Income-tax Officer, V. M/s. Shraddha & Prasad Joint Venture, Pune

ITA 1957/PUN/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1486 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 8 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 25-07-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 03-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J P CHANDRAKAR
• Keywords: Rule of consistency; Advance ruling
• Section: 194C; 201(1)

Judgement Text

] ]] ] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE , !', $ % BEFORE SHRI VIKAS AWASTHY, JM AND SHRI PRADIP KUMAR KEDIA, AM ITA NOS.1957 & 1958/PN/2014 ASSESSMENT YEARS : 2010-11 & 2011-12 THE INCOME TAX OFFICER, WARD 3(1), PUNE. . APPELLANT VS. M/S SHRADDHA & PRASAD JOINT VENTURE, CTS NO.1206 A/1, PLOT NO.887A, SHRADDHA HOUSE, SHIROLE ROAD, PUNE 411 004. PAN : ABGFS6231A . RESPONDENT / APPELLANT BY : SHRI J. P. CHANDRAKAR (CIT) / RESPONDENT BY : SHRI KISHOR PHADKE / DATE OF HEARING : 28.07.2016 / DATE OF PRONOUNCEMENT: 29.07.2016 & / ORDER PER PRADIP KUMAR KEDIA, AM : BOTH THE CAPTIONED APPEALS FILED BY THE REVENUE ARE AGAINST THE CONSOLIDATED ORDER OF CIT(A)-II, PUNE DATED 28.08.2 014 RELATING TO ASSESSMENT YEARS 2010-11 AND 2011-12 PASSED UNDER SECTION 143( 3) OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT). 2. SINCE BOTH THE APPEALS RELATE TO THE SAME ASSESS EE AND INVOLVE A COMMON ISSUE, THEY HAVE BEEN CLUBBED AND HEARD TOGE THER AND A CONSOLIDATED ORDER IS BEING PASSED FOR THE SAKE OF CONVENIENCE A ND BREVITY. 2 ITA NOS.1957 & 1958/PN/2014 3. THE ASSESSEE HAS RAISED COMMON GROUNDS OF APPEAL IN BOTH YEARS. THE GROUNDS OF APPEAL IN ITA NO.1957/PN/2014 READ AS UN DER :- 1) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS ) ERRED IN HOLDING THAT IN ABSENCE OF ANY CONTRACT OR SUB CONTRACT WORK BY JOI NT VENTURE TO ITS MEMBER COMPANIES, PROVISIONS OF SECTION 194C WERE NOT APPL ICABLE FOR THE PURPOSE OF TDS WITHOUT APPRECIATING THE FACT THAT THE WORK CON TRACT ORDER ISSUED TO THE ASSESSEE WERE IN ASSESSEE'S NAME AND SO ALSO THE PA YMENTS WERE CREDITED TO THE ASSESSEE'S ACCOUNT AND AS SUCH REALLOCATION OF THESE CONTRACTS AMONG THE MEMBERS OF THE ASSESSEE WOULD AMOUNT TO SUB CON TRACTING. 2) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN NOT APPRECIATING THAT THE ASSESSEE JOINT VENTURE WAS IN FULL CONTROL OF THE CONTRACT, RESPONSIBLE FOR ITS COMPLETION, SUBMITTIN G BILLS, RECEIVING PAYMENTS AND MAKING THOSE PAYMENTS TO ITS MEMBERS TOWARDS SU B CONTRACT ON WHICH TAX WAS DEDUCTIBLE U/S.194C. 3) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN NOT CONSIDERING THAT IF THE SHARE OF PROFIT IS DETERMINED IN THE JO INT VENTURE AGREEMENT, THEN IT CANNOT BE ANYTHING BUT AOP AND WHERE THE CHARGE IS ON THE INCOME OF THE AOP, IN SUCH STATUS, THE ASSESSING OFFICER HAS NO C HOICE BUT TO TAX IT IRRESPECTIVE OF THE FACT AS TO WHETHER SUCH SHARE O F PROFIT HAS BEEN OFFERED TO TAX OR TAXED IN THE HANDS OF MEMBERS OR NOT. RELIAN CE IS PLACED ON DECISION OF HON.SUPREME COURT IN THE CASE OF CH.ACHAIAH (199 6) 218 ITR 239 AND ON THE RULING OF AAR IN THE CASE OF GEOCONSULTANT ST G MBH IN 304 ITR 283. 4) THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEN D ANY OR ALL THE GROUNDS OF APPEAL. 4. THE ASSESSEE IS A JOINT VENTURE OF M/S SHRADDHA ENERGY AND INFRAPROJECTS PVT. LTD. AND PRASAD & COMPANY PVT. L TD. AND THE RETURNS OF INCOME HAVE BEEN FILED IN THE STATUS OF AOP AT RS.N IL FOR THE ASSESSMENT YEARS 2010-11 AND 2011-12 UNDER CONSIDERATION AND THE SAM E HAS BEEN ASSESSED BY THE ASSESSING OFFICER DETERMINING THE INCOME AT RS. 28,32,00,000/- FOR ASSESSMENT YEAR 2010-11 AND RS.37,27,62,082/- FOR T HE ASSESSMENT YEAR 2011-12. AS STATED, THE ASSESSEE-AOP CAME INTO EXI STENCE VIDE AGREEMENT EXECUTED ON 29.01.1999. IT IS THE CASE OF THE ASSE SSEE THAT ASSESSEE-JOINT VENTURE WAS FORMED TO SUBMIT A JOINT BID FOR DESIGN ING, PLANNING, CONSTRUCTION OF DAM AT CHARTHANA TAL. MUKTAINAGAR FOR KURA- VADH ADA GAT PARISAR SINCHAN YOJANA, DIST. JALGAON. RELEVANT TO ASSESSMENT YEAR 2010-11, THE AOP HAS RECEIVED GROSS CONTRACT RECEIPTS OF RS.28,32,00,000 /- ON ACCOUNT OF CONSTRUCTION OF DAM. IT IS THE CASE OF THE ASSESSE E JOINT VENTURE THAT IT DID NOT EXECUTE ANY CONTRACT BUT IS MERELY A CONDUIT FOR OB TAINING WORK, RECEIVING PAYMENTS AGAINST WORK DONE BY THE INDIVIDUAL CONSTI TUENTS AND DISTRIBUTION OF 3 ITA NOS.1957 & 1958/PN/2014 AMOUNTS IN THEIR INDIVIDUAL SHARES AS PER AGREED RA TIO. ONCE, THE WORK IS ALLOTTED TO THE JOINT VENTURE BY THE CONTRACTEE NAM ELY TAPI IRRIGATION DEVELOPMENT CORPORATION LTD. (GOVT. OF MAHARASHTRA UNDERTAKING), ENTIRE WORK IS EXECUTED BY SHRADDHA ENERGY AND INFRAPROJEC TS PVT. LTD. ALONE. NO WORK HAS BEEN EXECUTED BY PRASAD & COMPANY PVT. LTD .. HENCE, PRASAD & COMPANY PVT. LTD. IS NOT ENTITLED FOR ANY PROFIT OR RESPONSIBLE FOR ANY LOSS. THE TRANSACTIONS FOR THE ENTIRE WORK ARE DULY RECOR DED IN THE BOOKS OF SHRADDHA ENERGY AND INFRAPROJECTS PVT. LTD. AND JOI NT VENTURE IS NOT CONCERNED WITH ANY ACTIVITY OF THE EXECUTION OF THE WORK. GROSS RECEIPTS ARE RECEIVED BY THE JOINT VENTURE WHICH ARE DEPOSITED I N THE BANK ACCOUNT OPENED IN THE NAME OF JOINT VENTURE. THEREAFTER, THE ENTI RE RECEIPTS ARE TRANSFERRED TO SHRADDHA ENERGY AND INFRAPROJECTS PVT. LTD.. THE P ROFIT OR LOSS ARE CALCULATED IN THE HANDS OF SHRADDHA ENERGY AND INFRAPROJECTS P VT. LTD. WHO HAS EXECUTED THE ENTIRE PROJECT. AS NOTED, OTHER MEMBER OF THE JOINT VENTURE IS NOT ENTITLED FOR PROFIT OR RESPONSIBLE FOR LOSS. 5. THE PLEA OF THE ASSESSEE BEFORE THE ASSESSING OF FICER WAS THAT THE JOINT VENTURE DOES NOT EXECUTE ANY CONTRACT BUT WAS A CON DUIT FOR OBTAINING WORK, RECEIVING PAYMENTS AGAINST WORK DONE BY THE INDIVID UAL CONSTITUENTS AND DISTRIBUTION OF AMOUNTS IN THEIR INDIVIDUAL SHARES AS PER THE AGREED RATIO. THE ASSESSING OFFICER OPINED THAT WHILE ASSESSEE AOP DI D NOT EXECUTE ANY CONTRACT, THE ENTIRE CONTRACT WAS PASSED OVER TO IT S MEMBERS. THEREFORE, SUCH ARRANGEMENT PARTAKES THE CHARACTER OF SUB-CONTRACT GIVEN BY THE AOP. HE FURTHER STATED THAT THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS SUBMITTED THAT THE CONTRACT WORK HAD BEEN GIVEN TO ITS MEMBER WITHOUT DEDUCTION OF TAX AT SOURCE IN TERMS OF PROVISIONS O F SECTION 194C. DETAILED SUBMISSIONS WERE MADE BY THE ASSESSEE WHICH WERE NO T ACCEPTED BY THE ASSESSING OFFICER FOR THE REASON THAT THE ASSESSEE WAS AN AOP WHICH WAS AWARDED THE CONTRACT OF EXECUTING THE WORK AND THE SAID WORK HAS BEEN CARRIED OUT BY A DIFFERENT ENTITY. THE ASSESSING OFFICER HE LD THAT THE EXECUTION OF CONTRACT WORK WAS PRIMARILY THE RESPONSIBILITY OF A OP WHICH HAD RECEIVED THE CONTRACT. WHEN THE WORK HAD BEEN EXECUTED BY A DIF FERENT ENTITY, IT WAS 4 ITA NOS.1957 & 1958/PN/2014 NOTHING BUT A SUB-CONTRACT AND JUST BECAUSE IT WAS GIVEN TO ONE OF THE MEMBERS OF AOP, IT COULD NOT BE CALLED AS A REVENUE SHARING AGREEMENT. THE ASSESSING OFFICER ACCORDINGLY HELD THAT IN VIEW OF THE PROVIS IONS OF SECTION 40(A)(IA), THE ENTIRE PAYMENT MADE BY THE AOP TO THE SAID TWO SUB- CONTRACTORS WERE TO BE TAXED IN THE HANDS OF THE ASSESSEE FOR FAILURE TO D EDUCT TAX AT SOURCE OUT OF SUCH PAYMENTS. 6. THE CIT(A), FOLLOWING THE ORDER OF HIS PREDECESS OR-IN-OFFICE IN SWAPNALI RDS JOINT VENTURE, WHICH WAS UPHELD BY THE TRIBUNAL, PUNE BENCHES, IN ITA NO.771/PN/3022, VIDE ORDER DATED 26 TH SEPTEMBER 2012, DELETED THE DISALLOWANCE MADE BY THE ASSESSING OFFI CER UNDER SECTION 40(A)(IA) OF THE ACT. AGGRIEVED BY THE ORDER SO PASSED BY THE CIT(A), THE REVENUE IS IN APPEAL BEFORE US. 7. BEFORE US, THE DEPARTMENTAL REPRESENTATIVE, FAIR LY ADMITTED THAT THE FACTS IN THE PRESENT CASE WERE IDENTICAL TO THE FAC TS IN ITO V/S SWAPNALI RDS JOINT VENTURE, ITA NO.771/PN./2011, ORDER DATED 26 TH SEPTEMBER 2012 WHICH HAS BEEN TAKEN COGNIZANCE OF BY THE ASSESSING OFFIC ER IN ASSESSMENT ORDER PASSED IN THE CASE. HOWEVER, THE LD. DEPARTMENTAL REPRESENTATIVE (DR) FOR THE REVENUE STEADFASTLY ARGUED THAT IT WAS THE AOP WHICH WAS RESPONSIBLE FOR THE LOSSES AND DAMAGES ETC. QUA THE CONTRACTEE AND THUS THE INCOME IS REQUIRED TO BE ASSESSED IN CORRECT HANDS WHICH IS AOP AND CA NNOT BE DEVOLVED TO THE CONSTITUENTS MEMBER AS PER THEIR SOME INTERNAL UNDE RSTANDING. HE, THEREFORE, VEHEMENTLY SUBMITTED THAT THE ORDER OF CIT(A) REQUI RES TO BE REVERSED AND ORDER OF THE ASSESSING OFFICER IS REQUIRED TO BE RE STORED. 8. THE LD. AUTHORIZED REPRESENTATIVE (AR) FOR THE A SSESSEE, ON THE OTHER HAND, DREW SUPPORT FOR HIS CLAIM BY THE DECISION OF THE CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF ITO VS. SHRADDHA & MAHA LAXMI JOINT VENTURE AND OTHERS IN ITA NO.942/PN/2013 AND OTHERS, ORDER DATE D 28.11.2014, WHEREIN THE TRIBUNAL IN IDENTICAL FACTS AFTER CONSIDERING S EVERAL DECISIONS ON THE ISSUE HAS DECIDED POINTS IN ISSUE IN FAVOUR OF THE ASSESS EE. 5 ITA NOS.1957 & 1958/PN/2014 8.1 THE LD. AR ALSO RELIED UPON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. SMSL-UANRCL (JV) REPOR TED IN (2015) 60 TAXMANN.COM 206 (BOM) WHEREIN, IN THE IDENTICAL CIR CUMSTANCES, WHERE THE ASSESSEE JOINT VENTURE DID NOT EXECUTE THE CONTRACT WORK AND THE SAID WORK WAS DONE BY ONE OF ITS CONSTITUENT, IT WAS HELD BY THE HONBLE BOMBAY HIGH COURT THAT RECEIPT IS NOT CHARGEABLE TO TAX IN THE HANDS OF THE JOINT VENTURE. 8.2 HE, THEREAFTER, ADVERTED OUR ATTENTION TO THE D ECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF LINDE AG, LINDE ENG INEERING DIVISION AND ANR. VS. DCIT REPORTED IN 361 ITR 1 (DELHI) TO FURT HER SUPPORT OF ITS CASE. 8.3 THE LD. AR NEXT RELIED UPON THE RECENT CBDT CIR CULAR NO.07/2016 DATED 07 TH MARCH, 2016 WHICH HAS CLARIFIED THAT CONSORTIUM AR RANGEMENT OF SIMILAR TYPE SHALL NOT BE TREATED AS AN AOP. HE SU BMITTED THAT IN VIEW OF THE EXPRESS CIRCULAR, THE CLAIM OF THE ASSESSEE THAT TA XABILITY OF INCOME GENERATED FROM THE CONTRACT REQUIRES TO BE TAXED IN THE HANDS OF THE RESPECTIVE MEMBERS. 9. AS AN ALTERNATE CONTENTION, THE LD. AR CONTENDED THAT AS PER SECOND PROVISO TO SECTION 40(A)(IA) OF THE ACT, THE DISALL OWANCE UNDER SECTION 40(A)(IA) CANNOT BE MADE IF THE ASSESSEE IS NOT DEEMED TO BE ASSESSEE IN DEFAULT UNDER THE FIRST PROVISO TO SECTION 201(1) OF THE ACT. HE RELIED UPON THE DECISION OF THE CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CASE O F ITO VS. SHRI CHANDRAKANT J. MANDALE IN ITA NO.1708/PN/2012, ORDER DATED 10.0 4.2015 AND THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. ANSAL LAND MARK TOWNSHIP (P.) LTD. REPORTED IN (2015) 377 ITR 635 ( DELHI) FOR THE PROPOSITION THAT SINCE THE PAYEE HAS FILED RETURN OF INCOME AND OFFERED SUM RECEIVED FROM DEDUCTOR TO TAX, THE DISALLOWANCE MADE UNDER SECTIO N 40(A)(IA) DESERVES TO BE DELETED. HE SUBMITTED THAT SECOND PROVISO TO SECTI ON 40(A)(IA) INSERTED BY THE FINANCE ACT, 2012 W.E.F. 01.04.2013 REQUIRES TO BE APPLIED RETROSPECTIVELY. 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RECORDS. IN THE FACTS OF THE PRESENT CASE, THE ISSUE ARISING BEFORE US IS IN RELATION TO APPLICATION 6 ITA NOS.1957 & 1958/PN/2014 OF PROVISIONS OF SECTION 40(A)(IA) OF THE ACT. THE ASSESSEE AOP HAD RECEIVED CONTRACT FROM THIRD PARTY WHICH, IN TURN, WAS EXECU TED BY ONE OF THE MEMBERS AOP. THE PLEA OF THE ASSESSEE AOP WAS THAT IT WAS CONSTITUTED FOR OBTAINING WORK AND RECEIVING PAYMENTS AGAINST THE SAID WORK D ONE BY THE CONSTITUENTS OF THE AOP AND THE SAID PAYMENT WAS TO BE DISTRIBUTED IN THE AGREED RATIO BETWEEN THE TWO MEMBERS OF THE AOP FOR CARRYING OUT THE WORK. THE TRUE RATIO IN THE INSTANT CASE IS 1:0. SUCH ASSIGNMENTS OF TH E WORK TO THE MEMBERS AS PER THE MEMORANDUM OF UNDERSTANDING AGREED UPON IS NOT EQUIVALENT TO SUB- CONTRACT PER SE AND THUS THE ASSESSEE AOP WAS NOT LIABLE TO DEDUCT TAX AT SOURCE OUT OF THE AMOUNT DISTRIBUTED AMONGST THE ME MBERS OF THE AOP IN THE AGREED RATIO OF RESPECTIVE SHARE. THE ASSESSING OF FICER, WHILE DECIDING THE CHARGEABILITY OF INCOME IN THE HANDS OF THE ASSESSE E DID OBSERVE THAT IN THE CASE OF M/S SWAPNALI RDS JOINT VENTURE (SUPRA), SIM ILAR ADDITION UNDER SECTION 40(A)(IA) HAS BEEN MADE FOR THE ASSESSMENT YEAR 2008-09 WHICH HAS BEEN DELETED BY THE PUNE BENCH OF THE TRIBUNAL. HO WEVER, THE DEPARTMENT HAS NOT ACCEPTED THE ORDER OF THE TRIBUNAL AND TO KEEP THE ISSUE ALIVE, THE AMOUNT PAID BY THE AOP TO ITS MEMBER WITHOUT DEDUCTION OF TAX IS DISALLOWED AND ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE IN T ERMS OF SECTION 40(A)(IA) OF THE ACT. WE NOTICE THAT IN THE IDENTICAL FACTS AND CIRCUMSTANCES, THE CO- ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF ITO V S. SHRADDHA & MAHALAXMI JOINT VENTURE AND OTHERS (SUPRA) AFTER MAKING REFER ENCE TO SEVERAL JUDICIAL PRECEDENTS INCLUDING M/S SWAPNALI RDS JOINT VENTURE (SUPRA) HAS AFFIRMED THE VIEW TAKEN BY THE CIT(A) AND DECIDED AGAINST THE RE VENUE. 10.1 THE RELEVANT FINDINGS OF THE ORDER OF THE CO-O RDINATE BENCH OF THE TRIBUNAL IN THE CASE OF ITO VS. SHRADDHA & MAHALAXM I JOINT VENTURE AND OTHERS (SUPRA) IS REPRODUCED HEREUNDER FOR READY RE FERENCE :- 10. WE HAVE HEARD THE RIVAL AND PERUSED THE RECORD S. IN THE FACTS OF THE PRESENT CASE, THE ISSUE ARISING BEFORE US IS IN RELATION TO THE APPLICATION OF PROVISIONS OF SECTION 40A(IA) OF THE ACT. THE ASSESSEE AOP HAD RE CEIVED CONTRACTS FROM THIRD PARTY WHICH, IN TURN, WAS EXECUTED BY THE TWO MEMBERS OF AOP. THE PLEA OF THE ASSESSEE AOP WAS THAT IT WAS CONSTITUTED FOR OBTAINING WORK AND RECEIVING PAYMENTS AGAINST THE SAID WORK DONE BY THE CONSTITUENTS OF THE AOP A ND THE SAID PAYMENT WAS TO BE DISTRIBUTED IN THE AGREED RATIO BETWEEN THE TWO MEM BERS OF THE AOP FOR CARRYING OUT THE WORK. SUCH ASSIGNMENTS OF THE WORK TO THE MEMBE RS AS PER THE MEMORANDUM OF 7 ITA NOS.1957 & 1958/PN/2014 UNDERSTANDING AGREED UPON IS NOT EQUIVALENT TO SUB- CONTRACT AND AS SUCH THE ASSESSEE AOP WAS NOT LIABLE TO DEDUCT TAX AT SOURCE OUT OF THE AMOUNT DISTRIBUTED AMONGST THE MEMBERS OF THE AOP IN THE AGREED RATIO OF SHARE. THE ASSESSING OFFICER, WHILE DECIDING THE ISSUE IN THE HANDS OF T HE ASSESSEE, HAD GIVEN AN OFFICE NOTE TO THE EFFECT THAT IN THE CASE OF M/S. SWAPNAL I RDS JOINT VENTURE (SUPRA), SIMILAR ADDITION UNDER SECTION 40(A)(IA) OF THE ACT HAS BEEN MADE FOR THE ASSESSMENT YEAR 2008-09 WHICH HAS BEEN DELETED BY THE CIT(A)-I I, PUNE. DEPARTMENT HAS FILED APPEAL AGAINST THIS ORDER TO ITAT AND THE MATTER IS PENDING BEFORE ITAT. TO KEEP THE ISSUE ALIVE IN OTHER CASES ALSO, THE SIMILAR AD DITION IS BEING MADE IN THIS CASE ALSO. THE FACTS AND CIRCUMSTANCES ARISING IN THE PR ESENT APPEAL ARE IDENTICAL TO THE FACTS AND CIRCUMSTANCES OF THE CASE BEFORE THE TRIB UNAL IN M/S. SWAPNALI RDS JOINT VENTURE (SUPRA), WHEREIN IT WAS HELD AS UNDER:- 2. AT THE OUTSET OF HEARING, LD. AUTHORISED REPRES ENTATIVE POINTED OUT THAT THIS CASE IS COVERED IN FAVOUR OF THE ASSESSEE BY ITAT, PUNE BENCH, IN ITA.NO.65/PN/2011 FOR A.Y. 2006-07 IN THE CASE OF I TO VS. GAMMON PROGRESSIVE-JV, WHEREIN VIDE PARAS 5 TO 9 THE TRIBU NAL DECIDING SIMILAR ISSUE IN FAVOUR OF THE ASSESSEE BY DISMISSING THE A PPEAL OF THE REVENUE, HAS HELD AS UNDER: 5. AFTER GOING THROUGH THE ABOVE SUBMISSIONS AND M ATERIAL ON RECORD, WE FIND THAT THE FIRST ISSUE IS REGARDING S TATUS OF THE ASSESSEE. THE ASSESSING OFFICER HAS MENTIONED THE STATUS AS F IRM. HOWEVER, IN THE EXPLANATION GIVEN, THE ASSESSEE HAS MADE IT CLE AR THAT THE STATUS IN WHICH THE RETURNS WAS FILED WAS THAT OF AN AOP. IT WAS EXPLAINED THAT IN THE RETURNS OF INCOME SINCE BEGINNING TILL THE A .Y. 2006-07, THE STATUS WAS MENTIONED AS AOP ONLY, I.E., WHEN THE RE TURNS WERE FILED MANUALLY. HOWEVER, FROM A.Y. 2007-08, WHEN ELECTRON IC FILING HAD TO BE DONE, DUE TO COMPUTER ERROR THE STATUS APPEARED AS FIRM ON THE ITR ACKNOWLEDGEMENT, WHEREAS IN THE COMPUTATION OF TOTAL INCOME, IT WAS CORRECTLY MENTIONED AS AOP. IT WAS EXPLAINED TH AT I.T.RETURN FORM NO.5 WAS ACTUALLY APPLICABLE FOR FIRMS, AOPS A ND BOIS. THEREFORE, THIS ERROR MIGHT HAVE OCCURRED. THE ASSE SSEE HAS ALSO FILED COMPUTATION OF TOTAL INCOME ALONGWITH ACKNOWLEDGEME NTS FROM A.Y. 2002-03 TO A.Y. 2006-07 IN WHICH THE STATUS WAS REG ULARLY SHOWN AS AOP AND EVEN IN THE APPLICATION FORM FOR ALLOTMENT OF PAN IT WAS SHOWN AS AOP. THE CIT(A) NOTICED FROM THE RECORD TH AT STATUS WAS SHOWN AS AOP. HOWEVER, IT WAS NOT VERY MUCH RELEVAN T FOR THE PURPOSE OF APPLICABILITY OF PROVISIONS OF SECTION 1 94C SINCE TDS PROVISIONS ARE APPLICABLE TO ALL ENTITIES EXCEPT IN DIVIDUALS AND HUF HAVING GROSS RECEIPTS OR TURNOVER FROM BUSINESS OR PROFESSION BELOW THE PRESCRIBED LIMIT. 6. IT WAS FURTHER EXPLAINED ON BEHALF OF THE ASSESS EE THAT JOINT VENTURE AS SUCH DOES NOT EXECUTE ANY CONTRACT WORK BUT WERE MERELY FORMED FOR OBTAINING CONTRACT WORK AND FOR RECEIVIN G THE PAYMENT, WHICH WAS IMMEDIATELY DISTRIBUTED IN THE RATIO OF T HE SHARE OF THE WORK DONE. THE ACTUAL SHARE IN THE JOINT VENTURE OF THE TOTAL WORK ALLOCATED WAS 60% FOR M/S.GAMMON INDIA LTD. AND 40% FOR M/S.PROGRESSIVE CONTRACTION LTD. IN THIS BACKGROUND IT WAS EXPLAINED THAT THE CONTRACT ACCOUNT AND THE BALANCE SHEET OF THE JOINT VENTURE REVEALS NOTHING BUT APPORTIONMENT OF CONTRACT RECEI PTS, ASSETS AND LIABILITIES BETWEEN THE MEMBERS. THERE WAS NO EXPEN DITURE BOOKED IN THE CONTRACT ACCOUNT NOR ANY PROFIT AND LOSS ACCOUN T PREPARED FOR THE PURPOSE SINCE THERE DID NOT ARISE ANY PROFIT OR LOSS TO THE ASSESSEE PER SE. THE JOINT VENTURE TRANSFERRED NOT ONLY THE GROSS REVENUE BUT ALSO THE CORRESPONDING TDS TO ITS MEMBERS IN THE RA TIO OF THEIR WORK DONE BY INDIVIDUAL MEMBERS FOR WHICH THE APPOINTMEN T CERTIFICATE 8 ITA NOS.1957 & 1958/PN/2014 WAS DULY ISSUED EVERY YEAR BY THE ASSESSING OFFICER . IN THIS BACKGROUND IT WAS SUBMITTED THAT THERE WAS NO RELAT IONSHIP OF CONTRACTOR AND SUB-CONTRACTOR BETWEEN THE JOINT VEN TURE AND ITS TWO MEMBERS. THEREFORE, THERE WAS NO QUESTION OF APPLIC ABILITY OF TDS PROVISIONS U/S.194C OF THE ACT. THE ASSESSEE ALSO E XPLAINED WHY A RETURNS WERE FILED BY THE JOINT VENTURE AS AOP. IT WAS EXPLAINED THAT IT WAS DONE TO PASS ON THE CREDIT OF TDS TO THE MEM BERS ON THE BASIS OF TAX APPORTIONMENT CERTIFICATES WHO HAVE ACCOUNTE D FOR THE CORRESPONDING CONTRACT REVENUE IN THEIR RESPECTIVE RETURNS. IT WAS ALSO SUBMITTED THAT NIL INCOME ARISING IN THE HAN DS OF THE AOP IS CONFIRMED BY THE ACTION OF THE ASSESSING OFFICER IN NOT ASSESSING ANY PROFIT/INCOME ARISING FROM THE CONTRACT APART FROM THIS DISALLOWANCE U/S. 40(A)(IA) OF THE ACT. THE ASSESSEE VIDE ITS SU BMISSIONS DATED 26.03.2010 AND 06.09.2010, EXPLAINED THE DIFFERENCE BETWEEN REVENUE SHARING ARRANGEMENT ENTERED INTO BY THE JOINT VENTU RE VIS-A-VIS SUBCONTRACT. IT WAS EXPLAINED ON BEHALF OF THE ASSE SSEE THAT IN THE CASE OF SUB-CONTRACT, THERE WAS A RELATIONSHIP OF P RINCIPAL AND AGENT WHEREAS IN THE SITUATION OF REVENUE SHARING, IT WAS ON A PRINCIPAL TO PRINCIPAL BASIS. FURTHER, IN SUB-CONTRACTING, THE C ONTRACTOR RETAINS HIS SHARE OF PROFIT ALONGWITH THE TDS AND ONLY THE BALANCE IS PASSED ON TO SUBCONTRACTOR. BUT IN JOINT VENTURE, ASSESSEE S DID NOT RETAIN ANY SHARE IN THE REVENUE WITH IT AND HAS PASSED THE ENT IRE GROSS REVENUE ALONGWITH TDS APPORTIONED FOR THEM. IT WAS SUBMITTE D THAT THE DEPARTMENT HAS ALSO ISSUED TAX APPORTIONMENT CERTIF ICATES EVERY YEAR DURING THE PAST EIGHT YEARS TO ENABLE THE TWO MEMBE RS TO CLAIM THE TDS CREDITS IN THEIR RESPECTIVE CASES. EVEN IN THE CURRENT ASSESSMENT YEAR, IT WAS NOTICED THAT TAX APPORTIONMENT CERTIFI CATE WAS ISSUED BY THE DEPARTMENT VIDE LETTER NO.PN/WD.3(4)/TC/07-08 D ATED 26.11.2008 OF THE ASSESSING OFFICER IN WHICH THE AS SESSING OFFICER HAS ALLOWED APPORTIONMENT OF ENTIRE TDS OF RS.9,26, 588/- DURING THE YEAR TO M/S.GAMMON INDIA LTD., SINCE ENTIRE WORK DU RING THE YEAR WAS CARRIED OUT BY IT. SIMILARLY, THERE HAS BEEN AP PORTIONMENT TO EITHER OF THE TWO COMPANIES OR TO BOTH THE COMPANIE S IN THE EARLIER YEARS ALSO BY THE ASSESSING OFFICER FOR ENABLING TH EM TO CLAIM TDS IN RESPECTIVE CASES. THE ASSESSEE, VIDE ITS SUBMISSION DATED 22.04.2010, FURNISHED THE DETAILS WHICH REVEALED THAT GROSS REV ENUE FROM THIS CONTRACT RECEIPTS BY JOINT VENTURE WAS ACCOUNTED FO R IN CASE OF EITHER OR BOTH OF THE TWO COMPANIES WHO WERE MEMBERS OF TH E JOINT VENTURE IN ALL ASSESSMENT YEARS 2001-02 TO 2008-09. IT WAS FURTHER EXPLAINED BY THE ASSESSEE THAT REVENUE SHARING WAS NOT EXACTL Y 60:40 IN EACH YEAR SINCE IT DEPENDS ON THE RELATIVE WORK DONE IN THE PARTICULAR YEAR. HAVING EXPLAINED THE DIFFERENCE BETWEEN CASES OF CO NTRACT/SUB- CONTRACT, IN THE BACKGROUND OF CLAUSES OF THE AGREE MENT, THE ASSESSEE RELIED ON THE DECISION OF HON'BLE HIMACHAL PRADESH HIGH COURT IN THE CASE OF CIT VS. AMBUJA DARLA KASHLOG MANGU TRAN SPORT COOPERATIVE SOCIETY (2009) 227 CTR 299 (HP). 7. IN THE BACKGROUND OF THE TAX APPORTIONMENT CERTI FICATES ISSUED BY THE ASSESSING OFFICER, IT WAS STATED ON BEHALF O F THE ASSESSEE THAT THE ASSESSING OFFICER HAS MARKED COPY OF THIS CERTI FICATE TO THE MEMBERS OF THE JOINT VENTURE AS WELL AS TO THEIR RE SPECTIVE ASSESSING OFFICERS, WHICH SHOWS THAT THE ASSESSING OFFICER HA S APPLIED HIS MIND AND CONSCIOUSLY ACCEPTED THE FACT THAT THE JOINT VE NTURE AOP WAS FOR THE DISTRIBUTION OF RECEIPTS AMONGST ITS CONSTITUEN TS IN PROPORTION OF THEIR WORK SHARING. THEREFORE, THERE WAS NO APPLICA BILITY OF PROVISIONS OF TDS U/S.40(A)(IA) OF THE ACT. 9 ITA NOS.1957 & 1958/PN/2014 8. FURTHER, THE ASSESSEE, VIDE ITS SUBMISSION DATED 06.09.2010, MADE COMPARISON OF THE TAX RATES APPLICABLE TO DOME STIC COMPANIES, BEING JOINT VENTURE PARTNER IN THEIR INDIVIDUAL CAP ACITY AND THE TAX RATES APPLICABLE TO THE AOP. HOWEVER, IN SUBMISSION DATED 21.10.2010, IT WAS EXPLAINED THAT TAX RATES IN THE CASE OF DOMESTIC COMPANY AND THE AOP WOULD BE THE SAME IN THIS CASE. THIS WAS DUE TO APPLICABILITY OF SECTION 167B OF THE ACT. THE AS SESSEE ALSO FILED DETAILS OF THE RETURNS OF INCOME OF THE TWO CORPORA TE ENTITIES BEING JOINT VENTURE MEMBERS, ALONGWITH ACKNOWLEDGEMENTS O F THEIR I.T. RETURNS, WHICH REVEALED THAT BOTH OF THEM HAD HUGE POSITIVE RETURNED INCOMES EVERY YEAR. FOR THIS PAYMENT THE STAND OF T HE ASSESSEE WAS THAT THE METHOD OF APPORTIONMENT OF REVENUE TO THE MEMBERS WAS NOT TO TAKE ANY UNDUE BENEFIT OF LOSSES INCURRED BY THE M. THEREFORE, IT WAS STATED THAT THERE WAS NO LOSS TO THE REVENUE AS A RESULT OF THIS METHOD ADOPTED BY THE ASSESSEE OF SHARING THE GROSS REVENUE BY ITS MEMBERS, WHICH WAS TAXED IN THEIR HANDS. HOWEVER, T HIS EXPLANATION OF THE ASSESSEE DID NOT FIND FAVOUR FROM THE ASSESS ING OFFICER. THE ASSESSEE HAS ALSO RAISED THE ISSUE OF CONSISTENCY S TATING THAT THE SAME METHOD WAS BEING ACCEPTED BY THE DEPARTMENT IN THE PAST 8 TO 10 YEARS INCLUDING A.Y. 2007-08 IN WHICH TAX APPORTION MENT CERTIFICATE WAS ALSO BEING ISSUED. IT WAS CONTENDED THAT THIS A SPECT HAS NOT BEEN CONSIDERED IN THE ASSESSMENT ORDER U/S.143(3) FOR A .Y. 2007-08. ON THE PRINCIPLE OF CONSISTENCY, THE LD. AUTHORISED RE PRESENTATIVE RELIED ON THE DECISION OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF GOPAL PUROHIT (2010) 228 CTR 582 (BOM.) AND ASSESSEE ALSO RELIED ON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE O F RADHASOAMI SATSANG VS. CIT (1992) 193 ITR 321 (SC) WHEREIN IT WAS OBSERVED THAT STRICTLY SPEAKING THE PRINCIPLE OF RES JUDICAT A DOES NOT APPLY TO INCOME TAX PROCEEDINGS SINCE EACH ASSESSMENT YEAR W AS A SEPARATE UNIT IN ITSELF AND WHAT IS DECIDED IN ONE YEAR MAY NOT APPLY IN THE FOLLOWING YEAR. IT WAS FURTHER CONTENDED THAT WHERE A FUNDAMENTAL ASPECT PERMEATING THROUGH THE DIFFERENT ASSESSMENT YEARS HAS BEEN FOUND AS A FACT ONE WAY OR THE OTHER AND PARTIES HA VE ALLOWED THAT POSITION TO BE SUSTAINED BY NOT CHALLENGING THE ORD ER, IT WOULD NOT BE AT ALL APPROPRIATE TO ALLOW THE POSITION TO BE CHAN GED IN A SUBSEQUENT YEAR. IT WAS ALSO CONTENDED THAT HON'BLE KERALA HIG H COURT IN THE CASE OF MANJUNATH MOTOR SERVICE AND CANARA PUBLIC C ONVEYANCES, 197 ITR 321 (KAR.) OBSERVED THAT METHOD ADOPTED BY THE ASSESSING OFFICER WOULD RESULT IN DOUBLE TAXATION OF THE SAME INCOME SINCE GROSS RECEIPTS DISTRIBUTED AMONGST THE TWO JOINT VE NTURE PARTNERS WAS INCLUDED AS RECEIPTS IN THEIR RESPECTIVE CASES AND THE JOINT VENTURE PARTNERS HAD ALSO UTILISED THE TDS CREDITS ON THE B ASIS OF APPORTIONMENT CERTIFICATE ISSUED BY THE ASSESSING O FFICER. IN VIEW OF THE ABOVE DISCUSSION, CIT(A) WAS JUSTIFIED IN HOLDI NG THAT IN ABSENCE OF ANY CONTRACT OR SUB-CONTRACT WORK BY JOINT VENTU RE TO ITS MEMBER COMPANIES, PROVISIONS OF SECTION 194C WERE NOT APPL ICABLE FOR THE PURPOSE OF TDS. THE TWO CORPORATE ENTITIES FORMING JOINT VENTURE WERE ALREADY BEING ASSESSED SINCE A.Y. 2000-01 ONWA RDS ON THEIR RESPECTIVE SHARES AND TDS APPORTIONMENT CERTIFICATE S WERE ALSO ISSUED BY THE ASSESSING OFFICER EVERY YEAR FOR THES E EIGHT YEARS INCLUDING THE CURRENT ASSESSMENT YEAR TO ENABLE THE M TO CLAIM THE SAME IN THEIR OWN CASES. MOREOVER, THERE WAS NO PRO FIT AND LOSS ACCOUNT IN THE ASSESSEES CASE AND THERE WAS NO CLA IM OF ANY EXPENDITURE. THEREFORE, THERE WAS NO QUESTION OF AN Y DISALLOWANCE UNDER THE PROVISIONS OF SECTION 40(A)(IA) OF THE AC T. MOREOVER, DISALLOWANCE U/S. 40(A)(IA) MADE BY THE ASSESSING O FFICER CANNOT BE 10 ITA NOS.1957 & 1958/PN/2014 SUSTAINED. IN EFFECT, THE METHOD ADOPTED BY THE ASS ESSING OFFICER WILL ALSO RESULT IN DOUBLE TAXATION OF THE SAME CONTRACT REVENUE WHICH IS IN VIOLATION OF THE KARNATAKA HIGH COURT DECISION R EPORTED IN 197 ITR 321 (KAR.). THIS VIEW IS FORTIFIED BY THE DECIS ION OF THE ITAT PUNE BENCH IN ITO VS. RAJDEEP & PMCC INFRASTRUCTURE, WHE REIN THE TRIBUNAL HAS OBSERVED AS UNDER: 6. WE HAVE NOTED THAT IT IS AN ADMITTED POSITION T HAT NO WORK IS CARRIED OUT BY THE AOP, IT HAS ACTED AS A CONDUIT B ETWEEN THE MSRDC AND THE TWO PERSONS CONSTITUTING THIS AOP SO FAR AS THEIR SEPARATE, AND NEATLY IDENTIFIED, WORK AREAS ARE CON CERNED. A MERE EXISTENCE OF AN AOP CANNOT LEAD TO TAXABILITY IN TH E HANDS OF THE AOP UNLESS THE AOP RECEIVES MONIES IN ITS OWN RIGHT. WE HAVE NOTED THAT HON'BLE AUTHORITY OF ADVANCE RULINGS WAS IN SEISIN OF A MATERIALLY IDENTICAL SITUATION IN THE CASE OF VAN OORD ACZ BV IN RE(248 ITR 399) IN WHICH TWO CONTRACTORS JOINED HANDS FOR CARR YING OUT NEATLY IDENTIFIED SEPARATE WORK WHICH WAS A PART OF COMPOS ITE CONTRACT AWARDED TO THE AOP, BUT THE TAXABILITY OF INCOME FR OM SUCH CONTRACT WAS HELD TO BE TAXABLE IN THE HANDS OF THE RESPECTI VE CONTRACTORS. WHILE HOLDING SO HON'BLE AUTHORITY FOR ADVANCE RULI NG OBSERVED AS FOLLOWS: '7. SO FAR AS QUESTION NOS. 1 AND 2 ARE CONCERNED T HE PARTIES HAVE SPECIFICALLY RULED OUT CONSTITUTION OF ANY PAR TNERSHIP BETWEEN THEM. THERE IS NO SHARING OF PROFITS OR LOSS. THEY HAVE SPECIFICALLY PROVIDED IN THE AGREEMENT THAT EACH PARTY WILL BEAR ITS OWN LOSS AND RETAIN ITS PROFITS AS AND WHEN SUCH PROFITS OR LOSS ARISE. HAVING REGARD TO THE AGREEMENT WE ARE OF THE VIEW THAT THE APPLICANT CANNOT BE TREATED AS A PARTNERSHIP WHICH CAN ONLY BE CREAT ED BY AN AGREEMENT. NOR CAN IT BE TREATED AS AN AOP. IN ORDE R TO CONSTITUTE AN AOP THERE WILL HAVE TO BE COMMON PURPOSE OR COMMON ACTION AND THE OBJECT OF THE ASSOCIATION MUST BE TO PRODUCE IN COME JOINTLY. IT IS NOT ENOUGH THAT THE PERSONS RECEIVE THE INCOME JOIN TLY. IN THE INSTANT CASE, EACH OF THE TWO PARTIES HAS AG REED TO BEAR ITS OWN LOSS OR RETAIN ITS OWN PROFIT SEPARATELY. BOTH HAVE AGREED TO EXECUTE THE JOB TOGETHER FOR BETTER CO-OPERATION IN THEIR R ELATIONSHIP WITH THE CHENNAI PORT TRUST. THE INTENTION WAS NOT TO CARRY OUT ANY BUSINESS IN COMMON, ONLY A PART OF THE JOB WILL BE DONE BY V OACZ ACCORDING TO ITS TECHNICAL SKILL AND CAPABILITY. THE OTHER PA RT OF THE CONTRACT WILL BE EXECUTED BY HCC. THE TOTAL VALUE OF THE CONTRACT WAS RS. 2,62,01,03,120. THE APPLICANT'S SHARE OF WORK WAS V ALUED AT RS. 44,52,78,920 (17 PER CENT OF TOTAL VALUE). THE ASSO CIATION WITH THE HCC WAS NOT WITH THE OBJECT OF EARNING THIS INCOME BUT FOR CO ORDINATION IN EXECUTING THE CONTRACT SO THAT HCC CO ULD ALSO MAKE ITS OWN PROFIT. HHC'S WORK AND INCOME ARISING THEREFROM WAS QUITE SEPARATE AND INDEPENDENT OF THE APPLICANT'S WORK AN D INCOME. IF THE COST INCURRED BY THE HCC OR THE APPLICANT WAS MORE THAN THEIR INCOME, EACH PARTY WILL HAVE TO BEAR ITS LOSS WITHO UT ANY ADJUSTMENT FROM THE OTHER PARTY. THE ASSOCIATION OF THE PETITI ONER COMPANY WITH HCC WAS UNDOUBTEDLY FOR MUTUAL BENEFIT BUT SUCH ASS OCIATION WILL NOT MAKE THEM A SINGLE ASSESSABLE UNIT AND LIABLE T O TAX AS AN AOP. FOR EXAMPLE, A BUILDING CONTRACTOR MAY ASSOCIATE WI TH A PLUMBER AND AN ELECTRICIAN TO EXECUTE A BUILDING PROJECT. A LL THESE PERSONS ARE DRIVEN BY PROFIT-MAKING MOTIVE. BUT THAT BY ITSELF WILL NOT MAKE THE THREE PERSONS LIABLE TO BE TAXED AS AN AOP IF EACH ONE HAS A DESIGNED AND INDEPENDENT ROLE TO PLAY IN THE BUILDING PROJEC T. IN THE INSTANT CASE, THE APPLICANT HAS STATED THAT THE APPLICANT H AS MADE ITS OWN 11 ITA NOS.1957 & 1958/PN/2014 ARRANGEMENT FOR EXECUTION OF WORK INDEPENDENT FROM THAT OF HCC. THERE IS NO CONTROL OR CONNECTION BETWEEN THE WORK DONE BY THE APPLICANT AND HCC.' 8. ON THE FACTS HEREINABOVE, THE APPLICANT AND HCC CANNOT BE TREATED AS AN AOOP FOR THE PURPOSE OF LEVY OF INCOM E-TAX. THE APPLICANT WILL BE LIABLE TO BE TAXED AS A SEPARATE AND INDEPENDENT ENTITY. THE QUESTION NO.1 IS ANSWERED ACCORDINGLY.' 7. WE ARE IN CONSIDERED AGREEMENT WITH THE VIEWS SO EXPRESSED BY THE HON'BLE AUTHORITY FOR ADVANCE RULING. WE ADO PT THE REASONING OF THE HON'BLE AAR AND, RESPECTFULLY FOLLOWING THE SAME, APPROVE THE CONCLUSION ARRIVED AT BY THE CIT(A) AND DECLINE TO INTERFERE IN THE MATTER. IN VIEW OF THE ABOVE DISCUSSION, WE ARE NOT INCLINE D TO INTERFERE IN THE FINDING OF THE CIT(A) WHO HAS DIRECTED THE ASSESSIN G OFFICER TO DELETE THE ADDITION. THE SAME IS UPHELD. 9. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. 3. NOTHING CONTRARY WAS BROUGHT TO OUR KNOWLEDGE ON BEHALF OF REVENUE. 4. FACTS BEING SIMILAR, SO FOLLOWING SAME REASONING WE ARE NOT INCLINED TO INTERFERE WITH THE FINDING OF THE CIT(A) WHO HAS RIGHTLY HELD THAT THERE IS NO QUESTION OF DISALLOWANCE MADE U/S. 40(A)(IA) OF THE ACT. SAME IS UPHELD. 11. SINCE THE FACTS ARE, MUTATIS MUTANDIS, IDENTICA L TO THE FACTS AND ISSUE DECIDED BY THE TRIBUNAL IN M/S. SWAPNALI RDS JOINT VENTURE (SUPRA), THEREFORE, FOLLOWING THE PARITY OF REASONING, WE UPHOLD THE ORDER OF THE CIT (A). CONSEQUENTLY, THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE DISMISSED. 10.2 RESPECTFULLY FOLLOWING THE DECISION OF THE CO- ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF ITO VS. SHRADDHA & MAHALAXM I JOINT VENTURE AND OTHERS (SUPRA), WE ARE INCLINED TO HOLD AGAINST THE REVENUE. WE SIMULTANEOUSLY FIND THAT THE CASE OF THE ASSESSEE I S FULLY SUPPORTED BY CBDT CIRCULAR NO.07/2016 (SUPRA) AND JUDICIAL OPINIONS E XPRESSED IN THE CASE OF SMSL-UANRCL (JV) (SUPRA) AND LINDE AG, LINDE ENGINE ERING DIVISION AND ANR. (SUPRA). 10.3 WE ALSO SIMULTANEOUSLY TAKE AFFIRMATIVE NOTE O F THE ARGUMENT ON BEHALF OF THE ASSESSEE THAT RIGOURS OF SECTION 40(A)(IA) A RE DILUTED IN THE FACTS OF THE CASE SINCE THE PAYEE HAS ADMITTEDLY FILED ITS RETUR N OF INCOME DISCLOSING THE IMPUGNED RECEIPTS AND INCOME EARNED BY IT EMBEDDED IN THE RECEIPT HAS BEEN DULY OFFERED FOR TAXATION. IN THIS VIEW OF THE MAT TER, THE ASSESSEE JOINT VENTURE CANNOT BE TREATED AS ASSESSEE IN DEFAULT IN VIEW OF THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF ANSAL LAND MARK TOW NSHIP (P.) LTD. (SUPRA) 12 ITA NOS.1957 & 1958/PN/2014 AND THE DECISION OF THE CO-ORDINATE BENCH OF THE TR IBUNAL IN THE CASE OF ITO VS. SHRI CHANDRAKANT J. MANDALE (SUPRA). THUS, SEE N FROM ANY ANGLE, WE FIND NO INFIRMITY IN THE ORDER OF THE CIT(A). ACCORDING LY, THE APPEAL OF THE REVENUE IS DISMISSED. 11. IN THE RESULT, THE APPEAL OF THE REVENUE IN ITA NO.1957/PN/2014 RELATING TO ASSESSMENT YEAR 2010-11 IS DISMISSED. 12. SINCE FACTS AND ISSUE IN ITA NO.1958/PN/2014 AR E IDENTICAL TO THE FACTS AND ISSUE IN ITA NO.1957/PN/2014, THEREFORE, OUR DE CISION IN ITA NO.1957/PN/2014 SHALL APPLY MUTATIS-MUTANDIS TO ITA NO.1958/PN/2014. THUS, THE APPEAL OF THE REVENUE IN ITA NO.1958/PN/2 014 RELATING TO ASSESSMENT YEAR 2011-12 IS ALSO DISMISSED. 13. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED ON THIS 29 TH DAY OF JULY, 2016. SD/- SD/- ( VIKAS AWASTHY ) ( PRADIP KUMAR KEDIA ) / JUDICIAL MEMBER $ / ACCOUNTANT MEMBER PUNE ; DATED : 29 TH JULY, 2016. & ' () *+( / COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-II, PUNE; 4) THE CIT-II, PUNE; 5) THE DR B BENCH, I.T.A.T., PUNE; 6) GUARD FILE. &, / BY ORDER , ' # //TRUE COPY// $ %& # '( / SR. PRIVATE SECRETARY ) '* , / ITAT, PUNE