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2020 (1) TMI 457
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....rd these cases together for the sake of convenience and brevity. 3. It is pointed out at both parties' behest that the assessee's cross-objection no.22/Kol/2019 suffers from 1016 days' delay in filing. It has placed on record its condonation petition and affidavit dated 24.07.19, inter alia pleading to have suffered huge losses in financial year 2016-17 resulting in default of loan payments followed by initiation of company petition no.170 of 2017 by the financial creditor, M/s RBL Bank Limited before the National Company Law Tribunal (NCLT), Kolkata Bench dated 30.03.2017 u/s 7 of the Insolvency and Bankruptcy Code 2016. The NCLT bench is stated to have approved the corresponding resolution plan effective from the date of disposal of the insolvency petition. Its case accordingly is that all this led to a lot of employees quitting employment giving rise to communication gap between the management and the staff concerned. This entire episode also resulted in overlooking of appropriated MAT and other computation under the provisions of the Act. 4. Learned counsel submits that these crucial facts have seen light of the day only after change in assessee's management only. Hon'ble....
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....s a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so." 5. Mr. Tulsiyan also cites their lordships' latter decision in National Thermal Power Corporation Ltd. vs. CIT (1998) 229 ITR 383 (SC) that the clinching statutory expression in section 254 "pass such orders thereon as it thinks fit" confers widest possible jurisdiction on the tribunal to determine the correct tax liability of an assessee arising out of an assessment as long as the relevant facts are already on record. 6. Learned CIT-DR vehemently opposes the assessee's condonation petition that the same fails to explain the foregoing delay to the satisfaction of the tribunal. He submits that the assessee's condonation pleadings nowhere indicate the relevant circumstances beyond its control. Mr. Nayak states that delay in filing of a lis can only be condoned if the party concerned makes it a fit case by way of explaining the corresponding reasons beyond its control. Case law Ramlal, Motilal And Chhotelal vs. Rewa Coalfields Ltd. (1962) AIR 361(SC) that fact....
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....al expenditure as well. The Assessing Officer then dealt with assessee's plea that capital raised through IPO has helped in achieving the growth and thus, it was an instance of extension of undertaking only. The Assessing Officer did not agree to the foregoing explanation. He came to assessee's details that the gross receipts had gone up 55.67% by raising share capital than 26.21% in the immediate succeeding assessment year even though no such capital had been raised. All this made him to hold that the assessee's capital did not have any direct impact on the gross receipts. He finally concluded that the assessee's impugned claim relating to its IPO did not qualify section 35D amortization since it neither pertained to time period "prior to commencement of business" nor in "connection with extension of undertaking or setting up of a new unit". He therefore disallowed the assessee's section 35D amortization claim amounting to Rs. 112,60,00,000/-. 10. The CIT(A) has deleted the impugned disallowance as under: 5. Appeal on ground no 2 is against the disallowance of Rs. 11260000/- u/ s 35D of the I T Act, 1961. The AO in the assessment order has rejected the claim of the ass....
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....nary of Farlex defines extension as "addition or enhancement", a prolongation. Similarly undertaking has been defined as engagement, project, pursuit, task, transaction and venture. In the instant case as already mandated by you, the assessee has invested some substantial amount Of money with a view to extend and expand its business. This is evident from our earlier submission and from the Audited Statement of Accounts. In Chiranjeevi Wind Energy Limited v ACIT (51 Taxman.com [2014]) the Hon'ble Chennai Tribunal held that investments for purposes of machinery etc. impugned expenditure Of the assessee may be deemed to be an extension Of undertaking (Photocopy of head note enclosed). It was similarly held in Ashok Leyland Ltd. v ACIT (6 SOT 200 [Chennai]) In the instant case, your good-self will appreciate that the proceedings of the IPO were utilized for the purposes of addition to fixed assets Of approximately Rs. 57 crores during the assessment year under consideration as well as succeeding assessment year by nearly Rs. 10 Crores. Similarly turnover of the company has effectively increased from Rs. 505 Cores in financial year 2008-09 to Rs. ....
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....machinery figures in financial year 2009-10 had opening written down value (WDV) of 59.66 crores and 58.74 crores which saw increase of Rs. 27.20 crores and 27 crores; respectively. His case therefore is that these figures sufficiently indicate a substantial expansion of assessee's undertaking. Mr. Tulsiyan then draws our attention to assessee's increase in turnover as well involving corresponding figures of Rs. 505.84 crores in 2009 rising to 628.88 crores in financial year 2009-10 relevant to impugned assessment year. He thus clarifies the effect of assessee's IPO in question involving raising of funds having come into play in relevant previous year only. Mr. Tulsiyan also refers to assessee's investments compiled in items no.1 to 8 suggesting that the corresponding projects are otherwise eligible for section 80IA deduction as well. 13. Next comes the assessee's detailed paper book page 7 in latter assessment year 2011-12 indicating 98.99 per cent increase in turnover in assessment year 2009-10 (supra). Mr. Tulsiyan took us to assessee's objects of share capital as well and submits that the funds raised related to investment in capital equipment only as per page 24 of the pape....
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.... to assessee's additional ground(s) the same at this belated stage. We find no force in Revenue's foregoing technical arguments in the light of hon'ble apex court's decision in National Thermal Power Corporation(supra) considered in the tribunal's special bench's decision in All Cargo Global Logistics Ltd vs. DCIT reported in (2012) 137 ITD 287 (Mum ITAT) (SB) that we can very well entertain such an additional ground for determining the correct tax liability of a tax payer provided all the relevant facts are already on record. This is not the Revenue's case that the case file does not contain the relevant details. We accordingly admit the assessee's petition seeking to raise to various additional grounds. 16. We thus proceed to deal with the instant issue of section 80IA deduction as well as MAT implications thereof and treat the former assessment year 2010-11 as the "lead" assessment year. 17. We notice from a perusal of the case file in former assessment year 2010-11 that assessee had filed its original return u/s 139(1) of the Act on 13.10.10. The department carried out a search in question in its office and other business premises on 28-29/10/2010. The Assessing Officer i....
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....ted to assessee's eligible projects undertaken (including project cost) that the revenue derived therefrom was very much certain without involving entrepreneurial or investment risk so as to qualify for development in view of section 80IA(13) explanation introduced by the Finance Act 2007 w.e.f. 01.04.2000. Reference was also made to CBDT's corresponding explanatory note dated 12.03.08 along with Finance Act (No.2) Act 2009 inserting Explanation to section 80IA(13) w.e.f 01.04.2000 as well as a similar memorandum issued in the same direction. The Assessing Officer finally concluded that the assessee's payments subject to section 194C TDS deduction sufficiently indicated that the concerned projects did not involve its business risk being a mere contractor only and therefore, he declined the impugned section 80IA deduction relief of Rs. 239063499/-. 21. The CIT(A) has reversed the assessment findings as under: 6. Appeal Ora ground 3 is against the disallowance Of Rs. 239063499/- 'a/s 80IA of the I T Act, 1961. Facts on issue are that the assessee filed its return of income u/s 139 on 30-03-2007, in which the assessee had claimed deduction u/s 801A(4) for an amount of Rs. 23....
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....der Section 153 A. h) Rights and Responsibilities Of Assessing Officer We have discussed the rights and responsibilities of the Assessing Officer while framing order in our submission dated 12th November, 2013 wherein too we have emphasized that if the claim Of the assessee is found to be correct, it is the duty Of the Learned Assessing Officer to allow the same instead Of trying to act on behalf the and reject the same on technical grounds i) Consideration of fresh claim by the assessee during appellate proceedings During the Course Of submission on the Of the following citations. we have legally summarized that an appellate authority can accept fresh claims from the assessee and adjudicate On the same. VI Ascent Hydro Projects Ltd v I TO IT(Mum-ITAT-37 CCH - 14) VII. JCIT v Hero Honda Finlease Limited (115 TTJ 752) (Del) VIII. West Gujarat Expressway Limited v JCIT (ITAT Mum - ITA No. 5904/Mum/2012). IX. Sri Lakhan Singh v ACIT ITA 1025/Bang/201 1 (Photocopy of citation is enclosed) X. Ahmedabad Electricity Limited v CIT 199 199 ITR 51. j) Assessment proceeding if no incriminating documents found during search and seizure ....
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....r him than is legitimately due from him." The above circular has been judicially noted and approved in many judgments and has been relied upon in support of the assessees' claim. l) Filing of revised claim: The assessee has argued that it is not a question of revised claim and hence the citation of officer in Assessment Order as well as in the remand report of Goetze India Ltd. vs. C.I.T. is not applicable. A distinction needs to be made between a fresh claim made during the assessment proceeding through a letter and revision of return. In a case where no claim was made in the return , the judgment in Goetze's' case is generally relied upon by the assessing officer, ignoring the Circular No. 14(XL-35) cited above. However, where necessary evidence in respect Of a claim is already on record but the quantum of deduction needs revision due to revision factors, the assessees' claim through a letter ought to be accepted. In such cases there is already a claim by the assessee and being no fresh claim, the judgment in Goetpe's case. with due respect shall not be applicable. The Allahabad HighCourt in CIT v. Dhampur Sugar Ltd. 90 ITR 236 (All.) made a distin....
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....ed to the extent of total income i.e. Rs. 6,12,05,468 on account Of lack of adequate total income. The said claim Of the assessee was accepted by the Learned Assessing Officer in his order dated 31/12/2007. However, when the return under Section 153A was filed, the amount of claim was inadvertently limited to Rs. 4,67,51,981 on account of amendments to the provisions of section 801A of the Income-tax Act 1961 or otherwise. However, subsequently, it was categorically held by various Courts / Tribunals all over the country in similar cases that relief under section 801A (4) was to be extended to the assessees on account of impelling circumstances and hence the revised return and a revised computation was filed simultaneously before the Learned Assessing Officer prior to the completion of assessment under section 153A of the Income Tax Act, 1961 whereby the claim was revised to Rs. 6,74,70 537 In this regard, we enclose herewith the following documents:- 8. Audited statement of accounts (Annexure-A) 9. Tax audit report (Annexure-B) 10, Computation of income, income-tax acknowledgement and assessment order with respect to original assessment dated 31/12/2007.....
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....but has not claimed the same. Thus even if the assessee has not been able to claim a benefit or deduction available to him under the Income Tax Act, 1961 on account of ignorance of law or otherwise, it is the duty of the Learned Assessing Officer to compute the total income correctly which mandates that the claims available to the assessee have to be given to him after it is brought to his notice or he has attained knowledge about the same. In the instant case, your good-self will appreciate, that the assessee has not brought forward any fresh claim or facts. In its original return, which was available before the Learned Assessing Officer and which was filed on 30th March. 2007, the assessee had claimed the entire amount of Rs. 6,74,70,537 as eligible deduction under section 801A(4) of the Income Tax Act, 1961. All the facts pertaining to the said deduction were filed before the Learned Assessing Officer during the course of assessment and the claim was accepted by the then Learned Assessing Officer by his Order dated 31st December 2007 and the deduction was allowed by him. Thereafter, all the facts were present before the current Learned Assessing Officer and if there was an in....
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....count of the fact that there exists the possibility of mischievous Calculation of the time allowed to the assessee for filing of the return under section 153A, it is humbly submitted. Therefore, the contention of the Learned Assessing Officer in trying to draw a comparison ejusdem generis of the provisions Of section 153A with the provisions of section 139 is far fetched and against the law of natural justice, it is humbly submitted. we therefore request your good-self to accept the revised return filed by the assessee before the Learned Assessing Officer as valid, it is humbly submitted 8. We would like to draw your kind attention to the judgment passed by the ITA T, Chennai Bench 'A', Assistant Commissioner of Income Tax, Central Circle-I (3) Chennai v. V. N. Devadoss (citation enclosed, Annexure-H) whereby it has been stated has not prescribed any time limit for issue of notice under section 153A or for filing of the return in response to notice issued under section 153A. Law provides that an assessee shall file his return in pursuance of the notice issued under section 153A within the time stipulated in the notice- But it is also available in the hands of the A....
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....ld be disallowed keeping in view the Principle of con consistency. Moreover, the AR has also filed a number of case Laws which are part of this order placed above. Keeping in view facts discussed above assessee's appeal on ground no 2 is allowed. 22. Learned CIT-DR reiterated the Assessing Officer's foregoing detailed reasoning. He invited our attention to assessee's revised return as well as computation as well which had not been accepted as valid as per the Assessing Officer's quoting section 139(1), (2), (4) and (5) of the Act (supra). Mr. Nayak quoted the relevant dates of assessee's original return, search, issuance of 153A notice and the return in response thereto (supra). It is further submitted that the assessee's revised return as well as revised computation came on 15.03.13 which could not have been accepted going by section 139(4) and (5) of the Act. He further states that even if the earlier assessment stood abated, the assessee could not have raised the impugned claim in section 153A proceedings since a search under the provisions of the Act does not confer any advantage on a taxpayer. Section 80AC is also quoted that an assessee is not entitled for Chapter-VI d....
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....ts u/s 158BC(1) and (ii) and as well as 2nd proviso thereto that "an assessee furnishing return under the said clauses was not entitled to revise his return. Learned counsel accordingly submits that there is no such embargo in the new scheme of search assessments u/s 153A to 153C of the Act, wherein, the time limit of filing of return or revision thereof has not been prescribed. It is reiterated that we are dealing with an abated assessment u/s 153A(1) 2nd proviso and therefore, the impugned assessment is supposed to be that of total income u/s 153A(1)(b) of the Act. This tribunal's common order in assessee's cases itself in assessment years 2005-06, 2007-08 and 2009-10 at page 50 of the paper book declining the Revenue's very substantive grievance has also been quoted as under: "13. In the return of income originally filed under section 139(1) on 30.09.2008 declaring total income of Rs. 10,08,54,860/- for the year under consideration i.e. A.Y. 2008-09, a deduction of Rs. 5,77,16,153/- was claimed by the assessee under section 80IA of the Act. The said return was accepted by the Assessing Officer under section 143(1) and no notice under section 143(2) was issued by him til....
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....h could form the basis of the said disallowance. Even the ld. D.R. has not disputed this position, which is clearly evident from the record including the assessment order passed by the Assessing Officer under section 153A read with section 143(3). We, therefore, find no infirmity in the impugned order of the dl. CIT(Appeals) deleting the disallowance made by the Assessing Officer on this issue and upholding the same, we dismiss Grounds No. 1 & 2 of the revenue's appeal." 25. Mr. Tulsiyan next submits that the assessee could not raise its impugned deduction claim in view of the corresponding statutory amendments followed by the CBDT's Memorandums (supra). Learned counsel states that the assessee's deduction claim of Rs. 23,90,63,499/- has been derived from its development agreements with M/s MPRRDC, M/s BSRDC, New Delhi projects involving varying sums of money. He takes us to assessee's paper book running into 1-857 pages comprising of all the relevant development agreements with project wise balance sheets. It is clarified that the assessee had not only deployed its plant and machinery in execution of the said development agreements but also 10% of the gross receipts stood withh....
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....ee had very well explained the reasons of having not raised the impugned scheme due to the corresponding legislative amendments in section 80IA followed by CBDT's explanatory memorandums. This tribunal in (2012) 22 taxmann.com 2(Hyderabad) ITO vs. S. Venkataiah also holds that an assessee's legally allowable claim which could not be raised owing to circumstances beyond its control and pressed later on by way of belated return, could not be declined on account of mere technicality. 29. Coming to the statutory aspect viewed from various legislative developments right from "block" to "search assessments" applicable up to 31.05.03 and w.e.f. 01.06.03 onwards; respectively, we find that the same sufficiently answer the Revenue's arguments. The former scheme of block assessment in section 158BCA(i) and (ii) read with 2nd proviso thereto made it clear that a person; who had furnished a return under this clause, would not be entitled to file a revised return. The legislature has nowhere employed such a restrictive expression in the new scheme of search assessment in section 153A to section 153C applicable w.e.f. 01.06.03. More particularly u/s 153A(1)(a) reads that "the provisions of th....
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.... order in ITO vs. M/s Simplex Projects Ltd. ITA No.194&251/Kol/2011 dated 17.01.2014 and its group companies' case in ITA No.1684/Kol/2011 and 1685/Kol/2011 dated 18.06.2013 in Simplex Som- Dutt Builders J.V. and Simplex Subhash J.V.; respectively, considered all the statutory amendments in the Act up to insertion of explanation after section 80IA(13) to hold that such development agreements are eligible for section 80IA deduction. We therefore conclude that the CIT(A) has rightly accepted the assessee's revised claim to allow its section 80IA deduction of Rs. 23,90,63,499/- in issue. The Revenue fails in its second substantive grounds in former assessment year 2010-11 involving ITA No.77/Kol/2016 therefore. 32. We proceed further to notice that the assessee's first substantive ground in its Cross Objection No.22/Kol/2019 seeks to exempt the above section 80IA deduction claim from the purview of section 115JB MAT computation. Mr. Tulsiyan quotes this tribunal's coordinate bench's decision in Neha Home Builders P. Ltd. vs. CIT (2019) 92 taxmann.com 102 and hon'ble jurisdictional high court's judgment in PCIT vs. Ankit Metals & Power Ltd. ITA 155 of 2018 dated 09.07.19 (pertaining....
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....ection 80IB(10) of the Act shall represent the income which is not taxable and hence the same should be deducted while computing book profit. In this regard the learned A.R. took support of the decision rendered by the Hon'ble Supreme Court in the case of CIT vs. D.P. Sandhu Brothers 273 ITR 1 wherein it was held that receipts which are not taxable cannot be brought to tax net under any other Section. Accordingly the learned A.R. submitted that the assessee should be allowed deduction under Section 80IB(10) of the Act while computing book profit. He submitted that the Mumbai Bench of the Tribunal has considered identical issue in the case of Neha Home Builders P. Ltd. vs. CIT (2018) 92 taxmann.com 102 and held that the assessee was entitled to deduction under Section 80IB(10) of the Act while computing book profit under Section 115JB of the Act. 8. On the contrary, the learned D.R. submitted the provisions of Section 115JB of the Act is applicable to all companies mentioned therein and hence the contentions of the learned A.R. that it would cover only "certain companies" is not in accordance with the mandate of the provisions. She further submitted that provisions of S....
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....hat provisions of Section 115JB would apply to the assessee who is claiming deduction under Section 80IB of the Act and deduction under Section 80IB(10) of the Act cannot be allowed while computing book profit under Section 115JB of the Act. The learned D.R. further submitted that an identical view has been expressed by the Ahmedabad Bench of the Tribunal in the case of Ganesh Housing Corporation Ltd. (supra). The learned D.R. further submitted that the decision in the case of D.P. Sandhu Brothers (supra) was rendered by the Hon'ble Supreme Court in the context of computation of capital gains and hence the observations made therein cannot be taken support by the assessee while computing book profit under Section 115JB of the Act. 11. We have heard the parties on this issue and perused the record. As submitted by the learned D.R., provisions of Section 115JB prescribe the methodology to collect minimum amount of tax and hence the tax so collected was called Minimum Alternate Tax. This provision is successor to sec. 115JA and sec. 115J, which were brought into the statute by the Parliament on noticing that certain companies are declaring huge book profits, but are not pa....
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....ions of sec.115JB of the Act. It is pertinent to note that the methodology to compute "Book Profit" is prescribed in sec. 115JB of the Act. In our view, the provisions of sec.115JB(5) protects the methodology of computing "Book Profit" prescribed in sec. 115JB of the Act and hence the it begins with the expression "save as otherwise provided in this section", i.e., except for the provisions specifically provided in sec. 115JB of the Act, all other provisions of the Act shall apply. In our view, this is the proper interpretation of sec. 115JB(5) of the Act. We notice that sec.115JB(5) of the Act was interpreted by the Hon'ble Supreme Court in the case of Rolta India Ltd.(supra) in the context of charging of interest u/s 234B of the Act. Admittedly provisions of Section 115JB does not provide for charging interest corresponding to sec. 234B and hence the Hon'ble Supreme Court held that the provisions of sec. 234B shall apply to the tax payable on the Book profit computed u/s 115JB of the Act, since sec. 115JB(5) states that "all other provisions the Act shall apply". There was no occasion for the Hon'ble Supreme Court to interpret the first portion of sec. 115JB(5), which states ....
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.... the difference i.e. the object of the legislation is to ensure a minimum tax of 7½% on the book profit as ascertained under Section 115JB is levied and collected from the companies whose payment of tax always without the application of this provision falls short of this amount of tax. 27. Though Sri Shankar, learned counsel for the appellant has called in aid not only the budget speech but also the circular issued by the board and the principles of promissory estoppel and legitimate expectation etc., we are afraid none of these principles are attracted for the simple reason that a budget speech being only an introductory to the bill in the Parliament and that in itself is not an end. 28. Though many decisions are roped in for interpreting this, we find there is no scope for interpretation in the present situation, as the provision of the statute should be given effect to, as it occurs and if there is only any ambiguity in understanding the statute then only the tool of interpretation should be called in aid. We do not find any competing or derogatory provision in Section 115JB vis-àvis Section 80-IB of the Act is concerned. 29. Section 80-I....
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....this aspect of the matter, in the present situation. 32. In so far as the reliance placed on the judgment of this court in the case of M/s United Breweries Ltd [supra] is concerned, while that was with reference to the provisions of Section 115JA and we are now examining the liability under Section 115JB of the Act. The scheme of charging under Section 115JB being totally different and not with reference to general rate, but with reference to a specified rate as indicated in Section 115JB itself i.e. 7½% of deemed income for the purpose of Section 115JB, we are afraid the judgment will not advance the case of the assessee in the present situation. 33. A budgetary speech while will have some significance for understanding a provision if there is any ambiguity, in the wake of clear language of the Section 115JB, in the first instance there is no ambiguity, in the second instance, the ambiguity sought to be introduced on certain premise which is not apparent and is only on a limited reading of the budget speech, at any rate a budget speech in itself cannot regulate or control the statutory provision, more so a charging section in a revenue yielding statute, we....
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...., are able to show either a nil taxable income or much reduced taxable income. Concession given under Section 80-IB is also one such and therefore no exception can be taken. Only in respect of the availability of a concession under Section 80-IB and to make it immune from the applicability of the provisions of Section 115JB of the Act. Both provisions operate in their own respective spheres and have to be given effect. 37. Secondly and more importantly, no provision of a statute can be so interpreted as to render it unconstitutional. If the argument of Sri Shankar, learned counsel for the appellant, is to be accepted, then it will result in a discrimination against such assessee- companies who have to pay tax under Section 115JB of the Act, but have no concession available under Section 80-IB, whereas the tax liability of the person under Section 115JB of the Act, who can claim concession under Section 80-IBof the Act gets reduced for the purpose of Section 115JB of the Act. It is, therefore, to avoid Section 115JB being rendered discriminatory and unconstitutional being violative of Article 14 of the Constitution of India, the contention of Sri Shankar for reading down or....
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.... provisions of section 210 of the Companies Act, 1956 and as has been arrived at by following the accounting policies, accounting standards and the methods and rates adopted for calculating the depreciation as has been adopted for preparing the profit and loss account as laid before the Annual General Meeting. Thus, the net profit as shown in the profit and loss account laid before the Annual General Meeting will be the book profit but this book profit is subject to the adjustment as laid down under Explanation 1, clauses (a) to (h ) and clauses (i) to ( viii). Clauses (iv), (v) and (vi ) no doubt state that the profit has to be reduced by the amount of profit eligible for deduction under section 80HHC, under section 80HHE and under section 80HHF, respectively. Clauses (i) to (viii) under Explanation 1 nowhere provides for the reduction of the deduction allowable under section 80-IB out of the book profit. Sub-section (3) states that the provisions of section 115JB(1) will not affect the determination of the amounts in relation to the relevant previous years to be carried forward to the subsequent year or years under section 32(2) or 32A(3) or 72(1) or 73 or 74A(3). Section 115JB(4....
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.... income, viz., 'Salaries', 'Income from house property', Profits and gains of business or profession, 'Capital gains' and 'Income from other sources'. After computing the income under the different heads as per the provisions of sections 14 to 59, there are certain income of other persons which are to be included in assessee's total income. They are being dealt with under sections 60 to 65 of the Act. Section 66 lays down that in computing the total income of the assessee there shall be included all the income on which no income-tax is payable under Chapter VII. Sections 67 to 79 falling under Chapter VII deal with the aggregation of the income and set-off and carry-forward of the losses while computing the total income of the assessee. However, Chapter VI-A deals with various provisions relating to the deductions to be made in computing the total income of the assessee. These deductions are to be made out of the gross total income. Gross total income is defined under section 80B(5) to mean the total income computed in accordance with the provisions of the Income-tax Act before making any deduction under Chapter VIA. The deduction under section 80-IB is allowable to the assessee on....
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....eliance on the decision rendered by the Coordinate bench in the case of Neha Home Builders (P) Ltd vs. CIT (2018)(92 taxmann.com 102), wherein it was held that the assessee is entitled for deduction u/s 80IB(10) of the Act while computing book profit u/s 115JB of the Act. On a careful perusal of the order passed in the case of Neha Home Builders (P) Ltd (supra), we notice that the same is related to the appeal preferred against the revision order passed by Ld CIT u/s 263 of the Act. In the above said case, the AO had accepted the claim of the assessee for granting deduction u/s 80IB(10) of the Act from the net profit, while computing "book profit" u/s 115JB of the Act. The Ld CIT followed the decision rendered by Hon'ble Karnataka High Court and Ahmedabad bench of Tribunal (both the cases referred above) and held that the assessee cannot claim deduction u/s 80IB(10) of the Act while computing book profit. The Tribunal took the view that the AO has taken a possible view and accordingly set aside the revision order. The Tribunal has taken the view that the decision rendered by non-jurisdictional High Court cannot trigger revision proceedings u/s 263 of the Act. Since the decision has....
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....lear that the assessee would not be entitled for section 115JB MAT exemption going by our findings in lead assessment year. The assessee's second and third substantive grounds in ITA No.46/Kol/2016 in Assessment Year 2011-12 are allowed for statistical purposes and rejected; respectively. 35. We stay back in Revenue's two appeals. Its third and second substantive grievance in both assessment years challenges correctness of the CIT(A)'s action holding that the assessee was entitled for exemption of income derived from joint venture involving corresponding sums of Rs. 21268081/- and Rs. 11916769/-; respectively. The assessee's fourth substantive ground in its cross objection No.22/Kol/2019 in former and fifth additional ground in latter assessment year ITA No.46/Kol/2016 seek MAT exemption thereupon. We deem it proper to reproduce the CIT(A)'s detailed discussion in the lead assessment year 2010-11 on this issue as follows: "7. Appeal on ground no 4 is against the disallowance of Rs. 21268081/- as exempt income earned by the assessee from different AOPS. In the assessment order the AO has given his findings as under: "While computing the total income, the assesse....
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....nt years, also to be treated as tax neutral. Thus, assessee's appeal on ground no.4 is allowed." 36. The factual position is no different in latter assessment year 2011-12 as well. The Assessing Officer declined the impugned exemption on the sole ground that the assessee had not placed on record the corresponding details of its joint ventures. We find from the former assessment year's assessment order dated 22.03.13 para 4.3 that there is no other reasoning whatsoever in the Assessing Officer's opinion to decline the impugned exemption. The CIT(A)'s order under challenge on the other hand holds that the assessee had filed all the relevant documents to the Assessing Officer which had nowhere been considered. We therefore observe that although the Revenue has argued on the basis of section 251(1)(a) that the power of CIT(A) to "set aside" the issue back to the Assessing Officer stands omitted w.e.f. 01.06.01, the impugned argument direction are against the law. The same deserves to be rejected since the assessing authority has been directed to go by the actual and than on estimation basis figures only. We thus decline the Revenue's foregoing arguments. Suffice to say, the Assessin....
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....'s order in DCIT vs. M/s Mcnally Bharat Engineering Ltd. I.T.A Nos. 147&109/Kol/2018 holds that such a retention money cannot be regarded as income even for the purpose of computing section 115JB book profits. Learned coordinate bench holds that retention money does not partake character of income till the time the contractual obligation in issue are fully performed to the satisfaction of the payer/other parties concerned. We adopt the very reasoning mutatis mutandis and direct the Assessing Officer to grant the impugned section 115JB MAT exemption to the assessee regarding retention money amounts in issue. Its above substantive grounds are accepted. The assessee's Cross-objection No.22/Kol/2019 partly allowed in above terms. 42. We are now left assessee's cross appeal ITA No.46/Kol/2016 in latter assessment year 2011-12. We make it clear that we have already decided almost all issues in preceding paragraphs. Its first substantive grievance is that the impugned section 153A proceedings are not liable to be invalid since initiated without any incriminating documents found during the course of search in question dated 28-29/10/2010. The CIT(A) rejected this legal plea for the reas....