Assistant Commissioner of Income-tax, Circle - 1, Kolhapur V. Mahalaxmi Infra Projects Ltd, Kolhapur

ITA 2513/PUN/2017

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 8951 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 4 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-03-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 28-01-2021
• Assessment Year: 2014-2015
• Appeal Filed On: 27-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE (THROUGH VIRTUAL COURT) BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI S.S. VISWANETHRA RAVI, J UDICIAL MEMBER . / ITA NO . 2 513 /PUN/201 7 / ASSESSMENT YEAR : 20 14 - 15 ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1 , KOLHAPUR ...... / APPELLANT / V/S. MAHALAXMI INFRA PROJECTS LTD., 223/3, S - 1(B), MALATI TOWERS, TARABAI PARK, KOLHAPUR PAN : AADCM2170P / RESPONDENT ASSESSEE BY : SHRI NIKHIL S. PATHAK REVENUE BY : SHRI DEEPAK GARG / DATE OF HEARING : 1 8 - 03 - 2021 / DATE OF PRONOUNCEMENT : 24 - 03 - 2021 / ORDER PER S.S. VISWANETHRA RAVI, JM : THIS APPEAL BY THE REVENUE AGAINST THE ORDER DATED 21 - 08 - 2017 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 1, KOLHAPUR [CIT(A)] FOR ASSESSMENT YEAR 20 14 - 15 . 2 ITA NO .2513/PUN/2017, A.Y. 2014 - 15 2. THE ASSESSEE RAISED THREE GROUNDS AMONGST WHICH THE ONLY ISSUE EMANATES FOR OUR CONSIDERATION IS AS TO WHETHER THE CIT(A) JUSTIFIED IN HOLDING THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S. 80IA(4) OF THE ACT IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE ASSESSEE CLAIMED DEDUCTION U/S. 80IA(4)(I)(A)&(B) OF THE ACT TO AN EXTENT OF RS.20,80,89,446/ - . IT WAS SUBMITTED THAT THE SAID DEDUCTION IS AVAILABLE TO ANY ENTERPRISE CARRYING ON THE DEVELOPING OR OPERATING AND MAINTAINING OR DEVELOPING, OPERATING AND MAINTAINING AN INFRASTRUCTURE FACILITY. FURTHER, IT WAS SUBMITTED THAT THE SAID DEDUCTION IS AVAILABLE TO THE ASSESSEE FROM A.YS. 2003 - 04 TO 2010 - 11 AND AN ORDER OF ITAT, PUNE BENCHES IN ASSESSEES OWN CASE FOR THE SAID A.YS. 2003 - 04 TO 2010 - 11 IS BINDING ON THE REVENUE AS THERE WAS NO STAY OF OPERATION OF ORDER OF ITAT BY THE HONBLE HIGH COURT OF BOMBAY. ACCORDING TO AO, THE ASSESSEES MAIN BUSINESS IS IN FRASTRUCTURE CONSTRUCTION I.E. CONSTRUCTION OF DAMS, ROADS, BRIDGES, LIFTS, IRRIGATION PROJECTS, TRANSMISSION LINES, HYDRO POWER PROJECTS ETC. AND THE CONTRACT, PROFIT AND LOSS ACCOUNT SHOWS RECEIPTS ON ACCOUNT OF CIVIL CONTRACTS FROM GOVERNMENT AGENCIES A ND OTHER CONCERNS, SALE OF WIND ENERGY AND OTHER INCOME OF THE NATURE OF INTEREST, DIVIDEN D, MISCELLANEOUS RECEIPTS ETC. , HELD THE ASSESSEE IS A WORKS CONTRACT OR. REGARDING THE ORDER OF ITAT HE HELD THAT AN APPEAL IS PENDING BEFORE THE HONBLE HIGH COURT OF BOMBAY AND CONSIDERING THE EXPLANATION TO SECTION 80IA(4) OF THE ACT PROCEEDED TO DISALLOW ABOVE SAID AMOUNT BY TREATING THE ASSESSEE IS NOT ELIGIBLE TO CLAIM DEDUCTION U/S. 80IA(4) OF THE ACT. THE CIT(A) CONSIDERING THE SUBMISSIONS OF ASSESSEE HELD TH E ASSESSEE IS ELIGIBLE FOR CLAIMING DEDUCTION U/S. 80IA(4) OF THE ACT AND ACCORDINGLY DELETED THE 3 ITA NO .2513/PUN/2017, A.Y. 2014 - 15 ADDITION MADE THEREON BY THE AO WHICH IS REFLECTED IN PARA NO. 7 OF THE IMPUGNED ORDER. 4. IN ORDER TO AVOID REPETITION AND MAKE THE ISSUE PRECISE WE NOTE THAT THE ASSESSEE FILED ORDER S OF ITAT IN PAPER BOOK FROM PAGE NOS. 1 TO 135 WHEREIN WE FIND ORDERS FOR A.YS. 2004 - 05 TO 2010 - 11, 2011 - 12 TO 2012 - 13 AND 2013 - 14 , THE LATEST BEING A.Y. 2013 - 14 WHICH IS AT PAGE NO. 132 OF THE PAPER BOOK WHEREIN THIS TRIBUNAL HELD THE ASSESSEE IS ENTITLED FOR CLAIMING DEDUCTION U/S. 80IA(4) OF THE ACT. THE RELEVANT PORTION OF WHICH AT PARA NOS. 4 AND 5 IN ITA NO.2169/PUN/2016 FOR A.Y. 2013 - 14 ORDER DATED 30 - 07 - 2018 IS REPRODUCED HERE - IN - BELOW FOR READY REFERENCE: 4. BOTH S IDES 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 THE ACT. FROM THE DOCUMENTS ON RECORD WE OBSERVE THAT THE ISSUE OF ASSESSEES E LIGIBILITY FOR CLAIMING DEDUCTION U/S. 80IA(4) HAS CROPPED UP YEAR AFTER YEAR SINCE ASSESSMENT YEAR 2003 - 04. THE TRIBUNAL FOR THE FIRST TIME IN ITA NO. 433/PN/2007 FOR ASSESSMENT YEAR 2003 - 04 BY PLACING RELIANCE ON THE DECISION OF HONBLE BOMBAY HIGH COUR T 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 TRIBUNAL IN SUBSEQUENT ASSESSMENT YEARS FOLLOWING THE DECISION OF CO - ORDINATE BENC H 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 CASE AND TO ALLOW ASSESSEES CLAIM OF DEDUCTION U/S. 80IA(4) OF THE ACT. ACCORDINGLY, GROUNDS RAISED BY THE REVENUE IN APPEAL ARE DISMISSED BEING DEVOID OF ANY MERIT. 5. THE LD. DR, SHRI DEEPAK GARG RELIED ON THE ORDER OF AO. 6. WE NOTE THAT THERE WAS NO DISPUTE BY THE LD. DR THE FACTS INVOLVING THE ISSUE ON HAND ARE IDENTICAL TO A.YS. 2004 - 05 TO 2010 - 11, 2011 - 12 TO 2012 - 13 AND 2013 - 14 AND NO ORDER PLACED ON RECORD BY THE REVENUE 4 ITA NO .2513/PUN/2017, A.Y. 2014 - 15 CONTRARY TO THE FINDINGS OF THIS TRIBUNAL OR REVERSING OR MODIFYING ORDER OF ITAT BY THE HONBLE HIGH COURT OF BOMBAY. THEREFORE, WE HOLD THAT THE ASSESSEE IS ENTITLED FOR CLAIMING DEDUCTION U/S. 80IA(4) OF THE ACT AND WE DO NOT FIND ANY INFIRMITY IN THE ORDER CIT(A) AND IT IS JUSTIFIED. ACCORDINGLY, THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 7. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH MARCH, 202 1 . SD/ - SD/ - ( R.S. SYAL ) ( S.S. VISWANETHRA RAVI ) VICE PRESIDENT JUDICIAL MEMBER / PUNE; / DATED : 24 TH MARCH, 202 1 . RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A) - 1, KOLHAPUR 4. THE PR. CIT - 1, KOLHAPUR 5. , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. // // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE