M/s. Detibh Indiana J.V, Valsad V. The Income tax Officer,Ward-1, Valsad

ITA 4046/AHD/2008

• Counselvise Citation: 404620514 RSA 2008
• Duration Of Justice: 3 year(s) 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 29-12-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 15-12-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AWIJIT RAKSHIT
• Assessee Lawyers: S N SOPARKAR
• Keywords: Gift; Capital receipt
• Section: 44AD; 194C; 145

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD , .. !', #$ # % BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI B.P.JAIN, ACCOUNTANT MEMBER ./ I.T.A. NO.4046/AHD/2008 ( ' ' ' ' ' ' ' ' / / / / ASSESSMENT YEAR : 2005-06) M/S.DETIBH INDIANA J.V. A/1, MANISH APARTMENT TITHAL ROAD, VALSAD ' ' ' ' / VS. INCOME TAX OFFICER WARD-1 VALSAD, GUJARAT ( #$ ./ ) ./ PAN/GIR NO. : AAAAD 3126 F ( (* / // / APPELLANT ) .. ( +,(*/ RESPONDENT ) (* - #/ APPELLANT BY : SHRI S.N.SOPARKAR, A.R. +,(* . - # / RESPONDENT BY : SHRI AWIJIT RAKSHIT SR.D.R. '/ . 0$/ // / DATE OF HEARING : 29.12.2011 12' . 0$ / DATE OF PRONOUNCEMENT :20.1.2012 #3/ O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL AT THE BEHEST OF THE ASSESSEE WHICH HAS EMANATED FROM THE ORDER OF LEARNED CIT(APPEALS)-VAL SAD DATED 25/08/2008. GROUNDS RAISED ARE REPRODUCED BELOW:- 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING ESTIMATING PROFIT OF THE APPELLANT AT RS.2,76,238/- BY THE LEARNED ASSESSING OFFICER BY INVOKING PROVISIONS OF SECTION 40A(2)(B) OF THE INCOME TAX A CT, 1961. ITA NO. 4046/AHD/2008 M/S. DETIBH INDIANA J.V. VS. ITO ASST.YEAR 2005-06 - 2 - 2. THAT THE LEARNED CIT(APPEAL) ERRED IN LAW AND ON FACTS IN UPHOLDING REJECTION OF BOOK RESULTS BY THE LEARNED ASSESSING OFFICER U/S.145 OF THE ACT. 3. THAT THE LEARNED CIT (APPEAL) ERRED IN LAW AND ON FACTS IN APPROVING THE INVOCATION OF PROVISIONS OF SECTION 40(A)(IA) OF THE ACT BY THE LEARNED ASSESSING OFFICER, EVEN THOUGH T HE LEARNED ASSESSING OFFICER HAD NOT ALLOWED ANY DEDUCTION UND ER SECTION 30 TO 38 OF THE ACT WHILE ESTIMATING THE PROFIT OF THE APPELLANT AT RS.2,76,238/- AND SUBSEQUENTLY ASSESSING THE INCOME OF THE APPELLANT AT RS.55,24,770/- FOR THE YEAR UNDER APPE AL. 4. THAT THE LEARNED CIT (APPEAL) ERRED IN LAW AND ON FACTS IN IGNORING AMENDMENTS TO SECTION 40(A)(IA) MADE BY FI NANCE ACT, 2008 RETROSPECTIVELY W.E.F. 01-04-2005 WHILE APPROV ING APPLICATION OF PROVISION OF SECTION 40(A)(IA) OF TH E ACT BY THE LEARNED ASSESSING OFFICER WHILE ASSESSING THE INCOM E OF THE APPELLANT AT RS.55,24,770/-. 2. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING ASSESSMENT ORDER PASSED U/S.143(3) OF THE I.T. ACT, 1961 DATED 17/ 12/2007 WERE THAT THE ASSESSEE WAS SUBJECTED TO TAX FOR A.Y. 2005-06 UNDE R THE STATUS OF AOP. RETURN OF INCOME WAS FILED AT RS.NIL. IT WAS NOTE D BY THE AO THAT THE ASSESSEE-AOP IS ENGAGED IN THE BUSINESS OF CIVIL CO NSTRUCTION. THE AOP HAD UNDERTAKEN THE WORK OF KANDLA PORT TRUST, NIRMA N BUILDING, NEW KANDLA. THE GROSS CONTRACT RECEIPT WERE SHOWN AT RS.55,24,769/-. AO HAS ALSO NOTED THAT THE SAID KANDLA PORT TRUST HAD DEDUCTED THE TAX AT SOURCE ON THE SAID RECEIPTS. AN ANOTHER FACT HAS ALSO BEEN NOTED BY THE AO THAT THE ASSESSEE-AOP HAS TWO MEMBERS AS PER THE FOLLOWING SHARES RATIO HOLDING:- NAME OF THE MEMBER SHARE (I) M/S. DETIBH ENGINEERS (I) PVT.LTD. 97.75% (II) M/S. INDIANA BUILD 2.25% ITA NO. 4046/AHD/2008 M/S. DETIBH INDIANA J.V. VS. ITO ASST.YEAR 2005-06 - 3 - 3. THE AOP HAD PASSED -ON ITS ENTIRE RECEIPTS OF KA NDLA PORT TRUST IN THE HANDS OF AFOREMENTIONED TWO MEMBERS STATED TO B E AS SUB-CONTRACT PAYMENT. WHICH HAS RESULTED INTO NIL INCOME IN T HE HANDS OF THE AOP AND SO THE ENTIRE TDS AS CLAIMED AS REFUND. THE ASSESSEE WAS ASKED TO SUBMIT A COPY OF RETURN OF M/S.DETIBH ENGI NEERS (I) PVT.LTD., MEMBER OF AOP, AND FOUND THAT FOR A.Y. 2005-06 TOTA L SALES WERE RS.2,74,40,050/-, HOWEVER PROFIT WAS SHOWN AT RS.3, 97,324/- WHICH INCLUDED INCOME FROM OTHER SOURCES AT RS.3,20,190/- AND THEREFORE LEAVING A MEAGER AMOUNT OF RS.77,134/-, AS BUSINES S PROFIT, FROM THE SAID HUGE TURNOVER. IT HAS ALSO BEEN NOTED BY THE AO THAT THE RETURN OF THE SAID AOP- MEMBER WAS FILED AT MUMBAI. THE OBJ ECTION OF THE AO WAS THAT A SUB-CONTRACT WAS GIVEN BY THE ASSESSEE T O ITS MEMBERS. THOSE MEMBERS ARE THE PERSONS SPECIFIED U/S.40A(2)(B) OF IT ACT. THE AOP HAD PASSED ON THE ENTIRE AMOUNT TO ITS MEMBER WITHO UT RETAINING ANY PROFIT, THEREFORE CLEARLY HIT BY THE PROVISIONS OF SECTION 40A(2)(B) OF IT ACT. AO HAS ALSO OPINED THAT DUE TO THE SAID UNRE ASONABLE PAYMENT TO MEMBERS, THE BOOKS OF ACCOUNTS WERE NOT PROPERLY MA INTAINED BY THE ASSESSEE. THEREFORE, BY INVOKING THE PROVISIONS OF SECTION 145 THE BOOK RESULT WAS REJECTED. THEREAFTER, AO HAS REFERRED SECTION 44AD OF IT ACT SO AS TO APPLY A NET PROFIT RATE ON THE RECEIPTS OF THE ASSESSEE SINCE UNDISPUTEDLY THE ASSESSEE HAPPENED TO BE A CIVIL CO NTRACTOR. AS PER AO, THOUGH SECTION 44AD ENVISAGES THAT IN CASE OF AN AS SESSEE HAVING TURNOVER OF LESS THAN RS.40 LACS, A NET PROFIT @ 8% ON THE TURNOVER COULD BE TAKEN, BUT THE ASSESSEES TURNOVER HAS EXCEEDED THE SAID LIMIT OF TURNOVER. HENCE THE AO HAD HELD THAT IT WOULD BE FA IR AND REASONABLE TO ESTIMATE THE PROFIT @ 5% ON THE TOTAL TURNOVER WHIC H WAS CALCULATED AT RS.2,76,238/-. IT IS WORTH TO MENTION AT THIS JUNCT URE THAT THIS PROFIT WAS ITA NO. 4046/AHD/2008 M/S. DETIBH INDIANA J.V. VS. ITO ASST.YEAR 2005-06 - 4 - NOT FINALLY TAXED IN THE HANDS OF THE ASSESSEE BEC AUSE ALTERNATIVELY THE A.O. HAD APPLIED THE PROVISIONS OF AN ANOTHER SEC.4 0(A)(IA) AND THAT DISALLOWANCE WAS TAXED, RELEVANT DISCUSSION FOLLOWS . 3.1. AN ANOTHER POINT HAS ALSO BEEN RAISED BY THE A O THAT THE PAYMENT WAS MADE TO SUB-CONTRACTORS AND THE TAX DEDUCTED TH EREON WAS BELATEDLY DEPOSITED TO THE GOVERNMENT ACCOUNT. IT WAS FOUND BY THE AO THAT ON PAYMENT OF RS.55,24,769/- TO MEMBER-SUB-CONTRACTOR THE ASSESSEE DEDUCTED TAX AT SOURCE OF RS.61,878/- WHEN THE AMOU NT WAS CREDITED/PAID IN THE RESPECTIVE ACCOUNT ON 31.3.2005. HOWEVER, T HE AMOUNT SO DEDUCTED AS PER THE ACCOUNTS WAS IN FACT DEPOSITED IN GOVERNMENT ACCOUNT ON 9.6.2005, WHEN THE SAME OUGHT TO HAVE BEEN DEPOSITED ON OR BEFORE 31.5.2005. BY NARRATING THE PROVISIONS OF SECTION 40(A)(IA), IT WAS HELD BY THE AO THAT THE ASSESSEE HAD NOT DEPOSITED THE TAX WHICH WAS DEDUCTED U/S.194C OF IT ACT BEFORE THE EXPIRY OF TH E TIME PRESCRIBED U/S.200(1) OF IT ACT. IN THE RESULT, THE CLAIM OF DEDUCTION OF LABOUR CHARGES PAYMENT WAS HELD AS NOT ADMISSIBLE TO THE A SSESSEE. RESULTANTLY, THE ENTIRE PAYMENT WAS DISALLOWED. THE AO HAS CLAR IFIED THAT ON ACCOUNT OF THE ENTIRE AMOUNT OF DISALLOWANCE OF THE TOTAL R ECEIPTS RS.55,24,770/- NO SEPARATE ADDITION ON ACCOUNT OF ESTIMATED PROFIT WAS REQUIRED. ACCORDINGLY AN ASSESSMENT WAS MADE WHICH WAS CHALLE NGED BEFORE LD.CIT(A). 4. THE LD.CIT(A) HAS CALLED FOR A REMAND REPORT. THE BASIC FACTS, SUCH AS, THE ASSESSEE-AOP RECEIVED AN ORDER FROM KANDLA PORT TRUST AND THAT TAX WAS DEDUCTED BY THE SAID TRUST AND THAT THE AOP IS CONSTITUTED BY TWO MEMBERS, ONE OF THEM HAD 97.75% SHARE, NAMELY M /S.DETIBH ITA NO. 4046/AHD/2008 M/S. DETIBH INDIANA J.V. VS. ITO ASST.YEAR 2005-06 - 5 - ENGINEERS (I) PVT. LTD.. AND THAT SUB-CONTRACT PAYM ENT OF RS.55,24,769/- WAS PASSED ON TO THE SAID MEMBER. WE HAVE CAREFUL LY PERUSED THE IMPUGNED ORDER OF THE LD.CIT(A) AND WE HAVE NOTED T HAT THE FINDING OF LD.CIT(A) IS ONLY IN RESPECT OF ESTIMATION OF INCOM E BY APPLYING THE PROFIT RATE AT 5% ON THE TOTAL TURNOVER. WE HAVE FOUND THAT THERE WAS NO FINAL VERDICT IN RESPECT OF THE DISALLOWANCE MADE U /S.40(A)(IA) OF RS.55,24,769/-. IN FACT, THE TOTAL INCOME WAS ASSE SSED BY THE AO ON THE SAID AMOUNT. IT APPEARS THAT THE FIRST GROUND R AISED BEFORE LD.CIT(A) WAS NOT CORRECTLY ADDRESSED. IT APPEARS THAT THE L D.CIT(A) HAS GIVEN THE VERDICT ONLY IN RESPECT OF THE ADDITIONAL GROUND RA ISED BY THE ASSESSEE. THIS FACT IS EVIDENT FROM THE ORDER OF THE LD.CIT(A ) WHEREIN ON PAGE NOS.2 & 3 THE ASSESSEES GROUNDS AND ADDITIONAL GR OUNDS WERE REPRODUCED. FINALLY, LD.CIT(A) HAS HELD AS UNDER:- CONSIDERING THE RIVAL CONTENTIONS, I FOUND THE CON TENTIONS RAISED BY THE AR OF THE APP IS MORE OF A CONVENIENCE THAN LEGAL INTERPRETATION. SINCE, THE LAW IS AMENDED IN RESP ECT OF THE PROVISIONS OF SECTION 40A(IA) OF THE ACT, HE HAS CO NVENIENTLY SHIFTED HIS ARGUMENTS IN RESPECT OF THE APPLICABILITY OF TH E PROVISIONS OF SECTION 40A(IA) OF THE ACT AND TAKEN A PLEA THAT IN VOCATION OF THE PROVISIONS OF SECTION 40A(IA) AND ESTIMATION OF INC OME MADE BY THE AO IS NOT IN ACCORDANCE WITH THE LAW. THOUGH HE HA S REFERRED TO THE ACCOUNTING STANDARD (AS 7), I FOUND NO FORCE IN THE SAID ARGUMENTS. IT IS SURPRISING TO NOTE THAT IN THE AD DITIONAL GROUNDS OF APPEAL, HE HAS CONFIRMED THAT THE PAYMENT WAS MA DE TO THE SUB- CONTRACTORS. I FOUND AO HAS RIGHTLY PICKED UP THE ISSUE OF PAYMENT TO SUB-CONTRACTORS AND INVOKED THE PROVISIONS OF SE CTION 40A(IA), SO THAT HE COULD ESTIMATE THE INCOME OF THE APP. S INCE, THE AOP APP IS A JOINT VENTURE, THE PHRASE OF WORD ITSELF S UGGESTS THAT IT IS AN ASSOCIATION OF TWO OR MORE PERSONS TO CARRY OUT A SINGLE BUSINESS ENTERPRISE FOR PROFIT. EVEN IN THE CASE O F GENERAL JOINT VENTURE, THE SAME RULES OF PARTNERSHIP ARE APPLICAB LE AND AS PER DEFINITION OF JOINT VENTURE, THE NECESSARY ELEMENTS ARE (I) ITA NO. 4046/AHD/2008 M/S. DETIBH INDIANA J.V. VS. ITO ASST.YEAR 2005-06 - 6 - EXPRESS/IMPLIED AGREEMENTS, (II) COMMON PURPOSE AND (III) SHARING OF PROFIT OR LOSS. THEREFORE, THE AO HAS RIGHTLY R AISED AN ISSUE THAT THE PAP CARRIED OUT A JOINT VENTURE IS SUPPOSED TO OFFER AN INCOME IRRESPECTIVE OF APPROPRIATION OF INCOME AGAINST THE MEMBERS OR OTHERWISE. THE APP DID NOT OFFER ANY INCOME, THE E STIMATION OF INCOME MADE BY THE AO @ 5% ON THE TOTAL TURNOVER A ND CONSIDERING THE NATURE OF BUSINESS OF THE APP, I FO UND AO IS JUSTIFIED IN MAKING THIS ADDITION. THE ADDITION IS , THEREFORE, UPHELD . THE APPS GROUND NO.1 IS DISMISSED . 5. FROM THE SIDE OF THE ASSESSEE LD.AR MR.S.N.SOPA RAKR AND FROM THE SIDE OF THE REVENUE LD.SR.DR MR. AWIJIT RAKSHIT APPEARED. 6. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES, WE ARE OF THE CONSIDERED VIEW THAT THE ISSUES RAISED BY THIS APPE LLANT IN THE GROUNDS OF APPEAL REQUIRE READJUDICATION AT THE END OF THE LD. CIT(A). BEFORE US, A JOINT VENTURE AGREEMENT DATED 30 TH DAY OF JANUARY-2004 IS PLACED ON RECORD. THERE IS A SUPPLEMENTARY AGREEMENT; (I) SIGNED ON 8 TH DAY OF FEBRUARY-2005. THERE IS ONE MORE AGREEMENT IN RESP ECT OF THE SAID CONTRACT SIGNED BY A CONTRACTOR ON ONE HAND AND ON ANOTHER HAND SIGNED BY CHAIRMAN OF KANDLA PORT TRUST. THESE AGREEMENT S AND THE TERMS AND CONDITIONS LAID DOWN THEREIN ARE IMPORTANT SO AS TO EXAMINE THE JUSTIFICATION OF TRANSFER OF PROFIT BY THE APPELLAN T-AOP TO ITS MEMBER. THE AUTHORITIES BELOW HAVE NOT EXAMINED THE TERMS A ND CONDITIONS UNDER WHICH THE AOP HAD TRANSFERRED THE AMOUNT OF RS.55,2 4,769/- IN THE ACCOUNT OF ONE OF ITS MEMBER. FROM THE ORDERS OF T HE REVENUE AUTHORITIES, IT IS NOT EVIDENT THAT WHETHER THEY HA VE EXAMINED THE CORRECT NATURE OF THE PAYMENT AND THAT WHETHER THE NATURE OF PAYMENT WAS FROM A CONTRACTOR TO A SUB-CONTRACTOR. FIRST OF ALL, TH IS PRELIMINARY ENQUIRY HAS ITA NO. 4046/AHD/2008 M/S. DETIBH INDIANA J.V. VS. ITO ASST.YEAR 2005-06 - 7 - TO BE SATISFIED SO AS TO ARRIVE AT THE APPLICABILIT Y OF THE PROVISIONS OF SECTION 40(A)(IA) R.W.S. 194-C OF IT ACT. 6.1. IF ON AN INVESTIGATION AS PER OUR DIRECTION, T HE AO ARRIVES AT A CONCLUSION THAT THE PROVISIONS OF SECTION 194C ARE TO BE ATTRACTED THEN THE NEXT QUESTION IS THAT THE TAX DEDUCTED AT SOURCE OF RS.61,878/- AS ON 31.03.2005 WAS UNDISPUTEDLY DEPOSITED ON 9/06/2005 WAS WITHIN THE PRESCRIBED TIME SPECIALLY WHEN THE RETURN OF INCOME WAS FILED ON 29/10/2005. IT IS PERTINENT TO MENTION THAT TH E PROVISIONS OF SECTION 40(A)(IA) AND THE PROVISO ANNEXED HAD UNDERGONE FE W AMENDMENTS IN THE RECENT PAST. THE AO HAS TO ASCERTAIN THE CORRECT PROVISION OF LAW AS APPLICABLE FOR THE YEAR UNDER CONSIDERATION SO AS T O JUSTIFY THE INVOCATION OF THIS SECTION. IT IS NECESSARY TO PLACE ON RECO RD THAT THE HONBLE JURISDICTIONAL HIGH COURT AHMEDABAD IN TAX APPEAL N O.706 OF 2011 VIDE AN ORDER DATED 18/07/2011 IN THE CASE OF CIT V S. M/S.J.K.CONSTRUCTION CO. HAS HELD AS UNDER: FROM THE RECORD, IT EMERGES THAT FOR PAYMENT TO CO NTRACTOR, THE ASSESSEE HAD MADE DEDUCTION AS REQUIRED UNDER LAW F ROM TIME TO TIME AND IN PARTICULAR LATEST BY 31.3.2005. THIS I S CLEAR FROM CHART SUPPLIED BY THE ASSESSEE BEFORE CIT (APPEALS) WHICH WOULD ESTABLISH THAT DEDUCTION IN CASE OF SEVERAL CONTRAC TORS WERE MADE ON 31.3.2005. ALL SUCH AMOUNTS WERE DEPOSITED WITH THE GOVERNMENT ON OR AROUND 28.5.2005. IN BACKGROUND O F ABOVE UNDISPUTED FACTS, TRIBUNAL WAS OF THE OPINION THAT BY VIRTUE OF AMENDED PROVISIONS OF SECTION40(A)(IA) OF THE INCOM E TAX ACT, 1961, ASSESSEE HAS NOT BREACHED THE REQUIREMENT OF DEDUCTION AND DEPOSITING OF TDS. SECTION 40(A)(IA) OF THE ACT AS AMENDED WITH EFFECT FROM 1.4.2005 READ AS UNDER: ITA NO. 4046/AHD/2008 M/S. DETIBH INDIANA J.V. VS. ITO ASST.YEAR 2005-06 - 8 - (IA) ANY INTEREST, COMMISSION, OR BROKERAGE, (RENT , ROYALTY) FEES FOR PROFESSIONAL SERVICES OR FEES FOR TECHNICA L SERVICES PAYABLE TO A RESIDENT, OR AMOUNTS PAYABLE TO A CONT RACTOR OR SUB-CONTRACTOR, BEING RESIDENT, FOR CARRYING OUT AY WORK (INCLUDING SUPPLY OF LABOUR FOR CARRYING OUT ANY WO RK), ON WHICH TAX IS DEDUCTIBLE AT SOURCE UNDER CHAPTER XVI I-B AND SUCH TAX HAS NOT BEEN DEDUCTED OR, AFTER DEDUCTION, HAS NOT BEEN PAID ON OR BEFORE THE DUE DATE SPECIFIED IN SU B-SECTION (1) OF SECTION 139. PLAINLY SPEAKING, ASSESSEE HAD TO MAKE DEDUCTION BE FORE 31 ST MARCH OF THE YEAR IN QUESTION AND AS LONG AS SUCH A MOUNTS WERE DEPOSITED BEFORE LAST DATE OF FILING OF THE RETURN, REQUIREMENTS OF LAW WOULD BE FULFILLED. IT WAS ON THIS BASIS THAT TRIBUNAL WAS OF THE OPINION THAT THE ASSESSEE COMMITTED NO WRONG AND WA S THEREFORE, ENTITLED TO SEEK DEDUCTION OF RS.32,94,149/- FROM T HE INCOME WHICH AMOUNT THE ASSESSEE HAD DEDUCTED FROM PAYMENTS OF C ONTRACTORS AND HAD ALSO DEPOSITED WITH REVENUE BEFORE THE LAST DATE OF FILING OF THE RETURN. WE DO NOT FIND ANY ILLEGALITY IN OR DER OF TRIBUNAL. TAX APPEAL IS THEREFORE, DISMISSED. 6.2. NEXT IS THE QUESTION OF THE INVOCATION OF SECT ION 40A(2)(B) BY THE AO AND THEREAFTER APPLYING THE ESTIMATED PROFIT AT 5% ON THE SAID AMOUNT. FOR THE PURPOSE OF INVOCATION OF THIS SE CTION ONE OF THE ESSENTIAL INGREDIENT IS THAT WHERE AN ASSESSEE INCU RS ANY EXPENDITURE AND THE AO IS THE OPINION THAT SUCH AN EXPENDITURE IS EXCESSIVE, THEN THE UNREASONABLE AMOUNT IS NOT TO BE ALLOWED AS A DEDUC TION. BUT IN THE PRESENT CASE, WHETHER THE IMPUGNED PAYMENT TO ITS M EMBER WAS IN THE NATURE OF AN EXPENDITURE; HAS NOT BEEN CLEARLY ESTA BLISHED. TO ASCERTAIN AND DETERMINE THE NATURE OF PAYMENT THE CLAUSES OF THE AGREEMENT AND THE SURROUNDING CIRCUMSTANCES OF THE CASE ARE REQUIRED TO BE EXAMINED BY LD.CIT(A) IN THE LIGHT OF THE FACTS NARRATED BY THE AO. IN THIS CONTEXT, IT ITA NO. 4046/AHD/2008 M/S. DETIBH INDIANA J.V. VS. ITO ASST.YEAR 2005-06 - 9 - IS WORTH TO REFER A REMAND REPORT DATED 21/04/2008 FURNISHED BEFORE LD.CIT(A) WHEREIN IT WAS INFORMED THAT THE ASSESSEE HAD RECEIVED A CONTRACT FROM KANDLA PORT TRUST AND GAVE A SUB-CONT RACT TO DETIBH ENGINEERS (I) PVT.LTD. AND INDIANA BUILD. IN THIS REMAND REPORT, THE AO HAS COMMENTED THAT THOSE RECEIPTS WERE NOT CAPITAL RECEIPTS IN THE HANDS OF THE ASSESSEE. THE AO HAS ALSO RAISED A QUESTION QUOTE NOW QUESTION ARISES AS WHAT IS THE NATURE OF RECEIPTS WAS IT LOAN/ADVANCE/RELINQUISHMENT OF RIGHT/GIFT. ANSWER IS AS SIMPLE AS THAT THESE ARE PAYMENTS BY ASSESSEE TOWARDS SUB-CONTRACT FOR THE WORK EXECUTED FOR KANDLA PORT TRUST UNQUOTE. IN OUR CO NSIDERED VIEW, THIS ASPECT REQUIRES AN INDEPTH ADJUDICATION ON THE BASI S OF THE AGREEMENTS EXECUTED BETWEEN THE PARTIES AND THE CONSTITUTION O F THIS AOP ON THE BASIS OF WHICH THE ALLEGED AMOUNT WAS TRANSFERRED I N THE HANDS OF THE MEMBERS. ON ACCOUNT OF THESE REASONS, BOTH THE ISS UES RAISED BEFORE US VIDE ABOVE REFERRED FIVE GROUNDS ARE RESTORED BACK TO THE FILE OF LD.CIT(A) FOR DE NOVO ADJUDICATION IN THE LIGHT OF THE DIRECTIONS MADE HEREINABOVE. GROUNDS MAY BE TREATED AS ALLOWED ONL Y FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D BUT FOR STATISTICAL PURPOSES. SD/- SD/- ( .. !' ) ( ) #$ ( B.P. JAIN ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL ME MBER AHMEDABAD; DATED 20/ 01 /2012 40..', .'../ T.C. NAIR, SR. PS ITA NO. 4046/AHD/2008 M/S. DETIBH INDIANA J.V. VS. ITO ASST.YEAR 2005-06 - 10 - #3 . +5 6#5' #3 . +5 6#5' #3 . +5 6#5' #3 . +5 6#5'/ COPY OF THE ORDER FORWARDED TO : 1. (* / THE APPELLANT 2. +,(* / THE RESPONDENT. 3. 7 / CONCERNED CIT 4. 7() / THE CIT(A)-VALSAD 5. 5:; +' , , / DR, ITAT, AHMEDABAD 6. ;< =/ / GUARD FILE. #3' #3' #3' #3' / BY ORDER, ,5 + //TRUE COPY// > >> >/ // / ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION..16.1.2011 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 16.1.2011 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.20.1.12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 20.1.12 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER