M/S. ROHAN & RAJDEEP INFRASTRUCTURE,,PUNE vs. PR.COMMISSIONER OF INCOME TAX -2,, PUNE

passed by the AO u/s 143(3) was erroneous and prejudicial to the

interest of Revenue for two reasons. The first reason according to

Ld. PCIT was that the assessee was not eligible to claim deduction

u/s 80IA(4) of the Act but was allowed by AO. According to Ld. PCIT

assessee was not entitled to claim deduction u/s 80IA(4) of the Act

because assessee was a partnership firm. According to him, to be

eligible to claim deduction U/s 80IA(4) of the Act, assessee should

either be a Company or a Consortium of companies or a body

established or constituted under the Central or State Act. According

to the Ld. PCIT, since assessee was a partnership firm, it cannot be

considered to be a consortium so as to be eligible for deduction u/s

80IA(4) of the Act. The second reason according to Ld. PCIT as to

why the order of AO was erroneous and prejudicial was because

assessee had claimed depreciation @ 25% on the project cost on

WDV basis whereas as per CBDT Circular No.9/2014 dated

23.04.2014, the entire cost of construction and development should

be amortized evenly over a period of concession agreement and

allowed as business expense u/s 37(1) of the Act. According to

Ld.PCIT, AO had not followed the mandate of CBDT Circular and

allowed the claim of depreciation of the assessee. He was therefore

of the view that the aforesaid two issues has not been

verified/examined by the AO during assessment proceedings and

therefore, according to him, the order passed by the AO u/s 143(3)

of the Act dated 01.07.2014 was erroneous and prejudicial to the

interest of the Revenue. He accordingly issued notice and called

upon the assessee to show cause as to why the order u/s 263 of the

Act not be passed. In response to the show cause notice, assessee

inter-alia objected to the initiation of proceedings u/s 263 and on

the issue of assessee not being a consortium submitted that

assessee is a partnership firm in which 3 companies which are

registered as Companies under the Companies Act 1956, are

partners with stipulated profit sharing ratio and the partnership is

also a consortium and therefore AO had rightly allowed claim of

deduction. On the issue of claim of depreciation on the project

cost, it was inter-alia submitted that as per the concession

agreements that the assessee has entered into with State

Government, assessee has been given right of collecting toll for

defined concession period and retaining it towards the cost of

construction and maintenance of infrastructure. It was submitted

that permission to collect toll was a “licence” and intangible asset

and therefore the assessee had rightly claimed the deprecation and

for which reliance was also placed on the Pune ITAT decision in the

case of Ashoka Infrastructure Pvt. Ltd (ITA No. 898/PUN/2010).

The submissions of the assessee were not found acceptable to the

Ld PCIT. He was of the view that there was non- application of mind

by the AO with respect to the details filed by the assessee, there

was no inquiry by the AO and that there was no evidence to show

that the return of income was objectively examined by the AO. He

was therefore of the view that the order passed by the AO was

unsustainable in the eyes of law. He accordingly set aside the order

of AO passed u/s 143(3) of the Act and directed the AO to frame

fresh assessment and verify the claim of deduction u/s 80IA and

claim of depreciation u/s 32 of the Act as per the directions and

observations in the order. Aggrieved by the order of Ld. PCIT,

assessee is now in appeal before us and has raised the following

grounds :

“1] The learned CIT erred in holding that the asst. order u/s 143(3) passed by the A.O. is erroneous and prejudicial to the revenue on the following issues - a. The deduction u/s 80IA(4) is allowed wrongly as the A.O. has not examined the point as to whether the assessee firm is eligible for the above deduction. b. The A.O. has not examined the issue in the light of the Board Circular as to whether the assessee is entitled to depreciation @ 25% on the expenditure on construction of the roads / highways. 2] The learned CIT was not justified in holding that the asst. order is erroneous and prejudicial to the revenue for the following reasons - a. The assessee firm has only companies as partners and therefore, it constitutes a consortium of companies which is eligible for deduction u/s 80IA(4). b. No reason is given in the order as to why, the partnership firm of only the companies as partners does not constitute a consortium of companies. c. The assessee firm was allowed the deduction u/s 80IA(4) even in the past years. d. Depreciation @ 25% was rightly claimed on the asset 'right to collect toll' which was owned by the assessee as it has constructed the highways / roads. e. In view of various decisions of ITAT, the above claim of depreciation was clearly allowable to the assessee and hence, there was no error in the order. f. In the past asst. years also, the assessee was allowed depreciation on the above asset.

g. Without prejudice, in view of the above grounds, the asst.

could not be considered as erroneous as the assessee's claim was fully supported by proper reasoning.

3] The learned CIT was not justified in setting aside the asst. simply on the ground that the AO did not make the enquiries on the above claim of deduction u/s 80IA(4) without rebutting the assessee’s contentions. 4] The order u/s 263 be held to be not justified as the asst. order is neither erroneous nor prejudicial to the revenue.

assessee has raised various grounds but the sole controversy is

with respect to invocation of powers by Ld. PCIT u/s 263 of the Act.

pre-requisite conditions specified u/s 263 of the Act were not

satisfied and therefore the proceedings initiated u/s 263 of the Act

lacks jurisdiction and are bad in law. He submitted that u/s 263 of

the Act, the Ld. PCIT can revise an order passed by the AO only on

the satisfaction of twin conditions namely (i) the order is erroneous

and (ii) it is prejudicial to the interest of Revenue. If one of them is

absent i.e. if either the order of the Revenue is erroneous but is not

prejudicial to the interest of the Revenue or if it is not erroneous

but is prejudicial to the interest of Revenue – recourse cannot be

had to Sec.263(1). He further submitted that the error envisaged by

Sec.263 is not one which depends on possibility or guesswork but it

should be an actual error either of facts or of law. He further

submitted that when two views are possible and the AO has taken

one view with which the Ld. PCIT does not agree, the order of the

AO cannot be treated as an erroneous order prejudicial to the

interests of the Revenue unless the view taken by the AO is

unsustainable in law and for the aforesaid proposition, he relied on

the decision in the case of Malabar Industrial Co., Ltd., Vs. CIT

(2000) 243 ITR 83 (SC). The Ld AR further placing reliance on the

decision of Bombay High Court in the case of CIT Vs. Gabriel India

Ltd (1993) 203 ITR 108 (Bom) submitted that Hon’ble Bombay High

Court has held that “An order cannot be termed as erroneous

unless it is not in accordance with law. The section does not

visualise a case of substitution of judgment of the Commissioner for

that of the ITO, who passed the order, unless the decision is held to

be erroneous. He further submitted that the Hon’ble High Court

has held that when the ITO has exercised the quasi-judicial power

vested in him in accordance with law and arrived at a conclusion

and such a conclusion cannot be termed to be erroneous simply

because the Commissioner does not feel satisfied with the

conclusion. It may be said in such a case that in the opinion of the

Commissioner the order in question is prejudicial to the interest of

the Revenue. But that by itself will not be enough to vest the

Commissioner with the power of suo motu revision because the first

requirement, namely, the order is erroneous, is absent. Similarly, if

an order is erroneous but not prejudicial to the interest of the

Revenue, then also the power of suo motu revision cannot be

exercised. Any and every erroneous order cannot be subject-matter

of revision because the second requirement also must be fulfilled.”

of the Act, he submitted that assessee is a partnership firm

registered on 11.04.2001 with 3 companies as partners namely

Rohan Builders (India) Pvt. Ltd, Rajdeep Buildcon Pvt. Ltd and

Rajdeep Road Developers Pvt. Ltd. The profit sharing ratio of the

3 companies are in the ratio of 50:40:10 respectively which is also

stated in the tax audit report, a copy of which is placed at page 41

of the paper book. He submitted that there is no change in the

constitution of the partnership since inception and the same

partners who had entered into partnership on the formation of the

firm are continuing as partners of the firm till date. He further

submitted that the claim of deduction u/s 80IA(4) has been allowed

to the assessee in AY 2004-05 and AY 2005-06 but in these two

years, the assessment was framed u/s 143(1) of the Act. For AY

2008-09 and 2009-10, he submitted that the assessments were

framed u/s 143(3) and the claim of deduction was allowed by the

AO. He submitted that the claim for deduction u/s 80IA(4) was

denied to assessee in AY 2006-07 and AY 2010-11 but the denial of

deduction was not for the reason that the assessee was a firm but

was denied for a different reason namely that the profits earned by

the assessee from the work of widening of roads undertaken by the

assessee cannot be considered to be a new infrastructural facility

for being eligible for deduction u/s 80IA(4) of the Act and therefore

assessee was not eligible for deduction on such profits earned from

such work u/s 801A(4) of the Act. He submitted that against the

order of AO and which was confirmed by Ld CIT(A), assessee carried

the matter in appeal before Hon’ble ITAT. The Hon’ble ITAT vide

order dated 05.04.2013 (ITA No 1214/PUN/2010 for AY 2006-07)

and vide order dated 10.03.2017 (ITA No 1920/PUN/2014 for AY

2010-11) has decided the issue in favour of the Assessee. He placed

on record the copy of the order in the paper book and pointed to the

relevant findings of Ld ITAT. He therefore submitted that the

assessee has been allowed the claim of deduction u/s 80IA(4) from

A.Y. 2004-05 onwards. As far as the issue for the year under

consideration is considered, he submitted that the assessee being

partnership firm having the 3 companies as partners were disclosed

by the assessee in the audited Balance Sheet, Tax Audit report and

the copies of which were also filed before the AO during the

assessment proceedings and also in the submissions that were

made before the AO. He submitted that the claim of deduction u/s

80IA(4) has been allowed to the assessee in the past and since there

was no change in the facts, the normal inquiry as required was

made by the AO during the course of assessment proceedings. He

further submitted that once the claim of the deduction u/s 80IA(4)

has been allowed to the assessee in the past and when there are no

change in the facts, then the benefit of deduction cannot be denied

in subsequent years. He further submitted that during the course

of assessment proceedings, the claim of the assessee for deduction

was allowed by the AO after being satisfied of the claim by the

assessee. He therefore submitted that since on the issue of

deduction u/s 80IA(4), there was proper application of mind by the

AO, no proceedings u/s 263 of the Act could be made by Ld. PCIT.

was not a consortium, he submitted that as per the provisions of

Sec. 80IA(4)(i)(a) of the Act, for being eligible for deduction u/s

80IA(4), an enterprise should be an “Indian Company”, “Consortium

of Companies”, “Board” or “Corporation” incorporated under

Central or State Act or a body established or constituted under the

Central or State Act. He submitted that the word “consortium” used

in the Sec.80IA has not been defined in the Income Tax Act. He

submitted that a consortium is a Latin word meaning “partnership”,

“association” or “society”. He submitted that a consortium is an

association of two or more individuals, companies, organizations or

governments (or any combination of these entities) with the

objective or participating in a common activity or pooling their

resources for achieving a common goal. In support of his

contention that the partnership is akin to a consortium, he placed

reliance on the decision dated 28.04.2011 rendered by Hon’ble

Madhya Pradesh High Court in the case of Org Informatics Ltd Vs.

M.P.State Electronics Dev. Corp. (WP 9183/2008). He also placed

on record a copy of the aforesaid decision. He submitted that in the

present case, the partnership firm is akin to a consortium of

companies more so because the 3 partners of the firms are

Companies registered under the Companies Act 1956 and there is

no other individual or a non-corporate entity as partner of the firm.

rights, being intangibles, he submitted that in view of the

concession agreement entered by the assessee with the State

Government, assessee has been granted right to collect toll. The

right to collect toll is a form of intangible asset and is therefore

eligible for depreciation. He submitted that assessee considered

the toll rights as intangibles and claimed depreciation on it. He

submitted that on identical facts in the case of Ashoka

Infrastructure Ltd, the Pune Bench of ITAT vide order dated

18.07.2013 (for AY 2007-08) has allowed the claim of depreciation

on such toll rights. He placed the copy of the aforesaid decision at

page 110 to 158 of the Paper Book and pointed to the relevant

findings of Hon’ble ITAT. He also relied on the decision rendered by

Pune Tribunal in the case of Jain Irrigation Systems Ltd (ITA

No.1186/PUN/2010 order dt.09.06.2017) and Finolex Cables Ltd

(ITA No.360/PUN/2014 order dt.31.08.2015).

PCIT. He submitted that when AO has allowed the claim of

deduction u/s 80IA(4) of the Act without any discussion, the order

was erroneous and prejudicial to the interest of the Revenue. He

further submitted that in the present case there was no application

of mind by the AO and therefore the Ld PCIT has rightly invoked

provisions of Sec.263 of the Act. He submitted that deduction u/s

80IA(4), is available only to a company or a consortium of

companies and since the assessee is a partnership firm, the

assessee is not eligible for deduction and the AO without

examination of the necessary facts, had allowed the deduction and

therefore Ld PCIT has rightly held the order of the AO to be

erroneous and prejudicial to the interest of the Revenue. In support

of the contention that assessee being a firm, is not eligible for

deduction u/s 80IA(4), he relied on the decision of Chennai

Tribunal in the case of B. Dhanasekaran (ITA No 620/Mad/2013

order dated 06.11.2015), Hyderabad Tribunal in the case of NCC-

ECCI(JV) (ITA Nos.124 & 125/Hyd/2009 order dated 17.06.2013)

and Hyderabad Tribunal in the case of Ramky Infrastructure Ltd

(ITA No.472/Hyd/09 order dated 17.07.2013). He also relied on the

decision of Hon’ble Delhi High Court in the case of CIT Vs. Nalwa

Investments Ltd reported in (2011) 11 taxmann.com 98. On the

issue of claim of depreciation, he submitted that CBDT Circular

No.9/2014 dt.23.04.2014, has held that the entire cost of

construction and development has to be amortized evenly over a

period of concession agreement and allowed as business expenses

u/s 37(1). He submitted that since AO had failed to examine the

issue in the light of the aforesaid Circular, the Ld. PCIT has rightly

held that the order passed by AO u/s 263 to be erroneous and

prejudicial to the interest of Revenue. He thus supported the order

of Ld PCIT.

ECCI (supra) the issue was whether the assessee was a developer of

an infrastructure facility and the issue was not as to whether the

deduction u/s 80IA(4) is available to be partnership firm. Similarly,

in the case of Ramky Infrastructure (supra) the issue involved was

different namely, whether the assessee was a developer or

contractor. He therefore submitted that the reliance placed by the

Revenue on the decisions with respect to Sec.80IA(4) of the Act, are

distinguishable on facts and are, therefore not applicable to the

present facts. He therefore reiterated that in the present case the

Ld PCIT had erred in invoking the revisionary proceedings u/s 263

of the Act and therefore the order of Ld PCIT be set aside.

material on record. The issue in the present case is about the

invoking of provisions of Section 263 by Ld PCIT. Sec. 263(1) of the

Act, the powers under which Ld PCIT has assumed power for

revision reads as under:

“The Commissioner may call for and examine the record of

any proceeding under this Act, and if he considers that any

order passed therein by the ITO is erroneous in so far as it is

prejudicial to the interests of the Revenue, he may, after

giving the assessee an opportunity of being heard and after

making or causing to be made such inquiry as he deems

necessary, pass such order thereon as the circumstances of

the case justify, including an order enhancing or modifying

the assessment, or cancelling the assessment and directing a

fresh assessment.”

the power of suo motu revision u/s 263(1) is in the nature of

supervisory jurisdiction and the same can be exercised only if the

circumstances specified therein exist. Two circumstances must

exist to enable the Commissioner to exercise power of revision u/s

263, namely (i) the order is erroneous (ii) by virtue of being

erroneous, prejudice has been caused to the interests of the

Revenue.

Ltd., Vs CIT reported in (2000) 243 ITR 83 (SC) has held that CIT

has to be satisfied of twin conditions, namely, (i) the order of the AO

sought to be revised is erroneous; and (ii) it is prejudicial to the

interests of the Revenue. If one of them is absent—if the order of

the ITO is erroneous but is not prejudicial to the Revenue or if it is

not erroneous but is prejudicial to the Revenue—recourse cannot

be had to Sec.263(1). It was further held that the provision cannot

be invoked to correct each and every type of mistake or error

committed by the AO; when an ITO adopted one of the courses

permissible in law and it has resulted in loss of revenue; or where

two views are possible and the ITO has taken one view with which

the CIT does not agree, it cannot be treated as an erroneous order

prejudicial to the interests of the Revenue unless the view taken by

the ITO is unsustainable in law.

203 ITR 108 (Bom), the Hon’ble Bombay High Court has held as

under:

“An order cannot be termed as erroneous unless it is not in

accordance with law. If an ITO acting in accordance with law

makes certain assessment, the same cannot be branded as

erroneous by the Commissioner simply because according to

him the order should have been written more elaborately.

This section does not visualise a case of substitution of

judgment of the Commissioner for that of the ITO, who

passed the order, unless the decision is held to be erroneous.

Cases may be visualised where ITO while making an

assessment examines the accounts, makes enquiries, applies

his mind to the facts and circumstances of the case and

determines the income either by accepting the accounts or by

making some estimates himself. The Commissioner, on

perusal of the records, may be of the opinion that the

estimate made by the officer concerned was on the lower side

and, left to the Commissioner, he would have estimated the

income at a higher figure than the one determined by the

ITO. That would not vest the Commissioner with power to re-

examine the accounts and determine the income himself at a

higher figure. It is because the ITO has exercised the quasi-

judicial power vested in him in accordance with law and

arrived at a conclusion and such a conclusion cannot be

termed to be erroneous simply because the Commissioner

does not feel satisfied with the conclusion. It may be said in

such a case that in the opinion of the Commissioner the

order in question is prejudicial to the interest of the Revenue.

But that by itself will not be enough to vest the Commissioner

with the power of suo motu revision because the first

requirement, namely, the order is erroneous, is absent.

Similarly if an order is erroneous but not prejudicial to the

interest of the Revenue, then also the power of suo motu

revision cannot be exercised. Any and every erroneous order

cannot be subject-matter of revision because the second

requirement also must be fulfilled.”

Sec.263 and held that the assessment order passed by the AO u/s

143(3) to be erroneous and prejudicial to the interest of the

Revenue for two reasons firstly that since the assessee is a

partnership firm, cannot be considered to be a consortium so as to

be eligible for claiming deduction u/s 80IA(4) of the Act. According

to Ld. PCIT, AO has ignored the aforesaid fact and had allowed the

deduction and secondly for the reason that assessee had claimed

depreciation @ 25% on the project cost on WDV basis and the claim

of depreciation was allowed by the AO whereas as per CBDT

Circular No.9/2014, the entire cost of construction and

development had to be amortised evenly over the period of

concession.

allowed by AO, it is an undisputed fact that assessee had entered

into different concession agreements with Public Works Department

of Maharashtra for construction of certain roads and its operation

and maintenance for an agreed period on Build Operate and

Transfer (BOT) basis. By virtue of the concession agreement,

assessee was granted right to collect and retain toll for the defined

concession period. The right to collect toll was considered by

assessee to be a form of licence and thus an intangible right as per

provisions of Sec.32(1)(ii) of the Act and therefore being eligible for

depreciation at 25%. We find that on identical facts namely the

issue of depreciation on intangible rights, was before the Co-

ordinate Bench of Pune Tribunal in the case of Ashoka

Infrastructure Pvt. Ltd (supra). The Co-ordinate Bench of the

Tribunal, after considering the decision rendered by Mumbai

Tribunal in the case of ACIT Vs. West Gujarat Expressway Ltd.,

reported in (2015) 57 taxmann.com 384, which in turn had relied

upon the ratio laid down by Hon’ble Bombay High Court in the case

of North Karnataka Expressway Ltd., Vs CIT reported in (2015) 372

ITR 145 (Bom) and after considering the CBDT Circular No.9/2014

dated 23.04.2014 (which has also been relied upon by Ld PCIT in

the present case) has held that the right to collect toll is capital

expenditure and consequently the assessee is entitled to claim

depreciation on such intangible assets as provided u/s 32(1)(ii) of

the Act. Before us no material has been placed by the Revenue to

demonstrate that the aforesaid decision of Pune Tribunal in the

case of Ashoka Infrastructure (supra) has been set aside /

overturned by higher judicial forum. Further, in view of the

aforesaid facts, we are of the view that the view /opinion of the AO

of holding the right to collect toll as an intangible asset, and

therefore eligible for depreciation and allowing the claim of

depreciation to the assessee was a possible view. It is a settled law

that so long as the view taken by the Assessing Officer is a possible

view then the same ought not to be interfered with by the

Commissioner under Section 263 of the Act merely on the ground

that there is another possible view on the matter. As far as the

contention of the Revenue that on the issue of depreciation, there

was no whisper of having being examined by the AO in the

assessment proceedings, it has been held by various authorities

that the mere fact that the issue did not fall for discussion in the

assessment order would not ipso facto lead to the conclusion that

the Assessing Officer did not apply his mind to the issue.

80IA(4) as it being a partnership firm is concerned, it is an

undisputed fact that the assessee is a partnership firm consisting of

3 companies namely Rohan Builders (India) Pvt. Ltd, Rajdeep

Buildcon Pvt., Ltd and Rajdeep Road Developers Pvt., Ltd with a

profit sharing ratio of 50:40:10 respectively. It is also a fact that in

the case of assessee apart from the aforesaid 3 partners, there are

no other non-corporate entities, who are partners. It is also a fact

that the partnership firm came into existence on 11.04.2001 and

the same partners continued in the year under consideration

without any change in the constitution. It is a fact that according to

provisions of Sec.80IA(4)(i)(a), the section applies to an enterprise

which is a company registered in India or a consortium of

companies or by an authority or a board or a corporation or any

other body established or constituted under any Central or State

Act. It is also a fact that the word “consortium” used in the

provision has not been defined in the Income Tax Act. As per the

Merriam Webster dictionary, the word “consortium” means “an

agreement, combination, or group (as of companies) formed to

undertake an enterprise beyond the resources of any one member”.

As per the Collins English Dictionary, a “Consortium” is a group of

people or firms who have agreed to co-operate with each other”. We

find that the Hon’ble Madhya Pradesh High Court in the case of Org

Informatics (supra) has observed that a consortium is akin to a

partnership where each partner is liable for action of other

partners. In the present case it is not the case of the Revenue that

in the partnership firm, there are other non corporates, who are

partners or the firm is not for the purpose of business. It is seen

that the assessee has been granted the benefit of deduction u/s

80IA(4) in earlier years and in 2 assessment years i.e., A.Y. 2006-07

and A.Y. 2010-11, the benefit of Sec.80IA(4) was denied to the

assessee by the AO for a different reason and not for the reason

that the assessee was a firm and not a consortium of companies.

The claim of deduction was subsequently allowed by the Co-

ordinate Bench of Tribunal vide order dt.05.04.2013 in ITA

No.1214/PUN/2010 for A.Y. 2006-07 and vide order dt.10.03.2017

in ITA No.1920/PUN/2014 for A.Y. 2010-11. Thus, the claim of

deduction u/s 80IA(4) of the Act has been allowed to the assessee

in past from A.Y. 2004-05 onwards. Further, Revenue has not

brought on record any new facts in the year under consideration

due to which the claim of deduction u/s 80IA(4) could be denied to

the assessee. Before us, Revenue has not brought any material on

record to demonstrate that the view taken by the AO was an impermissible view or was contrary to law or was upon erroneous application of legal principles necessitating the exercising of Revisionary powers u/s 263 of the Act. Further, the case laws relied upon by the Revenue are distinguishable on facts and therefore cannot be applied to the facts of the present case. Considering the totality of the aforesaid facts, we are of the view that in the present case the condition precedent for assuming the jurisdiction u/s 263 of the Act did not exist and therefore the Ld. PCIT was not justified in resorting to the revisionary powers u/s 263 of the Act. We therefore set aside the orders of Ld. PCIT whereby he has set aside the assessment order passed by the AO u/s 143(3) of the Act. Thus, the grounds the of assessee are allowed.

Order pronounced on 23rd day of February, 2018.

Sd/- Sd/- (VIKAS AWASTHY) (ANIL CHATURVEDI) �या�यक सद�य / JUDICIAL MEMBER लेखा सद�य / ACCOUNTANT MEMBER

पुणे Pune; �दनांक Dated : 23rd February, 2018. Yamini आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent 3. PCIT-2, Pune. 4. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, “ए” / DR, ITAT, “A” Pune; 5. गाड� फाईल / Guard file.

आदेशानुसार/ BY ORDER,स T// ///True True copy // True Copy // व�र�ठ �नजी स�चव / Sr. Private Secretary आयकर अपील�य अ�धकरण ,पुणे / ITAT, Pune.