Income Tax Appellate Tribunal - Hyderabad
Ta Infra Projects Limited, Hyd, ... vs Income Tax Officer, Ward-2(4), ... on 16 February, 2018
IN THE INCOME TAX APPELLATE TRIBUNAL
HYDERABAD BENCHES "B", HYDERABAD
BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER
AND
SHRI V. DURGA RAO, JUDICIAL MEMBER
ITA No. A.Y. Appellant Respondent
The Deputy
Commissioner of
14/Hyd/2016 2012-13 Income Tax,
Circle-2(2),
HYDERABAD M/s. TA Infra Projects
Limited,
HYDERABAD
The Income Tax [PAN : AABCT4110E]
727/Hyd/2017 2013-14 Officer,
Ward-2(4),
HYDERABAD
C.O. No. A.Y. Cross-Objector Respondent
The Asst.
10/Hyd/2016 Commissioner of
(In ITA No. 2012-13 Income Tax,
14/Hyd/2016) Circle-2(2),
M/s. TA Infra Projects HYDERABAD
Limited,
HYDERABAD
23/Hyd/2017 [PAN : AABCT4110E] The Income Tax
(In ITA No. 2013-14 Officer,
727/Hyd/2017) Ward-2(4),
HYDERABAD
For Revenue : Shri R. Laxman, CIT-DR
For Assessee : Shri Syed Tausif Ali, AR
Date of Hearing : 13-02-2018
Date of Pronouncement : 16-02-2018
ORDER
PER BENCH:
These are Revenue appeals against the order(s) of the Commissioner of Income Tax (Appeals)-2, Hyderabad, dated M/s. TA Infra Projects Ltd., :- 2 -:
14-10-2015 & 30-01-2017 for the AYs. 2012-13 & 2013-14. Assessee raised cross-objections against both the appeals. Since common issues are involved in these appeals, we have heard them together and decided by this common order.
2. Briefly stated, assessee-company is engaged in manufacture of pipes for water supply and sewerage scheme and also turnkey contractors in infrastructure sector. For the AY. 2012-13, assessee has declared income of Rs. 62,62,130/-, after claiming deduction u/s. 80IA of the Income Tax Act [Act]. Assessment was completed by the Assessing Officer (AO) making the following additions/disallowances:
i. Claim of deduction u/s. 80IA - Rs. 1,11,16,842/- ii. Disallowance u/s. 40(a)(ia) - Rs. 19,59,12,583/- iii. Disallowance u/s. 43B - Rs. 1,68,00,000/-
3. For the AY. 2013-14, assessee declared income of Rs. 62,04,940/-, after claiming deduction u/s. 80IA. The assessment was completed by the AO making the additions and additions/disallowances:
i. Claim of deduction u/s. 80IA - Rs. 17,26,516/- ii. Disallowance u/s.40(a)(ia) - Rs. 19,51,00,964/-
Aggrieved on the above disallowances made by the AO, assessee preferred appeals before the CIT(A) and CIT(A) has given relief. Revenue is aggrieved and preferred the grounds in respective M/s. TA Infra Projects Ltd., :- 3 -:
assessment years. The issues are considered commonly in this order, after hearing the rival contentions of the Ld.AR and Ld.DR.
Issue of Section 80IA:
4. In both the assessment years under consideration, AO was of the view that assessee is only executing works contract as a contractor and not as a developer of infrastructural facilities. AO was of the opinion that assessee has not fulfilled all the conditions and requirements of the provisions of Section 80IA for claim of deduction.
4.1. Before the Ld.CIT(A), assessee not only justified how it was entitled for deduction u/s. 80IA but also relied on the orders of ITAT, Hyderabad 'A' Bench in ITA No. 129/Hyd/2013 dt. 30-08- 2013 for the AYs. 2004-05 to 2009-10 in its own case. Ld.CIT(A) following the above order, gave relief to assessee.
4.2. It was the contention of Ld.DR that assessee is not involved in infrastructural development that is required u/s. 80IA and was only involved in works contract, hence not eligible for deduction. It was the submission of the Ld. Counsel that assessee is involved both as contractor as well as infrastructural developer and the claim was made only the extent of projects which are as infrastructural developer and furnished the details of works undertaken.
i. Infrastructural contracts (6 projects) - Rs. 30,25,56,324 ii. Infrastructural Projected executed directly
- Rs. 41,42,59,321 M/s. TA Infra Projects Ltd., :- 4 -:
4.3. It was submitted that claims were made only on the direct infrastructural projects which were to the extent of Rs. 57.59% and not on full contracts executed by assessee. Further, Ld. Counsel has placed on record the orders in AYs. 2010-11 and 2011-12, wherein the matter was referred to the AO who after ascertaining that assessee is eligible for deduction allowed them.
4.4. We have considered the rival contentions, objections of the DR and submissions of the AR. As can be seen from the order of CIT(A), he has followed the order of ITAT in earlier years. At the out set, it is to be agreed that the issue is covered in favour of assessee by the orders of the ITAT in earlier years in assessee's own case which the Ld.CIT(A) has followed. Consequently, we do not see any reason to interfere with the order of CIT(A), as there seems to be no change in facts and circumstances of the case in the years under appeal. However, AO has not distinguished on what percentage assessee has claimed u/s. 80IA and what are the contracts undertaken. In earlier years, as seen from the orders of AYs. 2010-11 and 2011-12, AO has issued an annexure, identifying various projects. The matter was sent back to AO for verification. The order of ITAT in ITA Nos. 1382 & 1383/Hyd/2015 dt. 26-04-2017 is as under:
"4. As can be seen from the above, the major issue which Revenue is contesting is with reference to deduction under section 80IA. At the outset, both the parties have agreed that this issue is covered in favour of the assessee by the orders of the ITAT in earlier year in assessee's own case, which the Ld. CIT(A) has followed. Consequently, we do not see any reason to interfere with the order of the CIT(A) as there are no change in facts and circumstances of the case for the years under appeal. However, while passing the order the A.O. has stated that certain contracts were not eligible for deduction under section 80IA. This which seems to have been quantified in an annexure was not placed on record. Learned Counsel for M/s. TA Infra Projects Ltd., :- 5 -:
the Assessee has stated that the claim made was only with reference to the infrastructure projects and not on work contracts which the assessee itself has segregated and claimed. However, he has no objection if this aspect is verified by the A.O. Therefore, while agreeing with the order of the CIT(A) in granting the deduction under section 80IA, subject to verification of quantum of income on the eligible infrastructure projects, as per the directions of the ITAT in earlier years. Revenue grounds are accordingly partly allowed".
4.5. In view of that, since assessee ascertains that it has claimed only the deduction on infrastructural projects undertaken by it, AO is directed to examine this aspect and allow the claim after verification as in earlier years. The ground is considered partly allowed for statistical purposes.
4.6. Similar is the case in AY. 2013-14 also. The above directions given for AY. 2012-13 will equally apply as the assessee has submitted that the claim in this year is only to an extent of 20%.
i. Infrastructure contracts (6 projects) - Rs. 32,93,79,115
ii. Infrastructure Projects executed
Directly - Rs. 7,83,29,410
AO is directed to examine this aspect and allow the claim after verification as in earlier years. The ground is considered partly allowed for statistical purposes.
Issue of Section 40(a)(ia):
5. In both the years, AO has invoked the provisions of Section 40(a)(ia) to disallow the amounts on which TDS was not deducted or TDS deducted but not paid. Ld.CIT(A) invoking the decision of the Special Bench of ITAT in the case of Merilyn M/s. TA Infra Projects Ltd., :- 6 -:
Shipping and Transport Ltd., Vs. ACIT [16 ITR 1] (SB)(Visakha.)(Trib.) has allowed the amounts. While doing so, he however has also restricted the disallowance only to the amount of TDS deducted and not paid in AY. 2012-13, whereas deduction u/s. 40(a)(ia) requires deduction of the entire amount on which TDS was not deducted or paid. The order of CIT(A) in AY. 2012-13 is as under:
"6.6. In the instant case, the assessee has paid the amount without deducting the tax. As it is evident from the facts that the assesee has already paid the sub contract/other expenditure of Rs.19,59,12,583/during the year itself and nothing was payable as on 31st March and this fact was not disputed by the AD also. Therefore, the issue involved is squarely covered by the ratio laid down by the Hon'ble ITAT, Spl.Bench, Visakhapatnam and the Hon'ble ITAT, Hyderabad 'A' Bench in the cases of Merilyn Shipping & Transport and Janapriaya Engineering Syndicate (mentioned supra) respectively.
6.7. In view of the above, I am of the considered opinion that the action of the AO is not justified in making the said disallowance u/s.. 40(a)(ia) of the Act, as the said amount has already been paid during the previous year. Respectfully following the said decisions, I hereby direct the AO to delete the disallowance of Rs.19,59,12,583/- made u/s. 40(a)(ia) of the Act.
6.8. As it has already been mentioned in the earlier paragraphs that an amount of Rs.45,71,306/- was shown as TDS payable in the balance sheet. In other words, the amount of Rs.45,71,306/- is pending for payment on 31st March, 2012. Therefore, the amount was outstanding as 'payable'. As a result, the said amount of Rs.45,71,306/- is disallowed u/s. 40(a)(ia) of the Act".
5.1. After considering the rival contentions, as the issue is now decided by the Hon'ble Supreme Court of India in the case of Palam Gas Service Vs. CIT [394 ITR 300] (SC) in which it was held that even the amounts paid during the year are also covered by the provisions of Section 40(a)(ia), the Special Bench decision of the ITAT in the case of Merilyn Shipping and Transport Ltd., Vs. ACIT M/s. TA Infra Projects Ltd., :- 7 -:
(supra) is no longer a valid one. Consequently, the order of CIT(A), relying on the above, for giving relief is to be set aside.
6. However, assessee in the cross-objection has raised the issue that assessee has not been treated as assessee-in-default under the provisions of Section 201(1) of the Act and following the decision of the Hon'ble Delhi High Court in the case of Ansal Land Mark Township (P) Ltd., Vs. CIT [CM Appeal No. 3774 of 2015 in ITA No. 160 of 2015] dt. 28-08-2015, the disallowance u/s. 40(a)(ia) could not be made, if assessee is not treated as assessee- in-default. It was further submitted that assessee is in a position to produce the certificates that the payee has included the amount received from assessee in its returns and has paid entire taxes on the income. Since these issues are not examined by the AO, we are of the opinion that the disallowance u/s. 40(a)(ia) is required to be re-considered by the AO, after giving due opportunity to assessee. For this purpose, orders of AO and CIT(A) on this issue are set aside and the matter is restored to the file of AO.
Deduction u/ 80IA:
7. One more issue involved in AY. 2012-13 is with reference to objections of Revenue that CIT(A) erred in allowing the deduction u/s. 80IA on the amount disallowed u/s 43B. The order of Ld.CIT(A) in para 7.3 and 7.4 is as under:
"7.3. I have perused the alternate ground raised by the AR. As the disallowance of Rs. 1,68,00,000/- made by the AD as above is sustained vide Para No.7.2. of this order, the profits of the assessee will be increased to this extent. In this regard, the Hon'ble ITAT, Hyderabad 'A' Bench in the case of M/s.Koya and Company Construction Pvt. Ltd., Hyderabad for the Asst.Year: 2006-07 vide order ITA No.221/Hyd/2009, M/s. TA Infra Projects Ltd., :- 8 -:
dt: 22nd March,2012 in the Page 57 Para 35 of the said order, held as under:
"The next ground in ITA No.221/Hyd/2009 for the Asst. Year:2006-07 is with regarding to the issue that the assessee is not entitled to deduction u/s.80IA(4) on the sum of Rs.50,00,000/- which was added while computing the total income of the assessee. The Assessing Officer added Rs.50,00,000/- on account of discrepancies in vouchers. There was a survey u/s.133A of the I. T.Act in the premises of the assessee on 7-2-2008. It was found that the sand purchases and labour payments are supported by self made vouchers and not by regular bills. On this count Rs.50,00,000/- is added to the business income of the assessee. According to the assessee's counsel, this amount has to be considered as business income and deduction u/s.80IA(4) has to be allowed.
We have heard the parties on this issue. In this case, the addition is made towards the discrepancies in vouchers and the addition is treated as business income. Once the addition is resulted in business income, on the same logic corresponding is to be given. This ground of the assessee is allowed. "
7.4. Since the issue involved in the appeal is similar with that of the decision mentioned supra, the assessee is entitled for deduction u/s.80IA(4) on this amount of Rs.1,68,00,000/-. Hence, the AO is directed to recompute the deduction u/s. 80IA after taking into account the said amount of Rs. 1,68,00,000/- to the profits of the assessee and corresponding deduction may be given. As a result, the alternate grounds raised by the AR are allowed".
7.1. The amount of Rs. 1,68,00,000 was disallowed u/s 43B. The said disallowance was confirmed by Ld. CIT(A). assessee contention was that the said amount will increase the profits of business and the corresponding claim u/s 80IA(4) will get increased. Ld. CIT(A) accepted the contention as stated above. We do not see any reason to interfere with the order of Ld.CIT(A), as the amount disallowed u/s. 43B will become profits of business in the computation of income under the head 'business' or 'profession. Consequently, if the amounts disallowed are pertaining to the projects on which the claim u/s 80IA was made, M/s. TA Infra Projects Ltd., :- 9 -:
the same has to be allowed as profits get increased to that extent. AO is directed to the examine working of profits and allow the claim. The grounds raised by revenue has no merit.
8. In the result both the Revenue appeals are partly allowed for statistical purposes.
9. Cross-objections by Assessee are mainly in support of the orders of CIT(A) and on the issue of 40(a)(ia), the matter was already been restored to the file of AO. Accordingly, Cross- objections are also considered partly allowed for statistical purposes.
10. To sum-up, both the Revenue appeals and the Cross- objections are partly allowed for statistical purposes.
Order pronounced in the open court on 16th February, 2018 Sd/- Sd/-
(V. DURGA RAO) (B. RAMAKOTAIAH)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Hyderabad, Dated 16th February, 2018
TNMM
M/s. TA Infra Projects Ltd.,
:- 10 -:
Copy to :
1. The Deputy Commissioner of Income Tax, Circle-2(2), Hyderabad.
2. Asst. Commissioner of Income Tax, Circle-2(2), Hyderabad.
3. The Income Tax Officer, Ward-2(4), Hyderabad.
4. M/s. TA Infra Projects Limited, 1-11-251/4/B, 6th Floor, Tirumala Heights, Behind Shoppers Stop, Begumpet, Hyderabad.
5. CIT(Appeals)-2, Hyderabad.
6. Pr.CIT-2, Hyderabad.
7. D.R. ITAT, Hyderabad.
8. Guard File.