TMI Blog2022 (10) TMI 1110X X X X Extracts X X X X X X X X Extracts X X X X ..... And ITA No.1001/Mum/2021 And ITA No.1000/Mum/2021 - - - Dated:- 26-10-2022 - Shri M.Balaganesh, Accountant Member And Shri Rahul Chaudhary, Judicial Member For the Assessee : Shri Neel Khandelwal For the Revenue : Shri Chintamani V. Divgankar, SR. AR. ORDER PER BENCH: These appeals in ITA No. 1003/Mum/2021, 1002/Mum/2021, 1001/Mum/2021, 1000/Mum/2021 for A.Yrs. 2014-15 to 2017-18 arise out of the order by the ld. Commissioner of Income Tax (Appeals)- CIT(A), Pune-11 in appeal No. CIT(A), Pune-11/10502/2016-17, CIT(A), Pune-11/10272/2017-18, CIT(A), Pune-11/10225/2018-19, CIT(A), Pune11/10226/2019-20 dated 18/03/2021 (ld. CIT(A) in short) against the order of assessment passed u/s.143(3) of the Income Tax Act, 1961 (hereinafter referred to as Act) dated 29/12/2016, 20/12/2017, 27/12/2018 18/12/2019 by the ld. Deputy Commissioner of IncomeTax, Central Circle-2, Thane, Asst. Commissioner of Income Tax, Central Circle -2, Thane (hereinafter referred to as ld. AO). Identical issues are involved in all these appeals and hence, they are taken up together and disposed off by this common order for the sake of convenience. 2. The only identical issue to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO, the primary conditions for claim of deduction u/s 80IA of the Act are that the assessee should be a 'developer of an infrastructure facility; that the developer is an entrepreneur who has an interest in the property, finances the enterprise, initiates its development and ensures that this development is carried out for occupation, investment, dealing or use and recovers the investment by way of use of fees; that the developer undertakes the total responsibility for development and completion of the projects, bears the entire risk whether financial or otherwise, involved in development of the project. Compared to a developer, according to the ld. AO, a contractor is a person who is appointed by the principal to execute specific projects without having any financial stake. The ld. AO was therefore of the view that it cannot be said that a contractor who has constructed/commissioned only part of a whole project is a 'developer of the said project. The ld. AO has relied on the Memorandum explaining the provisions in the Finance bill 2007 where in the context of sec. 80IA of the Act, it is mentioned that the purpose of tax benefit has all along been for encouraging private ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been allowed to the assessee. In order to understand this background, the following facts as stated in the decision of Pune Tribunal in the case of B.T. Patel Sons Belgaum Constructions (P) Ltd., vs. CIT reported in 34 taxmann.com 97 would be relevant and hence reproduced hereunder:- Background of the case is that the Assessing Officer passed an assessment order disallowing the assessee's claim for deduction u/s.80IA(4) of the Act. The CIT(A) confirmed the order of the Assessing Officer. Matter was carried before the ITAT. However, while passing the order, the Judicial Member and the Accountant Member differed. While the Judicial Member accepted the claim of the assessee, the Accountant Member did not agree. Accordingly, under provisions of section 255(4) of the Act the matter was referred to the Third Member. The issue in question pertains to A.Y. 2000-01 and 2001-02 The appeals were heard by the Third Member. However, while giving its opinion as per the provisions of section 255(4) of the Act the Third Member was of the opinion that the said matter ought to be heard by the Larger Bench of third Member i.e. a bench comprising of three members u/s. 255(4) of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble High Court to the decision of CIT v. ABG Heavy Industries Ltd. [2010] 189 Taxman 54 (Bom.) and requested the Hon'ble Bombay High Court to direct the Tribunal to consider the ABG Heavy Industries Ltd. (supra) decision on the issue while giving effect to the opinion of the Third Member as per the provisions of section 255(4) of the Act. 5. The Hon'ble Bombay High Court permitted the Counsel of the assessee to withdraw the said appeals. While passing the order the Hon'ble High Court has kept all the contentions open and further directed the Tribunal to consider the decision of the ABG Heavy Industries and other decisions while passing their order giving effect to the opinion of the Third Member as per the provisions of section 255(4) of the Act. The relevant portion of the said order of Hon'ble jurisdictional High Court in ITXA No.1307 of 2011 for A.Y. 2000-01 and 1640 of 2011 for A.Y. 2001-02 is as under: 1. Since the Tribunal has recalled the impugned order dated 23.03.2011, the appellant is withdrawing its appeal. 2. Further, while considering the matter afresh, the Tribunal will take into consideration all decisions including the decision of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for A.Yrs. 2002-03 to 2005-06 and since the time limit for filing Miscellaneous Application had lapsed for the assessee, the assessee could not get the benefit of deduction despite the fact of the order of this Tribunal in its favour for A.Y.2001-02, 200607 and 2007-08 on this aspect in the order dated 31/10/2014 where in the issue of deduction u/s 80IA of the Act was decided in favour of the assessee by following the decision of the Hon ble Jurisdictional High Court in the case of ABG Heavy Industries Pvt. Ltd., reported in 322 ITR 323. Similarly, for A.Y.2008-09, this Tribunal in assessee s own case in ITA No.5503/Mum/2011 dated 14/11/2014 had decided the issue in favour of the assessee. Similarly, for A.Y.2009-10, this Tribunal in assessee s own case in ITA Nos. 3500 and 4756/Mum/2015 dated 25/05/2017 had decided the issue in favour of the assessee. Thereafter, a search and seizure operation was carried out in the premises of the assessee and the assessee preferred to file an application before the Hon ble Income Tax Settlement Commission (ITSC) and the ITSC vide its order u/s.245D (6B) r.w.s. 245D(4) of the Act dated 02/12/2016 decided the issue of eligibility of claim of deduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 96,549,740 81,843,979 50,532,561 49,648,812 80IA allowed in Settlement Commission 2012-13 4 Chief Municipal Officer, Municipal Council, Piparia, Madhya Pradesh Water Supply Scheme to Pipariya village for Pipariya Municipal Council, Madhya Pradesh 30/Jun/2012 Water Supply 2012-13 116,969,678 33,108,795 16,148,532 26,327,128 80IA allowed in Settlement Commission 2012-13 5 Municipal Council Berasia, Dist.- Bhopal, Madhya Pradesh BERASIYA Water Supply Project 5/Jan/2015 Water Supply 2015-16 - - 22,423,445 97,899,924 6 Chief Municipal Officer, Municipal Council, Kannod, Madhya Pradesh Kannod Drinking Water Supply Scheme 19/Feb/2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dist. Gondia 20/Nov/2013 Water Supply 2014-15 - 26,876,819 35,709,315 35,016,856 12 Executive Engineer, Aurangabad Mahanagar Palika Providing, Lowering, Laying, Jointing and Hydraulic Testing of 1400 mm Diameter Mild Steel Gravity Main from Nakshatra Wadi MBR to Railway Station and Providing, Testing of MS and DI Transmision Mains in theLowering, Laying, Jointing and Hydraulic Corporation area. 27/Feb/2009 Water Supply 2012-13 71,846,407 - - 13,636,316 80IA allowed in Settelment Commission 2012-13 13 Commissioner - Mira Bhainder Municipal Corporation Providing, Lowering, Laying, jointing, Testing Commissioning 1590 mm dia (OD), 10 mm thick Pure Water Rising Main from Saket to Patalipada including crossing of National Highway, MCGB Pipeline at various location by trenchless method (Jacking Pushing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 37,310,856 16,533,929 13,860,253 3,409,314 80IA allowed in Settelment Commission 2012-13 19 Executive Engineer, Sangli, Miraj, Kupwad Muncipal Corporation, Water Department Design Construction of ESR 1.0ML to 2.5ML with staging of 21m, Renovation of Existing Head works Automation of Intake well for additional 70 to 130 MLD (Package 1.1), Providing, Lowering, Laying Jointing Pure Water Transmission Mains of D.I. K-9, for Hirabag to Shamrao Nagar ESR Gravity Mainto various ESR from MBR under Sujal Nirmal Abhiyan (SNA) Package 1.1 1.3 23/Dec/2010 Water Supply 2012-13 8,987,186 1,959,474 - - 80IA allowed in Settelment Commission 2012-13 20 Project Director, JICA ODA Loan Project, PWD Construction of Master Balancing Reservoir at Sirvoi Rock Hill: 20,000 m3. 11/Feb/2012 Water Supply 2012-13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Scheme for Pindkepar village, Tal. Dist. Gondia. 27/Jan/2012 Water Supply 2012-13 817,147 1,054,907 - - 80IA allowed in Settelment Commission 2012-13 26 Executive Engineer, Maharashtra Jeevan Pradhikaran, Works Division, New Panvel Materan Water Supply Scheme: Repairs of Jackwell Pump House, Repairs to Railing of Charlotte Lake, Outlet channels, Tunnels, Engine House, modification to existing WTP, Construction of Sump Pump House, Lowering, Laying Jointing of 250mm dia D.I.K-9 Rising Main, Providing Constructing WTP (capacity 2.50 MLD), Distribution System DI CI, Providing, Erecting Commissioning Pumping Machinery Miscellaneous work Tal. Karjat. 23/Aug/2011 Water Supply 2012-13 44,146,839 23,842,753 9,239,120 5,669,759 80IA allowed in Settelment Commission 2012-13 27 The Nodal Executive Engineer, Sindhud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Engineer Water Supply and Drainage Division Sangli Miraj Kupwad Municipal Corporation. Miraj Under Ground Scheme II 30/Apr/2013 Sewerag e System 2013-14 143,279,554 201,225,566 46,022,972 35,423,702 33 Executive Engineer GIDC Ahmedabad P/L Water supply distribution line with RCC U/G sump, ESR Pump house at Sanand-II (BOL) Industrial Estate with 5 (Five) years free maintenance guarantee period 3/Oct/2012 Water Supply 2012-13 206,450,169 43,606,807 34,169,041 - 80IA allowed in Settelment Commission 2012-13 34 Chief Engineer (Project) BWSSB Work of extending 1219mm dia MS Feeder main from Kothnur Dinne GLR premises to Jamboosavari dinne GLR to feed water supply facilities to Bommanahalli CMC under GBWASP 27/Feb/2013 Water Supply 2013-14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... radhikaran, Nagari and Gramin Yogana Ward, Gondia Wadegaon (Rehabilitation) Water Supply Scheme Tal. Dist.Gondia 31/May/2012 Water Supply 2012-13 1,886,244 - - - 80IA allowed in Settelment Commission 2012-13 3.10. As stated earlier, all the aforesaid projects were duly examined by the ld.CIT(A) with all supporting documents and he had arrived at the conclusion that the assessee is only a developer. No contrary materials were brought on record with supporting evidences by the revenue to controvert this factual findings of the ld. CIT(A) before us. 3.11. In view of the above observations and respectfully following various orders of this Tribunal in assessee s own case and also the decision of the Hon ble Jurisdictional High Court in the case of ABG Heavy Industries Pvt. Ltd., reported in 322 ITR 323, we do not find any infirmity in the order of the ld. CIT(A) granting relief to the assessee. 3.12. The decision rendered hereinabove for the A.Y. 2014-15 shall apply mutatis mutandis for A.Y.s 2015-16, 2016-17 and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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