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TMI Blog2024 (5) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... "1. The Ld CIT(A) has erred in law and on facts in allowing the deduction u/s 80IA(4) since the assessee is neither a developer nor is operating and maintaining any infrastructural facility which is the eligibility condition for availing the deduction u/s 80IA(4) of the Act. 1.1 The Ld CIT(A) has erred in law and on facts by allowing the said deduction to the assessee on his own without seeking a remand report from the AO regarding the exact nature of the work being carried out as this fact was never examined by the AO in assessment proceedings since the assessee had not claimed any such deduction in the ROI. 1.2 Without prejudice to the above, even if it was held that the assessee was engaged in the business of developing or operati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure facilities and earning income by way of collecting toll from vehicles running on roads constructed by the assessee. 7. During the course of assessment, the Assessing Officer observed that assessee has claimed certain project facility expenses to the tune of Rs. 5,90,92,431/- as revenue expenses. The Assessing Officer was of the view that the aforesaid project facility expenses claimed by the assessee as revenue expenses are not a revenue expenditure, but a capital expenditure. Therefore, the same cannot be allowed as revenue / business expenditure. Accordingly, the Assessing Officer disallowed the above expenditure incurred by the assessee towards project facility expenses amounting to Rs. 5,90,92,431/- and added the same to the income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the "major maintenance work" and therefore, should be allowed as a revenue expenditure. The Ld. CIT(A) observed that though the assessee is eligible for claim of deduction under Section 80-IA of the Act, in the return of income the assessee did not claim deduction under Section 80-IA of the Act since the assessee had incurred losses while filing return of income. Accordingly, while the Ld. CIT(A) upheld the additions made by the Assessing Officer, he further held that the assessee is eligible for claim of deduction under Section 80-IA(4) of the Act and accordingly, directed the Assessing Officer to grant deduction to the assessee, after carrying out due verification. The Ld. CIT(A) while allowing the appeal of the assessee made the follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income fax officer to apply section 24 (set off of loss etc.) in an appropriate case. 2.13. The Honourable Gujarat High Court in the case of S. R. Koshti [276 ITR 165] has held that if an assessee under a mistake, mis-conception or on not being properly instructed is over assessed the authorities under the Act are required to assist him and ensure that only legitimate taxes due are collected. 2.14. The Honourable Bombay High Court in the case Of Central Provincess Mangnese Ore [112 ITR 734] has held that mere fact that a deduction was not claimed before the Income Tax Officer is not of much importance, if the liability arises, then a claim can be made bonafide at any stage before the higher authority who is competent to grant relief. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed deduction under Section 80-IA(4) of the Act both for prior and subsequent assessment years and claim of deduction under Section 80-IA(4) of the Act had never been denied / disputed in the hands of the assessee, therefore, Ld. CIT(A) has not erred in facts and in law in allowing the claim of deduction in respect to deduction under Section 80-IA(4) of the Act in respect of enhancement made by the Assessing Officer in light of the Gujarat High Court decision in the case of ITO vs. Keval Construction 33 taxmann.com 277 (Gujarat). Secondly, even in the case of associated concern of the assessee, the similar expenditure had been allowed as revenue expenditure and therefore, even otherwise, in the alternative, the assessee company should ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITAT held that the amount of statutory disallowance under Section 40(a)(ia) of the Act has to be considered as business profit eligible for deduction under Section 10A of the Act. 14. In the case of Sharavathi Pathina Sahakara Sangha Niyamitha vs. ITO 144 taxmann.com 170 (Bangalore Tribunal), the ITAT held that where disallowance for non-deduction of TDS liability would increase business income of assessee-society which was eligible for deduction under Section 80P(2)(a)(i), deduction under Section 80P(2)(a)(i) to be allowed on profit as enhanced by sum disallowed under Section 40(a)(ia) of the Act. 15. In the case of Bartronics India Ltd. vs. ACIT, Circle-1(3), Hyderabad 22 taxmann.com 5 (Hyderabad Tribunal), the ITAT held that where the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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