2015 (11) TMI 1665 - AT - Income Tax

Deduction under section 80IA(4) - whether assessee was a developer and not contractor - Held that - After analyzing the major clause of the agreement to determine the scope and nature of work undertaken we found that assessee was a developer therefore eligible for claim of deduction u/s.80IA(4). After considering and deliberating on the meanings of the words developer and contractor scope of the work responsibilities and risks undertaken by the assessee in each of the contracts the CIT(A) recorded a finding to the effect that the assessee is not a contractor but a developer. In coming to the above finding in para 6.15 the CIT A also considered the clarificatory amendment by way of Explanation below sub section (13) of section 80IA by the Finance Acts 2007 and 2009 and held after considering various judicial pronouncements that the amendment does not impact development contracts. CIT(A) noted that for the Koyna and Udhampur projects the assessee has already been held to be a developer by the Hon ble ITAT in its own case in the earlier years. Moreover the Koyna project has also been held to be eligible for deduction in B.T. Patil co-ordination forwarding of returns to Prime Minister s office Ministry of Home Affairs and other Departments concerning power issues of J & K. in sum and substance the objects to be pursued are ordinarily performed by Government Thus assessee s contract with NHPC fulfills the condition prescribed in section 80IA(4)(i)(b) of the Act as it performs functions akin to state.No reason to disallow assessee s claim for deduction u/s.80IA(4) in respect of project awarded by NHPC. We found that assessee s contracts with NHPC fulfills all the conditions prescribed u/s.80IA(4)(1)(b) of the Act as it performs functions akin to estate. Accordingly the AO is directed to allow deduction u/s.80IA(4) in respect of project awarded by NHPC. See Som Prakash Rekhi Versus Union of India 1980 (11) TMI 113 - SUPREME COURT OF INDIA

Issues Involved:
1. Deduction under section 80IA(4).
2. Disallowance under section 14A.
3. Protective assessment of income from Joint Venture.
4. Attribution of expenses to projects eligible for deduction under section 80IA(4).
5. Credit of TDS on advances received.
6. Adjustment to book profit under section 115JB.
7. Levy of interest under section 234B.

Detailed Analysis:

1. Deduction under Section 80IA(4):
The primary issue was whether the assessee qualified as a "developer" under section 80IA(4) for various infrastructure projects. The CIT(A) allowed the deduction for all projects except the Teesta Lower Dam Project. The CIT(A) found that the projects executed were highly technical and specialized, involving significant risk, and the assessee deployed substantial resources. The CIT(A) relied on case law, including ABG Heavy Industries Ltd., and concluded that the assessee was a developer and not merely a contractor. For the Teesta Lower Dam Project, the CIT(A) agreed with the AO that the assessee did not fulfill the condition of entering into an agreement with the Central or State Government or a statutory body. The Tribunal upheld the CIT(A)'s decision, confirming the deduction under section 80IA(4) for all projects except the Teesta Lower Dam Project.

2. Disallowance under Section 14A:
The AO disallowed Rs. 88,69,937/- under section 14A, attributing interest expenses to investments in joint ventures. The CIT(A) deleted the disallowance, noting that the amounts were receivables from joint ventures for machinery hire charges and share of profit, not investments. The Tribunal upheld the CIT(A)'s decision, agreeing that no funds were invested in joint ventures and thus section 14A was not applicable.

3. Protective Assessment of Income from Joint Venture:
The AO assessed the income from the LGE & C-Patel JV on a protective basis. The CIT(A) directed the AO to assess the income on a substantive basis, referencing the Ahmedabad Tribunal's decision that the income should be taxed in the hands of Patel Engineering. The Tribunal upheld the CIT(A)'s decision, confirming the substantive assessment of the income.

4. Attribution of Expenses to Projects Eligible for Deduction under Section 80IA(4):
The AO allocated expenses from the Panvel workshop and the USA office to the projects eligible for deduction under section 80IA(4), reducing the deduction amount. The CIT(A) upheld this allocation. However, the Tribunal disagreed, citing the decision in DCW Ltd. and Liberty India, and directed the AO not to reduce the profit eligible for deduction by these expenses.

5. Credit of TDS on Advances Received:
The AO denied credit for TDS on advances received. The CIT(A) allowed credit for TDS where the corresponding income was offered during the current year. The Tribunal directed the AO to allow credit for TDS in the year of deduction itself, following decisions in ACIT v. Peddu Srinivas Rao and Zelan Projects Pvt. Ltd.

6. Adjustment to Book Profit under Section 115JB:
Since the disallowance under section 14A was deleted, the adjustment to book profit under section 115JB became infructuous and was dismissed by the Tribunal.

7. Levy of Interest under Section 234B:
The levy of interest under section 234B was deemed consequential by the Tribunal.

Conclusion:
The Tribunal dismissed the revenue's appeal and partly allowed the assessee's cross-objection, confirming the CIT(A)'s decisions on various issues, and providing specific directions on the allocation of expenses and credit for TDS.

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