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Income Tax Appellate Tribunal, “A” BENCH : KOLKATA
Before: Hon’ble Shri Aby. T. Varkey, JM & Shri M.Balaganesh, AM ]
These two appeals by the Revenue arise out of the common order of the Learned Commissioner of Income Tax(Appeals)-12, Kolkata [in short the ld CIT(A)] in Appeal Nos. 567 & 568/CIT(A)-12/Kol/Circle-11/2014-15 dated 26.12.2016 against the separate orders passed by the ACIT, Circle-11(2), Kolkata [ in short the ld AO] under section 143(3) of the Income Tax Act, 1961 (in short “the Act”) dated 26.12.2011 & 28.12.2012 respectively for the Assessment Years 2009-10 & 2010-11 respectively. Since the identical issue involved in these appeals, they are taken up together and disposed off by this common order for the sake of convenience.
2 M/s Nap Construction Pvt. Ltd. A.Yr.2009-10&2010-11 2. The only common issue to be decided in these appeals is as to whether the ld CITA was justified in allowing deduction u/s 80IA and 80IB of the Act in the facts and circumstances of the case.
At the outset, the ld AR stated that the issues under dispute are covered by the order of this tribunal in assesssee’s own case in all the earlier years and the latest of those orders were passed by this tribunal for the Asst Years 2005-06, 2006-07 and 2007-08 in / Kol/2012 dated 24.3.2017. The said order of this tribunal is reproduced below for the sake of convenience:- “2. It is noticed that at the time of hearing before us no one present on behalf of appellant revenue. However, an application vide dated 08-03-2017 ( copy of the same is on record) was filed before us seeking adjournment stating that, Mr. Abhijit Dutta, ld. Addl.CIT(Sr.DR) to whom the appeals were assigned to represent the cases before the Tribunal was directed to supervise the survey operation. The ld.AR of the assessee has objected to the said adjournment petition and submitted that all the three appeals and the issue(s) therein were covered by the order dated 16-11-07/12-06-2009 of the Tribunal in assessee’s own case in ITA No. 1972/Kol/2007 for the A.Y 2003-04 and in ITA Nos. 1487, 1488/Kol/08 for the A.Ys 2000-01 and 2001-02 ( copy of the same is placed on record ) and argued that all the appeals can be disposed off in absence of ld.DR. Therefore, we reject the said adjournment application filed by the appellant revenue and taking into consideration the earlier order dated 16-11-07/12-06-2009 of the Tribunal in assessee’s own case supra, we proceed to hear the appeals and dispose off the same on merits by a consolidated order for the sake of convenience. 3. It is also noticed that in all the appeals the appellant Revenue has raised common grounds challenging the action of CIT-A in granting benefit U/Sec. 80IA of the Act. Thereafter, the revenue has filed revised grounds of appeal
questioning the order of CIT-A in directing the AO to allow the claim of assessee for deduction u/s. 80IA and 80IB of the Act as the issue involved in the assessment proceedings u/s. 147/143(3) of the Act has no relevance to Sec. 80IA of the Act in the facts and circumstances of the case. Therefore, the only issue/question is to be decided as to whether the CIT-A justified in allowing the deduction disregarding non fulfillment the conditions as laid down in sub section (10) of section 80IB of the Act.
4. Now we shall take up the appeal in ITA No. 1380/Kol/2012 A.Y 2005-06 by the Revenue.
5. The assessee is a company filed its return of income for the A.Y 2005-06 on 25-10- 2005. Thereafter, the assessee filed a revised return on 13-03-06 declaring a total income of Rs. Nil. It is observed that the assessee claimed deduction u/s. 80IB(10) 2
3 M/s Nap Construction Pvt. Ltd. A.Yr.2009-10&2010-11 amounting to Rs.59,52,190/-. The AO was of the view that the assessee being a contractor merely executed the works contracts awarded by different Govt/local authorities and as such the assessee is not entitled to claim any benefit of deduction u/s. 80IB(10) of the Act. Accordingly, the AO disallowing the same passed the assessment order u/s. 143(3)/147 of the Act on 12-03-2009.
The ld. AR of the assessee submits that the AO did not consider the claim of assessee in pursuance of clarification attached to section 80IA(13) as introduced by the Finance Act 2007 giving retrospective effect w.e.f 1-4-2000. The CIT-A sought remand report from the AO regarding contentions and evidences as produced by the assessee in remand proceedings. The CIT-A considering the aspects as noted by the AO and by relying on various decisions of Hon’ble High Courts and Supreme Court and orders of the Kolkata Tribunal dated 12-06-09 and dated 16-11- 2007 in 1488/Kol/08 and in ITA No.1972/Kol/07 for the AYs. 2000-01, 2001-02 & 2003-04 in assessee’s own case directed the AO to allow the claim of assessee for deductions u/s. 80IA/80IB of the Act.
7. We find that the ld.AR of the assessee as relied on the order/decision as rendered by the Tribunal in assessee’s own case for the A.Y 2003-04 supra. The facts, circumstances and the issue therein are similar and identical to the present facts and circumstances of the case. We also find that the CIT-A vide para 2.3 given direction to the AO as under:-
“2.3 Respectfully following the orders of the Hon’ble ITAT, Kolkata dated 12.06.2009 in & 1488/Kol/2008 for A.Y 2000-01 &2001-02 and also the order of the Hon’ble ITAT Kolkata dated 16.11.2007 in ITA No.1972/Kol/2007 for A.Y 2003-04 in the appellant’s own case, the AO is directed to allow the claim of the appellant for deductions u/s. 80IA and 80IB. These grounds of appeal are allowed.”
We also find that the Tribunal vide order dt. 16-11-2007 in assessee’s own case in for the A.Y 2003-04 identical issue has disposed off as under:-
“6. On careful analysis of the orders passed by the departmental authorities, it is found that the AO, while considering the claim of the assessee under section 80IA and 80IB, has not properly considered the materials placed by the assessee before him. So also, the AO has not considered the effect of the clarification attached to section 80IA(13) introduced by the Finance Act, 2007 w.e.f 1.4.2000. While coming to the conclusion that the assessee is not entitled for deduction claimed by him but the CIT(A), while adjudicating the appeal filed by the assessee before him, has, first of all, sought for the remand report from the AO regarding the contentions raised by the assessee before him and after thread bare considering the undisputed factual aspects as brought on record by the AO in the light of the various decisions of the Hon’ble High Courts as well as the Hon’ble Apex Court and the clarifications added by the Finance Act, 2007 w.e.f 1.4.2000, has come to the conclusion that the AO has not properly applied the statutory law as well as judgement law to the facts of the case, while adjudicating the claim of the assessee under section i80IA and 80IB.
4 M/s Nap Construction Pvt. Ltd. A.Yr.2009-10&2010-11 6.1 Therefore, we are of the considered view that the conclusion reached at by the CIT(A) is in accordance with the provisions of section 80IA and 80IB coupled with the clarifications given by the Finance Act, 2007 which is made effective from 1.4.2000 coupled with the ratios laid down by various Hon’ble High Courts as well as the Hon’ble Apex Court and thus we are of the considered view that the CIT(A)’s order is a well-reasoned one and in accordance with the dictums laid down by the Hon’ble Jurisdictional High Court of Calcutta. Hon’ble Madras High Court as well as the Hon’ble Apex Court referred toin the order. Therefore, under these facts and circumstances of the case, we are of the considered view that the CIT(A)’s order is not at all suffering from any infirmity requiring any interference. Since, we are agreeing with the reasoning given by the CIT(A) in the impugned order, while allowing the reliefs to the assessee, we are not giving our own reasons, respectfully following the decision of the Hon’ble Apex Court rendered in the case of K.Y. Pillai reported in 63 ITR 411. Accordingly, the appeal of the department is hereby dismissed as devoid of merits.
In the result, the appeal of the department is hereby dismissed.”
Respectfully following the above co-ordinate bench decision of this tribunal dt. 16-1- 2007 Supra , we are of the opinion that the said order dt. 16-11-07 in for the A.Y 2003-04 in assessee’s own case as relied on by the ld.AR of the assessee before us is squarely applicable to the present facts and circumstances of the case.In view of the same, we do not find any reason to interfere with the impugned orders of the CIT- A in allowing the same and it is justified. Therefore, the ground(s) raised by the revenue in all the appeals are dismissed. A.Y 2006-07 ( by the revenue)
In view of the discussion & decision rendered hereinabove in for the A.Y 2005-06(by the revenue), we also find that the issue, facts and circumstances in ITA No.1381/Kol/2012 for the AY 2006-07 (by the revenue) are similar and identical to the issue raised in ITA No.1381/Kol/2012 for the AY 2005-06). Therefore, following the same view, this issue as raised in ITA No. 1381/Kol/2012 for the AY 2006-07 by the revenue is dismissed. A.Y 2007-08 ( by the revenue)
In view of the discussion & decision rendered in for the A.Y 2005-06(by the revenue), we also find that the issue, facts and circumstances in ITA No.1382/Kol/2012 for the AY 2007-08 (by the revenue) are similar and identical to the issue raised in ITA No.1382/Kol/2012 for the AY 2005-06). Therefore, following the same view, this issue as raised in ITA No. 1382/Kol/2012 for the AY 2007-08 by the revenue is dismissed.
In the result, all the appeals filed by the revenue are dismissed.”
5 M/s Nap Construction Pvt. Ltd. A.Yr.2009-10&2010-11 The ld DR was not able to submit any change of facts during the years under appeal or any facts contrary to what has been stated in the aforesaid orders. We find that the ld CITA had also relied on the earlier tribunal orders in assessee’s own case for the Asst Years 2000-01, 2001-02 and 2003-04 passed on the similar issues. Hence we find there is no reason to interfere with the said orders of the ld CITA. Accordingly, the grounds raised by the revenue are dismissed.
In the result, the appeals of the revenue are dismissed.
Order pronounced in the Court on 13.07.2018