TMI Blog2020 (3) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... has already got the benefit from the order of Ld. CIT(A), therefore we choose not to disturb the findings of Ld. CIT(A). We notice that assessee has not carried on any other business other than business of infrastructure and we draw strength from the findings of Coordinate Bench in assessee s own case for AY 2009-10 that the assessee s business is eligible to claim deduction u/s 80IA(4) of the Act. Since there is no change in the activities of the assessee during this assessment year in reference to earlier assessment years. All the activities carried on by the assessee are eligible to claim deduction u/s 80IA(4) of the Act. Therefore, we are inclined to accept the findings of Ld. CIT(A). Accordingly, ground raised by the revenue is dismissed. Disallowance of expenses in the eligible business will increase the eligible profit - This profit if it is proved that it is earned only from eligible business, then such profit is eligible to be claimed u/s 80IA(4) of the Act. In the given case, assessee does not have any other business other than the eligible business u/s 80IA(4) of the Act and the chart below show that the assessee was already claiming deduction u/s 80IA(4) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled by the assessee is accordingly dismissed as infructuous. - I.T.A. No. 7270 & 7075/Mum/2017 - - - Dated:- 19-2-2020 - SHRI PAWAN SINGH AND SHRI S. RIFAUR RAHMAN, JJ. Appellant by: Shri Sushil Kumar Poddar Mrs. Kavita Kaushik, DRs Respondent by:Shri Rakesh Mohan, AR ORDER S. RIFAUR RAHMAN, J. The present four (4) Appeals have been filed by the revenue and assessee against the order of Commissioner of Income Tax (Appeals)-50, Mumbai in short Ld. CIT(A) dated 30.10.2017 for AY 2008-09 2013-14 respectively. 2. Since the issues raised in all the appeals are identical, therefore, for the sake of convenience, these appeals are clubbed, heard and disposed of by this consolidated order. Firstly, we are taking appeal filed by the revenue in ITA No. 7075/Mum/2017 for AY 2013-14 as lead case. 3. The brief facts of the case are, assessee is engaged mainly in infrastructure projects of government and other agencies involving civil construction business viz. construction of airport terminals, flyover, bridges, stadiums and residential towers, etc. Assessee filed its return of income on 30.11.13 declaring total income of ₹ 98,38,37,6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SURATGARH SRIGANGANAGAR TOLL ROAD PRIVATE LIMITED 80,50,65,791 11,27,09,211 JIND HARYANA BORDER TOLL ROAD PVT. LTD 95,29,29,927 13,34,10,190 CHOMU MAHALA TOLL ROAD PVT LTD 1,19,16,71,432 16,68,34,000 SOLAPUR MUNICIPAL CORPORATION 59,98,49,447 4,49,88,709 Total 6,46,63,97,685 6,67,80,539 6. When assessee was asked to substantiate the claim. In response, assessee submitted that it has claimed deduction u/s 80IA on 7 eligible projects, apart from the projects undertaken by the assessee during the earlier year on which deduction u/s 80IA(4) of the Act was claimed. Deduction u/s 80IA was also claimed on 3 new projects which were undertaken by the assessee during this year. Assessee also filed auditors report in Form 10CCB in support of its claim of deduction u/s 80IA of the Act. Further assessee submitted that it has claimed similar deductions in the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the site, quantity received, amount of the material. Further, the same is counter signed by the inspection officer and stores officer present at the site. The same clearly evidences that the said document is prepared at the site where the material is delivered. d) AO has not given reasons for rejecting the above said documents, which was submitted in support of purchases and now the onus is on AO to prove that the purchases are not genuine. For that proposition, assessee relied on Orient Trading vrs. CIT 91963) 49 ITR 723 (Bom) and Dr. R. L. Narang (174 taxmann 196). e) Assessee distinguished the case law relied by AO in his order. f) Assessee justified the profit declared by it at the range of 4.23%, which is within the industry norms. g) Further, it submitted that its case should be adjudicated in line with the decisions of; i) Smit Sheth (38 taxman.com 385) ii) Shri Madhukant B. Gandhi vrs. ITO (ITA No. 1950/Mum/2009). h) Further, it submitted that the entire income earned by them are eligible profit, which is deductible u/s 80IA(4) of the Act, any increase in profit due to disallowance will also deductible u/s 80IA(4) of the Act. 11. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ana Toll Road Project and Solapur Road Project for the first time in the captioned assessment year. Also, with respect to the other remaining projects, claim has is being continued from previous years.. 4. During the course of assessment proceedings, with reference to the disallowance of such claims in earlier years (from A.Y. 2003-04 to A.Y. 2012-13), the AO sought explanation as to why the said claim should not be disallowed in the captioned assessment year too. 5. In response to the same, the appellant company had filed an elaborate reply emphasizing mainly on the fact that in the case of B.T. Patil Sons Belgaum Construction Pvt. Ltd., the Division Bench has decided the matter in favour of the assessee relying on Hon'ble Bombay High Court decision in the case of ABG Heavy Industries Ltd and also that Hon'ble ITAT has decided this issue for 'A.Y. 2008-09 in favour of the appellant after considering the division bench order of B.T.Patil Sons Belgaum Construction Pvt. Ltd. The AO has reproduced the entire submission of the appellant in the assessment order. The discussion on this issue begins from page number 7 paragraph 5 of the assessment order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, A.O. observed whatever construction done by the assessee, the assessee can claim payment filing suit irrespective of the fact that whether the principal agency to earn or realize money from the facility. In this connection we would like to state that it is a common practice for undertaking any government contracts to raise running bills once work gets certified. This is the revenue for the assessee and it has no connection with the investment by the assessee. The investment is usually in the form of retention money, security deposits, bank guarantee, etc. Thus, the concept of Investment risk has been misinterpreted by A.O. 11. This aspect of involvement in making investment has been considered by the Hon ble ITAT in its order dated 12.01.2015 for appellants own case for A.Y. 2009-10 in Page 10 onwards running from Paragraph 13 to 18 of the said order. The relevant part is reproduced for your honour's ready reference. 13. It is crystal clear from the above clause that the financial risk has been undertaken by; the assessee. UIL has maintained a security deposit, maintained bank guarantees and retention monies with NFR, thus it placed NFR in a favourable posit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the principal agency only, as the approval is taken from such agency. Thus, the interpretation of the A.O. that technical risk is not undertaken by the assessee for this reason is incorrect. 13. This aspect of shouldering of technical risk has also been considered by Hon ble ITAT in its order dated 12.01.2015 for appellants own case for A.Y. 2009-10 on Page 12 Para 19 to 21 of the said order. The relevant part is reproduced for your honour's ready reference 20. It is crystal clear from the above clauses that the duty of assessee company UIL to make sure appropriate safeguards are in place to ensure the safety of the labourers undertaking the job. Thus, UIL is simultaneously responsible for security measures too, hinting at the overall responsibility of the project rests within UIL. 21. The overall reading of these clauses indicate that the assessee was to bear all risk related to technical aspects and safety criteria's involved in the project. 14. Though the above remarks of the Hon ble ITAT is with respect to project of Northern Frontier Railway (NFR), the same type of clauses are available in the tender documents of all the project ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these activities, the appellant has taken overall responsibility. Merely because in the instant case, design work has not been undertaken by the appellant, that itself does not debar the appellant from claiming deduction u/s. 80IA (4). It is the prerogative of the principal agency to -decide whether to award designing work also to the appellant. That alone cannot be the criteria to disallow the deduction u/s. 80IA(4). 18. We would further like to place reliance on the decision of the Apex Court decision in the case of Sun Engineering (198 ITR 297). 19. Thus the learned A.O.'s view to disallow deduction u/s. 80IA(4) merely for not undertaking design work is erroneous. 20. Further, deduction u/s. 80IA(4) is allowable if the infrastructure facility is Developed or operated and maintained or developed, operated and maintained. In the case of Koya 85 Construction (supra), the assessee had undertaken development, operation and maintenance, whereas in the instant case, the appellant has undertaken merely development of infrastructure facility, which is very much an activity eligible as deduction as contemplated in Section 80IA(4). 21. In view of the above, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITAT 5. 2008-09 ₹ 5,50,13,614 ₹ 5,50,13,614 CIT(A) 6. 2009-10 ₹ 4,60,25,314 ₹ 4,60,25,314 ITAT 7. 2006-07 to 2012-13 -Block Assessment ₹ 96,66,35,656 ₹ 96,66,35,656 Pending before ITAT We request your goodself to kindly delete the disallowance made by the AO. 13. After considering the submission of assessee, Ld. CIT(A) deleted the disallowance made by the AO with the following observations:- 6.3.1 I have considered the stand of the A.O as well as the submissions of the appellant carefully. I have also gone through the assessment order, the AO has disallowed the deduction u/s 80IA(4) of the Act by holding that the appellant does not fulfill 2 of the 4 criteria laid down by the decisions relied by the appellant. The AO, vide para 5.4 of his order, has held that the appellant does employ technical and administrative personnel and is liable for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession Agreement - Concessionaire is liable to pay for the damages in case of delay of conditions precedent if the same are unfulfilled within a span of 180 days Para 17.8 - in case of delay in meeting the maintenance obligations, the authority shall be entitled to recover such damages from the concessionaire. Para 5. 5 of the Concession Agreement - Concessionaire ensures that the personnel engaged are properly trained Solapur Municipal Corporation Para 40.2 of section 5 of the tender document - rise or fall in costs shall not be compensated by the employer and shall be borne by the concessionaire . Para 43 of Section 5 - security deposit shall be provided to the employer and shall be valid for a period of 30 days from the end of the defect liability period. Further, security deposit shall also be provided in the case of unbalanced tenders. Para'12 of Section 5 of the Tender document - all the damages pertaining to the property or any personal injury in during or in consequence to the project are shall be liable in the hands of the concessionaire Para 41 of Section 5 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Concessionaire is liable to bear the increase in costs due to factors other than change in law Para 39 of the Concession Agreement - the concessionaire shall be responsible for all defects and faults for a period of 120 days after completion of the project. Para 12.2 - the concessionaire shall bear all the cost in order to maintain the smooth functioning of the project during the construction period. Para 4.3 of the Concession Agreement - Concessionaire is liable to pay for the damages in case of delay of conditions precedent if the same are unfulfilled within a span of 180 days Para 5. 5 of the Concession Agreement - Concessionaire ensures that the personnel engaged are properly trained Para 5.4- concessionaire shall undertake and employ foreign personnel at their own cost. Microtunneling Project Para 31.1 of the tender document - the contractor is supposed to provide 5% of performance security in the form of bank guarantee within 2 1 days of the bid. Para 70 - the contractor shall bear all the costs in case any loss or damage is caused during the period of contract. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make good in case there are any damages to physical property or injury to personnel for 12 months after completion of the contract. Para 3. 9 of the tender document - the contractor shall be solely liable for any damages caused during the completion of the project or post the completion of the project. Para 2. 45 of the tender document- the tender shall be submitted with the declaration that the concessionaire hqs successfully carried out large works of this nature and has adequate organization, machinery and experienced personnel to handle jobs of this type and magnitude. The technical staff should be available at site whenever required by engineer in charge. Para 3.22 of the tender document- the concessionaire will employ or produce evidence of having or has employed qualified technical person not below the rank of a Sub engineer/ graduate engineer from an institution recognised by the government of Madhya Pradesh and furnish all details to the engineer in charge in the following format. Nagpur Municipal Corporation Para A5.l of the tender document - the contract will have to give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipe Line Para 20 of the tender document - the concessionaire shall pay a security deposit / performance security up to a sum of 2% of the contract price. Para 44 of the tender document - the concessionaire shall indemnify and keep them indemnified against all losses and claims for damage to physical property or personal injury. Para 70 - the concessionaire shall be responsible for the damages for 12 months after completion of the project. Para 65 of the tender document -the concessionaire shall be required to compensate the employer in case of any delay during the process of work. Para 68a - the concessionaire shall have to make good at his own expense within such period for the defects caused during the esteemed project Para 28 of the tender document - the contractor shall at his own cost hire skilled and experienced labourers for the job to be carried out at the site at hand. 6.3.2 I have considered the above chart and the tender agreements as submitted by the appellant. The said clauses as highlighted by the appellant indicate that all the 4 criteria as laid down by the decisions reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us purchase, even though there is no impact on taxable income. 16. Before us, Ld. DR with regard to ground no.1 submitted that there was a search and seizure operation undertaken in assessee as well as certain suppliers of bogus transaction and the biller Shri Devang K. Gandhi himself confirmed that it is accommodation entries and the biller retracted the statement after 13 months. According to him, such delay in retraction has no legal impact. Further, He submitted that assessee has not produced any evidence in support of the above said purchases to be treated as genuine. Further he supported the findings of Ld. CIT(A) on purchase being bogus and however, he objected to the findings of Ld. CIT(A) for allowing the above said addition u/s 80IA(4) of the Act by considering the same as part of eligible profit. He brought to our notice the findings of Ld. CIT(A) in page 15-16 of its order and further he submitted that it has no proof that the purchases made by the assessee are pertains to the eligible business of the assessee. 17. With regard to Ground No. 2 3, Ld. DR brought to our notice the detail findings of AO in its order and he submitted that assessee is only a wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and the profit derived by the assessee is eligible profit, therefore assessee has claimed u/s 80IA(4) of the Act. 20. With regard to Ground No. 2 3, Ld. AR submitted that Hon ble ITAT always held that assessee is eligible for deduction u/s 80IA(4) of the Act and further Ld. CIT(A) has independently analyzed the findings of AO and gave a clear finding that assessee s business is specific business as per section 80IA of the Act and it is eligible to claim deduction u/s 80IA(4) of the Act. 21. In the rejoinder, Ld. DR submitted that it is categorical admission by Shri Devang K. Gandhi and even in AY 2008-09, similar disallowances were made and it is in appeal before ITAT and further he opposed the submission of Ld. AR on the retraction of the statement of Shri Devang K. Gandhi. He submitted that the statement of Shri Devang K. Gandhi has been taken u/s 132(4) and it has got independent evidence value and in the retraction statement, it was stated that department exerted pressure which is not true, if so why Shri Devang K. Gandhi retracted after 1 year. Therefore, the reasons given in affidavit cannot be accepted. Even otherwise, assessee has not filed proper documents a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the activities of the assessee during this assessment year in reference to earlier assessment years. For the clarity, we are reproducing the findings of Coordinate Bench in earlier assessment year i.e. 2009-10:- 6. We have considered rival contentions, carefully gone through the orders of the authorities below and found from the record that the assesses is engaged in developing infrastructure projects such as roads, dam, bridges, subways and buildings etc. The assessee company has carried out development work awarded by certain Govt Authorities, mentioned above and the assessee claimed deduction u/s.80IA on the profits derived from the construction and development of the above, however, the AO did not convince with the submission of the assessee and disallowed the same and in appeal the CIT(A) upheld the action of the AO, against which the assessee is in further appeal before us. Now, we shall take into consideration the facts whether the assessee is entitled to deduction u/s.80IA(4). We found that the works were allotted to the assessee company by the authorities on the basis of tenders filed by the assessee with respective departments fulfilling all the conditions of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been claiming deduction u/s 80IA since AY 2005-06 and AY 2006- 07 respectively, which has been allowed by Murnbai ITAT vide order dated 10.10.2014 (pertaining to AY 2003-04 to AY 2007-08). The AO disallowed the deduction claimed u/s 80IA of the Act, heavily relying upon retrospective amendment of 2009 and the Third Member ruling of the Mumbai ITAT, in the case of B.T. Patil Sons Belgaum Construction Pvt. Ltd. [SOT 171 (MUM.) (LB))( where the larger bench after considering the retrospective amendment of 2009, treated the assessee as a works contractor and thereby ruled against the assessee. By the impugned order, the Id. CIT(A) confirmed the action of the A.O. 9. The issue under consideration is whether the assessee is a work contractor or developer. To decide the same, it is imperative to analyze the benchmark ruling given by the Pune divisional bench vide order dated 28.02.2013 in the case of B.T. Patil Sons Belgaum Constructions Pvt Ltd (ITA No. 1408 1409/PN/2003 AY 2000-01 2001-02), after drawing inference from the decision given by Hon'ble jurisdictional High Court in the case of ABG Heavy Industries Ltd., held as under: The opinion of the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise work involved is construction of single line BG tunnel No. 1 between 29/940-km 31/875 in between station Sindhu Kumar Paras and Ambasa in connection with Kumarghat Agartala New Railway Line Project. For this project, the assessee has given guarantee period of maintenance for 6 months. The assessee had undertaken financial risk by making investment. The relevant para No. 14.4.2. of the tender/bidding document reads as under:- Paras 14.4.2 - The earnest money deposited by the contractors} with his/ their tender will be retained by the Railway as part of the security deposit for the due and faithful fulfillment of the contract by the contractor(s}. The balance to make up the security deposit may be deposited by the contractors} in cash. Deposit Receipt. Pay Orders. Demand Drafts of any Scheduled Bank or in the form of irrevocable Bank Guarantee Bond from any Scheduled Bank or may be recovered by percentage @ deductions from the contractor's on account bills . Provided a/so that in case of S defaulting contractors the Railway may retain any amount due to payment to the contractor on the pending on account bills so that the amounts so retained may not exceed 10% of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cipal recovery. In the event of any shortfall the same will be carried forward to the next on account bill and will attract interest at 18%. 15. It is clear from the above provisions that any advance given by NFR to UIL would be treated not as a payment of contract amount but as an interest bearing advance at a rate of 18% p.a. Thus UIL has also faced financial risk. 16. Annexure 1(d) provided for sourcing of men and material. The relevant clause reads as under- The Contractor shall at his own expense provide unless specified otherwise in schedule all materials including cement, reinforcement steel and dowel bars required for the works. The contractor shall make his own arrangement for all construction plants and equipment tools Including spare parts fuel and consumable stores and all labour required to ensure efficient and methodical execution of the work. The quoted rates shall be inclusive of all charges as such items. The quoted rates shall be inclusive of all charges as such items. 17. From the above clause, we can gather that there was over all involvement of the assessee in the tendered project Such involvement in the sphere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of assesses company UIL to make sure appropriate safeguards are in place to ensure the safety of the labourers undertaking the job. Thus, UIL is simultaneously responsible for security measures too. hinting at the overall responsibility of the project rests within UIL. 21. The overall reading of these clauses indicate that the assesses was to bear all risk related to technical' aspects and safety criteria's involved in the project. 22. As per the terms of the contract, the assessee was also liable for liquidated damages. The relevant clauses read as under- In the event of any tenderer, whose tender is accepted refusing to execute the contract documents as therein before provided the Railway may determine that such tenderer has abandoned the contract and thereupon his tender and the acceptance thereof shall be treated as cancelled and the Rly. shall be entitled to forfeit the full amount of the earnest money and to recover the liquidated damages for such default. 23. In the tender document, the assessee was also made liable for requirement of programme and completion period which reads as under- If the work does not commence within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tructor with at least five years of experience. Proficiency of workmen will be checked by Engineer-in-charge before allowing them to work. Other technical requirements - Annexure 4(b) The Contractor shall be required to set up a Laboratory manned by a qualified technician and Geologist for conducting following test on the soil and rock samples. The cost for setting up laboratory and testing should be taken into account while quoting rate, no separate payment will be made for this. Following tests for assessing rock mass rating by Bieniawski's Method which is very important for deciding the methodology of tunneling and type of temporary and permanent lining will be conducted as required by site in charge. 26. The assessee company was also responsible for liability in respect of workers claim - Annexure 4(c) which reads as under: - Contract Labour Act: The Contractor shall observe all the provisions of the Contract Labour {Regulation and Abolition) Act 1970 and Central Rules 1971 or any statutory modifications or re-engagements thereof for the time being in force and any rules and regulations made their under in respect of all the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn capital. 32. The assessee was also required to make its own arrangements for cement, steel and blasting material. Therefore, it has to employ its own funds for the same. The relevant para for sourcing own blasting material is as under: The contractor shall make his own arrangements to procure blasting materials. It shall be the responsibility of the contractor to store the materials in accordance with the rules of the explosive Act or other rules framed by the Govt of India. He should possess/acquire proper license for transport, possession, and use of explosives and short firers licenses as per revised explosives Act, 1983. II From the above mentioned extracts of the tender document it is very clear that the appellant is responsible for the procurement of materials and their safety under his custody. He is also a well established and viable developer as the tender provides for the essential eligibility for being awarded the project. Thus, it clearly establishes the worthiness of the appellant to comply with the project requirements. The appellant has to procure materials at his own cost which denotes the involvement in Investment activity of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use 60.6(b) the assessee was also to make equipment advance against bank guarantee up to 5% of the contract price against the new equipment. 39. The above clauses show that UIL has to procure interest bearing funds with respect to execution of the contract and so it has to assume financial risk also. 40. As per tender document executed by the assessee, the assessee has undertaken technical risk, the relevant clause reads as under:- Defective Risks - Annexure 2(a) All defective works are liable to be demolished, rebuilt and defective materials replaced by the contractor at his own cost In the event of such works being accepted by carrying out repairs etc, as specified by the engineer the cost of the repairs will be borne by the contractor. Measures and Precautions to be undertaken - Annexure The Contractor shall take all necessary measures and precautions and otherwise ensure that a the execution of the Works and all associated operations on site or off-site are carried out in conformity with statutory and regulatory requirements including those prescribed elsewhere in dt this document. The provisions specified in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in the Appendix to Tender. The Employer may, without prejudice to any other method of recovery, deduct the amount of such damages from any monies due or to become due to the Contractor. The payment or deduction of such damages shall not relieve the Contractor from his obligation to complete the Works, or from any other of his obligations and liabilities under the Contract, 43. As per the tender document, the assessee has ensured provision for suitably qualified personnel to fill key positions as required during contract implementation, UIL also provided personnel for the key positions specified in Section VIII, Schedule C of Bid Documents satisfying the qualification and experience requirements. The relevant para is enclosed as Annexure 4. 44. In view of the above factual position which emerges from tender/bid documents/agreement that the assessee was not only having responsibility for shouldering the financial risk, technical risk but also liability of liquidated damages, employment of technical and administrative staff etc. In other words the assessee has substantiated through the terms and conditions of tender/bidding agreements as to how it is a develope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 4,60,25,314 ITAT 7. 2006-07 to 2012-13 -Block Assessment ₹ 96,66,35,656 ₹ 96,66,35,656 Pending before ITAT 27. The above /chart status shows that the assessee is into carrying eligible business and does not have any other activities, therefore the profit earned by assessee is eligible to be claimed u/s 80IA(4) of the Act and any increase in such profit due to disallowance will also be treated as eligible profit to be claimed deduction u/s 80IA(4) of the Act. The courts have held in the following cases that the increased profit due to disallowance is very much available for claiming deduction u/s 80IA(A) of the Act:- i) Sheth Developers 25 taxman.com 173 (Bom) ii) ACIT vrs. Mahalaxmi Infraprojects Pvt. Ltd. (2018) 63 ITR 671 (Pune Trib) 28. Respectfully following the above decision, we are inclined to accept the findings of Ld. CIT(A) and the revenue has not brought on record any information relating to the activities of the assessee that it has carried on any other activities, which are not covered u/s 80IA(4) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in other assessment year, it may be relevant to notice that the profit declared by the assessee is eligible to claim deduction u/s 80IA(4) of the Act and there is no necessity for the assessee to indulge in such activities. Accordingly, the grounds of appeal filed by the assessee are dismissed as the same are academic in nature. ITA No. 139/Mum/2018 (AY 2008-09) 34. Now we take up ITA No. 139/Mum/2018 for AY 2008-09 filed by the assessee, in which assessee has raised ground no. 1 on reopening of assessment and Ground No. 2 3 are against addition on bogus purchases made from Lakhan Traders Pvt. Ltd. and Gorhan Traders Pvt. Ltd. and Ground No. 4 related to disallowance of commission expenses @ 2% of the alleged bogus accommodation entries. 35 Before us, Ld. AR brought to our notice page no. 2 of the paper book in which AO communicated the reasons for reopening of assessment. He submitted that AO has issued the notice after 4 years after completing the assessment u/s 143(3) r.w.s 153A of the Act and submitted that AO has reopened this assessment with the borrowed satisfaction and non-application of mind. In this regard, he relied on the case of PCIT vrs. Saudiman ..... X X X X Extracts X X X X X X X X Extracts X X X X
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