Deputy Commissioner of Income-tax, V. M/s. Parwani Builders P. Ltd., Pune

ITA 1819/PUN/2013

• Counselvise Citation: 181924514 RSA 2013
• Duration Of Justice: 11 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 09-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P S NAIK
• Assessee Lawyers: U S RAWAT
• Keywords: Retrospective amendment
• Section: 143(3)

Judgement Text

INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO. 1819/PN/2013 (ASSESSMENT YEAR : 2010-11) DY.CIT, CIRCLE 4, PUNE .. APPELLANT VS. M/S. PARWANI BUILDERS PVT. LTD., SHOP NO. 211/ 212, 2 ND FLOOR, CITY POINT, 17 BOAT CLUB ROAD, PUNE 411001 .. RESPONDENT PAN NO.AACCP9869P ASSESSEE BY : SHRI U.S. RAWAT DEPARTMENT BY : SHRI P.S. NAIK DATE OF HEARING : 16-09-2014 DATE OF PRONOUNCEMENT : 17-09-2014 ORDER PER R.S. PADVEKAR, JM : THIS APPEAL IS FILED BY THE REVENUE CHALLENGING THE IMPUGNED ORDER OF THE LD.CIT(A)-II, PUNE FOR THE A.Y. 2010-1 1. THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS : 1) THE LEARNED COMMISSIONER OF INCOME-TAX (A PPEALS) ERRED IN ALLOWING DEDUCTION OF RS. 1,10,60,242/- U/S.80IA(4) OF THE INCOME TAX ACT, 1961. 2) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN HOLDING THAT THE ASSESSEE WAS A DEVELOPER WITHIN THE MEANING OF SUB SEC. (4) OF SECTION 80IA OF THE ACT AND NOT A CONTRACTOR, AS HAD BEEN H ELD BY THE ASSESSING OFFICER, WITHOUT APPRECIATING THAT THE ASSESSEE HAD MERELY CARRIED OUT WORKS CONTRACTS AWARDED TO IT BY CONTRACTING AUTHORITIES. 3) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN FAILING TO APPRECIATE THAT AS PER THE AGREEMENTS, THE ASSESSEE WAS UNDER THE DIRECT CONTROL & SUPERVISION OF THE CONTRACTING AUTHORITY AND THAT IT HAD NOT FREEDOM WHATSOEVER TO DEVELOP, DESIGN OR MODIFY THE WORK PLAN AND WAS BOUND TO ACCEPT ANY MODIFICATIONS AS WOULD BE ISSUE D BY THE ENGINEER-IN- CHARGE OF THE CONTRACTING AUTHORITY. 4) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN FAILING TO APPRECIATE THAT IN THE AGREEMENTS ENTERED INTO BY T HE ASSESSEE WITH VARIOUS AUTHORITIES, THE ASSESSEE HAD BEEN CATEGORICALLY TE RMED AS A 'CONTRACTOR WHO HAS ENTERED INTO A CONTRACT AND WOULD EXECUTE THE W ORK IN ACCORDANCE WITH THE CONTRACT' AND NOT AS A 'DEVELOPER'. 2 5) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN FAILING TO APPRECIATE THAT EXPLANATION TO SUB SECTION (13) OF SECTION 80IA HAS MADE IT AMPLY CLEAR THAT THE DEDUCTION ADMISSIBLE U/S.80IA( 4) WOULD NOT BE APPLICABLE TO A BUSINESS WHICH IS IN THE NATURE OF WORKS CONTR ACT AWARDED BY ANY PERSON INCLUDING THE CENTRAL OR STATE GOVERNMEN T AND EXECUTED BY THE UNDERTAKING OR ENTERPRISES REFERRED TO IN SUB SECTION (1) AND IN T HE GIVEN FACTS & CIRCUMSTANCES OF THE CASE THE ASSESSEE WAS CERTAINL Y A CONTRACTOR AND NOT A DEVELOPER. 6) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN NOT APPRECIATING THE CONCEPT OF 'DEVELOPING' AND IN EQU ATING THE SAME WITH 'CONTRACTING' AND IN HOLDING THAT EXPLANATION TO SU B SECTION (13) OF SECTION 80IA WOULD APPLY TO A SUB-CONTRACTOR AND NOT TO A CONTRACTOR. 7) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN NOT APPRECIATING THE FACT THAT THE CONTRACTEE AGENCIES HAD DEDUCTED TAX AT SOURCES U/S.194C FROM THE PAYMENTS MADE TO THE ASSE SSEE WHICH SUBSTANTIATES THE CONTRACTOR-CONTRACTEE RELATIONSHI P BETWEEN THE ASSESSEE AND THE DEVELOPING AGENCIES. 8) THE APPELLANT CRAVES LEAVE TO ADD. ALTER OR AMEN D ANY OR ALL THE GROUNDS OF APPEAL. 2. FACTS WHICH ARE REVEALED FROM THE RECORD ARE AS UNDER. ASSESSEE IS A PRIVATE LIMITED COMPANY REGISTERED UN DER THE COMPANIES ACT, 1956 AND, IS ENGAGED IN THE BUSINESS OF DEVELOPING INFRASTRUCTURAL FACILITIES SUCH AS CONSTRUCTION OF DAMS, TUNNEL WORKS AND ROADS. THE ASSESSEE FILED THE RETURN OF INCOME DECLARING TOTAL INCOME OF RS.23,70,650/- AFTER CLAIMING DEDUCTION O F RS.1,10,60,242/- U/S 80IA(4) AND THE ASSESSMENT U/S 143(3) WAS COMPLETED DETERMINING TOTAL INCOME AT RS. 1,34,30,8 92/-. DURING THE ASSESSMENT PROCEEDINGS THE A.O. NOTICED ,THAT THE A SSESSEE HAD CLAIMED DEDUCTION OF RS. 1,10,60,242/- U/S 80IA(4) AND THE A.O. SOUGHT THE EXPLANATION OF THE ASSESSEE FOR ITS JUST IFICATION OF THE CLAIM MADE IN THE RETURN OF INCOME. THE A.O. HOWEVER, DID NOT ACCEPT THE EXPLANATION OF THE ASSESSEE AND HELD THAT THE ASSES SEE WAS A CONTRACTOR OR SUB-CONTRACTOR EXECUTING THE WORKS CO NTRACT AWARDED BY THE GOVERNMENT AGENCIES WHO WERE THE PERSONS ACTUAL LY DEVELOPING THE INFRASTRUCTURE PROJECTS AND THE ASSESSEE WAS ON LY CARRYING OUT THE WORKS CONTRACT AWARDED BY THE GOVERNMENT AGENCIES A ND, THEREFORE, HELD THAT THE ASSESSEE COULD NOT BE IN ANY WAY CONS IDERED TO BE A 3 DEVELOPER OF INFRASTRUCTURE PROJECT. THE A.O., THER EFORE, RELYING ON THE RETROSPECTIVE AMENDMENT IN SECTION 80IA AFTER THE I NSERTION OF EXPLANATION WHICH WAS HELD ONLY TO CLARIFY THAT THE DEDUCTION CANNOT BE ALLOWED IN RELATION TO THE BUSINESS IN THE NATUR E OF WORKS CONTRACT. THE A.O. ALSO PLACED RELIANCE ON THE MUMBAI ITAT DE CISION IN THE CASE OF B.T. PATIL & SONS, BELGAUM CO. PVT. LTD. VS ACIT AND DISALLOWED THE CLAIM OF DEDUCTION OF RS.1,10,60,242/- U/S.80IA(4) AND ADDED IT TO THE TOTAL INCOME. THE ASSESSEE CARRIED THE ISSUE B EFORE THE LD.CIT(A). THE LD.CIT(A) ALLOWED THE CLAIM OF THE ASSESSEE. NOW THE REVENUE IS IN APPEAL BEFORE US. 3. WE HAVE HEARD THE PARTIES. THE LD. COUNSEL SUBM ITS THAT IDENTICAL ISSUE HAS COME FOR THE CONSIDERATION BEFO RE THE TRIBUNAL IN THE A.YRS. 2008-09 AND 2009-10 IN ASSESSEES OWN CA SE AND THE ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE. THE LD . COUNSEL FILED THE TRIBUNAL ORDER IN ASSESSEES OWN CASE IN ITA NOS.37 4 AND 1846/PN/2012 ORDER DATED 18-06-2014 WHICH IS PLACED ON RECORD. WE FIND THAT THE ISSUE OF DEDUCTION U/S.80IA(4) STA NDS FULLY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THIS T RIBUNAL IN ASSESSEES OWN CASE IN A.YRS. 2008-09 AND 2009-10 (ITA NO.374 AND 1846/PN/2012 ORDER DATED 18-06-2014). THE OPERATIV E PART OF THE DECISION CONFIRMING THE ORDER OF THE LD.CIT(A) IN T HOSE ASSESSMENT YEARS IS AS UNDER : 7. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS RELIED ON BY BOTH THE SIDES. WE FIND THAT THE A.O. IN THE INSTANT CASE HAS DENIED THE BE NEFIT OF DEDUCTION U/S. 80IA(4) ON THE GROUND THAT THE ASSESSEE WAS A CONTRACTOR OR SUB-CONTRACTOR EXECUTING THE WORKS CONTRACT AWARDED BY THE GOVT. AGENCIES/STATUTORY AGENCIES AND THAT THE ASSESSEE I S NOT A DEVELOPER OF THE INFRASTRUCTURE FACILITIES. IT IS ONLY THE G OVT. AGENCIES OR THE STATUTORY AGENCIES WHO WERE ACTUALLY DEVELOPING THE INFRASTRUCTURE PROJECTS. RELYING ON THE RETROSPECTIVE AMENDMENT I N SEC. 80IA OF THE I.T. ACT WHICH CLARIFIES THAT THE DEDUCTION CANNOT BE ALLOWED IN 4 RELATION TO THE BUSINESS IN THE NATURE OF WORKS CON TRACT, THE A.O. DISALLOWED THE CLAIM U/S. 80IA(4). WHILE DOING SO HE ALSO RELIED ON THE DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF M/S. B.T. PATIL & SONS BELGAUM CO. PVT. LTD. (SUPRA). W E FIND THAT THE CIT(A) RELYING ON THE DECISION OF THE HONBLE HIGH COURT OF BOMBAY IN THE CASE OF ABG HEAVY INDUSTRIES LTD. (SUPRA) ALLOW ED THE CLAIM OF DEDUCTION MADE BY THE ASSESSEE. WE FIND THE PUNE B ENCH OF THE TRIBUNAL IN THE CASE OF M/S. PRATIBHA CONSTRUCTION & ENGINEERING (I) P. LTD. VS. ACIT VIDE ITA NO. 118/PN/2008 AND OTHER CO NNECTED APPEALS FOR A.YS. 2003-04 TO 2006-07 ORDER DATED 27-09-2011 WHILE DECIDING AN IDENTICAL ISSUE HAS OBSERVED AS UNDER: 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS, PERUSED THE ORDERS OF THE AUTHORITIES BELOW AS ALSO THE AUT HORITIES CITED AT BAR. THE CRUX OF THE CONTROVERSY REVOLVES AROUND SECTION 80IA(4)(I) WHICH READS AS UNDER: 801A(4)(I): ANY ENTERPRISE CARRYING ON THE BUSINES S OF (I) DEVELOPING OR (II) OPERATING AND MAINTAINING OR (II I) DEVELOPING, OPERATING AND MAINTAINING ANY INFRASTRUCTURE FACILI TY WHICH FULFILS ALL THE FOLLOWING CONDITIONS, NAMELY:- (A) IT IS OWNED BY A COMPANY REGISTERED IN INDIA OR BY A CONSORTIUM OF SUCH COMPANIES OR BY AN AUTHORITY OR A BOARD OR A CORPORATION OR ANY OTHER BODY ESTABLISHED OR CONS TITUTED UNDER ANY CENTRAL OR STATE ACT; (B) IT HAS ENTERED INTO AN AGREEMENT WITH THE CENTRAL G OVERNMENT OR A STATE GOVERNMENT OR A LOCAL AUTHORITY OR ANY O THER STATUTORY BODY FOR (I) DEVELOPING OR (II) OPERATING AND MAINTAINING OR (III) DEVELOPING, OPERATING AND MAIN TAINING NEW INFRASTRUCTURE FACILITY; (C) IT HAS STARTED OR STARTS OPERATING AND MAINTAINING THE INFRASTRUCTURE FACILITY ON OR AFTER THE 1 ST DAY OF APRIL, 1995: PROVIDED THAT WHERE AN INFRASTRUCTURE FACILITY IS T RANSFERRED ON OR AFTER THE 1 ST DAY OF APRIL, 1999 BY AN ENTERPRISE WHICH DEVELOPE D SUCH INFRASTRUCTURE FACILITY (HEREAFTER REFERRED TO IN THIS SECTION AS THE TRANSFEROR ENTERPRISE) TO ANOTHER ENTERPRISE (H EREAFTER IN THIS SECTION REFERRED TO AS THE TRANSFEREE ENTERPRISE) F OR THE PURPOSE OF OPERATING AND MAINTAINING THE INFRASTRUCTURE FACILI TY ON ITS BEHALF IN ACCORDANCE WITH THE AGREEMENT WITH THE CENTRAL GOV ERNMENT, STATE GOVERNMENT, LOCAL AUTHORITY OR STATUTORY BODY , THE PROVISIONS OF THIS SECTION SHALL APPLY TO THE TRANS FEREE ENTERPRISE AS IF IT WERE THE ENTERPRISE TO WHICH THIS CLAUSE A PPLIES AND THE DEDUCTION FROM PROFITS AND GAINS WOULD BE AVAILABLE TO SUCH TRANSFEREE ENTERPRISE FOR THE UNEXPIRED PERIOD DURI NG WHICH THE TRANSFEROR ENTERPRISE WOULD HAVE BEEN ENTITLED TO T HE DEDUCTION, IF THE TRANSFER HAD NOT TAKEN PLACE. THE CLAIM OF THE REVENUE IS THAT THE ASSESSEE HAS A CTED ONLY AS A CONTRACTOR WHO HAS BEEN AWARDED A WORK BY A GOVERNM ENT AGENCY AND, THEREFORE, IT CANNOT BE SEEN AS CARRYING ON TH E BUSINESS OF DEVELOPING AS ENVISAGED UNDER SECTION 80IA(4) OF THE ACT. IN SUPPORT, THE CLAIM OF THE REVENUE IS THAT THE ASSES SEE IS NEITHER OPERATING AND MAINTAINING INFRASTRUCTURE FACILITY A ND NOR HAS THE RIGHT TO UNDERTAKE THE OPERATION AND MAINTENANCE AND, THE REFORE, IT DOES NOT QUALIFY FOR THE DEDUCTION. THE ARGUMENT IS FURT HER SUPPORTED BY SUB-CLAUSE (C) OF SECTION 80IA(4)(I) WHICH ENVISAGE S THAT THE ASSESSEE IS TO START OPERATING AND MAINTAINING THE INFRASTRUCTURE FACILITY ON OR AFTER 1.4.1995. 5 7. TO OUR MIND, THE CONTROVERSY RAISED BY THE REVEN UE HAS BEEN SQUARELY ADDRESSED BY THE JUDGMENT OF THE HONBLE B OMBAY HIGH COURT IN THE CASE OF ABG HEAVY ENGG. LTD. (SUPRA) A ND THE FOLLOWING PORTION OF THE JUDGMENT IS WORTHY OF NOTICE: 22 THE SUBMISSION WHICH WAS URGED ON BEHALF OF THE REVENUE IS THAT UNDER CLAUSE (III) OF SUB-SECTION ( 4) OF SECTION 80IA, ONE OF THE CONDITIONS IMPOSED WAS THAT THE EN TERPRISE MUST START OPERATING AND MAINTAINING THE INFRASTRUC TURE FACILITY ON OR AFTER 1 ST APRIL, 1995. THE SAME REQUIREMENT IS EMBODIED IN SUB-CLAUSE (1)OF SUB-CLAUSE (4) OF THE AMENDED P ROVISIONS. IT WAS URGED THAT SINCE THE ASSESSEE WAS NOT OPERAT ING AND MAINTAINING THE FACILITY, HE DID NOT FULFILL THE CO NDITION. THE SUBMISSION IS FALLACIOUS BOTH IN FACT AND IN LAW. THAT THE ASSESSEE WAS MAINTAINING THE FACILITY IS N OT IN DISPUTE. THE FACILITY WAS COMMENCED AFTER 1 ST APRIL, 1995. THEREFORE, THE REQUIREMENT WAS MET IN FACT. MOREOVER, AS A MAT TER OF LAW, WHAT THE CONDITION ESSENTIALLY MEANS IS THAT THE IN FRASTRUCTURE FACILITY SHOULD HAVE BEEN OPERATIONAL AFTER 1 ST APRIL, 1995. AFTER SECTION 80-IA WAS AMENDED BY THE FINANCE ACT, 2001, THE SECTION APPLIES TO AN ENTERPRISE CARRYING ON THE BU SINESS OF (1) DEVELOPING; OR (II) OPERATING AND MAINTAINING; OR ( III) DEVELOPING, OPERATING AND MAINTAINING ANY INFRASTRU CTURE FACILITY WHICH FULFILLS CERTAIN CONDITIONS. THOSE C ONDITIONS ARE (1) OWNERSHIP OF THE ENTERPRISES BY A COMPANY REGISTERE D IN INDIA OR BY A CONSORTIUMS; (II) AN AGREEMENT WITH THE CEN TRAL OR STATE GOVERNMENT, LOCAL AUTHORITY OR STATUTORY BODY ; AND (III) THE START OF OPERATION AND MAINTENANCE OF THE INFRA STRUCTURE FACILITY SHOULD COMMENCE AFTER 1 ST APRIL, 1995. THE REQUIREMENT THAT OPERATION AND MAINTENANCE OF THE INFRASTRUCTUR E FACILITY SHOULD COMMENCE AFTER 1 ST APRIL, 1995 HAS TO BE HARMONIOUSLY CONSTRUED WITH THE MAIN PROVISION UNDER WHICH DEDUC TION IS AVAILABLE TO AN ASSESSEE WHO DEVELOPS OR OPERATES A ND MAINTAINS, OR DEVELOPS, OPERATES AND MAINTAINS AN INFRASTRUCTURE FACILITY. A HARMONIOUS READING OF THE PROVISIONS IN ITS ENTIR ETY WOULD LEAD TO THE CONCLUSION THAT THE DEDUCTION IS AVAILA BLE TO AN ENTERPRISE WHICH (I) DEVELOPS; OR OPERATES AND MAIN TAINS; OR (III) DEVELOPS, MAINTAINS AND OPERATES THAT INFRAST RUCTURE FACILITY. HOWEVER, THE COMMENCEMENT OF THE OPERATIO N AND MAINTENANCE OF THE INFRASTRUCTURE FACILITY SHOULD B E AFTER 1 ST APRIL, 1995. IN THE PRESENT CASE THE ASSESSEE CLEAR LY FULFILLED THIS CONDITION. BEFORE THE AMENDMENT THAT WAS BROUGHT ABOUT BY PARL IAMENT BY FINANCE ACT, 2001 WE HAVE ALREADY NOTED THAT THE CONSISTENT LINE OF CIRCULAR OF THE BOARD POSTULATED THE SAME P OSITION. THE AMENDMENT MADE BY PARLIAMENT TO S. 80IA(4) OF THE A CT, SET THE MATTER BEYOND ANY CONTROVERSY BY STIPULATING TH AT THE THREE CONDITIONS FOR DEVELOPMENT, OPERATION AND MAI NTENANCE WERE NOT INTENDED TO BE CUMULATIVE IN NATURE. (UNDERLINED FOR EMPHASIS BY US) 8. NOTABLY, EVEN IN THE CASE BEFORE THE HIGH COURT, THE ASSESSEE ACTED AS A CONTRACTOR FOR GOVERNMENT AGENC Y AND WAS HELD ELIGIBLE FOR THE PURPOSES OF CLAIM OF DEDUCTIO N UNDER SECTION 80IA(4) OF THE ACT. AS PER THE LEGAL POSITI ON OPINED BY THE HONBLE HIGH COURT, IT IS EVIDENT THAT AN ASSES SEE WHO ONLY DEVELOPS INFRASTRUCTURE FACILITY (EVEN AS A CONTRAC TOR) BUT DOES NOT HAVE AN OCCASION TO OPERATE AND MAINTAIN IS ALS O ELIGIBLE FOR CLAIM OF DEDUCTION UNDER SECTION 80IA(4) OF THE ACT AND THE HONBLE HIGH COURT HAS EXPLAINED THAT QUA SUCH A PE RSON THE CONDITION STATED IN SUB-CLAUSE (C) OF SECTION 80IA( 4)(I) HAS TO 6 BE READ HARMONIOUSLY WITH THE MAIN PROVISION UNDER WHICH DEDUCTION IS AVAILABLE TO AN ASSESSEE, WHO DEVELOPS ; OR OPERATES AND MAINTAINS; OR DEVELOPS, MAINTAINS AND OPERATES AN INFRASTRUCTURE FACILITY. IN OTHER WORDS, AS OPIN ED BY THE HONBLE HIGH COURT, A DEVELOPER WHO ONLY DEVELOPS ( I.E. CONSTRUCTS) AN INFRASTRUCTURE FACILITY AND IS NOT E NVISAGED TO OPERATE AND MAINTAIN SUCH FACILITY, CANNOT BE EXPEC TED TO FULFIL THE CONDITION IN CLAUSE (C) OF SECTION 80IA(4) SINC E IT WOULD BE AN IMPOSSIBILITY. THEREFORE, IN VIEW OF THE CONSTRU CTION PLACED BY THE HONBLE BOMBAY HIGH COURT ON THE REQUIREMENT S OF CLAUSE (C) OF SECTION 80IA(4)(I), REQUIRING IT TO B E HARMONIOUSLY READ WITH THE MAIN CLAUSE OF SECTION 80IA(4)(I), WE FIND THAT THE OBJECTION RAISED BY THE REVENUE IN THE PRESENT CASE IS DEVOID OF MERITS. THE REASONING ENUNCIATED BY THE H ONBLE BOMBAY HIGH COURT AS EXTRACTED ABOVE FULLY ANSWERS THE CONTROVERSY RAISED BY THE REVENUE IN THE PRESENT CA SE AND, THEREFORE, WE FIND THAT THE ASSESSEE HAS TO SUCCEED IN THIS APPEAL IN THE PRESENT CASE. ACCORDINGLY, THE GROUND OF APPEAL RAISED BEFORE US AND WHICH IS COMMON IN ALL THE YEA RS IS ADJUDICATED IN FAVOUR OF THE ASSESSEE. 9. RESULTANTLY, THE CAPTIONED APPEALS OF THE ASSESS EE ARE ALLOWED. 8. RESPECTFULLY FOLLOWING THE DECISION OF THE JURIS DICTIONAL HIGH COURT IN THE CASE OF ABG HEAVY INDUSTRIES LTD. (SUP RA) WHICH HAS BEEN FOLLOWED BY THE CO-ORDINATE BENCH OF TRIBUNAL IN THE CASE OF M/S. PRATIBHA CONSTRUCTION & ENGINEERING (I) P. LTD . (SUPRA) WE FIND NO INFIRMITY IN THE ORDER OF THE CIT(A) ALLOWING TH E CLAIM OF DEDUCTION/S. 80IA(4)(I) MADE BY THE ASSESSEE. 9. SO FAR AS THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF YOJAKA MARINE (P) LTD. VS. ACIT REPORTE D IN 35 TAXMANN.COM 408 (KARNATAKA) RELIED ON BY THE LD. DE PARTMENTAL REPRESENTATIVE IS CONCERNED THE SAME IN OUR OPINION IS NOT APPLICABLE TO THE FACTS OF THE INSTANT CASE IN VIEW OF THE DEC ISION OF THE JURISDICTIONAL HIGH COURT CITED (SUPRA) WHICH IS BI NDING ON US. IN THIS VIEW OF THE MATTER WE UPHOLD THE ORDER OF THE CIT(A ) AND THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 4. AS THE FACTS ARE IDENTICAL IN THIS YEAR ALSO, HE NCE, THERE IS NO REASON TO TAKE A DIFFERENT VIEW. WE THEREFORE FOLL OWING THE ORDER OF THIS TRIBUNAL IN ASSESSEES OWN CASE DISMISS THE GR OUNDS TAKEN BY THE REVENUE. 5. IN THE RESULT, REVENUES APPEAL IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 17-09-2014. SD/- SD/- (G.S.PANNU) (R.S. PADV EKAR) ACCOUNTANT MEMBER JUDICIAL MEM BER PUNE DATED: 17 TH SEPTEMBER 2014 SATISH 7 COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. CIT(A)-II, PUNE 4. CIT-II, PUNE 5. THE D.R, B PUNE BENCH 6. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY ITAT, PUNE BENCHES, PUNE