M/s KMC Constructions Limited,, Hyderabad v. Dy.CIT, Circle 2(1),, Hyderabad

MA 65/HYD/2013 | misc
Pronouncement Date: 04-07-2013 | Result: Partly Allowed

Appeal Details

RSA Number 6522524 RSA 2013
Assessee PAN AABCK6483B
Bench Hyderabad
Appeal Number MA 65/HYD/2013
Duration Of Justice 4 month(s)
Appellant M/s KMC Constructions Limited,, Hyderabad
Respondent Dy.CIT, Circle 2(1),, Hyderabad
Appeal Type Miscellaneous Application
Pronouncement Date 04-07-2013
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted A
Tribunal Order Date 04-07-2013
Assessment Year misc
Appeal Filed On 04-03-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A' HYDERABAD BEFORE SHRI CHANDRA POOJARI ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN JUDICIAL MEMB ER MISC. APPLN. NO.64/HYD/2013 (IN ITA NO.558/HYD/2006) : ASSTT. YEAR 2003-04 MISC. APPLN. NO.65/HYD/2013 (IN ITA NO.1223/HYD/2007) : ASSTT. YEAR 2005-06 MISC. APPLN. NO.66/HYD/2013 (IN ITA NO.1027/HYD/2007) : ASSTT. YEAR 2004-05 MISC. APPLN. NO.67/HYD/2013 (IN ITA NO.338/HYD/2009) : ASSTT. YEAR 2006-07 MISC. APPLN. NO.68/HYD/2013 (IN ITA NO.84/HYD/2010) : ASSTT. YEAR 2007-08 M/S. KMC CONSTRUCTIONS LTD. HYDERABAD ( PAN - AABCK 6483 B ) V/S. DY. COMMISSIONER OF INCOME - TAX CIRCLE 2(1) HYDERABAD (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI S.RAMA RAO RESPONDENT BY : SHRI GANGADHAR PANDA DR DATE OF HEARING 31.05.2013 DATE OF PRONOUNCEMENT 04.07.2013 O R D E R PER CHANDRA POOJARI ACCOUNTANT MEMBER: THESE FIVE MISCELLANEOUS APPLICATIONS HAVE BEEN F ILED BY THE ASSESSEE SEEKING RECTIFICATION IN THE COMMON OR DER OF THE TRIBUNAL DATED 16.3.2012 IN SO FAR AS IT RELATED TO ITA NOS. 338/HYD./2009 ITA NO.84/HYD/2010 ITA NO.558/HYD/2003 ITA NO.1027/HY D/2007 AND MA NO64 TO 68/HYD/2013 ( IN ITA NO.558/.HYD/2006 & 4 ORS) M/S. KMC CONSTRUCTIONS LTD. HYDERABAD 2 1223/HYD/2007 FOR THE ASSESSMENT YEARS 2003-04 TO 2007-08 ON THE GROUND THAT CERTAIN MISTAKES APPARENT FROM RECORD H AVE CREPT INTO THE SAME. 2. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATIN G THE AVERMENTS MADE IN THE PRESENT APPLICATIONS SUBMITTE D THAT THE ASSESSEE CAME ON APPEAL BEFORE THE TRIBUNAL ON THE ISSUE RELATING TO ALLOWABILITY OF DEDUCTION UNDER S.80IA(4) OF THE IN COME-TAX ACT. THE TRIBUNAL AFTER CONSIDERING THE ENTIRE FACTS AND CIR CUMSTANCES OF THE CASE OBSERVED THAT THE ASSESSEE IS A DEVELOPER OF I NFRASTRUCTURE PROJECTS AND IS ENTITLED FOR DEDUCTION UNDER S.80IA (4) OF THE ACT. WHILE GIVING SUCH FINDINGS THE TRIBUNAL CONSIDERED 19 INFRASTRUCTURE PROJECTS CARRIED OUT BY THE ASSESSEE FOR THESE ASSE SSMENT YEARS AS PROJECTS ELIGIBLE FOR DEDUCTION UNDER S.80IA(4). F URTHER LEARNED COUNSEL SUBMITTED THAT THE TRIBUNAL HAS GIVEN A CLE AR FACTUAL FINDING THAT THE DEDUCTION UNDER S.80IA(4) WOULD BE ALLOWAB LE PROPORTIONATELY BASED ON THE TOTAL TURNOVER OF THE PROJECTS. 3. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED THAT IN SPITE OF THE CLEAR-CUT DIRECTION OF THE TRIBUNAL T HE ASSESSING OFFICER ISSUED FRESH SHOW-CAUSE NOTICE TO MAKE FURTHER ENQU IRIES AND PROCEEDED TO PASS A CONSEQUENTIAL ORDERS THEREAFTER AGAIN DECLINING TO GRANT DEDUCTION UNDER S.80IA(4) OF THE ACT WHICH ACTION OF THE ASSESSING OFFICER AMOUNTS TO HIS SITTING IN JUDGMEN T OVER THE ORDER OF THE TRIBUNAL. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED ON THE ORDER OF THE TRIBUNAL AND SUBMITTED THAT THE TRIBUN AL HAS REMITTED THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH CONSIDERATION. BEING SO THE ASSESSING OFFICER CORRECTLY PROCEEDED TO ENQUIRE ABOUT MA NO64 TO 68/HYD/2013 ( IN ITA NO.558/.HYD/2006 & 4 ORS) M/S. KMC CONSTRUCTIONS LTD. HYDERABAD 3 EACH PROJECT SO AS TO DETERMINE THE PROJECTS WHICH ARE ENTITLED FOR DEDUCTION UNDER S.80IA(4) OF THE ACT WHILE GIVING EFFECT TO THE ORDER OF THE TRIBUNAL. 5. WE HEARD BOTH THE PARTIES AND PERUSED THE MATER IAL AVAILABLE ON RECORD. FOR THE ASSESSMENT YEARS UNDE R APPEAL THE ASSESSEE CAME IN APPEAL BEFORE THE TRIBUNAL CHALLE NGING THE ACTION OF THE REVENUE AUTHORITIES IN DENYING THE DEDUCTION UN DER S.80IA(4) OF THE ACT. THE TRIBUNAL AFTER CONSIDERING THE SUBMISS IONS OF THE LEARNED COUNSEL IN THE LIGHT OF THE GROUNDS RAISED BEFORE T HE TRIBUNAL AND APPRAISING THE VARIOUS DATA FURNISHED BEFORE THE TR IBUNAL IN THE PAPER- BOOK CAME TO THE CONCLUSION THAT THE ASSESSEE IS A DEVELOPER AND IS ENTITLED FOR DEDUCTION UNDER S.80IA(4) OF THE ACT. FOR CLARITY WE REPRODUCE THE RELEVANT PARAGRAPHS OF THE ORDER OF T HE TRIBUNAL- 44. WE HAVE CONSIDERED THE ELABORATE SUBMISSIONS M ADE BY BOTH THE PARTIES AND ALSO PERUSED THE MATERIALS AVAILABLE ON RECORD. WE HAVE ALSO GONE THROUGH ALL THE CASE LAWS CITED BY BOTH T HE PARTIES. WE FIND THAT THE PROVISIONS OF SECTION 80IA(4) OF THE ACT W HEN INTRODUCED AFRESH BY THE FINANCE ACT 1999 THE PROVISIONS UND ER SECTION 80IA(4A) OF THE ACT WERE DELETED FROM THE ACT. THE DEDUCTION AVAILABLE FOR ANY ENTERPRISE EARLIER UNDER SECTION 80IA (4A) ARE ALSO MADE AVAILABLE UNDER SECTION 80IA (4) ITSELF. FURTH ER THE VERY FACT THAT THE LEGISLATURE MENTIONED THE WORDS (I) 'DEVEL OPING' OR (II) 'OPERATING AND MAINTAINING' OR (III) 'DEVELOPING O PERATING AND MAINTAINING' CLEARLY INDICATES THAT ANY ENTERPRISE WHICH CARRIED ON ANY OF THESE THREE ACTIVITIES WOULD BECOME ELIGIBLE FOR DEDUCTION. THEREFORE THERE IS NO AMBIGUITY IN THE INCOME-TAX ACT. WE FIND THAT WHERE AN ASSESSEE INCURS EXPENDITURE ON ITS OWN FOR PURCHASE OF MATERIALS AND TOWARDS LABOUR CHARGES AND ITSELF EXE CUTES THE DEVELOPMENT WORK I.E. CARRIES OUT THE CIVIL CONSTR UCTION WORK IT WILL BE ELIGIBLE FOR TAX BENEFIT UNDER SECTION 80 IA OF THE ACT. IN CONTRAST TO THIS A ASSESSEE WHO ENTERS INTO A CONTRACT WIT H ANOTHER PERSON INCLUDING GOVERNMENT OR AN UNDERTAKING OR ENTERPRIS E REFERRED TO IN SECTION 80 IA OF THE ACT FOR EXECUTING WORKS CONTR ACT WILL NOT BE ELIGIBLE FOR THE TAX BENEFIT UNDER SECTION 80 IA OF THE ACT. WE FIND THAT THE WORD 'OWNED' IN SUB-CLAUSE (A) OF CLAUSE (1) OF SUB SECTION (4) OF SECTION 80IA OF THE ACT REFER TO THE ENTERPRISE. BY READING OF THE SECTION IT IS CLEAR THAT THE ENTERPRISES CARRYING ON DEVELOPMENT OF INFRASTRUCTURE DEVELOPMENT SHOULD BE OWNED BY THE C OMPANY AND NOT THAT THE INFRASTRUCTURE FACILITY SHOULD BE OWNED BY A COMPANY. THE PROVISIONS ARE MADE APPLICABLE TO THE PERSON TO WHO M SUCH MA NO64 TO 68/HYD/2013 ( IN ITA NO.558/.HYD/2006 & 4 ORS) M/S. KMC CONSTRUCTIONS LTD. HYDERABAD 4 ENTERPRISE BELONGS TO IS EXPLAINED IN SUB-CLAUSE (A ). THEREFORE THE WORD 'OWNERSHIP' IS ATTRIBUTABLE ONLY TO THE ENTERP RISE CARRYING ON THE BUSINESS WHICH WOULD MEAN THAT ONLY COMPANIES A RE ELIGIBLE FOR DEDUCTION UNDER SECTION 80IA(4) AND NOT ANY OTHER P ERSON LIKE INDIVIDUAL HUF FIRM ETC. 45. WE ALSO FIND THAT ACCORDING TO SUB-CLAUSE (A) CLAUSE (I) OF SUB SECTION (4) OF SECTION 80-IA THE WORD 'IT' DENOTES THE ENTERPRISE CARRYING ON THE BUSINESS. THE WORD 'IT' CANNOT BE R ELATED TO THE INFRASTRUCTURE FACILITY PARTICULARLY IN VIEW OF TH E FACT THAT INFRASTRUCTURE FACILITY INCLUDES RAIL SYSTEM HIGHW AY PROJECT WATER TREATMENT SYSTEM IRRIGATION PROJECT A PORT AN AI RPORT OR AN INLAND PORT WHICH CANNOT BE OWNED BY ANY ONE. EVEN OTHERWI SE THE WORD 'IT' IS USED TO DENOTE AN ENTERPRISE. THEREFORE TH ERE IS NO REQUIREMENT THAT THE ASSESSEE SHOULD HAVE BEEN THE OWNER OF THE INFRASTRUCTURE FACILITY. 46. THE NEXT QUESTION IS TO BE ANSWERED IS WHETHER THE ASSESSEE IS A DEVELOPER OR MERE WORKS CONTRACTOR. THE REVENUE REL IED ON THE AMENDMENTS BROUGHT IN BY THE FINANCE ACT 2007 AND 2 009 TO MENTION THAT THE ACTIVITY UNDERTAKEN BY THE ASSESSEE IS AKI N TO WORKS CONTRACT AND HE IS NOT ELIGIBLE FOR DEDUCTION UNDER SECTION 80IA (4) OF THE ACT. WHETHER THE ASSESSEE IS A DEVELOPER OR WORKS CONTRA CTOR IS PURELY DEPENDS ON THE NATURE OF THE WORK UNDERTAKEN BY THE ASSESSEE. EACH OF THE WORK UNDERTAKEN HAS TO BE ANALYZED AND A CON CLUSION HAS TO BE DRAWN ABOUT THE NATURE OF THE WORK UNDERTAKEN BY TH E ASSESSEE. THE AGREEMENT ENTERED INTO WITH THE GOVERNMENT OR THE G OVERNMENT BODY MAY BE A MERE WORKS CONTRACT OR FOR DEVELOPMEN T OF INFRASTRUCTURE. IT IS TO BE SEEN FROM THE AGREEMENT S ENTERED INTO BY THE ASSESSEE AND THE GOVERNMENT. WE FIND THAT THE GOVERNMENT/GOVERNMENT BODY HANDED OVER THE POSSESSI ON OF THE PREMISES OR THE EXISTING ROAD TO THE ASSESSEE TILL THE DEVELOPMENT OF INFRASTRUCTURE FACILITY. IT IS THE ASSESSEE'S RESPO NSIBILITY TO DO ANY ACT TILL THE POSSESSION OF PROPERTY IS HANDED OVER TO T HE GOVERNMENT. IF THE EXISTING ROAD IS TO BE DEVELOPED INTO A FOUR LA NE ROAD THE FIRST PHASE IS TO TAKE OVER THE EXISTING AND DEVELOPED RO AD. SECONDLY THE ASSESSEE HAS TO ARRANGE FOR THE TRAFFIC AND SHALL F ACILITATE THE PEOPLE TO USE THE FACILITY EVEN WHILE THE PROCESS OF DEVEL OPMENT IS IN PROGRESS. ANY LOSS TO THE PUBLIC CAUSED IN THE PROC ESS WOULD BE THE RESPONSIBILITY OF THE ASSESSEE. THE ASSESSEE HAS TO DEVELOP THE INFRASTRUCTURE FACILITY. IN THE PROCESS ALL THE WO RKS ARE TO BE EXECUTED BY THE ASSESSEE. IT MAY BE LAYING OF A DRAINAGE SYS TEM; MAY BE CONSTRUCTION OF A PROJECT; PROVISION OF WAY FOR THE CATTLE AND BULLOCK CARTS IN THE VILLAGE; PROVISION FOR TRAFFIC WITHOUT ANY HINDRANCE THE ASSESSEE'S DUTY IS TO DEVELOP INFRASTRUCTURE WHETHE R IT INVOLVES CONSTRUCTION OF A PARTICULAR ITEM AS AGREED TO IN T HE AGREEMENT OR NOT. THE AGREEMENT IS NOT FOR A SPECIFIC WORK IT IS FOR DEVELOPMENT OF FACILITY AS A WHOLE. THE ASSESSEE IS NOT ENTRUSTED WITH ANY SPECIFIC WORK TO BE DONE BY THE ASSESSEE. THE MATERIAL REQUI RED IS TO BE BROUGHT IN BY THE ASSESSEE BY STICKING TO THE QUALI TY AND QUANTITY IRRESPECTIVE OF THE COST OF SUCH MATERIAL. THE GOVE RNMENT DOES NOT PROVIDE ANY MATERIAL TO THE ASSESSEE. IT PROVIDES T HE WORKS IN PACKAGES AND NOT AS A WORKS CONTRACT. THE ASSESSEE UTILIZES ITS FUNDS MA NO64 TO 68/HYD/2013 ( IN ITA NO.558/.HYD/2006 & 4 ORS) M/S. KMC CONSTRUCTIONS LTD. HYDERABAD 5 ITS EXPERTISE ITS EMPLOYEES AND TAKES THE RESPONSI BILITY OF DEVELOPING THE INFRASTRUCTURE FACILITY. THE LOSSES SUFFERED EI THER BY THE GOVT. OR THE PEOPLE IN THE PROCESS OF SUCH DEVELOPMENT WOULD BE THAT OF THE ASSESSEE. THE ASSESSEE HANDS OVER THE DEVELOPED INF RASTRUCTURE FACILITY TO THE GOVERNMENT ON COMPLETION OF THE DEV ELOPMENT. THEREAFTER THE ASSESSEE HAS TO UNDERTAKE MAINTENAN CE OF THE SAID INFRASTRUCTURE FOR A PERIOD OF 12 TO 48 MONTHS. DUR ING THIS PERIOD IF ANY DAMAGES ARE OCCURRED IT SHALL BE THE RESPONSIBI LITY OF THE ASSESSEE. FURTHER DURING THIS PERIOD THE ENTIRE I NFRASTRUCTURE SHALL HAVE TO BE MAINTAINED BY THE ASSESSEE ALONE WITHOUT HINDRANCE TO THE REGULAR TRAFFIC. THEREFORE IT IS CLEAR THAT FROM A N UN-DEVELOPED AREA INFRASTRUCTURE IS DEVELOPED AND HANDED OVER TO THE GOVERNMENT AND AS EXPLAINED BY THE CBDT VIDE ITS CIRCULAR DATED 18 -05-2010 SUCH ACTIVITY IS ELIGIBLE FOR DEDUCTION UNDER SECTION 80 IA(4) OF THE ACT. THIS CANNOT BE CONSIDERED AS A MERE WORKS CONTRACT BUT H AS TO BE CONSIDERED AS A DEVELOPMENT OF INFRASTRUCTURE FACIL ITY. THEREFORE THE ASSESSEE IS A DEVELOPER AND NOT A WORKS CONTRACTOR AS PRESUMED BY THE REVENUE. THE CIRCULAR ISSUED BY THE BOARD RELI ED ON BY LEARNED COUNSEL FOR THE ASSESSEE CLEARLY INDICATE THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCTION UNDER SECTION 80IA(4) OF THE ACT. THE DEPARTMENT IS NOT CORRECT IN HOLDING THAT THE ASSESSEE IS A MERE CONT RACTOR OF THE WORK AND NOT A DEVELOPER. 47. WE ALSO FIND THAT AS PER THE PROVISIONS OF THE SECTION 80IA OF THE ACT A PERSON BEING A COMPANY HAS TO ENTER INTO AN AGREEMENT WITH THE GOVERNMENT. SUCH AN AGREEMENT IS A CONTRACT AND FOR THE PURPOSE OF THE AGREEMENT A PERSON MAY BE CALLED AS A CONTRA CTOR AS HE ENTERED INTO A CONTRACT. BUT THE WORD 'CONTRACTOR' IS USED TO DENOTE A PERSON ENTERING INTO AN AGREEMENT FOR UNDERTAKING T HE DEVELOPMENT OF INFRASTRUCTURE FACILITY. EVERY AGREEMENT ENTERED INTO IS A CONTRACT. THE WORD 'CONTRACTOR' IS USED TO DENOTE THE PERSON WHO ENTERS INTO SUCH CONTRACT. EVEN A PERSON WHO ENTERS INTO A CONT RACT FOR DEVELOPMENT OF INFRASTRUCTURE FACILITY IS A CONTRAC TOR. THEREFORE THE CONTRACTOR AND THE DEVELOPER CANNOT BE VIEWED DIFFE RENTLY. EVERY CONTRACTOR MAY NOT BE A DEVELOPER BUT EVERY DEVELOP ER DEVELOPING INFRASTRUCTURE FACILITY ON BEHALF OF THE GOVERNMENT IS A CONTRACTOR. THEREFORE THE FIRST APPELLATE AUTHORITY RIGHTLY HE LD THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCTION UNDER SECTION 80IA (4) FO R THE ASSESSMENT YEARS 2000-01 2001-02 AND 2002-03. 48. WE FIND THAT THE DECISION RELIED ON BY THE LEAR NED COUNSEL FOR THE ASSESSEE IN THE CASE OF CIT VS. LAXMI CIVIL ENGINEE RING WORKS [ITA NO. 766/PUN/09 DATED 8.6.2011] SQUARELY APPLICABLE TO T HE ISSUE UNDER DISPUTE WHICH IS IN FAVOUR OF THE ASSESSEE WHEREIN IT WAS HELD THAT MERE DEVELOPMENT OF INFRASTRUCTURE FACILITY IS AN E LIGIBLE ACTIVITY FOR CLAIMING DEDUCTION UNDER SECTION 80IA OF THE ACT AF TER CONSIDERING THE JUDGEMENT OF THE MUMBAI HIGH COURT IN THE CASE OF ABG HEAVY ENGINEERING [SUPRA].THE CASE OF ABG IS NOT THE PURE DEVELOPER WHEREAS IN THE PRESENT CASE THE ASSESSEE IS THE P URE DEVELOPER. WE ALSO FIND THAT SECTION 80IA OF THE ACT INTENDED TO COVER THE ENTITIES CARRYING OUT DEVELOPING OPERATING AND MAINTAINING THE INFRASTRUCTURE FACILITY KEEPING IN MIND THE PRESENT BUSINESS MODEL S AND INTEND TO GRANT THE INCENTIVES TO SUCH ENTITIES. THE CBDT ON SEVERAL OCCASIONS MA NO64 TO 68/HYD/2013 ( IN ITA NO.558/.HYD/2006 & 4 ORS) M/S. KMC CONSTRUCTIONS LTD. HYDERABAD 6 CLARIFIED THAT PURE DEVELOPER SHOULD ALSO BE ELIGIB LE TO CLAIM DEDUCTION UNDER SECTION 80IA OF THE ACT WHICH ULTI MATELY CULMINATED INTO AMENDMENT UNDER SECTION 80IA OF THE ACT IN TH E FINANCE ACT 2001 TO GIVE EFFECT TO THE AFORESAID CIRCULARS ISS UED BY THE CBDT. WE ALSO FIND THAT TO AVOID MISUSE OF THE AFORESAID AM ENDMENT AN EXPLANATION WAS INSERTED IN SECTION 80IA OF THE ACT IN THE FINANCE ACT-2007 AND 2009 TO CLARIFY THAT MERE WORKS CONTR ACT WOULD NOT BE ELIGIBLE FOR DEDUCTIONS UNDER SECTION 80IA OF THE A CT. BUT CERTAINLY THE EXPLANATION CANNOT BE READ TO DO AWAY WITH THE ELIGIBILITY OF THE DEVELOPER; OTHERWISE THE PARLIAMENT WOULD HAVE SIM PLY REVERSED THE AMENDMENT MADE IN THE FINANCE ACT 2001. THUS THE AFORESAID EXPLANATION WAS INSERTED CERTAINLY TO DENY THE TA X HOLIDAY TO THE ENTITIES WHO DOES ONLY MERE WORKS CONTACT OR SUB-CO NTRACT AS DISTINCT FROM THE DEVELOPER. THIS IS CLEAR FROM THE EXPRESS INTENSION OF THE PARLIAMENT WHILE INTRODUCING THE EXPLANATION. THE E XPLANATORY MEMORANDUM TO FINANCE ACT 2007 STATES THAT THE PURP OSE OF THE TAX BENEFIT HAS ALL ALONG BEEN TO ENCOURAGE INVESTMENT IN DEVELOPMENT OF INFRASTRUCTURE SECTOR AND NOT FOR THE PERSONS WHO M ERELY EXECUTE THE CIVIL CONSTRUCTION WORK. IT CATEGORICALLY STATES TH AT THE DEDUCTION UNDER SECTION 80IA OF THE ACT IS AVAILABLE TO DEVEL OPERS WHO UNDERTAKES ENTREPRENEURIAL AND INVESTMENT RISK AND NOT FOR THE CONTRACTORS WHO UNDERTAKES ONLY BUSINESS RISK. WE HAVE CAREFULLY GONE THROUGH THE VARIOUS ACTIVITIES CARRIED ON BY T HE ASSESSEE. AN ANALYSIS OF THE WORKS UNDERTAKEN BY THE ASSESSEE CL EARLY INDICATES THAT IT CARRIED ON THE ACTIVITIES OF DEVELOPMENT OF INFRASTRUCTURE FACILITY. FOR CLARITY WE REPRODUCE ONE OF THE PROJE CTED UNDERTAKEN BY THE ASSESSEE. NATURE OF WORK :: WIDENING TO FOUR LANES AND STRENGTHENING OF EXISTING TWO LANE CARRIAGEWAY IN KM. 27.80 TO KM. 6 1.00 JAGATPUR- CHANDIKHOL SECTION OF NATIONAL HIGHWAY NO.5 IN THE STATE OF ORISSA. THE SAID WORK IS FINANCED BY :: OVERSEAS ECONOMIC CO-OPERATION FUND JAPAN TO THE GOVERNMENT OF INDIA. THE GOVERNMENT OF INDIA AUTHORIZED TO GET THE WORK DONE BY INVITATION OF TE NDER. THE SOURCE OF FUND AS MENTIONED IN THE TENDER (HERE IN DOCUMENT AFTER REFERRED TO AS THE FUND) : THE GOVERNMENT OF INDIA HAS RECEIVED A LOAN FROM THE OVERSEAS ECONOMIC COOPERATION FUND TO WARDS THE COST OF WIDENING TO FOUR TENDER (HEREIN LANES AND STRENG THENING OF EXISTING TWO LANE CARRIAGEWAY IN KM. 27.80 TO KM 61 .00 IN JAGATPUR- CHANDIKHOL SECTION OF NH-5 IN THE STATE OF ORISSA AND INTENDS TO APPLY PART OF THE PROCEEDS OF THIS LOAN TO ELIGIBLE PAYMENTS UNDER THE CONTRACT (HEREINAFTER REFERRED TO AS THE 'CONTRACT) FOR WHICH THE NOTICE INVITING TENDERS HAS BEEN ISSUED BY THE EMPL OYER AS AUTHORIZED BY THE GOVERNMENT OF INDIA. PAYMENT BY T HE OVERSEAS ECONOMIC CO- OPERATION FUND(OECF) WILL BE MADE ONLY AT THE REQUEST OF THE GOVERNMENT OF INDIA AND UPON APPROVAL BY THE BANK IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE LOA N AGREEMENT. EXCEPT AS THE BANK MAY SPECIFICALLY OTHERWISE AGREE NO PARTY OTHER THAN THE BORROWER SHALL DERIVE ANY RIGHTS FROM THE LOAN AGREEMENT OR HAVE ANY CLAIM TO THE LOAN PROCEEDS. MA NO64 TO 68/HYD/2013 ( IN ITA NO.558/.HYD/2006 & 4 ORS) M/S. KMC CONSTRUCTIONS LTD. HYDERABAD 7 SCOPE OF WORK : THE WORK BROADLY COMPRISES OF A) CONSTRUCTION OF ADDITIONAL TWO LANE CARRIAGEWAY BY THE SIDE OF EXISTING TWO LANE ROAD IN KM 27.80 TO 61.00 B) STRENGTHENING OF EXISTING PAVEMENT BY PROVIDING BIT UMINOUS STRENGTHENING OVERLAYS C) PROVISION OF CENTRAL MEDIAN PAVEMENT SHOULDERS AND SERVICE ROADS. D) IMPROVEMENT OF JUNCTIONS/ GEOMETRICS PAVEMENT PROF ILE CORRECTION LANE MARKING AND PROVIDING ROAD SIGNAGE S. E) REPAIR/REHABILITATION OF EXISTING BRIDGES. F) CONSTRUCTION/RECONSTRUCTION OF BRIDGES. G) IMPROVEMENT OF DRAINAGE SYSTEM WIDENING/PROVIDING CULVERTS CATTLE CROSSINGS ETC. H) OTHER MISCELLANEOUS ITEMS PERTINENT TO THE PROJECT. I) MAINTENANCE OF THE SAID INFRASTRUCTURE FOR A PERIOD OF 48 MONTHS (DURING THE PERIOD OF DEVELOPMENT OF 36 MONTHS AND DEFECT LIABILITY PERIOD OF 12 MONTHS) 49. FOR THIS PURPOSE THE POSSESSION OF THE SITE IS HANDED OVER TO THE ASSESSEE BY THE GOVERNMENT. THE ASSESSEE TAKES POSS ESSION AND ACCESS TO THE PROPERTY AND THEREAFTER IT SHALL BE T HE RESPONSIBILITY OF THE ASSESSEE TO DEVELOP THE SAID AREA INTO MORE USE FUL INFRASTRUCTURE FACILITY. IN THE PROCESS EVERY ACT REQUIRED (WHETH ER MENTIONED IN THE AGREEMENT OR NOT) IN CONVERTING THE AREA INTO MORE USEFUL ONE SHALL BE THAT OF THE ASSESSEE. THE ASSESSEE HAS TO UNDERT AKE THE RESPONSIBILITY OF MAINTENANCE OF THE EXISTING TRAFF IC AND THERE SHOULD NOT BE INCONVENIENCE TO THE REGULAR TRAFFIC. THE DE VELOPED AREA AFTER COMPLETION OF THE DEVELOPMENT OF INFRASTRUCTURE IS HANDED OVER TO THE GOVERNMENT. AFTER HANDING OVER THE ASSESSEE SHALL MAINTAIN THE INFRASTRUCTURE FOR A PERIOD OF 48 MONTHS AND ANY DE FECTS ARE TO BE RECTIFIED. 50. FROM THE ABOVE FACTS IT IS CLEAR THAT THE ASSES SEE IS CONVERTING THE AREA ENTRUSTED TO IT INTO MORE USEFUL AND MORE PROF ITABLE AREA AND HANDING OVER THE DEVELOPED ONE TO THE GOVERNMENT/GO VERNMENT BODIES. THEREFORE THE ACTIVITY OF THE ASSESSEE IS ' TO DEVELOP' AN EXISTING TWO LANE ROAD INTO FOUR LANE ROAD THEREBY MAKING THE ROAD MORE USEFUL AND PROFITABLE. 51. WITHOUT ANY DOUBT THE LEARNED COUNSEL FOR THE ASSESSEE CLEARLY DEMONSTRATED BEFORE US THAT THE ASSESSEE AT PRESENT HAS UNDERTAKEN HUGE RISKS IN TERMS OF DEPLOYMENT OF TECHNICAL PERS ONNEL PLANT AND MACHINERY TECHNICAL KNOW-HOW EXPERTISE AND FINANC IAL RESOURCES. 52. THEREFORE IN OUR CONSIDERED VIEW THE ASSESSEE SHOULD NOT BE DENIED THE DEDUCTION UNDER SECTION 80IA OF THE ACT AS THE CONTRACTS INVOLVE DEVELOPMENT/CONSTRUCTION OPERATING/MAINTEN ANCE FINANCIAL INVOLVEMENT AND DEFECT CORRECTION AND LIABILITY PE RIOD THEN SUCH CONTRACTS CANNOT BE CALLED AS SIMPLE WORKS CONTRACT . IN OUR OPINION THE CONTRACTS WHICH CONTAIN ABOVE FEATURES ARE TO B E SEGREGATED AND ON THESE CONTRACTS DEDUCTION U/S. 80-IA HAS TO BE G RANTED AND THE OTHER AGREEMENTS WHICH ARE IN THE NATURE OF PURE WO RKS CONTRACTS HIT MA NO64 TO 68/HYD/2013 ( IN ITA NO.558/.HYD/2006 & 4 ORS) M/S. KMC CONSTRUCTIONS LTD. HYDERABAD 8 BY THE EXPLANATION TO SECTION 80IA(13) THOSE WORKS ARE NOT ENTITLE FOR DEDUCTION U/S 80IA OF THE ACT. THE PROFIT FROM SUCH IS TO BE COMPUTED BY ASSESSING OFFICER ON PRO-RATA BASIS OF TURNOVER. THE ASSESSING OFFICER IS DIRECTED TO EXAMINE ACCORDINGL Y AND GRANT DEDUCTION ON ELIGIBLE TURNOVER AS DIRECTED ABOVE. I T IS NEEDLESS TO SAY THAT DEDUCTION U/S 80IA WAS GRANTED IN SIMILAR CASE BY THE CHENNAI BENCH OF THE TRIBUNAL AND DEDUCTION U/S. 80IA WAS G RANTED IN THE CASE OF M/S. CHETTINAD LIGNITE TRANSPORT SERVICES ( P) LTD. IN ITA NO. 2287/MDS/06 ORDER DATED 27TH JULY 2007 FOR THE ASS ESSMENT YEAR 2004-05. LATER IN ITA NO. 1179/MDS/08 VIDE ORDER DA TED 26TH FEBRUARY 2010 THE TRIBUNAL HAS TAKEN THE SAME VIEW BY INTER-ALIA HOLDING AS FOLLOWS: '7. MOREOVER THE REASONS FOR INTRODUCING THE EXPLA NATION WERE CLARIFIED AS PROVIDING A TAX BENEFIT BECAUSE MODERN ISATION REQUIRES A MASSIVE EXPANSION AND QUALITATIVE IMPROV EMENT IN INFRASTRUCTURES LIKE EXPRESSWAYS HIGHWAYS AIRPORT S PORTS AND RAPID URBAN RAIL TRANSPORT SYSTEMS. FOR THAT PURPOS E PRIVATE SECTOR PARTICIPATION BY WAY OF INVESTMENT IN DEVELO PMENT OF THE INFRASTRUCTURE SECTOR AND NOT FOR THE PERSONS W HO MERELY EXECUTE THE CIVIL CONSTRUCTION WORK OR ANY OTHER WO RK CONTRACT HAS BEEN ENCOURAGED BY GIVING TAX BENEFITS. THUS TH E PROVISIONS OF SECTION 80IA SHALL NOT APPLY TO A PER SON WHO EXECUTES A WORKS CONTRACT ENTERED INTO WITH THE UND ERTAKING OR ENTERPRISE REFERRED TO IN THE SECTION BUT WHERE A P ERSON MAKES THE INVESTMENT AND HIMSELF EXECUTES THE DEVELOPMENT WORK HE CARRIES OUT THE CIVIL CONSTRUCTION WORK HE WILL BE ELIGIBLE FOR THE TAX BENEFIT UNDER SECTION 80IA.' 6. ONCE THE TRIBUNAL HAS SET ASIDE THE ORDERS IMP UGNED IN THE APPEALS BEFORE IT ON THE ABOVE ISSUE AND RESTORED T HE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH THE ABOVE FINDINGS T HE DUTY OF ASSESSING OFFICER IS TO PASS ORDERS GIVING EFFECT TO THE ORDE R OF THE TRIBUNAL. THE FINDINGS OF THE TRIBUNAL EXTRACTED ABOVE ARE UNAM BIGUOUS CLEAR AND CATEGORICAL IN AS MUCH AS IT HAS SPECIFICALLY DIREC TED THAT THE ASSESSEE SHOULD NOT BE DENIED DEDUCTION UNDER S.80IA OF THE ACT AS THE CONTRACTS INVOLVES DEVELOPMENT OPERATING MAINTEN ANCE FINANCIAL INVOLVEMENT AND DEFECT CORRECTION AND LIABILITY PE RIOD THEN SUCH CONTRACTS CANNOT BE CALLED AS SIMPLE WORKS CONTRACT . IN OUR OPINION THE CONTRACTS WHICH CONTAIN THE ABOVE FEATURES TO B E SEGREGATED AND ON THIS DEDUCTION U/S. 80IA HAS TO BE GRANTED AND T HE OTHER AGREEMENTS WHICH ARE PURE WORKS CONTRACTS HIT BY TH E EXPLANATION MA NO64 TO 68/HYD/2013 ( IN ITA NO.558/.HYD/2006 & 4 ORS) M/S. KMC CONSTRUCTIONS LTD. HYDERABAD 9 SECTION 80IA(13) THOSE WORK ARE NOT ENTITLED FOR D EDUCTION U/S. 80IA OF THE ACT. 7. ACCORDING TO THE LEARNED AUTHORISED REPRESENTAT IVE THE ASSESSING OFFICER HAS NOT PROPERLY UNDERSTOOD THE O RDER OF THE TRIBUNAL AND THE SAME HAS BEEN TOO WIDELY INTERPRETED AND TH ERE APPEARS TO BE MISCONCEPTIONS ABOUT THE NATURE THEREOF AND THE BIN DING EFFECT OF THE ORDER OF THE TRIBUNAL. IN THIS REGARD IT MAY BE A PPROPRIATE TO POINT OUT THE WELL SETTLED LEGAL POSITION THAT AN ASSESSI NG OFFICER IS BOUND TO FOLLOW THE ORDER OF THE TRIBUNAL. 8. IT IS NECESSARY TO FIRST DECIDE THE LAST SUBM ISSION OF LEARNED COUNSEL THAT THIS TRIBUNAL WHILE INTERPRET ING OF AN ALL-INDIA STATUTE LIKE THE INCOME-TAX ACT IS BOUND TO FOLLOW THE DECISION OF ANY OTHER HIGH COURT AND TO DECIDE ACCORDINGLY EVEN IF ITS OWN VIEW IS CONTRARY THERETO IN VIEW OF THE PRACTICE FOLLOWED BY THIS COURT IN SUCH MATTERS. BECAUSE IF WE ARE TO ACCEPT THIS SUBMISSI ON IT WILL BE AN EXERCISE IN FUTILITY TO EXAMINE THE REAL CONTROVERS Y BEFORE US WITH A VIEW TO DECIDE THE ISSUE. 9. AT THE OUTSET IT MAY BE APPROPRIATE TO POINT OUT THE WELL SETTLED LEGAL POSITION THAT WHAT IS BINDING ON THE COURTS IS THE RATIO OF A DECISION. THERE IS A CLEAR DISTINCTION BETWEEN ON T HE COURTS IS THE RATIO OF THE DECISION OBITER DICTA AND OBSERVATIONS FROM THE POINT OF VIEW OF PRECEDENT VALUE OR THEIR BINDING EFFECT. IT WILL BE NECESSARY IN THIS CASE TO EXPLAIN THIS DISTINCTION. BUT BEFORE WE DO SO W E MAY DISCUSS THE PRINCIPLE OF BINDING PRECEDENT. THIS WILL TAKE US T O THE QUESTION WHOSE DECISION BINDS WHOM. 10. FOR DECIDING WHOSE DECISION IS BINDING ON WH OM IT IS NECESSARY TO KNOW THE HIERARCHY OF THE COURTS. IN I NDIA THE SUPREME MA NO64 TO 68/HYD/2013 ( IN ITA NO.558/.HYD/2006 & 4 ORS) M/S. KMC CONSTRUCTIONS LTD. HYDERABAD 10 COURT IS THE HIGHEST COURT OF THE COUNTRY. THAT BEI NG SO SO FAR AS THE DECISIONS OF THE SUPREME COURT ARE CONCERNED IT HA S BEEN STATED IN ARTICLE 141 OF THE CONSTITUTION ITSELF THAT : 'THE LAW DECLARED BY THE SUPREME COURT SHALL BE BIND ING ON ALL COURTS WITHIN THE TERRITORY OF INDIA.' 11. IN THAT VIEW OF THE MATTER ALL COURTS IN IN DIA ARE BOUND TO FOLLOW THE DECISIONS OF THE SUPREME COURT. 12. THOUGH THERE IS NO PROVISION LIKE ARTICLE 14 1 WHICH SPECIFICALLY LAYS DOWNS THE BINDING NATURE OF THE D ECISIONS OF THE HIGH COURTS IT IS A WELL ACCEPTED LEGAL POSITION THAT A SINGLE JUDGE OF A HIGH COURT IS ORDINARILY BOUND TO ACCEPT AS CORRECT JUDG MENTS OF COURTS OF CO-ORDINATE JURISDICTION AND OF THE DIVISION BENCHE S AND OF THE FULL BENCHES OF HIS COURT AND OF THE SUPREME COURT. EQUA LLY WELL SETTLED IS THE POSITION THAT WHEN A DIVISION BENCH OF THE HIGH COURT GIVES A DECISION ON A QUESTION OF LAW IT SHOULD GENERALLY BE FOLLOWED BY A CO- ORDINATE BENCH IN THE SUBSEQUENT CASE WANTS THE EAR LIER DECISION TO BE RECONSIDERED IT SHOULD REFER THE QUESTION AT ISSUE TO A LARGER BENCH. 13. IT IS EQUALLY WELL SETTLED THAT THE DECISION OF ONE HIGH COURT IS NOT A BINDING PRECEDENT ON ANOTHER HIGH COURT. T HE SUPREME COURT IN VALLIAMA CHAMPAKA PILLAI V. SIVATHANU PILLAI(AIR 1979 1937) DEALING WITH THE CONTROVERSY WHETHER A DECISION OF THE ERSTWHILE TRAVANCORE HIGH COURT CAN BE MADE A BINDING PRECEDE NT ON THE MADRAS HIGH COURT ON THE BASIS OF THE PRINCIPLE OF STARE DECISIS CLEARLY HELD THAT SUCH A DECISION CAN AT BEST HAVE PERSUASI VE EFFECT AND NOT THE FORCE OF BINDING PRECEDENT ON THE MADRAS HIGH C OURT. REFERRING TO THE STATES REORGANISATION ACT IT WAS OBSERVED THAT THERE WAS NOTHING IN THE SAID ACT OR ANY OTHER LAW WHICH EXALTS THE R ATIO OF THOSE DECISIONS TO THE STATUS OF A BINDING LAW NOR COULD THE RATIO DECIDENDI OF MA NO64 TO 68/HYD/2013 ( IN ITA NO.558/.HYD/2006 & 4 ORS) M/S. KMC CONSTRUCTIONS LTD. HYDERABAD 11 THOSE DECISIONS BE PERPETUATED BY INVOKING THE DOCT RINE OF STARE DECISIS. THE DOCTRINE OF STARE DECISIS CANNOT BE ST RETCHED THAT FAR AS TO MAKE THE DECISION OF ONE HIGH COURT A BINDING PRECE DENT FOR THE OTHER. THIS DOCTRINE IS APPLICABLE ONLY TO DIFFERENT BENCH ES OF THE SAME HIGH COURT. 14. IT IS ALSO WELL-SETTLED THAT THOUGH THERE IS NO SPECIFIC PROVISION MAKING THE LAW DECLARED BY THE HIGH COURT BINDING ON SUBORDINATE COURTS IT IS IMPLICIT IN THE POWER OF SUPERVISION CONFERRED ON A SUPERIOR TRIBUNAL THAT THE TRIBUNALS SUBJECT T O ITS SUPERVISION WOULD CONFIRM TO THE LAW LAID DOWN BY IT. IT IS IN THAT VIEW OF THE MATTER THAT THE SUPREME COURT IN EAST INDIA COMMERC IAL CO. LTD. V. COLLECTOR OF CUSTOMS (AIR 1962(SC) 1893 (AT P.1905) : 'WE THEREFORE HOLD THAT THE LAW DECLARED BY THE H IGHEST COURT IN THE STATE IS BINDING ON AUTHORITIES OR TRIBUNALS UNDER ITS SUPERINTENDENCE AND THEY CANNOT IGNORE IT.......' 15. THIS POSITION HAS BEEN VERY APTLY SUMMED UP B Y THE SUPREME COURT IN MAHADEOLAL KANODIA V. ADMINISTRATO R GENERAL OF WEST BENGAL(AIR 1960 SC 936) (AT P.941) : 'JUDICIAL DECORUM NO LESS THAN LEGAL PROPRIETY FORM S THE BASIS OF JUDICIAL PROCEDURE. IF ONE THING IS MORE NECESSARY IN LAW THAN ANY OTHER THING IT IS THE QUALITY OF CERTAINTY. THAT Q UALITY WOULD TOTALLY DISAPPEAR IF JUDGES OF CO-ORDINATE JURISDICTION IN A HIGH COURT START OVERRULING ONE ANOTHER'S DECISIONS. IF ONE DIVISION BENCH OF A HIGH COURT IS UNABLE TO DISTINGUISH A PREVIOUS DECISION OF ANOTHER DIVISION BENCH AND HOLDING THE VIEW THAT THE EARLIER DECISI ON IS WRONG ITSELF GIVES EFFECT TO THAT VIEW THE RESULT WOULD BE UTTE R CONFUSION. THE POSITION WOULD BE EQUALLY BAD WHERE A JUDGE SITTING SINGLY IN THE HIGH COURT IS OF OPINION THAT THE PREVIOUS DECISION OF A NOTHER SINGLE JUDGE ON A QUESTION OF LAW IS WRONG AND GIVES EFFECT TO T HAT VIEW INSTEAD OF REFERRING THE MATTER TO A LARGER BENCH.' 16. THE ABOVE DECISION WAS FOLLOWED BY THE SUPRE ME COURT IN BARADAKANTA MISHRA V. BHIMSEN DIXIT (AIR 1972 SC 24 66) WHEREIN THE LEGAL POSITION WAS REITERATED IN THE FOLLOWING WORDS (AT PAGE 2469): MA NO64 TO 68/HYD/2013 ( IN ITA NO.558/.HYD/2006 & 4 ORS) M/S. KMC CONSTRUCTIONS LTD. HYDERABAD 12 'IT WOULD BE ANOMALOUS TO SUGGEST THAT A TRIBUNAL O VER WHICH THE HIGH COURT HAS SUPERINTENDENCE CAN IGNORE THE LAW D ECLARED BY THAT COURT AND START PROCEEDINGS IN DIRECT VIOLATION OF IT. IF A TRIBUNAL CAN DO SO ALL THE SUBORDINATE COURTS CAN EQUALLY DO SO FOR THERE IS NO SPECIFIC PROVISION JUST LIKE IN THE CASE OF SUPREM E COURT MAKING THE LAW DECLARED BY THE HIGH COURT BINDING ON SUBORDINA TE COURTS. IT IS IMPLICIT IN THE POWER OF SUPERVISION CONFERRED ON A SUPERIOR TRIBUNAL THAT ALL THE TRIBUNAL SUBJECT TO ITS SUPERVISION SH OULD CONFORM TO THE LAW LAID DOWN BY IT. SUCH OBEDIENCE WOULD ALSO BE C ONDUCIVE TO THEIR SMOOTH WORKING; OTHERWISE THERE WOULD BE CONFUSION IN THE ADMINISTRATION OF LAW AND RESPECT FOR LAW WOULD IRR ETRIEVABLY SUFFER. 17. HAVING DECIDED WHOSE DECISION BINDS WHOM WE MAY NEXT EXAMINE WHAT IS BINDING. IT IS WELL SETTLED THAT IT IS ONLY THE RATIO DECIDENDI THAT HAS A PRECEDENT VALUE. AS OBSERVED B Y THE SUPREME COURT IN S. P. GUPTA V. PRESIDENT OF INDIA (AIR 198 2 SC 149) (AT P.231) : 'IT IS ELEMENTARY THAT WHAT IS BINDING ON THE COURT IN A SUBSEQUENT CASE IS NOT THE CONCLUSION ARRIVED AT IN A PREVIOUS DECISION BUT THE RATIO OF THAT DECISION FOR IT IS THE RATIO WHICH BINDS AS A PRECEDENT AND NOT THE CONCLUSION.' A CASE IS ONLY A N AUTHORITY FOR WHAT IT ACTUALLY DECIDES AND NOT WHAT MAY COME TO FOLLOW LOGICALLY FROM IT. JUDGMENTS OF COURTS ARE NOT TO BE CONSTRUED AS STAT UTES (SEE AMAR NATH OM PARKASH V. STATE OF PUNJAB (1985) 1 SCC 345 ). WHILE FOLLOWING PRECEDENTS THE COURT SHOULD KEEP IN MIND THE FOLLOWING OBSERVATIONS IN MUMBAI KAMGAR SABHA V. ABDULBHAI FA IZULLABHAI (AIR 1976 SC 1455 ) (AT P.1467-68) : 'IT IS TRITE GOING BY ANGLOPHONIC PRINCIPLES THAT A RULING OF A SUPERIOR COURT IS BINDING LAW. IT IS NOT OF SCRIPTU RAL SANCTITY BUT IS OF RATIO-WISE LUMINOSITY WITHIN THE EDIFICE OF F ACTS WHERE THE JUDICIAL LAMP PLAYS THE LEGAL FLAME. BEYOND THOSE W ALLS AND DE HORS THE MILIEU WE CANNOT IMPART ETERNAL VERNAL VAL UE TO THE DECISION EXALTING THE DOCTRINE OF PRECEDENTS INTO A PRISON- HOUSE OF BIGOTRY REGARDLESS OF VARYING CIRCUMSTANC ES AND MYRIAD DEVELOPMENTS. REALISM DICTATES THAT A JUDGME NT HAS TO BE READ SUBJECT TO THE FACTS DIRECTLY PRESENTED FO R CONSIDERATION AND NOT AFFECTING THOSE MATTERS WHICH MAY LURK IN THE RECORD. WHATEVER BE THE POSITION OF A SUBORD INATE COURT'S CASUAL OBSERVATIONS GENERALISATIONS AND SUBSILENTI O DETERMINATIONS MUST BE JUDICIOUSLY READ BY COURTS O F CO- ORDINATE JURISDICTION.' MA NO64 TO 68/HYD/2013 ( IN ITA NO.558/.HYD/2006 & 4 ORS) M/S. KMC CONSTRUCTIONS LTD. HYDERABAD 13 18. DECISION ON A POINT NOT NECESSARY FOR THE PU RPOSE OF THE DECISION OR WHICH DOES NOT FALL TO BE DETERMINED IN THAT DECISION BECOMES AN OBITER DICTUM. SO ALSO OPINIONS ON QUES TIONS WHICH ARE NOT NECESSARY FOR DETERMINING OR RESOLVING THE ACTU AL CONTROVERSY ARISING IN THE CASE PARTAKE OF THE CHARACTER OF OBI TER. OBITER OBSERVATIONS AS SAID BY BHAGWATI J. (AS HIS LORDSH IP THEN WAS) IN ADDL. DISTRICT MAGISTRATE JABALPUR V. SHIVAKANT SH UKLA(AIR 1976 SC 1207) WOULD UNDOUBTEDLY BE ENTITLED TO GREAT WEIG HT BUT 'AN OBITER CANNOT TAKE THE PLACE OF THE RATIO. JUDGES ARE NOT ORACLES.' SUCH OBSERVATIONS DO NOT HAVE ANY BINDING EFFECT AND THE Y CANNOT BE REGARDED AS CONCLUSIVE. AS OBSERVED BY THE PRIVY CO UNCIL IN BAKER V. THE QUEEN [1975] 3 ALL ER 55 (AT PAGE 64) THE COUR T'S AUTHORITATIVE OPINION MUST BE DISTINGUISHED FROM PROPOSITIONS ASS UMED BY THE COURT TO BE CORRECT FOR THE PURPOSE OF DISPOSING OF THE P ARTICULAR CASE. THIS POSITION HAS BEEN MADE FURTHER CLEAR BY THE SUPREME COURT IN A RECENT DECISION IN CIT V. SUN ENGINEERING WORKS P. LTD. [1 992] 198 ITR 297 AT PAGE 320 WHERE IT WAS OBSERVED : 'IT IS NEITHER DESIRABLE NOR PERMISSIBLE TO PICK OU T A WORD OR A SENTENCE FROM THE JUDGMENT OF THIS COURT DIVORCED FROM THE CONTEXT OF THE QUESTION UNDER CONSIDERATION AND TRE AT IT TO BE THE COMPLETE 'LAW' DECLARED BY THIS COURT. THE JUDG MENT MUST BE READ AS A WHOLE AND THE OBSERVATIONS FROM THE JU DGMENT HAVE TO BE CONSIDERED IN THE LIGHT OF THE QUESTIONS WHICH WERE BEFORE THIS COURT. A DECISION OF THIS COURT TAKES I TS COLOUR FROM THE QUESTION INVOLVED IN THE CASE IN WHICH IT IS RE NDERED AND WHILE APPLYING THE DECISION TO A LATER CASE THE CO URTS MUST CAREFULLY TRY TO ASCERTAIN THE TRUE PRINCIPLE LAID DOWN BY THE DECISION OF THIS COURT AND NOT TO PICK OUT WORDS OR SENTENCES FROM THE JUDGMENT DIVORCED FROM THE CONTEXT OF THE QUESTIONS UNDER CONSIDERATION BY THIS COURT TO SUPPORT THEIR REASONING.' 19. IN THE ABOVE DECISION THE SUPREME COURT AL SO QUOTED WITH APPROVAL THE FOLLOWING NOTE OF CAUTION GIVEN BY IT EARLIER IN ( AIR 1971 SC 530) (AT 578) : MA NO64 TO 68/HYD/2013 ( IN ITA NO.558/.HYD/2006 & 4 ORS) M/S. KMC CONSTRUCTIONS LTD. HYDERABAD 14 'IT IS NOT PROPER TO REGARD A WORD A CLAUSE OR A S ENTENCE OCCURRING IN A JUDGMENT OF THE SUPREME COURT DIVOR CED FROM ITS CONTEXT AS CONTAINING A FULL EXPOSITION OF THE LAW ON A QUESTION WHEN THE QUESTION DID NOT EVEN FALL TO BE ANSWERED IN THAT JUDGMENT.' IT IS THUS CLEAR THAT IT IS ONLY THE RATIO DECIDEND I OF A CASE WHICH CAN BE BINDING - NOT OBITER DICTUM. OBITER AT BEST MAY HAVE SOME PERSUASIVE EFFICACY. 20. FROM THE FOREGOING DISCUSSION THE FOLLOWING PROPOSITIONS EMERGE: (A) THE LAW DECLARED BY THE SUPREME COURT BEING BIN DING ON ALL COURTS IN INDIA THE DECISIONS OF THE SUPREME COURT ARE BINDING ON ALL COURTS EXCEPT HOWEVER THE SUPREME COURT I TSELF WHICH IS FREE TO REVIEW THE SAME AND DEPART FROM ITS EARLIER OPINION IF THE SITUATION SO WARRANTS. WHAT IS BINDING IS OF COURS E THE RATIO OF THE DECISION AND NOT EVERY EXPRESSION FOUND THEREIN . (B) THE DECISIONS OF THE HIGH COURT ARE BINDING ON THE SUBORDINATE COURTS AND AUTHORITIES OR TRIBUNALS UND ER ITS SUPERINTENDENCE THROUGHOUT THE TERRITORIES IN RELAT ION TO WHICH IT EXERCISES JURISDICTION. IT DOES NOT EXTEND BEYOND I TS TERRITORIAL JURISDICTION. (C) THE POSITION IN REGARD TO THE BINDING NATURE OF THE DECISIONS OF A HIGH COURT ON DIFFERENT BENCHES OF THE SAME CO URT MAY BE SUMMED UP AS FOLLOWS : (I) A SINGLE JUDGE OF A HIGH COURT IS BOUND BY THE DECISION OF ANOTHER SINGLE JUDGE OR A DIVISION BENCH OF THE SAM E HIGH COURT. IT WOULD BE JUDICIAL IMPROPRIETY TO IGNORE THAT DEC ISION. JUDICIAL COMITY DEMANDS THAT A BINDING DECISION TO WHICH HIS ATTENTION MA NO64 TO 68/HYD/2013 ( IN ITA NO.558/.HYD/2006 & 4 ORS) M/S. KMC CONSTRUCTIONS LTD. HYDERABAD 15 HAD BEEN DRAWN SHOULD NEITHER BE IGNORED NOR OVERLO OKED. IF HE DOES NOT FIND HIMSELF IN AGREEMENT WITH THE SAME T HE PROPER PROCEDURE IS TO REFER THE BINDING DECISION AND DIRE CT THE PAPERS TO BE PLACED BEFORE THE CHIEF JUSTICE TO ENABLE HIM TO CONSTITUTE A LARGER BENCH TO EXAMINE THE QUESTION (SEE FOOD CO RPORATION OF INDIA V. YADAV ENGINEER AND CONTRACTOR(AIR 1982 SC 1302). (II) A DIVISION BENCH OF A HIGH COURT SHOULD FOLLOW THE DECISION OF ANOTHER DIVISION BENCH OF EQUAL STRENGTH OR A FULL BENCH OF THE SAME HIGH COURT. IF ONE DIVISION BENCH DIFFERS FROM ANOTHER DIVISION BENCH OF THE SAME HIGH COURT IT SHOULD RE FER THE CASE TO A LARGER BENCH. (III) WHERE THERE ARE CONFLICTING DECISIONS OF COUR TS OF CO-ORDINATE JURISDICTION THE LATER DECISION IS TO BE PREFERRED IT REACHED AFTER FULL CONSIDERATION OF THE EARLIER DECISIONS. (D) THE DECISION OF ONE HIGH COURT IS NEITHER BINDI NG PRECEDENT FOR ANOTHER HIGH COURT NOR FOR COURTS OR TRIBUNALS OUTSIDE ITS OWN TERRITORIAL JURISDICTION. IT IS WELL SETTLED THAT T HE DECISION OF A HIGH COURT WILL HAVE THE FORCE OF BINDING PRECEDENT ONLY IN THE STATE OR TERRITORIES ON WHICH THE COURT HAS JURISDICTION. IN OTHER STATES OR OUTSIDE THE TERRITORIAL JURISDICTION OF THAT HIG H COURT IT MAY AT BEST HAVE ONLY PERSUASIVE EFFECT. BY NO AMOUNT OF STRETCHING OF THE DOCTRINE OF STARE DECISIS CAN JUDGMENTS OF ONE HIGH COURT BE GIVEN THE STATUS OF A BINDING PRECEDENT SO FAR AS O THER HIGH COURTS OR TRIBUNAL WITHIN THEIR TERRITORIAL JURISDI CTION ARE CONCERNED. ANY SUCH ATTEMPT WILL GO COUNTER TO THE VERY DOCTRINE OF STARE DECISIS AND ALSO THE VARIOUS DECISIONS OF THE SUPREME COURT WHICH HAVE INTERPRETED THE SCOPE AND AMBIT TH EREOF. THE FACT THAT THERE IS ONLY ONE DECISION OF ANY ONE HIG H COURT ON A MA NO64 TO 68/HYD/2013 ( IN ITA NO.558/.HYD/2006 & 4 ORS) M/S. KMC CONSTRUCTIONS LTD. HYDERABAD 16 PARTICULAR POINT OR THAT A NUMBER OF DIFFERENT HIGH COURTS HAVE TAKEN IDENTICAL VIEWS IN THAT REGARD IS NOT AT ALL RELEVANT FOR THAT PURPOSE. WHATEVER MAY BE THE CONCLUSION THE DECISI ONS CANNOT HAVE THE FORCE OF BINDING PRECEDENT ON OTHER HIGH C OURTS OR ON ANY SUBORDINATE COURTS OR TRIBUNALS WITHIN THEIR JU RISDICTION. THAT STATUS IS RESERVED ONLY FOR THE DECISIONS OF THE SU PREME COURT WHICH ARE BINDING ON ALL COURTS IN THE COUNTRY BY V IRTUE OF ARTICLE 141 OF THE CONSTITUTION. 21. IN THE LIGHT OF THE FOREGOING DISCUSSION THE DECISION OF THE TRIBUNAL IS BINDING ON THE ASSESSING OFFICER AND HE CANNOT PICK UP A WORD OR SENTENCE FROM THE ORDER OF THE TRIBUNAL DE HORS THE CONTEXT OF THE QUESTION UNDER CONSIDERATION AND CONSTRUE IT TO BE COMPLETE LAW DECLARED BY THE TRIBUNAL. A JUDGMENT MUST BE READ AS A WHOLE. BEING SO THE ASSESSING OFFICER CANNOT SIT IN JUDGMENT O VER THE ORDER OF THE TRIBUNAL AND HE IS REQUIRED TO GIVE JUST EFFECT TO THE ORDER OF THE TRIBUNAL. IF HE HAS ANY GRIEVANCE HE IS AT LIBER TY TO APPEAL AGAINST THAT ORDER OF THE TRIBUNAL BEFORE HIGHER FORUM. 22. IT IS NEEDLESS TO SAY THAT THE INCOME-TAX AUTH ORITIES ARE REQUIRED TO EXERCISE THEIR POWERS IN ACCORDANCE WIT H LAW AS PER THE POWER GIVEN TO THEM IN SPECIFIC SECTIONS. IF THE P OWERS CONFERRED ON A PARTICULAR AUTHORITY ARE EXERCISED BY ANOTHER AUTHO RITY WITHOUT MANDATE OF LAW IT WOULD CREATE CHAOS IN THE ADMINI STRATION OF LAW AND HIERARCHY OF ADMINISTRATION WOULD MEAN NOTHING. JU DGMENT OF A HIGHER FORUM CANNOT BE SUBSTITUTED BY THE DECISIONS OF THE LOWER AUTHORITIES. JUDICIAL DISCIPLINE REQUIRES THAT THERE CANNOT BE A NY AMOUNT OF DISREGARD TO THE SUPERIOR AUTHORITY IN THE HIERARCH Y BY THE ASSESSING OFFICER. WHEN ONCE THE TRIBUNAL DECIDES AN ISSUE IN ONE WAY THE ONLY MA NO64 TO 68/HYD/2013 ( IN ITA NO.558/.HYD/2006 & 4 ORS) M/S. KMC CONSTRUCTIONS LTD. HYDERABAD 17 COURSE AVAILABLE TO THE ASSESSING OFFICER IS TO FOL LOW THE ORDER OF THE TRIBUNAL IN TRUE SPIRITS AND IT IS NOT PERMISSIBLE FOR THE ASSESSING OFFICER TO TAKE A DIFFERENT VIEW OR TO SIT IN JUDG MENT OVER THE ORDER OF THE TRIBUNAL BY INTERPRETING THE SAME IN THE MANNER HE WANTED. 23. IN THE CASE OF WINTER MISRA DIAMOND TOOLS LTD. V/S. COLLECTOR OF CENTRAL EXCISE (1996) 83 ELT 670 TRI D EL CONSIDERING THE ROLE OF A SUBORDINATE AUTHORITY WHILE IMPLEMENTING THE ORDERS OF THE SUPERIOR APPELLATE/JUDICIAL AUTHORITIES FOLLOWING THE DECISION OF THE APEX COURT IN THE CASE OF UNION OF INDIA V/S. KAMAL AKSHI FINANCE CORPORATION LTD. (1991) 55 ELT 433(SC) IT WAS HELD AS FOLLOWS- 45. AT THE SAME TIME THE APPELLANTS ARE CORRECT I N POINTING OUT THAT ONCE THE ASSISTANT COLLECTOR HAS PASSED AN ORDER AND IT IS CONFIRMED BY THE COLLECTOR (APPEALS) AND NO APPE AL IS FILED AGAINST THE ORDER OF THE COLLECTOR (APPEALS) THE O RDER ATTAINS FINALITY. THEREFORE THE DEPARTMENT WAS BOUND TO FO LLOW THE ASSISTANT COLLECTOR'S ORDER OF 17/4/1989 AS CONFIRM ED BY THE COLLECTOR (APPEALS)' ORDER DATED 28-8-1991 AND FINA LISE ALL THE PENDING M ATTERS IN THE LIGHT OF THESE ORDERS. THESE WILL INC LUDE CASES IN WHICH THE ASSESSMENT WAS MADE PROVISIONAL AS WELL AS THOSE IN WHICH CASES DEMAND/SHOW CAUSE NOTICES HAD BEEN ISSUED BUT NOT DISPOSED OF TILL THEN AS ALL THE SUB ORDINATE AUTHORITIES WERE BOUND BY THE ORDERS OF THE SUPERIO R APPELLATE/JUDICIAL AUTHORITIES IN VIEW OF THE HON'B LE SUPREME COURT'S DECISION IN THE CASE OF UNION OF INDIA V. K AMLAKSHI FINANCE CORPORATION LTD. REPORTED IN 1991 (55) E.L. T. 433 (S.C.). HOWEVER WE NEED NOT LABOUR THIS POINT ANY FURTHER IN VIEW OF OUR FINDINGS ON MERITS RECORDED ABOVE. 24. IT IS TRITE THAT WHEN A STATUTE REQUIRES AN A CT TO BE DONE IN A SPECIFIC MANNER IT HAS TO BE DONE IN THAT MANNER ONLY. THE ASSESSING OFFICER COULD NOT EXPECT IT BEING DONE IN SOME OTHER MANNER. IT IS ALSO TRITE PRINCIPLE OF LAW THAT I F A PARTICULAR AUTHORITY HAS BEEN DESIGNATED TO DO PARTICULAR ACT JUST IT I S THAT AUTHORITY ALONE WOULD COULD APPLY HIS/HER INDEPENDENT MIND TO DISCH ARGE HIS DUTIES AND FURTHER A LOWER AUTHORITY CANNOT SIT IN JUDGME NT OVER THE DECISION MA NO64 TO 68/HYD/2013 ( IN ITA NO.558/.HYD/2006 & 4 ORS) M/S. KMC CONSTRUCTIONS LTD. HYDERABAD 18 OF A SUPERIOR FORUM. BEING SO IN OUR OPINION WH EN THE TRIBUNAL ON EARLIER OCCASION IN ITS ORDER CITED SUPRA HAS GIVE N DIRECTION TO THE ASSESSING OFFICER TO GRANT DEDUCTION UNDER S.80IA(4 ) ON THE PROJECTS THE DUTY OF THE ASSESSING OFFICER TO GRANT DEDUCTI ON IN RESPECT OF PROJECTS LISTED IN THE ORDER AND ALSO TO ANALYSE OT HER CONTRACTS IF ANY CARRIED OUT BY THE ASSESSEE SOAS TO GRANT DEDUCTIO N IN RESPECT OF THOSE WHICH ARE NOT IN THE NATURE OF WORKS CONTRACT S. IT HAS ALSO GIVEN A CATEGORICAL FINDING THAT AS THE CONTRACTS INVOLVE DEVELOPMENT OPERATING MAINTENANCE FINANCIAL INVOLVEMENT AND D EFECTION CORRECTION AND LIABILITY PERIOD SUCH CONTRACTS SHOULD BE TREA TED AS ELIGIBLE FOR DEDUCTION UNDER S.80IA(4). 25. IT IS NEEDLESS TO MENTION HERE THAT THE TRIBUN AL HAS NOT REJECTED THE CLAIM OF THE ASSESSEE UNDER S.80IA AND ON THE OTHER HAND IT WAS HELD THAT THE ASSESSEE IS ENTITLED FOR DEDUCTION UNDER S.80IA OF THE ACT IN RESPECT OF PROJECTS LISTED IN PAGES 11 TO 13 OF ITS ORDER AS THE ASSESSEE HAS CARRIED ON INFRASTRUCTUR E PROJECTS AND IT IS FOR THE PURPOSE OF ANALYZING SUCH OTHER PROJECTS I F ANY WHICH ARE NOT IN THE NATURE OF WORKS CONTRACTS AND TO QUANTIFY T HE DEDUCTION THE ISSUE WAS REMITTED BACK TO THE FILE OF THE ASSESSIN G OFFICER. IF THE ASSESSING OFFICER FAILS TO PROPERLY UNDERSTAND OR A PPRECIATE THE DIRECTIONS OF THE TRIBUNAL ALL THAT CAN BE DONE AT THIS STAGE IS TO MENTION THAT THE ASSESSEE HAS LIBERTY TO EXPLORE AN D PURSUE THE REMEDIES AVAILABLE UNDER LAW AS THE ASSESSING OFFI CER IS DUTY BOUND TO PASS THE CONSEQUENTIAL ORDERS IN CONFORMITY WITH TH E ORDER OF THE TRIBUNAL CITED (SUPRA) AND HE HAS NO DISCRETION OR CHOICE TO OVERLOOK THE ORDER OF THE TRIBUNAL. FOR THIS WE PLACE RELI ANCE ON THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF STATE OF ANDHRA PRADESH V/S. CTO AND ANOTHER (169 ITR 564) WHEREIN IT HAS BEEN HELD AS FOLLOWS- MA NO64 TO 68/HYD/2013 ( IN ITA NO.558/.HYD/2006 & 4 ORS) M/S. KMC CONSTRUCTIONS LTD. HYDERABAD 19 THE TRIBUNALS FUNCTIONING WITHIN THE JURISDICTION OF A PARTICULAR HIGH COURT IN RESPECT OF WHOM THE HIGH C OURT HAS THE POWER OF SUPERINTENDENCE UNDER ARTICLE 227 ARE BOU ND TO FOLLOW THE DECISIONS OF THE HIGH COURT UNLESS ON A N APPEAL TO THE SUPREME COURT THE OPERATION OF THE JUDGMENT IS SUSPENDED. IT IS NOT PERMISSIBLE FOR THE AUTHORITI ES AND THE TRIBUNALS TO IGNORE THE DECISIONS OF THE HIGH COUR T OR TO REFUSE TO FOLLOW THE DECISIONS OF THE HIGH COURT ON THE PR ETEXT THAT AN APPEAL HAS BEEN FILED IN THE SUPREME COURT WHICH IS PENDING OR THAT STEPS ARE BEING TAKEN TO FILE AN APPEAL. I F ANY AUTHORITY OR THE TRIBUNAL REFUSES TO FOLLOW ANY DECISION OF T HE HIGH COURT ON THE ABOVE GROUNDS IT WOULD BE CLEARLY GUILTY OF COMMITTING CONTEMPT OF THE HIGH COURT AND IS LIABLE TO BE PROC EEDED AGAINST. AT THIS JUNCTURE IT IS PERTINENT TO MENTION THE OB SERVATIONS OF THE HIGH COURT BY PLACING RELIANCE ON THE JUDGMENT OF THE B OMBAY HIGH COURT IN THE CASE OF SUBRAMANIAN ITO V/S SIEMENS INDIA LT D. (156 ITR 11) WHICH ARE AS FOLLOWS- REFERENCE MAY ALSO BE INVITED TO THE DECISION OF T HE BOMBAY HIGH COURT IN SUBRAMANIAN ITO V. SIEMENS INDIA LTD . [1985] 156 ITR 11. THE QUESTION THAT AROSE FOR CONSIDERAT ION IN THIS CASE IS WHETHER THE INCOME-TAX OFFICER IS BOUND BY THE DECISION OF A SINGLE JUDGE OR A DIVISION BENCH OF THE COURT WITHIN WHOSE JURISDICTION HE IS OPERATING EVEN IF AN APPEAL HAS BEEN PREFERRED AGAINST SUCH DECISION AND IS PENDING. THE FOLLOWING OBSERVATIONS OF THE BOMBAY HIGH COURT MAY BE EXTRAC TED : 'SO FAR AS THE LEGAL POSITION IS CONCERNED THE ITO WOULD BE BOUND BY A DECISION OF THE SUPREME COURT AS ALSO BY A DECISION OF THE HIGH COURT OF THE STATE WITHIN WHOS E JURISDICTION HE IS (FUNCTIONING) IRRESPECTIVE OF T HE PENDENCY OF ANY APPEAL OR SPECIAL LEAVE APPLICATION AGAINST THAT JUDGMENT. HE WOULD EQUALLY BE BOUND BY A DECISION OF ANOTHER HIGH COURT ON THE POINT BECAUS E NOT TO FOLLOW THAT DECISION WOULD BE TO CAUSE GRAVE PRE JUDICE TO THE ASSESSEE. WHERE THERE IS A CONFLICT BETWEEN DIFFERENT HIGH COURTS HE MUST FOLLOW THE DECISION OF THE HIGH COURT WITHIN WHOSE JURISDICTION HE IS (FUNCTIO NING) BUT IF THE CONFLICT IS BETWEEN DECISIONS OF OTHER H IGH COURTS HE MUST TAKE THE VIEW WHICH IS IN FAVOUR OF THE ASSESSEE AND NOT AGAINST HIM. SIMILARLY IF THE INCOME- TAX APPELLATE TRIBUNAL HAS DECIDED A POINT IN FAVOUR OF THE ASSESSEE HE CANNOT IGNORE THAT DECISION AND TAKE A CONTRARY VIEW BECAUSE THAT WOULD EQUALLY PREJUDICE THE ASSESSEE. ' (EMPHASIS SUPPLIED) MA NO64 TO 68/HYD/2013 ( IN ITA NO.558/.HYD/2006 & 4 ORS) M/S. KMC CONSTRUCTIONS LTD. HYDERABAD 20 26. IT IS HOWEVER PERTINENT TO EMPHASISE AND MEN TION HERE THAT HAVING DECIDED THE APPEALS OF THE ASSESSEE VI Z. ITA NOS.558/HYD/2006; 1223/HYD/2007 1027/HYD/2007 338 /HYD/2009 AND 84/HYD/2010 BEFORE IT WITH ITS COMMON ORDER DA TED 16.3.2012 THE TRIBUNAL IS CEASED OF ITS JURISDICTION OVER THO SE APPEALS EXCEPT TO THE LIMITED EXTENT OF RECTIFYING ANY MISTAKE THEREI N IN TERMS OF PROVISIONS OF S.254(2) OF THE ACT. IN THESE ELABO RATE MISCELLANEOUS APPLICATIONS OR THE WRITTEN SUBMISSIONS FURNISHED BEFORE US IN SUPPORT THEREOF THE ASSESSEE HAS NOT POINTED OUT ANY MISTA KE IN THE ORDER OF THIS TRIBUNAL DATED 16.3.2012 WHICH WARRANTS RECTI FICATION IN TERMS S.254(2) OF THE ACT. ALL THAT THE ASSESSEE SPEAKS OF IS ABOUT THE GRIEVANCE THAT IT HAS SUFFERED ON ACCOUNT OF THE CO NSEQUENTIAL ORDERS PASSED BY THE ASSESSING OFFICER FOR THE YEARS UNDER CONSIDERATION WHILE GIVING EFFECT TO THE ORDER OF THIS TRIBUNAL D ATED 16.3.2012. THOSE CONSEQUENTIAL ORDERS PASSED BY THE ASSESSING OFFICER CONSTITUTE INDEPENDENT PROCEEDINGS AND NOT PART OF THE PROCEE DINGS WHICH LED TO THE PASSING OF THE ORDER OF THE TRIBUNAL DATED 16.3 .2012 ON THE SECOND APPEALS OF THE ASSESSEE AND THEY IF THE ASSESSEE IS AGGRIEVED MAY GIVE RISE TO FIRST APPELLATE PROCEEDINGS THERE AGAI NST OR FURTHER APPELLATE PROCEEDINGS BY THE ASSESSEE. HOWEVER TH E GRIEVANCE OF THE ASSESSEE ON ACCOUNT OF ALLEGED MISTAKES IN SUCH CON SEQUENTIAL ORDERS EITHER ON ACCOUNT OF INTERPRETATIONAL DIFFERENCES O R EVEN ON ACCOUNT OF DISRESPECT/DISREGARD TO THE DIRECTIONS OF THE TRIBU NAL SHALL NOT VEST ANY POWER OR JURISDICTION BACK WITH THE TRIBUNAL T O OVERSEE THE CORRECTNESS OF THE CORRECTNESS OF THE CONSEQUENTIAL ORDERS PASSED MUCH LESS TO GIVE DIRECTIONS TO REVISE OR RECTIFY THE SAME EVEN IF THERE IS ANY MISTAKE IN THE SAME. IF THE CONSEQUE NTIAL ORDERS PASSED BY THE ASSESSING OFFICER ARE DE HORS THE DIRECTIONS OF THE TRIBUNAL OR IF THERE IS ANY GRIEVANCE TO THE ASSESSEE ON ACCOUNT O F SUCH CONSEQUENTIAL ORDERS AS ALREADY NOTED ABOVE THE R EMEDY FOR THE MA NO64 TO 68/HYD/2013 ( IN ITA NO.558/.HYD/2006 & 4 ORS) M/S. KMC CONSTRUCTIONS LTD. HYDERABAD 21 ASSESSEE LIES ELSEWHERE VIZ. IN THE FRESH PROCEEDI NGS COMMENCING WITH SUCH CONSEQUENTIAL ORDERS AND NOT IN THE PROCE EDINGS THAT CULMINATED WITH THE ORDER OF THIS TRIBUNAL DATED 16 .3.20120. 27. IN THE ABSENCE OF ANY SPECIFIC MISTAKE WHICH W ARRANTS ANY RECTIFICATION WITHIN THE SCOPE OF THE PROVISIONS OF S.254(2) OF THE ACT IN THE ORDER OF THE TRIBUNAL DATED 16.3.2012 WE DO NOT FIND REASON TO RECTIFY OUR EARLIER ORDER AND ACCORDINGLY THE MISC ELLANEOUS APPLICATIONS OF THE ASSESSEE ARE DISPOSED OF WITH THE OBSERVATI ONS AS ABOVE. 28. IN THE RESULT ALL THE FOUR MISCELLANEOUS APPL ICATIONS OF THE ASSESSEE ARE DISPOSED OF AS ABOVE. ORDER PRONOUNCED IN THE COURT ON 04.07.2013 SD/- SD/- (ASHA VIJAYARAGHAVAN) (CHANDRA POOJARI) JUDICIAL MEMBER ACCOUNTANT MEMBER DT/- 4TH JULY 2013 COPY FORWARDED TO: 1. M/S. KMC CONSTRUCTIONS LTD. C/O. SHRI S.RAMA RAO FLAT NO.102 SHIRYA'S ELEGANCE NO.3-6-643 STREET NO.9 HIMAYATNAGAR HYDERABAD 500029 2. ASST. COMMISSIONER OF INCOME - TAX 2 (2) HYDERABAD 3. COMMISSIONER OF INCOME-TAX(APPEALS) III HYDERABAD 4. COMMISSIONER OF INCOME - TAX II HYDERABAD 5. DEPARTMENTAL REPRESENTATIVE ITAT HYDERABAD. B.V.S.