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TMI Blog2021 (9) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 3. The Ld.Pr.CIT erred on facts as also in law in holding that the appellant firm is contractor and not developers and merely executing the civil construction work as a sub-contractor on behalf of Government of Gujarat is not entitled to claim deduction u/s.80IA(4) of the Act and thereby setting aside the assessment order passed u/s. 143(3) of the Act dated 16.09.2013. The order passed by the Id. CIT is totally unjustified on facts as also in law therefore the same may kindly be quashed. 4. The Id. Pr CIT further erred on facts in not properly considering the facts on record and appellant's submission that all the details were furnished during assessment proceedings and were verified by the AO and the order under consideration was passed after due inquiry, verification of facts on record and due application of mind. Thus, the order passed u/s 263 of the Act is totally unjustified on facts as also in law and may kindly be quashed. 5. Your Honor's appellant craves leave to add, amend, alter or withdraw any or more grounds of appeal on or before the hearing of appeal. 3. The only issue raised by the assessee is that the learned Principal CIT erred in holding that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16 and 2nd March 2016 submitted that the contract for the construction of the bridge has been allotted to it in an e-tender after qualifying the technical and financial criteria laid down therein. The assessee for this purpose entered into the agreement dated 12th June 2009 with the Government. Furthermore, it had carried out all the activities of the project which was allotted as package and not for the execution of a particular work only. The activities involved in the development project include many segments such as levelling of earth, clearing and grubbing of road land, grass, trees, earth work for embankment with selected soil breaking clods etc. It has issued all the RA bills which were duly approved by the engineers appointed by the government and which were further handed over to the Government. Accordingly, the assessee contended that it has fulfilled all the conditions as specified under section 80IA(4) of the Act and therefore it is eligible for deduction as specified under said section. 4.6 It was also contended by the assessee that the AO has allowed the claim of the assessee under section 80IA(4) of the Act after raising specific queries vide letter dated 14th June ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 80 IA(4) of the Act. For this proposition, the learned AR relied on the order of Rajkot Tribunal in the case of ITO Vs. Patel Highway Management Pvt. Ltd in ITA No. 135/RJT/2016 for A.Y 2011-12 dated 02/08/2017. 7. On the contrary the learned DR submitted that there is no discussion in the order of the AO about the deduction claimed by the assessee under section 80-IA (4) of the Act. Moreover, the contract was awarded in the name of AIPL and thereafter the joint-venture agreement was made. Furthermore, the issue whether joint-venture is eligible for deduction under section 80-IA(4) of the Act has not been examined by the AO during the assessment proceedings. Therefore no view has been taken up by the AO in the assessment proceedings. The learned DR vehemently supported the order of the learned principal CIT. 7.1 The learned AR in his rejoinder contended that it is not necessary for the AO to discuss the issue in the assessment order with respect to the deduction claimed by the assessee under section 80-IA(4) of the Act once he ( the AO) was satisfied after necessary verification. In this connection, the learned AR relied on the judgment of Bombay High Court in the case of CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the learned principal CIT reads as under: It is pertinent to note that initially the letter of contract was issued in the name of Lead Partner of joint venture i.e Avadh Infrastructure Pvt. Ltd. Subsequently, the concerned Govt. Department vide their letter dated 27th August 2009, clarified that the contract shall be considered as issued in the name of "Avadh NIPL(JV)" only and reference to Avadh Infrastructure Pvt. Ltd. Should be considered as meant for Avadh NIPL(JV) only. 8.3 However, we note that the learned Principal CIT in his order has not assailed the contention raised by the assessee before him. Thus, in the given facts and circumstances, there is no violation by the assessee of the provisions specified under section 80IA(4) of the Act to the extent as discussed above. 8.4 Moving further, we find that there was no charge of the learned Principal CIT suggesting that the activities performed by the assessee were in the nature of works contract except the allegation that there was no agreement between the assessee and the Government of Gujarat, Road & Building Department. As such, in the absence of agreement between the assessee and the Government of Gujarat, Road & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the order of Hon'ble Delhi High Court in case of CIT vs. Ansal Housing & Construction Ltd. reported in 45 taxmann.com 223 which also upheld by the Hon'ble supreme court by accepting SLP and granting leave reported in [2014] 51 taxmann.com 376 (SC) where the Hon'ble court held as under: The determination of the question as to when the undertaking commenced development and construction, in the absence of any statutory prescription, has to be decided in a pragmatic and reasonable way. It would have been an entirely different issue had there been a statutory prescription of what would be the date of commencement of construction or development. It is certainly a debatable issue on which more than one plausible view is reasonably possible and merely because the Assessing Officer has taken one plausible view, it cannot be said that the assessment is erroneous or prejudicial to the interest of the revenue. [Para 14] 8.9 In the backdrop of the above stated discussion, we hold that the order passed by the learned Principal CIT is not sustainable and liable to be quashed. Thus we hold accordingly. Hence the ground of appeal of the assessee is allowed. 9. In the result, the appeal of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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