DCIT, CIR-12(2), KOLKATA, Kolkata V. M/s Simplex Projects Ltd., Kolkata

ITA 169/KOL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1079 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-11-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 05-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T VARKEY JUDIC IA L M EMBER
• Assessee Lawyers: SAURABH KUMAR
• Keywords: Retrospective amendment; Difference of opinion; Change of opinion
• Section: 194C; 148

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI ABY.T VARKEY, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 169 / KOL / 2016 ASSESSMENT YEAR :2005-06 DCIT, CICLE-12(2) AAYAKAR BHAWAN, P-7, 6 TH FLOOR, CHOWRINGHEE SQUARE, KOLKATA-69 V/S . M/S SIMPLEX PROJECTS LTD., 12/1, NELLI SENGUPTA SARANI, KOLKAATA-700087 [ PAN NO.AADCS 8598 R ] /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI SAURABH KUMAR, ADDL. CIT-DR /BY RESPONDENT SHRI RAVI TULSIYAN, FCA /DATE OF HEARING 06-10-2017 /DATE OF PRONOUNCEMENT 08-11-2017 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-4, KOLKATA DAT ED 20.11.2015. ASSESSMENT WAS FRAMED BY ITO WARD-12(2), KOLKATA U/ S 144/147 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS T HE ACT) VIDE HIS ORDER DATED 27.12.2010 FOR ASSESSMENT YEAR 2005-06. SHRI SAURABH KUMAR, LD. DEPARTMENTAL REPRESENTATIVE APPEARED ON BEHALF OF REVENUE AND SHRI RAVI TULSIYAN, LD. AUTHORIZED REPR ESENTATIVE APPEARED ON BEHALF OF ASSESSEE. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS:- 1. ON THE FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED BY TREATING THE ORDER OF THE AO AS ULTRA VIRES AND ANNULLING THE ORDER OF THE AO BY OVERLOOKING THE FACT THAT ASSESSEE FAILED TO FI LE ANY OBJECTION TO THE ISSUANCE OF NOTICE U/S. 148 OF THE ACT WITHIN THE S TIPULATED TIME AS PER THE PROVISIONS OF THE CT DESPITE AVAILING AMPLE OPPORTU NITY BY ISSUING NOTICES. ITA NO.169/KOL/2016 A.Y. 2005-06 DCIT, CIR-12(2) KOL. VS. M/S SIMPLEX PROJ ECTS LTD. PAGE 2 2. ON THE FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED BY TREATING THE ORDER OF THE AO AS ULTRA VIRES AND ANNULLING THE ORDER OF THE ASSESSING OFFICER BY IGNORING THE FACT THAT IF CONS CIOUS APPLICATION OF MIND IS MADE ON THE RELEVANT FACTS AND MATERIAL AVAILABLE O R EXISTING AT THE RELEVANT POINT OF TIME WHILE MAKING ASSESSMENT AND AGAIN A D IFFERENT OR DIVERGENT VIE IS SOUGHT, IT WOULD TANTAMOUNT TO CHANGE OF OPINION WHEREAS, IN THE CASE OF THE ASSESSEE, NO CONSCIOUS ATTEMPT WAS MADE ON THE ISSUED INVOLVED FOR RE- OPENING THE CASE WHICH TANTAMOUNT TO MISTAKE IN NOT CONSIDERING THE RELEVANT POINT OR PROPOSITION AND HENCE, IT WOULD NOT BE REG ARDED AS CHANGE OF OPINION . 3. IN FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW , THE LD. CIT(A) ERRED BY ALLOWING DEDUCTION U/S 80IA OF THE ACT TO THE ASSES SEE AS THE ASSESSEE HAS NOT DERIVED INCOME BY DEVELOPING ROAD RATHER THE AS SESSEE HAS BEEN PAID OFF FOR A FIXED AMOUNT BY THE AUTHORITY AFTER COMPLIANC E OF PROVISIONS OF SEC. 194C OF THE ACT. 4. IN FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW , THE LD. CIT(A) ERRED IN BY IGNORING THE FACT THAT THE BASIC INTENT OF THE LEGI SLATURE IS ABSENT IN THE WORK DONE BY THE ASSESSEE DURING THE RELEVANT PREVIOUS F OR CLAIMING DEDUCTION U/S. 80IA OF THE ACT IN ASSESSEES CASE AND AT BEST, THE WORK OF THE ASSESSEE CAN BE REGARDED AS WORK CONTRACT . 5. THE APPELLANT CRAVES LEAVE TO ADD/DELETE/MODIFY THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 3. FIRST WE TAKE UP GROUNDS NO. 3 AND 4 OF THE REVE NUES APPEAL WHERE THE ISSUE WAS RAISED THAT LD. CIT(A) ERRED IN ALLOW ING THE DEDUCTION CLAIMED BY ASSESSEE U/S 80IA OF THE ACT. 4. BRIEFLY STATED FACTS ARE THAT ASSESSEE IS A LIMI TED COMPANY AND ENGAGED IN BUSINESS OF CIVIL AND ENGINEERING CONSTRUCTION. DURING THE YEAR AS HAS CLAIMED DEDUCTION FOR 1,07,35,440/- U/S 80IA OF THE ACT IN RESPECT OF ITS PROJECT AWARD BY KONKAN RAILWAY. HOWEVER, ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS OBSERVED THAT ASSE SSEE IS ACTING MERELY AS A WORKS CONTRACTOR AND THEREFORE IT IS NOT ENTIT LED FOR DEDUCTION U/S 80IA OF THE ACT. THUS, THE DEDUCTION CLAIMED BY ASSESSEE WA S DISALLOWED BY AO. 5. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE L D. CIT(A) WHO REVERSED THE ORDER OF AO BY OBSERVING AS UNDER:- 4.4 I HAVE CONSIDERED THE SUBMISSION OF THE AR OF T HE APPELLANT AND PERUSED ALL THE RELEVANT DETAILS FILED WITH REGARD TO THIS GROUND. I FIND THAT THE ISSUE WAS DISCUSSED AT LENGTH IN THE CASES OF SIMPLEX-SUBHASH JV AND SIMPLEX- SOMDATT BUILDERS JV FOR AY 2007-08 (IITA NO.1684/KO L/2011 & ITA NO.1685/KOL/2011 DATED 18.06.013) WHEREIN THE JURIS DICTIONAL ITA, KOLKATA HAD ADJUDICATED IN FAVOUR OF THE ASSESSEE CONCERNED , FACTS AND CIRCUMSTANCES REMAINING THE SAME AS IN THE CASE OF THE APPELLANT (SUPRA). ITA NO.169/KOL/2016 A.Y. 2005-06 DCIT, CIR-12(2) KOL. VS. M/S SIMPLEX PROJ ECTS LTD. PAGE 3 THE ITAT(KOLKATA) DEALT WITH THE SAME ISSUE IN ASSE SSEES OWN ASSESSEE FOR AY 2007-08 (ITA NO.251/KOL/2011 DATED 17.01.2014) A ND BASED ON IDENTICAL FACTS ALLOWED DEDUCTION U/S 80-IA. FURTHER, THE PRO JECT DISCUSSED ABOVE, (WHICH COVERS THE ENTIRE CLAIM OF THE ASSESSEE U/S 80-IA. FURTHER, THE PROJECT DISCUSSED ABOVE, (WHICH COVERS THE ENTIRE CLAIM OF THE ASSESSEE U/S. 80-IA) IS ALSO COVERED BY THE ORDER OF THE KOLKATA TRIBUNAL. SINCE THE ISSUE STANDS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE IN ITS O WN CASE FOR AY 2007-08 FOR THE SAME PROJECT, I DO NOT FIND ANY CAUSE TO ENDORS E THE ACTION OF THE AO IN DENYING DEDUCTION U/S. 80IA TO THE APPELLANT. IN VI EW OF THE FOREGOING AND ON CONSIDERATION OF THE SUBMISSION OF THE APPELLANT ON THE ISSUE (SUPRA), THE AO IS DIRECTED TO ALLOW DEDUCTION AS CLAIMED U/S 80IA OF THE ACT. THE REVENUE, BEING AGGRIEVED, IS IN AN APPEAL BEFOR E US. 6. BEFORE US BOTH PARTIES RELIED ON THE ORDER OF AU THORITIES BELOW AS FAVOURABLE TO THEM. 7. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AT THE OUTSET, WE FIN D THAT IN THE IDENTICAL ISSUE IN RESPECT OF PROJECT AWARDED BY KONKAN RAILWAY, THE H ONBLE TRIBUNAL IN ASSESSEES OWN CASE HAS DECIDED THE IDENTICAL ISSUE IN FAVOUR OF ASSESSEE IN ITA NO.251/KOL/2011 FOR A.Y 2007-08 DATED 17.01.2017. THE RELEVANT OPERATIVE PORTION OF THIS ORDER IS REPRODUCED BELOW :- IT WAS THE FURTHER SUBMISSION THAT THE ISSUE WAS SQUARELY COVERED BY THE DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL I N THE CASE OF ASSESSEES SISTER CONCERN IN THE CASE OF SIMPLEX SOM-DUTT BUIL DERS J.V. AND SIMPLEX SUBHASH J.V. IN ITA NO.1684/KOL/2011 AND 1685/KOL/2011 DATED 18.06.2013 WHEREIN THE COORDINATE BENCH OF THIS TRIBU8NAL HAS HELD AS UNDER AT PARAS 11 TO 13 :- 11.WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. ADMIT TEDLY, A PERUSAL OF THE AGREEMENT ENTERED INTO BETWEEN THE ASSESSEE AND T HE GOVT OF ANDHRA PRADESH IRRIGATION & CAD DEPARTMENT SHOWS THAT THE ASSESSEE HAS TAKEN EPC/TURNKEY CONTRACT OF THE FLOOD FLOW CANAL PROJEC T FROM SRSP. THE NAME OF THE CONTRACT HAS BEEN EXTRACTED EARLIER IN THIS ORDER. THE SCOPE OF THE WORK IS ALSO EXTRACTED ABOVE. ADMITTEDLY, THE ASSESSEE H AS TAKEN A TURNKEY CONTRACT FROM THE IRRIGATION DEPARTMENT, GOVT. OF A NDHRA PRADESH. THE TURNKEY CONTRACT IS IN RESPECT OF THE IRRIGATION PR OJECT. IRRIGATION PROJECT IS AN INFRASTRUCTURE FACILITY WITHIN THE SCOPE OF EXPLANA TION TO SECTION 80IA(4) OF THE ACT. THE PROVISIONS OF SECTION 80IA(4) IS TO BE CO NTROLLED BY THE EXPLANATION TO SECTION 80IA, WHICH HAS BEEN SUBSTITUTED BY THE FINANCE (NO.2) ACT, 2009 WITH RETROSPECTIVE EFFECT FROM 1-4-2000. THIS EXPLA NATION IS FOUND AFTER SUB- SECTION (13) OF SECTION 80IA. THE SAID EXPLANATION ATTEMPTS TO CONTROL THE PROVISIONS OF SUB-SECTION 4. MORE SO, IT SAYS THAT NOTHING CONTAINED IN SECTION 80IA WOULD APPLY IN RELATION TO THE BUSINESS REFERR ED TO SUB-SECTION (4), WHICH IS IN THE NATURE OF WORKS CONTRACT. A WORKS CONTRAC T IS NOT DEFINED IN SECTION ITA NO.169/KOL/2016 A.Y. 2005-06 DCIT, CIR-12(2) KOL. VS. M/S SIMPLEX PROJ ECTS LTD. PAGE 4 80IA. NOW, WHAT WOULD COME INTO CONSIDERATION IS WH ETHER THE SUBSTITUTED EXPLANATION AFTER SUB- CLAUSE (13) CHANGED THE NA TURE OF THE MEANING OF INFRASTRUCTURE FACILITY PROVIDED IN THE EXPLANATI ON TO SECTION 80IA(4). ADMITTEDLY, THE EXPLANATION TO SECTION 80IA(4) GIV ES THE MEANING THE TERM INFRASTRUCTURE FACILITY . THE SUBSTITUTED EXPLANATION AFTER SUB CLAUSE (13 ) BRINGS IN THE NATURE OF WORK AS A WORKS CONTRACT. T HE PROVISIONS OF SECTION 194C, WHICH DEALS WITH TDS IN RESPECT OF PAYMENT T O CONTRACTORS FOR CARRYING OUT ANY WORK IN THE EXPLANATION THERETO AS EXPLAI NED THE TERM WORK TO BE AN INCLUSIVE DEFINITION, BUT HAS PROVIDED AN EXCLUS ION TO BE DOES NOT INCLUDE MANUFACTURING OR SUPPLYING OF A PRODUCT. ACCORDIN G TO REQUIREMENT OR SPECIFICATION OF THE CUSTOMER BY USING MATERIALS PU RCHASED FROM A PERSON, OTHER THAN SUCH CUSTOMER. THUS, WITH THIS IN MIND, A PERUSAL OF THE TURNKEY CONTRACT AGREEMENT ENTERED INTO BY THE ASSESSEE WIT H 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, DRAWINGS, SPECIFICATIONS OF THE DEPARTMENT ETC. THE SURVEY IS TO BE DONE AS PER INVESTIGATION AND DESIGNING CRITERIA OF THE IRR IGATION DEPARTMENT. THIS IS ALSO AS PER ARTICLE 11.1 OF THE AGREEMENT. THE ASSE SSEE IS TO PROCURE THE MATERIALS INDEPENDENTLY AND THOSE MATERIALS ARE TO CONFIRM TO THE SPECIFICATIONS PROVIDED. THE ASSESSEE IS ALSO TO M AKE ITS ARRANGEMENTS FOR STORAGE OF THE MATERIALS. THIS IS AS PER ARTICLE 107 OF THE AGREEMENT. THUS, ADMITTEDLY THE WORK DONE BY THE ASSESSEE FALLS IN THE EXCLUSION PROVIDED TO THE MEANING OF THE WORK GIVEN IN THE EXPLANATION TO SECTION 194C OF THE ACT. ONCE IT FALLS OUTSIDE THE MEANING OF TERM WORK F OR THE PURPOSE OF SECTION 194C, THE QUESTION THAT ARISES IS CAN IT BE SAID TH AT THE ASSESSEE IS DOING THE WORK CONTRACT AS PROVIDED IN THE SUBSTITUTED EXPL ANATION IN SECTION 80IA AFTER SUB CLAUSE (13)?, THE ANSWER WOULD BE EMPHATIC NO . 12. THIS IS BECAUSE THE ASSESSEE IS DOING THE ACTIV ITY OF DEVELOPMENT OF AN INFRASTRUCTURE FACILITY AS PROVIDED UNDER SECTION 8 0IA(4). THE PROJECT IS A TURNKEY PROJECT AND IT CANNOT FORM NOR HAVE A CHARA CTER OF A WORKS CONTRACT. WORKS CONTRACT WOULD BE APPLICABLE TO THE REPAIRS A ND MAINTENANCE OF AN EXISTING PROJECT. WORKS CONTRACT CANNOT BE IN RELAT ION TO THE DEVELOPMENT OF A NEW PROJECT. ONE OF THE ARGUMENTS RAISED BY THE LEA RNED SR.DR THAT THE INTENTION OF THE SUBSTITUTION OF THE EXPLANATION A FTER SUB CLAUSE (13) OF SECTION 80IA WAS TO DENY, THE BENEFIT OF DEDUCTION U/S. 80I A(4) IN RESPECT OF WORKS CONTRACT, BUT TO PROVIDE THE DEDUCTION TO SUCH UNDE RTAKINGS, WHICH IS DOING THE BUSINESS OF BUILDING, OPERATING AND TRANSFER (BOT) AND BUILDING OWNING, OPERATING AND TRANSFER BOOT AS ALSO PPP CONTRACT S DOES NOT HOLD WATER IN SO FAR AS AN IRRIGATION PROJECT CAN NEVER FUNCTION U NDER BOT OR BOOT OR PPP . IN THE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ASSE SSEES 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 TH E DECISION OF THE CO-ORDINATE OF THE TRIBUNAL, [ITAT, HYDERABAD BENCH, HYDERABAD IN THE CASE OF GVPR ENGINEERS LTD & ORS (REFER TO SUPRA). WE MAY MENTI ON HERE THAT OUR VIEW ALSO FINDS SUPPORT FROM THE DECISION OF THE CO-ORDINAT E BENCH OF THIS TRIBUNAL, ITAT CUTTACK BENCH, CUTTACK IN THE CASE OF ARSS INFRAST RUCTURE PROJECTS LTD VS. ACIT, CIRCLE-2 (1), BHUBANESWAR IN ITA NOS. 142, 143/CTK/2010 & 483,484/CTK/2011 DATED 13-06-2013, WHEREIN ONE OF US WAS A PARTY AND IN WHICH CASE IT HAS BEEN HELD AS UNDER :- ITA NO.169/KOL/2016 A.Y. 2005-06 DCIT, CIR-12(2) KOL. VS. M/S SIMPLEX PROJ ECTS LTD. PAGE 5 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 SPEC IFIED TO MEAN A ROAD INCLUDING A TOLL ROAD, A BRIDGE OR A RAIL SYSTEM. ADMITTEDLY, THE ASSESSEE IS DOING THE BUSINESS OF DEVELOPMENT OF RAILWAY TRACKS AND BRIDG ES THEREOF AS ALSO ROADS. IF, WE ARE TO ACCEPT THE CONTENTION OF THE LD. CIT THAT THE PROVISIONS OF SECTION 801A(4) OF THE ACT AFTER THE SUBSTITUTION OF THE EX PLANATION TO SECTION 8OIA OF THE ACT WAS INTRODUCED WAS ONLY FOR THE PURPOSE OF GIVING THE BENEFIT TO BUT CONTRACTS THEN, THE EXPLANATION TO SECTION 801A(4) OF THE ACT BECOMES OTIOSE. THIS IS AS EXPLANATION TO SECTION 801A(4) OF THE AC T SPECIFICALLY PROVIDES FOR THE ROAD TO INCLUDE A TOLL ROAD, A BRIDGE 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 TH E 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 AC T. IF A PARTICULAR WORD OR TERM IS NOT DEFINED IN THE SPECIFIC SECTION THEN, O NE COULD GO TO OTHER SECTIONS IN THE SAID ACT WHERE THE DEFINITION WOULD BE AVAIL ABLE TO DRAW A MEANING TO THE SAID TERMS. IN THE PROVISIONS OF SECTION 194C O F THE ACT, WORK HAS BEEN GIVEN AN INCLUSIVE DEFINITION BUT IN THE SUBSEQUENT PORTION IT HAS EXCLUDED THE MANUFACTURING OR SUPPLYING A PRODUCT ACCORDING TO R EQUIREMENT 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 T HE REQUIREMENT AND SPECIFICATION OF THE CUSTOMER AND THE SAME HAS BEEN DONE BY USING MATERIALS PURCHASE FROM THIRD PARTIES OTHER THAN THE CUSTOMER S. THUS, THOUGH THE ASSESSEE IS DOING A WORKS CONTRACT THE SAME WOULD N OT FALL WITHIN THE MEANING OF THE WORD WORKS CONTRACT FOR THE PURPOS E OF THE ACT DUE TO THE EXCLUSION PROVIDED IN THE MEANING OF WORK IN SECT ION 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 S TAND TO TEST AS THE ASSESSEE ADMITTEDLY IS DEVELOPING THE ROADS AND RAILWAY LIN ES AND THE BRIDGES THEREOF. DEVELOPMENT ENCOMPASSES WITHIN ITSELF CONTRACT WORK . THE AGREEMENT BETWEEN THE ASSESSEE AND THE CUSTOMER BEING THE GOV ERNMENT IS FOR THE DEVELOPMENT OF THE INFRASTRUCTURE FACILITY BEING RO ADS AND RAIL SYSTEMS AND BRIDGES BY PARTICIPATING IN THE TENDERS. UNDER THES E CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE AO WAS RIGHT IN LAW IN GRANTING T HE ASSESSEE THE BENEFIT OF DEDUCTION U/S. 801A(4) OF THE ACT. 13. IN THE CIRCUMSTANCES, THE ASSESSING OFFIC ER IS DIRECTED TO GRANT THE ASSESSEE THE BENEFIT OF DEDUCTION U/S. 80IA OF THE ACT AS CLAIMED. IT WAS THE SUBMISSION THAT IN THE CIRCUMSTANCES THE AO MAY BE DIRECTED TO GRANT THE ASSESSEE BENEFIT OF DEDUCTION U/S 80-IA OF THE ACT. IT WAS THE SUBMISSION THAT THE LD. CIT(A) HAD WITHOUT CONSIDERING THE EXP LANATION OF THE ASSESSEE HELD THE ISSUE AGAINST THE ASSESSEE. 14. IN REPLY THE LD. DR SUPPORTED THE ORDER OF THE AO AND THE LD. CIT(A). IT WAS SUBMITTED BY THE LD. DR THAT THE EXPLANATION TO SEC TION 80-IA(13) OF THE ACT INTRODUCED BY THE FINANCE ACT, 2007 WAS LIABLE TO B E APPLIED AND THE ASSESSEE WAS NOT ENTITLED TO DEDUCTION U/S 80-IA(4) OF THE A CT. ITA NO.169/KOL/2016 A.Y. 2005-06 DCIT, CIR-12(2) KOL. VS. M/S SIMPLEX PROJ ECTS LTD. PAGE 6 15. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AS IT IS NOTICED THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF ASSESSEES SISTER CONCERN REFERRED TO SUPRA AS ALSO ON ACCOUNT OF THE FACT THAT IT IS NOTICED THAT ASSESSEE HAS BEEN PAYI NG VAT ON THE TURNOVER IN RESPECT OF VARIOUS PROJECTS. THE PROJECTS WHICH HAV E BEEN UNDERTAKEN BY THE ASSESSEE IN WEST BENGAL AND BIHAR ARE ALSO SUCH PRO JECTS WHICH ARE ASSESSABLE UNDER THE RELEVANT STATES VAT LAWS IN TH E CIRCUMSTANCES WE ARE OF THE VIEW THAT THE ASSESSEE IS ENTITLED TO THE BENEF IT OF DEDUCTION U/S 80IA(4) AS CLAIMED. IN THE CIRCUMSTANCES THE AO IS DIRECTED TO GRANT THE ASSESSEE BENEFIT OF DEDUCTION U/S 80IA OF THE ACT AS CLAIMED. IN VIEW OF THE AFORESAID FACTS AND RESPECTFULLY FOL LOWING THE DECISION OF COORDINATE BENCH OF THIS TRIBUNAL, WE FIND NO INFIR MITY IN THE ORDER PASSED BY THE LD. CIT(A). ACCORDINGLY, THE GROUND RAISED BY R EVENUE IS DISMISSED. WE HOLD ACCORDINGLY. 8. AS WE HAVE DISMISSED THE APPEAL BY REVENUE ON ME RITS VIDE PARA 6 AND 7 OF THIS ORDER, THEREFORE WE ARE OF THE VIEW T HAT THE OTHER ISSUES RAISED BY REVENUE IN GROUNDS NO. 1 AND 2 DO NOT REQUIRE ANY A DJUDICATION AND SO THESE ARE LEFT OPEN. 9. IN THE RESULT, REVENUES APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT 08 /11/2017 SD/- SD/- (ABY. T. VARKEY) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP SR.P.S #- 08 / 11 /201 7 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-DCIT, CIRCLE-12(2), AAYAKAR BHHAWAN, P-7 , 6 TH FLOOR, CHOWRINGHEE SQUARE, KOLKATA- 69 2. /RESPONDENT-M/S SIMPLEX PROJECTS LTD. 12/1 NELLIE S ENGDUPTA SARANI,KOLKATA-87 3. / 0 / CONCERNED CIT KOLKATA 4. 0- / CIT (A) KOLKATA 5. 3 66/, /, / DR, ITAT, KOLKATA 6. 9 / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO /,