Dy. Commissioner of Income Tax , Circle-2(2), Hyderabad V. Tracks & Towers Infratech Private Limited(Part IX), Hyderabad

ITA 1514/Hyd/2019

AI Insights

The case involves appeals by the revenue against the order of the Learned Commissioner of Income Tax (Appeals)-2, Hyderabad, which allowed the claim of deduction under section 80IA of the Income Tax Act, 1961, by Tracks & Towers Infratech Pvt. Ltd. The company had filed a revised return claiming deductions for the assessment years 2015-16 and 2016-17 following a survey that revealed discrepancies in subcontractor payments and cash transactions. The Assessing Officer (AO) initially disallowed the deductions, citing non-compliance with section 80A(5) and section 80AC, which mandate filing of the return within the due date specified under section 139(1). However, the Tribunal found that the revised return was filed within the permissible time and upheld the CIT(A)'s decision allowing the deduction. The Tribunal also addressed the issue of belated payment of PF and ESI, agreeing with the revenue that such payments not made within the statutory due dates cannot be allowed as deductions.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 122447 (ITAT-HYDERABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2023
• Appeal Filed By: Department
• Order Result: PartlyAllowed
• Bench Allotted: DB-B
• Next Hearing Date: 18-04-2023
• Assessment Year: 2015-2016
• Appeal Filed On: 06-10-2019
• Other Referred Cases: Kamadhenu Builders and Developers vs. ACIT, ACIT vs. M/s. Pre cot Meridian Ltd., DCIT vs. Mackintosh Burn Ltd., Income-Tax Officer vs. MIS. Dirk India Private Ltd., DCIT vs. Delhi MSW Solutions Ltd., Chettinad Lignite Transport Services Pvt Ltd vs. CIT, M/s. Chettinad Lignite Transport Services Pvt Ltd vs. CIT, GMR Infrastructure Ltd. vs. DCIT, Jaya Steel (India) Jodpur vs. ACIT, MCorp Global Pvt. Ltd. vs. CIT, PCI and another vs. Wipro Ltd.
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Depreciation; Additional depreciation; Revised return; TDS
• Section: 132; 139; 143(3); 10AA; 133A; 153A; 80IB; 139(5); 10B; 143(1); 80IA; 80IC; 143(2); 264; 139(1); 139(4); 80IC; 13; 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL Hyderabad ‘B’ Bench, Hyderabad Before Shri Rama Kanta Panda, Accountant Member AND Shri Laliet Kumar, Judicial Member O R D E R Per Shri Rama Kanta Panda, A.M. The above two appeals filed by the revenue are directed against the common order dated 05.07.2019 of the Learned Commissioner of Income Tax (Appeals)-2, Hyderabad relating to AY 2015-16 & 2016-17 respectively. Since, identical grounds have been raised by the revenue in both these appeals, therefore, for the sake of convenience, these two appeals were heard together and are being disposed-of by this common order. ITA Nos.1514 & 1515/Hyd/2019 Assessment Years: 2015-16 & 2016-17 DCIT, Circle-2(2) Room No.513, 5 th Floor Signature Tower Opposite Botanical Garden Kondapur Hyderabad-500 084 Vs. M/s. Tracks & Towers Infratech Private Limited (Part IX) #8-2-293/82/A/J/11 Plot No.206, Road No.76 Jubilee Hills Hyderabad-500 033 PAN : AACCT7497H (Appellant) (Respondent) Assessee by: Shri Vijay Mehta, CA, Shri Avinsh Arora, CA & Shri Mohd Afzal, Advocate Revenue by : Shri Jeevan Lal Lavidiya, CIT-DRR Date of hearing: 19.04.2023 Date of pronouncement: 26.05.2023 2 Tracks & Towers Infratech Pvt.Ltd. (Part IX) ITA No.1514/Hyd/2019 (AY 2015-16) 2. Facts of the case, in brief, are that the assessee is a a Private Limited Company engaged in the business of Civil contractors for State and Central Governments. It filed its return of income u/s. 139(1) on 26.09.2015 declaring total income of Rs. 17,20,27,320/- after claiming deduction u/s. Chapter-VIA to the tune of Rs. 10,00,000/-. Subsequently, a survey action u/s. 133A of the Act was carried out at the business premises of the assessee on 22.02.2016. During the course of survey proceedings, it was observed and found that the assessee company is engaged in inflating its expenditure by artificially inflating the expenses by using the sub-contractors. During the course of such survey the Managing Director of the assessee company Shri Appasani Ravi Kumar admitted the discrepancies found relating to sub- contractor’s payments and cash payments and made the disclosure of Rs. 5 crores for AY 2015-16 and Rs. 10 crores for AY 2016-17. Accordingly, the assessee thereafter filed a revised return on 21.12.2016 declaring gross total income of Rs. 22,30,27,320/- and after claiming deduction of Rs. 12,60,23,062 under Chapter-VIA from the above gross total income declared taxable income of Rs.9,70,04,260/-. 3. The AO during the course of assessment proceedings asked the assessee to give complete reason for filing revised return of income and give a detailed note on claim of Chapter-VIA deduction to the tune of Rs. 12.60 crores along with supporting documents for such claim. 4. The assessee, in response to the same, submitted the following details which has been reproduced by the AO in the body of the assessment order and which reads as under:- 3 Tracks & Towers Infratech Pvt.Ltd. (Part IX) 3. "Please give complete reasons for filing revised return of Income: There was a survey by the investigation wing on 22.02.2016 and at that time the assessee has offered additional income of &.5,00,00,000/- for the Assessment Year 2015-16 and Rs.10,00,00,000/- for the Assessment Year 2016-17 though there was no specific finding to purchase peace the above amounts was considered as income as increase in closing stock in respective assessment years and accordingly the assessee company has filed revised return for the assessment year 2015-16 after claiming the deduction U/S 80IA as the company was developing and maintaining of infrastructure system in rail system as defined in the infrastructure under section 80IA. 4. Please give a detailed note on claim of Chapter VIA deduction to the turn of Rs.12.60 crore along with supporting documents: The assessee company has claimed Rs.12.60 Cr. Deduction under chapter VIA out of which Rs.12.50 Cr. Deduction was claimed in respect of profits and gains from infrastructure development and Rs. 0.10 was claimed in respect of donation to Andhra Pradesh Minister Relief Fund". 5. The AO during the course of assessment proceedings observed that assessee has enhanced its gross total income due to the survey effect to the tune of Rs. 5 crores and thereby assessee has claimed a fresh deduction u/s. 80IA of the Act. The AO referred to the provisions of section 80A(5), 80AC and 139(1) and noted that provisions of section 80AC make it mandatory to file the return of income within the time allowed under sub-section (1) of section 139, in absence of which the assessee will not be entitled for deductions under section 80IA. According to the AO, the assessee cannot claim the deduction under Chapter-VIA unless he furnishes a return of his income for such assessment year on or before the due date specified under sub-section (1) of section 139. In view of the above, he held that the assessee is not eligible for claim of deduction under section 80IA of the I.T.Act. 5.1 Without prejudice to the above, the AO further held that since the assessee is a works contractor and the company executes the contracts only and not a developer, therefore, the assessee is not eligible for claim of deduction under section 80IA. The AO, therefore, disallowed the claim of deduction to the tune 4 Tracks & Towers Infratech Pvt.Ltd. (Part IX) of Rs. 12,60,23,062/- under 80IA of the Act claimed in the revised return and made addition of the same to the total income of the assessee. 6. The AO further made addition of Rs. 2,67,611/- on account of belated payment of employees’ contribution to PF and ESI. Thus, the AO determined the total income of the assessee at Rs. 22,22,94,933/- as against the returned income of Rs. 9,70,04,260/-. 7. Before the ld.CIT(A), the assessee made elaborate arguments and filed certain details based on which the ld.CIT(A) called for a remand report from the AO. After considering the remand report of the AO and rejoinder of the assessee to such remand report the ld.CIT(A) allowed the claim of deduction u/s.80IA of Rs.12,60,23,062/- by observing as under:-. 6. The Decision: The appellant filed the return of income for A.Y. 2015-16 u/s. 139(1) on 26.09.2015 admitting an income of Rs. 17,20,27,320/-. Subsequent to the filing of return, a survey vi] s. 133A was carried out in the case of the appellant on 22.02.2016 and the appellant had disclosed an additional income of Rs. 5,00,00,000/- for the year under consideration. The appellant, there after filed a revised return u/s. 139(5) on 21.12.2016 at an income of Rs. 9,70,04,260/- and claiming a deduction u/ s. 80IA of Rs. 12,60,23,062/-. The income disclosed of Rs. 5,00,00,000/- during the survey was offered in the computation of income as a separate item and the taxable income after the claim of deduction u/s. 80IA is more than the income disclosed during the course of survey. The AO noted that section 80A(5) mandates that the claim under Chapter VIA cannot be allowed, unless the claim has been made in the return of income filed in the relevant assessment year and section 80AC mandates the appellant to file return within the time allowed vi] s. 139(1), then no claim of deduction can be allowed to the appellant. The section 80A(5) and section 80AC are reproduced as under: 80A(5): "Where the assessee fails to make a claim in his return of income for any deductions under section 10A or section 10AA or section 10B or section 10BA or under any provision of this chapter under the heading "C-D Deductions in respect of certain incomes”, no deductions shall be allowed to him there under”. 5 Tracks & Towers Infratech Pvt.Ltd. (Part IX) 80AC: “Where in computing the total income of an assessee of the previous year relevant to the assessment year commencing on the 1 st day of April 2006 or any subsequent assessment year, any deductions is admissible under section 80-lA or section 80-lAB or Section 80-IE or Section 80-ic or Section 80-ID or section 80- IE , no such deduction shall be allowed to him unless he furnishes a return of his income for such assessment year on or before the due date specified under sub-section (1) of section 139." The above issue has been dealt by the ITAT Bench at Mumbai in the case of Kamadhenu Builders and Developers in ITA No. 7010/MUM/2010 vide order dated 27.01.2016 has allowed the same. In ITA No.1214/Mds/2012 for A.Y. 2008-09, the ITAT Bench at Chennai in the case of ACIT Vs. M/s. Pre cot Meridian Ltd. vide order dated 29.04.2013 has observed as under: "A plain reading of section 80AC makes it clear that from the assessment year 2006-07, deduction claimed under section 80IA / 80-IB / 80-IC / 80-ID / 80-IE shall not be allowed unless the assessee furnishes a return on or before due date specified under sub-section (1) of section 139. Nowhere in the section it was provided that unless the assessee makes a claim in its return filed under section 139(1), the said claim is allowable. The section does not speak of a claim to be made in the return filed under section 139(1). The section speaks of filing a return within the time specified under section 139(1) and nothing else. Here the assessee filed a return under section 139(1) within due date specified but no claim was made under section 80IA in such return. However, a revised return was filed under section 139(5) on 30.3.2010 claiming deduction under section 80IA at Rs. 37,27,928/ -. The section says unless the assessee files a return under section 139(1) within the due date, deduction under section 80IA / 80-IE / 80-IC / 80-ID / 80-IE shall not be allowed and at the same time section 139(5) provides for filing a revised return, when the assessee discovers any omission or any wrong statement made in the return already filed under sub- section (1) of section 139 or return filed under sub- section (1) of section 142. This revised return can be filed at any time before expiry of one year from the end of the relevant assessment year or before the completion of assessment, whichever is earlier. 10. In the case of the assessee, it had filed a revised return on 30.3.2010 which is before expiry of one year from the relevant assessment year and therefore the return filed is a valid return as per the provisions section 139(5), as the original return was filed under section 139(1) within due date prescribed. In fact the assessee complied with the provisions of section 80AC of the Act by filing its original return on 29.9.2008 which is within the due date specified under section 139(1) of the Act. In view of our above observations, the submission of the Departmental Representative that since the assessee had not made any claim in its original return filed under section 139(1), no deduction is allowable under section 80IA of the Act, in view of the provisions of section BOAC, has no force. In the circumstances, we sustain the order of the Commissioner of Income Tax (Appeals) in allowing the claim of the assessee under section 80IA of the Act." The ITAT Kolkata in the case of Dcit, Cir-4, Kolkata vs Mackintosh Burn Ltd" Kolkata on 15 March, 2017 in I.T.A No.790/Kol/2014 for Assessment Year: 2006-07 adjudicated as under: 11. In the instant case before us, the assessee had filed the original return of income on 29.11.2006 which was before the due date specified u/s. 139(1) of the Act i.e. 30.11.2006. Thereafter, the assessee had filed revised return on 6 Tracks & Towers Infratech Pvt.Ltd. (Part IX) 28.03.2008 wherein it claimed deduction u/ s. 80IA of the Act. Since the assessee had filed its return of income before the due date specified u/ s. 139(1) of the Act for the relevant year, the question of denying the benefit u/ s. 80IA of the Act does not arise. Hence, the decision of the Hon'ble Special Bench cannot be made applicable to the facts of the instant case before us. On the contrary, we find that the said decision is to be interpreted in favour of the assessee since the assessee had filed its return before the due date and as such, is eligible for deduction. It is not the case that the assessee before the Hon'ble Special bench had filed its original return before the due date of filing the return for the relevant year and claimed deduction u/ s. 10A of the Act in its revised return. The case before the Hon'ble Special Bench was that the assessee had filed the return itself after the due date of filing the return and hence, the Hon'ble Special bench decided the issue against the assessee, which is not the case of the assessee before us. We find that the Ld. CIT(A) had made the very same observation after interpreting the section 80AC of the Act [similar to proviso to sec. 10A(lA)} i.e. claim of section 80IA shall be allowed if return is furnished before the due date of filing the return and held that the assessee is squarely entitled for deduction u/ s. 80IA of the Act as all the conditions therein were duly fulfilled by the assessee. The Ld. DR did not refute any of the findings of the Ld. CIT(A) by producing any cogent material or contrary evidence and the submissions made by the Ld. AR before us. In view of our aforesaid facts and findings and respectfully following the judicial precedents relied upon hereinabove, we do not find any infirmity in the order of the Ld. CIT(A) and the same is hereby upheld. Appeal of revenue is dismissed." The circumstance of the case is identical to the case of the appellant. The ITAT Pune Bench in the case of Income-Tax Officer vs MIS. Dirk India Private Ltd., on 24 October, 2018 observed as under: "2. The issue raised in the present appeal relates to allowability of deduction u/s.80IA(4) of the Income Tax Act, 1961 (hereinafter referred to as 'the Act; which was not originally claimed in the return of income filed u/». 139(1) of the Act. 3. Briefly stated relevant facts include, the assessee is a company engaged in the business of manufacturing of Pozzocrete from Fly-Ash. Assessee filed the return of income on 30.09.2010 declaring total income at Rs.5,26,13,543/-. During scrutiny assessment proceedings u/ s.143(3) of the Act, the Assessing Officer assessed total income of assessee at Rs. 6,57,30, 020/-. The Assessing Officer denied the claim of assessee u/s. 80IA(4) of the Act by observing that the assessee is not an infrastructure facility but only a manufacturer of a specialized product Pozzocrete for which fly ash. The Assessing Officer also relied on the decision of Hon'ble Supreme Court of India in the case of Goetze (India) Ltd. vs. CIT, reported as 284 ITR 323 (SC) and rejected the assessee's claim of deduction u/ s.80IA(4) of the Act. 4. Aggrieved by the assessment order, assessee filed appeal before the CIT(A). During First Appellate proceedings, assessee raised the said issue of allowability of deduction u/s. 80IA (4) of the Act as the assessee is engaged in the infrastructural activities. The CIT(A), Nashik examined the issue and considered the assessee to be eligible for claiming deduction u/s.80IA(4) of the Act and allowed the appeal of the assessee as per discussion given in Para 4.8 of the CIT(A)'s order. 5. Aggrieved by the order of CIT(A), the Revenue is in appeal before the Tribunal by raising four grounds. The ground Nos. 2, 3 and 4 are general in nature and consequential and hence, require no adjudication. Accordingly, ground Nos. 2, 3 7 Tracks & Towers Infratech Pvt.Ltd. (Part IX) and 4 are dismissed. Now, the ground which left for adjudication is ground No. 1 and the same reads as under: "1. Whether on the facts and in the circumstances of the case, the Ld. CIT(A)-l, Nashik was justified in allowing the claim of Section 80IA(4) of the Income Tax Act, 1961 irrespective of the fact that assessee has not claimed deduction u/ s. 80IA (4) in the return of income under the ITA No. 869/PUN/2016 A. Y.2010-11 provisions of section 139(1) of the 1.T.Act and has also not revised the computation of total income." From the above, it is evident that the solitary objection of the Revenue relates to allowability of claim of deduction u/ s.80IA(4) of the Act when the assessee failed to claim the same in the original return of income filed u/ s.139 of the Act. The assessee has made claim in the revised return after computation of total income. The CIT(A) examined this issue and relied on the decision of Hon'ble Jurisdictional High Court in the case of CIT Vs. M/ s. Pruthvi brokers and Shareholders Pvt. Ltd., reported as 349 ITR 336 and allowed the appeal of the assessee as per discussion given in para 4.8 of the order of CIT(A). 6. The Ld. DR for the Revenue relied heavily on the order of Assessing Officer and argument/ conclusion made by the Assessing Officer in the assessment order. 7. On the other hand, Ld. AR for the assessee submitted that CIT(A) is an Appellate Authority and is justified in following the ratio laid down by the Hon'ble Jurisdictional High Court in the case of CIT Vs. Pruthvi brokers and Shareholders Pvt. Ltd. (supra.). He further submitted that CIT(A) has rightly adjudicated this issue relating to allowability of deduction u/s.80IA(4) of the Act. The Ld. AR for the assessee also mentioned that Revenue has no objection in treating the manufacturing activities of the assessee as infrastructural activities as defined u/s. 80IA(4) of the Act. Bringing our attention to Para 4.8 of the order of CIT(A), Ld. AR for the assessee prayed for confirming the order of CIT(A) without any amendment. 8. We have heard both the parties on the solitary issue and the question that arises before us relates to whether the CIT(A) is justified in entertaining ITA No. 869/PUN/2016 A. Y.201 0-11 fresh claim of the assessee relating to allowability of claim of deduction ii/ s. 80IA(4) of the Act. In this regard, in the light of the judgment of Hon'ble Jurisdictional High Court in the case of CIT Vs. Mis. Pruthvi brokers and Shareholders Pvt. Ltd.(supra.), we are of the considered opinion that CIT(A), being Appellate Authority, is right in assuming jurisdiction in entertaining the claim of the assessee and allowing the claim of deduction uls.80IA(4) of the Act. We peruse the contents of Para 4.8 of the said appellate order. For the sake of completeness, the same are extracted as under: "4.8 Further, the claim of section 80IA though through a letter amidst AO is admissible before me in view of jurisdictional High Court decision in the case Pruthvi brokers and Shareholders Pvt. Ltd.(3491TR 336) wherein it is held interalia as under: "It is well settled that an assessee is entitled to raise not merely additional legal submissions before the appellate authorities, but is also entitled to raise additional claims before them. The appellate authorities have the discretion whether or not to permit such additional claims to be raised. It cannot , however, be said that they have not jurisdiction to consider the same. That they may choose not to exercise their jurisdiction in a given case is another matter. 8 Tracks & Towers Infratech Pvt.Ltd. (Part IX) The exercise of discretion is entirely different from the existence of jurisdiction. Goetze was confined to a case where the claim was made only before the AO and not before the appellate authorities . The jurisdiction of the appellate authorities to entertain such a claim has not been negated by the Supreme Court in this judgment On facts, there was nothing to show that the claim entertained by the CIT(A)/ ITAT was improper." (Jai Parabolic 306 ITR 42 (Del.) referred) In the instant case the assessee has made claim of section 80IA and filed all details with AO. The AO has examined the same and then denied it stating that the fly ash is one of the ingredients in manufacture of Pozzocrete. This view of AO is not correct. On examination of composition of Pozzocrete it is observed that fly ash is the major component. Pozzocrete is processed fly ash for eco friendly, more durable and performance improved concrete. It is obtained by processing fly ash product as a by-product at coal-fired electricity generating power stations. The word solid waste management is not defined in income tax. As per Glossary of environment statistics Solid waste management refers to the supervised handling of waste material from generation at the source through the recovery processes to disposal. In the instant case the assessee procures the fly ash from MSEB. The fly ash so procured is processed and Pozzocrete. Pozzocrete has a successful history 'Of use in concrete around the world as Pozzolanic material Therefore assessee is handling the waste material generated from coal fired electricity generating power stations to its final disposal. This makes the assessee qualify as solid waste management company. In view of the aforesaid discussion and facts of the case the assessee being solid waste management company as envisaged under section 80IA(4) explanation c, in my opinion, as it qualifies the condition mentioned under section 80IA(4), it is entitled for deduction under section 80IA of the Act. The AO is directed to allow the claim of section 80IA after proper verification." Considering the above facts and the settled position of law, we are of the opinion that the order of CIT'(A) is fair and reasonable and it does not call for any interference. As such, there is no merit in the objection of Revenue in the ground for treating the manufacturing activities of pozzocrete from Fly-Ash as infrastructural activities within the scope of the provisions of section 80IA(4) of the Act. Accordingly, ground No. 1 raised in appeal by the Revenue is dismissed. 9. In the result, appeal of the Revenue is dismissed.» The above case upholds the jurisdiction of the first appellate authority to entertain the claim u/s. 80lA made for the first time. However, in view of the judgement cited by the appellant and the judgement reproduced above of ITAT Bench Chennai, it is very clear that the allowance of a claim is maintained, as long as the return has been file4 within the time provided u/s. 139(1) which has been in the case of the appellant. The appellant had filed the original return on 26.09.2015 which was within time, therefore the claim filed in the revised return is maintainable as per law and has to be entertained by the AO with regard to the computation of the income. Therefore, the appellant is held to be entitled to file a claim u/ s. 80IA as per law and the same is not hit by the provisions of section 80A(5) r.w.s. 80AC. The AO while disallowing the claim also observed that the appellant is a works contractor and the company executes contract only and is not a developer for the 23 projects on which deduction u/s. 80IA has been claimed. In view of the same an opportunity was given to the AO to explain the same, as the AO had made a single line observation to disallow the claim u/s. 80IA in para 7.06 to which the AO replied as under: 9 Tracks & Towers Infratech Pvt.Ltd. (Part IX) "The report of the assessing officer with regard to the observation made that the assessee is not eligible for claim of deduction u/ s 80IA of the Act is as under: "To qualify as the development work, the assessee has to develop the project right from the stage of planning to operation of the project and also maintain the project during the liability period. The assessee has to arrange men and machinery for executing the project and also arrange materials design and execute the work with its own resources. The assessee shall undertake the risk of all works executed until a completion certificate for works has been issued. The assessee has to ensure all works at sight including third party insurance to persons and damage to property. The assessee shall be liable to indemnify the principle against damage to persons and properties. On perusal of the contracts entered into by the assessee with various clients like Rail Vikas Nigam Limited, East Central Railway, GMR Chattisgarh Energy Limited, South East Central Railway etc, it is observed from terms and conditions of contract along with its scope of work indicate that the nature of works undertaken by the assessee is in the nature of developing infrastructure facility which would qualify for deduction u/ s 80IA of the Act. However, on the contrary, as seen from the TDS details, it seems to be that the assessee is a subcontractor handling the works on contractual agreement and it is known that deduction u/ s 80IA is not eligible for contractors. Therefore, the assessee has filed revised return and claimed deduction u/s 80IA as an afterthought. It is confirmed from the unsecured loans that all are mobilization advances and i.e. these are all work contract receipts. Works contractor is not eligible for deduction u/ s 80IA. On verification of the Tax Audit report of the statutory auditor, it is observed that the nature of the business of the assessee is mentioned at Sl.No: 10(a) as "Civil Contractor". In the P&L account, under 'Revenue from Operations' - it clearly shows that the assessee is receiving "works contract receipts". Hence, the assessee is not eligible for deduction u/ s 80IA." In view of the above, it is submitted that the assessee is not eligible for deduction u/ s 80IA. Submitted for kind perusal of the Ld. CIT(A) with a request to decide the appeal on merits." The AO effectively stated that the appellant was a works contractor. It is seen that there are 23 projects on which the appellant has claimed deduction u/s. 80IA. The details and the forms for the same were filed by the appellant with the AO along with various details, the same is summarized as under:- 10 Tracks & Towers Infratech Pvt.Ltd. (Part IX) 11 Tracks & Towers Infratech Pvt.Ltd. (Part IX) 12 Tracks & Towers Infratech Pvt.Ltd. (Part IX) From the above table it can be seen that on the 23 projects for which the claim has been filed by the appellant, continued also in A.Y. 2017-18 which the AO had examined and out of these projects the projects no. 1 to 9, 11 to 13, 14, 16 and 18 have been examined and allowed deduction u/s. 80IA by the AO itself. Therefore, there is no dispute regarding the claim of the appellant with regard to the above projects any more. The projects mentioned in a table for A.Y. 2015-16 in the first table are categorized in two parts, the ones which are directly given by the Government and others which are non directly from the Government. The Section 80IA(4) reads as under: 80-IA (4) "(4) This section applies to- (i) any enterprise carrying on the business [of (i) developing or (ii) operating and maintaining or (iii) developing, operating and maintaining] any infrastructure facility which fulfils all the following conditions) namely:- (a) it is owned by a company registered in India or by a consortium of such companies [or by an authority or a board or a corporation or any other body established or constituted under any Central or State Act;] [(b)it has entered into an agreement with the Central Government or a State Government or a local authority or any other statutory body for (i) developing or (ii} operating and maintaining or (iii) developing, operating and maintaining a new infrastructure facility;] (c) it has started or starts operating and maintaining the infrastructure facility on or after the 1st day of April, 1995: As can be seen that all the projects have commenced after 1 st day of April, 1995 and as per the clause (b) reproduced above, the entity has to have an agreement with the Central Government, State Government or any other Statutory Body for the development of infrastructure. In the present case the 13 Tracks & Towers Infratech Pvt.Ltd. (Part IX) Rail Vikas Nigam Ltd., East Central Railway(EC Railway), RAUS, South East Central Railway(SECR), RITES Limited, ROB and Office of the Executive Engineer Roads and Building Division are the bodies which are envisaged under the sub clause (b) as stated above. Out of the above 13 projects during the year, the 12 projects were common for A. Y. 2017-18 and therefore does not need further adjudication, the project itemized at S1. No. 10 being the Sarni Project given by RITES Limited is also having the same work profile as allowed by the AO in the projects considered in the other 12 projects. The appellant in the submission dated 02.07.2019 has very clearly brought out that the Sarni Project of RITES was of the installation of Rail transport system as per the work order given by POA of RITES Ltd (Government Agency). The Rail system is an infrastructural facility as provided in section 80IA(4) and also the conditions of commissioning and maintenance of Rail Infra facility has submitted by the appellant. Therefore this project is in tune with the other projects on which deduction u/s. 80IA has been allowed by the AO in A.Y.2017-18 and therefore the profit of above projects falls within the purview of eligibility of deduction u/s. 80IA. Therefore there is no question of disallowance of the claim with regard to the projects given by the Government and the AO's view in the remand report does not hold any water, Thus the appellant is eligible for claim u/s. 80IA on these 13 projects. As regards to the balance 10 projects, it is seen that the projects at 81. No. 14, 16 and 18 are also continuing in A.Y. 2017-18 for which the deduction u/s.80IA has been allowed or no adverse inference has been drawn to the ineligibility of the projects. However, with regard to the other 6 entities, the appellant has submitted the agreement of the party who gave the contract to the appellant with the Railways. The initial part of the agreement is brought out for ready reference for which the AO has allowed the deduction to the appellant in A.Y. 2017-18 in the case of GMR Chattisgarh, Lalitapur Power Generation Company Ltd., as under: 14. GMR Chattisgarh PRIVATE SIDING AGREEMENT MEMORANDUM OF AGREEMENT made this so- Day of June, 2016 BETWEEN THE PRESIDENT OF INDIA acting through the SOUTH EAST CANTRAL Railway Administration (herein after called I "the Railway Administration) of the one part and Director, GMR CHHA TTISGARH ENERGY LIMITED, Village - RAIKHEDA, Block TILDA, Distt. - Raipur (C.G.) 493225(here in after called the Applicant) of the OTHER PART. WHEREAS THE Applicant is desirous of having a Private siding laid by the Railway Administration at Raipur Division from Tilda station yard of the South East Central Railway taking off from 791/ 11N from' Up Loop Line of Tilda station, between Tilda station and Baikunth Station as shown in red and green on the plan bearing CE's No. {TR/R/TLD/PS/888/12(SH-1/5)ALT-1,2}, (L-SEC) hereto annexed for the purpose of carrying on the Applicant's business in the Applicant's premises situated at Village: -Raikheda: Block-Tilda, District Raipur {C.G} and WHEREAS the Railway Administration is willing to lay the said siding for the said Applicant upon and subject to the terms and conditions hereinafter set forth. 14 Tracks & Towers Infratech Pvt.Ltd. (Part IX) 16. Lalitapur Power Generation Company Ltd NORTH CENTRAL RAILWAY PRIVATE SIDING AGREEMENT MEMORANDUM OF AGREEMENT made this 2nd Day of February, 20178etween the President of India, acting through the Senior Divisional Commercial Manager, North Central Railway Jhansi (hereinafter called "The Railway Administration") of the one part and Lalitpur Power Generation Company Limited (hereinafter called "The Applicant") of the other part. WHEREAS the Applicant is desirous of having a private siding laid by the Railway Administration at Lalitpur Power Generation Company Limited from the Udaipura station yard of the North Central Railway taking off from Kilometer No 1069.710 between Birarl station and Tikamgarh station of the North Central Railway as shown in red and green on the plan bearing CE's No. NCRIHQ. Drawing No. 245171 JHS hereto annexed for the purpose of carrying on the Applicant's business to the Applicant's premises situated at Lalitpur Power Generation Company Limited District Lalitpur. AND WHEREAS the Railway Administration is willing to lay the said . siding for the said applicant upon and subject to the terms and condition hereinafter set forth. In the above cases, the AO has allowed deduction u/s. 80IA as the master agreement was with the Government entity. The Hon’ble Madras High Court in the case of M/s. Chettinad Lignite Transport Services PvtLtd. In Tax case Appeal No.741, 1266 of 2009 and 162 of 2015 vide order dated 06.03.2009 have adjudicated on the identical issue of a case wherein that appellant was a sub-contractor and not entered into the contract directly with the Central Government or State Government or Local Authority as envisaged u/s. 80IA(4). The Hon'ble High Court noted that the principle contractor had entered into the agreement with the entities as envisaged in section 80IA(4) and that appellant in the case law was a subcontractor. Just like the appellant, Chettinad Lignite Transport Services Pvt. Ltd. had entered into a contract M/s. ST - CMS Electric Company Pvt. Ltd. for undertaking the work of development of railway sidings and operating and maintaining the same. The appellant in the present case is involved in the development of the railway siding. It would be very important to note that the Railways effectively own all the Rail lines in the territorial jurisdiction of India whether it is owned and made by the Indian Government or Indian Railways or it is developed by a Private party, the relevant OM in this regard is as under: GOVERNMENT OF INDIA MINISTRY OF RAILWAYS (RAILWAY BOARD) No. 96/TT-I/10/ACC/P/NR/36 New Delhi dt. 23.10.97 To, The General Managers, All Indian Railways & others. 15 Tracks & Towers Infratech Pvt.Ltd. (Part IX) Sub:- Policy regarding Development of goods shed/sidings by private investment in Railway Premises **** "As a market strategy aimed at retaining and enhancing Railway's business interest, Board have decided that rail users may be allowed to invest in the development of goods shed / sidings facilities subject to the following conditions 1. Railway will allow investment by private parties in development of goods shed / sidings. Railway would, however, reserve the right to close the goods shed / siding if the same becomes financially or operationally unsustainable at some stage by giving a notice of 90 days. 2. Railway will allow investment by private parties at stations as per Railway's operational convenience. On receipt of an application from the concerned party, the decision on the development of these facilities. will be taken personally by the General Manager of the Railway in consultation with FA & CAO. 3. Before approval of any such proposal of investment is conveyed, the railway may ensure that there is little or no likelihood of the area / land being required for any project / requirement of the Railways. 4. The facilities so created would be used not only by the parties who have financed them but also by others, and assets so created would belong to the Indian Railways and would be maintained and used as any other Railway assets with absolute authority. The investor(s) would not be eligible for any return / concession in lieu of such use of these assets by the Railways or other rail users. The investor(s) will also not qualify for any preferential treatment in the matter of utilisation of these assets. 5. Land may be licensed as per extant rules for construction of temporary storage sheds to investing parties subject to the stipulation that land would be licensed only when goods are to be transported by rail. 6. The facility (goods shed / siding) and all its equipment’s and appurtenances will become the property of the railway Administration and the investor(s) will have no claim to these assets. Investment in such assets will not entitle the investor(s) to any rights whatsoever with regarding to the Railway land on which they are created. 7. All developments for the proposed facility will be as per approved Railway designs, and constructed to approved Railway standards and specifications. Estimates for construction and development of the facilities to these specifications will be prepared, and will include all departmental and other charges as per Codal provisions. The investor(s) will be required to deposit the full cost of construction so calculated with the Railway Administration in advance before commencement of the work. 8. For maintenance and operation of these assets, creation of additional staff shall be need-based. 9. The proposed goods / shed / siding should not in any way hamper or obstruct the existing users of rail facilities at the concerned station. 16 Tracks & Towers Infratech Pvt.Ltd. (Part IX) 10. Freight charges, demurrage charges and placement / siding charges will be leviable as per the extant rules. The above very clearly brings out that all the Railway infrastructure even if constructed by the private party becomes the property of Indian Railways and the Government of India by default and any development 'with regard to the Railway Infrastructure cannot be done without the approval of the Indian Railways. Thus by default all the development of infrastructure has to have an explicit approval of the Indian Railways as per the above OM. Coming back to the decision of the Hon'ble High Court, in the case of M/s Chettinad Lignite Corporation wherein the sub-contractor was in the development of Railway sidings and its operation and maintenance held that there is no need for a direct agreement in the case of Railway sidings and therefore that appellant was eligible for deduction u/s. 80IA(4). The relevant paras 8 to 9 are as under: "8. From a reading of the aforesaid Provisos to Section 8 OIA (4), it is clear that the Legislature intended to extend the said benefit under Section 80IA of the Act to an enterprise involved in (i) developing or; (ii) operating and maintaining or; (iii) developing, operating and maintaining any infrastructure facility. The term "infrastructure facility" has been defined in the Explanation and the same includes a toll road, a bridge or a rail system, a highway project, etc. These are, obviously, big infrastructure facilities for which the enterprise in question should enter into a contract with the Central Government or State Government or Local Authority. However, the Proviso intends to extend the benefit of the said deduction under Section 80IA of the Act even to a transferee or a contractor who is approved and recognized by the concerned authority and undertakes the work of the said development of infrastructure facility or only operating or maintaining the same. The Proviso to subsection (4) stipulates that subject to the fulfillment of conditions, the transferee will be entitled to the said benefit, as if the transfer in question had not taken place. It has been found by the Assessing Authority himself, in the present case, that the present Assessee M/s. Chettinad Lignite Transport Services Private Limited under an Agreement dated 16.04.2002, eaptioned as Lignite Transport System with Mls.ST-CMS Electric Company Private Limited, had undertaken the work of developing the said railway sidings and was operating and maintaining the same. The only ground on which, the Assessing Authority denied the said benefit was that the Assessee himself did not enter into any such contract with the Railways or with the Central Government. 9. The learned Tribunal, however, in our opinion, rightly applied the Proviso to Section 80IA(4) of the Act and held that since the Assessee was recognised as contractor for these railway sidings, which undoubtedly fell under the definition of "infrastructure facility", it was entitled to the said benefit under Section BOIA of the Act. The grounds on which the Assessing Authority denied the said benefit to the Assessee ignoring the effect of Provisos to Section 80IA(4), therefore, could not be sustained. The learned Tribunal, in our opinion, has rightly held that the Proviso does not require that there should be a direct agreement between the transferee enterprise and the specified authority for availing the benefit under Section 80IA of the Act. There is no dispute before us that the Assessee was duly recognized as transferee or assignee of the principal contractor M/s. ST.CMS Company 17 Tracks & Towers Infratech Pvt.Ltd. (Part IX) Private Limited and was duly so recognised by the Railways to operate and maintain the said railway sidings at Vadalur and Uthangalmangalam Railway Stations. The findings of fact with regard to the said position recorded by the learned Tribunal are, therefore, unassailable and that clearly attracted the first Proviso to Section 80IA(4) of the Act." As regards the projects at Point no. 15, 17, 19, 20, 22 and 23, the master agreement with the Railways is brought out as under as per the first page of the agreement. 15. KSK Mahanadi Power Company Ltd. PRIVATE SIDING AGREEMENT "MEMORANDUM OF AGREEMENT made this io» day-of October 2013 BETWEEN THE PRESIDENT OF INDIA acting through the SOUTH EAST CENTRAL Railway Administration (herein after called « The Railway Administration) of the one part and KSK Mahanadi Power Company limited / Raigarh Champa Rail Infrastructure Limited (hereinafter called the applicant)* of the OTHER. PART. WHEREAS THE Applicant is desirous of having a Private siding laid by the Railway Administration at Akaltara from the Akaltara exchange yard of the South East Central Railway taking off from Kilometer No. 1379. a M between Akaltara Station and Alcaltara exchange yard of SOTH EAST CENTRAL RAILWAY as shown in red and green on the plan bearing CE's No. TR/BSP/AKT/PS/692-1/11 (SH-4/5) hereto annexed for the purpose of carrying on the Applicant's business in the Applicant's premises situated at Near Nariyara Village, Akaltara Telisil, District - Janjqir Champa AND WHEREAS the Railway Administration is willing to lay the said siding for the said Applicant upon and subject to the terms and conditions hereinafter set forth. " 17 Hindalco Mahan at Bargawan WEST CENTRAL RAILWAY PRIVATE SIDING AGREEMENT MEMORANDUM OP AGREEMENT made this 25th day of March 2014 BETWEEN THE PRESIDENT OF INDIA acting through the West Central Railway Administration (hereinafter called "the Railway Administration") of the one part and Mis HINDALCO INDSTRIES LIMITED(Mahan Aluminum), PO: Bargawan, Dist. Singrauli, M.P. (hereinafter called the appellant)* of the OTHER PART WHEREAS THE applicant it desirous of having a private siding laid by the Railway Administration at Bargawan from the Bargawan station yard of the West Central Railway taking off GONDWALI station of the West Central Railway as shown in red and green on the plan bearing CE's Dwg.No. GM/ WI WCR/ JBP/ 0553 hereto annexed for the purpose of carrying on the Apllicant's business in the applicant's premises situated at Bargawan District: Singraluli(M.P) AND WHEREAS the Railway Administration is willing to lay the said siding for the said Applicant upon and subject to the terms and conditions hereinafter set forth. NOW, THEREFORE, This Agreement witnesses as follows: 18 Tracks & Towers Infratech Pvt.Ltd. (Part IX) Interpretation: in these presents, unless the context otherwise requires, the following words and expressions have the meaning and shall be interpreted as specified, namely. 19 Majahuli Madhya Pradesh Jaypee Minerals Limited WEST CENTRAL RAILWAY PRIVATE SIDING AGREEMENT MEMORANDUM OP AGREEMENT made this 31st day of March 2014 BETWEEN THE PRESIDENT OF INDIA acting through the WEST CENTRAL Railway Administration (hereinafter called "the Railway Administration") of the one part and Mis MADHYA PRADESH JAYPEE MINERALS LTD, MAJHOLI POST: BANDHA THE: DEOSAR, (HEREINAFTER CALLED THE APPLICANT OTHER PART WHEREAS THE applicant it desirous of having a private siding laid by the Railway Administration at ...............from the MAJHOLI station yard of the West Central Railway taking off from Kilometer 1314.26 between Deoragram Station and Bargawan Station of the WEST CENTRAL Railway as shown in red and green on the plan bearing CE's .No. GM/WIWCR/JBP/0368 & 0369 hereto annexed for the purpose of carrying on the Applicant's business in the applicant's premises stationed at MAJHOLI District Sinqrauli (MP). AND WHEREAS the Railway Administration is willing to lay the said siding for the said Applicant upon and subject to the terms and conditions hereinafter set forth. NOW, THEREFORE, This Agreement witnesses as follows: 20,22 and 23 Nigire Project Jay Prakash Power Ventures ( The appellant has had 3 separate sites with respect to this master agreement) WEST CENTRAL RAILWAY PRIVATE SIDING AGREEMENT MEMORANDUM OP AGREEMENT made this 31 st day of March 2014 BETWEEN THE PRESIDENT OF INDIA acting through the WEST CENTRAL Railway Administration (hereinafter called "the Railway Administration") of the one part and M/ S JAI PRAKASH POWER VENTURES LTD(JPVL}, JAYPEE NIGRIESPER THERMAL POWER PROJECT NIGRIE TECH: DARAI, DIST: Singrauli (MP) WHEREAS THE applicant it desirous of having a private siding laid by the Railway Administration at......... from the NIWAS ROAD station yard of the West Central Railway taking off from Kilometer 1256.750 between SHANKAR PURBHADORA and BHARSENDI Station of the WEST CENTRAL Railway as shown in red and green on the plan bearing CE's. No. GM/W/WCR/JBP/0523, 373 & 374 hereto annexed for the purpose of carrying on the Applicant's business in the applicant's premises stationed at NIGRIE District Singrauli (MP). AND WHEREAS the Railway Administration is willing to lay the said siding for the said Applicant upon and subject to the terms and conditions hereinafter set forth. NOW, THEREFORE, This Agreement witnesses as follows: 19 Tracks & Towers Infratech Pvt.Ltd. (Part IX) The projects at Point no.15, 17, 19,20,22 and 23 thus are out of the master agreement with Railways i.e the Government and tune with the agreements and are in the same spirit of the project at point no. 14 and 16 which has been allowed by the AO and the first page of master agreement with respect to these have been already reproduced above. Therefore the projects qualify for the deduction u/s. 80IA(4) in view of the Madras High Court judgment as already discussed above. Further, as regards the projects at Point No.15,17,19,20, 22 and 23 the appellant in the submission dated 02.07.2019 reproduced above has brought out the comparison between the works which have been allowed by the AO in AY 2017-18 as eligible for deduction u/s. 80IA The chart is reproduced as under:- 20 Tracks & Towers Infratech Pvt.Ltd. (Part IX) From the above it is clear that the works carried out for the above projects are also eligible for deduction u/s. 80IA and they have the clauses of commissioning and maintenance along with development. In the present case also, the appellant is performing the same activity and developing infrastructural facility in the form of Railway system and is a sub- contractor, as considered in the judgment of the Hon'ble Madras High Court to be held eligible for deduction u/ s. 80IA(4) and with the conjunct reading of the OM dated 23.10.1997 of the Government of India, the appellant is eligible for deduction u/s. 80IA(4). Thus, the appellant would be held eligible for development of Railway sidings or other work description as discussed above for the purpose of section 80IA(4) 21 Tracks & Towers Infratech Pvt.Ltd. (Part IX) and the AO has allowed the same to the appellant during the Course of allowing the claim for A.Y. 2017-18 The appellant has not submitted the details for the project of RAWAN Ultra Tech Cement and the deduction u/s. 80IA to the extent of Rs. 1,51,621/- is disallowed. To sum up the appellant is allowed a deduction u/s. 80IA of Rs. 12,48,71,441/- In view of the same the ground no. 2 is allowed, ground no. 3 and the additional ground(i) is partly allowed. 8. So far as the disallowance of Rs. 2,67,641/- by the AO on account of belated payment of PF and ESI is concerned, the ld.CIT(A) directed the AO to delete the addition if the amounts are paid before the due date filing of return of income. 9. Aggrieved with such order of the Ld.CIT(A), the revenue is in appeal before the Tribunal by raising the following grounds of appeal. i. “Whether on the facts and circumstances of the case the ld.CIT(A) is correct in allowing the claim of the assessee despite the assessee failing to comply with provisions u/s. 80A(5) r.w.s. 80AC and claim u/s 80IA was made only in the revised return filed in consequence to survey. ii. "Whether on the facts and circumstances of the case the Ld CIT(A) should have considered the fact that it is only on after thought to claim deduction u/s 80lA consequent to survey. " iii. "Whether on the facts and circumstances of the case the CIT(A) erred in allowing the claim u/s 80lA where the additional undisclosed income offered during the survey proceeding is not the income earned from the eligible business of the assessee." iv. "Whether on the facts and circumstances of the case the Ld. CIT(A) also erred in allowing the claim of Rs. 12,50,23,062/- u/s 80IA as against the income offered of only 5,00,00,00/- in Survey which is nothing but undisclosed income as confirmed by the AR of the assessee." v. "Whether on the facts and circumstances of the case the CIT(A) is correct in not taking into account the Auditors report in Form 10CCB dt. 21.12.2016, prepared after survey, wherein the Chartered Accountant certified the eligible deduction u/s 80IA(4) at Rs. 32,586/- after taking into account the gross sales of Rs. 239,62,85,818/-" 22 Tracks & Towers Infratech Pvt.Ltd. (Part IX) vi. "Whether on the facts and circumstances of the case, the CIT(A) is correct in not appreciating that there is no amendment to Sec.36(1)(va) and considering the as it stands, the employee's contribution is taxable as read with Sec.24(2)(x) to the extent it is not paid within due date as also held in the decision of Gujarat High Court in the CIT Vs. Gujarat State Road Transport Corporation (3661TR 170) wherein the decision of Apex court in the case of Alom Extrusions was distinguished. (185 Taxmann 416). vii. The appellant craves leave to add, amend or modify the above grounds of appeal either before or at time of hearing of the appeal, if it is considered necessary. viii. Any other grounds that be urged at the time of hearing. 2 Any other ground that may urge during the course of appellate proceedings. 10. The Revenue has also filed the following additional ground “Whether in the facts and circumstances of the case, the assessee to eligible for claiming deduction u/s. 80IA of the Act when the nature of activity that of works contractors. 11. The ld. DR referring to the decision of Hon’ble Supreme Court in the case of NTPC vs. CIT reported in 229 ITR 383 (SC), and Jute Corporation of India vs. CIT reported in 1991 AIR 241 , submitted that the additional ground being purely legal in nature and no new facts are required to be investigated , the same should be admitted for adjudication. 12. After hearing both the sides and considering the fact that the additional ground raised by the revenue is purely a legal one and no new facts are required to be investigated, therefore, the same is admitted for adjudication. 23 Tracks & Towers Infratech Pvt.Ltd. (Part IX) 13. The ld.DR strongly challenged the order of the ld.CIT(A) in allowing the claim of deduction made by the assessee u/s. 80IA in the revised return despite the assessee failing to comply with the provisions of section 80IA(5) r.w.s. 80AC. He submitted that when assessee in the original return of income filed has not claimed the deduction u/s. 80IA, therefore, the ld.CIT(A) was not justified in allowing the claim so made in the revised return and that to after the survey took place and assessee disclosed additional income. He submitted that had there been no survey, the assessee would not have filed the revised return of income. Referring to the order of the AO from para 7 onwards, he submitted that the AO has given elaborate reasons as to how and why the assessee is not entitled to claim the deduction u/s. 80IA made for the first time in the revised return. He accordingly submitted that the ld.CIT(A) was not justified in allowing the claim of deduction u/s. 80IA. 13.1 Referring to the decision of Hon’ble Supreme court in the case of PCI and another vs Wipro Ltd. reported in 446 ITR 1 (SC), he submitted that the assessee cannot claim the deduction u/s. 80IA in the revised return when such claim was not made in the original return. So far as the merit of the case is concerned, he submitted that when the assessee is a works contractor and the company executes only contract work and is not a developer, therefore, even otherwise also, the assessee is not entitled to claim the deduction u/s. 80IA. He accordingly submitted that the order of the ld.CIT(A) allowing the deduction u/s. 80IA being not in accordance with law should be reversed and that of the AO be restored. He also relied on the following decisions: i. Hon’ble Bombay High Court in the case of EBR Enterprises vs Union of India reported in 415 ITR 139. 24 Tracks & Towers Infratech Pvt.Ltd. (Part IX) ii. Hon’ble Karnataka High Court in the case of GMR Infrastructure Ltd. vs DCIT vide ITA No. 1036/2017 order dated 06.07.2014 13.2 So far as the second issue is concerned i.e direction of the ld.CIT(A) to allow the deduction on account of belated payment of PF and ESI, if paid before the due date of filing of the return is concerned, the ld.DR submitted that the issue now stands decided by the Hon’ble Supreme Court in the case of Checkmate Services Pvt.Ltd. vs CIT reported in 448 ITR 518 where it has been clearly held that payment of PF and ESI if not made before the due dates mentioned in the respective PF and ESI Act cannot be allowed as a deduction. 14. The ld.counsel for the assessee on the other hand heavily relied on the order of the ld.CIT(A) in allowing the claim of deduction u/s. 80IA. He submitted that the assessee filed the original return of income on 26.09.2015 declaring total income of Rs.17,20,27,320/-. The revised return was filed on 21.12.2016 declaring total income of Rs. 9,70,04,260/- after claiming the deduction u/s. 80IA at Rs. 12,60,23,062/- from the gross total income of Rs.22,30,27,300/-. He submitted that the assessee had filed the original return within the statutory due date and the revised return was also filed before the statutory due date as prescribed under section 139(5) of the I.T.Act. Referring to the copy of the notice issued u/s. 143(2) dated 27.09.2017, copy of which is placed at page no.9 of the paper book volume-I, he submitted that the return selected for scrutiny as mentioned in the said notice is the revised return and not the original return. Referring to the computation of the total income by the AO in the body of the assessment order, he submitted that the AO has also computed the assessed income on the basis of the revised return. He accordingly submitted that the revised return of income has been accepted by the AO. Therefore, once a revised return is filed 25 Tracks & Towers Infratech Pvt.Ltd. (Part IX) and accepted, the original return is replaced by the revised return and treated as if the return has been filed u/s. 139(1). He submitted that ignoring the revised return would amount to taking back the benefit given to the assessee for which the ITAT has no power. Referring to the decision of Hon’ble Supreme Court in the case of Mcorp Global Pvt.Ltd. vs CIT reported in 309 ITR 434, he submitted that the Hon’ble Supreme Court in the said decision has held that the Tribunal has no power to take back the benefit conferred by the AO or enhance the assessment. 14.1 He submitted that the reasons for filing the revised return have been duly placed on the records of the lower authorities and the same has been accepted by them. He submitted that the assessee filed the revised return as it was not aware about the legal position during the relevant period and it was advised by the new Chartered Accountant who was approached post survey proceedings. He submitted that the claim of the deduction u/s. 80IA has got nothing to do with the survey declaration as the additional amount declared during the survey has not been taken into account for the calculation of the claim of deduction. 15. The ld.counsel for the assessee submitted that one of the reasons given by the AO for denial of deduction u/s. 80IA of the Act is that the same was not made in the original return of income filed u/s. 139(1) of the Act and was claimed only in the revised return of income filed u/s. 139(5) of the Act. The ld.counsel for the assessee drew the attention of the Bench to the provisions of section 80IA(5) and section 80AC and submitted that a plain reading of the above sections reveals that the deduction claimed u/s. 80IA shall not be allowed unless the assessee furnishes a return of income on or before the due date specified u/s. 139(1) of the Act. Further, such deduction has to be claimed in the return of income. However, the Act nowhere provides that such 26 Tracks & Towers Infratech Pvt.Ltd. (Part IX) deduction has to be claimed in the return filed u/s. 139(1). The provision only speaks of filing a return of income within the time limit and making of the claim in the return of income. Once a valid revised return is filed, it replaces the original return of income and hence, it cannot be said that i) the assessee has not filed the return of income within time i.e. within the due date prescribed u/s. 139(1) of the Act ii) the claim has not been made in the return of income. 15.1 Referring to the decision of the Chennai Bench of the Tribunal in the case of ACIT vs. M/s. Shanti Gears Ltd. vide ITA No. 3608/Chny/2017 order dated 04.03.2022 for AY 2013-14, he submitted that the Tribunal in the said decision has held that the provisions of section 80IA(5) only requires filing of return of income but nowhere it states that the claim should be made in the original return and not by way of revised return. It has been held that when the original return was filed within the due date, then the revised return filed, thereafter, before the completion of the assessment proceedings, is to be considered by the AO, because the Act has given an opportunity to the assessee to file his return u/s. 139(4) of the Act for the removal of defects or omission in the original return. He also relied on following decisions and submitted that the assessee is entitled to claim the deduction u/s. 80IA in the revised return. i. ITAT Chennai Bench in the case of ACIT vs. Percot Meridian Ltd. for AY 2008-09 vide ITA No.1214/Mds/2012, dated 29.04.2013 ii. ITAT Kolkata Bench in the case of DCIT vs. Mackintosh Burn Ltd. for AY 2006-07 vide ITA No.790/Kol/2014 dated 15.03.2017 iii. ITAT Pune Bench in the case of ITO vs. Dirk India P.Ltd. for AY 2010- 11 vide ITA No.869/Pun/2016 dated 24.10.2018 iv. ITAT Mumbai Bench in the case of DCIT vs. JSW Infrastructure Ltd. for AYs 2013-14 & 2014-15 vide ITA Nos.3708 and 3709/Mum/2018, dated 08.11.2019. 27 Tracks & Towers Infratech Pvt.Ltd. (Part IX) v. ITAT Hyderabad Bench in the case of DCIT vs. Delhi MSW Solutions Ltd. for AY 2016-17 vide ITA No.888/Hyd/2019 dated 24.02.2021. vi. ITAT Chennai Bench in the case of ACIT vs. Shanti Gears Ltd. for AY 2013-14 vide ITA No.3068/Chny/2017, dated 04.03.2022 vii. Hon’ble Allahabad High Court in the case of PCIT v. vijay Infrastructure Ltd. for AY 2009-10 reported in 402 ITR 363(All) 16. So far as the additional ground taken by the revenue challenging that the assessee cannot be allowed the deduction u/s. 80IA since the activity carried out by the assessee is that of works contractor instead of being that of a developer is concerned, the ld.counsel for the assessee drew the attention of the Bench to the copy of the remand report placed at page No. 228- 229 of the paper book volume-2, according to which the AO himself acknowledges that the nature of work undertaken by the assessee is that of developing infrastructure facility and thereby eligible for 80IA deduction. He submitted that an appeal can be filed before the Tribunal if a party is aggrieved by the order of the ld.CIT(A). He submitted that when the AO in the remand report has himself accepted the fact that the assessee is a developer, he cannot be said to be aggrieved by his own findings. Therefore, once, the AO came to the conclusion that assessee is a developer now he cannot be aggrieved and file a ground, that too in shape of an additional ground before the Tribunal contending that the nature of the activity carried by the assessee is not that of the developer. For the above proposition, the ld.counsel for the assessee relied on the following decisions:- a) Jivatlal Purtapshi v. CIT (65 ITR 261) (Bom) b) Dr. D.Y. Patil Pratisthan v. DCIT for A.Y. 2006-07 in ITA No. 1592 and 1616/PN/11 dated 14.12.2012. c) Ramanlal Kamdar v. CIT (108 ITR 73) (Madras) d) Banta Singh Kartar Singh v. CIT (125 ITR 239) (Punjab and Haryana) 17. Referring to the decision of Hon’ble Supreme Court in the case of MCorp Global Pvt.Ltd.(supra), he reiterated that the 28 Tracks & Towers Infratech Pvt.Ltd. (Part IX) Tribunal has no power to take back the benefit granted by the AO and thereby enhancing the assessment. Therefore, if the additional ground of the department is accepted, it would result in taking back the benefit granted by the AO in the case of the assessee. 17.1 Without prejudice to the above, the ld.counsel for the assessee submitted that the AO in the remand report has also stated that the assessee is not entitled to the deduction due to the following reasons. i. TDS details show that the assessee is the subcontractor ii. Unsecured Loans include mobilization advances and these are all work contract receipts. iii. Clause 10(a) of the Tax Audit report describes the nature of the business of the assessee as a 'Civil Contractor' iv. In the P&L account, 'Revenue from Operations' reflects 'Work Contract Receipts'. 18. He submitted that none of the above reasons would in any way be a determinative factor for ascertaining the nature of the activity carried on by the assessee. He submitted that the AO after analyzing in detail the terms and conditions of the various agreements along with its scope has arrived at the conclusion that the assessee is the developer. Referring to various decisions, he submitted that the additional ground can only be admitted if the same is raised for good and bonafide reasons and which are on record in the assessment proceedings and in the absence of the same, it should be rejected. Since the AO in the instant case in one line has stated that the assessee is a works contractor and not a developer, therefore, the additional ground raised by the revenue should be dismissed. 29 Tracks & Towers Infratech Pvt.Ltd. (Part IX) 19. The ld.counsel for the assessee in his another plank of argument submitted that the AO in the subsequent years has allowed the deduction u/s. 80IA. Referring to the order of the ld.CIT(A), he submitted that the ld.CIT(A) while allowing the relief has specifically given a finding that in the subsequent year i.e., AY 2017-18, the AO has allowed the deduction u/s. 80IA on the profits of the projects which were continuing since AY 2015-16. Referring to page No. 150 to152 of the paper book volume-2, he submitted that the AO in the order passed u/s. 143(3) on 29.06.2019 has allowed the claim of deduction made u/s.80IA for AY 2017-18. Similarly, for AY 2018-19, the AO in the order passed u/s. 143(3) on 31.07.2020, has allowed the claim of deduction u/s. 80IA, copy of which is placed at pages 193-195 of paper book volume-2. He submitted that the order u/s. 143(1) was passed on 26.10.2020 for AY 2019-20 and the claim of deduction has been allowed and no 147 or 263 proceedings are pending. The order u/s. 143(1) is placed at pages 211-222 of paper book volume-2. Referring to pages 223-227 of the paper book volume-2, he submitted that the AO in the order passed u/s. 143(3) for AY 2020-21 has allowed the claim of deduction u/s. 80IA. Referring to the decision of Hon’ble Delhi High Court in the case of CIT vs Escorts Ltd. reported in 338 ITR 431 [2011], he submitted that the Hon’ble High Court in the said decision has held that so long as the fundamental nature of the transactions remains the same year after year, the department cannot change its view as regards the nature of a transaction as for a particular year. 20. He submitted that the ld.CIT(A) has rightly analyzed and allowed the claim of the assessee after discussing the facts of the case and holding that the functions of the assessee are that of the developer and not merely that of a contractor. He has also reproduced the remand report forwarded by the AO in which the 30 Tracks & Towers Infratech Pvt.Ltd. (Part IX) AO has categorically held that the assessee is a developer. Referring to the assessment order, he submitted that the AO has not stated anything in the assessment order except a one-liner conclusion that the assessee is acting as a works contractor. However, neither there has been any discussion nor any reasoning given by the AO for arriving at the conclusion that the assessee is a contactor. 20.1 Referring to various decisions, he submitted that it has been held in these decisions that the works contract constitutes a contract under which the contractor is only employing his efforts or labour. Thus, the term works contract means a contract for developing infrastructure by merely employing labour and making no investment which is not the assessee’s case. He accordingly submitted that the claim of deduction u/s. 80IA is fully justified and the ld.CIT(A) is justified in allowing the claim of deduction. 21. So far as the reliance of the ld.CIT-DR of the decision of the Hon’ble Supreme Court in the case of PCIT vs. Wipro Ltd.(supra) is concerned, he submitted that the said decision is not applicable to the facts of the present case. He submitted that there is a distinction between a claim for exemption and claim for deduction and both cannot be equated. Referring to the said decision, he submitted that the Hon’ble Supreme Court in the said decision has denied the benefit of carry forward of losses due to its failure to withdraw the deduction u/s. 10B of the I.T.Act before the date of filing its original return of income. He submitted that on a plain reading of 10B(8) of the I.T.Act, it can be seen that for claiming the benefit u/s. 10B(8), the twin condition of furnishing the declaration to the AO in writing and the same must be furnished before the due date of filing the return of income u/s. 139(1) of the I.T.Act has to be fulfilled. The 31 Tracks & Towers Infratech Pvt.Ltd. (Part IX) ld.counsel for the assessee filed the following written submission on the applicability of decision in case of Wipro Ltd. Applicability of the Wipro Ltd decision 19) We draw Your Honour's attention to the decision of the Hon'ble Supreme Court's in the case of PCIT v. Wipro Ltd [2022] 446 ITR 1, wherein the Supreme Court denied the benefit of carry forward of losses due to its failure to withdraw the deduction u/s 10B of the IT Act before the date of filing its original return of income. On a plain reading of 10B (8) of the IT Act, as reproduced below, it emerges that for claiming the benefit u/s 10B(8), the twin condition of furnishing the declaration to the assessing Officer in writing and the same must be furnished before the due date of filing the return of income u/s 139(1) of I.T.Act has to be fulfilled. "Notwithstanding anything contained in the foregoing provisions of this section, where the Assessee, before the due date for furnishing the return of income under subsection (1) of section 139, furnishes to the Assessing Officer a declaration in writing that the provisions of this section may not be made applicable to him, the provisions of this section shall not apply to him for any of the relevant assessment year.” 20) In that case the assessee filed its original ROI within the due date in which claim for deduction u/s 10B of the Act was made. A note was appended to return of income that the company is a 100% EOU and entitled to claim an exemption u/s 10B of the Act, and no loss is being carried forward. Subsequently, it filed a declaration with the A.O. stating that it does not want to avail of the benefit u/s 10B as per the option available u/s 10B (8) of the Act. However, this was beyond the time limit u/s 139(1) of the Act and hence not as per the mandate of S. 10B(8) of the Act. 21) Against this backdrop, the Supreme Court was adjudicating whether Wipro Ltd could withdraw its claim for exemption u/s 10B and claim the benefit of carry forward of losses by filing a revised return of income. 22) Supreme Court held that S. 1 OB (8) of the Act requires exercise of the option within the period prescribed u/s 139(1) of the Act and such time limit is mandatory. The relevant extract of the Supreme Court decision is also reproduced below; “9. Therefore, claiming benefit u/s 10B (8) and furnishing the declaration as required u/s 10B(8) in the revised return of income which was much after the due date of filing the original return of income u/s 139(1) of the IT Act, cannot mean that the assessee has complied with the condition of furnishing the declaration before the due date of filing the original return of income u/s 139(1) Of the Act As observed hereinabove, for claiming the benefit u/s 10B (8) both the 32 Tracks & Towers Infratech Pvt.Ltd. (Part IX) conditions of furnishing the declaration and to file the same before the due date of filing the original return of income are mandatory in nature.” 23. The assessee’s case is distinguishable from the principle laid down by the Supreme Court in Wipro’s case, as enunciated above. In the assessee’s case, the revised return was filed to claim the deduction u/s. 80IA of the I.T.Act and not to withdraw claim. 24. Further, the learned Assessing Officer had accepted the revised return in the Assessee’s case. Therefore, once a revised return is filed, the original return is replaced by the revised return and treated as if the return is filed u/s. 139(1). 25. In Wipro’s case, it specifically filed a note claiming exemption u/s. 10B. Further, it was a case dealing with exemption provisions and not with deduction provisions under chapter VI-A and as also highlighted by Supreme Court (page 17 at placitum 11), both operate in different fields. 21.1 So far as the two decisions relied on by the ld.CIT-DR are concerned, the ld.counsel for the assessee submitted that both these decisions are distinguishable and not applicable to the facts of the present case. So far as the decision in the case of EBR Enterprises (supra) is concerned, he submitted that in that case, the assessee had not claimed the deduction u/s. 80IB(10) and subsequent to assessment framed by the AO , it filed an application u/s. 264 before the CIT and raised the claim of deduction u/s. 80IB(10) which was rejected by the CIT, on the ground that assessee had not made a claim u/s. 80IB(10) in the original return of income and therefore, by virtue of section 80IA(5) the claim could not be granted. However, in the instant case, the assessee has made the claim in the revised return filed which was within the permitted time under the law and therefore, the decision of EBR Enterprises (supra) is not applicable to the facts of the present case. 21.2 So far as the decision of Hon’ble Karnataka High Court in the case of GMR Infrastructure Pvt.Ltd. (supra) is concerned, he submitted that in that case the question before the Hon’ble High Court was to decide a case regarding entitlement of the assessee 33 Tracks & Towers Infratech Pvt.Ltd. (Part IX) to raise a fresh claim during assessment proceedings u/s. 153A of the Act pursuant to search action u/s. 132 of the Act. He submitted the Tribunal in that case, placing reliance on the decision of Hon’ble Rajastan High Court in the case of Jaya Steels (India) Jodpur vs ACIT reported in 36 taxmann.com 523 has held that the assessment or reassessment made in pursuance to section 153A of the Act is not a denovo assessment and therefore, it was not open to the assessee to claim and be allowed such deduction or allowance of expenditure which it had not claimed in the original assessment proceedings which in the case of the assessee stood completed prior to the date of search. Accordingly, the Hon’ble Karnataka High Court, following the decision of Hon’ble Rajasthan High Court in the case of Jaya Steel (supra), decided the issue against the assessee. However, in the instant case, the assessee has made a claim in the revised return filed which was within the time prescribed and it is not a search case. Therefore, the decision of the Hon’ble Karnataka High Court in the case of GMR Infrastructure Ltd. (supra) is also not applicable to the facts of the present case. 21.3 He accordingly submitted that the order of ld.CIT(A) being in accordance with law should be upheld and the grounds raised by the revenue including the additional ground on the issue of deduction u/s. 80IA should be dismissed. 22. So far as the ground challenging the order of the ld.CIT(A) in allowing the deduction of belated payment of PF and ESI, if paid before the due date of filing of the return is concerned, he submitted that the issue now fairly stands decided against the assessee by the decision of Hon’ble Supreme Court in the case of Checkmate Services (P) Ltd.(supra). 34 Tracks & Towers Infratech Pvt.Ltd. (Part IX) 23. We have considered the rival arguments made by both the sides, perused the orders of the AO and the ld.CIT(A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. The first issue raised by the Revenue in the grounds of appeal no. (i) to (v) and the additional ground is regarding the allowability of deduction u/s.80IA. We find the assessee in the instant case claimed deduction u/s. 80IA(4) amounting to Rs. 12,60,23,062/- in the revised return of income filed u/s. 139(5). We find the AO denied the claim of deduction u/s. 80IA(4) made by the assessee on the ground that assessee has not made the claim of deduction u/s. 80IA(4) in the original return of income filed u/s. 139(1) of the Act but claimed the same in the revised return of income filed u/s. 139(5) of the Act. Further, the assessee is a works contractor and the company executes the contracts only and not a developer. 23.1 We find the ld.CIT(A) allowed the claim of deduction u/s. 80IA(4), the reasons of which have already been reproduced in the preceding paragraph. We do not find any infirmity in the order of the ld.CIT(A) on this issue. The provisions of section 80A(5), 80AC and 139(5) read as under:- Section 80A(5) Where the Assessee fails to make a claim in his return of income for any deduction u/s. 10A or section 10AA or section 10B or section 10BA or under any provision of this Chapter under the heading “C-Deductions in respect of certain incomes”, no deduction shall be allowed to him thereunder Section 80AC Deduction not to be allowed unless furnished-Where in computing the total income of an assessee of the previous year relevant to the assessment year commencing on the 1 st day of April 2006 or any subsequent assessment year, any deduction is admissible u/s. 80IA or section 80IB or section 80IB or section 80IC 86[or section 80ID or section 80IE], no such deduction shall be allowed to him unless he furnishes a 35 Tracks & Towers Infratech Pvt.Ltd. (Part IX) return of his income for such assessment year on or before the due date specified under sub-section (1) of section 139. Section 139(5) If any person, having furnished a return under sub-section (1) or sub- section (4), discovers any omission or any wrong statement therein, he may furnish a revised return at any time before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier. 24. A plain reading of the above sections reveals that the deduction claimed u/s. 80IA(4) shall not be allowed unless the assessee furnishes a return of income on or before the due date specified u/s. 139(1) of the Act. Further, such deduction has to be claimed in the return of income. However, the above provisions nowhere provide that such deduction has to be claimed in the return filed u/s. 139(1) only. A plain reading of the above provisions only speaks of filing a return of income within the time limit and making of the claim in the return of income. We, therefore find merit in the arguments advanced by the ld.counsel for the assessee that once a valid revised return is filed, it replaces the original return of income filed in time and therefore, it cannot be said that a) the assessee has not filed the return of income within the time i.e. within the due date prescribed u/s. 139(1) of the Act or b) the claim has not been made in the return of income. 25. We find the Chennai Bench of the Tribunal in the case of ACIT vs. Shanti Gears Ltd. vide ITA No.3068/CHNY/2017, order dated 04.03.2022(supra) while holding that assessee can make a claim in the revised return has observed as under:- 8. We have heard the rival contentions and gone through the facts and circumstances of the case. We have noted that the provisions of Section 80IA(5) only requires filing of return of income but nowhere it states that the claim should be , made in the original return and not by way of original return. Further, when the original return was filed within the due date, then the revised return filed, thereafter, before the completion of assessment proceedings, is to be considered by the Assessing Officer, 36 Tracks & Towers Infratech Pvt.Ltd. (Part IX) because the Act has given an opportunity to the Assessee to file his return u/s.139( 4) of the Act for the removal of defects or omission in the original return. 9. Here, in the present case, the Assessee has made a claim by filing a letter during the course of the Assessment proceedings and once the claim is made during the course of the assessment proceedings, the Assessing Officer has to consider the same and decide. We noted that there is no dispute as regards to merits of the claim of deduction ujs.80IA of the Act. Hence, we find not infirmity in the order of the Commissioner of Income Tax (Appeals) and the same affirmed. 10. In the result, the appeal of the Revenue is dismissed. 26. We find the Mumbai Bench of the Tribunal in the case of DCIT vs. JSW Infrastructure Ltd has observed as under:- 6. First issue that came up for our consideration from ground No.1 of revenue appeal is deduction claimed u/s 80IA, in respect of Jaigarh unit. The facts with regard to the impugned disputes are that the assessee has filed original return u/s 139(1) and claimed deduction u/s 80IA, in respect of GOA unit. Subsequently, the assesse has filed a revised return within time specified u/s 139(5) and made additional claim of deduction u/s 80IA for Rs.11,28,18,375/-, in respect of Jaigarh unit. The Ld. AO has disallowed additional claim of deduction u/s 80IA only on the ground that said claim was not made in the original return filed u/s 139(1) and in view of specific provision of section 80A(5) r.ws. 80AC, any deduction claimed without filing return on or before the due date specified u/s 139(1) shall not be allowed. 7. The Ld. DR submitted that the Ld.CIT(A) was erred in deleting the additions made by the Ld. AO towards disallowances of deduction claimed u/s 80IA of the I.T.Act, 1961 without appreciating and understanding the provisions of section 80AC that if, the findings of the Ld.CIT(A) are accepted, then the purpose of introduction of provision of section 80AC in the statue book is defeated. The Ld. DR, further submitted that although, the ld.CIT(A) has followed few decisions of the Ld. ITAT to come to the conclusion that nowhere, in the section mandates that deduction should be claimed in the return filed, but if you go through the provision of section 80AC, the main purpose behind insertion of said provision into the statue book is to deny the benefit or deduction, if the person claims said deduction without filing return within due date specified u/s 139(1) of the I.T.Act, 1961. He further submitted that the Ld.CIT(A) without considering these aspects deleted additions made by the AO, on the ground that once, return has been filed u/s 139(1), then the assesee can claim deduction by filing revised return within due date specified u/s 139(5) of the I.T.Act, 1961. 8. The Ld. AR for the assesse, on the other hand, strongly supporting order of the Ld.CIT(A) submitted that the issue is squarely covered in favour of the assessee by the decision of ITAT in number of case, where the law has been explained in light of provision of section 80AC and held 37 Tracks & Towers Infratech Pvt.Ltd. (Part IX) that as per the provision of section 80AC filing of return within due date specified u/s 139(1) is mandatory, but there is no stipulation as to claiming deduction in the return of income, as long as, the claim is within due date specified under sub section (5) of section 139, then the assessee is entitled for deduction u/s 80IA of the I.T.Act, 1961. The Ld.CIT(A) after considering relevant facts has rightly deleted additions made by the AO towards disallowances of deduction claimed u/s 80IA and his order should be upheld. 9. We have heard both the parties, perused the material available on record and gone through orders of the authorities below along with case laws cited by both parties. We find that the Ld.CIT(A) has recorded categorical finding, in light of provision of section 80AC and held that nowhere, in the section, it was provided that unless, the assesee makes a claim in its return filed u/s 139(1), the said claim is allowable. We further observed that as per provision of section 80AC, it is mandatory for the assessee to file return of income on or before due date specified u/s 139(1) to claim the benefit of any deduction provided u/s 80IA/80IB/80IC/80D and 80IE, but nowhere in the said section, it was provided that unless, the assessee makes claim for deduction in the return filed u/s 139(1), the said claim is allowable. We further noted that the Ld.CIT(A) recorded categorical finding, in light of the decision of ITAT Chennai bench , in the case of ACIT vs Precot Meridian Ltd. (supra), where it was held that, once original return is filed u/s 139(1) within due date specified under the Act, then any deduction claimed in the revised return filed within due date specified u/s 139(5) shall be allowed. We, further noted that the Ld.CIT(A) had also taken a support from the decision of ITAT, Mumbai bench, in the case of Kamadhenu Builders & Developers vs Addl.CIT, where it was observed that section 80A(5) only requires filing of return, but nowhere it suggest that claim should be made in the original return and not by way of original return, further when the original return of income was filed within the due date, then the revised return filed, thereafter before completion of assessment proceedings is to be considered by the AO, because the Act has been given opportunity to the assessee to file revised return u/s 139(4) for removal of any defect or any omissions in the original return and that if both the returns were filed within time limit prescribed under the law, then conditions prescribed u/s 80IB (10) of the I.T.Act, 1961are fulfilled. In this case, the assessee has filed a return u/s 139(1) within due date specified date, but the claim for deduction u/s 80IA, in respect of second unit was not made, however a revised return was filed u/s 139(5) within due date specified under the Act and made additional claim for deduction, in respect of second unit. When original return was filed within due date specified u/s 139(1), then any revised return filed within the due date specified u/s 139(5) to rectify any mistakes or omissions or wrong statements made in the return already filed u/s 139(1), then the revised return takes, the nature of the original return filed within due date specified u/s 139(1) and consequently, the assessee fulfills the conditions prescribed u/s 80AC of the Act, in order to be eligible for deduction u/s 80IA of the I.T.Act, 1961. The Ld.CIT(A) after considering relevant facts has rightly deleted additions made by the AO towards disallowances of deduction claimed u/s 80IAof the I.T.Act 1961. We do not see any reasons to interfere in the order of the Ld.CIT(A) and hence, 38 Tracks & Towers Infratech Pvt.Ltd. (Part IX) we are inclined to uphold the findings of the Ld.CIT(A) and reject ground taken by the revenue. 27. Similar view has been taken by the Chennai Bench of the Tribunal in the case of ACIT vs. Percot Meridian Ltd. (supra), the decision of Kolkata Bench of the Tribunal in the case of DCIT vs. Mackintosh Burn Ltd.(supra) and the decision of the Pune Bench of the Tribunal ITO vs. Dirk India P.ltd. (supra) which the ld.CIT(A) has already reproduced in his order and therefore, we are not reproducing the same. 28. In view of the above discussion, we are of the considered opinion that the claim u/s. 80IA(4) can be made in the revised return filed u/s. 139(5) if the original return and revised returns were filed in time. Therefore, the ld.CIT(A) in our opinion is fully justified in allowing the claim of deduction u/s. 80IA in the revised return. 29. So far as the decision of the Hon’ble Supreme Court in the case of Wipro Ltd.(supra) relied on by the ld.CIT-DR is concerned, we find the Hon’ble Supreme Court denied the benefit of carry forward of losses due to the failure of the assessee to withdraw the deduction u/s 10B of the IT Act before the due date of filing its original return of income. On a plain reading of 10B (8) of the IT Act, as reproduced below, it emerges that for claiming the benefit u/s 10B(8), the twin conditions of furnishing the declaration to the assessing Officer in writing and the same must be furnished before the due date of filing the return of income u/s 139(1) of the IT Act has to be fulfilled. "Notwithstanding anything contained in the foregoing provisions of this section, where the Assessee, before the due date for furnishing the return of income under subsection (1) of section 139, furnishes to the Assessing Officer a declaration in writing that the provisions of this section may not be made applicable to him, the provisions of this section shall not apply to him for any of the relevant assessment year. " 39 Tracks & Towers Infratech Pvt.Ltd. (Part IX) 29.1 We find in that case the assessee filed its original ROI within the due date in which claim for deduction u/s 10B of the Act was made. A note was appended to the return of income that the company is a 100% EOU and entitled to claim an exemption u/s 10B of the Act, and no loss is being carried forward. Subsequently, it filed a declaration with the A.O. stating that it does not want to avail of the benefit u/s 10B as per the option available u/s 10B (8) of the Act. However, this was beyond the time limit u/s 139(1) of the Act and hence not as per the mandate of section 10B(8) of the Act. Against this backdrop, the Hon’ble Supreme Court was adjudicating whether Wipro Ltd could withdraw its claim for exemption u/s 10B and claim the benefit of carry forward of losses by filing a revised return of income. We further find the Hon’ble Supreme Court at placetum 11 of the said order has also made a distinction between a claim of exemption and claim of deduction by observing as under:- “Now so far as the reliance placed upon the decision of this Court in the case of G.M. Knitting Industries Pvt. Ltd. (supra), relied upon by the learned counsel appearing on behalf of the assessee is concerned, Section 10B (8) is an exemption provision which cannot be compared with claiming an additional depreciation under section 32(1) (ii- a) of the Act. As per the settled position of law, an assessee claiming exemption has to strictly and literally comply with the exemption provisions. Therefore, the said decision shall not be applicable to the facts of the case on hand, while considering the exemption provisions. Even otherwise, Chapter III and Chapter VIA of the Act operate in different realms and principles of Chapter III, which deals with “incomes which do not form a part of total income”, cannot be equated with mechanism provided for deductions in Chapter VIA, which deals with “deductions to be made in computing total income”. Therefore, none of the decisions which are relied upon on behalf of the assessee on interpretation of Chapter VIA shall be applicable while considering the claim under Section 10B (8) of the IT Act.” 29.2 In view of the above, the decision relied on by ld.CIT-DR in the case of Wipro Ltd.(supra) is distinguishable and not applicable to the facts of the present case. 40 Tracks & Towers Infratech Pvt.Ltd. (Part IX) 29.3 So far as the other two decisions relied on by the Ld.DR are concerned, we find both the decisions are distinguishable and not applicable to the facts of the present case. In the case of EBR Enterprise(supra), the assessee made a claim of deduction u/s. 80IB(10) in respect of the income of its housing project subsequent to assessment framed by the AO by filing an application u/s. 264 before the CIT and made the claim of deduction u/s. 80IB(10). The CIT, therefore rejected the revision application holding that since assessee had not made a claim under section 80IB(10) in the return of income, by virtue of section 80IA(5), the claim could not be granted. The Hon’ble Bombay High Court dismissed the writ petition filed by the assessee upholding the order of the CIT. However, in the instant case, the assessee made the claim by filing a revised return within the permissible time as prescribed u/s. 139(5) of the Act. Therefore, the decision of Hon’ble Bombay High Court in the case of EBR Enterprises (supra) is not applicable to the facts of the present case. 29.4 Similarly, in the case of GMR Infrastructure Ltd.(supra), the assessee made a fresh claim during the assessment proceedings u/s. 153A pursuant to a search action u/s. 132. The fresh claim so made was rejected by the AO and upheld by the ld.CIT(A). On further appeal, the Tribunal, following the decision of Hon’ble Rajasthan High Court in the case of Jaya Steel (supra) held that the assessment or reassessment made in pursuance to section 153A of the Act is not a denovo assessment and therefore, it was not open to the assessee to claim and be allowed such deduction or allowance of expenditure which it has not claimed in the original assessment proceedings, which in the case of the assessee stood completed prior to the search. Accordingly, the Hon’ble Karnataka High Court following the decision of Hon’ble Rajastan High court in the case of Jaya Steel (supra) upheld the 41 Tracks & Towers Infratech Pvt.Ltd. (Part IX) decision of the Tribunal. However, in the instant case, as already mentioned earlier, the assessee made the claim u/s. 80IA in the revised return filed u/s. 139(5) which is well within the prescribed time limit. Therefore, the decision of Hon’ble Karnataka High Court in the case of GMR Infrastructure Ltd. (supra)is also not applicable to the facts of the present case. 30. We further find the assessee filed the original return of income on 26.09.2015 declaring total income of Rs.17,20,27,320 and the revised return was filed on 21.12.2016 declaring total income of Rs. 9,70,04,260/- after claiming the deduction u/s. 80IA amounting to Rs.12,60,23,062/-. The AO issued notice u/s. 143(2) on 27.09.2017 on the basis of the revised return filed on 21.12.2016 and has also computed the assessed income on the basis of the revised return. Thus, a perusal of the details filed in the paper book as well as the assessment order shows that the revised return has ben accepted by the AO. We, therefore find merit in the argument of the ld.counsel for the assessee that once a revised return is filed and is accepted, the original return is replaced by the revised return and treated as if the return is filed u/s. 139(1). Ignoring the revised return would amount to taking back the benefit given to the assessee for which the Tribunal has no power. We find the Hon’ble Supreme Court in the case of MCorp Global P.Ltd. vs CIT reported in 309 ITR 434 has held as under:- “ In the case of Hukumchand Mills Ltd. v. CIT reported in [1967] 63 ITR 232 this court has held that u/s. 33(4) of the Income tax Act, 1922 (equivalent to section 254(1) of the 1961 Act,), the Tribunal was not authorized to take back the benefit granted to the assessee by the Assessing Officer. The Tribunal has no power to enhance the assessment.” 30.1 In view of the above discussion and in view of the detailed reasoning given by the ld.CIT(A), we do not find any infirmity in 42 Tracks & Towers Infratech Pvt.Ltd. (Part IX) his order allowing the claim of deduction u/s. 80IA made by the assessee in the revised return filed u/s. 139(5) of the I.T.Act. 31. So far as the additional ground raised by the revenue challenging the allowability of deduction u/s. 80IA when the nature of activity is that of works contractor is concerned, we find the AO in the remand report has himself acknowledged that the nature of work undertaken by the assessee is that of developing infrastructure facility and thereby eligible for deduction u/s. 80IA. The copy of the remand report which is placed at page 228-229 of the paper book reads as under:- Office of the Deputy Commissioner of Income Tax, Circle-2(2) 5th Floor, Signature Towel's, Opp. Botanical Garden, Kondapur, Hyderabad. Phone: [phone], Fax-23485206 F.No.DCIT -2(2)/Remand Report/2018-19 Date:11-01-2019 To The Commissioner of Income tax (Appea1s)-2, Hyderabad. #through the Addl.CIT, Range-2, Hyderabad Sir, Sub: Submission of Remand Report - in the case of Mis Tracks & Towers Infrastructure Pvt Ltd - A.Y. 2015-16.- Regarding. Ref: F.No. CIT(A)-2, Hyd/Report/2018-19 dated 19.12.2018 ****** Kindly reference is invited to the above . The report of the assessing officer with regard to the observation made that the assessee is not eligible for claim of deduction u/s 80IA of the Act is as under: "To qualify as the development work, the assessee has to develop the project right from the stage of planning to operation of the project and also maintain the project during the liability period. The assessee has to arrange men and machinery for executing the project and also arrange materials design and execute the work with its own resources. The assessee shall undertake the risk of all works executed until a completion certificate for. works has been issued. The assessee has to ensure all works at sight including third party insurance to 43 Tracks & Towers Infratech Pvt.Ltd. (Part IX) persons and damage to property. The assessee shall be liable to indemnify the principle against damage to persons and properties. On perusal of the contracts entered into by the assessee with various clients like Rail Vikas Nigam Limited, East Central Railway, GMR Chattisgarh Energy Limited, South East Central Railway etc, it is observed from terms and conditions of contract along with \ its scope of work indicate that the nature of works undertaken by the assessee is in the nature of developing infrastructure facility which would qualify for deduction u/s 80IA of the Act. (emphasis supplied by us) However, on the contrary, as seen from the TDS details, it seems to be that the assessee is a subcontractor handling the works on contractual agreement and it is known that deduction u/s 80IA is not eligible for contractors. Therefore, the assessee has tiled revised return and claimed deduction» u/s 80IA as an afterthought. It is confirmed from the unsecured loans that all are mobilization advances and i.e. these are all work contract receipts. Works contractor is not eligible for deduction u/s 80IA. On verification of the Tax Audit report of the statutory auditor, it is observed that the nature of the business of the assessee is mentioned at SI.No: 10(a) as "Civil Contractor". In the P&L account, under 'Revenue from Operations' - it clearly shows that the assessee is receiving "works contract receipts". Hence, the assessee is not eligible for deduction u/s 80IA." In view of the above, it is submitted that the assessee is not eligible for deduction u/s 80IA. Submitted for kind perusal of the Ld.CIT(A) with a request to decide the appeal on merits. 32. We, therefore find merit in the argument of the ld.counsel for the assessee that once the AO himself has stated that the nature of work undertaken by the assessee is in the nature of developing infrastructure facility which would qualify for deduction u/s. 80IA of the Act, he should not have filed the additional ground challenging the allowability of deduction u/s. 80IA treating the assessee as a work contractor. We, further find from the order of the ld.CIT(A) as well as from pages 150 to 152 of paper book volume-2 that the AO in the subsequent assessment year i.e AY 2017-18 has allowed the claim of deduction u/s. 80IA(4) to the assessee as claimed in the return of income on various projects which were continuing since AY 2015-16 onwards. Similar deduction u/s. 80IA(4) was allowed in 143(3) 44 Tracks & Towers Infratech Pvt.Ltd. (Part IX) assessment for AY 2018-19 (Paper book pages No. 193-195), and AY 2020-2021 (Paper book pages No. 223-227) and in 143(1) assessment for AY 2019-20(Paper book pages No. 193-195). 33. We find from the remand report that the AO has basically rejected the claim of deduction u/s. 80IA on account of following reason: i. TDS details show that the assessee is the subcontractor ii. Unsecured Loans include mobilization advances and these are all work contract receipts. iii. Clause 10(a) of the Tax Audit report describes the nature of the business of the assessee as a 'Civil Contractor' iv. In the P&L account, 'Revenue from Operations' reflects 'Work Contract Receipts'. 34. In our opinion, none of the above reasons in any way be a determinative factor for ascertaining the nature of the activity carried on by the assessee. Since the AO after analyzing the details of the terms and conditions of the various agreements along with its scope has arrived at the conclusion in the remand report that the assessee is a developer and further considering the fact that in subsequent years the AO himself has allowed the claim of deduction u/s. 80IA(4) which has been pointed out by the ld.CIT(A) in the body of the order which the ld.CIT-DR could not controvert, therefore, we do not find any merit in the argument of the ld.CIT-DR that ld.CIT(A) was not justified in allowing the claim of deduction u/s. 80IA(4). Since the ld.CIT(A) in the instant case after thorough analysis has held that the activities performed by the assessee is that of the developer and not merely that of a contractor and since the AO in the remand report itself has categorically held that the assessee is a developer and since the AO in the subsequent years has allowed the claim of deduction u/s. 80IA(4) in respect of the projects which were continuing for the impugned assessment year, therefore, considering the totality 45 Tracks & Towers Infratech Pvt.Ltd. (Part IX) of the facts of the case and in view of the detailed reasonings given by the ld.CIT(A) while allowing claim of deduction u/s. 80IA(4), we do not find any infirmity in the same. Accordingly, we uphold the order of the ld.CIT(A) on this issue and the grounds including the additional ground raised by the revenue on the issue of claim of deduction u/s. 80IA(4) are dismissed. 35. The second issue that has been raised by the revenue in the grounds of appeal No. (vi) is regarding the order of the ld.CIT(A) in directing the AO to delete the addition made on account of delayed payment of PF and ESIC, if paid before the due date of filing of return of income. 35.1 After hearing both the sides, we find the issue now stands decided against the assessee by the decision of Hon’ble Supreme Court in the case of Checkmate Services Pvt.Ltd. reported in 448 ITR 518, according to which, if employees’ contribution to PF and ESIC is not paid on or before the statutory due dates provided under the said Act, same cannot be allowed as deduction. Since admittedly the assessee in the instant case has not deposited the employees’ contribution to PF and ESIC before the statutory due dates prescribed under the said Act, but has deposited the same before the due date of filing of the return, therefore, the ld.CIT(A) in our opinion was not justified in directing the AO to delete the addition made if the amounts are paid before the due date of filing of the return. The second ground raised by the revenue is accordingly allowed. Other grounds being general in nature are dismissed. 36. In the result, the appeal filed by the revenue is partly allowed. 46 Tracks & Towers Infratech Pvt.Ltd. (Part IX) ITA No. 1515/Hyd/2019 (AY 2016-17) 37. The Revenue has raised the following grounds of appeal i. “Whether on the facts and circumstances of the case the ld.CIT(A) is correct in allowing the claim of the assessee despite the assessee failing to comply with provisions u/s. 80A(5) r.w.s. 80AC and claim u/s 80IA was made only in the revised return filed in consequence to survey. ii. "Whether on the facts and circumstances of the case the Ld CIT(A) should have considered the fact that it is only on after thought to claim deduction u/s 80IA consequent to survey. " iii. "Whether on the facts and circumstances of the case the CIT(A) erred in allowing the claim u/s 80IA where the additional undisclosed income offered during the survey proceeding is not the income earned from the eligible business of the assessee." iv. "Whether on the facts and circumstances of the case the Ld. CIT(A) also erred in allowing the claim of Rs. 22,11,24,388/- u/s 80IA as against the income offered of only 10,00,00,000/- in Survey which is nothing but undisclosed income as confirmed by the AR of the assessee." v. "Whether on the facts and circumstances of the case the CIT(A) is correct in not taking into account the Auditors report in Form 10CCB dt. 21.12.2016, prepared after survey, wherein the Chartered Accountant certified the eligible deduction u/s 80IA(4) at Rs.50,77,180/- after taking into account the gross sales of Rs. 452,93,89,653/-" vi. "Whether on the facts and circumstances of the case, the CIT(A) is correct in not appreciating that there is no amendment to Sec.36(1)(va) and considering the as it stands, the employee's contribution is taxable as read with Sec.24(2)(x) to the extent it is not paid within due date as also held in the decision of Gujarat High Court in the CIT Vs. Gujarat State Road Transport Corporation (3661TR 170) wherein the decision of Apex court in the case of Alom Extrusions was distinguished. (185 Taxmann 416). vii. The appellant craves leave to add, amend or modify the above grounds of appeal either before or at time of hearing of the appeal, if it is considered necessary. viii. Any other grounds that be urged at the time of hearing. 2 Any other ground that may urge during the course of appellate proceedings. 47 Tracks & Towers Infratech Pvt.Ltd. (Part IX) 38. The Revenue has also raised the following additional ground of appeal: i. “Whether in the facts and circumstances of the case, the assessee to eligible for claiming deduction u/s. 80IA of the Act when the nature of activity is that of works contacts? 39. After hearing both the sides, we find the grounds of appeal No. (i) to (v) and the additional ground raised by the revenue are identical to the grounds of appeal No. (i) to (v) and the additional ground raised by the revenue in ITA No. 1514/Hyd/2019 for AY 2015-16. We have already decided the issue and the grounds raised by the revenue have been dismissed. Following similar reasonings, the grounds raised by the revenue including the additional ground are dismissed. 40. Ground of appeal No.(vi) by the revenue relates to the order of the ld.CIT(A) in directing the AO to delete the late payment of employees’ contribution to PF and ESI if paid on or before the due date of filing of the return. 41. After hearing both the sides, we find the above ground is identical to ground of appeal No.(vi) in ITA No. 15174/Hyd/2019. We have already decided the issue and the ground raised by the revenue has been allowed. Following similar reasonings, the ground of appeal No. (vi) raised by the revenue is allowed. Other grounds being general in nature are dismissed. 42. In the result, both the appeals filed by the revenue are partly allowed. 48 Tracks & Towers Infratech Pvt.Ltd. (Part IX) Order pronounced in the Open Court on 26 th May, 2023. Sd/- Sd/- (LALIET KUMAR) JUDICIAL MEMBER (RAMA KANTA PANDA) ACCOUNTANT MEMBER Hyderabad, dated 26 th May, 2023 Thirumalesh/sps Copy to: S.No Addresses 1 DCIT, Circle-2(2) Room No.513, 5 th Floor Signature Tower Opposite Botanical Garden Kondapur Hyderabad-500 084 2 M/s. Tracks & Towers Infratech Private Limited (Part IX) #8-2-293/82/A/J/11 Plot No.206, Road No.76 Jubilee Hills Hyderabad-500 033 3 Pr.CIT-2, Hyderabad 4 DR, ITAT Hyderabad Benches 5 Guard File By Order