TaxTMI 
TaxTMI 
2020 (3) TMI 683
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....ential towers, etc. Assessee filed its return of income on 30.11.13 declaring total income of Rs. 98,38,37,660/-. Subsequently, the case was selected for scrutiny under CASS and notices u/s 143(2) and 142(1) were issued and served on the assessee. In response, AR of the assessee filed relevant information as called for. 4. A search and survey operations were conducted in the case of assessee as well as M/s Steelcon Infratrade Pvt. Ltd. (earlier known as M/s Dev Steels) and certain evidences were gathered during search. In view of the above, assessee was specifically asked to furnish the documentary evidence for the purchases made from M/s Steelcon Infratrade Pvt. Ltd. In response, assessee filed copy of bills issued by M/s Steelcon Infratrade Pvt. Ltd. and other self-made documents. Further in a letter, assessee submitted that the information found during survey in the premises of M/s Dev Steels / M/s Steelcon Infratrade Pvt. Ltd. relating to M/s Unity Infraprojects Pvt. Ltd. and denied that it has taken any bogus purchase bills from the companies owned by Shri Devang K. Gandhi and further Shri Devang K. Gandhi gave a statement about giving accommodation entries to various parti....
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....nvolvement of making investment, ii) shouldering technical risk, iii) liquidated damages and iv) employment of technical and administrative qualified team. 8. The above features were extracted by the AO by heavily relying on the decision of Hon'ble Bombay High Court in the Case of ABG Heavy Industries Ltd. (189 taxman 54 Bombay) and the decision of Division Bench of ITAT in the case of B. T. Patil & Sons, Belgaum Constructions Pvt. Ltd. reported in 59 SOT 61. 9. By referring to the works contract agreement and tender document, AO observed that the above said features were missing and therefore assessee is not falling under the eligible criteria of section 80IA of the Act and also he observed that assessee was compensated by the respective agencies by settling the running bills as and when it is raised by assessee. Therefore, AO treated the assessee as only works contractor and not a developer and accordingly, he disallowed the claim made u/s 80IA of the Act. 10. Aggrieved with the above order, assessee preferred appeal before Ld. CIT(A) and submitted before him a detail submission. In summary, assessee submitted that; a) Assessee has submitted all the relevant doc....
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.... increase in profit by treating the increased profit eligible for deduction u/s 80IA(4) by relying on the decision of Jurisdictional ITAT in assessee's own case. 12. With regard to deduction u/s 80IA(4), assessee filed a detail submission before Ld. CIT(A), which is reproduced below:- 2. During the captioned assessment year, the appellant has claimed deduction under Section 80IA(4) of the Act on account of 10 projects namely the following- Project Name Total Turnover Profit (PBT) MCGM TANSA PIPE LINE 59,90,75,279 3,89,39,893 MICROTUNNELING PROJECT 9,52,61,792 57,25,234 NAGPUR MUNICIPAL CORPORATION 50,60,55,044 3,79,54,128 SARDAR SAROVAR NARMADA NIGAM 57,27,71,604 4,00,94,012 WATER RESOURCES DEPT.-GOVT OF MP (HARSHI CANAL) 53,72,22,734 3,76,05,591 WATER RESOURCES DIVN., SHIVPURI (MAHUAR DAM) 60,64,94,635 4,85,19,571 SURATGARH SRIGANGANAGAR TOLL ROAD 80,50,65,791 11,27,09,211 JIND HARYANA BORDER TOLL ROAD 95,29,29,927 13,34,10,190 CHOMU MAHALA TOLL ROAD 1,19,16,71,432 16,68,34,000 SOLAPUR MUNICIPAL CORPORATION 59,98,49,447 4,49,88,709 Total 6,46,63,97,685 66,67,80,5....
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....ct and is not a developer as all the criteria as laid down in the decision of B.T. Patil are not fulfilled in the instant case. 8. The presence of following 4 criteria has been held as important by Hon'ble Division Bench of B.T. Patil in order to arrive at a conclusion that the assessee is a developer - * Involvement in making investment * Shouldering Technical Risk * Liquidated Damages * Employment of Technical and Administrative Qualified Team 9. So far as the criteria of "Liquidated damages" and "Employment of technical staff" are concerned, the learned A.O. after perusal of tender documents has stated in the assessment order that these two criteria are fulfilled. 10. With respect to other two criteria's i.e. "Involvement in making investment" and "Shouldering Technical Risk", the interpretation of AO widely differs from the interpretation as adopted by the appellant. According to the appellant, "Involvement in making investment" refers to providing security deposit, bank guarantee, paying interest of mobilization advance or advance for Plant & Machinery received from the principal agency, getting material or labour at it....
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.... of the same would be separately made by the NFR to UIL. This shows that UIL has been awarded a wholesome project and not just construction work. UIL is legally bound to source quality material as per the material specifications laid down in the agreements and hence liable for any deviation. The above clause shows that UIL was not merely undertaking a construction contract because if it was, it would not be given the task to source the material but only be given task to provide labour. Hence UIL is a developer and not a contractor." 12. Similarly second criteria of "Shouldering technical risk" have been interpreted differently by A.O. as against interpretation adopted by the appellant. In the view of the appellant, the "shouldering of technical risk" refers to adopting safety precaution at the time of execution of the contract. Whereas the A.O. is of 'the opinion that execution of work by the appellant has been done in accordance with design and specification provided by the principal agency and to that extent, technical risk has not been undertaken by the appellant. In government contracts, even if responsibility for 'design' has been undertaken by the assesse....
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....t in the said Explanation vide Finance (No. 2) Act, 2009, this decision certainly have persuasive value, in spite of the amendment, the legal position has not materially changed. Even in that decision, the relief has been granted to the assessee for the reason that overall responsibility has been taken over by the assessee, thus eligible to claim deduction and to that extent, it could be stated that the reliance on this judgement is not misplaced by the appellant. 16. In the decision of Koya & Construction Co. Pvt. Ltd., the facts were that the assessee had undertaken design, developing, operating and maintaining, financial involvement and defects, correction and liability period etc. In such scenario, it was held by Hon'ble Hyderabad ITAT that it cannot be simply treated as "work Contract". The learned A.O. is of the opinion that since in the aforesaid case, design has been the responsibility of the assessee, which is not present in the instant case. Further, in that case, the assessee has undertaken, developing, operating and maintaining of project, whereas in the instant case, operating and maintaining has not been the responsibility of the appellant. Because of the....
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....nditions prescribed u/s. 80IA(4) are fulfilled in terms of the principles laid down in the judicial pronouncements, the appellant is eligible to claim, irrespective of the nomenclature used for these type of contracts in the common parlance. 23. Further, we would like to state that, the appellant company is in the business of construction of Infrastructure facility and is claiming benefit u/s 80IA(4) of the Act, since the past many years. 24. Further, the said deduction u/s 80IA(4) of the Act was disallowed in various assessment years, but the same was allowed by the appellate authorities. The below mentioned table highlights the above mentioned fact - Sr. No Assessment Year Deduction claimed u/s 80IA Deduction allowed u/s 80IA Allowed before CIT(A)/ITAT 1. 2004-05 Rs. 1,99,098 1,99,098 ITAT 2. 2005-06 Rs. 1,10,65,845 Rs. 1,10,65,845 ITAT 3. 2006-07 Rs. 9,73,68,452 Rs. 9,73,68,452 ITAT 4. 2007-08 Rs. 10,67,64,503 Rs. 10,67,64,503 ITAT 5. 2008-09 Rs. 5,50,13,614 Rs. 5,50,13,614 CIT(A) 6. 2009-10 Rs. 4,60,25,314 Rs. 4,60,25,314 ITAT 7. 2006-07 to 2012-13 -B....
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....reement - the concessionaire shall bear all the cost in order to maintain the smooth functioning of the project during the construction period. Para 13.5.3 - the concessionaire shall have to borne the maintenance cost (also known as preservation cost) during the period of suspension. Para 16.3.2 - all the expenses incurred due to change in scope order during the construction period shall be borne by the concessionaire . Para 39 - the concessionaire shall be responsible for all defects and faults for a period of 120 days after completion of the project. Para 4.3 of the Concession Agreement - Concessionaire is liable to pay for the damages in case of delay of conditions precedent if the same are unfulfilled within a span of 180 days Para 17.8 - in case of delay in meeting the maintenance obligations, the authority shall be entitled to recover such damages from the concessionaire. Para 5. 5 of the Concession Agreement - Concessionaire ensures that the personnel engaged are properly trained Solapur Municipal Corporation Para 40.2 of section 5 of the tender document - rise or fall in costs shall not be compensated by the employer and shall be borne by the concess....
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....oncessionaire fails to achieve the project milestone within a period of 90 days, then the concessionaire shall be liable to pay damages at a rate of 0.1%., Para 24.1 of the Concession Agreement - Concessionaire undertakes to achieve financial closure for the project cost within 180 days of the agreement or else damages per day is liable to be paid Para 41.1- Concessionaire is liable to bear the increase in costs due to factors other than change in law Para 39 of the Concession Agreement - the concessionaire shall be responsible for all defects and faults for a period of 120 days after completion of the project. Para 12.2 - the concessionaire shall bear all the cost in order to maintain the smooth functioning of the project during the construction period. Para 4.3 of the Concession Agreement - Concessionaire is liable to pay for the damages in case of delay of conditions precedent if the same are unfulfilled within a span of 180 days Para 5. 5 of the Concession Agreement - Concessionaire ensures that the personnel engaged are properly trained Para 5.4- concessionaire shall undertake and employ foreign personnel at their own cost. Microtunneling Project ....
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....pletion of the project. Para 4.3. 17 of the tender document - the contractor shall have to make good in case there are any damages to physical property or injury to personnel for 12 months after completion of the contract. Para 3. 9 of the tender document - the contractor shall be solely liable for any damages caused during the completion of the project or post the completion of the project. Para 2. 45 of the tender document- the tender shall be submitted with the declaration that the concessionaire hqs successfully carried out large works of this nature and has adequate organization, machinery and experienced personnel to handle jobs of this type and magnitude. The technical staff should be available at site whenever required by engineer in charge. Para 3.22 of the tender document- the concessionaire will employ or produce evidence of having or has employed qualified technical person not below the rank of a Sub engineer/ graduate engineer from an institution recognised by the government of Madhya Pradesh and furnish all details to the engineer in charge in the following format. Nagpur Municipal Corporation Para A5.l of the tender document -....
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.... up to a sum of 2% of the contract price. Para 44 of the tender document - the concessionaire shall indemnify and keep them indemnified against all losses and claims for damage to physical property or personal injury. Para 70 - the concessionaire shall be responsible for the damages for 12 months after completion of the project. Para 65 of the tender document -the concessionaire shall be required to compensate the employer in case of any delay during the process of work. Para 68a - the concessionaire shall have to make good at his own expense within such period for the defects caused during the esteemed project Para 28 of the tender document - the contractor shall at his own cost hire skilled and experienced labourers for the job to be carried out at the site at hand. 6.3.2 I have considered the above chart and the tender agreements as submitted by the appellant. The said clauses as highlighted by the appellant indicate that all the 4 criteria as laid down by the decisions relied by it are fulfilled by the appellant. The AO has held that the appellant is not fulfilling the criteria of making investment and that the appellant is fulfilling the criteria of mak....
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....sessee as well as certain suppliers of bogus transaction and the biller Shri Devang K. Gandhi himself confirmed that it is accommodation entries and the biller retracted the statement after 13 months. According to him, such delay in retraction has no legal impact. Further, He submitted that assessee has not produced any evidence in support of the above said purchases to be treated as genuine. Further he supported the findings of Ld. CIT(A) on purchase being bogus and however, he objected to the findings of Ld. CIT(A) for allowing the above said addition u/s 80IA(4) of the Act by considering the same as part of eligible profit. He brought to our notice the findings of Ld. CIT(A) in page 15-16 of its order and further he submitted that it has no proof that the purchases made by the assessee are pertains to the eligible business of the assessee. 17. With regard to Ground No. 2 & 3, Ld. DR brought to our notice the detail findings of AO in its order and he submitted that assessee is only a work contractor and not a developer and he objected to the findings of Ld. CIT(A) in this regard. He further submitted that Ld. CIT(A) relied on the order of Jurisdictional ITAT and submitted that....
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....eld that assessee is eligible for deduction u/s 80IA(4) of the Act and further Ld. CIT(A) has independently analyzed the findings of AO and gave a clear finding that assessee's business is specific business as per section 80IA of the Act and it is eligible to claim deduction u/s 80IA(4) of the Act. 21. In the rejoinder, Ld. DR submitted that it is categorical admission by Shri Devang K. Gandhi and even in AY 2008-09, similar disallowances were made and it is in appeal before ITAT and further he opposed the submission of Ld. AR on the retraction of the statement of Shri Devang K. Gandhi. He submitted that the statement of Shri Devang K. Gandhi has been taken u/s 132(4) and it has got independent evidence value and in the retraction statement, it was stated that department exerted pressure which is not true, if so why Shri Devang K. Gandhi retracted after 1 year. Therefore, the reasons given in affidavit cannot be accepted. Even otherwise, assessee has not filed proper documents and details of transportation in support of the goods supplied by the parties. 22. With regard to deduction u/s 80IA, Ld. DR submitted that assessee does not have technical as well as business risk in t....
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.... 6. We have considered rival contentions, carefully gone through the orders of the authorities below and found from the record that the assesses is engaged in developing infrastructure projects such as roads, dam, bridges, subways and buildings etc. The assessee company has carried out development work awarded by certain Govt Authorities, mentioned above and the assessee claimed deduction u/s.80IA on the profits derived from the construction and development of the above, however, the AO did not convince with the submission of the assessee and disallowed the same and in appeal the CIT(A) upheld the action of the AO, against which the assessee is in further appeal before us. Now, we shall take into consideration the facts whether the assessee is entitled to deduction u/s.80IA(4). We found that the works were allotted to the assessee company by the authorities on the basis of tenders filed by the assessee with respective departments fulfilling all the conditions of Section 80IA(4) of the Act. Section 80IA(4) of the Act is reproduced as under :- "80IA (4A) This sec. applies to any enterprise carrying on the business of developing, maintaining and operating any infrastruc....
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....ion claimed u/s 80IA of the Act, heavily relying upon retrospective amendment of 2009 and the Third Member ruling of the Mumbai ITAT, in the case of B.T. Patil & Sons Belgaum Construction Pvt. Ltd. [SOT 171 (MUM.) (LB))( where the larger bench after considering the retrospective amendment of 2009, treated the assessee as a works contractor and thereby ruled against the assessee. By the impugned order, the Id. CIT(A) confirmed the action of the A.O. 9. The issue under consideration is whether the assessee is a work contractor or developer. To decide the same, it is imperative to analyze the benchmark ruling given by the Pune divisional bench vide order dated 28.02.2013 in the case of B.T. Patil & Sons Belgaum Constructions Pvt Ltd (ITA No. 1408 & 1409/PN/2003 AY 2000-01 & 2001-02), after drawing inference from the decision given by Hon'ble jurisdictional High Court in the case of ABG Heavy Industries Ltd., held as under: * The opinion of the Third Member of the Mumbai ITAT in the case of B.T. Patil has been overruled by the Hon'ble Bombay High Court that even a contractor is a developer. Thus, the law as interpreted by the Third. Member of the Mumbai ITAT i....
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....ssee has given guarantee period of maintenance for 6 months. The assessee had undertaken financial risk by making investment. The relevant para No. 14.4.2. of the tender/bidding document reads as under:- "Paras 14.4.2 - The earnest money deposited by the contractors} with his/ their tender will be retained by the Railway as part of the security deposit for the due and faithful fulfillment of the contract by the contractor(s}. The balance to make up the security deposit may be deposited by the contractors} in cash. Deposit Receipt. Pay Orders. Demand Drafts of any Scheduled Bank or in the form of irrevocable Bank Guarantee Bond from any Scheduled Bank or may be recovered by percentage @ deductions from the contractor's "on account bills". Provided a/so that in case of S defaulting contractors the Railway may retain any amount due to payment to the contractor on the pending "on account bills" so that the amounts so retained may not exceed 10% of the total value of the contract. The cash deposit recovered from the running account bills can be replaced by an irrevocable Bank Guarantee Bond from any scheduled Bank of equivalent amount in installments of Rs. 1 (one) lakh or ....
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....be treated not as a payment of contract amount but as an interest bearing advance at a rate of 18% p.a. Thus UIL has also faced financial risk. 16. Annexure 1(d) provided for sourcing of men and material. The relevant clause reads as under- 'The Contractor shall at his own expense provide unless specified otherwise in schedule all materials including cement, reinforcement steel and dowel bars required for the works." The contractor shall make his own arrangement for all construction plants and equipment tools Including spare parts fuel and consumable stores and all labour required to ensure efficient and methodical execution of the work. The quoted rates shall be inclusive of all charges as such items. The quoted rates shall be inclusive of all charges as such items." 17. From the above clause, we can gather that there was over all involvement of the assessee in the tendered project Such involvement in the spheres of material, labour and technical arrangements to be made for the project strengthens the claim of appellant to be a developer of the infrastructure and not a mere works contractor. 18. From the above clause, we also gather tha....
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.... project rests within UIL. 21. The overall reading of these clauses indicate that the assesses was to bear all risk related to technical' aspects and safety criteria's involved in the project. 22. As per the terms of the contract, the assessee was also liable for liquidated damages. The relevant clauses read as under- "In the event of any tenderer, whose tender is accepted refusing to execute the contract documents as therein before provided the Railway may determine that such tenderer has abandoned the contract and thereupon his tender and the acceptance thereof shall be treated as cancelled and the Rly. shall be entitled to forfeit the full amount of the earnest money and to recover the liquidated damages for such default. 23. In the tender document, the assessee was also made liable for requirement of programme and completion period which reads as under- "If the work does not commence within specified date of starting or If at the subsequent time the rate of execution falls below the specific programme as indicated above the Railway Administration (Construction organization) will have the power to determine the end of the contract at a....
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....ry manned by a qualified technician and Geologist for conducting following test on the soil and rock samples. The cost for setting up laboratory and testing should be taken into account while quoting rate, no separate payment will be made for this. Following tests for assessing rock mass rating by Bieniawski's Method which is very important for deciding the methodology of tunneling and type of temporary and permanent lining will be conducted as required by site in charge." 26. The assessee company was also responsible for liability in respect of workers claim - Annexure 4(c) which reads as under: - "Contract Labour Act: The Contractor shall observe all the provisions of the Contract Labour {Regulation and Abolition) Act 1970 and Central Rules 1971 or any statutory modifications or re-engagements thereof for the time being in force and any rules and regulations made their under in respect of all the persons directly or through petty contractors or subcontractors employed by him under this contract and shall indemnify the Railway from and against any claims under the Contract Labour (Regulation and Abolition) Act 1970 and Central Rules 1971 or any further rules ....
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....or shall make his own arrangements to procure blasting materials. It shall be the responsibility of the contractor to store the materials in accordance with the rules of the explosive Act or other rules framed by the Govt of India. He should possess/acquire proper license for transport, possession, and use of explosives and short firers licenses as per revised explosives Act, 1983. II" From the above mentioned extracts of the tender document it is very clear that the appellant is responsible for the procurement of materials and their safety under his custody. He is also a well established and viable developer as the tender provides for the essential eligibility for being awarded the project. Thus, it clearly establishes the worthiness of the appellant to comply with the project requirements. The appellant has to procure materials at his own cost which denotes the involvement in Investment activity of the project 33. As per the terms of tender document, the assessee has to undertake his own study for the purpose of undertaking the infrastructure project. It is essential that such a study be conducted since there involves diverse process such as soil exploration, ex....
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....has to assume financial risk also. 40. As per tender document executed by the assessee, the assessee has undertaken technical risk, the relevant clause reads as under:- Defective Risks - Annexure 2(a) "All defective works are liable to be demolished, rebuilt and defective materials replaced by the contractor at his own cost In the event of such works being accepted by carrying out repairs etc, as specified by the engineer the cost of the repairs will be borne by the contractor." Measures and Precautions to be undertaken - Annexure "The Contractor shall take all necessary measures and precautions and otherwise ensure that a the execution of the Works and all associated operations on site or off-site are carried out in conformity with statutory and regulatory requirements including those prescribed elsewhere in dt this document. The provisions specified in the Environment Management Plan Report shall be followed as guidelines. The Contractor shall take all measures and precautions to avoid any nuisance or disturbance arising for the execution of the Works. This shall wherever possible be achieved by suppression of the nuisance at ....
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....ete the Works, or from any other of his obligations and liabilities under the Contract," 43. As per the tender document, the assessee has ensured provision for suitably qualified personnel to fill key positions as required during contract implementation, UIL also provided personnel for the key positions specified in Section VIII, Schedule C of Bid Documents satisfying the qualification and experience requirements. The relevant para is enclosed as Annexure 4. 44. In view of the above factual position which emerges from tender/bid documents/agreement that the assessee was not only having responsibility for shouldering the financial risk, technical risk but also liability of liquidated damages, employment of technical and administrative staff etc. In other words the assessee has substantiated through the terms and conditions of tender/bidding agreements as to how it is a developer and not merely a contractor. 45. In view of the above, we conclude that the assessee was a developer and not merely a contractor, therefore, eligible for the claim of deduction u/s 80IA of the Act with regard to all the three projects undertaken during the year under consideration.....
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.... decision, we are inclined to accept the findings of Ld. CIT(A) and the revenue has not brought on record any information relating to the activities of the assessee that it has carried on any other activities, which are not covered u/s 80IA(4) of the Act during this assessment year. Accordingly, ground raised by the revenue is dismissed. ITA No. 7270/Mum/2017 (AY 2008-09) 29. Now we take up ITA No. 7270/Mum/2017 for AY 2008-09 filed by the revenue. Since the grounds raised in this assessment year are similar to that of AY 2013-14 filed by the revenue. Therefore, the conclusion drawn in above para no. 23 to 28 are applicable to this appeal as well. Accordingly, grounds raised by the revenue in this assessment year are dismissed. ITA No. 140/Mum/2018 (AY 2013-14) 30. Now we take up ITA No. 140/Mum/2018 for AY 2013-14 filed by the assessee on account of confirming the addition made AO with regard to purchases made from M/s Steelcon Infratrade Pvt. Ltd. 31 As discussed in the above paragraphs, Ld. CIT(A) has not verified in detail with regard to various documents and submissions made by the assessee before him. Considering the fact that he is convinced with the submissio....
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....ssessment u/s 143(3) r.w.s 153A of the Act and submitted that AO has reopened this assessment with the borrowed satisfaction and non-application of mind. In this regard, he relied on the case of PCIT vrs. Saudiman Investment Pvt. Ltd. 93 taxman 153(Bom). He further submitted that AO reopened this assessment by change of opinion after completing the assessment u/s 143(3) r.w.s 153A of the Act. He further brought to our notice page no. 6 of the order of Ld. CIT(A) in which assessee has informed Ld. CIT(A) that the statement recorded by Mr. Ganpat Sanghvi, who gave statement that he has provided accommodation entries to 10 companies which is listed at page no. 6 of the order of Ld. CIT(A), as per which he has provided accommodation entries to Unity Infratrade Pvt. Ltd., whereas the name of the assessee is Unity Infraproject Pvt. Ltd. Therefore, it is a case of mistaken identity. Ld. AR further submitted that it is the duty of the AO to verify whether such transactions were carried on with the assessee or to its sister concern. On merit, he submitted that whole addition is based on statement of Mr. Ganpat Sanghvi and there is no other material available on record. With regard to Ground....