ITO, Ajmer V. M/S SHIVA CONSTRUCTION P. LTD., Ajmer

ITA 920/JPR/2011

• Counselvise Citation: 92023114 RSA 2011
• Duration Of Justice: 2 year(s) 9 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 01-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D C SHARMA

Judgement Text

ITA NO. 920///JP/2011 M/S. SHIVA CONSTRUCTION (P) LTD. 1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH, JAIPUR (BEFORE SHRI R.P. TOLANI AND SHRI T.R. ME ENA) ITA NO. 920/JP/2011 ASSESSMENT YEARS : 2006-07 PAN : AABCS 9146 B THE ITO VS. M/S. SHIVA CONSTRUCTION (P) LTD. WARD- 1(1) 381, NAYA BAZAR AJMER AJMER (APPELLANT) (RESPONDENT) DEPARTMENT BY: SHRI D.C. SHARMA ASSESSEE BY : WRITTEN SUBMISSION DATE OF HEARING: 24-07-2014 DATE OF PRONOUNCEMENT: 28-08-2014 ORDER PER R.P. TOLANI, JM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST T HE ORDER OF THE LD. CIT(A), AJMER DATED 01-08-2011 FOR THE ASSESSM ENT YEAR 2006-07 WHEREIN THE REVENUE HAS RAISED FOLLOWING GROUND S:- THE LD. CIT(A), AJMER IN THE PRESENT FACTS AND CIRCUMSTANCES OF THE CASE HAS ERRED IN:- (I) DELETING THE PENALTY U/S 271(1)( C) OF RS. 3,31,975/- WITHOUT APPRECIATING THE FACT OF THE CAS E. ITA NO. 920///JP/2011 M/S. SHIVA CONSTRUCTION (P) LTD. 2 (II) DELETING THE PENALTY WHEN THE ASSESSEE WITH MALAFIDE INTENTION CLAIMED THE WRONG DEDUCTION ON W RONG FOTTINGS WHICH TANTAMOUNT TO FURNISHING THE INACCUR ATE PARTICULARS OF INCOME. (III) THE APPELLANT CRAVES TO ADD, AMEND, ALTER OR MODIFY THE ABOVE GROUNDS OF APPEAL BEFORE OR AT THE TIMEOF HEARING. 2.1 THE GROUND NO. (III) OF THE REVENUE IS GENERAL IN NATURE WHICH NEEDS NO ADJUDICATION. 3.1 NONE APPEARED ON BEHALF OF THE ASSESSEE. HOWEVE R, THE ASSESSEE FILED THE WRITTEN SUBMISSION. THUS THE BENCH DECIDED TO D ISPOSE OF THIS REVENUES APPEAL EX-PARTE BY CONSIDERING THE WRITTEN SUBMISSI ON OF THE ASSESSEE. 4.1 WE HAVE HEARD THE LD. DR AND PERUSED THE MATERI ALS AVAILABLE ON RECORD INCLUDING THE WRITTEN SUBMISSION OF THE ASSE SSEE. THE BRIEF FACTS OF CASE ARE THAT THE ASSESSEE IS A CIVIL CONTRACTOR AN D IN THE RETURN OF INCOME THE ASSESSEE CLAIMED DEDUCTION U/S 80IA(4) OF THE ACT A MOUNTING TO RS. 9,86,261/-. THIS CLAIM OF THE ASSESSEE WAS DISALLOW ED DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS AFTER FINDING THAT THE A SSESSEE WAS NOT ELIGIBLE FOR DEDUCTION U/S 80-IA(4) OF THE ACT. THIS ORDER O F THE AO BECAME FINAL AS THE ACTION OF THE AO WAS UPHELD BY ITAT JAIPUR BENC H VIDE ORDER DATED 11- 06-2010. IT MAY BE WORTHWHILE TO MENTION THE OBSERV ATION IN RESPECT OF A.Y. 2003-04 OF THE AO MADE WHICH FINDS PLACE IN T HE ASSESSMENT ORDER AS UNDER:- ITA NO. 920///JP/2011 M/S. SHIVA CONSTRUCTION (P) LTD. 3 IN THE WRITTEN SUBMISSION OF THE ASSESSEE COMPANY , IT HAS BEEN ARGUED THAT THE VERSION OF THE ASSESSEE CO MPANY IN REGARD TO CLAIM OF SECTION 80IA(4)(I) HAS BEEN ACCE PTED BY THE LD. CIT(A), AJMER IN ITS CASE FOR THE ASSESSMENT YE AR 2003-04. IN THIS RESPECT, IT IS WORTHWHILE TO MENTION THAT THE DECISION GIVEN BY THE LD. CIT(A) OF ALLOWING THE CLAIM OF DE DUCTION U/S 80IA HAD NOT BEEN ACCEPTED BY THE DEPARTMENT AND A FURTHER APPEAL TO THE HN ITAT JAIPUR BENCH JAIPUR HAD BEEN MADE. THE HON'BLE ITAT VIDE ITS ORDER NO. 782/JP/2006 DATED 30-04-2008 DISMISSED THE APPEAL OF THE REVENUE, AGAINST WHICH THE DEPARTMENT HAS PREFERRED FURTHER APPEAL BEFORE THE HON'BLE RAJASTHAN HIGH COURT , WHICH IS STILL PENDING FOR D ECISION. THE OPINION OF THE LD. CIT(A) , AJMER IN REGARD TO JUST IFICATION OF THE CLAIM OF THE ASSESSEE COMPANY HAS ALSO BEEN THOROUG HLY GONE THROUGH AND IT IS NOT OUT OF PLACE TO MENTION HERE THAT AS IN THE PRECEDING YEAR, THIS YEAR AS WELL, THE UNDERSIGNED HAS NEVER CHALLENGED THE QUALIFICATION AND POSSIBILITY OF THE STATUS OF THE ASSESSEE AS COMPANY OF BECOMING AN INFRASTRUCTURE DEVELOPER. RATHER THE BONE OF CONTENTION HERE IS THE OWNING OF INFRASTRUCTURE FACILITY (ENTERPRISE) BY THE ASSE SSEE COMPANY WHICH HAD SIMPLY ACTED AS A CONTRACTOR AND NOT A DEVELOPER AND THEREFORE, DID NOT OWN THE SAID IN FRASTRUCTURE FACILITY AT ANY TIME. IN VIEW OF THE ABOVE DETAILED DISCUSSION AND CONSID ERING ALL THE FACTS OF THE CASE TOGETHER WITH THE SUBMISS ION OF THE ASSESSEE I AM OF THE CONSIDERED OPINION THAT THE AS SESSEE COMPANY HAS SIMPLY EXECUTED THE CONTRACTS WORK, AS NORMALLY A CIVIL CONTRACTOR DOES FOR THE WORKS ASSIGNED BY THE GOVT. AGENCIES AND ITS ACTIVITIES BY ANY EXTENT OF IMAGIN ATION MAKES ITS CASE LIABLE FOR ALLOWING THE BENEFIT OF PROVISI ONS OF SECTION 80IA OF THE I.T. ACT , 1961, WHICH IS ACTUALLY MEAN T FOR THOSE COMPANIES ONLY WHO ARE ENGAGED IN THE WORK OF INFR ASTRUCTURE FACILITY DEVELOPMENT THEIR OPERATION AND MAINTENAN CE. AS SUCH THE CLAIM OF DEDUCTION U/S 80IA, MADE BY THE C OMPANY IN ITS COMPUTATION OF INCOME FOR THE ASSESSMENT YEAR 2 006-07, IS DISALLOWED. ITA NO. 920///JP/2011 M/S. SHIVA CONSTRUCTION (P) LTD. 4 FROM THE RECORD, IT EMERGES THAT EARLIER IN A.Y. 20 03-04 ITAT HAS TAKEN A VIEW FAVOURABLE TO THE ASSESSEE WHICH WAS CHALLENG ED BY THE DEPARTMENT BEFORE HON'BLE HIGH COURT AND THE SAME IS PENDING F OR DECISION. FROM THE PENALTY ORDER, IT EMERGES THAT FOR THE ASSESSMENT Y EAR 2006-07, THE ITAT HAS TAKEN A VIEW FAVOURABLE TO THE REVENUE. WE ARE NOT AWARE WHETHER THE ASSESSEE HAS GONE IN APPEAL BEFORE THE HON'BLE HIG H COURT OR NOT AND INASMUCH AS FOR THE ASSESSMENT YEAR 2003-04, THE RE VENUE IS IN APPEAL FOR THE SAME ISSUE WHICH IS PENDING BEFORE THE HON'BLE HIGH COURT AS MENTIONED BY THE AO IN HIS ORDER. BE THAT AS IT MAY , THE ASSESSEE HAS RELIED ON THE CASE LAWS THROUGH ITS WRITTEN SUBMISSION WH ICH INCLUDES THE FOLLOWING HON'BLE SUPREME COURT JUDGEMENTS. (I) HINDUSTAN STEEL LTD. VSD STATE OF ORISSA (1972) , 83 ITR 26 (SC) WHEREIN IT WAS HELD THAT A TECHNICAL OR VENIAL BREACH OF PROVISION OF ACT THINKING THE SAME ON BON AFIDE BELIEF IS NOT CONCEALMENT FOR LEVY OF PENALTY. (II) CIT VS. RELIANCE PETRO PRODUCTS (P) LTD. (2010 ) 322 ITR 158 (SC) WHEREIN IT WAS DECIDED THAT WHEN NO INFORMATION GIVEN IN RETURN FILED FOUND TO BE INCOR RECT AND MAKING INCORRECT CLAIMS OR DISALLOWING ANY CLAIM DO ES NOT AMOUNT TO CONCEALMENT. THE FACTS OF THE CASE CLEARLY SUGGEST THAT THERE IS CLEAVAGE OF OPINION BETWEEN THE APPELLATE AUTHORITIES. THE ASSESSEE HAS FILED ITS RETURN OF INCOME IN CONFORMITY WITH THE TRIBUNAL OPINION FOR THE ASS ESSMENT YEAR 2003-04. ITA NO. 920///JP/2011 M/S. SHIVA CONSTRUCTION (P) LTD. 5 ALL THE DETAILS ARE FILED ALONGWITH RETURN OF INCOM E. IN THIS EVENTUALITY, THE JUDGEMENT OF HON'BLE APEX COURT IN THE CASE OF CIT VS. RELIANCE PETRO PETRO PRODUCTS (P) LTD. (SUPRA) APPLIES TO THE FACT S OF THE ASSESSEE'S CASE. THUS WE FIND NO INFIRMITY IN THE ORDER OF THE LD. C IT(A) DELETING THE IMPUGNED PENALTY U/S 271(1)(C) OF THE ACT AND THE O RDER OF THE LD. CIT(A) IS UPHELD. 12. IN THE RESULT, THE APPEAL OF THE REVENUE IS DI SMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 28- 08-2014 SD/- SD/- (T.R. MEENA) (R.P. TOLANI) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR DATED: 28 TH AUG. 2014 *MISHRA COPY FORWARDED TO:- 1. THE ITO, WARD- 1 (1), AJMER 2. M/S. SHIVA CONSTRUCTION (P) LTD. , AJMER 3. THE LD. CIT 4. THE LD. CIT(A), JAIPUR BY ORDER 5..THE LD. DR 6.THE GUARD FILE (IT NO. 920/JP/2011) AR ITAT, JAIPUR ITA NO. 920///JP/2011 M/S. SHIVA CONSTRUCTION (P) LTD. 6 ITA NO. 920///JP/2011 M/S. SHIVA CONSTRUCTION (P) LTD. 7 ITA NO. 920///JP/2011 M/S. SHIVA CONSTRUCTION (P) LTD. 8