Assistant Commissioner of Income-tax, V. Mahalaxmi Infraprojects Ltd., Kolhapur

ITA 2169/PUN/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 5289 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 10 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 16-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE . , , , BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO . 2169 /P U N/201 6 / ASSESSMENT YEAR : 20 1 3 - 14 ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1, KOLHAPUR ....... / APPELLANT / V/S. MAHALAXMI INFRAPROJECTS LIMITED, 223/3, S 1B, MALATI TOWERS, TARABAI PARK, KOLHAPUR PAN : AADCM2170P / RESPONDENT ASSESSEE BY : S HRI NIKHIL PATHAK REVENUE BY : SHRI SARDAR SINGH MEENA / DATE OF HEARING : 2 4 - 07 - 201 8 / DATE OF PRONOUNCEMENT : 30 - 0 7 - 201 8 / ORDER PER VIKAS AWASTHY, JM : TH IS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF COMMI SSIONER OF INCOME TAX (APPEALS) - 1 , KOLHAPUR DATED 21 - 07 - 2016 FOR THE ASSESSMENT YEAR 20 13 - 14. THE REVENUE IN APPEAL HAS ASSAILED THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) IN ALLOWING ASSESSEES CLAIM 2 ITA NO . 2169/PUN/2016, A.Y. 2013 - 14 OF DEDUCTION U/S. 80I A(4) O F THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) BY RAISING FOLLOWING GROUNDS : 1) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT (APPEALS) WAS RIGHT IN HOLDING THAT THE ASSESSEE WAS ELIGIBLE FOR DEDUCTION U/S. 80IA(4) OF THE I. T. ACT, 1961 IGNORING THE FACT THAT THE ASSESSEE BEING A CONTRACTOR, IS NOT ELIGIBLE FOR SUCH DEDUCTION AS PER EXPLANATION 2 TO SECTION 80IA? 2) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT (APPEALS) WAS RIGHT IN HOLDING T HAT EVEN IF THE ASSESSEE IS TERMED AS CONTRACTOR, AS IT HAD DEVELOPED, OPERATED AND MAINTAINED INFRASTRUCTURAL FACILITY AND HENCE ENTITLED TO THE D EDUCTIONS WITHIN THE MEANING OF SUB - SECTION (4) OF SECTION 80IA? 3) THE APPELLANT CRAVES LEAVE TO ADD, ALTER , AMEND OR MODIFY ANY OTHER GROUNDS OF APPEAL AT THE TIME OF HEARING. 2. SHRI NIKHIL PATHAK APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED AT THE OUTSET THAT THE ISSUE REGARDING ASSESSEES ELIGIBILITY FOR CLAIMING DEDUCTION U/S. 80IA(4) HAS BEEN DECIDED BY THE TRIBUNAL IN APPEAL S BY THE ASSESSEE FOR ASSESSMENT YEARS 2004 - 05 TO 2010 - 11 IN ITA NOS. 2571 TO 2577/PN/2012 DECIDED ON 09 - 12 - 2015 AND IN ITA NOS. 146 & 147/PUN/2016 FOR ASSESSMENT YEARS 2011 - 12 & 2012 - 13 DECIDED ON 17 - 01 - 2018 . THE TRIBUNAL FOLLOW ING THE DECISION IN ASSESSEES OWN CASE IN ITA NO. 433/PN/2007 FOR ASSESSMENT YEAR 2003 - 04 DECIDED ON 06 - 02 - 2012 AND THE JUDGMENT OF HONBLE BOMBAY HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. ABG HEAVY INDUSTRIES LTD. REPORTED AS 322 ITR 323 A ND VARIOUS OTHER DECISIONS ALLOWED ASSESSEES CLAIM OF DEDUCTION U/S. 80IA(4) OF THE ACT. THE COMMISSIONER OF INCOME TAX (APPEALS) BY FOLLOWING THE ORDER OF TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO. 433/PN/2007 (SUPRA) AND VARIOUS OTHER CASES HAS HELD THE ASSESSEE ELIGIBLE FOR CLAIMING DEDUCTION U/S. 80IA(4) OF THE ACT. THE LD. AR 3 ITA NO . 2169/PUN/2016, A.Y. 2013 - 14 FURNISHED THE COPY OF THE ORDER OF TRIBUNAL IN ITA NOS. 2571 TO 2577/PN/2012 (SUPRA) AND ITA NOS. 146 & 147/PUN/2016 (SUPRA). 3. SHRI SARDAR SINGH MEENA REPRESENTING THE DEP ARTMENT FAIRLY ADMITTED THAT THE ISSUE REGARDING ASSESSEES ELIGIBILITY FOR CLAIMING DEDUCTION U/S. 80IA(4) OF THE ACT IS RECURRING FOR THE PAST SEVERAL ASSESSMENT YEARS . IN EARLIER ASSESSMENT YEARS THE TRIBUNAL HAS DEALT WITH THIS ISSUE AND HAS HELD THE ASSESSEE ELIGIBLE FOR CLAIMING DEDUCTION U/S. 80IA(4) OF THE ACT. 4. BOTH SIDES HEARD. ORDERS OF THE AUTHORITIES BELOW PERUSED. THE SOLITARY ISSUE RAISED IN THE APPEAL BY THE REVENUE IS AGAINST ALLOWING ASSESSEES CLAIM OF DEDUCTION U/S. 80IA(4) OF TH E ACT. FROM THE DOCUMENTS ON RECORD WE OBSERVE THAT THE ISSUE OF ASSESSEES ELIGIBILITY FOR CLAIMING DEDUCTION U/S. 80IA(4) HAS CROPPED UP YEAR AFTER YEAR SINCE ASSESSMENT YEAR 200 3 - 04. THE TRIBUNAL FOR THE FIRST TIME IN ITA NO. 433/PN/2007 FOR ASSESSMEN T YEAR 2003 - 04 BY PLACING RELIANCE ON THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. ABG HEAVY INDUSTRIES LTD. (SUPRA) HELD THE ASSESSEE ELIGIBLE FOR CLAIMING DEDUCTION U/S. 80IA(4) OF THE ACT. THEREAFTER, THE TRIB UNAL IN SUBSEQUENT ASSESSMENT YEARS FOLLOWING THE DECISION OF CO - ORDINATE BENCH IN ASSESSEES OWN CASE IN ITA NO. 433/PN/2007 (SUPRA) HAS BEEN ALLOWING BENEFIT OF DEDUCTION U/S. 80IA(4) OF THE ACT TO THE ASSESSEE. 5. THE FACTS IN THE ASSESSMENT YEAR UNDER APPEAL ARE IDENTICAL. WE DO NOT FIND ANY REASON TO INTERFERE WITH THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) IN FOLLOWING THE ORDER OF TRIBUNAL IN ASSESSEES OWN 4 ITA NO . 2169/PUN/2016, A.Y. 2013 - 14 CASE AND TO ALLOW ASSESSEES CLAIM OF DEDUCTION U/S. 80 IA (4) OF THE ACT. ACCORDIN GLY, GROUNDS RAISED BY THE REVENUE IN APPEAL ARE DISMISSED BEING DEVOID OF ANY MERIT . 6. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED ON MONDAY, THE 30 TH DAY OF JU LY , 201 8 . SD/ - SD/ - ( . /D. KARUNAKARA RAO ) ( / VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 30 TH JU LY , 2018 RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 1 , KOLHAPUR 4. / THE CIT - 1, KOLHAPUR 5. , , , / DR, ITAT, B BENCH, PUNE. 6. / GUARD FILE. / / // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE