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3. The respondent assessees had claimed deduction under Section 80IA of the Act. They had also filed a copy of Form No.3CB and 3CD and Form No.10CCB in support. In the regular assessment proceedings, the Assessing Officer collected details from M/s. Rail Vikas Nigam Ltd and M/s. Rites Ltd. and came to the conclusion that HCIL ARSSPL TRIVENI (JV) had not executed the work but had given sub-contract to M/s. HCIL. Respondent assessee M/s. HCIL Kalindee ARSSPL similarly had not done any work but sub-contracted the work to M/s HCIL and M/s Kalindee Rail Nirman Project Ltd.

4. The aforesaid factual position was put to the respondent assessees and they were asked to reply and explain. Reply furnished was not accepted by the Assessing Officer, who also relied on Explanation to sub-Section 13 of Section 80IA of the Act which stipulates that the Section 80IA is not applicable to an assessee engaged in the execution of works contract. Deduction under Section 80IA was denied and an addition of Rs.70,07,615/- and Rs.41,83,622 was made in the case of M/s. HCIL Kalindee ARSSPL (JV) and HCIL ARSSPL Triveni (JV) respectively. The assessees accepted the quantum order and did not file any appeal. Additions made attained finality.

9. Onus of establishing that the assessee satisfied the two conditions is on him i.e. the assessee. We shall examine the first condition i.e. whether the explanation of the assessee was bonafide. The second condition is satisfied.

10. In the present case, we note that Tribunal has proceeded on the premise that the claim for deduction under Section 80IA of the Act was duly supported by the Chartered Accountant's Certificate and prescribed forms signed by the Chartered Accountant. For claiming deduction under Section 80IA of the Act, filing of certificate and forms signed by the Chartered Accountant is mandatory and a requirement of law. All returns, where deduction under Section 80IA is claimed, must have such certificates and forms. Mere filing of the said forms/certificate cannot absolve and protect an assessee who furnishes in-accurate particulars. If the explanation and the reasoning of the Tribunal is accepted, then in all cases where a form/certificate is furnished by the Chartered Accountant but a wrong claim of deduction is made, no penalty under Section 271(1)(c) can be imposed. Merely because the assessee complies with the statutory procedural requirement of filing the prescribed form and certificate of the Chartered Accountant, cannot absolve the assessee of its liability if the act or attempt in claiming the deduction was not bonafide.

11. Two reasons were given by the Assessing Officer why the claim for deduction under Section 80IA of the Act was rejected and should be denied. The first reason was that the respondent assessees were involved in works contracts and Explanation to Section 80IA (13) stipulates that benefit under the said Section was/is not available to a contractor carrying on works contract. The said "clarificatory" explanation was inserted by the Finance Act, 2007 with retrospective effect from 01.04.2000. The CIT (Appeals) in the first appellate order has specifically mentioned that the Finance Act, 2007 received the Presidential assent on 11.05.2007 [(2007) 291 ITR (St.) 1]. The returns of income were filed by M/s. HCIL Kalindee ARSSPL (JV) and M/s. HCIL ARSSPL Triveni (JV) on 01.11.2007. An amendment of this nature invariably attracts attention and is seldom missed. Such amendments become topic of discussion and conversation in the professional circles. To show and establish bonafides, the assessees had to show some more "tangible material" or basis as to why a clear statutory provision which excludes works contracts was ignored.