TMI Blog2013 (6) TMI 911X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Assessing Officer, under Section 143(3) read with Section 147 of the Income-tax Act, 1961 (in short the Act ), pertaining to the assessment year 2006-07. 2. In the appeal of the Revenue, the solitary grievance is against the action of the CIT(A) in deleting an addition or Rs.1,09,44,818/- made by the Assessing Officer invoking Section 40(a)(ia) of the Act. 3. Briefly put the relevant facts are as follows. The assessee is a joint venture between M/s Sew Construction Ltd., Hyderabad and M/s Precision Technofab Engineering Pvt. Ltd., Karad, Dist.- Satara created for the purpose of completing the work of providing, erecting vertical lift type mild Steel Gates for Sulwade Barrage Project including hoisting arrangement wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rabad Bench of the Tribunal in the case of M/s Teja Constructions vide ITA No.308/HYD/2009 dated 23.10.2009. Accordingly, the CIT(A) deleted the disallowance of Rs.1,09,44,818/- which was made by the Assessing Officer by invoking Section 40(a)(ia) of the Act. Against the aforesaid decision of the CIT(A), Revenue is in appeal before us. 6. Before us, the rival counsels fairly converged on the point that the view of the CIT(A) based on the decision of the Hyderabad Bench of the Tribunal in the case M/s Teja Construction Hyderabad (supra) is untenable having regard to the subsequent judgement of the Hon ble Calcutta High Court in the case of CIT vs. Crescent Export Syndicate (ITAT 20 of 2013, GA 190 of 2013) dated 03.04.2013 wherein it h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so been clarified that such amendment has been made applicable w.e.f. 01.06.2008. 8. On the basis of the aforesaid, the point raised by the assessee is that it is merely a joint venture between M/s Sew Construction Ltd., Hyderabad and M/s Precision Technofab Engineering Pvt. Ltd., Karad, Dist.- Satara and that there is no partnership agreement and therefore it is to be rightly assessed in the status of an AOP. If the assessee is assessed in its correct status of AOP, clearly for the assessment year under consideration, the provisions of Section 194C of the Act are not applicable and therefore the rigors of Section 40(a)(ia) of the Act do not cover the assessee. 9. At the time of hearing, learned counsel for the assessee submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no estoppel against law and that it is open for the assessee to resile from its mistaken position, and show that the correct status was AOP . 11. On the other hand, the learned Departmental Representative has defended the action of the lower authorities by pointing out that assessee itself had filed a return of income stating its status as a firm and therefore the assessment finalized in the status of the firm is not wrong. 12. We have carefully considered the rival submissions. Section 184 of the Act contains provisions for assessment as a firm . Sub-section (1) of Section 184 prescribes inter-alia, that a firm shall be assessed as a firm for the purpose of this Act if the partnership is evidenced by an instru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, especially for the reason that it involves a point of law. 13. There cannot be an estoppel in law, and the factum of assessee having declared status of a firm in the return filed cannot be fatal, and the resiled position of the assessee is to be adjudicated in the light of the applicable legal position. The exercise to determine the correct status of the assessee becomes all the more important in this case because it has a bearing on the ultimate tax liability of the assessee. If the claim of the assessee that its status is an AOP is accepted, then for the assessment year under consideration, Section 194C of the Act becomes inapplicable to the assessee, and the consequential disallowance made under Section 40(a)(ia) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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