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

ITA 1582/CHANDI/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 4943 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 9 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-10-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 18-12-2018

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, B, CHANDIGARH . . , , BEFORE SHRI N.K. SAINI, VICE PRESIDENT & SHRI SANJAY GARG, JUDICIAL MEMBER ./ ITA NO. 1582/CHD/2018 / ASSESSMENT YEAR : 2014-15 M/S UNIPRO TECHNO INFRASTRUCTURE PRIVATE LTD., SCO 36,SECTOR 7-C CHANDIGARH VS. ! THE DCIT, CIRCLE-1(1), AAYKAR BHAWAN, PLOT NO.17E, SECTOR 17-E, CHANDIGARH ' # ./ PAN NO: AABCU1732D '$/ APPELLANT &' '$ / RESPONDENT ()*+ /ASSESSEE BY : SH. SUDHIR SEHGAL, ADVOCATE & SHRI A.K.SOOD, CA *+ / REVENUE BY : DR.DAYA INDER SINGH SIDHU, ADDL CIT , -*).# /DATE OF HEARING : 23.09.2020 /0*).# / DATE OF PRONOUNCEMENT : 10.2020 / ORDER PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESS EE AGAINST THE ORDER DATED 01.09.2018 OF THE COMMISSIONER OF INCOM E TAX-4, LUDHIANA [HEREINAFTER REFERRED TO AS CIT(A)] 2. THE ASSESSEE IN THIS APPEAL HAS TAKEN FOLLOWING GROUNDS OF APPEAL:- 1. THAT THE ORDERS OF THE. COMMISSIONER OF INCOME T AX(A)-4, LUDHIANA CONFIRMING THE DISALLOWANCE OF RS. 81,61,7 83/- U/S 80IA ARE CONTRARY TO LAW AND FACTS OF THE CASE. ITA NO. 1582-CHD-2018- UNIPRO TECHNO INFRASTRUCTURE PRIVATE LTD, CHANDIGAR H 2 2. THAT THE LD. CIT(A)-4, LUDHIANA HAS ERRED IN CON FIRMING THE DISALLOWANCE OF RS. 81,61,783/- U/S 80IA OF THE INC OME TAX ACT, 1961 BY THE LD. DCIT IN HER ORDERS U/S 143(3) ON TH E PLEA THAT THE ASSESSEE IS A CONTRACTOR NOT A DEVELOPER. 3. THE SOLE ISSUE INVOLVED IN THIS APPEAL IS RELATI NG TO THE ELIGIBILITY OF THE ASSESSEE TO CLAIM DEDUCTION U/S 80IA OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT'). 4. THE BRIEF FACTS RELATING TO THE ISSUE ARE THAT T HE ASSESSEE IS PRIMARILY ENGAGED IN DEVELOPING / PROVIDING LIFT IR RIGATION SCHEME/ LIFT WATER SUPPLY SCHEME FOR DIFFERENT STATE GOVERNMENTS . THE ASSESSEE CLAIMS THAT THE SAID DEVELOPMENT WORK CARRIED OUT B Y THE ASSESSEE FALLS WITHIN THE DEFINITION AND SCOPE OF INFRASTRUCTURE D EVELOPMENT, MAINTENANCE AND OPERATION ACTIVITY, HENCE, ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S 80IA(4) OF THE ACT. THE ASSESSEE, HAD ENTERED INTO AGREEMENTS IN EARLIER YEARS FOR DEVELOPING / PROVID ING LIFT IRRIGATION SCHEMES / LIFT WATER SUPPLY SCHEME AT DIFFERENT PLA CES WITH RESPECTIVE STATE AUTHORITIES SUCH AS IRRIGATION AND PUBLIC HEA LTH DEPARTMENT OF HIMACHAL PRADESH GOVT. AND THAT OF GOVT. OF UTTRAKH AND AND ALSO WITH GOVT. OF RAJASTHAN. ADMITTEDLY, THE ISSUE RELATING TO THE ELIGIBILITY OF THE ASSESSEE TO CLAIM DEDUCTION U/S 80IA OF THE ACT IN RESPECT OF THE ABOVE PROJECTS INCLUDING SIMILAR TYPES OF OTHER PRO JECTS / CONTRACTS ENTERED INTO BY THE ASSESSEE HAS ALREADY BEEN CONSI DERED BY THE TRIBUNAL IN THE OWN CASE OF THE ASSESSEE FOR EARLIER ASSESS MENT YEARS. THE ITA NO. 1582-CHD-2018- UNIPRO TECHNO INFRASTRUCTURE PRIVATE LTD, CHANDIGAR H 3 TRIBUNAL IN IDENTICAL CIRCUMSTANCES THOUGH WHILE AD JUDICATING UPON THE ACTION OF THE PCIT TO INVOKE REVISION JURISDICTION U/S 263 OF THE ACT HAS ALREADY DISCUSSED THE ISSUE ON MERIT ALSO. THE TRI BUNAL IN THIS RESPECT HAS ALSO RELIED ON ANOTHER DECISION OF THE TRIBUNAL IN THE OWN CASE OF THE ASSESSEE FOR ASSESSMENT YEARS 2011-12 & 2012-13 ALSO AND AFTER DETAILED DISCUSSIONS IT HAS BEEN HELD THAT THE WORK S CARRIED OUT BY THE ASSESSEE FALL WITH THE SCOPE AND PURVIEW OF INFRAST RUCTURE DEVELOPMENT FACILITY ELIGIBLE FOR DEDUCTION U/S 80IA OF THE ACT . FOR THE SAKE OF COMPLETENESS, THE RELEVANT PART OF THE ORDER DATED 29.01.2020 OF THE TRIBUNAL PASSED IN ITA NO. 749/CHD/2018 FOR ASSESSM ENT YEAR 2013-14 IS REPRODUCED AS UNDER:- 13. BEFORE PROCEEDING FURTHER IT IS PERTINENT TO M ENTION HERE THAT AS PER PROVISIONS OF SECTION 80IA(4), DEDUCTION HAS BEEN ALLOWED TO AN ASSESSEE WHO HAS ENTERED INTO AN AGREEMENT EITHE R WITH THE CENTRAL OR A STATE GOVERNMENT OR A LOCAL BODY OR AN Y STATUTORY BODY FOR - (I) DEVELOPING OR (II) OPERATING AND MAINTAINING OR (III) DEVELOPING, OPERATING AND MAINTAINING A NEW INFRASTRUCTURE FACILITY. THE ASSESSEE, ADMITTEDLY, HAD ENTERED INTO NINE AGR EEMENTS UP TO THE YEAR UNDER CONSIDERATION FOR DEVELOPING / PROVIDING LIFT IRRIGATION SCHEMES/ LIFT WATER SUPPLY SCHEME WITH VARIOUS STAT E AUTHORITIES SUCH AS IRRIGATION AND PUBLIC HEALTH DEPTT, OF HIM ACHAL PRADESH GOVT. AND THAT OF GOVT. OF UTTRAKHAND. THE CONTRAC TS WERE COMPOSITE CONTRACTS REQUIRING THE ASSESSEE NOT ONLY TO DEVELOP FACILITY BUT ALSO TO OPERATE AND MAINTAIN THE FACIL ITIES FOR SPECIFIC NUMBER OF YEARS I.E. FIRSTLY, THE DEVELOPMENT OF PR OJECT WHICH WOULD TAKE 1 TO 3 YEARS AND THEN TO OPERATE AND MAINTAIN PROJECTS FOR ONE TO FIVE YEARS. SO FAR AS THE THURAL PROJECT IS CONCE RNED, THE QUESTION AS TO WHETHER THE PROJECT DEVELOPED BY THE ASSESSEE WAS AN INFRASTRUCTURE DEVELOPMENT PROJECT / CONTRACT AWARD ED BY THE GOVERNMENT, CAME INTO CONSIDERATION BEFORE THIS TRI BUNAL IN THE ITA NO. 1582-CHD-2018- UNIPRO TECHNO INFRASTRUCTURE PRIVATE LTD, CHANDIGAR H 4 APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2011-12 AND THE TRIBUNAL AFTER CONSIDERING THE FACTS AND CIRCUMSTANCES OF TH E CASE HELD THAT THE THURAL PROJECT WAS DEVELOPED BY THE ASSESSEE AS PER THE COMPOSITE CONTRACT AWARDED BY THE GOVERNMENT AND WO ULD BE ELIGIBLE FOR DEDUCTION U/S 80IA(4) OF THE INCOME-TA X ACT. THEN IN THE NEXT YEAR RELEVANT TO AY 2012-13, THE ASSESSEE WAS AWARDED THREE MORE CONTRACTS OF SIMILAR NATURE. THE LD. PCI T CITING SIMILAR REASONS AS WERE GIVEN IN HER ORDER FOR AY 2011-12, EXERCISED HER JURISDICTION U/S 263 OF THE ACT AND HELD THAT THE A SSESSING OFFICER HAD NOT PROPERLY EXAMINED THE ISSUE AS TO WHETHER T HE CONTRACTS ENTERED INTO BY THE ASSESSEE IN RESPECT OF THE THRE E NEW PROJECTS WERE INFRASTRUCTURE DEVELOPMENT CONTRACTS ALLOWABLE FOR DEDUCTION U/S 80IA OR THE SAME WERE SIMPLE WORKS CONTRACTS SPECIF ICALLY EXCLUDED FROM THE APPLICABILITY UNDER THE PROVISIONS OF SECT ION 80IA AS PER EXPLANATION TO SUB SECTION (13)OF SECTION 80IA OF THE ACT. THE TRIBUNAL DISCUSSED THE MATTER IN DETAIL AND VIDE OR DER DATED 6.2.2017 IN ITA NO.361/CHD/2016 FOR ASSESSMENT YEAR 2011- 12 & ALSO VIDE SUBSEQUENT ORDER DATED 1.12.2017 (ITA NO. 867/CHD/ 2017) FOR ASSESSMENT YEAR 2012-13 AND HELD THAT THE LD. PCIT HAD FAILED TO DIFFERENTIATE THE NATURE OF THE OTHER THREE PROJECT S FROM THE THURAL PROJECT. AFTER DETAILED DISCUSSION, THE APPEALS O F THE ASSESSEE WERE ALLOWED AND THE ORDER OF THE LD. PCIT U/S 263 OF TH E ACT WAS QUASHED. FROM THE ABOVE FACTS, IT COMES OUT THAT T HE NATURE OF THE CONTRACTS AND DEVELOPMENT ACTIVITIES OF THE ASSESS EE HAVE BEEN EXAMINED BY THE TRIBUNAL AND AFTER EXTENSIVE DISCUS SION, IT HAS BEEN HELD THAT THE CONTRACT OF THE DEVELOPMENT OF THE SA ID PROJECT WAS AN INFRASTRUCTURE DEVELOPMENT CONTRACT AND, HENCE, ELI GIBLE FOR DEDUCTION U/S 80IA(4)OF THE ACT. IN THE YEAR UNDER CONSIDERATION, AS PER THE LD. PCIT, THE ASSESSEE HAS BEEN AWARDED FIV E NEW CONTRACTS, HOWEVER, THE PCIT HAS NOT POINTED OUT OR DISCUSSED AS TO HOW THE NATURE OF THEESE FIVE NEW DEVELOPMENT PROJECTS UNDE RTAKEN DURING THE YEAR WAS DIFFERENT FROM THE NATURE / FACTS OF T HE THURAL PROJECT AS CARRIED OUT BY THE ASSESSEE IN THE ASSESSMENT YE AR 2011-12 WHEN IT WAS IN ITS DEVELOPMENT STAGE. SHE HAD NOT DISCUS SED AS TO WHY FINDINGS OF THIS TRIBUNAL FOR ASSESSMENT YEAR 2011- 12, WHICH WAS IN RELATION TO THE NATURE OF THE THURAL PROJECT WHEN IT WAS IN DEVELOPMENT STAGE, WOULD NOT BE APPLICABLE TO THE N EW PROJECTS UNDERTAKEN. HOWEVER, SHE HAS TAKEN AN ENTIRELY INA PPROPRIATE AND ILLOGICAL PLEA THAT THIS YEAR THURAL PROJECT IS E NTERED INTO THE FOURTH YEAR AND, THUS, THE ACTIVITY CARRIED OUT BY THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION IN RESPECT OF THE THURAL PROJECT IS ONLY OPERATION AND MAINTENANCE, THEREFORE, THE FACTS OF THE THURAL PROJECT FOR THE YEAR UNDER CONSIDERATION ARE DIFFE RENT FROM OTHER PROJECTS. IT IS PERTINENT TO MENTION HERE THAT THE NATURE OF THE THURAL PROJECT AND THE ACTIVITY CARRIED OUT BY THE ASSESS EE FOR THE ASSESSMENT YEAR UNDER CONSIDERATION, WHEN THE THUR AL PROJECT IS REACHED IN ITS FOURTH YEAR WAS NOT UNDER CONSIDERAT ION OR ADJUDICATION BY THE TRIBUNAL IN RESPECT OF THE APPE AL OF THE ASSESSEE FOR ASSESSMENT YEAR 2011-12 AND EVEN IN THE APPEAL FOR ASSESSMENT ITA NO. 1582-CHD-2018- UNIPRO TECHNO INFRASTRUCTURE PRIVATE LTD, CHANDIGAR H 5 YEAR 2012-13, SINCE, THE THURAL PROJECT IN THOSE YEARS WAS IN ITS DEVELOPMENTAL STAGE, HENCE, THE TRIBUNAL CONSIDERIN G THE NATURE OF THE CONTRACT HELD THAT IT WAS AN INFRASTRUCTURE DEV ELOPMENT PROJECT. SINCE THE LD. PCIT HAS NOT BROUGHT ANY DIFFERENTIAT ING OR DISTINGUISHING FACT ABOUT THE DEVELOPMENT ACTIVITY CARRIED IN THE THURAL PROJECT AS COMPARED TO THE OTHER EIGHT PRO JECTS UNDERTAKEN BY THE ASSESSEE, HENCE, UNDER THE CIRCUMSTANCES, TH E FINDINGS ARRIVED AT BY THE TRIBUNAL IN RESPECT OF THURAL PROJECT A RE SQUARELY APPLICABLE TO THE OTHER PROJECTS ALSO. IT IS ALSO P ERTINENT TO MENTION HERE THAT THE NATURE OF THE OTHER THREE PROJECTS WH ICH WERE STARTED IN THE YEAR 2012-13 HAS ALSO CAME FOR CONSIDERATION IN THE APPEAL OF THE ASSESSEE AGAINST THE ORDER PASSED U/S 263 OF THE PC IT AND IT HAS BEEN SPECIFICALLY HELD THAT THE LD. PCIT HAD FAIL ED TO POINT OUT ANY DIFFERENCE BETWEEN THE THURAL PROJECT AND THE OTH ER THREE PROJECTS CARRIED OUT BY THE ASSESSEE IN THE SAID YEAR. HOWEVER, AGAIN VIDE IMPUGNED ORDER, THE LD. PCIT T HOUGH, FULLY AWARE OF THE EARLIER FINDINGS OF THE TRIBUNAL, YET, PROCEEDED TO PASS THE IMPUGNED ORDER U/S 263 OF THE ACT WITHOUT BRIN ING ANY DISTINGUISHING FASTS REGARDING THE NATURE OF THE NE W CONTRACT WHEN COMPARED TO THE EARLIER FOUR CONTRACTS CARRIED OUT BY THE ASSESSEE. MOREOVER, THE LD. PCIT HAS HELD THAT THE ASSESSEE I S ELIGIBLE FOR DEDUCTION IN RESPECT OF THE THURAL PROJECT FOR TH E YEAR UNDER CONSIDERATION BEING THE FOURTH YEAR OF THE PROJECT AND THAT THE ASSESSEE HAS TO ONLY OPERATE AND MAINTAIN THE SAID INFRASTRUCTURE FACILITY NAMELY THURAL PROJECT. BY SAYING SO, THE LD. PCIT HERSELF HAS IMPLIEDLY ADMITTED THAT THE THURAL PROJECT IS AN INFRASTRUCTURE DEVELOPMENT PROJECT AND AS PER THE PROVISIONS OF SE CTION 80IA(4) OF THE ACT, THE DEDUCTION HAS BEEN ALLOWED FOR DEVELOP ING OR OPERATING AND MAINTAINING OR FOR DEVELOPING, OPERATING AND M AINTAINING A NEW PROJECT FACILITY. 14. SO FAR AS THE OBSERVATION MADE BY THE LD. PCIT THAT THE DEVELOPMENT ACTIVITY CARRIED OUT BY THE ASSESSEE, W HETHER, WOULD FALL IN THE DEFINITION OF THE WORKS CONTRACT, THE SAID ISSUE HAS BEEN THOROUGHLY DISCUSSED BY THE TRIBUNAL IN ORDER DATED 6.2.2017 IN ITA NO.361/CHD/2016 FOR ASSESSMENT YEAR 2011-12 & DA TED 1.12.2017, ITA NO. 867/CHD/2017)FOR ASSESSMENT YEAR 2012-13, T HE RELEVANT FINDINGS OF THE TRIBUNAL GIVEN IN ORDER DATED 6.2.2 017 FOR ASSESSMENT YEAR 2011-12 (SUPRA) IN THIS RESPECT, AR E REPRODUCED AS UNDER:- 8. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED TH E ORDER OF THE LEARNED PR. CIT AND THE DOCUMENTS PLACED BEFORE US. 9. ON PERUSAL OF THE ORDER OF THE LEARNED PR.CIT WE FIND THAT THE FIRST REASON FOR INVOKING REVISIONARY POWERS U NDER SECTION 263 WAS THAT THE ASSESSING OFFICER HAD NOT EXAMINED THE CLAIM OF THE ASSESSEE OF DEDUCTION UNDER SECTION 80IA OF THE ACT VIS-A- VIS THE APPLICABILITY OF THE EXPLANATION TO SUB-SEC TION(13) OF ITA NO. 1582-CHD-2018- UNIPRO TECHNO INFRASTRUCTURE PRIVATE LTD, CHANDIGAR H 6 SECTION 80IA OF THE ACT. THE LEARNED PR. CIT HAS H ELD THAT AS PER THE AFORESAID EXPLANATION TO THE SECTION WORK CONTRACTS ARE NOT ELIGIBLE FOR DEDUCTION UNDER SECTION 80IA(4) AN D APPARENTLY THE PROJECT UNDERTAKEN BY THE ASSESSEE IS COVERED U NDER THE DEFINITION OF WORKS CONTRACT. MOREOVER THE ASSESS ING OFFICER HAS NOT EXAMINED THIS ASPECT DURING THE COURSE OF A SSESSMENT AND NO VERIFICATIONS WERE MADE BY THE ASSESSING OFF ICER, THEREFORE, AS PER THE LEARNED PR. CIT, THE ASSESSEE HAS BEEN WRONGLY ALLOWED DEDUCTION OF ITS PROFITS UNDER SECT ION 80IA(4) OF THE ACT CAUSING PREJUDICE TO THE REVENUE. BEFORE US LD. COUNSEL FOR THE ASSESSEE MADE ARGUMENTS CHALLENGING THE JURISDICTION OF THE PR.CIT TO INVOKE REVISIONARY PO WERS ON THIS ASPECT AS ALSO ON THE MERITS OF THE CLAIM OF DEDUCT ION UNDER SECTION 80IA(4). CHALLENGING THE ASSUMPTION OF JURI SDICTION OF THE LEARNED PR. CIT, THE LD. COUNSEL OF THE ASSESSE E STATED THAT THIS ISSUE HAD BEEN EXAMINED DURING ASSESSMENT PROC EEDINGS AND THE ASSESSING OFFICER, AFTER DUE APPLICATION OF MIN D, HAD ALLOWED THE ASSESSEES CLAIM OF DEDUCTION UNDER SEC TION 80IA(4). THE LD. COUNSEL FOR THE ASSESSEE STATED THAT REVIEW OF THE ORDER WAS ONLY ON ACCOUNT OF CHANGE OF OPINION AND COULD NOT BE EXERCISED UNDER SECTION 263 OF THE ACT. IN SUPPORT OF ITS CONTENTION THAT THE ISSUE HAD BEEN EXAMINED BY THE AO DURING ASSESSMENT PROCEEDINGS THE LD. COUNSEL FOR THE ASSE SSEE DREW OUR ATTENTION TO THE FOLLOWING: A) THE RETURN OF INCOME FOR THE IMPUGNED YEAR ACCOMPANIED BY AUDIT REPORT UNDER SECTION 80 IA IN FORM NO. 10 CCB ON THE BASIS OF WHICH DEDUCTION UNDER SE CTION 80 IA WAS CLAIMED BY THE ASSESSEE PLACED AT PAPER B OOK PAGE NO. 1 TO 26 B) THE QUESTIONNAIRE RECEIVED FROM THE ASSESSING OFFICER AND THE RELEVANT QUERIES RAISED AT SERIAL N O. 5,6,7 AND 11 OF THE SAME RELATING TO THE CLAIM OF THE ASS ESSEE UNDER SECTION 80 IA PLACED AT PAPER BOOK PAGE NO. 2 9 TO 35. THE RELEVANT QUERIES RAISED IN THE QUESTIONNAIR E ARE AS FOLLOWS: 5. AS PER INFORMATION FILED BY YOU, IT HAS SEEN TH AT YOU HAD UNDERTAKEN CONTRACT FOR PROVIDING LIFT WATER SUPPLY SCHEME FRO M EXECUTIVE ENGINEER, IPH AND CLAIMED THIS INCOME AS EXEMPT U/S 80IA AND GOT SUB-CONTRACT FROM NKG INFRA IN WHICH INCOME IS TAXABLE. PLEASE P ROVIDE THE COMPLETE DETAILS IN THIS REGARD ALONGWITH COPY OF CONTRACT W ITH THEM. PLEASE ALSO PROVIDE DETAILS HOW YOU ARE ELIGIBLE FOR EXEMP TION U/S 801A WHEN YOU ARE CONDUCTING ACTIVITIES UNDER CONTRACT. 6. YOU HAVE ALSO CLAIM EXEMPTION AMOUNTING TO RS.52 ,35,708/- U/S 10(2A) AND RS.12, 11, 810/- U/S 80IA. PLEASE PROVID E THE COMPLETE DETAILS IN THIS REGARD ALONGWITH DOCUMENTARY EVIDEN CE. 7. AS PER AUDIT REPORT COL. NO. 26, THE AUDITOR HAS SHOWN DEDUCTION UNDER CHAPTER VI-A AT 'NIL' ON THE OTHER HAND IN THE COMP UTATION YOU HAVE CLAIMED UNDER CHAPTER VL-A AT RS. 12,11,810/-. PLEASE EXPLAIN THIS. ITA NO. 1582-CHD-2018- UNIPRO TECHNO INFRASTRUCTURE PRIVATE LTD, CHANDIGAR H 7 11. PLEASE STATE THE DATE ON WHICH THE COMPANY CAME INTO EXISTENCE. AS PER FORM NO. 10CCB ANNEXED WITH AUDIT REPORT AT PARA 8 THE AUDITOR HAS MENTIONED COMMENCEMENT OF OPERATION/ACTIVITY AS 13. 04.2010. AND AT PARA 9 THE INITIAL ASSESSMENT YEAR FROM WHEN DED UCTION U/S 80 -1A IS FOR THE A.Y. 2011-12. ON THE OTHER HAND, UNDER THE DETAIL OF FIXED ASSERT AS ON 31.03.2011, YOU HAVE SHOWN WDV OF THE FIXED A SSET AS ON 01.04.2010 AT RS.1,81,58,128/-. PLEASE FURNISH DETA ILS OF HOW WDV COMES TO EXIST ON 01.04.2010 WHEN YOUR DATE OF COMM ENCEMENT OF OPERATION STARTED ON 13.04.2010 AND SHOW CAUSE WHY DEPRECIATION CLAIMED BY YOU SHOULD NOT BE DISALLOWED AS IT SEEMS THAT YOU ARE FURNISHING INACCURATE PARTICULARS. PLEASE ALSO FURN ISH WHETHER YOU HAVE CLAIMED SUCH EXEMPTION U/S 80-LA IN THE PREVIOUS YE AR ALSO OR NOT? 12. FURTHER AT PARA 12 OF FORM NO.10CCB, YOU HAVE S HOWN SALES TAX REGISTRATION NO. IN WHICH IT HAS ASCERTAINED THAT Y OU WERE GOT REGISTERED WITH SALES TAX ON 09.07.2009. PLEASE STATE WHETHER YOU HAVE GOT SALE TAX NO. BEFORE THE COMPANY CAME INTO EXISTENCE. C) THE REPLY FILED BY THE ASSESSEE IN RESPONSE TO T HE QUERY RAISED DATED 13.08.13 PLACED AT PAPER BOOK PAGE NO. 36 TO 40. TH E RELEVANT REPLY OF THE ASSESSEE IN THE SAME POINTED OUT TO US BY THE LD. C OUNSEL FOR THE ASSESSEE IS AS FOLLOWS: 5. THE ASSESSEE COMPANY WAS AWARDED CONTRACT BY HI MACHAL PARDESH GOVERNMENT, IRRIGATION AND PUBLIC HEALTH DEPARTMENT , DIVISION THURAL AS UNDER; 'PROVIDING REHABILITATION AND SOURCE LEVEL AGUMENTA TION OF VARIOUS SCHEMES IN CHANGER AREA IN TENHIL JAISINGHPUR, PALA MPW, KHWIDIAN AND DERA IN DISTRICT KANGRA (HP) SUB HEAD:- CONSTRU CTION OF CIVIL WORK I.E. PERCOLATION WELL, PUMP HOUSE, DTAFF QUARTERS, LABORATORY BUILDING, INSPECTION HUT STORAGE TANKS, COMPOUND WALLS, RETAINING/BREAST -WALLS, WIRE CRATE WORKS, R OADS, STREET TRUSS BRIDGE, PROVIDING, LOWERING, LAYING AND JOINTING OF PIPE LINES INCLUDING SUPPLY AND FIXING OF REQUIRED VALVES AND SPECIALS, CONSTRUCTION OF ANCHOR BLOCKS/THRUST BLOCKS AND SUP PORTING PILLARS ETC FOR RISING MAIN, GRAVITY MAIN AND SUPPLY OF LAB EQUIPMENTS, INSPECTION VEHICLE AND MAINTENANCE VAN ETC. SUPPLY AND INSTALLATION OF PUMPING MACHINERY INCLUDING ACCESSORIES AND ELEC TROMECHANICAL EQUIPMENTS REQUIRED FOR STEPPING DOWN OF 11KVA POWE R SUPPLY AND POST COMPLETION OPERATION AND MAINTENANCE OF TH E WHOLE SCHEME FOR 60 MONTHS INCLUDING AUTOMATION.' THE COMPOSITE PROJECT AWARDED TO THE ASSESSEE IN PR OVIDING LIFT WATER SUPPLY SCHEME FROM EXECUTIVE ENGINEER, IRRIGATION & PUBLIC HEALTH, DIVISION THURAL, DISTT. KANGRA (HP) ON ACCOUNT OF PROVIDING REHABILI TATION AND SOURCE LEVEL AUGMENTATION OF VARIOUS SCHEMES IN CHANGER AREA IN TEHSIL JAISINGHPUR, PALAMPUR, KHUNDIAN AND DEHRA IN DISTT KANGRA HP COM PLETE CONSTRUCTION OF THE PROJECT INCLUDING OPERATION & MAINTENANCE OF THE WHOLE SCHEME IS COVERED UNDER SECTION 80IA. THE COPY OF CONTRACT WI TH EXECUTIVE ENGINEER HP IPH DIVN. THURAL FOR LIFT WATER SUPPLY SCHEME IS ENCLOSED HEREWITH. A COPY OF AGREEMENT AS SUB CONTRACTOR OF NKG INFRAS TRUCTURE LTD IS ALSO ENCLOSED HEREWITH. ITA NO. 1582-CHD-2018- UNIPRO TECHNO INFRASTRUCTURE PRIVATE LTD, CHANDIGAR H 8 D) REPLY DATED 29.08.2013 FOR THE PURPOSE OF CLAIM OF DEDUCTION UNDER SECTION 80IA PLACED AT PAPER BOOK P AGE 41 NUMBER. THE RELEVANT PORTION OF THE REPLY IS AS FOLLOWS: PLEASE REFER TO THE ASSESSMENT PROCEEDINGS IN THE CASE OF UNIPRO TECHNO INFRASTRUCTURE PRIVATE LIMITED, SCO 36, SECT OR 7, CHANDIGARH FOR THE A/Y 2011-12 PAN AACFU1025F. THE INFORMATION/DOCUMEN TS ASKED FOR IS AS UNDER; 2. THE PARTNERSHIP FIRM OF UNIPRO TECHNO INFRASTRUC TURE WAS CONVERTED INTO PRIVATE LIMITED COMPANY WITH EFFECT FROM 13.04 .2010 WITH ALL ITS ASSETS AND LIABILITIES WITH THE SAME SALES TAX REGI STRATION NUMBER. THE DEDUCTION U/S 8Q1A WAS FIRST CLAIMED IN THE A/Y 201 0-11. THE-YEAR UNDER REFERENCE IS THE SECOND YEAR FOR CLAIMING DED UCTION U/S 801A. E) THE ORDER PASSED BY THE ASSESSING OFFICER DEALIN G WITH THE ISSUE OF 80IA AT PARAS 3 TO 4.2 OF THE ORD ER AS FOLLOWS PLACED AT PAPER BOOK PAGE NOS. 44 TO 52 : 3. THE CASE OF THE ASSESSEE SELECTED UNDER CASS WI TH THE REASONS THAT 'AO TO EXAMINE THE REASONS & GENUINENESS FOR HIGH C LAIM OF REFUND OUT OF TDS'. WHEN CONFRONTED, THE ASSESSEE VIDE ITS REP LY DATED 13.08.2013, HAS SUBMITTED THAT IN THE YEAR 2011-12 A REFUND OF RS.10,47,850/- WAS CLAIMED AS A PART OF THE INCOME OF THE COMPANY AMOU NTING TO RS. 12,11,810/- WAS EXEMPT U/S 80IA AND TDS WAS DEDUCTE D ON THE TOTAL RECEIPT OF THE COMPANY, THE EXCESS AMOUNT OF TDS DE DUCTED WAS CLAIMED AS REFUND. 4. THE ASSESSEE-COMMISSIONER CAME INTO EXISTENCE W. E.F. 13.04.2010 AFTER CONVERSION FROM PARTNERSHIP FIRM, NAMELY M/S UNIPRO TECHNO INFRASTRUCTURE TO M/S UNIPRO TECHNO INFRASTR UCTURE PRIVATE LTD. WITH ALL ITS ASSETS AND LIABILITIES WITH SALE TAX R EGISTRATION NUMBER AND ALSO CARRIED FORWARDED THE SAME WDV OF THE FIRM AS ON THE LAST DATE OF 13.04.2013. 4.1 THE ASSESSEE COMPANY IS A PARTNER IN THE FI RM KAVERI INFRASTRUCTURE PRIVATE LTD. JV UNIPRO TECHNO INFRAS TRUCTURE IN WHICH IT IS HOLDING 95% SHARE. COPY OF THE PARTNERSHIP DEED IS PLACED ON RECORD. THE ASESSEE HAS EARNED A PROFIT OF RS.52,35,708/- AS PA RTNER ON ACCOUNT OF 95% SHARE OF PROFIT FROM THE FIRM AND CLAIMED EXEMP T U/S 10(2A) OF THE IT ACT, 1961. FARTHER, THE ASSESSEE COMPANY WAS AWARD ED CONTRACT BY HIMACHAL PARDESH GOVERNMENT, IRRIGATION AND PUBLIC HEALTH DEPARTMENT, DIVISION THURAL. THE COMPOSITE PROJECT AWARDED TO T HE ASSESSEE IN PROVIDING LIFT WATER SUPPLY SCHEME FROM EXECUTIVE ENGINEER, I RRIGATION & PUBLIC HEALTH, DIVISION THURAL, DISTT. KANGRA (HP) ON ACCO UNT OF PROVIDING REHABILITATION AND SOURCE LEVEL AUGMENTATION OF VAR IOUS SCHEMES IN CHANGER AREA IN TEHSIL JAISINGHPUR, PALAMPUR, KHUND IAN AND DEHRA IN DISTT. KANGRA HP COMPLETE CONSTRUCTION OF THE PRO JECT OF THE PROJECT INCLUDING OPERATION & MAINTENANCE OF THE WHOLE SCHE ME. 4.2 THE ACTIVITY UNDERTAKEN BY THE COMPAN Y FOR IPH THURAL QUALIFIES EXEMPTION U/S 80!A OF THE IT. ACT 1961, A ND THE INCOME IS 100% EXEMPT FOR 10 YEARS. IT MAY HE MENTIONED HERE THA T THIS THE 2 ND YEAR FOR CLAIMING EXEMPTION U/S (I.E. L ST YEAR IN THE HAND OF UNIPRO TECHNO ITA NO. 1582-CHD-2018- UNIPRO TECHNO INFRASTRUCTURE PRIVATE LTD, CHANDIGAR H 9 INFRASTRUCTURE FOR THE F.Y. 09-10 AND 2 ND YEAR IN THE HAND OF UNIPRO TECHNO INFRASTRUCTURE PRIVATE LIMITED W.E.F. 13.04. 2010, I.E. FOR THE F.Y. 2010-11) SINCE THE COMPANY HAS AWARDED THE SAM E PROJECT BY THE SAME GOVT. THIS YEAR, THE ASSESSEE HAS CLAIMED AN A MOUNT OF RS.12,11,810/- AS DEDUCTION U/S 80IA. THE ASSESSEE VIDE ITS REPLY, WHICH IS PLACED ON RECORD, HAS HIMSELF ADMITTED THAT THE YEA R UNDER REFERENCE IS THE SECOND YEAR FOR CLAIMING DEDUCTION U/S 801A. 10. RELYING UPON THE ABOVE DOCUMENTS LD. COUNSEL FO R THE ASSESSEE STATED THAT RELEVANT QUERIES RELATING TO E LIGIBILITY OF THE CLAIM OF ASSESSEE OF DEDUCTION UNDER SECTION 80 IA WAS RAISED BY THE ASSESSING OFFICER DURING ASSESSMENT P ROCEEDINGS, DUE REPLY WAS FILED BY THE ASSESSEE AFTER CONSIDERI NG WHICH AND AFTER APPLYING HIS MIND TO WHICH THE ASSESSING OFFI CER PASSED A DETAILED REPLY ALLOWING DEDUCTION UNDER SECTION 80I A TO THE ASSESSEE. THEREAFTER LD. COUNSEL FOR THE ASSESSEE D REW OUR ATTENTION TO THE FACT THAT THE VIEW TAKEN BY THE AS SESSING OFFICER IN ALLOWING THE CLAIM OF THE ASSESSEE UNDER SECTION 80IA WAS CORRECT SINCE IT WAS ADEQUATELY PROVED BEFORE HIM T HAT THE CONTRACT AWARDED TO THE ASSESSEE WAS A COMPOSITE CO NTRACT AWARDED ON BUILD, OPERATE AND TRANSFER BASIS FOR TH E EXECUTION OF WHICH THE MACHINERY INSTALLED INCLUDING ITS COMP ONENTS, ENGINEERS AND LABOUR EMPLOYED, DESIGNING, EXECUTION , FINANCING IN THE FORM OF CAPITAL INVESTMENT, ENTERPRISE RISK, PERFORMANCE GUARANTEE ETC WAS THE RESPONSIBILITY OF THE ASSESSE E. THE LD. COUNSEL FOR THE ASSESSEE POINTED OUT THAT THE CONTR ACT IN ANY CASE COULD NOT BE SAID TO BE A WORKS CONTRACT FOR THE PURPOSE OF EXPLANATION TO SUB-SECTION (13) TO SECTION 80IA( 4) AND THE ASSESSING OFFICER ON THE BASIS OF DOCUMENTS PRODUCE D BEFORE IT HAD RIGHTLY ARRIVED AT THE CONCLUSION THAT THE ASS ESSEE WAS ELIGIBLE TO CLAIM DEDUCTION UNDER SECTION 80IA OF T HE ACT. IN SUPPORT OF ITS CONTENTION THAT THE VIEW TAKEN BY TH E LD. COUNSEL FOR THE ASSESSEE WAS A CORRECT AND PLAUSIBLE VIEW L D. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE FACT THA T ON AN APPLICATION FILED BY THE ASSESSEE TO THE CIT (TDS) FOR ISSUING A CERTIFICATE FOR DEDUCTION OF TAX AT LOWER RATE ON A CCOUNT OF THE DEDUCTION CLAIMED BY THE ASSESSEE UNDER SECTION 80I A OF THE ACT, THE ASSESSEE WAS AWARDED A CERTIFICATE FOR ASSESSME NT YEARS 2010-11 TO 2013-14 PLACED AT PB-126 TO 134 AFTER C ONSIDERING ALL THE NECESSARY AND RELEVANT DOCUMENTS PROVING TH AT THE ASSESSEE WAS ELIGIBLE TO CLAIM DEDUCTION UNDER THE SAME. LD. COUNSEL FOR THE ASSESSEE POINTED OUT THE FACT THAT THE ASSESSEE HAD BEEN AWARDED A CERTIFICATE FOR DEDUCTION OF TAX AT LOWER RATE ON ACCOUNT OF ITS ELIGIBILITY TO CLAIM DEDUCTI ON UNDER SECTION 80IA OF THE ACT PROVED THAT THE VIEW TAKEN BY THE ASSESSING OFFICER ON THE BASIS OF DOCUMENTS BEFORE IT WAS CORRECT. LD. COUNSEL FOR THE ASSESSEE FURTHER DREW OUR ATTENTION TO THE FACT THAT A SIMILAR CONTRACT IN THE CASE OF M/S KAVERI INFRASTRUCTURE PRIVATE LIMITED/UNIPRO TECHNO INFRAS TRUCTURE WAS HELD AS INFRASTRUCTURAL CONTRACT FOR THE ASSESSMENT YEAR 2008-09 TO A.Y 2011-12 BY ANOTHER ASSESSING OFFICER. LD.COU NSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE RELEVANT ORDER S HEET ENTRY IN THE CASE OF M/S KAVERI INFRASTRUCTURE PRIVATE LIMIT ED, JV ITA NO. 1582-CHD-2018- UNIPRO TECHNO INFRASTRUCTURE PRIVATE LTD, CHANDIGAR H 10 UNIPRO TECHNO INFRASTRUCTURE PLACED AT PB-70 AND 71 , WHICH READS AS UNDER : 04.08.2015 THE REPLY TO THE NOTICES ISSUED UNDER SE CTION 133(6) OF THE ACT BY RESPONDENT NO. 2 TO THE IRRIGATION DEPARTMENT, H.P. GOVERNMENT WAS RECEIVED ON 03.08.2015 FROM THE EXEC UTIVE ENGINEER (I&PH) DIVISION, H.P. GOVERNMENT, BY THE S AID RESPONDENT NO. 2, IN PURSUANCE OF WHICH THE CASE OF THE PETITIONER WAS FIXED FOR 04.08.2015. THE ASSESSING OFFICER I.E. RESPONDENT NO: 2, PASSED THE FOLLOWING ORDER I N FAVOUR OF THE PETITIONER WHICH RENDERED THE VERY INITIATIO N OF REASSESSMENT PROCEEDINGS FOR THE ASSESSMENT YEAR IN QUESTION INCLUDING ' THE SUBSEQUENT YEAR AS ILLEGAL AND TOTALLY WITHOUT JURISDICTION:- 'PRESENT: SH. A.K. SOOD, CA. THE ID. COUNSEL AGAIN SUBMITS THAT PROCEEDINGS U/S 148 NEED TO BE DROPPED AS THER E WAS NO NON DISCLOSURE BY THE ASSESSEE. HE HAS AGAIN BEEN TOLD THAT THE CASE IS BEING PROCEEDED WITH ON MERIT AS THE MATTER IS ONE OF INTERPRETATION OF THE STATUTE. THE CLARIFICATION RECEIVED FROM THE EXECUTIVE ENGINEER, L&PH, DIVISION BARSAR, DISTT. HAMIRPUR VIDE LETTER DT. 1/8/2016 IN RESPONSE TO QUERY U/S 133(6) IS ON RECO RD. PERUSAL OF THE SAME SHOWS THAT THE ASSESSEE WAS AWARDED THE COMPLETE PROJECT CONTRACT ON BOT BASIS AND NO OTHER AGENCY WAS INVOLVED IN THE SAME. THE I D. COUNSEL HAS ALSO CITED CBDT CIRCULAR NO. 10/2005 DT . 16.12.2005 WHICH THOUGH SPECIFIC TO PORTS INTERPRET S SECTION 80IA AS BEING APPLICABLE TO PROJECTS/ STRUCTURES BU ILT UNDER BOT BASIS. PERUSAL OF CLARIFICATION RECEIVED FROM I H.P. GOVT. DEPTT. AND THE LANGUAGE OF THE CONTRAC T AGREEMENT SHOWS THAT THE ACTIVITY OF THE ASSESSEE I S NOT IN THE NATURE OF WORKS CONTRACT FOR THE PURPOSES OF 80 IA. IT APPEARS THAT THE ASSESSEE HAS IMPLEMENTED AN INFRASTRUCTURE PROJECT FOR THE GOVT. ON A TURNKEY B ASIS AND HAS ALSO BEEN ENGAGED IN ITS OPERATION AND MGT. SUC H ARRANGEMENT IS TYPICAL TO INFRASTRUCTURE DEVELOPMEN T PROJECT OF THE GOVT. AND CANNOT BE SEEN AS MERE WOR KS CONTRACT. CASE ADJOURNED TO 17.08.2015. INSP. TO PL ACE COPY OF FILE NOTINGS ON ALL FILES OF CONNECTED RELE VANT ASSESSMENT YEARS IN THE CASE.' 11. THE LD. COUNSEL OF THE ASSESSEE ALSO DREW OUR A TTENTION TO THE FACT THAT IN THE PRECEDING YEAR I.E. ASSESSMENT YEAR 2010-11 AS ALSO IN THE SUCCEEDING YEAR I.E A.Y 2012-13 & 2 013-14, THE ASSESSEE HAD BEEN ALLOWED ITS CLAIM OF DEDUCTION UN DER SECTION 80IA IN THE ORDER PASSED UNDER SECTION 143 (3) OF T HE ACT. THE LD. COUNSEL FOR THE ASSESSEE, THEREFORE, STATED THA T THE CLAIM OF THE ASSESSEE FOR DEDUCTION UNDER SECTION 80IA HAVI NG BEEN DULY EXAMINED IN THE COURSE OF REGULAR ASSESSMENT PROCEE DINGS AND THE ASSESSING OFFICER HAVING ALLOWED THE CLAIM WHIC H WAS CONSISTENT WITH THE VIEW TAKEN BY THE CIT (TDS) WHI LE GRANTING ITA NO. 1582-CHD-2018- UNIPRO TECHNO INFRASTRUCTURE PRIVATE LTD, CHANDIGAR H 11 CERTIFICATE OF LOWER DEDUCTION OF TAX, THE ASSESSIN G OFFICER IN THE PRECEDING AND SUCCEEDING YEARS, AS ALSO WITH TH E VIEW TAKEN BY THE ASSESSING OFFICER IN THE CASE OF ANOTHER AS SESSEE UNDERTAKING IDENTICAL WORK, IT CANNOT BE SAID THAT ANY ERROR HAD CREPT IN THE ORDER OF THE ASSESSING OFFICER CAUSING PREJUDICE TO THE REVENUE AND THEREFORE THE ACTION OF THE LEARNED PR. CIT IN ASSUMING JURISDICTION UNDER SECTION 263 FOR REVIEWI NG THE ORDER OF THE ASSESSING OFFICER ON THIS COUNT WAS BAD IN L AW AND NEEDED TO BE QUASHED. 12. LD.DR, ON THE OTHER HAND, WE FIND, RELIED UPON THE ORDER OF THE LEARNED PR. CIT AND STATED THAT THE ASPECT O F APPLICATION OF EXPLANATION TO SUB-SECTION (13) OF SECTION 80IA, TO THE CONTRACT AWARDED TO THE ASSESSEE WAS NOT EXAMINED B Y THE ASSESSING OFFICER WHICH BEING CRUCIAL TO THE CLAIM OF DEDUCTION UNDER SECTION 80IA, AN ERROR HAD CREPT INTO THE ORD ER OF THE ASSESSING OFFICER AND SINCE APPARENTLY THE PROJECT UNDERTAKEN BY THE ASSESSEE WAS COVERED UNDER THE DEFINITION OF WORKS CONTRACT THE ASSESSEE HAD BEEN WRONGLY GRANTED DED UCTION UNDER SECTION 80IA CAUSING LOSS TO THE REVENUE AND THUS THE ACTION OF THE LEARNED PR. CIT WAS JUSTIFIED ON THIS ACCOUNT. 13. WE HAVE HEARD THE CONTENTIONS OF BOTH THE PARTI ES AND PERUSED THE ORDER OF THE LEARNED PR. CIT AS ALSO TH E DOCUMENTS PLACED AND REFERRED TO BEFORE US. 14. THE ONLY REASON FOR EXERCISING REVISIONARY POWE RS UNDER SECTION 263 IN THE PRESENT CASE IS THAT THE ASSESSI NG OFFICER HAD NOT EXAMINED THE CLAIM OF THE ASSESSEE TO DEDUCTION UNDER SECTION 80IA(4) VIS-A-VIS EXPLANATION 13 TO THE SAI D SECTION WHICH EXCLUDES PROFITS EARNED FROM WORKS CONTRACTS FROM DEDUCTION UNDER SECTION 80IA(4) OF THE ACT. 15. ON THIS ACCOUNT WE ARE UNABLE TO AGREE WITH TH E LEARNED PR. CIT. IT IS AMPLY CLEAR FROM THE PLEADI NGS AND DOCUMENTS PLACED BEFORE US BY THE LD.COUNSEL FOR TH E ASSESSEE THAT THE SAID ISSUE WAS RAISED DURING ASSESSMENT PR OCEEDINGS, DUE INQUIRIES WERE MADE AND AFTER PROPER APPLICATIO N OF MIND THE ASSESSING OFFICER ALLOWED THE CLAIM OF THE ASSE SSEE. 16. WE FIND THAT THE ASSESSEE HAD FILED RETURN OF I NCOME CLAIMING DEDUCTION UNDER SECTION 80IA AMOUNTING TO RS.12,11,810/-. CERTIFICATE IN FORM NO.10CCB, CERTI FYING THE ASSESSEES CLAIM OF DEDUCTION UNDER SECTION 80IA OF THE SAME AMOUNT WAS ALSO FILED GIVING ALL DETAILS OF HE UNDE RTAKING CLAIMING THE SAID DEDUCTION. FURTHER, DURING THE A SSESSMENT PROCEEDINGS, THE ASSESSEE WAS SPECIFICALLY ASKED TO PROVIDE COMPLETE DETAILS OF THE CONTRACT UNDERTAKEN FOR PRO VIDING LIFT WATER SITE SCHEME FROM EXECUTIVE ENGINEER, IPH, THE INCOME FROM WHICH WAS CLAIMED EXEMPT UNDER SECTION 80IA OF THE ACT. THE ASSESSEE WAS ALSO SPECIFICALLY ASKED TO PROVE HIS ELIGIBILITY FOR SUCH CLAIM WHEN THE ACTIVITIES WERE BEING UNDER TAKEN UNDER CONTRACT. THUS SPECIFIC AND POINTED QUERIES VIS-A-V IS ELIGIBILITY OF CLAIM OF DEDUCTION U/S 80IA WERE RAISED AND THE ASSESSEE WAS ITA NO. 1582-CHD-2018- UNIPRO TECHNO INFRASTRUCTURE PRIVATE LTD, CHANDIGAR H 12 SPECIFICALLY ASKED TO JUSTIFY ITS CLAIM IN THE LIGH T OF UNDERTAKING THE WORK UNDER CONTRACT MEANING THEREBY THAT IT WAS A WORKS CONTRACT. 17. IN REPLY TO THE SAME, THE ASSESSEE FURNISHED CO MPLETE DETAIL OF THE WORK UNDERTAKEN STATING THAT IT HAD U NDERTAKEN CONTRACT FOR PROVIDING LIFT WATER SUPPLY SCHEME FRO M THE EXECUTIVE ENGINEER, IRRIGATION & PUBLIC HEALTH DIVI SION, THURAL, DISTT. KANGRA ON ACCOUNT OF PROVIDING REHAB ILITATION AND SOURCE LEVEL AGUMENTATION OF VARIOUS SCHEMES IN DIFFERENT TEHSILS OF DISTRICT KANGRA. THE ASSESSEE, WE FIND, HAD ALSO STATED THAT THE COMPLETE CONSTRUCTION OF THE PROJEC T ALONGWITH OPERATION AND MAINTENANCE OF THE WHOLE SCHEME WAS T O BE UNDERTAKEN BY IT. COMPLETE DETAIL OF THE CONSTRUC TION WORK TO BE UNDERTAKEN WAS ALSO GIVEN AND IT WAS REITERATED THAT THE POST-COMPLETION OPERATION AND MAINTENANCE OF THE WH OLE SCHEME FOR 16 MONTHS INCLUDING AUTOMATION WAS THE RESPONS IBILITY OF THE ASSESSEE UNDER THE SCHEME. THE ASSESSEE HAD CL ARIFIED THAT IT WAS A COMPOSITE PROJECT AWARDED TO IT AND THUS W AS COVERED UNDER SECTION 80IA OF THE ACT. THUS, THE ASSESSEE HAD CLARIFIED THAT IT WAS NOT MERELY WORKS CONTRACT AWARDED TO IT BUT A PROJECT AWARDED TO IT WAS ON A TURNKEY BASIS WHICH INCLUDED POST- COMPLETION OPERATION AND MAINTENANCE OF THE SAME AL SO FOR A SPECIFIED PERIOD. COPY OF THE CONTRACT WAS ALSO PL ACED BEFORE THE ASSESSING OFFICER. THE ASSESSEE HAD ALSO CLARI FIED THAT THE IMPUGNED DEDUCTION UNDER SECTION 80IA WAS FIRST CLA IMED BY IT IN ASSESSMENT YEAR 2010-11 AND THE YEAR UNDER REFER ENCE WAS THE SECOND YEAR FOR CLAIMING THE SAID DEDUCTION. 18. IT IS AMPLY CLEAR FROM THE ABOVE THAT NECESSARY ENQUIRIES REGARDING THE ASSESSEES CLAIM FOR DEDUCTION UNDER SECTION 80IA OF THE ACT VIS--VIS THE LIFT WATER SITE SCHEME CON TRACT RECEIVED FROM THE EXECUTIVE ENGINEER, IPH, DISTRICT KANGRA W ERE MADE DURING THE ASSESSMENT PROCEEDINGS BY THE ASSESSING OFFICER. FURTHER ALL NECESSARY EXPLANATIONS REGARDING THE CL AIM OF DEDUCTION ALONGWITH EVIDENCES WERE PLACED BY THE AS SESSEE TO PROVE ITS CLAIM OF DEDUCTION UNDER SECTION 80IA OF THE ACT. THEREFORE, FOR ALL PURPOSES, IT CAN BE SAID THAT TH E CLAIM OF THE ASSESSEE HAD BEEN DULY VERIFIED DURING THE ASSESSME NT PROCEEDINGS. CLEARLY THE CONTENTION OF THE LEARNED PR. CIT THAT NO ENQUIRIES WERE MADE IS INCORRECT. 19. WE MAY ADD THAT IT CANNOT ALSO BE A CASE OF INADEQUATE ENQUIRY. ALL EXPLANATIONS AND EVIDENCES WERE PLACED BEFORE THE ASSESSING OFFICER TO EXPLAIN THE NATURE OF THE CONTRACT AND DEMONSTRATE THAT IT WAS NOT MERELY A WORKS CONTRACT. WE FAIL TO UNDERSTAND WHAT FURTHER INQU IRY WAS REQUIRED TO BE MADE IN THE CASE TO SETTLE THE ISSUE OF THE NATURE OF CONTRACT OR FOR THAT MATTER HOW THE PRESENT INQU IRY WAS NOT ADEQUATE TO ARRIVE AT THE CORRECT CONCLUSION. MORE OVER WE FIND THAT EVEN THE LEARNED PR. CIT HAS NOT SPELT OUT THE SAME IN HIS ORDER. EVEN BEFORE US THE LD. DR HAS FAILED TO SHO W HOW THE INQUIRY MADE WAS INADEQUATE AND WHAT FURTHER INVEST IGATION WAS REQUIRED IN THE MATTER OR WHY ON THE BASIS OF EXPLA NATION AND ITA NO. 1582-CHD-2018- UNIPRO TECHNO INFRASTRUCTURE PRIVATE LTD, CHANDIGAR H 13 EVIDENCES FILED BY THE ASSESSEE THE CORRECT NATURE OF THE CONTRACT COULD NOT BE DEDUCED. IN SUCH CIRCUMSTANCES, WE HO LD, IT CANNOT BE SAID THAT THERE WAS ANY ERROR IN THE ORDER OF TH E ASSESSING OFFICER SO AS TO CAUSE PREJUDICE TO THE REVENUE. 20. MOREOVER, WE FIND THAT AFTER GOING THROUGH THE REPLIES FILED BY THE ASSESSEE THE ASSESSING OFFICER DISCUSSED THE SAME IN HIS ASSESSMENT ORDER AND RECORDED HIS SATIS FACTION REGARDING THE ASSESSEES CLAIM FOR SUCH DEDUCTION S TATING THAT THE ACTIVITY UNDERTAKEN BY THE ASSESSEE CLARIFIES F OR DEDUCTION UNDER SECTION 80IA OF THE ACT. THE ASSESSING OFFIC ER FURTHER ADDED THAT THIS WAS THE SECOND YEAR OF CLAIM OF DED UCTION SINCE THE ASSESSEE COMPANY HAD BEEN AWARDED THE SAME PROJ ECT BY THE SAME GOVERNMENT. THUS, WE FIND THAT THE ASSESSING OFFICER AFTER HAVING APPLIED HIS MIND TO THE EXPLANATIONS AND EVI DENCES FILED BY THE ASSESSEE ARRIVED AT A LOGICAL AND REASONABLE CONCLUSION THAT THE ASSESSEE WAS ELIGIBLE TO CLAIM DEDUCTION U NDER SECTION 80IA OF THE ACT AS ITS ACTIVITY QUALIFIED FOR THE S AID CLAIM. WE FIND THAT THE VIEW TAKEN BY THE ASSESSING OFFICER I S A PLAUSIBLE VIEW SINCE AS DEMONSTRATED BEFORE US, THE ASSESSEE HAD BEEN GRANTED A CERTIFICATE OF LOWER DEDUCTION OF TAX FOR ASSESSMENT YEARS 2010-11 TO 2013-14 AFTER CONSIDERING THE ELIG IBILITY OF THE CLAIM OF THE ASSESSEE TO DEDUCTION UNDER SECTION 80 IA OF THE ACT. THE ASSESSEE HAS ALSO DEMONSTRATED BEFORE US THAT I N THE PRECEDING AND SUCCEEDING ASSESSMENT YEARS, IDENTICA L CLAIM ON ACCOUNT OF VERY SAME PROJECT HAD BEEN ALLOWED TO IT BY THE ASSESSING OFFICER AND ALSO THAT FOR IDENTICAL PROJE CT ANOTHER ASSESSING OFFICER HAD GRANTED DEDUCTION UNDER SECTI ON 80IA OF THE ACT TO A SISTER CONCERN OF THE ASSESSEE M/S KAV ERI INFRASTRUCTURES PVT. LTD. IN COLLATERAL PROCEEDINGS BEFORE THE DCIT, FOR THE ASSESSMENT YEARS 2008-09 TO 2011-12, THAT TOO AFTER EXERCISING POWERS UNDER SECTION 133(6) AND RE CEIVING CLARIFICATION FROM THE EXECUTIVE ENGINEER, IPH, ON PERUSAL OF WHICH THE ASSESSING OFFICER FOUND THAT THE CONTRACT WAS ON BUILT OPERATE TRANSFER (BOT) BASIS AND NOT IN THE NATURE OF WORKS CONTRACT AND THAT THE PROJECT WAS ON TURNKEY BASIS IN WHICH THE ASSESSEE WAS INVOLVED IN OPERATION AND MANAGEMENT A LSO. THE AO IN THAT CASE ALSO NOTED THAT SUCH ARRANGEMENTS W ERE TYPICAL FOR INFRASTRUCTURE DEVELOPMENT PROJECTS OF THE GOVE RNMENT AND CANNOT BE SEEN AS MERE WORKS CONTRACT. ALL THESE F ACTS HAVE NOT BEEN REBUTTED BY THE LD. DR BEFORE US. THEREFORE, WITHOUT ANY DOUBT IT CAN BE SAID THE VIEW TAKEN BY THE ASSESSIN G OFFICER WITH REGARD TO THE CLAIM OF THE ASSESSEE UNDER SECTION 8 0IA OF THE ACT WAS A PLAUSIBLE VIEW. 21. INTERESTINGLY, WE FIND ,THAT ALL THE EXPLANATI ONS AND EVIDENCES WHICH WERE FILED BEFORE THE AO BY THE ASS ESSEE TO SUPPORT ITS CLAIM OF DEDUCTION U/S 80IA WAS ALSO FI LED BEFORE THE LEARNED PR. CIT AND DESPITE SO THERE IS NOT A WHISP ER IN THE ENTIRE ORDER AS TO HOW THE VIEW OF THE AO THAT IT WAS AN INFRASTRUCTURE PROJECT AND NOT WORKS CONTRACT, IS I NCORRECT. THE LEARNED PR. CIT HAS NOT REFERRED TO A SINGLE DOCUME NT, CLAUSE OR OTHERWISE OF THE AGREEMENT TO LEND CREDENCE TO HIS VIEW. THE ENTIRE THRUST OF THE LEARNED PR. CIT IN EXERCISING REVISIONARY ITA NO. 1582-CHD-2018- UNIPRO TECHNO INFRASTRUCTURE PRIVATE LTD, CHANDIGAR H 14 POWERS IS THAT ADEQUATE ENQUIRY VIS--VIS CLAIM OF DEDUCTION UNDER SECTION 80IA OF THE ACT WAS NOT CARRIED OUT, WHICH AS WE HAVE STATED ABOVE, THE LD. COUNSEL FOR THE ASSESSEE HAS DEMONSTRATED IS INCORRECT. ADEQUATE ENQUIRIES WERE CARRIED OUT, ADEQUATE REPLIES WERE FILED BY THE ASSESSEE AND THE ASSESSING OFFICER AFTER HAVING APPLIED HIS MIND TO THE EXPLAN ATIONS AND EVIDENCES FILED BY THE ASSESSEE HAD ARRIVED AT A PL AUSIBLE CONCLUSION THAT THE ASSESSEE WAS UNABLE TO DEDUCTIO N UNDER SECTION 80IA OF THE ACT. WE ARE, THEREFORE, IN COM PLETE AGREEMENT WITH THE LD. COUNSEL OF THE ASSESSEE THAT THE ISSUE WAS EXAMINED AND VERIFIED DURING ASSESSMENT PROCEED INGS AND THE ASSESSING OFFICER HAD ARRIVED AT A PLAUSIBLE CO NCLUSION THAT ON THE BASIS OF THE VERIFICATION CARRIED OUT BY IT THAT THE ASSESSEE WAS ELIGIBLE TO CLAIM DEDUCTION UNDER SECT ION 80IA OF THE ACT AND THEREFORE THERE WAS NO ERROR IN THE ORD ER OF THE ASSESSING OFFICER SO AS TO CAUSE PREJUDICE TO THE R EVENUE. THE ACTION OF THE LEARNED PR. CIT IN EXERCISING HIS REV ISIONARY POWERS ON THIS GROUND IS SET ASIDE. 22. BESIDES THE ABOVE ARGUMENT LD. COUNSEL FOR THE ASSESSEE ALSO ARGUED BEFORE US THAT THE ISSUE OF EL IGIBILITY OF CLAIM OF DEDUCTION UNDER SECTION 80IA OF THE ACT HA VING BEEN EXAMINED IN THE 1 ST YEAR OF CLAIM OF THE ASSESSEE I.E. AY 2010- 11, THE SAME COULD NOT HAVE BEEN DISTURBED IN THE S UCCEEDING YEARS. IN SUPPORT OF ITS CONTENTION THE LD. COUNSEL RELIED UPON THE DECISION OF THE PUNJAB AND HARYANA HIGH COURT I N THE CASE OF CIT VERSUS MICRO INSTRUMENT COMPANY IN ITA. NO. 958/2008 DATED 2.9.2016 MORE SPECIFICALLY AT PARA 12 OF ITS ORDER HAD STATED AS FOLLOWS: 12. HOWEVER, WHILE UNDERTAKING THIS EXERCISE, THE ASSESSING OFFICER IS NOT ENTITLED TO REOPEN AN ISSU E THAT HAD BEEN DECIDED IN RESPECT OF A PREVIOUS ASSESSMEN T YEAR. IN OTHER WORDS, AN ASSESSING OFFICER IS NOT E NTITLED TO QUESTION THE VALIDITY OF THE GRANT OF A DEDUCTIO N UNDER SECTION 80-IB IN A PREVIOUS ASSESSMENT YEAR ON ANY GROUND. THE ASSESSING OFFICER WOULD NOT BE ENTITLED TO SAY THAT A PARTICULAR CONDITION WAS NOT FULFILLED IN AN EARLIER ASSESSMENT YEAR IF THE ASSESSEE HAD BEEN GRANTED TH E DEDUCTION IN THAT YEAR. THE ASSESSING OFFICER, THER EFORE, CANNOT DENY A DEDUCTION IN THE ASSESSMENT YEAR IN QUESTION BEFORE HIM ON THE GROUND THAT THE ASSESSEE HAD FAILED TO FULFILL A CONDITION PRECEDENT TO THE GRAN T OF A DEDUCTION IN ANOTHER ASSESSMENT YEAR. THAT WOULD AM OUNT TO AN ASSESSING OFFICER REOPENING AN ASSESSMENT IN RESPECT OF ANOTHER ASSESSMENT YEAR WITHOUT FOLLOWIN G THE PROVISIONS OF THE ACT. 23. LD.DR, ON THE OTHER, HAND RELYING UPON PARA 11 OF THE ORDER STATED THAT CERTAIN ISSUES COULD HAVE BEE N DISTURBED IN THE SUCCEEDING YEARS ALSO. LD.DR STATED THAT MEREL Y BECAUSE THE ASSESSEE HAD BEEN ALLOWED CLAIM IN THE 1 ST YEAR DID NOT MEAN THAT THE SAME FOR ALL PURPOSES COULD NOT BE DISTURB ED IN THE SUCCEEDING YEARS AT ALL. ITA NO. 1582-CHD-2018- UNIPRO TECHNO INFRASTRUCTURE PRIVATE LTD, CHANDIGAR H 15 24. WE HAVE GONE THROUGH THE ORDER OF THE JURISDIC TIONAL HIGH COURT RELIED UPON BY BOTH THE PARTIES AND FIND MERIT IN THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. THE RE IS NO DISPUTE ABOUT THE FACT THAT IN THE PRECEDING ASSESS MENT YEAR I.E. AY 2010-11, WHICH WAS THE 1 ST YEAR OF CLAIM OF DEDUCTION UNDER SECTION 80IA, THE ASSESSEE WAS ALLOWED THE SAME UN DER SECTION 143 (3) OF THE ACT. THIS MEANS THAT FOR ALL PURPOSE S THE CLAIM OF THE ASSESSEE HAVING BEEN EXAMINED IN THE LIGHT OF T HE PARAMETERS OF ELIGIBILITY LAID DOWN UNDER SECTION 80IA, IT COU LD NOT BE SAID THAT IN THE SUCCEEDING YEAR THOSE VERY SAME PARAMET ERS HAD CHANGED ON THE SAME SET OF FACTS. THE ASSESSING OFF ICER, AFTER CONSIDERING ALL THE DOCUMENTS PLACED BEFORE IT, HAD IN THE PRECEDING YEAR CONCLUDED THAT THE ASSESSEE WAS CARR YING OUT AN INFRASTRUCTURE RELATED PROJECT WHICH WAS NOT IN THE NATURE OF WORKS CONTRACT AS DEFINED UNDER SECTION 80IA, READ WITH EXPLANATION-13 AND THUS THE ASSESSEE WAS ELIGIBLE T O CLAIM DEDUCTION UNDER SECTION 80IA OF THE ACT. IN THE IMP UGNED CASE, WHICH IS THE SUCCEEDING YEAR, ON THE VERY SAME SET OF FACTS THE FINDINGS OF THE PRECEDING YEAR ON THE FACT THAT THE ASSESSEE WAS CARRYING OUT ELIGIBLE INFRASTRUCTURE PROJECT AND NO T WORKS CONTRACT, CANNOT NOW BE DISTURBED, WHICH IS EXACTLY WHAT HAS BEEN STATED BY THE HIGH COURT IN THE ORDER PASSED I N THE CASE OF MICRO INSTRUMENT COMPANY (SUPRA). FOLLOWING THE SA ME ALSO WE HOLD THAT THE LEARNED PR. CIT COULD NOT HAVE EXERCI SED HIS REVISIONARY POWERS SINCE THE CLAIM OF THE ASSESSEE HAD BEEN DECIDED IN THE PRECEDING YEAR ITSELF AND WITHOUT DI STURBING THE SAME IT COULD NOT HAVE BEEN DISLODGED IN THE IMPUGN ED YEAR. 25. IN VIEW OF THE ABOVE WE SET ASIDE THE ORDER OF THE LEARNED PR. CIT ON THIS COUNT. 15. FURTHER, THE AFORESAID ISSUE WAS AGAIN CONSIDER ED BY THE TRIBUNAL FOR ASSESSMENT YEAR 2012-13 ALSO. THE TRIB UNAL VIDE ORDER DATED 1.12.2017 HAS AGAIN DECIDED THE ISSUE IN FAVO UR OF THE ASSESSEE. THE RELEVANT FINDINGS OF THE TRIBUNAL ARE REPRODUCED AS UNDER:- 4.18 ACCORDINGLY WE FIND THAT INFACT THERE IS NOTH ING ON RECORD EXCEPT THE SUSPICION OF THE DEPARTMENT THAT THE ASSESSING OFFI CER HAS NOT CARRIED OUT ADEQUATE ENQUIRIES. WE HAVE GONE THROUGH THE RECORD AND SEEN THAT THE ISSUES HAVE BEEN ENQUIRED INTO REPLIES HAVE BEEN PL ACED ON RECORD NOTHING HAS BEEN BROUGHT BY THE DEPARTMENT TO SHOW THAT THE VIEW TAKEN BY THE ASSESSING OFFICER WAS INCORRECT ON FACTS. THE REQUI SITE AGREEMENTS ALONGWITH SITE PLAN SCHEDULE ETC. ATTACHED THERETO WERE ALL A VAILABLE BEFORE THE AO AND BEFORE THE PR. CIT ALONGWITH PHOTOGRAPHS ETC. NO EF FORT TO DISTINGUISH THE CONTRACT ENTERED INTO WITH HIMACHAL PRADESH GOVT. I N RESPECT OF THURAL PROJECT WITH THE SUBSEQUENT CONTRACTS ENTERED INTO BY THE ASSESSEE WITH HIMACHAL PRADESH GOVERNMENT IN RESPECT OF DEHRA PRO JECT OR WITH THE UTTRAKHAND GOVT. IN RESPECT OF PAURI AND RUDRAPRAYA G PROJECTS HAVE BEEN REFERRED TO IN HIS ORDER BY THE PR. CIT OR IN HIS A RGUMENTS BY THE LD. CIT-DR. MERE ARGUMENT THAT THE THREE PROJECTS WERE DIFFEREN T WITHOUT ANY SUPPORTING FACT CANNOT BE GIVEN A JUDICIAL APPROVAL. SUSPICIO N MAY BE SAID TO BE ITA NO. 1582-CHD-2018- UNIPRO TECHNO INFRASTRUCTURE PRIVATE LTD, CHANDIGAR H 16 SUFFICIENT FOR THE PURPOSES OF ISSUANCE OF SHOW CAU SE NOTICE BUT THEREAFTER, THE SUSPICION HAS TO BE BACKED BY HARD FACTS. 4.19 ON GIVING OUR CONSIDERATION TO THE ISSUES REMA INING AT HAND, WE FIND THAT ULTIMATELY ON THE ISSUE ON WHICH THE ORDER WAS PASSED SETTING ASIDE THE ORDER ADMITTEDLY WAS NOT THE SUBJECT MATTER OF THE TWO SHOW CAUSE NOTICES ISSUED BY THE PR. CIT CHANDIGARH AND THUS NOTWITHST ANDING THE SETTLED LEGAL POSITION THEREON EVEN OTHERWISE WE FIND THAT IN THE FACTS OF THE PRESENT CASE ON A READING OF THE ASSESSMENT ORDER ITSELF IT IS D EMONSTRATED THAT THE ASSESSING OFFICER HAS ENQUIRED INTO THE SAID ISSUE ALSO. IT IS SEEN THAT THE AO WHILE PASSING THE ORDER PROCEEDED TO LOOK INTO THE CLAIM OF DEPRECIATION FOR THE EXEMPTED AND NON-EXEMPT UNITS AND THUS THE SUSP ICION OF THE PR. CIT, CHANDIGARH THAT THE FACTS FOR CONSIDERING THE BIFUR CATION OF EXPENSES BETWEEN THE EXEMPTED INCOME AND NON-EXEMPT INCOME H AVE NOT BEEN LOOKED INTO IS WITHOUT ANY JUSTIFICATION AND IN THE PECULI AR FACTS OF THE PRESENT CASE BASED ENTIRELY ON SUSPICIONS. 4.20 ACCORDINGLY IN VIEW OF THE DETAILED REASONS GI VEN HEREIN ABOVE, WE FIND THAT THERE WAS NO BASIS FOR THE PRINCIPAL CIT- A TO CONCLUDE THAT IT IS A CASE OF INADEQUATE ENQUIRIES. WE FIND FROM THE RECO RD THAT THE ASSESSING OFFICER HAS INQUIRED INTO THE ISSUES THE ASSESSEE H AS DEMONSTRATED THE CORRECTNESS OF THE CLAIM HAVING BEEN ALLOWED THE RE VENUE HAVING FAILED TO POINT OUT AS TO WHAT IS THE ERROR IN THE SPECIFIC C ONTRACTS CONSIDERED BY THE PR. CIT, CHANDIGARH NAMELY THE CONTRACT ENTERED INT O WITH THE HIMACHAL PRADESH GOVERNMENT IN REGARD TO THE DEHRA PROJECT A ND THE TWO SPECIFIC CONTRACTS ENTERED INTO WITH THE UTTRAKHAND GOVERNME NT OF PAURI AND RUDRAPRAYAG PROJECT. ACCORDINGLY WE HAVE NO HESITA TION IN QUASHING THE ORDER PASSED BY THE PR.CIT, CHANDIGARH ON ALL THESE COUNTS AND ALLOW THE APPEAL OF THE ASSESSEE. 5. AT THIS STAGE, IT WOULD NOT BE OUT OF CONTEXT TO QUOTE FROM THE DECISION OF THE GAUHATI HIGH COURT IN THE CASE OF BONGAIGAON REFINERY AND PETROCHEMICAL 287 ITR 120 (GAU) WHERE THE COURT AT PAGE 131 PARA 17 AND 18 HELD AS UNDER: '17. ENTERTAINMENT OF A VIEW DIFFERENT FROM THE ONE ADOPTED BY THE ASSESSING OFFICER, IF PLAUSIBLE WOULD NOT CLOTHE TH E COMMISSIONER WITH THE POWER TO INTERFERE THEREWITH UNDER THE SAID PRO VISION OF THE ACT. DIFFERENTLY PUT, AN ERROR WITHIN THE JURISDICTION O F THE ASSESSING OFFICER ON AN EVALUATION OF THE MATERIALS AVAILABLE WOULD NOT BE EXPOSED TO INTERFERENCE IN EXERCISE OF SUOMOTU REVI SIONAL POWERS UNDER SECTION 263 OF THE ACT. THE PROVISION THOUGH PERMITS THE COMMISSIONER TO INITIATE AN ENQUIRY AS HE MAY DEEM NECESSARY DOES NOT AUTHORISE A ROVING PROBE INTO THE FACTS WITH TH E DISPOSITION TO PICK OUT ERRORS TO SUSTAIN THE EVENTUAL INTERFERENC E. THIS ASSUMES GREAT SIGNIFICANCE IN THE CONTEXT OF THE STATUTORY FRAME WORK OF THE ACT OUTLINING THE JURISDICTIONAL CONTOURS OF DIFFERENT AUTHORITIES TO ADJUDICATE THE ISSUES AS LEGISLATIVELY STIPULATED. THE COMMISSIONER IN EXERCISE OF HIS REVISIONAL POWERS CANNOT ARROGATE T O HIMSELF A STATUS TO SURROGATE THE OTHER AUTHORITIES AND SUPPLANT THEIR ROLES UNDER THE ACT. 18. THE JURISDICTION EXERCISABLE UNDER SECTION 263 OF THE ACT BEING SUPERVISORY IN NATURE, PERMITTING SUO MOTU RE VIEW OF ANY ITA NO. 1582-CHD-2018- UNIPRO TECHNO INFRASTRUCTURE PRIVATE LTD, CHANDIGAR H 17 ASSESSMENT ALREADY MADE, THE STATUTORILY ENJOINED S ANCTIONS CIRCUMSCRIBING THE SAME HAVE TO BE RIGOROUSLY CONST RUED. THE LEGISLATIVE INTENDMENT OF CONDITIONING THE PLENITUD E OF THE POWER CONFERRED IS MANIFEST IN THE TWO PRECONDITIONS LODG ED IN THE SECTION. TO SUSTAIN THE DELICATE BALANCE BETWEEN THIS SUPERV ISORY AND OTHER REMEDIAL JURISDICTIONS, AS DESIGNED BY THE LAWMAKER S, A CONSTRICTED CONNOTATION AND PURPORT OF THE ENABLING PREREQUISIT ES FOR THE EXERCISE OF THE REVISIONAL POWERS IS AN IMPERATIVE NECESSITY. 5.1 THUS, NO DOUBT THE POWER TO SET ASIDE HAS BEEN VESTED WITH THE PR. CIT. HOWEVER, THE POWER HAS TO BE EXERCISED JUDICI OUSLY AND FAIRLY. THE REVISIONARY ORDER CANNOT BE SILENT IN THE FACE OF T HE CHALLENGE OF THE ASSESSEE THAT THE CONTRACTS ARE IDENTICAL COMPOSITE INFRASTR UCTURE DEVELOPMENT CONTRACTS ON BOT BASIS I.E. WERE TRUNKEY PROJECTS W HERE AFTER INITIALLY SETTING UP, THE ASSESSEE WAS TASKED WITH MAKING IT FUNCTIONAL POST COMPLETION OPERATION AND MAINTENANCE OF THE SAME FOR A SPECIFI C PERIOD. THE CONTRACTS WERE AVAILABLE WITH THE PR. CIT AND THE STATED CLAI M OF THE ASSESSEE IF IT WAS FOUND TO HAVE BEEN INCORRECT, SHOULD HAVE BEEN DEMO NSTRATED IN THE ORDER ITSELF. EVEN IN THE COURSE OF THE ARGUMENTS, LD. C IT-DR COULD NOT BRING ANY FACT TO OUR NOTICE IN SUPPORT OF THE ORDER PASSED. THE POWER VESTED BY THE STATUTE COMES WITH ONEROUS RESPONSIBILITIES WHICH C ANNOT BE ALLOWED TO BE SHIRKED. THE ASSESSEE IN THE FACTS OF THE PRESENT CASE IS ABLE TO DEMONSTRATE THAT FULL FACTS WERE AVAILABLE ON RECORD ON WHICH E NQUIRIES HAVE BEEN MADE AND THE ASSESSMENT ORDER ITSELF SHOWS THAT THE CALC ULATIONS CARRIED OUT EVEN THOUGH FOR THE PURPOSES OF DEPRECIATION BY THE AO Q UA THE EXEMPTED UNITS AND NON-EXEMPT UNITS DEMONSTRATE THAT FACTS HAVE BE EN SEEN. IN THE FACE OF THESE FACTS AND ARGUMENTS, THE PR. CIT SHOULD HAVE REFERRED TO SOME ERROR IN THE ORDER PASSED AFTER CONSIDERING THE NEW THREE CO NTRACTS AND THE EARLIER CONTINUING CONTRACT OF THURAL PROJECT WHICH IS NOT SO IN THE FACTS OF THE PRESENT CASE. NOR HAS THE LD. CIT-DR POINTED OUT T O ANY SUCH ERROR. ACCORDINGLY, THE ARGUMENTS OF THE LD. CIT-DR THAT NO PREJUDICE IS CAUSED TO THE ASSESSEE IF THE MATTER IS RESTORED TO THE ASSESSING OFFICER AS THE ASSESSEE WOULD STILL BE AT LIBERTY TO REARGUE THE E NTIRE CASE CANNOT BE COUNTENANCED. UNLESS AND UNTIL THE REVENUE DEMONSTR ATES THAT THE ORDER HAS BEEN PASSED WITHOUT DUE AND ADEQUATE ENQUIRY OR AN ERROR WHICH IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE IS POIN TED OUT ONLY THEN THE ORDER PASSED CAN BE UPHELD. MERELY BECAUSE THE ASSESSEE W OULD HAVE AN OPPORTUNITY AVAILABLE BEFORE THE ASSESSING OFFICER ONCE AGAIN CANNOT BE SAID TO BE A JUSTIFIABLE REASON FOR SETTING ASIDE AN ASS ESSMENT ORDER. IF THE SAID ARGUMENT IS ACCEPTED, THEN EACH AND EVERY ASSESSMEN T ORDER CAN BE SET ASIDE AS OPPORTUNITY TO THE ASSESSEE IS ANY WAY GRANTED B Y THE RULE OF LAW. 5.2 BEFORE PARTING, WE MAY ALSO REFER TO THE DECISI ON OF THE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS GOYAL PRIVATE FAMI LY SPECIFIC TRUST (1988) 171 ITR 698, 701-702 (ALL). A PERUSAL OF THE SAID DECISION WOULD SHOW THAT THE COURT HAS HELD IN UNAMBIGUOUS TERMS THAT MERELY BECAUSE THE ORDERS OF THE ASSESSING OFFICER ARE BRIEF AND CRYPTIC, THE SAID F ACT BY ITSELF CANNOT BE A GROUND FOR BRANDING THE ASSESSMENT ORDERS AS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THE COURT WAS CAREFUL TO OBSERVE THAT WRITING A DETAILED ORDER NO DOUBT MAY BE A LEGAL REQUIREMENT, BUT THE ORDER NOT FULFILLING THIS REQUIREMENT, CANNOT BE SAID TO BE ERRONEOUS AND PREJUDICIAL TO T HE INTERESTS OF THE REVENUE. THE COURT IN UNAMBIGUOUS TERMS HAS FASTENED THE RESPONS IBILITY FOR EXERCISING THE REVISIONARY POWER ON THE COMMISSIONER TO NECESSARIL Y POINT OUT AS TO WHAT ERROR WAS COMMITTED BY THE ASSESSING OFFICER IN HAVING RE ACHED THE CONCLUSION WHICH WAS ITA NO. 1582-CHD-2018- UNIPRO TECHNO INFRASTRUCTURE PRIVATE LTD, CHANDIGAR H 18 SOUGHT TO BE SET ASIDE. THE SAID EFFORT WAS FOUND TO BE MISSING IN THE FACTS OF THE SAID CASE AS IN THE FACTS OF THE PRESENT CASE ALSO. IN THE FACTS OF THE PRESENT CASE, THE PR. CIT HAVING FAILED TO POINT OUT ANY ERROR, LET ALONE AN ERROR WHICH IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE AS THE NECESSARY EXERC ISE FOR ADDRESSING THE ERROR HAS NOT BEEN DONE IN THE ORDER NOR HAS THE LD. CIT- DR BEEN ABLE TO DEMONSTRATE THAT THERE WERE CLAUSES AND CONDITIONS IN THE CONTRACTS ENTERED INTO WITH EXECUTIVE ENGINEER, IPH DEHRA (HP), EXECU TIVE ENGINEER, UTTRAKHAND PEYJAL NIGAL, CONSTRUCTION DIVISION, RUD RAPRAYAG AND EXECUTIVE ENGINEER, UTTRAKHAND PEYJAL NIGAM, CONSTRUCTION DIV ISION, PAURI VIS--VIS THE CONTRACT ENTERED INTO WITH EXECUTIVE ENGINEER, IPH THURAL (HP) ON THE BASIS OF WHICH THEY COULD NOT BE SAID TO BE COMPOSI TE INFRASTRUCTURE DEVELOPMENT CONTRACTS ON A BOT BASIS WITH ADDED RES PONSIBILITIES TOWARDS ITS MAINTENANCE FOR SPECIFIC PERIOD. THE ORDER PASS ED, ACCORDINGLY FOR THE DETAILED REASONS GIVEN HEREIN ABOVE IS HELD TO BE A RBITRARY AND THE ORDER IS QUASHED. ACCORDINGLY, THE GROUNDS RAISED ARE ALLOW ED. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . 16. THE LD. PCIT VIDE IMPUGNED ORDER HAS TRIED TO D ISTINGUISH BETWEEN THE WORKS CONTRACT AND A DEVELOPMENT CON TRACT BY HOLDING THAT SINCE THE DEVELOPMENT OF THE PROJECTS IN QUESTION WAS TO BE CARRIED OUT BY THE ASSESSEE AS PER THE SPECIF ICATIONS / DESIGNS APPROVED BY THE GOVERNMENT, HENCE, IT WOULD FALL WI THIN THE DEFINITION OF WORKS CONTRACT AND NOT INFRASTRUCT URE DEVELOPMENT CONTRACT. 17. WE HAVE GONE THROUGH THE DISCUSSION MADE BY THE LD. PCIT ON THIS ISSUE AND ALSO CONSIDERED THE ARGUMENTS OF THE LD. DR ON THIS POINT. THE OBSERVATION OF THE LD. PCIT THAT ONLY IF THE PR OJECT IS TO BE DEVELOPED BY THE ASSESSEE AS PER THE SPECIFICATIONS AND DESIGNS APPROVED BY THE GOVERNMENT THAT WOULD FALL IN A DEF INITION OF SIMPLE WORKS CONTRACT AND NOT A INFRASTRUCTURE DEV ELOPMENT CONTRACT AS PROVIDED U/S 80IA(4) OF THE ACT, IN OU R VIEW, WOULD DISENTITLE EACH AND EVERY ASSESSEE WHO WOULD CARRY OUT INFRASTRUCTURE DEVELOPMENT PROJECT IN A CONTRACTS W ITH A UNION GOVERNMENT OR STATE GOVERNMENT OR LOCAL AUTHORITY. SUCH / STATED PROJECTS ARE TO BE CARRIED OUT AS PER THE TERM OF T HE GOVERNMENT. HOWEVER, WHAT DISTINGUISHES AND WORK CONTRACT FROM INFRASTRUCTURE DEVELOPMENT CONTRACT AS PER SECTION 11A OF THE ACT IS THAT WHETHER THE CONTRACT HAS BEEN GRANTED FOR A SPECIFIC WORK OR IT IS A DEVELOPMENT OF A FACILITY AS A WHOLE AND WH ETHER DAY TO DAY CONTROL ON THE PROJECT AND ITS MANNER OF DEVELOPME NT IS OF THE GOVERNMENT AUTHORITIES OR OF THE CONTRACTOR. THE CO ORDINATE LUCKNOW BENCH OF THE TRIBUNAL IN THE CASE OF M/S V IJAY ITA NO. 1582-CHD-2018- UNIPRO TECHNO INFRASTRUCTURE PRIVATE LTD, CHANDIGAR H 19 INFRASTRUCTURE LIMITED, LUCKNOW VS ACIT, ITA NO. 254/LKO/2015 & OTHERS, ORDER DATED 30.10.2015 OBSER VED THAT IF THE ASSESSEE'S DUTY IS TO DEVELOP INFRASTRUCTURE WH ETHER IT INVOLVES CONSTRUCTION OF A PARTICULAR ITEM AS AGREED TO IN T HE AGREEMENT OR NOT AND THAT THE AGREEMENT IS NOT FOR A SPECIFIC W ORK, IT IS FOR DEVELOPMENT OF FACILITY AS A WHOLE, THE MATERIAL RE QUIRED IS TO BE BROUGHT IN BY THE ASSESSEE BY STICKING TO THE QUALI TY AND QUANTITY IRRESPECTIVE OF THE COST OF SUCH MATERIAL. THE ASSE SSEE UTILIZES ITS FUNDS, ITS EXPERTISE, ITS EMPLOYEES AND TAKES THE R ESPONSIBILITY OF DEVELOPING THE INFRASTRUCTURE FACILITY, THE LOSSES SUFFERED IN THE PROCESS OF SUCH DEVELOPMENT WOULD BE THAT OF THE AS SESSEE. THE ASSESSEE HANDS OVER THE DEVELOPED INFRASTRUCTURE FA CILITY TO THE GOVERNMENT ON COMPLETION OF THE DEVELOPMENT AND IF THE ASSESSEE HAS TO UNDERTAKE MAINTENANCE OF SAID INFRASTRUCTURE FOR A PARTICULAR PERIOD AND DURING THE SAID PERIOD, IF ANY DAMAGES A RE OCCURRED, IT SHALL BE THE RESPONSIBILITY OF THE ASSESSEE , THEN SUCH A CONTRACT WOULD FALL WITHIN THE PURVIEW AND SCOPE OF INFRASTR UCTURE DEVELOPMENT CONTRACT. EVEN ON THE IDENTICAL ISSUE IN RELATION TO THE DEVE LOPMENT OF THE IRRIGATION PROJECT, THE ITAT KOLTKA BENCH OF THE TR IBUNAL IN THE CASE OF DCIT KOLKATA VS M/S SIMPLEX PROJECTS LTD, KOLKATA ITA NO. 169/KOL/2016 ORDER DATED 8.11.2017 HAS OBSERVED THAT IRRIGATION PROJECT IS AS INFRASTRUCTURE FACILITY WI THIN THE SCOPE OF SECTION 80IA(4) OF THE ACT. THE TRIBUNAL FURTHER RE LIED UPON THE DECISION IN THE OWN CASE OF THE AFORESAID ASSESSEE I.E. SIMPLEX SUBHASH JV AND M/S SOMDATT BUILDERS JV VIDE ITA N O. 1684/KOL/2011 AND 1685/KOL/2011 DATED 8.6.2013, WHE REIN, IT HAS BEEN OBSERVED THAT IF THE PROJECT IS A TURNKEY PROJ ECT INVOLVING THE ACTIVITY OF DEVELOPMENT OF INFRASTRUCTURE FACILITY, IT WILL BE AN ACTIVITY AS PROVIDED U/S 80IA(4) OF THE ACT. THE TR IBUNAL CONSIDERED THAT A PERUSAL OF THE TURNKEY CONTRACT A GREEMENT ENTERED INTO BY THE ASSESSEE WITH THE IRRIGATION DEPARTMENT CLEARLY SHOWED THAT THE CONSTRUCTION OF ALL THE STRUCTURE OF WHOLE OF THE CANAL SYSTEM WAS TO BE AS PER THE APPROVED DESIGN, DRAWIN GS OF THE DEPARTMENT ETC. SURVEY IS TO BE DONE AS PER THE IN VESTIGATION AND DRAWING CRITERIA OF THE IRRIGATION DEPARTMENT. THE ASSESSEE HAS TO PROCURE THE MATERIAL INDEPENDENTLY AND THOSE MATERI ALS ARE TO BE CONFORMED TO THE SPECIFICATIONS PROVIDED. THE ASSES SEE HAS ALSO TO MAKE ARRANGEMENT FOR STORAGE OF THE MATERIALS. THE TRIBUNAL HELD THAT SUCH WORK CARRIED OUT BY THE ASSESSEE WOULD FA LL IN THE EXCLUSION PROVIDED TO THE MEANING OF THE WORK GIV EN IN THE EXPLANATION TO SECTION 194C OF THE ACT AND IT WOULD ALSO BE OUT OF ITA NO. 1582-CHD-2018- UNIPRO TECHNO INFRASTRUCTURE PRIVATE LTD, CHANDIGAR H 20 THE SCOPE OF EXPLANATION TO SUB SECTION (13) OF SE CTION 80IA. THE KOLTAKA BENCH OF THE TRIBUNAL IN THE CASE OF ADHUN IK INFRASTURE (P) LTD VS JCIT HAS ALSO HELD THAT DEDUCTION U/S 80IA(4) CANNOT BE DENIED TO AN ASSESSEE MERELY BECAUSE THE ASSESS EE HAS BEEN PAID BY THE GOVERNMENT FOR DEVELOPMENT WORK. 18. AFTER CONSIDERING THE OBSERVATIONS AND OBJECTIO NS MADE BY THE LD. PCIT AND IN THE LIGHT OF THE PROPOSITION LA ID DOWN IN THE CASE LAWS, AS DISCUSSED ABOVE, , WE FIND THAT NEITH ER THE LD. PCIT COULD EVEN POINT OUT HOW THE FACT AND NATURE OF THE PROJECTS CARRIED OUT DURING THE YEAR UNDER CONSIDERATION WERE DIFFER ENT FROM THE PROJECTS EARLIER TAKEN BY THE ASSESSEE WHICH HAVE A LREADY BEEN HELD TO BE ELIGIBLE FOR DEDUCTION U/S 80IA(4) OF THE AC T BEING INFRASTRUCTURE FACILITY DEVELOPMENT PROJECT, NOR T HE LD. PCIT COULD POINT OUT FROM THE CLAUSES OF THE AGREEMENT T HAT THEY WOULD NOT FALL WITHIN THE DEFINITION OF INFRASTRUCTURE DE VELOPMENT PROJECT AS PROVIDED U/S 80IA(4) OF THE ACT. IN OUR VIEW, TH E LD. PCIT HAS EXERCISED HER JURISDICTION U/S 263 OF THE ACT TOTAL ING BYE- PASSING AND IN CONTRADICTION OF THE FINDINGS GIVEN BY THE T RIBUNAL IN THE OWN CASES OF THE ASSESSEE FOR EARLIER ASSESSMENT YE ARS I.E. 2011-12 AND 2012-13 VIDE ORDERS DATED 6.2.2017 & 1.12.2017( SUPRA). FURTHER, IT IS FOUND THAT ALL THE MATERIAL WAS PUT BEFORE THE ASSESSING OFFICER INCLUDING THE COPIES OF THE CONTR ACTS. THE ASSESSING OFFICER HAS DULY TAKEN NOTE OF THE NATURE OF CONTRACT ENTERED INTO BY THE ASSESSEE AND HELD THAT THE SAME WERE INFRASTRUCTURE FACILITIES DEVELOPMENT CONTRACTS AND ELIGIBLE FOR DEDUCTION U/S 80IA OF THE ACT. HENCE, IT CANNOT B E SAID THAT THE ORDER PASSED BY THE ASSESSING OFFICER WAS ERRONEOUS OR PREJUDICIAL TO THE INTEREST OF REVENUE ON THIS ISSUE. 5. THE LD. DR HAS NOT POINTED OUT ANY DISTINGUISHIN G FACT FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. 6. MOREOVER, THE DEDUCTION U/S 80IA OF THE ACT FOR THE RELEVANT PROJECTS I.E. THURAL AND DEHRA HAS ALREADY BEEN ALLOWED IN THE EARLIER YEARS AND THIS YEAR BEING A SUBSEQUENT YEAR , THE FINDINGS ARRIVED FOR THE SAME PROJECT IN EARLIER YEARS WILL MUTATIS- MUTANDIS APPLY TO THE ITA NO. 1582-CHD-2018- UNIPRO TECHNO INFRASTRUCTURE PRIVATE LTD, CHANDIGAR H 21 SUBSEQUENT ASSESSMENT YEAR ALSO WITH THE CONDITION THAT THE TOTAL NUMBER OF YEARS FOR CLAIMING DEDUCTION WILL BE SUBJECT TO THE OTHER CONDITIONS RELATING TO THE TIME PERIOD OF CLAIMING DEDUCTION A ND PERCENTAGE OF THE DEDUCTION AS PROVIDED U/S 80IA OF THE ACT. IN VIEW OF THE ABOVE DISCUSSION, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 13.10.2020. SD/- SD/- ( . . / N.K. SAINI) ( ! / SANJAY GARG) '#$ / VICE PRESIDENT %& / JUDICIAL MEMBER DATED : 13.10.2020 .. 2*&)3454) / COPY OF THE ORDER FORWARDED TO : 1. '$ / THE APPELLANT 2. &' '$ / THE RESPONDENT 3. , 6) / CIT 4. , 6) ( )/ THE CIT(A) 5. 47 &)8 , . 8 , 9:;< / DR, ITAT, CHANDIGARH 6. ;=- / GUARD FILE 2 , / BY ORDER, > / ASSISTANT REGISTRAR