ACIT, Cir-11(2), Kolkata, Kolkata V. M/s. Nap Construction Pvt. Ltd., Kolkata

ITA 597/KOL/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6178 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 28-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Retrospective amendment
• Section: 143(3); 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA [BEFORE HONBLE SHRI ABY. T. VARKEY, JM & SHRI M. BALAGANESH, AM ] I.T.A NOS. 597&598/KO L/2017 ASSESSMENT YEARS : 2009- 10 & 2010-11 ACIT, CIRCLE-11(2), KOLKATA -VS- M/S NA P CONSTRUCTION PVT. LTD. [PAN: AABCN 5454 B ] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI GOULEAN HANGS HING, CIT DR SHRI SALLONG YADEN, ADDL. CIT SR. DR FOR THE RESPONDENT : SHRI PRABIR KUMAR GHOSH , ADVOCATE DATE OF HEARING : 10.07.2018 DATE OF PRONOUNCEMENT : 13.07.2018 ORDER PER M.BALAGANESH, AM 1. THESE TWO APPEALS BY THE REVENUE ARISE OUT OF TH E COMMON ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-12, KOLKATA [IN SHORT THE LD CIT(A)] IN APPEAL NOS. 567 & 568/CIT(A)-12/KOL/CIRCLE-11/2014-15 DATE D 26.12.2016 AGAINST THE SEPARATE ORDERS PASSED BY THE ACIT, CIRCLE-11(2), KOLKATA [ IN SHORT THE LD AO] UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHOR T THE ACT) DATED 26.12.2011 & 28.12.2012 RESPECTIVELY FOR THE ASSESSMENT YEARS 2 009-10 & 2010-11 RESPECTIVELY. SINCE THE IDENTICAL ISSUE INVOLVED IN THESE APPEALS , THEY ARE TAKEN UP TOGETHER AND DISPOSED OFF BY THIS COMMON ORDER FOR THE SAKE OF C ONVENIENCE. 2 ITA NOS.597&598/KOL/2017 M/S NAP CONSTRUCTION PVT. LTD. A.YR.2009-10&2010-11 2 2. THE ONLY COMMON ISSUE TO BE DECIDED IN THESE APP EALS IS AS TO WHETHER THE LD CITA WAS JUSTIFIED IN ALLOWING DEDUCTION U/S 80IA AND 80 IB OF THE ACT IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. AT THE OUTSET, THE LD AR STATED THAT THE ISSUES UNDER DISPUTE ARE COVERED BY THE ORDER OF THIS TRIBUNAL IN ASSESSSEES OWN CASE IN ALL THE EARLIER YEARS AND THE LATEST OF THOSE ORDERS WERE PASSED BY THIS TRIBUNAL FOR THE ASST YE ARS 2005-06, 2006-07 AND 2007-08 IN ITA NOS. 1380-1382 / KOL/2012 DATED 24.3.2017. THE SAID ORDER OF THIS TRIBUNAL IS REPRODUCED BELOW FOR THE SAKE OF CONVENIENCE:- 2. IT IS NOTICED THAT AT THE TIME OF HEARING BEFOR E US NO ONE PRESENT ON BEHALF OF APPELLANT REVENUE. HOWEVER, AN APPLICATION VIDE DAT ED 08-03-2017 ( COPY OF THE SAME IS ON RECORD) WAS FILED BEFORE US SEEKING ADJOURNME NT STATING THAT, MR. ABHIJIT DUTTA, LD. ADDL.CIT(SR.DR) TO WHOM THE APPEALS WERE ASSIGN ED TO REPRESENT THE CASES BEFORE THE TRIBUNAL WAS DIRECTED TO SUPERVISE THE SURVEY O PERATION. THE LD.AR OF THE ASSESSEE HAS OBJECTED TO THE SAID ADJOURNMENT PETITION AND S UBMITTED THAT ALL THE THREE APPEALS AND THE ISSUE(S) THEREIN WERE COVERED BY THE ORDER DATED 16-11-07/12-06-2009 OF THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO. 1972/KOL /2007 FOR THE A.Y 2003-04 AND IN ITA NOS. 1487, 1488/KOL/08 FOR THE A.YS 2000-01 AND 2001-02 ( COPY OF THE SAME IS PLACED ON RECORD ) AND ARGUED THAT ALL THE APPEALS CAN BE DISPOSED OFF IN ABSENCE OF LD.DR. THEREFORE, WE REJECT THE SAID ADJOURNMENT AP PLICATION FILED BY THE APPELLANT REVENUE AND TAKING INTO CONSIDERATION THE EARLIER O RDER DATED 16-11-07/12-06-2009 OF THE TRIBUNAL IN ASSESSEES OWN CASE SUPRA, WE PROCE ED TO HEAR THE APPEALS AND DISPOSE OFF THE SAME ON MERITS BY A CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 3. IT IS ALSO NOTICED THAT IN ALL THE APPEALS THE A PPELLANT REVENUE HAS RAISED COMMON GROUNDS CHALLENGING THE ACTION OF CIT-A IN GRANTING BENEFIT U/SEC. 80IA OF THE ACT. THEREAFTER, THE REVENUE HAS FILED REVISED GROUNDS O F APPEAL QUESTIONING THE ORDER OF CIT-A IN DIRECTING THE AO TO ALLOW THE CLAIM OF ASS ESSEE FOR DEDUCTION U/S. 80IA AND 80IB OF THE ACT AS THE ISSUE INVOLVED IN THE ASSESS MENT PROCEEDINGS U/S. 147/143(3) OF THE ACT HAS NO RELEVANCE TO SEC. 80IA OF THE ACT IN THE FACTS AND CIRCUMSTANCES OF THE CASE. THEREFORE, THE ONLY ISSUE/QUESTION IS TO BE D ECIDED AS TO WHETHER THE CIT-A JUSTIFIED IN ALLOWING THE DEDUCTION DISREGARDING NO N FULFILLMENT THE CONDITIONS AS LAID DOWN IN SUB SECTION (10) OF SECTION 80IB OF THE ACT . 4. NOW WE SHALL TAKE UP THE APPEAL IN ITA NO. 1380/ KOL/2012 A.Y 2005-06 BY THE REVENUE. 5. THE ASSESSEE IS A COMPANY FILED ITS RETURN OF IN COME FOR THE A.Y 2005-06 ON 25-10- 2005. THEREAFTER, THE ASSESSEE FILED A REVISED RETU RN ON 13-03-06 DECLARING A TOTAL INCOME OF RS. NIL. IT IS OBSERVED THAT THE ASSESSEE CLAIMED DEDUCTION U/S. 80IB(10) 3 ITA NOS.597&598/KOL/2017 M/S NAP CONSTRUCTION PVT. LTD. A.YR.2009-10&2010-11 3 AMOUNTING TO RS.59,52,190/-. THE AO WAS OF THE VIE W THAT THE ASSESSEE BEING A CONTRACTOR MERELY EXECUTED THE WORKS CONTRACTS AWAR DED BY DIFFERENT GOVT/LOCAL AUTHORITIES AND AS SUCH THE ASSESSEE IS NOT ENTITLE D TO CLAIM ANY BENEFIT OF DEDUCTION U/S. 80IB(10) OF THE ACT. ACCORDINGLY, THE AO DISALLOWIN G THE SAME PASSED THE ASSESSMENT ORDER U/S. 143(3)/147 OF THE ACT ON 12-03-2009. 6. THE LD. AR OF THE ASSESSEE SUBMITS THAT THE AO D ID NOT CONSIDER THE CLAIM OF ASSESSEE IN PURSUANCE OF CLARIFICATION ATTACHED TO SECTION 8 0IA(13) AS INTRODUCED BY THE FINANCE ACT 2007 GIVING RETROSPECTIVE EFFECT W.E.F 1-4-2000 . THE CIT-A SOUGHT REMAND REPORT FROM THE AO REGARDING CONTENTIONS AND EVIDENCES AS PRODUCED BY THE ASSESSEE IN REMAND PROCEEDINGS. THE CIT-A CONSIDERING THE ASPEC TS AS NOTED BY THE AO AND BY RELYING ON VARIOUS DECISIONS OF HONBLE HIGH COURTS AND SUPREME COURT AND ORDERS OF THE KOLKATA TRIBUNAL DATED 12-06-09 AND DATED 16-11 - 2007 IN ITA NOS. 1487, 1488/KOL/08 AND IN ITA NO.1972/KOL/07 FOR THE AYS. 2000-01, 2001-02 & 2003-04 IN ASSESSEES OWN CASE DIRECTED THE AO TO ALLOW THE CL AIM OF ASSESSEE FOR DEDUCTIONS U/S. 80IA/80IB OF THE ACT. 7. WE FIND THAT THE LD.AR OF THE ASSESSEE AS RELIED ON THE ORDER/DECISION AS RENDERED BY THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE A.Y 200 3-04 SUPRA. THE FACTS, CIRCUMSTANCES AND THE ISSUE THEREIN ARE SIMILAR AND IDENTICAL TO THE PRESENT FACTS AND CIRCUMSTANCES OF THE CASE. WE ALSO FIND THAT THE CI T-A VIDE PARA 2.3 GIVEN DIRECTION TO THE AO AS UNDER:- 2.3 RESPECTFULLY FOLLOWING THE ORDERS OF THE HONB LE ITAT, KOLKATA DATED 12.06.2009 IN ITA NO. 1487/KOL/2008 & 1488/KOL/2008 FOR A.Y 20 00-01 &2001-02 AND ALSO THE ORDER OF THE HONBLE ITAT KOLKATA DATED 16.11.2007 IN ITA NO.1972/KOL/2007 FOR A.Y 2003-04 IN THE APPELLANTS OWN CASE, THE AO IS DIRE CTED TO ALLOW THE CLAIM OF THE APPELLANT FOR DEDUCTIONS U/S. 80IA AND 80IB. THESE GROUNDS OF APPEAL ARE ALLOWED. 8. WE ALSO FIND THAT THE TRIBUNAL VIDE ORDER DT. 16 -11-2007 IN ASSESSEES OWN CASE IN ITA NO. 1972/KOL/2007 FOR THE A.Y 2003-04 IDENTICAL ISSUE HAS DISPOSED OFF AS UNDER:- 6. ON CAREFUL ANALYSIS OF THE ORDERS PASSED BY THE DEPARTMENTAL AUTHORITIES, IT IS FOUND THAT THE AO, WHILE CONSIDERING THE CLAIM OF THE ASS ESSEE UNDER SECTION 80IA AND 80IB, HAS NOT PROPERLY CONSIDERED THE MATERIALS PLACED BY THE ASSESSEE BEFORE HIM. SO ALSO, THE AO HAS NOT CONSIDERED THE EFFECT OF THE CLARIFI CATION ATTACHED TO SECTION 80IA(13) INTRODUCED BY THE FINANCE ACT, 2007 W.E.F 1.4.2000. WHILE COMING TO THE CONCLUSION THAT THE ASSESSEE IS NOT ENTITLED FOR DEDUCTION CLA IMED BY HIM BUT THE CIT(A), WHILE ADJUDICATING THE APPEAL FILED BY THE ASSESSEE BEFOR E HIM, HAS, FIRST OF ALL, SOUGHT FOR THE REMAND REPORT FROM THE AO REGARDING THE CONTENTIONS RAISED BY THE ASSESSEE BEFORE HIM AND AFTER THREAD BARE CONSIDERING THE UNDISPUTED FA CTUAL ASPECTS AS BROUGHT ON RECORD BY THE AO IN THE LIGHT OF THE VARIOUS DECISIONS OF THE HONBLE HIGH COURTS AS WELL AS THE HONBLE APEX COURT AND THE CLARIFICATIONS ADDED BY THE FINANCE ACT, 2007 W.E.F 1.4.2000, HAS COME TO THE CONCLUSION THAT THE AO HA S NOT PROPERLY APPLIED THE STATUTORY LAW AS WELL AS JUDGEMENT LAW TO THE FACTS OF THE CA SE, WHILE ADJUDICATING THE CLAIM OF THE ASSESSEE UNDER SECTION I80IA AND 80IB. 4 ITA NOS.597&598/KOL/2017 M/S NAP CONSTRUCTION PVT. LTD. A.YR.2009-10&2010-11 4 6.1 THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT T HE CONCLUSION REACHED AT BY THE CIT(A) IS IN ACCORDANCE WITH THE PROVISIONS OF SECT ION 80IA AND 80IB COUPLED WITH THE CLARIFICATIONS GIVEN BY THE FINANCE ACT, 2007 WHICH IS MADE EFFECTIVE FROM 1.4.2000 COUPLED WITH THE RATIOS LAID DOWN BY VARIOUS HONBL E HIGH COURTS AS WELL AS THE HONBLE APEX COURT AND THUS WE ARE OF THE CONSIDERE D VIEW THAT THE CIT(A)S ORDER IS A WELL-REASONED ONE AND IN ACCORDANCE WITH THE DICTUM S LAID DOWN BY THE HONBLE JURISDICTIONAL HIGH COURT OF CALCUTTA. HONBLE MADR AS HIGH COURT AS WELL AS THE HONBLE APEX COURT REFERRED TOIN THE ORDER. THEREFO RE, UNDER THESE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT THE CIT(A)S ORDER IS NOT AT ALL SUFFERING FROM ANY INFIRMITY REQUIRING ANY I NTERFERENCE. SINCE, WE ARE AGREEING WITH THE REASONING GIVEN BY THE CIT(A) IN THE IMPUG NED ORDER, WHILE ALLOWING THE RELIEFS TO THE ASSESSEE, WE ARE NOT GIVING OUR OWN REASONS, RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE APEX COURT RENDERED IN THE CASE OF K.Y. PILLAI REPORTED IN 63 ITR 411. ACCORDINGLY, THE APPEAL OF THE DEPARTMENT IS HEREBY DISMISSED AS DEVOID OF MERITS. 7. IN THE RESULT, THE APPEAL OF THE DEPARTMENT IS H EREBY DISMISSED. 9. RESPECTFULLY FOLLOWING THE ABOVE CO-ORDINATE BEN CH DECISION OF THIS TRIBUNAL DT. 16-1- 2007 SUPRA , WE ARE OF THE OPINION THAT THE SAID OR DER DT. 16-11-07 IN ITA NO. 1972/KOL/2007 FOR THE A.Y 2003-04 IN ASSESSEES OWN CASE AS RELIED ON BY THE LD.AR OF THE ASSESSEE BEFORE US IS SQUARELY APPLICABLE TO TH E PRESENT FACTS AND CIRCUMSTANCES OF THE CASE.IN VIEW OF THE SAME, WE DO NOT FIND ANY RE ASON TO INTERFERE WITH THE IMPUGNED ORDERS OF THE CIT- A IN ALLOWING THE SAME AND IT IS JUSTIFIED. THEREFORE, THE GROUND(S) RAISED BY THE REVENUE IN ALL THE APPEALS ARE DISMIS SED. ITA NO.1381/KOL/2012 A.Y 2006-07 ( BY THE REVENUE) 10. IN VIEW OF THE DISCUSSION & DECISION RENDERED H EREINABOVE IN ITA NO. 1380/KOL/2012 FOR THE A.Y 2005-06(BY THE REVENUE), WE ALSO FIND THAT THE ISSUE, FACTS AND CIRCUMSTANCES IN ITA NO.1381/KOL/2012 FOR THE A Y 2006-07 (BY THE REVENUE) ARE SIMILAR AND IDENTICAL TO THE ISSUE RAISED IN ITA NO .1381/KOL/2012 FOR THE AY 2005-06). THEREFORE, FOLLOWING THE SAME VIEW, THIS ISSUE AS R AISED IN ITA NO. 1381/KOL/2012 FOR THE AY 2006-07 BY THE REVENUE IS DISMISSED. ITA NO.1382/KOL/2012 A.Y 2007-08 ( BY THE REVENUE) 11. IN VIEW OF THE DISCUSSION & DECISION RENDERED I N ITA NO. 1380/KOL/2012 FOR THE A.Y 2005-06(BY THE REVENUE), WE ALSO FIND THAT THE ISSU E, FACTS AND CIRCUMSTANCES IN ITA NO.1382/KOL/2012 FOR THE AY 2007-08 (BY THE REVENUE ) ARE SIMILAR AND IDENTICAL TO THE ISSUE RAISED IN ITA NO.1382/KOL/2012 FOR THE AY 200 5-06). THEREFORE, FOLLOWING THE SAME VIEW, THIS ISSUE AS RAISED IN ITA NO. 1382/KOL /2012 FOR THE AY 2007-08 BY THE REVENUE IS DISMISSED. 12. IN THE RESULT, ALL THE APPEALS FILED BY THE REV ENUE ARE DISMISSED. 5 ITA NOS.597&598/KOL/2017 M/S NAP CONSTRUCTION PVT. LTD. A.YR.2009-10&2010-11 5 THE LD DR WAS NOT ABLE TO SUBMIT ANY CHANGE OF FACT S DURING THE YEARS UNDER APPEAL OR ANY FACTS CONTRARY TO WHAT HAS BEEN STATED IN THE A FORESAID ORDERS. WE FIND THAT THE LD CITA HAD ALSO RELIED ON THE EARLIER TRIBUNAL ORDERS IN ASSESSEES OWN CASE FOR THE ASST YEARS 2000-01, 2001-02 AND 2003-04 PASSED ON THE SI MILAR ISSUES. HENCE WE FIND THERE IS NO REASON TO INTERFERE WITH THE SAID ORDERS OF T HE LD CITA. ACCORDINGLY, THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 4. IN THE RESULT, THE APPEALS OF THE REVENUE ARE DI SMISSED. ORDER PRONOUNCED IN THE COURT ON 13.07. 2018 SD/- SD/- [A.T. VARKEY] [ M.BALAGANESH ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 13.07.2018 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. ACIT, CIRCLE-11(2), KOLKATA, P-7, CHOWRINGHEE S QUARE, KOLKATA-700069. 2. M/S NAP CONSTRUCTION PVT. LTD., 31, KAYASTHA PAR A MAIN ROAD, KOLKATA-700078. 3. C.I.T(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVAT E SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHE S