M/s. M.V. Omni Projects (I) Ltd., Ahmedabad V. The Income tax Officer,Ward-4(4), Ahmedabad

ITA 118/AHD/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94680 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 9 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 27-10-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 17-01-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD - , , BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER 1. ./ I.T.A. NO.117/AHD/2012 AY 2007-08 2. ./ I.T.A. NO.118/AHD/2012 AY 2008-09 1.M.V.OMNI PROJECTS (INDIA) LTD. 74, NEW YORK TOWER-A SARKHEJ-GANDHINAGAR- -HIGH WAY, THALTEJ AHMEDABA-380 054 2. DO- / VS. 1. THE ADDL.CIT RANGE-4 AHMEDABAD 2. THE ITO WARD-4(4) AHMEDABAD $ ./ ./ PAN/GIR NO(S). : AADCM 1155 A ( $' / APPELLANT ) .. ( ()$' / RESPONDENTS ) ASSESSEE B Y : MS. RIDDHI T.SHAH, CA REVENUE BY : SHRI NARENDRA SINGH, SR.DR *+ , - / DATE OF HEARING 27/10/2015 ./ , - / DATE OF PRONOUNCEMENT 28/10/2015 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : BOTH THE APPEALS BY THE ASSESSEE ARE DIRECTED AGAIN ST THE SEPARATE ORDERS OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS )-VIII, AHMEDABAD [CIT(A) IN SHORT] IDENTICALLY DATED 30/11/2011 P ERTAINING ITA NO.117 /AHD/2012 AND ITA NO.118/AHD/2012 M.V.OMNI PROJECTS (INDIA) LTD. VS. ADDL.CIT/ITO ASST.YEARS 2007-08 & 2008-09 RESPECTIVELY - 2 - TO ASSESSMENT YEARS (AYS) 2007-08 & 2008-09. IN R ESPECT OF THE AY 2007-08 THE ISSUE OF DISALLOWANCE OF DEDUCTION U/S. 80IB(10) OF THE ACT IS INVOLVED AND IN RESPECT OF THE AY 2008-09 THE ISSUE OF DEDUCTION U/S.80IB(10) OF THE ACT AND 80IA(4) OF THE ACT. SI NCE IDENTICAL GROUNDS ARE INVOLVED IN BOTH THE APPEALS, THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. FIRST, WE TAKE UP THE ASSESSEES APPEAL IN ITA N O.117/AHD/2012 FOR AY 2007-08 AS THE LEAD CASE. 2.1. IN RESPECT OF AY 2007-08, IN ITA NO.117/AHD/20 12, THE ASSESSEE HAS RAISED THE FOLLOWING SOLITARY GROUND:- THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-V III, AHMEDABAD, HAS ERRED ON FACTS AND IN LAW IN : 1. CONFIRMING THE DISALLOWANCE OF THE CLAIM OF DED UCTION UNDER SECTION 80IB(10) OF THE ACT WHICH WAS ORIGINALLY MA DE BY THE AO. 2.2. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE-CO MPANY HAS FILED ITS RETURN OF INCOME ON 15/10/2007 DECLARING TOTAL INCO ME OF RS.74,17,190/- AND THE CASE OF THE ASSESSEE WAS PICKED UP FOR SCRU TINY ASSESSMENT AND THE ASSESSMENT U/S.143(3) OF THE INCOME TAX ACT,196 1 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VIDE ORDER DAT ED 22/12/2009, THEREBY THE ASSESSING OFFICER (AO IN SHORT) MADE AD DITION(S) IN RESPECT OF DISALLOWANCE OF DEDUCTION U/S. 80IB(10) OF THE A CT OF RS.71,74,749/- ITA NO.117 /AHD/2012 AND ITA NO.118/AHD/2012 M.V.OMNI PROJECTS (INDIA) LTD. VS. ADDL.CIT/ITO ASST.YEARS 2007-08 & 2008-09 RESPECTIVELY - 3 - AND DISALLOWANCE OF DEDUCTION U/S.80G OF THE ACT OF RS.25,500 /-. THUS, THE AO ASSESSED THE TOTAL INCOME OF THE ASSES SEE AT RS.1,46,17,440/-. THE ASSESSEE BEING AGGRIEVED BY THE ASSESSMENT ORDER, PREFERRED AN APPEAL BEFORE THE LD.CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE DISMISSED THE APPEAL. AGGRIEVED BY THE ORDER OF THE LD.CIT(A), NOW THE ASSESSEE IS FURTHER IN APPEAL BEFORE US. 3. AT THE TIME OF HEARING, THE LD.COUNSEL FOR TH E ASSESSEE FAIRLY SUBMITTED THAT SIMILAR GROUNDS WERE RAISED IN AY 20 06-07 IN ASSESSEES OWN CASE BY WAY OF ITA NO.1083/AHD/2010 BEFORE THE HONBLE ITAT B BENCH AHMEDABAD AND THE HONBLE TRIBUNAL VIDE I TS ORDER DATED 15/06/2012 BOTH THE ISSUES HAVE BEEN DECIDED AGAIN ST THE ASSESSEE. HOWEVER, THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS FILED APPEAL BEFORE THE HONBLE JURISDICTIONAL HIGH COURT IN TAX APPEAL NO.568 OF 2012, WHEREIN THE HONBLE HIGH COURT HAS ADJOURNED THE MATTER AWAITING THE DECISION OF HONBLE SUPREME COU RT IN SLP (CIVIL) NO.19953 TO 19965/2013 IN THE CASE OF KATIRA CONSTR UCTION LTD. VS. UNION OF INDIA & ORS. REPORTED IN (2013) 352 ITR 51 3. ACCORDINGLY, THE APPEAL HAS BEEN ADJOURNED SINE DIE . 3.1. THE LD.SR.DR HAS NOT CONTROVERTED THE SUBMISSI ON OF THE LD.COUNSEL FOR THE ASSESSEE. THE LD.SR.DR SUPPORTED THE ORDER S OF THE AUTHORITIES BELOW. ITA NO.117 /AHD/2012 AND ITA NO.118/AHD/2012 M.V.OMNI PROJECTS (INDIA) LTD. VS. ADDL.CIT/ITO ASST.YEARS 2007-08 & 2008-09 RESPECTIVELY - 4 - 4. THE SIMILAR ISSUE HAS BEEN DECIDED BY THE TRIBUN AL IN ITA NO.1083/AHD/2010-SUPRA, IN ASSESSEES OWN CASE, BY OBSERVING AS UNDER:- 12. IN ASSESSEES CASE, THE LAND OWNED BY THE DEFE NCE MINISTRY, HE IS MAINLY WORK CONTRACTOR, THE CONSTRUCTION OF H OUSE WERE FOR THE AIR FORCE NOT FOR ANY MIDDLE CLASS. THE PERMIS SION OF THE MUNICIPAL AUTHORITY IN THE NAME OF DEFENCE MINISTRY . THERE WAS NO FULL RESPONSIBILITY OF THE ASSESSEE FOR EXECUTIO N OF THE DEVELOPMENT PROJECTS. THERE IS NO DISCRETION OF TH E ASSESSEE ON THAT CONSTRUCTION. THE ASSESSEE HAD NOT DIRECTLY C HARGED COLLECTION FROM THE MEMBERS BUT PAYMENTS WERE RECEI VED BY THE ASSESSEE FROM N.B.C.C. THE ASSESSEE RECEIVED WORK CONTRACT ON FIXED PRICE. AFTER CONSIDERING THIS DECISION AND F ACTUAL POSITION OF ASSESSEE, WE CONFIRM THE ORDER OF THECIT(A) AND THE ASSESSEES APPEAL IS DISMISSED. 4.1. THEREFORE, TAKING A CONSISTENT VIEW AND FOLLOW ING THE DECISION OF THE COORDINATE BENCH PASSED IN ASSESSEES OWN CASE IN ITA NO.1083/AHD/2010, WE HEREBY REJECT THE GROUND OF AS SESSEES APPEAL IN THIS YEAR ALSO. THUS, ASSESSEES APPEAL IN ITA NO. 117/AHD/2012 FOR AY 2007-08 IS DISMISSED. 5. NOW, WE TAKE UP THE ASSESSEES APPEAL IN ITA NO. 118/AHD/2012 FOR AY 2008-09. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL:- THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS)-VII I, AHMEDABAD, HAS ERRED ON FACTS AND IN LAW IN: 1. CONFIRMING THE DISALLOWANCE OF THE CLAIM OF DED UCTION UNDER SECTION 80IA(4) OF THE ACT WHICH WAS ORIGINALLY MADE BY THE AO. ITA NO.117 /AHD/2012 AND ITA NO.118/AHD/2012 M.V.OMNI PROJECTS (INDIA) LTD. VS. ADDL.CIT/ITO ASST.YEARS 2007-08 & 2008-09 RESPECTIVELY - 5 - 2. CONFIRMING THE DISALLOWANCE OF THE CLAIM OF DED UCTION UNDER SECTION 80IB(1) OF THE ACT WHICH WAS ORIGINALLY MADE BY THE AO. 5.1. WE HAVE HEARD BOTH THE PARTIES AND GONE THOUG H THE MATERIAL AVAILABLE ON RECORD. SO FAR AS GROUND NO.1 REGARDI NG DISALLOWANCE OF THE CLAIM OF DEDUCTION U/S.80IA(4) OF THE ACT IS CONCE RNED, THE SIMILAR GROUND WAS RAISED IN ITA NO.1083/AHD/2010 FOR AY 20 06-07 (IN ASSESSEES OWN CASE) AND THE TRIBUNAL, VIDE ITS ORD ER DATED 15/06/2012 IN PARA-7, HAS DECIDED THIS ISSUE BY OBSERVING AS UND ER:- 7. WE HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW AND ARGUMENTS FROM BOTH THE SIDE. THE ASSESSEE IS A WORK CONTRAC TOR OF THE RAILWAY DEPARTMENT WHO HAS EXECUTED THE CONTRACT FOR SUPPLY OF MATERIALS TRENCHING, LAYING, TESTING, COMMISSIONING OF 4 QUAD CABLES, INSTALLATION AND COMMISSIONING OF GATE, TELEPHONES AND EMERGENCY POSTS, ETC. FOR THE WORK OF PROVISION OF 4 QUAD CABLE IN RAJKOT-VARAVAL SECTION OF RAJKOT/BHAVNAGAR DIVISIONS OF WESTERN RAILWAYS. TH E NATURE OF THE CONTRACT IS CIVIL WHICH HAD BEEN ASSIGNED BY THE RA ILWAY DEPARTMENT IN PART OF ALREADY RAIL LAID AND NO NEW RAILWAY LINE O R TELECOMMUNICATION SYSTEM HAS BEEN EXECUTED BY THE ASSESSEE. THUS, TH E LD.CIT(A) HAS RIGHTLY CONFIRMED THE ADDITION OF THE AO. WE DO NO T FIND ANY REASON TO REVERT THE ORDER OF THE CIT(A). ACCORDINGLY, THE O RDER OF CIT(A) IS CONFIRMED AND THE ASSESSEES APPEAL IS DISMISSED. 5.2. THEREFORE, RESPECTFULLY FOLLOWING THE AFORESA ID DECISION OF THE COORDINATE BENCH, TAKING A CONSISTENT VIEW, FOR THE SAME REASONING, THIS GROUND OF ASSESSEES APPEAL IS REJECTED. ITA NO.117 /AHD/2012 AND ITA NO.118/AHD/2012 M.V.OMNI PROJECTS (INDIA) LTD. VS. ADDL.CIT/ITO ASST.YEARS 2007-08 & 2008-09 RESPECTIVELY - 6 - 6. THE LD.REPRESENTATIVES OF THE RESPECTIVE PARTIES HAVE ADOPTED THE ARGUMENTS AS WERE MADE IN ITA NO.117/AHD/2012 PERTA INING TO THE AY 2007-08(SUPRA). WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. SO FAR AS GROUND NO.2 REGARDI NG DISALLOWANCE OF THE CLAIM OF DEDUCTION U/S.80IB(10) OF THE ACT IS CONCE RNED, THE FACTS ARE IDENTICAL TO THE FACTS AS ARE RAISED IN THE ITA NO. 117/AHD/2012 FOR AY 2007-08 IN ASSESSEES OWN CASE-SUPRA, WHEREIN WE HA VE DISMISSED THE GROUND RAISED BY THE ASSESSEE. 6.1. SINCE THE ASSESSEE HAS NOT POINTED OUT ANY C HANGE INTO THE FACTS AND CIRCUMSTANCES OF THE CASE, THEREFORE TAKING A CONSI STENT VIEW, WE HEREBY REJECT THE GROUND RAISED BY THE ASSESSEE IN THIS YE AR ALSO. THUS, ASSESSEES APPEAL IN ITA NO.118/AHD/2012 FOR AY 200 8-09 IS DISMISSED. 7. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE FOR AYS 2007-08 AND 2008-09 ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON WEDNESDAY, THE 28 TH DAY OF OCTOBER, 2015 AT AHMEDABAD. SD/- SD/- ( ) ( ) ( MANISH BORAD ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 28/ 10 /2015 3-.., *.../ T.C. NAIR, SR. PS ITA NO.117 /AHD/2012 AND ITA NO.118/AHD/2012 M.V.OMNI PROJECTS (INDIA) LTD. VS. ADDL.CIT/ITO ASST.YEARS 2007-08 & 2008-09 RESPECTIVELY - 7 - !'#$#%! / COPY OF THE ORDER FORWARDED TO : 1. $' / THE APPELLANT 2. ()$' / THE RESPONDENT. 3. 45 6 / CONCERNED CIT 4. 6 ( ) / THE CIT(A)-VIII, AHMEDABAD 5. 7*8 (45 , - 45/ , / DR, ITAT, AHMEDABAD 6. 8:; <+ / GUARD FILE. / BY ORDER, )7 ( //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION ..27.X.2015 (DICTATION-PAD 6 - PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ..27.10.2015 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 28.X.15 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 28.X.15 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER