TaxTMI 
TaxTMI 
2025 (4) TMI 1474
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....e of convenience and brevity. First, we take-up appeal of the assessee ITA.No.359/Hyd./ 2019 for the assessment year 2016-2017. ITA.No.359/Hyd./2019 - A.Y. 2016-2017 : 2. The assessee has raised the following grounds in the instant appeal : 1. "The order of the learned Pr. Commissioner of Income Tax is against the law, weight of evidence and probabilities of case. 2. The learned Pr. Commissioner erred in assuming that return of income was not filed on 17.10.2016. 3. The learned Pr. Commissioner ought to have appreciated that the verification of the return of income was made on 17.10.2016 itself, whereas, the 3 acknowledgment received on 18.10.2016 at 01.04 (AM) and should have further appreciated that the delay in receipt of acknowledgement is not attributable to the assessee. 4. The learned Pr. Commissioner ought to have appreciated that the acknowledgement is received with the date 18.10.2016, at 01.04 (AM) on account of last minute heavy rush on the income tax site, which may be on account of capacity of the site to handle the rush. 5. The learned Pr. Commissioner ought to have appreciated that the Income Tax Dashboard mentions the filing section as 139(1), there....
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....el for the Assessee further referring to the decision of Hon'ble Supreme Court in M.A.No.21 of 2022 dated 10.01.2022 submitted that, in view of the order of Hon'ble Supreme Court by considering Covid-2019 pandemic, the limitation for various proceedings pending under Courts/Tribunals has been finally extended up-to 01.03.2022 with a grace period of 90 days and if the Tribunal exclude the said period covered by Hon'ble Supreme Court, then, the actual delay is only 79 days, which is on account of collecting relevant information from the authorities including DGIT Systems, New Delhi to ascertain documents with regard to filing of return of income and generation of all relevant acknowledgements by DGIT Systems, New Delhi. Therefore, he submitted that, delay in filing of the appeal is neither wilful nor for want of any undue benefit, but, beyond the control of the appellant. Therefore, the delay in filing of the appeal may be condoned in the interest of justice. 4. The Learned CIT-DR Shri LV Bhaskara Reddy, on the other hand. submitted that, there is no merit in the petition filed by the appellant for condonation of delay of 445 days which is evident from the reasons provided therein a....
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.... appeal should not be condoned and appeal filed by the appellant should be dismissed as un-admitted. 5. We have heard both the parties and perused relevant reasons given by the appellant in the petition filed for condonation of 445 days delay in filing the appeal before the Tribunal. Admittedly, there is a delay of 445 days in filing the appeal before the Tribunal and this fact is not disputed by the appellant and the Revenue. The learned PCIT has passed order u/sec.263 of the Act on 29.03.2021 and in ordinary course, an appeal should have been filed on or before 28.05.2021. But the appellant has filed appeal on 16.08.2022 and thus, there is a delay of 445 days in filing the appeal before the Tribunal. The appellant has given two reasons for not filing the appeal before the Tribunal on or before the due date and the first and foremost reason given by the appellant is, order passed by the learned PCIT u/sec.263 of the Act dated 29.03.2021 was not noticed because the same might have been or may have been sent to the email ID [email protected] as per PAN data base and this fact has been confirmed by the learned PCIT in reply to RTI application. The appellant further contended that, t....
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....ned PCIT u/sec.263 of the Act dated 29.03.2021 on 16.08.2022 with a delay of 445 days and claimed that, said order was not served on the appellant or un-noticed by the appellant because as admitted by the learned PCIT, the same has been served to the email ID provided in the PAN database. 7. Let us, first advert to the reasons given by the appellant that it was not aware of the order passed by the learned PCIT u/sec.263 the Act. The learned PCIT has passed order on 29.03.2021 and if we go by the show cause notice issued by the learned PCIT dated 12.03.2021 which was served on the appellant, for which, the appellant has responded through it's Authorised Representative and furnished relevant evidences. The learned PCIT after considering the details submitted by the appellant, has passed the order u/sec.263 are the Act on 29.03.2021. The Assessing Officer has taken-up consequential assessment proceedings in pursuance to order of the learned PCIT u/sec.263 and issued relevant statutory notice under section 142(1) of the Act, for which, the appellant had filed its reply on 25.03.2022 and filed relevant details. The Assessing Officer has passed order u/sec.143(3) r.w.s 263 of the Act on....
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....d the proceedings. Therefore, in our considered view, the reasons given by the appellant in the petition that due to ill-health of the Managing Director of the company, the appeal could not be filed on or before the due date is devoid of merits and does not come under "reasonable and sufficient cause" going by the facts available on record. Therefore, on this reason, the delay of 445 days cannot be condoned. For this proposition, we draw support from the decision of Hon'ble Supreme Court in the case of Director of Income Tax-II, International Taxation vs., Western Union Financial Services Inc. [2023] 153 taxmann.com 304 (SC) and also decision of Hon'ble Bombay High Court in the case of Vama Apparels (India) (P.) Ltd., vs., ACIT [2-19] 102 taxmann.com 398 (Bom.-HC). 9. Coming back to the arguments of the appellant in light of Covid-2019 pandemic period and the order passed by the Hon'ble Supreme Court in MA.No.21 of 2022 dated 10.01.2022, Learned Counsel for the Assessee submitted that, if we exclude the delay covered in the order of Hon'ble Supreme Court, then, the actual delay is 79 days and, therefore, considering the short delay of 79 days, the appeal may be admitted in the int....
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....e assessment year 2016-2017 on 18.10.2016 admitting income of Rs. 28,06,85,620/- under normal provisions of the Income Tax Act, 1961 [in short "the Act"]. The assessee filed it's revised return of income on 23.08.2017 and admitted income of Rs. 7,00,46,470/- after claiming deduction u/sec. 80IA of Rs. 21.06,39,150/- towards profit derived from development of infrastructure projects. The case was selected for scrutiny under CASS and during the course of assessment proceedings, the Assessing Officer noticed that the assessee has executed various infrastructure projects and claimed deduction u/sec. 80IA of the Act for profit derived from the said projects and, therefore, called-upon the assessee to file relevant evidences including agreement, if any, entered with Central or State Government or any Local Authority for development of infrastructure projects etc., In response, the assessee has filed complete details of works awarded by various Central or State Government or any Local Authority for development of infrastructure projects and also furnished relevant agreements and work orders in respect of claiming deduction u/sec. 80IA(4) of the Act. The assessee has also supported it's cl....
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....of infrastructure projects as defined u/sec. 80IA(4) of the Act and also satisfied various other conditions provided therein except satisfying the conditions of entering into agreement with Central or State Government or any Local Authority in respect of two projects where the Assessing Officer has denied deduction. It was further submitted that, even in respect of projects where the agreement was entered into by the JV/Consortium, but the assessee being a constituent partner of the said JV/Consortium can claim deduction u/sec.80IA(4) of the Act. In this regard, the assessee relied upon certain judicial precedents including decision of ITAT, Hyderabad Bench, Hyderabad in the case of M/s. Sushee Hi-tech Constructions in ITA.No.26/Hyd./2009 dated 16.03.2012 and also decision of ITAT, Hyderabad Bench, Hyderabad in the case of M/s. Ramky Infrastructures in ITA.Nos. 472/Hyd./2009 dated 17.07.2013 and NCC-ECCI (JV) vs., ITO in ITA.Nos.124 and 125/Hyd./2009. 16. The learned CIT(A) after considering the relevant submissions of the assessee and also taking note of decisions of ITAT, Hyderabad Bench, Hyderabad in the case of M/s. Sushee Hi-tech Constructions in ITA.No.26/Hyd./ 2009 dated 16....
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....d had held in Para 9.2 as under :- "9.2. With regard to other issue, i.e. contracts awarded to JVs and whether the assessee can claim the same as a constituent of the above JVs, the coordinate bench of ITAT, Visakhapatnam in the case of Transstory (India) Ltd. (supra) held that the constituents of JVs are eligible to claim deduction u/s 80IA. For the sake of clarity, we reproduce the findings of the Bench in the said case, as under :- "Undisputedly the joint venture or the consortium was formed only to obtain the contract from the Government bodies. At the time of execution of the joint venture or the consortium, it has been made clear that work/project awarded to the joint venture would be executed by the joint venturers or the constituents. As per mutually agreed terms and conditions between them, it was also agreed that each party shall be responsible for the provisions of contract without limitation on resources required for the purpose of fulfilment of the scope and also solely responsible for the performance of its scope of work and shall bear all technical, commercial and facing risk involved in performing its scope of work. It was also agreed that none of the party sh....
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....r bill of the same amount to the Government. Whatever payment was received by the joint venture, it was accordingly transferred to their constituents. Therefore, the joint venture or the consortium was only a paper entity and has not executed in contract itself. They have also not offered any income out of the work executed by its constituents, nor did they claim any deductions under & 80-1A/4). Therefore, in all practical purposes, the contract was awarded to the constituents of the joint venturers through joint venture and the work was executed by them. As per provisions of s 80-1A/4), the benefit of deduction under this section is to be given only to the enterprise who carried on the classified business. Therefore, in the light of this legal proposition, the assessee is entitled for the deductions under s. 80-1A(4) on the profit earned from the execution of the work awarded to JV and consortium. " Respectfully following the above decision, we dismiss the ground raised by the revenue in this regard." The decisions of the jurisdictional ITAT are binding on the Revenue Authorities under its jurisdiction and in this case, the decision of the ITAT, Vishakapatnam and the Hon'....
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..... Kapadia & V.C. Daga, JJ.) in the case of Bank of Baroda vs H.C. Shrivatsava (256 ITR 385) as brought out in Para 16 of the judgment/findings are brought to note as they are on the issue of judicial discipline. Para 16 of the judgment reads as follows: "At this juncture, we cannot resist from observing that the judgment delivered by the Tribunal was very much binding on the assessing officer. The assessing officer was bound to follow the judgments in its letter and spirit. It was necessary for the judicial unity and discipline that all the authorities below the Tribunal must accept as binding the judgment of the Tribunal. The Assessing Officer being inferior officer vis-a-vis the Tribunal, was bound by the judgment of the Tribunal and the assessing officer should not have tried to distinguish the same on untenable grounds. In this behalf, it will not be out of place to mention that in the hierarchical system of courts which exists in our country, it is necessary for each lower tiers including the High Court, to accept loyally the decisions of the higher tiers. It is inevitable in hierarchical system of courts that there are decisions of the Supreme Appellate Tribunals which do ....
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....are infrastructure projects, but, the fact remains that in these projects, the assessee has not entered into agreement with Central/State Governments or any Local Authority or Statutory Body. Therefore, the Assessing Officer has rightly denied the benefit of deduction u/sec.80IA(4) of the Act for the impugned assessment year. Learned CIT(A) without appreciating the relevant facts simply allowed the relief to the assessee. The Learned DR, therefore, submitted that order of the learned CIT(A) should be set-aside and the additions made by the Assessing Officer in the above two projects for the assessment year 2016-2017 should be sustained. 18. Shri Mohd. Afzal, Learned Counsel for the Assessee, on the other hand, strongly relied on the order of the learned CIT(A). He submitted that the learned CIT(A) has rightly allowed the claim of deduction u/sec.80IA(4) of the Act to the assessee in respect of projects i.e., Holangi [BPLSRK- JV] and MJ-03 [SRK-KCL-JV] where the assessee has entered into agreement through JV/Consortium by relying on the decisions of ITAT Visakhapatnam Bench in the case of M/s. Transtroy India Ltd., 134 ITD 269 and the decision of ITAT, Hyderabad Bench, Hyderabad in....
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....nder : "Undisputedly the joint venture or the consortium was formed only to obtain the contract from the Government bodies. At the time of execution of the joint venture or the consortium, it has been made clear that work/project awarded to the joint venture would be executed by the joint venturers or the constituents. As per mutually agreed terms and conditions between them, it was also agreed that each party shall be responsible for the provisions of contract without limitation on resources required for the purpose of fulfilme nt of the scope and also solely responsible for the performance of its scope of work and shall bear all technical, commercial and facing risk involved in performing its scope of work. It was also agreed that none of the party shall assign its rights and obligations to any other party without written consent of other party. From a careful perusal of this joint venture agreement and the consortium agreement, it is evidently clear that the joint venture and the consortium was formed only with an object to bid contract. Once the project or contract is awarded to the joint venture or the consortium, it is to be executed by its constituents or the joint venture....
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....es, the contract was awarded to the constituents of the joint venturers through joint venture and the work was executed by them. As per provisions of s. 80-IA(4), the benefit of deduction under this section is to be given only to the enterprise who carried on the classified business. Therefore, in the light of this legal proposition, the assessee is entitled for the deductions under s.80- A(4) on the profit earned from the execution of the work awarded to JV and consortium." 20. In view of the above and since the learned CIT(A) has followed the decisions of Coordinate Bench of ITAT, Visakhapatnam and Hyderabad, Judgment of A.P. High Court besides the Judgment of Hon'ble Supreme Court referred to hereinabove in the preceding paragraph of this order, respectfully following the ratio laid down in the above decisions, we dismiss the ground raised by the Revenue in this regard. Accordingly, the appeal of the revenue is dismissed. 21. In the result, ITA.No.1415/Hyd./2019 for the assessment year 2016-2017 is dismissed. ITA.No.389/Hyd./2020 - A.Y. 2017-2018 : 22. The assessee has raised the following grounds in the instant appeal: 1. "The order of the learned Commissioner of Income....
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....sked the assessee company to furnish project-wise details of 80IA profit. In response, the assessee company filed it's project details. The Assessing Officer noted that the assessee company had carried-out 04 projects, out of which, 02 projects were awarded to JV/Consortiums in which the assessee company had share in MJ-03(SRK-KCL JF)-Kadapa project at 74% and Gadekal (DOTT-SRK JV) project at 26% which are noted by the Assessing Officer in his assessment order at page-2 of the order. The Assessing Officer after examining the submissions of the assessee, allowed the 80IA deduction only to the extent of assessee-company's proportionate share with respect to the works executed through JV/Consortium and disallowed excess claim of Rs. 3,95,39,247/- in respect of the above two projects. 24. On being aggrieved by the order of the Assessing Officer, the assessee company carried the matter in appeal before the learned CIT(A). 25. Before the learned CIT(A), it was the submission of the assessee that the assessee company has executed 04 projects viz., (1) MJ--03(SRK-KCL-JV)-Kadapa, (2) Marripadu (3) Nandipalli and (4) Gadekal (DOTT-SRK JV). Out of the above 04 projects, the assessee has exe....
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.... respect of 02 projects to the extent of proportionate work executed by it through JV/Consortium and had not disallowed the total deduction claimed by the assessee company u/sec.80IA of the Act. Therefore, the learned CIT(A), confirmed the order of the Assessing Officer in absence of any contrary material brought to his notice during the course of First Appellate Proceedings. He, accordingly, submitted that there is no infirmity in the order of the learned CIT(A) and, therefore, the order of the learned CIT(A) be confirmed in the interest of justice. 29. We have heard both the parties, perused the material on record and the orders of the authorities below. It is an undisputed fact between the parties that the assessee company is engaged in providing infrastructure facility by entering into various agreements with Central or State Government or any Local Authority for development of infrastructure projects. In response to the notices issued by the Assessing Officer, the assessee-company had furnished all the relevant agreements and work orders in respect of 04 projects for claiming deduction u/sec.80IA(4) of the Act. Since the assessee-company had furnished all the relevant agreeme....