AI Drafter 
TaxTMI 
TaxTMI 
2017 (11) TMI 1892
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.... failed to file any objection to the issuance of notice u/s. 148 of the Act within the stipulated time as per the provisions of the ct despite availing ample opportunity by issuing notices. 2. On the fact and circumstances of the case and in law, the Ld. CIT(A) erred by treating the order of the AO as ultra vires and annulling the order of the Assessing Officer by ignoring the fact that if conscious application of mind is made on the relevant facts and material available or existing at the relevant point of time while making assessment and again a different or divergent vie is sought, it would tantamount to change of opinion whereas, in the case of the assessee, no conscious attempt was made on the issued involved for reopening the case which tantamount to mistake in not considering the relevant point or proposition and hence, it would not be regarded as 'change of opinion'. 3. In fact and circumstances of the case and in law, the Ld. CIT(A) erred by allowing deduction u/s 80IA of the Act to the assessee as the assessee has not derived income by developing road rather the assessee has been paid off for a fixed amount by the Authority after compliance of provisions....
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....not find any cause to endorse the action of the AO in denying deduction u/s. 80IA to the appellant. In view of the foregoing and on consideration of the submission of the appellant on the issue (supra), the AO is directed to allow deduction as claimed u/s 80IA of the Act." The Revenue, being aggrieved, is in an appeal before us. 6. Before us both parties relied on the order of Authorities Below as favourable to them. 7. We have heard the rival contentions of both the parties and perused the material available on record. At the outset, we find that in the identical issue in respect of project awarded by Konkan railway, the Hon'ble Tribunal in assessee's own case has decided the identical issue in favour of assessee in ITA No.251/Kol/2011 for A.Y 2007-08 dated 17.01.2017. The relevant operative portion of this order is reproduced below:- ... ...It was the further submission that the issue was squarely covered by the decision of the Coordinate Bench of this Tribunal in the case of assessee's sister concern in the case of Simplex Som-Dutt Builders J.V. and Simplex Subhash J.V. in ITA NO.1684/Kol/2011 and 1685/Kol/2011 dated 18.06.2013 wherein the Coordinate Benc....
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....wings, specifications of the department etc. The survey is to be done as per investigation and designing criteria of the Irrigation Department. This is also as per article 11.1 of the agreement. The assessee is to procure the materials independently and those materials are to confirm to the specifications provided. The assessee is also to make its arrangements for storage of the materials. This is as per article 107 of the agreement. Thus, admittedly the work done by the assessee falls in the exclusion provided to the meaning of the work given in the Explanation to section 194C of the Act. Once it falls outside the meaning of term 'work' for the purpose of section 194C, the question that arises is can it be said that the assessee is doing the work contract as provided in the substituted Explanation in section 80IA after sub clause (13)?, The answer would be emphatic no. 12. This is because the assessee is doing the activity of development of an infrastructure facility as provided under section 80IA(4). The project is a Turnkey project and it cannot form nor have a character of a works contract. Works contract would be applicable to the repairs and maintenance of an existin....
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....works' and 'contract' is defined in the provisions of section 194C of the Act. If a particular word or term is not defined in the specific section then, one could go to other sections in the said Act where the definition would be available to draw a meaning to the said terms. In the provisions of section 194C of the Act, work has been given an inclusive definition but in the subsequent portion it has excluded the manufacturing or supplying a product according to requirement or specification of a customer by using material purchased from a person other than such customer. As has been specified by the Ld. AR, the assessee is doing contract work but that work is according to the requirement and specification of the customer and the same has been done by using materials purchase from third parties other than the customers. Thus, though the assessee is doing a works contract the same would not fall within the meaning of the word 'works contract' for the purpose of the Act due to the exclusion provided in the meaning of 'work' in section 194C of the Act. The issue raised by the Ld. CIT that the assessee is not doing the development work but is only doing the contract also does not stand ....