Income Tax Appellate Tribunal - Delhi
Ito, Ward- 2(3), Gurgaon vs Kalindee Karthik Jv, Gurgaon on 5 February, 2018
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH "SMC", NEW DELHI
BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER
I.T.A. No. 7041/DEL/2017
A.Y. : 2013-14
INCOME TAX OFFICER, M/S KALINDEE KARTHIK JV,
WARD 2(3), VS. 2ND FLOOR, BUILDING NO. 9A,
GURGAON DLF CYBER CITY,
PHASE-III, GURGAON
(PAN: AABAK2827M)
(APPELLANT) (RESPONDENT)
Department by : Sh. Sampoorananand, Sr. DR
Assessee by : Sh. KVS Krishnan, Adv.
ORDER
This appeal by the Revenue is directed against the Order of the Ld. Commissioner of Income Tax (Appeals)-2, Gurgaon dated 01.9.2017 pertaining to assessment year 2013-14 on the following grounds:-
1. Whether the Ld. CIT(A) was right on facts and in law in deleting the addition of Rs. 46,26,375/- made by the AO by computing the profit of the joint venture @4% of the gross receipts as the assessee had given the payment to the persons specified u/s. 40A(2)(b) of the Income Tax Act, 1961.
1
2. Whether the Ld. CIT(A) was right on facts and in law in stating that JV is merely a pass through entity with minimal expenses, no tax liability can be attributed to JV as AOP.
3. That the appellant craves for the permission to add, delete or amend grounds of appeal before or at the time of hearing of appeal.
2. The brief facts of the case are the assessee has filed the return of income declaring NIL income on 24.9.2013. Later on , the case of the assessee was selected for scrutiny as per CASS cycle and a notice u/s. 143(2) of the Income Tax Act, 1961 (hereinafter referred as the Act) was issued on 05.9.2014. Subsequently, notice u/s. 142(1) of the Act alongwith a questionnaire was issued on 10.7.2015. In response to the notices, the A.R. of the assessee appeared the assessment proceedings from time to time and filed the details including copy of return, computation of income, Tax Audit Report in Form 3CB and CD and its annexure with balance sheet and profit and loss account. In this case, the assessee is a joint venture constituted between Kalindee Rail Nirman (80%) and Karthik Nirman Pvt. Ltd. (20%) vide an agreement dated 30.3.2011. This JV was constituted to take a contract from railways which consisted different kinds of works of civil, electrical, signaling and telecommunication engineering. The work was awarded to this JV and it has taken a PAN in the status of an AOP. For the AY 2013-14 assessee filed a NIL return on 24.9.2013 and the assessment u/s. 143(3) of the Act 2 was passed on 28.3.2016 wherein, the AO invoked section 40A(2)(b) of the Act held that the assessee has paid excessive charges to its constituent namely Kalindee and Karthik, therefore, a conclusion was drawn that the assessee should have earned 4% of profit i.e. Rs.46,26,385/- on the total revenue of the year amounting to Rs.11,56,59,638/- and assessed the income at Rs. 46,25,385/-.
3. Against the aforesaid assessment order, the assessee appealed before the Ld. CIT(A)-2, Gurgaon, who vide his impugned order dated 01.9.2017 has allowed the appeal of the assessee and deleted the addition in dispute.
4. Aggrieved with the impugned order, the Revenue is in appeal before the Tribunal.
5. At the time of hearing, Ld. DR relied upon the order passed by the AO and reiterated the contentions raised by the Revenue in the grounds of appeal.
6. On the other hand, Ld. Counsel of the Assessee relied upon the order of the Ld. CIT(A) and reiterated the contentions made before the Ld. CIT(A). He further stated that since the Ld. CIT(A) has passed a well reasoned order which does not need any interference on our part. Hence, the appeal of the Revenue may be dismissed.
7. I have heard both the parties and perused the relevant records available with us, especially the orders of the revenue authorities. I find 3 that Ld. CIT(A) has discussed the issue in dispute elaborately at page no. 6 to 10 vide para no. 4.1 to 4.5. For the sake of convenience, I am reproducing herewith the relevant findings of the Ld. CIT(A) as under:-
"4.1 In appellant's own case for the A.Y. 2011-12, the issue on the similar grounds is held to be in favour by CIT(A)-I, Gurgaon vide order dated 16.12.2015 in appeal no. 95/14-15. The CIT(A) has noted the facts in the appellant's case as under which are same for the year under consideration:-
"The appellant is a joint venture in the name of Kalindee Kartik JV. It has come into existence by a MOU signed on 09.11.2010 (copy enclosed) and subsequent agreement dated 11.03.2011 and registered on 14th March 2011 (copy enclosed). The JV participants are two entities namely, Kalindee Rail Nigam (Engineers Ltd)--80% and Karthik Nigam Pvt. Ltd - 2O%. Return was filed for the Asst. Year 2011-12 on 28.09.2011 declaring an income of Nil. The assessee has claimed income from contract job at Rs.1,86, 63, 005/- and equal amount shown as sub-contract expenses. 4 Audit fees of Rs.22,060/- has been claimed However, the return has been filed without claiming any loss at Nil.
The case was selected for scrutiny and the assessment was completed by AO alleging that the JV is shifting the profit to the partners by passing on 100% of the receipts. The AO has made a working based on his own assumption and presumptions that 4% of the gross earning of the JV as deemed profit and makes an assessment of income of Rs. 7,24,460/-. In the assessment order, the AO came to an erroneous conclusion that the JV is a separate entity and that it should have declared some income.
The appellant is highly aggrieved by the above order and has filed this appeal before your goodself. All the grounds are pertaining to the contention of the assessee that JV is only a pass-through, entity and does not exists on its own. There is no income of the JV. It has to be assessed at Nil. 5 The brief facts of the case 'are that the appellant is a joint venture. The same was formed so as to apply for the tender raised by South Eastern Railways. Copy of application/bid made to secure the tender is enclosed for your ready reference. This is basically a consortium of two firms joining hands based on their eligibility criteria to bag a contract and execute jointly based on defined allocation of work.
As a result of the above consortium, in the previous year relevant to the assessment year 2011-12, the JV was awarded a contract by South Eastern Railway [construction 'organization} vide Contract Agreement i.e. LOA NO.CE/CON/GRC/ER/3106/PT-II/ 6108 dated 11.10.2010 (copy enclosed) for the construction of 3rd line between Rajkharswan-Sini section-composite work of civil, electrical, signaling and telecommunication engineering under jurisdiction of Dy. Chief Engineer (Con-Il), Chakradharpur of South East Railway. The 6 total value of the contract is INR 64,14,55,217/-. This is the first year of operation of contract.
As per the agreement, the scope of the work was pre-defined and neither JV nor the two participants of the JV had the right to get the work executed by some other entity. The basic purpose of forming the JV was to jointly become eligible for the tender as individually none of the two could have bagged the same.
There is also a separate agreement dated 14.03.2011 (Copy enclosed) clearly defining the work which has to be done by each JV partner. The JV was formed to apply for the tender raised by South Eastern Railways. The work of both the JV partners is well defined in point no. 3 at page 3 of the JV agreement which is reproduced as under:- "3. The 'Parties' have resolved that the distribution of share, responsibilities, profits, losses and remuneration shall be as under:-
a) Lead Partner's share: 80% 7 Name: M/s Kalindee Rail Nirman (Engineers) Ltd Responsibilities:
i) Schedules for part - I (Civil Engineering)
ii) Schedule for Part - III (Signaling Works) (Part)
iii) Schedule for Part - IV (Telecommunication Works) (Technical, Financial & Other Obligations)
b) Other Joint Venture Partner's Share:
20%;
i) Schedule for part - II (Electrical Engineering)
ii) Schedule for Part - III (Signaling Works) (Part)
iii) Project Management
iv) Material Management
v) Site Management (Technical, Financial & Other Obligations) 8 Therefore from the above it is clear that the scope of each joint venture's task was distinctly outlined right from the inception of the contract. No member of the JV can rather assign or transfer the interest, right or liabilities of the contract and had to perform its work on its own and the respective partners are having all resources of an power, machines and technology to execute their part of the contract.
The assessee JV is formed only for this contract and will come to an end upon completion of the contract. The same is also mentioned in JV agreement at page no. 4 para 9 which reads as under:-
"9. DURATION OF JOINT VENTURE AGREEMENT It shall be valid during the entire currency of the contract including the period of extension of any and the maintenance period after the work is completed and Security Deposit is released."
Further it may be noted in the tender document itself that the work of the JV participants has been clarified. Each of the work done by JV participants is duly certified by the Indian Railways and then only it is billed to the JV which is further billed to the Indian Railways on exactly the same basis i. e. there is a back to back arrangement for the work done by each JV participant. Copies of both the invoices are enclosed for your ready reference.
9 The AO is his assessment order has made adhoc disallowance by applying 4% as deemed profit on total sales which is only on assumptions and without any basis.
Further the AO has relied on two case laws, the facts of which are totally different form the facts of the above case. In the cases relied upon by the A 0, the issue was relating to taxability of the income in the hands of AOPIJV for the work done by AOPIJV where the partners have already been assessed in their individual capacity. The work is done by AOP/JV and it was held that AOP alone is liable to tax on its business income as it alone did the business and incurred the expenditure. Whereas in the appellant's case, as explained above, the complete work is done by the JV partner's independently and they only have incurred all the expenditure. The role of the JV is only to route payments received from railways i. e. client to JV participants. The JV does not have any workforce, funds of its own nor any fixed assets as can be seen from the balance sheet for the year ended 31. 03.2011. 4.2 Based on the above facts, the CIT(A)-l has allowed the appeal of the appellant. I have given careful consideration to the arguments advanced in this regard and find that the said appeal is covered by appellant's own case for the A.Y. 2011-12 as the facts are similar and therefore following precedence, the appeal of the appellant is allowed.
4.3 Further decision in the case of CIT vs. Oriental Structural Engineers P. Ltd. and KMS Constructions P. 10 Ltd. [2015] 374 ITR 35 (Del) also supports the case of the appellant. In this case Hon'ble High Court has approved decision of Hon'ble ITAT (Delhi) which had recorded a finding that the joint ventures which have been formed only to secure the contract cannot be subjected to tax as Association of Person (AOP). The Hon'ble High Court elaborately discussed the case of Linde AG. Linde Engineering Division vs. DDIT [2014] 365 ITR 1 (Delhi) to come to this conclusion.
4.4 Further Hon'ble High Court (Delhi) in Income Tax Act no. 146/2010 decided on 11.02.2010 in this case of CIT vs. Oriental Structure Engineers Pvt. Ltd. has also observed that in the case of JV of such kind Section 40A(2) is not applicable. There are other judicial findings in this regard arriving at the same conclusion which are reported as CIT vs. SMSL UANRCL (JV) [2015] 372 ITR 425 (Bom). In all the above cases It has been held that where the constituent participants make a JV to secure a contract, which is merely a pass through entity with minimal expenses, no tax liability cab be attributed by holding the subject entity JV as AOP. No net profit on % bases can be taxed as has been done in this case.
4.5 In consideration of the settled position of the law and the precedence being in favour of appellant, the grounds of appeal of the appellant are allowed."
8. After perusing the aforesaid finding, I find that the issues in dispute are squarely covered by assessee's own case for the AY 2011-12 as the facts are similar and therefore, the Ld. CIT(A) has followed the same 11 precedence and rightly allowed the appeal of the assessee. I further find that Ld. CIT(A) has also respectfully followed the decision in the case of CIT vs. Oriental Structural Engineers P. Ltd. and KMS Constructions P. Ltd. [2015] 374 ITR 35 (Del) of the Hon'ble High Court of Delhi wherein the Hon'ble Court has approved decision of ITAT (Delhi) which had recorded a finding that the joint ventures which have been formed only to secure the contract cannot be subjected to tax as Association of Person (AOP). The Hon'ble High Court elaborately discussed the case of Linde AG. Linde Engineering Division vs. DDIT [2014] 365 ITR 1 (Delhi) to come to this conclusion. I also find that Ld. CIT(A) also relied upon the decision of the Hon'ble High Court (Delhi) in Income Tax Act no. 146/2010 decided on 11.02.2010 in this case of CIT vs. Oriental Structure Engineers Pvt. Ltd. has also observed that in the case of JV of such kind Section 40A(2) is not applicable. There are other judicial findings in this regard arriving at the same conclusion which are reported as CIT vs. SMSL UANRCL (JV) [2015] 372 ITR 425 (Bom). In all the above cases, it has been held that where the constituent participants make a JV to secure a contract, which is merely a pass through entity with minimal expenses, no tax liability cab be attributed by holding the subject entity JV as AOP. No net profit on % bases can be taxed as has been done in this case. I note that AR of the assessee in this case relied upon the order of the Ld. CIT(A) and Ld. DR relied upon the order of the AO. But the Ld. DR could not controvert the finding of the Ld. CIT(A) wherein he has followed the precedents of the Hon'ble High Court and Tribunal and Ld. DR also could not place any 12 contrary decision before us. In view of the above, I am of the considered view that the Ld. CIT(A) has passed a well reasoned order which does not need any interference on my part, hence, I uphold the same and reject the grounds raised by the Revenue.
9. In the result, the Appeal filed by the Revenue stands dismissed.
Order pronounced on 05/02/2018.
Sd / -
[H.S. SIDHU] SIDHU] JUDICIAL MEMBER Date 05/02/2018 "SRBHATNAGAR"
Copy forwarded to: -
1. Appellant -
2. Respondent -
3. CIT
4. CIT (A)
5. DR, ITAT TRUE COPY By Order, Assistant Registrar, ITAT, Delhi Benches 13 14