2012 (10) TMI 658 - AT - Income Tax

Computation of income on the basis of section 44BBB of the IT Act - agreement entered by both the assessees as a consortium with TNEB - Work was to be done together - liability was undertaken together Held that - Assessees had filed revised computation during the course of assessment proceedings, applying Section 44BBB for computing their respective income, whereas initially they had returned their income based on the audited books of accounts - Application of Section 44BBB of the Act for computing the income was first made through such revised computation - for making a claim other than what was originally made in return of income, filing of a revised return is mandatory - Neither the A.O. nor the CIT(Appeals) have considered these fundamental aspects regarding status and validity of a claim made other than through revised return - assessees had also not placed before A.O. various details regarding erection charges received and break-up of the work done by them to M/s TNEB for verifying whether their billings included any fee for technic service - matter requires a re-visit by the A.O. for considering the issues de novo

Summary

Issues Involved:
1. Application of Section 44BBB of the Income-tax Act, 1961.
2. Consideration of fees for technical services under Section 44D read with Section 115A of the Act.
3. Validity of claims made through revised computation without filing a revised return.
4. Determination of the status of the consortium as an Association of Persons (AOP) or separate entities.

Issue-wise Detailed Analysis:

1. Application of Section 44BBB of the Income-tax Act, 1961:
The primary issue was whether the assessees could compute their income under Section 44BBB of the Act. The assessees argued that their contract with Tamil Nadu Electricity Board (TNEB) was a Central Government-approved turnkey power project, thus qualifying for Section 44BBB. The Assessing Officer (A.O.) disagreed, stating that the contract did not meet the conditions of Section 44BBB at the time of signing in 2001, specifically the requirement of financing under an international aid programme, which was omitted only from 1.4.2004. The CIT(A) sided with the assessees, noting that the omission of the financing condition should be applied prospectively from 1.4.2004, making Section 44BBB applicable for the impugned assessment year. The Tribunal found that the matter required a re-examination by the A.O. to verify the details and status of the project.

2. Consideration of Fees for Technical Services under Section 44D read with Section 115A of the Act:
The A.O. identified that the assessees had debited significant amounts under "Expenses for Design Engineering, and Technical and Supervisory Services" and argued that these should be considered fees for technical services, attracting Section 44D read with Section 115A. The assessees contended that these services were part of the turnkey project and not standalone technical services. The CIT(A) agreed with the assessees, stating that the technical services were inextricably linked to the project and not standalone, thus not attracting Section 44D. The Tribunal, however, remitted the matter back to the A.O. for a fresh examination, emphasizing the need to ascertain the exact nature of the services and their billing.

3. Validity of Claims Made Through Revised Computation Without Filing a Revised Return:
The Tribunal noted that the assessees had initially filed their returns based on audited books of accounts and later submitted revised computations applying Section 44BBB. The Tribunal referenced the jurisdictional High Court's decision in CIT v. Shriram Investments, which held that claims other than those made in the original return must be made through a revised return. The Tribunal found that neither the A.O. nor the CIT(A) had considered this procedural aspect and remitted the matter back for re-evaluation.

4. Determination of the Status of the Consortium as an Association of Persons (AOP) or Separate Entities:
The Tribunal examined whether the consortium of M/s Litostroj E.I. and M/s Koncar Inzenjering should be assessed as an AOP or as separate entities. The agreement with TNEB was a lump sum contract with a break-up of the consideration between the consortium members. The Tribunal concluded that the work and liability were undertaken jointly, indicating an AOP status. However, this aspect was also remitted back to the A.O. for a detailed re-examination.

Conclusion:
The Tribunal allowed the Revenue's appeals for statistical purposes, remitting the matters back to the A.O. for fresh consideration. The assessees' appeals were dismissed for non-prosecution. The Tribunal emphasized the need for a thorough re-evaluation of the application of Section 44BBB, the nature of technical services, the procedural validity of revised claims, and the status of the consortium.