2020 (1) TMI 463

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....43(3) of the vide order dated 23.03.2015 and the total income was determined at Rs. 1,61,22,580/-. Aggrieved by the order of Assessing Officer, assessee carried the matter before Ld.CIT(A), who vide order dated 24.10.2016 (in appeal No.PN/CIT(A)-2/DCIT Cir/AN/68/2015-16/1946) dismissed the appeal of assessee. Aggrieved by the order of Ld.CIT(A), assessee is now in appeal before us and has raised the following grounds : 1] The learned CIT(A) erred in denying the claim of the deduction u/s 80IA(4) made by the assessee to the tune of Rs. 1,44,25,090/- on the ground that the assessee was not engaged in development of any infrastructure facility as laid down in section 80IA(4) without appreciating the correct facts of the case. 2] The learned CIT(A) erred in holding that the activity of construction of road signages and foot over bridges did not amount to development of infrastructure facility as stipulated in section 80IA(4) and hence, the deduction u/s 80IA(4) could not be allowed to the assessee for this year. 3] The learned CIT(A) failed to appreciate that the assessee had fulfilled all the conditions laid down for claiming deduction u/s 80IA(4) and hence,....

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....he fact that the said advertisement tax was payable due to pending litigation and stay was granted by the Hon'ble Madhya Pradesh High Court. The learned CIT(A) did not appreciate that the advertisement tax was essentially in the nature of a liability and would be payable either to Madhya Pradesh Government or to customers depending on the outcome of the litigations. 6.4] The learned CIT(A) confirmed the disallowance without appreciating that the appellant had not claimed any deduction of the advertisement tax in computing the taxable income. 3. Before us at the outset, ld. AR submitted that ground Nos.1 to 5 are on a single issue of denial of deduction u/s 80IA(4) of the Act and ground No.6 and its sub-grounds are with respect to disallowance u/s 43B of the Act. We first proceed to decide the first issue of denial of deduction u/s 80IA(4) of the Act. 4. During the course of assessment proceedings, the Assessing Officer noticed that the assessee had claimed deduction u/s 80IA(4) of the Act in relation to its income derived from the business of developing, maintaining and operating of foot over bridges and road signages. He further noticed that the assessee had ent....

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...., the issue be decided in assessee‟s favour. 8. The ld. DR on the other hand submitted that once the matter has been decided in favour of Revenue by the Co-ordinate Bench of Tribunal, then following the Co-ordinate Bench of Tribunal‟s order, no interference to the order of CIT(A) is called for. 9. We have heard the rival submissions and perused the material on record. The issue in the present grounds is with respect to denial of claim of deduction u/s 80IA(4) of the Act. We find that the Co-ordinate Bench of Tribunal vide order dated 16.10.2017 in ITA No.562/PUN/2015 on identical issue for A.Y. 2011-12 has upheld the order of Assessing Officer by observing as under:- "5. We have examined the documents on record and perused the order of Co-ordinate Bench of the Tribunal in assessee's own case for assessment year 2010-11. We find that Assessing Officer rejected assessee's claim of deduction u/s. 80IA(4) of the Act in respect of structure of foot over bridges and installation of road signages in assessment year 2010-11, as well. The assessee carried the matter in appeal before Commissioner of Income Tax( Appeals). The First Appellate Authority granted relief....

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.... Section 80IA. 3. As regards the submission of assessee that Circular No. 10/2005 dt. 16.12.2005 state that "for the purpose of Section 10(23G) and Section 80 IA, structure includes structures at the Ports for storage, loading, unloading etc. and only stipulation put by this circular is that the concerned authority should issue certificate that the said structures form a part of the Port and that such structures are built on BOT or BOLT Scheme and there is an agreement that the same should be transferred to the said authority on the expiry of the time stipulated in the agreement. The C.B.D.T being the competent authority for the purpose of delegation of legislation as law making power of C.B.D.T is understood, the ambit of circular should not be enlarged to include the activity into which the assessee is engaged. There cannot be any implied enlargement of sub-section. The stand of the assessee that structures of foot over bridge and road signals are necessary to develop infrastructural facility which is road, lack merit for simple reasons that road on which signals have been put was existing before signals were put. In this background, it was rightly observed that road sig....

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....instant case, the assessee has constructed three foot over bridges and has installed road signage for the Indore Municipal Corporation. The major part of income during the year was received on account of execution of work of road signage. Thus, the facts in the present case are identical to the one adjudicated by the Co-ordinate Bench in the group concern of the assessee. Respectfully following the same, we hold that the activities carried on by the assessee do not fall within the ambit of "infrastructure facility" defined in Explanation to section 80IA(4). Thus, the assessee is not eligible to claim deduction u/s. 80IA(4)." 6. A perusal of the above findings show that the issue in the present appeal is identical to the one already adjudicated by Co-ordinate Bench of the Tribunal in assessee's own case for assessment year 2010-11. The assessee has not placed on record any material to show any distinguishing features in assessment year under appeal. Therefore, we find no reason to take a different view. Following the order of Co-ordinate Bench, we hold that the assessee is not eligible for claiming deduction u/s. 80IA(4) in respect of construction of foot-over bridges and i....

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....claim of deduction of Rs. 16,97,494/- u/s 43B of the Act. 12. Aggrieved by the order of Assessing Officer, the assessee carried the matter before the CIT(A), who upheld the order of Assessing Officer. 13. Aggrieved by the order of CIT(A), the assessee is now in appeal before us. 14. Before us, the ld. AR reiterated the submissions made before the Assessing Officer and CIT(A) and further submitted that the assessee did not debit the advertisement tax to its Profit and Loss Account and the amount is only reflected in its Balance Sheet. He submitted that since the amount has not been debited to its Profit and Loss Account and has not been claimed as deduction, provisions of section 43B of the Act are not applicable to it and in support of his aforesaid contention, he relied on the decision of Hon‟ble Delhi High Court in the case of CIT Vs. Noble and Hewitt (I) (P) Ltd. decided on 10.09.2007. He also placed on record a copy of the aforesaid decision, which is placed at pages 164 and 165 of Paper Book. He therefore, submitted that if the assessee has not claimed the deduction on account of advertisement tax, provisions of section 43B of the Act are not applicable. 15. ....