AI Drafter 
TaxTMI 
TaxTMI 
2018 (10) TMI 1652
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....f on account of expenses incurred under various heads even though the assesses has failed to furnish documentary evidence in respect of these expenses? 2. Whether on the facts and in the circumstances of the case and the Ld. CIT(A) was correct in allowing deduction u/s 80-lA even though assessee has not fulfilled the prescribed conditions laid down as per section 80-IA(4) of the IT Act, 1961? 3. The appellant prays that the order of the CIT(A) on the grounds aside and that of the Assessing Officer be restored. 4. The appellant craves leave to amend or alter any grounds or add ground which may be necessary." 4. The brief facts of the case are that the assessee filed its return of income on 15.11.2007 declaring total income to the tune of Rs. 16,82,200/-. The return was processed u/s 143(1) of the I.T. Act, 1961. Therefore, the case was selected for scrutiny and notices u/s 143(2) & 142(1) of the I.T. Act, 1961 were issued and served upon the assessee. Thereafter, disallowing the certain claim and also disallowing the claim u/s 80-IA(4) of the Act, the income of the assessee was assessed to the tune of Rs. 10,62,27,710/-. Feeling aggrieved, the assessee filed an appeal before the ....
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....ent expanses - Rs. 20,55,286/-: It was submitted that in course of assessment proceedings a detailed statement names of payee purpose for which These payments were made was submitted. All these payment? supported with bills and vouchers which can be produced during remand proceeding. Site. development expenses Rs. 3,55,203/-: A detailed statement of expense incurred towards site development al Brahmanvel was submitted during assessee proceedings (a copy of which was attached for perusal). It was added that perusal statement reveal that majority of these expenses were incurred at the Brahmanvel by M/s NEG M1CGN who have recovered from the assesses com; The appellant also offered to produce debit notes raised by M/s. MEG MCON verification. V Electrical Work internal - Rs. 3,27,000/-: These expenses were incurred for maintaining the electrical poles supporting with network of transmission lines laid by the assesses They comprise of expenses varying between Rs. 2,500/- to Rs. 60,000/- paid to various persons and a copy of details/list of payments were submitted during the course of appellate proceedings were also attached The assesses also added that it was in a position to pr....
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.... stage too, the position remand unchanged. 6.9. On the other hand, the appellant had furnished details of expenditure incurred which prima-facie discharges its onus. However, it is observed that some amounts have been debited under the head miscellaneous expenses without further details except the name of the person to whom payment is made. This is not contradicted by the AR of the appellant and, therefore, even if the same is vouched it cannot be said that they are amenable to cross-verification. In these circumstances it would be fair and reasonable to disallow 15% of Rs. 39,36,096/- amounting to Rs. 5,90,414/- which will take care of those disallowances which may not be fully substantiated. Accordingly, disallowance to the extent of Rs. 5,90,414/- is confirmed and the appellant gets relief of Rs. 33,45,682/-. This ground of appeal is partly allowed." 8. On appraisal of the above mentioned finding, we noticed that at the time of appellate proceeding, the assessee has submitted the necessary evidence in support of his claim. However, some of the evidences were not amenable for cross verification. After going through the evidence adduced by Ld. Representative of the ass....
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.... Officer has relied on the decision of Mumbai Bench decision in B.T Patil & Sons vs ACIT. As against this, the appellant drew attention to the decision of Hon'ble Bombay High Court in CIT vs ABG Heavy Industries Ltd, 37 DTR (Born) 233 pronounced on 15.02.2010, followed by Pune Bench in Laxmi Civil Engg Pvt. Ltd vide its order dated 08,06.2011. In the light decision of Jurisdictional High Court, it was contended that the decision of BT. Patil & Sons relied by the Assessing Officer was not a good law as it stands impliedly overruled. The appellant also drew attention to the CIT(A)'s order for A.Y.2002-03 dated 30.03.2011 where after examining the provisions of section u/s80IA(4)(iv)(b) has given a clear cut finding that the appellant's case falls in sub-clause (b) of 80IA(4)(iv) of the given a clear cut finding that the appellant's case falls in sub-clause (b) c (A) (4)(iv) of the l.T Act. 1961 and so the appellant was entitled for deduction profits derived from network of new lines for transmission and distribution of power. 8.1. During the course of appellate proceedings attention of the appellant was drawn to the "without prejudice" findings of the Assessing O....
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....ed in the light of the decision of Hon'ble Bombay High Court in the case of CIT vs ABG Heavy industries Ltd (cited supra) Since the facts and circumstances and the nature of work ^formed by the appellant remained the same, it is held that the appellant is entitled deduction u/s.80IA(4)(iv)(b) of the I.T Act, 1961 as it fulfills all the conditions. This if ground of appeal is allowed in appellant's favor. 8 2.1. Without prejudice to the above finding, it is observed that the appellant has claimed deduction of Rs. 3,41,50,391/- under the above section This amount forms part of Rs. 3,46,80,000/- which has been held to be the receipt for immediately preceding A.Y.2006-07 to say that the appellant's claim of offering the above amount in the current year under the head "transmission charges" and claiming corresponding deduction by way of earning a net income of Rs. 3,41.50,391- for laying of network of transmission lines for distribution of power has been negated by Taxation Authorities. It has been there consistent stand that above sum of Rs. 3,46,80,000/- belongs to immediately preceding year. 8.2.2 At the appellate stage, the appellant's content....
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....not liable to be interfere with at this appellate stage. ITA. NO. 4518/M/2011 9. The revenue has filed the present appeal against the order dated 30.03.2011 passed by the Commissioner of Income Tax (Appeals)-20, Mumbai [hereinafter referred to as the "CIT(A)"] relevant to the A.Y.2002-03. 10. The Revenue has raised the following grounds: - 1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in restricting the disallowance to Rs. 10,00,000/- out of Rs. 36,00,000/- on account of management charges paid to its sister concern M/s. King Prawns Ltd. 2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in allowing the deduction claimed u/s80-IA of the I.T. Act, 1961. 3. The appellant craves leave to amend or alter any grounds or add a new ground which may be necessary." 11. Brief facts of the case are that the assessee filed its return of income on 31.10.2002 declaring total income to the tune of Rs. 16,66,750/-. Thereafter, the assessee filed a revised return of income declaring total income to the tune of Rs. 16,31,150/- u/s 115JB of the Act and income at Rs.Nil under the normal pro....
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....e's own case for the A.Y. 2003-04 in ITA. No.4807/M/2007, therefore, the finding of the CIT(A) is quite correct which is not liable to be interfere with at this appellate stage. Before going further, we deemed it necessary to advert the finding of the CIT(A) on record: - "5. I find merit in the contention of the appellant. The assessment for the year under consideration was made for the first time u/s 147 of the Act. Prior to that the AO had completed assessment for the A.Y.2003-04 u/s 143(3) on 16.12.2005. The issue of deduction on account of management charges was examined by the AO in that year and the deduction was disallowed for the same reasons as in the case of the current year. Further, The AO also considered the applicability of 40A(2)(b) of the Act to the payment in view of common management of the appellant company and King Prawns. My predecessor vide order dt.05.04.2007 in Appeal No. CIT(A)-IX/ACIT-9(2)/IT-269/2006-07 held that the appellant had utilized services of King Prawns for developing the infrastructural facility for its wind farm activities. She observed that King Prawns had also entered into an agreement with German Partly for technical consultation f....
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.... King Prawns Limited for developing the infrastructure facilities for its wind farm activities. It is not disputed by the AO that the said M/s King Prawn had never rendered any services to the appellant company. The only objection according to him was that the said M/s King Prawn being the company carrying on the business of "Trading and Manufacture of Prawns, Fish and Salt it had no experience in "Generation of Power". The AO has not brought on record any material to show that said King Prawns had never rendered such services. May it be true that apart from the services of the said King Prawns some other services might have been required, nevertheless it is not a case of the AO that the services actually rendered were only make belief. It may also be true that the said King Prawns was incurring losses but that itself would not be the ground for disallowance of such expenses in the hands of the appellant company. Further AO has not disputed the fact that the principal sanction was given to the said King Prawns for setting up of such project which also indicate that the said King Prawn was having the requisite capabilities to set up such project and therefore the AO should have take....
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....Ltd. has spent about Rs. 12 lakhs in respect of its agreement with the assessee. 7 Under these circumstances, we uphold the order of the CIT(Appeals) wherein the disallowance is restricted to Rs. 10 lakhs." 14. Since the matter of controversy has already been adjudicated by the Hon'ble ITAT in the assessee's own case for the A.Y. 2003-04 in ITA. No. 4807/M/2007 and the Hon'ble CIT has decided the matter of controversy on the basis of the said decision, hence, we are of the view CIT(A) has decided the matter of controversy judiciously and correctly which is not liable to be interfere at this appellate stage. Accordingly, this issue is decided in favour of the assessee against the revenue. ISSUE NO. 2:- 15. Issue no. 2 is in connection with the allowance of claim u/s 80-IA of the Act by CIT(A). The assessee has constructed the Wind Mill Farm and laying of network of transmission lines for transmission of electricity generated by each of the wind mill ( wind operated energy generated or WEG) set up in the farm from their respective WEG to the sub station of MSEB for onward transmission and distribution through state of Maharashtra. In respect of the said activity, the assesse....
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....ioned above. ii) A copy of letter dt.06-05-2002 of the Superintending Engineer. O & M Circle. MSEBP Dhule to the Manager (Wind), MEDA, Pune giving the list of parties 7 parties who had got windmill erected at their sites. The list gives the capacity of the WTGs and their date of commissioning. It is noted here that me letter contains the name of the same parties listed earlier to whom the appellant had sub-leased land and collected total lease rent of Rs. 1,19,62,000. 21.2 It is seen that the appellant was issued no. Objection Certificate (NOC) u/s 44 of Electricity Supply Act 1948 by Maharashtra State Electricity Board (MSEB) to install 30 MW Wind Farm Complex (10x600 KW + 1x750 KW) capacity each at Bramanwel district Dhule Maharashtra. The said NOC issued vide letter no. 34878 dt. 18.9.2001 of the Chief Engineer (Commercial) MSEB Bandra , Mumbai. It is seen from the letter that M/s. Gesallchaft Zur Nutzung Erneurerbarer Enerergien URS Mbh (GNEE) had been issued letter of intent (LOI) by Government of Maharashtra (GOM) for development of Wind Operated Electric Generator (WEGs) in Maharashtra State and the GOM had also executed an agreement for the same with GNEE ....
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....sik MSEB wrote to the Chief Engineer (Tr-PI) vide his letter on 9794 dt. 19.10.2001 with reference to the NOC issued to the appellant seeking sanction for estimate for erection of 33 KV D/C line (suspension type) from Sakri Sub-station to Bramanwel Wind Farm consisting of 37 km of 33KV D/C line with 2 numbers of 33 KV bays at Sakri Sub- station. As per the letter, the total estimate came to Rs. 5.09 crores with 15% supervision charges at Rs. 76.35 lakhs. The letter mentions that as per the NOC with the line and bay work was to be carried out by the appellant under supervision of Superintending Engineers (O&M) Dhule by making payment of 15% supervision charges. The letter further mentons that appellant had requested vide application dt. 15.10.2001 to allow it to construct only single circuit and with only one bay. The Chief Engineer, therefore, sought approval and sanction so that necessary demand of supervision charges could be made. 21.4 Subsequently, the appellant entered into the Cooperation Agreement with TWEI on 5-11-2001 which is shown to be engaged in the business of assembling, sale, commissioning and maintenance of wind turbine and turn-key wind power plans The ag....
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....Sakri sub-station To Bramanwel Wind Farm for evacuating power from the wind farm complex. The windmills of the even parties were commissioned by providing connection to MSE8 Grid They could not have been connected to the MSEB Grid without laying the network of transmission lines from These Windmills to the MSEB grid. 21 6 Sub-section (4) of section 80IA as relevant here is extracted below ' (4) This section applies to- {a) art undertaking which,- (b) starts transmission by laying network of new transmission 01 distribution beginning on flic 1st day ot Apr it. 1999 and ending on the deduction under this section to an undertaking tinder sub-clause (b) shall ho allowed only in rotation to the points front faying of such network of new fines for transmission or distribution, (c) undertakes substantial renovation and the existing network o! transmission or distribution fines at any time during the period beginning on the 1st day of April 2004 and ending on the 31st day of March, 2011. Explanation -For the purposes of this sub-clause, plant and machinery in the network o! transmission or distribution lines by at Seas! fifty pet ce....
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....y referring to the Explanation below sub-section 13 of section 80-IA to infer that intention is to provide benefit lo the generator! of electricity only and not for executing a works contract since the nature of work performed by the appellant is only a civil or works contract On perusal of these provisions. I agree with the plea of the appellant that its case falls in sub-clause [b) and the legislative intent inferred by The AO with reference to the said Explanation is superfluous. just like there is generation or generation and distribution of power there is transmission or distribution of power by laying a network of new transmission or distribution lines too Therefore, there is no basis whatsoever for drawing distinction between The Two or a room for any confusion between the two propositions. 21 9 I therefore, hold that the appellant is entitled to deduction of profit derived from laying of network of new lines for transmission or distribution of power The appendant is seen to have commissioned windmills al locations of four out of seven windmill owners in the current year It is. therefore, entitled this year to deduction of profits derived from laying of transmission....
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....ion by laying a network of new transmission or distribution lines at any time during the period beginning on the 1st day of April, 1999 and ending on the 31st day of March, 2009 (amended later as 2011) Provided that the deduction under this section to an undertaking under sub-clause (b) shall be allowed only in relation to the profits derived from laying of such network of new lines for transmission or distribution; (c) undertakes substantial renovation and modernisation of the existing network of transmission or distribution lines at any time during the period beginning on the 1st day of April, 2004 and ending on the 31st day of March 2011. Explanation _ For the purposes of this sub-clause, "substantial renovation and modernisation" means an increase in the plant and machinery in the network of transmission or distribution lines by at least fifty per cent of the book value of such plant and machinery as on the 1st day of April, 2004". 5. The case of the assessee is that it is covered by clause (b) of sec. 80IA(4)(iv), since it is transmitting or distributing electricity by laying a net work of new transmission or distribution lines. There ....
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....ities of transmission and distribution of power, set up after 1.4.1999, as eligible activities for fiscal incentives available to infrastructure units. I am sanguine that this proposal will facilitate the restructuring and rehabilitation of the State Electricity Boards." Thus it is seen that the legislative intention was to afford the tax benefit to all undertakings which were engaged in any of the three activities. We also notice that the clauses (a) and (b) of sub. Sec. 4(iv) to sec. 80IA was introduced with effect from 1.4.2000 and clause (c) was introduced only with effect from 1.4.2005, i.e., they were not introduced in one go. Accordingly, in our view, the three clauses, referred above are mutually exclusive to each other. Our view finds support from the decision of the Jaipur Bench of the Hon'ble ITAT in the case of DCIT Vs. Maharaja Shree Umaid Mills Ltd., reported in (2009) 29 SOT 278, wherein the has observed as under:- "These three types of undertakings referred to in the said sub-clauses (a), (b) and (c) are different and independent of each other. Thus while dealing with one sub-clause, inference need not and cannot be drawn from the other sub- cl....
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....on to Circular No.779 dated 14.9.1999 issued by the CBDT, which is reported in (1999)(240 ITR (St.) 3). Paragraph 39.3.2 of the said circular explains the amendment brought in by Finance Act, 1999 by inserting sec. 80IA of the Act. For the sake of convenience, we extract below the relevant portions of the Circular, referred above. "39.3.2 To augment transmission and distribution of power in the country, similar benefits are also extended to undertakings setting up new transmission or distribution lines on or after 1-4-1999 on profits derived there from, as are available for generation or generation and distribution of power. The profits thereof shall be eligible for deduction if the undertaking sets up network of new transmission or distribution lines on or after 1-4-1999 but before 31-3-2003 under the restructured provisions of section 80-IA of the Income-tax Act. The deduction shall be confined to the profits derived from transmission or distribution of power through the new network". As per the Circular, the intention of the proviso is to restrict the deduction u/s 80IA only in respect of profit derived from transmission or distribution of power through the new....
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....(b) and the proviso there under, would be that the deduction u/s 80IA of the Act shall be allowed in respect of the profits derived from transmission or distribution of power through the new network. Had the intention of the parliament was to give deduction only to the undertaking which undertakes the work of laying network of new transmission or distribution lines and not to the undertaking which transmits or distributes the power, then clause (b) would have been worded accordingly and there would have been no necessity to insert a proviso for the said purpose. 13. In view of the foregoing discussions, we are not able to agree with the view entertained by the Ld CIT(A) with regard to the proviso to clause (b) of sec. 80IA(4)(iv) of the Act. Accordingly, we set aside the order of ld CIT(A) and hold that the assessee is eligible for deduction u/s 80IA(4)(iv)(b) of the Act in respect of the profits derived from distribution of power though the new network." 17. On seeing the facts and circumstances of the present case which is quite similar to the decision of the Hon'ble ITAT in the case of Kinfra Exports Promotion (supra), we are of the view that the CIT(A) has rightly a....
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.... provisions which did not have any bearing on actual working. 2, As regards addition of Rs. 2,83,29,387/- : 2.1 The ld. C1T (A)-20 erred in law and on facts in confirming the addition of Rs. 2,83,29,387/-being the amount received by the appellant company on back to back payment basis from M/s, NEG Micon (India) Private Limited. 2.2 The Id. CIT (A) - 20 erred in law and on facts in treating the amount of Rs, 2,83,29,387/-received as back, to back payment as business receipts and accordingly as the income of the appellant company for assessment year 2006 - 07." ISSUE NO. 1:- 21. Under this issue the assessee has challenged the treating of amount of Rs. 3,46,80,000/- received by the appellant company as 'Advance against Transmission charges' as income of the F.Y. 2005-06. The contention of the assessee is that the assessee has received the amount of Rs. 3,46,80,000/- as advance against transmission charges from M/s. Neg Micon (India) P. Ltd. The work could not be completed before the 31.03.2006. The said amount has been treated as liability in the balance-sheet as on 31.03.2006 which has been offered as its receipt in the F.Y 2006-07, therefore, in the....
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....undations as well internal civil and electrical constructions. It was for the sake of convenience that we as well as Mis. NEG MICON had availed the services of same contractors. It may further be stated that MIS. NEG MICON had thrust further responsibility upon us to the effect that we will be supervising the work and ensure that work is carried on in a satisfactory manner and up to the mark by these contractors even in the respect of work of the Mis. NEG MICON. Since these bills were just routed through they were neither accounted as expenses nor as income in our books. We may clarify that whatever bill we were receiving for MIS. NEG MICON works from the contractors. Since the contractors are issuing bills in our name, we in tum had been issuing bills to MIS. NEG MICON for the same amount. In the year under consideration we have received total labour bills of Rs. 2,83,29,387/- from 2 contractors for the works of MIS. NEG MICON and in tum had issued bills of similar amount in the name of MIS. NEG MICON as the amount was only to be routed through us by MIS. NEG MICON as the amount was only to be routed through us by MIS. NEG MICON and as the persons to who....
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.... a sum of Rs. 3,46,80,000/- was treated as advance at the year end since wind turbines in respect thereof could not be commissioned even till 31.03.2006 and were commissioned in the next year leaving a sum of Rs. 6,52,00,000/- being the receipts for transmission charges which sum has been credited n our profit and loss account." 4.2. The AO however, in para 7.3 at page 5 & 6 of the assessment order has rejected assessee's contention holding as under: "That though during the course assessment proceedings the assessee submitted bitts issued by parties to the assessee and corresponding bills raised by the assessee to MIS. NEG MICON From a perusal of the bills it is seen that parties have raised invoices in the name of the assessee and the assessee h payment made to the assessee itself, it is seen that MIS. NEG MICON has deducted TDS on the payment made to the assessee on the bills raised by it. However, the assessee has not deducted any TDS on the payments made to the4 sub-contractors. Since the assessee has not claimed these as expenses, the payments made to subcontractors do not come under the purview of section 40(a)(ia) of the Act. However, they are receipts of t....
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....laimed by assessee or it has been claimed by MIS. NEG MICON. Claim for TDS amount deducted on the above said payment, to some extent, will throw light on this issue. In the absence of any evidence supporting the claim of the assessee, it will be difficult for the tax authorities to accept the contention of the assessee. 25. At the same time, the assessee cannot be taxed on receipt to which it is not entitled to. Hence, we are of the view, the assessee may be provided with one more opportunity to substantiate its submissions with any credibility evidence. Accordingly, we set aside the order passed by the CIT(A) on this issue and restore the same to the file of the Assessing Officer for examining it afresh. ISSUE NO. 3:- 23. Issue no. 3 is in connection with the interest in view of the provision u/s 220(2) of the Act which is squarely in nature and nowhere required for any adjudication. ITA. NO. 1385/M/2012:- 24. The facts of the present case is quite similar to the facts of the case as discussed in ITA. No.4518/M/2011, therefore, there is no need to repeat the same. 25. The assessee has raised the following grounds: - "1. As regards treatment of Rs. ....
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....ady been decided in favour of the assessee against the revenue. ISSUE NO. 2:- 27. Under this issue the assessee has challenged the confirmation of the disallowance of Rs. 5,90,414/- towards site management development. It is necessary to advert the finding of the CIT(A) in this regard: - "6.7 I have perused the assessment order, remand report as well as counter comments on remand report of the appellant. Since the disallowance were made without bringing any adverse material on record or by carrying out adequate enquiries the matter was remanded to the AO to conduct enquiry u/s 250(4) on them. 6.8. The appellant in addition to what it had provided during assessment proceedings had offered to produce whatever further evidences required to substantiate its claim which was not called by the AO. Thus, in spite of having the mandate given by the CIT(A) vide his letter dated 18.11.2010 to examine the records and conduct further enquiry the AO submitted a remand report which is no different from he position as it existed at the assessment stage. The additions and disallowances were made at assessment stage in a summary manner without confronting the appellant. At re....
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....cantile system of accounting where all income and expenses are accounted on accrual basis and not on cash receipt basis whereby the advance lease rent of 2,75,20,000/- is accrued over the entire period of 25 years of the sub-lease. 7.4. The AO has made this addition at para 8.2 of page 11 of assessment order from which it is evident that as per TDS reconciliation statement assessee had received advance lease rent of Rs. 2,75,20,000/- out of which it had offered a sum of Rs. 6,44,800/- as its come and since according to the AO the appellant had not provided any basis or reason for not showing the balance amount except stating that the same is offered on pro-rata basis over a period of 25 years without giving any documentary evidence the balance sum of Rs. 2,68,75,200/- was added. 7.5. In course of appellate proceedings the appellant filed a paper book which was forwarded to the AO where it was explained that one of the business activity of the assessee is setting up of wind power project for which it had taken land on long term lease from MIDC which was developed and divided into plots and given to on sub-lease to various wind mill owners through wind mill turbine ....
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.... of addition of entire amount of lease advanced/deposit in A.Y.2002-03 and A.Y.2006-7. No doubt the appellant received advance amount of Rs. 2,75,20,000/- adjustable against annual lease over the entire lease period of 25 years. The appellant however claimed credit of entire TDS relatable to this amount in the current year. The AO therefore, invoked the provisions of Section 199 that unless the income from which the tax has been deducted has been offered in the return of income, no credit for such tax deducted or collected can be given. 7.8.1. The Assessing Officer, therefore has ought to make out the case that entire lease deposit is chargeable to year The appellant on the other head contends that based and the method of accounting followed and accepted by the Assessing Officer in the A.Y. 2006-07 and also by the Hon'ble CIT-9 Mumbai vide his order u/s.263 for assessment year only 1/25th of the amount should be assessed every year. 7.8.2 There is merit in the appellant's contention. The Hon'ble CIT-9 Mumbai passed an order u/s.263 for A.Y. 2006-07 dated 15.10.2009 wherein one of the issue addressed was this. The appellant claimed before the Hon'ble CI....