ITO 12(1)(2), MUMBAI V. L & T HCC JOINT VENTURE, MUMBAI

ITA 8451/MUM/2011

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6863 (ITAT-MUMBAI)
• Duration Of Justice: 6 year(s) 5 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-06-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 14-07-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 13-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R P MEENA DR SHRI VIJAY MEHTA
• Assessee Lawyers: IN CIRCUMSTANCES OF CA SE
• Keywords: Advance ruling
• Section: 142(1); 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI R. C. SHARMA , AM AND SHRI AMARJIT SINGH, JM / I .T.A. NO. 8451 / MUM/ 201 1 ( / ASSESSMENT YEAR: 20 08 - 09 ) ITO 12(1)(2) R.NO. 116, 1 ST FLOOR, AAYAKA R BHAVAN, M.K. ROAD, MUMBAI - 400020. / VS. M/S. L&T HCC JOINT VENTURE L&T HOUSE, N.M. MARG, BALLARD ESTATE, MUMBAI - 400001. ./ ./ PAN/GIR NO. : AAAAL 0661 M ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING : 08 . 0 3 .201 8 / DATE OF PRONOUNCEMENT : 06 .0 6 . 201 8 / O R D E R PER AMARJIT SINGH, J M: THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 15 .0 9 .201 1 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 23 , MUMBAI [HEREINAFTE R REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 2008 - 09. 2 . THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: - 1 ON T HE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID. CIT(A) ERRED IN HOLDING THAT THE INCOME OF THE ASSESSEE IS LIABLE TO BE ASSESSED AS A SEPARATE INDEPENDENT ENTITY AND CAN NOT BE ASSESSED AS AN AOP. 1A WHILE DOING SO THE ID CIT(A) FAILED TO APPRECIATE THE FACT THAT THE ASSESSEE BEING THE JOINT VENTURE IT CAN BE TREATED AS AN AOP IN REVENUE BY : SHRI R. P . MEENA (DR) ASSESSEE BY: SHRI VIJAY MEHTA (AR) ITA NO. 8451 /M/201 1 A.Y.20 08 - 09 2 CONSONANCE WITH SECTION 2(31)(V)(IV) R.W. EXPLANATION TO SECTION 2 OF THE ACT AND IS LIABLE TO ASSESSED AS SUCH UNDER THE I.T. ACT. 2. ON THE FACTS AND IN THE CIR CUMSTANCES OF THE CASE AND IN TAW. THE ID. CIT(A) ERRED IN APPRECIATING THE FACT THAT THE CONTRACT HAS BEEN AWARDED TO THE JOINT VENTURE FROM NHAI AND JOINT VENTURE IS IN FACT ASSESSABLE AS AN AOP UNDER THE PROVISIONS OF I T. ACT. 3. ON THE FACTS AND IN TH E CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID CIT(A) ERRED IN IGNORING THE FACT THAT THE PROFIT ARISED FROM THE CONTRACT GOES JN THE HANDS OF THE JOINT VENTURE AND THE SAME IS DISTRIBUTED TO THE HANDS OF THE MEMBER OF THE JOINT VENTURE HENCE THE PROFIT WI LL BE ASSESSED TO AOP ONLY 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID. CIT(A) FAILED TO APPRECIATE THE FACT THAT THE FACT OF THE CASE ARE SIMILAR TO THE CASE OF GEOCONSULT ZT A GMBH (2003) 304 ITR 283 (AAR). 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID. CIT(A) FAILED TO APPRECIATE THE FACT THAT THE AGREED OBJECT WAS NOT TO PRODUCE INCOME AND THAT WITH THE INSERTION TO PROVISO TO SECTION 2(31), INGREDIENT TO PRODUCE INCOME IS NOT REQUIRED AND WHAT IS RE QUIRED IS COMMON BUSINESS PURPOSE AND COMMON MANAGEMENT. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID CIT(A) WHILE ALLOWING THE APPEAL OF THE ASSESSEE, IGNORED THE DECISION OF HON'BLE APEX COURT IN THE CASE OF ITO VS. ATCHAIH. 21 8 ITR 239 (SC) WHEREIN THE HON'BLE APEX COURT HELD THAT THERE IS NO OPTION EITHER FOR THE REVENUE OR THE ASSESSEE FOR ASSESSING THE MEMBERS DIRECTLY AS WAS POSSIBLE UNDER THE INDIAN INCOME TAX ACT, 1922 AND ALSO THE DECISION IN THE CASE OF CIT VS. INDIRA B ALAKRISHNA (1960) 39 ITR 546 (SC) WHICH CLEARLY DEFINED THE TAXABILITY OF INCOME IN THE STATUS OF AOP. 7. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID CIT(A) ERRED IN HOLDING THAT SECTION 194C IS NOT APPLICABLE IN THE CASE OF THE AS SESSEE AND DELETED THE ADDITION MADE U/S.40(A)(IA) FOR FAILURE ON THE PART OF THE ASSESSEE FOR NOT DEDUCTING TAX AT SOURCE U/S.194C OF THE I T. ACT WHILE MAKING PAYMENT ON THE CONTRACT RECEIPTS TO THE RESPECTIVE INDIVIDUAL CO - CONTRACTORS I.E. L&T AND HCC. 8. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 9. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND WHICH MAY BE NECESSARY. ITA NO. 8451 /M/201 1 A.Y.20 08 - 09 3 3 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME ON 29 .0 9 .20 08 DECLARING TOTA L INCOME TO THE TUNE OF RS.NIL / - . THE RETURN WAS PROCESSED U/S 143(1) OF THE ACT. THEREAFTER, THE CASE WAS SELECTED FOR SCRUTINY AND NOTICE U/S 143 ( 2 ) OF THE I.T. ACT, 1961 DATED 14.08.2009 WAS ISSUED AND SERVED UPON THE ASSESSEE. THEREAFTER, NOTICE U/S 142(1) OF THE ACT DATED 08.02.2010 WAS ALSO ISSUED AND SERVED UPON THE ASSESSEE. THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF CONSTRUCTION OF ROADS. DURING THE YEAR THE N ATIONAL HIGHWAY AUTHORITY OF INDIA (NHAI) AWARDED A CONTRACT FOR CONSTRUCTION OF ROAD AT JHARKHAND (KNOWN AS JHARKHAND ROAD PROJECT) TO THE AFORESAID JOINT VENTURE WHICH COMPRISED OF ( LARSEN & TOUBRO L&T AND HINDUSTAN CONSTRUCTION CO. LTD. HCC.) . A JOINT VENTURE BETWEEN L&T AND HCC WAS EXECUTED ON 02.05.2002. AS PER THE SAID AGREEMENT OF BOTH THE PARTIES, THE Y FORM ED A JOINT VENTURE TO BID FOR THE NATIONAL HIGHWAY PROJECTS AT JHARKHAND. THE JOINT VENTURE WAS CALLED L&T/HCC JOINT VENTURE. BOTH THESE PARTIES JOINED TOGETHER AS A CONSORTIUM TO QUALIFY FOR THE JOB, AS BOTH THE ORGANIZATIONS ARE NOT QUALIFIED INDIVIDUALLY FOR PARTICIPATING IN THE BID AND ALSO TO PROVIDE A SINGLE POINT INTERFACE TO NATIONAL HIGHWAY AUTHORITY OF INDIA (NHAI). BOTH THE CO - CONTRACTO RS IN THE SAID DIVISIBLE CONTRACT ARE INDIVIDUALLY CARRYING OUT THE SPECIFIC PORTION OF THEIR JOB AS MUTUALLY AGREED UPON FOR CONSTRUCTION OF ROAD AT JHARKHAND. AS PER THE JOINT VENTURE AGREEMENT, BOTH THE COMPANIES WOULD INDEPENDENTLY UNDERTAKE THEIR RESP ECTIVE PROJECT ACTIVITIES AND EACH MEMBER OF THE CONSORTIUM WOULD REALIZE ITS OWN PROFITS AFTER DEDUCTING THEIR COSTS. ON VERIFICATION OF THE RETURN OF INCOME , IT WAS NOTICED THAT THE ASSESSEE HAS FILED THE RETURN OF INCOME UNDER THE STATUS OF AOP. THE COM PANY HAS FORM ED AS A JOINT VENTURE COMPRISES OF LARSEN & TUBRO LTD. ITA NO. 8451 /M/201 1 A.Y.20 08 - 09 4 (L&T) AND HINDUSTAN CONSTRUCTION CO. LTD. (HCC). THE ASSESSEE DID NOT DEDUCT THE TAX WHILE DISTRIBUTING THE CONTRACT RECEIPT TO THE RESPECTIVE INDIVIDUALLY CONTRACTOR SUCH AS L&T & HCC. TH EREFORE THE NOTICE WAS GIVEN AND AFTER GETTING THE REPLY , AN AMOUNT OF RS. 13,94,22,302/ - ON WHICH THE TDS WAS NOT DEDUCTED U/S 40 (A)(IA) OF THE ACT WAS ADDED TO THE INCOME OF THE ASSESSEE AND THE TOTAL INCOME OF THE ASSESSEE WAS ASSESSED TO THE TUNE OF RS. 13,94,22,302/ - . FEELING AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WHO ALLOWED THE CLAIM OF THE ASSESSEE, THEREFORE, REVENUE HAS FILED THE PRESENT APPEAL BEFORE US. 4. ALL THE ISSUES ARE IN CONNECTION WITH THAT THE CONTROVERSY TO THE EFFECT T HAT THE WHETHER THE ASSESSEE AOP WORKED AS SUB - CONTRACTOR, T HEREFORE, THE JOINT VENTURE WAS UNDER OBLIGATION TO DEDUCT THE TDS IN VIEW OF PROVISION U/S 194C OR NOT. HOWEVER, THE AO WAS OF THE VIEW THAT THE CAPACITY OF THE AOP WAS A SUB - CONTRACTOR, T HEREFO RE, THE JOINT VENTURE WAS UNDER OBLIGATION TO DEDUCT THE TDS IN VIEW OF THE PROVISION 194C OF THE ACT AND THUS THE PAYMENT ON WHICH THE TDS WAS NOT DEDUCTED WAS LIABLE TO BE ADDED TO THE INCOME OF THE ASSESSEE AND ACCORDINGLY PASSED THE ORDER . HOWEVER, THE CIT(A) WAS OF THE VIEW THAT THE AOP WAS NOT IN THE CAPACITY OF SUB - CONTRACTOR, T HEREFORE, THE JOINT VENTURE WAS NOT UNDER OBLIGATION TO DEDUCT THE TDS WHILE MAKING THE PAYMENT HENCE THE PROVISION U/S 194C OF THE ACT IS NOT APPLICABLE AND ALLOWED THE CLAIM OF THE ASSESSEE. THE CIT(A) WHILE DECIDING THE CASE OF THE ASSESSEE PLACED RELIANCE UPON THE DECISION DELIVERED BY THE A UTHORITY FOR ADVANCE RULING IN CASE OF VANOORD ACZ BV (2001 - 248 ITR 399) . BEFORE GOING FURTHER, WE DEEMED IT NECESSARY TO ADVERT THE F INDING OF THE CIT(A) ON RECORD : - ITA NO. 8451 /M/201 1 A.Y.20 08 - 09 5 2.3 THE ASSESSMENT ORDER, SUBMISSIONS MADE FOR THE APPELLANT AND MATERIALS ON RECORD HAVE BEEN CONSIDERED. IN VANOORD ACZ BV, 'WHERE THE APPLICANT, A FOREIGN COMPANY, UNDERTOOK A CONSTRUCTION CONTRACT IN INDIA I N JOINT VENTURE WITH HCC, AN INDIAN COMPANY, AGREEING TO BEAR ITS OWN LOSS AND RETAIN ITS OWN PROFIT SEPARATELY, THE AUTHORITY FOR ADVANCE RULING HAS HELD THAT, 'THE PARTIES HAVE SPECIFICALLY RULED OUT: CONSTITUTION OF ANY PARTNERSHIP BETWEEN THEM. THERE I S NO SHARING OF PROFITS OR LOSS. THEY HAVE SPECIFICALLY PROVIDED IN THE AGREEMENT THAT EACH PARTY WILT BEAR ITS OWN LOSS AND RETAIN ITS PROFITS AS AND WHEN SUCH PROFITS OR LOSS ARISE. HAVING REGARD TO THE AGREEMENT, WE ARE OF THE VIEW THAT T HE APPLICANT CA NNOT BE TREATED A S O PARTNERSHIP WHICH CAN ONLY BE CREATED BY ON AGREEMENT. NOR CAN IT BE TREATED AS AN AOP. IN ORDER TO CONSTITUTE AN AOP THERE WIN HAVE TO BE A COMMON PURPOSE OR COMMON ACTION AND THE OBJECT OF THE ASSOCIATION MUST BE TO PRODUCE INCOME JO INTLY. IT IS NOT ENOUGH THAT THE PERSONS RECEIVE THE INCOME JOINTLY. IN THE INSTANT CASE, EACH OF THE TWO PARTIES HAS AGREED TO BEAR ITS OWN LOSS OR RETAIN ITS OWN PROFIT SEPARATELY. BOTH HAVE AGREED TO EXECUTE THE JOB TOGETHER FOR - BETTER CO - OPERATION I N THEIR RELATIONSHIP WITH THE CHENNAI PORT TRUST , THE INTENTION WAS NOT TO CARRY OUT ANY BUSINESS IN COMMON, ONLY A PART OF THE JOB WILL BE DONE BY VOACZ ACCORDING TO ITS TECHNICALLY SKILL AND CAPABILITY. THE OTHER PART OF THE CONTRACT WILL BE ** EXECUTED BY THE HCC. THE APPLICANT'S SHORE OF WORK WAS VALUED AT RS.44,52,78,9201 - (17 PER CENT OF THE TOTAL VALUE). THE ASSOCIATION WITH HCC WAS NOT WITH THE OBJECT OF EARNING THIS INCOME BUT FOR CO - ORDINATION IN EXECUTING THE CO NTRACT SO THAT HCC COULD ALSO MA KE ITS OWN PROFIT. HCC'S WORK AND INCOME ARISING THEREFROM WAS QUITE SEPARATE AND INDEPENDENT OF THE APPLICANT'S WORK AND INCOME, IF THE COSTS INCURRED BY THE HCC OR THE APPLICANT WOS MORE THAN THEIR INCOME, EACH PARTY WILL HAVE TO BEAR ITS LOSS WITHOUT ANY A DJUSTMENT FROM THE OTHER PARTY. THE ASSOCIATION OF THE APPLICANT - COMPANY WITH HCC WAS UNDOUBTEDLY FOR MUTUAL BENEFIT BUT SUCH ASSOCIATION WILL NOT MAKE THEM A SINGLE ASSESSABLE UNIT AND LIABLE TO TOX AS AN AQP. FOR EXAMPLE, Q BUILDING CONTRACTOR MAY ASSOCI ATE WITH O PLUMBER AND AN ELECTRICIAN TO EXECUTE A BUILDING PROJECT. ALL THESE PERSONS ARE DRIVEN BY PROFIT - MAKING MOTIVE. BUT THAT BY ITSELF WILL NOT MAKE THE THREE PERSONS LIABLE TO BE TAXED AS AN AOP IF EACH ONE HAS A DESIGNATED AND INDEPENDENT ROLE TO PLAY IN THE BUILDING PROJECT. THE APPLICANT HAS STATED THAT THE APPLICANT HAS MADE ITS OWN ARRANGEMENT FOR EXECUTION OF WORK INDEPENDENT FROM THAT OF THE HCC, THERE IS NO CONTROL OR ITA NO. 8451 /M/201 1 A.Y.20 08 - 09 6 CONNECTION BETWEEN THE WORK DONE BY THE APPLICANT AND THE HCC. ON THE FACT S AS STATED HEREINABOVE, THE APPLICANT AND THE HCC CANNOT BE TREATED AS AN AOP FOR THE PURPOSE OF LEVY OF INCOME - TAX. THE APPLICANT WILL BE LIABLE TO BE TAXED AS A SEPARATE AND INDEPENDENT ENTITY. ' IN THE PRESENT CASE, THE JV AGREEMENT BETWEEN THE CO - CONT RACTORS SPECIFIES THE FACT THAT BOTH THE CO - CONTRACTORS WOULD UNDERTAKE RESPECTIVE PORTION OF THEIR JOBS AND WILL INCUR THEIR OWN COST AND EXPENSES, DEPLOY THEIR OWN ASSETS, RAISE THEIR OWN FINANCE FOR WORKING CAPITAL REQUIRED FOR COMPLETION OF THEIR RESPE CTIVE SCOPE OF WORK. EACH OF THE PARTIES HAVE AGREED TO EXECUTE SPECIFIC PART OF THE JOB ACCORDING TO ITS TECHNICAL SKILL AND CAPABILITY FOR SPECIFIED CONSIDERATION. THE CONTRACT AWARDED BY NHAI IS A DIVISIBLE CONTRACT. THERE IS NO CONTROL OR CONNECTION BE TWEEN THE WORK DONE BY THE 2 CO - CONTRACTORS WHO ARE MEMBERS OF THE JV. THE PARTIES TO THE JV HAVE ALSO SPECIFICALLY RULED OUT CONSTITUTION OF ANY PARTNERSHIP BETWEEN THEM. THUS, RESPECTFULLY FOLLOWING THE DECISION OF AUTHORITY FOR ADVANCE RULING IN VANOORD ACZ BV (SUPRA) ON SIMILAR FACTS, IN THE PRESENT CASE IT IS HELD THAT THE TWO PARTIES TO THE JV EXECUTING A CONSTRUCTION CONTRACT IN INDIA IN JOINT VENTURE, EACH PARTY AGREEING TO EXECUTE SPECIFIC PART OF THE JOB ACCORDING TO ITS TECHNICAL SKILL AND CAPABI LITY FOR SPECIFIED CONSIDERATION AND TO BEAR ITS OWN LOSS AND RETAIN ITS OWN PROFIT SEPARATELY CANNOT BE ASSESSED AS AN AOP; EACH PARTY IS LIABLE TO BE ASSESSED AS A SEPARATE AND INDEPENDENT ENTITY. THE GROUND IS THUS ALLOWED. GROUND NO. 2, 3 & 4 ARE INTER LINKED & TAKEN UP TOGETHER. GROUND NO. 2 IS THAT THE AO HAS ERRED IN INVOLVING PROVISION SECTION 194C OF THE I.T. ACT, 1961 IN RESPECT OF DISTRIBUTION OF CONTRACT RECEIPTS RECEIVED FROM NHAI TO THE MEMBERS. IN DOING SO, HE ARBITRARILY CONCLUDED THAT MEMBER S OF AOP ARE SUB - CONTRACTORS OF THE APPELLANT THEREBY NECESSITATING THE DEDUCTION U/S.194C OF THE I.T ACT. THE ASSESSING OFFICER FURTHER ERRED IN TREATING THE MEMBERS OF THE AOP AS SUB - CONTRACTORS INSTEAD OF CO - CON TRACTORS (JOINT CONTRACTORS). GROUND NO. 3 IS THAT THE ASSESSING OFFICER HAS ERRED IN DISALLOWING AN AMOUNT OF RS.13,94,22,3Q2/ - BY INVOKING PROVISIONS OF SECTION 4G(A)(IA) ON THE ALLEGED FAILURE OF NON - DEDUCTION OF TAX UNDER SECTION 194C OF THE INCOME - TAX ACT, 1961. ITA NO. 8451 /M/201 1 A.Y.20 08 - 09 7 GROUND NO.4 IS THAT THE ASSESSING OFFICER HAS ERRED IN INVOKING PROVISIONS OF SECTION 40(A)(IA) DISREGARDING THE FACT THAT APPELLANT HAS NOT CLAIMED DEDUCTION OF ANY EXPENDITURE IN ITS RETURN OF INCOME. 3.1 THE ASSESSING OFFICER NOTED THAT, THE ASSESSES HAS NOT DED UCTED TAX WHILE DISTRIBUTING THE CONTRACT RECEIPTS TO THE RESPECTIVE INDIVIDUAL CO - CONTRACTORS I.E, L&T & HCC. THEREFORE, THE ASSESSEE WAS ASKED TO SHOW CAUSE AS TO WHY PAYMENTS MADE TO THE MEMBER SHALL NOT BE DISALLOWED U/S 40(A)(IA) OF THE I.T. ACT. IN R ESPONSE THE ASSESSEE SUBMITTED THAT SINCE, THE PAYMENT BY JV TO THE MEMBERS BY WAY OF DIVISION OF THE SINGLE AMOUNT COLLECTED FROM NHAI IS NOT IN PURSUANCE OF ANY INDEPENDENT CONTRACT FOR WORK, TDS PROVISIONS U/S 194C ARE NOT APPLICABLE TO THE JOINT VENTUR E. WITHOUT PREJUDICE THAT SINCE NO EXPENSES ARE CLAIMED IN THE HANDS OF THE CONSORTIUM THE QUESTION OF INVOKING PROVISIONS OF SECTION '40(A)(IA) DOES NOT ARISE. THE ASSESSING OFFICER HELD THAT THE JV PARTNERS HAVE ON BEHALF OF THE UJV EXECUTED THE CONTRACT OR IN OTHER WORDS THEY ARE SUB - CONTRACTORS OF UJV AND INVOKING THE PROVISION OF SECTION 40(A)(IA), THE WHOLE EXPENSES/PAYMENTS MADE TO JV PARTNERS WERE DISALLOWED. 3.2 THE APPELLANT SUBMITTED THAT, THE AREA OF ACTIVITY OF THE RESPECTIVE CO - CONTRACTORS IS WELL DEFINED. THUS, ANY PAYMENT TO THE CONSORTIUM BY THE EMPLOYER WILL BE ONLY TOWARDS THE RESPECTIVE PORTION OF THE ASSIGNMENT EXECUTED BY EACH OF THE CO - CONTRACTOR. SINCE THE UJV WILL NOT BE PERFORMING ANY ACTIVITY ON ITS OWN, THERE IS NO PROFIT OR LOSS STATEMENT BEING PREPARED IN THE HANDS OF THE UJV, THE UJV WILL MERELY COLLECT THE PAYMENTS FROM THE EMPLOYER AND REMIT IT TO THE RESPECTIVE CO - CONTRACTOR IN ACCORDANCE WITH THE WORK PERFORMED. THE PAYMENT BY THE APPELLANT TO THE MEMBERS WAS BY WAY OF DIVIS ION OF THE SINGLE AMOUNT COLLECTED FROM NHAI AND WAS NOT IN PURSUANT OF ANY INDEPENDENT CONTRACT/SUB - CONTRACT AND, PROVISIONS OF SECTION 194C ARE NOT APPLICABLE. THE PAYMENTS ED BY THE CO - CONTRACTORS FROM THE APPELLANT WAS AN 'APPROPRIATION OF FUNDS RECEIV ED FROM NHAI AND THE SAME IS AKIN TO WITHDRAWAL OF TDS THEREFORE, DID NOT ARISE ON SUCH PAYMENTS. WITHOUT PREJUDICE THAT THE PRIMA FACIE CONDITION TO ATTRACT DISALLOWANCE U/S40(A)(IA) IS THAT ASSESSEE SHOULD HAVE CLAIMED THE DEDUCTION OF EXPENDITURE IN ITS RETURN OF INCOME AND ASSESSEE HAS NOT DEDUCTED TDS ON THE SAME. THE APPELLANT HAVE NOT CLAIMED DEDUCTION OF ANY ITA NO. 8451 /M/201 1 A.Y.20 08 - 09 8 EXPENDITURE IN RETURN OF INCOME, HENCE QUESTION OF DISALLOWANCE U/S 40(A)(IA) DOES NOT ARISE AT ALL. 3.3 IN VIEW OF THE FINDING GIVEN IN RESPEC T OF GROUND NO. 1, THAT EACH PARTY TO THE CONSORTIUM (JV) IS LIABLE TO BE ASSESSED AS A SEPARATE & INDEPENDENT ENTITY APPLICABILITY OF SECTION 194C & CONSEQUENTLY DISALLOWANCE U/S 40(A)(IA) WILL NOT SURVIVE. 5 . ON APPRAISAL OF THE ABOVE SAID FINDING, WE N OTICED THAT JOINT VENTURE HAS RECEIVED THE CONTRACT WORK B Y WAY OF AGREEMENT . T HE PARTIES HAVE ONLY THE RELATIONSHIP INTER - SEE IN RESPECT OF JOINT RESPONSIBILITY THAT EXISTED IN RELATION TO THE PRINCIPAL I.E. NATIONAL HIGHWAY AUTHORITY OF INDIA. IN FACT, B OTH THE PARTIES HAVE DECIDED TO EXECUTE THE CONTRACT ON THEIR OWN PART . THERE IS NOTHING ON RECORD TO W HICH IT CAN BE ASSUMED THAT EACH MEMBER WAS INTERFERING WITH THE WORK OF ANOTHER. T HE JOINT VENTURE IS THE MAIN CONTRACTOR AND THE MEMBERS ARE NOT SUB - CO NTRACTOR W HEN THE MEMBERS ARE NOWHERE FALLS WITHIN THE CATEGORY OF SUB - CONTRACTOR THEN THERE IS NO QUESTION OF DEDUCTION U/S 194C OF THE ACT AND THE QUESTION OF DISALLOWANCE U/S 40(A)(IA) OF THE ACT NOWHERE ARISE . UNDER THE JOINT VENTURE EACH PARTY WAS UND ER OBLIGATION TO EXECUTE ITS OWN WORK ACCORDING TO ITS TECHNICAL SKILL AND CAPABILITY FOR SPECIFIED CONSIDERATION AND TO BEAR ITS OWN LOSSES AND TO RETAIN ITS OWN PROFIT SEPARATELY. EACH PARTY IS LIABLE TO BE ASSESSED AS SEPARATE AND INDEPENDENT ENTITY. TH E CONTRACT AWARDED BY THE NHAI WAS A DIVISIBLE CONTRACT. THE JOINT VENTURE WAS HAVING SPECIFIC CONSTITUTION WITH REGARD TO EXECUTION OF WORK OF INDEPENDENT ENTITY. AT THE TIME OF ARGUMENT, THE LD. REPRESENTATIVE OF THE ASSESSEE HAS ALSO PLACED RELIANCE UPO N THE LAW SETTLED IN HYUNDAI ROTEM CO., REPORTED IN 323 ITR 277 AND THE DECISION OF THE HONBLE ITAT IN THE CASE OF ITO VS. UAN RAJU CONSTRUCTIONS IN ITA. NO. 344/M/VIZAG/2009 & ITA. NO. 77/VIZ/2010 DATED 13.05.2010 . ITA NO. 8451 /M/201 1 A.Y.20 08 - 09 9 S INCE THE FACTUAL POSITION OF THE PRESE NT CASE IS QUITE SIMILAR TO THE CASE DECIDED BY THE HONBLE ITAT VISAKHAPATNAM BENCH IN ITA. NO.344/VIZAG/2009 & 77/VIZ/2010, T HEREFORE, WE DEEMED IT NECESSARY TO ADVERT THE FINDING ON RECORD: - 6. WE HAVE HEARD THE PARTIES AND CAREFULLY PERUSED THE RECOR D. WE HAVE ALSO GONE THROUGH THE JOINT VENTURE PARTNERS AGREEMENT ENTERED BY THE PARTIES ON 20 - 10 - 2003 AND ALSO THE CODICIL ENTERED BETWEEN THEM. THE MAIN DISPUTE IS WITH REGARD TO THE ASSESS ABILITY OF INCOME, IF ANY, IN THE HANDS OF THE ASSESSEE AOP. T HE CASE OF THE AO IS THAT THE JOINT VENTURE AND ITS MEMBERS SHOULD BE TREATED AS SEPARATE PERSONS AND HENCE THE CONTRACT ALLOCATED TO THE MEMBERS SHOULD BE TREATED AS SUB - CONTRACTING. HOWEVER, THE CASE OF THE ASSESSEE IS THAT THE JOINT VENTURE HAS COME INTO EXISTENCE ONLY TO PROCURE AND WIN THE CONTRACTS AND SINCE THE CONTRACTS WERE ALLOCATED BETWEEN THE MEMBERS AND FURTHER THEY WERE EXECUTED SEPARATELY BY EACH OF THE MEMBERS, NO INCOME CAN BE SAID TO HAVE ARISEN IN THE HANDS OF THE ASSESSEE - AOP. 7. IN OUR COUNTRY, THE IMPLEMENTATION OF INFRASTRUCTURE PROJECTS IS TAKING PLACE IN A MASSIVE SCALE. IN THIS CONNECTION, GLOBAL TENDERS ARE INVITED. HENCE TWO OR MORE BUSINESS ENTERPRISES ARE JOINING HANDS BY FORMING A CONSORTIUM OF JOINT VENTURE IN ORDER TO GE T QUALIFIED FOR PARTICIPATING IN TENDER PROCESS. THEY REGULATE THEMSELVES, BY ENTERING INTO AN AGREEMENT, THE METHODOLOGY TO BE 7 8. THE HONBLE SUPREME COURT HAS MADE A DETAILED DISCUSSION ON THE CONCEPT OF JOINT VENTURE IN THE CASE OF FAZIR CHAND GULAT I VS. UPPAL AGENCIES PRIVATE LTD. (2008) 10 SCC 345. THE RELEVANT OBSERVATIONS ARE EXTRACTED BELOW: - 17. THIS COURT HAD OCCASION TO CONSIDER THE NATURE OF `JOINTVENTURE' IN NEW HORIZONS LTD VS. UNION OF INDIA [1995 (1) SCC 478). THIS COURT HELD : 'THE EXP RESSION 'JOINT VENTURE' IS MORE FREQUENTLY USED IN THE UNITED STATES. IT CONNOTES A LEGAL ENTITY IN THE NATURE OF A PARTNERSHIP ENGAGED IN THE JOINT UNDERTAKING OF A PARTICULAR TRANSACTION FOR MUTUAL PROFIT OR AN ASSOCIATION OF PERSONS OR COMPANIES JOINTLY UNDERTAKING SOME COMMERCIAL ENTERPRISE WHEREIN ALL CONTRIBUTE ASSETS AND SHARE RISKS. IT REQUIRES A COMMUNITY OF INTEREST IN THE PERFORMANCE OF THE SUBJECT MATTER, A RIGHT TO DIRECT AND GOVERN THE POLICY IN CONNECTION THEREWITH, AND DUTY, WHICH MAY BE ALT ERED BY ITA NO. 8451 /M/201 1 A.Y.20 08 - 09 10 AGREEMENT, TO SHARE BOTH IN PROFIT AND LOSSES. [BLACK'S LAW DICTIONARY; SIXTH EDITION, P.839]. ACCORDING TO WORDS AND PHRASES, PERMANENT EDITION, A JOINT VENTURE IS AN ASSOCIATION OF TWO OR MORE PERSONS TO CARRY OUT A SINGLE BUSINESS ENTERPRISE FOR PROFIT [P.117, VOL. 23].'[EMPHASIS SUPPLIED] THE FOLLOWING DEFINITION OF 'JOINT VENTURE' OCCURRING IN AMERICAN JURISPRUDENCE [2ND EDITION, VOL.46 PAGES 19, 22 AND 23] IS RELEVANT: 'A JOINT VENTURE IS FREQUENTLY DEFINED AS AN ASSOCIATION OF TWO OR MORE PER SONS FORMED TO CARRY OUT A SINGLE BUSINESS ENTERPRISE FOR PROFIT. MORE SPECIFICALLY, IT IS IN ASSOCIATION OF PERSONS WITH INTENT, BY WAY OF CONTRACT, EXPRESS OR IMPLIED, TO ENGAGE IN AND CARRY OUT A SINGLE BUSINESS VENTURE FOR JOINT PROFIT, FOR WHICH PURPO SE SUCH PERSONS COMBINE THEIR PROPERTY, MONEY, EFFECTS, SKILL, AND KNOWLEDGE, WITHOUT CREATING A PARTNERSHIP, A CORPORATION OR OTHER BUSINESS ENTITY, PURSUANT TO AN AGREEMENT THAT THERE SHALL BE A COMMUNITY OF INTEREST AMONG THE PARTIES AS TO THE PURPOSE O F THE UNDERTAKING, AND THAT EACH JOINT VENTURE MUST STAND IN THE RELATION OF PRINCIPAL, AS WELL AS AGENT, AS TO EACH OF THE OTHER COVERTURES WITHIN THE GENERAL SCOPE OF THE ENTERPRISE. JOINT VENTURES ARE, IN GENERAL, GOVERNED BY THE SAME RULES AS PARTNERSH IPS. THE RELATIONS OF THE PARTIES TO A JOINT VENTURE AND THE NATURE OF THEIR ASSOCIATION ARE SO SIMILAR AND CLOSELY AKIN TO A PARTNERSHIP THAT THEIR RIGHTS, DUTIES, AND LIABILITIES ARE GENERALLY TESTED BY RULES WHICH ARE CLOSELY ANALOGOUS TO AND SUBSTANTIA LLY THE SAME, IF NOT EXACTLY THE SAME AS THOSE WHICH GOVERN PARTNERSHIPS. SINCE THE LEGAL CONSEQUENCES OF A JOINT VENTURE ARE EQUIVALENT TO THOSE OF A PARTNERSHIP, THE COURTS FREELY APPLY PARTNERSHIP LAW TO JOINT VENTURES WHEN APPROPRIATE. IN FACT, IT HAS BEEN SAID THAT THE TREND IN THE LAW HAS BEEN TO BLUR THE DISTINCTIONS BETWEEN A PARTNERSHIP AND A JOINT VENTURE, VERY LITTLE LAW BEING FOUND APPLICABLE TO ONE THAT DOES NOT APPLY TO THE OTHER. THUS, THE LIABILITY FOR TORTS OF PARTIES TO A JOINT VENTURE AG REEMENT IS GOVERNED BY THE LAW APPLICABLE TO PARTNERSHIPS.' 'A JOINT VENTURE IS TO BE DISTINGUISHED FROM A RELATIONSHIP OF INDEPENDENT CONTRACTOR, THE LATTER BEING ONE WHO, EXERCISING AN INDEPENDENT EMPLOYMENT, CONTRACTS TO DO WORK ACCORDING TO HIS OWN MET HODS AND WITHOUT BEING SUBJECT TO THE CONTROL OF HIS EMPLOYER EXCEPT AS TO THE RESULT OF THE WORK, WHILE A JOINT VENTURE IS A SPECIAL COMBINATION OF TWO OR MORE PERSONS WHERE, IN SOME SPECIFIC VENTURE, A PROFIT IS JOINTLY SOUGHT WITHOUT ANY ACTUAL PARTNERS HIP OR CORPORATE DESIGNATION.' (EMPHASIS SUPPLIED) TO THE SAME EFFECT IS THE DEFINITION IN CORPUS JURIS SECUNDUM (VOL. 48A PAGES 314 - 315): 'JOINT VENTURE,' A TERM USED INTERCHANGEABLY AND ITA NO. 8451 /M/201 1 A.Y.20 08 - 09 11 SYNONYMOUS WITH JOINT ADVENTURE', OR COVENTURE, HAS BEEN DEFINED AS A SPECIAL COMBINATION OF TWO OR MORE PERSONS WHEREIN SOME SPECIFIC VENTURE FOR PROFIT IS JOINTLY SOUGHT WITHOUT ANY ACTUAL PARTNERSHIP OR CORPORATE DESIGNATION, OR AS AN ASSOCIATION OF TWO OR MORE PERSONS TO CARRY OUT A SINGLE BUSINESS ENTERPRISE FOR PROFI T OR A SPECIAL COMBINATION OF PERSONS UNDERTAKING JOINTLY SOME SPECIFIC ADVENTURE FOR PROFIT, FOR WHICH PURPOSE THEY COMBINE THEIR PROPERTY, MONEY, EFFECTS, SKILL, AND KNOWLEDGE........ AMONG THE ACTS OR CONDUCT WHICH ARE INDICATIVE OF A JOINT VENTURE, NO SINGLE ONE OF WHICH IS CONTROLLING IN DETERMINING WHETHER A JOINT VENTURE EXISTS, ARE: (1) JOINT OWNERSHIP AND CONTROL OF PROPERTY; (2) SHARING OF EXPENSES, PROFITS AND LOSSES, AND HAVING AND EXERCISING SOME VOICE IN DETERMINING DIVISION OF NET EARNINGS; ( 3) COMMUNITY OF CONTROL OVER, AND ACTIVE PARTICIPATION IN, MANAGEMENT AND DIRECTION OF BUSINESS ENTERPRISE; (4) INTENTION OF PARTIES, EXPRESS OR IMPLIED; AND (5) FIXING OF SALARIES BY JOINT AGREEMENT.' (EMPHASIS SUPPLIED) BLACK'S LAW DICTIONARY (7TH EDITIO N, PAGE 843) DEFINES `JOINT VENTURE' THUS 'JOINT VENTURE: A BUSINESS UNDERTAKING BY TWO OR MORE PERSONS ENGAGED IN A SINGLE DEFINED PROJECT. THE NECESSARY ELEMENTS ARE: (1) AN EXPRESS OR IMPLIED AGREEMENT; (2) A COMMON PURPOSE THAT THE GROUP INTENDS TO CAR RY OUT; (3) SHARED PROFITS AND LOSSES; AND (4) EACH MEMBER'S EQUAL VOICE IN CONTROLLING THE PROJECT.' 9. ON A CAREFUL READING OF THE ORDER OF THE HONBLE SUPREME COURT, WE NOTICE THE FOLLOWING ESSENTIAL INGREDIENTS FOR A JOINT VENTURE. 9 A) IT CONNOTES A LEGAL ENTITY IN THE NATURE OF A PARTNERSHIP ENGAGED IN THE JOINT UNDERTAKING OF A PARTICULAR TRANSACTION FOR MUTUAL PROFIT. (OR) B) IT IS IN ASSOCIATION OF PERSONS WITH INTENT, BY WAY OF CONTRACT, EXPRESS OR IMPLIED, TO ENGAGE IN AND CARRY OUT A SINGLE B USINESS VENTURE FOR JOINT PROFIT, FOR WHICH PURPOSE SUCH PERSONS COMBINE THEIR PROPERTY, MONEY, EFFECTS, SKILL, AND KNOWLEDGE, WITHOUT CREATING A PARTNERSHIP. (OR) C) A SPECIAL COMBINATION OF TWO OR MORE PERSONS WHEREIN SOME SPECIFIC VENTURE FOR PROFIT IS JOINTLY SOUGHT WITHOUT ANY ACTUAL PARTNERSHIP OR CORPORATE DESIGNATION, OR AS AN ASSOCIATION OF TWO OR MORE PERSONS TO CARRY OUT A SINGLE BUSINESS ENTERPRISE FOR PROFIT. D) THAT EACH JOINT VENTURER MUST STAND IN THE RELATION OF PRINCIPAL, AS WELL AS AGENT, AS TO EACH OF THE OTHER COVERTURES WITHIN THE GENERAL SCOPE OF THE ENTERPRISE. E) AMONG THE ACTS OR CONDUCT WHICH ARE INDICATIVE OF A JOINT VENTURE, NO SINGLE ONE OF WHICH IS CONTROLLING IN DETERMINING WHETHER A JOINT VENTURE EXISTS, ARE: (1) JOINT OWNERS HIP AND CONTROL OF PROPERTY; (2) SHARING OF EXPENSES, PROFITS ITA NO. 8451 /M/201 1 A.Y.20 08 - 09 12 AND LOSSES, AND HAVING AND EXERCISING SOME VOICE IN DETERMINING DIVISION OF NET EARNINGS; (3) COMMUNITY OF CONTROL OVER, AND ACTIVE PARTICIPATION IN, MANAGEMENT AND DIRECTION OF BUSINESS ENTERPR ISE; (4) INTENTION OF PARTIES, EXPRESS OR IMPLIED; AND (5) FIXING OF SALARIES BY JOINT AGREEMENT.' 10. AS STATED EARLIER, IN ORDER TO PARTICIPATE IN THE GLOBAL TENDER PROCESS, SOME OF THE FOREIGN COMPANIES HAVE ESTABLISHED JOINT VENTURES WITH THE INDIAN C OMPANIES. WITH REGARD TO THE ISSUE OF THE ASSESSABILITY OF JOINT VENTURES, THE FOREIGN COMPANIES HAVE APPROACHED THE AUTHORITY FOR ADVANCE RULING (AAR). WE DISCUSS BELOW THE DECISION RENDERED BY AAR IN BRIEF. A) VAN OORD ACZ BV (248 ITR 399): IN THIS CASE THE PARTIES THEREIN HAD SPECIFICALLY PROVIDED IN THE AGREEMENT THAT EACH PARTY WILL BEAR ITS OWN LOSS AND RETAIN THE PROFITS SEPARATELY. THERE WAS ALSO SPECIFIC DECLARATION THAT IT WAS NOT THE INTENTION TO CREATE A JOINT VENTURE TO CARRY ON BUSINESS IN COM MON. THE PARTIES THEREIN HAD UNDERTAKEN SEPARATE SCOPE OF WORKS ACCORDING TO THEI 10 B) GEO CONSULT ZT GMBH (304 ITR 283): IN THIS CASE, THOUGH THE WORK WAS ALLOTTED TO EACH OF THE MEMBERS AND EACH MEMBER HAS TO BEAR ITS OWN COSTS AND EXPENSES, YET IT WAS NOTICED THAT THE AGREEMENT STATED THAT THE MEMBERS WILL COLLABORATE FOR ALL THE WORK ASSOCIATED WITH THE PROJECT WHICH IS TO BE MANAGED ON A JOINT BASIS BY ALL THE MEMBERS. FURTHER THE AGREEMENT PROVIDED THAT THE MEMBERS ARE JOINTLY AND SEVERALLY RESPONSIB LE FOR EXECUTION OF PROJECT. THE AAR HAS EXPRESSED OPINION, BY PLACING RELIANCE ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF N.V.SHANMUGAM AND CO. V CIT (1971) 81 ITR 301, THAT THE ULTIMATE DIVISION OF PROFITS AMONGST MEMBERS OF THE JOINT ENTERP RISE IS NOT A RELEVANT CRITERION. FINALLY IT WAS HELD THAT THE JOINT VENTURE IS ASSESSABLE AS AOP. C) M/S HYUNDAU ROTEM CO., KOREA AND M/S MITSUBISHI CO., JAPAN (AAR NOS. 798 - 799 OF 2008 DT. 23 - 03 - 2010. IN THIS CASE, THE AAR HAS HELD THAT THE CONSORTIUM FORMED BY FOUR MEMBERS IS NOT ASSESSABLE AS AOP, SINCE THE AAR HAS FELT THAT THE FACTS OF THE CASE ARE SIMILAR TO THE FACTS RELATING TO VAN OORD ACZ BV, SUPRA. SECTION 2(31) OF THE ACT DEFINES THE TERM PERSON, WHICH INTERALIA, INCLUDES AN ASSOCIATION OF PERSONS OR A BODY OF INDIVIDUALS, WHETHER INCORPORATED OR NOT. SINCE THE TERM ASSOCIATION OF PERSONS (AOP) WAS NOT DEFINED IN THE ACT, THE COURTS HAVE INTERPRETED TO MEAN THAT IT IS AN ASSOCIATION ESTABLISHED TO PRODUCE INCOME. HENCE THE FINANCE ACT 200 2 HAS INSERTED AN EXPLANATION TO SECTION 2(31), ACCORDING TO WHICH, AN AOP SHALL BE DEEMED TO BE A PERSON, WHETHER OR NOT SUCH AOP WAS FORMED OR ESTABLISHED WITH ITA NO. 8451 /M/201 1 A.Y.20 08 - 09 13 THE OBJECT OF DERIVING INCOME, PROFITS OR GAINS. HOWEVER, IN THE INSTANT CASE, THERE IS NO D ISPUTE WITH REGARD TO THE ASSESSABILITY OF THE JOINT VENTURE PER SE. BOTH THE ASSESSEE AND THE DEPARTMENT HAVE TAKEN THE STAND THAT THE JOINT VENTURE IS ASSESSABLE IN THE STATUS OF ASSOCIATION OF PERSON. HOWEVER, THE ISSUE IS WHETHER THE AO IS RIGHT IN TREATING THE JOINT VENTURE - AOP AS THE MAIN CONTRACTOR AND ITS MEMBERS AS THE SUB - CONTRACTORS, THEREBY ESTIMATING THE INCOME WHICH WAS NOT EARNED BY THE JOINT VENTURE. 11 11. ON THE BASIS OF THE UNDERSTANDING OF THE CONCEPT OF JOINT VENTURE, LET US CO NSIDER THE FACTS IN THE PRESENT CASE. THE AMENDED CLAUSE 3 READS AS UNDER: A) THE JOINT VENTURERS SHALL SUBJECT TO THE PROVISIONS HEREINAFTER CONTAINED, BE ENTITLED TO SHARE THE WORK AS MUTUALLY AGREED ON ITEM WISE, DEPENDING ON THE WORK SCHEDULE. SHARING OF THE WORK AND EXECUTION OF THE WORK CAN BE ALTERED AT ANY GIVEN TIME WITH MUTUAL CONSENT OF BOTH THE J.V. PARTNERS. AS PER THE ORIGINAL CLAUSE 3(A), THE MEMBERS OF JOINT VENTURE WOULD SHARE IN A PRESCRIBED PERCENTAGE IN ALL PROFITS ARISING OUT OF JOIN T VENTURE. HOWEVER, THE SAID CLAUSE WAS IN CONTRADICTION TO THE PREAMBLE OF THE AGREEMENT; WHEREIN IT HAD BEEN STATED THAT THE MEMBERS ARE DESIROUS OF SHARING THE CONTRACT AMOUNT. IN VIEW OF THE ABOVE, IT APPEARS THAT THE CLAUSE 3(A) WAS AMENDED IN ACCORDA NCE WITH THE ORIGINAL INTENTION OF THE MEMBERS. HOWEVER IN CLAUSE 12 DEALING WITH FINAL ACCOUNTS, WE FIND A MENTION ABOUT SHARING OF PROFIT OR LOSS, BUT THERE IS NO MENTION ABOUT THE PROPORTION. HOWEVER, IN REALITY, THE MEMBERS HAVE SHARED THE WORK ONLY AN D HENCE THERE WAS NO PROFIT OR LOSS FOR THE JOINT VENTURE. 11.1 FURTHER, CLAUSE 9 OF THE AGREEMENT WHICH DEALS WITH THE RESOURCES SPECIFICALLY STATES THAT EACH JOINT VENTURER SHALL PROVIDE PLANT AND EQUIPMENT REQUIRED FOR THE EXECUTION OF THEIR PORTION O F CONTRACT AND SUCH PLANT AND MACHINERY SHALL NOT BECOME ASSET OF THE JOINT VENTURE. THUS THERE IS NO CLEAR PROVISION IN THE JOINT VENTURE WHICH PROVIDE FOR JOINT EXECUTION OF THE PROJECT AND JOINT REALIZATION OF PROFIT. 11.2 CLAUSE - 4 DEALS WITH THE RELATI ONSHIP BETWEEN THE MEMBERS OF THE JOINT VENTURES. SUB - CLAUSES (C) AND (D) ARE RELEVANT. C. THIS AGREEMENT SHALL NOT BE CONSTRUED BY EITHER JOINT VENTURER HERETO AS CONSTITUTING EACH OF THEM THE AGENT OF THE OTHER NOR THE JOINT VENTURE AS THE AGENT FOR EIT HER OF THEM. 12 E. THE JOINT VENTURERS AGREE THAT THIS AGREEMENT SHALL NOT CONSTITUTE A PARTNERSHIP AND ANY LIABILITIES OF ANY SORT WHATSOEVER WHICH ONE JOINT VENTURER MAY INCUR TOWARDS OR ON BEHALF OF THE OTHER JOINT VENTURERS SHALL BE IN ACCORDANCE ITA NO. 8451 /M/201 1 A.Y.20 08 - 09 14 WITH THIS AGREEMENT AND BE THERETO LIMITED AS PER THE CONCEPT OF THE JOINT VENTURE, EACH JOINT VENTURER SHALL STAND IN THE RELATION OF A PRINCIPAL AS WELL AS AN AGENT OF THE OTHER. HOWEVER CLAUSE 4(C) OF THE AGREEMENT SPECIFICALLY STATES THAT THE MEMBERS DO N OT CONSTITUTE THE AGENT OF EACH OTHER. THE SAID CLAUSE ALSO STATES THAT THE JOINT VENTURE SHOULD NOT BE TAKEN AS THE AGENT OF THE MEMBERS ALSO. THUS, ACCORDING TO THE AGREEMENT, EACH MEMBER STANDS IN ITS OWN RIGHT AND NO SPECIFIC RELATIONSHIP IS CREATED BETWEEN THE JOINT VENTURE AND ITS MEMBERS. 12. THUS, ON AN UNDERSTANDING OF THE CONCEPT OF THE JOINT VENTURE AND THE TERMS OF AGREEMENT BETWEEN THE MEMBERS OF THE PRESENT CASE, WE ARE OF THE VIEW THAT IN THE INSTANT CASE, THE CONSORTIUM OF JOINT VENTURE HAS BEEN FORMED ONLY TO PROCURE THE CONTRACT WORKS. BY WAY OF THE AGREEMENT, THE PARTIES HAVE ONLY REGULATED THE RELATIONSHIP INTER SE WITH RESPECT TO THEIR JOINT RESPONSIBILITY THAT EXISTED IN RELATION TO THE PRINCIPAL, VIZ., M/S KONKAN RAILWAY. IN REALI TY, BOTH THE PARTIES HAVE DIVIDED THE CONTRACT WORKS BETWEEN THEMSELVES AND THEY HAVE EXECUTED THEIR SHARE OF WORK ON THEIR OWN RISKS. IT IS PERTINENT TO NOTE HERE THAT THE AO HAS NOT GIVEN ANY FINDING ON THE ISSUES LIKE THAT EACH MEMBER HAD AUTHORITY TO I NTERFERE WITH OR CONTROL THE WORK EXECUTED BY THE OTHER MEMBER; THAT BOTH THE MEMBERS HAVE JOINTLY EXECUTED THE PROJECT AND THUS PRODUCED THE INCOME JOINTLY. IN OUR OPINION, THE FINDING ON THE LINES STATED ABOVE IS CRUCIAL TO DETERMINE THE ISSUE OF AVAILAB ILITY OF INCOME IN THE HANDS OF JOINT VENTURE - AOP. ON THE CONTRARY, THE AO IS ON RECORD THAT THE EACH OF THE MEMBERS HAS DECLARED THE INCOME DERIVED FROM THEIR RESPECTIVE SHARE OF CONTRACT WORKS IN THEIR HANDS. IN THIS KIND OF SITUATION, WE DO NOT FIND AN Y MERIT IN THE PRESUMPTION MADE BY THE AO THAT THE JOINT VENTURE IS THE MAIN CONTRACTOR AND THE MEMBERS ARE THE 13 SUB - CONTRACTORS. ONCE THIS PRESUMPTION HAS BEEN FOUND TO BE WRONG, THEN THE QUESTION OF ESTIMATION OF INCOME BY WAY OF SUB - CONTRACT COMMI SSION DOES NOT ARISE. SO ALSO THE QUESTION OF DEDUCTION OF TAX U/S 194C(2) OF THE ACT AND THE DISALLOWANCE U/S 40(A)(IA) DOES NOT ARISE. IN VIEW OF THE FORE GOING DISCUSSIONS, WE DO NOT FIND ANY INFIRMITY IN THE DECISION REACHED BY THE LD CIT(A). 6. THE F ACTS OF THE PRESENT CASE IS QUITE SIMILAR TO THE FACTS OF THE CASE RELIED BY THE LD. REPRESENTATIVE OF THE ASSESSEE. TAKING INTO ACCOUNT, ALL THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THAT THE CIT(A) HAS ITA NO. 8451 /M/201 1 A.Y.20 08 - 09 15 DECIDED THE MATTER OF CONTROVERSY JUDICIOUSLY AND CORRECTLY WHICH IS NOT LIABLE TO BE INTERFERE WITH AT THIS APPELLATE STAGE. 6 . IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS HEREBY ORDERED TO BE D ISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 06. 0 6 . 2018 . SD/ - SD/ - ( R.C. SHARMA ) (AMARJIT SINGH) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED : 06 . 06 . 2018 VIJAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI