TMI Blog2014 (1) TMI 1879X X X X Extracts X X X X X X X X Extracts X X X X ..... nate Bench of this Tribunal in the case of assessee s sister concern [2013 (6) TMI 813 - ITAT KOLKATA] as also on account of the fact that it is noticed that assessee has been paying VAT on the turn over in respect of various projects. The projects which have been undertaken by the assessee in West Bengal and Bihar are also such projects which are assessable under the relevant states VAT Laws In the circumstances we are of the view that the assessee is entitled to the benefit of deduction u;/s 80IA(4) as claimed. In the circumstances the AO is directed to grant the assessee benefit of deduction u/s 80IA of the Act as claimed. - ITA No.194, 251/Kol/2011 - - - Dated:- 17-1-2014 - Sri Abraham P.George And Sri George Mathan, JJ. For the Appellant: Shri A.S.Mondal, Addl. Sr.DR For the Respondent: Shri Ravi Tulsiyan, CA ORDER Shri George Mathan, J. I.T.A.No.194/Kol/2011 is an appeal filed by the Revenue and ITA No.251/Kol/2011 is an appeal filed by the assessee against the order of ld. C.I.T.(A)- XII, Kolkata in Appeal No.830/CIT(A)-XII/Wd-12(2)/09-10 dated 26.11.2010 for Assessment year 2009-10.. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be made at 1% of the dividend income by following the decision of the Jurisdictional Tribunal as also the decision of the Hon ble Bombay High Court in the case of Godrej Boyce Manufacturing Ltd. reported in 328 ITR 81. 8. The ld. DR vehemently supported the order of the AO. 9. In reply the ld. AR submitted that the assessment year involved was 2007-08 and the provision of section 14A of the Act was effective from A.Yr. 2008-09. It was the submission that the Hon ble Jurisdictional High Court had also upheld the orders of the Tribunal upholding the disallowance under Rule 8D at 1%. It was the submission that order of the ld. CIT(A) on this issue may be upheld. 10. We have heard the rival submissions. As it is noticed that the issue of disallowance under Rule 8D has been consistently being held by the Coordinate Bench of this Tribunal at 1% of the dividend income for the Assessment years before A.Yr. 2008-09, we are of the view that the finding of ld. CIT(A) on this issue is on a right footing and does not call for any interference. 11. In the result the appeal of the Revenue stands dismissed. ITA No.251/Kol/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k guarantee (page 13 52 of P-II) i.e. ₹ 44,82,311/- See VAT return of Jharkhand state page 279 of P-III and details of turnover on page 1 of PIV) See project Balance Sheet (page 84 of P-III) and expenditure ledger on page 92 of P-III) Construction of ROB, Dhanbad ₹ 20,86,72,517/- (Pg.59 of P-II) 5% of contract value in form of bank guarantee (page 70 902 of P-II) i.e. ₹ 1,04,33,625/- See VAT return of Jharkhand state page 279 of P-III and details of turnover on page 1 of P-IV) See project Balance Sheet (page 96 of P-III) and expenditure ledger on page 105 of P-III) Construction of ROB, Parasnath ₹ 12,86,36,110/- (Pg.97of P-II) 5% of contract value in form of bank guarantee (page 108 138 of P-II) i.e. ₹ 64,31,806/- See VAT return of Jharkhand state page 279 of P-III and details of turnover on page 1 of P-IV) See project Balance Sheet (page 109 of P-III) and ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Security Deposit was to be recovered by making deduction @ 10% from running bills (page 538) See VAT return of Jharkhand state page 279 of P-III and details of turnover on page 1 of PIV) See project Balance Sheet (page 182 of P-III) and expenditure ledger on page 191 of P-III) Construction of Bridge, Taratala ₹ 12,81,82,420/- (Pg.667of P-II) ₹ 25,63,648/- to cover 2% of total bid amount (page 587) Security Deposit : 15% of the bid amount, i.e. ₹ 1,92,27,363/- See assessment order on pages 3 4 of P-IV, listing projects assessed to VAT See project Balance Sheet (page 195 of PIII) and expenditure ledger on page 204 of P-III) Protection of bank of river Bhagirathi, Burdwan ₹ 7,28,46,149/- 5% of the cost of project See assessment order on pages 3 4 of P-IV, listing projects assessed to VAT See project Balance Sheet (page 208 of PIII) and expenditure led ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contract is not defined in section 80IA. Now, what would come into consideration is whether the substituted Explanation after sub- clause (13) changed the nature of the meaning of infrastructure facility provided in the Explanation to section 80IA(4). Admittedly, the Explanation to section 80IA(4) gives the meaning the term infrastructure facility . The substituted explanation after sub clause (13) brings in the nature of work as a works contract. The provisions of section 194C, which deals with TDS in respect of payment to contractors for carrying out any work in the Explanation thereto as explained the term work to be an inclusive definition, but has provided an exclusion to be does not include manufacturing or supplying of a product. according to requirement or specification of the customer by using materials purchased from a person, other than such customer . Thus, with this in mind, a perusal of the turnkey contract agreement entered into by the assessee with the Irrigation Department, Govt of A.P clearly shows that the construction of all the structures of the whole canal system is to be as per approved design, drawings, specifications of the department etc. The survey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, wherein one of us was a party and in which case it has been held as under :- 10. Now coming to the merits of the deduction u/s. 801A(4) of the Act. A perusal of the provisions of section 801A(4) of the Act shows that in the explanation infrastructure facility has been specified to mean a road including a toll road, a bridge or a rail system. Admittedly, the assessee is doing the business of development of railway tracks and bridges thereof as also roads. If, we are to accept the contention of the Ld. CIT that the provisions of section 801A(4) of the Act after the substitution of the explanation to section 8OIA of the Act was introduced was only for the purpose of giving the benefit to BUT contracts then, the explanation to section 801A(4) of the Act becomes otiose. This is as explanation to section 801A(4) of the Act specifically provides for the road to include a toll road, a bridge or a rail system. BUT contract in respect of the railway system can never exist. Further, a perusal of the provisions of section 801A of the Act shows that the term works contract is not defined in the said section. However, the terms works and contract is defined in the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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