9911796707
TMI Blog2023 (3) TMI 256X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome Tax Act, 1961 and filing of the return within such stipulated period was pre-requisite for claim of deduction under this section. ii) The appellant craves leave to add, amend or modify the grounds of appeal subsequently before disposal of the appeal." 3. The ld. Sr. DR, supporting the action of the AO, submitted that the ld.CIT(A) has erred in deleting the addition made on account of disallowance of deduction u/s 80IA of the Income-tax Act, 1961 (for short, 'the Act'), even though the assessee failed to file its return of income within the time prescribed under sub-section (1) of section 139 of the Act and filing of the return within such stipulated period was a prerequisite as per the mandate of the Act for claiming the deduction under this section. The ld. Sr. DR, drawing our attention towards relevant part of the first appellate order, submitted that the ld.CIT(A) has granted relief to the assessee without considering the relevant facts and circumstances, therefore, the impugned order of the ld.CIT(A) may kindly be set aside and the intimation order u/s 143(1)(a) of the Act may be restored. 4. The ld. Counsel of the assessee has filed written submissions on this issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed scheme of arrangement and amalgamation with nine group entities - After sanctioning of scheme, revised returns were filed on 27-11-2018 - Assessing Officer disregarded revised returns on ground that same were filed late and no condonation of delay had been obtained in accordance with section 119(2)(b) - However, it was found that provisions of section 119(2)(b) would not be applicable where an assessee had restructured his business, and filed a revised return of income with prior approval and sanction of NCLT, without any objection from department - Further, NCLT had passed last orders granting approval and sanction of schemes only on 22-4-2018 and 1-5-2018, hence, it was an impossibility for assessee companies file revised returns of income for assessment year 2016-17 before due date of 31-3-2018 - Whether therefore, Department was to be directed to receive revised returns of income for relevant assessment year 2016-17 filed by appellants on 27-11-2018 and complete assessment after taking into account Schemes of Arrangement and Amalgamation as sanctioned by NCLT - Held, yes [Paras 8 and 10] [In favour of assessee]" "8. In the facts of the present case, it was an impossibility ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 226 of The Constitution of India, would also be entitled to consider as to whether the petitioner's case would fall within one of the conditions stipulated under Section 119(2)(c)." So keeping in view the above facts your honour will find that the assessee has made all compliances in time but due to technical default the return uploaded could not be generated on 28.09.2012. From the above decisions of hon'ble courts your honour will find that the assessee's plea may be considered as there was impossibility and things were not in control of the assessee. So the delay in filing the return may be condoned. The assessee may be given benefit of impossibility or out of control things as per section 119(2)(c), which gives the right to the assessee for claiming the deductions bona fidely. So going through the above facts and case laws, it is humbly prayed that the appeal of the department may please be dismissed." 5. The ld. Counsel of the assessee, precisely reiterating the above written submissions, submitted that the assessee company is claiming deduction u/s 80IA of the Act since 2009-10 by filing its income-tax return well in time to claim the same. He further submitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ards the relevant paras 3.3 to 3.5 of the first appellate order and submitted that the return was uploaded on 29.09.2012, but, the acknowledgement of the return could not be downloaded and despite several efforts the assessee could not open the acknowledgement as it was not accepting the password and under the fair belief and confidence that they can download the return acknowledgement any time from the Department site, they proceeded with other returns. The ld. Counsel submitted that the ld.CIT(A) has rightly concluded that disallowing the claim of deduction u/s 80IA of the Act on account of the fact that the return of income was not filed is not sustainable as the assessee was prevented by sufficient cause from filing the return within the time specified and the ld. First appellate authority after considering the entire facts and circumstances wherein the return could not be uploaded within the time prescribed u/s 139(1) of the Act due to technical problems of over loaded departmental portal reaching to last days of filing returns, the ld.CIT(A) rightly held that the contention of the assessee that it was prevented by sufficient cause from filing of return within the specified ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The final Computation of Income was also prepared & the complete amount of tax due on self assessment i.e. Rs. 558280 was paid on 27.09.2012. The digital signature of Director i.e. Sh. Dheeraj Aggarwal required for filling the return were also obtained on 26th Sept 2012. Thus the return was complete in all respect along with Tax on 27.09.2012 & was given to the company's consultant/C.A. for filling on 27.09.2012. The return was uploaded /said to be uploaded by the Tax Practitioner on 28th September as confirmed on phone. In our case all the formalities like preparing the Balance Sheet, Audit Report u/s 44AB,115JB & Sec 80IB were completed well before time i.e. 25.09.2012. Tax was also deposited and digital signatures renewed by 27th Sep. 2012 As per the CA 'The return of the party was uploaded on 28th Sept 2012, there was some problem in the Internet as well as Departmental Site hence we were frequently facing error in uploading many return and 'Server Time Out' message was appearing many times and when we tried to Login again to file the return the message was appearing 'You have already filed the return so please select the Revised Option ' in many cases. So in such case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explained that it was on account of technical reasons that the return of income was not uploaded in the system when the appellant attempted to upload the same on 29.09.2012 i.e. within the time allowed to file return of income u/s 139(1). The appellant demonstrated before me that they have filed returns for AY 2006-07 to AY 2011-12 within time allowed for filing of return and well within the due date. Appellant has stated that final computation of income was prepared and self assessment tax due of Rs. 5,58,280/- was paid on 27.09.2012. The digital signature of Director i.e. Sh. Dheeraj Aggarwal required for filling the return were also obtained on 26.09.2012. The return alongwith tax was given to the company's consultant/C.A. for filling on 27.09.2012. The return was uploaded /said to be uploaded by the Tax Practitioner on 28th September as confirmed on phone. Appellant has stated that all the formalities like preparation of Balance Sheet, Audit Report u/s 44AB, 115JB & Section 80IB were completed before 25.09.2012. The appellant has stated that their CA informed them that "the return of the party was uploaded on 28th Sept 2012, there was some problem in the Internet as well as De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim for deduction u/s 80IA on merits, if any, by the Assessing Officer during any other proceeding as per provisions of this Act." 13. Now, we find it appropriate to consider the decision relied upon by the ld. Counsel of the assessee in the case of Dalmia Power Ltd. (supra). In this judgement, their Lordships has held that the Department was to consider the revised return filed by the assessee beyond the prescribed time limit after taking into account the scheme of amalgamation as sanctioned by NCLT. From the judgement relied upon by the ld. Counsel of the assessee in the case of S. Sevugan Chettiar (supra), we observe that the Hon'ble High Court of Madras has held that where default in complying the requirement was due to circumstances beyond the control of the assessee, then, the assessee could not have been denied the benefit of exemption u/s 10(10C) of the Act. 14. In the present case, it is a peculiar situation that the return of the assessee for AY 2012-13 was processed by CPC, Bengaluru and the intimation u/s 143(1)(a) of the Act was received by the assessee informing the denial of claim of exemption u/s 80IA of the Act on account of non-filing of the return within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , before its substitution by the Finance Act, 2018 w.e.f 1.4.2018, which reads as under: " Where in computing the total income of an assessee of any previous year relevant to the assessment year commencing on the 1st day of April, 2006 or any subsequent assessment year, any deduction is admissible under section 80-IA or section 80- IAB or section 80-IB or section 80- IC or section 80-ID or section 80-IE, no such deduction shall be allowed to him unless he furnishes a return of his income for such assessment year on or before the due date specified under sub-section (1) of section 139." 6. On going through the above provision, it is crystallized that the requirement of filing return before the time u/s 139(1) is sine qua non for claiming deduction under the six sections (80-IA or 80- IAB or 80-IB or 80-IC or 80-ID or 80-IE). In other words, if a return is filed belatedly u/s 139(4) or under any other section, claiming deduction under any of the six sections, the writ of the section 80AC will operate to prevent its granting. This section does not deal with granting or non-granting of deduction under any other sections of Part C of Chapter VI-A, including section 80P. Thus, to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Now I advert to the requirements of section 80A(5), which stipulates that no deduction under other sections including 80P shall be allowed if the assessee fails to make such a claim in the return of income. Thus, there are twin conditions, viz., first, claiming deduction u/s 80P and second, claiming such deduction in the return of income. There is no dispute on the first condition, which has been satisfied in this case as the assessee did claim the deduction albeit during the course of assessment proceedings. The whole controversy revolves around the second condition, which says that the claim should be made in the return of income. The assessee in the extant case did not file any return of income, but made a claim of the deduction in computation of income filed during the course of the assessment proceedings. The moot question is whether the requirement of making a claim in the return of income is a mandatory or a directory requirement. If it is held as mandatory, then the claim must be made in the return of income, failing which the benefit of deduction would be lost. Au contraire, if it is held as directory, then the claim made either in the return of income or in any manner bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue in favour of the assessee by holding that the requirement of filing the declaration was mandatory but filing it along with the return of income u/s 139(1) was a directory requirement. The matter was brought by the Revenue before the Hon'ble Supreme Court. The assessee, inter alia, relied on the judgment of the Apex Court in G.M. Knitting Industries (supra). Their Lordships held that the requirement of filing the report in support of deduction u/s 10B was not a directory but a mandatory requirement. It further held that both the conditions of - filing the declaration and filing it before the time limit u/s 139(1) - were mandatory and had to be cumulatively satisfied. Rejecting the reliance on G.M. Knitting Industries (supra), the Hon'ble Supreme Court held that that decision was relevant in the context of deduction provisions and not the exemption provisions as given under Chapter III of the Act. As the Hon'ble Summit Court in Wipro Limited (supra) was dealing with section 10B, falling under Chapter III of the Act, it held qua G.M. Knitting Industries (supra) that: `Therefore, the said decision shall not be applicable to the facts of the case on hand, while conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inciples of chapter III, which deals with 'incomes which did not form part of total income' cannot be equated with mechanism provided for deductions in Chapter VI-A which deals with 'deductions to be made in computing the total income.' Therefore, it was held that the fulfillment of requirement for making a claim of exemption under the relevant sections of Chapter III in the return of income is mandatory, but, when it comes to the claim of a deduction, inter alia, under the relevant section of Chapter VI-A, such requirement become directory. In a case where the assessee claims deduction under Chapter VI-A of the Act, the making of a claim even after filing of return, but, before completion of the assessment proceedings and passing of assessment order meets the directory requirement of making a claim in the return of income. 17. In the present case, the assessee is claiming deduction u/s 80IA of the Act which was disallowed by the AO/CPC under intimation u/s 143(1) of the Act. Aggrieved, the assessee carried the matter before the ld. First appellate authority and the ld.CIT(A), after considering the totality of the facts and circumstances of the case, first of all, observed that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt cause in filing the return of income within the prescribed time limit. In view of the proposition rendered by the Hon'ble Supreme Court in the case of G.M. Knitting Industries Pvt. Ltd. (supra), the claim of the assessee has reached to a higher pedestal because the Hon'ble Supreme Court has categorically held that for making a claim under Chapter VI-A of the Act which also includes provision of deduction u/s 80IA of the Act and the making of such claim for deduction is permissible even after filing of the return, but, before completing the assessment meets directory requirement in the filing of return of income. 19. In the present case, however, the return of income of the assessee for AY 2012-13 was filed beyond the prescribed time limit u/s 139(1) of the Act. For that the ld.CIT(A) has recorded a categorical finding that the assessee was prevented by sufficient cause in filing the return within the prescribed time limit perhaps due to weak responsive Departmental website. Even in a situation the return of income of the assessee for AY 2012-13 is treated as belated return beyond the prescribed time limit provided u/s 139(1) of the Act, then also, as per the judgement of the Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to add, amend or modify the grounds of appeal subsequently during the pendency of the appeal." 21. The ld. Sr. DR submitted that the ld.CIT(A) has erred in deleting the addition made on account of disallowance of deduction u/s 80IA of the Act even though the assessee does not fulfill the conditions laid down for claim of such deduction. He further explained that the assessee is not engaged in the business of (i) Developing or (ii) Operating & maintaining or (iii) Developing, operating and maintaining any infrastructural facility and not entered into agreement with the Central Govt, or a State Govt, or a Local Authority or any other statutory body for providing such facilities. The ld. DR also pointed out that under the peculiar facts and circumstances of the present case, the ld.CIT(A) has also erred in deleting the Impugned addition made on account of disallowance of deduction U/s 80IA of the Act even though the assessee is only engaged in the business of treatment of bio-medical waste which is not covered under the definition of 'infrastructural facility' as per the Explanation to section 80IA(4) of the Act. The ld. Sr. DR also drew our attention towards assessment order and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l also submitted that the AO has not controverted a very relevant fact that the assessee has set up bio medical waste facility and the provision of section 80IA(4) of the Act do not put any bar or monetary restriction regarding investment required to be set up eligible infrastructural facility. The ld. Counsel submitted that the assessee has undertaken contract work relating to bio medical waste disposal and treatment as per the terms and conditions entered into with various authorities and it is not the allegation of the AO that any of the prescribed conditions have not been met or the appellant has not carried out the work relating to bio medical waste treatment in accordance with the terms and conditions prescribed in the contracts. 24. The ld. Counsel lastly submitted that the AO did not appreciate the relevant facts and circumstances which were rightly considered by the ld.CIT(A) before granting relief to the assessee. Therefore, the first appellate authority was right in granting relief to the assessee. The ld. AR also submitted that the assessee, in support of his claim for deduction u/s 80IA(4) submitted detailed submissions before the authorities below, which has been rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e carrying on the business of (i) developing or (ii) operating and maintaining or (iii) developing, operating and maintaining any infrastructure facility which fulfils all the following conditions, namely:- (a) It is Owned by a company registered in India or by a consortium of such companies or by an authority or a board or a corporation or any other body established or constituted under any Central or State Act; (b) It has entered into an agreement with the Central Government or a State Government Or a local authority or any other statutory body for (i) developing or (ii) operating and maintaining or (iii) developing, operating and maintaining a new infrastructure facility; (c) It has started or starts operating and maintaining the infrastructure facility on or after the first day of April, 1995. For the purpose of this clause, "infrastructure facility" means- (a) a road including toll road. a bridge or a rail system; (b) a highway project including housing or other activities being an integral part of the highway project; (c) a water supply project, water treatment system, irrigation project. sanitation and sewerage system or solid waste management system; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... normal trash or general waste, and differs from other types of hazardous waste, such as chemical, radioactive, universal or industrial waste. Medical facilities generate waste hazardous chemicals and radio active materials. While such wastes are normally not infectious, they require proper disposal Some wastes are consderedmultihazardous, such as tissue Sample preserved in formalin. " In Vikaspedia (http://'vikaspedia.in/energy /environment/ waste-management/bio-medical- waste-management/what-is-bio-medical-waste) bio-medical waste has been defined as under: "All human activities produce waste. We all know that such waste may be dangerous and needs safe disposal. Industrial waste, sewage and agricultural waste pollute water, soil and air. It can also be dangerous to human beings and environment. Similarly, hospitals and other health care facilities generate lots of waste which can transmit infections, particularly HIV, Hepatitis B & C and Tetanus, to the people who handle it or come in contact with it. India generates around three million tonnes of medical wastes every year and the amount is expected to grow al eight per cent annually. Bio-medical waste Bio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under: "Application.- These rules shall. apply to every urban local body, outgrowths in urban agglomerations, census towns as declared by the Registrar General and Census Commissioner of India, notified areas, notified industrial townships, areas under the control of Indian Railways, airports, airbases, Ports and harbours, defence establishments, special economic zones, State and Central government organisations, places of pilgrims, religious and historical importance as may be notified by respective State government from time to time and to every domestic, institutional, commercial and any other non residential solid waste generator situated in the areas excent industrial waste. hazardous waste. hazardous chemicals. bio medical wastes. e-waste. lead acid batteries and radio-active waste. that are covered under separate rules framed under the Environment Protection) Act. 1986." [Emphasis Added] Regarding applicability of the Rules with respect to Bio-Medical Waste, the Solid Waste Management Rules, 2016 in criteria for site selection in Schedule I, clause (x) states as under: "(x) The biomedical waste shall be disposed of in accordance with the Bio-medical Waste Manageme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a road (including a toll road), bridge, rail system, highway project, water supply project, sanitation, sewerage, and solid waste management system shall be allowed a ten year tax holiday. 5.7 The IT AT in the case Of E.A. Infrastructure Operations vs. Department of Income Tax in order dated 09.07.2010 has held that contract for award of project for Bio Medical Waste treatment at GTB Hospital by Municipal Corporation of Greater Mumbai was eligible for deduction u/s 80IA of the LT. Act, 1961. The facts of the present case are identical to facts of above case. In the light of above discussion, it is held that the Bio Medical Waste treatment facility of the appellant is eligible as 'Infrastructure Facility' under 'Solid Waste Management' as per definition given in section 80IA(4) and therefore constitutes eligible business. 6 The second objection of the AO regarding denying of deduction to appellant was that the investment made in the 'Infrastructure facility' was less. The AO stated that 'Infrastructure Facility' implies huge capita' investments. However, the investments in the fourth plant including land of the appellant were very less i.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance' of the facility as per authorization obtained from Slate Pollution Control Board. The authority from whom such permission/authorization for 'operating end maintaining' 'infrastructure facility' should be Central Government, State Government Local Authority. The AO categorically held that appellant was only a outsourcing agent of the Hospital and was authorized by the Hospital to treat Bio Medical Waste on third party basis (outsource basis). The appellant was only an entity authorized by the Hospital as an outsourced agent who was obligated by law to follow directions of State Pollution Cara-ol Board and it had in that sense not entered into an agreement With Central Government, Stale Government or Local Authority, The AO also found that agreements with respect to Delhi plant,Meerut plant and Sirsa plant were not entered with respective State Government Authority or Local Authority. With respect to Delhi Plant, AO held that agreement dated 19.05.2005 clearly states that the contract is basically for appointment of the appellant on outsourcing basis to treat bio- medical waste of HCEs on approved rates. For that purpose, the appellant is required to inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 TTJ 621 (Ahd) is not applicable to the facts of the case of the appellant as in that case M/S EEEPL had an agreement of BOOT with Surat Municipal Corporation and issue was whether EEEPL was a 'contractor' or 'developer'. Since the appellant's contract is not BOOT, the ratio of the case does not apply to the appellant. 7.1 I have carefully considered the facts of the case. This very issue was raised on behalf of the Revenue in the case of CIT vs. AL Logistics (P) Ltd. (2015) 55 taxmann.com 283 (Mad). The Assessing Officer observed that to be eligible for claiming deduction under section the assessee should have entered into an agreement with the Central Government or State Government or a local authority or any statutory body for developing or operating and maintaining or developing, operating and maintaining an infrastructure facility and the assessee had not been able to show any such agreement with the Central or State Government or any other authority as prescribed under the Act for claiming benefit of section 80-1A(4)(i). The Assessing Officer, therefore, held that the facility of CFS did not constitute infrastructure facility as defined in Explanation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng CFS facility in accordance with the conditions laid down by the Government In such circumstances there is no need to insist for the specific execution q/ agreements. The co-ordinate bench of the Tribunal in the case of United Liner Agencies of India (Private) Lid, v. Joint CIT (OSD) in ITA Nos.273&275u/Mum/2013 (supra), has taken a similar view. Where no specific agreement with the State Government was entered into but from the approvals granted to the assessee it was inferred that assessee should be deemed to have entered into an agreement -with the Stale Government. Thus, we are of the considered view that the assessee has complied with all the provisions of section and is eligible to claim deduction under the said section. The impugned order is set aside. The appeal of the assessee is allowed. " 7.2. It is thus seen that in the above staled case, was stated that there was no specific agreement between the assessee and the Central Govt/State Govt./Local Authority. However, the Court examined the conduct of the parties and found that although there may not be any specific agreement, but the sequence of events clearly show that the assessee was providing infrastructure faci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tructure facility. That it has easy accessibility to the port and particularly the sea-port gives it certain advantages and benefits and which clearly accrue to those using the port for import and export of cargo. Further, the location thereof is also a relevant factor as noted. In such circumstances, the reliance by the Special Bench and equally by the Bench of the Tribunal in the impugned orders on the Division Bench judgment of the Delhi High Court is thus well placed. 47. We do not find that anything other and further than this material is relied However, even the High Court of Judicature at Madras has referred in its Division Bench decision to the view taken by the Delhi High Court. The Division Bench in paragraphs 10 and 12 of its judgment extensively referred to the Tribunal's conclusions. It also referred to the Special Bench decision Of the Tribunal. Thus, when the proposal to set up a CFS has been accepted by the Government, there is no requirement of either a specific agreement as contended by Mr.. Suresh Kumar. Nor can it be said that by virtue any certification of the .JNPT and its subsequent withdrawal the position undergoes any change. Once the facility is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alify for the deduction. This sub-section says that the enterprise has to enter into an agreement with the Government, either Central or State, for developing or operating and maintenance or developing, operating and maintenance of a new infrastructure facility and that it has been started on or after first day of April, 1995, as also owned by a company registered in India or by a consortium of such companies. Through an Explanation, annexed to the said sub-section, infrastructure facility is defined as road, bridge, rail system, high-way project, irrigation product, sewerage system or solid waste management system. [Para 77] Nature of work executed by assessee Undisputedly the assessee has been referred as a contractor in the agreement dated 15-7-2004. However, it was not so in agreement dated 14-11-2002 Be that as it was. merely mentioning the assessee as contractor the exact nature of the execution of the work do not alter. That apart a contractor can also be a developer. As far as the agreement with Sural Municipal Corporation is concerned, the assessee has been referred as party of the first part. Hence no serious objection has been raised by the revenue. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , hence, invited Boot Tender. The assessee has offered and on a token rent of Re. 1 per square meter per annum, the said agreement was entered into for seven years. The assessee is to make the construction on the hand as per the approved plans. The assessee has to install necessary equipment and machinery. One the clauses is very clear that the assessee shall bear all The expenses for putting up the said plan. The assessee is entitled to charge for treatment for waste per kg. as fixed by municipal corporation from time to time. Thus the rate shall be as per The quotations agreed upon On termination of agreement, the project is to be taken over. At this juncture the assessee has also mentioned the change in statute through which the condition of transfer of the infrastructure back to the Government has been waived of [Para 7.3] Entry in Balance-sheet As far as the balance-sheets are concerned, it has been demonstrated that year- wise the assessee has shown the said infrastructure as fixed assets. The assessee has shown the investment in its books of account and because of the said reason the assessee has claimed depreciation which was also allowed by the Assessing Officer. [Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me not being eligible for claim of deduction, the provisions of section 263 of the Act could not be invoked on the ground that there had been no application of mind by the AO merely because he has not made lengthy discussion on the issue in the assessment order. On perusal of the said order, we observe that the ld.CIT, Hisar, invoking the provisions of section 263 of the Act revised the order of assessment for AY 2009-10 wherein the AO held that the assessee is entitled to claim deduction u/s 80IA(4) of the Act. The Tribunal, allowing the appeal of the assessee, held that the provisions of section 263 of the Act could not be invoked on the ground that there had been no application of mind by the AO merely because he had not included lengthy discussion or deliberations on the issue in the assessment order. This order support the claim of the assessee that he was held entitled to claim deduction u/s 80IA(4) of the Act by the AO which was approved by the coordinate Bench of the Tribunal setting aside the revisionary order u/s 263 of the Act. Further, from another order of ITAT 'G' Bench dated 24.04.2018 in assessee's own case for AY 2010-11 in ITA No.1116/Del/2015, we further observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing officer is without determination of total income and tax payable, learned assessing officer had not made proper enquiry etc. 13. Facts being continued to be similar for both these years including wording of the assessment order, we are of the considered opinion that the findings of the coordinate bench of this tribunal for the assessment year 2009-10 are very much applicable for this assessment year also. 14. Further, there is no denial from the revenue that the assessee had submitted all the relevant documents at the time of assessment proceedings and such documents include the computation of income, copy of the audited balance sheet, copy of the tax audit report under section 44 AB, and the copy of the auditor's report in form 10 CCB also. Moreover assessment order clearly reads that all the requisite information/documents including the books of accounts were produced and with a specific reference to the eligibility of the assessee being an infrastructure company carrying on solid waste management activities, learned AO accepted the claim of the assessee. 15. Further it goes uncontroverted that for the assessment years 2011-12, 2012-13 and 2013-14 the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uctural facility as per the provisions of section 80IA(4). 29. He also concluded that in absence of specific agreement, the actions of the assessee are required to be seen with respect to performance of terms of agreement as well as conditions prescribed by the assessee with which agreement has been entered into. It was also rightly observed that when the assessee is working under the contract means that the assessee has got contract of supervision and maintenance and it will be far-fetched or beyond imagination to state that the project in such a case has been developed by the Municipal Corporation. On being asked by the Bench, rebutting the allegation of the AO that the assessee do not own any plant and machinery as it had paid rent thereon, the ld. Counsel submitted the copies of the financial statements including balance sheet and chart of relevant FY showing claim of depreciation which reveals that the assessee has deployed and set up plant and machinery and had also claimed depreciation thereon which was allowed by the AO without any dispute or doubt, thus, inadvertent mentioning of rent payment in P&L Account on plant & machinery does not raise any bar regarding claim of de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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