TaxTMI 
TaxTMI 
2013 (2) TMI 71
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....) The Ld.Commissioner of Income-tax-XIV, Ahmedabad has erred in law and on facts in deleting the addition of Rs.1035199/- made by the Assessing Officer on account of unexplained cash credit u/s.68 of the Act. 2) The ld. Commissioner of Income-tax(A)-XIV, Ahmedabad has erred in law and on facts in admitting fresh evidence in violation of Rule 46A and not allowing the Assessing Officer an opportunity to verify & comment upon the fresh evidences furnished by the assessee. 2.1. In respect of the issue raised, facts in brief as emerged from the corresponding assessment order passed u/s.143(3) r.w.s. 254 dated 16.10.2008 were that in the past, the ITAT "A" Bench in ITA No.3028/Ahd/2004 (for A.Y. 2001-02) vide an order dated 29.07.2005 has restored the issue back to the file of AO, relevant paragraphs reproduced below:- "10. Apropos ground No.3, during the course of assessment proceedings it was found by the AO that there were credits appearing in the books of accounts of assessee in the names of following two persons:- P.G. Shringapure Rs. 1,90,000/- Dipen U.Patel Rs.11,27,387/- In absence of any explanation....
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....ecuted, some payment is retained, which is due to the labour contract and balance payment is made, with due care of deducting the TDS and making payment thereof. The work account itself appears to be just an adjustment and the AO is, therefore, fully justified in making an addition of Rs.12,40,087/- under the provisions of Sec.68 and no interference whatsoever is called for." 11. It was pleaded before us, that it was submitted to CIT(A) that Shri P.G.Shringarpura is assessed to tax. His copy of statement of total income and acknowledgement receipt of return of income were also filed. Similarly it was contended that in respect of credit of Shri Dipen U.Patel pertained to work done by him for assessee and the payment amount was credited to his account and the payment was made against his bill. Copy of account of Shri Dipen U.Patel was also produced. Thus it was pleaded that ld.AO as well as the CIT(A) did not properly consider the submissions of the assessee. It was pleaded that assessee can properly explain these credits and, therefore, the issue may be restored back to the file of AO for reconsideration. 12. On the other hand, the ld.DR r....
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.... but that direction was in respect of certain other disallowances which are to be made as deemed income of the assessee. The non-cooperation of the assessee was mala fide in the opinion of ld.CIT(A). Ld.CIT(A) has commented that in fact it was a case of "bogus liability", claimed without any credible evidence. The addition in respect of Shri Dipen U.Patel was confirmed by ld.CIT(A). In respect of the addition pertaining to Pradeep G.Shringarpure, it was informed that there was a clerical mistake in the Tax Audit Report and a certificate to clarify that mistake was furnished. As per ld.CIT(A), it was a self-surving evidence, thus could not be treated as a credible evidence. The conclusion of the ld.CIT(A) was that the liability shown by the assessee in the name of said two parties was no longer in existence and it was a case of a claim of a bogus liability. The conclusion drawn by the ld.CIT(A) is as under:- "In conclusion, the outstanding liability shown by the appellant in the name of Shri Dipen U.Patel and Shri Pradeep G.Shringapure amounting to Rs.1,73,728/- and Rs.31,160/-, i.e. in total of Rs.2,04,888/- are held as liability no longer existing or bogus li....
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....by making the payment in the years to come. If it is found correct that the liability has been paid by the assessee, then naturally in consequence thereof the assessee shall get the relief as per law. Side by side, we also direct the assessee to fully co-operate with the investigation. Rather, considering the fact that the assessee is already in second round of appeal, we hereby direct that the assessee shall suo motu approach the AO within 20 days on receipt of this order, without waiting for any notice with all documents, so that the matter should get addressed at an early date. After receiving the basic information, such as, copies of accounts, acknowledgements and details of payment, the AO is at liberty to take the required legal action as per law. With these directions, the grounds of the Assessee as also the Revenue both are allowed but for statistical purposes only. As a result, the appeal of the Assessee as well as Revenue for A.Y. 2001-02 both are allowed but for statistical purposes. [B] ITA Nos.402/Ahd/2012 & 602/Ahd/2012 for A.Y. 2005-06 (cross appeals - By Assessee & Revenue respectively) 4. For A.Y. 2005-06 cross appeals have been filed arising from the order o....
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.... R.P.Shah (Anik Depot) 515000 14. Box L&T Junagadh 1532906 15. AUDA Traged Pipe Pushing 4635085 16. RCC Box N.Rly.GNR Delhi 3082497 17. Chennai Const. 150000 18. Ghai Const.Ltd. (Pune) 1501500 19. ARB. Award Br. 40 - Andheri 1480077 20. Skanska - New Delhi 400200 21. Sales 474760 22. Trading A/c. 10179 TOTAL RECEIPTS 6,55,43,956 4.3. The fundamental objection of the AO was that the assessee was not a "developer" but merely a "contractor". According to AO, the assessee had entered into a work contract agreement with different authorities, such as, AUDA, GWRDC, Enviro Const., and Chennai Const.,etc. A show-cause was issued and the assessee was asked to justify the claim of deduction u/s.80IA and to produce Auditor's Report in Form No.10CCB. In compliance, the assessee has submitted as follows; only relevant portion is reproduced: "Assessee is a developer of the Under bridges applying owned design, investments. In the such development of infrastructure projects. Risk, responsibilities and fund for execution of projects are of the assessee itself. As assessee ....
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..... In addition to the above objection, the AO had also raised two more objections, first, that the benefit u/s.80IA was to be granted to an enterprise who had not only developed the infrastructure but also operated the same, is to be eligible for deduction. The second objection of the AO was that the Auditor's Report on Form No.10CCB, along with the copy of the agreement of the assessee with Central Government/State Government/Local Authority, was not furnished. The AO has discussed a contract with AUDA and commented in the following manner:- "(i) Contract with AUDA As regards the construction work entered into with AUDA for the construction of under-bridges the assessee has entered into with a contract for the work of manufacturing, testing, supplying, transporting, loading-uploading, at site laying and pushing in Railway limit M.S. casing pipes and providing and laying M.S. carrier pipes as pr tender specification. The work includes all necessary excavation dewatering by deploying necessary no.of pumps as per required refilling trenches after completion of pushing work all necessary temporary work for pushing of pipes. Deploying sufficie....
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.... drawn by the AO was that the assessee was not a "Developer" but the income was derived as a "Work Contractor", hence not eligible for deduction u/s.80IA of Rs.4,79,508/- for the year under consideration. This action of the AO was challenged before the ld.CIT(A). 5. It was pleaded that the assessee had constructed several overbridges as also under-bridges for Central Government and State Government Projects and thereupon claimed a deduction u/s.80IA of an amount of Rs.4,79,508/- being 100% of the profit u/s.80IA. It was explained that 13 projects were carried out and the assessee was assigned those projects being known for development of bridges and canals. The assessee has furnished a copy of the "work order" to explain the nature of the work executed. The assessee has also furnished the details in respect of application of own design and assessee's deployment of technique. The explanation of the assessee was that its own funds were utilized. Further in respect of execution of project the risk and the responsibility was taken by the assessee. Before ld.CIT(A), the appellant has referred an order passed u/s.144A of the Act, relevant portion extracted below:-  ....
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.... the under pass. The assessee first builds the thrust block which is the foundation is concrete, reinforcing steel and shuttering equipment. Thereafter, the entire under bridge is constructed on the foundation by using the same materials which are used for the foundation. Hence, the Rcc Box acting as under bridge is cast. After the total strength of the under bridge has been achieved, it is then pushed below the railway track with the help of hydraulic pump and 250 ton capacity hydraulic jacks. As this under pass is slowly being pushed below the railway track, the earth is being excavated simultaneously from within the box. At a stretch, 30 Cms. Of pushing can be achieved in a day. This process is repeated day after day till the final pushing is completed. And the result is that the under bridge is constructed and the load of the railway line is resting on the concrete RCC bridge without disturbing the railway traffic. After this, the finishing touches of plastering, water proofing is done and whenever required, the retaining walls on the sides of the road leading to the under pass is also constructed. Finally, the whole underpass is ready through which the vehicular traffic is all....
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.... for this purpose. The period within which the infrastructure facility has to be transferred needs to be stipulated in the agreement between the undertaking and the Government concerned. The enterprise has to be owned by a company registered in India or a consortium of such companies. The tax holiday will be in respect of income derived from the use of the infrastructure facilities developed by them." 7.1. He was of the view that the assessee is entitled for deduction if satisfies the conditions mentioned in section 80IA(4) of IT Act which are enumerated in sub-clauses (a), (b) & (c) of the Act. He has emphasized the insertion of Explanation to section 80IA, wherein it is provided that nothing contained in section 80IA shall apply in relation to a business referred to in sub-section(4) which is in the nature of "work-contract". According to him, one of the important ingredient for entitlement of deduction u/s.80IA is the financial investment and financial risk of an enterprise. He has mentioned Memorandum explaining the provisions of Finance Bill of 2007 and quoted that where a person makes investment and himself executes the development work, carries out the civil construction ....
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.... The developer bears the financial risk and makes the investment whereas the contractor does not make the investment and take any financial risk, he gets the payment for the work done by him and is not concerned about anything else. The developer can modify the project as per his desire whereas the contractor has to stick to the specifications given to him." 7.2. Ld.CIT(A) has also reproduced the work undertaken or executed by the assessee during the year. In the said chart, there was a description of nature of the work undertaken by the assessee and the commencement of the year of the said work. It was not in dispute that the assessee had undertaken the construction of under-bridge of the Railways. Assessee was asked to give the details of the contract, which were submitted. On that basis, ld.CIT(A) has also discussed few of the contracts with Railways as also with AUDA and GWSSB. Thereafter, he has concluded (i) that the investment was not made by the appellant,(ii) that the design and planning for development of infrastructure project was not of the appellant,(iii) that there was no financial risk belonged to the assessee, (iv) that there was no mobilization of technical expe....
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....ability on the appellant which would be restricted to certain amount depending on the breach of contract. For claiming that the financial risk is there the appellant would own and develop the project and then transfer it to the concerned authority. (iv) The appellant ha also claimed that it was mobilizing and synthesizing people, plants, technical expertise, supervision, co-ordinating and control, etc. to develop and create the infrastructural facility. This claim is also without factual support. The appellant has not developed and created the facility. It has also only executed the work assigned to him which was part of the infrastructural facility being planned by the government authority. The plan of the project was not made by the appellant. The appellant is expert in box pushing technique and all the projects have been executed by using that technique. In most of the contracts the appellant has executed the part of the work which relates to creating of under pass below the railway line. In Sujlam Suflam Scheme the appellant has executed that part of the project which involves construction of boxes. Therefore, the claim of the appellant that it has develop....
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....No.766/PN/09 12. M/s.Tarmat Bel (JV) vs. ITO ITA No.111/RJT/2010 9. From the side of the Revenue, ld.CIT DR Mr D.P.Gupta appeared and main plank of his argument was that considering the nature of work executed by the assessee, it was clear that the assessee had acted only as a "contractor" and not as a "developer". He has pleaded that there was no financial risk of the assessee, since the assessee has furnished the "work bill" time to time and received the payment from the Government. The Government has granted him a small work to be executed. It was a part of a large project and not a project as such. The assessee has not developed an infrastructure project as a whole. He has pleaded that the assessee has not conceptualized the project. The project was planned by the Government. The assessee was asked to complete only a part of the project that too on contract basis. Neither there was "risk" nor there was "reward" for the assessee. The assessee has simply tendered the bills of the work executed and received the payment. He has drawn our attention on "Notes on Accounts" and informed that as per the "Revenue Recognition" the income was accounted on the basis....
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....it was explained that the RCC Box Bridge was constructed by pre-cast RCC Box by applying pushing technique. Further it is explained that Jacked Box Tunneling is a non-intrusive method for constructing a new under-bridge, culvert or subway beneath existing surface infrastructure, for example railways and highways. Ld. AR has informed that the assessee construction company has developed an expertise and by this method there was no disturbance in the traffic and no inconvenience is caused which otherwise was earlier experienced while applying traditional construction method. Further, safe running of trains have also been achieved by this method. As per the contents of the paper-book, there is a description of box pushing technique, quote "R.C.C. Box is pushed through the embankment with the help of hydraulic jacks to create a passage. Execution of this work is similar to the construction of well foundation. Wells will be sunk into the ground either by self-sinking or with the help of kentledges. In case of box push bridge, precise box segments will be pushed in horizontal direction with the help of hydraulic jack by taking reaction from thrust bed." Unquote. The assessee has also furn....
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....the assessee has executed the work as a "Developer", we have perused the terms of some of the agreements. Our attention has been drawn on an agreement with "Northern Railway", wherein the scope of the work has been defined as follows:- "2. SCOPE OF WORK: 2.1. Procurement/Fabrication of necessary plant and equipment like, jacking jigs, sumps and any other plants equipment required for execution of this work. 2.2. Designing of box section as per approved profit sketch General Arrangement Plan No.NRHQE (P) Plan No. P-1770-SB/1998/R-3. The design will be based on modified broad gauge Railway loading-1987. The design shall be from reputed Consultant to be approved by Railway and the same be got Proof checked from RITES/technical institution such as Indian Institute of Technology/Roorkee. Contractor has to make his designer available for any clarifications for checking of the design/drawings by the Northern Railway. The final approval of design and drawings shall be given by the Railway. In the area of existing arch, twin box of 2x8.50 Mtr x 5.75 Mtr. will have to be designed and constructed in lieu of individual boxes No.....
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....and the assessee shall be fully responsible for safe functioning of the "thrust bed". One of the specification was stated to be like this viz. quote,"Earthwork in excavation for thrust bed, return wall, curtain wall, drop wall flooring and box pushing including disposal of the excavated earth in the near by available Rly.Land within a maximum lead of 10 Kms and the remaining surplus earth outside the Rly.land as directed by the Engineer at contractor's own cost." Unquote. So these clauses have affixed certain liabilities as also responsibilities on the assessee which were apparently more than the responsibility generally been fixed on a " contractor". 11.6. The construction material which is used by the assessee was also the property of the assessee and in this regard one of the clause was stated to be as under:- "Pre-casting and curing of RCC Box units including fixing of front end frame/cutting shield, with all fabricated enabling work remaining the property of contractor, after completion of the work." Had it been the work executed as a contractor then the construction material ought to be the property of the owner but the clauses have said otherwise,....
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....for that purpose a design consultant was employed. Relevant clause of the said agreement was as under:- "2.14. The contractor shall employ a Design Consultant who has adequate experience of design and planning of casting bed, thrust beds and RCC Box Pushing technique. The contractor shall also engage a Senior Engineer, who is well Experienced in RCC Box Pushing jobs in running railway conditions as site engineer in charge of work, for which the concurrence of AIDA shall be obtained. Any change of the Site Engineer as has been proposed in PQ documents and also during the progress of work shall be done only after obtaining the concurrence or instructions of AUDA." 11.10. The assessee was made responsible for any error in the execution of the work. It was the responsibility of the contractor i.e. the assessee, for damage-free execution of the work. Otherwise, generally a contractor is not held responsible or not required to repair the damages at his own cost. One of the clauses with South-Eastern Railway was that the contractor was required to submit its own drawings along with his tender. The structural design including method of construction as proposed by c....
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.... creates new product. Whereas as per the dictionary meaning, the word "contractor" is a person or a company that has a contract to do work or provide services or goods to another. As per new shorter Oxford dictionary, the word "contractor" means a person who enters into a contract or agreement. As per the Bench, a developer is a person who conceives the project. He may execute the entire project himself or assign some part of it to others. As per Respected Bench, on the contrary, a contractor is the one who is assigned a particular job to be accomplished on behalf of the developer. The duty of a contractor is to translate such design into reality. The role of a developer is much larger than that of the contractor. As per Bench, it is no doubt that in certain circumstances a developer may also do the work of a contractor but a mere contractor per se can never be called as a developer, who undertakes to do work according to the pre-decided plan. These findings have indeed helped us in deciding the issue in hand. 12.1. This technical term, i.e. "developer" was also under question in the case of Radhe Developers 341 ITR 403 (Guj.), wherein vide an order dated 13.12.2011, the Hon'....
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....stments were made by the Government and the assessee was paid "on running bill to bill basis". This question was elaborately dealt with by the Respected Co-ordinate Bench and after due consideration of the work executed by the said concern, it was opined that the words "developer" and "contractor" have not been defined in section 80IA of the Act. It was noted that the BOT/BOOT models seek to augment infrastructural assets in addition to Government spending and not simply feed on Government expenditure. As per the Tribunal, the deduction u/s.80IA is available to the former and not to the latter. The term "developer" has to be seen de hors the contract. The Bench has also opined that word "ownership" is attributable only to the enterprise carrying on the business which would mean that only companies are eligible for deduction u/s.80IA(4). 12.3. An another controversy in such type of cases is in respect of the term "ownership" prescribed as per the language of the Section. The Section 80IA(4) prescribes that it applies to any enterprise carrying on the business of developing, operating and maintaining any infrastructure facility which fulfils the conditions, namely, it is owned by ....
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....struction executed by this assessee had fallen under the category of " developer" and not under the category of " "works-contract". 12.5. Next, an another controversy has also been raised by the Revenue Department that in the agreements in question the term "contractor" has been referred by the Government. This question has been duly addressed by ITAT Mumbai Bench in the case of ACIT vs. Bharat Udyog Ltd., wherein Patel Engineering Ltd. 84 TTJ 646 (Mum.) was followed and it was opined that the term "contractor" is not essentially in contradiction to the term "developer". By entering into a lawful agreement and thereby becoming a "contractor" in no way bar an enterprise to execute the work as a "developer". It was opined that merely because in the agreement for development of infrastructure facility an enterprise is referred to as a contractor do not detract an enterprise from the position of being a "developer". In number of decisions, the Coordinate Benches have cited ITAT Pune Bench decision pronounced in the case of Laxmi Civil Engineering Pvt.Ltd. (ITA Nos.766/PN/09, 254/PN/08, 431/PN/07 & 435/PN/07 AYs 2006-07, 2005-06, 2003-04, 2004-05) order dated 08/06/2011), wherein it ....
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....onstruction is over, he is paid for the job of civil construction as per the bills raised. (iii) That at that point of time, his contract is over and the agreement ends. (iv) That after the completion or at the end of the agreement, a civil contractor hand over the site to the owner. (v) That a civil contractor constructs as per the specifications given. (vi) That a contractor does not involve much of his own money but raises bill of his civil construction work time-to-time to collect the expenditure incurred. (vii) That a contractor has no domain over the land or the site. (viii) That his access to the site is restricted and limited from commercial angle. (ix) That on the basis of the project he cannot raise the funds from the private financial institutions. (x) That "a contractor" is not responsible for the development of the project but his responsibility is limited to the job-assigned to him. (xi) That a " contractor's" duties and responsibilities can only be examined on the basis of the terms and conditions of the contract agreement. 12.7. Now we shall examine about a " developer". From the above reading we have also gathered (a) That a developer is a person who undertakes ....
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....ork executed at Rs.66,38,045/-. The assessee has also executed the "RCC Box Bridge" by applying pushing method for passing under main track on Delhi Gaziabad section and executed contract for Rs.30,82,497/-. The assessee has also provided under-bridge below railway-track at Tragad and executed for Rs.2,36,62,044/-. Certain other infrastructure project, such as, construction of water-way of 48 meters long was made between Simliguda and Karakavalasa and executed for Rs.30,69,999/-. The assessee has also constructed Railway under-bridge for a contract of Rs.39,62,213/-. It has also been stated that by applying Jacking method RCC Box were provided through Railway Embankment for providing distributory channel projecting for Narmada Project. The assessee has also designed and constructed "New Box Culvert" between Jonathpur- Ahura Road Station. Such details are available in the compilation. On the basis of this examination we, therefore, give a finding that it was wrong on the part of the AO to hold that the assessee has merely acted as a contractor. By analyzing the nature of work executed by the assessee, it can be gathered that the assessee had acted as a developer. The assessee has....
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....as paid labour charges of Rs.1,31,08,065/-. The assessee has also paid freight charges of Rs.16,91,327/-. The assessee has furnished the details of the tax deducted on such payments. It was noted by the AO that in respect of payment of labour charges and freight charges upto the month of February-2005, the assessee had deducted the tax in the month of March-2005, however the same was paid in the month of May-2005. As per AO, the assessee had made late payment. According to him, as per the first proviso to section 40(a)(ia) it is provided that where in respect of any such sum tax has been deducted, then such sum shall be allowed as a deduction in computing the income of the previous year in which such tax has been paid. According to him, a plain reading of this proviso, it is clear that if the TDS has been deducted during the last month of the previous year but paid after the said due date, then the deduction is not allowable. The AO has made out a list of alleged late payment and by invoking the provisions of section 40(a)(ia) a total disallowance of Rs.66,14,143/- was made. The matter was carried before the first appellate authority. 16. Before ld.CIT(A), it was pleaded that th....
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....edly and deposited belatedly then the deduction is allowable in the previous year in which it was so deposited. The provisions of chapter XVII are relevant only for ascertaining the deductibility of the tax at source and not for the actual deduction in payment for attracting the provisions of section 40(a)(ia) of the Act. In the present case, the tax has been deducted in the last month of the previous year i.e. March, 2005 and deposited on 31/05/2005, the case of the appellant is covered in the main provisions of the law and the amendment which was made by Finance Act, 2008 with retrospective effect from 01/04/2005. Reliance is placed on the decision of Hon'ble Gujarat High Court in Tax Appeal No.706/2010 dated 18/07/2011 in the case of CIT vs. J.K.Construction Co. and also on the decisions in the case of Bapu Saheb Nana Saheb Rumal [132 ITJ 694][Mum.] & H.S. Mohindra Traders [132 TTJ 701] [Del.]. Therefore, no disallowance u/s.40(a)(ia) can be made on these facts of the case." 17. Having heard the submissions of both the sides, we are of the considered view that there was no fallacy in the view taken by ld.CIT(A). Now this issue is very well settled. In one of the case, the Res....
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....f deduction and depositing of TDS. Section 40(a)(ia) of the Act as amended with effect from 1.4.2005 read as under: (ia) any interest, commission, or brokerage, (rent, royalty) fees for professional services or fees for technical services payable to a resident, or amounts payable to a contractor or sub-contractor, being resident, for carrying out any work (including supply of labour for carrying out any work), on which tax is deductible at source under Chapter XVII-B and such tax has not been deducted or, after deduction, has not been paid on or before the due date specified in sub-section (1) of section 139." Plainly speaking, assessee had to make deduction before 31st March of the year in question and as long as such amounts were deposited before last date of filing of the return, requirements of law would be fulfilled. It was on this basis that tribunal was of the opinion that the assessee committed no wrong and was therefore, entitled to seek deduction of Rs.32,94,149/- from the income which amount the assessee had ded....
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....ow Ahmedabad- Delhi main M.G.Line and Ahmedabad Gandhinagar BG Line AUDA Rs.237.99 lacs 4. Construction of under bridge under BG railway line at Unjha - Cast in situ RCC box and cannel work Executive Engineer (GWR Division) Ahmedabad Rs.65.80 lacs 5. Construction of under bridge under meter guage railway line at Gozaria Cast in situ RCC box and cannel work -do- Rs.54.43 lacs 6. Providing and laying of RCC box push through method below railway track between Malia and Wadharva GWSSB - NC6 Rs.5.76 lacs 7. Providing and laying of RCC box push through method below railway track between Malia and Indiranagar GWSSB - NC9 Rs.11.25 lacs 8. Construction of Arch by providing 04 RCC box by box pushing technic under railway track at Delhi Northern Railway Rs.2.36 lacs 9. Construction of bridge by providing 04 RCC box by box pushing technic under railway track at Virar-Surat Section Western Railway Rs.50.08 lacs 10. Construction of bridge by providing 1 RCC box by box pushing technic under railway track between Kalway Road and Palghar Station Western Railway Rs.26.80 lacs 11. Civil work at MDL Mazg....
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....s an element of risk due to the reason that the assessee was made responsible for any damages or loss in execution of the work. After considering the nature of the work and other allied factors, we have taken a conscientious view in respect of those projects that the assessee is entitled for the deduction u/s.80IA(4) of the Act. In the like manner, for the year under consideration as well, we hereby hold that the assessee is entitled for these projects for the claim of deduction u/s.80IA. 21.1. However, in respect of the civil work executed at Mazgaon Dock Ltd. (in short MDL), the nature of work was found to be a repair work. The assessee has not demonstrated that there was development of any infrastructure facility. Facts as culled out from the records are examined. The assessee had carried out the civil work like excavation, concrete flooring and also provided steel enforcement bar for RCC flooring, etc. The assessee has informed that the nature of work was precisely, "Concrete flooring with anchor plate Alcock yard between existing Gantry Rail track at Mazgaon Dock Ltd., Mumbai". Since the basic condition is that for the purpose of claim of deduction u/s.80IA(4) an Enterprise....
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.....1 lac already paid advance and Rs.1 lac as per M.O.U. vide DD No.562797 dt: 9-1-06 of State Bank of Saurashtra. I am not inclined to accept the contention of appellant since other evidences do not reflect this. The appellant in its written submission filed a copy of petition filed by Shri Rajendra Singh Gyansingh Bhardwaj before the Hon'ble Nadiad Civil Court No.12/2001 which shows that Shri Rajendra Singh Gyan Singh carried out work as per the details and instructions of the appellant for which appellant had already received the payment from M/s.NBCC but an amount of Rs.10 lac is outstanding to him from appellant as follows:- Total value of work carried out Rs.46,69,158.76 Less:Advances and part bill recd. Rs.39,21,481.00 Balance outstanding: Rs. 7,47,677.76 Add:Rate difference Rs. 1,34,355.00 Loss @ 12% on a/c.of Rate diff. Rs. 1,17,967.24 Total outstanding: Rs.10,00,000.00 This status is shown as on 15-2-01. In another evidence dt: 9-1- 200 being notice to appellant from Shri Ramesh M.Jaraiya, Advocate, the detail of transaction is explained showing once again total outstanding of Rs.9,71,754/-. The Agreement dt: 16-1- 0....
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....urt, the ratio of case as relied on by the appellant is not applicable in its case. The appellant was asked to file complete details in respect of such deduction by the Mazagaon Dock Ltd. and correspondence with them to evidence why out of Rs.1,73,107/- they refunded Rs.41,497/-. In the absence of such details, it is not possible to ascertain the nature of this transaction and therefore, the claim of the appellant. The onus to claim any expenditure is on appellant as per settled proposition. Therefore, the A.O. is justified in holding the same as contingent liability and rejecting the claim of expenditure. The ground of appeal is therefore, rejected." 25. We have heard both the sides and perused the material placed before us. The assessee has furnished the copy of account of MDL in its book. The assessee has also furnished a letter of the Chief Manager (CW) dated 08/06/2005, wherein as per the subject the assessee has executed "Concrete flooring with anchor plate in Alcok Yard in between existing Gantry rail track" and retained liquidated damages provisionally at 6% amounting to Rs.1,73,106/-. Later on, an amount of Rs.41,497/- was refunded. The MDL has deducted Rs.1,31,610/- as....
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....il work in respect of MDL Mumbai, the assessee is entitled for claim of deduction u/s.80IA(4) in respect of all the infrastructure work executed during the year under consideration. In the result, we hereby hold that the Revenue's ground is also partly allowed. (E) Assessee's appeal, ITA No.403/Ahd/2012 for A.Y. 2007-08: 28. The Assessee has raised the only ground in respect of rejection of claim of deduction u/s.80IA. 28.1. We have perused the impugned assessment order and thereupon noted that the AO has mentioned 12 projects which were executed during the year. The AO has not pin-pointed any particular project for discarding the claim but taken an overall view that all the projects did not qualify for the claim of deduction. On the other hand, we have noted , as culled out from the records, that the projects are like construction of road, under-bridge, AUDA Authority Ahmedabad, construction of underbridge GWR Division Ahmedabad, Construction of bridge Western Railway Dadar Mumbai, construction of water-way East-Cost Railway Visakhapatanam, Construction of bridge, water supply project Ahmedabad, Construction of RCC Box of various authorities of Railway Mumbai, spreading o....