Rajdeep Infrastructure , Ahmednagar V. Deputy Commissioner of Icome tax, Ahmednagar

ITA 1176/PUN/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 9569 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 7 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 11-05-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE
• Keywords: Question of law; Competent authority; Set aside
• Section: 43B; 143(3); 80IA; 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE BEFORE SHRI ANIL CHATURVEDI , ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY , J UDICIAL MEMBER . / ITA NO . 1176 /PUN/201 7 / ASSESSMENT YEAR : 20 1 2 - 1 3 RAJDEEP INFRASTRUCTURE RAJDEEP HOUSE, NEAR BHIDE HOSPITAL, SAVEDI, AHMEDNAGAR 414003 PAN : AA HFR2945Q ....... / APPELLANT / V/S. THE DY . COMMISSIONER OF INCOME TAX , AHMEDNAGAR CIRCLE, AHMEDNAGAR. / RESPONDENT ASSESSEE BY : SHRI PIYUSH BAFNA REVENUE BY : SHRI S.P. WALIMBE / DATE OF HEARING : 06 - 0 1 - 20 20 / DATE OF PRONOUNCEMENT : 07 - 01 - 2020 / ORDER PER ANIL CHATURVEDI , A M : THIS APPEAL PREFERRED BY THE ASSESSEE EMANATES FROM THE ORDER OF THE LD. CIT(A) - 2 , PUNE , DATED 24 . 1 0.201 6 , FOR THE ASSESSMENT YEAR 201 2 - 1 3 . 2 ITA NO.1176/PUN/2017 RAJDEEP INFRASTRUCTURE 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER : - THE ASSESSEE IS A FIRM ENGAGED IN THE BUSINESS OF DEVELOPMENT, MAINTENANCE AND OPERATION OF AN INFRASTRUCTURE FACILITY LIKE FOOT OVER BRIDGES AND ROAD SINEAGES ON BOT BASIS. THE ASSESSEE ELECTRONICALLY FILED ITS RETURN OF INCOME FOR A.Y. 20 1 2 - 1 3 ON 25 . 09 .20 1 2 DECLARING TOT AL INCOME AT RS. NIL AFTER CLAIMING DEDUCTION OF RS.1,44,25,090/ - U/S 80IA(4) OF INCOME - TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) . THE CASE WAS TAKEN UP FOR SCRUTINY AND T HEREAFTER, ASSESSMENT WAS FRAMED U/S 143(3) OF THE VIDE ORDER DATED 2 3 .0 3 . 201 5 AND THE TOTAL INCOME WAS DETERMINED AT RS. 1,61,22,580 / - . AGGRIEVED BY THE ORDER OF ASSESSING OFFICER , ASSESSEE CARRIED THE MATTER BEFORE LD.CIT(A), WHO VIDE ORDER D ATED 24 . 1 0 .201 6 (IN APPEAL NO. PN/ CIT(A) - 2 / DCIT CIR/AN/68/2015 - 16/1946 ) DISMISSED THE APPEAL OF ASSESSEE . AGGRIEVED BY THE ORDER OF LD.CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS : 1] THE LEARNED CIT(A) ERRED IN DENYING THE CLAIM OF THE DEDUCTION U/S 80IA(4) MADE BY THE ASSESSEE TO THE TU NE OF RS.1,44,25,090/ - ON THE GROUND THAT THE ASSESSEE WAS NOT ENGAGED IN DEVELOPMENT OF ANY INFRASTRUCTURE FACILITY AS LAID DOWN IN SECTION 80IA(4) WITHOUT APPRECIATING THE CORRECT FACTS OF THE CASE. 2] THE LEARNED CIT(A) ERRED IN HOLDING THAT THE ACTIVITY OF CONSTRUCTION OF ROAD SIGNAGES AND FOOT OVER BRIDGES DID NOT AMOUNT TO DEVELOPMENT OF INFRASTRUCTURE FACILITY AS STIPULATED IN SECTION 80IA(4) AND HENCE, THE DEDUCTION U/S 80IA(4) COULD NOT BE ALLOWED TO THE ASSESSEE FOR THIS YEAR. 3] THE LEARN ED CIT(A) FAILED TO APPRECIATE THAT THE ASSESSEE HAD FULFILLED ALL THE CONDITIONS LAID DOWN FOR CLAIMING DEDUCTION U/S 80IA(4) AND HENCE, THE ASSESSEE WAS ELIGIBLE TO CLAIM THE SAID DEDUCTION IN RESPECT OF THE PROFITS DERIVED FROM THE ACTIVITY OF CONSTRUCT ION OF ROAD SIGNAGES AND FOOT OVER BRIDGES OVER THE ROADS CARRIED ON BY THE ASSESSEE FOR THE YEAR. 4] THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED THAT THE ACTIVITY OF CONSTRUCTION OF FOOT OVER BRIDGES AND CONSTRUCTION OF ROAD SIGNAGES AMOUNTED TO DEVELOP MENT OF ROADS AND FORMED AN INTEGRAL AND MANDATORY PART OF ROAD AND THUS, THE SAID ACTIVITY WAS IN THE NATURE 3 ITA NO.1176/PUN/2017 RAJDEEP INFRASTRUCTURE OF DEVELOPMENT OF INFRASTRUCTURE FACILITY AS STIPULATED U/S 80IA(4) AND THEREFORE, THE DEDUCTION U/S 80IA(4) WAS ALLOWABLE TO THE ASSESSEE. 5] THE LEARNED CIT(A) ERRED IN NOT APPRECIATING THAT - A . THE ROAD SIGNAGES CONSTRUCTED BY THE ASSESSEE INCLUDED VARIOUS DIRECTIONS BOARDS, CAUTIONARY SIGNS, INFORMATORY SIGNS ETC. AND THE SAID SIGNAGES CONSTRUCTED OVER THE ROADS WERE A PART AND PARCEL OF THE R OADS AND HENCE, THE CONSTRUCTION OF THE SAME AMOUNTED TO DEVELOPMENT OF ROADS AND THUS, THE DEDUCTION U/S 80IA(4) WAS ALLOWABLE TO THE ASSESSEE. B . THE ROAD SIGNAGES FORM A MANDATORY PART OF ROADS AS PER THE STANDARDS PRESCRIBED BY THE MINISTRY OF SURFACE TR ANSPORT (ROADS WING) AND HENCE, THERE IS NO REASON TO HOLD THAT THE CONSTRUCTION OF ROAD SIGNAGES DOES NOT AMOUNT TO DEVELOPMENT OF ROADS AND THEREBY DENY THE DEDUCTION U/S 80IA(4) OF THE ACT. C . THE ASSESSEE HAD OBTAINED COMPOSITE CONTRACTS FOR THE CONSTRUCTION OF FOOT OVER BRIDGES AND CONSTRUCTING ROAD SIGNAGES THEREON AND AT VARIOUS STIPULATED LOCATIONS AND SINCE, THE FOOT OVER BRIDGES WERE NOTIFIED AS INFRASTRUCTURE FACILITY, THE SIGNAGES CONSTRUCTED THEREON AND AT VARIOUS STIPULATED LOCATIONS COU LD NOT BE HELD TO BE IN THE NATURE OF 'NON - INFRASTRUCTURE' FACILITY AND THEREFORE, THE ADDITION MADE WAS NOT JUSTIFIED. 6 . 1 THE LEARNED CIT(A) HAS ERRED IN UPHOLDING THE DISALLOWANCE OF ADVERTISEMENT TAX PAYABLE RS.16,97,094/ - U/S 43B WITHOUT APPRECIATIN G THE FACTS AND CIRCUMSTANCES OF THE CASE. 6.2] THE LEARNED CIT(A), IN UPHOLDING THE SAID DISALLOWANCE, HAS NOT PROPERLY APPRECIATED THE FACT THAT THE AMOUNT OF ADVERTISEMENT TAX WAS NOT DEBITED TO THE PROFIT AND LOSS ACCOUNT AND HENCE, COULD NOT BE DISAL LOWED U/S 43B. THE LEARNED CIT(A) ERRED IN HOLDING THAT THE ADVERTISEMENT TAX HAD TO BE SHOWN IN THE GROSS RECEIPTS. 6.3] THE LEARNED CIT(A) DID NOT APPRECIATE THE FACT THAT THE SAID ADVERTISEMENT TAX WAS PAYABLE DUE TO PENDING LITIGATION AND STAY WAS GRANTED BY THE HON'BLE MADHYA PRADESH HIGH COURT. THE LEARNED CIT(A) DID NOT APPRECIATE THAT THE ADVERTISEMENT TAX WAS ESSENTIALLY IN THE NATURE OF A LIABILITY AND WOULD BE PAYABLE EITHER TO MADHYA PRADESH GOVERNMENT OR TO CUSTOMERS DEPENDING ON THE OUTCOM E OF THE LITIGATIONS. 6.4] THE LEARNED CIT(A) CONFIRMED THE DISALLOWANCE WITHOUT APPRECIATING THAT THE APPELLANT HAD NOT CLAIMED ANY DEDUCTION OF THE ADVERTISEMENT TAX IN COMPUTING THE TAXABLE INCOME. 3. BEFORE US AT THE OUTSET, LD. AR SUBMITTED THAT GROUND NOS.1 TO 5 ARE ON A SINGLE ISSUE OF DENIAL OF DEDUCTION U/S 80IA(4) OF THE ACT AND GROUND NO.6 AND ITS SUB - GROUNDS ARE WITH RESPECT TO DISALLOWANCE U/S 43B OF THE 4 ITA NO.1176/PUN/2017 RAJDEEP INFRASTRUCTURE ACT. WE FIRST PROCEED TO DECIDE THE FIRST ISSUE OF DENIAL OF DEDUCTION U/S 80IA(4) OF THE ACT. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAD CLAIMED DEDUCTION U/S 80IA(4) OF THE ACT IN RELATION TO ITS INCOME DERIVED FROM THE BUSINESS OF DEVELOPING, MAINTAINING AND OPERATING OF FOOT OVER BRIDGES AND ROAD SI G NAGES. HE FURTHER NOTICED THAT THE ASSESSEE HAD ENTERED INTO AN AGREEMENT WITH INDORE MUNICIPAL CORPORATION FOR INSTALLATION OF SI G NAGES AND ITS MAINTENANCE. THE ASSESSING OFFICER WAS OF THE VIEW THAT THE ACTIVITY OF INSTALLATION AND MAINTENANCE OF SI G NAGES CANNOT BE CONSIDERED TO BE AN ACTIVITY IN THE NATURE OF INFRASTRUCTURE FACILITIES AS DEFINED IN SECTION 80IA(4) OF THE ACT. HE FURTHER OBSERVED THAT THE ASSESSEES CLAIM OF DEDUCTION U/S 80IA(4) OF THE ACT , FOR SIMILAR REASONS WAS DENIED TO THE ASSESSEE BY HIS PREDECESSOR FOR A.Y. 2011 - 12. HE THEREFORE, DENIED THE CLAIM OF DEDUCTION U/S 80IA(4) OF THE ACT TO THE ASSESSEE. 5. AGGRIEVED BY THE ORDER OF ASSESSING OFFICER, ASSESSEE CARRIED THE MATTER BEFORE THE CIT(A), WHO NOTICED THAT AN IDENTICAL ISSUE AROSE IN ASSESSEES OWN CASE BEFORE THE TRIBUNAL FOR A.YS. 2010 - 11 AND 2011 - 12 AND THE HONBL E TRIBUNAL VIDE ORDER DATED 14.10.2015 HAD UPHELD THE ORDER OF ASSESSING OFFICER / CIT(A), WHEREIN IT HAD ALSO RELIED ON THE DECISION IN THE CASE OF M/S. RAJDEEP PUBLICITY PVT. LTD. VS. DCIT IN ITA NOS.1782 & 1783/PN/2007 AND 1414/PN/2008 FOR A.YS. 2003 - 04 TO 2005 - 06 DECIDED ON 04.06.2010. HE THEREFORE, FOLLOWING THE ORDER OF TRIBUNAL IN ASSESSEES OWN CASE UPHELD THE ORDER OF ASSESSING OFFICER. 5 ITA NO.1176/PUN/2017 RAJDEEP INFRASTRUCTURE 6 . AGGRIEVED BY THE ORDER OF CIT(A), THE ASSESSEE IS NOW IN APPEAL BEFORE US. 7. BEFORE US, T HE LD. AR REITERATED THE SUBMISSIONS MADE BEFORE THE ASSESSING OFFICER AND CIT(A) AND FURTHER SUBMITTED THAT ROAD SI G NAGES ARE ESSENTIAL AND INTEGRAL PART OF FOOT OVER BRIDGES AND FOOT OVER BRIDGES FALL UNDER INFRASTRUCTURE FACILITY AS PER EXPLANATION TO SECTION 80IA(4) OF THE ACT. HE FURTHER PLACED RELIANCE ON THE DECISION OF KOLKATA BENCH OF TRIBUNAL IN THE CASE OF DCIT VS. SELVEL MEDIA SERVICES PVT. LTD. IN ITA NOS.451 & 452(KOL) OF 2011, WHEREIN IT WAS HELD THAT THE DEVELOPMENT OF BUS SHELTERS, TOILE T BLOCKS AND FOOT OVER BRIDGES QUALIFY FOR DEDUCTION AS INFRASTRUCTURE FACILITY. HE FURTHER SUBMITTED THAT AGAINST THE ORDER OF PUNE BENCH OF TRIBUNAL FOR A.YS. 2010 - 11 AND 2011 - 12 THE ASSESSEE HAS FILED AN APPEAL BEFORE THE HONBLE BOMBAY HIGH COURT, A URANGABAD BENCH AND THE HONBLE HIGH COURT FOR A.Y. 2010 - 11 HAS ADMITTED THE APPEAL BY FRAMING SUBSTANTIAL QUESTION OF LAW. HE SUBMITTED THAT FOR A.Y. 2011 - 12 THE APPEAL IS PENDING FOR ADMISSION. HE THEREFORE, SUBMITTED THAT FOLLOWING THE DECISION OF KOL KATA BENCH OF TRIBUNAL , THE ISSUE BE DECIDED IN ASSESSEES FAVOUR. 8 . THE L D. DR ON THE OTHER HAND SUBMITTED THAT ONCE THE MATTER HAS BEEN DECIDED IN FAVOUR OF REVENUE BY THE CO - ORDINATE BENCH OF TRIBUNAL, THEN FOLLOWING THE CO - ORDINATE BENCH OF TRIBUNAL S ORDER, NO INTERFERENCE TO THE ORDER OF CIT(A) IS CALLED FOR. 6 ITA NO.1176/PUN/2017 RAJDEEP INFRASTRUCTURE 9 . WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT GROUNDS IS WITH RESPECT TO DENIAL OF CLAIM OF DEDUCTION U/S 80IA(4) OF THE ACT. WE FIND TH AT THE CO - ORDINATE BENCH OF TRIBUNAL VIDE ORDER DATED 16.10.2017 IN ITA NO.562/PUN/2015 ON IDENTICAL ISSUE FOR A.Y. 2011 - 12 HAS UPHELD THE ORDER OF ASSESSING OFFICER BY OBSERVING AS UNDER: - 5. WE HAVE EXAMINED THE DOCUMENTS ON RECORD AND PERUSED THE ORDER OF CO - ORDINATE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2010 - 11. WE FIND THAT ASSESSING OFFICER REJECTED ASSESSEES CLAIM OF DEDUCTION U/S. 80IA(4) OF THE ACT IN RESPECT OF STRUCTURE OF FOOT OVER BRIDGES AND INSTALLATION OF ROAD SI GNAGES IN ASSESSMENT YEAR 2010 - 11, AS WELL. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE COMMISSIONER OF INCOME TAX( APPEALS). THE FIRST APPELLATE AUTHORITY GRANTED RELIEF TO THE ASSESSEE AGAINST WHICH THE REVENUE WAS IN APPEAL BEFORE TRIBUNAL. THE TRI BUNAL DECIDED THE ISSUE IN FAVOUR OF REVENUE BY FOLLOWING THE ORDER OF CO - ORDINATE BENCH IN THE CASE OF ASSESSEES SISTER CONCERN TITLED, RAJDEEP PUBLICITY PVT. LTD VS. DCIT/ACIT IN ITA NO. 1782 &1783/PN/2007 AND 1414/PN/2008 FOR THE ASSESSMENT YEARS 2003 - 04 TO 2005 - 06 DECIDED ON 04.06.2010. THE RELEVANT EXTRACT OF THE FINDINGS OF THE TRIBUNAL IN ASSESSEES CASE FOR ASSESSMENT YEAR 2010 - 11 ARE AS UNDER : 7. WE FIND THAT THE ISSUE RAISED IN THE PRESENT APPEAL I.E. WHETHER THE ERECTION OF FOOT OVER BRIDGES AND INSTALLATION OF ROAD SIGNAGE FALL WITHIN THE DEFINITION OF INFRASTRUCTURE FACILITY AS ENVISAGED U/S. 80IA(4) OF THE ACT HAS BEEN CONSIDERED BY THE TRIBUNAL IN THE CASE OF ASSESSEES GROUP CONCERN M/S. RAJDEEP PUBLICITY PVT. LTD. THE RELEVANT EXTRACT OF THE ORDER OF TRIBUNAL IN THE SAID CASE IS REPRODUCED HERE - IN - UNDER: 2. IN A.Y. 2003 - 04, THE ASSESSEE HAS RAISED VARIOUS CONTENTIONS WITH REGARD TO ITS CLAIM U/S. 80IA(4) OF THE ACT AND SAME WAS REJECTED BY THE A.O AND IT WAS UPHELD BY THE CIT(A). THE ASSESSEE'S STAND IS THAT THE PUNE MUNICIPAL CORPORATION IN ITS TENDER DOCUMENTS IN CLAUSE 2.1.1. SAYS THAT 'PROJECT OF PUNE ROAD TRAFFIC SIGNAGES AND FOOT OVER BRIDGES THROUGH PRIVATE PARTICIPATION H AS BEEN EVOLVED TO DEVELOP THE CITY INFRASTRUCTURE FACILITIES WITH NO EXCESS FINANCIAL BURDEN ON CORPORATION'. IN THIS REGARD, IT WAS FOUND BY REVENUE AUTHORITIES THAT FOR CLAIM OF .DEDUCTION UNDER 80 IA OF INCOME TAX ACT, PROFIT AND GAIN SHOULD BE DERIVED FROM DEVELOPING INFRASTRUCTURAL FACILITIES AS DEFINED IN INCOME TAX ACT 1961. THE FACT THAT TENDER DOCUMENT OF PMC TRADES THE PROJECT OF ROAD TRAFFIC SIGNALS AND FOOT OVER BRIDGE AS HELPFUL TO DEVELOP INFRASTRUCTURAL FACILITIES IS OF NO RELEVANCE IN T HIS REGARD. THIS ISSUE HAS GOT TO BE DECIDED WITH REFERENCE TO PROVISION OF LAW AS CONTAINED IN INCOME TAX ACT AS RIGHTLY HELD BY THE CIT(A). AS REGARDS SUBMISSION OF ASSESSEE THAT SECTION 80IA(4) USES THE TERM 'DEVELOPMENT OF INFRASTRUCTURAL FACILITY AND NOT CONSTRUCTION. THE TERM DEVELOPMENT HAS WIDER CONNOTATION THAN 7 ITA NO.1176/PUN/2017 RAJDEEP INFRASTRUCTURE CONSTRUCTION. FROM THE LANGUAGE OF RELEVANT SUB - SECTION 80IA, IT COULD BE SEEN THERE CANNOT BE ANY DEVELOPMENT OF INFRASTRUCTURAL FACILITY WITHOUT CONSTRUCTING THE INFRASTRUCTURE AS DEFINED IN EXPLANATION TO SUB - SECTION (4) OF SECTION 80IA. 3. AS REGARDS THE SUBMISSION OF ASSESSEE THAT CIRCULAR NO. 10/2005 DT. 16.12.2005 STATE THAT 'FOR THE PURPOSE OF SECTION 10(23G) AND SECTION 80 IA, STRUCTURE INCLUDES STRUCTURES AT THE PORTS FOR STORAGE, LOADING, UNLOADING ETC. AND ONLY STIPULATION PUT BY THIS CIRCULAR IS THAT THE CONCERNED AUTHORITY SHOULD ISSUE CERTIFICATE THAT THE SAID STRUCTURES FORM A PART OF THE PORT AND THAT SUCH STRUCTURES ARE BUILT ON BOT OR BOLT SCHEME AND THERE IS AN AGREEMENT THAT THE SAME SHOULD BE TRANSFERRED TO THE SAID AUTHORITY ON THE EXPIRY OF THE TIME STIPULATED IN THE AGREEMENT. THE C.B.D.T BEING THE COMPETENT AUTHORITY FOR THE PURPOSE OF DELEGATION OF LEGISLATION AS LAW MAKING POWER OF C.B.D.T IS UNDERSTOOD, THE AMBIT OF CIRCULAR SHOULD NOT BE ENLARGED TO INCLUDE THE ACTIVITY INTO WHICH THE ASSESSEE IS ENGAGED. THERE CANNOT BE ANY IMPLIED ENLARGEMENT OF SUB - SECTION. THE STAND OF THE ASSESSEE THAT STRUCTURES OF FOOT OVER BRIDGE AND ROAD SIGNALS ARE NECESSARY TO DEVELOP INFRASTRUCTURAL FACILITY WHICH IS ROAD, LACK MERIT FOR SIMPLE REASONS THAT ROAD ON WHICH SIGNALS HAVE BEEN PUT WAS EXISTING BEFORE SIGNALS WERE PUT. IN THIS BACKGROUND, IT WAS RIGHTLY OBSERVED THAT ROAD SIGNALS COULD NOT BE SAID TO BE AN INTEGRAL AND IN - SE PARABLE PART OF THE ROAD. THEY CAN MAKE THE USE OF ROAD MORE CONVENIENT BUT IT CANNOT BE SAID THAT WITHOUT THE SIGNALS, THE ROAD CANNOT BE USED . 4. AS REGARDS THE SUBMISSION OF ASSESSEE THAT SECTION 80IA USES THE WORD 'DEVELOPING' AS AGAINST SEC 80 IB(10) WHICH USES THE TERM THE DEVELOPMENT AND CONSTRUCTION AND THEREFORE, FOR CLAIM OF DEDUCTION U/S. 80IA(4), THERE MAY BE DEVELOPMENT OF INFRASTRUCTURE WITHOUT ITS CONSTRUCTION. IT WAS RIGHTLY FOUND MISPLACED TO THE FACTS IN THE CASE OF THE ASSESSEE. AS PER T HE PROVISIONS OF SUB SECTION (1) TO SECTION 80 IA, WHERE GROSS TOTAL INCOME OF ASSESSEE INCLUDE ANY PROFIT AND GAIN DERIVED BY AN UNDERTAKING OR AN ENTERPRISE FROM ANY BUSINESS REFERRED TO SUB SECTION (4), AND DEDUCTION OF AN AMOUNT EQUAL TO 100% OF PROFIT AND GAIN DERIVED BY THE ASSESSEE SHALL BE AVAILABLE FOR 10 CONSECUTIVE YEARS. ACCORDING TO THE PROVISION OF SECTION 80IA (4), IT APPLY TO ANY ENTERPRISE CARRYING ON BUSINESS OF (I) DEVELOPING OR (II) OPERATING OR MAINTAINING OF, (III) DEVELOPING, OPERATIN G AND MAINTAINING ANY INFRASTRUCTURAL FACILITIES. THE EXPLANATION TO SECTION 80IA (4) EXHAUSTIVELY DEFINES INFRASTRUCTURAL FACILITY IN ITS CLAUSE (A) AS ROAD INCLUDING TOLL ROAD, BRIDGE OR A RAIL SYSTEM. THE ASSESSEE HAS CONSTRUCTED TWO FOOT OVER B RIDGES AND ROAD SIGNALS. MOST OF THE INCOME OF THE ASSESSEE IS ON ACCOUNT OF PUTTING ROAD SIGNALS. IT DOES NOT FIT INTO DEVELOPMENT OF INFRASTRUCTURAL FACILITIES AS DEFINED IN EXPLANATION TO SECTION 80IA(4). SO, THERE CANNOT BE ANY DEVELOPMENT OF ANY ROAD WITHOUT ITS CONSTRUCTION. ADDING ADDITIONAL FACILITY CANNOT BE SAID THAT AN INFRASTRUCTURAL FACILITY 8 ITA NO.1176/PUN/2017 RAJDEEP INFRASTRUCTURE IN THE NATURE OF ROAD AS DEFINED IN EXPLANATION TO SECTION 80IA(4). 5. IN VIEW OF THE ABOVE, WE HOLD THAT THE ASSESSEE DID NOT DEVELOP ANY INFRASTRUCTURAL FACILITY IN THE NATURE OF ROAD AS DEFINED IN EXPLANATION TO SUB - SECTION (4) TO 80 IA OF INCOME TAX AND THEREFORE, THE ACTION OF THE A.O DENYING THE DEDUCTION TO ASSESSEE UNDER 80 IA NEED NO INTERFERENCE FROM OUR SIDE . WE UPHOLD THE SAME. SIMILAR ISSUE ARO SE IN A.Y. 2004 - 05 AND 2005 - 06. FACTS BEING SIMILAR AND FOLLOWING THE SAME REASONINGS, THE REJECTION OF CLAIM U/S. 80IA(4) NEED NO INTERFERENCE FROM OUR SIDE. 6. AS A RESULT, ALL THE APPEALS OF THE ASSESSEE ARE DISMISSED. 8. IN THE INSTANT CASE, THE ASSESSEE HAS CONSTRUCTED THREE FOOT OVER BRIDGES AND HAS INSTALLED ROAD SIGNAGE FOR THE INDORE MUNICIPAL CORPORATION. THE MAJOR PART OF INCOME DURING THE YEAR WAS RECEIVED ON ACCOUNT OF EXECUTION OF WORK OF ROAD SIGNAGE. THUS, THE FACTS IN THE PRESENT CA SE ARE IDENTICAL TO THE ONE ADJUDICATED BY THE CO - ORDINATE BENCH IN THE GROUP CONCERN OF THE ASSESSEE. RESPECTFULLY FOLLOWING THE SAME, WE HOLD THAT THE ACTIVITIES CARRIED ON BY THE ASSESSEE DO NOT FALL WITHIN THE AMBIT OF INFRASTRUCTURE FACILITY DEFINE D IN EXPLANATION TO SECTION 80IA(4). THUS, THE ASSESSEE IS NOT ELIGIBLE TO CLAIM DEDUCTION U/S. 80IA(4). 6. A PERUSAL OF THE ABOVE FINDINGS SHOW THAT THE ISSUE IN THE PRESENT APPEAL IS IDENTICAL TO THE ONE ALREADY ADJUDICATED BY CO - ORDINATE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2010 - 11. THE ASSESSEE HAS NOT PLACED ON RECORD ANY MATERIAL TO SHOW ANY DISTINGUISHING FEATURES IN ASSESSMENT YEAR UNDER APPEAL. THEREFORE, WE FIND NO REASON TO TAKE A DIFFERENT VIEW. FOLLOWING THE ORDER OF CO - ORDINATE BENCH, WE HOLD THAT THE ASSESSEE IS NOT ELIGIBLE FOR CLAIMING DEDUCTION U/S. 80IA(4) IN RESPECT OF CONSTRUCTION OF FOOT - OVER BRIDGES AND INSTALLATION OF ROAD SIGNAGES AS THEY DO NOT FALL WITHIN THE AMBIT OF INFRASTRUCTURE FACILITY WITHIN THE MEANING OF SECTION 80IA (4) OF THE ACT. ACCORDINGLY, APPEAL OF THE ASSESSEE IS DISMISSED BEING DEVOID OF ANY MERIT. 10 . BEFORE US, NO DISTINGUISHING FACTS IN THE FACTS OF THE PRESENT CASE AND THAT OF EARLIER YEAR HAVE BEEN POINTED OUT BY THE LD. AR NOR HAS HE PLACED ANY MATERIAL ON RECORD TO DEMONSTRATE THAT THE DECISION OF CO - ORDINATE BENCH OF TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2011 - 12 (SUPRA) HAS BEEN SET ASIDE / OVERRULED / STAYED BY HIGHER JUDICIAL FORUM. WE THEREFORE, FOLLOWING THE DECISION OF CO - ORDINATE BENCH OF TRIBUNAL IN ASSESSEES OWN CASE (SUPRA) AND FOR SIMILAR REASONS HOLD THAT THE ASSESSEE 9 ITA NO.1176/PUN/2017 RAJDEEP INFRASTRUCTURE IS NOT ELIGIBLE FOR DEDUCTION CLAIMED U/S 80IA(4) OF THE ACT . IN VIEW OF THE AFORESAID, THE GROUND NO S .1 TO 5 RAISED BY THE ASSESSEE ARE DISMISSED . 11 . THE SECOND ISSUE IS WITH RESPECT TO DISALLOWANCE U/S 43B OF THE ACT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER ON PERUSING THE BALANCE SHEET NOTICED THAT UNDER THE HEAD CURRENT LIABILITIES AN AMOUNT OF RS.16,97,494/ - WAS SHOWN TO WARDS ADVERTISEMENT TAX PAYABLE TO M.P. STATE GOVERNMENT. THE ASSESSING OFFICER ALSO NOTICED THAT THE AFORESAID AMOUNT WAS NOT PAID TILL THE DATE OF AUDIT. THE ASSESSING OFFICER FURTHER NOTED THAT T HE ASSESSEE HAD SUBMITTED THAT HE HAS NOT DEBITED THE AD VERTISEMENT TAX IN ITS PROFIT AND LOSS ACCOUNT AND HAS NOT CLAIMED IT AS DEDUCTION. HE FURTHER NOTED THAT THE ASSESSEE HAD SUBMITTED THAT OUT OF THE AMOUNT OF RS.31,35,982/ - THAT WAS COLLECTED FROM ITS CUSTOMERS, AN AMOUNT OF RS.14,38,798/ - WAS PAID TO TH E GOVERNMENT AND THE BALANCE AMOUNT OF RS.16,97,494/ - WAS REMAINED UNPAID AS STAY WAS GRANTED BY HONBLE MADHYA PRADESH HIGH COURT. THE ASSESSING OFFICER NOTED THAT THE STAY WAS GRANTED BY THE HONBLE HIGH COURT ON 12.09.2014 AND IT WAS NOT BEFORE THE DAT E OF FILING THE RETURN OF INCOME. HE WAS OF THE VIEW THAT AN AMOUNT OF RS.16,97,494/ - WAS DUE AND PAYABLE AS THE MATTER STOOD BEFORE FILING OF THE WRIT PETITION AND THEREFORE, PROVISIONS OF SECTION 43B OF THE ACT WERE SQUARELY APPLICABLE. HE WAS FURTHER OF THE VIEW THAT ADVERTISEMENT TAX WAS PART OF GROSS RECEIPTS AND ITS NON DEPOSIT BEFORE THE DATE OF FILING OF RETURN OF INCOME ATTRACTS PROVISIONS OF SECTION 43B OF THE ACT . HE ACCORDINGLY, DISALLOWED THE CLAIM OF DEDUCTION OF RS.16,97,494/ - U/S 43B OF T HE ACT. 10 ITA NO.1176/PUN/2017 RAJDEEP INFRASTRUCTURE 12. AGGRIEVED BY THE ORDER OF ASSESSING OFFICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE CIT(A), WHO UPHELD THE ORDER OF ASSESSING OFFICER. 1 3 . AGGRIEVED BY THE ORDER OF CIT(A), THE ASSESSEE IS NOW IN APPEAL BEFORE US. 14. BEFORE US, TH E LD. AR REITERATED THE SUBMISSIONS MADE BEFORE THE ASSESSING OFFICER AND CIT(A) AND FURTHER SUBMITTED THAT THE ASSESSEE D ID NOT DEBIT THE ADVERTISEMENT TAX TO ITS PROFIT AND LOSS ACCOUNT AND THE AMOUNT IS ONLY REFLECTED IN ITS BALANCE SHEET. HE SUBMITTED THAT SINCE THE AMOUNT HAS NOT BEEN DEBITED TO ITS PROFIT AND LOSS ACCOUNT AND HAS NOT BEEN CLAIMED AS DEDUCTION, PROVISIONS OF SECTION 43B OF THE ACT ARE NOT APPLICABLE TO IT AND I N SUPPORT OF HIS AFORESAID CONTENTION, H E RELIED ON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. NOBLE AND HEWITT (I) (P) LTD. DECIDED ON 10.09.2007. HE ALSO PLACED ON RECORD A COPY OF THE AFORESAID DECISION, WHICH IS PLACED AT PAGES 164 AND 165 OF PAPER BOOK. HE THEREFORE, SUBMITTED THAT IF THE ASSESSEE HAS NOT CLAIMED THE DEDUCTION ON ACCOUNT OF ADVERTISEMENT TAX, PROVISIONS OF SECTION 43B OF THE ACT ARE NOT APPLICABLE. 1 5 . THE LD. DR ON THE OTHER HAND SUPPORTED THE ORDERS OF ASSESSING OFFICER AND CIT(A). 1 6 . WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT GROUNDS IS WITH RESPECT TO DISALLOWANCE U/S 43B OF THE ACT IN RESPECT OF ADVERTISEMENT TAX WHICH REMAINED UNPAID. 11 ITA NO.1176/PUN/2017 RAJDEEP INFRASTRUCTURE IT IS ASSESSEES CONTENTION THAT THE ASSESSEE HAS NOT CLAIMED ANY DEDUCTION WITH RESPECT T O ADVERTISEMENT TAX AND HAS NOT DEBITED ANY AMOUNT OF EXPENDITURE IN THE PROFIT AND LOSS ACCOUNT. THE AFORESAID CONTENTIONS OF THE ASSESSEE HAVE NOT BEEN CONTROVERTED BY REVENUE. WE FIND THAT THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. NOBLE AND HEWITT (I) (P) LTD. (SUPRA) HAS HELD THAT WHEN THE ASSESSEE DID NOT DEBIT THE AMOUNT TO PROFIT AND LOSS ACCOUNT AS AN EXPENDITURE NOR HAD THE ASSESSEE CLAIMED ANY DEDUCTION IN RESPECT OF THE AMOUNT, THE QUESTION OF DISALLOWING U/S 43B OF THE ACT DOES NOT ARISE. BEFORE US, THE REVENUE HAS NOT PLACED ANY CONTRARY BINDING DECISION IN ITS SUPPORT NOR HAS PLACED ANY MATERIAL ON RECORD TO DEMONSTRATE AS TO WHY THE DECISION OF HONBLE DELHI HIGH COURT IN T HE CASE OF CIT VS. NOBLE AND HEWITT (I) (P) LTD. (SUPRA) WOULD NOT BE APPLICABLE TO THE PRESENT FACTS . WE THEREFORE, FOLLOWING THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. NOBLE AND HEWITT (I) (P) LTD. (SUPRA) , HOLD THAT NO DISALLOWANCE WAS WARRANTED U/S 43B OF THE ACT AND WE THUS, DIRECT THE DELETION OF DISALLOWANCE. IN VIEW OF THE AFORESAID, THE GROUND NO.6 AND ITS SUB - GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED . 1 7 . IN THE RESULT, THE APPEAL OF ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED ON 7 T H DAY OF JANUARY , 20 20 . SD/ - SD/ - PARTHA SARATHI CHAUDHURY ANIL CHATURVEDI JUDICIAL MEMBER ACCOUNTANT MEMBER / PUNE; / DATED : 7 T H JANUARY , 20 20 GCVSR 12 ITA NO.1176/PUN/2017 RAJDEEP INFRASTRUCTURE / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 2 , PUNE 4. / THE PR. CIT - 1 , PUNE 5. , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. / BY ORDER, // // TRUE COPY// / SR. PRIVATE SECRETARY , / ITAT, PUNE