TMI Blog2010 (1) TMI 774X X X X Extracts X X X X X X X X Extracts X X X X ..... Vijay Mehta for the Appellant Ajay Srivastava for the Respondent ORDER R.K. Gupta: These are two appeals by two different assessees against order of CIT (A) relating to assessment year 2005-06. Identical issues are involved in both of the appeals therefore, they are disposed off together. 2. First issue in both these appeals is against denying deduction of Rs.6,86,01,506/- and Rs.4,37,85,291/- respectively claimed u/s 80IA(4) in respect of income derived from the activity of development of eligible infrastructure facilities. 3. The Learned Counsel fairly stated that in view of the decision of the larger Bench in case of B.T. Patil and Sons Belgaum Construction Private Limited vs ACIT in ITA Nos 1408 and 1409/PN/2003 vide order dated 26th October 2009, the issue is liable to be decided against the assessee. 4. Briefly stated the facts of the case are that the Assessing Officer noticed that these assessees were engaged in the business of civil contracts for construction of roads, highways etc. It was seen by him that they are not engaged in the business of developing any infrastructure facility. Since these assessees were executing works contract taken from Nation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he issue either was decided in favour of the assessee or was debatable one, therefore, bonafidely both the assessees have not paid the advance tax on the amount of profit claimed as deduction u/s 80IA(4). The first installment was payable on 15.9.2004 and as explained earlier the decision of the Tribunal in case of M/s Patel Engineering Ltd dated 22.6.2004 was available and accordingly the assessee has not paid advance tax on the amount of profit claimed as deduction u/s 80IA(4), therefore, the chargeability of interest u/s 234B is not justified. Reliance was placed on decision of Tribunal in case of M/s Harayana Warehousing Corporation reported in 252 ITR 34 (AT portion), in case of Express Newspaper Ltd (103 TTJ 122), in case of M/s Revathi Equipment Ltd (108 TTJ 429) and on the decision of the Hon'ble Karnataka High Court in case of Kwality Biscuits Ltd (243 ITR 519) which have been affirmed by the Hon'ble Supreme Court. Reliance was also placed in the case of M/s Ultratech Cement Ltd decided in ITA Nos 7646 and 7647/Mum/2007, copies of these decisions are placed on record. On the other hand, Learned Departmental Representative placed reliance on the orders of the Assessing Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve not paid first installment of advance tax. The decision of M/s Patel Engineering Ltd were followed by various Benches of the Tribunal and allowed the claim u/s 80IA(4) and thereafter there was a divergent view among the Benches of the Tribunal. Accordingly, the Hon'ble President constituted larger Bench to decide the issue. The larger Bench decided the issue against assessee vide order dated 26.10.2009. In view of these facts and circumstances, it is seen that the assessees were under bona fide belief that there was no need to pay advance tax as the deduction u/s 80IA(4) is allowable. 10. In case of Express Newspaper Ltd (103 TTJ 122) by which the Chennai Bench of the Tribunal has held that: "assessee having received intimation regarding the adjustment of income-tax refund only after the last installment of advance tax was paid which it could not anticipate, interest u/s 234C was not chargeable for the shortfall of payment of advance tax." While holding so the Bench has taken into consideration the decision of Smt Premlata Jalani 264 ITR 744(Raj). In another case, i.e. in case of M/s Harayana Warehousing Corporation (252 ITR 34)(AT) the third member has concurred with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the installments of advance tax was due, the decisions were in favour of assessee by which it was held that deduction u/s 80IA(4) is allowable. The assessees acted bona fide in conformity with the earlier decisions of the Tribunal. Just for the reason that now larger Bench has decided the issue in favour of department, liability to pay advance tax could not be fastened on these assessees. At the point of time of making of payment of advance tax it was impossible on part of these assessees that the favourable decision of the Tribunal will be reversed by the larger Bench of the Tribunal. Therefore, we hold that at that point of time, these assessees were not liable to pay advance tax on the amount of profit claimed as deduction u/s 80IA(4). 13. We have also taken into consideration the decisions relied upon by Learned Departmental Representative in the case of Upper India Engineering Co and Glaxo and found that both the decisions are distinguishable on facts. The facts before P and H High Court were that while making prima facie adjustment u/s 143(1)(a) interest u/s 234B/C can be charged or not. The CIT (A) and the Tribunal has held that while completing the assessment u/s 143(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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