M/s Taher Ali Industries & Projects (P) Limited, Hyderabad V. ACIT, Circle-2(3), Hyderabad

ITA 645/HYD/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 69860 (ITAT-HYDERABAD)
• Duration Of Justice: 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 02-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SHAKIR HUSAIN S HAIK
• Keywords: Business income
• Section: 143(3); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD B BENCH, HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NOS. 643 TO 648/HYD/13 ASST. YEARS: 2004-05 TO 2009-10 M/S. TAHERALI INDUSTRIES & PROJECTS -V- ACIT, CIR-2(3), (P) LTD., HYDERABAD. HYDERABAD. PAN:AABCT4110E (APPELLANT) (RESPONDENT) APPELLANT BY SHRI K.C. DEVDAS RESPONDENT BY SHRI SHAKIR HUSAIN S HAIK DATE OF HEARING 13-8-2013 DATE OF PRONOUNCEMENT 30-9-2013 ORDER PER SAKTIJIT DEY, J.M: THESE SIX APPEALS FILED BY THE SAME ASSESSEE ARE D IRECTED AGAINST COMMON ORDER DATED 12 TH FEB. 2013 PERTAINING TO ASSESSMENT YEARS 2004-05, 2005-06, 2006-07, 2007-08 , 2008-09 AND 2009-10 RESPECTIVELY. SINCE IDENTICAL I SSUE ARISES FOR CONSIDERATION IN ALL THESE APPEALS, THES E ARE CLUBBED TOGETHER AND DISPOSED OF BY THIS CONSOLIDAT ED ORDER FOR THE SAKE OF CONVENIENCE. 2. THE ONLY ISSUE ARISING FOR CONSIDERATION IN THE AFORESAID APPEALS IS RELATING TO NOT GRANTING DEDUCTION U/S 8 0IA OF THE 2 ITA NOS. 643 AND OTHERS OF 2013 TAHER ALI INDUSTRIES & PROJECTS HYDERABAD. ACT ON THE DISALLOWED PORTION OF EXPENDITURE CLAIME D AND ADDED TO THE BUSINESS INCOME. SINCE THE ISSUES AR E IDENTICAL AND FACTS ARE COMMON IN ALL THE APPEALS FOR THE SAK E OF CONVENIENCE, WE WILL DEAL WITH THE FACTS AS TAKEN F ROM THE FOLDER IN ITA NO.643/HYD/13 PERTAINING TO THE ASSE SSMENT YEAR 2004-05. 3. BRIEFLY THE FACTS ARE, THE ASSESSEE A PRIVATE LIMI TED COMPANY IS ENGAGED IN THE BUSINESS OF DEVELOPMENT O F INFRASTRUCTURE PROJECTS UNDER DRINKING WATER SUPPLY PROJECTS, IRRIGATION PROJECTS AND SANITATION PROJECTS. IN TH E IMPUGNED ASSESSMENT YEAR, THE ASSESSEE FILED ITS RETURN OF I NCOME ON 30-10-2004 DECLARING TOTAL INCOME OF RS.78,68,488/- AFTER CLAIMING DEDUCTION U/S 80IA (4) OF THE ACT. INITIAL LY, THE RETURN WAS PROCESSED U/S 143(1) SUBSEQUENTLY HOWEVE R THE ASSESSEES CASE WAS SELECTED FOR SCRUTINY BY THE AS SESSING OFFICER BY ISSUING A NOTICE U/S 143(2). DURING TH E SCRUTINY ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER ON EXAMINATION OF BOOKS OF ACCOUNTS NOTICED THAT THE ASSESSEE HAD CLAIMED HUGE EXPENDITURE TOWARDS SITE EXPENSES , LAYING EXPENSES, WELFARE EXPENSES AND MISC. EXPENSES ETC. ON FURTHER VERIFICATION OF THE BOOKS AND VOUCHERS, THE ASSESSING OFFICER NOTED THAT THE EXPENDITURE CLAIMED WAS ONLY SUPPORTED BY EXTERNAL VOUCHERS AND WAS MADE IN CASH . HE FURTHER NOTICED THAT THE EXPENDITURE CLAIMED IN RES PECT OF THE ASSESSEE IN RESPECT OF SUB-CONTRACT IS ALSO NOT VER IFIABLE. THE ASSESSING OFFICER NOTED THAT THE NET PROFIT ADM ITTED BY THE ASSESSEE WORKED OUT TO 5.75% WHEREAS THE NORMAL PROFIT IN THE PARTICULAR LINE OF BUSINESS IS 8% OF THE T URNOVER. THE 3 ITA NOS. 643 AND OTHERS OF 2013 TAHER ALI INDUSTRIES & PROJECTS HYDERABAD. ASSESSING OFFICER ON A OVER ALL CONSIDERATION OF TH E FACTS AND CIRCUMSTANCES OF THE CASE, MADE AN AD HOC DISALLOWA NCE OF RS.30 LAKH TOWARDS UN-VOUCHED EXPENDITURE UNDER VAR IOUS HEADS AND ADDED IT TO THE INCOME OF THE ASSESSED. FURTHER, THE ASSESSING OFFICER ALSO DISALLOWED THE DEDUCTION CLAIMED U/S 80IA OF THE ACT ON THE GROUND THAT THE ASSESSEE BEING A CONTRACTOR IS NOT ENTITLED FOR THE DEDUCTION U/S 80 IA OF THE ACT. ASSESSMENTS IN SIMILAR MANNER WERE ALSO COMP LETED FOR THE ASSESSMENT YEARS 2003-04, 2005-06 AND 2006-07. 4. THE ASSESSEE CHALLENGED THE ASSESSMENT SO MADE BEFORE THE FIRST APPELLATE AUTHORITY. THE FIRST APP ELLATE AUTHORITY HAVING CONFIRMED THE ASSESSMENT ORDER, TH E ASSESSEE WENT IN APPEAL BEFORE THE INCOME-TAX APPEL LATE TRIBUNAL. THE INCOME-TAX APPELLATE TRIBUNAL IN A C OMMON ORDER PASSED FOR THE AFORESAID ASSESSMENT YEARS DAT ED 21-1- 2011 DISPOSED OF ALL THE APPEALS. SO FAR AS THE ADD ITION MADE ON ACCOUNT OF UN-VOUCHED EXPENDITURES ARE CONCERNED , THE INCOME-TAX APPELLATE TRIBUNAL SUSTAINED SUCH ADDITI ON. HOWEVER, SO FAR AS THE ISSUE OF DEDUCTION CLAIMED U /S 80IA IS CONCERNED, THE INCOME-TAX APPELLATE TRIBUNAL REMIT TED THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER FOR CONSIDERING AFRESH THE ASSESSEES CLAIM OF DEDUCTION U/S 80IA O F THE ACT IN VIEW OF THE DECISION OF LARGER BENCH OF INCOME-T AX APPELLATE TRIBUNAL, MUMBAI IN THE CASE OF BT PATIL AND SONS BELGAUM CONSTRUCTION PVT. LTD. VS. ACIT IN ITA NO.1408/HYD/2003 DATED 26-10-2009. IN PURSUANCE TO THE DIRECTIONS OF THE INCOME-TAX APPELLATE TRIBUNAL, TH E ASSESSING OFFICER TOOK UP THE ASSESSMENT PROCEEDING S AGAIN 4 ITA NOS. 643 AND OTHERS OF 2013 TAHER ALI INDUSTRIES & PROJECTS HYDERABAD. AND PASSED AN ORDER U/S 143(3) READ WITH SECTION 14 7 AND 254 OF THE ACT ON 21-11-2011 BY AGAIN DISALLOWING ASSESSEES CLAIM OF DEDUCTION U/S 80IA(4)(1)(B) OF THE ACT. 5. THE ASSESSEE CHALLENGED THE AFORESAID ASSESSMENT ORDER BY PREFERRING AN APPEAL BEFORE THE CIT (A). APPEALS ON IDENTICAL ISSUE WERE ALSO FILED FOR THE ASSESSMENT YEARS 2005-06, 2006-07, 2007-08, 2008-09 AND 2009-10. S INCE ONLY ISSUE INVOLVED IN ALL THESE APPEALS WAS WITH R EGARD TO DEDUCTION CLAIMED U/S 80IA OF THE ACT, THE CIT (A) TOOK UP ALL THE APPEALS TOGETHER FOR DISPOSAL. THE CIT (A) AFT ER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND FOL LOWING THE DECISION OF THE LARGER BENCH OF INCOME-TAX APPE LLATE TRIBUNAL IN CASE OF BT PATIL AND SONS BELGAUM CO NSTRUCTION PVT. LTD. VS. ACIT (SUPRA) AS WELL AS SOME OTHER D ECISIONS OF INCOME-TAX APPELLATE TRIBUNAL DISPOSED OF ALL THE A PPEALS IN A COMMON ORDER DATED 13-7-2012 BY HOLDING THAT TH E ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S 80IA OF THE ACT AND ACCORDINGLY DIRECTED THE ASSESSING OFFICER TO WORK OUT THE DEDUCTION U/S 80IA OF THE ACT AS PER THE DIRECTIONS OF THE INCOME-TAX APPELLATE TRIBUNAL IN CASE OF M/S KMC CONSTRUCTIONS. IN PURSUANCE TO THE ORDER PASSED BY THE CIT (A), THE ASSESSING OFFICER PASSED A CONSEQUENTIAL O RDER ALLOWING DEDUCTION U/S 80IA OF THE ACT. HOWEVER, I N THE CONSEQUENTIAL ORDER PASSED, THE ASSESSING OFFICER D ID NOT ALLOW ANY DEDUCTION U/S 80IA OF THE ACT ON THE DIS ALLOWED PORTION OF THE EXPENDITURE INCURRED WHICH ADDED TO THE INCOME OF THE ASSESSEE. THE ASSESSEE BEING AGGRIEV ED OF THE 5 ITA NOS. 643 AND OTHERS OF 2013 TAHER ALI INDUSTRIES & PROJECTS HYDERABAD. CONSEQUENTIAL ORDER PASSED, PREFERRED AN APPEAL BEF ORE THE CIT (A). 6. THE CIT (A) DISMISSED THE APPEAL OF THE ASSESSEE BY A COMMON ORDER DATED 12-2-2013 PASSED FOR THE AFORESA ID ASSESSMENT YEARS BY HOLDING THAT SINCE THE ADDITION ON ACCOUNT OF UN-VOUCHED EXPENDITURE HAS REACHED ITS FINALITY AND THE ASSESSEE HAS NEVER RAISED THE ISSUE WITH RE GARD TO THE CLAIM OF DEDUCTION U/S 80IA ON THE DISALLOWED EXPENDITURE. IT WAS NEVER SUBJECT MATTER OF APPEAL BEFORE THE CIT (A) WHILE SHE WAS CONSIDERING THE EARLIER APPEALS OF THE ASSESSEE AGAINST THE ASSESSMENT ORDER PASSED U/ S 143(3) READ WITH SECTIONS 147 AND 254 OF THE ACT. THE CIT (A) OBSERVED THAT SINCE THE ISSUE WAS NEVER RAISED BEFO RE THE CIT (A) EARLIER, IT CANNOT BE RAISED AGAIN IN AN AP PEAL AGAINST THE CONSEQUENTIAL ORDER PASSED BY THE ASSESSING OFF ICER IN PURSUANCE TO THE DIRECTION OF THE CIT (A). THE CI T (A) RELYING UPON A CATENA OF JUDICIAL PRECEDENTS DISMIS SED THE APPEALS OF THE ASSESSEE FOR ALL THE AFORESAID ASSES SMENT YEARS. 7. THE LEARNED AUTHORISED REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT WHEN THE ASSESSEE HAD CLAIMED DEDUCT ION U/S 80IA OF THE ACT BY COMPUTING HIS INCOME HE DID NOT KNOW WHAT DISALLOWANCES WERE GOING TO BE MADE BY THE A SSESSING OFFICER, THEREFORE IT COULD NOT HAVE BEEN FORESEEN BY IT SO THAT IT COULD HAVE CLAIMED DEDUCTION U/S 80IA OF THE ACT ON THE ADDITIONS MADE ON ACCOUNT OF DISALLOWANCE OF UN -VOUCHED EXPENDITURE. THE LEARNED AUTHORISED REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE APPEAL PROVISIONS HAVE TO BE 6 ITA NOS. 643 AND OTHERS OF 2013 TAHER ALI INDUSTRIES & PROJECTS HYDERABAD. CONSIDERED LIBERALLY. IN THIS CONTEXT, THE LEARNED AUTHORISED REPRESENTATIVE FOR THE ASSESSEE RELIED UPON THE FOL LOWING DECISIONS:- I) PATEL AND COMPANY VS. CIT (161 ITR 568) II) CIT VS. BRAHM SWARUP TANDON AND CO.(283 I TR 320) III) CIT VS. ASHOKA ENGINEERING CO. AND OTHERS 194 ITR 645 IV) KISHAN CHAND VS. CIT (183 ITR 83) V) CIT VS. MAHALAKSHMI TEXTILE MILLS LTD. (66 ITR 710) VI) CIT VS. LATE BEGUM NOOR BANU ALLADIN (204 ITR 166) 8. THE LEARNED AUTHORISED REPRESENTATIVE FOR THE AS SESSEE FURTHER SUBMITTED THAT ANY DISALLOWANCE MADE OF EXP ENDITURE CLAIMED RESULTS IN ENHANCEMENT OF THE PROFIT. HENC E, THE ENHANCED PROFIT BEING PART OF BUSINESS INCOME, DEDU CTION U/S 80IA WOULD BE ALLOWABLE ON SUCH DISALLOWANCES. IN THIS CONTEXT, THE LEARNED AUTHORISED REPRESENTATIVE FOR THE ASSESSEE RELIED UPON THE DECISION OF HONBLE BOMBAY HIGH COURT IN CASE OF GEMPLUS JEWELLERY VS. CIT (330 IT R 175) AND THE DECISION OF INCOME-TAX APPELLATE TRIBUNAL, HYDERABAD BENCH IN CASE OF KOYA & CO. CONSTRUCTIONS LTD. (ITA NO.221/HYD/2009) DATED 22-3-2012. 9. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON TH E OTHER HAND, WHILE STRONGLY SUPPORTING THE ORDER OF THE CI T (A) 7 ITA NOS. 643 AND OTHERS OF 2013 TAHER ALI INDUSTRIES & PROJECTS HYDERABAD. SUBMITTED THAT THE CIT (A) HAD NO JURISDICTION TO D ECIDE THE ISSUE RAISED BY THE ASSESSEE IN THE APPEAL BEFORE H IM AS IT HAS ALREADY ATTAINED FINALITY BY VIRTUE OF THE EARL IER ORDER OF THE CIT (A) WHICH HAS NOT BEEN CHALLENGED BY THE AS SESSEE. 10. WE HAVE CONSIDERED RIVAL SUBMISSIONS OF THE PAR TIES AND PERUSED THE MATERIAL ON RECORD. WE HAVE ALSO APPLI ED OUR MIND TO THE DECISIONS RELIED UPON BEFORE US. AS CA N BE SEEN THE ONLY ISSUE FOR CONSIDERATION BEFORE US IS AS TO WHETHER THE ASSESSEE IS ELIGIBLE TO CLAIM DEDUCTION U/S 80I A OF THE ACT ON THE ADDITIONS MADE ON ACCOUNT OF UN-VOUCHED EXPE NDITURE AND WHETHER IT SHOULD BE TREATED AS PART OF THE BUS INESS INCOME OF THE ASSESSEE AND SECONDLY WHETHER THE ASS ESSEE HAS VALIDLY RAISED THIS ISSUE BEFORE THE CIT (A). BEFORE DECIDING THIS ISSUE, IT IS NECESSARY TO GIVE FACTU AL BACKDROP OF THE CASE CHRONOLOGICALLY. ON 15-12-2006, THE AS SESSING OFFICER FOR THE FIRST TIME COMPLETED THE ASSESSMENT U/S 143(3) OF THE ACT BY DISALLOWING A PART OF THE EXPE NDITURE AS WELL AS THE CLAIM MADE U/S 80IA OF THE ACT. THE AS SESSEE CHALLENGED THE ASSESSMENT ORDER BEFORE THE CIT (A) AND THE CIT (A) HAVING CONFIRMED THE ASSESSMENT ORDER, APPE ALS WERE PREFERRED BEFORE THE INCOME-TAX APPELLATE TRIB UNAL. APPEALS ON IDENTICAL ISSUE RELATING TO THE ASSESSME NT YEARS 2003-04, 2005-06 AND 2006-07 ALSO CAME UP BEFORE T HE INCOME-TAX APPELLATE TRIBUNAL. THE INCOME-TAX APPE LLATE TRIBUNAL DISPOSED OF ALL THE APPEAL OF THE ASSESSEE VIDE COMMON ORDER DATED 21-1-2011 PASSED IN ITA NOS.720/HYD/2007, 807/HYD/2009,843/HYD/08 AND 1482/HYD/08 BY UPHOLDING THE DISALLOWANCE MADE ON A CCOUNT 8 ITA NOS. 643 AND OTHERS OF 2013 TAHER ALI INDUSTRIES & PROJECTS HYDERABAD. OF UN-VOUCHED EXPENDITURE IN ALL THE ASSESSMENT YE ARS. HOWEVER, SO FAR AS ISSUE RELATING TO CLAIM OF DEDU CTION U/S 80IA OF THE ACT IS CONCERNED, THE INCOME-TAX APPELL ATE TRIBUNAL REMITTED THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER WITH THE FOLLOWING DIRECTION:- 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE LARG ER BENCH OF ITAT MUMBAI IN THE CASE OF B.T. PATIL AND SONS (SUPRA) W HEREIN IT WAS DECIDED THAT THE USE OF WORD 'DEVELOPING' IN JUXTAP OSITION TC INFRASTRUCTURE FACILITY IN SECTION 80- LA (4) OF TH E ACT INDICATES THAT WHAT IS ELIGIBLE FOR DEDUCTION UNDER THIS SUB-SECTION IS THE PROFITS AND QAINS DERIVED FROM THE DEVELOPMENT OF INFRASTRUCTURE FACI LITY AND NOT SOMETHING DE HORS IT. SO, IN ORDER TO BE ELIGIBLE F OR DEDUCTION UNDER SECTION 8OLA OF THE ACT, THE DEVELOPMENT SHOULD BE THAT OF INFRASTRUCTURE FACILITY AS A WHOLE AND NOT A PARTIC ULAR PART OF IT. IT MAY BE POSSIBLE THAT SOME PART OF THE DEVELOPMENT WORK IS ASSIGNED BY THE DEVELOPER TO SOME CONTRACTOR FOR DOING IT O N HIS BEHALF AND THAT FACTS STATED IN THE ORDER OF THE ASSESSING OFFICER IN HIS ARGUMENTS/WRITTEN SUBMISSIONS AS MENTIONED ABOVE. IT IS ALSO SUBMITTE D THAT THE AS: COMPANY HAS NOT CLAIMED DEDUCTION UNDER SECTION 80 LA OF THE, THE PROFITS FOR THE PROJECTS UNDERTAKEN BY THE ASSE SSEE ON SUB-CONTRACT BASIS. BUT, IT IS THE CONTENTION OF THE DEPARTMENT THAT THE ASSES ONLY A CIVIL CONTRACTOR AND NOT THE DEVELOPER. UNDER CIRCUMSTANC ES AND IN VIEW OF THE LATEST DECISION OF THE LARGER BE THE TRIBUNAL IN THE CASE OF B.T. PATIL [SUPRA], WE FEEL IT PROPER AND JUST TO REMIT THIS ISSUE BACK TO THE FILE OF THE ASSESSI NG OFFICER FOR CONSIDERATION AFTER GIVING A PROPER AND SUFFICIENT OPPORTUNITY 1 ASSESSEE OF BEING HEARD. IN VIEW OF THE ABOVE, THE GROUND RAISED ASSESSEE ON THIS ISSUE IS TREATED AS ALLOWED FOR ST ATISTICAL PURPOSE. 11. AS CAN BE SEEN FROM THE AFORESAID EXTRACTED PORTION, THE TRIBUNAL DIRECTED THE A.O. TO RECONSID ER THE 9 ITA NOS. 643 AND OTHERS OF 2013 TAHER ALI INDUSTRIES & PROJECTS HYDERABAD. CLAIM OF DEDUCTION UNDER SECTION 80IA ON INCOME DER IVED FROM INFRASTRUCTURE PROJECTS IN THE LIGHT OF THE I. T.A.T. SPECIAL BENCH DECISION IN THE CASE OF B.T. PATEL & SONS (SUPRA). IT IS FURTHER ELICITED FROM THE MATERIALS ON RECORD THAT IN THE FIRST ROUND OF LITIGATION BEFORE THE CI T (A) AND INCOME-TAX APPELLATE TRIBUNAL AGAINST THE ORIGINAL ASSESSMENT ORDER PASSED, THE ASSESSEE NEVER RAISED THE ISSUE OF ALLOWABILITY OF DEDUCTION U/S 80IA ON THE DISALLOWED EXPENDITURES. THEREFORE, THIS PARTICULAR ISSUE NEV ER AROSE FOR CONSIDERATION IN THE ASSESSMENT PROCEEDING IN PURSU ANCE TO DIRECTION OF THE INCOME-TAX APPELLATE TRIBUNAL. 12. PURSUANT TO THE DIRECTION OF THE INCOME-TAX APPELL ATE TRIBUNAL, THE ASSESSING OFFICER TOOK UP THE ASSESSM ENT PROCEEDINGS AND, HE COMPLETED THE ASSESSMENT BY DIS ALLOWING THE CLAIM OF DEDUCTION U/S 80IA OF THE ACT. AGAINST T HE ASSESSMENT ORDER SO PASSED, THE ASSESSEE PREFERRED APPEAL BEFO RE THE CIT (A). THE APPEAL FILED BEFORE THE CIT (A) WAS ONLY ON THE ISSUE OF DENIAL OF DEDUCTION CLAIMED U/S 80IA OF THE ACT. T HE CIT (A) AS ALREADY STATED HEREIN BEFORE, ALLOWED THE APPEALS O F THE ASSESSEE ON THE ISSUE OF CLAIM OF DEDUCTION U/S 80IA OF THE ACT BY HOLDING THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S 80I A AND DIRECTED THE ASSESSING OFFICER TO WORK-OUT THE SAME AS PER T HE DIRECTIONS OF I.T.A.T. IN THE CASE OF KMC CONSTRUCTIONS. AS CA N BE SEEN FROM GROUNDS RAISED BEFORE THE CIT(A), WHICH HAS BEEN RE PRODUCED IN PARAGRAPH 2.3 OF HER ORDER DATED 13.7.2012, THE ASS ESSEE NEVER RAISED THE ISSUE OF ALLOWABILITY OF DEDUCTION UNDER SECTION 80IA OF THE ACT ON THE DISALLOWED EXPENDITURE BEFORE THE CI T(A). AS THE ISSUE WAS NEVER A SUBJECT MATTER OF APPEAL BEFORE T HE CIT (A), SHE HAS NOT DEALT WITH IT BY ISSUING ANY DIRECTION TO THE A.O. TO 10 ITA NOS. 643 AND OTHERS OF 2013 TAHER ALI INDUSTRIES & PROJECTS HYDERABAD. ALLOW DEDUCTION US. 80IA ALSO ON THE EXPENDITURE DI SALLOWED. THEREFORE, IN THE CONSEQUENTIAL ORDER PASSED BY THE A.O. WHILE GIVING EFFECT TO THE DIRECTIONS OF THE CIT (A), HE ALLOWED DEDUCTION UNDER SECTION 80IA ON THE INCOME DERIVED FROM INFRASTRUCTURE PROJECT. AT THE COST OF REPETITION, WE WOULD LIKE TO OBSERVE THAT THE ISSUE OF ALLOWABILITY OF DEDUCTION UNDER SECTION 80IA ON EXPENDITURE DISALLOWED WAS NEITHER A SUBJEC T MATTER OF APPEAL BEFORE THE I.T.A.T. NOR BEFORE THE CIT(A) IN THE APPEAL FILED AGAINST THE RE-ASSESSMENT ORDER. THEREFORE, I N OUR VIEW, THE ASSESSEE CANNOT ENLARGE THE SCOPE OF THE APPEAL, TH AT TOO AGAINST A CONSEQUENTIAL ORDER, BY RAISING A TOTALLY NEW ISS UE WHICH WAS NEVER RAISED IN EARLIER PROCEEDINGS BEFORE DIFFEREN T AUTHORITIES. THE THIRD MEMBER DECISION OF THE I.T.A.T. IN THE CA SE OF SUDERSHAN KUMAR VS. ITO 62 ITD 243 AND DECISION OF THE HONBLE ANDHRA PRADESH HIGH COURT IN THE CASE OF CIT VS. KR ISHNA MINING CO. (107 ITR 702) SUPPORTS SUCH VIEW. SO FAR AS THE DECISIONS, RELIED UPON BY THE LEARNED A.R. ARE CONCERNED, ON C AREFUL EXAMINATION OF THOSE DECISIONS, WE FIND THEM IN-APP LICABLE TO THE FACTS OF THE PRESENT APPEAL. ALL THESE DECISIONS WE RE NOT ON THE ISSUE AS TO WHETHER AN ISSUE WHICH WAS NEVER RAISED IN THE EARLIER APPELLATE PROCEEDINGS CAN BE ALLOWED TO BE RAISED F OR THE FIRST TIME IN AN APPEAL PREFERRED AGAINST A CONSEQUENTIAL ORDER PASSED BY THE A.O. IMPLEMENTING THE DIRECTIONS OF THE CIT( A). IN FACT, THE DECISION OF THE HONBLE ANDHRA PRADESH HIGH COU RT IN CASE OF CIT VS. LATE BEGUM NOOR BANN ((SUPRA)) TO A CERTAIN EXTENT SUPPORTS THE VIEW TAKEN BY US. THE HONBLE JURISDIC TIONAL HIGH COURT IN THIS DECISION HELD THAT JURISDICTION OF TH E TRIBUNAL IS RESTRICTED TO THE SUBJECT MATTER OF APPEAL BEFORE T HE FIRST APPELLATE AUTHORITY. IN THE FACTS OF THE PRESENT CA SE, ALLOWABILITY OF CLAIM OF DEDUCTION UNDER SECTION 80IA ON THE DIS ALLOWED EXPENDITURE WAS NEVER A SUBJECT MATTER OF APPEAL BE FORE THE 11 ITA NOS. 643 AND OTHERS OF 2013 TAHER ALI INDUSTRIES & PROJECTS HYDERABAD. I.T.A.T. OR CIT(A) EARLIER. HENCE, ASSESSEES FRESH CLAIM IN THE APPEAL FILED AGAINST THE CONSEQUENTIAL ORDER COULD NOT HAVE BEEN ENTERTAINED BY THE CIT (A). IN AFORESAID VIEW OF TH E MATTER, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT (A) WHICH IS ACCORDINGLY CONFIRMED. THE GROUNDS RAISED ARE DISMI SSED. 13. SINCE THE FACTS AND ISSUES IN ALL OTHER APPEAL S ARE IDENTICAL, FOLLOWING THE REASONING GIVEN IN ITA NO.643/HYD/13 (SUPRA), WE DISMISS ALL THESE APPEALS ALSO. 14. IN THE RESULT, ALL THE APPEALS FILED BY THE ASS ESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 30-9-2013. SD/- ( CHANDRA POOJARI) ACCOUNTANT MEMBER SD/- (SAKTIJIT DEY) JUDICIAL MEMBER HYDERABAD, DATED THE 30 TH SEPT. 2013 COPY TO:- 1) M/S. TAHER ALI INDUSTRIES & PROJECTS PVT. LTD., TIR UMALA HEIGHTS, BEHIND SHOPPERS STOP, BEGUMPET, HYDERABAD. 2) ACIT, CIR-2(3), 8 TH FLOOR, B- BLOCK, IT TOWERS, AC GUARDS, HYDERABAD. 3) CIT (A)III, HYDERABAD. 4) CIT-II, HYDERABAD. 5.THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDERA BAD. JMR* 12 ITA NOS. 643 AND OTHERS OF 2013 TAHER ALI INDUSTRIES & PROJECTS HYDERABAD. *