Tapi Prestressed Products Ltd, Jalgaon v. ACIT, Jalgaon

ITA 1146/PUN/2012 | 2008-2009
Pronouncement Date: 30-10-2013 | Result: Dismissed

Appeal Details

RSA Number 114624514 RSA 2012
Assessee PAN AAACT6669D
Bench Pune
Appeal Number ITA 1146/PUN/2012
Duration Of Justice 1 year(s) 4 month(s) 28 day(s)
Appellant Tapi Prestressed Products Ltd, Jalgaon
Respondent ACIT, Jalgaon
Appeal Type Income Tax Appeal
Pronouncement Date 30-10-2013
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 30-10-2013
Date Of Final Hearing 07-10-2013
Next Hearing Date 07-10-2013
Assessment Year 2008-2009
Appeal Filed On 01-06-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV JUDICIAL MEMBER AND SHRI G.S. PANNU ACCOUNTANT MEMBER S. NO. ITA / CO NO. A.Y. APPELLANT RESPONDENT 1 ITA NO.1109/ PN/2012 2007- 08 ASST. CIT CIRCLE-2 JALGAON TAPI PRESTRESSED PRODUCTS LTD GAT NO.537 BANK OF TAPI RIVER ANJALE TAL. YAWAL DIST. JALGAON PAN: AAACT6669D 2 CO NO.131/ PN/2012 (ARISING OUT OF ITA NO.1109/PN/ 2012) 2007- 08 TAPI PRESTRESSED PRODUCTS LTD PAN: AAACT6669D ASST. CIT CIRCLE-2 JALGAON 3 ITA NO.1110/PN/ 2012 2008- 09 JT. CIT RANGE-2 JALGAON TAPI PRESTRESSED PRODUCTS LTD PAN: AAACT6669D 4 CO NO.132/PN/2 012 (ARISING OUT OF ITA NO.1110/PN/ 2012) 2008- 09 TAPI PRESTRESSED PRODUCTS LTD PAN: AAACT6669D JT. CIT RANGE-2 JALGAON 5 ITA NO.1145/ PN/2012 2007- 08 TAPI PRESTRESSED PRODUCTS LTD PAN: AAACT6669D ASST. CIT CIRCLE-2 JALGAON 6 ITA NO.1146/ PN/2012 2008- 09 TAPI PRESTRESSED PRODUCTS LTD PAN: AAACT6669D ASST. CIT CIRCLE-2 JALGAON APPELLANT BY : MRS. M.S. V ERMA RESPONDENT BY : SHRI M.K . KULKARNI DATE OF HEARING: 11.10.2013 DATE OF ORDER : 30.10.2013 2 ORDER PER SHAILENDRA KUMAR YADAV JM ALL THESE CROSS APPEALS AND CROSS OBJECTIONS ARE A RISING FROM ORDERS OF CIT(A) ON ALMOST SIMILAR ISSUE. SO THESE ARE BEING DISPOSED OFF BY COMMON ORDER. THE APPEAL NO.1109 H AS BEEN FILED THE REVENUE PERTAINING TO THE A.Y. 2007-08 ON THE FOLLOWING GROUNDS. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE CIT(A) ERRED IN RELYING ON THE DECISIONS OF HONT> LE ITAT PUNE IN THE CASES OF LAXMI CIVIL ENGG. (P) LTD. AND PRATIBHA CONSTRUCTION & ENGINEERING (P) LTD. IN AS MUCH AS THE FACTS OF THOSE CASES ARE DIFFERENT FROM THAT OF ASSESSEE' S CASE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) HAS NOT APPRECIATED THE FACT THAT ASSESSEE FAILED TO ESTABLISH THAT IT WAS A DEVELOPER AS STIPULATED I N THE PROVISION OF SECTION 80IA(4) OF THE ACT; HENCE INEL IGIBLE FOR CLAIMED DEDUCTION. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) DID NOT APPRECIATE THE FACT THAT ON BEING CO NFRONTED BY THE ASSESSING OFFICER DURING ASSESSMENT PROCEEDI NGS FOR A.YR.2009-10 REGARDING ELIGIBILITY FOR DEDUCTION U/ S.80IA(4) ASSESSEE VOLUNTARILY REVISED ITS CLAIM OF DEDUCTION FROM RS. 15 33 36 705/- TO RS.10 92 36 658/-. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) HAS NOT APPRECIATED THE FACT THAT SURVEY ACT ION U/S.133A WAS CONDUCTED IN ASSESSEE'S CASE AND CIT(A ) CONFIRMED THE ADDITIONAL INCOME DECLARED ON ACCOUNT OF DEFICIENCIES IN EXPENSES HOWEVER FINDINGS OF SURV EY PARTY 3 REGARDING DEDUCTION U/S.80IA(4) WERE NOT TAKEN INTO ACCOUNT. SIMILAR ISSUE AROSE IN REVENUES APPEAL IN ITA NO.1 110/PN/2012 FOR A.Y. 2008-09. 2. IN CO NOS.131 ARISING OUT OF ITA NO.1109 AND CO NO.132 ARISING OUT OF ITA NO.1110 THE ASSESSEE HAS RAISED THE FOLLOWING SIMILAR CROSS OBJECTIONS: 1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW GROUND OF APPEAL NO. 1 RAISED IN THE APPEAL MEMO BY THE REVENUE IS FACTUALLY INCORRECT AS THE FACTS CONTAIN ED IN LAXMI CIVIL ENG (P) LTD AND M/S PRATIBHA CONSTRUCTI ON & ENGINEERING (P) LTD. AS DECIDED BY THIS HON'BLE ITA T PUNE BENCH PUNE AND FOLLOWED BY LD. CIT (A) IN THE APPE AL OF THE RESPONDENT - ASSESSEE ARE IDENTICAL IN FACT AND LAW. THE LD. CIT(A) HAS CORRECTLY UPHELD THE CONSISTENCY IN JUDICIAL DECISIONS FOLLOWING THE PRECEDENTS OF HON'BLE ITAT - PUNE BENCH PUNE. 2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE GROUND NO. 2 RAISED IN THE APPEAL-MEMO IS ALSO BEREFT OF FACTUAL POSITION. THE RESPONDENT - ASSESSEE WAS ONL Y A 'DEVELOPER' AND WAS NOT REQUIRED TO PROVE ITSELF TH AT IT WAS NOT BY APPLYING PRINCIPLES OF NEGATIVE EVIDENC E. THE EXPLANATION INSERTED BY FINANCE ACT 2007 WAS NOT CLARIFACTORY AND IT HAS IMPACT OF WIDENING THE SCOP E OF THE MAIN PROVISION AND ALSO HAD AN EFFECT OF CHANGING THE ENTIRE SUBSTANTIAL LAW. THE CBDT HAS ALREADY EX PLAINED THE CONCEPT OF 'DEVELOPER' AND 'CONTRACTOR'. THE GR OUND IS CONTRARY TO EXECUTIVE INSTRUCTIONS. 3. THE REVENUE HAS CHALLENGED THE ORDER OF CIT(A) T O CLAIM DEDUCTION U/S.80IA(4) OF I.T ACT. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A LIMITED COMPANY ENGAGED IN I NFRASTRUCTURE PROJECT LIKE WATER SUPPLY LIFT IRRIGATION ETC. T HE ASSESSEE COMPANY FILED ITS RETURN OF INCOME DECLARING TOTAL INCOME AT RS.NIL AFTER CLAIMING DEDUCTION OF RS.12 71 20 773/ - AND RS.17 21 46 986/- U/S. 80IA(4) FOR A.Y. 2007-08 AND 2008-09 RESPECTIVELY. THE ASSESSING OFFICER HAS COMPLETED THE ASSESSMENT PROCEEDINGS U/S. 143 ASSESSING THE INCOM E OF THE 4 ASSESSEE AT RS.13 16 13 885/- AND RS.17 45 28 249/- FOR A.Y. 2007-08 AND 2008-09 RESPECTIVELY. THE ASSESSING OF FICER HAD DISALLOWED THE DEDUCTION CLAIMED BY ASSESSEE IN RES PECT OF WATER SUPPLY AND LIFT IRRIGATION PROJECT HOLDING THAT SIN CE ASSESSEE WAS A CONTRACTOR AND NOT A DEVELOPER DEDUCTION U/S. 80 IA(4) WAS NOT AVAILABLE TO IT. THE ASSESSING OFFICER HAS HOWEVER ALLOWED DEDUCTION U/S. 80IA(4) IN RESPECT OF TOLL ROAD PROJ ECT WHICH IS NOT ISSUE BEFORE US. DETAILS OF INCOME EARNED ADD ITIONS MADE AND INCOME ASSESSED BY ASSESSING OFFICER ARE AS UND ER: PARTICULARS AY 2007-08 AY 2008-09 INCOME RETURNED NIL NIL DISALLOWANCE OF CLAIM U/S 80IA(4) 13 16 13 885 .16 82 01 845 ( .17 21 46 986- .39 45 141 ADDITIONAL INCOME DECLARED /DISALLOWED TOWARDS DEFICIENCIES IN EXPENSES 50 00 000 .50 00 000 (ALREADY SHOWN IN RETURN FILED) ADDITION OUT OF SUNDRY BALANCE WRITTEN OFF - 25 34 486 ADDITION TOWARDS DIFFERENCE IN CREDITORS A/CS - 39 41 997 ASSESSED INCOME 13 66 13 885 * 17 46 78 328 3.1 THUS ASSESSING OFFICER ASSESSED THE INCOME OF ASSESSEE AT RS.17 45 28 249/- AS AGAINST THE ABOVE AMOUNT OF RS.17 46 78 328/- FOR A.Y 2008-09. THE DIFFERENCE OF RS.1 50 079/- WAS DUE TO THE FACT THAT INCOME BEFOR E DEDUCTION UNDER CHAPTER VIA WAS CONSIDERED AT RS.17 19 96 907 /- BY ASSESSING OFFICER WHEREAS DEDUCTION CLAIM IN RETUR N WAS RS.17 21 46 986/. SIMILARLY FOR A.Y. 2007-08 DISAL LOWED THE CLAIM U/S. 80IA(4) OF ACT OF RS.13 16 13 885/-. 5 3.2 THE MATTER WAS CARRIED OUT BEFORE FIRST APPELLA TE AUTHORITY WHEREIN ASSESSEE HAS RELIED UPON FOLLOWING ORDERS / JUDGMENTS AND CONTENDED THAT THEY WERE BINDING PRECEDENTS TO COME TO THE CONCLUSION THAT ASSESSEE COMPANY HAD CORRECTLY CLAI MED U/S. 80IA(4) OF THE I.T ACT. (A) ITAT JAIPUR BENCH IN THE CASE OF OM METALS INF RA PROJECTS LTD VS. ADDL. CIT (B) ITAT PUNE BENCH DECISION IN THE CASE OF LAXMI CIVIL ENGINEERING IN ITA NOS.766/PN/09 254/PN/08 431/ PN/07 AND 435/PN/07 PERTAINING TO A.Y. 2003-04 200 4- 05 2005-06 AND 2006-07 RESPECTIVELY. (C) MAHALAXMI CONSTRUCTION CORPORATION LTD VS. ACI T KOLHAPUR IN ITA NO.433/PN/07 DATED 06-02-2012. (D) M/S. PRATIBHA CONSTRUCTION & ENGINEERS (I) LTD . VS. CIT KOLHAPUR IN ITA NO.118 119 932 278/PN/2008 PERTA INING TO A.Y. 2003-04 TO 2006-07. (E) HONBLE BOMBAY HIGH COURT JUDGMENT IN CASE OF CIT VS. ABG HEAVY INDUSTRIES LTD. (2010) 37 DTR 233 (BOM). CIT(A) AGREEING TO THE CONTENTION HAS ALLOWED THE C LAIM OF ASSESSEE WHICH HAS BEEN OPPOSED ON BEHALF OF REVENU E FOR REASONS DETAILED IN GROUNDS OF APPEAL AND REQUESTED TO RESTORE THE ORDER OF ASSESSING OFFICER ON THE ISSUE WHILE L EARNED AUTHORIZED REPRESENTATIVE REQUESTED TO UPHOLD THE O RDER OF CIT(A). 3.3 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND M ATERIAL ON RECORD WE FIND THAT THE REVENUE HAS CHALLENGED THE ORDER OF THE CIT(A) WHO HAS HELD THAT THE ASSESSEE WAS DEVELOPER AND ENTITLED TO CLAIM DEDUCTION UNDER SECTION 80IA(4) OF THE ACT . THE ASSESSEE BEFORE CIT(A) HAD RELIED ON ABOVE MENTIONED ORDERS /JUDGMENTS 6 AND CONTENDED THAT THE ASSESSEE COMPANY HAD CORREC TLY CLAIMED THE DEDUCTION U/S. 80IA(4) OF THE ACT. 3.4 THE ASSESSING OFFICER STATED THAT THE APPELLANT WHO HAS IN FACT DEVELOPED THE INFRASTRUCTURE FACILITY IS A CO NTRACTOR AND HENCE NOT ELIGIBLE FOR DEDUCTION U/S. 80IA(4). ACC ORDING TO LEARNED AUTHORIZED REPRESENTATIVE IN CASE IT IS ACC EPTED THEN THE SAID DEDUCTION SHALL NOT BE ALLOWABLE TO ANY PE RSON IN INDIA AS ALL SUCH INFRASTRUCTURE WORK IS AWARDED BY GOVT. & SEMI GOVT. DEPARTMENTS TO DEVELOPER CONTRACTORS THROUGH TENDER S AND THEREAFTER ENTERING INTO CONTRACT FOR THE WORK WITH THE DEVELOPERS. IN CASE THE ASSESSING OFFICER'S CONTENTION IS ACCEP TED THEN CERTAINLY PROVISION FOR ALLOWING DEDUCTION U/S. 80I A(4) FOR DEVELOPING INFRASTRUCTURE SHALL BECOME REDUNDENT'. THE ASSESSING OFFICER HAS IGNORED THE DECISION OF THE I TAT PUNE BENCH - IN THE CASE M/S PRATIBHA CONSTRUCTION & ENG INEERING PVT. LTD WHEREIN RELYING ON THE DECISION OF BOMBAY HIGH COURT IN THE CASE OF ABG HEAVY ENGINEERING LTD. HAS DECI DED ISSUE IN FAVOUR OF ASSESSEE. THE ASSESSEE COMPANY IS DEVELO PING PROJECT OF WATER SUPPLY AND LIFT IRRIGATION. ASSESSING OFF ICER CONCLUDED THAT THE ASSESSEE IS MERELY A CONTRACTOR AND THE WO RK WILL BE CLOSELY LOOKED AFTER OR SUPERVISED BY THE CONTRACTE E WHEN THE WORK IS CLOSELY SUPERVISED WHICH MEANS THAT ASSESSE E IN A MERELY CONTRACTOR. THE ASSESSING OFFICER HAS ALSO REFERRED THE CONTRACT RECEIVED FROM JMC AND PRELIMINARY CONDITION OF DESI GNING AND DRAWING ESSENTIAL FOR DEVELOPER IS LACKING AND THER EFORE THE ASSESSEE COMPANY COULD NOT BE CALLED TO BE A DEVELO PER. 3.5 CIT(A) HELD THAT THE ASSESSING OFFICER HAS ERR ED BY MISUNDERSTANDING THE CONDITIONS ELIGIBLE FOR DEDUCT ION SPECIFIED U/S 80IA(4). WHAT IS ELIGIBLE FOR DEDUCTION U/S 80IA(4) IS THE P ROFITS AND GAINS DERIVED FROM DEVELOPMENT OF INFRASTRUCTURE FA CILITY 7 SUCH AS ROAD PROJECT AIRPORT PORT INLAND WATERWAY S IRRIGATION PROJECTS WATER SUPPLY PROJECTS ETC. IN ORDER TO BE ELIGIBLE FOR DEDUCTION THE DEVELOPMENT SHOULD BE TH AT OF THE INFRASTRUCTURE FACILITY AS A WHOLE AND NOT A PART O F IT. 3.6 THE APPELLANT IS DEVELOPER/CONTRACTOR OF ELIG IBLE INFRASTRUCTURE PROJECT. THE WHOLE INFRASTRUCTURE P ROJECT OF WATER SUPPLY AND LIFT IRRIGATION HAS BEEN EXECUTED BY THE APPELLANT. THE 2/3 ENGINEERS/OFFICERS OF JMC HAVE ONLY SUPERVISED THE WORK EXECUTED BY THE APPELLANT COMPANY TO ENSURE THE QUA LITY OF THE WORK AND THE PROPER EXECUTION OF THE PROJECT BY DEV OTING PART OF THEIR TIME. BY ANY STRETCH OF IMAGINATION IT CANNOT BE ACCEPTED/PERCEIVED THAT THE SAID 2/3 ENGINEERS/OFFI CERS HAVE EXECUTED THE SAID INFRASTRUCTURE PROJECT OF WATER S UPPLY AND LIFT IRRIGATION. THE ASSESSING OFFICER HAS NOT JUSTIFIED TO HOLD THAT THE WORK HAS BEEN EXECUTED BY JMC AS DEVELOPER AND THE APPELLANT IS A MERE CONTRACTOR. 3.7 AS REGARDS PREPARATION OF DESIGN AND DRAWING OF THE PROJECT IT IS EVIDENT FORM THE FOLLOWING DOCUMENTS/PAPERS T HAT THE APPELLANT HAS IN FACT PREPARED THE SAME. ANNEX-4 APPEARING ON PAGE NO. 177 OF THE TENDER OF MOKHABARDI LIFT IRR IGATION SCHEME RELEVANT PORTION OF WHICH READS AS UNDER 'PARAMETERS FOR DESIGN AND DRAWING' 1.0 SCOPE OF PROPOSED IRRIGA TION SCHEME AS STATED IN ANNEX 'A ' OFSECTION-1. 2.0 DESIGN AND DRA WING. 2.1 THE CONTRACTOR/CONSULTANT SHALL CARRY OUT LAYOU T STUDIES INCLUDING COST ECONOMICS BY EXAMINING ALL POSSIBLE ALTERNATIVE TO PREPARE DETAILED LAYOUT DE SIGN AND DRAWINGS OF ALL COMPONENTS OF THE WORK STATED I N ANNEX A. THE CONTRACTOR/CONSULTANT SHALL USE GUIDE 8 LINES IN THE RELEVANT ISI CODES/CDO CODES PREPARED BY ISI/CDO FOR VARIOUS COMPONENTS OF THE PROJECT IN TH E LIFT IRRIGATION SCHEME. 2) CPWD MANUAL RELEVANT PAPERS AT PAGE NOS. 74 & 75. 3) LETTER DATED 24-08-2006 FILED WITH SUPDT. ENGINEER(PHS) CENTRAL DESIGNS ORGANISATIONS NASHI K. 4) LETTER DATED 07-10-2006 ISSUED BY CHIEF ENGINEER NAGPURTO THE APPELLANT. 5) LETTER DATED 13-10-2006 ISSUED BY SUPDT. ENGINER AMBADI (BHANDARA) TO THE APPELLANT. 6) LETTER DATED 14-07-2006 ISSUED BY SUPDT. ENGINEER AMBADI (BHANDARA) TO THE APPELLANT. 7) LETTER DATED 27-07-2006 ISSUED BY SUPDT ENGINEER AMBADI (BHANDARA) TO THE APPELLANT. IN THE VIEW OF ABOVE FACTS DRAWINGS AND DESIGNS OF THE PROJECT ARE IN FACT PREPARED BY THE APPELLANT WHICH ARE APPROVED BY VIDARBHA IRRIGATION DEVELOPMENT CORPORA TION AND JALGAON MUNICIPAL CORPORATION ETC. 3.8 CIT(A) HAS OBSERVED THAT THE APPELLANT HAS CLAI MED DEDUCTION U/S 80IA(4) IN RESPECT OF PROFIT ON INFRA STRUCTURE PROJECTS OF WATER SUPPLY AND LIFT IRRIGATION PROJEC T. AS STATED ABOVE ASSESSING OFFICER HAS DISALLOWED DEDUCTION IN RESPECT OF WATER SUPPLY AND LIFT IRRIGATION PROJECTS ON THE GR OUND THAT THE APPELLANT WAS A CONTRACTOR AND WORK EXECUTED BY IT WAS COVERED UNDER 'WORKS CONTRACT' AND HENCE DEDUCTION WAS NOT ADMISSIBLE IN VIEW OF EXPLANATION TO SECTION 80IA INTRODUCED B Y FINANCE ACT 2007 AND AMENDED BY FINANCE ACT 2009 WITH RETROSPEC TIVE EFFECT FROM 01-04-2000. ASSESSING OFFICER HAS ALSO DISALLO WED THE 9 APPELLANT'S CLAIM FOR DEDUCTION U/S 80IA(4) OF THE ACT HOLDING THAT THE APPELLANT WAS NOT A DEVELOPER BUT ONLY A C ONTRACTOR. FURTHER ACCORDING TO THE AO THE 'EXPLANATION' IN SERTED BELOW SUB-SEC. 80IA(13) BY THE FINANCE ACT 2007 AND LAT ER AMENDED BY FINANCE ACT 2009 EFFECTIVE RETROSPECTIVELY FROM 01-04- 2000 ALSO MADE THE APPELLANT INELIGIBLE FOR D EDUCTION U/S 80IA(4) OF THE ACT. ASSESSING OFFICER HAS GIVEN A D ETAILED ANALYSIS OF APPELLANT'S CONTRACT WITH JALGAON MUNICIPAL CORP ORATION (JMC) IN THE ASSESSMENT ORDER FOR A. Y. 2008-09 AND ALSO REFERRED TO THE STATEMENT OF DY. ENGINEER JMC RECORDED ON OATH WHEREIN HE IS STATED TO HAVE TOLD THAT THE PROJECT WITH JMC WA S A 'WORKS CONTRACT'. ON THE BASIS OF THE CONTRACT DOCUMENT AN D THE ABOVE REFERRED STATEMENT OF DY. ENGINEER JMC AO HELD TH AT THE APPELLANT DID NOT FULFILL THE CONDITIONS OF S. 80IA (4) OF THE ACT. SHE DISALLOWED THE DEDUCTION OF RS. 17 21 46 986/- CLAIMED BY THE APPELLANT U/S 80IA(4) OF THE ACT. AS MENTIONED IN STATEMENT OF FACTS A SIMILAR CLAIM OF RS. 13 16 13 885/- U/S 80IA(4) WAS DISALLOWED BY THE AO IN A. Y. 2007-08. ASSESSING O FFICER HAS NOT PROPERLY APPRECIATED THE VARIOUS CASE LAWS I.E. LAX MI CIVIL ENGINEERING (SUPRA) OM METALS INFRA PROJECTS LTD ( SUPRA) AND PRATIBHA CONSTRUCTIONS AND ENGINEERS (SUPRA) ON FAC TS VIS-A-VIS FACTS OF THE APPELLANT'S CASE. CIT(A) OBSERVED THA T THE STATUS OF THE APPELLANT WAS SIMILAR TO THAT OF LAXMI CIVIL EN GG. (P) LTD AND MAHALAXMI CORPORATION I.E. THE NATURE OF WORK WAS A LSO MORE OR LESS SIMILAR. THE SIMILARITIES IN THE TENDER DOCUME NTS PERTAINING TO THE PROJECTS UNDERTAKEN BY THESE PERSONS SUGGEST THAT THE TERMS AND CONDITIONS WERE BY AND LARGE IDENTICAL. F URTHER TENDER DOCUMENT FOR GOSHIKHURD PROJECT AWARDED TO OM METAL INFRA BY VIDC PROVES THAT IT WAS FOR IRRIGATION WORK AND THE TERMS AND CONDITIONS WERE AKIN TO THAT OF MOKABARDI IRRIGATIO N PROJECT AWARDED TO THE APPELLANT I.E. TAP/ PRESTESS PRODUCT S LTD. BY VIDC. CIT(A) IN HIS CONCLUDING PARA HAS RIGHTLY HE LD THAT KEEPING IN VIEW THE PRINCIPLES OF JUDICIAL PRECEDEN T JUDICIAL 10 DISCIPLINE AND ALSO IN ORDER TO MAINTAIN THE RULE O F CONSISTENCY AND UNIFORMITY IN RESPECT OF IDENTICAL FACTS HE WA S OF THE CONSIDERED VIEW THAT THE ABOVE DISCUSSED DECISIONS OF THE HON'BLE ITAT PUNE JAIPUR BENCHES AND ABH HEAVY INDUSTRIES (SUPRA) IN REGARD TO CLAIM OF DEDUCTIONS U/S. 80IA(4) OF THE A CT ARE SQUARELY APPLICABLE TO THE APPELLANT'S CASE. NOTHING CONTRA RY WAS BROUGHT TO OUR KNOWLEDGE ON BEHALF OF REVENUE. IN VIEW OF ABOVE JUDICIAL PRECEDENTS THE APPELLANT HAS RIGHTLY BEEN HELD ELIG IBLE FOR DEDUCTIONS U/S. 80IA (4) OF THE ACT IN RESPECT OF T HE INFRASTRUCTURAL PROJECTS UNDERTAKEN BY IT DURING AY S 2007-08 AND 2008-09. WE UPHOLD THE SAME. 4. CO NOS.131 & 132/PN/2012 ARE NOTHING BUT SUPPORT ING THE ORDER OF CIT(A) ON THE ISSUE RAISED BY REVENUE IN ITA NO.1145 AND 1146/PN/2012. SO THESE ARE TAKEN CARE BY OUR D ECISION IN REVENUES APPEAL IN ITA NOS. 1109 AND 1110/PN/2012. IN RESULT THE APPEALS OF REVENUE AS WELL AS CROSS OBJECTIONS OF ASSESSEE ARE DISMISSED. 5. ASSESSEE HAS FILED APPEAL ON FOLLOWING GROUNDS I N ITA NO.1145/PN/2012 FOR A.Y. 2007-08. 1) ON THE FACTS AND IN LAW THE ID. CIT(A) HAS ERRED IN NOT ALLOWING DEDUCTION U/S. 80IA(4) IN RESPECT OF ADDIT IONAL INCOME OF RS.50 LACS OFFERED TO TAX ON ADHOC BASIS TOWARDS UNVERIFIABLE EXPENSES. 2) ON THE FACTS AND IN LAW THE ID. CIT(A) HAS ERRED IN HOLDING THAT ADDITIONAL INCOME OF RS. 50 LACS OFFER ED TO TAX ON ADHOC BASIS TOWARDS UNVERIFIABLE EXPENSES HAS RE SULTED INTO 'INCOME FROM OTHER SOURCES. 3) ON THE FACTS AND IN LAW THE ID. CIT(A) HAS ERRED IN HOLDING THAT ADDITIONAL INCOME OF RS. 50 LACS OFFER ED TO TAX ON ADHOC BASIS TOWARDS UNVERIFIABLE EXPENSES OUT OF EXPENSES DEBITED IN PROFIT AND LOSS ACCOUNT HAS NOT RESULTED INTO ADDITION TO BUSINESS INCOME. 11 5.1 AS DISCUSSED ABOVE THE ASSESSEE HAS RAISED THE ISSUE OF ALLOWED DEDUCTION U/S. 80IA(4) IN RESPECT OF ADDITI ONAL INCOME OF RS.50.00 LAKHS OFFERED TO TAX ON ADHOC BASIS TOWARD S UNVERIFIABLE EXPENSES. AS REGARD THE ADDITIONAL INCOME OF RS.5 0.00 LAKHS EACH FOR A.Y. 2007-08 AND 2008-09 DECLARED ON ACCOU NT OF DEFICIENCIES IN EXPENSES ADMITTED BY DIRECTOR OF AS SESSEES COMPANY DURING SURVEY U/S. 133A ON 20-10-2008 AT BU SINESS / OFFICE PREMISES OF THE ASSESSEE. CIT(A) OBSERVED T HAT ONE OF THE DIRECTOR SHRI DIPESH M. KOTAJ IN HIS STATEMENT STAT ED THAT SOME OF THE EXPENSES DEPOSITED TO PROFIT & LOSS ACCOUNT WERE IN FULLY VERIFIABLE IN ABSENCE OF PROPER SUPPORTING VOUCHERS . IN ORDER TO COVER UP THE SAID DISCREPANCY HE OFFERED RS.50.00 L AKHS EACH AS ADDITIONAL INCOME INTER-ALIA FOR A.Y. 2007-08 AND 2 008-09. CIT(A) OBSERVED FROM THE RECORD THAT EXPENSES UNDER HEADS OF PIPE AND PIPE LAYING EXPENSES LABOUR AND SITE EXPE NSES ETC. WERE FOUND TO BE NOT FULLY VERIFIED. WHILE ASSESSING OF FICER MADE ADDITION OF RS.50.00 LAKHS IN A.Y. 2007-08 THE ASS ESSEE ITSELF OFFERED THIS ADDITIONAL INCOME OF RS.50.00 LAKHS IN THE RETURN OF INCOME. THE STAND OF ASSESSEE HAS BEEN THAT SAID A DDITIONAL INCOME IS ALSO ELIGIBLE FOR DEDUCTION U/S. 80IA(4) OF THE I.T ACT. THE CONTENTION OF THE ASSESSEE WAS NOT ACCEPTED BY CIT(A) BECAUSE ADDITIONAL INCOME OF RS.25.00 LAKHS EACH FO R A.Y. 2007- 08 AND 2008-09 ON ACCOUNT OF UNVERIFIABLE EXPENSES WAS FOUND INCOME FROM OTHER SOURCES AND IT HAD NOTHING TO DO WITH THE INCOME ON DEVELOPMENT OF INFRASTRUCTURE PROJECT FOR WHICH IT HAS CLAIMED DEDUCTION U/S. 80IA(4) OF THE I.T. ACT. IN VIEW OF ABOVE ADDITION OF RS.50.00 LAKHS WAS CONFIRMED IN A.Y. 20 07-08 ADDITIONAL INCOME OF RS.50.00 LAKHS OFFERED IN RETU RN OF A.Y. 2008-09 WAS REDUCED FROM CLAIMING OF RS.17 21 46 98 6/- MADE FOR DEDUCTION U/S. 80IA(4) OF THE I.T ACT. THIS RE ASONED FINDING OF CIT(A) APPEAL NEED NO INTERFERENCE FROM OUR SIDE B ECAUSE ASSESSEE HIMSELF OFFERED SAID ADDITIONAL INCOME IN RETURN OF 12 INCOME AND CIT(A) WAS JUSTIFIED TO HOLD THE SAME AS INCOME FROM OTHER SOURCES. WE UPHOLD THE SAME. 6. IN ITA NO.1146/PN/2012 THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1) ON THE FACTS AND IN LAW THE ID. CIT(A) HAS ERRED IN NOT ALLOWING DEDUCTION U/S. 80IA(4) IN RESPECT OF ADDIT IONAL INCOME OF RS. 50 LACS OFFERED TO TAX ON ADHOC BASIS TOWARDS UNVERIFIABLE EXPENSES. 2) ON THE FACTS AND IN LAW THE ID. CIT(A) HAS ERRED IN HOLDING THAT ADDITIONAL INCOME OF RS. 50 LACS OFFER ED TO TAX ON ADHOC BASIS TOWARDS UNVERIFIABLE EXPENSES HAS RE SULTED INTO 'INCOME FROM OTHER SOURCES'. 3) ON THE FACTS AND IN LAW THE ID. CIT(A) HAS ERRED IN HOLDING THAT ADDITIONAL INCOME OF RS. 50 LACS OFFER ED TO TAX ON ADHOC BASIS TOWARDS UNVERIFIABLE EXPENSES OUT OF EXPENSES DEBITED IN PROFIT AND LOSS ACCOUNT HAS NOT RESULTED INTO ADDITION TO BUSINESS INCOME. 4) ON THE FACTS AND IN LAW THE ID. CIT(A) HAS ERRED IN NOT ALLOWING DEDUCTION U/S. 80IA(4) IN RESPECT OF ADDIT ION OF RS. 25 34 486/- ON ACCOUNT OF DISALLOWANCE OF ADVANCES GIVEN FOR BUSINESS PURPOSES WRITTEN OFF. 5) ON THE FACTS AND IN LAW THE ID. CIT(A) HAS ERRED IN HOLDING THAT ADDITION OF RS. 25 34 486/- ON ACCOUNT OF DISALLOWANCE OF ADVANCES GIVEN FOR BUSINESS PURPOSE S WRITTEN OFF HAS RESULTED INTO 'INCOME FROM OTHER SO URCES'. 6) ON THE FACTS AND IN LAW THE ID. CIT(A) HAS ERRED IN HOLDING THAT ADDITION OF RS.25 34 486/- ON ACCOUNT OF DISALLOWANCE OF ADVANCES GIVEN FOR BUSINESS PURPOSE S HAS NOT RESULTED INTO ADDITION TO BUSINESS INCOME. 6.1 FIRST ISSUE OF CLAIM OF DEDUCTION U/S. 80IA(4) WITH REGARD TO ADDITIONAL INCOME OF RS.50.00 LAKHS IS SIMILAR TO T HAT OF A.Y. 2007-08. FACTS BEING SIMILAR SO FOLLOWING SAME RE ASONING ORDER OF CIT(A) ON THIS ISSUE IS UPHELD. 13 6.2 AS REGARDS ADDITION OF RS.25 34 486/- IN A.Y. 2 008-09 THE CIT(A) FOUND THAT SAID AMOUNT WAS SHOWN AS ADVANCES MADE IN EARLIER YEAR FOR THE PURPOSE OF BUSINESS. DURING T HE COURSE OF ASSESSMENT PROCEEDINGS ASSESSEE HOWEVER COULD NOT SUBSTANTIATE ITS CLAIM. HE DID NOT FURNISH ANY DOC UMENTARY EVIDENCES IN SUPPORT OF SAID CLAIM. THE ASSESSEE A LSO AGREED FOR SAID DISALLOWANCES. DURING APPELLATE PROCEEDINGS STAND OF ASSESSEE HAS BEEN THAT ADDITION WAS IN RESPECT OF I NFRASTRUCTURE HENCE WILL LEAD TO ENHANCEMENT OF INCOME TO THIS EX TENT. SINCE INCOME WAS ELIGIBLE FOR DEDUCTION U/S. 80IA(4) THI S INCOME TO THE EXTENT OF RS.25 34 486/- WAS ALSO FOUND ELIGIBLE FO R DEDUCTION CLAIMED ON BEHALF OF ASSESSEE. HOWEVER CIT(A) ON CONSIDERATION OF SUBMISSIONS MADE ON BEHALF OF ASSESSEE HELD THA T THE SAID ADVANCES WERE STATED TO HAVE BEEN GIVEN EARLIER YEA R FOR BUSINESS PURPOSE. SINCE THE ASSESSEE COULD NOT SUBSTANTIATE THE SAME BY ANY DOCUMENTARY EVIDENCE IT AGREED FOR ADDITION OF SAID AMOUNT. EVEN DURING APPELLATE PROCEEDINGS THE ASSESSEE FAI LED TO CONTROVERT THE SAID ADDITION BY FURNISHING ANY DOCU MENTARY EVIDENCES. SINCE THE ASSESSEE AGREED FOR ADDITION AND NOT PRODUCED ANY EVIDENCE TO REBUT ITS EARLIER STATEMEN TS FOR THE SAID AGREED ADDITION THE ASSESSING OFFICER WAS JUSTIFIE D IN MAKING THE ADDITION. THE SAME WAS RIGHTLY CONFIRMED BY THE CI T(A) BECAUSE ASSESSEE HAS AGREED FOR SAME BEFORE ASSESSING OFFIC ER MOREOVER THE SAID ADVANCES WERE STATED TO HAVE BEEN GIVEN IN EARLIER YEAR FOR BUSINESS PURPOSE. SINCE ASSESSEE COULD NOT SUB STANTIATE THE SAME BY ANY DOCUMENTARY EVIDENCE HE AGREED FOR SAID ADDITION OF THE SAID AMOUNT. EVEN BEFORE FIRST APPELLATE AUTHO RITY ASSESSEE COULD NOT CONTROVERT THE SAME. ACCORDINGLY ORDER OF THE CIT(A) ON THIS ISSUE IS UPHELD. 7. IN THE RESULT THE APPEALS FILED BY REVENUE CRO SS OBJECTIONS BY ASSESSEE AS WELL AS APPEALS OF ASSESSEE IN BOTH THE YEARS ARE DISMISSED. 14 PRONOUNCED IN THE OPEN COURT ON THE DAY OF 30 TH OCTOBER 2013. SD/- SD/- (G.S. PANNU) (SHAILENDRA KUMAR YADA V) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE DATED: 30 TH OCTOBER 2013 GCVSR COPY TO:- 1) DEPARTMENT 2) ASSESSEE 3) THE CIT(A)-II NASHIK 4) THE CIT-II NASHIK 5) THE DR A BENCH I.T.A.T. PUNE. 6) GUARD FILE //TRUE COPY// BY ORDER SENIOR PRIVATE SECRETARY I.T.A.T. PUNE