ITO,Ward-11(1), Kolkata, Kolkata V. M/s. Nap Construction(P)Ltd, Kolkata

ITA 1380/KOL/2012

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9192 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-03-2017
• Appeal Filed By: Department
• Bench Allotted: A
• Next Hearing Date: 09-03-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 27-09-2012
• Court: TRIBUNAL
• Section: 80IB

Judgement Text

1 ITA NOS.1380-1382/K/12 M/S. NAP CONSTRUCTION P.LTD. IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A B ENCH, KOLKATA BEFORE SHRI M.BALAGANESH, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 1380/KOL/2012 A.Y 2005-06 I.T.A. NO. 1381/KOL/2012 A.Y 2006-07 I.T.A. NO. 1382/KOL/2012 A.Y 2007-08 INCOME TAX OFFICER ................................. .. APPE LLANT WARD 11(1), KOLKATA AAYAKARBHAWAN, 6 TH FLOOR P-7, CHOWRINGHEE SQUARE KOLKATA-700 069. -VS- M/S. NAP CONSTRUCTION PVT. LTD ........................................ RESPONDE NT PAN: AABCN5454B 31, KAYASTHA PARA MAIN ROAD KOLKATA-700 078. APPEARANCES BY: NONE APPEARED ON BEHALF OF REVENUE SHRI P.K GHOSH, ADVOCATE, LD.AR FOR THE ASSESSEE DATE OF HEARING: 09-03-2017 DATE OF PRONOUNCEMENT: 24-03-2017 SHRI S.S. VISWANETHRA RAVI , JM: ALL THESE THREE APPEALS BY THE REVENUE AGAINST ORDE R DT: 17-04-2009, 27-01-2009 AND 23-12-2009 PASSED BY THE COMMISSIONE R OF INCOME TAX- (APPEALS), XXIV, KOLKATA FOR THE ASSESSMENT YEARS 2 005-06 TO 2007-08 RESPECTIVELY. 2 ITA NOS.1380-1382/K/12 M/S. NAP CONSTRUCTION P.LTD. 2. IT IS NOTICED THAT AT THE TIME OF HEARING BEFORE US NO ONE PRESENT ON BEHALF OF APPELLANT REVENUE. HOWEVER, AN APPLICATIO N VIDE DATED 08-03-2017 ( COPY OF THE SAME IS ON RECORD) WAS FILED BEFORE US SEEKING ADJOURNMENT STATING THAT, MR. ABHIJIT DUTTA, LD. ADDL.CIT(SR.DR) TO WHO M THE APPEALS WERE ASSIGNED TO REPRESENT THE CASES BEFORE THE TRIBUNAL WAS DIRE CTED TO SUPERVISE THE SURVEY OPERATION. THE LD.AR OF THE ASSESSEE HAS OBJECTED T O THE SAID ADJOURNMENT PETITION AND SUBMITTED THAT ALL THE THREE APPEALS A ND THE ISSUE(S) THEREIN WERE COVERED BY THE ORDER DATED 16-11-07/12-06-2009 OF T HE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO. 1972/KOL/2007 FOR THE A.Y 2003- 04 AND IN ITA NOS. 1487, 1488/KOL/08 FOR THE A.YS 2000-01 AND 2001-02 ( COPY OF THE SAME IS PLACED ON RECORD ) AND ARGUED THAT ALL THE APPEALS CAN BE DIS POSED OFF IN ABSENCE OF LD.DR. THEREFORE, WE REJECT THE SAID ADJOURNMENT AP PLICATION FILED BY THE APPELLANT REVENUE AND TAKING INTO CONSIDERATION THE EARLIER ORDER DATED 16-11- 07/12-06-2009 OF THE TRIBUNAL IN ASSESSEES OWN CAS E SUPRA, WE PROCEED TO HEAR THE APPEALS AND DISPOSE OFF THE SAME ON MERITS BY A CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 3. IT IS ALSO NOTICED THAT IN ALL THE APPEALS THE A PPELLANT REVENUE HAS RAISED COMMON GROUNDS CHALLENGING THE ACTION OF CIT-A IN G RANTING BENEFIT U/SEC. 80IA OF THE ACT. THEREAFTER, THE REVENUE HAS FILED REVISED GROUNDS OF APPEAL QUESTIONING THE ORDER OF CIT-A IN DIRECTING THE AO TO ALLOW THE CLAIM OF ASSESSEE FOR DEDUCTION U/S. 80IA AND 80IB OF THE AC T AS THE ISSUE INVOLVED IN THE ASSESSMENT PROCEEDINGS U/S. 147/143(3) OF THE A CT HAS NO RELEVANCE TO SEC. 80IA OF THE ACT IN THE FACTS AND CIRCUMSTANCES OF THE CASE. THEREFORE, THE ONLY ISSUE/QUESTION IS TO BE DECIDED AS TO WHETHER THE CIT-A JUSTIFIED IN ALLOWING THE DEDUCTION DISREGARDING NON FULFILLMEN T THE CONDITIONS AS LAID DOWN IN SUB SECTION (10) OF SECTION 80IB OF THE ACT . 3 ITA NOS.1380-1382/K/12 M/S. NAP CONSTRUCTION P.LTD. 4. NOW WE SHALL TAKE UP THE APPEAL IN ITA NO. 1380/ KOL/2012 A.Y 2005-06 BY THE REVENUE. 5. THE ASSESSEE IS A COMPANY FILED ITS RETURN OF IN COME FOR THE A.Y 2005-06 ON 25-10-2005. THEREAFTER, THE ASSESSEE FILED A REV ISED RETURN ON 13-03-06 DECLARING A TOTAL INCOME OF RS. NIL. IT IS OBSERVED THAT THE ASSESSEE CLAIMED DEDUCTION U/S. 80IB(10) AMOUNTING TO RS.59,52,190/- . THE AO WAS OF THE VIEW THAT THE ASSESSEE BEING A CONTRACTOR MERELY EXECUTE D THE WORKS CONTRACTS AWARDED BY DIFFERENT GOVT/LOCAL AUTHORITIES AND AS SUCH THE ASSESSEE IS NOT ENTITLED TO CLAIM ANY BENEFIT OF DEDUCTION U/S. 80I B(10) OF THE ACT. ACCORDINGLY, THE AO DISALLOWING THE SAME PASSED THE ASSESSMENT O RDER U/S. 143(3)/147 OF THE ACT ON 12-03-2009. 6. THE LD.AR OF THE ASSESSEE SUBMITS THAT THE AO DI D NOT CONSIDER THE CLAIM OF ASSESSEE IN PURSUANCE OF CLARIFICATION ATTACHED TO SECTION 80IA(13) AS INTRODUCED BY THE FINANCE ACT 2007 GIVING RETROSPEC TIVE EFFECT W.E.F 1-4-2000. THE CIT-A SOUGHT REMAND REPORT FROM THE AO REGARDIN G CONTENTIONS AND EVIDENCES AS PRODUCED BY THE ASSESSEE IN REMAND PRO CEEDINGS. THE CIT-A CONSIDERING THE ASPECTS AS NOTED BY THE AO AND BY R ELYING ON VARIOUS DECISIONS OF HONBLE HIGH COURTS AND SUPREME COURT AND ORDER S OF THE KOLKATA TRIBUNAL DATED 12-06-09 AND DATED 16-11- 2007 IN ITA NOS. 1 487, 1488/KOL/08 AND IN ITA NO.1972/KOL/07 FOR THE AYS. 2000-01, 2001-02 & 2003-04 IN ASSESSEES OWN CASE DIRECTED THE AO TO ALLOW THE CLAIM OF ASSE SSEE FOR DEDUCTIONS U/S. 80IA/80IB OF THE ACT. 7. WE FIND THAT THE LD.AR OF THE ASSESSEE AS RELIE D ON THE ORDER/DECISION AS RENDERED BY THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE A.Y 2003-04 SUPRA. THE FACTS, CIRCUMSTANCES AND THE ISSUE THEREIN ARE SIMILAR AND IDENTICAL TO THE PRESENT FACTS AND CIRCUMSTANCES OF THE CASE. WE ALS O FIND THAT THE CIT-A VIDE PARA 2.3 GIVEN DIRECTION TO THE AO AS UNDER:- 4 ITA NOS.1380-1382/K/12 M/S. NAP CONSTRUCTION P.LTD. 2.3 RESPECTFULLY FOLLOWING THE ORDERS OF THE HONB LE ITAT, KOLKATA DATED 12.06.2009 IN ITA NO. 1487/KOL/2008 & 1488/KOL/2008 FOR A.Y 2000-01 & 2001-02 AND ALSO THE ORDER OF THE HONBLE ITAT KOLKATA DATED 16.11.2007 IN ITA NO.197 2/KOL/2007 FOR A.Y 2003-04 IN THE APPELLANTS OWN CASE, THE AO IS DIRECTED TO ALLOW T HE CLAIM OF THE APPELLANT FOR DEDUCTIONS U/S. 80IA AND 80IB. THESE GROUNDS OF APPEAL ARE ALLOWED. 8. WE ALSO FIND THAT THE TRIBUNAL VIDE ORDER DT. 16 -11-2007 IN ASSESSEES OWN CASE IN ITA NO. 1972/KOL/2007 FOR THE A.Y 2003 -04 IDENTICAL ISSUE HAS DISPOSED OFF AS UNDER:- 6. ON CAREFUL ANALYSIS OF THE ORDERS PASSED BY TH E DEPARTMENTAL AUTHORITIES, IT IS FOUND THAT THE AO, WHILE CONSIDERING THE CLAIM OF THE ASS ESSEE UNDER SECTION 80IA AND 80IB, HAS NOT PROPERLY CONSIDERED THE MATERIALS PLACED BY THE ASS ESSEE BEFORE HIM. SO ALSO, THE AO HAS NOT CONSIDERED THE EFFECT OF THE CLARIFICATION ATTACHED TO SECTION 80IA(13) INTRODUCED BY THE FINANCE ACT, 2007 W.E.F 1.4.2000. WHILE COMING TO THE CONCL USION THAT THE ASSESSEE IS NOT ENTITLED FOR DEDUCTION CLAIMED BY HIM BUT THE CIT(A), WHILE ADJU DICATING THE APPEAL FILED BY THE ASSESSEE BEFORE HIM, HAS, FIRST OF ALL, SOUGHT FOR THE REMAN D REPORT FROM THE AO REGARDING THE CONTENTIONS RAISED BY THE ASSESSEE BEFORE HIM AND AFTER THREAD BARE CONSIDERING THE UNDISPUTED FACTUAL ASPECTS AS BROUGHT ON RECORD BY THE AO IN THE LIGHT OF THE VARIOUS DECISIONS OF THE HONBLE HIGH COURTS AS WELL AS THE HONBLE APEX COURT AND THE CL ARIFICATIONS ADDED BY THE FINANCE ACT, 2007 W.E.F 1.4.2000, HAS COME TO THE CONCLUSION THAT THE AO HAS NOT PROPERLY APPLIED THE STATUTORY LAW AS WELL AS JUDGEMENT LAW TO THE FACTS OF THE CA SE, WHILE ADJUDICATING THE CLAIM OF THE ASSESSEE UNDER SECTION I80IA AND 80IB. 6.1 THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT T HE CONCLUSION REACHED AT BY THE CIT(A) IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 80 IA AND 80IB COUPLED WITH THE CLARIFICATIONS GIVEN BY THE FINANCE ACT, 2007 WHICH IS MADE EFFECT IVE FROM 1.4.2000 COUPLED WITH THE RATIOS LAID DOWN BY VARIOUS HONBLE HIGH COURTS AS WELL A S THE HONBLE APEX COURT AND THUS WE ARE OF THE CONSIDERED VIEW THAT THE CIT(A)S ORDER IS A WE LL-REASONED ONE AND IN ACCORDANCE WITH THE DICTUMS LAID DOWN BY THE HONBLE JURISDICTIONAL HIG H COURT OF CALCUTTA. HONBLE MADRAS HIGH COURT AS WELL AS THE HONBLE APEX COURT REFERRED TO IN THE ORDER. THEREFORE, UNDER THESE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSID ERED VIEW THAT THE CIT(A)S ORDER IS NOT AT ALL SUFFERING FROM ANY INFIRMITY REQUIRING ANY INTE RFERENCE. SINCE, WE ARE AGREEING WITH THE REASONING GIVEN BY THE CIT(A) IN THE IMPUGNED ORDE R, WHILE ALLOWING THE RELIEFS TO THE ASSESSEE, WE ARE NOT GIVING OUR OWN REASONS, RESPEC TFULLY FOLLOWING THE DECISION OF THE HONBLE APEX COURT RENDERED IN THE CASE OF K.Y. PILLAI REP ORTED IN 63 ITR 411. ACCORDINGLY, THE APPEAL OF THE DEPARTMENT IS HEREBY DISMISSED AS DEVOID OF MER ITS. 7. IN THE RESULT, THE APPEAL OF THE DEPARTMENT IS H EREBY DISMISSED. 9. RESPECTFULLY FOLLOWING THE ABOVE CO-ORDINATE BEN CH DECISION OF THIS TRIBUNAL DT. 16-11-2007 SUPRA , WE ARE OF THE OPINION THAT THE SAID ORDER DT. 16-11-07 IN ITA NO. 1972/KOL/2007 FOR THE A.Y 2003- 04 IN ASSESSEES OWN CASE AS RELIED ON BY THE LD.AR OF THE ASSESSEE BEFO RE US IS SQUARELY APPLICABLE TO THE PRESENT FACTS AND CIRCUMSTANCES OF THE CASE. IN VIEW OF THE SAME, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE IMPUGN ED ORDERS OF THE CIT- A IN ALLOWING THE SAME AND IT IS JUSTIFIED. THEREFORE, THE GROUND(S) RAISED BY THE REVENUE IN ALL THE APPEALS ARE DISMISSED. 5 ITA NOS.1380-1382/K/12 M/S. NAP CONSTRUCTION P.LTD. ITA NO.1381/KOL/2012 A.Y 2006-07 ( BY THE REVEN UE) 10. IN VIEW OF THE DISCUSSION & DECISION RENDERED H EREINABOVE IN ITA NO. 1380/KOL/2012 FOR THE A.Y 2005-06(BY THE REVENUE), WE ALSO FIND THAT THE ISSUE, FACTS AND CIRCUMSTANCES IN ITA NO.1381/KOL/2 012 FOR THE AY 2006-07 (BY THE REVENUE) ARE SIMILAR AND IDENTICAL TO THE I SSUE RAISED IN ITA NO.1381/KOL/2012 FOR THE AY 2005-06). THEREFORE, FO LLOWING THE SAME VIEW, THIS ISSUE AS RAISED IN ITA NO. 1381/KOL/2012 FOR T HE AY 2006-07 BY THE REVENUE IS DISMISSED. ITA NO.1382/KOL/2012 A.Y 2007-08 ( BY THE REVEN UE) 11. IN VIEW OF THE DISCUSSION & DECISION RENDERED I N ITA NO. 1380/KOL/2012 FOR THE A.Y 2005-06(BY THE REVENUE), WE ALSO FIND THAT THE ISSUE, FACTS AND CIRCUMSTANCES IN ITA NO.1382/KOL/2 012 FOR THE AY 2007-08 (BY THE REVENUE) ARE SIMILAR AND IDENTICAL TO THE I SSUE RAISED IN ITA NO.1382/KOL/2012 FOR THE AY 2005-06). THEREFORE, FO LLOWING THE SAME VIEW, THIS ISSUE AS RAISED IN ITA NO. 1382/KOL/2012 FOR T HE AY 2007-08 BY THE REVENUE IS DISMISSED. 12. IN THE RESULT, ALL THE APPEALS FILED BY THE REV ENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 24-0 3-2017 SD/- SD/- M.BALAGANESH S.S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 24 -03-2017 6 ITA NOS.1380-1382/K/12 M/S. NAP CONSTRUCTION P.LTD. COPIES OF THE ORDER FORWARDED TO : (1) THE DEPARTMENT: INCOME TAX OFFICER, WARD 11(1), 6 TH FLOOR, P-7 CHOWRINGHEE SQUARE, KOLKATA-69. (2) THE ASSESSEE: M/S. NAP CONSTRUCTION PVT. LTD 31 KAYASTHA PARA MAIN ROAD, KOLKATA-78. (3) COMMISSIONER OF INCOME-TAX (APPEALS)-I, KOLKATA (4) COMMISSIONER OF INCOME TAX, KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE **PP/SPS BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL KOLKATA