DCIT, Circle-33, Kolkata, Kolkata V. M/S. Simplex Somdatt Builders J.V., Kolkata

ITA 155/KOL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1339 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 04-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G HANGSHING
• Keywords: Retrospective amendment
• Section: 143(3); 194C

Judgement Text

1 ITA NO.155/KOL/2015 SIMPLEX SOMDATT BUILDERS J.V.., AY, 2009-10 , B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA ( ) . . , . ' # $% % , '( ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] I.T.A. NO. 155/KOL/2015 ASSESSMENT YEAR: 2009-10 DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-33, KOLKATA VS. M/S. SIMPLEX SOMDATT BUILDERS JV. (PAN: AACAS4701M) APPELLANT RESPONDENT DATE OF HEARING 07.09.2017 DATE OF PRONOUNCEMENT 04.10.2017 FOR THE APPELLANT SHRI G. HANGSHING, CIT (DR) FOR THE RESPONDENT SHRI RAVI TULSIYAN, FCA ORDER PER SHRI A.T.VARKEY, JM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A)-XIX, KOLKATA DATED 10.11.2014 FOR AY 2009-10. 2. IN THIS APPEAL OF REVENUE THE ONLY ISSUE IS AGAI NST THE ACTION OF LD. CIT(A) IN DELETING THE DISALLOWANCE OF CLAIM OF DEDUCTION U/S. 80IA(4) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 3. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME ON 22.09.2009 SHOWING TOTAL INCOME OF RS. NIL. THE CASE WAS SELE CTED FOR SCRUTINY AND ASSESSMENT WAS COMPLETED AT THE GROSS INCOME OF RS.7,58,28,400/- B Y AO U/S. 143(3) OF THE ACT DISALLOWING THE CLAIM OF THE ASSESSEE U/S. 80IA OF THE ACT, IN VIEW OF THE EXPLANATION TO THE SAID SECTION 80IA, INTRODUCED BY THE FINANCE ACT (NO.2), 2009 WI TH RETROSPECTIVE EFFECT FROM 01.04.2000. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A), WHO RELYING ON THE ORDER OF ITAT IN ASSESSEES OWN CASE ALLOWED TH E CLAIM OF ASSESSEE BY HOLDING THAT THE ASSESSEE IS ENTITLED TO GET DEDUCTION U/S. 80IA OF THE ACT. AGGRIEVED, REVENUE IS IN APPEAL BEFORE US. 3. AT THE TIME OF HEARING BEFORE US, THE LD. AR OF THE ASSESSEE SUBMITS THAT THE ISSUE IS SQUARELY COVERED BY THE EARLIER ORDER DATED 18.06.2 013 OF THE KOLKATA TRIBUNAL, B BENCH, KOLKATA IN ASSESSEES OWN CASE FOR AY 2007-08 IN IT A NO.1684/KOL/2011 AND COPY OF THE 2 ITA NO.155/KOL/2015 SIMPLEX SOMDATT BUILDERS J.V.., AY, 2009-10 SAME IS PLACED ON RECORD, WHEREIN THE TRIBUNAL VIDE ITS ORDER DIRECTED THE AO TO GRANT THE ASSESSEE BENEFIT OF DEDUCTION U/S. 80IA OF THE ACT. ON THE OTHER HAND, LD. DR RELIED ON THE ORDER OF THE AO AND URGED BEFORE THE BENCH TO REVER SE THE ORDER OF THE LD. CIT(A) AND CONFIRM THE ACTION OF THE AO AS THE REVENUE HAS PRE FERRED AN APPEAL BEFORE THE JURISDICTIONAL HIGH COURT AGAINST THE SAID ORDER OF TRIBUNAL DATED 18.06.2013, WHICH IS STILL PENDING BEFORE THE HONBLE HIGH COURT. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE ISSUE IS SQUARELY COVERED I N FAVOUR OF THE ASSESSEE BY THE DECISION OF KOLKATA TRIBUNAL, B BENCH, KOLKATA IN ASSESSEES OWN CASE FOR AY 2007-08 IN ITA NO.1684/KOL/2011 VIDE ORDER DATED 18.06.2013, WHERE IN THE TRIBUNAL HAS HELD AS UNDER: 11. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. ADM ITTEDLY, A PERUSAL OF THE AGREEMENT ENTERED INTO BETWEEN THE ASSESSEE AND THE GOVT OF A NDHRA PRADESH IRRIGATION & CAD DEPARTMENT SHOWS THAT THE ASSESSEE HAS TAKEN EPC/TU RNKEY CONTRACT OF THE FLOOD FLOW CANAL PROJECT FROM SRSP. THE NAME OF THE CONTRACT HAS BEE N EXTRACTED EARLIER IN THIS ORDER. THE SCOPE OF THE WORK IS ALSO EXTRACTED ABOVE. ADMITTED LY, THE ASSESSEE HAS TAKEN A TURNKEY CONTRACT FROM THE IRRIGATION DEPARTMENT, GOVT. OF A NDHRA PRADESH. THE TURNKEY CONTRACT IS IN RESPECT OF THE IRRIGATION PROJECT. IRRIGATION PROJE CT IS AN INFRASTRUCTURE FACILITY WITHIN THE SCOPE OF EXPLANATION TO SECTION 80IA(4) OF THE ACT. THE P ROVISIONS OF SECTION 80IA(4) IS TO BE CONTROLLED BY THE EXPLANATION TO SECTION 80IA, WHIC H HAS BEEN SUBSTITUTED BY THE FINANCE (NO.2) ACT, 2009 WITH RETROSPECTIVE EFFECT FROM 1-4 -2-2000. THIS EXPLANATION IS FOUND AFTER SUB-SECTION (13) OF SECTION 80IA. THE SAID EXPLANAT ION ATTEMPTS TO CONTROL THE PROVISIONS OF SUB-SECTION 4. MORE SO, IT SAYS THAT NOTHING CONTAI NED IN SECTION 80IA WOULD APPLY IN RELATION TO THE BUSINESS REFERRED TO SUB-SECTION (4), WHICH IS IN THE NATURE OF WORKS CONTRACT. A WORKS CONTRACT IS NOT DEFINED IN SECTION 80IA. NOW, WHAT WOULD COME INTO CONSIDERATION IS WHETHER THE SUBSTITUTED EXPLANATION AFTER SUB- CLAUSE (13) CHANGED THE NATURE OF THE MEANING OF INFRASTRUCTURE FACILITY PROVIDED IN THE EXPLANATI ON TO SECTION 80IA(4). ADMITTEDLY, THE EXPLANATION TO SECTION 80IA(4) GIVES THE MEANING TH E TERM INFRASTRUCTURE FACILITY. THE SUBSTITUTED EXPLANATION AFTER SUB CLAUSE (13) BRING S IN THE NATURE OF WORK AS A WORKS CONTRACT. THE PROVISIONS OF SECTION 194C, WHICH DEALS WITH TD S IN RESPECT OF PAYMENT TO CONTRACTORS FOR CARRYING OUT ANY WORK IN THE EXPLANATION THERETO AS EXPLAINED THE TERM WORK TO BE AN INCLUSIVE DEFINITION, BUT HAS PROVIDED AN EXCLUSION TO BE DOES NOT INCLUDE MANUFACTURING OR SUPPLYING OF A PRODUCT. ACCORDING TO REQUIREMENT OR SPECIFICATION OF THE CUSTOMER BY USING MATERIALS PURCHASED FROM A PERSON, OTHER THAN SUCH CUSTOMER. THUS, WITH THIS IN MIND, A PERUSAL OF THE TURNKEY CONTRACT AGREEMENT ENTERED I NTO BY THE ASSESSEE WITH THE IRRIGATION DEPARTMENT, GOVT OF A.P CLEARLY SHOWS THAT THE CONS TRUCTION OF ALL THE STRUCTURES OF THE WHOLE CANAL SYSTEM IS TO BE AS PER APPROVED DESIGN, DRAWI NGS, SPECIFICATIONS OF THE DEPARTMENT ETC. THE SURVEY IS TO BE DONE AS PER INVESTIGATION AND D ESIGNING CRITERIA OF THE IRRIGATION DEPARTMENT. THIS IS ALSO AS PER ARTICLE 11.1 OF THE AGREEMENT. THE ASSESSEE IS TO PROCURE THE MATERIALS INDEPENDENTLY AND THOSE MATERIALS ARE TO CONFIRM TO THE SPECIFICATIONS PROVIDED. THE ASSESSEE IS ALSO TO MAKE ITS ARRANGEMENTS FOR STORA GE OF THE MATERIALS. THIS IS AS PER ARTICLE 107 OF THE AGREEMENT. THUS, ADMITTEDLY THE WORK DON E BY THE ASSESSEE FALLS IN THE EXCLUSION PROVIDED TO THE MEANING OF THE WORK GIVEN IN THE EX PLANATION TO SECTION 194C OF THE ACT. ONCE IT FALLS OUTSIDE THE MEANING OF TERM WORK FOR THE PURPOSE OF SECTION 194C, THE QUESTION THAT ARISES IS CAN IT BE SAID THAT THE ASSESSEE IS DOING THE WORK CONTRACT AS PROVIDED IN THE SUBSTITUTED EXPLANATION IN SECTION 80IA AFTER SUB C LAUSE (13)?, THE ANSWER WOULD BE EMPHATIC NO. 3 ITA NO.155/KOL/2015 SIMPLEX SOMDATT BUILDERS J.V.., AY, 2009-10 12. THIS IS BECAUSE THE ASSESSEE IS DOING THE ACTIV ITY OF DEVELOPMENT OF AN INFRASTRUCTURE FACILITY AS PROVIDED UNDER SECTION 80IA(4). THE PRO JECT IS A TURNKEY PROJECT AND IT CANNOT FORM NOR HAVE A CHARACTER OF A WORKS CONTRACT. WORKS CON TRACT WOULD BE APPLICABLE TO THE REPAIRS AND MAINTENANCE OF AN EXISTING PROJECT. WORKS CONTR ACT CANNOT BE IN RELATION TO THE DEVELOPMENT OF A NEW PROJECT. ONE OF THE ARGUMENTS RAISED BY THE LEARNED SR.DR THAT THE INTENTION OF THE SUBSTITUTION OF THE EXPLANATION AF TER SUB CLAUSE (13) OF SECTION 80IA WAS TO DENY, THE BENEFIT OF DEDUCTION U/S. 80IA(4) IN RESP ECT OF WORKS CONTRACT, BUT TO PROVIDE THE DEDUCTION TO SUCH UNDERTAKINGS, WHICH IS DOING THE BUSINESS OF BUILDING, OPERATING AND TRANSFER (BOT) AND BUILDING OWNING, OPERATING AND T RANSFER BOOT AS ALSO PPP CONTRACTS DOES NOT HOLD WATER IN SO FAR AS AN IRRIGATION PROJ ECT CAN NEVER FUNCTION UNDER BOT OR BOOT OR PPP . IN THE CIRCUMSTANCES, WE ARE OF THE VIEW T HAT THE ASSESSEES CLAIM IS NOT HIT BY THE SUBSTITUTED EXPLANATION AS PROVIDED AFTER SUB CLAUS E(13) OF SECTION 80IA.. HERE, WE MAY MENTION THAT THIS VIEW FINDS SUPPORT FROM THE DECIS ION OF THE CO-ORDINATE OF THE TRIBUNAL, [ITAT, HYDERABAD BENCH, HYDERABAD IN THE CASE OF GV PR ENGINEERS LTD & ORS (REFER TO SUPRA). WE MAY MENTION HERE THAT OUR VIEW ALSO FIND S SUPPORT FROM THE DECISION OF THE CO- ORDINATE BENCH OF THIS TRIBUNAL, ITAT CUTTACK BENCH , CUTTACK IN THE CASE OF ARSS INFRASTRUCTURE PROJECTS LTD VS. ACIT, CIRCLE-2 (1), BHUBANESWAR IN ITA NOS. 142, 143/CTK/2010 & 483,484/CTK/2011 DATED 13-06-2013, W HEREIN ONE OF US WAS A PARTY AND IN WHICH CASE IT HAS BEEN HELD AS UNDER :- 10. NOW COMING TO THE MERITS OF THE DEDUCTION U/S. 801A(4) OF THE ACT. A PERUSAL OF THE PROVISIONS OF SECTION 801A(4) OF THE ACT SHOWS THAT IN THE EXPLANATION INFRASTRUCTURE FACILITY HAS BEEN SPECIFIED TO MEAN A ROAD INCLUDI NG A TOLL ROAD, A BRIDGE OR A RAIL SYSTEM. ADMITTEDLY, THE ASSESSEE IS DOING THE BUSIN ESS OF DEVELOPMENT OF RAILWAY TRACKS AND BRIDGES THEREOF AS ALSO ROADS. IF, WE AR E TO ACCEPT THE CONTENTION OF THE LD. CIT THAT THE PROVISIONS OF SECTION 801A(4) OF THE A CT AFTER THE SUBSTITUTION OF THE EXPLANATION TO SECTION 8OIA OF THE ACT WAS INTRODUC ED WAS ONLY FOR THE PURPOSE OF GIVING THE BENEFIT TO BUT CONTRACTS THEN, THE EXPLA NATION TO SECTION 801A(4) OF THE ACT BECOMES OTIOSE. THIS IS AS EXPLANATION TO SECTION 8 01A(4) OF THE ACT SPECIFICALLY PROVIDES FOR THE ROAD TO INCLUDE A TOLL ROAD, A BRI DGE OR A RAIL SYSTEM. BUT CONTRACT IN RESPECT OF THE RAILWAY SYSTEM CAN NEVER EXIST. FURT HER, A PERUSAL OF THE PROVISIONS OF SECTION 801A OF THE ACT SHOWS THAT THE TERM WORKS CONTRACT IS NOT DEFINED IN THE SAID SECTION. HOWEVER, THE TERMS WORKS AND CONTRACT IS DEFINED IN THE PROVISIONS OF SECTION 194C OF THE ACT. IF A PARTICULAR WORD OR TE RM IS NOT DEFINED IN THE SPECIFIC SECTION THEN, ONE COULD GO TO OTHER SECTIONS IN THE SAID ACT WHERE THE DEFINITION WOULD BE AVAILABLE TO DRAW A MEANING TO THE SAID TERMS. I N THE PROVISIONS OF SECTION 194C OF THE ACT, WORK HAS BEEN GIVEN AN INCLUSIVE DEFINITIO N BUT IN THE SUBSEQUENT PORTION IT HAS EXCLUDED THE MANUFACTURING OR SUPPLYING A PRODU CT ACCORDING TO REQUIREMENT OR SPECIFICATION OF A CUSTOMER BY USING MATERIAL PURCH ASED FROM A PERSON OTHER THAN SUCH CUSTOMER. AS HAS BEEN SPECIFIED BY THE LD. AR, THE ASSESSEE IS DOING CONTRACT WORK BUT THAT WORK IS ACCORDING TO THE REQUIREMENT AND SPECIFICATION OF THE CUSTOMER AND THE SAME HAS BEEN DONE BY USING MATERIALS PURCH ASE FROM THIRD PARTIES OTHER THAN THE CUSTOMERS. THUS, THOUGH THE ASSESSEE IS DOING A WORKS CONTRACT THE SAME WOULD NOT FALL WITHIN THE MEANING OF THE WORD WORKS CONT RACT FOR THE PURPOSE OF THE ACT DUE TO THE EXCLUSION PROVIDED IN THE MEANING OF WORK IN SECTION 194C OF THE ACT. THE ISSUE RAISED BY THE LD. CIT THAT THE ASSESSEE IS NO T DOING THE DEVELOPMENT WORK BUT IS ONLY DOING THE CONTRACT ALSO DOES NOT STAND TO TEST AS THE ASSESSEE ADMITTEDLY IS DEVELOPING THE ROADS AND RAILWAY LINES AND THE BRID GES THEREOF. DEVELOPMENT ENCOMPASSES WITHIN ITSELF CONTRACT WORK. THE AGREEM ENT BETWEEN THE ASSESSEE AND THE CUSTOMER BEING THE GOVERNMENT IS FOR THE DEVELOPMEN T OF THE INFRASTRUCTURE FACILITY BEING ROADS AND RAIL SYSTEMS AND BRIDGES BY PARTICI PATING IN THE TENDERS. UNDER THESE CIRCUMSTANCES, WE ARE OF TH VIEW THAT THE AO WAS RI GHT IN LAW IN GRANTING THE ASSESSEE THE BENEFIT OF DEDUCTION U/S. 801A(4) OF THE ACT. 13. IN THE CIRCUMSTANCES, THE ASSESSING OFFICER IS DIRECTED TO GRANT THE ASSESSEE THE BENEFIT OF DEDUCTION U/S. 80IA OF THE ACT AS CLAIMED. 4 ITA NO.155/KOL/2015 SIMPLEX SOMDATT BUILDERS J.V.., AY, 2009-10 RESPECTFULLY FOLLOWING THE DECISION CITED SUPRA, WE ARE OF THE OPINION THAT THE LD. CIT(A) WAS JUSTIFIED IN DIRECTING THE AO TO ALLOW THE DEDU CTION U/S. 80IA OF THE ACT AS CLAIMED BY IT. THEREFORE, WE UPHOLD THE ORDER OF LD. CIT(A) A ND ACCORDINGLY, THE GROUND RAISED BY THE REVENUE IS DISMISSED. 5. IN THE RESULT, APPEAL OF REVENUE IS DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 4 TH OCTOBER, 2017 SD/- SD/- (DR. A. L. SAINI) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 4 TH OCTOBER, 2017 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT DCIT, CIRCLE-33, KOLKATA 2 RESPONDENT M/S. SIMPLEX SOMDATT BUILDERS JV., S IMPLEX HOUSE, 27, SHAKESPEARE SARANI, KOLKATA-700 017. 3. THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, SR. PVT. SECRETARY