Deputy Commissioner of Income-tax, V. M/s. Parwani Builders, Pune

ITA 924/PUN/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 3029 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 05-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: V S RAWAT
• Section: 194C

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE . , , BEFORE SHRI D.KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO.924/PUN/2016 / ASSESSMENT YEAR : 2012-13 DCIT, CIRCLE-4, PUNE . /APPELLANT VS. M/S. PARWANI BUILDERS, SHOP NO.211/212, 2 ND FLOOR, CITY POINT, 17 BOAT CLUB ROAD, PUNE 411001 PAN : AACCP9869P . / RESPONDENT ASSESSEE BY : SHRI V.S. RAWAT REVENUE BY : SHRI ACHAL SHARMA / DATE OF HEARING : 21.05.2018 / DATE OF PRONOUNCEMENT: 25.05.2018 / ORDER PER D. KARUNAKARA RAO, AM : THIS IS THE APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A)- 3, PUNE, DATED 27-02-2016 FOR THE ASSESSMENT YEAR 2012-13. 2. GROUNDS RAISED BY THE REVENUE ARE EXTRACTED AS UNDER : 1. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS ) ERRED IN ALLOWING DEDUCTION OF RS. 2,79,23,712/- U/S 80IA(4) OF THE INCOME TAX ACT, 1961. 2. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN HOLDING THAT THE ASSESSEE WAS A DEVELOPER WITHIN TH E MEANING OF SUB SEC. (4) OF SECTION 80IA OF THE ACT AND NOT A CONTRACTOR AS HAD BEEN HELD BY THE ASSESSING OFFICER, WITHOUT APPRECIATING THAT THE AS SESSEE HAD MERELY CARRIED OUT WORKS CONTRACTS AWARDED TO IT BY CONTRA CTING AUTHORITIES. 3. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN FAILING TO APPRECIATE THAT AS PER THE AGREEMENTS, THE ASSES SEE WAS UNDER THE DIRECT CONTROL AND SUPERVISION OF THE CONTRACTING A UTHORITY AND THAT IT HAD NOT FREEDOM WHATSOEVER TO DEVELOP, DESIGN OR MODIFY THE WORK PLAN AND 2 WAS BOUND TO ACCEPT ANY MODIFICATION AS WOULD BE IS SUED BY THE ENGINEER-IN-CHARGE OF THE CONTRACTING AUTHORITY. 4. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN FAILING TO APPRECIATE THAT IN THE AGREEMENTS ENTERED INTO B Y THE ASSESSEE WITH VARIOUS AUTHORITIES, THE ASSESSEE HAD BEEN CATEGORI CALLY TERMED AS A 'CONTRACTOR WHO HAS ENTERED INTO A CONTRACT AND WOU LD EXECUTE THE WORK IN ACCORDANCE WITH THE CONTRACT' AND NOT AS A 'DEVE LOPER'. 5. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN FAILING TO APPRECIATE THAT EXPLANATION TO SUB SECTION (13) OF SECTION 80IA HAS MADE IT AMPLY CLEAR THAT THE DEDUCT ADMISSIBLE U/S. 80IA (4) WOULD NOT BE APPLICABLE TO A BUSINESS WHICH IS IN THE NATURE OF WORKS CONTRACT AWARDED BY ANY PERSON INCLUDING THE CENTRAL OR STAT E GOVERNMENT AND EXECUTED BY THE UNDERTAKING OR ENTERPRISES REFERRED TO IN SUB SECTION (1) AND IN THE GIVEN FACTS & CIRCUMSTANCES OF THE CASE THE ASSESSEE WAS CERTAINLY A CONTRACTOR AND NOT A DEVELOPER. 6. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN NOT APPRECIATING THE CONCEPT OF 'DEVELOPING' AND IN EQU ATING THE SAME WITH ''CONTRACTING' AND IN HOLDING THAT EXPLANATION TO S UB SECTION (13) OF SECTION 80IA WOULD APPLY TO A SUB-CONTRACTOR AND NO T TO A CONTRACTOR. 7. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN NOT APPRECIATING THE FACT THAT THE CONTRACTEE AGENCIES HAD DEDUCTED TAX AT SOURCES U/S. 194C FROM THE PAYMENTS MADE TO THE ASS ESSEE WHICH SUBSTANTIATES THE CONTRACTOR- CONTRACTEE RELATIONSH IP BETWEEN THE ASSESSEE AND THE DEVELOPING AGENCIES. 8. THE APPELLANT CRAVES LEAVE TO ADD ALTER OR AMEND ANY OR ALL THE GROUNDS OF APPEALS. 3. BRIEFLY STATED RELEVANT FACTS OF THE CASE AS EMANATING FROM THE RECORDS ARE THAT THE ASSESSEE IS A COMPANY ENGAGED IN THE BUSINESS OF CONSTRUCTIONS OF INFRASTRUCTURAL FACILITIES, I.E. CONSTRUCTION O F DAMS, TUNNELS, ROADS ETC. DURING THE YEAR UNDER CONSIDERATION, T HE ASSESSEE FILED THE RETURN OF INCOME ON 28-09-2012 DECLARING TOTAL INC OME OF RS.20,37,263/-. ASSESSEE CLAIMED DEDUCTION U/S 80IA(4) OF T HE ACT AMOUNTING TO RS.2,79,23,712/-. REJECTING THE EXPLANATION G IVEN BY THE ASSESSEE, THE AO DISALLOWED THE SAME ON THE GROUND THA T ASSESSEE IS NOT A DEVELOPER AND HAD EXECUTED THE WORK ON PROJECT S AS CONTRACTOR OR SUB-CONTRACTOR. THE GOVERNMENT DEPARTMENTS AWARDED W ORKS CONTRACT TO THE ASSESSEE AND GOVT. IS THE DEVELOPER. THE AO ACCO RDINGLY, DISALLOWED THE CLAIM OF DEDUCTION RS.2,79,23,712/- U/S 80IA(4) OF THE ACT. 3 4. AGGRIEVED WITH THE SAME, ASSESSEE FILED AN APPEAL BEFOR E THE CIT(A). THE CIT(A) VIDE ITS ORDER DATED 27-02-2016 ALLOWED THE APPEAL OF THE ASSESSEE RELYING ON THE ORDERS OF THE TRIBUNAL IN T HE ASSESSEES OWN CASE IN ITA NOS.374/PN/2012, 1846/PN/2012, 1819/PN/2013 AND ITA NO.2206/PN/2014 FOR THE A.YRS. 2008-09, 2009-10, 2010 -11 AND 2011-12 RESPECTIVELY. THE TRIBUNAL IN THE PREVIOUS ASSE SSMENT YEARS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY FOLLOWING THE DECISION OF (1) HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. ABG H EAVY INDUSTRIES LTD 322 ITR 323 (2) DECISION OF THE TRIBUNAL IN THE CASE OF BT PATIL & SONS, BELGAUM CONSTRUCTIONS PVT. LTD., VS. ACIT. 5. NOW THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL CHALLENG ING THE ORDER OF CIT(A) WITH THE GROUNDS MENTIONED ABOVE. 6. BEFORE US, AT THE OUTSET, SHRI V.S. RAWAT, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUE RAISED IN THIS APPEAL IS SQUARELY COVERED BY THE ORDERS OF COORDINATE BENCH IN ASSESSEE S OWN CASE FOR THE PRECEDING A.YRS. 2008-09 TO 2011-12. LD. COUNSEL FO R THE ASSESSEE FILED A COPY OF ORDER OF THE TRIBUNAL IN ITA NO.2026/PN/20 14 FOR A.Y.2011-12, DATED 10-11-2016. 7. ON THE OTHER HAND, LD. DR FOR THE REVENUE RELIED ON THE ORDER OF THE AO. HOWEVER, LD. DR FAIRLY ADMITTED THAT THIS ISSUE H AS BEEN CONSIDERED BY THE COORDINATE BENCH OF THE TRIBUNAL IN THE A.YRS. 2008- TO 2011-12. 8. WE HEARD BOTH THE PARTIES ON THIS SOLITARY ISSUE OF CLAIM OF DEDUCTION U/S.80IA OF THE ACT AMOUNTING TO RS.2,79,23,712. WE HAVE ALSO PERUSED THE ORDERS OF THE REVENUE AND THE ORDERS OF THE TRIBU NAL IN THE PREVIOUS ASSESSMENT YEARS AND FIND THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE. WE THEREFORE PROCE ED TO EXTRACT THE 4 FINDING GIVEN BY THE TRIBUNAL IN ITA NO.2206/PN/2014, DATED 10-11-2016 FOR THE A.Y. 2011-12 FOR THE SAKE OF COMPLETEN ESS HERE AS UNDER : 3. WE HAVE HEARD THE PARTIES. THE LD. COUNSEL SUBM ITS THAT IDENTICAL ISSUE HAS COME FOR THE CONSIDERATION BEFORE THE TRI BUNAL IN THE A.YRS. 2008-09 AND 2009-10 IN ASSESSEES OWN CASE AND THE ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE. THE LD. COUNSEL FILED THE TRIBUNAL ORDER IN ASSESSEES OWN CASE IN ITA NOS.374 AND 184 6/PN/2012 ORDER DATED 18- 06-2014 WHICH IS PLACED ON RECORD. WE FIN D THAT THE ISSUE OF DEDUCTION U/S.80IA(4) STANDS FULLY COVERED IN FAVOU R OF THE ASSESSEE BY THE DECISION OF THIS TRIBUNAL IN ASSESSEES OWN CAS E IN A.YRS. 2008-09 AND 2009-10 (ITA NO.374 AND 1846/PN/2012 ORDER DATE D 18-06- 2014). THE OPERATIVE PART OF THE DECISION CONFIRMING THE O RDER OF THE LD. CIT(A) IN THOSE A.YS IS AS UNDER : 7. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS RELIED ON BY BOTH THE SIDES. WE FIND THAT THE A.O. IN THE INSTANT CASE HAS DENIED T HE BENEFIT OF DEDUCTION U/S. 80IA(4) ON THE GROUND THAT THE ASSES SEE WAS A CONTRACTOR OR SUB-CONTRACTOR EXECUTING THE WORKS CO NTRACT AWARDED BY THE GOVT. AGENCIES/STATUTORY AGENCIES AND THAT T HE ASSESSEE IS NOT A DEVELOPER OF THE INFRASTRUCTURE FACILITIES. I T IS ONLY THE GOVT. AGENCIES OR THE STATUTORY AGENCIES WHO WERE ACTUALL Y DEVELOPING THE INFRASTRUCTURE PROJECTS. RELYING ON THE RETROSP ECTIVE AMENDMENT IN SEC. 80IA OF THE I.T. ACT WHICH CLARIF IES THAT THE DEDUCTION CANNOT BE ALLOWED IN RELATION TO THE BUSI NESS IN THE NATURE OF WORKS CONTRACT, THE A.O. DISALLOWED THE C LAIM U/S. 80IA(4). WHILE DOING SO HE ALSO RELIED ON THE DECIS ION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF M/S. B. T. PATIL & SONS BELGAUM CO. PVT. LTD. (SUPRA). WE FIND THAT THE CIT (A) RELYING ON THE DECISION OF THE HONBLE HIGH COURT OF BOMBAY IN THE CASE OF ABG HEAVY INDUSTRIES LTD. (SUPRA) ALLOWED THE CLAIM OF DEDUCTION MADE BY THE ASSESSEE. WE FIND THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF M/S. PRATIBHA CONSTRUCTION & ENGINEERIN G (I) P. LTD. VS. ACIT VIDE ITA NO. 118/PN/2008 AND OTHER CONNECTED A PPEALS FOR A.YS. 2003-04 TO 2006-07 ORDER DATED 27-09-2011 WHI LE DECIDING AN IDENTICAL ISSUE HAS OBSERVED AS UNDER: 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS, PERUSED THE ORDERS OF THE AUTHORITIES BELOW AS ALSO THE AUTHORI TIES CITED AT BAR. THE CRUX OF THE CONTROVERSY REVOLVES AROUND SECTION 80IA(4)(I) WHICH READS AS UNDER: 801A(4)(I): ANY ENTERPRISE CARRYING ON THE BUSINES S OF (I) DEVELOPING OR (II) OPERATING AND MAINTAINING OR (II I) DEVELOPING, OPERATING AND MAINTAINING ANY INFRASTRUCTURE FACILI TY WHICH FULFILS ALL THE FOLLOWING CONDITIONS, NAMELY:- (A) IT IS OWNED BY A COMPANY REGISTERED IN INDIA OR BY A CONSORTIUM OF SUCH COMPANIES OR BY AN AUTHORITY OR A BOARD OR A CORPORATION OR ANY OTHER BODY ESTABLISHED OR CONSTITUTED UNDER ANY CENTRAL OR STATE ACT; ITA NO. 2206/ PN/2014, A.Y. 2011-12 (B) IT HAS ENTERED INTO AN AGREEMENT WITH THE CENTR AL GOVERNMENT OR A STATE GOVERNMENT OR A LOCAL AUTHORITY OR ANY O THER STATUTORY 5 BODY FOR (I) DEVELOPING OR (II) OPERATING AND MAINT AINING OR (III) DEVELOPING, OPERATING AND MAINTAINING NEW INFRASTRU CTURE FACILITY; (C) IT HAS STARTED OR STARTS OPERATING AND MAINTAIN ING THE INFRASTRUCTURE FACILITY ON OR AFTER THE 1ST DAY OF APRIL, 1995: PROVIDED THAT WHERE AN INFRASTRUCTURE FACILITY IS T RANSFERRED ON OR AFTER THE 1ST DAY OF APRIL, 1999 BY AN ENTERPRISE W HICH DEVELOPED SUCH INFRASTRUCTURE FACILITY (HEREAFTER REFERRED TO IN THIS SECTION AS THE TRANSFEROR ENTERPRISE) TO ANOTHER ENTERPRISE (H EREAFTER IN THIS SECTION REFERRED TO AS THE TRANSFEREE ENTERPRISE) F OR THE PURPOSE OF OPERATING AND MAINTAINING THE INFRASTRUCTURE FACILI TY ON ITS BEHALF IN ACCORDANCE WITH THE AGREEMENT WITH THE CENTRAL G OVERNMENT, STATE GOVERNMENT, LOCAL AUTHORITY OR STATUTORY BODY , THE PROVISIONS OF THIS SECTION SHALL APPLY TO THE TRANSFEREE ENTER PRISE AS IF IT WERE THE ENTERPRISE TO WHICH THIS CLAUSE APPLIES AND THE DEDUCTION FROM PROFITS AND GAINS WOULD BE AVAILABLE TO SUCH TRANSF EREE ENTERPRISE FOR THE UNEXPIRED PERIOD DURING WHICH THE TRANSFERO R ENTERPRISE WOULD HAVE BEEN ENTITLED TO THE DEDUCTION, IF THE T RANSFER HAD NOT TAKEN PLACE. THE CLAIM OF THE REVENUE IS THAT THE ASSESSEE HAS A CTED ONLY AS A CONTRACTOR WHO HAS BEEN AWARDED A WORK BY A GOVERNM ENT AGENCY AND, THEREFORE, IT CANNOT BE SEEN AS CARRYIN G ON THE BUSINESS OF DEVELOPING AS ENVISAGED UNDER SECTION 80IA(4) OF THE ACT. IN SUPPORT, THE CLAIM OF THE REVENUE IS THAT T HE ASSESSEE IS NEITHER OPERATING AND MAINTAINING INFRASTRUCTURE FA CILITY AND NOR HAS THE RIGHT TO UNDERTAKE THE OPERATION AND MAINTE NANCE AND, THEREFORE, IT DOES NOT QUALIFY FOR THE DEDUCTION. T HE ARGUMENT IS FURTHER SUPPORTED BY SUB-CLAUSE (C) OF SECTION 80IA (4)(I) WHICH ENVISAGES THAT THE ASSESSEE IS TO START OPERATING A ND MAINTAINING THE INFRASTRUCTURE FACILITY ON OR AFTER 1.4.1995. 7. TO OUR MIND, THE CONTROVERSY RAISED BY THE REVEN UE HAS BEEN SQUARELY ADDRESSED BY THE JUDGMENT OF THE HONBLE B OMBAY HIGH COURT IN THE CASE OF ABG HEAVY ENGG. LTD. (SUPRA) A ND THE FOLLOWING PORTION OF THE JUDGMENT IS WORTHY OF NOTI CE: 22 THE SUBMISSION WHICH WAS URGED ON BEHALF OF THE REVENUE IS THAT UNDER CLAUSE (III) OF SUB-SECTION (4) OF SECTI ON 80IA, ONE OF THE CONDITIONS IMPOSED WAS THAT THE ENTERPRISE MUST STA RT OPERATING AND MAINTAINING THE INFRASTRUCTURE FACILITY ON OR A FTER 1ST APRIL, 1995. THE SAME REQUIREMENT IS EMBODIED IN SUB-CLAUS E (1) OF SUB- CLAUSE (4) OF THE AMENDED PROVISIONS. IT WAS URGED THAT SINCE THE ASSESSEE WAS NOT OPERATING AND MAINTAINING THE FACI LITY, HE DID NOT FULFILL THE CONDITION. THE SUBMISSION IS FALLAC IOUS BOTH IN FACT AND IN LAW. THAT THE ASSESSEE WAS MAINTAINING THE FACILITY IS N OT IN DISPUTE. THE FACILITY WAS COMMENCED AFTER 1ST APRIL, 1995. T HEREFORE, THE REQUIREMENT WAS MET IN FACT. MOREOVER, AS A MATTER OF LAW, WHAT THE CONDITION ESSENTIALLY MEANS IS THAT THE INFRAST RUCTURE FACILITY SHOULD HAVE BEEN OPERATIONAL AFTER 1ST APRIL, 1995. AFTER SECTION 80-IA WAS AMENDED BY THE FINANCE ACT, 2001, THE SEC TION APPLIES TO AN ENTERPRISE CARRYING ON THE BUSINESS OF (1) DE VELOPING; OR (II) OPERATING AND MAINTAINING; OR (III) DEVELOPING, OPE RATING AND MAINTAINING ANY INFRASTRUCTURE FACILITY WHICH FULFI LLS CERTAIN CONDITIONS. THOSE CONDITIONS ARE (1) OWNERSHIP OF T HE ENTERPRISES BY A COMPANY REGISTERED IN INDIA OR BY A CONSORTIUM S; (II) AN AGREEMENT WITH THE CENTRAL OR STATE GOVERNMENT, LOC AL AUTHORITY OR STATUTORY BODY; AND (III) THE START OF OPERATION AN D MAINTENANCE OF THE INFRASTRUCTURE FACILITY SHOULD COMMENCE AFTER 1 ST APRIL, 1995. 6 THE REQUIREMENT THAT OPERATION AND MAINTENANCE OF T HE INFRASTRUCTURE FACILITY SHOULD COMMENCE AFTER 1ST A PRIL, 1995 HAS TO BE HARMONIOUSLY CONSTRUED WITH THE MAIN PROVISION U NDER WHICH DEDUCTION IS AVAILABLE TO AN ASSESSEE WHO DEVELOPS OR OPERATES AND MAINTAINS, OR DEVELOPS, OPERATES AND MAINTAINS AN INFRASTRUCTURE FACILITY. A HARMONIOUS READING OF THE PROVISIONS IN ITS ENTIR ETY WOULD LEAD TO THE CONCLUSION THAT THE DEDUCTION IS AVAILABLE T O AN ENTERPRISE WHICH (I) DEVELOPS; OR OPERATES AND MAINTAINS; OR ( III) DEVELOPS, MAINTAINS AND OPERATES THAT INFRASTRUCTURE FACILITY . HOWEVER, THE COMMENCEMENT OF THE OPERATION AND MAINTENANCE OF TH E INFRASTRUCTURE FACILITY SHOULD BE AFTER 1ST APRIL, 1995. IN THE PRESENT CASE THE ASSESSEE CLEARLY FULFILLED THIS CO NDITION. BEFORE THE AMENDMENT THAT WAS BROUGHT ABOUT BY PARL IAMENT BY FINANCE ACT, 2001 WE HAVE ALREADY NOTED THAT THE CO NSISTENT LINE OF CIRCULAR OF THE BOARD POSTULATED THE SAME POSITI ON. THE AMENDMENT MADE BY PARLIAMENT TO S. 80IA(4) OF THE A CT, SET THE MATTER BEYOND ANY CONTROVERSY BY STIPULATING THAT T HE THREE CONDITIONS FOR DEVELOPMENT, OPERATION AND MAINTENAN CE WERE NOT INTENDED TO BE CUMULATIVE IN NATURE. (UNDERLINED F OR EMPHASIS BY US) 8. NOTABLY, EVEN IN THE CASE BEFORE THE HIGH COURT, THE ASSESSEE ACTED AS A CONTRACTOR FOR GOVERNMENT AGENCY AND WAS HELD ELIGIBLE FOR THE PURPOSES OF CLAIM OF DEDUCTION UNDER SECTIO N 80IA(4) OF THE ACT. AS PER THE LEGAL POSITION OPINED BY THE HONBL E HIGH COURT, IT IS EVIDENT THAT AN ASSESSEE WHO ONLY DEVELOPS INFRA STRUCTURE FACILITY (EVEN AS A CONTRACTOR) BUT DOES NOT HAVE A N OCCASION TO OPERATE AND MAINTAIN IS ALSO ELIGIBLE FOR CLAIM OF DEDUCTION UNDER SECTION 80IA(4) OF THE ACT AND THE HONBLE HIGH COU RT HAS EXPLAINED THAT QUA SUCH A PERSON THE CONDITION STAT ED IN SUB- CLAUSE (C) OF SECTION 80IA(4)(I) HAS TO BE READ HAR MONIOUSLY WITH THE MAIN PROVISION UNDER WHICH DEDUCTION IS AVAILABLE T O AN ASSESSEE, WHO DEVELOPS; OR OPERATES AND MAINTAINS; OR DEVELOP S, MAINTAINS AND OPERATES AN INFRASTRUCTURE FACILITY. IN OTHER W ORDS, AS OPINED BY THE HONBLE HIGH COURT, A DEVELOPER WHO ONLY DEV ELOPS (I.E. CONSTRUCTS) AN INFRASTRUCTURE FACILITY AND IS NOT E NVISAGED TO OPERATE AND MAINTAIN SUCH FACILITY, CANNOT BE EXPEC TED TO FULFIL THE CONDITION IN CLAUSE (C) OF SECTION 80IA(4) SINCE IT WOULD BE AN IMPOSSIBILITY. THEREFORE, IN VIEW OF THE CONSTRUCTI ON PLACED BY THE HONBLE BOMBAY HIGH COURT ON THE REQUIREMENTS OF CL AUSE (C) OF SECTION 80IA(4)(I), REQUIRING IT TO BE HARMONIOUSLY READ WITH THE MAIN CLAUSE OF SECTION 80IA(4)(I), WE FIND THAT THE OBJECTION RAISED BY THE REVENUE IN THE PRESENT CASE IS DEVOID OF MER ITS. THE REASONING ENUNCIATED BY THE HONBLE BOMBAY HIGH COU RT AS EXTRACTED ABOVE FULLY ANSWERS THE CONTROVERSY RAISE D BY THE REVENUE IN THE PRESENT CASE AND, THEREFORE, WE FIND THAT THE ASSESSEE HAS TO SUCCEED IN THIS APPEAL IN THE PRESE NT CASE. ACCORDINGLY, THE GROUND OF APPEAL RAISED BEFORE US AND WHICH IS COMMON IN ALL THE YEARS IS ADJUDICATED IN FAVOUR OF THE ASSESSEE. 9. RESULTANTLY, THE CAPTIONED APPEALS OF THE ASSESS EE ARE ALLOWED. 8. RESPECTFULLY FOLLOWING THE DECISION OF THE JURIS DICTIONAL HIGH COURT IN THE CASE OF ABG HEAVY INDUSTRIES LTD. (SUP RA) WHICH HAS BEEN FOLLOWED BY THE CO-ORDINATE BENCH OF TRIBUNAL IN THE CASE OF M/S. PRATIBHA CONSTRUCTION & ENGINEERING (I) P. LTD . (SUPRA) WE FIND NO INFIRMITY IN THE ORDER OF THE CIT(A) ALLOWI NG THE CLAIM OF DEDUCTION/S. 80IA(4)(I) MADE BY THE ASSESSEE. 7 9. SO FAR AS THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF YOJAKA MARINE (P) LTD. VS. ACIT REPORTE D IN 35 TAXMANN.COM 408 (KARNATAKA) RELIED ON BY THE LD. DE PARTMENTAL REPRESENTATIVE IS CONCERNED THE SAME IN OUR OPINION IS NOT APPLICABLE TO THE FACTS OF THE INSTANT CASE IN VIEW OF THE DECISION OF THE JURISDICTIONAL HIGH COURT CITED (SUPRA) WHICH I S BINDING ON US. IN THIS VIEW OF THE MATTER WE UPHOLD THE ORDER OF T HE CIT(A) AND THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 4. AS THE FACTS ARE IDENTICAL IN THIS YEAR ALSO, H ENCE, THERE IS NO REASON TO TAKE A DIFFERENT VIEW. WE THEREFORE FOLLO WING THE ORDER OF THIS TRIBUNAL IN ASSESSEES OWN CASE DISMISS THE GROUNDS TAKEN BY THE REVENUE. 5. IN THE RESULT, REVENUES APPEAL IS DISMISSED. FROM THE ABOVE, IT IS EVIDENT THAT IN THE MATTERS LIKE THIS , THE CONTRACTORS ARE CONSIDERED AS THE DEVELOPERS WHO ARE ELIGIBLE FOR DEDUCTION U/S.80IA(4) OF THE ACT IN RESPECT OF THE ELIGIBLE P ROFITS. CONSIDERING THE ABOVE AND IN ABSENCE OF ANY CONTRARY M ATERIAL TO DECIDE THE ISSUE AGAINST THE ASSESSEE, WE DISMISS THE GROUNDS R AISED BY THE REVENUE. 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 25 TH DAY OF MAY, 2018. SD/- SD/- (VIKAS AWASTHY) (D. KARUNAKARA RAO) /JUDICIAL MEMBER / ACCOUNTANT MEMBER PUNE; DATED : 25 TH MAY, 2018 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, //TRUE COPY// SENIOR PRI VATE SECRETARY , / ITAT, PUNE 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT(A)-3, PUNE 4. CIT-3, PUNE 5. , , A BENCH PUNE; 6. / GUARD FILE.