M/s R.K. Gupta Contractors & Engineers Pvt. Ltd., Bhopal V. The Asstt. Commissioner of Income Tax 3(1), Bhopal

ITA 22/IND/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4860 (ITAT-INDORE)
• Duration Of Justice: 7 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-09-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 08-01-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: A K JAIN
• Keywords: Retrospective amendment; Question of law

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO. 22/IND/2013 A.Y. 2009-10 M/S R.K. GUPTA CONTRACTORS & ENGINEERS PRIVATE LIMITED BHOPAL PAN AACCR-9291D :: APPELLANT VS ASSISTANT COMMISSIONER OF INCOME TAX 3(1), BHOPAL :: RESPONDENT APPELLANT BY SHRI A.K. JAIN RESPONDENT BY SHRI R.A. VERMA DATE OF HEARING 3.9.2013 DATE OF PRONOUNCEMENT 3.9.2013 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THIS APPEAL IS BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2009- 10 CHALLENGING THE ORDER DATED 9.11.2012, PASSED BY THE LEARNED FIRST APPELLATE AUTHORITY, BHOPAL WHEREIN THE ASSES SEE BROADLY 2 ARGUED THE ISSUE WHICH PERTAINS TO DISALLOWANCE OF CLAIM OF RS.1,27,33,201/- MADE U/S 80IA(4) OF THE ACT. 2. DURING HEARING OF THIS APPEAL, WE HAVE HEARD SHR I A.K. JAIN, LD. COUNSEL FOR THE ASSESSEE AND SHRI R.A. VERMA, L D. SR. DR. THE LD. COUNSEL FOR THE ASSESSEE HAS FILED DECLARATION U/S 158A(1) (FORM NO.8) OF THE I.T. ACT, 1961, CLAIMING THAT THE ISSU E OF DEDUCTION U/S 80IA(4) OF THE ACT IS PENDING BEFORE THE HON'BLE HI GH COURT AT JABALPUR FOR ASSESSMENT YEAR 2006-07 BY FURTHER MEN TIONING THAT IDENTICAL QUESTIONS OF LAW ARE ALSO ARISING FOR ASS ESSMENT YEAR 2009-10 WHICH IS BEFORE THIS TRIBUNAL. THE LEARNED COUNSEL PLACED A COPY OF ORDER DATED 10.7.2003 (ITA NO. 200/IND/2010 ) FROM HONBLE HIGH COURT OF MADHYA PRADESH, ADMITTING THE FOLLOWI NG SUBSTANTIAL QUESTION OF LAW :- WHETHER THE TRIBUNAL COMMITTED AN ERROR IN DECIDIN G THE APPELLANTS CASE ON THE BASIS OF MERE EXAMINATI ON OF LAW WITHOUT DETERMINING THE FACTS OF THE APPELLANT S CASE AND IS MERELY REPRODUCING THE CONTENTS OF ANOTHER JUDGMENTS WITHOUT EXAMINING THE FACTUAL ASPECTS OF THE APPELLANTS CASE ? 3 ON THE BASIS OF THE ABOVE, IT WAS PLEADED THAT THE ASSESSEE SHALL NOT RAISE THE SAID QUESTION OF LAW (WHICH IS PENDING BE FORE THE HON'BLE HIGH COURT) BEFORE THE APPELLATE AUTHORITY OR FOR A REFERENCE BEFORE THE HON'BLE HIGH COURT U/S 256 OF THE ACT IN ITS AP PLICATION WHEREIN IT WAS DECLARED THAT THE SAID QUESTION OF LAW IS ID ENTICAL WITH THE QUESTION OF LAW ARISING IN THE CASE OF THE PRESENT ASSESSEE IN RESPECT OF ASSESSMENT YEAR 2009-10 WHICH IS PENDING BEFORE THE TRIBUNAL. IT HAS BEEN FURTHER DECLARED BY THE ASSESSEE THAT IF T HE TRIBUNAL AGREES TO APPLY THE CASE REFERRED TO THEN THE ASSES SEE SHALL NOT RAISE THE SAID QUESTION OF LAW BEFORE ANY OF THE APPELLAT E AUTHORITIES OR FOR A REFERENCE BEFORE THE HIGH COURT. THE LD. SR. DR H AD NO OBJECTION TO THE REQUEST OF THE ASSESSEE. 3. ON PERUSAL OF RECORDS AND AFTER HEARING THE RIVA L SUBMISSIONS, THE DECLARATION MADE U/S 158A(1) OF THE ACT IS ACCE PTED ESPECIALLY WHEN THE IDENTICAL QUESTION OF LAW IS PENDING BEFOR E THE HON'BLE HIGH COURT AT JABALPUR TO AVOID REPETITIVE APPEALS IN THE CASE OF THE ASSESSEE. THE ISSUE HAS ALREADY BEEN DECIDED AGAINS T THE ASSESSEE BY THE TRIBUNAL ORDER DATED 28.7.2010 IN ITA NOS.51 7 & 4 519/IND/2009, A.Y. 2006-07). FOR READY REFERENCE, T HE RELEVANT PORTION IS REPRODUCED HEREUNDER: 3. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTI ES AND HAVE GONE THROUGH THE MATERIAL AVAILABLE ON THE FILE. A CLARI FICATORY EXPLANATION BELOW SUB-SECTION (13) OF SECTION 80IA OF THE ACT W AS INSERTED WITH RETROSPECTIVE EFFECT FROM 1.4.2000 BY THE FINANCE A CT, 2009 AS PER WHICH NOTHING CONTAINED IN THIS SECTION SHALL APPLY IN RE LATION TO A BUSINESS REFERRED TO IN SUB-SECTION (4) WHICH IS IN THE NATU RE OF A WORKS CONTRACT AWARDED BY ANY PERSON INCLUDING THE CENTRAL OR STAT E GOVERNMENT AND EXECUTED BY THE UNDERTAKING OR ENTERPRISE REFERRED TO IN SUB-SECTION (1). THE ASSESSMENT YEAR INVOLVED IN THE PRESENT APPEAL BEING 2006-07, THEREFORE, THIS EXPLANATION IS CLEARLY APPLICABLE T O THE FACTS OF THE PRESENT APPEAL. IT HAS BEEN SPECIFICALLY PROVIDED THAT THE PROVISIONS U/S 80IA OF THE ACT SHALL NOT APPLY TO A BUSINESS REFERRED TO I N SUB-SECTION (4) OF SECTION 80IA OF THE ACT, WHICH IS OF THE NATURE OF WORKS CONTRACTS. IN SUB-SECTION (1) THE WORD ANY BUSINESS HAS BEEN ME NTIONED. IDENTICAL ISSUE HAS BEEN DELIBERATED UPON AND DECIDED BY THE TRIBUNAL IN THE AFORESAID CASE, THE RELEVANT PORTION WHEREOF HAS BE EN REPRODUCED ABOVE. WE, THEREFORE, HOLD THAT SINCE NO DEDUCTION IS ALLO WABLE TO THE ASSESSEE U/S 80IA OF THE ACT, THE LEARNED COMMISSIONER OF IN COME TAX (APPEALS) WAS NOT JUSTIFIED IN GRANTING THE SAME. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ON THIS ISSUE IS, THEREFORE, SET ASIDE AND THE APPEAL OF APPEAL OF THE REVENUE IS AL LOWED. 4. AS FAR AS THE APPEAL OF THE ASSESSEE (ITA NO. 52 2/IND/2009) IS CONCERNED, SINCE WHILE DECIDING THE APPEAL OF THE R EVENUE, WE HAVE HELD THAT NO DEDUCTION U/S 80-IA OF THE ACT IS ALLOWABLE TO THE ASSESSEE, THERE IS NO QUESTION OF BIFURCATION OF INCOME/RECEIPTS FO R THE PURPOSE OF DEDUCTION U/S 80IA OF THE ACT, THEREFORE, THE DECIS ION OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IN THAT REGARD CANNOT BE SUSTAINED BECAUSE THE ASSESSEE IS NOT AT ALL ELIGIB LE FOR DEDUCTION U/S 80IA OF THE ACT. ACCORDINGLY, THE APPEAL OF THE ASS ESSEE IS ALSO DISMISSED. FINALLY, THE APPEAL OF THE REVENUE IS ALLOWED WHERE AS THE APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 28 TH JULY, 2010. 3.1 WE FIND THAT WHILE COMING TO THE AFORESAID CON CLUSION, THE TRIBUNAL FOLLOWED THE EARLIER DECISION DATED 2. 7.2010 IN THE CASE 5 OF BIORA INFRASTRUCTURE PRIVATE LIMITED VS. ACIT (I TA NO. 373/IND/2009) AND ANOTHER DECISION DATED 7 TH MAY, 2010 IN THE CASE OF SCC PROJECTS PRIVATE LIMITED VS. ACIT (ITA NO. 127/IND/2009) ON IDENTICAL ISSUE. IN THE ABSENCE OF ANY CONTRARY DECISION BROUGHT ON RECORD BY EITHER SIDE, THIS ISS UE OF THE ASSESSEE IS HAVING NO MERIT, THEREFORE, DISMISSED. HOWEVER, AS DISCUSSED ABOVE, THE REQUEST OF THE ASSESSEE WITH REGARD TO T HE DECLARATION MADE U/S 158A(1) OF THE ACT IS ACCEPTED. FINALLY, THE APPEAL OF THE ASSESSEE IS DISPOSED OF IN TERMS AS INDICATED HEREINABOVE. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 3.9.2013. SD/- SD/- (R.C.SHARMA) (JOGINDER SINGH ) ACCOUNTANT MEMBER JUDICIAL ME MBER DATED: 23.9.2013 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE !VYS!