TMI Blog2017 (2) TMI 1432X X X X Extracts X X X X X X X X Extracts X X X X ..... ITA No.5943/Del/2016 Assessment Year : 2012-13 - - - Dated:- 28-2-2017 - Shri S.V. Mehrotra, Accountant Member Appellant by : Shri Prakash Sinha, Adv. Respondent by : Shri S. K. Jain, Sr.DR ORDER S.V. Mehrotra, This is an appeal filed by the assessee against the order dated 15.09.2016 passed by the Commissioner of Income Tax (Appeals)-1, Gurgaon, u/s 143(3) of the Income Tax Act, 1961 (in short the Act ) relating to assessment year 2012-13. 2. Brief facts of the case are that the assessee had filed return declaring total income of ₹ 1,05,930/-. During the course of assessment proceedings, the Assessing Officer noticed that there was a joint venture agreement b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipt as the work contract had been further given to associated party in view of section 40A(2). After considering the assessee s reply the Assessing Officer assessed the net income at ₹ 42,45,054/- being 4% of gross receipt of ₹ 10,61,26,350/- as against the returned income of ₹ 1,05,930/-. Ld. CIT(A) dismissed the assessee s appeal. Being aggrieved, the assessee is in appeal before the Tribunal and has taken the following grounds of appeal :- 1. Because the learned CIT has erred in appreciating that Article 265 of the Constitution of India provides that No tax shall be levied or collected except by authority of law and the fundamental rule of taxation is that unless otherwise expressly provided, income cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me tax Officer is precluded from assessing the firm in the status of an un-registered firm or association of persons. Thus, all the partners of the firm or members of the association will have to be assessed as partners of a registered firm, even though while dealing with the assessment of the firm, the income -tax Officer comes to conclusion that the firm is not entitled to registration. Although the Supreme Court's decision is under the Indian Income tax 1922, the Board is advised that it will equally apply to the assessments made under the income tax Act, 1961. In view of the above decision, the income tax Officers assessing the partners of a firm should not normally complete the regular assessments of the partners by incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee. Here when the KEC who has carried on all the business of civil construction has already returned its income and considered its receipts from this project of ER SER then the joint venture (JV) which was just a special purpose vehicle (SPV) for the purpose of getting qualified for the bid and thereafter bidding cannot considered as an assessee who carries on the business of the Civil construction. 4. Because the learned AO and CIT (A) has failed to appreciate the Press release dated 08/03/2016 issued by CBDT wherein the issue of assessment of AOP has been thoroughly discussed in the light of circular No - 07/2016 dated 07/03/2016 and based upon this the CBDT has withdrawn the SLP filed against the order of the High Court o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and b. Pass any other order as this Hon'ble Court may deem fit under the circumstances. 3. At the time of hearing, ld. counsel for the assessee filed a copy of the decision of ITAT, Delhi Benches, New Delhi in the case of ITO vs. KecAsiakom UB (JV) in ITA No.2326/Del/2016, order dated 21.11.2016, wherein, the Tribunal has held that the disallowance made u/s 40A(2)(b) of the Act was not justified. Ld. counsel explained that various JVs were entered into for getting various contracts. Ld. DR relied on the order of CIT(A) and referred to para 3.3 of his order, which is reproduced hereunder :- 3.3 I have carefully considered the appellant's submission. I have also perused the documents filed by the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b) as the contract had been given to associated party. I find that under identical circumstances the Tribunal in the case of Kec-Asiakom UB (JV) (supra) has observed as under :- 4. I have heard the ld. AR and perused the relevant material on record. None is present on behalf of the Revenue. In fact, there is no one to attend the proceedings from the side of the Revenue in all the cases fixed before the Bench today. The ld. AR insisted that the appeal be disposed of. I am agreeable with the contention of the ld. AR and, accordingly, proceeding to dispose of the instant appeal ex parte qua the Revenue. 5. It is noticed that the AO made disallowance u/s 40A(2)(b) of the Act by opining that the assessee should have earned i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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