NCC-ECCI(JV), Hyderabad V. ITO, Hyderabad

ITA 125/HYD/2009

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2866 (ITAT-HYDERABAD)
• Duration Of Justice: 4 year(s) 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-06-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2001-2002
• Appeal Filed On: 29-01-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AMISHA S GUPT
• Assessee Lawyers: S RAMA RAO
• Keywords: Opportunity of being heard; Difference of opinion; Corroborative evidences; Change of opinion
• Section: 143(3); 147; 148; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B : MUMBAI BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA.NO.124 & 125/HYD/2009 ASSESSMENT YEARS 2000-2001 & 2001-2002 NCC - ECCI (JV) HYDERABAD PAN AACFN6059J VS. ITO, WARD 6 (3) HYDERABAD (APPELLANT) (RESPONDENT) FOR APPELLANT : SHRI S. RAMA RAO (A.R.) FOR RESPONDENT : SMT. AMISHA S. GUPT (D.R.) DATE OF HEARING : 15-04-2013 DATE OF PRONOUNCEMENT : 17-06-2013 ORDER PER SAKTIJIT DEY, J.M. THESE TWO APPEALS BY THE ASSESSEE ARE DIRECTED AGA INST THE ORDER OF THE CIT(A)-IV, HYDERABAD FOR THE A.Y. 2000-01 & 200 1-02. SINCE, COMMON ISSUES ARE INVOLVED IN THESE APPEALS, THEY WERE HEA RD TOGETHER AND ARE BEING DISPOSED OF BY SINGLE CONSOLIDATED ORDER FOR THE SA KE OF CONVENIENCE. THE GROUNDS RAISED IN BOTH THE APPEALS ARE COMMON EXCEP TING THE FIGURES. FOR THE SAKE OF CONVENIENCE, WE ARE DEALING WITH THE AP PEAL IN ITA.NO.124/HYD/2009 RELATING TO THE A.Y. 2000-2001 AND THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE ORDER OF THE LEARNED CIT(A) ERRONEOUS IN LAW AND FACTS OF THE CA SE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE T HE ORDER OF THE LEARNED CIT(A) ERRED IN LAW AND FACTS OF THE CASE I N UPHOLDING THE ACTION OF THE ASSESSING OFFICER IN REOPENING THE AS SESSMENT. 2 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE T HE ORDER OF THE LEARNED CIT(A) ERRED IN LAW AND FACTS OF THE CASE I N CONFIRMING THE DISALLOWANCE OF THE ASSESSING OFFICER OF THE DEDUCT ION CLAIMED BY THE APPELLANT UNDER SECTION 80IA IN RESPECT OF PROF ITS DERIVED FROM THE ELIGIBLE BUSINESS OF DEVELOPING INFRASTRUCTURE FACILITY DEFINED IN EXPLANATION TO SECTION 80IA (4) (I). 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE T HE ORDER OF THE LEARNED CIT(A) ERRED IN LAW AND FACTS OF THE CASE I N CONFIRMING THE ADDITION OF RS.4,23,918/- WHICH IS A MISTAKE APPARE NT RECORD. 5. THE APPELLANT CRAVE LEAVE TO ADD TO/DELETE/ MODIFY/ ALTER/ AMEND/SUBSTITUTE ALL OR ANY OF THE GROUNDS. 2. GROUND NO. 1 AND 5 ARE GENERAL IN NATURE AND IT NEEDS NO ADJUDICATION. 3. GROUND NO.2 IS RELATING TO THE LEGAL ISSUE OF VA LIDITY OF PROCEEDING INITIATED UNDER SECTION 147 OF THE ACT. BRIEFLY THE FACTS RELATING TO THIS ISSUE ARE THAT THE ASSESSEE FILED ITS RETURN FOR THE A.Y. 2000-01 ON 31.10.2000 DECLARING NIL INCOME AFTER CLAIMING DEDUCTION UNDER SECTION 80IA OF THE ACT. THE RETURN WAS PROCESSED UNDER SECTION 143(1) OF TH E ACT ON 11.1.2001. SUBSEQUENTLY, THE ASSESSING OFFICER REOPENED THE AS SESSMENT BY INITIATING PROCEEDING UNDER SECTION 147 OF THE ACT ON THE GROU ND THAT DEDUCTION CLAIMED UNDER SECTION 80IA OF THE ACT WAS NOT ALLOW ABLE SINCE THE ASSESSEE HAD NOT FULFILLED THE CONDITIONS LAID DOWN IN THE S AID SECTION. HE, THEREFORE, ISSUED A NOTICE UNDER SECTION 148 OF THE ACT AND UL TIMATELY, COMPLETED THE ASSESSMENT VIDE ORDER DATED 13.12.2007 UNDER SECTIO N 143(3) READ WITH SECTION 147 OF THE ACT BY DISALLOWING THE CLAIM OF EXEMPTION UNDER SECTION 80IA OF THE ACT. THE ASSESSEE CHALLENGED THE VALIDI TY OF THE ASSESSMENT ORDER BEFORE THE CIT(A) APART FROM THE MERITS OF THE DISA LLOWANCE OF CLAIM OF DEDUCTION UNDER SECTION 80IA OF THE ACT. BEFORE THE FIRST APPELLATE AUTHORITY, THE ASSESSEE CONTENDED THAT REOPENING OF THE ASSESSMENT ON THE BASIS OF CHANGE OF OPINION IS INVALID IN LAW. THE C IT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE HELD THAT SINCE THE RET URN FILED BY THE ASSESSEE HAD ONLY BEEN PROCESSED UNDER SECTION 143(1) OF THE ACT, IT CANNOT BE SAID 3 THAT THE ASSESSING OFFICER HAD FORMED ANY OPINION T HEREIN. THEREFORE, HE REJECTED THE ASSESSEES CONTENTION WITH REGARD TO V ALIDITY OF PROCEEDING UNDER SECTION 147 OF THE ACT. DURING THE COURSE OF HEARIN G BEFORE US, THE ASSESSEE HAS NOT PUT ANY SUBSTANTIVE ARGUMENT WITH REGARD TO VALIDITY OF THE RE- ASSESSMENT PROCEEDING. WE, THEREFORE, CONFIRM THE O RDER OF THE CIT(A) IN THIS RESPECT. 4. SO FAR AS GROUND NO. 3 AND 4 WHICH RELATES TO TH E ISSUE OF DISALLOWANCE OF DEDUCTION CLAIMED UNDER SECTION 80I A(4) OF THE ACT, BRIEFLY, THE FACTS RELATING TO THE ISSUE ARE THAT THE ASSESS EE IS A JOINT VENTURE FORMED BY TWO COMPANIES NAMELY NAGARJUNA CONSTRUCTION COMP ANY LIMITED, HYDERABAD AND EAST-COAST CONSTRUCTION COMPANY LIMIT ED CHENNAI. FOR THE ASSESSMENT YEAR UNDER DISPUTE, THE ASSESSEE ENTERED INTO FOLLOWING TWO CONTRACTS - 1. CONSTRUCTION OF KALINA-VAKILE FLYOVER ON THE WES TERN EXPRESS HIGHWAY, MUMBAI WITH NSLDC OF GOVERNMENT OF MAHARAS HTRA. 2. CONSTRUCTION OF APPROACHES TO ROAD-OVER BRIDGE A ND GRADE SEPARATOR CROSSING NH4 ALONG ORR NEAR BENNIGANHALLI TANK ON TURN KEY BASIS WITH BANGALORE DEVELOPMENT AUTHORITY (IN SHORT BDA). 5. IN THE COURSE OF RE-ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER ASKED THE ASSESSEE TO SHOW CAUSE AS TO WHY THE DEDU CTION CLAIMED UNDER SECTION 80IA OF THE ACT SHALL NOT BE WITHDRAWN AS T HE ASSESSEE HAS EXECUTED WORK MERELY AS A CONTRACTOR. IN RESPONSE TO THE NOT ICE ISSUED, THE ASSESSEE SUBMITTED THAT IT IS AN ENTERPRISE OWNED BY CONSORT IUM OF COMPANIES REGISTERED IN INDIA AND IS IN THE BUSINESS OF DEVEL OPING OF INFRASTRUCTURE FACILITIES. BEING A HIGHWAY PROJECT AS DEFINED IN C LAUSE (B) OF SECTION 80IA(4), IT WAS SUBMITTED THAT IT HAD DEVELOPED A BRIDGE AND APPROACH ROAD AS PER THE TERMS OF THE CONTRACT WHICH WERE NEW INFRASTRUC TURE FACILITIES. HENCE, THE PROVISIONS CONTAINED IN SUB-SECTION 4 OF SECTIO N 80IA ARE APPLICABLE TO THE ASSESSEE. THE ASSESSING OFFICER, HOWEVER, WAS O F THE VIEW THAT AS PER THE PROVISIONS OF SECTION 80IA(4A) AS IT EXISTED AT THE RELEVANT PERIOD, THE 4 ASSESSEE WOULD BE ELIGIBLE TO DEDUCTION UNDER SECTI ON 80IA ONLY IF IT HAS FULFILLED ALL THE CONDITIONS UNDER SECTION 80IA(4A) OF THE ACT. THE ASSESSING OFFICER ON INTERPRETING THE CONTRACT ENTERED WITH B DA CAME TO A CONCLUSION THAT THE ASSESSEES JOB IS RESTRICTED TO COMPLETE T HE SAID CONTRACT WITH CERTAIN CONDITIONS PRESCRIBED LIKE PERFORMANCE SECU RITY, RETENTION MONEY, COMPLETION TIME, LIQUIDATED DAMAGES FOR DEAL IN COM PLETING WORKS, DEFECTS LIABILITY PERIOD ETC., FROM THIS, THE ASSESSING OFF ICER CONCLUDED THAT THE ASSESSEE COULD NEVER BE CONSIDERED AS AN OWNER OF T HE INFRASTRUCTURE FACILITIES. BUT THE ASSESSEES JOB ENDS WITH THE CO MPLETION OF THE WORK. HE, FURTHER OBSERVED THAT ASSESSEE IS EMPLOYED BY THE B DA TO EXECUTE A SPECIFIC AND CONDITIONED CONTRACT ASSIGNED TO THE ASSESSEE I N THE REGULAR TENDER PROCESS WHERE THE WORK DONE IS NOWHERE DIFFERENT FR OM OTHER SIMILAR CONTRACTS WHEREIN THE EMPLOYER COVENANTS TO PAY THE CONTRACTOR THE CONSIDERATION FOR EXECUTION AND COMPLETION OF WORKS AS PRESCRIBED IN THE CONTRACT. HE, FURTHER OPINED THAT THE ASSESSEE CAN NEVER BE THE OWNER OF THE INFRASTRUCTURE FACILITIES AND AS SUCH, THERE IS NO CLAUSE FOR THE TRANSFER OF SUCH INFRASTRUCTURE FACILITIES TO THE CENTRAL GOVER NMENT, STATE GOVERNMENT, LOCAL AUTHORITY OR SUCH OTHER STATUTORY BODY WITHIN THE PERIOD STIPULATED IN THE AGREEMENT. THE ASSESSING OFFICER FURTHER RELYIN G UPON THE BOARDS CIRCULAR NO. 717 DATED 14.8.1995 AND CIRCULAR NO. 7 33 DATED 3.1.1996 HELD THAT THE ASSESSEE CANNOT BE HELD TO BE A DEVELOPER OF THE PROJECT. HE WAS OF THE VIEW THAT THE INTENTION OF THE LEGISLATURE AS C OULD BE EVIDENT FROM THE CIRCULAR ISSUED BY THE BOARD IS TO GRANT EXEMPTION TO INFRASTRUCTURE PROJECTS WHICH ARE CREATED ON BOT BASIS ONLY AND THE OWNERSH IP OF THE INFRASTRUCTURE FACILITIES IS A PRE-REQUISITE FOR CL AIM OF DEDUCTION UNDER SECTION 80IA OF THE ACT. THE ASSESSING OFFICER TAKI NG AID OF THE FINANCE MINISTERS SPEECH AND THE MEMORANDUM OF THE FINANCE BILL INTRODUCED BY THE FINANCE MINISTER IN THE UNION BUDGET 2001 CAME TO A CONCLUSION THAT THE AMENDMENT BY THE FINANCE ACT, 2001 ONLY SOUGHT TO ENLARGE THE CATEGORIES OF INFRASTRUCTURE PROJECTS AND THE PERIO D OF EXEMPTION. THE ASSESSING OFFICER REFERRING TO THE EXPLANATORY NOTE TO THE FINANCE ACT, 2001 AND CIRCULAR NO. 14/2001 OPINED THAT THE SAME REITE RATES THAT THE REQUIRED CONDITION FOR AVAILING BENEFIT IS THAT TRANSFER TO THE GOVERNMENT UNDER BOT 5 AND BOOT SCHEME HAS TO BE MADE TILL THE A.Y. 2001-0 2 AND FOR THE A.Y. 2002-03 ONWARDS, THE COMPULSORY REQUIREMENT OF TRAN SFER HAS BEEN REMOVED. HE, THEREFORE, CAME TO A CONCLUSION THAT T HE DEVELOPER HAS TO BE THE OWNER OF THE INFRASTRUCTURE FACILITIES AND A ME RE CONTRACTOR WHO EXECUTES THE WORK ON CONTRACT BASIS ON BEHALF OF THE OWNER C ANNOT BE ELIGIBLE FOR DEDUCTION UNDER SECTION 80IA OF THE ACT. HE, FURTHE R HELD THAT THE STATUTORY PROVISION AND THE EXPLANATORY MEMORANDUM SHOWS THAT THE DEDUCTION UNDER SECTION 80IA IS AVAILABLE TO THE PERSON WHO I NVESTS CAPITAL IN THE CAPACITY OF A OWNER AND NOT THE ONE WHO IS DEPENDIN G ON THE PRINCIPAL FOR INFUSION OF FUNDS FOR CREATING THE INFRASTRUCTURE F ACILITIES. THE ASSESSING OFFICER FURTHER HELD THAT THOUGH THE ASSESSEE HAD U NDERTAKEN THE WORK OF CONSTRUCTION OF APPROACHES TO ROAD BY THE BDA IN TE RMS OF CLAUSE (B) OF SUB- SECTION 4 OF SECTION 80IA IT WAS NOT DEVELOPING A N EW INFRASTRUCTURE FACILITIES BUT WAS ENGAGED ONLY IN CONSTRUCTION OF ROAD OVER B RIDGE AND GRADE SEPARATOR CROSSING. THE ASSESSING OFFICER FURTHER N OTED THAT THE INITIAL ASSESSMENT YEAR FROM WHICH THE DEDUCTION IS TO BE A LLOWED HAS BEEN DEFINED IN OLD SECTION 80IA(12) (C) (2) WHICH MEANS THE ASS ESSMENT YEAR SPECIFIED BY THE ASSESSEE, NOT FALLING BEYOND THE 12 TH ASSESSMENT YEAR STARTING FROM THE PREVIOUS YEAR IN WHICH THE ENTERPRISE BEGINS OPERAT ING AND MAINTAINING INFRASTRUCTURE FACILITIES. HE, THEREFORE, CAME TO A CONCLUSION THAT UNLESS THE ENTERPRISE BEGINS TO OPERATE AND MAINTAIN INFRASTRU CTURE FACILITIES, IT CANNOT BE CONSIDERED TO BE ELIGIBLE FOR DEDUCTION UNDER SE CTION 80IA OF THE ACT. ON THE AFORESAID ANALYSIS, THE ASSESSING OFFICER DISAL LOWED THE CLAIM OF DEDUCTION UNDER SECTION 80IA(4) AND TREATED THE AMO UNT OF RS.55,17,349/- AS INCOME OF THE ASSESSEE. 6. THE ASSESSEE BEING AGGRIEVED OF THE ASSESSMENT O RDER, PREFERRED AN APPEAL BEFORE THE CIT(A). THE CIT(A) RELYING UPON T HE BOARD CIRCULAR NO. 717 DATED 14.8.1995 AND ON INTERPRETING THE PROVISIONS CONTAINED UNDER SECTION 80IA OF THE ACT WITH ITS VARIOUS AMENDMENTS, ALSO C ONFIRMED THE VIEW OF THE ASSESSING OFFICER THAT THE ASSESSEE IS NOT ENTITLED FOR DEDUCTION UNDER SECTION 80IA OF THE ACT. THE RELEVANT OBSERVATIONS OF CIT(A)-IV, HYDERABAD HELD IN PARAS 9 AND 10 ARE AS FOLLOWS : 6 9 IN THE CASE OF THE APPELLANT HOWEVER, IT IS SEEN TH AT THE APPELLANT HAS CLAIMED DEDUCTION OF RS.55,17,349/- U /S. 80IA IN RESPECT OF THE PROFITS FROM PROJECTS WHEREI N IT WAS ONLY A CONTRACTOR AND HAD ACTED IN THAT CAPACITY FO R ITS EMPLOYER, M/S BANGALORE DEVELOPMENT AUTHORITY. IT N EVER FUNDED ANY OF THE PROJECTS SO BEING DEVELOPED BY OT HERS BUT WAS GETTING ONLY PAYMENTS FROM GOVERNMENT/ STATUTORY BODIES/COMPANIES FOR UNDERTAKING THE CONT RACT WORK. THE APPELLANT IS THEREFORE, SIMPLY CARRYING O N THE BUSINESS OF BUILDING THE INFRASTRUCTURE AS A CONTRA CTOR AND NOT THAT OF DEVELOPING ANY INFRASTRUCTURE FACIL ITY. IT IS ALSO CLEAR THAT NONE OF THE CONTRACTS OR SUB CONTRA CTS TAKEN BY THE APPELLANT WERE OF THE BOT/BOOT MODEL. NONE OF THESE WERE CONCEIVED, DESIGNED AND PLANNED BY THE APPELLANT FURTHER IN NONE OF THE PROJECTS THE A PPELLANT UNDERTOOK THE OPERATION AND MAINTENANCE OF THE FACI LITY BUILT BY IT PARTLY. THE APPELLANT DID NOT EVEN BUIL D THE ENTIRE FACILITY RATHER IT CONSTRUCTED ONLY THE APPR OACH ROAD AND GRADE SEPARATOR, WHICH CANNOT BE CONSIDERED 'NE W INFRASTRUCTURE FACILITY' ON THEIR OWN. OBVIOUSLY, T HE ENTIRE CAPITAL INVESTMENT WAS THAT OF THE GOVERNMENT/LOCAL AUTHORITY/STATUTORY BODY AND NO FUND CAME FROM THE APPELLANT TOWARDS IT. THEREFORE, IT CANNOT BE SAID THAT THE APPELLANT HAD ENTERED INTO THESE CONTRACTS FOR DEVE LOPING AND INFRASTRUCTURE FACILITY, WHICH ENVISAGES CONCEIVING , DESIGNING, PLANNING, FINANCING, BUILDING AND OPERAT ING THE FACILITY. IN FACT, THE APPELLANT WAS NEVER SUPPOSED TO OPERATE THE FACILITY TO RECOVER ITS INVESTMENTS AND GET RETURNS THEREFROM. OBVIOUSLY, IT WAS PAID ON RUNNIN G BILL BASIS FOR ITS ACTIVITIES. THERE WAS NO STIPULATION IN ANY OF SUCH CONTRACTS THAT THE FACILITY SO BUILT WAS TO BE TRANSFERRED OR HANDED OVER BACK TO THE OWNER OR TO THE EMPLOYER. THEREFORE, I HAVE NO HESITATION IN CONCLUDING THAT SUCH CONTRACTS ARE NOT ENVISAGED BY THE LEGISLATURE FOR ALLOWING THE BENEFIT OF SEC.80IA OF THE ACT. 7 10. IN VIEW OF THE ABOVE AFORESAID DISCUSSION, I C ONCLUDE THAT THE APPELLANT HAS NOT FULFILLED .ALL THE CONDITIONS AND REQUIREMENTS STIPULATED U/S.80IA AS IT ACTED ONLY A S A 'CONTRACTOR' AND NOT A 'DEVELOPER' IN RESPECT OF TH E SAID PROJECTS, WHICH WERE NEVER OWNED BY IT AND FURTHER NEVER OPERATED AND MAINTAINED BY IT. THE CLAIM OF DEDUCTION OF RS. 55,17,349/- UNDER THE SAID SECTION THEREFORE , IS DISALLOWED. THE GROUND IS THEREFORE, DECIDED AGAINST THE APPELLANT. 7. BEING AGGRIEVED OF THE AFORESAID ORDER OF THE CI T(A), THE ASSESSEE IS IN APPEAL BEFORE US. THE LEARNED A.R. SUBMITTED BEFORE US THAT THE ASSESSEE HAS ACTED AS A DEVELOPER AND THEREFORE, IS ENTITLED TO DEDUCTION UNDER SECTION 80IA OF THE ACT. HE FURTHER SUBMITTED THAT THE AMENDMENT MADE TO SECTION 80IA(4) OF THE ACT BY THE FINANCE ACT, 1999 AND FINANCE ACT, 2001 MAKES IT CLEAR THAT ALL THE ACTIVITIES MENTIONED UN DER SECTION 80IA (4) NEED NOT BE UNDERTAKEN CUMULATIVELY FOR CLAIMING DEDUCTI ON UNDER SECTION 80IA(4) OF THE ACT. EVEN IF THE ASSESSEE UNDERTAKES ANY ONE OF THE ACTIVITY OF DEVELOPING, MAINTAINING OR OPERATING THE INFRASTRUC TURE FACILITIES, IT WILL BE ENTITLED FOR DEDUCTION UNDER SECTION 80IA OF THE AC T. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE ALSO NEED NOT BE THE OW NER OF THE INFRASTRUCTURE FACILITIES FOR CLAIMING DEDUCTION UNDER SECTION 80I A. HE SUBMITTED THAT THE ONLY REQUIREMENT BEING THE ENTERPRISE, MUST BE OWNE D BY A COMPANY. IN THIS CONTEXT, THE LEARNED A.R. SUBMITTED THAT THE ASSESS EE IS A JOINT VENTURE OWNED BY TWO COMPANIES. THE LEARNED A.R. SUBMITTED THAT NEITHER THE ASSESSING OFFICER NOR THE CIT(A) HAD PROPERLY GONE INTO THE NATURE AND SCOPE OF WORK AS PER THE TERMS OF THE CONTRACT BY PROPERL Y EXAMINING IT. IT WAS SUBMITTED THAT THE ASSESSEE HAS NOT EXECUTED THE WO RK MERELY AS A CONTRACTOR BUT HAS EXECUTED IT ON A TURN KEY BASIS WHICH WOULD BE VERY MUCH EVIDENT FROM THE WORK AWARDED TO THE ASSESSEE. IN THIS CONTEXT, LEARNED A.R. REFERRED TO PAGE 2 OF THE PAPER BOOK W HICH CONTAINED THE CONTRACT WITH BANGALORE DEVELOPMENT AUTHORITY. LEAR NED A.R. DRAWING OUR ATTENTION TO THE SCOPE OF WORK AS ENUMERATED IN THE CLAUSE 2 OF THE AGREEMENT SUBMITTED THAT THE SCOPE OF WORK ITSELF R EVEALS THAT THE ASSESSEE 8 IS ENTRUSTED WITH THE WORK OF DESIGNING AND ALL OTH ER ANCILLARY AND INCIDENTAL WORK WHICH INCLUDED COST OF MATERIAL, TOOLS, PLANTS AND MACHINERY. THE LEARNED A.R. REFERRING TO SUB-CLAUSE (C) OF CLAUSE 2.03 OF THE AGREEMENT SUBMITTED THAT AS PER THE SAID CLAUSE THE ASSESSEE IS RESPONSIBLE FOR DESIGNING THE BRIDGE/FLYOVER. IT WAS SUBMITTED THAT AS PER CLAUSE 4.058 AND 4.059 THE ASSESSEE SHALL REMAIN FULLY RESPONSIBLE F OR THE CARE OF THE WORK AND MATERIALS AND PLANT FOR INCORPORATION THEREIN F ROM THE COMMENCEMENT DATE UNTIL THE EXPIRY OF DEFECT LIABILITY PERIOD AN D THE ASSESSEE WOULD REMAIN RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT MAY HAPPEN TO THE WORK OR ANY PART THEREOF OR MATERIALS OR PLANT FOR INCORPORATION THE REIN DURING THE PERIOD FOR WHICH THE CONTRACTOR IS RESPONSIBLE FOR THE CARE TH EREON. REFERRING TO CLAUSE 4.100 OF THE AGREEMENT, THE LEARNED A.R. SUBMITTED THAT THE ASSESSEE WOULD REMAIN RESPONSIBLE FOR RECTIFYING ANY DEFECT WHICH MAY HAPPEN DURING THE DEFECTS LIABILITY PERIOD. HE FURTHER SUBMITTED THAT CLAUSES 5 AND 5.2 CLEARLY SPECIFY THE DETAILS OF DESIGNS OF DRAWINGS PROVIDED BY THE ASSESSEE FOR THE INFRASTRUCTURE PROJECT. THE LEARNED A.R. SUBMITTED THAT CONSIDERING THE CONTRACT DOCUMENT AS A WHOLE AND KEEPING IN VIEW TH E NATURE AND SCOPE OF THE WORK, IT CANNOT BE SAID THAT THE ASSESSEE IS NO T A DEVELOPER AND HAS EXECUTED THE WORK MERELY AS A CONTRACTOR. IT WAS SU BMITTED THAT THE ASSESSEE HAS NOT ONLY EMPLOYED TECHNICAL PERSONNEL FOR EXECUTING THE WORK BUT HAS ALSO INVESTED HIS OWN FUNDS IN PURCHASE OF MATERIALS, PLANT AND MACHINERY. THE LEARNED A.R. SUBMITTED THAT THE NATU RE AND SCOPE OF WORK WOULD CLEARLY REVEAL THE FACT THAT ASSESSEE HAS UND ERTAKEN THE WORK OF DEVELOPING THE INFRASTRUCTURE FACILITIES. THE LEARN ED A.R. RELYING UPON THE DECISION OF THE COORDINATE BENCH IN THE CASE OF M/S . KMC CONSTRUCTION LTD. VS. ACIT, CIRCLE 2 (2), HYDERABAD IN ITA.NO.96/HYD/ 2003 DATED 16.3.2012 A COPY OF WHICH IS AT PAGE 42 OF THE COMPILATION OF C ASE LAWS, SUBMITTED THAT THE ITAT, HYDERABAD BENCH CONSIDERING IDENTICAL NAT URE OF CONTRACT IN THE CASE OF KMC CONSTRUCTIONS HAS HELD THAT THE ASSESSE E IS ENTITLED FOR DEDUCTION UNDER SECTION 80IA(4) OF THE ACT. THE LEA RNED A.R. RELYING UPON THE DECISION OF THE I.T.A.T. PUNE BENCH IN ITA.NO.1 408 AND 1409/PN/2003 IN THE CASE OF B.T.PATIL AND SONS, BELGAUM CONSTRUC TION PVT. LTD. VS. ACIT, SUBMITTED THAT THE ASSESSEE NEITHER BE A OWNER OF T HE INFRASTRUCTURE 9 FACILITIES NOR IS REQUIRED TO UNDERTAKE ALL THE ACT IVITIES UNDER SECTION 80IA(4) CUMULATIVELY FOR CLAIMING DEDUCTION UNDER SECTION 8 0IA OF THE ACT. THE LEARNED A.R. ALSO RELIED UPON THE FOLLOWING DECISIO NS : 1. M/S. SUSHEE HITECH CONSTRUCTIONS PVT. LTD. VS. D CIT, CIRCLE 3(2), HYDERABAD ITA.NO.269 & 1165/HYD/2009 & ITA.1171/HYD/2010 DATED 16.03.2012. 2. CIT VS. ABG HEAVY INDUSTRIES LTD. (2010) 231 CTR (BOM.) 127. 3. LAKSHMI CIVIL ENGINEERING P. LTD. VS. ADDL.CIT, RANGE-2, KOLHAPUR ITA.NO.766/PN/09 ETC., DATED 8.6.2011 4. ACIT VS. BHARAT UDYOG LTD. (2009) 118 ITD 336 8. THE LEARNED D.R. ON THE OTHER HAND, STRONGLY REF UTING THE CONTENTIONS OF THE ASSESSEE SUBMITTED THAT THE WORK EXECUTED BY THE ASSESSEE ARE IN THE NATURE OF EXECUTION OF WORKS CONTRACT WHICH CANNOT BE TREATED AS ELIGIBLE BUSINESS FOR CLAIMING DEDUCTION UNDER SECTION 80IA OF THE ACT. IT WAS SUBMITTED THAT NOT ONLY THE AGREEMENTS ENTERED INTO BY THE ASSESSEE INDICATE THAT THEY ARE IN THE NATURE OF WORKS CONTR ACT BUT THE ASSESSEE ITSELF SHOWS THE RECEIPTS AS WORK CONTRACT RECEIPTS IN THE P & L ACCOUNT. IT WAS FURTHER SUBMITTED THAT NO FINANCIAL RISK IS TAKEN B Y THE ASSESSEE OR INVESTMENT IS MADE EXCEPT FOR THE MINOR RISK OF BIL LS PENDING WITH THE EMPLOYER FOR CLEARANCE. IT WAS SUBMITTED THAT THE L EGISLATIVE INTENT EVOLVING FROM THE MEMORANDUM OF EXPLANATION, FINANCE BILL 20 01 MAKES IT CLEAR THAT ASSESSEE WOULD BE ELIGIBLE FOR DEDUCTION UNDER SECT ION 80IA IF IT INVESTS OWN FUNDS IN DEVELOPMENT OF A PROJECT AND THEN EXPLOIT THE ASSET AND THEREAFTER CLAIM DEDUCTION UNDER SECTION 80IA ON THE INCOME DE RIVED FROM SUCH EXPLOITATION. THE DEDUCTION IS PROVIDED WITH A VIEW TO ENCOURAGE PRIVATE INVESTMENT IN INFRASTRUCTURE WHEREAS IN THE CASE OF THE ASSESSEE THE ASSESSEE DOES NOT INVEST OWN FUNDS IN ASSET BUILDIN G, NEITHER DOES HE DERIVE ANY INCOME FROM EXPLOITATION OF THE DEVELOPED ASSET . THE ENTIRE PROJECT IS OWNED BY THE EMPLOYER FROM DAY ONE AND THE ASSESSEE ONLY EXECUTES THE PROJECT UNDER THE CONSTANT SUPERVISION OF THE EMPLO YER WITH THE FUNDS PROVIDED BY THE EMPLOYER. IN SUPPORT OF SUCH CONTEN TION, THE LEARNED D.R. 10 RELIED UPON THE DECISION OF I.T.A.T. MUMBAI BENCH I N ITA.5172/MUM/2008 DATED 29.7.2011 IN THE CASE OF INDIA HUMEPYPE CO. L TD. VS. DCIT. 9. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE ALSO CAREFULLY APPLIED OUR MIND TO THE DECISIONS CITED BEFORE US. BEFORE WE DELVE INTO THE ISSUE IN DISPU TE IT WOULD BE APPROPRIATE TO LOOK INTO THE RELEVANT PROVISIONS AT THIS STAGE. DEDUCTION FOR DEVELOPMENT OF INFRASTRUCTURE FACILITY AS PER OLD SECTION 80IA WAS CONTAINED IN SUB- SECTION (4A) WHICH READ AS UNDER : (4A) THIS SECTION APPLIES TO ANY ENTERPRISE CARRYIN G ON THE BUSINESS OF DEVELOPING, MAINTAINING AND OPERATING ANY INFRASTRU CTURE FACILITY WHICH FULFILS ALL THE FOLLOWING CONDITIONS , NAMELY :- (I) THE ENTERPRISE IS OWNED BY A COMPANY REGISTERE D IN INDIA OR BY A CONSORTIUM OF SUCH COMPANIES. (II) THE ENTERPRISE HAS ENTERED INTO AN AGREEMENT W ITH THE CENTRAL GOVERNMENT OR A STATE GOVERNMENT OR A LOCAL AUTHORI TY OR ANY OTHER STATUTORY BODY FOR DEVELOPING, MAINTAINING AN D OPERATING A NEW INFRASTRUCTURE FACILITY SUBJECT TO THE CONDIT ION THAT SUCH INFRASTRUCTURE FACILITY SHALL BE TRANSFERRED TO THE CENTRAL GOVERNMENT, STATE GOVERNMENT, LOCAL AUTHORITY OR SU CH OTHER STATUTORY BODY, AS THE CASE MAY BE, WITHIN THE PERI OD STIPULATED IN THE AGREEMENT. (III) THE ENTERPRISE STARTS OPERATING AND MAINTAINI NG THE INFRASTRUCTURE FACILITY ON OR AFTER THE 1 ST DAY OF APRIL, 1995. 10. THE AFORESAID PROVISION WAS AMENDED BY FINANCE ACT, 1999 W.E.F. 1.4.2000. AFTER THE AMENDMENT THE OLD PROVISION WER E DELETED FROM THE ACT AND DEDUCTION AVAILABLE TO ANY ENTERPRISE FOR DEVEL OPING INFRASTRUCTURE FACILITY UNDER SECTION 80IA(4A) ARE ALSO MADE AVAIL ABLE UNDER SECTION 80IA(4). THE NEW PROVISION UNDER SECTION 80IA(4) RE ADS AS UNDER : 11 (4) THIS SECTION APPLIES TO (I) ANY ENTERPRISE CARRYING ON THE BUSINESS [ (I) D EVELOPING, (II) MAINTAINING AND OPERATING OR (III) DEVELOPING, MAINTAINING AND OPERATING ] ANY INFRASTRUCTURE FACILITY WHICH FULFILS ALL THE FOLLO WING CONDITIONS, NAMELY : (A) IT IS OWNED BY A COMPANY REGISTERED IN INDIA O R BY A CONSORTIUM OF SUCH COMPANIES. (B) IT HAS ENTERED INTO AN AGREEMENT WITH THE CEN TRAL GOVERNMENT OR A STATE GOVERNMENT OR A LOCAL AUTHORITY OR ANY OTHER STATUTORY BODY FOR (I) DEVELOPING (II) MAINTAINING AND OPERATING O R (III) DEVELOPING, MAINTAINING AND OPERATING A NEW INFRASTRUCTURE FACI LITY SUBJECT TO THE CONDITION THAT SUCH INFRASTRUCTURE FACILITY SHA LL BE TRANSFERRED TO THE CENTRAL GOVERNMENT, STATE GOVERNMENT, LOCAL AUT HORITY OR SUCH OTHER STATUTORY BODY, AS THE CASE MAY BE, WITHIN TH E PERIOD STIPULATED IN THE AGREEMENT. (C) IT HAS STARTED OR STARTS OPERATING AND MAINTAIN ING THE INFRASTRUCTURE FACILITY ON OR AFTER THE 1ST DAY OF APRIL, 1995: 11. AGAIN AN AMENDMENT WAS MADE TO SUB-SECTION 4 BY FINANCE ACT, 2001 W.E.F. 1.4.2002 BY SUBSTITUTING THE WORDS (I) DEVELOPING, (II) MAINTAINING AND OPERATING OR (III) DEVELOPING, MAINTAINING AND OPER ATING WITH THE WORDS (I) DEVELOPING OR (II) OPERATING AND MAINTAINING OR (II I) DEVELOPING, OPERATING AND MAINTAINING ] - - 12. THEREFORE, THE INTENTION OF THE LEGISLATURE FRO M THE ABOVE SAID AMENDMENT WOULD MAKE IT CLEAR THAT ANY ENTERPRISE W HICH CARRIED ON ANY ONE OF THESE THREE ACTIVITIES WOULD BECOME ELIGIBLE FOR DEDUCTION. IT WOULD BE EVIDENT FROM THE ORDERS PASSED BY THE ASSESSING OFF ICER AS WELL AS CIT(A), CLAIM OF DEDUCTION UNDER SECTION 80IA WAS DISALLOWE D FIRSTLY ON THE GROUND THAT ASSESSEE IS NOT THE OWNER OF THE INFRASTRUCTUR E FACILITIES, SECONDLY IT HAS NOT UNDERTAKEN ALL THE THREE ACTIVITIES AND THIRDLY IT HAS EXECUTED THE WORK MERELY AS CONTRACTOR. IN CASE OF CIT VS. ABG HEAVY INDUSTRIES LTD. 322 ITR 323 THE HONBLE BOMBAY HIGH COURT HELD THAT AMENDME NT EFFECTED TO SEC. 80IA(4) BY FINANCE ACT, 2001 BEING CLARIFICATORY IN NATURE WILL BE APPLICABLE RETROSPECTIVELY FROM A.Y. 2000-2001. IN THE CASE OF KMC CONSTRUCTIONS LTD. (SUPRA), THE COORDINATE BENCH OF THIS TRIBUNAL IN C LEAR TERMS HELD THAT THE AMENDED PROVISIONS OF SECTION 80IA(4) WOULD APPLY F ROM A.Y. 2000-01. THE 12 TRIBUNAL FURTHER HELD THAT WHERE AN ASSESSEE INCURS EXPENDITURE ON ITS OWN FOR PURCHASE OF MATERIALS AND TOWARDS LABOUR CHARGE S AND ITSELF EXECUTES THE DEVELOPMENT WORK, IT WILL BE ELIGIBLE FOR DEDUCTION UNDER SECTION 80IA OF THE ACT. IT WAS FURTHER HELD THAT THE WORD OWNED IN S UB-CLAUSE (A) ON CLAUSE (1) OF SUB-SECTION (4) OF SECTION 80IA OF THE ACT REFER RED TO THE ENTERPRISE. IN OTHERWORDS, THE ENTERPRISE CARRYING ON DEVELOPMENT OF THE INFRASTRUCTURE FACILITIES SHOULD BE OWNED BY A COMPANY OR CONSORTI UM OF COMPANIES. THE INFRASTRUCTURE FACILITIES NEED NOT BE OWNED BY A CO MPANY. IT WAS HELD THAT THE WORD OWNERSHIP IS ATTRIBUTABLE ONLY TO THE EN TERPRISE CARRYING ON THE BUSINESS WHICH WOULD MEAN THAT ONLY COMPANIES ARE E LIGIBLE FOR DEDUCTION UNDER SECTION 80IA(4) AND NOT ANY OTHER PERSON LIKE NEW HUF FIRM ETC., THE COORDINATE BENCH FURTHER HELD THAT FOR ARRIVING AT A CONCLUSION AS TO WHETHER THE WORK DONE IS TO DEVELOP THE INFRASTRUCT URE OR IT INVOLVES CONSTRUCTION OF A PARTICULAR ITEM. THE AGREEMENT IS TO BE READ AS A WHOLE. IF THE ASSESSEE UTILISED ITS FUNDS, ITS EXPERTISE, ITS EMPLOYEES AND TAKES THE RESPONSIBILITY OF DEVELOPING THE INFRASTRUCTURE FAC ILITIES, IT CANNOT BE CONSIDERED AS A MERE WORKS CONTRACT BUT HAS TO BE C ONSIDERED AS A DEVELOPMENT OF INFRASTRUCTURE FACILITIES. THE COORD INATE BENCH FURTHER INTERPRETING THE WORD CONTRACTOR HELD THAT EVERY AGREEMENT ENTERED INTO BETWEEN THE PARTIES IS A CONTRACT AND FOR THE PURPO SE OF THE AGREEMENT A PERSON MAY BE CALLED AS A CONTRACTOR AS HE ENTERS I NTO A CONTRACT. BUT THE WORD CONTRACTOR IS USED ONLY TO DENOTE A PERSON E NTERING INTO AN AGREEMENT OR CONTRACT. A PERSON UNDERTAKING THE DEV ELOPMENT OF INFRASTRUCTURE FACILITIES UNDER A CONTRACT IS ALSO A CONTRACTOR. THEREFORE, THE CONTRACTOR AND THE DEVELOPER CANNOT BE VIEWED DIFFE RENTLY. EVERY CONTRACTOR MAY NOT BE A DEVELOPER, BUT EVERY DEVELOPER DEVELOP ING INFRASTRUCTURE FACILITIES ON BEHALF OF THE GOVERNMENT IS A CONTRAC TOR. THE SAME VIEW HAS ALSO BEEN EXPRESSED BY THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF M/S. SUSHEE HIGHTECH CONSTRUCTION PVT. LTD. VS. DCI T. AS CAN BE SEEN FROM THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAS NOT AT ALL EXAMINED THE AGREEMENT ENTERED INTO BETWEEN THE PARTIES AS A WHO LE AND BY MERELY REFERRING TO A FEW TERMS IN THE CONTRACT, HAS COME TO A CONCLUSION THAT THE ASSESSEE HAS EXECUTED THE WORK AS A CONTRACTOR BY R ELYING UPON THE 13 PROVISION CONTAINED UNDER SECTION 80IA(13). IT IS T HE CONTENTION OF THE ASSESSEE BEFORE US, THAT THE ASSESSEE HAS NOT ACTED MERELY AS A CONTRACTOR BUT WAS INVOLVED IN PLANNING, DESIGNING, FINANCING AND COORDINATING AND ALL OTHER ANCILLARY AND INCIDENTAL ACTIVITIES OF DEVELO PING THE INFRASTRUCTURE FACILITIES AS PER THE CONTRACT. IN THE CASE OF M/S. SUSHEE HITECH CONSTRUCTION PVT. LTD. (SUPRA), THE COORDINATE BENCH OF THIS TRI BUNAL AFTER CONSIDERING SEVERAL OTHER DECISIONS OF VARIOUS BENCHES OF THE T RIBUNAL HELD AS UNDER : THEREFORE, IN OUR CONSIDERED VIEW, THE ASSESSEE SH OULD NOT BE DENIED THE DEDUCTION UNDER SECTION 80IA OF THE ACT AS THE CONTRACTS INVOLVES DEVELOPMENT, OPERATING, MAINTENANCE, FINAN CIAL INVOLVEMENT AND DEFECT CORRECTION AND LIABILITY PERIOD, THEN SU CH CONTRACTS CANNOT BE CALLED AS SIMPLE WORKS CONTRACT. IN OUR OPINION THE CONTRACTS WHICH CONTAIN ABOVE FEATURES TO BE SEGREGATED AND ON THIS DEDUCTION U/S. 80-IA HAS TO BE GRANTED AND THE OTHER AGREEMENTS WH ICH ARE PURE WORKS CONTRACTS HIT BY THE EXPLANATION SECTION 80IA (13), THOSE WORK ARE NOT ENTITLE FOR DEDUCTION U/S. 80IA OF THE ACT. THE PROFIT FROM SUCH CONTRACTS WHICH INVOLVES DEVELOPMENT, OPERATING, MA INTENANCE, FINANCIAL INVOLVEMENT AND DEFECT CORRECTION AND LIA BILITY PERIOD IS TO BE COMPUTED BY ASSESSING OFFICER ON PRO-RATA BASIS OF TURNOVER. THE ASSESSING OFFICER IS DIRECTED TO EXAMINE AND GRANT DEDUCTION ON ELIGIBLE TURNOVER AS DIRECTED ABOVE. 12. IN THE CASE OF M/S. KMC CONSTRUCTION LTD. ALSO THE COORDINATE BENCH OF THIS TRIBUNAL ALLOWED THE CLAIM OF DEDUCTION UND ER SECTION 80IA OF THE ACT AS THE ASSESSEE HAD CLEARLY DEMONSTRATED THAT IT HA D UNDERTAKEN HUGE RISK IN TERMS OF DEVELOPMENT OF TECHNICAL PERSONNEL, PLA NT AND MACHINERY, TECHNICAL KNOWHOW EXPERTISE AND FINANCIAL RESOURCES . THUS, THE PRINCIPLE THAT WOULD EMERGE FROM THE ABOVE SAID DECISIONS OF THE COORDINATE BENCH IS THAT ASSESSEE WOULD BE ENTITLED FOR DEDUCTION UNDER SECTION 80IA(4) OF THE ACT, IF HE DEVELOPS THE INFRASTRUCTURE FACILITIES. HOWEVER, THE ASSESSEE HAS TO DEMONSTRATE THAT IT HAS ACTUALLY CARRIED ON DEVELOP MENT OF INFRASTRUCTURE FACILITIES CUMULATIVELY UNDERTAKING WITH ALL THE AC TIVITIES OF DESIGN, DEVELOPMENT, ENGINEERING, CONSTRUCTION, MAINTENANCE , FINANCIAL INVOLVEMENT, DEFECT CORRECTION AND SUCH OTHER ANCIL LARY AND INCIDENTAL WORK 14 CONNECTED WITH THE DEVELOPMENT OF THE PROJECT. THE ASSESSEE HAS TO ESTABLISH THIS FACT BY PRODUCING CLINCHING EVIDENCE THAT IT H AS IN FACT, DEVELOPED THE PROJECT AND HAS NOT EXECUTED THE WORK MERELY AS A C ONTRACTOR. THE REVENUE AUTHORITIES HAVE NEITHER EXAMINED THE CONTRACTS IN ITS ENTIRETY NOR LOOKED INTO ALL THESE ASPECTS. ONLY BY REFERRING TO SOME O F THE CLAUSES OF THE CONTRACT AN INFERENCE HAS BEEN DRAWN THAT THE ASSES SEE HAS EXECUTED THE WORK AS A CONTRACTOR. AT THE SAME TIME, APART FROM THE CONTRACT, THE ASSESSEE HAS ALSO NOT SUBMITTED BEFORE US ANY OTHER DOCUMENTARY EVIDENCE WHICH COULD CONCLUSIVELY DEMONSTRATE THAT THE ASSES SEE IN FACT, HAS UNDERTAKEN CUMULATIVELY THE ACTIVITIES OF DEVELOPIN G THE INFRASTRUCTURE FACILITY SUCH AS DESIGN, DEVELOPMENT, ENGINEERING, CONSTRUCTION, MAINTENANCE ETC., SO AS TO MAKE IT ELIGIBLE FOR DED UCTION UNDER SECTION 80IA(4) OF THE ACT. IN THE AFORESAID VIEW OF THE MA TTER, WE ARE INCLINED TO REMIT THE MATER BACK TO THE FILE OF ASSESSING OFFIC ER WHO SHALL EXAMINE THE ISSUE AFRESH AFTER CONSIDERING THE CONTRACT DOCUMEN T AS A WHOLE AND ALL OTHER EVIDENCE THAT MAY BE SUBMITTED BY THE ASSESSE E TO DEMONSTRATE THE FACT THAT THE ASSESSEE HAS ACTUALLY DEVELOPED THE I NFRASTRUCTURE FACILITIES BY UNDERTAKING THE ACTIVITIES OF DESIGN, DEVELOPMENT, ENGINEERING, CONSTRUCTION, MAINTENANCE, FINANCIAL INVOLVEMENT, DEFECT CORRECTI ON OF THE CONTRACT DURING THE WARRANTY PERIOD. IF THE ASSESSEE WILL BE ABLE T O ESTABLISH SUCH FACTS BY SUPPORTING EVIDENCE, THEN, THE ASSESSEE WOULD BE EN TITLED TO THE DEDUCTION UNDER SECTION 80IA(4) OF THE ACT. WITH THE AFORESAI D OBSERVATIONS, WE SET ASIDE THE ORDER OF THE CIT(A) AND DIRECT THE ASSESS ING OFFICER TO DECIDE THE ISSUE AFRESH BY KEEPING IN VIEW OF OUR OBSERVATIONS MADE HEREINABOVE. NEEDLESS TO MENTION THAT THE ASSESSING OFFICER SHAL L AFFORD A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDI NGLY, GROUND NO. 3 IS ALLOWED FOR STATISTICAL PURPOSES. 13. IN GROUND NO.4 THE ASSESSEE HAS CHALLENGED THE ADDITION OF RS.4,23,918/-. BEFORE THE CIT(A), THE ASSESSEE RAIS ED A GROUND STATING THEREIN THAT THE ASSESSING OFFICER HAD MISTAKENLY I NCLUDED AN AMOUNT OF RS.4,23,918/- IN THE GROSS TOTAL INCOME. THE CIT(A) , HOWEVER, SUSTAINED THE 15 SAID ADDITION IN THE ABSENCE OF PROPER EXPLANATION TO SUBSTANTIATE THIS GROUND. 14. IN THE COURSE OF HEARING BEFORE US ALSO, THE AS SESSEE HAS NOT AT ALL ADVANCED ANY ARGUMENT IN SUPPORT OF THE AFORESAID G ROUND. HENCE, WE DO NOT FIND ANY VALID REASON TO INTERFERE WITH THE ORD ER OF THE CIT(A) AND ACCORDINGLY WE CONFIRM THE SAME. 15. ITA.NO. 125/HYD/2009 A.Y. 2001-02 : GROUNDS RAISED IN THIS APPEAL ARE IDENTICAL TO THE GROUNDS RAISED IN ITA.N O.124/HYD/2009 FOR A.Y. 2000-01. THE FACTS ARE IDENTICAL FOR BOTH THE ASSES SMENT YEARS. IN VIEW OF OUR DECISION IN ITA.NO.124/HYD/2009 FOR A.Y. 2000-2 001 THE GROUNDS RAISED BY THE ASSESSEE IN THIS APPEAL ARE ALSO PART LY ALLOWED FOR STATISTICAL PURPOSES. 16. IN THE RESULT, ITA.NO. 124 AND 125/HYD/2009 OF THE ASSESSEE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH JUNE, 2013. SD/- SD/- (CHANDRA POOJARI) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATE 17 TH JUNE, 2013. VBP/- COPY TO 1. NCC - ECCI (JV), 41, NAGARJUNA HILLS, PUNJAGUTTA, HYDERAB AD PAN AACFN6059J & C/O. SAMUEL NAGADESI, CHARTERED ACCOUNTANT, 408, SRI RAMAKRISHNA TOWERS, BESIDES IM AGE HOSPITALS, AMEERPET, HYDERABAD 500 073. 2. ITO, WARD 6 ( 3 ), 6 TH FLOOR, I.T.TOWERS, MASAB TANK, HYDERABAD 500 028. 3. CIT(A) - I V , HYDERABAD. 4. CIT - I II , HYDERABAD 5. DR B BENCH, ITAT, HYDERABAD