TaxTMI 
TaxTMI 
2017 (7) TMI 956
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....sed in ITA No. 38//LKW/2015 relating to assessment year 2009-10. 3. It was admitted on the following substantial questions of law:- " (i) Whether the Income Tax appellate Tribunal was justified in allowing the deduction u/s 80IA to the assessee on the basis of return filed after the issue of notice u/s 153A of the Act. " (ii) Whether the Income Tax Appellate Tribunal was justified under the facts and circumstances of the case in confirming the order of CIT (A) who has travelled beyond the statutory provision of Chapter VIA, u/s 80 A (5) of the Income Tax Act, 1961 which clearly provides that if assessee fails to make a claim in his return of income of any deduction; no deduction shall be allowed to him thereunder". 4. Tribunal h....
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....ubstantial question of law on this aspect has been framed. 7. For our satisfaction we have also gone into this aspect and find that CIT(A) has discussed this issue in great length and findings of CIT (A) commenced from page-72 of paper book. The ultimate conclusion on page-78 and 79, reads as under:- " This circular has been issued after the Finance Act, 2009 and has clarified that the widening of an existing road in an infrastructure facility by an enterprise entitles the enterprise for deduction u/s 80IA (4)(i). It is a settled position in Law that the CBDT circulars are binding on the Assessing Officer reference is invited to the case of [Azadi Bacchao Andolan (Supreme Court)] as CBDT circulars are contemparanea expositio. Th....
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....vided by the NHAI and UP PWD. This fact is duly referred to in the copies of agreement as well as in the payment advices, where in no amount was deducted by the agencies on account of material. The maintenance of the existing facility during the period of development also was of the appellant company and so also was the risk during the period to maintain the infrastructure and after the completion of development of road and its handing over to the Government, the risk period of the appellant company was of 12 months for maintenance of the road. Further the appellant company has not subcontracted his work. In the case Statutory Report in form 10CCB under Rule 18 BBB as prescribed by the CBDT was also filed along with the return. Wherein the ....
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.... that the assessee was engaged in development of road and is not a mere contractor as he had deployed his own capital, used his own management and expertise in maintenance and had to bear the risk and defect correction. These findings of CIT (A) could not be converted by learned DR of the revenue and therefore, this tribunal order rendered in the case of Koya & Co. (Supra) is squarely applicable because the facts are similar. In the order of CIT (A), he has followed this tribunal order and various other judicial pronouncements as noted by him in his order, as reproduced above. Considering this factual and legal position, we find no infirmity that the order of CIT (A) on this aspect that in the fact of the present case, it cannot be said tha....