TaxTMI 
TaxTMI 
2013 (2) TMI 71
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....s erred in law and on facts in deleting the addition of Rs.1035199/- made by the Assessing Officer on account of unexplained cash credit u/s.68 of the Act. 2) The ld. Commissioner of Income-tax(A)-XIV, Ahmedabad has erred in law and on facts in admitting fresh evidence in violation of Rule 46A and not allowing the Assessing Officer an opportunity to verify & comment upon the fresh evidences furnished by the assessee. 2.1. In respect of the issue raised, facts in brief as emerged from the corresponding assessment order passed u/s.143(3) r.w.s. 254 dated 16.10.2008 were that in the past, the ITAT "A" Bench in ITA No.3028/Ahd/2004 (for A.Y. 2001-02) vide an order dated 29.07.2005 has restored the issue back to the file of AO, relevant paragraphs reproduced below:- "10. Apropos ground No.3, during the course of assessment proceedings it was found by the AO that there were credits appearing in the books of accounts of assessee in the names of following two persons:- P.G. Shringapure Rs. 1,90,000/- Dipen U.Patel Rs.11,27,387/- In absence of any explanation having been offered by the assessee the above mentioned amounts were....
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.... balance payment is made, with due care of deducting the TDS and making payment thereof. The work account itself appears to be just an adjustment and the AO is, therefore, fully justified in making an addition of Rs.12,40,087/- under the provisions of Sec.68 and no interference whatsoever is called for." 11. It was pleaded before us, that it was submitted to CIT(A) that Shri P.G.Shringarpura is assessed to tax. His copy of statement of total income and acknowledgement receipt of return of income were also filed. Similarly it was contended that in respect of credit of Shri Dipen U.Patel pertained to work done by him for assessee and the payment amount was credited to his account and the payment was made against his bill. Copy of account of Shri Dipen U.Patel was also produced. Thus it was pleaded that ld.AO as well as the CIT(A) did not properly consider the submissions of the assessee. It was pleaded that assessee can properly explain these credits and, therefore, the issue may be restored back to the file of AO for reconsideration. 12. On the other hand, the ld.DR relied on the orders of AO and the CIT(A). 13. We have car....
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....as deemed income of the assessee. The non-cooperation of the assessee was mala fide in the opinion of ld.CIT(A). Ld.CIT(A) has commented that in fact it was a case of "bogus liability", claimed without any credible evidence. The addition in respect of Shri Dipen U.Patel was confirmed by ld.CIT(A). In respect of the addition pertaining to Pradeep G.Shringarpure, it was informed that there was a clerical mistake in the Tax Audit Report and a certificate to clarify that mistake was furnished. As per ld.CIT(A), it was a self-surving evidence, thus could not be treated as a credible evidence. The conclusion of the ld.CIT(A) was that the liability shown by the assessee in the name of said two parties was no longer in existence and it was a case of a claim of a bogus liability. The conclusion drawn by the ld.CIT(A) is as under:- "In conclusion, the outstanding liability shown by the appellant in the name of Shri Dipen U.Patel and Shri Pradeep G.Shringapure amounting to Rs.1,73,728/- and Rs.31,160/-, i.e. in total of Rs.2,04,888/- are held as liability no longer existing or bogus liability and deemed to be the income of the appellant u/s.41(1) of the Act since the same ....
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....n paid by the assessee, then naturally in consequence thereof the assessee shall get the relief as per law. Side by side, we also direct the assessee to fully co-operate with the investigation. Rather, considering the fact that the assessee is already in second round of appeal, we hereby direct that the assessee shall suo motu approach the AO within 20 days on receipt of this order, without waiting for any notice with all documents, so that the matter should get addressed at an early date. After receiving the basic information, such as, copies of accounts, acknowledgements and details of payment, the AO is at liberty to take the required legal action as per law. With these directions, the grounds of the Assessee as also the Revenue both are allowed but for statistical purposes only. As a result, the appeal of the Assessee as well as Revenue for A.Y. 2001-02 both are allowed but for statistical purposes. [B] ITA Nos.402/Ahd/2012 & 602/Ahd/2012 for A.Y. 2005-06 (cross appeals - By Assessee & Revenue respectively) 4. For A.Y. 2005-06 cross appeals have been filed arising from the order of ld.CIT(A)-XIV, Ahmedabad dated 30/12/2011. We shall first take up the appeal of the Assessee, h....
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....d. (Pune) 1501500 19. ARB. Award Br. 40 - Andheri 1480077 20. Skanska - New Delhi 400200 21. Sales 474760 22. Trading A/c. 10179 TOTAL RECEIPTS 6,55,43,956 4.3. The fundamental objection of the AO was that the assessee was not a "developer" but merely a "contractor". According to AO, the assessee had entered into a work contract agreement with different authorities, such as, AUDA, GWRDC, Enviro Const., and Chennai Const.,etc. A show-cause was issued and the assessee was asked to justify the claim of deduction u/s.80IA and to produce Auditor's Report in Form No.10CCB. In compliance, the assessee has submitted as follows; only relevant portion is reproduced: "Assessee is a developer of the Under bridges applying owned design, investments. In the such development of infrastructure projects. Risk, responsibilities and fund for execution of projects are of the assessee itself. As assessee engaged in development of infrastructure hence entitles for deduction u/s.80IA of the Act." ..... ..... "The reading of the provisions of the Act, no where in the said provision, it is required that ....
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....ection of the AO was that the Auditor's Report on Form No.10CCB, along with the copy of the agreement of the assessee with Central Government/State Government/Local Authority, was not furnished. The AO has discussed a contract with AUDA and commented in the following manner:- "(i) Contract with AUDA As regards the construction work entered into with AUDA for the construction of under-bridges the assessee has entered into with a contract for the work of manufacturing, testing, supplying, transporting, loading-uploading, at site laying and pushing in Railway limit M.S. casing pipes and providing and laying M.S. carrier pipes as pr tender specification. The work includes all necessary excavation dewatering by deploying necessary no.of pumps as per required refilling trenches after completion of pushing work all necessary temporary work for pushing of pipes. Deploying sufficient manpower, all types of machineries required for pipe pushing in proper line and level as per approval & instruction of railway authority. The work also includes the maintenance of railway tract proper position at work site during pushing of pipes & still completion of wor....
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....d that the assessee had constructed several overbridges as also under-bridges for Central Government and State Government Projects and thereupon claimed a deduction u/s.80IA of an amount of Rs.4,79,508/- being 100% of the profit u/s.80IA. It was explained that 13 projects were carried out and the assessee was assigned those projects being known for development of bridges and canals. The assessee has furnished a copy of the "work order" to explain the nature of the work executed. The assessee has also furnished the details in respect of application of own design and assessee's deployment of technique. The explanation of the assessee was that its own funds were utilized. Further in respect of execution of project the risk and the responsibility was taken by the assessee. Before ld.CIT(A), the appellant has referred an order passed u/s.144A of the Act, relevant portion extracted below:- "Extract of the order passed U/S 144A of the Act by the Additional Commissioner of I.Tax for the A.Y. 2004-05 is as under. "Further considering the assessee's reply dated 14/12/06 placed before the A.O. as well as A.O's report submitted as per para 5 noted above,....
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.... acting as under bridge is cast. After the total strength of the under bridge has been achieved, it is then pushed below the railway track with the help of hydraulic pump and 250 ton capacity hydraulic jacks. As this under pass is slowly being pushed below the railway track, the earth is being excavated simultaneously from within the box. At a stretch, 30 Cms. Of pushing can be achieved in a day. This process is repeated day after day till the final pushing is completed. And the result is that the under bridge is constructed and the load of the railway line is resting on the concrete RCC bridge without disturbing the railway traffic. After this, the finishing touches of plastering, water proofing is done and whenever required, the retaining walls on the sides of the road leading to the under pass is also constructed. Finally, the whole underpass is ready through which the vehicular traffic is allowed to pass. Throughout the construction of the under bridge, various officials of Railways, AIDA, State Govt.continuously inspect and monitor the project till completion. 3. Eligibility of section 80IA: As I have personally visited the site and seen the projects, it is....
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....ay will be in respect of income derived from the use of the infrastructure facilities developed by them." 7.1. He was of the view that the assessee is entitled for deduction if satisfies the conditions mentioned in section 80IA(4) of IT Act which are enumerated in sub-clauses (a), (b) & (c) of the Act. He has emphasized the insertion of Explanation to section 80IA, wherein it is provided that nothing contained in section 80IA shall apply in relation to a business referred to in sub-section(4) which is in the nature of "work-contract". According to him, one of the important ingredient for entitlement of deduction u/s.80IA is the financial investment and financial risk of an enterprise. He has mentioned Memorandum explaining the provisions of Finance Bill of 2007 and quoted that where a person makes investment and himself executes the development work, carries out the civil construction work, then eligible for tax benefit u/s.80IA. The first condition to be satisfied is that an enterprise should be a developer of the infrastructure facility. To emphasize the meaning of word "developer" he has also quoted Radhe Developers 23 SOT 420 (Ahd.). He has clarified that although the issue in....
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.... stick to the specifications given to him." 7.2. Ld.CIT(A) has also reproduced the work undertaken or executed by the assessee during the year. In the said chart, there was a description of nature of the work undertaken by the assessee and the commencement of the year of the said work. It was not in dispute that the assessee had undertaken the construction of under-bridge of the Railways. Assessee was asked to give the details of the contract, which were submitted. On that basis, ld.CIT(A) has also discussed few of the contracts with Railways as also with AUDA and GWSSB. Thereafter, he has concluded (i) that the investment was not made by the appellant,(ii) that the design and planning for development of infrastructure project was not of the appellant,(iii) that there was no financial risk belonged to the assessee, (iv) that there was no mobilization of technical expertise or supervision or control of the assessee. Resultantly, the claim of the assessee were dismissed in the following manner: "The claim of the appellant are examined with reference to the terms and conditions of the various contracts taken by it. The contracts have been discussed in the precedin....
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....and synthesizing people, plants, technical expertise, supervision, co-ordinating and control, etc. to develop and create the infrastructural facility. This claim is also without factual support. The appellant has not developed and created the facility. It has also only executed the work assigned to him which was part of the infrastructural facility being planned by the government authority. The plan of the project was not made by the appellant. The appellant is expert in box pushing technique and all the projects have been executed by using that technique. In most of the contracts the appellant has executed the part of the work which relates to creating of under pass below the railway line. In Sujlam Suflam Scheme the appellant has executed that part of the project which involves construction of boxes. Therefore, the claim of the appellant that it has developed and created the infrastructure facility is not acceptable. The ground of appeal is, therefore, dismissed." 8. From the side of the appellant, ld.AR Mr.Dhinen Shah appeared. After describing the nature of the development work executed by the assessee, he has emphasized that some of the projects were held ....
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....at there was no financial risk of the assessee, since the assessee has furnished the "work bill" time to time and received the payment from the Government. The Government has granted him a small work to be executed. It was a part of a large project and not a project as such. The assessee has not developed an infrastructure project as a whole. He has pleaded that the assessee has not conceptualized the project. The project was planned by the Government. The assessee was asked to complete only a part of the project that too on contract basis. Neither there was "risk" nor there was "reward" for the assessee. The assessee has simply tendered the bills of the work executed and received the payment. He has drawn our attention on "Notes on Accounts" and informed that as per the "Revenue Recognition" the income was accounted on the basis of the bills certified by the Government Department. The escalation claimed and arbitration award was accounted on the basis of the receipt. He has pleaded that on account of escalation in the price, the assessee has accordingly claimed as per the bills, therefore there was no risk of the assessee. Placing reliance on the orders of the authorities below, h....
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.... company has developed an expertise and by this method there was no disturbance in the traffic and no inconvenience is caused which otherwise was earlier experienced while applying traditional construction method. Further, safe running of trains have also been achieved by this method. As per the contents of the paper-book, there is a description of box pushing technique, quote "R.C.C. Box is pushed through the embankment with the help of hydraulic jacks to create a passage. Execution of this work is similar to the construction of well foundation. Wells will be sunk into the ground either by self-sinking or with the help of kentledges. In case of box push bridge, precise box segments will be pushed in horizontal direction with the help of hydraulic jack by taking reaction from thrust bed." Unquote. The assessee has also furnished certain photographs to demonstrate the nature of work executed. 11. The next contention of the assessee is that the activity carried on was within the definition of "infrastructure facility" as defined in Explanation to section 80IA(4) means a "road including toll road, a bridge or a rail system" . In support assessee has placed on record the definition o....
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....nt required for execution of this work. 2.2. Designing of box section as per approved profit sketch General Arrangement Plan No.NRHQE (P) Plan No. P-1770-SB/1998/R-3. The design will be based on modified broad gauge Railway loading-1987. The design shall be from reputed Consultant to be approved by Railway and the same be got Proof checked from RITES/technical institution such as Indian Institute of Technology/Roorkee. Contractor has to make his designer available for any clarifications for checking of the design/drawings by the Northern Railway. The final approval of design and drawings shall be given by the Railway. In the area of existing arch, twin box of 2x8.50 Mtr x 5.75 Mtr. will have to be designed and constructed in lieu of individual boxes No.2 & 3. Box No.1 & 4 will be designed as single boxes each of size 8.50 Mtr. x 5.75 Mtr. one each on either side of the existing Arch. 2.3. The contractor has to submit detail arrangement alongwith design calculations for supporting of arch during pushing of box and same is to be got cleared from Railway before commencement of work. However, the disman....
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.... the Engineer at contractor's own cost." Unquote. So these clauses have affixed certain liabilities as also responsibilities on the assessee which were apparently more than the responsibility generally been fixed on a " contractor". 11.6. The construction material which is used by the assessee was also the property of the assessee and in this regard one of the clause was stated to be as under:- "Pre-casting and curing of RCC Box units including fixing of front end frame/cutting shield, with all fabricated enabling work remaining the property of contractor, after completion of the work." Had it been the work executed as a contractor then the construction material ought to be the property of the owner but the clauses have said otherwise, thus buttress the arguments of the assessee. 11.7. It was clarified that the infrastructure as a whole, i.e. the bridges are naturally the property of the Government Department. But the appellant was further given the responsibility of maintenance of the work executed and one of the condition was stated to be that the maintenance period of the work should be six months. Ld. AR has therefore pleaded that in the case of a "contra....
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....r which the concurrence of AIDA shall be obtained. Any change of the Site Engineer as has been proposed in PQ documents and also during the progress of work shall be done only after obtaining the concurrence or instructions of AUDA." 11.10. The assessee was made responsible for any error in the execution of the work. It was the responsibility of the contractor i.e. the assessee, for damage-free execution of the work. Otherwise, generally a contractor is not held responsible or not required to repair the damages at his own cost. One of the clauses with South-Eastern Railway was that the contractor was required to submit its own drawings along with his tender. The structural design including method of construction as proposed by contractor was to be submitted by the contractor. Therefore on the basis of these clauses it is demonstrated that there were certain special terms and conditions, distinguishable from the 'workscontract', under which this assessee had executed the assined construction. 11.11. Next, our attention has also been drawn on "Sujalam Sufalam Yojna". As per the tender notice, Government of Gujarat has an aim to transfer surplus water of rivers in Central and South ....
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....ch, on the contrary, a contractor is the one who is assigned a particular job to be accomplished on behalf of the developer. The duty of a contractor is to translate such design into reality. The role of a developer is much larger than that of the contractor. As per Bench, it is no doubt that in certain circumstances a developer may also do the work of a contractor but a mere contractor per se can never be called as a developer, who undertakes to do work according to the pre-decided plan. These findings have indeed helped us in deciding the issue in hand. 12.1. This technical term, i.e. "developer" was also under question in the case of Radhe Developers 341 ITR 403 (Guj.), wherein vide an order dated 13.12.2011, the Hon'ble Court has quoted as under: "Secondly, term "developer" has been understood in common parlance as well as in legal sense carrying a much wider connotation. The Tribunal itself in the impugned order has traced different meanings of the term "developer" explained in different dictionaries, which read as under: "1. The Webster's Encyclopedia unabridged of the English language gives the following meaning of the term developer ....
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....per the Tribunal, the deduction u/s.80IA is available to the former and not to the latter. The term "developer" has to be seen de hors the contract. The Bench has also opined that word "ownership" is attributable only to the enterprise carrying on the business which would mean that only companies are eligible for deduction u/s.80IA(4). 12.3. An another controversy in such type of cases is in respect of the term "ownership" prescribed as per the language of the Section. The Section 80IA(4) prescribes that it applies to any enterprise carrying on the business of developing, operating and maintaining any infrastructure facility which fulfils the conditions, namely, it is owned by company registered in India or by a consortium of such companies and that it has entered into an agreement with the Central Government or State Government and that it has started operating and maintaining the infrastructure facility on or after 1995. The term "it is owned" has been defined by the Revenue Department as if the infrastructure facility is to be owned by the enterprise claiming 80IA(4) deduction. But the view expressed by the Hon'ble Courts is entirely different. In one of the decision pronounced....
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.... is not essentially in contradiction to the term "developer". By entering into a lawful agreement and thereby becoming a "contractor" in no way bar an enterprise to execute the work as a "developer". It was opined that merely because in the agreement for development of infrastructure facility an enterprise is referred to as a contractor do not detract an enterprise from the position of being a "developer". In number of decisions, the Coordinate Benches have cited ITAT Pune Bench decision pronounced in the case of Laxmi Civil Engineering Pvt.Ltd. (ITA Nos.766/PN/09, 254/PN/08, 431/PN/07 & 435/PN/07 AYs 2006-07, 2005-06, 2003-04, 2004-05) order dated 08/06/2011), wherein it is mentioned as under:- "2. Tracing the background of the case, learned counsel for the assessee mentioned that in the first round, the appeals were decided relying on the decision of the Third Member in the case of B.T.Patil & Sons 126 TTJ 577 vide order dated 18.02.2010. Subsequently, the said order of the Tribunal was recalled in view of the binding jurisdictional high Court's judgment pronounced on 15.02.2010 in the case if ABG Heavy Engg.Ltd. reported in 37 DTR (Bom) 233." 13. In the back....
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....t a contractor has no domain over the land or the site. (viii) That his access to the site is restricted and limited from commercial angle. (ix) That on the basis of the project he cannot raise the funds from the private financial institutions. (x) That "a contractor" is not responsible for the development of the project but his responsibility is limited to the job-assigned to him. (xi) That a " contractor's" duties and responsibilities can only be examined on the basis of the terms and conditions of the contract agreement. 12.7. Now we shall examine about a " developer". From the above reading we have also gathered (a) That a developer is a person who undertakes the responsibility to develop a project. (b) That a developer is therefore not a civil contractor simplicitor. (c) That if we apply the commercial aspect, then a developer has to execute both managerial as well as financial responsibility. (d) That the role of a developer, according to us, is larger than that of a contractor. (e) That when a person is acting as a developer, then he is under obligation to design the project, it is an another aspect that such design has to be approved by the owner of the project, i.e. the G....
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....der-bridge for a contract of Rs.39,62,213/-. It has also been stated that by applying Jacking method RCC Box were provided through Railway Embankment for providing distributory channel projecting for Narmada Project. The assessee has also designed and constructed "New Box Culvert" between Jonathpur- Ahura Road Station. Such details are available in the compilation. On the basis of this examination we, therefore, give a finding that it was wrong on the part of the AO to hold that the assessee has merely acted as a contractor. By analyzing the nature of work executed by the assessee, it can be gathered that the assessee had acted as a developer. The assessee has undertaken the responsibility of execution of the work. The assessee has developed its own design and on getting approval applied the technology for completion of infrastructure facility. Terms and conditions of the agreement executed with certain Government Departments have also established that the risk in execution of work has also been undertaken by the assessee. Rather, the assessee was held responsible for any damage or loss to the property. We have also noted that the Revenue Department has wrongly interpreted the wor....
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....ovided that where in respect of any such sum tax has been deducted, then such sum shall be allowed as a deduction in computing the income of the previous year in which such tax has been paid. According to him, a plain reading of this proviso, it is clear that if the TDS has been deducted during the last month of the previous year but paid after the said due date, then the deduction is not allowable. The AO has made out a list of alleged late payment and by invoking the provisions of section 40(a)(ia) a total disallowance of Rs.66,14,143/- was made. The matter was carried before the first appellate authority. 16. Before ld.CIT(A), it was pleaded that the assessee had deducted the tax and paid to the Central Government before the due date of filing of the return. In support, case laws cited were Bapu Sahib Nana Sahib Dhumal vs. ACIT 132 TTJ 6 (Mum.) and H.S. Mohindra Traders 132 TTJ 701 (Del.). After hearing the submission and the connected case laws, it was noted that there was a decision of the Special Bench in the case of Bharti Shipyard vs. DCIT reported in 132 ITD 53 (Mum.), wherein it was held that the amendment was prospective, i.e. from 1.4.2010 and not retrospective from 1.....
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....ent which was made by Finance Act, 2008 with retrospective effect from 01/04/2005. Reliance is placed on the decision of Hon'ble Gujarat High Court in Tax Appeal No.706/2010 dated 18/07/2011 in the case of CIT vs. J.K.Construction Co. and also on the decisions in the case of Bapu Saheb Nana Saheb Rumal [132 ITJ 694][Mum.] & H.S. Mohindra Traders [132 TTJ 701] [Del.]. Therefore, no disallowance u/s.40(a)(ia) can be made on these facts of the case." 17. Having heard the submissions of both the sides, we are of the considered view that there was no fallacy in the view taken by ld.CIT(A). Now this issue is very well settled. In one of the case, the Respected Coordinate Bench "D" ITAT Ahmedabad in the case of Sanjaybhai A.Sarvaiya vs. Jt.CIT bearing ITA No.4006/ahd/2008 (A.Y. 2005-06) order dated 13/07/2012 held as under:- "5. Having heard the submissions of both the sides, we are of the view that the first question whether the amount remained payable at the end of the year is first to be ascertained and in this regard after perusing the records and the accounts of the assessee as also considering the submissions of the assessee, there is no dispute that there was n....
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....e at source under Chapter XVII-B and such tax has not been deducted or, after deduction, has not been paid on or before the due date specified in sub-section (1) of section 139." Plainly speaking, assessee had to make deduction before 31st March of the year in question and as long as such amounts were deposited before last date of filing of the return, requirements of law would be fulfilled. It was on this basis that tribunal was of the opinion that the assessee committed no wrong and was therefore, entitled to seek deduction of Rs.32,94,149/- from the income which amount the assessee had deducted from payments of contractors and had also deposited with Revenue before the last date of filing of the return. We do not find any illegality in order of tribunal. Tax Appeal is therefore, dismissed." 6. Under the totality of the facts and circumstances of the case and following the view taken by the Hon'ble Courts, we find no reason for disallowance of the entire amount, therefore direct the AO to delete the same." 17.1. Now the Hon'ble Jurisdictional High Court as cited supra has taken a view which is now been consistently ....
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.... between Malia and Indiranagar GWSSB - NC9 Rs.11.25 lacs 8. Construction of Arch by providing 04 RCC box by box pushing technic under railway track at Delhi Northern Railway Rs.2.36 lacs 9. Construction of bridge by providing 04 RCC box by box pushing technic under railway track at Virar-Surat Section Western Railway Rs.50.08 lacs 10. Construction of bridge by providing 1 RCC box by box pushing technic under railway track between Kalway Road and Palghar Station Western Railway Rs.26.80 lacs 11. Civil work at MDL Mazgaon Dock Ltd. Rs.28.85 lacs 12. Construction of water way with RCC box by box pushing method at Similiguda Eastern Cost Railway Rs.14.44 lacs 19. The AO has discussed the civil work carried by the assessee. He has arrived at the conclusion that the assessee had not constructed any bridge but only carried out a civil work on contract basis which was not in the nature of Development of Infrastructure Facility. The claim of the assessee was disallowed. Being aggrieved the matter was carried before the first appellate authority. 20. Ld.CIT(A) has discussed the issue at length and also examined the work executed of each contract. He has also examined ....
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....re was development of any infrastructure facility. Facts as culled out from the records are examined. The assessee had carried out the civil work like excavation, concrete flooring and also provided steel enforcement bar for RCC flooring, etc. The assessee has informed that the nature of work was precisely, "Concrete flooring with anchor plate Alcock yard between existing Gantry Rail track at Mazgaon Dock Ltd., Mumbai". Since the basic condition is that for the purpose of claim of deduction u/s.80IA(4) an Enterprise should develop an infrastructure facility as defined in Explanation and the work executed with Mazgaon Dock Ltd. was not within the said definition, therefore the nature of civil work executed did not qualify for deduction u/s.80IA(4). We have been informed that the payment in respect of excavation and concrete flooring received from MDL Mumbai was Rs.28,85,115/-. The corresponding net profit as per the books of accounts of the assessee, which was claimed as deduction u/s.80IA(4), is hereby directed to be disqualified so the assessee shall not be entitled in respect of the profit earned on the said execution of work. Resultantly, the ground raised by the assessee is par....
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....Less:Advances and part bill recd. Rs.39,21,481.00 Balance outstanding: Rs. 7,47,677.76 Add:Rate difference Rs. 1,34,355.00 Loss @ 12% on a/c.of Rate diff. Rs. 1,17,967.24 Total outstanding: Rs.10,00,000.00 This status is shown as on 15-2-01. In another evidence dt: 9-1- 200 being notice to appellant from Shri Ramesh M.Jaraiya, Advocate, the detail of transaction is explained showing once again total outstanding of Rs.9,71,754/-. The Agreement dt: 16-1- 06 only talks about Rs.1 lac paid by appellant vide DD dt: 9-1-06. It is, therefore, there is no reference of earlier Rs.1 lac advance as claimed by appellant. Further, as discussed above the recipient (Shri Rajendra Bhardwaj) given the working of outstanding of a much later date, i.e. Feb.2001 and Jan.2000 and, therefore, Rs.1 lac advance given on 7-1-95 cannot be presumed as outstanding and not considered in computation under the head "Advance and part bill receipt of Rs.39,21,481". The appellant has not filed any other evidence to support its contention. It is, therefore, the A.O. is justified in disallowing claim of Rs.1 lac. The ground of appeal in this regard is rejected." 23. We have heard both th....
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....ed before us. The assessee has furnished the copy of account of MDL in its book. The assessee has also furnished a letter of the Chief Manager (CW) dated 08/06/2005, wherein as per the subject the assessee has executed "Concrete flooring with anchor plate in Alcok Yard in between existing Gantry rail track" and retained liquidated damages provisionally at 6% amounting to Rs.1,73,106/-. Later on, an amount of Rs.41,497/- was refunded. The MDL has deducted Rs.1,31,610/- as per letter dated 10.10.2008 as liquidated damages. We are of the view that in terms of the provisions of section 41(1), the assessee is under obligation to account for the impugned claim in Asst.Year 2008-09. As per this section, where an allowance has been made which ceased to exist the benefit of which had already been made, then the same is to be treated as gain of the said amount which was claimed earlier. The correct position of law thus is that in terms of the law pronounced by the Hon'ble Supreme Court in the case of Rotork Controls India Pvt.Ltd.(supra), the incurrence of the liability is admissible for the year under consideration, however, the adjustment due to cession of liability is to be made in A.Y. 2....
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....n the other hand, we have noted , as culled out from the records, that the projects are like construction of road, under-bridge, AUDA Authority Ahmedabad, construction of underbridge GWR Division Ahmedabad, Construction of bridge Western Railway Dadar Mumbai, construction of water-way East-Cost Railway Visakhapatanam, Construction of bridge, water supply project Ahmedabad, Construction of RCC Box of various authorities of Railway Mumbai, spreading of canal of SSSY Project, etc. Since the Revenue Department has not referred any particular project for this qualification, however on the other hand, we have examined these projects hereinabove, therefore on the same lines we hereby hold that the assessee is entitled for claim of deduction u/s.80IA in respect of these projects for the year under consideration as well. Resultantly, assessee's ground and appeal is allowed. [F] Assessee's appeal, ITA No.404/Ahd/2012 for A.Y. 2008-09 29. Grounds raised read as under:- 1) The order passed by the Ld.CIT(A) is against law equity and justice and same is wholly illegal, unlawful and bad in law. 2) The Ld. CIT(A) has erred in law and/or facts upholding the....