M/S. BMW INDUSTRIES PVT. LTD.,KOLKATA vs. DCIT, CIR-1(2), KOLKATA, KOLKATA

For A.Y.2011-12 the assessee filed return of income on 29.09.2011 showing a total income of Rs.20,48,49,810/-. In arriving at the total income the assessee had claimed deduction of a sum of Rs.1,49,16,548/- u/s 80IA(4)(i) of the Act namely profits deriving from developing, operating and maintaining infrastructural facility. The AO examined the claim of the assessee and reduced the claim made by the assessee by a sum of Rs.2,78,385/- for the following reasons :- “From the computation of total income it is seen that the assessee company has claimed deduction of Rs. 1,49,16,548/- u/s 80IA(4) of the IT,Act,1961 in support of which Form

The CIT in exercise of his powers u/s 263 of the Act was of the view that order of the AO in so far as it relates to allowing the claim of the assessee for deduction u/s 80IA(4)(i) of the Act was erroneous and prejudicial to the interest of the revenue. In this regard, the CIT issued show cause notice u/s 263 of the Act not only for A.Y.2011-12 but also for A.Y.2010-11. Both the show cause notices were dated 23.02.2016. The allegations in the show cause notice for both the AY’s were identical. In so far as AY 2011-12, the allegation of the CIT in the show cause notice u/s.263 of the Act was that the Assessee was engaged in road construction and claimed and availed deduction u/s.80IA during A.Y. 2011-12 as detailed below:

Under Section-80IA(4)(i) of the Act, a deduction of prescribed percentage of profits derived from the eligible business for certain number of years is allowed to - (i)any enterprise carrying on the business of (i)developing or(ii)operating and maintaining or (iii) developing, operating and maintaining any infrastructure facility Explanation to Section 80IA(4)(i) of the Act lays down that for the purposes of the said clause, "infrastructure facility" would mean- (a)a road including toll road, a bridge or a rail system; (b)a highway project including housing or other activities being an integral part of the highway project; Explanation below Sec.80IA(13) of the Act that was subsequently added explaining that the deduction is not allowable to a contractor. The said explanation reads thus: “Explanation - For the removal of doubts, it is hereby declared that noting contained in this section shall apply in relation to a business referred to in sub- section (4) which is in the nature of a works contract awarded by any person (including the Central or State Government) and executed by the undertaking or enterprise referred to in sub-section (1).”

Prior to its substitution, Explanation, as inserted by the Finance Act, 2007, w.r.e.f 1- 4-2000, read as under:

In the case of M/s. B.T. Patil & Sons Belgaum Construction Private Limited vs. The Asst. Commissioner of Income-tax, Circle-2, Kolhapur, (Lager bench of ITAT, Mumbai, October,2009) it was held that Section 80- IA(4) (even pre-amendment) applies only to a "developer". The difference between a "developer" and "contractor" is that the former designs and conceives new projects while the latter executes the same.

According to the CIT, since the assessee was merely executing the job of civil construction, it was not eligible u/s. 80-IA(4). The CIT was of the further view that the Assessee was also not the "owner" of the facility and was merely executing the job of civil construction on the basis of works contract awarded by Executive Engineer. He was also of the view that the roads constructed by the assessee were not coming under expressway or highway category as mentioned in the clarification stated above. Thus the assessee was not a developer of an infrastructure facility and was not eligible deductions under the section. The CIT was therefore of the view that the order of the AO allowing deduction u/s.80IA(4)(i) of the Act to the Assessee was erroneous and prejudicial to the interest of the revenue and therefore the Show cause notice was being issued to pass appropriate orders u/s.263 of the Act. 9. According to the Assessee it filed a reply to the show cause notice in the office of the CIT on 30.03.2016. The CIT however had already passed the impugned order u/s 263 of the Act as earlier as 23.02.2016. In other words, there was no occasion for the assessee to explain before the CIT as to why the proceedings u/s 263 of the Act cannot be initiated in the case of the assessee for the relevant AY. 10. The CIT in the impugned order came to the conclusion that the order of the AO was erroneous and prejudicial to the interest of the revenue. According to the CIT the AO has failed to apply his mind to the assessee’s claim of deduction u/s 80-IA(4) in the light 4 5 BMW Industries Ltd. A.Yr.2011-12 of the decision of the Hon’ble Pune Bench in the case of M/s. B.T.Patil & Sons and the statutory amendment to Act referred to earlier whereby an explanation was inserted by the Finance Act 2009 with retrospective effect from 01.04.2000. The CIT in the impugned order set aside the order of the AO on the issue of deduction u/s 80IA(4)(i) of the Act and directed the AO to complete the assessment de novo after affording opportunity to the assessee.

Aggrieved by the order of CIT the assessee has preferred the present appeal before the Tribunal.

The ld. Counsel for the assessee at the outset pointed out that deduction u/s.80IA(4)(i) of the Act on similar receipts was allowed by the Assessee in assessment of the Assessee for AY 2003-04 to 2009-10. In fact it is only in AY 2011-12 that the order of the AO is sought to be revised in exercise of powers u/s.263 of the Act and proceedings initiated u/s.263 of the Act for AY 2010-11 on identical grounds did not ultimately culminate in an order u/s.263 of the Act. It was further submitted by him that the only reason by the CIT in the impugned order for invoking the powers of section 263 of the Act is the decision of the Hon’ble Pune Bench in the case of M/.s. B.T.Patil & Sons and the retrospective amendment to section 80IA of the Act. It was submitted by him that in the decision rendered by the Pune Bench of the Tribunal in the case of M/s. B.T.Patil & Sons (supra) it was held that there is a difference between the developer and the contractor and that a person who merely executes the job of civil construction does not design or concieve new projects and he only executes the job of civil construction and was therefore eligible for deduction u/s 80IA(4) of the Act. The ld. Counsel for the assessee brought to our notice that the aforesaid decision of the Pune Bench of the Tribunal was a decision rendered by a third member owing to difference of opinion on the issue of deduction u/s.80IA(4)(i) of the Act between the members of the Division Bench which heard the issue. After decision of the third member the appeal was posted for hearing before the divisional bench for passing an order giving effect to the opinion of the majority. Since the assessee did not appear in the proceedings for 5 6 BMW Industries Ltd. A.Yr.2011-12 giving effect to the order of the third member, the divisional bench dismissed the appeal of the assessee in limine. The Assessee moved a miscellaneous petition before the Tribunal for recalled of the order of the dismissal. The assessee also filed an appeal before the Hon’ble Bombay High Court against the order giving effect in the opinion of the majority. The Miscellaneous application was allowed and order of dismissal of the appeal for non appearance was recalled. In view of the aforesaid development the assessee sought to withdraw the appeal filed before the Hon’ble Bombay High Court against the order giving effect to the opinion of the majority. The Hon’ble Bombay High Court allowed the Assessee to withdraw it’s appeal and in doing so also gave some directions to the Division Bench to be followed while giving effect to the opinion of the majority. The relevant portion of the said order of Hon’ble jurisdictional High Court in ITA No.1307 of 2011 for A.Y. 2000-01 and 1640 of 2011 for A.Y. 2001-02 is as under: “1. Since the Tribunal has recalled the impugned order dated 23.03.2011, the appellant is withdrawing its appeal.

Further, while considering the matter afresh, the Tribunal will take into consideration all decisions including the decision of this court in the matter of CIT v. ABG Heavy Industries Ltd. reported in 322 ITR page 323. All contentions are kept open.

The ld. Counsel submitted that a reading of the aforesaid order of the Hon’ble Division Bench of the Tribunal in the case of M/S.B.T.Patil & Sons (supra) giving effect to the order of the third member in the light of observations of the Hon’ble Bombay High Court and the decision of the Hon’ble Bombay High Court in the case of ABG Heavy Industries (supra) would show that the view expressed by the special bench of the ITAT in the case of M/s. B.T.Patil & Sons (supra) and the tests laid down in the aforesaid decision were no longer good law. According to him in the light of the subsequent decisions rendered on the issue what is to be seen is as to whether the assessee has shouldered out Investment & technical risk in respect of the work executed and it is liable for liquidated damages if it failed to fulfill the obligation laid down in the agreement. The liability that was assumed by the assessee under terms of the contract would be obligations involving the development of an infrastructure facility. The assessee has also in its employment technically and administratively qualified team of persons. If the above conditions are satisfied then it would not be correct to say that assessee is merely a contractor & not a developer. According to him the CIT in the show cause notice as well as in the order passed u/s 263 of the Act has not taken cognizance of the later development of the law, which development had taken 7 8 BMW Industries Ltd. A.Yr.2011-12 place prior to the date of show cause notice issued u/s.263 of the Act, the entire approach of the CIT was not sustainable in law. It was his submission that in the light of the law as explained in the subsequent decisions, the ratio laid down by the larger bench in the case of M/s. B.T.Patil & sons(supra) by ITAT Pune was no longer good law. It was his further submission that the AO in accepting the claim of the assessee has adopted a particular view on the issue and merely because the CIT does not agree with that view, the provisions of Sec. 263 of the Act cannot be invoked by CIT. In this regard reference was made by him to the decision of the Hon’ble Supreme Court in the case of Malabar Industries Ltd. 243 ITR 83 (SC).

The learned DR submitted that the AO failed to look into the question whether the Assessee was eligible for deduction u/s.80IA(4)(i) of the Act or not. According to him the said deduction had to be determined on the basis of reading of the agreement and ascertaining the various responsibilities and risks involved in execution of a project. The AO not having done so, his order was erroneous and prejudicial to the interest of the revenue and was amenable for revision u/s.263 of the Act as an order erroneous and prejudicial to the interest of the revenue. According to him whatever be the law on the issue, this basis analysis ought to have been done by the AO while allowing the claim of the Assessee u/s.80IA(4)(i) of the Act. It was submitted by him that in the absence of reference to the terms of the contract, the revenue from which was claimed as exempt u/s.80IA(4)(i) of the Act, by the AO in the order of assessment, jurisdiction u/s.263 of the Act was rightly invoked by the CIT. He therefore supported the order of the CIT.

We have given a very careful consideration to the rival submissions. Sec.80IA(4)(i) of the Act which allows deductions in respect of profits and gains from industrial undertakings or enterprises engaged in infrastructure development, etc., reads as follows: “80-IA. (1) Where the gross total income of an assessee includes any profits and gains derived by an undertaking or an enterprise from any business referred to in sub-section (4) (such business being hereinafter referred to as the eligible 8

The aforesaid Explanation to Sec.80IA of the Act was Substituted by the Finance (No.2) Act, 2009, w.r.e.f. 1-4-2000. Prior to its substitution, Explanation, as inserted by The Finance Act, 2007, w.r.e.f. 1-4-2000, read as under :

The provisions of Section 80IA (4) of the Act were introduced by the Finance Act, 1999, in substitution to the provisions of 80IA (4A) of the Act which were deleted from the Act. The deduction available for any enterprise earlier under section 80IA (4A) were also made available under Section 80IA (4) of the Act. The deduction u/s.80IA(4)(i) of the Act is allowed on profits derived from (i) "developing" or (ii) "operating and maintaining" or (iii) "developing, operating and maintaining". Thus any enterprise which carries on any of the above three activities would become eligible for deduction. The deduction is available for a period of 10 years. It is not in dispute in this case that similar receipts from similar contracts executed by the Assessee in the past were considered as eligible for deduction u/s.80IA(4)(i) of the Act. The details of the past Assessment (i.e. from AY 2003-04 to 2009-10) are given at page-14 of the Assessee’s paper book. The same is as follows: Details of Deductions allowed u/s 80IA(4) 10

From a perusal of the impugned order it is clear that the Assessee has furnished the copies of contracts the receipts from which were claimed as profits derived from the business of carrying out infrastructure development eligible for deduction u/s.80IA(4)(i) of the Act. We have already seen that the AO while completing the assessment u/s.143(3) of the Act by order dated 25.3.2014 has taken note of Form No.10CCB giving complete details of the profits derived from the business that is eligible for deduction u/s.80IA(4)(i) of the Act. He had raised specific queries with regard to allocation of proportionate head office expenses while arriving at the profits of the eligible business. Keeping in mind the past history of the Assessee’s case it cannot be said that the AO failed to deal the specific facts of the case as per law and has not scrutinized/verified the details in respect of the issues raised in the show cause notice u/s.263 of the Act.

The CIT in the impugned order has heavily relied on the decision of the Third Member in the case of M/S.B.T.Patil & Sons (supra) and raised doubts as to whether the Assessee can be regarded as a developer or person carrying out works contract. As rightly pointed out by the learned counsel for the Assessee, the tests laid down in the 11 12 BMW Industries Ltd. A.Yr.2011-12 decision of the larger Bench of ITAT, Mumbai in the case of B.T.Patil & Sons (supra) with regard to whether the person claiming deduction u/s.80IA(4)(i) of the Act should be owner of the infrastructure facility and that any person carrying out infrastructure development under a contract with Government would be considered as falling within Explanation to Sec.80IA of the Act was itself not good law in view of the subsequent decision of the Hon’ble Bombay High Court in the case of ABG Heavy Industries (supra) and the order of the Division bench giving effect to the decision of the Third Member in the case of B.T.Patil & Sons (supra).

The CIT has also observed in his order that the Assessee was not owner of the infrastructure facility. The expression "owned" in sub- clause (a) of clause (1) of sub section (4) of Section 80IA of the Act refer to ownership of the enterprise and not the ownership of the infrastructure facility that is created. The ownership of the enterprise should be that of a company and not any other person like individual, HUF, Firm etc. sub-clause (a), clause (i) of sub section (4) of Section 80-IA uses the word "it" and that denotes the enterprise carrying on the business. The word "it" cannot be related to the infrastructure facility, particularly in view of the fact that infrastructure facility includes Rail system, Highway project, Water treatment system, Irrigation project, a Port, an Airport or an Inland port which cannot be owned by any one. Even otherwise, the word "it" is used to denote an enterprise. Therefore, there is no requirement that the assessee should have been the owner of the infrastructure facility.

The CIT has also observed that the Assessee was only a contractor and not a developer because he was carrying out work as per the contracts awarded by the Executive Engineer. As rightly pointed out by the learned counsel for the Assessee, the question as to whether the Assessee as per the question as to whether the Assessee is ‘developer’ or ‘contractor’ has to be tested in the light of the subsequent decisions rendered on the issue by the Hon’ble Bombay High Court in the case of ABG Heavy Industries (supra) and the order of the Division Bench of ITAT giving effect to the larger bench (third member) decision in the case of B.T.Patil & Sons (supra). 12 13 BMW Industries Ltd. A.Yr.2011-12 According to these decisions what is to be seen is as to whether the assessee has shouldered out Investment & technical risk in respect of the work executed and it is liable for liquidated damages if it failed to fulfill the obligation laid down in the agreement. The liability that was assumed by the assessee under terms of the contract would be obligations involving the development of an infrastructure facility. The assessee has also in its employment technically and administratively qualified team of persons. If the above conditions are satisfied then it would not be correct to say that assessee is merely a contractor and not a developer. Without giving adverse finding on the above tests, the CIT could not conclude that the order of the AO was erroneous and prejudicial to the interest of the revenue.

Further the CIT in the impugned order has also observed that the roads construed by the Assessee were not coming under expressway or highway category as mentioned in the Explanation to Sec.80IA(4)(i) of the Act, which defines Infrastructure facility for the purpose of claiming deduction under the aforesaid section. We are of the view that the definition covers any road including toll road. It need not be coming under expressway or highway category.

Proceedings were initiated u/s.263 of the Act for AY 2010-11on identical grounds but no order u/s.263 of the Act was ultimately passed. The grounds on which the CIT sought to invoke jurisdiction u/s.263 of the Act are quiet vague. Considering all the above aspects of the case, we are of the view that the conclusions in the impugned order of the CIT that the order of the AO was erroneous and prejudicial to the interest of the Revenue for the reason that deduction u/s.80IA(4)(i) of the Act was wrongly allowed to the Assessee either for want of proper enquiry by the AO before concluding the assessment or for the reason that the Assessee did not satisfy the requirements of claiming deduction u/s.80IA(4)(i) of the Act, cannot be sustained. We therefore quash the order passed by the CIT u/s.263 of the Act and allow the appeal of the Assessee.