Income Tax Appellate Tribunal - Mumbai
Supreme Infrastructure India Ltd, ... vs Assessee on 25 March, 2014
आयकर अपीऱीय अधिकरण "E" न्यायपीठ मुंबई में ।
IN THE INCOME TAX APPELLATE TRIBUNAL "E" BENCH, MUMBAI
BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI AMIT SHUKLA, JM
आयकर अपीऱ सुं./I.T.A. No.4996/M/2012 (AY:2009-2010)
आयकर अपीऱ सुं./I.T.A. No.4997/M/2012 (AY:2010-2011)
Supreme Infrastructure फनाभ/ Asst. CIT, Cir -24 & 26,
India Ltd., 8, Bhavani Services Vs. Mumbai.
INDL Estate, 3 r d Floor, Opp. IIT
Main Gate, Powai, Mumbai -
400076.
स्थामी रेखा सं ./ PAN : AAACS 7320 J
(अऩीराथी /Appellant) .. (प्रत्मथी / Respondent)
आयकर अपीऱ सुं./I.T.A. No.5447/M/2012 (AY:2009-2010)
Asst. CIT, Cir -24 & 26, फनाभ/ Supreme Infrastructure
Mumbai. Vs. India Ltd., 8, Bhavani
Services INDL Estate, 3 r d
Floor, Opp. IIT Main Gate,
Powai, Mumbai-400076.
स्थामी रेखा सं ./ PAN : AAACS 7320 J
(अऩीराथी /Appellant) .. (प्रत्मथी / Respondent)
अऩीराथी की ओय से / Appellant by : Shri Rakesh Joshi
प्रत्मथी की ओय से/ Respondent by : Shri Girija Dayal, DR
सुनवाई की तायीख / Date of Hearing : 25.03.2014
घोषणा की तायीख /Date of Pronouncement : 09.04.2014
आदे श / O R D E R
PER D. KARUNAKARA RAO, AM:
There are 3 appeals under consideration involving two assessment years. Out of three appeals, there are cross appeals for the AY 2009-2010. In assessee‟s appeals, grounds are identical for both the years and the issue relates to allowability of deduction u/s 80IA(4) of the Act to the assessee, who is a constituent of joint venture only for the purpose of getting a contract and when the assessee and when the assessee executed the contract to the extent of 60%.
22. Briefly stated relevant facts of the case are that the assessee is engaged in the business of developing, operating, maintaining & constructing infrastructure facilities. There was a search action on the assessee u/s 132 of the Act. Assessment was completed u/s 143(3) r.w.s 153A of the Act and the assessed income was determined at Rs. 67.07 Crs against the return income of Rs. 24.50 Crs. Among various additions, denial of deduction u/s 80IA is one conclusion, which is the subject matter of dispute before us. Assessee formed a joint venture named Supreme MBL JV along with MBL infrastructure limited. The joint venture agreement dated 26.8.2006. The joint venture was entered into for the purpose of preparing and submitting the tender for the work of „Western Transport Corridor Tumkur - Haveri NH-4 Project Package-3, Rehabillitation & Upgrading of Chitradurga Section of NH-4 (Km 189 - Km 207). An agreement entered with NHAI in this regard after obtaining the contract by the joint venture (JV). As per the agreement of the JV, the partners show participating share in the contract as given in Article-4 of the JV agreement (page 1 of the paper book) is the pre-determined. Assessee‟s share is 60% (Supreme Infrastructure (India) Ltd) and 40% is to be executed by MBL Infrastructure Ltd, other constituents of the JV, who is not assessed to tax in Bombay. AO denied the benefit of deduction u/s 80IB (4) on the reasoning that the signatory with the NHAI is the joint venture company and not the assessee, the constituent of the JV. On examining the agreement entered into the compliance of the agreement mentioned in 80IA(4)(1)(b), dated 3.3.2007 drawn between the NHAI, joint venture company and M/s. Supreme - MBL JV. AO concluded by mentioning that the assessee acted as a sub-contractor on behalf of M/s. Supreme - MBL JV. The relevant para from the assessment order reads as under:
"Thus, M/s. SIIL has acted as sub-contractor on behalf of M/s. Supreme - MBL JV. Hence, the assessee is not entitled to claim of deduction as per the provisions of section 80-IA(4) of the IT Act, 1961 as the assessee has acted in the nature of sub- contractor."
3. During the proceedings before the first appellate proceedings, assessee made various submissions and relied on the decision of the Tribunal in the case of ITO vs. UAN Raju Construction (48 SOT 178) for the proposition that the assessee, being a constituent of JV, is entitled to deduction when the work was actually awarded by the JV but it was also executed by the constituents of the JV. Para 8.1 to 9.2 of the 3 impugned order are relevant in this regard. The CIT (A) has extracted the paras from the said order of the Tribunal which discussed elaborately the meaning of the Joint Venture relying on the judgment of the Hon‟ble Supreme Court in the case of Faxir Chand Gulati vs. Uppal Agencies (P) Ltd [2008] 10 SCC 345. It was mentioned that as per the interpretation of the joint venture, arrangement is unique and understanding of the constituents in JV is important to decide the issue. He accordingly summed up by stating that the assessee is the main executor of the product. Assessee claimed the deduction in respect of the income earned by him out of the contract entered into by the JV with NHAI. In these circumstances, assessee is found entitled to deduction u/s 80IA(4) of the Act. Para 9.5 of the CIT (A)‟s order is relevant for conclusions of the CIT (A) which reads as under:
"9.5. I have considered the issue. I have also gone through the assessment order and the appellant‟s submissions. In this case, the agreement with the NHAI was entered by the Joint Venture entity namely Supreme MBL JV which is a separate taxable entity. The appellant and the joint venture entity are two separate taxable entities. The taxable entity which entered into agreement with the NHAI is alone entitled for deduction u/s 80IA(4) of the IT Act. I fully agree with the views of the AO. In view of this, AO‟s order is upheld."
4. During the proceedings before us, Ld DR heavily relied on the order of the AO on the issue of claim of deduction u/s 80IA(4) of the Act.
5. On the other hand, Ld Counsel for the assessee filed copies of the decisions cited and the same read as under:
1. Transstory (India) Ltd vs. ITO 134 ITD 269
2. ACUIT vs. JSR Construction (P) Ltd 898/Bang/2009
3. ITO vs. UAN Raju Construction 48 SOT 178
4. Laxmi Civil Engg. P. Ltd vs. Addl CIT ITA Nos. 766/M/09; 254/PN/08;
431/PN/07 & 435/PN/07
6. Ld Counsel for the assessee also brought to our notice the decision of the Pune Bench of theTribunal in the case of B.T. Patil and Sons Belgaum Constructions (P) Ltd vs. ACIT vide ITA No.1408/PN/2003, wherein the assessee is held eligible for deduction u/s 80IA(4) of the Act in respect of the profits relatable to the share allotted to the other joint venture partner (M/s. Swapnali Constructions). The said partner transferred the work to the assessee for his inability to undertake the works.
4Para 14 of the said order of the Tribunal is relevant in this regard which reads as under:
"14. In this background, the assessee could certainly claim the deductions under the provision of Section 801A. One has to see the substance and not the Form Essentially, though it was a Joint Venture, it was converted into assessee‟s venture. The Other Venturer withdrew and the entire work was executed by the assessee though in the name of Joint Venture. The Joint Venture is nothing but the venture of the assessee company and the other person not being a party after withdrawing the question of Joint Venture does not arise. The Venture was fully carried out by the assessee and it was entirely executed by the assessee company. Taking the substance of the transaction, the assessee are entitled to all the profits in respect of the contract executed by them, hence the assessee would certainly be entitled to deduction under the provisions of 8OlA as they have fulfilled all the other conditions. This view gets strength from decision in the case of ITAT, Indore Bench, in case of Ayush Ajay Constructions Ltd. (supra). Thus, while giving effect to the opinion of Third Member uls.255(4) of the Act, we take view in conformity with order of jurisdictional High Court in case of ABG Heavy Industries Ltd. (supra) available at this time though contrary to the opinion expressed by the Third Member. So in view of above discussion, following the ratio of jurisdictional High Court in case of ABG Heavy Industries Ltd. (supra), the Assessing Officer is directed to allow deduction u/s.801A(4) of the Act to the assessee with regard to the projects in question for both the years. The matter is disposed off accordingly."
7. In the above case, the assessee is found eligible even after considering the deviations from the original agreement. Here the "substance" is found more important than the "form". The contents of the agreement is not important but the joint venture partner, who executed the work in reality is held relatable for deduction.
8. Assessee also relied on another decision of the ITAT, Agra Bench in the case of M/s. PNC Construction Co. Ltd vs. Dy. CIT vide ITA No.145/Agr/2012 (AY:2005- 2006) dated 15.2.2013. Para 30 of the said order of the Tribunal is relevant in this regard which reads as under:
"30. In the light of the above discussions, we find that the CIT (A) has wrongly withdrawn the claim of the assessee under section 80IA(4) of the Act. Therefore, we set aside the order of the CIT (A) ad restore that of the AO and grant deduction u/s 80IA(4) as claimed by the assessee. This ground of appeal of the assessee is allowed."
9. From the above, it is evident that the deduction u/s 80IB(4) is available either to the JV, who is the actual signatory to the agreement or to the constituents of the JV without having separate agreement and thus, the final executor of the contract is relevant for availing benefit u/s 80IB(4) of the Act. The implied principle in matters 5 of granting deduction under these provisions revolves around the concept i.e., "substance" is more important than the "form" and thus, failure to draw a seprate agreement with NHAI does not disqualify the assessee from claiming the deduction. This view is supported by the decisions cited above. This is an undisputed fact that the SIIL executed the contract on behalf of M/s. Supreme - MBL JV. As such, the NHAI does not have objections against the assessee executing the contract. Considering these conclusions, we are of the opinion that the decision taken by the CIT (A) is not reasonable and therefore, the same is reversed. In the result, both the appeals of the assessee are allowed.
ITA NO: 5447/M/2012 (AY 2009-2010) (By Revenue)
10. This appeal filed by the Revenue on 30.8.2012 is against the order of the CIT (A)-39, Mumbai dated 22.6.2012 for the assessment year 2009-2010.
11. The only issue agitated by the Revenue in this appeal relates to the deletion of addition of Rs. 2,27,80,000/- u/s 68 of the IT Act, 1961. Relevant facts on this issue are that the assessee has running account with M/s. Achiever Trading Pvt. Ltd and had trading transactions during the year. In addition to the same, AO noticed that the assessee‟s books of account shows the transfer of certain amounts on 6.6.2008, 31.10.2008 and 15.12.2008. The bank account of the assessee reflects the same. AO is of the mistaken opinion that the said accounts constitute loans received by the assessee from M/s. Achiever Trading Pvt Ltd. AO came to the conclusion that M/s. Achiever Trading Pvt Ltd is not a genuine party and for this he relied on the report of the Inspector‟s report dated 19.2.2010 collected during the post search proceedings. Mentioning that the assessee failed to prove the identity as well as the genuineness of the creditor, AO invoked the provisions of section 68 and made the addition of Rs. 2,27,80,000/-. Matter travelled to the first appellate authority.
12. During the proceedings before the first appellate authority, assessee demonstrated the genuineness of M/s. Achiever Trading Pvt Ltd and mentioned that it is a regular business transaction with the Achiever Trading Pvt Ltd., in matters of purchases. He also substantiated the fact that the amounts received are not the loans but these are the returns of the unutilized trade advances returned by the 6 Achiever Trading Pvt Ltd. In that case, the advances given by the assessee to Achiever Trading Pvt Ltd is the source for the said amount of Rs. 2,27,80,000/-. CIT (A) discussed the same in para 11 and 12 of the impugned order. In fact, he has analyzed the ledger extracts of Achiever Trading Pvt Ltd for the relevant period and satisfied himself that the advances were actually given by the assessee which is the source of the amount appearing in the bank account of the assessee, SIAL.
13. During the proceedings before us, Ld DR confirming that the identity of the achiever, the sources for the deposits in the bank accounts of the assessee and other conditions of provisions of section 68 are explained.
14. On the other hand, Ld Counsel for the assessee heavily relied on the contents of para 11 to 13 of the impugned order.
15. We have heard both the parties and perused the orders of the Revenue Authorities in general and para 11 to 13 of the CIT (A)‟s order in particular. On perusal of the said paras 11 to 13 of the CIT (A)‟s order, we find para 12 and 13 are relevant here which read as under:
"12. The appellant submitted that from the above Ledger extract it is clear that on 06/06/2008 appellant had given advance of Rs. 1,00,00,000/- against which he had been repaid Rs. 57,80,000/- and balance adjusted against purchases. The appellant stated that similarly against advance payment on 26/9/08 of Rs. 95,00,000/- & on 16/10/2008 of Rs 70,00,000/- it had received back Rs. 70,00,000 on 31/10/2008 &. 1,00,00,000/- on 15/12/2008. Therefore, the appellant submitted that at no point of time it had received any loan from the said party. The bank transaction was summarized by the appellant as under:
12.1 The appellant submitted that from the above chart it was very clear that at no point of time the appellant had taken any loan and whatever amount received from the party was against advance given. The appellant stated the contention of the A.O. that all the purchases from the party was treated as bogus was also not correct. The appellant submitted that AO has treated purchases only of Rs. 2,60,79,598.80 as bogus as against total purchases of Rs. 4,48,46,960.80. This was because wherever the AO did not find supporting document against the purchases only to that extent it was treated as bogus and not the whole amount. Therefore, the appellant stated that it is not the case that all the transaction with the appellant was treated as bogus and 7 the action of the A.O. cannot be upheld. The appellant stated that when the A.O. has accepted part of the transaction as genuine transaction, it means existence & genuinity of the party cannot be denied. Therefore the appellant requested to delete the addition made U/s 68 of the I. T. Act.
13. 1 have considered the issue. I have gone through the submissions of the appellant. It is seen that the appellant has issued cheques to M/s. Achievers Trading P. Ltd. and these amounts were available as deposits with M/s. Achievers Trading P. Ltd. Subsequently the appellant has received the monies through account payee cheques. So the source for the money received from M/s. Achievers Trading P. Ltd. is the money advanced by the appellant to M/s. Achievers Trading P. Ltd. So the sources for these credits are explained and hence these credits cannot be assessed u/s.68 of the IT Act. The A.O. is directed to delete the addition."
16. Considering the above, it is evident that the AO has not properly appreciated the facts relevant to the transaction. M/s. Achiever Trading Pvt Ltd is the supplier to the assessee and they have commercial transactions. As part of the assessee, assessee gives advances to the said supplier of material. The amounts appearing in the bank accounts of the assessee as per the Achiever Trading Pvt Ltd as a source in the said advances given by the assessee, the same is not reviews by the Revenue. In these circumstances, we are of the opinion that it is not proper to doubt the identity and genuineness of the transactions. Therefore, we find no infirmity from the findings given by the CIT (A) in para 12 and 13 of his order and the same does not call any interference. Accordingly, the ground raised by the Revenue is dismissed.
17. In the result, appeal of the Revenue is dismissed.
Order pronounced in the open court on 9th April, 2014.
Sd/- Sd/- (AMIT SHUKLA) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER भुंफई Mumbai; ददनांक 09.4.2014 व.नन.स./ OKK , Sr. PS
आदे श की प्रतिलऱपि अग्रेपिि/Copy of the Order forwarded to :
1. अऩीराथी / The Appellant
2. प्रत्मथी / The Respondent.
3. आमकय आमुक्त(अऩीर) / The CIT(A)-8
4. आमकय आमुक्त / CIT
5. ववबागीम प्रनतननधध, आमकय अऩीरीम अधधकयण, भंफ ु ई / DR, ITAT, Mumbai
6. गार्ड पाईर / Guard file.
सत्मावऩत प्रनत //True Copy// आदे शानुसार/ BY ORDER, उि/सहायक िंजीकार (Dy./Asstt. Registrar) आयकर अिीऱीय अधिकरण, भंफ ु ई / ITAT, Mumbai