TMI Blog2022 (6) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... cording to provisions of Sec 80IA(4)(i)(a), the section applies to an enterprise which is a company registered in India or a consortium of companies or by an authority ir a board or a corporation or any other body established or constituted inder any Central or State Act. It is also a fact that the word consortium used in the provision has not been defined in the Income Tax Act. As per the Merriam Webster dictionary, the word consortium means fan agreement, combination, or group (as of companies) formed to undertake an enterprise beyond the resources of any one member . As per the Collins English Dictionary, a Consortium is a group of people or firms who have agreed to cooperate with each other . In ORG INFORMATICS LTD. VERSUS M.P. STATE ELECTRONICS DEV. CORP. [ 2011 (4) TMI 1536 - MADHYA PRADESH HIGH COURT] observed that a consortium is akin to a partnership where each partner is liable for action of other partners. In the present case it is not the case of the Revenue that in the partnership firm, there are other non corporates, who are partners or the firm is not for the purpose of business. It is seen that the assessee has been granted the benefit of deduction u/s 80I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Cross Objection No.16/PUN/2021 (arising out of ITA No.1836/PUN/2018, ITA No. 1837/PUN/2018 - - - Dated:- 13-6-2022 - Shri S.S.Viswanethra Ravi, JM And Dr. Dipak P. Ripote, AM For the Assessee : Shri Nikhil Pathak - AR For the Revenue : Shri M.Jasnani - DR ORDER PER DR. DIPAK P. RIPOTE, AM: The set of Three Appeals consisting two appeals by the Revenue and Cross Objection therein by the Assessee for A.Y. 2010-11 and remaining appeal by the Revenue for A.Y. 2014-15 are directed against the separate orders of ld.Commissioner of Income Tax(Appeals), Pune-3, Pune dated 10.09.2018 and 11.09.2018 for the Assessment Years 2010-11 and 2014-15 respectively. The Revenue raised the following grounds of appeal for the A.Y. 2010-11: 1. Whether on the facts and circumstances of the case and in law, the Ld.CIT(A) was justified in allowing the assessee s claim of deduction u/s.80IA(4) of the I.T.Act, as the section 80IA does not provide deduction to assessees registered as Firm and instead should have confirmed the disallowance made in the assessment on this issue. 2. The appellant prays that the Order of the Ld.CIT(A) be held to be bad in la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0IA(4) (i)(a) specifies that it is applicable only for a company or consortium of company. 4.2 The CIT(A) allowed the appeal of the assessee. The ld.CIT(A) has held in para 5.3.3 and para 5.3.4. as under : 5.3.3 The appellant has heavily relied: upon the order of the Hon'ble ITAT in the appellant's own case for AY 2012-13 passed in the appeal filed by the appellant against the order u/s 263 of the Act. Injhis order in ITA No.633/PUN/2017 dated 23-02-2018, the Hon'ble ITAT has given the following finding: 16. On the issue of assessee not being eligible for deduction u/s 80IA(4) as it being a partnership firm is concerned, it is an undisputed fact that the assessee is a partnership firm consisting of 3 companies namely Rohan Builders (India) Pvt. Ltd, Rajdeep Buildcon Pvt., Ltd and Rajdeep Road Developers Pvt., Ltd with a profit sharing ratio of 50:40:10 respectively. It is also a fact that in the case of assessee apart from the aforesaid 3 partners, there are no other non-corporate entities, who are partners. It is also a fact that the partnership firm came into existence on 11.04.2001 and the same partners continued in the year under consideration wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;Consortium and therefore is eligible for deduction as per the provisions of the Sec 80IA(4) of the Act. Accordingly, Ground No. 2 of the appellant is ALLOWED. 5. The Ld.AR submitted that the Hon ble ITAT Pune in assessee s own case in ITA No.633/PUN/2017 has observed that consortium is a group of people or a firm . The Ld.AR heavily relied on the order of the ITAT (supra) and ld.CIT(A). 5.1 The Ld.DR supported order of the AO. The Ld.DR submitted that Firm is not mentioned in the section , only company or consortium of company is mentioned. Hence assessee, being a firm not eligible for deduction. ITA No.1386/PUN/2018 for A.Y.2010-11 (by Revenue): 6. We have heard both the parties and perused the record. It is a fact that assessee is a firm in which three companies are partners. ITAT Pune in assessee s own case in ITA 633/PUN/2017 has held as under : Quote, On the issue of assessee not being eligible for deduction u/s 80IA(4) as it being a partnership firm is concerned, it is an undisputed fact that the assessee is a partnership firm consisting of 3 companies namely Rohan Builders (India) Pvt. Ltd, Rajdeep Buildcon Pvt., Ltd and Rajdeep Road De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that for earlier years revenue has allowed the claim of deduction on the same facts of the case. Therefore, we do not find any infirmity in the order of the Ld.CIT(A) in allowing the claim of deduction u/s80IA(4) of the Act. 6.2 Therefore, the grounds raised by the Revenue s are dismissed for the A.Y. 2010-11. C.O.No.16/PUN/2021 for A.Y.2010-11 (by Assessee): 7. By the cross objection , the assessee has challenged reopening. The Ld.AR submitted that the reopening is based on mere change of opinion and it is based on audit objection. 7.1 We have heard both the parties and perused the record. It is observed from the Original Assessment Order passed/s 143(3) on 18/3/2013, para 3 and 4 that assessee is a firm. The names of the partners of the firm are mentioned in para 4. Thus at the time of original assessment order, the AO was aware of the fact that the assessee is a Firm having three partners. In spite of that the AO has not denied the deduction u/s 80IA(4) on the ground that assessee is a firm. During the original assessment , the AO has allowed assessee s claim of deduction u/s 80IA(4) for the project Terna Bridge, and denied deduction u/s 80IA(4) for other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee to be a form of licence and thus an intangible right as per provisions of Sec.32(1)(ii) of the Act and therefore being eligible for depreciation at 25%. We find that on identical facts namely the issue of depreciation on intangible rights, was before the Coordinate Bench of Pune Tribunal in the case of Ashoka Infrastructure Pvt. Ltd (supra). The Co-ordinate Bench of the Tribunal, after considering the decision rendered by Mumbai Tribunal in the case of ACIT Vs. West Gujarat Expressway Ltd., reported in (2015) 57 taxmann.com 384, which in turn had relied upon the ratio laid down by Hon ble Bombay High Court in the case of North Karnataka Expressway Ltd., Vs CIT reported in (2015) 372 ITR 145 (Bom) and after considering the CBDT Circular No.9/2014 dated 23.04.2014 (which has also been relied upon by Ld PCIT in the present case) has held that the right to collect toll is capital expenditure and consequently the assessee is entitled to claim depreciation on such intangible assets as provided u/s 32(1)(ii) of the Act. Before us no material has been placed by the Revenue to demonstrate that the aforesaid decision of Pune Tribunal in the case of Ashoka Infrastructure (supra) has been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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