DCIT, C-1(1), Chandigarh V. Unipro Techno Infrastructure Private Limited, Chandigarh

ITA 149/CHANDI/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 0472 (ITAT-CHANDIGARH)
• Duration Of Justice: 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 22-12-2020
• Assessment Year: 2015-2016
• Appeal Filed On: 07-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revision of order; Depreciation; Earning of tax free income; Difference of opinion; Change of opinion; TDS; Rule 8D; Set aside
• Section: 148; 263; 63; 143(3); 11A; 14A; 133(6); 194C; 80IA; 201; 13; 20

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCH B, CHANDIGARH (VIRTUAL COURT) .., ! '# .. , $ %& BEFORE: SHRI. N.K.SAINI, VP & SHRI , R.L. NEGI, JM ITA NO. 149/CHD/2020 ASSESSMENT YEAR : 2015-16 THE DCIT, C - 1(1) SECTOR-17E, CHANDIGARH UNIPRO TECHNO INFRASTRUCTURE PRIVATE LIMITED SCO 36, SECTOR-7C CHANDIGARH PAN NO: AABCU1732D APPELLANT RESPONDENT !' ASSESSEE BY : SHRI SUDHIR SEHGAL, ADVOCATE SHRI A.K. SOOD, C.A #!' REVENUE BY : SHRI SANDIP DAHIYA, CIT $ %! & DATE OF HEARING : 22/12/2020 '()*! & DATE OF PRONOUNCEMENT : 23/12/2020 %'/ ORDER PER N.K. SAINI, VICE PRESIDENT THIS IS AN APPEAL BY THE REVENUE AGAINST THE ORDER DT. 19 /11/2019 OF LD. CIT(A)-1, CHANDIGARH. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN PARTLY ALLOWING THE APPEAL OF THE ASSESSEE WITHOUT APPRECIATING THE FACTS OF THE CASE. 2. THE LD. CIT(A) IS NOT JUSTIFIED IN NOT UPHOLDING DI SALLOWANCE OF RS. 81,348/- UNDER SECTION 14A OF THE INCOME TAX ACT ON THE GROUND THAT DISALL OWANCE CANNOT BE MADE WHERE THERE IS NO EXEMPT INCOME WITHOUT APPRECIATING FACT THAT THERE IS NO SUCH RESTRICTION STIPULATED EITHER IN SECTION 14A OF THE INCOME TAX ACT OR RULE 8D OF THE INCOME TAX RULE. 3. THE LD. CIT(A) IS NOT JUSTIFIED IN NOT UPHOLDING DI SALLOWANCE OF RS. 81,348/- UNDER SECTION 14A OF THE INCOME TAX ACT ON THE GROUND THAT DISALL OWANCE CANNOT BE MADE WHERE THERE IS NO EXEMPT INCOME WITHOUT APPRECIATING THE FACT T HAT APPLICABILITY OF SECTION 14A OR RULE 8D DOES NOT DEPEND ON EARNING OF INCOME AS HELD BY SUPREME COURT IN THE CASE OF CIT VS. RAJENDER PRASAD MOODY (1978), 115 ITR 519. 2 4. THE LD. CIT(A) HAS ERRED IN FOLLOWING THE DECISIONS OF HON'BLE HIGH COURTS WHOSE FACTS WERE DISTINGUISHABLE FROM THE TAXPAYERS, IGNORING T HE PRINCIPAL OF APPORTIONMENT REGARDLESS OF EXEMPT INCOME LAID DOWN BY HON'BLE SU PREME COURT DECISION IN CIT VS. WALFORT SHARE AND STOCK BROKERS P LTD: 326 ITR 1 (S C) AND UPHELD BY THE HON'BLE SUPREME COURT IN 91 TAXMANN.COM 154(SC). 5. THE LD. CIT(A) HAS ERRED IN IGNORING THE LEGISLATIV E INTENT EXPRESSED IN CBDT'S CIRCULAR NO. 5/2014 DATED 11.02.2014, WHICH EXPLICITLY STATE S THAT EXPENSES RELATABLE TO EARNING OF EXEMPT INCOME HAVE TO BE CONSIDERED FOR DISALLOWANC E IRRESPECTIVE OF THE FACT WHETHER ANY SUCH INCOME HAS BEEN EARNED DURING THE F.Y. OR NOT AS CONFIRMED BY APEX COURT IN MAXOPP INVESTMENT LTD. VS. CIT, 91 TAXMAN.COM 154(SC). 6. THE LD. CIT(A) HAS ERRED IN HOLDING THAT DISALLOWAN CE U/S 14A CANNOT BE MADE WHERE THERE IS NO EXEMPT INCOME, WHEN SUPREME COURT HAS U PHELD THE PRINCIPLES OF APPORTIONMENT AND DEPARTMENT IS IN SLP ON THE SAME ISSUE IN THE CASES OF MODERATE LEASING AND CAPITAL SERVICES PVT. LTD. IN ITA NO. 1 02 OF 2018, A.Y. 2009-10 AND MATRIX CELLULAR SERVICES (P) LTD. IN ITA NO. 484 OF 2017, NILGIRI INFRASTRUCTURE DEVELOPMENT LTD. IN ITA NO. 135 OF 2016 AND INSTANT HOLDING LTD. ITA NO. 20 168 OF 2011 AND SLP HAS ALSO BEEN ADMITTED AGAINST THE DECISION OF HON'BLE JURISDICTI ON HIGH COURT IN THE CASE M/S VARDHMANCHEMTECH PRIVATE LIMITED IN ITA NO. 322/201 6. 7. THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION O F RS. 81,348/- MADE U/S 14A DETERMINED BY THE AO UNDER RULE 8D R.W.S.L4A TO APP ORTION INTEREST EXPENDITURE INCURRED TO INVEST IN SHARES AND EQUITY INSTRUMENT IN VIEW OF T HE FACT THAT NO SEPARATE ACCOUNTS ARE MAINTAINED BY THE ASSESSEE IN RELATION TO INVESTMEN TS WHOSE INCOME IS EXEMPT FROM TAX, AND ASSESSEE HAS LARGE BORROWED FUNDS, IGNORING APE X COURT DECISION IN 91 TAXMAN.COM 154(SC). 8. THE LD. CIT(A) HAS ERRED IN LAW AND FACT IN FOLLOWI NG THE DECISION OF HON'BLE HIGH COURT IN LAKHANI MARKETING DECIDED FOLLOWING DECISIONS IN THE CASE OF HERO CYCLES LTD., 323 ITR 204 AND CIT VS. WINSOME TEXTILE INDUSTRIES LTD., 31 9 ITR 204 WHOSE FACTS ARE DISTINGUISHABLE FROM THE TAXPAYERS, IGNORING THE PRINCIPAL OF APPOR TIONMENT LAID DOWN BY HON'BLE SUPREME COURT DECISION IN CIT VS. WALFORT SHARE AND STOCK B ROKERS P LTD. 326 ITR 1(SC), WHICH HAS BEEN CONFIRMED IN 91 TAXMAN.COM !54(SC) AND THUS LITIGATION RELYING ON WINSOME TEX TILES INDUSTRIES LTD(SUPRA) STANDS SUPERCEDED. 9. THE ORDER OF THE LD. CIT(A) IS PERVERSE IN NATURE A ND AGAINST LAW AS IT GROSSLY OVERLOOKED THE SCHEME OF THE INCOME TAXACT,1961 AND MATERIAL A VAILABLE ON RECORD. 10. THE LD. CIT(A) HAS ERRED IN BY MAKING OBSERVATION T HAT ISSUE AT HAND HAS BEEN DECIDED BY HIM ON IDENTICAL FACTSLN APPEAL NO. 1065 7/16-17 DATED 24.01.2019 FOR A.Y. 2011-12 WHEREIN IT WAS HELD ASSESSMENT MADE IN COMP LIANCE TO THE SAID REVISION ORDER CANNOT BE SUSTAINED AS THE ORDER OF PCIT MADE U/S 2 63 OF THE INCOME TAX ACT, 1961 HAS BEEN SET ASIDE BY THE HON'BLE ITAT. HOWEYER, IN THE PRESENT CASE, NO ORDER U/S 263 OF THE INCOME TAX ACT, 1961 HAS BEEN PASSED AND THE ASSESS MENT HAS BEEN FRAMED U/S 143(3) OF THE ACT. 11. THE LD. CIT(A) HAS ERRED IN NOT DECIDING THE ISSUE AT HAND ON MERITS RATHER THAN ONLY RELYING UPON THE ORDER FOR A.Y. 2011-12 WHEREIN FAC TS ARE DIFFERENT FROM THE PRESENT CASE. 12. THE LD. CIT(A) HAS ERRED IN BY ALLOWING DEDUCTION U /S 80IA AS THE CASE OF THE ASSESSEE WITH IDENTICAL FACTS FOR A.Y. 2014-15 WHEREIN ASSES SMENT FRAMED U/S 143(3) OF THE ACT AND 3 THE ADDITION MADE ON ACCOUNT OF DISALLOWANCE OF DED UCTION U/S 80IA OF THE ACT HAS BEEN CONFIRMED BY THE LD. CIT(A)-4, LUDHIANA VIDE APPEAL ORDER DATED 01.09.2018 IN APPEAL NO. 75/ROT(10658)CHD/IT/CIT(A)-4/LDH/2016-17. 13. THE LD. CIT(A) HAS ERRED IN BY ALLOWING DEDUCTION U /S 801A OF THE ACT WHEREAS AS PER THE CONTRACT LETTERS AND BID DOCUMENTS PERTAINING T O EACH PROJECT UNDERTAKEN BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION IT IS APPARENT THAT THE ASSESSEE COMPANY WAS BOUND BY THE EXACT SPECIFICATION, DESIGN & DIRE CTIONS GIVEN BY THE GOVERNMENT CONCERNED. THUS THE NATURE OF WORK CARRIED OUT BY T HE ASSESSEE WAS ACTUALLY IN THE NATURE OF WORK CONTRACT. 14. THE APPELLANT CRAVES TO LEAVE TO ADD OR AMEND ANY G ROUNDS OF APPEAL BEFORE THE APPEAL IS HEARD OR DISPOSED OFF. 15.LT IS PRAYED THAT THE ORDER OF THE LD. CIT(A) BE CANCELLED AND THAT OF THE ASSESSING OFFICERS MAY BE RESTORED. 3. DURING THE COURSE OF HEARING THE LD. COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET STATED THAT THE MAIN ISSUE RELATING TO DEDUCTION UNDER S ECTION 80IA RAISED IN THIS APPEAL IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE VIDE OR DER DT. 13/10/2020 OF THIS BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE, COPY OF THE SAID OR DER WAS FURNISHED WHICH IS PLACED ON RECORD. IT WAS ALSO STATED THAT THE ISSUE RE LATING TO DISALLOWANCE UNDER SECTION 14A OF THE ACT IS ALSO COVERED BY THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF PCIT VS. OIL INDUSTRY DEVELOPMENT BOARD FO LLOWED BY THE LD. CIT(A). 4. IN HIS RIVAL SUBMISSIONS THE LD. CIT(A) ALTHOUGH SUP PORTED THE ORDER OF THE A.O. BUT COULD NOT CONTROVERT THE AFORESAID CONTENTION OF THE LD. C OUNSEL FOR THE ASSESSEE. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIE S AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IT IS NOTICED THAT A SIMILAR ISSUE RELATING TO THE DEDUCTION UNDER SECTION 80IA OF THE INCOME TAX ACT, 196 1 (HEREINAFTER REFERRED TO AS ACT) HAS ALREADY BEEN DECIDED BY THIS BENCH OF THE TRI BUNAL IN ASSESSEES OWN CASE VIDE ORDER DT. 13/10/2020 IN ITA NO. 1582/CHD/2018 FO R THE A.Y. 2014-15 IN ASSESSEES OWN CASE WHEREIN BY FOLLOWING THE EARLIER ORDER DT. 29/0 1/2020 IN ITA NO. 749/CHD/2018 FOR THE A.Y. 2013-14 IN ASSESSEES OWN CASE, THE RELEV ANT FINDINGS HAVE BEEN GIVEN AT PAGE NO. 3 TO 21 OF THE ORDER DT. 13/10/2020 WHICH READ AS UNDER : 13. BEFORE PROCEEDING FURTHER IT IS PERTINENT TO M ENTION HERE THAT AS PER PROVISIONS OF SECTION 80IA(4), DEDUCTION HAS BEEN ALLOWED TO AN A SSESSEE WHO HAS ENTERED INTO AN 4 AGREEMENT EITHER WITH THE CENTRAL OR A STATE GOVERN MENT OR A LOCAL BODY OR ANY STATUTORY BODY FOR - (I) DEVELOPING OR (II) OPERATING AND MAINTAINING OR (III) DEVELOPING, OPERATING AND MAINTAINING A NEW INFRAST RUCTURE FACILITY. THE ASSESSEE, ADMITTEDLY, HAD ENTERED INTO NINE AGR EEMENTS UP TO THE YEAR UNDER CONSIDERATION FOR DEVELOPING / PROVIDING LIFT IRRIG ATION SCHEMES/ LIFT WATER SUPPLY SCHEME WITH VARIOUS STATE AUTHORITIES SUCH AS IRRIGATION AND PUBLIC HEALTH DEPTT, OF HIMACHAL PRADESH GOVT. AND THAT OF GOVT. OF UTTRAKHAND. THE CONTRACTS WERE COMPOSITE CONTRACTS REQUIRING THE ASSESSEE NOT ONLY TO DEVELOP FACILITY BUT ALSO TO OPERATE AND MAINTAIN THE FACILITIES FOR SPECIFIC NUMBER OF YEARS I.E. FIRSTL Y, THE DEVELOPMENT OF PROJECT WHICH WOULD TAKE 1 TO 3 YEARS AND THEN TO OPERATE AND MAINTAIN PROJECTS FOR ONE TO FIVE YEARS. SO FAR AS THE THURAL PROJECT IS CONCERNED, THE QUESTION AS TO WHETHER THE PROJECT DEVELOPED BY THE ASSESSEE WAS AN INFRASTRUCTURE DEVELOPMENT PROJECT / CONTRACT AWARDED BY THE GOVERNMENT, CAME INTO CONSIDERATION BEFORE THIS TRI BUNAL IN THE APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2011-12 AND THE TRIBUNAL AFTER CONS IDERING THE FACTS AND CIRCUMSTANCES OF THE CASE HELD THAT THE THURAL PROJECT WAS DEVELOP ED BY THE ASSESSEE AS PER THE COMPOSITE CONTRACT AWARDED BY THE GOVERNMENT AND WO ULD BE ELIGIBLE FOR DEDUCTION U/S 80IA(4) OF THE INCOME-TAX ACT. THEN IN THE NEXT YE AR RELEVANT TO AY 2012-13, THE ASSESSEE WAS AWARDED THREE MORE CONTRACTS OF SIMILAR NATURE. THE LD. PCIT CITING SIMILAR REASONS AS WERE GIVEN IN HER ORDER FOR AY 2011-12, EXERCISED H ER JURISDICTION U/S 263 OF THE ACT AND HELD THAT THE ASSESSING OFFICER HAD NOT PROPERLY EX AMINED THE ISSUE AS TO WHETHER THE CONTRACTS ENTERED INTO BY THE ASSESSEE IN RESPECT O F THE THREE NEW PROJECTS WERE INFRASTRUCTURE DEVELOPMENT CONTRACTS ALLOWABLE FOR DEDUCTION U/S 80IA OR THE SAME WERE SIMPLE WORKS CONTRACTS SPECIFICALLY EXCLUDED FROM THE APPLICABILITY UNDER THE PROVISIONS OF SECTION 80IA AS PER EXPLANATION TO SUB SECTION (13) OF SECTION 80IA OF THE ACT. THE TRIBUNAL DISCUSSED THE MATTER IN DETAIL AND VIDE ORDER DATED 6.2.2017 IN ITA NO.361/CHD/2016 FOR ASSESSMENT YEAR 2011-12 & ALSO VIDE SUBSEQUENT O RDER DATED 1.12.2017 (ITA NO. 867/CHD/2017) FOR ASSESSMENT YEAR 2012-13 AND HELD THAT THE LD. PCIT HAD FAILED TO DIFFERENTIATE THE NATURE OF THE OTHER THREE PROJECT S FROM THE THURAL PROJECT. AFTER DETAILED DISCUSSION, THE APPEALS OF THE ASSESSEE WERE ALLOWE D AND THE ORDER OF THE LD. PCIT U/S 263 OF THE ACT WAS QUASHED. FROM THE ABOVE FACTS, IT C OMES OUT THAT THE NATURE OF THE CONTRACTS AND DEVELOPMENT ACTIVITIES OF THE ASSESS EE HAVE BEEN EXAMINED BY THE TRIBUNAL AND AFTER EXTENSIVE DISCUSSION, IT HAS BEE N HELD THAT THE CONTRACT OF THE DEVELOPMENT OF THE SAID PROJECT WAS AN INFRASTRUCTU RE DEVELOPMENT CONTRACT AND, HENCE, ELIGIBLE FOR DEDUCTION U/S 80IA(4)OF THE ACT. IN T HE YEAR UNDER CONSIDERATION, AS PER THE LD. PCIT, THE ASSESSEE HAS BEEN AWARDED FIVE NEW CONTRA CTS, HOWEVER, THE PCIT HAS NOT POINTED OUT OR DISCUSSED AS TO HOW THE NATURE OF TH EESE FIVE NEW DEVELOPMENT PROJECTS UNDERTAKEN DURING THE YEAR WAS DIFFERENT FROM THE N ATURE / FACTS OF THE THURAL PROJECT AS CARRIED OUT BY THE ASSESSEE IN THE ASSESSMENT YEAR 2011-12 WHEN IT WAS IN ITS DEVELOPMENT STAGE. SHE HAD NOT DISCUSSED AS TO WHY FINDINGS OF THIS TRIBUNAL FOR ASSESSMENT YEAR 2011-12, WHICH WAS IN RELATION TO THE NATURE OF THE THURAL PROJECT WHEN IT WAS IN DEVELOPMENT STAGE, WOULD NOT BE APPLICABLE TO THE NEW PROJECTS UNDERTAKEN. HOWEVER, SHE HAS TAKEN AN ENTIRELY INAPPROPRIATE AND ILLOGICAL PLEA THAT T HIS YEAR THURAL PROJECT IS ENTERED INTO THE FOURTH YEAR AND, THUS, THE ACTIVITY CARRIED OUT BY THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION IN RESPECT OF THE THURAL PROJECT IS ONLY OPERATION AND MAINTENANCE, THEREFORE, THE FACTS OF THE THURAL PROJECT FOR TH E YEAR UNDER CONSIDERATION ARE DIFFERENT FROM OTHER PROJECTS. IT IS PERTINENT TO MENTION HER E THAT THE NATURE OF THE THURAL PROJECT AND THE ACTIVITY CARRIED OUT BY THE ASSESSEE FOR TH E ASSESSMENT YEAR UNDER CONSIDERATION, WHEN THE THURAL PROJECT IS REACHED IN ITS FOURTH YEAR WAS NOT UNDER CONSIDERATION OR ADJUDICATION BY THE TRIBUNAL IN RESPECT OF THE APPE AL OF THE ASSESSEE FOR ASSESSMENT YEAR 2011-12 AND EVEN IN THE APPEAL FOR ASSESSMENT YEAR 2012-13, SINCE, THE THURAL PROJECT IN THOSE YEARS WAS IN ITS DEVELOPMENTAL STAGE, HENCE, THE TRIBUNAL CONSIDERING THE NATURE OF THE CONTRACT HELD THAT IT WAS AN INFRASTRUCTURE DEV ELOPMENT PROJECT. SINCE THE LD. PCIT HAS 5 NOT BROUGHT ANY DIFFERENTIATING OR DISTINGUISHING F ACT ABOUT THE DEVELOPMENT ACTIVITY CARRIED IN THE THURAL PROJECT AS COMPARED TO THE OTHER EIGHT PROJECTS UNDERTAKEN BY THE ASSESSEE, HENCE, UNDER THE CIRCUMSTANCES, THE FINDI NGS ARRIVED AT BY THE TRIBUNAL IN RESPECT OF THURAL PROJECT ARE SQUARELY APPLICABLE TO THE OTHER PROJECTS ALSO. IT IS ALSO PERTINENT TO MENTION HERE THAT THE NATURE OF THE OTHER THREE PRO JECTS WHICH WERE STARTED IN THE YEAR 2012-13 HAS ALSO CAME FOR CONSIDERATION IN THE APPE AL OF THE ASSESSEE AGAINST THE ORDER PASSED U/S 263 OF THE PCIT AND IT HAS BEEN SPECIFI CALLY HELD THAT THE LD. PCIT HAD FAILED TO POINT OUT ANY DIFFERENCE BETWEEN THE THURAL PRO JECT AND THE OTHER THREE PROJECTS CARRIED OUT BY THE ASSESSEE IN THE SAID YEAR. HOWEVER, AGAIN VIDE IMPUGNED ORDER, THE LD. PCIT T HOUGH, FULLY AWARE OF THE EARLIER FINDINGS OF THE TRIBUNAL, YET, PROCEEDED TO PASS T HE IMPUGNED ORDER U/S 263 OF THE ACT WITHOUT BRINING ANY DISTINGUISHING FASTS REGARDING THE NATURE OF THE NEW CONTRACT WHEN COMPARED TO THE EARLIER FOUR CONTRACTS CARRIED OUT BY THE ASSESSEE. MOREOVER, THE LD. PCIT HAS HELD THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCTIO N IN RESPECT OF THE THURAL PROJECT FOR THE YEAR UNDER CONSIDERATION BEING THE FOURTH YEAR OF T HE PROJECT AND THAT THE ASSESSEE HAS TO ONLY OPERATE AND MAINTAIN THE SAID INFRASTRUCTURE F ACILITY NAMELY THURAL PROJECT. BY SAYING SO, THE LD. PCIT HERSELF HAS IMPLIEDLY ADMITTED THA T THE THURAL PROJECT IS AN INFRASTRUCTURE DEVELOPMENT PROJECT AND AS PER THE PROVISIONS OF SE CTION 80IA(4) OF THE ACT, THE DEDUCTION HAS BEEN ALLOWED FOR DEVELOPING OR OPERATING AND M AINTAINING OR FOR DEVELOPING, OPERATING AND MAINTAINING A NEW PROJECT FACILITY. 14. SO FAR AS THE OBSERVATION MADE BY THE LD. PCIT THAT THE DEVELOPMENT ACTIVITY CARRIED OUT BY THE ASSESSEE, WHETHER, WOULD FALL IN THE DEFINITION OF THE WORKS CONTRACT, THE SAID ISSUE HAS BEEN THOROUGHLY DISCUSSED BY THE TRIBUNAL IN ORDER DATED 6.2.2017 IN ITA NO.361/CHD/2016 FOR ASSESSMENT YEAR 2011-12 & DA TED 1.12.2017, ITA NO. 867/CHD/2017)FOR ASSESSMENT YEAR 2012-13, THE RELEV ANT FINDINGS OF THE TRIBUNAL GIVEN IN ORDER DATED 6.2.2017 FOR ASSESSMENT YEAR 2011-12 (S UPRA) IN THIS RESPECT, ARE REPRODUCED AS UNDER:- 8. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED TH E ORDER OF THE LEARNED PR. CIT AND THE DOCUMENTS PLACED BEFORE US. 9. ON PERUSAL OF THE ORDER OF THE LEARNED PR.CIT WE FIND THAT THE FIRST REASON FOR INVOKING REVISIONARY POWERS UNDER SECTION 263 WAS T HAT THE ASSESSING OFFICER HAD NOT EXAMINED THE CLAIM OF THE ASSESSEE OF DEDUCTION UND ER SECTION 80IA OF THE ACT VIS-A-VIS THE APPLICABILITY OF THE EXPLANATION TO SUB-SECTION (13) OF SECTION 80IA OF THE ACT. THE LEARNED PR. CIT HAS HELD THAT AS PER THE AFORESAID EXPLANATION TO THE SECTION WORK CONTRACTS ARE NOT ELIGIBLE FOR DEDUCTION UNDER SECT ION 80IA(4) AND APPARENTLY THE PROJECT UNDERTAKEN BY THE ASSESSEE IS COVERED UNDER THE DEF INITION OF WORKS CONTRACT. MOREOVER THE ASSESSING OFFICER HAS NOT EXAMINED THIS ASPECT DURING THE COURSE OF ASSESSMENT AND NO VERIFICATIONS WERE MADE BY THE ASSESSING OFFICER, T HEREFORE, AS PER THE LEARNED PR. CIT, THE ASSESSEE HAS BEEN WRONGLY ALLOWED DEDUCTION OF ITS PROFITS UNDER SECTION 80IA(4) OF THE ACT CAUSING PREJUDICE TO THE REVENUE. BEFORE US LD. COU NSEL FOR THE ASSESSEE MADE ARGUMENTS CHALLENGING THE JURISDICTION OF THE PR.CIT TO INVOK E REVISIONARY POWERS ON THIS ASPECT AS ALSO ON THE MERITS OF THE CLAIM OF DEDUCTION UNDER SECTI ON 80IA(4). CHALLENGING THE ASSUMPTION OF JURISDICTION OF THE LEARNED PR. CIT, THE LD. COU NSEL OF THE ASSESSEE STATED THAT THIS ISSUE HAD BEEN EXAMINED DURING ASSESSMENT PROCEEDINGS AND THE ASSESSING OFFICER, AFTER DUE APPLICATION OF MIND, HAD ALLOWED THE ASSESSEES CLA IM OF DEDUCTION UNDER SECTION 80IA(4). THE LD. COUNSEL FOR THE ASSESSEE STATED THAT REVIEW OF THE ORDER WAS ONLY ON ACCOUNT OF CHANGE OF OPINION AND COULD NOT BE EXERCISED UNDER SECTION 263 OF THE ACT. IN SUPPORT OF ITS CONTENTION THAT THE ISSUE HAD BEEN EXAMINED BY THE AO DURING ASSESSMENT PROCEEDINGS THE LD. COUNSEL FOR THE ASSESSEE DREW O UR ATTENTION TO THE FOLLOWING: A) THE RETURN OF INCOME FOR THE IMPUGNED YEAR ACCOM PANIED BY AUDIT REPORT UNDER SECTION 80 IA IN FORM NO. 10 CCB ON THE BASIS OF WH ICH DEDUCTION UNDER SECTION 80 IA WAS CLAIMED BY THE ASSESSEE PLACED AT PAPER BOOK PAGE N O. 1 TO 26 6 B) THE QUESTIONNAIRE RECEIVED FROM THE ASSESSING OF FICER AND THE RELEVANT QUERIES RAISED AT SERIAL NO. 5,6,7 AND 11 OF THE SAME RELAT ING TO THE CLAIM OF THE ASSESSEE UNDER SECTION 80 IA PLACED AT PAPER BOOK PAGE NO. 29 TO 3 5. THE RELEVANT QUERIES RAISED IN THE QUESTIONNAIRE ARE AS FOLLOWS: 5. AS PER INFORMATION FILED BY YOU, IT HAS SEEN TH AT YOU HAD UNDERTAKEN CONTRACT FOR PROVIDING LIFT WATER SUPPLY SCHEME FROM EXECUTIVE E NGINEER, IPH AND CLAIMED THIS INCOME AS EXEMPT U/S 80IA AND GOT SUB-CONTRACT FROM NKG IN FRA IN WHICH INCOME IS TAXABLE. PLEASE PROVIDE THE COMPLETE DETAILS IN THIS REGARD ALONGWITH COPY OF CONTRACT WITH THEM. PLEASE ALSO PROVIDE DETAILS HOW YOU ARE ELIGIBLE FO R EXEMPTION U/S 801A WHEN YOU ARE CONDUCTING ACTIVITIES UNDER CONTRACT. 6. YOU HAVE ALSO CLAIM EXEMPTION AMOUNTING TO RS.52 ,35,708/- U/S 10(2A) AND RS.12, 11, 810/- U/S 80IA. PLEASE PROVIDE THE COMPLETE DET AILS IN THIS REGARD ALONGWITH DOCUMENTARY EVIDENCE. 7. AS PER AUDIT REPORT COL. NO. 26, THE AUDITOR HAS SHOWN DEDUCTION UNDER CHAPTER VI- A AT 'NIL' ON THE OTHER HAND IN THE COMPUTATION YOU HAVE CLAIMED UNDER CHAPTER VL-A AT RS. 12,11,810/-. PLEASE EXPLAIN THIS. 11. PLEASE STATE THE DATE ON WHICH THE COMPANY CAME INTO EXISTENCE. AS PER FORM NO. 10CCB ANNEXED WITH AUDIT REPORT AT PARA 8 THE A UDITOR HAS MENTIONED COMMENCEMENT OF OPERATION/ACTIVITY AS 13.04.2010. A ND AT PARA 9 THE INITIAL ASSESSMENT YEAR FROM WHEN DEDUCTION U/S 80 -1A IS FOR THE A.Y. 2011-12. ON THE OTHER HAND, UNDER THE DETAIL OF FIXED ASSERT AS ON 31.03.2011, YOU HAVE S HOWN WDV OF THE FIXED ASSET AS ON 01.04.2010 AT RS.1,81,58,128/-. PLEASE FURNISH DETA ILS OF HOW WDV COMES TO EXIST ON 01.04.2010 WHEN YOUR DATE OF COMMENCEMENT OF OPERAT ION STARTED ON 13.04.2010 AND SHOW CAUSE WHY DEPRECIATION CLAIMED BY YOU SHOULD N OT BE DISALLOWED AS IT SEEMS THAT YOU ARE FURNISHING INACCURATE PARTICULARS. PLEASE A LSO FURNISH WHETHER YOU HAVE CLAIMED SUCH EXEMPTION U/S 80-LA IN THE PREVIOUS YEAR ALSO OR NOT? 12. FURTHER AT PARA 12 OF FORM NO.10CCB, YOU HAVE S HOWN SALES TAX REGISTRATION NO. IN WHICH IT HAS ASCERTAINED THAT YOU WERE GOT REGISTER ED WITH SALES TAX ON 09.07.2009. PLEASE STATE WHETHER YOU HAVE GOT SALE TAX NO. BEFORE THE COMPANY CAME INTO EXISTENCE. C) THE REPLY FILED BY THE ASSESSEE IN RESPONSE TO T HE QUERY RAISED DATED 13.08.13 PLACED AT PAPER BOOK PAGE NO. 36 TO 40. THE RELEVAN T REPLY OF THE ASSESSEE IN THE SAME POINTED OUT TO US BY THE LD. COUNSEL FOR THE ASSESS EE IS AS FOLLOWS: 5. THE ASSESSEE COMPANY WAS AWARDED CONTRACT BY HI MACHAL PARDESH GOVERNMENT, IRRIGATION AND PUBLIC HEALTH DEPARTMENT, DIVISION T HURAL AS UNDER; 'PROVIDING REHABILITATION AND SOURCE LEVEL AGUMENTA TION OF VARIOUS SCHEMES IN CHANGER AREA IN TENHIL JAISINGHPUR, PALAMPW, KHWIDIAN AND D ERA IN DISTRICT KANGRA (HP) SUB HEAD:- CONSTRUCTION OF CIVIL WORK I.E. PERCOLATION WELL, P UMP HOUSE, DTAFF QUARTERS, LABORATORY BUILDING, INSPECTION HUT STORAGE TANKS, COMPOUND WA LLS, RETAINING/BREAST -WALLS, WIRE CRATE WORKS, ROADS, STREET TRUSS BRIDGE, PROVIDING, LOWERING, LAYING AND JOINTING OF PIPE LINES INCLUDING SUPPLY AND FIXING OF REQUIRED VALVES AND SPECIALS, CONSTRUCTION OF ANCHOR BLOCKS/THRUST BLOCKS AND SUPPORTING PILLARS ETC FOR RISING MAIN, GRAVITY MAIN AND SUPPLY OF LAB EQUIPMENTS, INSPECTION VEHICLE AND MAINTENANCE VAN ETC. SUPPLY AND INSTALLATION OF PUMPING MACHINERY INCLUDING ACCESSORIES AND ELECTRO MECHANICAL EQUIPMENTS REQUIRED FOR STEPPING DOWN OF 11KVA POWER SUPPLY AND POST CO MPLETION OPERATION AND MAINTENANCE OF THE WHOLE SCHEME FOR 60 MONTHS INCLU DING AUTOMATION.' THE COMPOSITE PROJECT AWARDED TO THE ASSESSEE IN PR OVIDING LIFT WATER SUPPLY SCHEME FROM EXECUTIVE ENGINEER, IRRIGATION & PUBLIC HEALTH, DIV ISION THURAL, DISTT. KANGRA (HP) ON ACCOUNT OF PROVIDING REHABILITATION AND SOURCE LEVEL AUGMEN TATION OF VARIOUS SCHEMES IN CHANGER 7 AREA IN TEHSIL JAISINGHPUR, PALAMPUR, KHUNDIAN AND DEHRA IN DISTT KANGRA HP COMPLETE CONSTRUCTION OF THE PROJECT INCLUDING OPERATION &MA INTENANCE OF THE WHOLE SCHEME IS COVERED UNDER SECTION 80IA. THE COPY OF CONTRACT WI TH EXECUTIVE ENGINEER HP IPH DIVN. THURAL FOR LIFT WATER SUPPLY SCHEME IS ENCLOSED HER EWITH. A COPY OF AGREEMENT AS SUB CONTRACTOR OF NKG INFRAS TRUCTURE LTD IS ALSO ENCLOSED HEREWITH. D) REPLY DATED 29.08.2013 FOR THE PURPOSE OF CLAIM OF DEDUCTION UNDER SECTION 80IA PLACED AT PAPER BOOK PAGE 41 NUMBER. THE RELEVANT P ORTION OF THE REPLY IS AS FOLLOWS: PLEASE REFER TO THE ASSESSMENT PROCEEDINGS IN THE CASE OF UNIPRO TECHNO INFRASTRUCTURE PRIVATE LIMITED, SCO 36, SECTOR 7, CHANDIGARH FOR T HE A/Y 2011-12 PAN AACFU1025F. THE INFORMATION/DOCUMENTS ASKED FOR IS AS UNDER; 2. THE PARTNERSHIP FIRM OF UNIPRO TECHNO INFRASTRUC TURE WAS CONVERTED INTO PRIVATE LIMITED COMPANY WITH EFFECT FROM 13.04.2010 WITH AL L ITS ASSETS AND LIABILITIES WITH THE SAME SALES TAX REGISTRATION NUMBER. THE DEDUCTION U/S 8Q 1A WAS FIRST CLAIMED IN THE A/Y 2010-11. THE-YEAR UNDER REFERENCE IS THE SECOND YEAR FOR CLA IMING DEDUCTION U/S 801A. E) THE ORDER PASSED BY THE ASSESSING OFFICER DEALIN G WITH THE ISSUE OF 80IA AT PARAS 3 TO 4.2 OF THE ORDER AS FOLLOWS PLACED AT PAPER BOOK PAGE NOS. 44 TO 52 : 3. THE CASE OF THE ASSESSEE SELECTED UNDER CASS WI TH THE REASONS THAT 'AO TO EXAMINE THE REASONS & GENUINENESS FOR HIGH CLAIM OF REFUND OUT OF TDS'. WHEN CONFRONTED, THE ASSESSEE VIDE ITS REPLY DATED 13.08.2013, HAS SUBMI TTED THAT IN THE YEAR 2011-12 A REFUND OF RS.10,47,850/- WAS CLAIMED AS A PART OF THE INCOME OF THE COMPANY AMOUNTING TO RS. 12,11,810/- WAS EXEMPT U/S 80IA AND TDS WAS DEDUCTE D ON THE TOTAL RECEIPT OF THE COMPANY, THE EXCESS AMOUNT OF TDS DEDUCTED WAS CLAI MED AS REFUND. 4. THE ASSESSEE-COMMISSIONER CAME INTO EXISTENCE W. E.F. 13.04.2010 AFTER CONVERSION FROM PARTNERSHIP FIRM, NAMELY M/S UNIPRO TECHNO INF RASTRUCTURE TO M/S UNIPRO TECHNO INFRASTRUCTURE PRIVATE LTD. WITH ALL ITS ASSETS AND LIABILITIES WITH SALE TAX REGISTRATION NUMBER AND ALSO CARRIED FORWARDED THE SAME WDV OF THE FIRM AS ON THE LAST DATE OF 13.04.2013. 4.1 THE ASSESSEE COMPANY IS A PARTNER IN THE FI RM KAVERI INFRASTRUCTURE PRIVATE LTD. JV UNIPRO TECHNO INFRASTRUCTURE IN WHICH IT IS HOLDING 95% SHARE. COPY OF THE PARTNERSHIP DEED IS PLACED ON RECORD. THE ASESSEE HAS EARNED A PRO FIT OF RS.52,35,708/- AS PARTNER ON ACCOUNT OF 95% SHARE OF PROFIT FROM THE FIRM AND CL AIMED EXEMPT U/S 10(2A) OF THE IT ACT, 1961. FARTHER, THE ASSESSEE COMPANY WAS AWARDED CO NTRACT BY HIMACHAL PARDESH GOVERNMENT, IRRIGATION AND PUBLIC HEALTH DEPARTMENT , DIVISION THURAL. THE COMPOSITE PROJECT AWARDED TO THE ASSESSEE IN PROVIDING LIFT W ATER SUPPLY SCHEME FROM EXECUTIVE ENGINEER, IRRIGATION & PUBLIC HEALTH, DIVISION THUR AL, DISTT. KANGRA (HP) ON ACCOUNT OF PROVIDING REHABILITATION AND SOURCE LEVEL AUGMENTAT ION OF VARIOUS SCHEMES IN CHANGER AREA IN TEHSIL JAISINGHPUR, PALAMPUR, KHUNDIAN AND DEHRA IN DISTT. KANGRA HP COMPLETE CONSTRUCTION OF THE PROJECT OF THE PROJECT INCLUD ING OPERATION & MAINTENANCE OF THE WHOLE SCHEME. 4.2 THE ACTIVITY UNDERTAKEN BY THE COMPAN Y FOR IPH THURAL QUALIFIES EXEMPTION U/S 80!A OF THE IT. ACT 1961, AND THE INC OME IS 100% EXEMPT FOR 10 YEARS. IT MAY HE MENTIONED HERE THAT THIS THE 2 ND YEAR FOR CLAIMING EXEMPTION U/S (I.E. L ST YEAR IN THE HAND OF UNIPRO TECHNO INFRASTRUCTURE FOR THE F.Y. 0 9-10 AND 2 ND YEAR IN THE HAND OF UNIPRO TECHNO INFRASTRUCTURE PRIVATE LIMITED W.E.F. 13.04. 2010, I.E. FOR THE F.Y. 2010-11) SINCE THE COMPANY HAS AWARDED THE SAME PROJECT BY THE SAME GO VT. THIS YEAR, THE ASSESSEE HAS CLAIMED AN AMOUNT OF RS.12,11,810/- AS DEDUCTION U/ S 80IA. THE ASSESSEE VIDE ITS REPLY, WHICH IS PLACED ON RECORD, HAS HIMSELF ADMITTED THA T THE YEAR UNDER REFERENCE IS THE SECOND YEAR FOR CLAIMING DEDUCTION U/S 801A. 8 10. RELYING UPON THE ABOVE DOCUMENTS LD. COUNSEL FO R THE ASSESSEE STATED THAT RELEVANT QUERIES RELATING TO ELIGIBILITY OF THE CLA IM OF ASSESSEE OF DEDUCTION UNDER SECTION 80IA WAS RAISED BY THE ASSESSING OFFICER DURING AS SESSMENT PROCEEDINGS, DUE REPLY WAS FILED BY THE ASSESSEE AFTER CONSIDERING WHICH AND A FTER APPLYING HIS MIND TO WHICH THE ASSESSING OFFICER PASSED A DETAILED REPLY ALLOWING DEDUCTION UNDER SECTION 80IA TO THE ASSESSEE. THEREAFTER LD. COUNSEL FOR THE ASSESSEE D REW OUR ATTENTION TO THE FACT THAT THE VIEW TAKEN BY THE ASSESSING OFFICER IN ALLOWING THE CLAIM OF THE ASSESSEE UNDER SECTION 80IA WAS CORRECT SINCE IT WAS ADEQUATELY PROVED BEF ORE HIM THAT THE CONTRACT AWARDED TO THE ASSESSEE WAS A COMPOSITE CONTRACT AWARDED ON BU ILD, OPERATE AND TRANSFER BASIS FOR THE EXECUTION OF WHICH THE MACHINERY INSTALLED INCL UDING ITS COMPONENTS, ENGINEERS AND LABOUR EMPLOYED, DESIGNING, EXECUTION, FINANCING IN THE FORM OF CAPITAL INVESTMENT, ENTERPRISE RISK, PERFORMANCE GUARANTEE ETC WAS THE RESPONSIBILITY OF THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE POINTED OUT THAT THE CONTR ACT IN ANY CASE COULD NOT BE SAID TO BE A WORKS CONTRACT FOR THE PURPOSE OF EXPLANATION T O SUB-SECTION (13) TO SECTION 80IA(4) AND THE ASSESSING OFFICER ON THE BASIS OF DOCUMENT S PRODUCED BEFORE IT HAD RIGHTLY ARRIVED AT THE CONCLUSION THAT THE ASSESSEE WAS ELI GIBLE TO CLAIM DEDUCTION UNDER SECTION 80IA OF THE ACT. IN SUPPORT OF ITS CONTENTION THAT THE VIEW TAKEN BY THE LD. COUNSEL FOR THE ASSESSEE WAS A CORRECT AND PLAUSIBLE VIEW LD. COUNS EL FOR THE ASSESSEE DREW OUR ATTENTION TO THE FACT THAT ON AN APPLICATION FILED BY THE ASS ESSEE TO THE CIT (TDS) FOR ISSUING A CERTIFICATE FOR DEDUCTION OF TAX AT LOWER RATE ON A CCOUNT OF THE DEDUCTION CLAIMED BY THE ASSESSEE UNDER SECTION 80IA OF THE ACT, THE ASSESSE E WAS AWARDED A CERTIFICATE FOR ASSESSMENT YEARS 2010-11 TO 2013-14 PLACED AT PB-12 6 TO 134 AFTER CONSIDERING ALL THE NECESSARY AND RELEVANT DOCUMENTS PROVING THAT THE A SSESSEE WAS ELIGIBLE TO CLAIM DEDUCTION UNDER THE SAME. LD. COUNSEL FOR THE ASSES SEE POINTED OUT THE FACT THAT THE ASSESSEE HAD BEEN AWARDED A CERTIFICATE FOR DEDUCTI ON OF TAX AT LOWER RATE ON ACCOUNT OF ITS ELIGIBILITY TO CLAIM DEDUCTION UNDER SECTION 80 IA OF THE ACT PROVED THAT THE VIEW TAKEN BY THE ASSESSING OFFICER ON THE BASIS OF DOCUMENTS BEFORE IT WAS CORRECT. LD. COUNSEL FOR THE ASSESSEE FURTHER DREW OUR ATTENTION TO THE FACT THAT A SIMILAR CONTRACT IN THE CASE OF M/S KAVERI INFRASTRUCTURE PRIVATE LIMITED/UNIPRO TECHNO INFRASTRUCTURE WAS HELD AS INFRASTRUCTURAL CONTRACT FOR THE ASSESSMENT YEAR 2008-09 TO A.Y 201 1-12 BY ANOTHER ASSESSING OFFICER. LD.COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO T HE RELEVANT ORDER SHEET ENTRY IN THE CASE OF M/S KAVERI INFRASTRUCTURE PRIVATE LIMITED, JV UNIPRO TECHNO INFRASTRUCTURE PLACED AT PB-70 AND 71, WHICH READS AS UNDER : 04.08.2015 THE REPLY TO THE NOTICES ISSUED UNDER SE CTION 133(6) OF THE ACT BY RESPONDENT NO. 2 TO THE IRRIGATION DEPARTMENT, H.P. GOVERNMENT WAS RECEIVED ON 03.08.2015 FROM THE EXECUTIVE ENGINEER (I&PH) DIVISION, H.P. GOVERNMENT , BY THE SAID RESPONDENT NO. 2, IN PURSUANCE OF WHICH THE CASE OF THE PETITIONER WAS F IXED FOR 04.08.2015. THE ASSESSING OFFICER I.E. RESPONDENT NO: 2, PASSED THE FOLLOWING ORDER IN FAVOUR OF THE PETITIONER WHICH RENDERED THE VERY INITIATION OF REASSESSMENT PROCEE DINGS FOR THE ASSESSMENT YEAR IN QUESTION INCLUDING ' THE SUBSEQUENT YEAR AS ILLEGAL AND TOTALLY WITHOUT JURISDICTION:- 'PRESENT: SH. A.K. SOOD, CA. THE ID. COUNSEL AGAIN SUBMITS THAT PROCEEDINGS U/S 148 NEED TO BE DROPPED AS THERE WAS NO NON DISCLOSURE BY THE ASSESSEE. HE HAS AGAIN BEEN TOLD THAT THE CASE IS BEING PROCEEDED WITH ON MERIT AS T HE MATTER IS ONE OF INTERPRETATION OF THE STATUTE. THE CLARIFICATION RECEIVED FROM THE EXECUT IVE ENGINEER, L&PH, DIVISION BARSAR, DISTT. HAMIRPUR VIDE LETTER DT. 1/ 8/2016 IN RESPONSE TO QUERY U/S 133(6) IS ON RECORD. PERUSAL OF THE SAME SHOWS THAT THE ASSESSEE WAS AWARDED THE COMPLETE PROJECT CONTRACT ON BOT BASIS AND NO OTHER AGENCY WAS INVOL VED IN THE SAME. THE ID. COUNSEL HAS ALSO CITED CBDT CIRCULAR NO. 10/2005 DT. 16.12.2005 WHICH THOUGH SPECIFIC TO PORTS INTERPRETS SECTION 80IA AS BEING APPLICABLE TO PROJ ECTS/ STRUCTURES BUILT UNDER BOT BASIS. PERUSAL OF CLARIFICATION RECEIVED FROM I H.P. GOVT. DEPTT. AND THE LANGUAGE OF THE CONTRACT AGREEMENT SHOWS THAT THE ACTIVITY OF THE ASSESSEE I S NOT IN THE NATURE OF WORKS CONTRACT FOR THE PURPOSES OF 80IA. IT APPEARS THAT THE ASSESSEE HAS IMPLEMENTED AN INFRASTRUCTURE PROJECT FOR THE GOVT. ON A TURNKEY BASIS AND HAS AL SO BEEN ENGAGED IN ITS OPERATION AND MGT. SUCH ARRANGEMENT IS TYPICAL TO INFRASTRUCTURE DEVELOPMENT PROJECT OF THE GOVT. AND 9 CANNOT BE SEEN AS MERE WORKS CONTRACT. CASE ADJOURN ED TO 17.08.2015. INSP. TO PLACE COPY OF FILE NOTINGS ON ALL FILES OF CONNECTED RELE VANT ASSESSMENT YEARS IN THE CASE.' 11. THE LD. COUNSEL OF THE ASSESSEE ALSO DREW OUR A TTENTION TO THE FACT THAT IN THE PRECEDING YEAR I.E. ASSESSMENT YEAR 2010-11 AS ALSO IN THE SUCCEEDING YEAR I.E A.Y 2012-13 & 2013-14, THE ASSESSEE HAD BEEN ALLOWED ITS CLAIM OF DEDUCTION UNDER SECTION 80IA IN THE ORDER PASSED UNDER SECTION 143 (3) OF THE ACT. TH E LD. COUNSEL FOR THE ASSESSEE, THEREFORE, STATED THAT THE CLAIM OF THE ASSESSEE FOR DEDUCTION UNDER SECTION 80IA HAVING BEEN DULY EXAMINED IN THE COURSE OF REGULAR ASSESSMENT PROCEE DINGS AND THE ASSESSING OFFICER HAVING ALLOWED THE CLAIM WHICH WAS CONSISTENT WITH THE VIEW TAKEN BY THE CIT (TDS) WHILE GRANTING CERTIFICATE OF LOWER DEDUCTION OF TAX, THE ASSESSING OFFICER IN THE PRECEDING AND SUCCEEDING YEARS, AS ALSO WITH THE VIEW TAKEN BY TH E ASSESSING OFFICER IN THE CASE OF ANOTHER ASSESSEE UNDERTAKING IDENTICAL WORK, IT CAN NOT BE SAID THAT ANY ERROR HAD CREPT IN THE ORDER OF THE ASSESSING OFFICER CAUSING PREJUDIC E TO THE REVENUE AND THEREFORE THE ACTION OF THE LEARNED PR. CIT IN ASSUMING JURISDICT ION UNDER SECTION 263 FOR REVIEWING THE ORDER OF THE ASSESSING OFFICER ON THIS COUNT WAS BA D IN LAW AND NEEDED TO BE QUASHED. 12. LD.DR, ON THE OTHER HAND, WE FIND, RELIED UPON THE ORDER OF THE LEARNED PR. CIT AND STATED THAT THE ASPECT OF APPLICATION OF EXPLANATIO N TO SUB-SECTION (13) OF SECTION 80IA, TO THE CONTRACT AWARDED TO THE ASSESSEE WAS NOT EXAMIN ED BY THE ASSESSING OFFICER WHICH BEING CRUCIAL TO THE CLAIM OF DEDUCTION UNDER SECTI ON 80IA, AN ERROR HAD CREPT INTO THE ORDER OF THE ASSESSING OFFICER AND SINCE APPARENTLY THE PROJECT UNDERTAKEN BY THE ASSESSEE WAS COVERED UNDER THE DEFINITION OF WORKS CONTRACT THE ASSESSEE HAD BEEN WRONGLY GRANTED DEDUCTION UNDER SECTION 80IA CAUSIN G LOSS TO THE REVENUE AND THUS THE ACTION OF THE LEARNED PR. CIT WAS JUSTIFIED ON THIS ACCOUNT. 13. WE HAVE HEARD THE CONTENTIONS OF BOTH THE PARTI ES AND PERUSED THE ORDER OF THE LEARNED PR. CIT AS ALSO THE DOCUMENTS PLACED AND RE FERRED TO BEFORE US. 14. THE ONLY REASON FOR EXERCISING REVISIONARY POWE RS UNDER SECTION 263 IN THE PRESENT CASE IS THAT THE ASSESSING OFFICER HAD NOT EXAMINED THE CLAIM OF THE ASSESSEE TO DEDUCTION UNDER SECTION 80IA(4) VIS-A-VIS EXPLANATION 13 TO T HE SAID SECTION WHICH EXCLUDES PROFITS EARNED FROM WORKS CONTRACTS FROM DEDUCTION UNDER SE CTION 80IA(4) OF THE ACT. 15. ON THIS ACCOUNT WE ARE UNABLE TO AGREE WITH TH E LEARNED PR. CIT. IT IS AMPLY CLEAR FROM THE PLEADINGS AND DOCUMENTS PLACED BEFORE US BY THE LD.COUNSEL FOR THE ASSESSEE THAT THE SAID ISSUE WAS RAISED DURING ASSESSMENT PROCEEDINGS, DUE INQUIRIES WERE MADE AND AFTER PROPER APPLICATION OF MIND THE ASSESSING OFFICER ALLOWED THE CLAIM OF THE ASSESSEE. 16. WE FIND THAT THE ASSESSEE HAD FILED RETURN OF I NCOME CLAIMING DEDUCTION UNDER SECTION 80IA AMOUNTING TO RS.12,11,810/-. CERTIFICA TE IN FORM NO.10CCB, CERTIFYING THE ASSESSEES CLAIM OF DEDUCTION UNDER SECTION 80IA OF THE SAME AMOUNT WAS ALSO FILED GIVING ALL DETAILS OF HE UNDERTAKING CLAIMING THE SAID DED UCTION. FURTHER, DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS SPECIFICALLY ASKED TO PROVIDE COMPLETE DETAILS OF THE CONTRACT UNDERTAKEN FOR PROVIDING LIFT WATER SITE S CHEME FROM EXECUTIVE ENGINEER, IPH, THE INCOME FROM WHICH WAS CLAIMED EXEMPT UNDER SECTION 80IA OF THE ACT. THE ASSESSEE WAS ALSO SPECIFICALLY ASKED TO PROVE HIS ELIGIBILITY FO R SUCH CLAIM WHEN THE ACTIVITIES WERE BEING UNDERTAKEN UNDER CONTRACT. THUS SPECIFIC AND POINTE D QUERIES VIS-A-VIS ELIGIBILITY OF CLAIM OF DEDUCTION U/S 80IA WERE RAISED AND THE ASSESSEE WAS SPECIFICALLY ASKED TO JUSTIFY ITS CLAIM IN THE LIGHT OF UNDERTAKING THE WORK UNDER CONTRACT ME ANING THEREBY THAT IT WAS A WORKS CONTRACT. 17. IN REPLY TO THE SAME, THE ASSESSEE FURNISHED CO MPLETE DETAIL OF THE WORK UNDERTAKEN STATING THAT IT HAD UNDERTAKEN CONTRACT FOR PROVIDING LIFT WATER SUPPLY SCHEME FROM THE EXECUTIVE ENGINEER, IRRIGATION & PUBLIC HE ALTH DIVISION, THURAL, DISTT. KANGRA ON ACCOUNT OF PROVIDING REHABILITATION AND SOURCE LEVE L AGUMENTATION OF VARIOUS SCHEMES IN 10 DIFFERENT TEHSILS OF DISTRICT KANGRA. THE ASSESSEE , WE FIND, HAD ALSO STATED THAT THE COMPLETE CONSTRUCTION OF THE PROJECT ALONGWITH OPER ATION AND MAINTENANCE OF THE WHOLE SCHEME WAS TO BE UNDERTAKEN BY IT. COMPLETE DETAI L OF THE CONSTRUCTION WORK TO BE UNDERTAKEN WAS ALSO GIVEN AND IT WAS REITERATED THA T THE POST-COMPLETION OPERATION AND MAINTENANCE OF THE WHOLE SCHEME FOR 16 MONTHS INCLU DING AUTOMATION WAS THE RESPONSIBILITY OF THE ASSESSEE UNDER THE SCHEME. T HE ASSESSEE HAD CLARIFIED THAT IT WAS A COMPOSITE PROJECT AWARDED TO IT AND THUS WAS COVERE D UNDER SECTION 80IA OF THE ACT. THUS, THE ASSESSEE HAD CLARIFIED THAT IT WAS NOT ME RELY WORKS CONTRACT AWARDED TO IT BUT A PROJECT AWARDED TO IT WAS ON A TURNKEY BASIS WHICH INCLUDED POST-COMPLETION OPERATION AND MAINTENANCE OF THE SAME ALSO FOR A SPECIFIED PE RIOD. COPY OF THE CONTRACT WAS ALSO PLACED BEFORE THE ASSESSING OFFICER. THE ASSESSEE HAD ALSO CLARIFIED THAT THE IMPUGNED DEDUCTION UNDER SECTION 80IA WAS FIRST CLAIMED BY I T IN ASSESSMENT YEAR 2010-11 AND THE YEAR UNDER REFERENCE WAS THE SECOND YEAR FOR CLAIMI NG THE SAID DEDUCTION. 18. IT IS AMPLY CLEAR FROM THE ABOVE THAT NECESSARY ENQUIRIES REGARDING THE ASSESSEES CLAIM FOR DEDUCTION UNDER SECTION 80IA OF THE ACT V IS--VIS THE LIFT WATER SITE SCHEME CONTRACT RECEIVED FROM THE EXECUTIVE ENGINEER, IPH, DISTRICT KANGRA WERE MADE DURING THE ASSESSMENT PROCEEDINGS BY THE ASSESSING OFFICER. FU RTHER ALL NECESSARY EXPLANATIONS REGARDING THE CLAIM OF DEDUCTION ALONGWITH EVIDENCE S WERE PLACED BY THE ASSESSEE TO PROVE ITS CLAIM OF DEDUCTION UNDER SECTION 80IA OF THE ACT. THEREFORE, FOR ALL PURPOSES, IT CAN BE SAID THAT THE CLAIM OF THE ASSESSEE HAD BEEN DULY VERIFIED DURING THE ASSESSMENT PROCEEDINGS.CLEARLY THE CONTENTION OF THE LEARNED P R. CIT THAT NO ENQUIRIES WERE MADE IS INCORRECT. 19. WE MAY ADD THAT IT CANNOT ALSO BE A CASE OF IN ADEQUATE ENQUIRY. ALL EXPLANATIONS AND EVIDENCES WERE PLACED BEFORE THE A SSESSING OFFICER TO EXPLAIN THE NATURE OF THE CONTRACT AND DEMONSTRATE THAT IT WAS NOT MERELY A WORKS CONTRACT. WE FAIL TO UNDERSTAND WHAT FURTHER INQUIRY WAS REQUIRE D TO BE MADE IN THE CASE TO SETTLE THE ISSUE OF THE NATURE OF CONTRACT OR FOR THAT MATTER HOW THE PRESENT INQUIRY WAS NOT ADEQUATE TO ARRIVE AT THE CORRECT CONCLUSION. MOREOVER WE F IND THAT EVEN THE LEARNED PR. CIT HAS NOT SPELT OUT THE SAME IN HIS ORDER. EVEN BEFORE US TH E LD. DR HAS FAILED TO SHOW HOW THE INQUIRY MADE WAS INADEQUATE AND WHAT FURTHER INVEST IGATION WAS REQUIRED IN THE MATTER OR WHY ON THE BASIS OF EXPLANATION AND EVIDENCES FILED BY THE ASSESSEE THE CORRECT NATURE OF THE CONTRACT COULD NOT BE DEDUCED. IN SUCH CIRCUMS TANCES, WE HOLD, IT CANNOT BE SAID THAT THERE WAS ANY ERROR IN THE ORDER OF THE ASSESS ING OFFICER SO AS TO CAUSE PREJUDICE TO THE REVENUE. 20. MOREOVER, WE FIND THAT AFTER GOING THROUGH THE REPLIES FILED BY THE ASSESSEE THE ASSESSING OFFICER DISCUSSED THE SAME I N HIS ASSESSMENT ORDER AND RECORDED HIS SATISFACTION REGARDING THE ASSESSEES CLAIM FOR SUC H DEDUCTION STATING THAT THE ACTIVITY UNDERTAKEN BY THE ASSESSEE CLARIFIES FOR DEDUCTION UNDER SECTION 80IA OF THE ACT. THE ASSESSING OFFICER FURTHER ADDED THAT THIS WAS THE S ECOND YEAR OF CLAIM OF DEDUCTION SINCE THE ASSESSEE COMPANY HAD BEEN AWARDED THE SAME PROJ ECT BY THE SAME GOVERNMENT. THUS, WE FIND THAT THE ASSESSING OFFICER AFTER HAVI NG APPLIED HIS MIND TO THE EXPLANATIONS AND EVIDENCES FILED BY THE ASSESSEE ARRIVED AT A LO GICAL AND REASONABLE CONCLUSION THAT THE ASSESSEE WAS ELIGIBLE TO CLAIM DEDUCTION UNDER SECTION 80IA OF THE ACT AS ITS ACTIVITY QUALIFIED FOR THE SAID CLAIM. WE FIND THAT THE VIE W TAKEN BY THE ASSESSING OFFICER IS A PLAUSIBLE VIEW SINCE AS DEMONSTRATED BEFORE US, THE ASSESSEE HAD BEEN GRANTED A CERTIFICATE OF LOWER DEDUCTION OF TAX FOR ASSESSMEN T YEARS 2010-11 TO 2013-14 AFTER CONSIDERING THE ELIGIBILITY OF THE CLAIM OF THE ASS ESSEE TO DEDUCTION UNDER SECTION 80IA OF THE ACT. THE ASSESSEE HAS ALSO DEMONSTRATED BEFORE US THAT IN THE PRECEDING AND SUCCEEDING ASSESSMENT YEARS, IDENTICAL CLAIM ON ACC OUNT OF VERY SAME PROJECT HAD BEEN ALLOWED TO IT BY THE ASSESSING OFFICER AND ALSO THA T FOR IDENTICAL PROJECT ANOTHER ASSESSING OFFICER HAD GRANTED DEDUCTION UNDER SECTION 80IA OF THE ACT TO A SISTER CONCERN OF THE ASSESSEE M/S KAVERI INFRASTRUCTURES PVT. LTD. IN CO LLATERAL PROCEEDINGS BEFORE THE DCIT, FOR THE ASSESSMENT YEARS 2008-09 TO 2011-12, THAT TOO A FTER EXERCISING POWERS UNDER SECTION 133(6) AND RECEIVING CLARIFICATION FROM THE EXECUTI VE ENGINEER, IPH, ON PERUSAL OF WHICH THE 11 ASSESSING OFFICER FOUND THAT THE CONTRACT WAS ON BU ILT OPERATE TRANSFER (BOT) BASIS AND NOT IN THE NATURE OF WORKS CONTRACT AND THAT THE PROJEC T WAS ON TURNKEY BASIS IN WHICH THE ASSESSEE WAS INVOLVED IN OPERATION AND MANAGEMENT A LSO. THE AO IN THAT CASE ALSO NOTED THAT SUCH ARRANGEMENTS WERE TYPICAL FOR INFRASTRUCT URE DEVELOPMENT PROJECTS OF THE GOVERNMENT AND CANNOT BE SEEN AS MERE WORKS CONTRAC T. ALL THESE FACTS HAVE NOT BEEN REBUTTED BY THE LD. DR BEFORE US. THEREFORE, WITHO UT ANY DOUBT IT CAN BE SAID THE VIEW TAKEN BY THE ASSESSING OFFICER WITH REGARD TO THE C LAIM OF THE ASSESSEE UNDER SECTION 80IA OF THE ACT WAS A PLAUSIBLE VIEW. 21. INTERESTINGLY, WE FIND ,THAT ALL THE EXPLANATI ONS AND EVIDENCES WHICH WERE FILED BEFORE THE AO BY THE ASSESSEE TO SUPPORT ITS CLAIM OF DEDUCTION U/S 80IA WAS ALSO FILED BEFORE THE LEARNED PR. CIT AND DESPITE SO THERE IS NOT A WHISPER IN THE ENTIRE ORDER AS TO HOW THE VIEW OF THE AO THAT IT WAS AN INFRASTRUCTU RE PROJECT AND NOT WORKS CONTRACT, IS INCORRECT. THE LEARNED PR. CIT HAS NOT REFERRED TO A SINGLE DOCUMENT, CLAUSE OR OTHERWISE OF THE AGREEMENT TO LEND CREDENCE TO HIS VIEW.THE ENTI RE THRUST OF THE LEARNED PR. CIT IN EXERCISING REVISIONARY POWERS IS THAT ADEQUATE ENQU IRY VIS--VIS CLAIM OF DEDUCTION UNDER SECTION 80IA OF THE ACT WAS NOT CARRIED OUT, WHICH AS WE HAVE STATED ABOVE, THE LD. COUNSEL FOR THE ASSESSEE HAS DEMONSTRATED IS INCORR ECT. ADEQUATE ENQUIRIES WERE CARRIED OUT, ADEQUATE REPLIES WERE FILED BY THE ASSESSEE AN D THE ASSESSING OFFICER AFTER HAVING APPLIED HIS MIND TO THE EXPLANATIONS AND EVIDENCES FILED BY THE ASSESSEE HAD ARRIVED AT A PLAUSIBLE CONCLUSION THAT THE ASSESSEE WAS UNABLE T O DEDUCTION UNDER SECTION 80IA OF THE ACT. WE ARE, THEREFORE, IN COMPLETE AGREEMENT WITH THE LD. COUNSEL OF THE ASSESSEE THAT THE ISSUE WAS EXAMINED AND VERIFIED DURING ASSESSME NT PROCEEDINGS AND THE ASSESSING OFFICER HAD ARRIVED AT A PLAUSIBLE CONCLUSION THAT ON THE BASIS OF THE VERIFICATION CARRIED OUT BY IT THAT THE ASSESSEE WAS ELIGIBLE TO CLAIM DEDUCTION UNDER SECTION 80IA OF THE ACT AND THEREFORE THERE WAS NO ERROR IN THE ORDER OF TH E ASSESSING OFFICER SO AS TO CAUSE PREJUDICE TO THE REVENUE. THE ACTION OF THE LEARNED PR. CIT IN EXERCISING HIS REVISIONARY POWERS ON THIS GROUND IS SET ASIDE. 22. BESIDES THE ABOVE ARGUMENT LD. COUNSEL FOR THE ASSESSEE ALSO ARGUED BEFORE US THAT THE ISSUE OF ELIGIBILITY OF CLAIM OF DEDUCTION UNDER SECTION 80IA OF THE ACT HAVING BEEN EXAMINED IN THE 1 ST YEAR OF CLAIM OF THE ASSESSEE I.E. AY 2010-11, THE SAME COULD NOT HAVE BEEN DISTURBED IN THE SUCCEEDING YEA RS. IN SUPPORT OF ITS CONTENTION THE LD. COUNSEL RELIED UPON THE DECISION OF THE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF CIT VERSUS MICRO INSTRUMENT COMPANY IN ITA. NO. 958/200 8 DATED 2.9.2016 MORE SPECIFICALLY AT PARA 12 OF ITS ORDER HAD STATED AS FOLLOWS: 12. HOWEVER, WHILE UNDERTAKING THIS EXERCISE, THE ASSESSING OFFICER IS NOT ENTITLED TO REOPEN AN ISSUE THAT HAD BEEN DECIDED IN RESPECT OF A PREV IOUS ASSESSMENT YEAR. IN OTHER WORDS, AN ASSESSING OFFICER IS NOT ENTITLED TO QUESTION TH E VALIDITY OF THE GRANT OF A DEDUCTION UNDER SECTION 80-IB IN A PREVIOUS ASSESSMENT YEAR O N ANY GROUND. THE ASSESSING OFFICER WOULD NOT BE ENTITLED TO SAY THAT A PARTICULAR COND ITION WAS NOT FULFILLED IN AN EARLIER ASSESSMENT YEAR IF THE ASSESSEE HAD BEEN GRANTED TH E DEDUCTION IN THAT YEAR. THE ASSESSING OFFICER, THEREFORE, CANNOT DENY A DEDUCTI ON IN THE ASSESSMENT YEAR IN QUESTION BEFORE HIM ON THE GROUND THAT THE ASSESSEE HAD FAIL ED TO FULFILL A CONDITION PRECEDENT TO THE GRANT OF A DEDUCTION IN ANOTHER ASSESSMENT YEAR . THAT WOULD AMOUNT TO AN ASSESSING OFFICER REOPENING AN ASSESSMENT IN RESPECT OF ANOTH ER ASSESSMENT YEAR WITHOUT FOLLOWING THE PROVISIONS OF THE ACT. 23. LD.DR, ON THE OTHER, HAND RELYING UPON PARA 11 OF THE ORDER STATED THAT CERTAIN ISSUES COULD HAVE BEEN DISTURBED IN THE SUC CEEDING YEARS ALSO. LD.DR STATED THAT MERELY BECAUSE THE ASSESSEE HAD BEEN ALLOWED CLAIM IN THE 1 ST YEAR DID NOT MEAN THAT THE SAME FOR ALL PURPOSES COULD NOT BE DISTURBED IN THE SUCCEEDING YEARS AT ALL. 24. WE HAVE GONE THROUGH THE ORDER OF THE JURISDIC TIONAL HIGH COURT RELIED UPON BY BOTH THE PARTIES AND FIND MERIT IN THE CONT ENTION OF THE LD. COUNSEL FOR THE ASSESSEE. THERE IS NO DISPUTE ABOUT THE FACT THAT I N THE PRECEDING ASSESSMENT YEAR I.E. AY 12 2010-11, WHICH WAS THE 1 ST YEAR OF CLAIM OF DEDUCTION UNDER SECTION 80IA, THE ASSESSEE WAS ALLOWED THE SAME UNDER SECTION 143 (3) OF THE ACT. THIS MEANS THAT FOR ALL PURPOSES THE CLAIM OF THE ASSESSEE HAVING BEEN EXAMINED IN THE L IGHT OF THE PARAMETERS OF ELIGIBILITY LAID DOWN UNDER SECTION 80IA, IT COULD NOT BE SAID THAT IN THE SUCCEEDING YEAR THOSE VERY SAME PARAMETERS HAD CHANGED ON THE SAME SET OF FACTS. TH E ASSESSING OFFICER, AFTER CONSIDERING ALL THE DOCUMENTS PLACED BEFORE IT, HAD IN THE PREC EDING YEAR CONCLUDED THAT THE ASSESSEE WAS CARRYING OUT AN INFRASTRUCTURE RELATED PROJECT WHICH WAS NOT IN THE NATURE OF WORKS CONTRACT AS DEFINED UNDER SECTION 80IA, READ WITH EXPLANATION-13 AND THUS THE ASSESSEE WAS ELIGIBLE TO CLAIM DEDUCTION UNDER SECT ION 80IA OF THE ACT. IN THE IMPUGNED CASE, WHICH IS THE SUCCEEDING YEAR, ON THE VERY SAM E SET OF FACTS THE FINDINGS OF THE PRECEDING YEAR ON THE FACT THAT THE ASSESSEE WAS CA RRYING OUT ELIGIBLE INFRASTRUCTURE PROJECT AND NOT WORKS CONTRACT, CANNOT NOW BE DIST URBED, WHICH IS EXACTLY WHAT HAS BEEN STATED BY THE HIGH COURT IN THE ORDER PASSED IN THE CASE OF MICRO INSTRUMENT COMPANY (SUPRA). FOLLOWING THE SAME ALSO WE HOLD THAT THE LEARNED PR. CIT COULD NOT HAVE EXERCISED HIS REVISIONARY POWERS SINCE THE CLAIM OF THE ASSES SEE HAD BEEN DECIDED IN THE PRECEDING YEAR ITSELF AND WITHOUT DISTURBING THE SAME IT COUL D NOT HAVE BEEN DISLODGED IN THE IMPUGNED YEAR. 25. IN VIEW OF THE ABOVE WE SET ASIDE THE ORDER OF THE LEARNED PR. CIT ON THIS COUNT. 15. FURTHER, THE AFORESAID ISSUE WAS AGAIN CONSIDER ED BY THE TRIBUNAL FOR ASSESSMENT YEAR 2012-13 ALSO. THE TRIBUNAL VIDE ORDER DATED 1. 12.2017 HAS AGAIN DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. THE RELEVANT FINDINGS OF TH E TRIBUNAL ARE REPRODUCED AS UNDER:- 4.18 ACCORDINGLY WE FIND THAT INFACT THERE IS NOTH ING ON RECORD EXCEPT THE SUSPICION OF THE DEPARTMENT THAT THE ASSESSING OFFICER HAS NOT C ARRIED OUT ADEQUATE ENQUIRIES. WE HAVE GONE THROUGH THE RECORD AND SEEN THAT THE ISSU ES HAVE BEEN ENQUIRED INTO REPLIES HAVE BEEN PLACED ON RECORD NOTHING HAS BEEN BROUGHT BY THE DEPARTMENT TO SHOW THAT THE VIEW TAKEN BY THE ASSESSING OFFICER WAS INCORRE CT ON FACTS. THE REQUISITE AGREEMENTS ALONGWITH SITE PLAN SCHEDULE ETC. ATTACHED THERETO WERE ALL AVAILABLE BEFORE THE AO AND BEFORE THE PR. CIT ALONGWITH PHOTOGRAPHS ETC. NO EF FORT TO DISTINGUISH THE CONTRACT ENTERED INTO WITH HIMACHAL PRADESH GOVT. IN RESPECT OF THUR AL PROJECT WITH THE SUBSEQUENT CONTRACTS ENTERED INTO BY THE ASSESSEE WITH HIMACHA L PRADESH GOVERNMENT IN RESPECT OF DEHRA PROJECT OR WITH THE UTTRAKHAND GOVT. IN RESPE CT OF PAURI AND RUDRAPRAYAG PROJECTS HAVE BEEN REFERRED TO IN HIS ORDER BY THE PR. CIT O R IN HIS ARGUMENTS BY THE LD. CIT-DR. MERE ARGUMENT THAT THE THREE PROJECTS WERE DIFFERENT WIT HOUT ANY SUPPORTING FACT CANNOT BE GIVEN A JUDICIAL APPROVAL. SUSPICION MAY BE SAID T O BE SUFFICIENT FOR THE PURPOSES OF ISSUANCE OF SHOW CAUSE NOTICE BUT THEREAFTER, THE S USPICION HAS TO BE BACKED BY HARD FACTS. 4.19 ON GIVING OUR CONSIDERATION TO THE ISSUES REMA INING AT HAND, WE FIND THAT ULTIMATELY ON THE ISSUE ON WHICH THE ORDER WAS PASS ED SETTING ASIDE THE ORDER ADMITTEDLY WAS NOT THE SUBJECT MATTER OF THE TWO SHOW CAUSE NO TICES ISSUED BY THE PR. CIT CHANDIGARH AND THUS NOTWITHSTANDING THE SETTLED LEGAL POSITION THEREON EVEN OTHERWISE WE FIND THAT IN THE FACTS OF THE PRESENT CASE ON A READING OF THE A SSESSMENT ORDER ITSELF IT IS DEMONSTRATED THAT THE ASSESSING OFFICER HAS ENQUIRED INTO THE SA ID ISSUE ALSO. IT IS SEEN THAT THE AO WHILE PASSING THE ORDER PROCEEDED TO LOOK INTO THE CLAIM OF DEPRECIATION FOR THE EXEMPTED AND NON-EXEMPT UNITS AND THUS THE SUSPICION OF THE PR. CIT, CHANDIGARH THAT THE FACTS FOR CONSIDERING THE BIFURCATION OF EXPENSES BETWEEN THE EXEMPTED INCOME AND NON-EXEMPT INCOME HAVE NOT BEEN LOOKED INTO IS WITHOUT ANY JUS TIFICATION AND IN THE PECULIAR FACTS OF THE PRESENT CASE BASED ENTIRELY ON SUSPICIONS. 4.20 ACCORDINGLY IN VIEW OF THE DETAILED REASONS GI VEN HEREIN ABOVE, WE FIND THAT THERE WAS NO BASIS FOR THE PRINCIPAL CIT-A TO CONCLUDE TH AT IT IS A CASE OF INADEQUATE ENQUIRIES. WE FIND FROM THE RECORD THAT THE ASSESSING OFFICER HAS INQUIRED INTO THE ISSUES THE ASSESSEE HAS DEMONSTRATED THE CORRECTNESS OF THE CLAIM HAVIN G BEEN ALLOWED THE REVENUE HAVING 13 FAILED TO POINT OUT AS TO WHAT IS THE ERROR IN THE SPECIFIC CONTRACTS CONSIDERED BY THE PR. CIT, CHANDIGARH NAMELY THE CONTRACT ENTERED INTO WITH TH E HIMACHAL PRADESH GOVERNMENT IN REGARD TO THE DEHRA PROJECT AND THE TWO SPECIFIC CO NTRACTS ENTERED INTO WITH THE UTTRAKHAND GOVERNMENT OF PAURI AND RUDRAPRAYAG PROJ ECT. ACCORDINGLY WE HAVE NO HESITATION IN QUASHING THE ORDER PASSED BY THE PR.C IT, CHANDIGARH ON ALL THESE COUNTS AND ALLOW THE APPEAL OF THE ASSESSEE. 5. AT THIS STAGE, IT WOULD NOT BE OUT OF CONTEXT TO QUOTE FROM THE DECISION OF THE GAUHATI HIGH COURT IN THE CASE OF BONGAIGAON REFINE RY AND PETROCHEMICAL 287 ITR 120 (GAU) WHERE THE COURT AT PAGE 131 PARA 17 AND 18 HE LD AS UNDER: '17. ENTERTAINMENT OF A VIEW DIFFERENT FROM THE ONE ADOPTED BY THE ASSESSING OFFICER, IF PLAUSIBLE WOULD NOT CLOTHE THE COMMISSIONER WITH TH E POWER TO INTERFERE THEREWITH UNDER THE SAID PROVISION OF THE ACT. DIFFERENTLY PUT, AN ERROR WITHIN THE JURISDICTION OF THE ASSESSING OFFICER ON AN EVALUATION OF THE MATERIALS AVAILABLE WOULD NOT BE EXPOSED TO INTERFERENCE IN EXERCISE OF SUOMOTU REVISIONAL POWERS UNDER SECT ION 263 OF THE ACT. THE PROVISION THOUGH PERMITS THE COMMISSIONER TO INITIATE AN ENQUIRY AS HE MAY DEEM NECESSARY DOES NOT AUTHORISE A ROVING PROBE INTO THE FACTS WITH THE DI SPOSITION TO PICK OUT ERRORS TO SUSTAIN THE EVENTUAL INTERFERENCE. THIS ASSUMES GREAT SIGNIFICA NCE IN THE CONTEXT OF THE STATUTORY FRAME WORK OF THE ACT OUTLINING THE JURISDICTIONAL CONTOU RS OF DIFFERENT AUTHORITIES TO ADJUDICATE THE ISSUES AS LEGISLATIVELY STIPULATED. THE COMMISSIONE R IN EXERCISE OF HIS REVISIONAL POWERS CANNOT ARROGATE TO HIMSELF A STATUS TO SURROGATE TH E OTHER AUTHORITIES AND SUPPLANT THEIR ROLES UNDER THE ACT. 18. THE JURISDICTION EXERCISABLE UNDER SECTION 263 OF THE ACT BEING SUPERVISORY IN NATURE, PERMITTING SUO MOTU REVIEW OF ANY ASSESSMEN T ALREADY MADE, THE STATUTORILY ENJOINED SANCTIONS CIRCUMSCRIBING THE SAME HAVE TO BE RIGOROUSLY CONSTRUED. THE LEGISLATIVE INTENDMENT OF CONDITIONING THE PLENITUD E OF THE POWER CONFERRED IS MANIFEST IN THE TWO PRECONDITIONS LODGED IN THE SECTION. TO SUS TAIN THE DELICATE BALANCE BETWEEN THIS SUPERVISORY AND OTHER REMEDIAL JURISDICTIONS, AS DE SIGNED BY THE LAWMAKERS, A CONSTRICTED CONNOTATION AND PURPORT OF THE ENABLING PREREQUISIT ES FOR THE EXERCISE OF THE REVISIONAL POWERS IS AN IMPERATIVE NECESSITY. 5.1 THUS, NO DOUBT THE POWER TO SET ASIDE HAS BEEN VESTED WITH THE PR. CIT. HOWEVER, THE POWER HAS TO BE EXERCISED JUDICIOUSLY AND FAIRL Y. THE REVISIONARY ORDER CANNOT BE SILENT IN THE FACE OF THE CHALLENGE OF THE ASSESSEE THAT T HE CONTRACTS ARE IDENTICAL COMPOSITE INFRASTRUCTURE DEVELOPMENT CONTRACTS ON BOT BASIS I .E. WERE TRUNKEY PROJECTS WHERE AFTER INITIALLY SETTING UP, THE ASSESSEE WAS TASKED WITH MAKING IT FUNCTIONAL POST COMPLETION OPERATION AND MAINTENANCE OF THE SAME FOR A SPECIFI C PERIOD. THE CONTRACTS WERE AVAILABLE WITH THE PR. CIT AND THE STATED CLAIM OF THE ASSESSEE IF IT WAS FOUND TO HAVE BEEN INCORRECT, SHOULD HAVE BEEN DEMONSTRATED IN THE ORD ER ITSELF. EVEN IN THE COURSE OF THE ARGUMENTS, LD. CIT-DR COULD NOT BRING ANY FACT TO O UR NOTICE IN SUPPORT OF THE ORDER PASSED. THE POWER VESTED BY THE STATUTE COMES WITH ONEROUS RESPONSIBILITIES WHICH CANNOT BE ALLOWED TO BE SHIRKED. THE ASSESSEE IN THE FACTS O F THE PRESENT CASE IS ABLE TO DEMONSTRATE THAT FULL FACTS WERE AVAILABLE ON RECORD ON WHICH E NQUIRIES HAVE BEEN MADE AND THE ASSESSMENT ORDER ITSELF SHOWS THAT THE CALCULATIONS CARRIED OUT EVEN THOUGH FOR THE PURPOSES OF DEPRECIATION BY THE AO QUA THE EXEMPTED UNITS AND NON-EXEMPT UNITS DEMONSTRATE THAT FACTS HAVE BEEN SEEN. IN THE FACE OF THESE FACTS AND ARGUMENTS, THE PR. CIT SHOULD HAVE REFERRED TO SOME ERROR IN THE ORDER PASSED AFTER CONSIDERING THE NEW THREE CONTRACTS AND THE EARLIER CONTINUING CONTRACT OF TH URAL PROJECT WHICH IS NOT SO IN THE FACTS OF THE PRESENT CASE. NOR HAS THE LD. CIT-DR POINTE D OUT TO ANY SUCH ERROR. ACCORDINGLY, THE ARGUMENTS OF THE LD. CIT-DR THAT NO PREJUDICE I S CAUSED TO THE ASSESSEE IF THE MATTER IS RESTORED TO THE ASSESSING OFFICER AS THE ASSESSEE W OULD STILL BE AT LIBERTY TO REARGUE THE ENTIRE CASE CANNOT BE COUNTENANCED. UNLESS AND UNTI L THE REVENUE DEMONSTRATES THAT THE ORDER HAS BEEN PASSED WITHOUT DUE AND ADEQUATE ENQU IRY OR AN ERROR WHICH IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE IS POINTED OUT ONLY THEN THE ORDER PASSED CAN BE UPHELD. MERELY BECAUSE THE ASSESSEE WOULD HAVE AN OPPORTUNI TY AVAILABLE BEFORE THE ASSESSING OFFICER ONCE AGAIN CANNOT BE SAID TO BE A JUSTIFIAB LE REASON FOR SETTING ASIDE AN 14 ASSESSMENT ORDER. IF THE SAID ARGUMENT IS ACCEPTED, THEN EACH AND EVERY ASSESSMENT ORDER CAN BE SET ASIDE AS OPPORTUNITY TO THE ASSESS EE IS ANY WAY GRANTED BY THE RULE OF LAW. 5.2 BEFORE PARTING, WE MAY ALSO REFER TO THE DECISI ON OF THE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS GOYAL PRIVATE FAMILY SPECIFIC TR UST (1988) 171 ITR 698, 701-702 (ALL). A PERUSAL OF THE SAID DECISION WOULD SHOW THAT THE CO URT HAS HELD IN UNAMBIGUOUS TERMS THAT MERELY BECAUSE THE ORDERS OF THE ASSESSING OFFICER ARE BRIEF AND CRYPTIC, THE SAID FACT BY ITSELF CANNOT BE A GROUND FOR BRANDING THE ASSESSME NT ORDERS AS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THE COURT WAS CARE FUL TO OBSERVE THAT WRITING A DETAILED ORDER NO DOUBT MAY BE A LEGAL REQUIREMENT, BUT THE ORDER NOT FULFILLING THIS REQUIREMENT, CANNOT BE SAID TO BE ERRONEOUS AND PREJUDICIAL TO T HE INTERESTS OF THE REVENUE. THE COURT IN UNAMBIGUOUS TERMS HAS FASTENED THE RESPONSIBILIT Y FOR EXERCISING THE REVISIONARY POWER ON THE COMMISSIONER TO NECESSARILY POINT OUT AS TO WHAT ERROR WAS COMMITTED BY THE ASSESSING OFFICER IN HAVING REACHED THE CONCLUSION WHICH WAS SOUGHT TO BE SET ASIDE. THE SAID EFFORT WAS FOUND TO BE MISSING IN THE FACTS OF THE SAID CASE AS IN THE FACTS OF THE PRESENT CASE ALSO. IN THE FACTS OF THE PRESENT CAS E, THE PR. CIT HAVING FAILED TO POINT OUT ANY ERROR, LET ALONE AN ERROR WHICH IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE AS THE NECESSARY EXERCISE FOR ADDRESSING THE ERROR HAS NOT BEEN DONE IN THE ORDER NOR HAS THE LD. CIT-DR BEEN ABLE TO DEMONSTRATE THAT THERE WERE CLA USES AND CONDITIONS IN THE CONTRACTS ENTERED INTO WITH EXECUTIVE ENGINEER, IPH DEHRA (HP ), EXECUTIVE ENGINEER, UTTRAKHAND PEYJAL NIGAL, CONSTRUCTION DIVISION, RUDRAPRAYAG AN D EXECUTIVE ENGINEER, UTTRAKHAND PEYJAL NIGAM, CONSTRUCTION DIVISION, PAURI VIS--VIS THE C ONTRACT ENTERED INTO WITH EXECUTIVE ENGINEER, IPH THURAL (HP) ON THE BASIS OF WHICH THE Y COULD NOT BE SAID TO BE COMPOSITE INFRASTRUCTURE DEVELOPMENT CONTRACTS ON A BOT BASIS WITH ADDED RESPONSIBILITIES TOWARDS ITS MAINTENANCE FOR SPECIFIC PERIOD. THE ORDER PASSED, ACCORDINGLY FOR THE DETAILED REASONS GIVEN HEREIN ABOVE IS HELD TO BE ARBITRARY AND THE ORDER IS QUASHED. ACCORDINGLY, THE GROUNDS RAISED ARE ALLOWED. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . 16. THE LD. PCIT VIDE IMPUGNED ORDER HAS TRIED TO D ISTINGUISH BETWEEN THE WORKS CONTRACT AND A DEVELOPMENT CONTRACT BY HOLDING T HAT SINCE THE DEVELOPMENT OF THE PROJECTS IN QUESTION WAS TO BE CARRIED OUT BY THE A SSESSEE AS PER THE SPECIFICATIONS / DESIGNS APPROVED BY THE GOVERNMENT, HENCE, IT WOULD FALL WITHIN THE DEFINITION OF WORKS CONTRACT AND NOT INFRASTRUCTURE DEVELOPMENT CONTR ACT. 17. WE HAVE GONE THROUGH THE DISCUSSION MADE BY THE LD. PCIT ON THIS ISSUE AND ALSO CONSIDERED THE ARGUMENTS OF THE LD. DR ON THIS POIN T. THE OBSERVATION OF THE LD. PCIT THAT ONLY IF THE PR OJECT IS TO BE DEVELOPED BY THE ASSESSEE AS PER THE SPECIFICATIONS AND DESIGNS APPROVED BY T HE GOVERNMENT THAT WOULD FALL IN A DEFINITION OF SIMPLE WORKS CONTRACT AND NOT A INFR ASTRUCTURE DEVELOPMENT CONTRACT AS PROVIDED U/S 80IA(4) OF THE ACT, IN OUR VIEW, WOULD DISENTITLE EACH AND EVERY ASSESSEE WHO WOULD CARRY OUT INFRASTRUCTURE DEVELOPMENT PROJECT IN A CONTRACTS WITH A UNION GOVERNMENT OR STATE GOVERNMENT OR LOCAL AUTHORITY. SUCH / STATED PROJECTS ARE TO BE CARRIED OUT AS PER THE TERM OF THE GOVERNMENT. HOW EVER, WHAT DISTINGUISHES AND WORK CONTRACT FROM INFRASTRUCTURE DEVELOPMENT CONTRACT AS PER SECTION 11A OF THE ACT IS THAT WHETHER THE CONTRACT HAS BEEN GRANTED FOR A SPECIFI C WORK OR IT IS A DEVELOPMENT OF A FACILITY AS A WHOLE AND WHETHER DAY TO DAY CONTROL ON THE PROJECT AND ITS MANNER OF DEVELOPMENT IS OF THE GOVERNMENT AUTHORITIES OR OF THE CONTRACTOR. THE COORDINATE LUCKNOW BENCH OF THE TRIBUNAL IN THE CASE OF M/S V IJAY INFRASTRUCTURE LIMITED, LUCKNOW VS ACIT, ITA NO. 254/LKO/2015 & OTHERS, ORDER DATED 30.10.2015 OBSERVED THAT IF THE ASSESSEE'S DUTY IS TO DEVELOP INFRASTRUCTURE WHETHE R IT INVOLVES CONSTRUCTION OF A PARTICULAR ITEM AS AGREED TO IN THE AGREEMENT OR NOT AND THAT THE AGREEMENT IS NOT FOR A SPECIFIC WORK, IT IS FOR DEVELOPMENT OF FACILITY AS A WHOLE, THE MATERIAL REQUIRED IS TO BE BROUGHT IN BY THE ASSESSEE BY STICKING TO THE QUALITY AND QUAN TITY IRRESPECTIVE OF THE COST OF SUCH 15 MATERIAL. THE ASSESSEE UTILIZES ITS FUNDS, ITS EXPE RTISE, ITS EMPLOYEES AND TAKES THE RESPONSIBILITY OF DEVELOPING THE INFRASTRUCTURE FAC ILITY, THE LOSSES SUFFERED IN THE PROCESS OF SUCH DEVELOPMENT WOULD BE THAT OF THE ASSESSEE. THE ASSESSEE HANDS OVER THE DEVELOPED INFRASTRUCTURE FACILITY TO THE GOVERNMENT ON COMPLE TION OF THE DEVELOPMENT AND IF THE ASSESSEE HAS TO UNDERTAKE MAINTENANCE OF SAID INFRA STRUCTURE FOR A PARTICULAR PERIOD AND DURING THE SAID PERIOD, IF ANY DAMAGES ARE OCCURRED , IT SHALL BE THE RESPONSIBILITY OF THE ASSESSEE , THEN SUCH A CONTRACT WOULD FALL WITHIN T HE PURVIEW AND SCOPE OF INFRASTRUCTURE DEVELOPMENT CONTRACT. EVEN ON THE IDENTICAL ISSUE IN RELATION TO THE DEVE LOPMENT OF THE IRRIGATION PROJECT, THE ITAT KOLTKA BENCH OF THE TRIBUNAL IN THE CASE OF DCIT K OLKATA VS M/S SIMPLEX PROJECTS LTD, KOLKATA ITA NO. 169/KOL/2016 ORDER DATED 8.11.2017 HAS OBSERVED THAT IRRIGATION PROJECT IS AS INFRASTRUCTURE FACILITY WITHIN THE SCOPE OF SEC TION 80IA(4) OF THE ACT. THE TRIBUNAL FURTHER RELIED UPON THE DECISION IN THE OWN CASE OF THE AF ORESAID ASSESSEE I.E. SIMPLEX SUBHASH JV AND M/S SOMDATT BUILDERS JV VIDE ITA NO. 1684/ KOL/2011 AND 1685/KOL/2011 DATED 8.6.2013, WHEREIN, IT HAS BEEN OBSERVED THAT IF TH E PROJECT IS A TURNKEY PROJECT INVOLVING THE ACTIVITY OF DEVELOPMENT OF INFRASTRUCTURE FACILITY, IT WILL BE AN ACTIVITY AS PROVIDED U/S 80IA(4) OF THE ACT. THE TRIBUNAL CONSIDERED THAT A PERUSAL OF THE TURNKEY CONTRACT AGREEMENT ENTERED INTO BY THE ASSESSEE WITH THE IRR IGATION DEPARTMENT CLEARLY SHOWED THAT THE CONSTRUCTION OF ALL THE STRUCTURE OF WHOLE OF THE CANAL SYSTEM WAS TO BE AS PER THE APPROVED DESIGN, DRAWINGS OF THE DEPARTMENT ETC. S URVEY IS TO BE DONE AS PER THE INVESTIGATION AND DRAWING CRITERIA OF THE IRRIGATIO N DEPARTMENT. THE ASSESSEE HAS TO PROCURE THE MATERIAL INDEPENDENTLY AND THOSE MATERI ALS ARE TO BE CONFORMED TO THE SPECIFICATIONS PROVIDED. THE ASSESSEE HAS ALSO TO M AKE ARRANGEMENT FOR STORAGE OF THE MATERIALS. THE TRIBUNAL HELD THAT SUCH WORK CARRIED OUT BY THE ASSESSEE WOULD FALL IN THE EXCLUSION PROVIDED TO THE MEANING OF THE WORK GIV EN IN THE EXPLANATION TO SECTION 194C OF THE ACT AND IT WOULD ALSO BE OUT OF THE SCOPE OF EXPLANATION TO SUB SECTION (13) OF SECTION 80IA. THEKOLTAKA BENCH OF THE TRIBUNAL IN THE CASE OF ADHUNIK INFRASTURE (P) LTD VS JCIT HAS ALSO HELD THAT DEDUCTION U/S 80IA(4) CANN OT BE DENIED TO AN ASSESSEE MERELY BECAUSE THE ASSESSEE HAS BEEN PAID BY THE GOVERNMEN T FOR DEVELOPMENT WORK. 18. AFTER CONSIDERING THE OBSERVATIONS AND OBJECTIO NS MADE BY THE LD. PCIT AND IN THE LIGHT OF THE PROPOSITION LAID DOWN IN THE CASE LAWS , AS DISCUSSED ABOVE, , WE FIND THAT NEITHER THE LD. PCIT COULD EVEN POINT OUT HOW THE F ACT AND NATURE OF THE PROJECTS CARRIED OUT DURING THE YEAR UNDER CONSIDERATION WERE DIFFER ENT FROM THE PROJECTS EARLIER TAKEN BY THE ASSESSEE WHICH HAVE ALREADY BEEN HELD TO BE ELI GIBLE FOR DEDUCTION U/S 80IA(4) OF THE ACT BEING INFRASTRUCTURE FACILITY DEVELOPMENT PROJ ECT, NOR THE LD. PCIT COULD POINT OUT FROM THE CLAUSES OF THE AGREEMENT THAT THEY WOULD N OT FALL WITHIN THE DEFINITION OF INFRASTRUCTURE DEVELOPMENT PROJECT AS PROVIDED U/S 80IA(4) OF THE ACT. IN OUR VIEW, THE LD. PCIT HAS EXERCISED HER JURISDICTION U/S 263 OF THE ACT TOTALING BYE- PASSING AND IN CONTRADICTION OF THE FINDINGS GIVEN BY THE TRIBUNAL IN THE OWN CASES OF THE ASSESSEE FOR EARLIER ASSESSMENT YEARS I.E. 2011-12 AND 2012-13 V IDE ORDERS DATED 6.2.2017 & 1.12.2017(SUPRA). FURTHER, IT IS FOUND THAT ALL THE MATERIAL WAS PUT BEFORE THE ASSESSING OFFICER INCLUDING THE COPIES OF THE CONTRACTS. THE ASSESSING OFFICER HAS DULY TAKEN NOTE OF THE NATURE OF CONTRACT ENTERED INTO BY THE ASSESSEE AND HELD THAT THE SAME WERE INFRASTRUCTURE FACILITIES DEVELOPMENT CONTRACTS AND ELIGIBLE FOR DEDUCTION U/S 80IA OF THE ACT. HENCE, IT CANNOT BE SAID THAT THE ORDER PASSE D BY THE ASSESSING OFFICER WAS ERRONEOUS OR PREJUDICIAL TO THE INTEREST OF REVENUE ON THIS ISSUE. 5. THE LD. DR HAS NOT POINTED OUT ANY DISTINGUISHIN G FACT FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. 6. MOREOVER, THE DEDUCTION U/S 80IA OF THE ACT FOR THE RELEVANT PROJECTS I.E. THURAL AND DEHRA HAS ALREADY BEEN ALLOWED IN THE EARLIER YEARS AND THIS YEAR BEING A SUBSEQUENT YEAR, THE FINDINGS ARRIVED FOR THE SAME PROJECT IN EARLIER YEARS WILL MUTATIS- MUTANDIS APPLY TO THESUBSEQUENT ASSESSMENT YEAR ALS O WITH THE CONDITION THAT THE TOTAL NUMBER OF YEARS FOR CLAIMING DEDUCTION WILL BE SUB JECT TO THE OTHER CONDITIONS RELATING TO 16 THE TIME PERIOD OF CLAIMING DEDUCTION AND PERCENTAG E OF THE DEDUCTION AS PROVIDED U/S 80IA OF THE ACT. IN VIEW OF THE ABOVE DISCUSSION, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. 6. THE ANOTHER ISSUE RELATING TO THE DISALLOWANCE OF RS. 81,348/- UNDER SECTION 14A OF THE ACT. IT IS NOTICED THAT THE LD. CIT(A) DECIDED THIS ISSUE BY FOLLOWING THE JUDGMENT OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. LAKHANI MARKETING INC. (272 CTR 265) WHEREIN IT HAS BEEN HELD THAT WHEN THERE IS NO EXEMP T INCOME, NO DISALLOWANCE UNDER SECTION 14A OF THE ACT CAN BE MADE. LD. CIT(A) ALSO FOLLOWED THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF PR INCIPAL CIT VS. OIL INDUSTRY DEVELOPMENT BOARD [2019] REPORTED AT 103 TAXMANN.COM 3 26 . WE THEREFORE IN THE ABSENCE OF ANY CONTRARY DECISION BROUGHT ON RECORD, DO NOT SEE ANY VALID GROUND TO INTERFERE WITH THE VIEW TAKEN BY THE LD. CIT(A). 7. ACCORDINGLY, WE DO NOT SEE ANY MERIT IN THIS APPEAL O F THE DEPARTMENT. 8. IN THE RESULT, APPEAL OF THE DEPARTMENT IS DISMISSED . (ORDER PRONOUNCED ON 23/12/2020) SD/- SD/- .. .., (R.L. NEGI ) ( N.K. SAIN I) $ %&/ JUDICIAL MEMBER ! / VICE PRESIDENT AG DATE: 23/12/2020 (+! ,-.- COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. $ / CIT 4. $ / 01 THE CIT(A) 5. -2 45&456789 DR, ITAT, CHANDIGARH 6. 8:% GUARD FILE