M V Omni Projects (India) Limited, Ahmedabad V. The Asstt. Commissioner of Income Tax, Circle-2(1)(2), Ahmedabad

ITA 865/AHD/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0936 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 11 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 07-04-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 80IA

Judgement Text

, B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMEBR ./ I.T.A. NO. 865/AHD/2017 ( ASSESSMENT YEAR : 2013-14) M. V. OMNI PROJECTS (INDIA) LIMITED A-201, 202, SHIVALIK YASH, 132 FT. RING ROAD, OPP. SHASHTRINAGAR BRTS BUS STAND, ANKUR, NARANPURA, AHMEDABAD - 380013 / VS. THE ASSISSTANT COMMISSIONER OF INCOME TAX CIRCLE 2 (1)(2), AHMEDABAD ./ ./ PAN/GIR NO. : AADCM1155A ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI JIGNESH PARIKH, A.R. / RESPONDENT BY : SHRI MUDIT NAGPAL, SR. D.R. DATE OF HEARING 25/01/2019 !'# / DATE OF PRONOUNCEMENT 25/03/2019 ORDER PER MAHAVIR PRASAD, JM: THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAI NST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-2, AHM EDABAD [ IN SHORT CIT(A)], APPEAL NO. CIT(A)-2/258/AC. CIR. 2(1)(2) /2015-16 DATED 25.01.2017 ARISING FROM THE ASSESSMENT ORDER DATED 30.11.2015 AND FOLLOWING GROUNDS HAVE BEEN TAKEN BY THE ASSESSEE: ITA NO. 865/AHD/2017 [M. V. OMNI PROJECTS (INDIA) LTD. VS. ACIT] AY 2013-14 - 2 - 1. DISALLOWING THE CLAIM OF DEDUCTION OF RS.3,46,2 85/- BY INVOKING THE PROVISIONS OF SECTION 36(1)(VA) IN RESPECT OF THE E MPLOYEES CONTRIBUTION TO PROVIDENT FUND & E.S.I.C. WHICH WAS DEPOSITED LA TE BUT BEFORE FILING THE RETURN OF INCOME UNDER SECTION 139(1) OF THE AC T; 2. DISALLOWING THE LEGITIMATE AND DOCUMENTED CLAI M OF DEDUCTION OF RS.7,61,34,236/- UNDER SECTION 80IA(4) OF THE ACT. 2. FACT OF THE CASE ARE THAT THE APPELLANT COMPANY IS INCORPORATED UNDER THE COMPANIES ACT, 1956 ENGAGED IN THE BUSINESS OF INFRASTRUCTURE DEVELOPMENT ACTIVITIES AND OF UNDERTAKING CONSTRUCT ION CONTRACTS. 3. SO FAR GROUND NO.1 IS CONCERNED FOR DISALLOWING THE CLAIM OF DEDUCTION OF RS.3,46,285/- U/S. 36(1)(VA) IN RESPEC T OF THE EMPLOYEES CONTRIBUTION TO PROVIDENT FUND AND E.S.I.C. IS CON CERNED, ASSESSEE HAS DEPOSITED THIS AMOUNT BEYOND THE DUE DATE OF THE PA YMENT. IN THE CASE OF CIT VS. GUJARAT STATE ROAD TRANSPORT CORPORATION IN TAX APPEAL NO. 637 OF 2013 WHEREIN IN SIMILAR CIRCUMSTANCES, HONBLE GUJA RAT HIGH COURT HELD THAT PF & ESIC CONTRIBUTION CREDITED BY THE ASSESSE E IN THE RESPECTIVE FUNDS AFTER DUE DATE SAME IS REQUIRED TO BE DISALLOWED AN D TO BE ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE. THEREFORE, IN VIEW O F THE AFORESAID JUDGMENT, THIS GROUND OF APPEAL IS DISMISSED. 4. NOW, WE COME TO NEXT GROUND RELATING TO DISALLOW ANCE UNDER S.80IA OF THE ACT, APPELLANT IN ITS STATEMENT OF TOTAL INC OME FILED ALONGWITH RETURN OF INCOME DURING THE FY 2012-13 RELEVANT TO AY 2013 -14 HAS CLAIMED DEDUCTION UNDER S.80IA(4) OF THE ACT AMOUNTING TO R S.7,61,34,236/- FOR INFRASTRUCTURE DEVELOPMENT. DURING COURSE OF ASSES SMENT PROCEEDINGS, IT WAS NOTICED THAT ASSESSEE HAS CLAIMED THE DEDUCTION AS A WORK CONTRACTOR BUT NOT AS A DEVELOPER. AS PER THE PROVISIONS OF SECTI ON 80IA OF THE ACT, THE DEDUCTION IS ELIGIBLE FOR INFRASTRUCTURE DEVELOPMEN T CARRIED OUT BY THE DEVELOPER AND FOR NOT A CONTRACTOR. IN AY 2012-13, IN ASSESSEES OWN CASE, ITA NO. 865/AHD/2017 [M. V. OMNI PROJECTS (INDIA) LTD. VS. ACIT] AY 2013-14 - 3 - SIMILAR CLAIM WAS DISALLOWED BY THE CO-ORDINATE BEN CH IN ITA NO.1146/AHD/2016 AND OPERATIVE PARA OF THE CO-ORDIN ATE BENCH DECISION IS REPRODUCED HEREUNDER: THE SECOND ISSUE RELATING TO THE DISALLOWANCE OF THE CLAIM OF DEDUCTION OF RS.3,80,61,802/- U/S.80IA(4) OF THE ACT IS ALSO COVERED IN ASSESSEE'S OWN CASE FOR AY 2008-09 AGAINST THE ASSESSEE, AS FAIRLY SUBM ITTED BY THE LD.AR AT THE TIME OF THE HEARING AT THE INSTANT APPEAL. A COPY OF THE SAID ORDER PASSED BY THE COORDINATE BENCH OF THIS TRIBUNAL IN ITA NO.118/AHD /2012 FOR AY 2008-09 DATED 28.10.2015 HAS ALSO BEEN HANDED OVER TO US BY THE L D.AR. THE RELEVANT PORTION WHEREOF IS NARRATED HEREINBELOW;- '5.1. WE HAVE HEARD BOTH THE PARTIES AND GONE THOUG H THE MATERIAL AVAILABLE ON RECORD. SO FAR AS GROUND NO.1 REGARDIN G DISALLOWANCE OF THE CLAIM OF DEDUCTION U/S.80IA(4) OF THE ACT IS CONCER NED, THE SIMILAR GROUND WAS RAISED IN ITA NO.1083/AHD/2010 FOR AY 2006-07 ( IN ASSESSEE'S OWN CASE) AND THE TRIBUNAL, VIDE ITS ORDER DATED 15/06/ 2012 IN PARA-7, HAS DECIDED THIS ISSUE BY OBSERVING AS UNDER:- '7. WE HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW AND ARGUMENTS FROM BOTH THE SIDE. THE ASSESSEE IS A WOR K CONTRACTOR OF THE RAILWAY DEPARTMENT WHO HAS EXECUTED THE CENT-FA CT FOR SUPPLY OF MATERIALS TRENCHING, LAYING, TESTING, COMMISSION ING OF 4 QUAD CABLES, INSTALLATION AND COMMISSIONING OF GALE, TEL EPHONES AND EMERGENCY POSTS, ETC. FOR THE WORK OF PROVISION OF 4 QUAD CABLE IN RAJKOT-VARAVAL SECTION OF RAJKOT/BHAVNAGAR DIVISION S OF WESTERN RAILWAYS. THE NATURE OF THE CONTRACT IS CIVIL WHICH HAD BEEN ASSIGNED BY THE RAILWAY DEPARTMENT IN PART OF ALREA DY RAIL LAID AND NO NEW RAILWAY LINE OR TELECOMMUNICATION SYSTEM HAS BEEN EXECUTED BY THE ASSESSEE. THUS, THE LD..CIT(A) HAS RIGHTLY CONFIRMED THE ADDITION OF THE AO. WE DO NOT FIND AN Y REASON TO REVERT THE ORDER OF THE CIT(A). ACCORDINGLY, THE OR DER OF CIT(A) IS CONFIRMED AND THE ASSESSEE 'S APPEAL IS DISMISSED ' 5.2. THEREFORE, RESPECTFULLY FOLLOWING THE AFORESAI D DECISION OF THE COORDINATE BENCH, TAKING A CONSISTENT VIEW, FOR THE SAME REASONING, THIS GROUND OF ASSESSEE'S APPEAL IS REJECTED.' 4. THE LD.DR SUPPORTS THE ORDERS PASSED BY TH E AUTHORITIES BELOW. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT MATERIALS AVAILABLE ON RECORD. WE FIND THAT THE FACTS ARE IDE NTICAL TO THE FACTS AVAILABLE IN THE INSTANT CASE. WE, THEREFORE, RESPECTFULLY FOLLO WING THE SAID DECISION PASSED BY THE CO-ORDINATE BENCH, TAKING A CONSISTENT VIEW ON THE BASIS OF THE REASONS ASSIGNED THEREIN REJECT THE PARTICULAR ISSUE RAISED BY THE ASSESSEE. 6. IN THE RESULT, ASSESSEE'S APPEAL IS DISMISSED. ITA NO. 865/AHD/2017 [M. V. OMNI PROJECTS (INDIA) LTD. VS. ACIT] AY 2013-14 - 4 - 5. AFTER HEARING BOTH THE PARTIES AND GOING THROUGH THE IMPUGNED ORDER AND THE ORDER OF THE CO-ORDINATE BENCH, HAVING PARI TY WITH THE CO-ORDINATE BENCH DECISION, WE DISMISS THIS GROUND OF APPEAL OF THE ASSESSEE. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS D ISMISSED. SD/- SD/- ( PRADIP KUMAR KEDIA ) (MAHAVIR PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 25/03/2019 TRUE COPY S.K.SINHA !'#' / COPY OF ORDER FORWARDED TO:- $. / REVENUE 2. / ASSESSEE '. ()* + / CONCERNED CIT 4. +- / CIT (A) .. /01 22)*3 )*#3 45( / DR, ITAT, AHMEDABAD 6. 178 9 / GUARD FILE. BY ORDER / 3 /4 )*#3 45( THIS ORDER PRONOUNCED IN OPEN COURT ON 25/03/2 019