DCIT, Circle-4, Kolkata, Kolkata V. M/s Tantia Construction Ltd., Kolkata

ITA 1758/KOL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1786 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-08-2017
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 04-05-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 08-09-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Retrospective amendment; Revised return
• Section: 143(3); 153A; 139(5); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA [BEFORE HONBLE SHRI ABY. T. VARKEY, JM & SHRI M. BALAGANESH, AM ] I.T.A NO. 1758/KOL/20 14 ASSESSMENT YEAR : 2011-1 2 DCIT, CIRCLE-4, KOLKATA -VS- M/ S TANTIA CONSTRUCTION LTD. [PAN: AABCT0811E] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI ANAND R. BAIW AN, CIT FOR THE RESPONDENT : SHRI MANISH TIWARI, FCA DATE OF HEARING : 10.08.2017 DATE OF PRONOUNCEMENT : 06.09.2017 ORDER PER M.BALAGANESH, AM 1. THIS APPEAL BY THE REVENUE ARISES OUT OF THE ORD ER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), CIRCLE-II, KOLKATA [ IN SHORT THE LD CITA] IN APPEAL NO. 79/CC- XIII/CIT(A)C-II/14-15 DATED 28.05.2014 AGAINST THE ORDER PASSED BY THE DCIT, CENTRAL CIRCLE-XIII, KOLKATA [ IN SHORT THE LD AO] UNDER S ECTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 24.03.2014 FOR THE ASSESSMENT YEAR 2011-12. 2. THE FIRST ISSUE TO BE DECIDED IN THIS APPEAL IS AS TO WHETHER THE LD CITA WAS JUSTIFIED IN DELETING THE ADDITION MADE ON ACCOUNT OF RETENTI ON MONEY OF RS 7,07,91,419/- AS INCOME OF THE YEAR, IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 2.1. THE BRIEF FACTS OF THIS ISSUE IS THAT THE ASSE SSEE IS A PUBLIC LIMITED COMPANY ENGAGED IN THE BUSINESS OF CIVIL CONSTRUCTION THROUGH THE P ROCESS OF TENDER. DURING THE YEAR, THE ASSESSEE RECEIVED GROSS CONTRACT RECEIPT OF RS 679, 14,98,804/- FROM DIFFERENT PRINCIPALS / CLIENTS. SOME OF THE PRINCIPALS / CLIENTS RETAINED PART OF THE CONTRACT PAYMENT MADE BY 2 ITA NO.1758/KOL/2014 TANTIA CONSTRUCTION LTD. A.YR.2011-12 2 THEM AS RETENTION MONEY. DURING THE YEAR , RETENTI ON MONEY OF RS 7,07,91,419/- WAS RETAINED FROM THE CONTRACT RECEIPT OF THE CURRENT Y EAR. THE ASSESSEE SUBMITTED THAT IT BEING A DEVELOPER OF INFRASTRUCTURAL FACILITIES RAI SES RUNNING BILLS BEFORE COMPLETION OF THE PROJECT AS PER AGREED TERMS AND CONDITIONS. THE AUTHORITIES GENERALLY RELEASE 90% OF THE BILL AMOUNT ON THE BILL RAISED BUT RETAIN 10% O F EACH AND EVERY BILL TILL THE VERIFICATION AS TO SATISFACTORY PERFORMANCE OF THE WHOLE PROJECT IS COMPLETE EITHER AS RETENTION MONEY OR AS SECURITY DEPOSIT AS PER THE T ERMS OF AGREEMENT. NORMALLY, COMPLETION OF THE PROJECT AND VERIFICATION OF SATIS FACTORY PERFORMANCE TAKES CONSIDERABLE TIME RESULTING IN DELAY IN PAYMENT OF RETENTION MONEY BEING 10% OF THE BILL AMOUNT AND THE DEVELOPER COMPANY HAS NO RIGHT TO RECEIVE THE SAME. THUS, TECHNICALLY THE RETAINED MONEY DOES NOT ACCRUE TO T HE ASSESSEE AS INCOMES UNTIL THE SATISFACTION OF AUTHORITIES CONCERNED ARE ACHIEVED. IT WAS THE EARLIER PRACTICE OF THE APPELLANT COMPANY TO CREDIT ITS PROFIT AND LOSS ACC OUNT WITH THE ENTIRE AMOUNT OF BILL RAISED ON PRINCIPALS AND TO SHOW THE RETENTION MON EY RECEIVABLE UNDER A SEPARATE HEAD IN THE BALANCE SHEET. THE LEGAL POSITION REGARDING YEAR OF ASSESSABILITY OF RETENTION MONEY IS CLARIFIED IN SEVERAL JUDICIAL DECISIONS M ENTIONED HEREIN BELOW: (A) CIT VS. IGNIFLUID BOILERS (I) LTD. 283 ITR 295 (MAD) (B) CIT VS. P & C CONSTRUCTIONS (P) LTD. 2 TAXMAN. COM 47 (MAD) (C) CIT VS. SIMPLEX CONCRETE PILES (INDIA) PVT. LT D. 179 ITR 8 (CAL) THEREFORE, THE COMPANY WHILE FILING RETURN U/S 139( 1) IN ITS COMPUTATION DID NOT INCLUDE THE SUM OF MONEY RETAINED IN ITS BUSINESS PROFIT AS PER ACCOUNTS. SIMILARLY A SUM OF RS. 9,60,44,769/- RETAINED IN EARLIER YEARS AND NOT INC LUDED IN COMPUTATION OF INCOME AS A TAXABLE INCOME HAS BEEN INCLUDED IN COMPUTATION OF INCOME DURING THE YEAR AS THE SUM OF MONEY WAS RECEIVED BY THE ASSESSEE DURING THE R ELEVANT ASSESSMENT YEAR. IT IS WORTH MENTIONING HERE THAT THE CLAIM OF RETENTION MONEY W AS ALLOWED TO THE ASSESSEE IN A.Y. 2010-11. THUS, AS A PRINCIPLE OF JUDICIAL CONSISTE NCY THE SUM OF RS. 7,07,91,419/- SHOULD NOT BE INCLUDED IN GROSS TOTAL INCOME OF THE ASSESSEE COMPANY. 3 ITA NO.1758/KOL/2014 TANTIA CONSTRUCTION LTD. A.YR.2011-12 3 THE LD AO OBSERVED THAT ASSESSEE IS FOLLOWING MERCA NTILE SYSTEM OF ACCOUNTING. THE ASSESSEES CONTENTION IS THAT IN RESPECT OF RETENTI ON MONEY, THE INCOME ARISE TO THE ASSESSEE ONLY WHEN THE SAID AMOUNT OF RETENTION MON EY IS RECEIVED BY THE ASSESSEE AND NOT AT THE TIME OF RAISING OF THE BILLS. HOWEVER, W HENEVER A CONTRACTOR EXECUTES A JOB AND RAISES A BILL TO THE CONTRACTEE IN THE MERCANTI LE SYSTEM OF ACCOUNTING, THE WHOLE BILL VALUE IS CREDITED TO THE PROFIT AND LOSS ACCOUNT OF THE ASSESSEE IRRESPECTIVE OF THE FACT WHETHER SUCH BILL AMOUNT IS RECEIVED BY IT DURING T HE PREVIOUS YEAR OR NOT. IT MAY HAPPEN THAT THE SOME OF THE CONTRACTEES/ PRINCIPALS DO NOT PAY THE WHOLE AMOUNT AS CLAIMED BY THE CONTRACTOR AND PAY AN AMOUNT LESSER THAN THAT CLAIMED BY THE CONTRACTOR AFTER MAKING SOME DEDUCTION ON ACCOUNT OF SOME SHOR TFALL, IMPROPER WORK OR OTHER CONTINGENCIES. SIMILARLY, WHEN THE CONTRACTEE RETAI NS SOME AMOUNT FROM THE BILL VALUE IT IS ASSUMED THAT THE AMOUNT WITHHELD WHICH IS RECEIV ABLE BY THE ASSESSEE WILL BE RECEIVED BY THE ASSESSEE EXCEPT IN A SITUATION WH EN THE CONTRACTEE FINDS SOME FAULT WITH THE WORK. BUT THE TAXATION OF THE AMOUNT RETAINED C ANNOT BE WITHHELD FOR THE CONTINGENCY THAT THE CONTRACTEE WILL FIND SOME FAUL T WITH THE WORK AND THE ASSESSEE WILL NOT GET BACK THE AMOUNT. THE TREATMENT OF THE RETEN TION MONEY ON ANTICIPATION OF A CONTINGENCY DEFIES THE VERY BASIS OF ACCOUNTING. IN THE PRESENT CASE, THERE WAS NO CHANGE IN THE BUSINESS MODEL OR MODUS OPERANDI OF T HE BUSINESS CARRIED ON BY THE ASSESSEE FOR MORE THAN A DECADE. THIS METHOD OF ACC OUNTING WAS BEING REGULARLY FOLLOWED BY THE ASSESSEE. THE HON'BLE SUPREME COUR T IN THE CASE OF RADHASWAMI SATSANG REPORTED IN 193 ITR 321 HELD THAT CONSISTEN CY IS THE HALL MARK OF LAW AND JUSTICE. IF THE ASSESSEE HAS BEEN FOLLOWING A METHO D YEAR AFTER YEAR BY INCLUDING RECEIVABLE AMOUNT IN ITS INCOME IT WOULD NOT BE JU STIFIED IN SUDDENLY EXCLUDING SUCH RECEIVABLE FORM ITS INCOME TO REDUCE THE PROFIT. S O THE ACT OF THE ASSESSEE IS NOT JUSTIFIED. MOST IMPORTANTLY, THE PRINCIPALS DEDUCTE D TDS OF RS. 12,32,02,293/- ON THE GROSS CONTRACT RECEIPTS OF RS. 679,14,98,804/- ACCE PTED DURING THE YEAR UNDER CONSIDERATION WHICH INCLUDED THE RETENTION MONEY OF RS. 7,07,91,419/-. THE CREDIT OF THE TOTAL TDS WAS CLAIMED BY THE ASSESSEE IN THE Y EAR UNDER CONSIDERATION. THE ACT OF 4 ITA NO.1758/KOL/2014 TANTIA CONSTRUCTION LTD. A.YR.2011-12 4 THE ASSESSEE IN SUDDENLY EXCLUDING SAID RETENTION M ONEY OF RS. 7,07,91,419/- FROM THE INCOME OF THE ASSESSEE TO REDUCE THE INCOME OF THE YEAR IS NOT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 199 OF THE ACT, WHICH GOVERNS CREDIT FOR TAX DEDUCTED. IN VIEW OF THE ABOVE, THE SAID REDUCTION OF THE RETENTION MONE Y OF RS. 7,07,91,419/- FROM THE COMPUTATION OF INCOME IS DENIED. 2.2. THE LD CITA BY GIVING DUE CREDENCE TO THE VAR IOUS JUDGEMENTS OF THE HIGH COURTS INCLUDING THAT OF HONBLE CALCUTTA HIGH COURT IN TH E CASE OF CIT VS SIMPLEX CONCRETE PILES INDIA (P) LTD REPORTED IN 179 ITR 8 (CAL) OP INED THAT THE LD AO WAS NOT JUSTIFIED IN REJECTING THE CLAIM OF THE ASSESSEE ON ACCOUNT O F RETENTION MONEY CLAIMED IN THE RETURN FILED U/S 139(5) OF THE ACT. HE ALSO OBSERVE D THAT THE LD AO HAD RELIED ON CERTAIN JUDICIAL PRONOUNCEMENTS IN HIS ORDER BUT NONE OF TH EM ARE DIRECTLY RELATED TO THE ISSUE INVOLVED IN THE INSTANT CASE. HE OBSERVED THAT AS F AR AS THE CLAIM OF TDS IS CONCERNED, THE SAME IS ALLOWABLE TO THE ASSESSEE AS PER THE PR OVISIONS OF THE AT. IT WAS HELD THAT THE CLAIM MADE BY THE ASSESSEE IN ITS REVISED RETURN OF INCOME ON ACCOUNT OF RETENTION MONEY WAS ALLOWABLE IN VIEW OF THE JUDICIAL PRONOUN CEMENTS. HE FURTHER OBSERVED THAT SINCE IN THE YEAR UNDER CONSIDERATION, THE FACTS AR E SIMILAR TO THE FACTS IN IMMEDIATELY PRECEDING YEAR, FOLLOWING THE ORDER OF HIS PREDECES SOR FOR THE EARLIER YEAR, HE HELD THAT THE AMOUNT OF RETENTION MONEY OF RS 7,07,91,419/- I S NOT TAXABLE IN THE YEAR UNDER APPEAL AND ASSESSEE HAD RIGHTLY CLAIMED THE REDUCTI ON OF THE SAID AMOUNT. HE FURTHER OBSERVED THAT THE ASSESSEE IN LINE WITH ITS PRINCIP LES OF CONSISTENCY, HAD OFFERED THE RETENTION MONEY OF RS 9,60,44,769/- TO TAX WHICH WA S PERTAINING TO EARLIER YEARS BUT REEIVED IN THE YEAR UNDER CONSIDERATION. THE LD AO HAD TAXED THE SAME ON RECEIPT BASIS AND HENCE THE RETENTION MONEY OF RS 7,07,91,419/- R ETAINED DURING THE YEAR WILL ALSO BE TAXABLE ONLY ON RECEIPT BASIS. 2.3. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUNDS:- 5 ITA NO.1758/KOL/2014 TANTIA CONSTRUCTION LTD. A.YR.2011-12 5 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION MADE ON RETENTION MONEY WITHO UT CONSIDERING THE FACT THAT THE ASSESSEE WAS FOLLOWING MERCANTILE SYSTEM OF ACC OUNTING AND THE AMOUNT OF RETENTION MONEY WAS DULY ACCOUNTED IN THE BOOKS OF ACCOUNTS AND WAS CREDITED TO THE PROFIT AND LOSS ACCOUNT ALONG WITH CONTRACTUAL RECEIPTS. 2. THAT THE APPELLANT DEVIATED FROM MERCANTILE SYST EM OF ACCOUNTING IN DEDUCTING THE RETENTION MONEY FROM THE COMPUTATION ON RECEIPT/CASH BASIS AS EVIDENT IN THE RETURN SUBMITTED BY IT U/S 139(5) AN D THEREAFTER REVISED ON 05.09.2012. 3. THAT THE CHANGE IN MODUS OPERANDI OF THE BUSINES S WAS NOT BROUGHT TO THE NOTICE OF THE DEPT. DESPITE HAVING REVENUE IMPLICA TION AND THAT THE SOLE OBJECTIVE OF THE CO. IN DEVIATING FROM ITS EARLIER STAND WAS AIMED AT REDUCING THE TAX LIABILITY. 4. THAT THE ASSESSEE CLAIMED THE CREDIT OF TDS SO M ADE BY THE PRINCIPALS ON CONTRACTUAL RECEIPT OF RS. 679,14,98,804/- ACCRUED IN THE YEAR UNDER CONSIDERATION THAT INCLUDED THE DISPUTED AMOUNT OF RS. 7,07,91,419/- AND THEREFORE, TO REDUCE IT FROM INCOME IS NOT IN ACCOR DANCE WITH THE PROVISIONS OF SECTION 199 OF THE ACT. 2.4. WE HAVE HEARD THE RIVAL SUBMISSIONS. THE LD AR STATED THAT THE ISSUE UNDER DISPUTE IS COVERED BY THE DECISION OF THIS TRIBUNAL IN ASSE SSEES OWN CASE FOR THE ASST YEAR 2010-11 IN ITA NO. 2384 & 2392/KOL/2013 DATED 16.6. 2017, WHICH WAS FAIRLY CONCEDED BY THE LD DR. IN THE SAID ORDER , IT WAS HELD THAT :- 13. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH TH E PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AT THE OUTSET, WE FIND T HAT T HE INSTANT ISSUE HAS ALREADY BEEN ALLOWED BY CO-ORDINATE BENCH IN ASSESSEES OWN CASE (SUPRA) IN ITS FAVOUR AND RELEVANT EXTRACT IS REPRODUCED BELOW: 6.12. ON MERITS, RETENTION MONEY IN WORKS CONTRACT WITH GOVERNMENT IS TAXABLE ONLY ON RECEIPT BASIS AS HELD BY THE JURISDICTIONAL HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME-TAX VS. SIMPLEX CONCRETE PIL ES (INDIA) 1989 179ITR 8 (CAL). THUS, GROUND NO. 1 OF THE ASSESSEE IS ALLOWE D. RESPECTFULLY FOLLOWING THE SAME WE UPHOLD THE ORDER OF LD. CIT(A). THIS GROUND OF REVENUES APPEAL IS DISMISSED. 6 ITA NO.1758/KOL/2014 TANTIA CONSTRUCTION LTD. A.YR.2011-12 6 RESPECTFULLY FOLLOWING THE SAME, WE UPHOLD THE ORDE R OF THE LD CITA . ACCORDINGLY GROUNDS 1 TO 4 RAISED BY THE REVENUE ARE DISMISSED. 3. THE LAST ISSUE TO BE DECIDED IN THIS APPEAL IS A S TO WHETHER THE LD CITA WAS JUSTIFIED IN ALLOWING THE DEDUCTION CLAIMED U/S 80IA OF THE A CT TO THE ASSESSEE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3.1. THE BRIEF FACTS OF THIS ISSUE IS THAT THE ASSE SSEE FILED ITS RETURN OF INCOME FOR THE ASST YEAR 2011-12 DECLARING TOTAL INCOME OF RS 25,34,46, 469/- ON 30.9.2011. LATER THE ASSESSEE FILED A REVISED RETURN ON 24.3.2012 DECLAR ING TOTAL INCOME OF RS 36,04,37,324/-. AGAIN ON 5.9.2012, ANOTHER REVISED RETURN WAS FILED BY THE ASSESSEE DECLARING TOTAL INCOME AT RS NIL AFTER CLAIMING DEDUCTION U/S 80IA OF THE ACT TO THE TUNE OF RS 57,40,58,505/- RESTRICTED TO THE EXTENT OF INCOME F ROM BUSINESS OF RS 36,04,99,824/-. DURING THE RELEVANT ASSESSMENT YEAR THE ASSESSEE HA S MADE A CLAIM OF RS. 57,40,58,505/- U/S.80IA VIDE REVISED RETURN FILED DATED 05/09/2012 . THE ELIGIBLE DEDUCTION OF RS.57,40,58,505/- WAS RESTRICTED TO RS.36,04,37,324 /- IN VIEW OF INADEQUATE PROFIT COMPUTED UNDER THE HEAD BUSINESS. SO FAR AS ALLOWAB ILITY OF DEDUCTION U/S. 80JA FOR THE RELEVANT ASSESSMENT YEAR IS CONCERNED, IT IS SUBMIT TED THAT-THE ASSESSEE IS ENGAGED IN THE BUSINESS OF DEVELOPING INFRASTRUCTURE FACILITIES LI KE CONSTRUCTION OF ROADS, BRIDGES, RAILWAY SYSTEM ETC. PURSUANT TO AGREEMENTS ENTERED WITH CENTRAL GOVT., STATE GOVT. OR LOCAL AUTHORITIES VIZ., KOLKATA MUNICIPAL CORPORATI ON, CENTRAL PUBLIC WORKS DEPARTMENT (CPWD) AND OTHERS. THE COMPANY INVESTS S UBSTANTIAL AMOUNT SOURCED FROM ITS OWN FUND AND FROM OVERDRAFTS WITH BANKS AN D DEPLOYS ITS OWN MACHINERY AND MANPOWER TO EXECUTE SUCH PROJECTS. ON SUCCESSFUL CO MPLETION OF SUCH PROJECTS, THESE ARE HANDED OVER TO THE AUTHORITIES CONCERNED. THE A BOVE ACTIVITIES OF BUSINESS FALL WITHIN THE DEFINITION OF INFRASTRUCTURAL FACILITY AS SPECI FIED IN EXPLANATION ATTACHED TO SECTION 801A OF J. T. ACT, 1961. THEREFORE, THE CLAIM FOR D EDUCTION V/S.801A MADE IN THE RETURNS IS ALLOWABLE IN NATURE. AN EXPLANATION WAS INSERTED TOWARDS THE END OF SECTION 80IA BY FINANCE ACT, 2007 WITH RETROSPECTIVE EFFECT FROM 01.04.2000 TO DENY THE 7 ITA NO.1758/KOL/2014 TANTIA CONSTRUCTION LTD. A.YR.2011-12 7 BENEFIT TO A PERSON WHO EXECUTES A WORKS CONTRACT E NTERED INTO WITH THE UNDERTAKING OR ENTERPRISE. THE SAID EXPLANATION READS AS UNDER:- 'FOR THE REMOVAL OF DOUBTS, IT IS HEREBY DECLARED T HAT NOTHING CONTAINED IN THIS SECTION SHALL APPLY TO A PERSON WHO EXECUTES A WORK S CONTRACT ENTERED INTO WITH THE UNDERTAKING OR ENTERPRISE, AS THE CASE MAY BE . THE EXPLANATION INSERTED BY FINANCE ACT, 2007 WITH RETROSPECTIVE EFFECT WAS SUBSTITUTED BY FINANCE (NO.2) ACT, 2009 WITH SIMILAR RETROSPECT IVE EFFECT AND THE SAID EXPLANATION AS SUBSTITUTED READS AS UNDER:- 'FOR THE REMOVAL OF DOUBTS, IT IS HEREBY DECLARED T HAT NOTHING CONTAINED IN THIS SECTION SHALL APPLY IN RELATION TO A BUSINESS REFER RED TO SUB-SECTION (4) WHICH IS IN THE NATURE OF A WORKS CONTACT AWARDED BY ANY PER SON (INCLUDING THE CENTRAL OR STATE GOVERNMENT) AND EXECUTED BY THE UNDERTAKING O R ENTERPRISE REFERRED TO SUB-SECTION (1)' SO FAR AS THE EXPLANATION INSERTED BY FINANCE ACT, 2007 AND THEREAFTER SUBSTITUTED BY FINANCE (NO.2) ACT, 2009, THE ASSESSEE SUBMITS THAT SUCH EXPLANATION WAS INSERTED NOT TO ALLOW BENEFIT V/SO 80IA TO SUCH UNDERTAKINGS OR ENT ERPRISES WHO MERELY EXECUTE WORKS CONTRACT AWARDED BY ANY PERSON IN RELATION TO A BUS INESS REFERRED TO IN SUBSECTION (4). THIS IS CERTAINLY NOT APPLICABLE TO ANY ENTERPRISE CARRYING ON THE BUSINESS OF DEVELOPING ANY INFRASTRUCTURE FACILITY PURSUANT TO AN AGREEMEN T WITH THE CENTRAL GOVERNMENT OR STATE GOVERNMENT OR LOCAL AUTHORITY OR OTHER STATUT ORY BODY. SUCH AN INTERPRETATION OF THE EXPLANATION SHALL MAKE THE SECTION 80IA( 4) AS REDUNDANT AS ONE OF THE PRE- CONDITIONS FOR ELIGIBLE BUSINESS IS THAT THE ENTERP RISE HAS ENTERED INTO AN AGREEMENT WITH THE CENTRAL GOVERNMENT OR A STATE GOVERNMENT OR A L OCAL AUTHORITY OR ANY OTHER STATUTORY BODY. THE DETAILED PARTICULARS OF THE CON STRUCTION PROJECTS FOR WHICH 80IA RS.57,40,58,505/- IS CLAIMED, IS AS UNDER: - SL NO NAME OF CAMP NAME OF CLIENT NATURE OF WORK AMOUNT 1. BECK BAGAN HOOGHLY RIVER CONSTRUCTION OF LEFT TU RNING 2,58,67,661.33 8 ITA NO.1758/KOL/2014 TANTIA CONSTRUCTION LTD. A.YR.2011-12 8 BRIDGE COMMISSIONERS NORTH BOUND OFF RAMP AT BECK BAGAN CROSSING FROM AJC BOSE ROAD FLYOVER. 2. BHABUA BAUXAR CENTRAL PUBLIC WORK DEPARTMENT DEVELOPMENT OF STATE HIGH WAYS IN THE STATE OF BIHAR UNDER RSVY, PACKAGE NO.- 07, DIST-BHABUA & BAUXAR 8,35,98,128.56 3. CHENNAI METRO METRO RAILWAY PREFILING OF KOYAMBE DU DEPOT 24,312.62 4. DAMODAR SOUTH EASTERN RAILWAY CONSTRUCTION OF BRIDGE OVER RIVER DAMODAR IN BOWICHANDI-KHANA SECTION OF BDR GAUGE CONVERSION PROJECT OF SE RAILWAY IN THE JURISDICTION OF DY. CE/CON./BARDDHAMAN 5,89,15,570.98 5. DELHI AZADPUR PUBLIC WORK DEPARTMENT, DELHI CONSTRUCTION OF RUB AT RAILWAY CROSSING NO. 7 BETWEEN SHALIMAR BAGH AND AZADPUR FRUIT MANDI NEAR RAJASTHAN UDHYOG NAGAR, DELHI 3,95,78,738.79 6. DELHI MUNDKA MUNICIPAL CORPORATION OF DELHI CONSTRUCTION OF ROAD UNDER BRIDGE NEAR EXISTING RAILWAY LEVEL CROSSING NEAR MUNDKA NO. 16 ON DELHI-BHATINDA SECTION. 1,87,52,310.90 7. DUMDUM METRO RAILWAY EXECUTION OF CIVIL ENGINEERING WORKS OF PSC VIA DUCT BETWEEN NOAPARA 1,06,54,820.35 9 ITA NO.1758/KOL/2014 TANTIA CONSTRUCTION LTD. A.YR.2011-12 9 AND DUM DUM CANTONMENT AND VARIOUS CIVIL WORKS AT NOAPARA IN CONNECTION WITH INTEGRATION OF AIRPORT LINE WITH METRO RAILWAY. 8. GANDOK EAST CENTRAL RAILWAY CONSTRUCTION OF FOUNDATION & SUBSTRUCTURE OF SECOND BRIDGE ACROSS RIVER GANDAK, CONSTRUCTION OF MAJOR APPROACH BRIDGES, EARTHMOVING INCLUDING MINOR BRIDGES BETWEEN HAJIPUR- SONEPUR STATION 3,81,75,730.54 9. HOOGHLY CENTRAL PUBLIC WORKS DEPARTMENT CONSTRUCTION OF INLAND WATER TRANSPORT TERMINAL HIGH LEVEL PERMANENT RCC JETTY OVER RIVER HOOGHLY (NW-1) AT NEWLY SELECTED SITE AT G R JETTY-2, GARDEN REACH,KHIDIRPUR, KOLKATA. SH:- MAIN BERTHING PLATFORM APPROACH GANGWAYS OVER PILE FOUNDATION WORKS AND RIVER BANK PROTECTION WORKS. 1,23,46,997.08 10. JUBILEE EASTERN RAILWAY CONSTRUCTION OF STEEL SUPERSTUCTURE (1*135M+1*150M+1*135M) OF THE NEW RAIL BRIDGE, AS A REPLACEMENT OF THE EXISTING 3,45,25,889.65 10 ITA NO.1758/KOL/2014 TANTIA CONSTRUCTION LTD. A.YR.2011-12 10 JUBILEE BRIDGE ACROSS RIVER HOOGHLY IN BETWEEN NAIHATI- BANDEL SECTION OF EASTERN RAILWAY. 11. MATLA EASTERN RAILWAY CONSTRUCTION OF FOUNDATI ON AND SUBSTRUCTURE OF BRIDGE OVER RIVER MATLA WITH RCC BORED CAST IN SITU PLIES OF 1200 MM DIA AND OTHER ANCILLARY WORKS IN CONNECTION WITH EXTENSION OF NEW BG LINE BEYOND CANNING TO BHWGANKHALI 71,93,797.02 12 MIZORAM BRIDGE PUBLIC WORK DEPARTMENT, MIZORAM CONSTRUCTION OF HIGH LEVEL PRE-STRESSED CONCRETE BRIDGE OVER RIVER TLAWNG AT 5/22 KM ON NH-44A IN THE STATE OF MIZORAM. 15,61,089.56 13 PAGLACHANDI EASTERN RAILWAY CONSTRUCTION OF BRID GE ACROSS RIVER PAGLACHANDI (6*18.3M) IN BETWEEN STATIONS DEBOGRAM AND PAGLACHANDI CONSTRUCTION OF BRIDGE NO. 36/A OF SPAN CONFIGURATION (3*24.4M) IN BETWEEN STATIONS SONADANGA AND DEBOGRAM RESTING ON 1.2 DIAMETER PILE FOUNDATION AND HAVING COMPOSITE GIRDERS ALONG WITH OTHER ANCILLARY 60,59,602.98 11 ITA NO.1758/KOL/2014 TANTIA CONSTRUCTION LTD. A.YR.2011-12 11 WORKS IN CONNECTION WITH DOUBLING BETWEEN BETHUADAHARI AND PALLASSEY. 14. KMC PIPE-3 THE KOLKATA MUNICIPAL CORPORATION CONSTRUCTION OF SEWERAGE & DRAINAGE FOR BOROUGH I INCLUDING HOUSE CONNECTION LOT-1: CONTRACT PACKAGE NO. KEIP/ICB/SDD1/2005-06 3,32,18,962.23 15. KMC PIPE-4 THE KOLKATA MUNICIPAL CORPORATION CONSTRUCTION OF SEWERAGE & DRAINAGE FOR BOROUGH VII INCLUDING HOUSE CONNECTION LOT-1: CONTRACT PACKAGE NO. KEIP/ICB/SDF1/2006-07 CONSTRUCTION OF SEWERAGE & DRAINAGE FOR BOROUGH VII INCLUDING HOUSE CONNECTION LOT-2: CONTRACT PACKAGE NO. KEIP/ICB/SDF2/2006-07 3,94,58,136.32 16. KMC PIPE-5 THE KOLKATA MUNICIPAL CORPORATION CONSTRUCTION OF SEWERAGE & DRAINAGE FOR BOROUGH VII INCLUDING HOUSE CONNECTION LOT-1: CONTRACT PACKAGE NO. KEIP/ICB/ SDE/2006-07. 4,94,60,817.47 17. ROHTAS CENTRAL PUBLIC WORKS DEPARTMENT DEVELOPMENT OF STATE HIGH WAYS IN THE STATE OF BIHAR UNDER RASHTRIYA SAM VIKAS YOUJANA-PACKAGE NO. 16A, DISTRICT- ROHTAS. 2,24,33,098.76 18. SHILLONG PUBLIC HEALTH ENGINEERING PACKAGE I: SURVEY ENGINEERING DESIGN AND 6,12,54,065.18 12 ITA NO.1758/KOL/2014 TANTIA CONSTRUCTION LTD. A.YR.2011-12 12 DEPARTMENT CONSTRUCTION OF STAGES RAW WATER PUMPING SYSTEM AUGMENTATION OF THE CAPACITY OF THE EXISTING WATER TREATMENT PLANT, LAYING OF CLEAR WATER GRAVITY MAIN AND FEEDER MAIN PIPELINES, CONSTRUCTION OF CLEAR WATER PUMPING SYSTEM PACKAGE ASSOCIATED WITH AUGMENTATION OF WATER SUPPLY TO SHILLONG URBAN CENTRES OF GREATER SHILLONG WATER SUPPLY PROJECT (PHASE-III) UNDER JNNURM. 19. SILCHAR NORTH FRONTIER RAILWAY CONSTRUCTION OF REINFORCED CEMENT CONCRETE BOXES BEHIND ABUTMENTS, GROUND IMPROVEMENT INCLUDING EARTHWORK IN FILING FOR MAKING RAILWAY FORMATION AT APPROACHES OF BR. NO. 572 ACROSS RIVER BARAK IN BETWEEN BADARPUR SUKRITIPUR STATION ON PERMANENT DIVERSION WITH ALL OTHER ANCILLARY WORKS IN CONNECTION WITH GAUGE CONVERSION WORK OF LUMDING-SILCHAR SECTION. 65,913.00 20. SITAMADHI NATIONAL CONSTRUCTION OF ROADS 73,09, 678.77 13 ITA NO.1758/KOL/2014 TANTIA CONSTRUCTION LTD. A.YR.2011-12 13 HYDROELECTRIC POWER CORPORATION LTD. HARIBELA CHOWK TO SIRSIS PATH (T04) L= 10.75 KM 21. SALT LAKE FLYOVER KOLKATA METROPOLITAN DEVELOPMENT AUTHORITY CONSTRUCTION OF FLYOVER ON SALT LAKE BYPASS NEAR INTERSECTING POINT OF J.K. SAHA/WIPRO. 5,019.90 22. TELAIYA EAST CENTRAL RAILWAY CONSTRUCTION OF NEW BRIDGE NO. 26 (4*76.2M + 2 * 30.5M THROUGH GIRDER & WELL FOUNDATION) AT KM. 16.848, BRIDGE NO. (5*30.5 UNDER SLUNG GIRDER & BORED CASE IN SITU PILES ) AT KM. 17.140 & BRIDGE NO. 28 (5 *18.30M COMPOSITE GIRDER & BORED CAST IN SITU PILES) AT KM. 18.240 OVER TILAYIA RESERVOIR BETWEEN KODERMA & HAZARIBAGH IN CONNECTION WITH NEW BG RAIL LINE BETWEEN KODERMA & RANCHI 2,24,31,922.00 23. TUT BRIDGE PUBLIC WORK DEPARTMENT, MIZORAM CONSTRUCTION OF HIGH LEVEL PRE-STRESSED CONCRETE BRIDGE OVER RIVE TUT AT KM 51/00 ON NH-44A IN THE STATE OF MIZORAM. 11,66,240.96 TOTAL 57,40,58,504.94 14 ITA NO.1758/KOL/2014 TANTIA CONSTRUCTION LTD. A.YR.2011-12 14 THE ASSESSEE SUBMITTED THE COPIES OF ALL THE AGREEM ENTS FOR VERIFICATION BEFORE THE LD AO. 3.2. THE LD AO DENIED THE DEDUCTION U/S 80IA OF THE ACT BY OBSERVING AS UNDER:- 5.3. IT IS TO BE MENTIONED THAT SECTION 80IA APPLIE S TO ANY ENTERPRISE CARRYING ON THE BUSINESS OF: DEVELOPING OR OPERATING AND MAINTAINING OR DEVELOPING, OPERATING AND MAINTAINING INFRASTRUCTURE FACILITY THE AFORESAID SECTION FURTHER PROVIDES THAT: (I) THE ENTERPRISE MUST BE OWNED BY A COMPANY REGIS TERED IN INDIA AND (II) THE ENTERPRISE MUST ENTER INTO AN AGREEMENT WI TH THE CENTRAL GOVERNMENT OR A STATE GOVERNMENT OR A LOCAL AUTHORITY OR ANY OTHE R STATUTORY BODY FOR '(I) DEVELOPING OR (II) OPERATING AND MAINTAINING OR (II I) DEVELOPING, OPERATING AND MAINTAINING A NEW INFRASTRUCTURAL FACILITY.' 5.4. THE COPIES OF WORK ORDERS FILED BY THE ASSESSE E AND THE COPIES OF THE TENDER DOCUMENTS WERE PERUSED. NOWHERE IN THE AFORESAID DO CUMENTS, IT WAS FOUND THAT THERE WAS ANY AGREEMENT BETWEEN THE SAID AUTHORITIE S AND THE ASSESSEE TO (I) DEVELOP, OR (II) OPERATE AND MAINTAIN OR (III) DEV ELOP, OPERATE AND MAINTAIN THE PROJECTS INVOLVED. THE ONLY THING WHICH WAS APPAREN T FROM THE PERUSAL OF THE ABOVEMENTIONED DOCUMENTS WAS THAT THE ASSESSEE MERE LY EXECUTED WORKS CONTRACT FOR THE CONSTRUCTION OF ROAD/HIGHWAYS/BRID GE, ETC. THUS, THE ASSESSEE'S ROLE WAS TO EXECUTE THE WORKS CONTRACT MERELY AS A CONTRACTOR LIKE ANY OTHER CONTRACTORS DO, FOR THE PURPOSE OF EARNING PROFIT. MOREOVER, THE ASSESSEE HAS NOT BEEN ABLE TO PRODUCE ANY DOCUMENTARY EVIDENCE EITHE R IN THE FORM OF ANY SUCH AGREEMENT BETWEEN THE GOVERNMENT AUTHORITY /LOCAL A UTHORITY AND THE ASSESSEE OR ANY CERTIFICATE FROM THE CONTRACTEE SPECIFYING T HAT THE WORKS CONTRACT IN QUESTION INCLUDED AN AGREEMENT TO DEVELOP, OPERATE AND MAINTAIN OR DEVELOP, OPERATE AND MAINTAIN THE INFRASTRUCTURE FACILITY. W HAT, IN FACT, THE ASSESSEE HAD BEEN TRYING TO DO IN THIS CASE IS TO OVERSTRETCH TH E MEANING OF THE WORKS CONTRACT SO AS TO MEAN DEVELOP OR OPERATE. UNDER THE CIRCUMS TANCES, THE FRESH CLAIM OF THE ASSESSEE FOR DEDUCTION UNDER SECTION 80LA IS AL SO HELD TO BE UNTENABLE ON MERIT. 5.5. THUS, TAKING INTO ACCOUNT ALL THE FACTS AND CI RCUMSTANCES IN ENTIRETY, IT IS HELD THAT THE ASSESSEE IS NOT ENTITLED TO DEDUCTION UNDER SECTION 80LA OF THE ACT FOR THE YEAR UNDER CONSIDERATION. THE ASSESSEE IS N OT ELIGIBLE FOR ANY DEDUCTION U/S 80IA, BEING A MERE CONTRACTOR TO HELP, FOR PAYM ENT, BRING AN ELIGIBLE PROJECT INTO EXISTENCE, WITHOUT ANY OWNERSHIP STAKE IN INCO ME FROM OPERATIONS WHEN THE 15 ITA NO.1758/KOL/2014 TANTIA CONSTRUCTION LTD. A.YR.2011-12 15 PROJECT IS COMPLETE. THE ASSESSEE WAS A CONTRACTOR WHO MERELY EXECUTED WORKS CONTRACT AND HENCE IS NOT ENTITLED TO GET DEDUCTION U/S 80IA. 5.6. THE MEANING OF AN ELIGIBLE PROJECT IN PROVISO BELOW SECTION 801A(2) REFERS ' .... WHERE THE ASSESSEE DEVELOPS OR OPERATES AND MA INTAINS, OR DEVELOPS, OPERATES, AND MAINTAINS ANY INFRASTRUCTURE FACILITY REFERRED TO IN ..' THAT IMPLIES THAT AN ELIGIBLE PROJECT IS OWNED BY SOMEONE WHO MAY EMPLOY OTHERS TO HELP SET UP THE PROJECT, AND THAT ONLY THE OWNER OF SUCH PROJECT, O NCE IT IS COMPLETED AND EARNS INCOME, CAN CLAIM SUCH INCOME TO BE DEDUCTIBLE U/S 80IA, AND SINCE SUCH PROJECT OR INCOME DO NOT BELONG TO A CONTRACTOR, NO CONTRAC TOR CAN CLAIM DEDUCTION OF SUCH PROJECT'S INCOME AS HIS OWN. 5.7. THE INTENTION OF THE PARLIAMENT IN FINANCE ACT 2007 REITERATED IN FINANCE (NO. 2) ACT, 2009, THAT SINCE THE INCOME EARNED BY A CONTRACTOR FROM EXECUTING A PROJECT ON BEHALF OF A PRINCIPAL DOES NOT BELONG TO THE PRINCIPAL BUT TO THE CONTRACTOR AND SINCE THE INCOME IS NOT FROM OWNING THAT PROJECT, THE PROFITS OF THE CONTRACTOR EXECUTING THE PROJECT WILL NOT QUALIFY F OR DEDUCTION U/S 80IA. 5.8. CONSIDERING ABOVE, CLAIM OF DEDUCTION U/S 80IA IS REJECTED. 3.3. BEFORE THE LD CITA, THE ASSESSEE REITERATED IT S SUBMISSIONS AND PLACED ON RECORD THE COPIES OF THE APPELLATE ORDERS FOR THE ASST YEARS 2 006-07 , 2007-08 & 2008-09 IN APPEAL NOS. 131-133/CC-XIII/CIT(A)C-II/11-12. THE LD CITA OPINED THAT THIS ISSUE WAS ADJUDICATED IN THE CASE OF THE ASSESSEE FOR THE ASST YEARS 2006-07 , 2007-08 & 2008-09 WHEREIN IT WAS HELD THAT THE ASSESSEE COMPA NY HAD NOT MERELY EXECUTED THE WORKS CONTRACT BUT WAS ENGAGED IN THE BUSINESS OF D EVELOPMENT OF INFRASTRUCTURAL FACILITIES. THEN HE PLACED RELIANCE ON THE ORDER P ASSED FOR THE ASST YEAR 2008-09 ON 10.10.2012 AND ALLOWED THE DEDUCTION CLAIMED U/S 80 IA OF THE ACT TO THE ASSESSEE. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US ON TH E FOLLOWING GROUND:- V) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN ALLOWING THE DEDUCTION U/S 80IA TO THE ASSESSEE WIT HOUT APPRECIATING THE FACT THAT THE ASSESSEE NEVER ENTERED INTO ANY AGREEMENT WITH CENTRAL/STATE GOVT. OR ANY LOCAL AUTHORITY AND THAT IT MERELY SERVED AS A CONT RACTOR. THEREFORE, AS PER THE PROVISO BELOW 80IA(2) AND THE FINANCE ACT (NO. 2) O F 2009, THE ASSESSEE IS NOT ELIGIBLE TO GET DEDUCTION U/S 80IA. 16 ITA NO.1758/KOL/2014 TANTIA CONSTRUCTION LTD. A.YR.2011-12 16 3.4. THE LD DR ARGUED THAT THE RELIANCE WAS PLACED BY THE LD CITA ON HIS ORDER PASSED FOR ASST YEAR 2008-09 DATED 10.10.2012 WHEREIN THE TOTAL PROJECTS UNDERTAKEN BY THE ASSESSEE WAS SEGREGATED INTO TABLE A AND TABLE B BY THE LD AO. THE LD CITA HAD OPINED THAT DEDUCTION U/S 80IA OF THE ACT IS ELIGIB LE FOR PROJECTS LISTED IN TABLE A. BUT HOWEVER, IN THE YEAR UNDER APPEAL (I.E ASST YEAR 20 11-12) NO SUCH BIFURCATION WAS NEITHER MADE BY THE LD AO IN RESPECT OF PROJECTS UN DERTAKEN BY THE ASSESSEE NOR SUBMITTED BY THE ASSESSEE BEFORE THE LD AO OR BY LD CITA. IN FACT THE ASSESSEE ITSELF IN ITS SUBMISSION HAD STATED THAT THE PROJECTS OF EARL IER YEARS WERE ALSO CARRIED FORWARD TO THIS YEAR AND REVENUE GENERATED THEREFROM. HENCE W HETHER THE CARRIED FORWARD PROJECTS FELL IN TABLE A OR IN TABLE B SO AS TO DETERMINE TH E ELIGIBILITY OF DEDUCTION U/S 80IA OF THE ACT IS NOT KNOWN. ACCORDINGLY HE PRAYED FOR SE TTING ASIDE OF THIS ISSUE TO THE FILE OF THE LD AO. IN RESPONSE TO THIS, THE LD AR STATED T HAT THE LD AO HAD LISTED OUT THE VARIOUS PROJECTS UNDERTAKEN BY THE ASSESSEE AND HEAVILY REL IED ON THE ORDER OF THE LD CITA. HE ALSO STATED THAT THIS ISSUE HAS BEEN DECIDED IN FAV OUR OF THE ASSESSEE FOR THE EARLIER YEARS BY THE ORDER OF THIS TRIBUNAL FOR THE ASST YEARS 20 04-05 TO 2008-09. 3.5. WE HAVE HEARD THE RIVAL SUBMISSIONS. IT IS NO T IN DISPUTE THAT THE ASSESSEE IS ENTITLED FOR DEDUCTION U/S 80IA OF THE ACT FOR THE DEVELOPME NT OF INFRASTRUCTURAL ACTIVITIES CARRIED OUT BY IT. WE FIND THAT THIS TRIBUNAL IN A SSESSEES OWN CASE FOR THE ASST YEARS 2004-05 TO 2008-09 VIDE ORDER DATED 23.9.2016 HAD D ECIDED THE SAME IN FAVOUR OF THE ASSESSEE, WHEREIN IT WAS HELD AS UNDER:- 14. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE DR VEHEMENTLY SUPPORTED THE ORDER OF THE ID AO. HE FURTHER STATED THAT THE RELIANCE PLACED THE ID CITA ON THE CERTAIN DECISIONS ARE NOT RELEVANT AS IN THOSE CASES, THE ISSUE WAS ONLY REMANDED BACK TO ID AO FOR VERIFICATION. A CCORDINGLY HE PRAYED FOR SETTING ASIDE OF THE ISSUE THE FILE OF THE ID AO. IN RESPON SE TO THIS, THE ID AR VEHEMENTLY SUPPORTED THE ORDERS OF THE CITA. HE STATED THAT TH E DECISIONS RELIED UPON BY THE ID CITA ARE SQUARELY APPLICABLE TO THE FACTS OF THE IN STANT CASE, IN AS MUCH AS, IN THOSE CASES, THE RELEVANT CLAUSES OF THE AGREEMENTS/CONTR ACTS WERE NOT LOOKED INTO BY THE LOWER AUTHORITIES AND HENCE THE TRIBUNAL HAD IN THE INTEREST JUSTICE HAD REMANDED THE MATTER BACK TO THE FILE OF THE ID AO TO GO THROUGH THE AGREEMENTS/CONTRACTS. WHEREAS, IN THE INSTANT CASE, THE ENTIRE AGREEMENTS/CONTRACTS W ERE VERY MUCH PRODUCED BEFORE THE ID 17 ITA NO.1758/KOL/2014 TANTIA CONSTRUCTION LTD. A.YR.2011-12 17 AO BOTH IN THE ORIGINAL SCRUTINY ASSESSMENT PROCEED INGS U/S 143(3) AND ALSO IN SECTION L53A PROCEEDINGS WHICH ONLY ENABLED THE LD AO TO PR EPARE A TABULATION IN TABLE A AND TABLE B IN HIS ASSESSMENT ORDER. THE ID AR FURTHER ARGUED THAT ABSOLUTELY NO INCRIMINATING MATERIALS WERE FOUND DURING THE COURS E OF SEARCH WHICH WOULD ENABLE THE DEPARTMENT TO CHANGE ITS STAND ABOUT THE STATUS OF THE ASSESSEE, BEING A DEVELOPER OR CONTRACTOR. ACCORDINGLY HE PRAYED THAT THE STATUS OF THE ASSESSEE BEING A DEVELOPER AND CLAIM OF DEDUCTION U/S 80IA CANNOT BE DISTURBED IN SECTION 153A PROCEEDINGS. HE PLACED RELIANCE IN THIS REGARD ON THE CO-ORDINATE B ENCH OF THIS TRIBUNAL IN THE CASE OF ACIT VS KANCHAN OIL INDUSTRIES LTD IN ITA NO. 725/K O//2011 , ITA NOS. 1390,1391 & 1553/KOL/2010 DATED 9.12.2015. 14.1. WE FIND LOT OF FORCE IN THE ARGUMENTS OF THE ID AR THAT ALL THE AGREEMENTS / CONTRACTS WERE FILED BEFORE THE LOWER AUTHORITIES A ND THE ID CITA HAD GONE INTO THE RELEVANT CLAUSES OF THE AGREEMENTS/ CONTRACTS, ANAL YSED THE SAME IN HIS ELABORATE ORDER AND THEN ARRIVED AT A CONCLUSION THAT THE ASSESSEE IS ONLY A DEVELOPER AND NOT MERELY A WORKS CONTRACTOR AND ACCORDINGLY ELIGIBLE FOR DEDUC TION U/S 80IA OF THE ACT. WE ALSO FIND THAT THE CO-ORDINATE BENCH OF CHENNAI TRIBUNAL IN THE CASE OF ACIT VS R.R.CONSTRUCTIONS IN ITA NO. 2061/MDS/2010 DATED 3. 10.2011 HAD AN OCCASION TO CONSIDER SIMILAR ISSUE WHEREIN IT WAS HELD AS UNDER :- 'THE ASSESSEE HAS ALSO PRODUCED ALL SIX AGREEMENTS REGARDING SIX PROJECTS UNDERTAKEN BEFORE THE AO, WHOSE COPIES ARE AVAILABL E BEFORE US ALSO. IT IS A FACT THAT EVEN AFTER TAKING A CONTRACT FROM GOVERNMENT, IF THE ASSESSEE DEVELOPS INFRASTRUCTURE FACILITIES. IT WOULD BE REGARDED AS A 'DEVELOPER: AND 110T AS A 'WORKS CONTRACTOR'. THE 'ASSESSEE HAS CARRIED ON EN TIRE CONSTRUCTION/DEVELOPMENT OF THE INFRASTRUCTURE FACILITIES AND SATISFY ALL TH E CONDITIONS OF SECTION 80IA(4)(I)(A). IT IS UNDENIABLE FACT THAT THE ASSES SEE HAS TAKEN DEVELOPMENT OF INFRASTRUCTURE FACILITY AGREEMENT FROM THE STATE GO VERNMENT/ LOCAL AUTHORITY. A CONTRACTOR WHO DEVELOPS THE INFRASTRUCTURE FACILITY BECOMES A DEVELOPER TO CLAIM DEDUCTION U/S 80IA(4). THE HON'BLE BOMBAY BENCH OF ITAT WHILE DECIDING THE CASE OF PATEL ENGINEERING LTD. V. DCIT IN ITA NO. 1 221 /MUM/2004 HAS GONE THE EXTENT OF HOLDING THAT THE ASSESSEE, A CIVIL CO NTRACTOR. HAVING EXECUTED A PART OF CONTRACTS OF IRRIGATION AND WATER SUPPLY ON 'BUI LD AND TRANSFER' BASIS AND HANDED OVER THEM TO CONTRACTEE GOVERNMENTS, WAS ELI GIBLE FOR DEDUCTION U/S 80LA( 4). THE SIMILAR VIEW WAS TAKEN BY US IN THE C ASE OF EAST COAST CONSTRUCTIONS & INDUSTRIES LTD. V. DCIT. ITA NO. 55 4/MDS/201O DATED 13.09.2011. THEREFORE. WE CONFIRM THE FINDINGS OF T HE CIT(A) AND DO NOT FIND ANY VALID MERIT IN REVENUE'S APPEAL.' 14.2. WE FIND THAT THE ID CITA HAD GRANTED RELIEF F OR CLAIM OF DEDUCTION U/S 80IA OF THE ACT IN RESPECT OF PROFITS MENTIONED IN THE PROJECTS IN TABLE A OF THE ASSESSMENT ORDER. THE LD. CIT(A) OBSERVED THAT PROFIT TO THE TUNE OF RS. 1,79,33,518/ MENTIONED IN THE PROJECTS IN TABLE B OF THE ASSESSMENT ORDER, THE AS SESSEE FAILED TO SUBSTANTIATE ITS CLAIM OF DEDUCTION U/S 80LA OF THE ACT AND ACCORDINGLY CO NFIRMED THE DISALLOWANCE MADE THEREON. WE FIND THAT AGAINST THIS, THE ASSESSEE HA D NOT PREFERRED ANY APPEAL BEFORE US. HENCE WE REFRAIN TO GIVE OUR COMMENTS ON THE SAME. 18 ITA NO.1758/KOL/2014 TANTIA CONSTRUCTION LTD. A.YR.2011-12 18 14.3. WE ALSO FIND THAT THE LD CITA HAD DULY MET ON E OF THE OBSERVATIONS OF THE ID AO THAT THE ASSESSEE SUO MOTO REFRAINED FROM MAKING AN Y CLAIM OF DEDUCTION U/S 80IA OF THE ACT FOR ASST YEARS 2009-10 AND 2010-11 IN THE RETUR N PURSUANT TO THE EXPLANATION BROUGHT OUT IN FINANCE (NO. 2) ACT, 2009 W.R.E.F. 1.4.2000. WE F IND THAT THE LD. CIT(A) IN THIS REGARD HAD STATED THAT EACH ASSESSMENT YEAR IS A SEPARATE UNIT AND THE DECISION HAS TO BE TAKEN ON THE BASIS OF FACTS IN THAT PARTI CULAR YEAR. WE FIND THAT THE REVENUE CANNOT TAKE UNDUE ADVANTAGE OF THE IGNORANCE OF AN ASSESSEE BY COLLECTING UNDUE TAXES WHICH WOULD ADMITTEDLY BE AGAINST ARTICLE 265 OF TH E CONSTITUTION. 14.4. WE FIND THAT, IN ANY CASE, THE REVENUE HAD C ONCEDED TO THE FACT THAT THERE WAS ABSOLUTELY NO INCRIMINATING MATERIALS FOUND DURING THE COURSE OF SEARCH WHICH WOULD ENABLE THE LD AO TO TAKE A DIFFERENT STAND WITH REG ARD TO THE STATUS OF THE ASSESSEE (WHETHER A DEVELOPER OR CONTRACTOR). ADMITTEDLY, TH E ASSESSMENT FRAMED IN THE IMPUGNED APPEAL IS PURSUANT TO SEARCH CONDUCTED U/S 132 OF THE ACT WHEREIN NO INCRIMINATING MATERIALS WERE FOUND, WHICH FACT IS N OT DISPUTED BEFORE US. MOREOVER, IT IS NOT IN DISPUTE THAT THE CLAIM OF DEDUCTION U/S 80IA OF THE ACT HAS BEEN ACCEPTED BY THE. REVENUE IN SECTION 143(3) PROCEEDINGS AND THERE IS NO REASON TO DISTURB THE SAME IN SECTION 153A PROCEEDINGS WITHOUT THERE BEING ANY IN CRIMINATING MATERIALS TO THE CONTRARY. IN THIS REGARD, WE FIND THAT THE ISSUE IS SQUARELY COVERED BY THE CO-ORDINATE BENCH DECISION OF THIS TRIBUNAL IN THE CASE OF KANC HAN OIL INDUSTRIES LTD SUPRA. 14.5. WITH REGARD TO THE ADDITIONAL GROUND RAISED B Y THE ASSESSEE, IN VIEW OF OUR AFORESAID FINDINGS, WE DO NOT DEEM IT FIT TO GO INT O THE ADDITIONAL GROUND RAISED BY THE ASSESSEE AS THE SAME WOULD ONLY BE SUPERFLUOUS IN N ATURE. 15. IN VIEW OF OUR AFORESAID FINDINGS AND RESPECTFU LLY FOLLOWING THE VARIOUS JUDICIAL PRECEDENTS RELIED UPON HEREINABOVE, WE HOLD THAT TH E ASSESSEE HAS TO BE TREATED ONLY AS A DEVELOPER IN THE FACTS AND CIRCUMSTANCES OF THE C ASE AND NOT MERELY AS A WORKS CONTRACTOR THEREBY ELIGIBLE FOR DEDUCTION U/S 80LA OF THE ACT IN RESPECT OF PROFITS DERIVED FROM PROJECTS MENTIONED IN TABLE A OF THE A SSESSMENT ORDER TO THE TUNE OF RS. 4,12,88,9601- WHICH HAS BEEN RIGHTLY ALLOWED BY THE LD. CIT(A) . IN ANY CASE, WE HOLD THAT THE SAID CLAIM CANNOT BE DISTURBED BY THE ID A O IN SECTION 153A PROCEEDINGS IN THE ABSENCE OF ANY INCRIMINATING MATERIALS TO THE CONTR ARY FOUND IN THE COURSE OF SEARCH. HENCE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A) IN THIS REGARD. ACCORDINGLY, THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. HOWEVER, WE FIND THAT THE SEGREGATION OF PROJECTS C ARRIED OUT BY THE ASSESSEE IN TABLE A AND TABLE B AS WAS DONE IN THE EARLIER YEARS , AS R IGHTLY POINTED OUT BY THE LD DR BEFORE US, WERE NEITHER DONE BY THE LD AO NOR BY THE ASSES SEE DURING THE YEAR UNDER APPEAL. MOREOVER, IT IS NOT IN DISPUTE THAT THE ASSESSEE HA D INDEED CARRIED OUT SOME PROJECTS WHICH WERE CARRIED FORWARD FROM EARLIER YEARS. HE NCE IN THE INTEREST OF JUSTICE AND 19 ITA NO.1758/KOL/2014 TANTIA CONSTRUCTION LTD. A.YR.2011-12 19 FAIRPLAY, WE DEEM IT FIT AND APPROPRIATE TO REMAND THIS ISSUE TO THE FILE OF THE LD AO TO FIND OUT THE LIST OF PROJECTS THAT ARE ELIGIBLE FOR DEDUCTION U/S 80IA OF THE ACT IN THE LIGHT OF THE DECISIONS OF THIS TRIBUNAL FOR THE EARLIER Y EARS AND DECIDE THE SAME AFRESH IN ACCORDANCE WITH LAW . ACCORDINGLY THE GROUND NO. 5 RAISED BY THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 4. IN THE RESULT, THE APPEAL OF THE REVENUE IS PART LY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 06.09.2017 SD/- SD/- [A.T. VARKEY] [ M.BALAGANESH ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 06.09.2017 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. DCIT, CIRCLE-4, KOLKATA, P-7, CHOWRINGHEE SQUARE , KOLKATA-700069 2. M/S TANTIA CONSTRUCTION LTD., 25-27, N.S. ROAD, KOLKATA-700001. 3..C.I.T.(A), CENTRAL-II, KOLKATA 4. C.I.T.- KOL KATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVAT E SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHE S