TaxTMI 
TaxTMI 
2022 (9) TMI 1181
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....TA.No.1161/Del./2017 for the A.Y. 2011-12 also, to which, the Ld. D.R. has objection. 2. We, therefore, cull-out the relevant facts from ITA.No.206/Del./2017 for the A.Y. 2011-12 as under : 2.1. Briefly stated facts of the case are that the assessee company is a Government of India undertaking and is engaged in the execution of Civil Engineering, Electrical and Communication and Turnkey contract, In India as well as Abroad. The assessee filed its return of income for the A.Y. 2011-12 electronically declaring total income at Rs.56,51,36,481/-. The case of the assessee was selected for scrutiny and assessment was framed under section 143(3) of the I.T. Act, 1961 vide order dated 18.10.2013 and the total income of the assessee was determined at Rs.5,86,65,31,285/-, inter alia, by disallowing Rs.1,36,47,143/- under section 14A, Exclusion of Income under DTAA Agreement at Rs.4,38,64,96,302/- and denying claim of deduction under section 80IA(4) amounting to Rs.70,79,44,520/-. On the aforesaid disallowances/additions made, the A.O. vide penalty order passed under section 271(1)(c) of the I.T. Act, 1961 dated 26.03.2015 levied the penalty of Rs.153,24,26,390/-. 2.2. Aggrieved by t....
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....i.e., disallowance under section 14A at Rs.1,36,47,143/-, Exclusion of Income under DTAA Agreement at Rs.4,38,64,96,302/- and denying claim of deduction under section 80IA(4) amounting to Rs.70,79,44,520/-. He submitted that on the aforesaid additions, the A.O. levied the penalty under section 271(1)(c) of the I.T. Act, 1961 at Rs.153,24,26,390/-. 5.2. As far as the penalty on the disallowance of Section 14A is concerned, the Learned Authorised Representative for the Assessee submitted that the Ld. CIT(A) vide Para No.5.3.3.7 at page-17 of his order has deleted the penalty. He submitted that on the aforesaid deletion of penalty, the Revenue is not in appeal. 5.3. With respect to second addition being Exclusion of income under DTAA Agreement, Learned Authorised Representative for the Assessee submitted that the Ld. CIT(A) vide Para 11.1 at pages42-43 of his order though has not deleted the penalty, but, has directed the quantum of penalty to be revised depending on the tax credit to be given with respect to exclusion of income under DTAA Agreement. He further submitted that when the matter on the aforesaid issue was carried before the ITAT in assessee's own case vide ITA.No.24....
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....submitted that the Hon'ble ITAT was not benefitted by taking into account the Explanation to sub-section to (13) of Section 80IA of the Act having been inserted by the Finance Act, 2009, with retrospective effect from 01-04-2000 categorically restricting thereby its applicability to works/contracts awarded by any person (including Central and State Governments). 2.3. In order to prove the aforesaid humble submission (Para 2.2), the relevant extracts from the cited consolidated orders of the Hon'ble ITAT dated 28-01-2022 are extracted below verbatim for your Honours' kind consideration 2.3.1. A.Y. 2006-07 "ITA No.2401/Del/2013 A.Y. 2006-07 : (Assessee's Appeal) Disallowance of Deduction u/s 801A: 2. The assessee earned profit from development of infrastructure project at Srinagar- Barahmulla Rail Project in J&K and PMGSY Patna project wherein roads have been developed in Bihar. The assessee earned total profit of Rs. 36,14,02,300/- and claimed the same as deduction u/s 80IA of the Income Tax Act, 1961. 3. Aggrieved with the confirmation of disallowance of deduction by the Id. CIT(A) who held that the assessee is not e....
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.... which shows that all attributes of development were not present. Making a bald assertion that assessee was a contractor does not serve any purpose. Merely using the terms contractor in the agreement would not make any difference as what has to be seen is the substance. Anybody who enters into a contract is closely called a contractor but that does not mean that such person entering into the contract cannot be developer. The other agreement with MSRDC shown to us as one as instance clearly shows mat appellant was engaged in investigation, planning, organizing and construction of road over bridge within the stipulated time. If the activities undertaken by the appellant cannot be termed as development, we are afraid then what can be called as development? Therefore, we do not have any hesitation in holding in view of the arguments advanced from the sides of both parties and decisions relied upon that appellant was developing infrastructure facility and claimed deduction u/s 801A in respect of income derived from the development of infrastructure facilities. Explanation inserted below Section 80IA(13) does not prevent developers in claiming deduction u/s 80IA(4). Similarly showing the....
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.... 2.5. It is most humbly submitted that in pursuance of Article 47 of the Constitution of India, the Union Government while discharging its sovereign functions awarded different Work Contracts to Appellant assessee during the Financial Year 2010- 11, corresponding to A.Y. 2011-12 under consideration of Your Lordships. It is further submitted that the ownership over the projects awarded to the Appellant was retained by the Government itself. 2.6. It is most humbly submitted that Article 47 is a vital part of Directive Principles of State Policy obliging the State inter alia to raise the standard of living. Therefore, in pursuance of these Directives, various Government organs including the Indian Railways have awarded multiple contracts to its wholly owned subsidiaries being the Appellant Assessee for carrying out various development activities including the projects in respect of which the Appellant incorrectly claims to be a developer within the meaning of Section 80IA of the Act. 2.7. My humble submissions are fortified by Page 118 of Indian Railways Annual Reports and Accounts for the corresponding F.Y. being 2010-11 wherein it has shown its land, building a....