INFRASTRUCTURE PROJECTS LTD, MUMBAI V. ASST CIT CIR 6(3), MUMBAI

ITA 3617/MUM/2012

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1861 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 6 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2015
• Appeal Filed By: Assessee
• Bench Allotted: G
• Next Hearing Date: 20-10-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 21-05-2012
• Court: TRIBUNAL
• Department Lawyers: HARSHAR VENGURLEKAR
• Assessee Lawyers: F V IRANI
• Keywords: Opportunity of being heard; Principle of natural justice; Right to appeal
• Section: 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE HONBLE S/SHRI SAKTIJIT DEY (JM) , AND ASHWANI TANEJA (AM) ./I.T.A. NO.3617/MUM/2012 ( / ASSESSMENT YEAR:2007-08) GAMMO N INFRASTRUCTURE PROJECTS LTD, GAMMON HOUSE, VEER SAVARKER MARG, PRABHADEVI, MUMBAI-400025 / VS. ASSTT. COMMISSIONER OF INCOME TAX, CC 41, ROOM NO.653, 6 TH FLOOR, AAYAKAR BHAVAN, M K ROAD, MUMBAI-400020 ( / APPELLANT) .. ( / RESPONDENT) ./ ./PAN. :AABCG8641H / APPELLANT BY MR. F. V. IRANI /RESPONDENT BY MR. HARSHAR VENGURLEKAR ! / DATE OF HEARING :20.10.2015 ! /DATE OF PRONOUNCEMENT: 16.12.2015 ITA NO.3617/MUM/2012 2 / O R D E R PER ASHWANI TANEJA, AM: THIS IS AN APPEAL FILED BY THE ASSESSEE CHALLE NGING THE APPEAL ORDER PASSED BY THE FIRST APPELLATE AUTHORITY DATED 29.12.2012 FOR THE ASSESSMENT YEAR 2007-08. 2. THE MAIN GROUND RAISED BY THE ASSESSEE IN THIS APPE AL IS THAT THE ASSESSEE WAS NOT PROVIDED WITH FAIR AND REASONA BLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE PASSING THE O RDER. 3. THE RETURN OF INCOME WAS FILED BY THE ASSESSEE ON 3 1.10.2007 DECLARING TOTAL INCOME OF RS. 6,25,87,573/-. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF INFRASTRUCTURE DEVELOPER , OPERATOR AND MAINTENANCE, PROVIDER OF ADVISORY SERVICES AND INVE STOR IN INFRASTRUCTURE ACTIVITIES. 4. AT THE TIME OF HEARING, THE LD. AR SUBMITTED THAT IN THIS CASE, THE DEDUCTION CLAIMED BY THE ASSESSEE U/S 80IA (4) OF THE INCOME TAX ACT, 1961 HAS BEEN DENIED BY THE AO AND THE SAM E WAS CONFIRMED BY THE LD CIT(A) BY FOLLOWING THE DECISI ON OF PUNE BENCH OF THE TRIBUNAL IN B.T. PATIL & SONS BELGAUM CONST RUCTIONS PVT. LTD VS. ACIT (ITAT PUNE) (2010) (126 TTJ 577), WHEREIN THE HONBLE BENCH HAD TAKEN A VIEW THAT THE DEDUCTION U/S 80IA WAS NOT ALLOWABLE TO THE ASSESSEE FOR THE REASONS THAT IT W AS NOT ALLOWABLE ON WORKS CONTRACT. IT WAS SUBMITTED BY THE LD. AR T HAT THIS JUDGMENT WAS CONTESTED BY THE SAID COMPANY BEFORE ITS JURISD ICTIONAL HIGH ITA NO.3617/MUM/2012 3 COURT (I.E. BOMBAY HIGH COURT), AND THE HIGH COURT HAD SENT THE ISSUE BACK TO THE TRIBUNAL FOR FRESH DECISION. THE REAFTER, THE TRIBUNAL PASSED FRESH ORDER IN THE CASE OF M/S B.T. PATIL & SONS BELGAUM CONSTRUCTIONS PVT. LTD VS. ACIT IN ITA NOS.1408 AND 1409/PN/2003 (AY-2000-01 AND 2000-01) DATED 28.2.2013, WHEREIN I T WAS HELD THAT THE ASSESSEE WAS ELIGIBLE FOR DEDUCTION U/S 80IA, A ND WHILE HOLDING SO, HONBLE BENCH HAD RELIED UPON THE JUDGMENT OF J URISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. ABG HEAVY INDUSTRIES LIMITED. (2010) 322 ITR 323 (BOM). IN THE AFORESAID FACTS, IT WAS THUS REQUESTED THAT SINCE WHOLE PREMISE OF THE ORDER OF LD. CIT(A) HAS BEEN CHANGED, THEREF ORE, THIS ISSUE REQUIRES FRESH ADJUDICATION IN VIEW OF THE CHANGED POSITION OF LAW. IT WAS FURTHER SUBMITTED BY THE ASSESSEE IN GROUND NO. 1 OF THE APPEAL THAT NO EFFECTIVE OPPORTUNITY OF BEING HEARD WAS GI VEN TO THE ASSESSEE BY THE AO BEFORE MAKING ASSESSMENT ORDER, AND THIS ISSUE WAS RAISED BY THE ASSESSEE BEFORE THE LD. CIT(A), W HICH WAS NOT ACCEPTED BY THE LD. CIT(A) FOR THE REASONS THAT OPP ORTUNITIES WERE BEING GRANTED BY HIM IN THE FIRST APPELLATE PROCEE DINGS. IT WAS SUBMITTED BY THE LD. AR THAT IN CASE NO PROPER OPPO RTUNITY IS GIVEN BY THE AO, IT CANNOT BE SUBSTITUTED BY THE LD. CIT( A), SINCE UNDER THE LAW THE ASSESSEE DESERVES PROPER OPPORTUNITY OF HEARING AT THE STAGE OF ASSESSMENT PROCEEDINGS. IN SUPPORT OF HIS CONTENTION, THE LD. AR HAS RELIED UPON THE JUDGMENT OF HONBLE SUP REME COURT IN THE CASE OF INSTITUTE OF CHARTERED ACCOUNTANTS OF I NDIA VS. L.K. RATNA AND OTHERS 164 ITR 1 (SC). IT WAS THUS, SUBMITTED BY THE LD. COUNSEL THAT FOR THE ABOVE REASONS THIS ISSUE NEEDS TO BE SENT BACK ITA NO.3617/MUM/2012 4 TO THE FILE OF THE AO FOR GRANTING PROPER OPPORTUNI TY OF BEING HEARD TO THE ASSESSEE FOR CORRECT APPRECIATION OF LAW AND FA CTS. 5. ON THE OTHER HAND, THE LD. DR OPPOSED THE SUBMISS IONS MADE BY THE LD. AR FOR THE REASONS THAT THE LD. CIT(A) HAS PASSED HIS ORDER NOT ONLY ON THE BASIS OF JUDGMENT OF HONBLE TRIBUNAL IN THE CASE OF B.T. PATIL (SUPRA) BUT ALSO DISCUSSED THE FACTS INDEPENDENTLY. 6. WE HAVE GONE THROUGH THE SUBMISSIONS MADE BY THE P ARTIES. IT IS NOTED THAT THE ASSESSEE HAD TAKEN GROUND OF LACK OF OPPORTUNITY BEFORE THE LD. CIT(A). IT HAS BEEN HELD BY THE LD. CIT(A) IN HIS ORDER THAT SINCE THE COUNSEL OF THE ASSESSEE HAD AP PEARED FROM TIME TO TIME BEFORE THE AO AND THAT THE AO HAD APPLIED HIS MIND AND THEREAFTER PASSED A SPEAKING ORDER, AND THUS THERE DOES NOT SEEM TO BE ANY INFIRMITY ON THE PART OF THE AO IN PROVIDI NG AN OPPORTUNITY TO THE ASSESSEE. IT HAS BEEN FURTHER HELD THAT THE AS SESSEE HAS BEEN GIVEN OPPORTUNITY TO SUBSTANTIATE THE GROUNDS OF AP PEAL AND FILE WRITTEN SUBMISSIONS AND PAPER BOOK DURING THE COURS E OF FIRST APPELLATE PROCEEDINGS. IT WAS HELD BY HIM THAT THE REQUIREMENTS OF PRINCIPLES OF NATURAL JUSTICE WERE FULLY MET AND TH EREFORE THE GROUND OF APPEAL WITH REGARD TO LACK OF OPPORTUNITY WAS TR EATED AS INFRUCTUOUS. 6.1. WE DO NOT AGREE WITH THE REASONING AND FINDINGS G IVEN BY THE LD. CIT(A) ON THE ASPECT OF OPPORTUNITY. IN OUR VIE W, IT IS NOT ENOUGH TO SAY THAT THE LD. COUNSEL HAD ATTENDED THE HEARIN G FROM TIME TO ITA NO.3617/MUM/2012 5 TIME. WE FEEL THAT WHAT IS TO BE SEEN IS THAT WHE THER THE AO HAD GIVEN SUFFICIENT TIME AND OPPORTUNITY FOR GIVING RE PLY BY THE ASSESSEE IN RESPONSE TO THE QUERIES RAISED BY THE AO AND W HETHER ALL THE QUERIES OR DOUBTS WERE POINTED OUT BY THE AO TO T HE ASSESSEE IN BLACK AND WHITE AND WHETHER ALL THE ISSUES RAISED IN THE ASSESSMENT ORDER WERE CONFRONTED TO THE ASSESSEE AND EFFECTIVE OPPORTUNITY OF HEARING WAS GIVEN TO THE ASSESSEE FOR FAIR AND JUDI CIOUS PROCEEDINGS. IF THESE ELEMENTS ARE ABSENT, FAIRNESS CANNOT BE PR ESUMED. AS A STUDENT OF LAW, WE WERE TAUGHT THAT FAIR OPPORTUNIT Y IN ANY PROCEEDINGS, WHETHER IT IS- ADMINISTRATIVE, QUASI-J UDICIAL, JUDICIAL OR OTHERWISE, IS SINE-QUA-NONE. HOW SO EVER STRONG OR WELL REASONED AN ORDER MAY BE, BUT IF IT IS PASSED WITHOUT AFFORDING A PROPER OPPORTUNITY AS PER LAW, IT WOULD NOT BE SUSTAINABLE IN THE EYES OF LAW. 6.2. IT IS FURTHER NOTED THAT THE LD. CIT(A) HAS STATED IN THE ORDER THAT THE OPPORTUNITY HAS BEEN GIVEN BY HIM TO THE A SSESSEE AND THEREFORE, ANY WAY, HE HAS SUBSTITUTED OR COMPENSA TED IT WITH THE OPPORTUNITY THAT SHOULD HAVE BEEN PROVIDED BY THE AO TO THE ASSESSEE. WE DO NOT AGREE WITH THE VIEWS OF LD. CIT (A). WE FIND THAT THE POSITION OF LAW HAS NOT BEEN CORRECTLY UNDERSTO OD BY THE LD. CIT(A). WITH A VIEW TO CORRECTLY ANALYSE THE TRUE POSITION OF LAW WE BEGIN WITH SIR WILLIAM WADE'S ERUDITE AND CLASSIC WORK ON ADMINISTRATIVE LAW, WHEREIN THE LEARNED AUTHOR OBSERVED THAT: .IN PRINCIPLE THERE OUGHT TO BE AN OBSERVANCE OF NATURAL JUSTICE EQUALLY AT BOTH STAGES, AND IF NATURAL JUSTICE IS V IOLATED AT THE FIRST STAGE, THE RIGHT OF APPEAL IS NOT SO MUCH A TRUE RI GHT OF APPEAL AS A ITA NO.3617/MUM/2012 6 CORRECTED INITIAL HEARING: INSTEAD OF FAIR TRIAL FO LLOWED BY APPEAL, THE PROCEDURE IS REDUCED TO UNFAIR TRIAL FOLLOWED BY FA IR TRIAL. ' IT IS WORTH MENTIONING THAT LEARNED AUTHOR MADE A R EFERENCE TO USEFUL OBSERVATIONS OF JUSTICE MEGARRY IN THE CASE OF LEARY V. NATIONAL UNION OF VEHICLE BUILDERS. [1971] CH. 34, WHEREIN WHILE DEALING WITH ANOTHER ASPECT OF THIS ISSUE, THE LEARNED JUDG E SAID: 'IF ONE ACCEPTS THE CONTENTION THAT A DEFECT OF NAT URAL JUSTICE IN THE TRIAL BODY CAN BE CURED BY THE PRESENCE OF NATU RAL JUSTICE IN THE APPELLATE BODY, THIS HAS THE RESULT OF DEPRIVIN G THE MEMBER OF HIS RIGHT OF APPEAL FROM THE EXPELLING BODY. IF THE RULES AND THE LAW COMBINE TO GIVE THE MEMBER THE RIGHT TO A F AIR TRIAL AND THE RIGHT OF APPEAL, WHY SHOULD HE BE TOLD THAT HE OUGHT TO BE SATISFIED WITH AN UNJUST TRIAL AND A FAIR APPEAL? E VEN IF THE APPEAL IS TREATED AS A HEARING DE NOVO, THE MEMBER IS BEING STRIPPED OF HIS RIGHT TO APPEAL TO ANOTHER BODY FRO M THE EFFECTIVE DECISION TO EXPEL HIM, I CANNOT THINK THA T NATURAL JUSTICE IS SATISFIED BY A PROCESS WHEREBY AN UNFAIR TRIAL, THOUGH NOT RESULTING IN A VALID EXPULSION, WILL NEVERTHELE SS HAVE THE EFFECT OF DEPRIVING THE MEMBER OF HIS RIGHT OF APPE AL WHEN A VALID DECISION TO EXPEL HIM IS SUBSEQUENTLY MADE. S UCH A DEPRIVATION WOULD BE A POWERFUL RESULT TO BE ACHIEV ED BY WHAT IN LAW IS A MERE NULLITY; AND IT IS NO MERE TRIVIAL ITY THAT MIGHT BE JUSTIFIED ON THE GROUND THAT NATURAL JUSTICE DOES N OT MEAN PERFECT JUSTICE. AS A GENERAL RULE, AT ALL EVENTS, I HOLD THAT A FAILURE OF NATURAL JUSTICE IN THE TRIAL BODY CANNOT BE ITA NO.3617/MUM/2012 7 CURED BY A SUFFICIENCY OF NATURAL JUSTICE IN AN APP ELLATE BODY. ' 6.3. IN THIS REGARD, RELIANCE IS ALSO MADE ON THE JUDGM ENT OF HONBLE SUPREME COURT IN THE CASE OF INSTITUTE OF C HARTERED ACCOUNTS OF INDIA VS L K RATNA AND OTHERS 164 ITR 1 (SC) WHEREIN IT WAS HELD THAT A MEMBER ACCUSED OF MISCON DUCT IS ENTITLED TO A HEARING BY THE COUNCIL WHEN, ON RECEIPT OF T HE REPORT OF THE DISCIPLINARY COMMITTEE, IT PROCEEDS TO FIND WHETHE R HE IS OR IS NOT GUILTY. 6.4. FURTHER, AN IDENTICAL ISSUE OF LACK OF OPPORTUNITY BY THE AO CAME UP BEFORE THE HONBLE SUPREME COURT IN THE CAS E OF TIN BOX COMPANY VS CIT 249 ITR 216 (SC), WHEREIN HONBLE SUPREME COURT HELD AS UNDER: IN AN APPEAL BY THE ASSESSEE, THE APPELLATE TRIBU NAL FOUND THAT THE INCOME TAX OFFICER HAD NOT GIVEN TO THE AS SESSEE PROPER OPPORTUNITY OF BEING HEARD, BUT HELD THAT TH E ASSESSEE HAD OPPORTUNITY BEFORE THE COMMISSIONER (APPEALS) A ND WENT INTO THE CLAIM OF THE ASSESSEE ON THE MERITS AND HE LD THAT THERE WAS NO MERIT. ON A REFERENCE, THE HIGH COURT HELD T HAT THERE WAS NO REASON WHY THE TRIBUNAL SHOULD SET ASIDE THE ORDER OF THE INCOME TAX OFFICER MERELY BECAUSE THAT OFFICER DID NOT GRANT ALL REASONABLE OPPORTUNITIES TO THE ASSESSEE. ON APPEAL TO THE SUPREME COURT: ITA NO.3617/MUM/2012 8 HELD, REVERSING THE DECISION OF THE HIGH COURT, THA T ONCE THE TRIBUNAL FOUND THAT THE ITO HAD NOT GIVEN TO THE AS SESSEE PROPER OPPORTUNITY OF BEING HEARD, THAT THE ASSESSEE COULD HAVE PLACED THE EVIDENCE BEFORE THE APPELLATE AUTHO RITY OR BEFORE THE TRIBUNAL WAS REALLY OF NO CONSEQUENCE FOR IT WAS THE ASSESSMENT ORDER THAT COUNTED , AND THAT ASSESSMENT ORDER HAD TO BE MADE AFTER THE ASSESSEE HAD BEEN GIVEN A REASONABLE OPPORTUNITY OF BEING HEARD. THUS, HONBLE SUPREME COURT ACCORDINGLY SET ASIDE T HE ORDERS OF THE HIGH COURT, THE TRIBUNAL AND THE COMMISSIONE R (APPEALS) AND REMANDED THE MATTER TO THE AO FOR FRESH CONSIDE RATION, REVERSING THE DECISION OF THE DELHI HIGH COURT. 6.5. WE THUS FIND THAT, AS PER LAW THE OPPORTUNITY OF H EARING IN THE ORIGINAL ASSESSMENT PROCEEDINGS BEFORE THE AO CANNO T BE SUBSTITUTED BY THE LD. CIT(A) , IN ABSOLUTE TERMS. IN OUR CON SIDERED OPINION, IF THE ASSESSEE IS ABLE TO DEMONSTRATE THAT THERE WAS LACK OF EFFECTIVE OPPORTUNITY OF HEARING BEFORE THE AO, HE DESERVES F RESH OPPORTUNITY. 7. APART FROM THIS, IT HAS BEEN SUBMITTED BY THE LD. C OUNSEL THAT ON MERITS OF THE ISSUE INVOLVED ALSO, THE ORDER OF LD. CIT(A) HAS BECOME CONTRARY FOR THE REASONS THAT THE SOLE CASE LAW RELIED BY THE LD. CIT(A) WHILE ADJUDICATING THE APPEAL HAS BEEN R EVERSED BY THE HONBLE TRIBUNAL ON THE BASIS OF THE JUDGMENT OF TH E HONBLE HIGH COURT, AND THEREFORE FRESH ADJUDICATION OF THIS CA SE IS REQUIRED FOR THIS REASON, AS WELL. ITA NO.3617/MUM/2012 9 7.1. WE HAVE CONSIDERED THIS ARGUMENT ALSO. THE BRIEF F ACTS OF THE CASE ARE THAT THAT THE ASSESSEE COMPANY WAS APP OINTED BY THE MUMBAI NASIK EXPRESSWAY LIMITED (MNEL) TO PROVIDE P ROJECT ADVISORY SERVICES IN RESPECT OF THE PROJECT FOR IMP ROVEMENT, OPERATION AND MAINTENANCE, REHABILITATION AND STREN GTHENING OF EXISTING TWO LANE ROAD AND WIDENING IT TO FOUR LANE IN THE STATE OF MAHARASHTRA ON BUILDING OPERATE AND TRANSFER (BOT) BASIS, AWARDED TO MNEL BY NATIONAL HIGHWAYS AUTHORITY OF INDIA (NH AI). THE ASSESSEE HAD RECEIVED A SUM OF RS.4,97,43,408/- AS CONSIDERATION FROM MUMBAI NASIK EXPRESSWAY LIMITED, OUT OF WHICH IT EX CLUDED PROPORTIONATE EXPENSES OF RS.98,13,520/- AND CLAIMED DEDUCTION U/S 80IA ON THE BALANCE SUM OF RS.3,99,29,888/-, AND FILED ITS RETURN OF INCOME ON 31.10.2007 DECLARING TOTAL INCOME AT RS.6,25,87,573/-. THE ASSESSMENT U/S 143(3) OF THE ACT WAS COMPLETED ON 29.12.2009 ASSESSING THE TOTAL INCOME AT RS.10,25,17,460/- DISALLOWING DEDUCTION U/S 80IA OF THE ACT TO THE TUNE OF RS.3,99,28,888/-. THE A.O DID NOT AGREE WITH THE CONTENTIONS OF THE ASSESSEE IN VIEW OF THE EXPLANATION INSERTED TO SECTION 80LA (4) OF THE ACT WITH RETROSPECTIVE EFFE CT FROM 01.04.2000, ON THE GROUND THAT THE ASSESSEE COMPANY HAD EXECUTED A SUB-CONTRACT ON BEHALF OF MUMBAI NASIK EXPRESSWAY LTD. AND THEREFOR E THE ASSESSEE COMPANY DID NOT FULFIL THE CONDITION LAID DOWN IN C LAUSE (I)(B) TO SUB-SECTION (4) OF SECTION 80LA OF THE ACT. BY RELYING ON THE D ECISION OF THE TRIBUNAL IN THE CASE OF M/S B.T. PATIL & SONS BELGAUM VS ACIT, THE AO DENIED THE DEDUCTION U/S 80IA OF THE ACT AMOUNTING TO RS.3, 99,29,888/- 7.2. BEING AGGRIEVED, THE ASSESSEE CONTESTED THE APPEAL BEFORE THE LD. CIT(A), WHEREIN IT WAS SUBMITTED DURING THE Y EAR UNDER ITA NO.3617/MUM/2012 10 CONSIDERATION THE ASSESSEE WAS ENGAGED IN THE BUSIN ESS OF INFRASTRUCTURE DEVELOPMENT, OPERATION AND MAINTENA NCE, PROVIDING OF ADVISORY SERVICES AND INVESTMENT IN INFRASTRUCTURE DEVELOPMENT ACTIVITIES. BUT, LD. CIT(A) DID NOT ACCEPT THE SUB MISSIONS OF THE ASSESSEE AND CONFIRMED THE ACTION OF THE AO IN NO T GIVING BENEFIT OF SECTION 80IA AND EXPLANATION TO SECTION 80IA INSERT ED BY FINANCE ACT, 2009 TO SECTION 80IA(13) WITH RETROSPECTIVE EF FECT FROM 1.4.2000. AFTER ANALYSING THE FACTS OF THE CASE, IT WAS HELD BY HIM THAT THE NATURE OF WORK CARRIED OUT BY THE ASSESSE E IN RELATION TO DEVELOPMENT OF THE PROJECT WAS SIMILAR TO A WORKS CONTRACT AND THAT THE NATURE OF WORK CARRIED OUT BY THE ASSESSEE COM PANY DID NOT FULFIL THE REQUIREMENT OF SECTION 80IA (4) OF THE ACT. WHILE HOLDING SO, HE RELIED UPON THE DECISION OF THE TRIBUNAL IN B. T. PATIL & SONS BELGAUM CONSTRUCTIONS PVT. LTD (SUPRA). IT WAS HEL D BY HIM THAT THE RATIO OF THIS DECISION WAS SQUARELY APPLICABLE TO T HE FACTS OF THE CASE OF THE ASSESSEE AND ACCORDINGLY, THE BENEFIT OF DED UCTION U/S 80IA (4) WAS DENIED BY HIM. 7.3. IT IS THUS NOTED THAT BOTH THE AUTHORITIES BELOW H AD RELIED UPON THE JUDGMENT IN B.T. PATIL & SONS BELGAUM CONSTRUCT IONS PVT. LTD (SUPRA), WHILE DECIDING THIS ISSUE AGAINST THE ASSE SSEE. IN A SUBSEQUENT DEVELOPMENT, THIS JUDGMENT HAS BEEN CHAN GED AT THE STAGE OF TRIBUNAL ITSELF. IN FACT, AN APPEAL WAS F ILED AGAINST THE EARLIER ORDER OF THE TRIBUNAL BEFORE THE HONBLE BO MBAY HIGH COURT BY THE AFORESAID COMPANY NAMELY B.T. PATIL & SONS B ELGAUM CONSTRUCTIONS PVT. LTD (SUPRA). HONBLE HIGH COUR T SENT THE MATTER BACK TO THE TRIBUNAL AND DIRECTED THAT WHILE CONSID ERING THE MATTER ITA NO.3617/MUM/2012 11 AFRESH THE TRIBUNAL WILL TAKE INTO CONSIDERATION AL L THE DECISIONS INCLUDING THAT OF BOMBAY HIGH COURT IN THE MATTER OF CIT VS ABG HEAVY INDUSTRIES LIMITED (2010) 322 ITR 323 (BOM) A ND ALL THE CONTENTIONS OF THE SAID ASSESSEE WERE KEPT OPEN. SUBSEQUENTLY, FRESH ORDER WAS PASSED BY THE TRIBUNAL IN B.T. PATI L & SONS BELGAUM CONSTRUCTIONS PVT. LTD(SUPRA) DATED 28.2.2013, WHER EIN IT WAS HELD BY THE TRIBUNAL THAT THE ASSESSEE WAS ELIGIBLE FOR BENEFIT OF DEDUCTION U/S 80IA, THUS, TAKING VIEW CONTRARY TO THE VIEW T AKEN BY THE TRIBUNAL IN ITS EARLIER ORDER. THE RELEVANT PARA OF THE TRIBUNALS ORDER IS REPRODUCED BELOW FOR THE SAKE OF CONVENIEN CE: 14. IN THIS BACKGROUND, THE ASSESSEE COULD CERTAI NLY CLAIM THE DEDUCTIONS UNDER THE PROVISION OF SECTION 80IA. ONE HAS TO SEE THE SUBSTANCE AND NOT THE FORM. ESSENTIALLY, THOUGH IT WAS A JOINT VENTURE, IT WAS CONVERTED INTO ASSESSEE'S VEN TURE. THE OTHER VENTURER WITHDREW AND THE ENTIRE WORK WAS EXE CUTED BY THE ASSESSEE THOUGH IN THE NAME OF JOINT VENTURE. T HE JOINT VENTURE IS NOTHING BUT THE VENTURE OF THE ASSESSEE COMPANY AND THE OTHER PERSON NOT BEING A PARTY AFTER WITHDR AWING THE QUESTION OF JOINT VENTURE DOES NOT ARISE. THE VENTU RE WAS FULLY CARRIED OUT BY THE ASSESSEE AND IT WAS ENTIRELY EXE CUTED BY THE ASSESSEE COMPANY. TAKING THE SUBSTANCE OF THE TRANS ACTION, THE ASSESSEE ARE ENTITLED TO ALL THE PROFITS IN RES PECT OF THE CONTRACT EXECUTED BY THEM, HENCE THE ASSESSEE WOULD CERTAINLY BE ENTITLED TO DEDUCTION UNDER THE PROVISIONS OF 80 IA AS THEY HAVE FULFILLED ALL THE OTHER CONDITIONS. THIS VIEW GETS STRENGTH FROM DECISION IN THE CASE OF ITAT, INDORE BENCH, IN CASE OF AYUSH AJAY CONSTRUCTIONS LTD. (SUPRA). THUS, WHILE GIVING EFFECT ITA NO.3617/MUM/2012 12 TO THE OPINION OF THIRD MEMBER U/S 255(4) OF THE AC T, WE TAKE VIEW IN CONFORMITY WITH ORDER OF JURISDICTIONAL HIG H COURT IN CASE OF ABG HEAVY INDUSTRIES LTD. (SUPRA) AVAILABLE AT THIS TIME THOUGH CONTRARY TO THE OPINION EXPRESSED BY THE THI RD MEMBER. SO IN VIEW OF ABOVE DISCUSSION, FOLLOWING THE RATIO OF JURISDICTIONAL HIGH COURT IN CASE OF ABG HEAVY INDU STRIES LTD. (SUPRA), THE ASSESSING OFFICER IS DIRECTED TO ALLOW DEDUCTION U/S 80IA(4) OF THE ACT TO THE ASSESSEE WITH REGARD TO T HE PROJECTS IN QUESTION FOR BOTH THE YEARS. THE MATTER IS DISPO SED OFF ACCORDINGLY. 7.4 . IT IS FURTHER NOTED BY US THAT THE HONBLE JURISD ICTIONAL HIGH COURT IN THE CASE OF ABG HEAVY INDUSTRIES LIMITED ( SUPRA) HAS ALSO TAKEN THE VIEW IN FAVOUR OF THE ASSESSEE ON THIS IS SUE. 7.5. FROM THE ABOVE SAID DISCUSSIONS, IT IS CLEAR THAT THE CRUCIAL DEVELOPMENTS HAVE TAKEN PLACE HAVING A MATERIAL BEA RING ON THE LEGAL POSITION AS CONSIDERED BY THE LD. CIT(A) ON T HE BASIS OF JUDGMENT AVAILABLE AT THAT POINT OF TIME. IN OUR CONSIDERED OPINION, THIS MATTER NEEDS FRESH APPLICATION OF MIND AND HEN CE WE SEND THIS MATTER BACK TO THE FILE OF AO FOR FRESH ADJUDICATIO N OF THE MATTER. THE AO SHALL GIVE SUFFICIENT OPPORTUNITY TO THE ASS ESSEE AS PER LAW. HE WILL TAKE INTO CONSIDERATION ALL THE RELEVANT FA CTS AS WELL AS THE JUDGMENT AVAILABLE AT THAT POINT OF TIME INCLUDING THE JUDGMENT OF JURISDICTIONAL HIGH COURT IN THE CASE OF ABG HEAVY INDUSTRIES LIMITED (SUPRA) AND THE DECISION IN B.T. PATIL & SONS BELG AUM CONSTRUCTIONS PVT. LTD (SUPRA). THE ASSESSEE IS ALSO DIRECTED TO EXTEND REQUISITE CO- ITA NO.3617/MUM/2012 13 OPERATION IN SPEEDY DISPOSAL OF THE MATTER. THE AS SESSEE IS ALSO DIRECTED TO PLACE ALL THE REQUISITE MATERIAL AND DO CUMENTS AS CALLED FOR BY THE AO AND AO WILL TAKE DECISION AS PER LAW. 8. IN THE RESULT, THE APPEAL FILED ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED ACCORDINGLY ON 16 TH DECEMBER, 2015. $ % & '( ) 16 TH DECEMBER, 2015 SD/- SD/- (SAKTIJIT DEY) (ASHWANI TANEJA) JUDICIAL MEMBER ACCO UNTANT MEMBER % MUMBAI: 16 TH DEC, 2015. . . ./ SRL , SR. PS ! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. , ( ) / THE CIT(A)- CONCERNED 4. , / CIT CONCERNED 5. -. / , ! / , % / DR, ITAT, MUMBAI CONCERNED 0 / GUARD FILE. ( / BY ORDER, (ASSTT. REGISTRAR) ! / , % /ITAT, MUMBAI