TMI Blog2017 (11) TMI 2041X X X X Extracts X X X X X X X X Extracts X X X X ..... tion u/s 80IA of the Act in the light of the decisions of this tribunal for the earlier years and decide the same afresh in accordance with law. Accrual of income - retention money as income of the year - assessee is following mercantile system of accounting - assessee s contention is that in respect of retention money, the income arise to the assessee only when the said amount of retention money is received by the assessee and not at the time of raising of the bills - HELD THAT:- As decided in assessee own case for Asst Year 2011-12 retention money in works contract with Government is taxable only on receipt basis as held by the Jurisdictional High Court in the case of Commissioner of Income-tax Vs. Simplex Concrete Piles (India) [ 1988 (12) TMI 52 - CALCUTTA HIGH COURT] - Hon ble Shri M. Balaganesh, AM And Shri S.S. Viswanethra Ravi, JM For the Appellant : Shri A.K. Tiwari, CIT. For the Respondent : Shri M. Tiwari. ORDER PER M. BALAGANESH, AM 1. This appeal by the Revenue arises out of the order of the Learned Commissioner of Income Tax(Appeals)-4, Kolkata [in short the ld CIT(A)] in Appeal No.1938/CIT(A)- 4/Circle-12(2)/Kol/14-15 dated 07.09 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in AYs 2006-07 to 2008-09 2011- 12 was adjudicated upon wherein my predecessor had held that the assessee-company was engaged in the business of development of infrastructural facilities on which deduction u/s 80IA was allowable. In view of the above facts and following the principles laid down in various judicial decisions, it is observed that the issue requires to be decided in favour of the assessee because the facts are similar and identical in nature. Hence, following the decisions in earlier years and to maintain judicial consistency, it is held that the AO was not justified in denying the deduction u/s 80IA of the Act. Accordingly, AO is directed to allow the claim for deduction u/s 80IA of the Act as admissible under law. Ground No. 2 is allowed. 2.3. Aggrieved, the revenue is in appeal before us on the following ground:- 1. In the facts circumstances of the case and in law, the Ld. CIT(A) has erred in allowing deduction u/s. 80IA of the Act to the assessee. 2. In the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in not appreciating the fact that the contract was given to the assessee by the government body to set up the Govt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld as under:- 3.5. We have heard the rival submissions. It is not in dispute that the assessee is entitled for deduction u/s 80IA of the Act for the development of infrastructural activities carried out by it. We find that this tribunal in assessee s own case for the Asst Years 2004-05 to 2008-09 vide order dated 23.9.2016 had decided the same in favour of the assessee, wherein it was held as under:- 14. We have heard the rival submissions and perused the materials available on record. The DR vehemently supported the order of the Id AO. He further stated that the reliance placed the Id CITA on the certain decisions are not relevant as in those cases, the issue was only remanded back to Id AO for verification. Accordingly he prayed for setting aside of the issue the file of the Id AO. In response to this, the Id AR vehemently supported the orders of the CITA. He stated that the decisions relied upon by the Id CITA are squarely applicable to the facts of the instant case, in as much as, in those cases, the relevant clauses of the agreements/contracts were not looked into by the lower authorities and hence the tribunal had in the interest justice had remanded the matter ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding the case of Patel Engineering Ltd. v. DCIT in ITA No. 1221 /Mum/2004 has gone the extent of holding that the assessee, a civil contractor. having executed a part of contracts of irrigation and water supply on 'build and transfer' basis and handed over them to contractee Governments, was eligible for deduction u/s 80IA( 4). The similar view was taken by us in the case of East Coast Constructions Industries Ltd. v. DCIT. ITA No. 554/Mds/2010 dated 13.09.2011. Therefore. we confirm the findings of the CIT(A) and do not find any valid merit in Revenue's appeal. 14.2. We find that the Id CITA had granted relief for claim of deduction u/s 80IA of the Act in respect of profits mentioned in the projects in Table A of the assessment order. The Ld. CIT(A) observed that profit to the tune of Rs. 1,79,33,518/ mentioned in the projects in Table B of the assessment order, the assessee failed to substantiate its claim of deduction U/S 80IA of the Act and accordingly confirmed the disallowance made thereon. We find that against this, the assessee had not preferred any appeal before us. Hence we refrain to give our comments on the same. 14.3. We also find that the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs in the absence of any incriminating materials to the contrary found in the course of search. Hence, we do not find any infirmity in the order of the Ld. CIT(A) in this regard. Accordingly, the grounds raised by the Revenue are dismissed. However, we find that the segregation of projects carried out by the assessee in Table A and Table B as was done in the earlier years , as rightly pointed out by the ld DR before us, were neither done by the ld AO nor by the assessee during the year under appeal. Moreover, it is not in dispute that the assessee had indeed carried out some projects which were carried forward from earlier years. Hence in the interest of justice and fair play, we deem it fit and appropriate to remand this issue to the file of the ld AO to find out the list of projects that are eligible for deduction u/s 80IA of the Act in the light of the decisions of this tribunal for the earlier years and decide the same afresh in accordance with law . Accordingly the Ground No. 5 raised by the revenue is allowed for statistical purposes. 2.5. We find that the issue involved in this year under appeal is identical to that of Asst Year 2011-12 and hence respectfully f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Cal) 3.3. The assessee explained that in view of the aforesaid decisions, the company while filing return u/s 139(1) in its computation did not include the sum of money retained in its business profit as per accounts. Similarly, a sum of Rs. 6,22,37,760/- retained in earlier years and not included in computation of income as a taxable income has been included in computation of income during the year as the sum of money was received by the assessee during the relevant assessment year. The assessee also brought to the notice of the ld AO that as per Not 1, Part 3(a) of the Financial Statement as at and for the year ended March 31, 2012. During the year under review the Company has credited gross bill amount as revenue, instead of net of retention as it was thought to be a better presentation of Financial Statement. Due to such change there has been an increase of gross contract receipt to the extent of Rs. 7,07,91,419/- relating to last year. Thus, a sum of Rs. 7,07,91,419/- was reduced from the computation as related to last year and was already taxed by the Income Tax Department in the assessment proceeding during the A.Y. 2011-12 (copy of assessment order u/s 143(3) enclos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uding that of Hon ble Calcutta High Court in the case of CIT vs Simplex Concrete Piles India (P) Ltd reported in 179 ITR 8 (Cal) opined that the ld AO was not justified in rejecting the claim of the assessee on account of retention money claimed in the return. He also observed that the ld AO had relied on certain judicial pronouncements in his order but none of them are directly related to the issue involved in the instant case. He observed that the contentions of the ld AO that since the assessee company had credited the entire amount of job receipts in its profit and loss account and therefore the deduction of retention money cannot be allowed in the computation of income does not appear to be correct. He further observed that since in the year under consideration, the facts are similar to the facts in immediately preceding years, i.e Asst Years 2010-11 2011-12 and hence following the order of his predecessor for the earlier years, he held that the amount of retention money of Rs 10,60,18,958/- is not taxable in the year under appeal and assessee had rightly claimed the reduction of the said amount. 3.6. Aggrieved, the revenue is in appeal before us on the following grounds: ..... X X X X Extracts X X X X X X X X Extracts X X X X
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