OF THE ACT AS EARLIER AS 23.02.2016. IN OTHER W ORDS, THERE WAS NO OCCASION FOR THE ASSESSEE TO EXPLAIN BEFORE THE CIT AS TO WHY THE PR OCEEDINGS U/S 263 OF THE ACT CANNOT BE INITIATED IN THE CASE OF THE ASSESSEE FOR THE RE LEVANT AY. 10. THE CIT IN THE IMPUGNED ORDER CAME TO THE CONC LUSION THAT THE ORDER OF THE AO WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE. ACCORDING TO THE CIT THE AO HAS FAILED TO APPLY HIS MIND TO THE ASSESSEES CLAI M OF DEDUCTION U/S 80-IA(4) IN THE LIGHT 5 ITA NO.1020/KOL/2016 BMW INDUSTRIES LTD. A.YR.2011-12 5 OF THE DECISION OF THE HONBLE PUNE BENCH IN THE CA SE OF M/S. B.T.PATIL & SONS AND THE STATUTORY AMENDMENT TO ACT REFERRED TO EARLIER WHE REBY AN EXPLANATION WAS INSERTED BY THE FINANCE ACT 2009 WITH RETROSPECTIVE EFFECT FROM 01.04.2000. THE CIT IN THE IMPUGNED ORDER SET ASIDE THE ORDER OF THE AO ON THE ISSUE OF DEDUCTION U/S 80IA(4)(I) OF THE ACT AND DIRECTED THE AO TO COMPLETE THE ASSESSM ENT DE NOVO AFTER AFFORDING OPPORTUNITY TO THE ASSESSEE. 11. AGGRIEVED BY THE ORDER OF CIT THE ASSESSEE HAS PREFERRED THE PRESENT APPEAL BEFORE THE TRIBUNAL. 12. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET POINTED OUT THAT DEDUCTION U/S.80IA(4)(I) OF THE ACT ON SIMILAR RECEIPTS WAS A LLOWED BY THE ASSESSEE IN ASSESSMENT OF THE ASSESSEE FOR AY 2003-04 TO 2009-10. IN FACT IT IS ONLY IN AY 2011-12 THAT THE ORDER OF THE AO IS SOUGHT TO BE REVISED IN EXERCISE OF POWERS U/S.263 OF THE ACT AND PROCEEDINGS INITIATED U/S.263 OF THE ACT FOR AY 20 10-11 ON IDENTICAL GROUNDS DID NOT ULTIMATELY CULMINATE IN AN ORDER U/S.263 OF THE ACT . IT WAS FURTHER SUBMITTED BY HIM THAT THE ONLY REASON BY THE CIT IN THE IMPUGNED ORDER FO R INVOKING THE POWERS OF SECTION 263 OF THE ACT IS THE DECISION OF THE HONBLE PUNE BENCH IN THE CASE OF M/.S. B.T.PATIL & SONS AND THE RETROSPECTIVE AMENDMENT TO SECTION 8 0IA OF THE ACT. IT WAS SUBMITTED BY HIM THAT IN THE DECISION RENDERED BY THE PUNE BE NCH OF THE TRIBUNAL IN THE CASE OF M/S. B.T.PATIL & SONS (SUPRA) IT WAS HELD THAT THER E IS A DIFFERENCE BETWEEN THE DEVELOPER AND THE CONTRACTOR AND THAT A PERSON WHO MERELY EXECUTES THE JOB OF CIVIL CONSTRUCTION DOES NOT DESIGN OR CONCIEVE NEW PROJEC TS AND HE ONLY EXECUTES THE JOB OF CIVIL CONSTRUCTION AND WAS THEREFORE ELIGIBLE FOR D EDUCTION U/S 80IA(4) OF THE ACT. THE LD. COUNSEL FOR THE ASSESSEE BROUGHT TO OUR NOTICE THAT THE AFORESAID DECISION OF THE PUNE BENCH OF THE TRIBUNAL WAS A DECISION RENDERED BY A THIRD MEMBER OWING TO DIFFERENCE OF OPINION ON THE ISSUE OF DEDUCTION U/S.80IA(4)(I) OF THE ACT BETWEEN THE MEMBERS OF THE DIVISION BENCH WHICH HEARD THE ISSUE. AFTER DECISI ON OF THE THIRD MEMBER THE APPEAL WAS POSTED FOR HEARING BEFORE THE DIVISIONAL BENCH FOR PASSING AN ORDER GIVING EFFECT TO THE OPINION OF THE MAJORITY. SINCE THE ASSESSEE DID NOT APPEAR IN THE PROCEEDINGS FOR 6 ITA NO.1020/KOL/2016 BMW INDUSTRIES LTD. A.YR.2011-12 6 GIVING EFFECT TO THE ORDER OF THE THIRD MEMBER, THE DIVISIONAL BENCH DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE. THE ASSESSEE MOVED A MIS CELLANEOUS PETITION BEFORE THE TRIBUNAL FOR RECALLED OF THE ORDER OF THE DISMISSAL . THE ASSESSEE ALSO FILED AN APPEAL BEFORE THE HONBLE BOMBAY HIGH COURT AGAINST THE OR DER GIVING EFFECT IN THE OPINION OF THE MAJORITY. THE MISCELLANEOUS APPLICATION WAS ALL OWED AND ORDER OF DISMISSAL OF THE APPEAL FOR NON APPEARANCE WAS RECALLED. IN VIEW OF THE AFORESAID DEVELOPMENT THE ASSESSEE SOUGHT TO WITHDRAW THE APPEAL FILED BEFORE THE HONBLE BOMBAY HIGH COURT AGAINST THE ORDER GIVING EFFECT TO THE OPINION OF T HE MAJORITY. THE HONBLE BOMBAY HIGH COURT ALLOWED THE ASSESSEE TO WITHDRAW ITS AP PEAL AND IN DOING SO ALSO GAVE SOME DIRECTIONS TO THE DIVISION BENCH TO BE FOLLOWE D WHILE GIVING EFFECT TO THE OPINION OF THE MAJORITY. THE RELEVANT PORTION OF THE SAID ORDER OF HONBLE JURISDICTIONAL HIGH COURT IN ITA NO.1307 OF 2011 FOR A.Y. 2000-01 AND 1 640 OF 2011 FOR A.Y. 2001-02 IS AS UNDER: 1. SINCE THE TRIBUNAL HAS RECALLED THE IMPUGNED OR DER DATED 23.03.2011, THE APPELLANT IS WITHDRAWING ITS APPEAL. 2. FURTHER, WHILE CONSIDERING THE MATTER AFRESH, TH E 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. THE DIVISION BENCH OF THE TRIBUNAL WHILE GIVING EFF ECT TO THE ORDER OF THE TRIBUNAL, HELD THAT THE VIEW OF THE LARGER BENCH THAT THE ASSESSEE HAD TO BE DIRECTLY ENGAGED IN DEVELOPING, MAINTAINING AND OPERATING THE FACILITY AND THAT THERE HAD TO BE A COMPLETE DEVELOPMENT OF THE FACILITY AND NOT JUST A PART OF IT IS CONTRARY TO THE LAW LAID DOWN IN ABG HEAVY INDUSTRIES 322 ITR 323 (BOM). THE HIGH COURT HELD THAT THE EF FECT OF THE AMENDMENT BY THE FINANCE ACT OF 1999 IS THAT TH E BENEFIT OF S. 80IA(4) IS AVAILABLE TO ANY ENTERPRISE CARRYING ON THE BUSINESS OF (I) D EVELOPING, (II) MAINTAINING & OPERATING, OR (III) DEVELOPING, MAINTAINING AND OPE RATING AN INFRASTRUCTURE FACILITY. IT WAS ALSO HELD THAT THE ASSESSEE DID NOT HAVE TO DEVELOP THE ENTIRE PROJECT IN ORDER TO QUALIFY FOR DEDUCTION U/S 80-IA AND THAT PARLIAMENT DID NOT LEGISLATE A CONDITION IMPOSSIBLE OF 7 ITA NO.1020/KOL/2016 BMW INDUSTRIES LTD. A.YR.2011-12 7 COMPLIANCE. THE EXPLANATION BELOW 80-IA (13) INSERT ED BY FA 2007 & 2009 W.R.E.F 1.4.2000 WHICH PROVIDES THAT S. 80-IA(4) SHALL NOT APPLY TO A PERSON EXECUTING A WORKS CONTRACT DOES NOT APPLY TO A CASE WHERE THE ASSESSEE EXECU TES THE WORK BY SHOULDERING INVESTMENT & TECHNICAL RISK BY EMPLOYING TEAM OF TE CHNICALLY & ADMINISTRATIVELY QUALIFIED PERSONS AND IT IS LIABLE FOR LIQUIDATED D AMAGES IF FAILED TO FULFILL THE OBLIGATION LAID DOWN IN THE AGREEMENT AND ALSO SECURING BY BAN K GUARANTEE. ON FACTS, THE ASSESSEE HAD SHOULDERED THE INVESTMENT & TECHNICAL RISK IN R ESPECT OF THE WORK EXECUTED AND IT WAS LIABLE FOR LIQUIDATED DAMAGES IF FAILED TO FULF ILL THE OBLIGATION LAID DOWN IN THE AGREEMENT. THE LIABILITY WHICH HAD BEEN ASSUMED BY THE ASSESSEE WERE OBLIGATIONS INVOLVING THE DEVELOPMENT OF AN INFRASTRUCTURE FACI LITY. CONSEQUENTLY, IT IS NOT CORRECT TO SAY THAT THE ASSESSEE IS MERELY A CONTRACTOR & NOT A DEVELOPER. THE ASSESSEE IS ELIGIBLE FOR BENEFIT U/S 80-1A EVEN IF ONLY PART OF THE INFR ASTRUCTURAL PROJECT WORK IS EXECUTED BY IT. 13. THE LD. COUNSEL SUBMITTED THAT A READING OF TH E AFORESAID ORDER OF THE HONBLE DIVISION BENCH OF THE TRIBUNAL IN THE CASE OF M/S.B .T.PATIL & SONS (SUPRA) GIVING EFFECT TO THE ORDER OF THE THIRD MEMBER IN THE LIGH T OF OBSERVATIONS OF THE HONBLE BOMBAY HIGH COURT AND THE DECISION OF THE HONBLE B OMBAY HIGH COURT IN THE CASE OF ABG HEAVY INDUSTRIES (SUPRA) WOULD SHOW THAT THE VI EW EXPRESSED BY THE SPECIAL BENCH OF THE ITAT IN THE CASE OF M/S. B.T.PATIL & S ONS (SUPRA) AND THE TESTS LAID DOWN IN THE AFORESAID DECISION WERE NO LONGER GOOD LAW. ACCORDING TO HIM IN THE LIGHT OF THE SUBSEQUENT DECISIONS RENDERED ON THE ISSUE WHAT IS TO BE SEEN IS AS TO WHETHER THE ASSESSEE HAS SHOULDERED OUT INVESTMENT & TECHNICAL RISK IN RESPECT OF THE WORK EXECUTED AND IT IS LIABLE FOR LIQUIDATED DAMAGES IF IT FAILED TO FULFILL THE OBLIGATION LAID DOWN IN THE AGREEMENT. THE LIABILITY THAT WAS ASSUM ED BY THE ASSESSEE UNDER TERMS OF THE CONTRACT WOULD BE OBLIGATIONS INVOLVING THE DEV ELOPMENT OF AN INFRASTRUCTURE FACILITY. THE ASSESSEE HAS ALSO IN ITS EMPLOYMENT T ECHNICALLY AND ADMINISTRATIVELY QUALIFIED TEAM OF PERSONS. IF THE ABOVE CONDITIONS ARE SATISFIED THEN IT WOULD NOT BE CORRECT TO SAY THAT ASSESSEE IS MERELY A CONTRACTOR & NOT A DEVELOPER. ACCORDING TO HIM THE CIT IN THE SHOW CAUSE NOTICE AS WELL AS IN THE ORDER PASSED U/S 263 OF THE ACT HAS NOT TAKEN COGNIZANCE OF THE LATER DEVELOPMENT OF TH E LAW, WHICH DEVELOPMENT HAD TAKEN 8 ITA NO.1020/KOL/2016 BMW INDUSTRIES LTD. A.YR.2011-12 8 PLACE PRIOR TO THE DATE OF SHOW CAUSE NOTICE ISSUED U/S.263 OF THE ACT, THE ENTIRE APPROACH OF THE CIT WAS NOT SUSTAINABLE IN LAW. IT WAS HIS SUBMISSION THAT IN THE LIGHT OF THE LAW AS EXPLAINED IN THE SUBSEQUENT DECISIONS , THE RATIO LAID DOWN BY THE LARGER BENCH IN THE CASE OF M/S. B.T.PATIL & SONS(SUPRA) B Y ITAT PUNE WAS NO LONGER GOOD LAW. IT WAS HIS FURTHER SUBMISSION THAT THE AO IN ACCEPTING THE CLAIM OF THE ASSESSEE HAS ADOPTED A PARTICULAR VIEW ON THE ISSUE AND MERE LY BECAUSE THE CIT DOES NOT AGREE WITH THAT VIEW, THE PROVISIONS OF SEC. 263 OF THE A CT CANNOT BE INVOKED BY CIT. IN THIS REGARD REFERENCE WAS MADE BY HIM TO THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF MALABAR INDUSTRIES LTD. 243 ITR 83 (SC). 14. THE LEARNED DR SUBMITTED THAT THE AO FAILED TO LOOK INTO THE QUESTION WHETHER THE ASSESSEE WAS ELIGIBLE FOR DEDUCTION U/S.80IA(4)(I) OF THE ACT OR NOT. ACCORDING TO HIM THE SAID DEDUCTION HAD TO BE DETERMINED ON THE BASI S OF READING OF THE AGREEMENT AND ASCERTAINING THE VARIOUS RESPONSIBILITIES AND RISKS INVOLVED IN EXECUTION OF A PROJECT. THE AO NOT HAVING DONE SO, HIS ORDER WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE AND WAS AMENABLE FOR REVISION U/S.263 O F THE ACT AS AN ORDER ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. ACCORD ING TO HIM WHATEVER BE THE LAW ON THE ISSUE, THIS BASIS ANALYSIS OUGHT TO HAVE BEEN DONE BY THE AO WHILE ALLOWING THE CLAIM OF THE ASSESSEE U/S.80IA(4)(I) OF THE ACT. IT WAS SUBMITTED BY HIM THAT IN THE ABSENCE OF REFERENCE TO THE TERMS OF THE CONTRACT, THE REVE NUE FROM WHICH WAS CLAIMED AS EXEMPT U/S.80IA(4)(I) OF THE ACT, BY THE AO IN THE ORDER OF ASSESSMENT, JURISDICTION U/S.263 OF THE ACT WAS RIGHTLY INVOKED BY THE CIT. HE THEREFORE SUPPORTED THE ORDER OF THE CIT. 15. WE HAVE GIVEN A VERY CAREFUL CONSIDERATION TO THE RIVAL SUBMISSIONS. SEC.80IA(4)(I) OF THE ACT WHICH ALLOWS D EDUCTIONS IN RESPECT OF PROFITS AND GAINS FROM INDUSTRIAL UNDERTAKINGS OR ENTERPRISES ENGAGED IN I NFRASTRUCTURE DEVELOPMENT, ETC., READS AS FOLLOWS: 80-IA. (1) WHERE THE GROSS TOTAL INCOME OF AN ASSESSEE INC LUDES ANY PROFITS AND GAINS DERIVED BY AN UNDERTAKING OR AN ENTERPRIS E FROM ANY BUSINESS REFERRED TO IN SUB-SECTION (4) (SUCH BUSINESS BEING HEREINAF TER REFERRED TO AS THE ELIGIBLE 9 ITA NO.1020/KOL/2016 BMW INDUSTRIES LTD. A.YR.2011-12 9 BUSINESS), THERE SHALL, IN ACCORDANCE WITH AND SUBJ ECT TO THE PROVISIONS OF THIS SECTION, BE ALLOWED, IN COMPUTING THE TOTAL INCOME OF THE ASSESSEE, A DEDUCTION OF AN AMOUNT EQUAL TO HUNDRED PER CENT OF THE PROFITS AND GAINS DERIVED FROM SUCH BUSINESS FOR TEN CONSECUTIVE ASSESSMENT YEARS. (4) THIS SECTION APPLIES TO ( I ) ANY ENTERPRISE CARRYING ON THE BUSINESS OF ( I ) DEVELOPING OR ( II ) OPERATING AND MAINTAINING OR ( III ) DEVELOPING, OPERATING AND MAINTAINING] ANY INFRASTRUCTURE FACILITY WHICH FULFILS ALL THE F OLLOWING CONDITIONS, NAMELY : ( A ) IT IS OWNED BY A COMPANY REGISTERED IN INDIA OR BY A CONSORTIUM OF SUCH COMPANIES OR BY AN AUTHORITY OR A BOARD OR A C ORPORA-TION OR ANY OTHER BODY ESTABLISHED OR CONSTITUTED UNDER ANY CENTRAL OR STATE ACT; ( B ) IT HAS ENTERED INTO AN AGREEMENT WITH THE CENTRA L GOVERNMENT OR A STATE GOVERNMENT OR A LOCAL AUTHORITY OR ANY OTHER STATUTORY BODY FOR ( I ) DEVELOPING OR ( II ) OPERATING AND MAINTAINING OR ( III ) DEVELOPING, OPERATING AND MAINTAINING A NEW INFRASTRUCTURE FACI LITY; ( C ) IT HAS STARTED OR STARTS OPERATING AND MAINTAINI NG THE INFRASTRUCTURE FACILITY ON OR AFTER THE 1ST DAY OF APRIL, 1995: PROVIDED THAT WHERE AN INFRASTRUCTURE FACILITY IS TRANSFERRE D ON OR AFTER THE 1ST DAY OF APRIL, 1999 BY AN ENTERPRISE W HICH DEVELOPED SUCH INFRASTRUCTURE FACILITY (HEREAFTER REFERRED TO IN THIS SECTION AS THE TRANSFEROR ENTERPRISE) TO ANOTHER ENTERPRISE (HEREA FTER IN THIS SECTION REFERRED TO AS THE TRANSFEREE ENTERPRISE) FOR THE P URPOSE OF OPERATING AND MAINTAINING THE INFRASTRUCTURE FACILITY ON ITS BEHALF IN ACCORDANCE WITH THE AGREEMENT WITH THE CENTRAL GOVERNMENT, STA TE GOVERNMENT, LOCAL AUTHORITY OR STATUTORY BODY, THE PROVISIONS O F THIS SECTION SHALL APPLY TO THE TRANSFEREE ENTERPRISE AS IF IT WERE TH E ENTERPRISE TO WHICH THIS CLAUSE APPLIES AND THE DEDUCTION FROM PROFITS AND GAINS WOULD BE AVAILABLE TO SUCH TRANSFEREE ENTERPRISE FOR THE UNEXPIRED PERIOD DURING WHICH THE TRANSFEROR ENTERPRISE WOULD HAVE B EEN ENTITLED TO THE DEDUCTION, IF THE TRANSFER HAD NOT TAKEN PLACE. EXPLANATION .FOR THE PURPOSES OF THIS CLAUSE, 'INFRASTRUCTURE FACILITY' MEANS ( A ) A ROAD INCLUDING TOLL ROAD, A BRIDGE OR A RAIL S YSTEM; ( B ) A HIGHWAY PROJECT INCLUDING HOUSING OR OTHER ACT IVITIES BEING AN INTEGRAL PART OF THE HIGHWAY PROJECT; 10 ITA NO.1020/KOL/2016 BMW INDUSTRIES LTD. A.YR.2011-12 10 ( C ) A WATER SUPPLY PROJECT, WATER TREATMENT SYSTEM, IRRIGATION PROJECT, SANITATION AND SEWERAGE SYSTEM OR SOLID WASTE MANAG EMENT SYSTEM; ( D ) A PORT , AIRPORT, INLAND WATERWAY, INLAND PORT OR NAVIGATI ONAL CHANNEL IN THE SEA; ..................... EXPLANATION. FOR THE REMOVAL OF DOUBTS, IT IS HEREBY DECLARED T HAT NOTHING CONTAINED IN THIS SECTION SHALL APPLY IN RELATION T O A BUSINESS REFERRED TO IN SUB- SECTION (4) WHICH IS IN THE NATURE OF A WORKS CONTR ACT AWARDED BY ANY PERSON (INCLUDING THE CENTRAL OR STATE GOVERNMENT) AND EXE CUTED BY THE UNDERTAKING OR ENTERPRISE REFERRED TO IN SUB-SECTION (1). 16. THE AFORESAID EXPLANATION TO SEC.80IA OF THE A CT WAS SUBSTITUTED BY THE FINANCE (NO.2) ACT, 2009, W.R.E.F. 1-4-2000 . PRIOR TO ITS SUBSTITUTION, EXPLANATION, AS INSERTED BY THE FINANCE ACT, 2007, W.R.E.F. 1-4-2000, READ AS UNDER : ' EXPLANATION. FOR THE REMOVAL OF DOUBTS, IT IS HEREBY DECLARED TH AT NOTHING CONTAINED IN THIS SECTION SHALL APPLY TO A PERSON W HO EXECUTES A WORKS CONTRACT ENTERED INTO WITH THE UNDERTAKING OR ENTERPRISE, AS THE CASE MAY BE.' 17. THE PROVISIONS OF SECTION 80IA (4) OF THE ACT WERE INTRODUCED BY THE FINANCE ACT, 1999, IN SUBSTITUTION TO THE PROVISIONS OF 80IA (4A ) OF THE ACT WHICH WERE DELETED FROM THE ACT. THE DEDUCTION AVAILABLE FOR ANY ENTERPRISE EARLIER UNDER SECTION 80IA (4A) WERE ALSO MADE AVAILABLE UNDER SECTION 80IA (4) OF THE A CT. THE DEDUCTION U/S.80IA(4)(I) OF THE ACT IS ALLOWED ON PROFITS DERIVED FROM (I) 'DEV ELOPING' OR (II) 'OPERATING AND MAINTAINING' OR (III) 'DEVELOPING, OPERATING AND MA INTAINING'. THUS ANY ENTERPRISE WHICH CARRIES ON ANY OF THE ABOVE THREE ACTIVITIES WOULD BECOME ELIGIBLE FOR DEDUCTION. THE DEDUCTION IS AVAILABLE FOR A PERIOD OF 10 YEARS . IT IS NOT IN DISPUTE IN THIS CASE THAT SIMILAR RECEIPTS FROM SIMILAR CONTRACTS EXECUTED BY THE ASSESSEE IN THE PAST WERE CONSIDERED AS ELIGIBLE FOR DEDUCTION U/S.80IA(4)(I) OF THE ACT. THE DETAILS OF THE PAST ASSESSMENT (I.E. FROM AY 2003-04 TO 2009-10) ARE GI VEN AT PAGE-14 OF THE ASSESSEES PAPER BOOK. THE SAME IS AS FOLLOWS: DETAILS OF DEDUCTIONS ALLOWED U/S 80IA(4) 11 ITA NO.1020/KOL/2016 BMW INDUSTRIES LTD. A.YR.2011-12 11 SL.NO. ASSESSMENT YEARS DEDUCTION ALLOWED U/S 80IA(4) AS PER ASSESSMENT ORDER U/S 143(3) 1. 2009-10 2,27,85,300 2. 2008-09 2,54,43,092 3. 2007-08 4,03,90,515 4. 2006-07 2,11,00,534 5. 2005-06 1,96,56,553 6. 2004-05 4,74,21,529 7. 2003-04 4,57,26,314 KEEPING IN MIND THE AFORESAID BACKGROUND OF FACTS, WE HAVE TO EXAMINE THE QUESTION AS TO WHETHER THE CIT WAS JUSTIFIED IN COMING TO THE C ONCLUSION THAT THE ORDER OF THE AO ALLOWING THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/ S.80-IA(4)(I) OF THE ACT COULD BE TERMED AS ERRONEOUS. 18. FROM A PERUSAL OF THE IMPUGNED ORDER IT IS CLE AR THAT THE ASSESSEE HAS FURNISHED THE COPIES OF CONTRACTS THE RECEIPTS FROM WHICH WERE CL AIMED AS PROFITS DERIVED FROM THE BUSINESS OF CARRYING OUT INFRASTRUCTURE DEVELOPMENT ELIGIBLE FOR DEDUCTION U/S.80IA(4)(I) OF THE ACT. WE HAVE ALREADY SEEN THAT THE AO WHILE COMPLETING THE ASSESSMENT U/S.143(3) OF THE ACT BY ORDER DATED 25.3.2014 HAS TAKEN NOTE OF FORM NO.10CCB GIVING COMPLETE DETAILS OF THE PROFITS DERIVED FROM THE BUSINESS THAT IS ELIGIBLE FOR DEDUCTION U/S.80IA(4)(I) OF THE ACT. HE HAD RAISED SPECIFIC QUERIES WITH REGARD TO ALLOCATION OF PROPORTIONATE HEAD OFFICE EXPENSES WH ILE ARRIVING AT THE PROFITS OF THE ELIGIBLE BUSINESS. KEEPING IN MIND THE PAST HISTOR Y OF THE ASSESSEES CASE IT CANNOT BE SAID THAT THE AO FAILED TO DEAL THE SPECIFIC FACTS OF THE CASE AS PER LAW AND HAS NOT SCRUTINIZED/VERIFIED THE DETAILS IN RESPECT OF THE ISSUES RAISED IN THE SHOW CAUSE NOTICE U/S.263 OF THE ACT. 19. THE CIT IN THE IMPUGNED ORDER HAS HEAVILY RELI ED ON THE DECISION OF THE THIRD MEMBER IN THE CASE OF M/S.B.T.PATIL & SONS (SUPRA) AND RAISED DOUBTS AS TO WHETHER THE ASSESSEE CAN BE REGARDED AS A DEVELOPER OR PERSON C ARRYING OUT WORKS CONTRACT. AS RIGHTLY POINTED OUT BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE TESTS LAID DOWN IN THE 12 ITA NO.1020/KOL/2016 BMW INDUSTRIES LTD. A.YR.2011-12 12 DECISION OF THE LARGER BENCH OF ITAT, MUMBAI IN THE CASE OF B.T.PATIL & SONS (SUPRA) WITH REGARD TO WHETHER THE PERSON CLAIMING DEDUCTIO N U/S.80IA(4)(I) OF THE ACT SHOULD BE OWNER OF THE INFRASTRUCTURE FACILITY AND THAT AN Y PERSON CARRYING OUT INFRASTRUCTURE DEVELOPMENT UNDER A CONTRACT WITH GOVERNMENT WOULD BE CONSIDERED AS FALLING WITHIN EXPLANATION TO SEC.80IA OF THE ACT WAS ITSELF NOT G OOD LAW IN VIEW OF THE SUBSEQUENT DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CA SE OF ABG HEAVY INDUSTRIES (SUPRA) AND THE ORDER OF THE DIVISION BENCH GIVING EFFECT TO THE DECISION OF THE THIRD MEMBER IN THE CASE OF B.T.PATIL & SONS (SUPRA). 20. THE CIT HAS ALSO OBSERVED IN HIS ORDER THAT TH E ASSESSEE WAS NOT OWNER OF THE INFRASTRUCTURE FACILITY. THE EXPRESSION 'OWNED' I N SUB- CLAUSE (A) OF CLAUSE (1) OF SUB SECTION (4) OF SECTION 80IA OF THE ACT REFER TO OWN ERSHIP OF THE ENTERPRISE AND NOT THE OWNERSHIP OF THE INFRASTRUCTURE FACILITY THAT IS CR EATED. THE OWNERSHIP OF THE ENTERPRISE SHOULD BE THAT OF A COMPANY AND NOT ANY OTHER PERSO N LIKE INDIVIDUAL, HUF, FIRM ETC. SUB-CLAUSE (A), CLAUSE (I) OF SUB SECTION (4) OF SE CTION 80-IA USES THE WORD 'IT' AND THAT DENOTES THE ENTERPRISE CARRYING ON THE BUSINESS. TH E WORD 'IT' CANNOT BE RELATED TO THE INFRASTRUCTURE FACILITY, PARTICULARLY IN VIEW OF TH E FACT THAT INFRASTRUCTURE FACILITY INCLUDES RAIL SYSTEM, HIGHWAY PROJECT, WATER TREATMENT SYSTE M, IRRIGATION PROJECT, A PORT, AN AIRPORT OR AN INLAND PORT WHICH CANNOT BE OWNED BY ANY ONE. EVEN OTHERWISE, THE WORD 'IT' IS USED TO DENOTE AN ENTERPRISE. THEREFORE, TH ERE IS NO REQUIREMENT THAT THE ASSESSEE SHOULD HAVE BEEN THE OWNER OF THE INFRASTRUCTURE FA CILITY. 21. THE CIT HAS ALSO OBSERVED THAT THE ASSESSEE WA S ONLY A CONTRACTOR AND NOT A DEVELOPER BECAUSE HE WAS CARRYING OUT WORK AS PER T HE CONTRACTS AWARDED BY THE EXECUTIVE ENGINEER. AS RIGHTLY POINTED OUT BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE QUESTION AS TO WHETHER THE ASSESSEE AS PER THE QUES TION AS TO WHETHER THE ASSESSEE IS DEVELOPER OR CONTRACTOR HAS TO BE TESTED IN THE LIGHT OF THE SUBSEQUENT DECISIONS RENDERED ON THE ISSUE BY THE HONBLE BOMBAY HIGH CO URT IN THE CASE OF ABG HEAVY INDUSTRIES (SUPRA) AND THE ORDER OF THE DIVISION BE NCH OF ITAT GIVING EFFECT TO THE LARGER BENCH (THIRD MEMBER) DECISION IN THE CASE OF B.T.PATIL & SONS (SUPRA). 13 ITA NO.1020/KOL/2016 BMW INDUSTRIES LTD. A.YR.2011-12 13 ACCORDING TO THESE DECISIONS WHAT IS TO BE SEEN IS AS TO WHETHER THE ASSESSEE HAS SHOULDERED OUT INVESTMENT & TECHNICAL RISK IN RESPE CT OF THE WORK EXECUTED AND IT IS LIABLE FOR LIQUIDATED DAMAGES IF IT FAILED TO FULFI LL THE OBLIGATION LAID DOWN IN THE AGREEMENT. THE LIABILITY THAT WAS ASSUMED BY THE AS SESSEE UNDER TERMS OF THE CONTRACT WOULD BE OBLIGATIONS INVOLVING THE DEVELOPMENT OF A N INFRASTRUCTURE FACILITY. THE ASSESSEE HAS ALSO IN ITS EMPLOYMENT TECHNICALLY AND ADMINISTRATIVELY QUALIFIED TEAM OF PERSONS. IF THE ABOVE CONDITIONS ARE SATISFIED THE N IT WOULD NOT BE CORRECT TO SAY THAT ASSESSEE IS MERELY A CONTRACTOR AND NOT A DEVELOPER . WITHOUT GIVING ADVERSE FINDING ON THE ABOVE TESTS, THE CIT COULD NOT CONCLUDE THAT TH E ORDER OF THE AO WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. 22. FURTHER THE CIT IN THE IMPUGNED ORDER HAS ALSO OBSERVED THAT THE ROADS CONSTRUED BY THE ASSESSEE WERE NOT COMING UNDER EXPRESSWAY OR HIGHWAY CATEGORY AS MENTIONED IN THE EXPLANATION TO SEC.80IA(4)(I) OF THE ACT, WH ICH DEFINES INFRASTRUCTURE FACILITY FOR THE PURPOSE OF CLAIMING DEDUCTION UNDER THE AFORESA ID SECTION. WE ARE OF THE VIEW THAT THE DEFINITION COVERS ANY ROAD INCLUDING TOLL ROAD. IT NEED NOT BE COMING UNDER EXPRESSWAY OR HIGHWAY CATEGORY. 23. PROCEEDINGS WERE INITIATED U/S.263 OF THE ACT FOR AY 2010-11ON IDENTICAL GROUNDS BUT NO ORDER U/S.263 OF THE ACT WAS ULTIMATELY PASS ED. THE GROUNDS ON WHICH THE CIT SOUGHT TO INVOKE JURISDICTION U/S.263 OF THE ACT AR E QUIET VAGUE. CONSIDERING ALL THE ABOVE ASPECTS OF THE CASE, WE ARE OF THE VIEW THAT THE CONCLUSIONS IN THE IMPUGNED ORDER OF THE CIT THAT THE ORDER OF THE AO WAS ERRONEOUS A ND PREJUDICIAL TO THE INTEREST OF THE REVENUE FOR THE REASON THAT DEDUCTION U/S.80IA(4)(I ) OF THE ACT WAS WRONGLY ALLOWED TO THE ASSESSEE EITHER FOR WANT OF PROPER ENQUIRY BY T HE AO BEFORE CONCLUDING THE ASSESSMENT OR FOR THE REASON THAT THE ASSESSEE DID NOT SATISFY THE REQUIREMENTS OF CLAIMING DEDUCTION U/S.80IA(4)(I) OF THE ACT, CANNO T BE SUSTAINED. WE THEREFORE QUASH THE ORDER PASSED BY THE CIT U/S.263 OF THE ACT AND ALLOW THE APPEAL OF THE ASSESSEE. 14 ITA NO.1020/KOL/2016 BMW INDUSTRIES LTD. A.YR.2011-12 14 24. IN THE RESULT, APPEAL BY THE ASSESSEE IS ALLOW ED. ORDER PRONOUNCED IN THE COURT ON 02.12.2016. SD/- SD/- [DR.ARJUN LAL SAINI] [ N.V.VASUD EVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 02.12.2016. [RG PS] COPY OF THE ORDER FORWARDED TO: 1. M/S. BMW INDUSTRIES LTD., WHITE HOUSE, 119, PARK STREET, KOLKATA-700016. 2. D.C.I.T. CIRCLE-1(2), KOLKATA. 3. PR.CIT-I, KOLKATA. 4. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSTT.REGISTRAR, ITAT, KOLKATA BENCHES