SHIVA CONSTRUCTIONS P LTD., Ajmer V. ITO, Ajmer

ITA 954/JPR/2012

• Counselvise Citation: 95423114 RSA 2012
• Duration Of Justice: 2 year(s) 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 27-12-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KAILASH MANGAL JCIT DR DHK
• Keywords: Retrospective amendment

Judgement Text

ITA NO. 954/JP/2012 M/S. SHIVA CONSTRUCTION (P) LTD. VS. ITO, WARD- 1 (1), AJMER 1 VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH VH-VKJ-EHUK] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM VK;DJ VIHY LA-@ ITA NO. 954/JP/2012 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2007-08 SHIVA CONSTRUCTION (P) LTD. , 381, NAYA BAZAR, AJMER CUKE VS. THE ITO WARD- 1(1) AJMER LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AABCS 9146 B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : NONE JKTLO DH VKSJ LS@ REVENUE BY :SHRI KAILASH MANGAL, JCIT -DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 12/03/2015 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 20 /03/2015 VKNS'K@ ORDER PER R.P. TOLANI, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), AJMER DATED 30-10-2012 FOR THE ASSESSMENT YEAR 2007-08 WHERE IN THE ASSESSEE HAS RAISED FOLLOWING GROUND. THE LD. CIT(A), AJMER GROSSLY ERRED IN FACTS IN R EJECTING THE APPEAL OF THE APPLICANT FOR CLAIM OF 80-IA(4) A MOUNTING TO RS. 77,51,111/- ITA NO. 954/JP/2012 M/S. SHIVA CONSTRUCTION (P) LTD. VS. ITO, WARD- 1 (1), AJMER 2 2.1 NONE APPEARED ON BEHALF OF THE ASSESSEE IN SPIT E OF SERVICE OF NOTICE OF THIS HEARING. CONSEQUENTLY WE ARE LEFT WITH NO A LTERNATIVE BUT TO DECIDE THE APPEAL ON MERITS, EX PARTE QUA THE ASSESSEE, AF TER HEARING LD. DR AND AFTER PERUSAL OF THE MATERIALS AVAILABLE ON RECORD. 2.2 AT THE OUTSET, THE LD. DR OF THE REVENUE CONTEN DS THAT THE ISSUE IN QUESTION IS COVERED IN FAVOUR OF THE REVENUE IN VIE W OF THE FOLLOWING DECISIONS. (I) CBDT CIRCULAR NO. 717 DATED 14-08-1995. (II) ITAT JAIPUR BENCH JUDGEMNET IN ASSESSEE'S OWN CASE IN ITA NO. 676/JP/2009 DATED 11-06-2010. (III) ITAT SPECIAL BENCH DECISION IN CASE OF M/S. B .T. PATIL & SONS BELGAUM CONSTRUCTION (P) LTD. VS. ACIT VIDE OR DER DATED 26-10-2009. THE LD. CIT(A) REPRODUCED THE RELEVANT PART OF ITAT ORDER IN HIS ORDER AND THE CONCLUDING PARA OF HIS ORDER IS AS UNDER:- 59. WITHOUT THE AID OF EXPLANATION TO THIS SECTIO N WE HAVE CONCLUDED ABOVE THAT THE CONDITIONS SET OUT IN SUB-SECTION (4) CLAUSE (I) ARE NOT SATISFIED AND HENCE THE ASSE SSEE CANNOT CLAIM DEDUCTION UNDER THIS SECTION. THE INSERTION A ND SUBSTITUTION OF THE EXPLANATION IS ONLY TO CLARIFY THAT THE DEDUCTION CANNOT BE ALLOWED IN RELATION TO A BUSINE SS IN THE NATURE OF WORKS CONTRACT UNDER ANY CIRCUMSTANCE. IN OTHER WORDS THE VIEW EMERGING FROM THE CAREFUL CIRCUMSPEC TION OF ITA NO. 954/JP/2012 M/S. SHIVA CONSTRUCTION (P) LTD. VS. ITO, WARD- 1 (1), AJMER 3 SUB-SECTION (4) HAS BEEN ENDORSED BY THE EXPLANATIO N AND THAT TOO WITH RETROSPECTIVE EFFECT FROM 1-04-2000 THEREB Y COVERING BOTH THE YEARS UNDER CONSIDERATION. WE THEREFORE, A NSWER QUESTION NO. 1 IN NEGATIVE BY HOLDING THAT THE ASSE SSEE IS NOT ENTITLED TO DEDUCTION UNDER THE PROVISIONS OF SECTI ON 80IA(4) IN RESPECT OF THE PROJECTS UNDERTAKEN. AS STATED ABOVE, FINDINGS OF SPECIAL BENCH OF THE TRIBUNAL ARE SQUARELY APPLICABLE IN THE CASE OF ASS ESSEE. THEREFORE, FOLLOWING THE DECISION OF SPECIAL BENCH, WE ALLOW THE APPEAL OF THE DEPARTMENT. THE ORDER OF THE LD. CIT(A) IS SET ASIDE ON THIS ISSUE AND ORDER OF AO IS RESTORED OF DEDUCTION U/S 80IA(4). 4.2 SINCE THE FACTS OF THE CASE ARE FULLY IDENTICAL FOR THIS YEAR, THERE IS NO REASON TO COME TO A DIFFEREN T CONCLUSION. RESPECTFULLY FOLLOWING ABOVE DECISION OF HON'BLE I TAT, I HOLD THAT DISALLOWANCE OF RS. 50,72,626/- MADE BY THE AO IS JUSTIFIED AND THE SAME IS CONFIRMED. GROUND NO. 1 OF THE APPE AL IS THUS DISMISSED. AS THE SIMILAR FACTS AND CLAIM IS INVOLVED DURING C URRENT YEAR , AS SUCH I HAVE NO REASON TO DEVIATE FROM THE FINDINGS IN A.Y. 08-09 IN THE ASSESSEE'S OWN CASE. IN VIEW OF A BOVE, THE DISALLOWANCE MADE BY THE AO OF RS. 77,51,111/- IS C ONFIRMED. 2.3 WE HAVE HEARD THE LD. DR AND PERUSED THE MATERI ALS AVAILABLE ON RECORD. IN OUR CONSIDERED VIEW, THE FACTS AND CIRCU MSTANCES OF THE CASE GIVEN BY ITAT IN ASSESSMENT YEAR 2008-09 ARE SIMILAR TO A SSESSMENT YEAR 2007-08. RESPECTFULLY FOLLOWING THE ORDER ITAT IN ASSESSEE'S OWN CASE (SUPRA), THE SOLITARY GROUND OF THE ASSESSEE IS DISMISSED. ITA NO. 954/JP/2012 M/S. SHIVA CONSTRUCTION (P) LTD. VS. ITO, WARD- 1 (1), AJMER 4 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20 /03/2015. SD/- SD/- VH-VKJ-EHUK VKJ-IH-RKSYKUH (T.R. MEENA) (R.P.TOLANI) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 20 TH MARCH, 2015 *MISHRA VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S. SHIVA CONSTRUCTION (P) LTD., AJ MER 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 1 (1),AJMER 3. VK;DJ VK;QDRVIHY ) @ CIT(A), 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO.954/JP/2012) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR